Australian Critical Decisions

Remembering Koowarta and Tasmanian Dams

Ann Genovese

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781315533070
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto civile

The 1980s was a time of significant social, political and cultural change. In Australia law was pivotal to these changes. The two High Court cases that this book explores- Koowarta v Bjelke-Petersen in 1982 and the Tasmanian Dams case in 1983- are famous legally as they marked a decisive reckoning by the Court with both international law and federal constitutionalism. Yet these cases also offer a significant marker of Australia in the 1980s: a shift to a different form of political engagement, nationally and internationally, on complex questions about race, and the environment. This book brings these cases together for the first time. It does so to explore not only the legal legacy and relationship between Koowarta and Tasmanian Dams, but also to reflect on how Australians experience their law in time and place, and why those experiences might require more than the usual legal records. The authors include significant figures in Australian public life, some of whom were key participants in the cases, as well as established and respected scholars in law, history, Indigenous and environmental studies. The book offers a combination of personal recollections of the cases- the drama of how they were brought before the courts and decided- as well as a consideration of the cases' ongoing significance in Australian life. This book was previously published as two special issues in the Griffith Law Review.

Koowarta: A Warrior for Justice
A Brief History of Queensland’s Racially Discriminatory Legislation and the Aboriginal Litigants Who Fought It

M. Langton

Centre for Health and Society, Melbourne School of Population and Global Health, University of Melbourne, Australia

The Koowarta case was one of several that began in the 1970s when indigenous people took action against racial discrimination and denial of rights to land by the Queensland government. The granting of mining leases over Aboriginal reserves instigated further litigation, including the Peinkinna and Wik cases. To understand the decision by the Queensland cabinet to deprive Koowarta of the land transfer of the pastoral lease purchased by the Aboriginal Land Commission, and the events that followed his case, this article details the history of ‘native’ administration in that state. Late in the history of this ‘protectorate’, the mining industry (and its generous treatment by the Queensland government) led to abuses of the Aboriginal peoples of the western region of Cape York Peninsula. The Koowarta case laid the ground for the recognition of native title in pastoral leases, a matter which John Koowarta’s neighbours, the Wik, Thaayorre and Alngith peoples, pursued with the same determination.

I first met John Koowarta in Aurukun in 1990. He was short, slight, but ruggedly tough, with a glint in his eyes that telegraphed his determination. I met him again in 1990 in Brisbane when Noel Pearson brought a delegation of elders from Cape York to talk to then Premier Wayne Goss about the need for land rights. In 1995, after Koowarta’s death, I worked with Dr Peter Sutton to document the traditional ownership of his land for the purposes of documenting a case for his claim, this time under the Native Title Act 1993 (Cth). We travelled across his country with his widow, children and other family members. I learnt that he had, for many years, been a mechanic and welder. He did not know his country at all well, which is why our fellow travellers Koppa and Dugal were asked by him to come along. They had been nomads in their time. From his homeland up in the ranges, the noise and mayhem of Aurukun was far away. One of his witty kinfolk referred to Aurukun as ‘little Beirut’. His name ‘Koowarta’ was an important one. It refers to sacred narratives of his country: ku’ = dog + waat = promiscuous one (larrikin). This is a reference to the Leech (Ularrk) totem of John’s patriclan. ‘Dog’ is not a reference to Dingo (which was one of his totems) but to the fact that a man of this clan would have a dog called Waat. One day, as we drove across his land, one of the white men who worked for the pastoral lease drew his rifle and pointed at a dingo. Every woman in the vehicle dived across to the front to grab his rifle – this dingo was a sign that Koowarta’s spirit was present. He was one of several warriors for justice in Queensland that I detail here who were fighting against Queensland state apartheid.

Introduction

In several legal cases in Queensland that began in the 1970s, indigenous men and women began to cut the Gordian knot of hateful laws that denied their humanity. In doing so, they followed their brothers and sisters elsewhere who had blazed the trail. Aboriginal and Torres Islander peoples living in Queensland in the 1960s were entitled to feel outrage at their situation. In the south, in the cities of Melbourne, Sydney and Canberra, enlightened politicians and campaigners for equal rights were overturning the old system of separatist exclusion of Aboriginal people, yet in Queensland the state intensified its draconian racialist grip on their lives. As in the Northern Territory, where hard won rights were recognised much earlier, it was in response to the granting of mining leases over Aboriginal reserves that Aboriginal action in Queensland was instigated, including litigation, and then, in turn, repressive measures by governments and retrograde court decisions.

