The following submission was put to the Northern Territory
Aboriginal Land Commissioner sitting at Cabbage Gum Bore, near
Tennant Creek, in July to hear the Kanturrpa-Kanttaji land claim.
This claim was then adjourned at the request of the Central Land
Council and the Northern Territory government, who are seeking to
have the land converted to Aboriginal title (under the Aboriginal
Rights NT Act) by way of amending schedule one in that Act.
This CLC-NTG deal between curious bedfellows involves an agreement
to do with the water supply for the town of Tennant Creek. From
discussions with local Aboriginal people, it would appear that the
most valuable resource in their country (underground water) is
being given away in return for a future recognition of rights
which they probably already possess under Native title.
By following the course of action proposed by the Central land
Council, the Commissioner would not have to investigate
traditional ownership and, as it happens, decide whether or not to
examine the relationship between rights under the Land Rights Act
and the newly recognised Native Title of the Mabo decision.
SUBMISSION TO THE ABORIGINAL LAND COMMISSIONER
KANTURRPA-KANTTAJI LAND CLAIM (CLAIM NO. 114)
by Bruce Reyburn
P.O. Box 257 Thirroul NSW 2515
LAND OWNERSHIP
1. From 1980 through to 1983 I was involved in research with
senior Warumungu and Alyawarra men for the preparation of the
Warumungu land claim.
2. It was my understanding that the area now under claim was part
of the unalienated Crown land of the Warumungu claim. I reckoned
the area under claim from the Pastoral map of the time. The
attached map from the 1982 Warumungu claim book provides a visual
description of that area of unalienated Crown land.
3. I believe that my understanding was shared by the men I worked
with.
4. My research method involved an attempt to determine who were
the people for the area under claim according to Aboriginal law.
5. The results of my research were incorporated into the 1982
Warumungu land claim book. In that book I attempted to adapt the
results of my research to the requirements of the Aboriginal Land
Rights Act. In particular, I attempted to relate the results of my
investigations concerning the relationships between people and
country according to Aboriginal law to the definition of
traditional Aboriginal owner in that Act.
6. During the course of the 1982 Warumungu land claim, senior
Warumungu and Alyawarra men produced a ground painting for the
Aboriginal Land Commissioner, Justice Sir William Kearney. This
ground painting was displayed (on a restricted basis) to the
Commissioner and other men.
7. The original Warumungu claim hearing was, for a variety of
reasons, later abandoned. There had been considerable controversy
regarding the approach adopted in the 1982 land claim book and in
the preparation and presentation of the claim. The Central Land
Council and I were unable to resolve differences of opinion, and I
was not further involved in their handling of the Warumungu claim.
No further substantial research was carried out with the senior
men for that claim, nor were my research materials with the men
utilised.
8. A second Hearing was commenced in 1985 with Justice Maurice as
Commissioner.
8.(cont) The results of my research with the senior men were not
sought in the second Hearing. I submitted some material relating
to the contact picture, and also some opinions of my own regarding
land ownership. The former were tendered, the latter (attached)
were not.
9. My position then was that there was a system by which people
were related to country and that this system was quite different
to that of traditional Aboriginal ownership based on an orthodox
interpretation of what is meant by a 'local descent group'. In
view of our lack of understanding of this system, the appropriate
course of action was to acknowledge the senior claimants as the
only experts. The senior men were, in my opinion, placed at a
severe disadvantage due to the lack of a male anthropologist
familiar with their culture.
10. Justice Maurice subsequently determined that traditional
ownership amongst the claimant people could be determined by
reference to local descent groups where membership was based on
patrilineal considerations.
11. It is my opinion that the original system of relating people
and country is quite different to that which results from models
based on orthodox interpretations of descent.
12. Following from the High Court's decision in the Mabo case, and
without raising the unresolved issue of Aboriginal sovereignty and
radical title, the original system of relating people to country
may be equivalent (in part or in whole) to the form of native
title now recognised in Anglo-Australian common law.
