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Understanding land rights and how this can play an important role towards reconciliation

Meet our guests

Kylie Eddie, Robin Tilley, Deanna Holder, Gerry McDonald


Gerry: I'd like to acknowledge the traditional ancestors and custodians of this land that we gather upon today. I'd also like to pay my respects to the elders, past, present and emerging. I'd also like to pay my respects and acknowledge other Aboriginal and Torres Strait Islander peoples present.

Host: Six states and 2 territories. This is Australia as we know it today. But before colonisation, there were over 500 different clan groups or nations around the continent, many with distinctive cultures, beliefs and languages. The colonisation of Australia had a devastating impact on Indigenous people, who lived on this land for over 60,000 years. It was the momentous Mabo case that finally legally acknowledged the history of Indigenous dispossession in Australia. It abolished the legal fiction of terra nullius a Latin term meaning 'land belonging to no one' and altered the foundation of Australian land law. Australia's federal parliament passed the Native Title Act 1993 which established a legal framework for native title claims throughout Australia by Aboriginal and Torres Strait Islander peoples. Today we're gonna learn about some aspects of work conducted by the department and the role this plays in the journey towards reconciliation. Hi, I'm Rachell Hansen. And welcome to On the Ground a podcast brought to you by the Department of Resources that unearths the rich stories of our people, showcasing how the work we do drive sustainable prosperity for Queensland. We're kicking off this episode with Kylie Eddie, a senior project officer based in the Cairns office who works in the Indigenous land transfers and leasing team.

Kylie, can you give us a little context around the mechanisms that exist to grant land to Indigenous people and how this contributes towards reconciliation?

Kylie: So the legislation that we work under within our team recognises the past injustices legislated through government policies such as the forced removal of First Nations people from their lands and their forced dispersed settlement throughout Queensland.

Host: This clip is from 1992 following the famous Mabo decision.

Excerpt from news clip: For the first time, Australia has recognised the legal existence of Aborigines prior to white settlement. Now, more than 2 centuries later, the high court has recognised there were people here and their descendants have rights.

Kylie: There's written acknowledgement in our legislation setting that First Nations peoples interests and responsibilities in relation to land have not been adequately and appropriately recognised by Western law. But it's through recognising First Nations peoples historical and deep connection to country, that the capacity for self development, self reliance and cultural integrity can be returned. The Indigenous land transfers and leasing team, we manage a yearly work programme, transferring lands through consultation to First Nation people, getting use back on country, enabling economic opportunities if they so desire on those lands which can hopefully assist in increasing social wellbeing and also to have those lands returned back to the traditional custodians to manage the environmental values of the of those lands.

Host: As I understand it, you operate under the Aboriginal Land Act and the Torres Strait Islander Land Act to transfer land to First Nations people and that this is state legislation which overlaps somewhat with Native Title, which is federal legislation. How are these acts different to native title?

Kylie: The land transfer process under the Aboriginal and Torres Strait Islander Land Acts is not about native title and does not affect native title, the ALA and TSILA and our land rights legislation. And they differ from the Native Title Act in that we don't require a court process to determine continued connection to country. Our process under the ALA and TSILA is about consulting and considering the views of all Aboriginal and Torres Strait Islander people, particularly connected to the Lands. And this could include and does include both a historical and traditional owners of the land. There is often expectation, though, of course, from traditional owners that when native title has been determined that the registered native title body corporate should be the grantee.

Host: We've all heard about native title at some point or another, but what does it really mean? Here's Robin Tilley, a senior state negotiator in claim resolution, to explain what a native title determination is.

Robin: Okay, well, first of all, what is a determination? Determination is a where a federal court judge formally recognises whether or not native title exists over the area claimed it's probably important to note that it's not something that is granted by the governments. It's something that pre exists now. So in other words, a group either has native title now or it doesn't, and what this is about is the recognition of that native title.

