by Chris Griffith
Published 5 May 1996
As Chris Griffith reports, a second and much-needed heads of agreement forged within the Aboriginal community elsewhere may have better luck.
When Federal Parliament passed the Native Title Act in 1993, few people realised the trauma it would create in the home town of its most prominent advocate, Noel Pearson.
Mr Pearson is the high-profile executive director of the Cape York Land Council. He was a key player in the shaping of the new Mabo laws.
In 1993 while most of white Australia focused on whether Mabo meant Brisbane, Fraser Island, or indeed their backyard was claimable native title, Aboriginal people faced a glaring new divide.
There were those within the same community who could validly claim native title, and those who could not.
There has been no better place to witness this divide and its consequences than in Mr Pearson's home town of Hope Vale, 200 km north of Cairns.
Early this year, a miracle took place in Cooktown when an historic agreement was forged between the 11 Hopevale clans, the culmination of work by the Cape York Land Council and legal firm Phillips Fox.
Three weeks beforehand, Hope Vale had witnessed yet another spate of terror and lawlessness. Eleven people were arrested for offences including arson, drugs, firearms, and grievous bodily harm.
On the night of Thursday February 1st, people were shot at, houses were wrecked and torched, people threw rocks at one another in the street, and a car was firebombed.
Tribal elder, Stan Darkan, 71, whose Dhubbi Warra native title claim includes the surrounds to Hope Vale, said his daughter Gloria's house was set alight, and his daughter's son was speared while he slept.
A week beforehand, Mr Darkan said local thugs had forced his son's vehicle off the road, and then stripped and assaulted him. They left his son bleeding and almost unconscious. He said youths had also terrorised his daughter while at home on a dialysis machine.
That's why the Cooktown agreement was a welcomed development. While Mr Darkan said this particular episode of violence was about family matters and not land matters, land claims had certainly inflamed inter-family tensions.
Also tied up in the infighting are claims involving sections of the Cape Flattery region, the site of the world's largest export silica mine run by Mitsubishi.
At stake is millions of dollars of privately negotiated royalties, currently around $600,000 annually which flows to the Hope Vale Aboriginal Community Council. The royalties are expected to last for around 100 years.
Whether these privately-negotiated royalties continue to flow to the Hope Vale's indigenous-run Community Council, or whether they go to traditional owners has defied negotiation in the past. The royalties issue was still to be settled.
The land conflict began in 1994, when Mr Darkan and community police officer Gordon Charlie approached the Cape York Land Council to handle their claims. They said they were met with vehement discouragement.
Instead, they sought legal representation through the Tharpuntoo Aboriginal Legal Service in Cairns -- even though Tharpuntoo was not funded to represent native title claimants. Tharpuntoo lodged both claims with the National Native Title Tribunal, and both were accepted over a year ago.
Tharpuntoo's willingness to represent Mr Charlie and Mr Darkan in contrast to the Cape York Land Council's reluctance sparked a bitter feud between the legal services. Tharpuntoo claimed Mr Pearson and the Cape York Land Council had exercised a conflict of interest.
Early last year, the feud spilt over to the ATSIC Peninsula Regional Council, which moved to deny Mr Charlie or Mr Darkan funding of $10,000 in 1994-5, and $40,000 in 1995-96 for preparing and lodging their claims.
The regional commissioner for ATSIC in North Queensland is Mr Pearson's older brother, Gerhardt Pearson.
And in April last year, Mr Noel Pearson wrote to then Aboriginal Affairs' minister Robert Tickner arguing that the Tharpuntoo Legal Service should not be funded to process the claims.
Tharpuntoo's role processing native title claims was eventually overtaken by revelations in May of financial mismanagement to the tune of $700,000, an issue currently being examined by the Howard government's audit.
Mr Charlie's and Mr Darkan's native title claims then pass into the hands of private legal firm Phillips Fox in Cairns. But attempts to resolve differences last year proved unsuccessful.
Given that unhappy history, it is remarkable now that everyone has agreed to bury the hatchet.
Ms Denisenko said Mr Charlie, Mr Pearson, and the Cape York Land Council had ended their conflict and everyone had agreed to support the claims.
Under this Heads of Agreement, signed in February, the Cape York Land Council will be the agent for all claims by the 11 clans. However the council will instruct Phillips Fox who will "make the native title and Aboriginal Land Act applications as soon as possible".
This also means the Mexican stand-off between the legal services is over. They will now combine their talents to resolve the native title issue.
Phillips Fox solicitor Georgia Denisenko said Mr Charlie's and Mr Darkan's claims would be joined by a claim lodged for all 11 clans.
The agreement says that while clans will hold their native title independently, they will allow each other "to travel over, hunt, camp, fish, and gather on each other's clan estates".
And in an attempt to repair relationships within Hope Vale, the same rights of access enjoyed by native title holders will be extended to those who have no claim to native title.
The clans have also agreed to the transfer of Hope Vale to freehold. This means the Hope Vale Council will be eligible for a return of around 1.6 percent of the pre-tax gross royalty paid by Mitsubishi to the state government -- up to around $320,000 per year, depending on the mine's output.
Of course, there are snags still to negotiate, the fate of the private Mitsubishi royalties being the big one. But given time, the agreement hopefully will dampen the violence that has dogged the town in recent years.