Chapter 13. A Regional Approach to Managing Aboriginal Land Title on Cape York[1]

Paul Memmott, Peter Blackwood and Scott McDougall

In 1992 the High Court of Australia for the first time gave legal recognition to the common law native title land rights of the continent’s indigenous people.[2] The following year the Commonwealth Government of Australia passed the Native Title Act 1993 (NTA), which introduced a statutory scheme for the recognition of native title in those areas where Aboriginal groups have been able to maintain a traditional connection to land and where the actions of governments have not otherwise extinguished their prior title.

Native title as it is codified in the NTA differs from Western forms of title in three significant ways. Firstly, it is premised on the group or communal ownership of land, rather than on private property rights; secondly, it is a recognition and registration of rights and interests in relation to areas of land which pre-date British sovereignty, rather than a formal grant of title by government (QDNRM 2005: 3); thirdly, it may coexist with forms of granted statutory title, such as pastoral leases, over the same tracts of land.

While native title is a formal recognition of indigenous landownership and sets up a process of registration for such interests, it remains a codification within the Western legal framework, and as such is distinct from, though related to, Aboriginal systems of land tenure as perceived by Aboriginal groups themselves. This distinction is exemplified in the sentiment often expressed by Aboriginal people that their connection to country, and the rules and responsibilities attaching to this connection, continue to apply, irrespective of the legal title of the land under ‘whitefellow law’. The very fact that Aboriginal systems of land tenure managed to survive without any form of legal recognition for two centuries in the face of legal and political denial, and the actual appropriation of their land — that is, that there are still systems capable of recognition under the NTA — alerts us to the fact that Native title is not the same as Aboriginal land tenure. As a codification which draws upon features thought to be characteristic of Aboriginal land tenure, it neither is, nor replaces, the indigenous system itself. Indeed, there is considerable room for debate as to whether there may be a unitary system of Aboriginal land tenure over the continent or whether such systems reside at regional or even more local levels of Aboriginal polity (Sutton 2003).

Native title thus exists in a complex legal, administrative and cultural environment of intersecting and sometimes conflicting interests. While this complexity tends to be viewed by the wider Australian public in terms of indigenous versus non-indigenous rights, what is less well appreciated is that many Aboriginal groups find themselves caught within this same web, trying to integrate and reconcile their newly recognised native title rights with other forms of Aboriginal landownership. This is especially the case in remote northern Australia where, as a result of state and territory based statutory land rights schemes introduced over the past 30 years,[3] many Aboriginal groups have acquired land under a variety of titles which include pastoral leases, statutory Aboriginal freehold and trustee arrangements. Much of this land is also now subject to native title claim, often by groups comprised of, or including, those who at the same time already hold, or in the future may hold, the same land under one of these other forms of title. What these title forms all have in common is that, in their own ways, they are attempts at drawing systems of Aboriginal land tenure into the broader Australian system of landownership. But this transition has a high potential to distort and even rigidify the indigenous system, both in its description and in its practice, in order for it to ‘fit’ the legal requirements of the various statutory schemes and their requisite landowning corporations.

This complexity offers both opportunities and challenges. In Queensland, for example, native title claimants and the state government have taken the opportunity to resolve native title claims through a ‘tenure resolution’ process whereby the land needs and aspirations of Aboriginal people in a particular area may be settled through a combination of native title determination and the grant of Aboriginal freehold land under Queensland’s statutory land rights legislation, the Aboriginal Land Act 1991 (ALA) (QDNRM 2005: 16).[4] The challenge is to find ways of more effectively and efficiently integrating the ownership and management functions of the multiple Aboriginal landholding entities which result.