One of the federal court judges that did a speech at a determination sort of put it this way. The recognition and determination of native title is not the end story. It's literally just opening the door for further things to happen. The ability to do Indigenous land use agreements, they could do before, but there's no doubt that they are the right people to do the Indigenous land use agreement with.

Deanna: So, the Indigenous land use agreement. It is a voluntary agreement between the native title parties and the state.

Host: This is Deanna Holder, based in Innisfail. She provides advice to negotiators on the legislation that governs how land is administered under Indigenous land use agreements.

Deanna: The native title parties also negotiate with other state and local government energy providers and other landholders. For example, like pastoralists who are looking to purchase or upgrade their current tenure, for example, they may have a pastoral lease that they want to upgrade to Freehold tenure.

Host: So, Robin how much land has been determined and how much is still under claim?

Robin: The actual areas terminations that native title exists cover about 490,000 square kilometres, or about 28.9% of the state. The remaining claims cover about 430,000 square kilometres, or about 25.1% of the state. So yes, substantive area of the state is covered by either claims or determinations.

Host: What's the process and how long does it take to complete a native title determination?

Robin: Okay, the state's directive is to where possible, negotiate rather than litigate. So negotiators work hard to negotiate a determination with all the parties consent rather than have to go to a trial. The success of this, I think, is reflected in the stats. 148 out of 160 determinations of native title in Queensland were by a negotiated agreement – that's over 90%. It can take years of work to obtain a determination. I'm dealing with claims that are over 11 years old now something that Federal Court tries to minimise by pushing things through. The state negotiates what type of native title rights and interests can be recognised so that might be exclusive or non-exclusive rights. So exclusive rights, pretty well, self-explanatory, but not exclusive could include a right to access right to fish, right to hunt, right to gather. Other examples are right to protect sacred sites, and these can actually coexist with other rights, such as pastoralists who have rights to run cattle etcetera. Probably the biggest step for the claim group is to prove that they have a traditional connection to the land and waters that they're claiming.

Host: Can you explain what evidence is needed to be provided?

Robin: Claim groups are usually identified by referring to as being descendent from apical ancestor. So it's not always easy to identify those early ancestors, and sometimes that's just because it's very difficult to find that information. But also, in the case of the first nations, there's been a dislocation and an adverse effect on them by the early European settlement and the clashes that happened there. So that's really impacted where they can get their information. And who holds that knowledge.

Host: What are the challenges to determine the right people for country and their native title rights?

Robin: If the negotiations fail, the federal court sets them out it down for a trial when in trial, the state's not trying to win. It's just simply trying to get the best evidence. And sometimes that discipline that comes with a court hearing can bring out the evidence.

While it's not often a good thing, sometimes trials actually help us get back to a consent determination.

I was at a trial fairly recently, and that was on country up north, and it was really, really interesting to be involved in a federal court hearing sitting in the middle of a paddock, basically listening to these elders tell some of their stories, and that was a difficult thing for them. But at times it was quite funny, too, because you have a dog running across the middle of a federal court hearing. So, everybody saw the humour and including the judge.

Part of what they've got to do is set up a corporate body very much. It is a company, so that corporation will represent the native title holders in one form or another. They've formed companies so that they can get benefits via that company. Sometimes they're well established, and we'll use that for their native title. But it's true also that the people I've spoken to can have difficulty in having it structured in such a way that they have a corporation that is functioning, and that's more often than not just because of resources to set it up and run it, so that's probably one of the challenges that they and everybody faces. One of the other things that is more to do with Indigenous land use agreements. Indigenous land use agreements are a very handy tool. So it's basically a contract between whoever wants that agreement and the native title group. But because the groups hold communal title there has to be a meeting of that group to agree to that Indigenous land use agreement so that could be 50, 100, hundreds of people, all having to meet to make that agreement so that can be quite labour intensive and resource intensive and costly.

Host: So, after having gone through the process, what are the outcomes of achieving a determination?

