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by Peter Poynton
In the course of its Local Authorities External Boundaries Review, Queensland's Electoral and Administrative Review Commission (EARC) - the tainted child of the . Fitzgerald Royal Commission, notorious for its recommendation of a continued electoral gerrymander – turned its attention to the disenfranchisement of Aboriginal peoples in Cape York. Peter Poynton assesses the EARC's inquiry.
Cape York contains ten of the fourteen Deed of Grant In Trust (DOGIT) areas that exist in Qld. Created out of the old missions and reserves, the DOGIT areas were established under the Community Services (Aborigines) Act 1984 (Qld) ('the Act') and were electorally excised from their surrounding Local Government Authorities (LGAs).
Despite being denounced as a racist disenfranchisement of Aborigines from Local Government elections by the Human Rights Commission in 1985[1], (in the 'HRC Report') no recommendations in relation to the Act or enfranchisement issues were made as, "many Aboriginal people expressed the view that Aboriginal areas ought to be separate from Local Authority areas, and that each should have no authority over the other."[2]
Questions as to the precise status of the DOGIT Aboriginal Councils have remained on the agenda ever since the HRC Report but have tended to obfuscate the real issue - disenfranchisement of Cape York Aborigines. The DOGITs are unique local government structures, owned and controlled by indigenous peoples. They are in some respects enhanced LGAs, but up to now have been accorded less status. Given their unique structures and different functions they ought to finally be recognised as autonomous enhanced LGAs but in such a manner that their residents may participate in elections for surrounding shires. Only with the establishment of dual voting systems for DOGIT residents - which do not diminish DOGIT autonomy - will the current disenfranchisement be corrected. That EARC has failed to address the issue of disenfranchisement and railed against dual voting systems is a scandal of major proportions.
An attempt to address these questions was raised in Smallwood v Qld [198511 Qd.R. 477. Smallwood brought suit under s.10(1) of the Racial Discrimination Act 1975 (Cti), alleging racism on account of the exclusion of DOGIT residents from the voting rolls of surrounding Shires. Kelly J held that;
"there is nothing to indicate that the system established by the Community Services Act is in any way inferior to that existing under the Local Government Act ... [and] ... that a local Authority constituted under the Local Government Act shall not have jurisdiction within a trust area governed by an Aboriginal Council ... is a necessary implication, as it is apparent that the two authorities could not operate within the same area."[3]
In so far as DOGIT Councils were not empowered to enter into Joint Agreements pursuant to s.32 of the Local Government Act 1936-91 and were denied participation in land zoning - as Noel Pearson points out, "perhaps one of the most significant powers conferred on local authorities by the Local Government Act (s.33)" - one would have to concur with Pearson's assessment that Kelly J's decision was incorrect and that the Community Councils were inferior instruments of local government in important respects.[4]
In 1986, following upon Smallwood's case and the HRC Report, the Bjelke-Petersen regime amended the Act to clarify the conundrum over the status of DOGIT Community Councils.
The very fact that the matter needed statutory clarification is further evidence of Kelly J's error. Whether that judgement was merely judicial error or another example of the blatant racism of the Qld judiciary, as criticised by Murphy J[5], will be judged by posterity. The upshot is that the exact status of the Community Councils has long been a grey area.
The problem is clearly laid out if we look at the Cape York Peninsula north of a line drawn along Latitude 16 - just south of Wujul Wujul through to the Gulf. The population of the Cape north of this line is around 12,000 souls, of whom about 70% are Aboriginal and Islander.[6] There are serious problems estimating this population as Census data on Aboriginal and Islander Councils' populations are included in the population figures for neighbouring 'mainstream' LGAs.[7] This is another aspect of the 'greyness' of the Community Councils' status, along with the Councils not featuring on maps as separate LGAs. The EARC has made recommendations in regard to both of these matters.
The population figures, when viewed alongside LGA maps, beg the question of disenfranchisement. With Aurukun Shire and the DOGITs having been excised from Cook Shire in 1978 and 1984 respectively, Cook Shire went to its first elections in 1988 free of the encumbrance of a black majority. For over twenty years, whilst the Aboriginal Communities had constituted Cook Shire, the Shire had been run by an administrator. Noel Pearson cites archival letters from Premier Nicklin and other ministers and administrators in Qld in the early 60's proving the Qld Government's clear intention at that time to stop Aborigines controlling Cook and Burke Shires.[8]
The excision of the DOGITs and Aurukun Shire was the clear solution to maintaining an all-white council in an area where Aboriginal people greatly outnumber others. hi the 90's, effective disenfranchisement of the Aboriginal population in the Cape continues under the guise of 'white democracy'. The white minority in the Cape argues that as the DOGITs have been given full LGA status everyone is equal and happy to have a few thousand white folks continue to control Cook Shire.
