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Land Rights in Queensland — a hope still?

In my living memory Musgrave Park has always been contested land. Ever since the 1967 referendum and before Murris from all over Queensland have come to Musgrave Park to meet up.

Much has been made of an aboriginal cultural centre that was to be built on the southern end of the park. Recently Brisbane Lord Mayor, Alderman Quirk claimed that aboriginal elders had asked him to remove the sovereign tent embassy from the park. Quirk and Campbell-Newman combined together on May 16, 2012 to remove the sacred fire and tent embassy using Greek Paniyiri as their excuse.

Claims were made by previous Labor administrations that a part of Musgrave Park was to be given back to aboriginal people to build a cultural centre. Yet the site (see Area C on the map) described as DOGIT (deed of grant in trust) for aboriginal purposes is owned by the Brisbane City Council.
No aboriginal trustees were ever appointed.

The title deed (attached) shows the owner of Musgrave Park as being BRISBANE CITY COUNCIL as trustee.
In a strange twist of language the same title deed claims that the land is held by the BCC for “FOR ABORIGINAL AND FOR NO OTHER PURPOSE WHATSOEVER“. The Brisbane City Council can’t decide what an Aboriginal Purpose is, nor can any single person be they aboriginal or not. Where the Sovereign Tent Embassy organised a corroboree in March 2012 that was an aboriginal purpose. When a Jagera man lights the sacred fire that is an aboriginal purpose.
No aboriginal people are included on the title deed.
No aboriginal people are included in the DEED OF GRANT IN TRUST.
No aboriginal people are mentioned in the lease documents signed by Matt Foley, the then attorney general in the Beattie Labor government.The Olden Days – The good ol’ days | Reportage | Edition 21: Hidden Queensland | Griffith REVIEW.

It comes as no surprise that the current LNP Lord Mayor, Alderman Quirk, did not consult any aboriginal person – not in any meaningful way –  about the closing down of the tent embassy.

BCC officers have repeatedly shown disrespect and contempt for aboriginal people.

They have been putting out the sacred fire and arrested a Jagera traditional owner, other Murris and non-indigenous supporters committed to the sovereign tent embassy and the important political and cultural work it carries on.

At a recent meeting of the sovereign tent embassy in Musgrave Park in Brisbane in December 2012, someone asked me to explain how the Brisbane City Council still had control of aboriginal (Jagera) land where a cultural centre was promised by the Queensland government in 1998. Similar questions have been asked online. So I have tried to find out how it was that various attempts at acquiring land rights have been squashed in Queensland. Many important issues turn on the status of Musgrave Park. The ongoing and daily harassment of aboriginal people is one of these issues. How can service delivery agencies claim to be effective in their work if police and council officers have no respect for first nation people and owners of the land.

Musgrave park
Click to see detail

No government, be it federal, state or local have ever taken land rights seriously. The economic base for aboriginal people that land rights requires has been removed on each and every occasion in Queensland. For example productive oyster leases and banana plantations were taken away from aboriginal custodians on Palm Island [Bwgcolman] in the Owens Group when DOGIT leases were declared. Oysters valued at $600,000 were abandoned. Of course the local community was blamed for this failure.
Search of Documents at Qld Lands Office
Title Deed to Musgrave Park
Lease over Musgrave Park
DOGIT over Musgrave Park

Who sank land rights?
Stuart Rintoul, writing for The Australian in an article ‘Miners and Brian Burke sank land rights hope’ makes the following claim:

“A concerted campaign by the mining industry, backed by the Burke Labor government in Western Australia, left the commonwealth’s commitment to national land rights in disarray by the end of 1984.”

Yet, in the 1980s, the main focus of the land rights struggle was in Queensland. Speaking at a rally in Queensland land rights protest prior to the 1982 Commonwealth Games, Susan Ryan, then ‘shadow minister for aboriginal affairs’, told aboriginal people and their non-indigenous supporters:

“The (federal) parliamentary Labor party and a very large group of people (are) standing shoulder to shoulder with you here today … We are here to say one thing, we (will use) the constitutional power of the commonwealth when we are in government to secure land rights for Queensland aboriginal and islander people in Queensland.

Susan Ryan was the only non-indigenous person invited to speak that day. The Labor party in government did not keep the promise the-soon-to-be-minister in the Hawke government made that day prior to the march on QEII where the games were held. Stuart Rintoul claimed Susan Ryan ‘had told a cheering crowd‘ that a Labor government would introduce national land rights. However Cheryl Buchanan, the chairperson of the 1982 Commonwealth Games protest rally in Roma Street Forum in Brisbane, gave Susan Ryan this qualified welcome to the speak.