This chapter argues that there is an important role for anthropologists to work with particular Aboriginal or Torres Strait Islander claimant groups, ethnographically document the system of Aboriginal land tenure and customary decision-making processes at the earliest possible opportunity in anthropological claim research, and advise claimants’ legal advisers about the implications of this system for the design of Aboriginal landholding corporations. To ignore the opportunity to observe customary decision-making processes is likely to be counter-productive if the sort of corporate structures prescribed by the various land rights legislations are imposed without attention to how things actually happen in an emic political sense on the ground and in the community. The imposition of such legislative requirements are exacerbated further when multiple corporations must be established in a particular region due to multiple overlapping claims that fall under different legal and tenure regimes. Our view is that claimant representative bodies, such as land councils, should allow anthropologists to be proactive in this regard, and that such an approach should result in a closer ‘fit’ between the membership structures and decision-making processes of Aboriginal landowning corporations and the systems of Aboriginal land tenure as they are understood and practised by claimant groups themselves. While it may be unrealistic to expect that this ‘fit’ will ever be seamless, incorporating anthropological analysis at an early stage in the planning of corporate structures should minimise the distortion to the emic Aboriginal systems and result in greater consonance between people’s experience of rights and responsibilities toward their land under their own system of Aboriginal land tenure and the practice of ownership within corporations set up under native title and other land rights regimes.

This chapter considers some practical aspects of applying such research in two case study areas of Cape York Peninsula in far north Queensland where there are multiple and overlapping Aboriginal entities for the ownership and management of lands and waters. It examines what will be required for the successful operation of the various registered title-holding bodies in these regions, namely native title Prescribed Bodies Corporate (PBCs)[5] and Aboriginal Land Trusts (ALTs) set up to hold title under the NTA and ALA respectively, as well as Aboriginal corporations holding pastoral leases and other forms of title. It proposes options for rationalising and possibly combining ALTs and PBCs, and models for cost effective coordination of Aboriginal land management at a regional level. Its premise is that this will be best achieved by giving primary consideration to using elements of the local Aboriginal system of land tenure and its associated decision-making processes as the building blocks in the construction of corporate landholding entities and land management structures, rather than allowing these to be subordinated to legal and administrative convenience.

The case study areas are the Coen and Wik subregions of Cape York (CYLC 2001), selected on the basis of variation in the complexity of local land tenure and coexisting land and sea management regimes (see Figure 13-1). Between them, these offer a gradation of scenarios which we believe provide exemplary models for the operation of Aboriginal landholding corporations that are adaptable to other regions and other Aboriginal groups in Australia.[6]

Figure 13-1: Cape York Native Title Representative Body’s area of administration and the subregions of Wik and Coen.

Figure 13-1: Cape York Native Title Representative Body’s area of administration and the subregions of Wik and Coen.

Cape York Peninsula

The Cape York Peninsula Region covers approximately 150,000 km2 of remote far north Queensland. The Aboriginal and Torres Strait Islander population comprises at least 60 per cent of the region’s total population of 18 000. There are more than 50 named traditional landowning groups in the region. At the time of writing there had been native title determinations over lands of three of these groups — the Guugu Yimithir, the Wik and the Kaurareg — with more than 20 other active claims yet to be determined.

With the exception of parts of the Northern Territory, Cape York has the highest proportion of land in Australia which is, or which has the potential to become, Aboriginal owned and managed. Since much of this land will be held as either Aboriginal freehold or leasehold, and since most groups on Cape York have been able to maintain continuous traditional connection to the land,[7] the incidence of successful native title determinations over much of Cape York can be expected to be high.

Forms of Aboriginal Land Tenure on Cape York

Native title is but one of several categories of Aboriginal owned land on Cape York, each of which is associated with its own particular corporate landholding entity and each of which may also sustain coexisting native title rights over the same land.

In 1984 Queensland established Deed of Grant in Trust Lands (generally known as DOGITs) in respect of Aboriginal residential settlements and surrounding lands which had formerly been government- or church-run missions and reserves. DOGITs are inalienable and are held in trust by the local Aboriginal Council on behalf of its community.[8] Over 11 per cent of Cape York is comprised of DOGITS and there is a large DOGIT area in each of the case study subregions.

In 1991 a form of inalienable Aboriginal freehold title was introduced in Queensland under the ALA.[9] This provides for land to be granted usually on the basis of either ‘traditional affiliation’ or ‘historical association’, with the land title, once granted, held by an ALT which is usually comprised of a representative group of the beneficiaries of the grant. As of 2005, approximately 5 per cent of Cape York Peninsula was ALA Aboriginal freehold held by 19 ALTs (QDNRM 2005, Appendix 2). This freehold may be granted as a result of either a claim process requiring claimants to prove their traditional or historical connection before a judicial tribunal, or by an administrative process referred to as ‘transfer’. Both mechanisms rely upon the government to make the land available by gazettal, and this provision has enabled some creative tenure resolutions to be negotiated between the Queensland Government and native title claimants. The DOGITs already discussed are transferable, and the ALA requires that in time they must be converted to Aboriginal freehold.

