Bruce Reyburn
12 October 1991
If anyone has any doubts about the continued operation of colonial
imperialism in Australia, they can quickly resolve those doubts by
reading recent reports of the Northern Territory Aboriginal Land
Commissioner. There we can see the way in which the genuine
interests of Australia's First People are systematically excluded
in favour of the preservation of the pretensions of
Anglo-Australian interests.
While these reports are by no means popular reading, they are more
or less readily available from the Australian Government
Publishing Service.
They are prepared by the Land Commissioner and contain his
recommendations regarding claims by First People to be recognised
as the traditional owners for areas of unalienated Crown land.
After a lengthy formal hearing process conducted under the
Commonwealth Aboriginal Land Rights (NT) Act, the Commissioner
submits his findings to the Minister for Aboriginal Affairs.
We must point out that these claims are restricted to areas of
unalienated Crown land by virtue of the workings of the Anglo-
Australian Act and not as a consequence of any Aboriginal
concession.
The unalienated Crown lands in the Northern Territory are the bits
left over after the hundred years of commercial free for all (but
not free for Blackfellows). The Anglo-Australian government
decided that, in the land of the fair go, it was time that the
surviving First People should be allowed some land - provided they
could prove, according to strict criteria laid down by non-
Aboriginal experts, that they were the proper people for these
wastelands of the Crown.
This concern for getting it right, in terms of ensuring that land
will be placed only in the hands of those Aboriginal people who
can meet these strict criteria, stands in staggering contrast to
the total lack of concern which accompanies the transfer of
commercially valuable and alienated Crown lands. In that sphere,
money is the dominant criteria. These lands too constitute living
countries for First People - but the rules of Anglo-Australian
discourse do not allow us to talk about that.
The land claim process is held up by the Commonwealth, both
domestically and internationally, as demonstrating its bona fides
in respect to the obligation it assumes in terms of being
competent to administer the affairs of First People. A piece of
neocolonial inventiveness - a shadow play lacking real substance
but acceptable to the uninformed mind lacking contact with the
realities of First life.
The Anglo-Australian government was not invited by the First
People to take on this task of administering their affairs. They
have been administering their own affairs since time immemorial.
As can be seen from the well-being of life (both human and
environmentally) at the time of contact, the First People are the
people with the proven record of competency in this regard. Not
that you would ever hear this from one of the self-imposed English
speaking managers.
In fact, the record of the Anglo-Australian administration in
regard to the well-being of First life (People-and-country) is one
of total incompetency. Total. Complete and utter. A shambles from
start to whoa. A bungling of the highest magnitude. Clumsy, ham
fisted, mindless destruction of the sort expected from thirst
crazed bullocks getting a whiff of water on the breeze. "Land"
cried the Europeans, "Living Space! New beginnings! A second
chance to get it right. Move over - we're coming through."
MOTIVATED BLINDNESS.
The workings of the 1976 Aboriginal Land Rights Act continue in
this tradition of incompetency - this motivated blindness to the
realities of the presence and place of First people in this
country. The recent (1990) report of the Aboriginal Land
Commissioner regarding the Wakaya/Alyawarre land claim is just
another example to be added to a long list.
The Wakaya/Alyawarre land claim was to an area of largely
'commercially useless' semi-desert south of the Barkly Highway in
the Northern Territory. The land is part of the living countries
of the Wakaya and Alyawarre people. Lovely country which I
crossed with a party of First People in the early 1980s. Not the
sort of country which, on its own, could support life but valuable
country from other points of view.
The senior men, children of survivors of the brutal massacres in
the Frew River and other areas, sang songs of the Dreaming as we
crossed. The land was being kept alive - by a fragile thread. In
all the world, only they cared about this 'useless' scrubby desert
in this way.
The senior men explained to me that (prior to the disruption to
the cosmic order which was signalled by the arrival of Europeans)
the Wakaya and Alyawarre people formed a confederation with the
Warumungu speaking people. "Friendly mobs," they explained in
Aboriginal-English for my benefit."All get around together."
This confederation, a subdivision of the larger organisation of
First life in Australia, was responsible for a massive area of
country. In broadly Anglo-Australian terms it extends from the
Stuart Highway in the west and into Queensland in the east.
The surviving senior men of this confederation did not, from what
I could learn, regard the claims of the Anglo-Australian
authorities to their countries as being well formulated. It was
explained to me that they carried out the important business for
the country, even when that country was under lease by the Crown
to a cattleman. Decrees in distant places did not change the
realities of First life.