Smallwood v Qld showed that everybody was not happy and that some inhabitants of the DOGITs wanted a vote in the surrounding Shires which they considered themselves to be part of. This raised the fearful spectre of reciprocity as recognised by Barbara Miller in her discussion paper for the EARC in 1986[9]: if the inmates of Yarrabah voted in Mulgrave Shire, then surely Mulgrave Shire could, "start imposing building and other regulations on the community which it might not be able to meet."[10] Once raised, the bogey of reciprocity has continued its threatening dance into the 90's.
In an ideal world with competent parliamentary draftspersons there is no reason why legislation and regulations could not allow the residents of the Communities to be completely self-governing and still have a vote in the Shires that contain them. The white-right will claim that this is giving Aborigines two votes, but that is not necessarily so. The DOGITs are, after all, Councils holding and administering land in trust. Unlike Shire Councils which merely make land use decisions, the DOGITs have freehold title to the land.
Tom Sherman, Chairman of EARC, explained that this was a possible option open to Napranum and Mapuna community leaders at Weipa; though he went out of his way to discourage it:
"I'm not saying it's impossible, but it might be difficult to achieve a right to vote in Cook Shire, and at the same time preserve complete autonomy for the council. I'm not saying it can't be done, but it might be difficult."[11]
EARC went through the Cape making a series of pit-stops at all the DOGITs and Aurukun and Cooktown. A worrying element of its approach was the continuous presentation of the dual voting system as a threat to Community autonomy. Commissioner Sherman repeatedly threatened the Aboriginal Communities with loss of autonomy if they opted for dual voting systems.[12] Is it any wonder that the Aboriginal Communities rejected the option under such threats? The end result is that up in Cape York, "you've got a minority population which is dominating a majority population in the region, and the actions and desires and aspirations of that minority population have traditionally overcome what the majority of the people might want: in fact the majority have never been asked."[13]
In Injinoo, the notion was raised that the communities at the tip of the Cape might have the right to veto Cook Shire or Tones Shire decisions regarding roads and land management north of the Wenlock River.[14] After EARC had apparently settled on joint Agreements for land management between the Cook Shire and the DOGITs, Cook Shire raised the idea of three such Joint Agreements.[15] Tom Sherman has declared himself to "have a lot of sympathy with Cook Shire Council"[16] so it was not surprising that a proposal for three Joint Agreements emerged.
EARC recommended that appropriate amendments to the Community Services (Aborigines) Act and the Local Government Act be pushed through so that Aboriginal Councils could finally be established as completely equal LGAs with rights to enter into Joint Agreements.[17] It was recommended that the Cape be carved up into three 'areas of interest': one in Northern Cape York consisting of Injinoo, Umagico, New Mapoon, Lockhart River and Cook Shire Councils; a Western Cape Area consisting of Napranum, Mapuna, Kowanyama, Lockhart River, Pormpuraaw and Aurukun and Cook Shire Councils; and an Eastern Cape Area consisting of Wujul Wujul, Hopevale, Lockhart River and Cook Shire Councils.[18]
The Joint Agreements that EARC sees emerging would include the right of veto on any land management decision proposed by one of the Councils involved if there was objection by two or more Councils in the Joint Agreement Area groupings.[19] That is. a step ahead of the mere consultation with the DOGITs and the Joint Consultation Committees seriously suggested by Cook Shire as late as September 1991.[20]
Under Article 27 of the United Nations International Convention on Civil and Political Rights (ICCPR), Australia and QId have a duty to give active support to the Aboriginal peoples to maintain their languages, religions and cultures. Norway, in the course of deliberations over the Sami (Lapp) people has concluded that, "there is no doubt ... that Article 27 authorises a claim to positive discrimination."