Robin: The 2 key things that come out of a determination, the resolution and recognition of the native title. That's one. It really gives them a seat at the negotiation table. The other one is it provides certainty, and certainly we're not there yet. But if you're a pastoralist and you're not sure if native title exists or not on your property and you're not sure how, if it does, it interacts with your rights—This whole process is about giving that certainty of that pastoralist to quite often that can lead to a relationship being developed between these people. That just goes to the nuts and bolts as far as on the ground’s concern who shuts the gates. If you're accessing, what's the protocol? That's the sort of stuff that gets worked out afterwards. But at the moment, the next big stage, which I'm sure everybody's heard about, is compensation claims. So that's really the next step after you have a determination that's going to be something that will lead to benefits to the groups.

Deanna: Once Native Title is determined to exist, it does not automatically provide the native title parties with ownership of the land. A native title determination provides the recognition that native title rights and interests continue to exist. So the challenge we have is where the native title parties, particularly where there is exclusive native title parties, they want to go and live on the land. Getting that native title determined is one step, but to get ownership in some of that land, they then need to have a tenure to be able to do that.

Host: Tenures – can you explain what that means and why it's important?

Deanna: So, the term tenure refers to those legal interests in land, such as a lease or freehold title that conveys possession freeholders, where a deed of grant is issued. And that's what most people in Queensland own. Where their houses are, where they live, is on freehold land. They own that, there is no oversight by our department to use or manage that land.

Host: So, this brings us full circle back to where we started talking about the Aboriginal Land Act and the Torres Strait Islander Land Act. What is Aboriginal freehold land?

Kylie: The difference between Aboriginal and Torres Strait Islander Freehold Land and other freehold land is that the land cannot be sold. As a result, the future generations can continue to use and enjoy their traditional lands. The intent of the Aboriginal Land Act and Torres Strait Islander Land Act is to return that land in the form to remain with First Nations people that land can be leased if the trustees wish to do so to provide for economic opportunities.

Deanna: The benefits of Aboriginal freehold land is that they don't have to surrender their native title rights and interests to get freehold granted.

Host: When issuing land under these acts, what is the process and how do you determine who gets what land and in what sort of tenure?

Deanna: When we first meet with them, we get together. We give them an outline on what the tenures are – you’ve got freehold, you've got leasehold. You've got ALA freehold, you've got your roads and your reserves. And then they talk about what land. You know, this is really significant to us because we used to, or my grandfather or father used to go there, and they taught us how to hunt and fish on this land. Or we used to get together. And sometimes there could be even burial sites there or a woman's place, but that the only feature could be a tree. To non-Indigenous people or local people, you would not know that, and so they give us all that information about what it means for them, and then we also go.

Usually, the local government is one of the first places to see what the aspirations are for for that community because they want their towns to grow so that they can keep the children living there and all that type of stuff. We get all that information, and that's what forms part of our most appropriate use and assessment to determine, then what could possibly bear the most appropriate tenure of the land?

Host: How do you evaluate these parameters, and what are some of the factors that influence your decision when determining an outcome?

Deanna: So, it's trying to balance out both parties aspirations for the land. I haven't been in the situation where we haven't got an agreement, but I have been involved in extensive negotiations with both the local government and the native title parties to come to an agreement that was acceptable by both parties. So there was some given take on both sides.

Host: So what does all this look like in action? What you're about to hear is an excerpt from an interview with Colin Enoch, chairperson of the Wangetti Trust, who were awarded Freehold Land under the Aboriginal Land Act.

Colin: When we started this process, I had black hair now I’ve got grey hair. At the end of the day, if governments give land back to mob, they can at least develop an economic base, you know, and to go on and not be dependent, and we may want to develop a community centre. You know, we want to be recognised for that area through the native title process, but it doesn't give us actual benefit in terms of an economic base to be developed. That's where I see a big differences and we're all excited, you know, for what comes because we've been given a piece of land that you can actually do something with. It's good because all of our families will come together and celebrate this, and that means a lot more to me.

And just coming together as a mob again is reuniting our kinship that we have with families and people don't put enough emphasis on our kinship that we have. It's very much deeper in our oral histories and everything so.

