Quandamooka versus Queensland: A tale of law, PR and Stradbroke Island

quandamookaI was coming from Roma St Station towards Kurilpa Bridge to the Queensland State Library yesterday thinking about my Aboriginal studies final assignment due on Monday. I was trying to figure out how crucial dignity was to three Indigenous ambassadors from different times, Bennelong, Bussamarai and Noel Pearson. Suddenly, out of nowhere, appeared two men with an Aboriginal flag. The timing seemed extraordinary and they were heading the same way as me. I followed them to the Commonwealth law courts in front of Kurilpa bridge. Indigenous people were putting up signs and waiting outside the court, while others got ready to do a traditional dance. There were television and other media present. There was the promise of a peaceful protest and street theatre. The State Library could wait, this was a media event and I was media.

This was also Indigenous people acting out their own dignity. Young men put up banners while others handed out kits to waiting media. I asked for a kit and read their story. The High Court case was about sand mining rights on “Straddie”. Straddie is North Stradbroke Island, or Minjerribah, to Indigenous people. They were here to appeal to Canberra to stop Brisbane from making laws about their island without their permission. Labor’s law enacted in 2011 permits mining to 2019 – with Indigenous consent – but the LNP introduced a new law in 2013 to push the end of mining to 2035 and also increase its size. Federal law says they should have consulted with the traditional owners, something the Queensland government didn’t do. The constitution says that when State and Federal law clash, the latter prevails. But the unconsulted Straddie Aboriginal people had to take it to the highest court in the land. It was blatant lack of regard, something that has happened time again across the country since 1788.

Straddie is close to Brisbane but bridgeless, much to the delight of most of its residents black and white. Visitors are not new. Straddie has been home to humans for over 20,000 years. We don’t know their original name but their descendants became the Quandamooka people. Straddie was annexed by Cook in 1770 and again by Phillip in 1788 as part of New South Wales but the islanders remained ignorant of British rule for another 36 years. When another penal colony was needed for those that needed further punishing, Moreton Bay fit the bill. The British felt no permission was necessary to establish this colony, enforced at the butt of a carbine.

They first landed on Straddie, the same year – 1824 – as they landed in Brisbane. At a place the islanders called Pulan, they built a pilot station overlooking the strategic exit to the ocean. Whites renamed it to Amity Point. By then Moreton Bay was opened to free labour and from 1859, Straddie would by ruled by Brisbane, not London or Sydney. A church mission named Myora failed to win converts. The earliest Brisbane rulers were pastoralists who had financial reason to support “the opening up” of territory for agriculture. Later regimes were heavily paternal, locking up Aborigines in concentration camps across the state where they could be kept under control. Many Stradbroke Islanders were sent to Cherbourg, Woorabinda or Palm Island.

The first sandmining on Straddie took place in the 1950s. There was no consultation with Quandamooka and no profits to them either. Nothing much changed until two groundbreaking events in 1993. The first was Mabo v Queensland (no 2) where Mer man Eddie Mabo and his friends proved to the High Court they had customary title to the Murray Islands in the Torres Strait. Later that year Paul Keating pushed through a Native Title Act, a brave move that cost him much political capital (giving things to blacks remains electorally unpopular in Australia). Keating’s Act provided for a national system to recognise and protect native title, which would co-exist with the “land management system”. For Straddie that meant co-existing with sand mining.

Mabo had got them a seat at the negotiating table, and also overrode Queensland law. The Quandamooka people lodged their land claims in two phases between 1995 and 1999. The National Native Title tribunal registered both claims in 2000 but the claims were slowed by boundary disputes, needing a 2006 workshop of elders, lawyers and anthropologists to resolve. The main mining lessees expired in October 2007 and two days later Lessee Stradbroke Rutile Ltd (owned by Consolidated Rutile) applied for a 21 year continuation of lease. In 2009 both companies were gobbled up by Belgian company Sibelco, a “raw material producer” for the world manufacturing market.