“Some people in their individual way and within their parties have done what they can for the aboriginal movement and we are allowing them to speak here today, one of these people, I will now introduce, is Senator Susan Ryan.”

Regardless of whether the crowd at the rally had cheered Susan Ryan (I was there that day and certainly didn’t cheer) the crowd had no reason to cheer either because neither Liberal nor Labor Commonwealth governments used their constitutional power to declare land rights in Queensland. This was despite a finding by the High Court in John Koowarta and the Winychanam Aboriginal community versus the Queensland Government
(May 1982) that the Commonwealth had the power to overrule decisions made by the Queensland government on land rights.

Both then in 1982 and now, the Queensland government has opposed the struggle for land rights.

Bjelke-Petersen mustered support of the League of Rights (a racist organization based in Toowoomba and the Darling Downs. The League had worked within the National Party for many years.) At the same time the Bjelke-Petersen government sacked Aboriginal and Torres Strait Islander workers rather than pay them approved equal award wages.

Until 1982, the majority of Queensland indigenous people had been confined to reserves under apartheid legislation known as the Queensland Acts.

In response to the land rights movement, the Bjelke-Petersen government altered the way in which government held the land in aboriginal reserves:

“The Premier announced on 1 March 1982 that a new form of land tenure under the Queensland Lands Act would be applied to the Aboriginal reserve lands. The Elected Aboriginal councils on the reserves would be given ‘deeds of grant in trust’ over the land. This form of tenure was used for land reserved for public purposes such as roads, hospitals, racecourses and cemeteries.”

In reply, a committee of indigenous and non-indigenous people placed the following advertisement in the Australian stating:

“Existing provisions of the Land Act for such reserves under Deeds of Trust are wholly unsatisfactory to Aborigines and would be so to any person.

The reasons were obvious to all.

The deeds of grant in trust were designed by the Queensland Government to deny land rights to indigenous people.

The Federal Labor government’s position was discussed in cabinet on 25 February 1985 and described thus:

“Land available for claim would include former Aboriginal reserves and missions (reserves and missions currently occupied would be granted directly to Aboriginal people), vacant Crown land subject to mining interests, all other unused Crown land and Commonwealth national parks where the traditional owners were prepared to accept the area’s continued use as a national park. Claims could not be made for private land, land set aside for public purposes and any other alienated land, including pastoral leases. Claims were to be based on traditional entitlement, historical association, long-term occupation and use, and specific purposes such as town camps. Aboriginal people would not be able to veto mining or exploration, but an independent tribunal could make recommendations for the resolution of disputes (see A14039, 2092)”.

In September 1985, the Queensland government remained ideologically opposed to land rights but in practical terms Bob Katter, the state aboriginal affairs minister, indicated self-management of the reserves was possible. However, Pat Killoran, Qld Aboriginal Affairs departmental head, devoted much of his time to undermining self-management.

Jagera Traditional owner, Arjin Wooragard (blackfella name) Kevin Vieritz (whitefella name), told a Sovereignty Conference in Brisbane in November 2012:

“Blacks in the Northern Territory gained back a lot of their land via the Land Rights Act 1976. In 2007, Howard the Coward used the existing laws in the Australian Constitution (section 51xxxvi – the ‘race’ power) to steal back that land that we fought for and won.”

Where to?
Yet out of Queensland came aboriginal leadership that fought for land and community in Queensland and across Australia. This struggle produced the modern land rights movement that won ‘native title ‘under legislation introduced by the Keating Labor government in 1993. Yet, in the Keating native title legislation, little more was gained than from the exclusions that the Bjelke-Petersen cabinet had applied to deeds of grant in trust in 1982:

  • Liability of the trustees to pay all survey fees.
  • The Deed of Grant may be varied or cancelled at any time by the authorities (ie., the Governor-in-Council, which in effect means the Queensland Cabinet).
  • The authorities may revert the land to the Crown at any time ‘if thought desirable’.
  • Any Trustee may be removed from office. New trustees may be appointed ‘by the authorities’ (no election is necessary Land cannot be leased to particular families without written approval from the Minister for Lands.
  • Trustees must charge ‘the highest rent which can be reasonably obtained’ on leased land or houses.
  • The Minister may cancel any lease if he is satisfied its conditions are not being met_ No compensation for improvements is payable on cancelled leases. Police have power to remove any tenant whose lease is cancelled.
  • No occupant of reserve land can stay on it more than a month without written consent of the Minister.
  • Any land needed for ‘public purposes’ can be resumed at any time. This includes eg. air-strips, roads, experimental farms, and ‘departmental purposes’.
  • Prospectors and miners can enter without permission either from the trustees or the Mining Warden.
  • There are other severe restrictions on reserve Ieaseholders.

