Elder John Jones: Fraser Island - Stolen Horses ____

23 Oct 2003
MS 194 Range View Drive
Gatton Qld 4343
Ph 07 54622337, Fax 07 54622996
Email admin@brumbywatchaustralia.com, Web www.brumbywatchaustralia.com

Attention Mr Craig Allen, Assistant Ombudsman
Queensland Ombudsman
GPO Box 3314
Brisbane Qld 4001

Dear Sir,

Reference is to your letter ref. 2003/06871, 10 Oct 2003, regarding various complaints that I discussed with you at the interview at Gatton on Wed 8 Oct 2003.
This letter is in reference to Complaint - Item 1. The EPA has acted unlawfully in removing 11 wild horses (brumbies) from Fraser Island.
? Should you or your office require an interview with me in regards to these issues, or to discuss international law, Indigenous Human Rights etc, please contact me.
? Should you or your office require a personal interview with Elder Mr John Dalungdalee Jones of the Dalungbara Aboriginal Tribe of Fraser Island, the owner (and with his family) of the brumbies, he would available upon request. Elder Jones does not have a telephone but can be contacted at 37 York Parade, Spring Hill Q 4000. He can be contacted through me, but with some time delay.

Item 1: The Environmental Protection Agency (EPA) has acted unlawfully in removing 11 wild horses (brumbies) from Fraser Island.

General background to unlawful removal of 11 brumbies:
Fraser Island is world heritage listed and thus comes under international treaty/law.
Some time in 2001, the Queensland Parks & Wildlife Service (an entity of the Environmental Protection Agency) called for expressions of interest in the removal of the brumbies from Fraser Island.
Ms Shirley Crawford (also known as Ms Gott), and Mr Peter Fischer of the Waler Horse Society of Australia approached the QPWS over the removal of these brumbies.
A letter of response to them from QPWS is attached. 1 (Bold numbers refer attachment numbers)
I also approached the EPA/QPWS about the removal of these brumbies, and put in a submission, but soon after discovering the complications and requirements of removing these brumbies because of international law, declined my interest in removing them.
Soon after, I advised Environment Minister Dean Wells at his office in person, of the requirements under international law before any actions in regards to these brumbies could be commenced.
Environment Minister Deal Wells' exact response to me was "I'll look into it".
I have a witness who was with me at this meeting who can testify to his reply.
Ms Gott was the 'successful' tenderer to the QPWS in removing these brumbies.
Refer attached newspaper article. 2
Some time around September 2003 Ms Gott caught eleven brumbies on Fraser Island in the Orchard Beach township area. I believe she has these brumbies on her property near Crows Nest, Queensland.
Elder Jones and his family are the rightful and legal owners of these brumbies through possessory title to Fraser Island under common law, and also Elder Jones has ancestral connections with Mr Harry Aldridge, who brought horses to the island in the 1870's to breed horses for the Indian army.
A number of horses escaped, leading to the first brumbies on the island.

A number of Acts, Policies and Protocols will be discussed briefly:

Letter of response from QPWS to Ms Shirley Crawford and Mr Peter Fischer 1
As per this letter, the following actions were required by the 'successful' tenderer:
1) Determine the ownership of the animals according to the draft policy. This will include consulting the representative bodies of the local indigenous groups.
The ownership was not determined by Ms Gott. Elder Jones, representing approximately 2,000 aboriginals of the Dalungbara, Ngulungbara and the majority of the Batchala Aboriginal Peoples of Fraser Island, was not consulted nor approached.
Justice Shepherdson J. made a Representative Order that Elder John Jones represent the Dalungbara, Batchala and Ngulungbara Aboriginal Peoples of Fraser Island and Wide Bay area. 14
The EPA/QPWS did not confirm that ownership had been determined.
2) If an owner or owners is identified that they provide written consent to these animals being relocated.
The EPA/QPWS has not provided any such 'written consent' in their defence of removing these brumbies.
6) Advertising the intent to remove the horses in the Courier Mail (Brisbane) and the local Fraser Coast Chronicle Maryborough for a period of four weeks, including any ownership consideration.
The EPA/QPWS did not ensure that this action was carried out.

