Aboriginal Law Bulletin
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by Graeme Neate
On 10 November 1982 the Minister for Aboriginal Affairs, Mr Ian Wilson, tabled in Federal Parliament two land claim reports by the former Aboriginal Land Commissioner, Mr Justice Toohey. No statement was made on what action the Minister proposes to take concerning either the claim by the Gurindji to Daguragu Station or the Daly River (Malak Malak) land claim. Earlier, on 27 May 1982, Mr Justice Toohey's report on the Warlmanpa, Warlpiri, Mudbura and Warumunga Land Claim was tabled. No announcement has yet been made on whether the Government accepts the report's recommendation that the bulk of the land claimed be granted to an Aboriginal Land Trust.
Historically, this was a most significant land claim. The Gurindji went on strike at Wave Hill Station in 1966 and walked off, setting up a camp at Wattie Creek in March 1967. A petition from them sent in April that year to the Governor-General sought `to regain tenure of our tribal lands in the Wave Hill - Limbunya area of the Northern Territory.'
In March 1973 the Gurindji were granted a lease of eight square miles, and on 16 August 1975 the then Prime Minister, Mr Whitlam, handed over a pastoral lease to 1,250 square miles excised from Wave Hill.
Mr Viner, in his second reading speech on the bill which became the Aboriginal Land Rights (Northern Territory) Act, referring to this land said that he expected that the Land Commissioner, when considering the strength of a claim to it, would take account of its history. The claim, heard in July and August 1981, was to all of the pastoral lease and some other smaller areas in the vicinity. Toohey J found that:.
Although there is a very real sense in which Gurindji have a deep, general attachment to the land under claim, the area can also be seen in terms of smaller `estates' for which local descent groups have particular responsibility. Not all the Gurindji, including some of the most important leaders in the community, have traditional country within the borders of Daguragu.
He described the rights grid responsibilities of `clan members' and `workers', and found that traditional owners of the land could be found in both categories. Over 200 sites were recorded for the claim area most of which had names
related to the dreaming which lived them or passed by, did some action or left some mark or secretion there. Some sites are considered supernaturally dangerous and others secret and sacred.
He was satisfied that, except for a small triangular section in the southwestern corner of the lease, traditional ownership of the land had been established. It could not be established for that small section as no site was found there.
Toohey J was of the view that, on a proper reading of the Aboriginal Land Rights (Northern Territory) Act, there must be a site on the land claimed for a claim to succeed. The boundaries of this claim, as in others, were `established by means which bear no relationship to traditional patterns of ownership'. While it was clear that in the eyes of the claimants the small area was part of a larger tract of land of a local descent group, the absence of a site on that area was fatal to that part of the claim.
Toohey J referred to evidence of knowledge and performance of ritual concerned with sites, and sacred objects on which are recorded some of the stories of the dreamings. This led him to be satisfied that there is a strong attachment to the land claimed, which was `heightened by the struggle to obtain the land and the relative autonomy of the residents since the grant of the lease in 1975'. He recommended that the bulk of the land be granted to a Land Trust and suggested ways whereby the south-west corner might become Aboriginal land.
At least 200 people would be advantaged if it becomes Aboriginal land and no detriment would be suffered by other Aboriginals living in the claim area.
Some problems concerning the construction and repair of boundary fences were discussed, especially with respect to the border with Wave Hill station. The importance of maintaining disease-free cattle, in light of the national brucellosis and tuberculosis eradication campaign, and the interests of surrounding pastoralists, were referred to.
There was no evidence to suggest that mining ventures would suffer detriment should the claim succeed. The Northern Territory Government could continue to use or occupy certain land and facilities and would not suffer detriment.
Between July and November 1981, Toohey J heard the claim by the Malak Malak people to some 544 square kilometres known as the Daly River Farms Rehabilitation Area, nearly 200 kilometres south of Darwin. The Daly River flows through the area for 31 river kilometres and marks some of the boundary.
The bed and banks of the river, though not the river itself, were claimed.
