Libesman, Terry; Libesman, Heidi --- "Interview: Peter Yu" [1995] AboriginalLawB 47; (1995) 3(75) Aboriginal Law Bulletin 12

• Interview: Peter Yu

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Interview: Peter Yu

by Terry and Heidi Libesman

Terry and Heidi Libesman (italics) spoke with Peter Yu (PY), Executive Director of the Kimberley Land Council, at the Native Title in the North Conference held in Townsville in June 1995.

How was the Kimberley Land Council formed and for what purpose?

PY: The Kimberley Land Council was formed in 1978. To understand why it was formed, you have to go back to 1968 when the introduction of equal wages in the pastoral industry led to widespread retrenchments. Prior to the award, pastoralists used to pay tobacco, clothes, flour, sugar, tea, and other rations rather than wages to Aboriginal workers. Following award wages there was a massive involuntary migration off the land because white pastoralists were not willing to pay Aboriginal people wages. People were pushed into service centres like Fitzroy Crossing and Falls Creek. The populations in these centres increased by 2000% overnight. There were no infrastructure services within towns to cater for this huge refugee population. There was the need for a land council.

The Kimberley Land Council also developed out of the growing concern about the breakdown in the social and cultural discipline in the community. People were pushed off their traditional country. A lot of the senior people got very concerned about that. Many different peoples were brought together on somebody else's country, on somebody else's land. There was a desire on the part of some of the old people to move back to their traditional country; to their land. I think that moving into town was too much for a lot of old people, people died. They were ravaged by alcohol and conflict between different groups. People who did try to move back to their country found that they were confronted with exploration and mining activity. There were mining companies running around everywhere in the early, mid, and late '70s in the Kimberley region.

Two other moments in history which influenced the formation of the land council were the enactment of the Aboriginal Land Rights (NT) Act [1976 (Cth)] across the border in the Northern Territory, and the Noonkanbah dispute, which started in about 1978, and culminated in the West Australian State Government sending a paramilitary force into the drilling rig at Noonkanbah. The Land Council provided a focus for dealing with the aspiring land issues for traditional owners, as well as the political difficulties related to the protection of significant areas.

The decision to form the Land Council was made at Noonkanbah in 1978. Most of our initial funding came from overseas agencies, the World Council of Churches, and many public donations. We didn't receive formal government support from within Australia until about the mid-late '80s. We did lecture tours around Europe and sought public donations by way of subscriptions for newsletters, etc.

The Land Council provides a regional focus for the political and land issues that affect the Kimberley region. In the late '80s, the Land Council was dealing with everything from housing to health and education. In more recent times, with the emergence of other service organisations, we have tried to redefine our role.

How have government policies impacted on the peoples of the Kimberley region and what legacy have these policies left?

PY: There was no turning back with the impetus that was generated by the establishment of the Land Council. A greater awareness of local, state and federal government policies which impacted on Aboriginal people led people to question these policies.

Peoples in the Kimberley have always said this is our land and they've never viewed the land as anybody else's. Land ownership is part of the psychology that exists in Kimberley Aboriginal communities. It is therefore a bit strange if somebody comes and says to us, Well, there's now a Native Title Act and we've finally recognised your country'. This causes confusion because we've been here, we've always owned the land, even though governments' policies and programs have imposed certain restrictions on us.

The attitude in Western Australia towards Aboriginal peoples is pretty peculiar. This is to some extent evident in the Land Council's relationships with governments and their agencies. This applies equally to the Labor Government in the '80s and the current Court Government.

I think people saw the Seaman Report, which was released in 1984, as a benchmark in terms of some formal acknowledgment of land rights within the white, legal, structure. The Seaman Inquiry considered what people mean when they talk about their primary interest in land and their wanting to get governments to recognise that relationship as the basis of their ownership. People were demoralised after putting a lot of energy and time into contributing to the Seaman Inquiry. Their aspirations were raised with the Inquiry and then dashed with the Burke and Hawke governments turning away from national land rights legislation in the mid '80s. I think it took four or five years for people to recover. In that period you saw the proliferation of Aboriginal service organisations, resource centres, language centres, law and culture services, medical services. These were formed for very important cultural reasons, and because of people's dissatisfaction with the inadequate level of services provided by government and other responsible agencies. Unfortunately, while that's been very important in terms of the quality of service, it's also provided some fragmentation with regards to political decision-making. I think that people got preoccupied with their day-to-day responsibilities and with their administrative responsibilities to funding bodies (most recently ATSIC). This preoccupation took the focus away from the growth of the political movement, but that has certainly changed over the last couple of years.

