Fraser Island News
About Fraser Island's World Heritage Listing
Last Update: Unknown
Fraser Island was World Heritage Listed in Dec. 1992 in recognition of the island's indigenous/traditional ownership, rainforests, exceptional sand dune systems and its pristine freshwater lakes. The UNESCO World Heritage Commission required that for Listing, Australia recognize traditional ownership of the island by the Dalungbara, Batchalla and Ngulungbara Aboriginal Peoples.
A submission, "COMMISSION OF INQUIRY INTO THE CONSERVATION, MANAGEMENT AND USE OF FRASER ISLAND AND THE GREAT SANDY REGION - SUPPLEMENTARY VOLUME - VOL. 1: PART 1 May 1991", to the World Heritage Convention was prepared for the Queensland Government by Barrister Justin Malbon and others, part of which reads:
Page 65 " APPENDIX 3: A DISCUSSION OF FRASER ISLAND AND THE GREAT SANDY REGION LEGAL BASIS FOR CLAIM
1.1 PROPOSITION It is proposed that :-
(i) The Aboriginal people who have an interest in the land at Fraser Island and the Great Sandy Region referred to in this submission ( the "Aboriginal people" ) have a title to the land on Fraser Island recognizable by the common law which is based upon:
(a) their possessory title from which they have been forcefully and wrongly deprived, or
(b) their pre-existing Aboriginal title which has neither been surrendered nor validly extinguished by legislation.
(ii) The legal rights of the Aboriginal people based upon their title have not been time barred by the operation of the Statute of Limitations or the Doctrine of Laches.
(iii) The Commission is afforded by this inquiry an unique opportunity to recommend a process by which issues relating to the Aboriginal claim to Fraser Island and the Great Sandy Region can be dealt."
And on Page 67 " Although under Australian law the Crown holds ultimate sovereignty over Australian territory which provides the basis for its law making authority and the Crown holds prima facie title to all land, this does not of itself extinguish or abolish any underlying possessory interests in land. The burden is on the Crown to establish its title against a person in possession of the land.
Evidence will be provided to the Commission to establish that the Aboriginal People were in possession of Fraser Island and Great Sandy region after the Crown made its claim of sovereignty over Australian territory, including Fraser Island and the Great Sandy Region. Thus, assuming prior possession the Aboriginal people hold possessory and presumptive title from which it will be shown they were forcefully and wrongfully ousted by the Crown, its agents and others."
And on Page 78 " 1.5 CONCLUSION ... There is a strong body of legal precedent which recognizes that title can be derived from possession which has not been wrongly derived. Such title can be surrendered or extinguished by specific legislation. Alternatively, in the absence of binding Australian authority, the common law in the other former British colonies can be relied upon to determine the nature and existence of Aboriginal title. The decisions of the Supreme Courts of the United States and Canada and the Court of Appeal of New Zealand emphasize that the European claim of sovereignty over the land now forming their nations did not of itself abolish or otherwise extinguish the underlying Aboriginal possessory title in the land.
The legal entitlements to the land at Fraser Island and the Great Sandy Region were never voluntarily surrendered by the Aboriginal people. No legislation has been passed extinguishing their possessory or Aboriginal title, with the possible exception of legislation granting fee simple title. In any event the statute of limitations may prevent Aboriginal claimants pursuing those who hold fee simple title. However, the Crown cannot maintain a defence using the Statute of Limitations against the Aboriginal people in relation to Crown land as such a defence is not available to a trustee against its beneficiaries. The Crown stands as a trustee or fiduciary for the benefit of the Aboriginal inhabitants of Australia. ........"