A number of Aboriginal-owned pastoral leases also occur in each subregion. The favoured structure for pastoral lease landholding entities are corporations of traditional owner groups formed under the Commonwealth Aboriginal Councils and Associations Act 1976 (ACAA), the same legislation under which native title PBCs must be incorporated.

Neither DOGIT nor Aboriginal freehold extinguishes native title rights and interests, and the NTA provides for any past extinguishment on Aboriginal-owned pastoral leases to be disregarded. Potentially, therefore, traditional owners’ full native title may be recognised on all these tenure types, leading to the duplication of landholding entities in ALTs, PBCs, and Aboriginal corporations.

Native Title — Prescribed Bodies Corporate

Successful native title claimants are required to incorporate as a PBC under the ACAA.[10] Claimants may nominate to set up their PBCs to function in one of two ways, either as an agent or as a trust. The essential difference is that under an agency arrangement, decision making rests with the native title group as a whole and the PBC acts only as its agent or representative, while under a trust arrangement, decisions may be made by a small group of trustees without necessarily involving the wider native title group. The choice is of significant consequence as it determines the legal and operational relationships between the native title holders, the PBC as a corporate entity, and the actual native title rights and interests. Traditional owner groups on Cape York have generally expressed a preference for agency PBCs because this structure is perceived to give them greater control over decision making and avoids an additional level of legal complexity interposed by the operation of a trust structure.

It is anticipated that eventually the majority of Aboriginal-owned land will have at least two coexisting types of titles and the consequent establishment of two landholding corporations for each area: either (a) Aboriginal freehold and native title, with an ALT and a PBC; or (b) a DOGIT and native title, with a Community or Shire Council and a PBC, or (c) leasehold and native title, with an Aboriginal corporation and a PBC. As it is possible to lease land from the trustees on both DOGITs and Aboriginal freehold, there is further potential for three levels of Aboriginal landholding entity on these tenures, all of which may have substantially the same membership of traditional owners — namely the DOGIT trustees or an ALT, a native title PBC and an Aboriginal corporation holding a lease (see Table 13-1).

Table 13-1: Tenures on Cape York Peninsula showing potential for overlapping Aboriginal ownership.
     

Potential for Ownership by Aboriginal Groups

Tenure Type

Land area (ha)

Land area (%)

Native title

Aboriginal freehold

Aboriginal-owned lease or freehold

Leases

8 063 000

59.2

Y

 

Y

National Park

1 647 709

12.1

Y

Y

 

DOGIT (Deed of Grant in Trust)

1 551 500

11.4

Y

Y

Y (leasehold)

Aboriginal Freehold

736 600

5.4

Y

Y

Y (leasehold)

Unallocated State Land

475 800

3.5

Y

Y

 

Statutory Mining Tenure

597 800

4.4

     

Reserve

269 361

2

Y

Y

 

Timber Reserve and State Forest

189 613

1.3

Y

   

Freehold

90 600

0.7

   

Y

TOTAL

13 621 983

100

     

Source: The figures for each category of tenure are taken from CYLC (2001).

Native title holders may make and register agreements about the use and management of land and waters with other land users, such as miners, governments, pastoralists and developers. These are known as Indigenous Land Use Agreements (ILUAs). ILUAs require the consent of all the native title holders for the area covered, and once made they bind all native title holders (including future generations), as well as the other parties to the agreement. ILUAs provide a mechanism by which governments, native title holders and other land users may come to agreement about the use of land and the recognition of indigenous rights and interests without necessarily requiring a formal determination of native title (Lane 2000). Importantly, where there is a PBC over an ILUA area, it must be a party to the agreement. This enables PBCs to use the ILUA provisions to assist in their function of protecting native title for traditional owners, as well as a range of other land management and economic benefits which might flow from such agreements.

