Musgrave Park claim to be tested in court

Amy Remeikis Brisbane Times January 11, 2013

Indigenous people's claim over a section of Brisbane's Musgrave Park could soon be tested in court for the first time.

The area in question is a small parcel of land within the park, listed on Brisbane City Council documents as 'Area C' in a Deed of Grant in Trust (Dogit), which the Beattie government issued in 1999.

The small area, which is where the Sovereign Aboriginal Embassy was established in March last year, is listed as "for Aboriginal purposes and no other purpose".

However police, under the direction of the Brisbane City Council, moved in to evict the tent embassy and its supporters from the site in May.

Wayne 'Coco' Wharton, Bogaine Skuthorpe-Spearim and Hamish Chitts were among those arrested for contravening a formal police direction to leave the area and not return until council officers cleared away the tents and a 'sacred fire', which had been built on the land.

On Friday the trio returned to Brisbane Magistrates Court, buoyed by nearly 20 supporters, and brought Barrister Andrew Preston to argue their case; that because the piece of land they were removed from was designated as for aboriginal purposes only, it was unlawful for the police to remove them.

They did not submit their entire argument or all the documentation necessary to support it, nor were they required to.

Mr Preston told the court his clients still had to be shown to be right; their argument is reliant on the court's interpretation of the definition of a "public place" under the applicable legislation and how that related to the deed of grant in trust.

While the vast majority of Musgrave Park is listed as a public place, if Mr Wharton and his supporters are right the parcel of land they were removed from may not be available for use by general members of the public.

The trio are testing the definition of public as in the legislation used to arrest them. If the land is not public, then they did not commit an offence.

Mr Preston had flagged the argument during an application to modify his client's bail conditions until the matter could be decided either way. As it stands, the trio are not allowed to enter the park.

Magistrate John Costello, who had been expecting to rule on a simple court matter, told Mr Preston he would need time to consider the issue and adjourned the case to a date yet to be fixed.

Media release

    Brisbane Aboriginal-Sovereign Embassy January 9, 2013

Sovereign Embassy supporters to rally outside court

Supporters of the Brisbane Aboriginal Sovereign Embassy will gather outside the Brisbane Magistrates Court this Friday as three Embassy members again face court for defending the Sacred Fire.

Wayne Wharton, Boe Spearim and Hamish Chitts were arrested on December 12 when the Brisbane City Council and over 80 police forcibly evicted the Embassy and desecrated the Sacred Fire.

Since their arrest, the three have been excluded from the Embassy site by the draconian bail conditions placed upon them, which will be challenged in court this Friday. “It is outrageous that these draconian measures have prevented us from carrying out our cultural practice and our responsibility to our people” said Wayne Wharton.

Despite the eviction of the Embassy on December 12 and the continued harassment by police and Brisbane City Council, the Sacred Fire continues to be re-lit and Embassy meetings held each week.

“No matter what they have thrown at us, they are unable to stop this movement. They cannot put out the fire of sovereignty. This is a life and death battle. It is a fight for the lives of our people. The Embassy and the Sovereignty movement give our people strength. That is what the colonial authorities are afraid of and that is why we have a responsibility to keep fighting”.

All supporters of the Embassy have been called on to show their support at the Court – Friday 8:30am outside Brisbane Magistrates Court, corner of George and Turbot Streets.

Deed of Grant in Trust (DOGIT)

A Deed of Grant in Trust (or DOGIT) is the name for a system of community-level land trust established in Queensland to administer former reserves and missions. They came about through the enactment by the Queensland Government of the Community Services (Torres Strait) Act and Community Services (Aborigines) Act in 1984 by the Queensland Government, allowing community councils to be created to own and administer former reserves or missions under a Deed of Grant in Trust (DOGIT).

The trusts are governed by local representatives who are elected every three years to councils called Incorporated Aboriginal Councils. These councils have the power to pass by-laws, appoint police for the community, and are responsible for maintaining housing and infrastructure, running the Community Development Employment Program and issuing hunting, fishing and camping permits. As such, they work much like a local government, but are different in character as they own the land they administer on behalf of the community.

Read More: Wikipedia

The Court Review

Brooke Baskin Daily Telegraph 11 January 2012

Bogaine Spearim, Hamish Chitts and Wayne Wharton appeared in Brisbane Magistrates Court today in an attempt to have bail conditions amended that prohibit them from going to Musgrave Park. The trio were arrested when police dismantled the Musgrave Park Aboriginal Sovereign Embassy in a midnight raid last month. Source: The Courier-Mail
Barrister Andrew Preston argued the land the Aboriginal people occupied at Musgrave Park was freehold and granted to the Brisbane City Council in trust for Aboriginal purposes on July 29, 1999.

He said a written agreement had been drafted between Aboriginal people and the Brisbane City Council allowing use of a small parcel of the land, including a ceremonial fire.

Mr Preston said the area occupied by Aboriginal people at Musgrave Park was not public land and questioned whether the police had any power to direct the defendants to move off the land under the terms of Police Powers and Responsibilities Act.

"It's freehold land - it's not a park - and it's colloquially called Musgave Park," Mr Preston said.

He said the prosecution case was "far from strong and robust".

Mr Preston argued the three men should be afforded access to Jagera land at Musgrave Park to attend "legitimate community activities" including meetings and functions while the matter before the courts was being finalised.

Prosecutor Sergeant Adrian Lang said the council was the governing body over Musgrave Park, adding it was open to the general public, but by-laws prevented structures such as tents being erected or fires being lit without permission.

He said an authorising officer from the council attended Musgrave Park in the early hours of the morning on December 8 and sought assistance from police to remove a large number of people gathered by fires and in tents.

Sgt Lang said defendant Wharton stood facing police and council officers and "screamed" for them to show him a permit allowing them to be on the land.

He said Wharton and several others linked hands and walked backwards towards the ceremonial fire in the park, yelling the police had no right to be on the land.

Outside of the park, police spoke with Wharton and gave him a formal direction not to enter Musgrave Park until 12pm, Sgt Lang said.

"He was told if he entered again he would be contravening that direction," Sgt Lang told the court.

"The defendant said he did not recognise the land as Musgrave Park."

Sgt Lang said Wharton's co-accused were charged in similar circumstances on the same night.

Brisbane Magistrate John Costello adjourned the bail application hearing to a date to be fixed.

"I didn't imagine this application would be accompanied with such complexity," he told the court.

What is the meaning of 'an aboriginal purpose'?
Judgement day for Wayne Wharton and Hamish Chitts will be in Brisbane Magistrates court on 28 March 2014. They are defending their stance have a sacred fire on land for Aboriginal Purposes.