Native title - speaking for their country

The Queensland Government has argued that a declaration of a wild river does not extinguish native title because it is subject to section 44 of the WRA which provides that “a wild rivers declaration or a wild rivers code, in applying for the purposes of any of the Acts that prohibit or regulate activities or taking of natural resources, cannot limit a person’s right to the exercise or enjoyment of native title”. That statutory protection is limited to the prohibition of activities under legislation other than the WRA and does not apply to the effect on the native title right to decide use of land resulting from a declaration under the WRA.

The Full Federal Court in the case of Western Australia v Ward held that sections of the Conservation and Land Management Act 1984 (WA) and regulations under the Wildlife Conservation Act 1950 (WA), while imposing “very stringent and extensive control over human activities within the nature reserves and wildlife sanctuaries” do not prevent the continued enjoyment of all native title rights and interests in relation to land within them, but do extinguish an “exclusive native title right to control access” and an “exclusive right of possession and occupation”. It follows that, section 44 of the WRA reflects the common law position, that some native title rights to engage in activities may co-exist with the declaration of a wild river. However, section 44 does not prevent the taking of the right to speak for country which occurs upon the declaration of a wild river being made.

I was privileged to have acted as a legal representative for Martha Koowarta’s late husband John Koowarta, a resident of Aurukun, when, in 1982, he took the Bjelke Petersen government to the High Court and established that the refusal of the Queensland government to transfer the Archer River Pastoral lease to the Aboriginal Land Fund Commission for the benefit of the Wynchanam people was an act of racial discrimination. Regrettably, the Bjelke Petersen government converted the pastoral lease into the Archer Bend National Park, preventing it from being vested in the traditional owners of that land.

As solicitor for the late Eddie Mabo, I was also involved in the 10 years of litigation on behalf of the Meriam people which took up where John Koowarta left off and created the precedent which enabled the Wik and Wik Way peoples to be declared native title holders of their traditional lands.

It flies in the face of the progress that has been made in recognising the rights of Indigenous peoples for the wild rivers regime to take away the important right of native title holders to speak for their country without following the statutory procedures laid out in the NTA.