The land is surrounded by pastoral leases and within its boundaries lie numerous alienated blocks which could not be claimed. Included among claimed blocks were a police station and police paddock, the Daly River Nature Park and other land which the Northern Territory Conservation Commission proposes to use for parks, mineral leases and land over which mineral lease applications have been made, and the site of a proposed township.
The novelty of this claim was that it was not primarily a collection of smaller claims but one in which all the claimants as members of the Malak Malak linguistic group were said to have traditional ownership of the entire area claimed. Of the existing local descent groups only four families claimed estates of any consequence. Some groups, whose country lies outside the claim area, participated as part of the wider group claiming those areas belonging to extinct local descent groups. Their claim depended on the larger group having ownership in common of all this land.
By accepting this approach Toohey J recognised that
it represents an extension of the concept of local descent group described in earlier reports. That is simply because no claim has been presented on a basis comparable to that presently being advanced ... It is a group which depends for its identity upon its members being born as Malak Malak and recognised as such . . . there is. a group which is a descent group because persons must be born into it and it is a local group because it is related to a specific and identifiable area of land.
About 150 sites within the claim area were referred to, most of them along the Daly River. They were not necessarily sacred sites or places of spiritual significance and many belong to extinct Malak Malak groups.
Toohey J found 59 Aboriginals who are the traditional owners of all but the south-eastern part of the land. He said that there is a strong attachment to that land, particularly in the case of claimants who live at Wooliana at the centre of the area.
He recommended a grant of that land to a Land Trust. Such a grant would advantage not only the claimants but also more than 200 other Aboriginals who live at the Roman Catholic Mission by the river. They have a longstanding agreement with the claimants to hunt, fish and gather food in the claim area.
There might be detriment to landholders in and around the claim area, especially those whose whose land is near the river and who rely on access to the river for water and transport. There might also be detriment to landholders, especially those with grazing licences, who need extra land to make their ventures viable. The Northern Territory Government has a number of interests, present and planned, in the area which could be affected if the land becomes Aboriginal land.
Counsel for the claimants made a number of suggestions and offers which could lessen this detriment. For example, he said the claimants did not wish to deny access to the river to draw water, and were prepared to enter into an arrangement for joint management of areas to be used as public parks. This would almost necessarily involve some kind of lease-back arrangement to the Northern Territory Government.
Toohey J observed:
This is, I think, the first time in a land claim when claimants and Government have so clearly recognised the need to accommodate the wide range of interests involved when an area such as [this] ... is claimed under the Land Rights Act. It is much to be commended. The working out of that accommodation may not be easy but the claimants recognised that it was a -necessary step before a grant should be made.
Toohey J was satisfied that eleven roads in the area are roads over which the public has a right of way. These provide access to many of the non-Aboriginal interests in blocks of land. Almost all of those with mining interests in the area will not suffer detriment if the claim is successful.
Some 50,000 square kilometres of unalienated crown land. north-west of Alice Springs was claimed by members of five linguistic groups. To the north and east the land is bounded by pastoral leases, to the west Aboriginal land (granted after a successful claim) and to the south, land the subject of a subsequent claim. As Toohey J noted, because its boundaries were set largely by non-Aboriginal interests such as pastoral leases, the claim area did not necessarily reflect traditional relationships between adjacent linguistic groups and was somewhat artificial in Aboriginal eyes.
Members of various local descent groups gave evidence, each group comprising people tracing their descent from a common male ancestor through the male line (kirda) and people tracing their descent through the female members of the patriline (kurdungurlu). Thirteen groups were together found to be the traditional Aboriginal owners of all but a section in the north-west of the claim area.
Evidence was given of sites and dreaming tracks across this vast area, and ceremonies performed in connection with the sites. Notwithstanding the nature of the relatively featureless, sandy and uninhabited land, Toohey J found that many of the claimants had a detailed knowledge of and strong attachment to the land.