In distant high-rise offices, planners in mining companies - who
would never experience the gentle flow of the dunes and the smell
of the flowers - drew up plans for massive exploration licences
just in case there might be oil or something commercially valuable
in this land. Most important to stake a claim on it before the
Blackfellows got in. Imperial capitalism in greedy retreat - blind
to the options of constructive partnership.
In distant offices, out of touch with the earth, administrators
assumed that they could make well informed decisions about life.
Underlying this assumption - and blinding them to the evidence to
the contrary - is a belief in a curious form of thinking called
'rationality'. These isolated administrators, out of touch with
the country, believe they can make good decisions for the good of
all because they receive information - reports like the present
one - which serve as reliable substitutes for reality.
Professional experts are engaged to generate the information
required for the 'rational' decision makers. It is an elite-elite
game in play, a bit like the tennis/squash rituals of their 'off
duty' moments. I believe it is a process which enshrines European
conceit at the expense of the well-being of life and country in
Australia.
In the Wakaya/Alyawarre land claim report, the Commissioner
Justice Olney has found that he is not satisfied that the people
nominated are the traditional owners for a large part of the area
under claim. Consequently, he has recommended to the Minister for
Aboriginal Affairs not to grant title to this area.
Before proceeding any further, we should make it clear that the
appointment of Aboriginal land Commissioners is subject to
political considerations by the Northern Territory Country-
Liberal party government. This government is infamous for its
contempt towards the rights of Aboriginal people in its
jurisdiction. It may, perhaps, be putting it a little to bluntly
to say that the Aboriginal Land Commissioner is a political
appointee but there is certainly an element of that involved.
It is interesting to compare the decisions of Aboriginal Land
Commissioners from before and after the Commonwealth conceded this
'right' to the Northern Territory government. The trend appears to
be one which takes an increasingly narrow view of the rights of
Aboriginal people.
THE KULAPUUL EXAMPLE.
Bearing in mind that the traditional governmental unit associated
with the area under claim, and far beyond, was a political
confederation which regulated people-and-country relations, we
turn to His Honour's report.
Justice Olney says, in relation to a group known as Kulapuul:
6.14.7 Although Paddy Woodman was able to demonstrate some
knowledge as to the names and locality of sites on the estate,
there is nothing in the evidence from which a finding can be made
that the claimants or any of them constitute a local descent
group having a common spiritual affiliation with the estate or any
part of it. I do not regard the fact that during the course of the
land claim hearing Thomas Bob was sat in a ground painting and
handed sacred objects for Kulapuul as adding any weight or cogency
to his otherwise unhelpful evidence. (Olney 1990:33)
So, despite the fact that the relationship between the person and
the country was demonstrated in terms of the original and cosmic
language of the country, there was 'nothing in the evidence.' The
fact that, under the terms of First law, many people cannot
directly talk about such matters is dismissed as 'otherwise
unhelpful evidence'. We might place a little wager here, by the
way, that the proceedings were being conducted in an overbearing
way and in the foreign language of domination. Intimidation of
witnesses? Never!
Paddy Woodman has a reputation as a most learned songman. I once
had the privilege to be present at his campfire while he led an
august group in songs for this very country. If there are experts
in the land ownership of this country - he is one of them without
doubt.
His Honour continues:
6.14.8 I have not the slightest doubt that in earlier times there
have been Aboriginals (sic) who would have fulfilled all the
criteria to be recognised under the Act as traditional Aboriginal
owners, but the evidence goes no way towards establishing that any
of the claimants ought to be so recognised. It may be in the
fullness of time another group will succeed to the estate but that
time has not yet arrived.(Ibid)
It is unlikely to arrive while Justice Olney is deciding what
does or does not go any of the way towards establishing such
matters if his interpretation of the ceremonial enthronement of
Thomas Bob is any guide. It's a bit like denying the reality of
events despite being present at the investiture of a new member
of the House of Lords. The Alyawarre lawmen don't turn these
things on for the benefit of a passing parade, you know. If they
decided that that time was the appropriate moment to do such a
thing, then so it was.
This is the crux of the matter. The real process of assigning
people to country and country to people is a decision-making
process of a political character. It is made, after extensive
consultation if necessary, by the senior lawmen. (I do not know
the role of the women in this.) The relationship between people
and country is not a biological one in the European sense. It is,
rather, a cosmic one as signified by the terms of Dreaming
considerations.