Active and Passive PBC Structures

Models for PBC design fall along a continuum from ‘passive’ to ‘active’.[11] The passive PBC is a minimalist structure. It is best suited to the agency PBC type since it will not itself hold the native title interests. These will remain with the native title holding group who may continue to exercise customary decision-making practices. The PBC’s role is to consult with and implement the group’s decisions, and its membership may be limited to that necessary to meet the minimal regulatory requirements; it may therefore have a ‘representative’ membership structure, rather than a ‘participatory’ model (which aims to include as many as possible of the native title holders as PBC members). The passive PBC will have limited demands for resources, but is likely to be reliant on the support of regional representative bodies, such as Land Councils or the Land and Sea Management Agencies proposed in the operational models described below.

In contrast to the passive model, the active PBC assumes greater responsibility for the making of decisions within the determination area. The trustee PBC type is better suited to an active role, because it ‘holds’ the native title and has greater authority to make decisions on behalf of the native title holders. Active PBCs could adopt either ‘representative’ or ‘participatory’ membership structures. There is a degree of expert design required here to ensure there is no conflict between the traditional processes and those of the ‘active’ agency, for which anthropological advice will be essential to minimise such conflict.

The distinction between passive and active relate not only to PBC functions (for example, whether it is an agency or trustee PBC) but also to its membership and its general mode of operation. The decision as to which model is best suited in any particular case will depend upon a variety of factors, including the PBC’s responsibilities in relation to other landholding entities owned by the group and the levels and sources of funding.

Importantly, the choice reflects the spectrum of opportunities available in apportioning decision-making responsibilities between the PBC and the native title holders. At one end of the spectrum, a passive/agency/representative structured PBC would have no role other than to ‘rubber stamp’ decisions (including non-native title decisions) made by the native title holders. At the other end, an active/trustee PBC, even with a minimal representative structure, could make all decisions, including those involving native title rights and interests. A condition for the operation of such a PBC would be that it is possible to replicate traditional decision making within the PBC governance structure itself. The obvious dangers of creating such a representative/active PBC include the lack of accountability to other native title holders, who as non-PBC members would be forced to rely on their status as beneficiaries to redress any concerns about the management of the PBC.

These decisions may reflect the extent to which the wider membership of the native title group is prepared to cede the day-to-day running of the PBC to an operational and decision-making representative subgroup. As in the case of the Wik PBC described below (in general terms a passive/agent/participatory type of PBC), it is likely that many native title holders will prefer a hybrid of the models to meet their particular requirements.

Structural Options for PBCs in Relation to Land Trusts and Other Indigenous Landholding Entities

The prospect of ALTs and PBCs operating independently of each other with respect to the same land is a source of concern to traditional owners and is recognised by the Queensland State Government as one of a number of practical matters needing to be addressed in order to improve the articulation of the state and commonwealth legislation (QDNRM 2005).

There is a significant level of frustration about the respective operations of ALTs and PBCs in parts of Cape York, particularly where they have similar memberships and perform functions with respect to the same areas of land. From the perspective of traditional owners, the expectation (and hope) may have been that native title would result in a unitary system within which their customary system of land tenure might be recognised and exercised. In practice, however, it has failed to produce such a simplification of their position, but rather resulted in greater complexity, ambiguity and consequent confusion.

In the Coen subregion for example, there are approximately 10 existing or proposed ALTs, and as of 2004, five native title claims, the membership of whose PBCs will overlap those of the ALTs (see Memmott and McDougall 2004: 93). Given the importance of both the NTA and ALA regimes to the traditional owners of Cape York Peninsula, there is a need to reconcile the practical day-to-day operations of the landholding and managing entities to reduce not only the confusion and frustration of traditional owners, but also that of external parties trying to engage in negotiations, communications and contracts with the traditional owners. It is to be expected that similar situations occur in other Australian states and territories where there is a form of state land rights legislation.

The integration of PBCs and ALTs into single corporate entities for suitable large-scale socio-geographic units (for example language-based tribes in the case of the Coen subregion) would not only simplify arrangements and reduce confusion but also reduce the administration costs through a more effective (and larger) scale of economy. There are three options for coordinating the operations of ALTs and PBCs. On the face of it, the determination of an ALT as a PBC is the preferable option since it would limit the resultant structure to a singular corporate entity. However, it is unavailable without amendments to the PBC Regulations by the Commonwealth Government and possibly amendments to the ALA by the Queensland State Government.[12] Further, since the criteria for ALA land grants and for determination of native title are so very different, combining the two sets of responsibilities into a single entity may not always be the best option because of resultant conflicts of interest for the members.

