Aboriginal Law Bulletin
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by Diane Bell
In his 1860 attempt to cross the continent from south to north, John McDouall Stuart, while 30 kilometres north of Tennant Creek, was repulsed by Aborigines. News of the insensitivity of the newcomers, of the desecration of sacred sites, the depletion of water holes and the power of the gun had preceded the physical presence of Whites in Warumungu territory. Over thirty Warumungu warriors stood ready to defend their country against the intruders. Stuart named the site Attack Creek.
The struggle to defend their territory against the incursion of White Australians is ongoing. Today the descendants of the Warumungu who met with Stuart are in conflict with the Northern Territory Government. On November 3, in a move which strikes at the very heart of the Aboriginal Land Rights (N. T.) Act 1976 and Black-White relations, the Government announced that it had alienated important portions of the already extremely limited range of land available to the Warumungu for claim.
Under the Act, Aborigines may claim unalienated Crown land. At the best this is marginal cattle country, at the worst deserts of rolling sandhills. It is land which, by very definition, no one else has wanted. But for the Warumungu it is still. the country for which they hold a sacred trust to maintain in the manner established in the dreamtime. Many important sites and much of the economically viable land of the Warumungu lies within the town or pastoral boundaries but, as alienated land, is not available for claim.
The alienation of Warumungu land began with the building of the overland telegraph line in 1872. Since then there have been various attempts to reserve land for the Warumungu but none remains today; all has been resumed in the interests of pastoral and urban development. Thus, unlike the people of Arnhemland whose reserve land was handed back under the Act, the Warumungu have no such options. Instead they have been shuffled from one piece of marginal territory to another, herded together in refugee-like camps on land which is not theirs.
Elsewhere, homeland centres are relieving pressure from the strife-torn lives of Aborigines in centres of. population concentration. They are enabling a lifestyle, which is a blend of the old and the new, to be forged. Without security of tenure of the land, these centres cannot be fully developed and Aborigines become squatters on their own land. Within the claim area there are sites which people wish to develop as homeland centres. At .Ngurrantiji, 80 kilometres south-east of Tennant Creek, such a centre is already flourishing.
In January 1977, following a dispute with `the management over the non-payment of wages, the Ngurrantiji mob, an extended family of three brothers, their sister, their children and old people, walked off Kurundi cattle station. With commitment, initiative and vision they began the task of building a new home. Overlooking a waterhole on the Gosse River, the Ngurrantiji mob have erected yards for the horses they break and sell, sheds in which to store their saddles and mechanical equipment, and by ingenious adaptation they have improvised irrigation systems for their gardens. It has not all been easy-going for the Nurrantiji mob. Early in the life of the camp, when heavy rains fell and food began to run low they trekked to Tennant Creek. They had no radio contact and knew they would soon be stranded by rising floodwaters. Their Toyota became bogged. So, in a six day gruelling journey, thirty-five people aged between seventy-five and one, crossed flooded rivers, ate flour and water to sustain themselves and slept in cold and miserable conditions. Finally they made it into town.[1]
On another occasion, the waterhole dried up and they had to cart water for their horses, gardens and domestic consumption on the tray of their Toyota truck. But in spite of these difficulties the Ngurrantiji mob have persevered and solved problems as they arise. They are determined that their children will grow up strong in the ways of the Warumungu Law, but that they will also have a future as workers at Ngurrantiji and on nearby stations.
Other workers have looked to the Ngurrantiji example and seen hopes for their future. One group planned to re-locate on the Whistleduck block and another wished to move from town to the Ten Mile block.
By gaining title to the claim area the Warumungu will not only have homelands but they will also be able to. protect their sacred sites, care for their ritual objects in safe store-houses and perform ceremonies for the continuance of their Law. But their hopes and plans now lie in the balance.
To prepare a land claim for hearing requires detailed and painstaking research and documentation. On behalf of the traditional owners, the Central Land Council (CLC) researchers prepared maps on which were recorded the sites, submissions dealing with the significance of the land, details of past attempts to reserve land for the Warumungu and their plans to develop the area under claim.
