Fighting for their country: inside the battle for Cape York

Martha Koowarta, her late husband John and her Wik people have had to fight since the 1970s for their land rights in north Queensland to be properly recognised. AAP Image/David Sproule

This week’s Federal Court ruling that the Wild Rivers declarations introduced by the former Queensland Labor Government were rushed and invalid was the long-awaited result many Cape York Indigenous groups had been hoping for.

Justice Andrew Greenwood concluded that in 2009, the Bligh Government made procedural errors in declaring the Archer Basin, Lockhart Basin and Stewart Basin as “Wild Rivers”, banning development within a kilometre of the banks of the rivers under the Wild Rivers Act 2005.

A map of the Archer, Lockhart and Stewart basins in far north Queensland. National Water Commission, CC BY

Within hours of the ruling, the current Queensland government announced that it would repeal all of the state’s Wild Rivers declarations when parliament returns in August. That was not necessary for the rivers affected by the Federal Court’s decision, but it will effectively mean it’s back to the drawing board for development rules over north and western Queensland river regions.

The Queensland government already has a Cape York Regional Plan consultation process underway, which was due to be finalised by the middle of 2014. That process – being less rushed than the Wild Rivers Declarations – has some prospect of being a result that takes into account the concerns of Cape York residents, and provides a better balance between conservation and reasonable opportunities for economic activity for Aboriginal communities on Cape York.

So what was the Federal Court challenge all about? And how will it affect future development in Cape York?

The story behind the case

This court challenge was led by Martha Koowarta on behalf of the Wik people of Aurukun, the Umpila of Lockhart River and the Lama Lama People of the Stewart River.

I first became involved in advising on this issue in 2009-2010, after meeting Martha at James Cook University in Cairns. In recent years I have continued to provide commentary on the issue to Parliamentary inquiries and the media, and in conference presentations and debates, including one with the Wilderness Society.

I had represented her late husband John Koowarta – sometimes called “the Mabo of the mainland” – in the case of Koowarta v Bjelke-Petersen, in which he fought Joh Bjelke-Petersen’s Queensland government for more than 10 years in a battle for Indigenous land rights and to have the Wik claim recognised.

The case was decided in the High Court of Australia in 1982, and concerned the constitutional validity of parts of the Racial Discrimination Act 1975, and the discriminatory acts of the Queensland government in blocking Koowarta and other local Aboriginal people from buying land in their own traditional country in northern Queensland.

It became a test case for federal anti-discrimination laws, without which there could have been no landmark Mabo ruling in 1992, which extinguished the notion of terra nullius: that Australia was unoccupied before British colonisation.

Grounds to challenge

Having fought alongside her late husband against the Bjelke-Petersen government’s discriminatory policies – which eventually led to an historic land hand-back in 2012 – Martha and other Wik residents of Aurukun challenged the Wild Rivers Declaration out of concern that it would limit their capacity to exercise their hard-won native title rights over the Archer Bend area.

In particular, a number of Cape York Aboriginal communities were concerned that:

  • the Wild River declarations were made without adequate consultation with local people;
  • they covered enormous flood plains of entire river basins; and
  • they imposed on those areas a highly complex raft of legislative procedures that had to be complied with.

The effect of a declaration under the Wild Rivers Act was to take away the native title right of the Wik People to control access to their land and waters. It was a “future act” under the Native Title Act, and had not gone through the “right to negotiate” procedures under that Act. The Federal Court in this week’s ruling did not need consider that issue, instead deciding it on a preliminary issue of improper procedures.

Rushing through big changes

This decision is part of a much broader campaign challenging the declaration of Wild Rivers on Cape York.

In the lead up to the 2009 state election, an environment group The Wilderness Society mounted a campaign to have Wild Rivers declared in Queensland. The Bligh government embraced the Wilderness Society campaign, promising to declare wild rivers if elected.

The government identified 22 river basins, which included 50 rivers as wild rivers. The Lockhart River declaration alone included 5 rivers.

The community consultation required under the Wild Rivers Act was effectively managed by the Wilderness Society on behalf of the Bligh government.

Aboriginal groups on Cape York protested to the government that inadequate time had been allowed to effectively consult with remote communities.

The ruling

This week, Justice Greenwood was able to reach his conclusion on the basis of procedural errors.

The Minister had a statutory obligation to personally consider the results of community consultation and all submissions.

Former Queensland Natural Resources Minister Stephen Robertson leaving the Federal Court in Brisbane in late 2013. AAP Image/Dan Peled

The court found that the Natural Resources Minister at the time, Stephen Robertson, was told by then Premier Anna Bligh that she wanted the decisions progressed with urgency, following the government’s re-election on 21 March 2009.

Robertson decided to approve the Declarations on 31 March 2009. However, the decision was made without the minister having considered the submissions made to him, and so contrary to the requirements of the Wild Rivers Act.

The Wilderness Society campaign and actions of the former Queensland government caused a rift between Aboriginal groups on Cape York and groups around the Gulf of Carpentaria.

While Cape York groups led by Noel Pearson were critical of Wild Rivers declarations as stifling economic development for Aboriginal groups on the Cape, Murrandoo Yanner, speaking for Gulf communities, backed the declarations as a way of maintaining healthy rivers that had fed and sustained people for thousands of years.

A case with long-term lessons

Embraced by her granddaughter Christine outside the Federal Court in Brisbane on Tuesday, a delighted Martha Koowarta declared:

They stole our voice. But this now is a great victory for our people.

Hope Vale-based campaigner Tracey Ludwick said she hoped to see new development go ahead for her people, including “a lot more of eco-tourism and different types of things like that up in Cape York”.

But as The Australian’s Graham Lloyd commented after the judgement, eco-tourism projects were never ruled out by Wild Rivers declarations. In his view:

Rather than guesthouses, it is more likely dam builders and miners will be beating a path to the once wild and protected areas. … The decision sends an ominous warning for current governments, and industry, that taking short cuts on process can lead to tears. Environment groups have already signalled a new era of litigation in response to the federal government’s decision to hand environmental powers to the states.

Clearly, this court decision will have a major impact on what happens in years to come across north and western Queensland.

We can only hope that governments, industry and environmental groups all learn the lessons of this case: not to ignore and override the wishes of traditional owners, who shouldn’t have to spend years of their lives in and out of court, fighting to have their basic legal rights respected.