“It is a basic principle that all people should stand equal before the law.” – Chief Justice Mason in Walker v New South Wales
Sacred Fire
Magistrate Chris Callaghan handed down his decision in the Brisbane Magistrates Courts today, 22 Oct 2014, concerning the sacred fire. He decided that the fire lit at the Brisbane Aboriginal Sovereign Embassy is a sacred fire and accepted the evidence of the two aboriginal elders.
The magistrate accepted that the sacred fire fell within the terms of the Deed of Grant in Trust (DOGIT) over the land in Musgrave Park. He said that the Lord Mayor had ‘no god given right to permit the lighting of the sacred fire from May 2012 till 11 December 2012′. The magistrate said that the law applies equally to everyone which includes the Lord Mayor (Walker v NSW).
Law vs Lore
In an ironic twist, magistrate Callaghan used aboriginal man Bejam Dennis Walker’s appeal to High Court on a criminal matter against the right of aboriginal people to have the sacred fire on DOGIT land in Musgrave Park. He said that in criminal prosecutions like BCC vs Curr the local law prevails and that this is not inconsistent with the DOGIT which states that ‘the land is to be used for aboriginal and not other purpose whatsoever.’
Evidence
The magistrate accepted the evidence given at the trial by two aboriginal men, Kevin Vieritz and Sam Watson.
There was evidence from Mr. Vieritz which I accept that the fire which he asked Mr Curr to light and maintain was a sacred fire in the culture of his people. Mr Vieritz explained that there are two types of fires. One is a communal fire and has significance for the family and community and the other type of fire is the sacred fire around which the truth is to be spoken. It is a place for seeking help and is a place where new ideas are born.
Magistrate Chris Callaghan in BCC vs Curr
Samuel Watson also gave evidence. He is an Aboriginal male from the Jagera and Yuggera people. He said that Musgrave Park was always a gathering place for his people. Previously it had been used for protests and for mourning. He explained that a fire is always part of the gathering in their cultures and also different types of fires such as the cooking pit fire is used for more communal purposes such as feeding the community. He explained it was important to have a fire for cultural purposes.
Obiter dictum by Magistrate Callaghan accepting the evidence of both Kevin Vieritz and Sam Watson Jnr in the trial of the sacred fire 2014.
Lighting the sacred fire
Magistrate Callaghan convicted Ian David Curr of lighting (1) and maintaining (2) fires in the open air. He recorded no conviction. He ordered no penalty and awarded no costs. He said that the issue of the sacred fire needed to be ventilated in court and disagreed with another magistrate who said otherwise.
Magistrate Callaghan issued a certificate that Ian David Curr be acquitted of two charges of lighting and maintaining a fire in Musgrave park because one was for cooking and the other was based on Ian Curr bringing wood but not lighting it.
Aboriginal Land
In Police v Chitts and Wharton3 his Honour reached a conclusion that this land and those upon it would be subject to compliance with existing legislation, namely the Brisbane City Council By-Laws and Regulations. His Honour: reached that conclusion on the basis that this land would be “Aboriginal land” pursuant to section 8 of the Aboriginal Land Act 1991 (“ALA”) and therefore section 32(1) of the ALA applied to persons and things on the land. Magistrate Callaghan ruled that the DOGIT land is not aboriginal land. He disagreed with Magistrate Costello’s ruling that it is aboriginal land.
Democratic Rights
I carried the wood to the sacred fire organised by the Brisbane Aboriginal Sovereign Embassy for two years. I did so because I was told that the fire is where decisions are made under aboriginal law. This is an important thing for me. I believe in the democratic right to organise against repressive governments like the state government and repressive councils like the BCC. No one can take that away from us. An aboriginal man told me at the sacred fire one night that when they get their land back, he will recommend that I be made ‘Minister for wood‘. I took his joke as a positive sign for hope.
Lord Mayor’s acting unlawfully
In a strange twist Magistrate Chris Callaghan observed that the Lord Mayor’s invitation on 16 May 2012 permitting aboriginal elders to have a fire on the DOGIT land was unlawful:
If the prosecutions contentions that the lighting and maintaining of fires on this land were on 13 and 19 December 2012 – prohibited by local law are correct then it would be difficult for the1n to maintain an argument that the purported permission given by the Lord Mayor to light the fire in May 2012 was lawful.
Thanks
I wish to thank and give respect to aboriginal people in giving their permission for me to participate in their rich and sacred culture. I thank all those who have supported this struggle and for those that will carry it into the future.