In January 2010, the Federal Court asked the National Native Title Tribunal to facilitate negotiations with the State Government, local government and other interested parties to finalise an Indigenous Land Use Agreement. Sibelco nominated subsidiary Unimin to negotiate a separate ILUA with the Quandamooka. In mid 2010 Unamin’s “offer” to the Quandamooka involved the long-term operation of the mines until 2035 and another in 2050 and they also wanted their support in their lease negotiations with the state government. The Quandamooka came back with a counter offer. They split the ILUA in two, firstly a complex one that would deal with future mining and might take many years to agree on, called “a Future Acts ILUA”, and secondly a simple one to have agreement on the ground once the Federal Court judges the native title claim. They also advised Unamin/Sibelco to sort out the leases with the government and come back to them for consent.

In April 2011 the Bligh Labor government passed the North Stradbroke Island Protection and Sustainability Act (NSIPSA Act) which gave effect to key elements of the ILUA between Queensland and the Quandamooka. It approved mining on Straddie until the end of 2019 at which time full native title rights would return to the Quandamooka. The ILUA was signed almost three years ago to the day, 15 June 2011. In a historic year, the Federal Court also handed down its Native Title judgment in July 2011. For the first time, a court had recognised Quandamooka law and customs had survived colonisation. Judge Dowsett said the Quandamooka were a “pre-sovereign society” who had maintained connections with Straddie and the adjoining sea (though not with adjoining islands or the mainland). He also noted Sibelco, Telstra and other big stakeholders were adopting the state’s submissions. The National Native Tribunal ratified the claim on 11/11/11 making it the law of the land.

But Judge Dowsett was too sanguine about Sibelco’s intentions. With a state election coming up in 2012 and a likely change of government they ran a political scare campaign to get their original position back on the table. They focused the campaign in Ashgrove where Campbell Newman was running to become premier from outside parliament. Newman duly proposed to extend sand mining to 2035 if the LNP took power. Newman told the ABC Labor had acted in “a unilateral and capricious way” by bringing forward the end of mining in its 2011 law which was “all about green preferences”. Neither interviewer nor Newman made any mention of the traditional owners and Newman had no contact with the Quandamooka before his announcement. Sibelco’s PR company Rowland would later win a PR state award for excellence demonstrating “achieving environmental and economic progress in an island community”.

Rowland’s other reward was a fat contract after Newman’s landslide election win. Without changing any laws, the new Mining Minister ruled mining would stay to 2035. Still the government had not contacted the Quandamooka. In October 2013 the government brought in the North Stradbroke Island Protection and Sustainability and Another Act Amendment Bill 2013. The new NSIPSAAA Bill offered Sibelco security to 2035 with fewer environmental provisions. When the bill went to the agriculture, resources and environment committee, the Quandamooka could finally respond as the native title holders. The committee report admitted the government had not consulted the Quandamooka on NSIPSAAA, which breached the Queensland Legislative Standards Act 1992. Despite this, the Bill became law in Queensland’s unicameral chamber on 20 November. Without consent, it had changed a range of matters previously agreed with the Quandamooka.

In March this year, the fightback began. Elders gave their assent for the Quandamooka Yoolooburrabee Aboriginal Corporation to launch a High Court Challenge to Queensland’s 2013 Straddie law. They say the law overturning the 2011 law contravenes Keating’s Native Title Act 1993. The section of constitutional law is S109 which says if a state law is inconsistent with a Commonwealth law the latter shall prevail and the former “shall, to the extent of the inconsistency, be invalid”. The legal battle will be on the extent of the consistency between the two acts. Whatever happens, the dignified Aboriginal elders outside the High Court yesterday won the moral battle. Their dancers performed a smoking ceremony where they blessed their own people and all other by-standers, including the media filming the ceremony. “It your job,” a Quandamooka dancer told the media, “to tell the world”. These people are proving dignity very much matters.

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