13. The rights of First People to country under Aboriginal law may
not be the same as the rights bestowed upon Aboriginal people in
the event of a group or groups of their people being recognised as
traditional Aboriginal owners under the Aboriginal Land Rights
Act.
14. The granting of title to a trust in the event of a successful
land claim under the Land Rights Act may constitute an
extinguishment of native title.
15. The extinguishment of native title by these means may deprive
some First People of rights which they would have continued to
enjoy had title under the Land Rights Act not been granted. In
which case, there is a consideration of detriment for the
Aboriginal Land Commissioner to investigate.
16. Such extinguishment of native title and the rights of First
People by the 1976 Aboriginal Land Rights Act may be incompatible
with the provisions of the Racial Discrimination Act of 1975.
17. The existence of an original system of relating people to
country in connection to Warumungu people, and its relationship to
the notion of orthodox interpretations of descent, is documented
in my work "Wrong Way Land Claim". I enclose Part One. (Note to
Pegasus readers, if interested I could upload this long draft
document.)
18. I request that the Aboriginal Land Commissioner consider the
question of native title in connection with the present land under
claim.
19. In the event of this issue being considered live, I would like
to reserve the right to submit further material. This material is
not presently available due to the lack of resources.
Ends.
Subsequent letter to Robert Tickner, Minister for Aboriginal
affairs
P.O. Box 257 Thirroul NSW 2515
10 August 1992
Hon R. Tichner Minister for Aboriginal Affairs Parliament House
Canberra ACT 2600
Dear Mr Tichner,
KANTURRPA - KANTTAJI ABORIGINAL LAND CLAIM.
I enclose a copy of the submission on ownership which I sought to
make in connection with the above traditional Aboriginal land
claim. The thrust of this submission is to ask whether or not the
rights of First People, as a result of the Mabo decision, are
further diminished as a result of the workings of the 1976
Aboriginal Land Rights Act. I believe that they are seriously
diminished.
The land claim hearing before the Aboriginal Land Commissioner,
Justice Gray, was adjourned at the request of the Northern
Territory Crown and the Central Land Council. These parties seek
to have the land claimed converted to Aboriginal title by the
process of amending Schedule One of the 1976 Aboriginal Land
Rights (N.T.) Act.
As matters stand, such a method of determining Aboriginal
ownership of the claimed land would leave unanswered questions
concerning the rights of First People. It may also result in an
abuse of the rights of First People by the Crown.
Additionally, the N.T.G.-C.L.C. agreement appears to give away the
water rights of First People for practically nothing of value in
return. It cannot be known for certain that the people consulted
by the Central Land Council reaching this agreement are the
appropriate people, in terms of native title, to be making such
concessions.
An unsound agreement, subject to legal challenge, may also
introduce further uncertainty regarding the future supply of water
to the residents of Tennant Creek.
The general issue of the extinguishment, if any, of the rights of
First People by the Aboriginal Land Rights Act may be resolved in
the short term by enacting explicit legislation to reserve those
rights. But even if this course was followed, it would not resolve
the specific issues in regard to the Kanturrpa-Kanttaji case.
One way of resolving the specific issues would to be have the
Aboriginal Land Commissioner carry out an investigation to
determine whether or not there is a form of native title to the
area under claim and to identify the relevant First People for
that country under Aboriginal law.
I request that you do not amend Schedule One of the Aboriginal
Land Rights Act to accommodate the N.T.G. - C.L.C. Kanturrpa-
Kanttaji agreement until the rights of First People, which result
from the decision to recognise a form of native title, are fully
investigated and protected.
I also request that the Australian government does not approve the
N.T.G.- C.L.C. agreement until such time as it can be conclusively
demonstrated that the terms of the agreement are the result of
genuine negotiations conducted, without duress, with the First
People who hold the rights for that country and its resources
according to native title and/or Aboriginal law.
Could you advise me of what action, if any, you will take in this
matter?
Yours truly,
Bruce Reyburn.
cc Aboriginal Land Commissioner
Northern Territory Government Central Land Council
No reply 14 October 1992.