In August 1978 the CLC lodged the claim with the Aboriginal Land Commissioner to areas of unalienated Crown land between Dalmore Downs and Tennant Creek. In the same month the NT Chief Minister, Mr Paul Everingham, in a letter to the Land Councils, undertook in respect of claims lodged within the following two year period, that the Government would not deal with land under claim in ways prejudicial to those claims. Within that period the CLC lodged an amended claim on behalf of the Warumungu. To the original area was added further portions of unalienated Crown land: the Ooradigee Rockhole (where the Ngurrantiji mob are now living), the water Conservation Reserve at Bonney Well, the Devil's Marbles Conservation Reserve, the Wauchope Commonage, two stock reserves (one on Brunchilly, the other on Rockhampton Downs) and the Phillip Creek Stock Reserve. Copies of the amended claim were sent to the relevant bodies.
On 15 September 1982, a further amendment to the claim application was lodged. The Whistleduck and the Ten Mile Reserves on Kurundi and a purported stock route within the Banka . Banka lease were included. Once again the relevant persons were notified.
On 1 November 1982 the hearing began. Lawyers, linguists, anthropologists, townspeople, pastoralists and claimants crowded into the Country Women's Association. Hall to present submissions to the Aboriginal Land Commissioner, Mr Justice Kearney. The first problem. encountered concerned the town boundaries which had been extended in 1979, amended and . gazetted in 1980. The claimants instructed their lawyers to proceed with the claim on the basis of the old town boundary. However, typical of the willingness of Aborigines to accommodate Whites' needs, they agreed to exempt land such as hobby farms from the claim.
On 2 November the hearing continued with the Ngurrantiji people giving evidence concerning their relationship to the land, its sites and dreamings. They spoke of the ancestral activity which had created the land and their plans for the future.
On the following day, as the women's evidence drew to a close, and the Court prepared to adjourn to an area where the men had been preparing a ceremony, Counsel for the NT Government rose to read a telex he had received An hour portions of the existing ten had been removed from the claim. The women were stunned, Most of the} men were absent at the ceremonial ground. The piece of land about which they had been speaking for two days and which they were now ready to display in ceremony was no longer in the claim.
After some consultation, the claimants agreed to continue with the ceremony but they were saddened and confused. The performance of important rituals evokes memories of the old people who have passed away; inevitably participants are sorrowful, but on this occasion the very land was in doubt. The Judge thanked the men for explaining their Law in this fashion and the claimants retired to their camps to discuss the NT action.
As details of the NT Government action became clear, the anger of the claimants rose. It emerged that on the Friday before the claim had begun, the Government had purported to alienate, by execution of deeds, the old Phillip Creek Mission block, the Wauchope Commonage, the reserves at Ten Mile, Ngurrantiji, Bonney Well and Whistleduck waterhole, the stock reserves on Brunchilly, Rockhampton Downs, the north-south stock route and the South Barkly stock route. It seemed that these leases would now be held in perpetuity by the NT Development Land Corporation, a body which, according to its Chairman, had not requested that such land be vested in it. As one of the women claimants summed up, `Those big government, he put his foot on our country. White fellas always put his foot on our country'.
On Thursday 4 November, the claimants' lawyers spoke of the `despicably insensitive' action of the Government and sought an adjournment to Alice Springs in mid-December in order that the legal issues might be argued. The claimants did not wish to further expose their stories of sites and dreamings knowing their disclosures might be in vain.
For the Warumungu, the action is yet further evidence: of the capriciousness of White-fella Law. It is, as they often say, a paper Law, one that can be changed or torn up; promises such as that in the undertaking of the Chief Minister not to alienate land under claim, may mean very little. Their own Law, they point out, cannot be changed in this way. It is tied to the land of their forbears; matters of use and ownership are encoded in the Law of the land.
