Aboriginal Law Bulletin
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by Graeme Neate
On 8 December 1982 the then Minister for Aboriginal Affairs, Mr Ian Wilson, tabled in the House of Representatives the final two land claim reports written by Mr Justice Toohey as Aboriginal Land Commissioner. The claims were to strikingly different types and areas of land. No statement was made by the Minister, who has not made known any decision about the recommendations in the reports.
More than 14,400 square kilometres of desert and agriculturally marginal country south-west of Tennant Creek were claimed. Pastoral leases adjoin much of the claim area, the eastern part of which includes two grazing licences.
The links between this and earlier claims appeared in the evidence of traditional Aboriginal ownership. There was a considerable overlap of claimants, witnesses and persons mentioned in this and four previous claims, including the Warlmanpa, Warlpiri, Mudbura and Warumunga land claim immediately to the north (see [1982] AboriginalLB 72; 1(6)pg14).
The country of seven different land holding groups together makes up the claim area. The members of each local descent group comprise kirta and kurtungurlu. A person who has the country from his or her father and father's father is said to be kirta of the country. A person who is kurtungurlu has the country for which his or her mother is kirta. Toohey J was satisfied that both constitute a local descent group having the characteristics demanded by the definition of 'traditional Aboriginal owners' in the Aboriginal Land Rights (NT) Act.
Videotapes made by the claimants during trips into the claim area 'dramatically reduced and much assisted' the conduct of the hearing. Matters requiring clarification were explained and questions answered by witnesses at the hearing at Warrabri.
The history of European presence in the claim area started in the early 1860s with the journeys of John McDouall Stuart. The construction of the Overland Telegraph line in 1871 was followed by the introduction of livestock at each telegraph station. There was conflict between Aboriginals and European settlers. Toohey J noted that, as was `the custom of the time, a punitive expedition was mounted' in 1874 following the killing of two Europeans and a number of Kaytej at Barrow Creek.
Another punitive expedition, which followed the killing of a pastoralist at Coniston station in 1928, was investigated by a three-man commission. (A film linking that commission and the hearing of the claim, A Shifting Dreaming, was recently shown on some capital city television channels). The expansion of pastoral interests, and the establishment of reserves with removal of Aboriginals to them, are related in the report on the claim.
In dealing with each of the seven groups, matters were mentioned which show the strength of traditional attachment of the claimants 'to the land claimed. These include, Toohey J wrote, the strength of ceremonial life, the passing on of knowledge about country and the dreamings associated with it and the pattern of residence of the claimants, having regard to a number of historical factors including forcible removal from their country. The traditional attachment is strong.
Some of the country is relatively harsh and inaccessible, but there is a desire by some of the claimants to live on some of the claim area. They do not wish to return to their country on a permanent basis without the provision of basic facilities, particularly water. Some see the advantage of combining with other groups, particularly those whose country is more hospitable and provides a guaranteed supply of water.
Toohey J recommended that there be a grant of the land claimed to a Land Trust. The number of Aboriginals with traditional attachment to this land who would be advantaged is in the order of one thousand.
The non-Aboriginal interests which could be affected if the land becomes Aboriginal land are in the eastern part of the claim area.
The NT Government proposes to constitute the Tennant Creek Water Control District in the north-eastern portion. While a grant of land within the Water Control District will not affect the operation of the NT Control of Waters Act, the consent of the Land Trust will be necessary to pipe water to places outside the claim area. The existing water supply to the Tennant Creek region is adequate but it will not sustain any substantial increase in population or increased demand for water. Investigatory water drilling has been carried out in the Tennant Creek West Bore Field, within the proposed Water Control District. Toohey J commented: 'It is a matter for the Minister to consider whether there should be a grant to a Land Trust unless satisfactory arrangements can be made.'
The NT Government will also require an easement for electricity throughout the borefield in the event that water is to be piped. Any agricultural or horticultural development in the region is dependent upon additional water supplies, most likely to come from the Tennant Creek West Bore Field.
Toohey J commented that the Minister must also take into account the detriment which will be suffered if the use of the grazing licence land west of McLaren Creek station is lost. If either grazing licence is excluded from a grant, Toohey J suggested that the right of the claimants to live on certain named places should be secured, so far as is practicable.