Given that there are no legislative impediments to appointing a PBC as the sole trustee of an ALT, this constitutes a second option. However, Queensland government policy in the past has discouraged the use of corporate bodies as sole members of an ALT. This option would still entail the formation of two distinct corporate entities, but Table 13-2 sets out how the two entities may be harmonised within a single operational structure.

A third option is that of coordination between the PBC and ALT by agreement only. The PBC and ALT operate as independent entities with respect to the same land, with activities coordinated through formal agreements, such as Memoranda of Understanding, setting out their respective roles and responsibilities in relation to land use and consent. In practice, because the membership of the two entities is substantially the same, members of the ALT will have to make agreements with themselves as members of the PBC. This option is the least efficient and provides the greatest scope for fragmentation of indigenous interests. However without the regulatory or policy changes required to implement either of the preferred options, it remains the only practical (and legal) option currently available.

Table 13-2: Model of harmonised rules for a PBC as trustee of a Land Trust.

Issue

Land Trust Rules

PBC (as Grantee) Rules

Objects

Objects are for purposes set out in the Aboriginal Land Regulations 1991.

Objects to include acting as grantee of land trust and as a PBC.

Membership

Limited to one grantee — the PBC. Alternatively could include ‘historically affiliated’ persons as grantees. Historical members to be qualified with no voting powers.

Open to adult native title holders only. Note ‘historically affiliated’ persons are ineligible for membership.

Committee

Limited to PBC. PBC is Chairperson.

By election at AGM.

Meetings

Annual General Meeting (same day as for PBC). Committee meets quarterly.

AGM (same day as for land trust). Committee meets at least quarterly.

Decision- Making Processes

As set out in rules and in accordance with code of ‘permitted dealings’ provisions in ALA. Same as PBC.

Prescriptive decision-making processes set out in rules. Same as land trust.

Administration

Separate accounts/audit. Annual statement to Land Claims Registrar.

Separate accounts/audit. Reports to Registrar of Aboriginal Corporations.

The Wik Subregion

The Wik subregion is comprised of coastal flood plains and forested inland country drained by several major westward flowing rivers on the central western side of Cape York. It contains an Aboriginal land lease held by the Aurukun Shire Council, on which are located the township of Aurukun itself and a number of outstations that are seasonally occupied by Wik families. The region is occupied predominantly by the Wik-speaking peoples,[13] the majority of whom live in Aurukun and the Aboriginal DOGIT settlements of Pormpuraaw and Napranum, as well as the towns of Coen and Weipa which lie just outside the region. This region and its people are well known nationally and internationally through the Wik Native Title High Court Action which established that native title may coexist on pastoral leases.[14]

The Wik people comprise a broad linguistic grouping sharing a range of cultural similarities, within which there are a number of identifiable linguistic subgroups, namely Wik Way, Wik Mungkan, Wik Ompom, Wik Iyanh or Mungkanhu, Wik-Ngencherr and Ayapathu (Sutton 1997: 36, Chase et al. 1998: 59). The distribution of languages is often mosaic-like and language affiliation may be shared by clans with non-contiguous estates. Further, languages are not necessarily coterminous with political or social groups such as riverine groupings and regional ritual groups in a given region. Commonality in language use does not necessarily correspond to a unity of political or social identity (Sutton 1997: 33).

The building block of their land tenure system is the clan estate, in which membership is based on the principle of descent. Such estates can be aggregated into various types and levels of configuration (Sutton 1978: 126–8, 140, 1997: 28), the most inclusive of which are ‘large estate cluster’ identity systems, including riverine groups, ceremonial groups and language groups. These are differentiated by particular principles of social and political organisation, totemic and religious geography, and language and land tenure (Sutton 1997: 29–32). Eight of these larger cluster groups comprising the Wik and Wik Way claim group are the social units on which the Wik PBC representative membership structure is based. These include five ceremonial groups and three based on either language or geographic affiliation (Memmott and McDougall 2004: 96, 125).

