Bottrill, Angus --- "Paradise Denied" [1991] AboriginalLawB 3; (1991) 1(48) Aboriginal Law Bulletin 4

• Paradise Denied

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Paradise Denied

by Angus Bottrill

The High Court of Australia is expected to rule in the near future on the question of whether indigenous title and rights to land are recognisable in Australia, (see Mabo case note [1991] AboriginalLB 6; 2(48)pg10). In the course of presenting evidence for the purpose of determining the questions of fact, there were approximately 300 objections from the defendants' solicitors. Most of the evidence objected to was found to be admissible, however the process was cumbersome and highlighted problems that Aboriginal people have in proving the nature of traditional land usage within the parameters of the Anglo -Australian legal system. Historical documents provide valuable corroboratory evidence (in a form acceptable to Australian courts) of claims which traditional owners are making. Below Angus Bottrill examines historical documentation of Aboriginal ownership and usage of the Paradise Reserve in Western Australia.

With the failure of the Western Australian (Burke) Government to legislate the recommendations of the Seaman Aboriginal Land Inquiry, 1984, there is renewed interest in establishing whether indigenous title will be recognised by the courts in Western Australia. This interest may gain momentum with the current Mabo test case.

In the Murchison Estuary region of Western Australia, near the holiday resort town of Kalbarri, attention is being focused on attempts to protect Aboriginal interests in the Paradise Reserve, which was, until recently, unvested and used by local Aboriginal people for camping and traditional pursuits. In 1987, the WA Government vested the reserve in the Shire of Northampton, effectively prohibiting the Aborigines from their traditional uses.

Evidence of permanent habitation of the Kalbarri region and the use of the area from pre-contact times can be disarmed from the writings of the early WA explorer (and later Governor of South Australia) Sir George Grey. On April Fools' Day 1839, Captain (later Sir) George Grey's boats were wrecked at Gantheaume Bay, near the site of the modern resort town of Kalbarri. He and his party had to complete their journey south to Perth by foot through lands not previously reported on by Europeans. Walking through the area near the mouths of the Murchison and Hutt Rivers, during the following four days, Grey reveals his pleasure at finding a well watered and populated country in the following phrases:

"the natives fishing in the distance"; "a most romantically situated native well ... of a depth and size such as we had never before observed"; "the native path ... became wide, well beaten, and differing altogether, by its permanent character from any I had seen ..."; "the path increased in breadth ... along the side of it we found frequent wells, some of which were ten and twelve feet deep, and were altogether executed in a serious manner"; and; "we had entered the most thickly populated district of Australia that I had yet observed ... one which must have been inhabited for a long series of years, for more had been done to secure the provision from the ground by hard manual labour than I could have believed it in the power of uncivilised man to accomplish".

On April 5th 1839, in passing and naming the Hutt estuary, he found numerous Aboriginal paths, and large parties of Aborigines "trooping in from all directions". Coming to the mouth of the Hutt River and being unable to ford it they followed it for two miles, and;

"in this distance passed two native villages, .... the huts of which they were composed differed from those in the southern districts, in being much larger, more strongly built, and very nicely plastered over the outside with clay, and clods of turf, so that although now uninhabited, they were evidently intended for fixed places of residence."

On April 6th 1839, they continued generally south about one mile inland from the coast and reached the mouth of the Bowes River;

"This spot was a favourite haltingplace of the natives; and from the number of buts, and other indications which we saw, the district must be very densely populated. The huts were of the same superior construction as those which we had seen on the Hutt, and the traces were very recent ... ".

On April 7th 1839, they proceeded past the Bullet River along an Aboriginal path over a tableland to the Chapman River. Ascending heights, they observed a party of well armed Aborigines going through a variety of ceremonies on the top of Mt Fairfax, 400 yards due north of them. Again reaching the coast south of what is now Geraldton harbour, the Aborigines mustered a very large force, who on being approached, although very numerous, were by no means hostile.

On April 8th 1839, Grey's party continued south and again sighted and recorded numerous well constructed dwellings which housed at least one hundred and fifty Aborigines.

Lt Helpman RN visited the area briefly in 1846 and confirmed Grey's descriptions of superior housing.[1] The three Gregory expeditions in 1846 and 1848 confirmed the Grey reports of good country and substantial Aboriginal populations, but failed to confirm the existence of settled villages and networks of paths or developed tracts of `warren' [yam plants]. This cannot be construed as throwing any doubt on the existence of such signs of permanent occupation. Indeed, it may be significant that having access to the reports of Grey, these later explorers did not remark on or note the absence of these phenomena which had been so clearly emphasized by their precursor.

Furthermore, in the Proclamation of 18 June 1829, issued at the inauguration of the Colony, Captain Stirling had stated that the King had "been graciously pleased to confide in me the power ... to grant unoccupied lands ...."[2]. This suggests that he was not empowered to grant occupied lands. Little wonder that the Gregorys, charged with the primary object of, "the discovery of new land of an available kind for pasture ... the attainment of which the interests and perhaps the fate of this colony depend" in that district, and backed and accompanied by land-hungry settlers, omitted to mention any evidence that might suggest that the prime areas were not legally available because of Aboriginal occupation.

Indeed, Colonial Secretary Madden's instructions had included the words; "it is hardly needful to observe that this chief object may be promoted and attained without neglecting to observe ... the character, dialects and customs to some extent, of the aboriginal tribes Gregory's report gave the barest descriptions of Aboriginal contact. This deficiency of description in the light of Madden's phrase "to some extent" may even indicate that the local authorities did not want Grey's observations to be corroborated.