Since 1984 when the Norwegian Parliament issued its justly famous Sami Report, it has been generally accepted internationally that Article 27 means that the Plurinational State is responsible for providing the material basis for the continuation of Aboriginal cultures. In the first Sami Report the Norwegians held that under Article 27:
"... an ethnic (aboriginal) community is entitled in one respect to a certain degree of autonomy (nonintervention on the part of the State), and in another to government support for maintenance of the cultural activities (positive rights), and in yet another, to be allowed to participate in the rest of community life on an equal footing with the majority population (the principle of non-discrimination)."[21]
The Norwegian interpretation of Article 27 has resulted in the establishment of a Sami Parliament in Northern Norway, and a dual voting system being implemented where the Sami vote in both the General Norwegian elections and in their own Sami elections.[22] Such a situation of dual franchise ought to be established in Cape York, along with joint Agreements. In this scenario, the DOGITs would remain autonomous LGAs and their residents would be simultaneously empowered to vote in Cook or other Shires that might emerge in the Cape.
It should also be mentioned that ICCPR Article 27 is a good response to doubts about positive discrimination raised by the High Court in Gerhardy v Brown [1985] HCA 11; (1985) 59 ALJR 311. The case has been looked upon by the Cape communities as a brake - they ought rather to soar past it on the wings of Article 27.
The last recommendation of the EARC however, throws light on the very temporary nature of the arrangements suggested in the Cape:
"The Commission further recommends that the proposal by Aurukun Shire Council (S 1307) modified by excluding the town of Coen and its environs (T 2366) should be examined by an on going boundaries review commission as a priority case."[23]
In Submission 1307 Aurukun Shire puts its case to extend its boundaries east to the Great Dividing Range and to take in the mining leases along the Gulf coast up to the borders of Napranum. On March 14, 1991 Pormpuraaw Council "agreed that Aurukun Shire Council's administrative boundary be extended to Edward River abutting on to Carpenteria Shire's boundary, which will remove Cook Shire from the West Coast of Cape York."[24]
Lockhart River DOGIT asked EARC to be allowed dual voting rights in an extended Aurukun Shire. Lockhart River further "requested that Aurukun's proposed northern boundary be extended to include the remaining area of the Cook Shire (north of the Wenlock River) because Cook Shire does not maintain roads in that part of its area."[25] As regards this latter proposal it seems that there are deep-seated arguments between Aurukun Shire and the Napranum Council about land and ownership.
On 27 February, 1991, "Weipa Napranum sought from Aurukun Shire what it claimed was their residents' traditional land. No agreement was reached because Councillors at that meeting maintained there were residents of Aurukun with equal interest in the land."[26] That EARC has recommended priority be given to the Aurukun proposal indicates there will be some shake up in the Cape in the near future. This seems inevitable. Perhaps it will be related to the secret negotiations between the Qld Government and Comalco over the 'normalisation' of Weipa. This might result in a Weipa Shire in the Northern Cape, alluded to by Commissioner Sherman at the Aurukun meeting.[27]
In the midst of the Aurukun extension is the town of Coen where the white population live in fear of such an expansion, even claiming that the endemic crime situation in Aurukun will expand across the peninsula with Aurukun administration.[28] All the historic fears of a 'black backlash' that palpably haunt the white minority in the Cape have come to the fore.[29] To the extent that EARC has recommended Coen be excluded from the Aurukun proposal - that is to say it be maintained under a white-controlled LGA - it is pandering to racism. In light of actions such as this, one can only concur with Tharpuntoo Legal Service Aboriginal Corporation's claims that EARC is operating in a racist manner.[30]
The Agreements are guaranteed to be only temporary measures after all, or so the EARC Chairman assured the residents of Pormpuraaw.[31] The EARC proposals are of the 'some beats none' variety. They are quite positive, but they do not go nearly far enough. They leave in place a glaring malapportionment in local government in Cape York to the extent that some have suggested it would be totally unwarranted to allow any more elections to be held there when the results will so seriously breach democratic principles.[32] EARC's grasp of the dilemma seems to have been quite shallow, and the fact that they had "limited time"[33] is no excuse, though it may reflect the Goss regime's profoundly superficial handling of Aboriginal issues.
Noel Pearson's original submission to EARC calls for an historical accounting:
"That the Commission comprehensively researches the history of Aboriginal disenfranchisement in local government in Queensland. The records of the Department of Aboriginal Affairs and the Department of Local Government must be investigated in order to uncover the facts concerning the deliberate disempowerment of black people in local government in Queensland."[34]
The Commission seems to have been loathe to approach the matter, though it lies at the heart of this darkness.