The EPA/QPWS has failed in satisfying the legal requirements of the Queensland Nature Conservation Act 1992
Section 6 of the Act reads: 3.
"This Act is to be administered, as far as practicable, in consultation with, and having regard to the views and interests of, land holders and interested groups and persons including Aborigines and Torres Strait Islanders".
Elder John Jones who represents the Dalungbara, Ngulungbara and the majority of the Batchala Aboriginal Peoples of Fraser Island was deliberately not consulted over the removal of these brumbies.
The EPA/QPWS was very aware of Elder Jones' interests in these brumbies as his legal representative had been in contact with the Environment Minister's department about these brumbies well before these brumbies were removed. Proof of this can be obtained from Elder John Jones.

The Environmental Protection Agency STRATEGIC PLAN 2003–2006 was ignored.
Sections shown below in bold highlight the government's responsibilities towards our indigenous community, and also commitment to international agreements.
Extracts from the Environmental Protection Agency STRATEGIC PLAN 2003–2006 read: 4.
Planning and Reporting Framework (At beginning)
The EPA's Planning and Reporting Framework is the road map by which the agency travels, the template against which its decisions are derived, the scale on which its resource allocations are made, and the guide to focus its organisational agency.
The Strategic Plan is the Environmental Protection Agency's key public document that articulates its future direction and outlines the goals and major areas of focus for the four-year period from 2003-2006. ......... etc.
Introduction (Page 4)
The Environmental Protection Agency's (EPA) Strategic Plan summarises the environmental management activities that will be undertaken in 2003-2006. It spells out the strategic direction for the Agency, records a commitment to certain priorities and provides the basis for detailed planning of activities for the next four years. The Strategic Plan is updated annually to reflect changing Government policy, traditional owner and community aspirations, environmental issues, and to recognise our progress towards strategic objectives. It also supports our activities in fulfilling our legislative and enforcement duties. The Strategic Plan is ............ etc.
Meeting our challenges (Page 10)
...... We will stay abreast of national and international developments to ensure our environmental management programs remain responsive and relevant. We will strive to advance the interests of Queensland and meet our commitments under national and international agreements.
Our goals - Protecting our natural and cultural heritage (Page 12)
....... The Agency will continue to focus on the protection of national parks, marine parks, forests, and World Heritage Areas. Although these areas are regarded worldwide as the foundation for conservation, they alone cannot achieve the magnitude of conservation that is necessary. They need to be complemented by conservation efforts on traditional owner, private, community, and other government lands. ......
.... Queensland's natural environment and the protection of its biological diversity must be managed in co-operation and partnership with Indigenous people. We will actively seek to work together with traditional owners to achieve improved environmental outcomes that are consistent with and respect traditional lore and customs.
To achieve this goal, the EPA will focus on ensuring:
* The diversity and integrity of Queensland's natural ecosystems are preserved.
* The conservation status of Queensland's native species is maintained or enhanced.
* Queensland's historic cultural heritage is recognised and protected.
* Queensland's Aboriginal and Torres Strait Islander cultural resources are recognised and protected. Indigenous peoples' interests and aspirations will be supported. .............
Our goals - Promoting sustainable use of our natural capital (Page 14)
...... The Agency seeks traditional owner involvement in assuring natural capital is managed sustainability
.... Traditional owner knowledge and management practices are recognised and valued in the management of environmental sustainability.
The EPA/QPWS has not recognised nor involved the indigenous people's interests, aspirations and management practices in the management of the Fraser Island to any appreciable degree.
The Queensland Government has had various meetings with the traditional owners or Fraser Island, but these have been merely of a public relations cosmetic nature.
Under World Heritage Listing to the UNESCO World Heritage Convention, international law requires an environmental impact study (EIS) to be done on the brumbies, before any actions in regards to these brumbies could be commenced.
As mentioned previously, I advised Environment Minister Dean Wells at his office, in person, of the requirements under international law in regards to these brumbies.
The Director General of the EPA, Mr James Purtill, was also present at this meeting with Minister Wells and myself. I have a witness to this.