Their desire to live on the claim area was related to the nature of the country, its capacity to provide sustenance and in part, its economic advantages. Members of some claimant groups would like to run cattle in the east of the claim area, just west of existing pastoral leases and there is a strong desire by others to make a home at Pawurrinji, a place in the south east of great importance to both the. local descent group responsible for it and to a wider range of Aboriginal people.
Some 1,100 or 1,200 Aboriginals may be advantaged if the claim is acceded to. One of the benefits would be that the Warlpiri and Warumungu claimants could move from Warrabri, a settlement which is not their traditional country, so relieving tensions to which they are subject.
Detriment could be suffered by various non-Aboriginal groups and individuals if the land becomes Aboriginal land and if agreement to accommodate these other interests is not reached.
Although obliged by s.50(3) (b) of the Aboriginal Land Rights (N.T.) Act to comment on such detriment, Toohey J. did not take detriment into account in making recommendations. This was consistent with his approach in previous reports that recommendations are made on the basis of traditional ownership of, strength of. traditional attachment to, and desire to live on the land. The Minister for Aboriginal Affairs, who must be satisfied that some or all of the land recommended by the Commissioner should be granted, can take into account in reaching a decision the matters on which the Commissioner has commented. That approach was challenged before the High Court in June 1982 in connection with the Finniss River land claim. The decision has not been handed down.
The proposed Alice Springs to Darwin railway will cross the claim area and the Commonwealth may suffer some detriment in terms of the cost of compulsorily acquiring the land.
Three grazing licences cover part of the claim area adjacent to pastoral leases. Toohey J held that these did not constitute alienations of land. That decision has also been challenged before the High Court in connection with the Finniss River land claim.
If the land under grazing licence becomes Aboriginal land the licencees, who lease the adjoining pastoral land, will not suffer significant detriment ... other than by the loss, in one case, of access to water drawn from an artesian basin (the Wiso Basin) under the licensed land.
Peko Wallsend Operations Limited holds mineral leases of limited potential on the claim area. These will not be affected by a grant of land unless additional land is required for their exploitation.
A large reliable source of water is required for the Peko mine and treatment facilities at Warrego, on Phillip Creek station just south-east of the claim area. Most of that water is drawn from the Wiso Basin, under the claim area. The loss of the water supply would be a detriment to Peko as most if not all of the mining and related operations at Warrego would cease. The claimants made an open offer for the grant of a licence or a lease of land within which the current water rights fall.
A Water Control District includes land in the south eastern section of the claim area, and the Northern Territory Government expressed concern that bores sunk on the land would become the property of the traditional Aboriginal owners.
Advertisements by the NT Government aimed at gaining support for amendments to the Aboriginal Land Rights (NT) Act 1976 have met opposition. The Director of the Australian Conservation Foundation, Dr Geoff Mosley, has complained to the Commissioner for Community Relations, stating that the advertisements are `racist propaganda'. Dr Mosley said the advertisements claim that under the Act, pastoral properties could be returned to Aborigines, then `left unproductive'. The ACF has told the Commissioner it was `a racist slur' to imply that Aboriginal use of the land was unproductive. The ACF has also described a map showing areas claimed by Aborigines as `a geo-political confidence trick'. The map, according to the Foundation, has been deliberately distorted to give the impression that more of Australia had been granted to or claimed by Aborigines than was the case.
To counter the NT Government's advertising campaign, a booklet has been published by a Darwin-based group, `Concerned Citizens for a Proper Perspective on Land Rights'. The booklet, A Question of Balance, was written by a Uniting Church research officer, Chris Budden. A spokesman for the group publishing the booklet, Colin McDonald of the North Australian Aboriginal Legal Aid Service, said the group was formed because of `increasing disquiet and disaffection with the way the NT Government. is spending taxpayers' money on this campaign'. The booklet notes: `It is not land rights that create tension but the misinformation that is allowed to surround those rights'.
A Question of Balance by Chris Budden may be obtained from P.O. Box 3028, Darwin, NT, 5794.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1982/71.html