Disenfranchisement remains the key issue for consideration, and the one which EARC has studiously avoided. The mere according of equal status to the DOGIT Councils in an attempt to whitewash the disenfranchisement issue[35] is hedging the central issue of denying Aboriginal control of the local government mechanisms in the entire Cape. Appeasement of racists in Cooktown, Coen and Weipa by guaranteeing a white-controlled LGA is apartheid by any other name.
When the local government miasma in the Cape is cleared up, Weipa is 'normalised', Aurukun perhaps expanded, the Aboriginal Land Rights Act return of lands in full swing and Cook Shire cut down to size, we will possibly see joint Agreements that will not be temporary and not designed to protect white privilege and maintain disenfranchisement of the Aboriginal population of the Cape. EARC certainly has not hit the spot with this pseudo-inquiry.
Perhaps, if it survives to another term, the Goss regime will start a reform process in the Cape that will be so open as to include the public in the Weipa 'normalisation' discussions and ensure that Aboriginal disenfranchisement remains the centre of focus. In the interim, the disenfranchisement shell-game goes on.
[1] Human Rights Commission, Community Services (Aborigines) Act 1984, Report No 9. AGPS, Canberra, 1985.
[2] Electoral & Administrative Review Commission (EARC), Local Authorities External Boundaries Review, Public Submissions 11, N. Pearson, 5.2142, 5-21-90, p.7. (Henceforth EARC, Submissions by volume, date and number).
[3] Smallwood v QId [198511 Qd. R.477 at 480.
[4] EARC, Pearson, N., 52142, op cit, p.10.
[5] Neal v R (1982)149 CLR, 305 0310.
[6] This is calculated from statistics in EARC, Report on Local Authorities External Boundaries Review 2, p362 and Appendices 3. Appendix 1 p.18. (Henceforth EARC Report by volume).
[7] EARC, Report 3, p.361.
[8] EARC, Pearson, N., 52142, op cit, pp 3-6.
[9] Barbara Miller, "The Aspirations of Aborigines living at Yarrabah in Relation to Land Management and Human Rights", HRC Discussion Paper, 1996.
[10] Ibid, p.60.
[11] EARC, Public Hearings, Local Authorities External Boundaries Review, Transcript of Proceedings, p.2400. (Henceforth EARC, Transcripts, date, place, page).
[12] As well as Napranum, op tit, EARC Transcripts, Lockhart River, p 2300; EARC Transcripts, Kowanyama, p2466; EARC Transcripts, Wujul Wujul, p1559.
[13] Michael Duffy: EARC Transcripts, Hopevale, p2493.
[14] EARC Transcripts, Injinoo,15-8-91, p.2324.
[15] EARC Transcripts, Cooktown, p.2537.
[16] Ibid, p.2494.
[17] EARC, Report 2, p.391.
[18] Ibid, p.389.
[19] Ibid.
[20] EARC Transcripts, Cooktown, 5-9-91, p.2540.
[21] Summary of the Firs, Report from the Norwegian Sami Rights Committee, Royal Norwegian Embassy, Canberra, 1984, pp. 17 and 19.
[22] Brantenburg, Terje, "Norway: Constructing Indigenous Self-Government in a Nation-State", in Jull, Peter and Roberts, Sally, The Challenge of Northern Regions, NARU, Darwin, 1991. pp. 66-128.
[23] EARC, Report 2, p.391.
[24] EARC Submissions 13, 52510,15-3-91.
[25] Ibid, Vol 11, S.2235,5-3-91, p.8.
[26] Ibid, p.2.
[27] EARC Transcripts, Aurukun, 22-8-91, p.2383.
[28] EARC Submissions 11, S.2112, Coen Progress Association, 30.1-91, p.6.
[29] EARC Transcripts, Cooktown, 1410.91, see pp.2619-2624 and pp.2636-2642 In particular.
[30] EARC Submissions 13,22-3-91,S.2459.
[31] EARC Transcripts, Pormporaaw, 23-8-91, p2440.
[32] EARC Submissions 13, 52459, p.3.
[33] EARC Transcripts, Cooktown, 1410-91, p2603.
[34] Ibid, 11, 52142, pp.15-16.
[35] Ibid, S.3168, Local Government Association of Queensland, 30-9-91, file 010/0, unpublished.
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