Thus we see evidence of permanent Aboriginal occupation continuing over a period of more than eight years prior to European settlement. Grey's findings did not deter Governor Hutt from reporting to the UK Government one month later that Aborigines had "... no fixed place of residence, no habitations but those which the weather temporarily necessitates them to erect ..."[3].

In 1849 it was decided to found a settlement at Champion Bay, following the inauguration of lead mining at the Murchison River. The Inquirer published articles showing that Grey and Gregory had concurred on the quality of the country in that area but omitted all of Grey's references to the quality of Aboriginal occupation in the area. However, an anonymous letter to the Editor, in the October 10 1849 issue, remonstrated that the seizure of the land was inexcusable.

"Our Relations with the Aborigines at Champion Bay...
...The native and the white man have met - and their intercourse has already been marked with misfortune. ... But when we hear that the country is to be taken possession of, the land lotted out, the white man and his interests and passions again placed in juxtaposition with the Aborigine and his, we are led to ask ourselves what will be the result ... The settler will doubtless be protected - troops are to be sent up, and every means taken to ensure his safety - ... But is this the utmost that is required? ... The plain question of right and wrong is too apparent to require either argument or illustration ... No proclamations, no planting of flags, no granting or purchasing, can move one jot the just claim of the native to the soil..."

Soon much of the land near the Bowes and Hutt rivers would be taken up by W Burgess and J Drummond who became Magistrate and Police Officer/ Native Protector respectively in that district. They would have been well aware that the land had previously been occupied permanently by Aborigines, particularly in the light of Grey's uncontested reports. It is clear, from Sir Albertus Bain's anecdotes, which illustrate how Burgess in cold blood murdered an Aborigine who challenged his magisterial authority, and how Drummond was implicated in uninvestigated killings of Aborigines 'resisting arrest', that they would not have hesitated to abuse their sworn duty, when tenure of their properties was at stake.

That there was no consent to European settlement in the area was manifested in December 1884 by Aboriginal demonstrations against Governor Fitzgerald's party on their visit to the newly commenced lead mine on the Murchison River. During their visit, the Governor shot and killed an Aborigine and he in turn was speared in the leg. Attempts were also made by Aborigines to drive off and kill livestock on the ever encroaching pastoral properties.[4]

The question of Aboriginal occupation and usage of the land at the time of colonisation goes to the foundation, both legally and morally of the colonisation of Australia. The evidence of substantial permanent Aboriginal occupation in the Paradise Reserve area could serve to revitalise interest in a legal challenge to the dispossession of the Aboriginal people from Paradise Reserve. In most Commonwealth countries pre-colonial indigenous title to land has been recognized by the courts. It does not appear that any statute, instruments or direction ever stated explicitly or implicitly that the Aborigines were to be dispossessed or deprived of their common law rights. This issue is currently before the High Court of Australia (see Mabo case note [1991] AboriginalLB 6; 2(48)pg10 ). The question whether Australian courts will recognise Aboriginal occupation and usage of the land from time immemorial goes to the heart of race relations in Australia. As Henry Reynolds argues, the rights which Aboriginal people are claiming; "rights based on immemorial possession; the right to compensation; and the right to inheritance," are not foreign to our legal system.[5] The Aboriginal peoples of Australia should not have to rely on the `goodwill' of governments for access to and use of their lands.

The Boomerang Aboriginal Council of Geraldton has recently been obliged to appeal to both Federal and State authorities to ensure free Aboriginal access to and use of Paradise Reserve, in the very country described by Grey near Kalbarri. This reserve, which has numerous sites and camping areas of great significance to local Aboriginal people, has been vested in the Northampton Shire for recreational purposes. Many of the Aboriginal people affected lived on Murchison House Station (and other stations ) for many years after their lands were usurped. Most Aborigines were turned off stations in the late 1960's when they became eligible for award wages. Having no land they were forced into the towns of Northampton, Geraldton and Carnarvon.

Their ancestral lands have been alienated to freehold farms or the National Park. Some of their lands are held in pastoral stations. Attempts to persuade the Commonwealth Government to purchase Murchison House Station for them, were unsuccessful. Eventually it passed into the hands of the self-styled Prince of Hyderbad. Under his management they have been restricted from visiting these sites, many of which are registered under the Western Australian Aboriginal Heritage Act. Now a mining company wishes to mine chalk extensively on the station. Aboriginal people believe sites may be jeopardised by this development but they have not been able to enter the station to verify this. The Aboriginal Legal Service has not yet made any decision regarding legal action and it appears that the WA Aboriginal Affairs Planning Authority is not prepared to finance any such legal investigation or action as they feel their funds are needed for other priorities such as sewerage, water and power.

The barren results of the Seaman Aboriginal Land Inquiry, 1984, indicate that there is faint hope that any satisfactory action will result from the Boomerang Aboriginal Council's representations. In the light of the present Mabo action and the historical accounts of Aboriginal occupation of the Kalbarri region, it may be possible for the traditional owners of Paradise Reserve to pursue common law remedies in respect of their ancestors' dispossession.

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[1] Letter to the Colonial Secretary: 9 Dec 1846: Diaries II; Battye Library.

[2] West Australia: JS Battye. Appendix I. p.548.

[3] European - Aboriginal Relations in Western Australian History; Reece & Stannage: p.126

[4] Ancient Landmarks: Sir Albertus Bain

[5] H Reynolds: “A Just Settlement” Aboriginal Law Bulletin No. 33 August 1988, [1988] AboriginalLB 38; 2(33)pg7