But the Warumungu are not the only people upset by the action. The Tennant Creek Town Clerk expressed dismay at the delay which now inevitably will follow. His complaint was that the people of Tennant Creek had hoped for a resolution of the problems they face within the town. A High Court challenge such as that brought by the traditional owners in the Kenbi land claim (over extension of the town boundaries of Darwin), took several years to resolve. Although the Court ruled in favour of Aborigines in that case, the issues would need to be fought again in the Warumungu claim. In the meantime tension mounts.
A newly formed pressure group of Tennant Creek residents, `Concerned Citizens of the Northern Territory', has campaigned against this claim in particular and land : claims in general. The Deputy Mayor said he supported the pressure group but that he was keeping out of it: `I get so angry I could go out and snot someone', adding `Then I'd be on the inside looking out'.
Although the Chief Minister remained unavailable for comment, the NT Minister for Lands, Mr Perron stated that the land had been alienated in the interests of the Northern Territory and its people. This is consistent with the line pursued in a recent media campaign, said to have cost some $200,000 in which. the NT Government attempted to convince the public that the Land Rights Act was frustrating the proper development of the Northern Territory. In its ten-point package the NT Government sought that the Federal Government amend the Land Rights Act so that stock routes could no longer be claimed and so that there could be no further conversion of pastoral lease to Aboriginal title. In return it promised to set in motion mechanisms whereby excisions from pastoral leases could be processed speedily.
The Land Councils representing the traditional owners responded with a resounding `No'. They have argued that the NT Government has broken its promises before and that the Act should be strengthened, not weakened. It is only under Aboriginal title that traditional owners have the power to veto mining on their land. Holding land as a pastoral lease is thus not sufficient protection.
In September 1982, the CLC stated its willingness to forego specific claims to stock-routes and reserves if meaningful negotiations regarding the provision of adequate living areas for Aborigines on pastoral leases could be resumed. Whether or not the NT Government will proceed with legislation concerning the remaining claims to stock-routes is unclear. It is however clear that they wish to see stock-routes removed from the land which is claimable. The aim of the Aborigines in claiming stock-routes was, according to the Member for Alice Springs, `provocative and unnecessary and in the circumstances caused anxiety to the people of Central Australia'. Again in October the CLC reiterated that it would agree in principle to adjourn claims to stock-routes and reserves situated within pastoral boundaries. But it appears that the NT Government is not prepared to negotiate the package point by point.
The action of the NT Government with regard to the Warumungu claim has put negotiations concerning the Act into a new light. If it can alienate land . by execution of deeds, need it worry about seeking amendments to the Act? The Land Rights Act is Federal legislation and a bitter pill for the NT Government to swallow, but the Federal Minister has undertaken that there will be no changes to the legislation without consultation. Meanwhile the Aborigines themselves are not impressed.
How then, ask the Land Councils, are we to proceed? It is our statutory obligation to prepare land claims on behalf of traditional owners, a task which requires' lengthy and costly research. Having notified the appropriate bodies of the extent of the claim, it was changed before the hearing began. However we were not notified until three days into the hearing.
To test the legality of the NT Government's action, application was made by one of the Aboriginal claimants on 12 November for writs of prohibition and certiorari against the NT Minister for Lands, Mr Perron. The NT Land development Corporation was also made a respondent. Mr Castan Q.C. argued for the claimants that Mr Perron had broken express undertakings not to deal with the land, being unalienated Crown land, in any manner which would prejudice the claim. Mason ACJ granted the orders sought. These will prevent further steps being taken concerning the land until the matter returns for a Full Court hearing on 8 February 1983.
In the meantime the status of the land on which the people of Ngurrantiji are camped remains vague. The possibility of others establishing centres such as this one is threatened; the claimants must wait still longer for their claim to proceed. Although they may be hopeful that the High Court will rule in their favour, the delays are expensive of time and energy.
[1] Details of the establishment of homelands within the claim area are contained in Diane Bell, 'For our Families' the Kurundi Walk-off and the Ngurrantiji Venture', (1978) 2 Aborginal History pp.32-61.
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