I wish to thank my brothers and sisters at the Brisbane Aboriginal Sovereign Embassy (BASE) for their support. I especially wish to thank Kevin, Sam & Cathy W, Wayne, the BASE food Program (KC, Hamish, Brendon, Karen, Tony and others), Boe, Callum, Sam B, the Brisbane Sovereign Grannies Group (Karen, Jade, Kristy-Lee, Cepha) Alf, Sonny and Cephia, Pete S, Paul S, Toni McP, Judulu, Robin, DeeKay, Teila, Andy and particularly the 32 people arrested defending the sacred fire on 16 May 2012.
Included in those were comrades from the Electrical Trades Union ETU, the Construction Forestry Mining and Engineering Union CFMEU, the National Tertiary Education Union NTEU, Brisbane Blacks magazine, and all the visitors to the sacred fire including delegations from Cuba, West Papua, Turtle Island. Solidarity to all those warriors, women and men who came and stood up and best wishes for the struggles ahead during G2o and beyond.
Especial thanks to my barrister, Mr Rob Carroll, for so skillfully arguing the case in favour of the sacred fire.
The magistrate’s full decision is here:
The question is: should we challenge this decision in a higher court?
Please leave your suggestions and/or comments below.
Support the Brisbane Aboriginal Sovereign Embassy – keep the fire burning!
Ian Curr
22 October 2014
Have you ever considered writing an e-book or
guest authoring on other websites? I have a blog based on the same ideas you discuss and would
love to have you share some stories/information. I know my readers would appreciate your work.
If you’re even remotely interested, feel free to send me an e-mail. http://zumbario.123hjemmeside.no/
Broadcast on PShift 4zzz fm 102.1 friday 2 Jan 2015 in the ‘The Year that was 2014’ …
Here is the judgement of Mr Christopher Callaghan who presided over a trial about lighting a sacred fire in Musgrave Park. The case was about aboriginal culture and whitefellas law. There were two important witnesses both senior aboriginal men. One a traditinal owner of Musgrave Park in South Brisbane – Kevin Vieritz. The other was an elder who has been politically active for the community and his people for as long as I can remember – Sam Watson. The trial on the surface was about a simple matter – can aboriginal people light a fire on their own country? But it became much more than that – it was about the right to practicde aboriginal culture in the modern urban environment. So lets hear how the magistrate saw the issue and how he came up with an interesting decision. For the purposes of radio and keeping faith with the meaning of the Magistrates words some licence has been taken in the dramatisation of his judgement. However the published text are the written judgement he handed down. For example Magistrate Callaghan was careful in his written judgement not to include his open challenge to Lord Mayor Quirk in open court that he (Quirk) has no god given right to make something lawful that is unlawful.
Photo: Brendon Qu
https://soundcloud.com/ian-curr/sets/the-trial-of-the-sacred-fire?si=d38ede8f05ca4eab86ab480cb7f4fdeb&utm_source=clipboard&utm_medium=text&utm_campaign=social_sharing
During the G20 summit, then-Assistant Police Commissioner Katarina Carroll took part in a smoke ceremony around a fire in Musgrave Park.
Brisbane Times Queensland
Man found guilty over ‘sacred’ Musgrave Park fire
The Sacred Fire at the Musgrave park tent Embassy in March 2012.
The Sacred Fire at the Musgrave park tent Embassy in March 2012. Photo: Harrison Saragossi
A man has been found guilty of lighting and maintaining a fire in Musgrave Park, South Brisbane, following complicated legal arguments about the validity of Brisbane City Council’s case against him.
Ian David Curr, who is not indigenous, was given the responsibility for lighting and maintaining the fire by Yuggera elder Kevin Vieritz.
The fire was, according to the court documents, lit and maintained on an area that had purportedly been approved by Brisbane Lord Mayor Graham Quirk for that purpose in May, 2012.
However, Cr Quirk rescinded that approval on December 11, 2012 – two days before Curr was seen lighting and maintaining the fire in Musgrave Park.
The council slapped Curr with three charges – one of illegally lighting, and two of illegal maintaining, a fire.
Curr’s defence team had argued the council had no power to enforce local laws on the land because, in 1999, the Queen granted a Deed of Grant of Land in Trust to Brisbane City Council on the condition it held the land “in trust for Aboriginal and for no other purpose whatsoever”.
Even the if the council could enforce a local law on the land, Curr’s legal team said he had “an honest and mistaken belief” that he could light a fire at the site.
They also argued the land was not subject to any local law and, even if it was, the Health Safety and Amenity Local Law permitted the lighting of fires for barbecues or theatrical displays.
In his written decision, published last month, Magistrate Christopher Callaghan said he accepted the fire was sacred in Mr Vieritz’s culture.