Abuse of Priority Environmental Policies Queensland 2001-2004 produced for the Queensland 2001 election
The section shown in bold below highlight the government's election responsibility towards our indigenous community.
Extract reads:
Policy Position * Adopt a broad policy view of Native Title and other indigenous interests (including cultural rights and interests) that ensures traditional owners are recognised as partners with
the Government in protected areas and are materially supported in negotiations
with the Government. ................
Neither Minister Dean Wells, nor Mr Purtill have ensured that the appropriate traditional owners were recognised as partners with the Government in the removal of these brumbies.

Abuses of the Commonwealth Standing Committee on Environment & Heritage -
The sections shown in bold below highlight the government's election responsibility towards our indigenous community.
Neither Minister Wells nor Mr Purtill have ensured that responsibilities under World Heritage Convention have been carried out.
Extract from Standing Committee reads:
Chapter 4: Management of World Heritage Areas - Commonwealth and State responsibilities
4.1 According to Mr Lucas, Vice Chair of World Heritage for the IUCN Commission on National Parks and Protected Areas, Australia faces challenges in managing its world heritage areas because of the involvement of different levels of government. Some of the difficulties that have arisen between the Commonwealth and the States on this score are discussed in Chapters 2 and 3.
4.2 In addition ......... With so many stakeholders involved with such world heritage areas, there is an added layer of interested parties who, for the best results in world heritage management, should be consulted about the area's management.
4.3 ......... The management arrangements will take into consideration the continuation of the State's management responsibilities for the property while preserving the Commonwealth's responsibilities under World Heritage Convention. ...
4.7 .....the Commonwealth government is the obvious locus of responsibility for the management of WHAs (world heritage areas)

Common law, Aboriginal Possessory Title and ownership of the brumbies
Introduction
Some major personal liberties and freedoms found in modern constitutions and societies have been derived from common law principles which began, and evolved in Britain.
The Magna Carta, 1215AD, guarantees that "no free man shall be taken or imprisoned or dispossessed or outlawed, or banished, or in any way destroyed . . . except by the legal judgement of his peers or by the law of the land."
A number of these inherited 'protective of liberty and freedom' common laws have not been extinguished in Australia. Other basic human rights recognised by common law and enjoyed by Australians are, for example, the right to a fair trial, and to be presumed innocent until proven guilty etc.
In regards to the indigenous/traditional owners of Fraser Island, it is well documented that they were forcibly removed from their land.
Further
Under common law inherited from Britain, the traditional owners, being the Dalungbara, Ngulungbara and Batchala Tribes, had, and still have possessory title to Fraser Island.
I realise that the CMC is not in the position of determining whether possessory title exists or not, however the introduction is to merely give background to the situation at Fraser Island.
Reference is now made to the Commission of Enquiry into the Conservation, Management and Use of Fraser Island and the Great Sandy Region - Supplementary Volume - Volume 1, Part 1, May 1991.
In 1991, the submission by the Queensland Government (prepared by Barrister Justin Malbon and others) was presented to the UNESCO World Heritage Convention, acknowledging that possessory title by the traditional owners had not been extinguished. 5
This submission was a result of the UNESCO World Heritage Convention requiring that the Queensland government recognise traditional ownership of Fraser Island by the Dalungbara, Ngulungbara and Batchala Tribes.
The EPA/QPWS comes under the Environment Minister's department, and is well aware of the 1991 acknowledgement of possessory title of the Dalungbara, Ngulungbara and Batchala Tribes of Fraser Island.
It can be shown that the brumbies of Fraser Island belong to the traditional owners, being specifically Elder John Jones and his family.
Thus it can be said that in addition to the brumbies being removed illegally, the brumbies have also been stolen from their rightful owners.
?Please advise what further evidence you or your office would need in regards to this ownership statement.

Environmental Impact Assessment Study
An environmental impact assessment (EIS) study is required under the World Heritage Convention legislation.
An EIS has not been conducted.
Basic information on this can be obtained from:
Convention on Biological Diversity UNEP/CBD/SBSTTA/7/13 *
SUBSIDIARY BODY ON SCIENTIFIC, TECHNICAL AND TECHNOLOGICAL ADVICE
Seventh Meeting
Montreal, 12-16 Nov. 2001
* UNEP is for United Nations Environment Programme, CBD is for Convention of Biological Diversity.
Also refer to web site http://csu.edu.au/biodiversity/bin21/bioconvention/bioconv.html for a start to finding other related articles on this subject.