As of 2005, within the native title claim area, there were at least 33 parcels of land of coexisting (but non-extinguishing) tenure. These included parcels of DOGIT land at Pormpuraaw and Napranum, the Aurukun Aboriginal land lease, pastoral leases under both Aboriginal and non-Aboriginal ownership, and areas under mining leases. Outside the claim area, but still potentially subject to future native title claims, were two large national parks which had been successfully claimed under the ALA, and further pastoral leases. As well as the PBC for the determined areas of the Wik and Wik Way claims, there were two DOGITs held by the Pormpuraaw and Napranauum Shire Councils, the Aurukun Shire Council which held the Aurukun lease, and at least two proposed ALTs.

Planning authorities in this region included such regional agencies as Aurukun Shire Council, Pormpuraaw Community Aboriginal Council, Napranum Community Aboriginal Council, and the Cook Shire Council. In addition there were a wide range of government and indigenous agencies and departments that had jurisdiction over the wider Cape York region, including Queensland National Parks Service and other government agencies. Forms of planning agreements which were in place included Wik and Wik Way Native Title ILUAs covering pastoral leases under claim and the Western Cape Communities Co-Existence Agreement which brings together native title holders and Aboriginal communities with Comalco, owners of the extensive bauxite leases which have had a significant impact upon Aboriginal communities in the region since the late 1950s.

A mature outstation movement existed with some 24 or more outstations, most of which were serviced from Aurukun, with a smaller number being serviced by an Aboriginal resource agency based in the adjacent Coen subregion. Almost all of these were on the Aurukun Shire lease or on Aboriginal-owned pastoral leases.

Management problems perceived by the traditional owners included a mixture of both customary concerns relating to their traditional responsibilities for looking after their land, as well as seemingly more contemporary worries relating to access and security: over-fishing and fishing industry impact on dugongs and crocodiles; lack of coastal management and dune damage; poor road access to country; cultural heritage protection; and impacts of visitors to country, including theft and vandalism at outstations and littering. Their aspirations included: greater control over natural resources and the environment; access controls over non-indigenous land users and the prevention of vandalism of outstations and other property; cultural heritage protection and site mapping; improved infrastructure and access to traditional sites and living areas; and greater economic engagement within the region, including employment and commercial venture opportunities.

To develop and implement land and sea management programs across Wik traditional owners’ lands, two resource centres known as Land and Sea Management Agencies had been proposed for the Wik region. These would provide a base for research into the environmental impacts of mining and post-mining rehabilitation, aimed primarily at generating real options for indigenous people to gain economic and employment opportunities from lands impacted by bauxite mining. They would also become a hub for the training of a skilled indigenous workforce that would build land management capacity across all Cape York communities (ASC 2001).

The Coen Subregion

The Coen subregion is located on the east of Cape York and contains the small service township of Coen as its regional centre, as well as a number of Aboriginal outstations. It straddles the Great Dividing Range, and includes the uppermost tributaries of the western-flowing Coen and Archer rivers and the streams flowing east from the Geikie and McIlwraith ranges. Aboriginal people of the Coen subregion reside in Coen and in some 10 outstations, the largest of which is Port Stewart on the eastern coast. Many of the traditional owners and native title holders live outside the actual Coen subregion at such large Aboriginal communities as Lockhart River, Hopevale and Aurukun, and also in Cooktown.

There are four language groups with native title interests in the Coen region: the Kaanju, Umpila, Lamalama and Ayapathu. While these groups maintain their distinct linguistic identities and are each associated with well-recognised linguistic and tribal territories, they share a system of traditional land tenure, laws and customs which is regional in character (Chase et al. 1998: 37).

Due to historical forces, the Aboriginal system of land tenure in this subregion has shifted from a patrilineal clan estate system toward that of cognatic descent groups and the ‘language-named tribe’ as the primary social structural units by which people identify with country and around which their ownership of land is organised and conceptualised (Chase et al. 1998: 35–9). However, the extent to which these transformations have occurred varies among different groups, so that patterns of land tenure, social organisation and identity are not uniform.

By the end of 2005, while there had been no native title determinations in the region (though there were several outstanding claims), there had been four grants of Aboriginal freehold land. Altogether there were eleven existing or future ALTs. There was one Aboriginal-owned pastoral lease, and several smaller blocks of conventional freehold held by Aboriginal corporations.