“I am satisfied that the fire was consistent with the use of the land for Aboriginal purposes,” he said.
Regardless, Mr Callaghan said Musgrave Park was zoned “sport and recreation”, while the HSALL only allowed open fires in rural areas of the city.
The council had argued the enforcement of the HSALL was “not inconsistent with the purposes for which the deed of trust was granted”, namely that the council must act consistently with Aboriginal purposes in maintaining and managing the land.
Mr Callaghan agreed with that argument and also dismissed Curr’s defence that the lighting of the fire was a “theatrical” act and, therefore, permitted under the HSALL.
“The fire was a symbol of the protest that had been occurring in Canberra over the previous 40 years,” he said.
“It was a symbol of solidarity with that protest.
“In my view, the lighting of the fire by the defendant on the 13th December 2012, the maintenance of it on the same day and the maintenance of it on 19th December 2012 was never in connection with theatrical or similar public performances or displays.
“It was a public display of protest in part. It was a public display of symbolism in part, but it was not theatrical.”
Mr Callaghan found Curr guilty of one count of illegally lighting a fire and two counts of maintaining an illegal fire.
The penalties were not outlined in the decision.
During the G20 summit, then-Assistant Police Commissioner Katarina Carroll took part in a smoke ceremony around a fire in Musgrave Park.
Cameron Atfield
Brisbane Times and Sun-Herald journalist Date January 2, 2015 – 12:00AM
http://www.brisbanetimes.com.au/queensland/man-found-guilty-over-sacred-musgrave-park-fire-20150101-12glsl.html
Brisbane City Council v Curr [2014] QMC 028 Callaghan CJ 22/10/2014
STATUTORY INTERPRETATION – Deed of Grant of Land in Trust for Aboriginal Purposes – applicability of local laws – lighting and maintaining fires – Statutory Instruments – Aboriginal Land – whether all people stand equal before the law – mistake of fact – mistake of law – theatrical or similar public performance or displays
http://archive.sclqld.org.au/qjudgment/2014/QMC14-028.pdf
https://fbcdn-sphotos-d-a.akamaihd.net/hphotos-ak-xap1/t31.0-8/10700579_719544091456018_7662093065664026613_o.jpg
Nyoongar Tent Embassy
*CALLOUT FOR BUS DRIVERS*
A National Convergence to Canberra is planned for the 26th January 2015.
Thousands will stage a sit-in right outside Parliament and hand over a Declaration of Independence to assert our Sovereignty.
The Nyoongar Tent Embassy is currently fundraising to hire buses to travel to Canberra – planned departure date from Perth the 19th of January.
In order to make this happen, we are seeking bus drivers who would like to volunteer their time to take this journey with us.
We will be staying in Canberra for a couple of weeks for the National Day of Action demanding a Stop to the Stolen Generations – Feb 13th (https://www.facebook.com/events/1516761438609067/)
(from when we leave Perth to when we get back will probably be about a month)
Please let us know if you can assist, or know anybody who can.
Thanks.
After premature action by Brisbane City Council Lord Mayor to close Jagera Arts in Musgrave Park Hall on 4 Nov 2014, Brisbane City Council passed a resolution that Jagera Arts Hall be leased to Musgrave Park Cultural Centre Inc (MPCCI).!
There is a new board of the MPCCI and over 80 new members who decided to rectify the failure of the QLD State government to build a Aboriginal Cultural Centre. The Brisbane Aboriginal Sovereign Embassy intervened in March 2012 and demanded that Aboriginal Cultural practice take place as it always has done in this special meeting place.
Keep the fire burning … come to Jagera Now! Tuesday 4pm to celebrate this victory around the sacred fire!
Ian Curr
4 Nov 2014
Brisbane City Council (BCC) has padlocked the gates of Musgrave Park’s Jaggera Arts Hall, preventing members and staff of the Aboriginal Cultural Centre from accessing the facility.
Board member Wayne Wharton says the Council “has been obnoxious and racist in their dealings with Aboriginal people who use the hall and Musgrave Park”.
“Yesterday, we as members of the Aboriginal community and directors of the Aboriginal Cultural Centre went to attend a meeting at Jaggera Arts Hall,” Mr Wharton recalls.