With the EIS which is required under international law, Indigenous People will play a most significant and major role as key stakeholders.
Also, at the genetic level, an EIS is mandatory. These brumbies have a most important genetic value as they have been isolated from the mainland for many years, and there is a link to Australia's Waler horses (which played a significant part in World War 1).
The Indigenous People hold these horses as most significant to their 'recent' history (since the 1890's) and thus part of their 'recent heritage'.
Under United Nations Human Rights, Australia must recognise the vales of our Indigenous People.

Regarding Attachments
Attachments 6 to 13 refer to correspondence between the EPA, QPWS and myself.
Attachments 14 to 16 are other attachments.

Yours sincerely,

Lyall Sempf

Attachments
1. Letter of response,17 December 2001, from Qld Parks & Wildlife Service (QPWS) to Mr Fischer and Ms Crawford regarding their expressions of interest.
2. Newspaper article showing that Ms Gott is the person who mustered and removed the eleven brumbies. Contact details: Ms Gott, 'Scenic Lodge', P.O. Box 140 Crows Nest 4355, Phone 07 46979173.
3. Page 13, Section 6 of the Qld Nature Conservation Act 1992.
4. Sections from the Queensland Environmental Protection Agency STRATEGIC PLAN 2003–2006.
5. Sections from the Commission of Enquiry into the Conservation, Management and Use of Fraser Island and the Great Sandy Region - Supplementary Volume - Volume 1, Part 1, May 1991.
The full volume can be obtained from Environment Minister Wells' office.
6. Email from Environment Minister's office, 24 April 2002. Included for background information.
7. Letter from Environment Minister's office, 23 May 2002. Included for background information.
8. Letter to Environment Minister, 8 June 2002, advising him that an EIS is required by law.
Evidence of deliberate avoidance of complying with Commonwealth and international law.
9. Letter from QPWS, 14 June 2002, confirming that the Great Sandy Region Management Plan 1994 (GSRMP) has no specific legislative authority.
10. Letter from Environment Minister's office, 23 July 2002, stating that the Minister has noted my comment regarding an EIS. He has deliberately ignored my comments and advice.
11. Fax from Corporate Affairs of EPA, 7 August 2003, on behalf of the Director General Mr James Purtill, stating that the relocation of the brumbies was done under the GSRMP.
Evidence of deliberate avoidance of complying with Commonwealth and international law.
12. Fax to Director General, Mr James Purtill, EPA, 1 September 2003, asking who from the Waddy Point Office of QPWS said that the brumbies did no belong to the indigenous people.
A QPWS staff member from this office told me on the phone that the brumbies do not belong to the indigenous people. I have not received a reply from the Director General.
13. Fax to Director General, Mr James Purtill, EPA, 4 September 2003, asking why he has failed in his duty to ensure that Fraser Island was managed according to World Heritage Convention (Treaty).
I have not received a reply from the Director General.
14. Information on Elder John Dalungdalee Jones of the Dalungbara Aboriginal People being able to represent the Dalungbara, Ngulungbara and Batchala Aboriginal Peoples of Fraser island.
Elder Jones represents approximately 2,000 indigenous people.
15. The Great Sandy Region Management Plan 1994 - 2010.
The 'Note' reads "Nothing in this Management Plan is intended to diminish or extinguish native title and associated rights". This 'Note' has been ignored by Minister Wells and the EPA/QPWS.
16. Article from the Commonwealth Government web site stating Australia's obligation to the World Heritage Convention.

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Cc.
Elder John Dalungdalee Jones of the Dalungbara Aborginal Tribe of Fraser Island.
Ms Sherrill O'Connor-Sraj, Legal Representative for Elder John Dalungbara Jones.
Various indigenous interests.
UNESCO World Heritage Convention.
United Nations Human Rights Commission.
Mr David Walter, EnviroWild Pty. Ltd.
Mr Randall Coleman.