Compare this with the Labor Government model adopted in 1985. The Labor Cabinet settled on a “preferred national model” for land rights, which broke with three of Labor’s “five principles” where there was no Aboriginal right of veto over mining exploration, no guarantee of access to mining royalty equivalents and no mention of compensation for lost lands. (See Miners and Brian Burke sank land rights hope).

Queensland government deeds of grant in trust to the reserve councils could be withdrawn if the trust itself became inoperative; the trust’s affairs were not properly managed ‘in the public interest’; the land was being used in a manner contrary to the purposes of the trust; or for any other reason decided by the Queensland government.

Yet Queensland, the state with the harshest laws against first nation people gave birth to the strongest struggle for land rights.

What does the future hold for Sovereignty, for an economic base for aboriginal people? What will come from the commemorations held in Musgrave Park in 2012?

Australia was once the biggest estate on earth (prior to 1788); it was made that way by careful management by aboriginal people through judicious use of fire and care taken not to hurt the land or the animals on it. Can non-indigenous Australians learn how to restore and look after the land. If so, how?

Transnational corporations have taken mining leases over large tracts of land; they say that they are offering indigenous people a future through jobs; what can be said to this?

These mining companies and their owners (eg Twiggy Forest and Gina Rheinhart) sometimes select specific indigenous people to get some authority for taking the land. They attempt to persuade them with bribes to give up their land.

Recently three people were charged in Musgrave Park for lighting and maintaining the sacred fire that began in Canberra in 1972 at the aboriginal tent embassy that began the modern land rights movement.

The Sacred Fire – Musgrave Park, South Brisbane, 2013

Subsequently a Jagera traditional owner was arrested for breach of the peace for doing the same thing.

These charges were laid on the spur of the moment by Queensland police in a vindictive mood. Fire engines were called. People were assaulted by police. And unlawfully detained. Little understanding of the legal framework of the 30 year Jagera lease in Musgrave Park is understood by the courts, police or municipal authorities. The nature of the DOGIT lease is made subservient to the needs of the moment. No one seems to care. The rule of law is twisted and shaped for each new situation.

Ian Curr
3 Jan 2013

Coming up

Dundali commemoration – 10 am Sat 5 Jan 2012 Post Office Square Brisbane. Dundalli led the resistance to the British invasion of area where Brisbane now stands. After a long campaign he was captured by the invaders and hanged in front of the Brisbane Post Office on January 5, 1855.

Join us in remembering and honouring this brave fighter for his land, his people and his culture.

Trial of the Musgrave Park Three – 8.30am Roma Street Magistrates Court (cnr Roma and Garrick Streets) Brisbane Tues 8 Jan 2012

Endnotes

In 1998, then attorney general Matt Foley excised a portion at the south end of Musgrave Park and gave it a different purpose – that being “for Aboriginal cultural, heritage and historical purposes.” A 30 year lease was going to be signed over this portion (the tennis courts), to allow for the building of an aboriginal cultural centre. This plan by the Labor government to build a cultural centre came to naught and funds allocated were withdrawn by the LNP government in 2012. The tennis courts remain disused save for the occasional game of bicycle hockey.

Miners and Brian Burke sank land rights hope

Opposition spokesperson on Aboriginal Affairs from 23.11.80 to 11.3.83

We Have Bugger All: the Kulaluk story (political) by Cheryl Buchanan. Race Relations Department, Australian Union of Students, 1974.

Susan Ryan was the Federal Labor Minister for Education and Youth Affairs in the Labor government (1983-1996).

Susan Ryan introduced a bill for the granting of land rights on Queensland reserves but it came to naught.

Koowarta v Bjelke-Petersen

Together with an ad hoc organization set up in Western Australia to oppose the land-rights movement there, Crusade for Freedom.

Equal pay signalled sack for indigenous workers in Queensland

‘We have no human rights’ © Judith Wright at http://nationalunitygovernment.org/content/domestic-submissions-human-rights-law-centre

Weekend Australian 27-28 March 1982, Magazine section, p.7.