“But we arrived to find that the Council had padlocked all gates and erected signs to say that the building will be closed down and there will be major refurbishing taking place. The council know we intended on using the hall for the activities we had planned for G20 from November 8 to 16. They’ve been nothing but antagonistic in their attitude towards us and the importance of the hall. There was no consultation, no notice. The council has shown utter disdain for the Musgrave Park Cultural Centre Corporation. We’ve got offices in there, we’ve got belongings in there, assets still in there. But we haven’t been able to access them. We’ve sent letters to the Mayor requesting meetings with him about our continued use of the hall. We want this addressed. And we’re calling on Premiere Campbell Newman to intervene, because this has obviously shown that Quirk and his Council are totally inappropriate people to be administering the Deed of Grant in Trust (DOGIT) land and the Aboriginal Cultural Centre. If they don’t meet with us, we’ll be forced to exercise our legal right to take possession of our assets, our tenancy. If we have to, we will take this to the courts.”
For comment, call Wayne Wharton on 0408 064 900
http://youtu.be/0Hsw4XnBZrw
p.p.s.
My previous comment is immediately relevant in that the beak did not just accept the sacredness of the fire as fact but he also accepted, as fact, the Aboriginality of the fire.
Walker and others have had to go to great lengths to establish any facts of customary law. The written law does not acknowledge oral law, it must be somehow transcribed as a document before it can even be presented to court. In your case it was the DOGIT not Sam and Kevin, they were just specialist witnesses to confirm that the fire was an Aboriginal purpose in terms of the DOGIT. It was not Murray Island law that extinguished terra nullius but the notes of missionaries recording traditional land disputes. Walker had contemporary minutes of customary law meetings under registered corporate seals to get his foot in the door. You on the other hand have been handed the issue on a platter, the hardest part has already been won.
Before the High Court’s blanket extinguishment of customary law, courts were routinely accepting customary law as a fact in criminal trial evidence, such as when Galarrwuy Yunupingu was acquitted of assaulting a journalist and smashing his camera because he had a customary law obligation to do so. There were thousands more less publicized cases. Customary law was also accepted as fact in sentencing and the double jeopardy principle applied if the person was going to be punished in customary law.
Despite all the political rhetoric, it is matters of fact in the criminal courts that have made the most headway towards legal sovereignty, not matters of law no matter how correct they might be.
If you can undo the High Court’s blanket extinguishment (which you have a very small chance of doing but it is possible), the repercussions will be nationally significant as it opens up evidence and sentencing to customary law again which of itself will dramatically reduce the number of Aboriginal people in gaol. Go for it.
http://unlearningtheproblem.wordpress.com/
Hello John,
You state: “The written law does not acknowledge oral law, it must be somehow transcribed as a document before it can even be presented to court.”
Oral evidence of customary law was first accepted in the early 1970s in the High Court of Australia.
In the trial about ‘the sacred fire’ magistrate O’Callaghan accepted the evidence of traditional custodians Kevin Vieritz and Sam Watson as evidence of the importance of the fire and made no reference to the DOGIT in accepting their evidence of customary law.
In academia, the denigration of Oceania’s past as “prehistory”, Professor Okusitino Māhina, the Tongan historian and anthropologist argued successfully that “ecologically based oral traditions are as valid sources for academic history as are written documents”.
However it should be said that in the case of the courts they either overrule the customary law or they disregard the oral evidence preferring written commentary. This was the case in the Yorta Yorta judgement with the court preferred the writings of Edward M. Curr in his “Recollections of squatting in Victoria.” This, of course, was a travesty.
Ian Curr
26 Feb 2023
p.s.
Just as state statute overrides council statute where there is a conflict, Commonwealth statute overrides state statute – the Oz constitution says so.
The Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 “acknowledges the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters” …. and…… “acknowledges and respects the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples”.
http://unlearningtheproblem.wordpress.com/
This commonwealth legislation came into effect after Walker v NSW. In W v NSW, the High Court (not a full bench) assumed a blanket extinguishment of any and all customary law. However non-specific the Act of recognition may be, it acknowledges the continuing existence of some kind of customary law in the form of culture, heritage, language and relationship to land. Therefore the HIgh Court’s blanket extinguishment of all customary law is no longer valid. New Commonwealth legislation trumps High court precedent (unless the high court finds the law unlawful).
a) His honour has erred in dismissing the applicability of 6e of HSAL because the fire “was not theatrical”. The standard in the HSAL is not that the fire must be theatrical but it must be “theatrical or similar”. That is, it does not have to be theatrical. His honour’s own concession “It was a public display of symbolism in part” of itself identifies a similarity.
b) His honour has ruled in a racially discriminatory manner by determining European modes of theatre, performance and display may enjoy the benefits of 6e and determining that Aboriginal modes of theatre, display and performance may not enjoy the benefits of 6e.
c) His honour has accepted as fact that the fire Mr Curr was participating in was sacred. By enforcing a law that prohibits the free exercise of a religion, his honour has contravened section 116 of the Australian constitution.
http://unlearningtheproblem.wordpress.com/