By Shane Roberts and Graham Carter -
Snapshot
- Reports of damage and destruction of culturally significant Aboriginal sites and artefacts has led to debate about the most appropriate legal tools for their protection.
- A recent success story from the Torres Strait demonstrates that the courts will step in to provide urgent protection when a culturally significant site is under threat from development.
- The case also establishes that under the Native Title Act, proposed future acts can be stopped if the court is satisfied there is a real potential of imminent harm.
Recent examples of the damage or destruction of culturally significant Aboriginal sites and artefacts has led to a debate about the most appropriate legal tools for their protection. One recent success story wherein a creation ‘story site’ on Prince of Wales Island (Muralug) in the Torres Strait was protected from a safe harbour development, demonstrates that the courts are willing to step in and grant urgent protection.
Background
In 2001, the Kaurareg people obtained a determination granting native title rights and interests over an area which included Prince of Wales Island (Kaurareg People v State of Queensland [2001] FCA 657 (‘Kaurareg determination’)).
An Indigenous Land Use Agreement (‘ILUA’) was also entered into between the local Torres Shire Council (‘TSC’) and the Prescribed Body Corporate, being the Kaurareg Native Title Aboriginal Corporation RNTBC (‘KNTAC’) on 9 October 2000. The 2001 determination related to land above the high watermark within the determination area – i.e. it did not include sea rights which remain the subject of current proceedings in the Federal Court (‘the Sea Claim’) (Savage & Ors on behalf of the Kaurareg People #2 v State of Queensland QUD10/2019).
Proposed development
In 2019, the TSC had approved road improvement works, as well as its own development application for a safe landing marine facility in the vicinity of an important Indigenous story site at Waubinin Mabauzi Lag and Waubinin Malu, otherwise known as Pearl Harbour. This was despite the objections of the KNTAC and others including a member of the Sea Claim group, Milton Savage. The TSC gave notice that certain works would imminently commence in the vicinity of the story site.
Warrior Waubin and the story behind the story site
The mythic Kaurareg warrior, Waubin, is believed to have travelled from central Australia to the Torres Strait and resided on Muralug with a number of his Ippi (wives) and roamed the island hunting, and from time to time fighting with other warriors. One key Waubin story relates to his final battle and is connected to an area known as Waubinin Mabauzi Lag (Waubin walked down) and Waubinin Malu (the Sea of Waubin) – collectively considered ‘the story site’. Waubinin Malu is also known as Pearl Harbour.
When Waubin’s leg was cut off in battle, his blood flowed down the hill at Waubinin Mabauzi Lag and into the sea at Waubinin Malu. There is a reddish tinge still visible at Waubinin Mabauzi Lag where vegetation will not grow, and there are fast flowing tides at Waubinin Malu created by Waubin when he walked into the sea that protects Muralug.
Application for injunction
Although there had been correspondence between the TSC and legal representatives of the KNTAC regarding the cultural significance of Waubinin Mabauzi Lag and Waubinin Malu, the fact that the works for the safe landing marine facility were now imminent meant the only real option left available was to make an urgent application for an injunction to prevent the commencement of works. The applicants were the KNTAC and two senior Kaurareg Elders who agreed to be personally involved in the proceedings, Mr Milton Savage, Chairman of the KNTAC and member of the Sea Claim group and Ms Enid Tom, former Deputy Chairperson of the KNTAC, current KNTAC board member and landholder. The material was prepared on an urgent basis with the injunction hearing commencing at 5:03pm on that Friday, 17 May 2019, in the Federal Court in Brisbane before Logan J (QUD315/2019).
