New law claim on Traveston Dam
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Arthur Gorrie
5th November 2009
MARY Valley indigenous leader Eve Fesl yesterday dropped a bomb on the Traveston Crossing dam project, demanding a stop work order in response to claimed government breaches of its own cultural heritage laws.
Dr Fesl yesterday claimed the government had ignored the rights of her people under the legal concept of contemporaneous history.
She said the government and its dam construction company, Queensland Water Infrastructure Pty Ltd, had ignored this concept, which she says is essentially the provable cultural claims of people who really are from the Mary Valley.
She says some Native Title claimants “would not even know where the Mary Valley is,” if they had not been told by QWI.
She says her family can prove their cultural claims with photographs of family gatherings on the Mary River.
She says the government has chosen to deal only with claims of “traditional” links by people who may never have had family members living in the area.
She has also accused some rival Native Title claimants of breaking that law by approaching Mary Valley landowners and seeking to search the properties for relics.
“Native Title does not apply to freehold property. Native Title is extinguished by freehold and landowners affected by that should join our claim,” she says.
Ms Fesl says QWI has breached its own Act in Sections Nine and Ten, which she says establishes a need for the government to deal with people who have contemporaneous history in the area.
“That’s our place. My mother was born on the Mary River and so were my aunties and uncles.
“We can produce photographs of family meetings on the river.
“That’s contemporaneous history,” she said.
“The people with that history are the aboriginal party under that law.
“Some of the other groups claiming Native Title didn’t even know where the Mary River was.
“We will not agree with the flooding of the area where we have burial sites. We have history there and we are not giving it away.
“We took QWI to Court – and its shareholders are the Premier and the Treasurer – and it shows how nasty they are that they tried to send us to jail for opposing them
“They had a QC and barrister and lawyers and they beat us on that argument, but normally the parties pay their own costs.
“They wanted $100,000 costs and we would have gone to jail because we wouldn’t have been able to pay.
“Fortunately the judge rejected their claim,” she said.
Dr Fesl said she was now demanding that the government’s Department of Environment and Resource Management place a Stop Work Order on the dam.
“They’ll probably say they want to think about it, but if I haven’t heard from them within 24 hours, I want an interim order,” she said.
Government comment will be sought today.
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Our View
5th November 2009
KEVIN Rudd may not want to intervene in the Traveston Crossing dam decision to be made soon by his Environment Minister Peter Garrett.
KEVIN Rudd may not want to intervene in the Traveston Crossing dam decision to be made soon by his Environment Minister Peter Garrett.
And he may have a point in arguing that he should keep out of it, the law requiring the decision to be made by Mr Garrett on the basis of scientific evidence rather than political string pulling.
But nothing, it seems, will stop Eve Fesl and her Gubbi Gubbi people.
The courageous and arguably the only genuine claimants to Native Title in the area say other groups came into it, without having to prove the genuineness of their arguments, after the Bligh Government offered a $3 million incentive to any Native Title claimants, proven or not, who were willing to sell their claimed heritage.
But Dr Fesl says her people are the only ones who can prove that other very important source of indigenous power in the decision – the concept of contemporaneous history.
This is separate from Native Title and essentially means that she and her people can prove that they actually lived there and did not just come out of the woodwork to take the state government’s money.
She has argued that it is the people with contemporaneous history, which is family history in the area, who are the indigenous parties entitled to act under law.
Further to that, she says the government’s dam construction and negotiating company, QWI, has acted illegally in ignoring this aspect of the relevant law.
Unlike Native Title, which is extinguished by freehold ownership and which does not have to be proven, contemporaneous history is what Dr Fesl and her people can prove with family photographs of gatherings and meetings on the river where her mother and aunties and uncles were born.
The Gympie Times will be seeking comment today from the government and QWI.
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‘No dam claim’ says government
6th November 2009
THE Queensland Government has dismissed claims by Mary Valley indigenous elder Eve Fesl that she has rights under cultural heritage laws, saying there is no legal basis to her call for a Stop Work order to be placed on the Traveston Crossing dam proposal.
Dr Fesl dropped a bombshell on the dam project this week, claiming the government had ignored her Gubbi Gubbi people’s rights under the concept of contemporaneous history.
She demanded that the Department of Environment and Resource Management issue a Stop Work order in response to what she said was a legal breach.
But the Department of Environment and Resource Management yesterday said the bomb was a fizzer.
A spokesperson flatly rejected the claim and said that Dr Fesl’s people no longer had any claim.
“The Department of Environment and Resource Management is unaware of any reasons or grounds in the request for a Stop Work order on the Traveston Dam,” the spokesperson said.
“An Indigenous Land Use Agreement registered in the National Native Title Tribunal includes a cultural heritage management agreement providing for the appropriate protection and management of cultural heritage.
“The Agreement satisfies the requirements of the Aboriginal Cultural Heritage Act.
The Agreement was signed with the Kabi Kabi people who assert they hold native title in the area.
“The Aboriginal Party was involved in the early negotiations but withdrew. The Aboriginal Party objected to the registration but the objection was dismissed by the Native Title Tribunal,” he said.
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