The regional planning environment included a central indigenous service agency, the Coen Regional Aboriginal Corporation, which delivered outstation, land and sea management services, as well as various administrative and welfare services. It serviced approximately a dozen residential outstations established on the various areas of Aboriginal land in the region, and assisted the operations of several ALTs in the region. As noted above, it also provides services to some outstations in the Wik subregion, and is likely to have a greater role in this subregion in the future. As well, the Lockhart River Shire Council had a land and sea management program with interests in the northeast corner of the Coen subregion. It oversaw the activities of a ranger service on the DOGIT which had responsibilities for natural and cultural resource management (LRC 2001).

Land and sea management issues of concern to the traditional owners of the Coen subregion included: cultural heritage protection; fire management; the problem of non-indigenous squatters encroaching into remote areas on Aboriginal land, often associated with illegal marijuana cropping; feral pigs; fisheries management; and under-developed infrastructure limiting access to country. Their aspirations included: the establishment of more outstations, bores, water tanks and other related infrastructure; the development of land management; the protection of sites; joint management of the national parks in the region and greater access to and use of national park lands; and small-scale enterprise operations at their outstations and on Aboriginal land, including for cattle herding, tourism, prawn fishing and pig farming or harvesting.




[1] This chapter is based upon research undertaken in 2001 for the report Holding Title and Managing Land in Cape York (Memmott and McDougall 2004).

[2] Mabo & Ors v Queensland (No 2) (1992) 175 CLR 1.

[3] These schemes are based on various state and commonwealth government acts and are specific to the particular states and territories to which they apply, and therefore quite variable in their legislative nature. During the same period there have also been a number of land acquisition programs, mostly funded by the Commonwealth Government, through which Aboriginal groups have been able to purchase land, especially pastoral leases.

[4] As of 2005, this tenure resolution approach was a matter of State policy (QDNRM 2005: 16). While the authors’ experience is mainly in Queensland, we believe similar mechanisms for negotiated land settlements operate in other states.

[5] PBCs must be set up by claimants to hold their native title. Following a successful determination, the PBC is registered as a Registered Native Title Body Corporate. Throughout this chapter ‘PBC’ will refer to both entities.

[6] Unless otherwise indicated, the data presented in this chapter reflects the situation on Cape York up to 2001/02, the time of the original research.

[7] The NTA requires that claimants be able to demonstrate that they have maintained an unbroken connection to the land, which is interpreted by the High Court to mean that they have continued to observe traditional law and custom, and to have maintained a ‘vital’ society based upon this law and custom, in a substantially uninterrupted way since sovereignty.

[8] These councils were originally set up as exclusively Aboriginal local government organisations under specific legislation; they have since been replaced with conventional shire councils, similar to those operating in any town in Queensland. The local communities characteristically comprise a mixture of traditional owners for the area and other Aboriginal residents with historical ties going back several generations.

[9] Readers are referred to Memmott and McDougal (2004) for more detailed explication of the operation of the ALA.

[10] This Act has not proved to be altogether suitable for the purposes of PBCs because, in practice, it has not been able to successfully incorporate customary group recruitment mechanisms and decision-making processes (see Fingleton et a1. 1996; Mantziaris and Martin 2000: 183–232; Memmott and McDougall 2004: 14–15). In 2005, the Commonwealth Government introduced a Corporations (Aboriginal and Torres Strait Islander) Bill, which it claimed would better serve the contemporary requirements of indigenous corporations, including PBCs (RAC 2005).

[11] See Memmott and McDougall (2004, Chapter 6) for an in-depth discussion of the design and function of PBCs.

[12] Recognising similarities in the structure and intent of ACAA corporations and ALA land trusts, the Queensland Government has recently canvassed the option of doing away with ALTs altogether and granting land directly to ACAA corporations, which could include PBCs, thereby avoiding the duplication of organisations with almost identical functions. It has also acknowledged that the integration of land trusts and corporations may be facilitated by allowing land trusts to be formed prior to the granting of the land (QDNRM 2005: 33–4).

[13] See Thomson (1936: 374); McConnel (1939: 62); Sutton (1978); von Sturmer (1978) and Martin (1993, 1997) for an ethnographic history of these peoples.

[14] The Wik Peoples v Queensland & Ors (B8 of 1996). While there have since been determinations over areas of crown land, the Aurukun Shire lease and some pastoral leases, determinations over several pastoral leases and areas of the bauxite mining leases were yet to be achieved at the time of writing.