The Land Commissioner, and the Act he operates under, belong to an
ideological universe which asserts that only European metaphysics
are correct. This is imperialism. There is no place for the real
workings of the cosmology of First life in Australia
- even when it is placed right in front of European eyes. These
eyes, blinded by the pretence of terra nullius, can't see. "Oh, we
can't recognise you - you are not a traditional owner as defined
by the Act. And the Act was designed by Experts."
His Honour says that other non-claimant witnesses in support of
this group were Jupiter, Paddy Woodman, Albert Morton, William
Philimac (p.32). Mere names to the Minister for Aboriginal
Affairs, perhaps, but an impressive list of some of Central
Australia's lawmen to those in the know. The word of these lawmen,
when it comes to deciding who are the right people for country,
must be assigned a greater weight than those of a non- expert
Judge appointed to office by a process subject to political input
by the Country-Liberal Party!
Part of the insistence that the Anglo-Australia formation will
only recognise traditional Aboriginal owners when they form 'local
descent groups' is an insistence that there will be no recognition
of the larger political organisation of First Australia.
Anglo-Australia was founded on the denial of this very thing, and
it is not about to admit that it has been mistaken for two
hundred years.
His Honour again:
6.14.9 Another complicating factor in respect to this estate is
that in the course of the evidence the suggestion seemed to be
advanced by Paddy Woodman that Kulapuul and the neighbouring
estate of Tijampara were one estate. For myself, I do not think
the evidence went that far and indeed Paddy Woodman himself was
quite clear that the northern-most limit of Tijampara on the claim
area was the site Milpunhtherre ...and north of there the site
Pinthera ... was Kulapuul.(ibid)
Just what directs His Honour's wisdom in these matters, we ask.
How come Paddy Woodman's word is reliable when it can be used
against him but of no account when it can be used in his favour?
This tendency in Australain judges dealing with Aboriginal
interests has been noted elsewhere. McNeil, for example, in
assessing the decision of Justice Blackburn is moved to comment:
Surely one cannot seriously argue that English law would apply
to give title to the Crown, while at the same time denying the
benefit of that law to the people who were actually on the land,
using and occupying it as their ancestors had done for
generations. Any suggestion that English law should be applied
in such a selective and unequal manner deserves to be rejected
as a transparent attempt to manipulate the law in favour of the
colonizers. (McNeil 1989:302- 303)
Justice Olney is dealing with the representatives of a large part
of First Australia, but he is keen to engage in making the finest
of distinctions if they count against the interests of the
claimants. Too bad he seems unable to apply his cutting intellect
to the dogma which poses as legislative and anthropological
orthodoxy.
CROWN LANDS? SHOW BETTER TITLE.
'Local descent groups', 'estates', traditional owners under the
Act - this is the language of imperialism as alive and well in
Australia in 1990. These terms are not valid reflections of the
relations of First People but are boundaries imposed on First Life
by a system which is premised on the denial of the reality of a
sovereign First People.
His Honour has recommended that traditional ownership not be
recognised for a large part of this land claim. Who knows - this
piece of semi-desert may still yet prove to be commercially
valuable? Oil under the sands?
The Minister of Aboriginal Affairs is unlikely to be in a position
which enables him to act on the only real expert advice in this
matter - that of the First People themselves. Even if Robert
Tichner wanted to make the proper decision, he will probably fall
victim of the system of government which takes good sense and, by
passing it through a long culturally process, converts it into
nonsense.
It is also worth pointing out that, in demonstrating the ground
painting and sacred objects associated with the country, the
claimants have demonstrated that they hold the culturally
appropriate title for the land. McNeil argues in his book that,
under English law, it is then up to any other party, including the
Crown, to demonstrate that they have a better title.
Assuming that the Aborigines who were on the land in 1788 either
had customary title or were in occupation, the effect would have
been to preclude the Crown from acquiring title...With its
prima-facia title thus rebutted (and assuming it could show no
other, e.g. by conyeyance or statute), the Crown would have no
claim to the lands. Moreover, at common law the Aborigines
currently in occupation
... would have presumptive title which could be rebutted only
by
someone who could show better title in himself. Other Aborigines
might be able to establish a better title, based on customary
law or prior occupation, but the Crown would not be in a
position to do so. (McNeil 1989:293)
The Wakaya and Alyawarre people have issued their challenge. Where
do they find an unbiased umpire?
---------O---------
McNeil, K. 1989 Common Law Aboriginal Title. Clarendon
Press.Oxford
Olney, H.W. 1990 Wakaya/Alawarre Land Claim. Report No 34.
Australian Government Publishing Service. Canberra.