Do you think the negotiating power, or attitudes and relations between people in the Kimberley region and all tiers of government, has changed significantly with Mabo (No. 2) and subsequent native title developments?

PY: We have to acknowledge that this has been an important step in terms of recognition of a legal and negotiating framework in this country. But our experience to date with the operations of the National Native Title Tribunal raises our concerns. There continues to be that lack of understanding.

Governments continue to see Aboriginal aspirations and Aboriginal rights as problems, concerns to be dealt with by implementing administrative structures and government policies to deal with us. There is some concern that at this stage people will see the Native Title Act 1993 (Cth) as operating in the interests of nonAboriginal people. The Act has been operative for the last 15 to 18 months and there still hasn't been a determination.

We face a number of problems with the Act and Tribunal procedures. For example, non-claimant applications in effect trigger a full-blown claim, and we don't have a secure independent resource base to enable people to meet their obligations under the Act. The burden of proving ownership, regardless of how an application has been initiated, lies with the native title claimants. The only 'protection' that people have is the right to negotiate provisions which become opertive once the Tribunal has accepted a claim. Interested parties then have to deal with the claim and negotiate with those who have interests in the land.

Do you see any indigenous or governmental organisation/s as providing a structure or model for Aboriginal governance or provision of services to communities?

PY: I don't think so. I don't know of any particular models that exist around the country. I think that now is the time for Aboriginal people to develop appropriate representative structures such as new, more responsive corporations. Clearly the operations of the Aboriginal Councils and Associations Act (1976 (Cth)) have not been effective in providing a level of self-determination to people. Now we have prescribed body corporates under the Native Title Act. Native title holders need a legal and political context within which they are able to make full determinations about matters that affect them and their ability to fulfil their responsibilities for their country. I think it is an appropriate time to look at the deficiencies of existing structures, and ways in which they can be recreated to give peoples greater control over the determinations that are necessary, as far as they are concerned, on their own country.

How do you think self-determination could be defined in the Kimberley region?

PY: Well, I think it's going to be a long time. Self-determination is a much misused word. I don't see self-determination fitting into one particular box or one particular structure. I think there are a number of different stages to self-determination and I think that the next stage for us in the Kimberley region is to look at selfgoverning structures. We are looking at the idea of regional agreements and at the possibility of setting up regional representative structures. There needs to be a realignment and renegotiation of the sort of structural relationship which exists between governments and Aboriginal people. We continue to be administered by colonial centralist systems from Perth and Canberra.

I don't think we can be defensive when trying to define what ATSIC's role is. I think what we're trying to achieve in the Kimberley region is consistent with the concept of ATSIC. It is just a further evolution of that process. What we are saying is that we are better placed to be able to make decisions for ourselves locally on the ground. There is substantial evidence to point towards why the current inefficiencies and deficiencies in Kimberley services exist. The Kimberley economic study done by Greg Crough and Christine Christophersen [Aboriginal People in the Economy of the Kimberley Region, North Australia Research Unit, ANU, Canberra, 1993] clearly indicated that we are substantial stakeholders in the regional economy. We are the second biggest income earners after the Argyle diamond mine. We provide up to $30 million worth of wages in terms of our regional organisations, compared with the four local government councils which provide one-fifth of that. We still continue to make up a majority of the population. The official figures are about 46% but our estimate would be closer to 50-52%. Our presence is even greater if you consider people living and dying in the Kimberley region. For example, statistics show that 70-75% of Kimberley kids going to school from year one to year ten are Aboriginal kids. The inappropriateness of the school curriculum is illustrative of policy which fails to service the population. The statistics which show disadvantage in education, health, training, and local market participation are well known. One has to question why these quality of life matters have not improved when there has been substantial investment by governments in these programs. Secondly, why has there been a proliferation of Aboriginal service agencies? I think that this quite clearly points to the dissatisfaction with the services provided and the inability of governments to understand what Aboriginal people want. There has also been corrupt subsidisation of State Governments with Federal monies allocated for servicing Aboriginal communities. There has been little State Government accountability to the Federal government or the Aboriginal people whom the State Government is supposedly servicing. The following example illustrates the failure of the State Government to adequately service Aboriginal communities. Currently in Western Australia there is a freeze on the granting of living area excisions on pastoral leases for Aboriginal communities. We have about 150 outstanding applications. People in this situation are not able to apply for infrastructure development because they have no secure tenure of land. The State Government's own report, which they have had for the last 12 months but have not released, clearly indicates that there are very strong benefits to be gained by establishing a statutory regime for living area excisions. People get out of town to get away from grog, their health improves, there is greater determination in terms of looking at local enterprises, etc. All those sorts of things are very constructive moves forward. They exemplify self-determining initiatives by the Aboriginal people, yet the Government wants to stop this movement. I suspect one of the reasons why they are wanting to stop this movement is because they do not want the responsibility for what would normally be considered our citizenship entitlements - provision of infrastructure, health, education, etc. The Government, in attempting to stop the outstation movement, is not only denying what we see as an inherent right to stay on country, but also the provision of essential services which are citizenship entitlements.