“The idea of a Treaty is also rejected because of insufficient consultation with Aborigines, doubts of its significance and/or consequences, and because it would legalise occupation and use of Aboriginal lands by the Australian settler State”. Aborigines were a nation in their own right, having never ceded sovereignty over Aus¬tralia by way of a Treaty.” — Aboriginal Treaty News 4, p.3.

Indigenous land rights

http://www.naa.gov.au/collection/explore/cabinet/by-year/1984-85/indigenous-land-rights.aspx

References

‘We have no human rights’ from “We call for a treaty”, Judith Wright, Sydney, Fontana (1985)

Together with an ad hoc organization set up in Western Australia to oppose the land-rights movement there, Crusade for Freedom.

Equal pay signalled sack for indigenous workers in Queensland

Domestic Submissions – Human Rights Law Centre

3 responses to “Land Rights in Queensland — a hope still?

  1. Police use of move-on powers on Jagera Land in Musgrave Park is unlawful

    The police state (in their legal brief):

    That the Brisbane City Council is the governing authority for Musgrave Park, granting permits to persons or organisations to occupy the site for specified times. No persons are permitted to camp or reside on site unless authorised by the Brisbane City Council.

    The defendants (Coco Wharton, Boe Skuthorpe-Spearim, Hamish Chitts) say they were on aboriginal land.

    The land on which the offences are alleged to have occurred may be in the area referred to colloquially as Musgrave Park but it is in a separate parcel of land with a separate title (see Deed of Grant and plan from the titles office referring to “an Aboriginal purpose”). The land was granted to the Brisbane City Council (“BCC”) by way of a Deed of Grant in Trust (“DOGIT”) for Aboriginal purposes only.

    The council leased the land to the Queensland State Government under the Department of the Arts, Attorney-General and Minister for Justice (NOW Science, Information Technology, Innovation and the Arts).

    The State of Queensland (Dept of the Arts ) is lessee of the land for a term of 30 years from 23 Jan 2001. It has exclusive possession of the aboriginal land and entitled to give or refuse permission for people to come on to or remain on the land . The Brisbane City Council as lessor has no such right.

    The police state (in the prosecutor’s brief):

    An authorised officer from the Brisbane City Council previously attended the offence location and lawfully requested all persons remove tents and structures from the park (sic) and move on. These persons camping did not comply with Council requests and subsequently police were requested to assist in the removal of these persons from the site.

    For the reasons stated above, the BCC had no authority to make the request.

    A further (sic) direction was issued by a Commissioned Officer of police (Inspector Dave STEVENSON) to leave the area, failure to do so may result in a use of force being utilised to affect the councils lawful purpose.

    Since the BCC had not the lawful right to request the defendant to remove tents and structures from the aboriginal land and move on, the police direction made at the request of the BCC to give effect to the false assertion of that right by council is not a lawful direction and failure to comply is not an offence.

    The charges against the three defendants should be dismissed.

    Like

  2. Rally & Court Decision on the Sacred Fire

    Hello all,

    The magistrates court has listed the decision on bail for court 20 at 9am on Thursday 24 January 2013. The question for Magistrate Costello to determine on Thursday is whether it is a proper use of the Bail Act for police to exclude people from DOGIT land which is for ‘an aboriginal purpose and and for no other purpose‘. This purpose should be defined broadly according to Murri custom and practice. Brisbane Blacks have a long history of cultural, social and political activities in Musgrave Park.

    There will be a rally on the grassed area next to the Brisbane Magistrates court in George Street at 8am.

    It is likely the question of whether it is lawful for police to use their move-on powers to exclude people from the DOGIT land beside Musgrave Park will be decided at a later date, probably before trial because if police directions were unlawful then the charges of Disobey Direction should never have been laid.

    The issue of the Brisbane City Council fines for lighting and maintaining the sacred fire are yet to go to court.

    in solidarity,
    Ian

    Like

  3. Support the Sacred Fire - End exclusion from Musgrave Park!

    I have just received advice from the Brisbane Magistrates Court that The decision in relation to the bail that excludes people from Musgrave park will be given on Thursday 24/01/ 2013.

    The decision will be handed down by Mr John Costello SM at the Brisbane Magistrates Court building on the corner of Turbot and George Streets. Look up the name of the excluded three on the law list at the entrance of the building for the court number.

    in solidarity,
    ian

    Like

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