This is the Queensland in which the decision to deprive John Koowarta of his land was made, and that the High Court ruled upon. To understand this decision by the Queensland cabinet and the events that followed the High Court case, it is necessary to traverse the history of ‘native’ administration in that state, the repressive legislation that separated Aborigines into Crown reserves in deprived circumstances and, in particular, the deprivation of both civil rights and the right to live freely as Aborigines, which led to a series of cases, of which Koowarta was only one. Late in the history of this ‘protectorate’, the mining industry, and its generous treatment by the Queensland government, led to abuses designed to strike terror into the hearts of the Aboriginal peoples of the western region of Cape York Peninsula. The Peinkinna¹ and the Wik cases² (‘the pastoral leases case’) can also be understood in the context of this history. Koowarta’s case expressed his unwillingness, and that of his people, to continue to suffer the injustice of racism and the deprivation of their rights to their traditional land, and it laid the ground for the recognition of native title in pastoral leases, a matter which his neighbours, the Wik, Thaayorre and Alngith peoples, pursued with the same determination.

The 1897 Act and Subsequent Legislation

The seeds of repressive laws against Aboriginal people had been sown early in Queensland. The Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld) (1897 Act) came into force on 1 January 1898. Its purpose was to separate Aborigines from the growing white population. It was drafted during the final colonial push for control of all the land in the state of Queensland, a move that required the removal and ‘pacification’ of its indigenous inhabitants. This widespread removal of Aboriginal people from their traditional territories was justified partly because of the devastating impact of opium supplied by Chinese immigrants who had come to try their chances on the north Queensland goldfields. The removals were also a deliberate population control method, and resulted in what Charles Rowley later called a ‘gulag archipelago’.³ There were divergent approaches to Aboriginal populations according to their proximity to the larger white settlements.⁴ Two newly established ‘protectors of Aborigines’ directed this administrative regime, relying on police as agents of the colonial state to remove Aborigines from areas where the colonists were taking up blocks of land to graze their stock. In time, district protectors were drawn from police ranks to streamline an increasingly methodical pattern of removal. If female, old and infirm, or young and weak, the Aboriginal detainees were confined in the administered settlements of the reserves where they were subject to the whim of superintendents appointed under the Act. If male and fit, they were usually contracted as unfree – and unpaid – labourers to the new settlers.⁵

At the time of the 1897 Act, a few large reserves existed in Cape York Peninsula at Yarrabah in North Queensland, and several smaller ones operated in southern Queensland, such as at Cherbourg, near Kingaroy, and around Brisbane. Others that had been operating in the 1870s had already been sacrificed to colonial expansion. The reserves became restricted areas, accessible only by permit under s 11 of the 1897 Act. The administrative machinery of this regime depended on a ‘network of protectors’ who, as Kidd explains, invoked relocation provisions to incarcerate thousands of Aboriginal people.⁶ The protectors were capable of extraordinarily arbitrary decisions, and yet they dutifully wrote down in their ‘removals registers’ an ever-growing number of reasons for their verdicts on the fate of each person they selected for removal: being born of Aboriginal parents; of mixed parentage and under the age of 16 or associating with ‘full-blood’ Aborigines; being a female of mixed parentage; refusing to work where directed; failing to ‘support’ one’s family; being defined as a neglected child; being described as promiscuous; using alcohol or opium (a legal drug until 1905), to name a few. Any of these categories was grounds for removal from family and country, and confinement on the reserves.⁷

The Act’s provisions enabling these assignments were unequivocal. Section 9 stated:

It shall be lawful for the Minister ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Citation Information
• Acknowledgements
• Introduction: Australian Critical Decisions: Remembering the Koowarta and Tasmanian Dam cases
• 1. Koowarta: A Warrior for Justice A Brief History of Queensland’s Racially Discriminatory Legislation and the Aboriginal Litigants Who Fought It
• 2. Internal and external affairs: the Koowarta case in context
• 3. Justice in whose eyes? Why lawyers should read black Australian literature
• 4. Recovering the foundations of Koowarta: the struggle of the Aboriginal Land Fund Commission to purchase land in Queensland
• 5. Koowarta: constitutional landmark, transition point or missed opportunity?
• 6. Practising law and politics in 1980s’ Australia: the liberating effect of Koowarta v Bjelke-Petersen
• 7. Koowarta and the rival Indigenous international: our place as Indigenous peoples in the international
• 8. Koowarta: a vital turning point for Aboriginal rights and Australia Summing up the symposium
• 9. Reflections on legal issues in the Tasmanian Dams Case
• 10. The Tasmanian Dam Case: an advocate’s memoir
• 11. Limitlessness in Australian Constitutional Legal Narrative: The memory of Black’s Address in the Tasmanian Dam Case
• 12. Experiences of coming to law: An Interview with Bob Brown on the Tasmanian wilderness society as client in the Tasmanian Dam Case
• 13. Nineteen eighty three: A jurisographic report on Commonwealth v Tasmania
• 14. Tasmanian Dams and Australia’s Relationship with International Law
• 15. Making sense of indigeneity, aboriginality and identity: race as a Constitutional conundrum since 1983
• 16. Law and the practices of ‘damming’: Tasmanian Dams Case as a turning point
• Index