Do you see the land fund as established under the Native Title Act contributing to quality of life issues and other aspirations in the Kimberley region?

PY: I think it's just a further step. I think Aboriginal people have got to get away from the perception that whatever the government implements in terms of its policies and programs and legislative changes are the be all and end all. They are just stepping stones. What they're doing is just opening up the scope for further legal test cases and challenges that Aboriginal people might have available to them in terms of defining, within the white legal system, what our rights are. In contrast, the whole thrust of a regional push is to get a strong political base, to get some accountability, an understanding of the major policy issues of governments, and a capacity to challenge anything the government might do to try and undermine what has been achieved already; but also to progress in a more unified sense on a regional basis the political, economic, and social aspirations of the peoples in the Kimberley region. While the Land Fund Corporation is a step, the funds available are not going to solve the land aspirations of Aboriginal people and I don't think it's ever going to. I thinks it's a bit naive to expect that governments are going to solve things for us. It has to be Aboriginal people who progress and solve thesee matters. However, there is also a lot of work that needs to be done internally in terms of mediation and conflict resolution between oui own groups at the same time.

Do you see regional agreements as localised agreements or as nationally connected in some toay?

PY: Regional agreements can mean many things. You can have agreements between indigenous groups, you can have agreements between varying representative agencies, you can have agreements between resource developers and all the different tiers of government. The concept covers two levels. One is the ability of the traditional owners who own their land, their country, to be able to make determinations about what happens on their land. This may include decisions about the future of their lives, the benefits that might be gained through entering an agreement, or any other decision. Any contract, any joint venture arrangement, is subject to their decision. It is their land. Secondly, there are the agreements that might be tied to the establishment of some regional representative structures. One purpose of these structures is to deal with the broader economic, political and social policy negotiations; to look at principles and protocols for governments, and other agencies, to adopt when they deal with native title holders as community groups, or other Aboriginal communities. The establishment of regional structures is a move towards ensuring that people's rights are recognised, even though people may be dispossessed, and people may not be able to claim native title. At the same time, an important function is to provide a definition for what contemporary Aboriginal rights might be and to progress that political argument. Regional organisations also have the responsibility to ensure that appropriate public policy in relation to quality of life issues are developed, and that Aboriginal people have control over and ownership of the implementation process for those policies.

Do you see constitutional entrenchment of rights secured under agreements as a realistic and/or desirable goal?

PY: I think that's going to happen. I think that what we're initiating is a process whereby there will hopefully emerge some degree of political strength and unity. We will have our own political house in the Kimberleys, and hopefully that will be replicated throughout the country on a regional basis. Ultimately, we will see the bottom-up approach in terms of the political unity that needs to come. I don't think we've had a successful national structure representing the political views of Aboriginal people as yet; and it's certainly going to take a very long time for Aboriginal people to establish an economic position whereby they have the political and economic strength to influence governments, to the extent that governments can deal with Aboriginal people and our rights. Ultimately, I think that one of the objectives would be to see some sort of constitutional embodiment of rights as defined by Aboriginal and Torres Strait Islander people.