Mining interests in the area may be affected by the grant of land. But Toohey J repeated his view that the need to obtain the consent of the Land Council to mine areas over which there are mineral lease applications is not detriment under the Land Rights Act since it is a requirement of the Act. In an addendum to the report he referred to an extract from a NT Government Gazette which showed that recent approval had been given to the issue of certain mineral leases (applications for which were pending at the time of the hearing) subject to conditions which were linked, in part, to the success of the claim.
The final claim heard by Toohey J was also the smallest. Just south of Arnhem Land, the 150 square kilometres is bounded to the north by the Roper River.
The first Europeans in the area were in explorer Ludwig Liechhardt's party, and a supply depot was established in the 1870s during the construction of the Overland Telegraph. A legacy of this period is the town of Urapunga, proclaimed in 1887 and never settled. Although uninhabited bushland, it is still officially a town and as such could not be claimed. Pastoral leases surround the claim area.
The claimants are speakers of the Ngalakan language and the claim area includes part of two estates, traditionally owned by patrilineal clans. Each is associated with a particular set of ancestral beings who journeyed across the land. Among these were the plains kangaroo, quiet snake and native cat.
Within the local descent group for each estate are mingirringgi and djunggayi - respectively similar to kirta and kurtungurlu in terms of descent, roles and responsibilities.
Toohey J found that It was clear from the evidence that djunggayi and mingirringgi have essential and complementary roles and responsibilities ... It is the djunggayi's responsibility to see that ceremonies are performed properly; it is the mingirringgi's responsibility to perform them ... Both groups must ensure the protection of sites. He noted that mingirringgi were excluded from some sites - an exclusion explained by an anthropologist as indicating a sharing of the spiritual substance with the land which carried with it danger for such people. This showed that mingirringgi are affiliated to the land in a totally different sense from the djunggayi.
Although the evidence showed that both mingirringgi and djunggayi have and exercise complementary and equally important, though different, spiritual responsibilities, the claimants' counsel submitted that only mingirringgi had spiritual affiliations with the land. Toohey J rejected that submission but was satisfied that `there is a qualitative difference' between them. Primary spiritual responsibility for, and traditional ownership of, the land lies with the mingirringgi.
There was evidence of a traditional right to forage on the land and of continuing use of the land for food and material for artefacts as well as ritual life. A strong attachment by the claimants to the land was shown. An outstation on one estate was established in 1980. Another is proposed for the other estate.
Toohey J recommended the grant of the land to a Land Trust. At least three hundred people with traditional attachments to the land will be advantaged if such a grant is made.
The claimants excluded three public roads from the claim, excising land to go around sacred sites in the vicinity of roads. The NT Department of Transport and Works acknowledged that road reserves should be located to avoid sites - a flexibility which, Toohey J commented, is to be commended. The NT Government has gravel pits associated with the roads as well as water gauging stations and bores, for which it requires continued use and access.
It also wishes to have continued access to land surrounding the airstrip (of which it is licensee) so that licensing requirements, such as clearing the land, can be met. Toohey J discussed the rights of various parties under Commonwealth and NT laws and commented that any uncertainty as to what might or might not be done on this strip of land could be rectified by a written agreement between the Land Trust and governments. Alternatively all the land within the aerodrome reserve could be excised from a grant.
The NT Government also has interests in the old police station and a grave reserve.
No significant detriment too mining interests was demonstrated. Tourist activity in the area, especially at the popular fishing and camping area around the Roper Bar and boat ramp, could be affected if tourists are confined to public roads and the town of Urapunga. There are sites of importance to the claimants in the vicinity of the police station and the Bar, and the use of that land by tourists was opposed by the claimants. A local storekeeper who lives in the area will suffer if there is a substantial drop in the number of tourists, on whom he depends for his livelihood.
A stock route extends across the northern part of the claim area and local pastoralists will suffer detriment if the stock route is not available to them, and if the mustering of their straying stock on the claim area is prohibited.
Historical sites in the area fortuitously fall within blocks of land unavailable for claim and are, in any case, protected by NT legislation.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1983/11.html