Host: And finally, on today's episode, we're talking to Gerry McDonald, a land support officer from the Cairns office, with connections to bloodlines from the Torres Strait and far north Queensland. Gerry also provided the acknowledgement of country at the start of the episode. Gerry, I understand the theme for NAIDOC this year is heal country heal our nation. Can you tell us more about what this means to you and perhaps give us an example of something you've learnt about what that means for First Nations people?

Gerry: What it means to me is like, you know, everybody coming together to help celebrate in a healing country. Uh, I had the opportunity to go up to Mossman Gorge and learn about a couple of brothers up there. They run their business. They take out, tourists to their country and show what they do. They take them out hunting fish, spear fishing and they'd share their stories with them on how they heal country. While we're at the Mossman Gorge, I've found as a good opportunity at saying, hey, this is what they do to heal country every day. But I find healing country as you know, you know, way to give back to the land the things that they shared to me that I found most interesting when they went hunting for stingray. You have to check the stingrays, the liver they said don't ever use a knife because the stingray will not heal. You have to use either the stingray barb to cut it open. And then they would say if the liver is pink, the stingrays good to eat.

But once they cut open the liver with the stingray barb, it would heal back the stingray would heal over time instead of the knife, which I found very interesting. So I found a way that what the heal country. So, you know, you didn't take food from the sea. Only took enough.

Host: Gerry, can you take us to a moment where you've been able to witness some of the positive outcomes of the work that your team does.

Gerry: I had the opportunity to go down and watch the ceremony at the with the Gulngay people at Tully heads handing land back to the traditional owners and custodians, uh, of of their country there. And I found the experience to be a really great privilege to see, you know, all the everybody coming together from that community, uh, celebrating that land, traditional lands, getting held back to them for them to be responsible for him to take care of one of the speakers. He come up to the stand after the dancers did their performance. Uh, you could feel like everything went really still all of a sudden, and you could feel, I felt like there's many, much more people there than I could see around me. We had all the elders there. I felt like the land just came alive. You could hear whistling kite in the sky here, you know, you can hear it in the breeze. He splashes by the by the river. Everything was just everything felt like it was coming alive that it was supposed to be. And then once the ceremony ended, everything just went to still and calm again. You didn't hear the breeze. I didn't hear the kite anywhere in the trees. I couldn't hear any sort of splashes in the water. But in that moment it just felt everybody was there celebrating together. There's more people there than I could see. I felt like, you know, the ancestors were there who were there a part of that process than which is nice.

I know things happen in the past, but you know, there's a lot of better steps happening today that everybody can, you know, can apply. I know the end process was a great experience, that everybody was happy that they achieved that goal.

Host: Any final words before we wrap it up?

Gerry: There is a bright future. We just need to take steps towards moving to that future together.

Robin: You only have to go to a determination and the celebration afterwards to see the emotion that decision causes. I challenge anybody not to be affected by that level of emotion and the negotiators in our area. If you ask any of them, that's probably why they're still negotiating and involved in it. Because it's, it's something that's pretty impressive.

Kylie: I am hopeful that the conversations we have along the way that culminate in a land transfer to First Nations people is contributing towards the reconciliation, journey and healing of people and country.

Gerry: My messages with everybody just saying 'always look to the future'. You know, everything at the moment is only in the present. But you know you can work towards a brighter future. That would be my message.

Host: We can't go back and change the beginning, but we can start where we are and change the ending. To Kylie, Deanna, Robin and Gerry. Thanks for helping us unravel this complex topic. If you enjoyed the episode, be sure to leave us a review and help us grow our audience by inviting your friends and colleagues to. Subscribe to On the Ground on your favourite podcast platform, Find us on Apple podcasts, Google podcasts, Spotify and Deezer. Each podcast episode is produced for educational purposes only.

The views, information or opinions expressed during the podcast are solely those of the individuals involved and do not necessarily represent those of the Queensland Government.

Last reviewed: 21 February 2023