Indigenous Law Bulletin
Certainty, like the convenience of terra nullius (empty land), is something many Australians have taken for granted in light of the hysterical reaction to Wik Peoples v State of Queensland & Ors. Yet it is this distorted obsession with certainty, coupled with efforts to polish Australia's tainted history, that provoked the High Court decision in the first place. If it weren't for the 200 years of uncertainty Indigenous peoples have endured, `Wik' would not be a household name.
Apparently uncertainty, flowing from this most recent native title decision, will erode the fabric of our society. What about the erosion of Indigenous society? The hypocrisy of this position indicates either complete ignorance of the uncertainty experienced by generations of Wik peoples, or guilt-ridden denial. Do people know the history of the Wik? Do people realise how ridiculous it is to demand certainty when current generations of Wik peoples have never even tasted it? Do people understand that the pastoral leases in question have never been permanently occupied or even fenced by white people?
The fact that the history of the Wik is largely unknown, like the history of all Indigenous peoples, is the result of concerted efforts to sanitise our colonial history and patronise us with some polished facade. Today the only `acceptable' history is one that is pleasing to the senses and allows `all of us' to feel united as one. But this is to overlook the truth of Australia's collective past. Voices calling for the truth are branded `black armband'. These are voices which demand that a factual platform underpin Australian society. History is not something that can be audited or whittled away. If Australians loudly celebrate the colonisation of Australia on that day in 1788, they should all celebrate and applaud the tenacious struggle of the Wik peoples for their survival and for their country.
The Wik are a nation of peoples comprised of Wik-Ompom, Wik-Mungkana, Wik-Paacha, Wik-Thinta, Wik-Ngathara, Wik-Epa, Wik-Me'anha, Wik-Nganthara, Wik-Nganychara, and Wik-Liyanh. Their traditional lands are located on the western coast of Cape York, from around the Archer River to the Edward River, and inland to the centre of the Cape. The Wik have occupied this land since at least the Pleistocene period, when these rivers would have run across a great plain with a huge inland lake, later to be filled with salt water as sea levels rose at the end of the last ice age.
For Wik peoples, this land has always been, and still is, their native title land. Their own Indigenous law and custom requires the Wik to be responsible for their country and take care of it. `To be taken away is like being removed from the very source of your being.'
British colonisation hijacked the certainty of title for the Wik to their country, a process aided by overtly racist government policy and the passage of legislation. In creating such obstructions the tenacious vigour of Wik peoples was underestimated. `Wik' may mean `small', but it does not mean they take dispossession lying down, hence their `fiery' reputation.
This reputation is supported by the spiritual ancestry and dreaming of the Wik peoples. Cape York is a region at the mercy of the `Wet' and the `Dry'. The Wet brings heavy rains and fierce storms, and to the Wik-Klakan people lightning is the mighty work of the sky-serpent--the rainbow, Taipan the rainbow serpent--whose agents, the voice of thunder and knife of lightning, are greatly feared. The child of the lightening is Wild Bush Fire Dreaming--a strong totem and dreaming story for the Wik peoples.
Whether by virtue of this spiritual armoury, or the scars of time, the Wik have vehemently defended their country. First, with bloodshed. Then, in the spirit of their new-found Christian faith, with strikes and demonstration. Then, when this failed, they turned to the legal system of their oppressors hoping to use it to further their fight for justice. Finally, after thirty years battling within the court system, the Wik decision has emerged as a small victory after over 100 years of uncertainty, and even this rests on shaky ground.
The first to encounter the tenacity of Wik peoples were Dutch explorers amongst whom they had a reputation as `fierce, treacherous and bloodthirsty'. In 1605 the Dutch crew of the Duyfhen landed on the west coast of Cape York, only to be driven away at spear point by Wik warriors. Several other Dutch explorers visited Cape York in the wake of the Duyfhen, again resulting in bloodshed. Indeed, proponents of the British monarchy should be grateful for the Wik's tenacity, without which we could all be speaking Dutch and saluting Queen Beatrix!
The British documented a similar experience of the Wik in an English journal in 1625: `In sending their men to shoare [sic] to intreate [sic] the Trade there were nine of them killed by the Heathens, which are man-eaters'.
Through their traditions of oral histories and dance, the Wik still pass on the story of the first encounter with Dutch explorers, over four hundred years ago. The story has been passed down through generations and is still told largely in the form of `first person'. The telling is in three parts and takes three days. It is the story of the taking of Aboriginal women, the killing of Wik people, and finally the meeting of the Dutch.
While Wik warriors drove the Dutch away in 1605, almost two centuries later the geographically dispersed Indigenous population were unable to defeat the practised British military. As a result, colonisation forged ahead upon the presumption of terra nullius, a presumption since overturned by the High Court in Mabo v Queensland [No. 2].
Ironically, in the same breath that terra nullius justified colonisation, colonists found themselves with a `moral obligation of the most sacred kind to make all necessary provision for the instruction and improvement of the Natives'. It was presumed that the Wik could not possibly know what was best for themselves and, given a taste of the British way of life, would quickly abandon the old ways. In the eyes of the British, Aboriginal culture was `living and dying in misery like the beast of the field'.
Beneath this facade of altruism and morality was a desire to proceed with the exploitation of acquired territory and its resources. It was believed that:
`the advancement of the Natives would do a good deal towards supplying that want of labour which is so much complained of as one of the Chief difficulties of the Colony'.For the Wik, the `benefits' of `civilisation' had more to do with slave labour and disease than upward mobility and, like other Indigenous groups under direct government control, Wik peoples suffered immeasurably.
The Church played a significant role in the `advancement' of the `Natives'. However this involvement was fiercely condemned by a large proportion of the North Queensland non-Indigenous community who regarded Wik peoples as `less than worthless, vermin which should be exterminated'.
In the face of harsh criticism the missionaries persisted and established missions on the west coast of Cape York at Old Mapoon and Aurukun, the latter situated in the middle of a swamp. The site of Old Mapoon marks the location of the Presbyterian mission to which peoples from numerous communities of the Peninsula were moved from the 1890s, after the intrusion of explorers, miners, gold-diggers and pastoralists in the mid-1800s. Perhaps the lives of many were indeed saved, as at the time hundreds of Aboriginal people were being slaughtered by pastoralists travelling up through the Cape York region. By conservative estimates, 20,000 people died in the fighting, in addition to the tens of thousands who died from disease and starvation.
`They were killing peoples all the way up. At Dingle Dingle Creek they killed most of the tribe. That's the Batavia River People. Billy Miller and Andrew Archie are of that tribe. Only fifty left out of three hundred'.While life under missionary rule was not ideal Mapoon was home: it was the Wik's traditional home and it was their Christian home. Despite the unfortunate location of the neighbouring Aurukun mission in a swamp, the Wik went on to survive measles (1875), and then tuberculosis (1930s), hookworms and the most virulent form of scabies in the world.
Those who survived disease and the gunfire of pastoralists provided labour for pastoralists, the mining industry, and the pearl shell, bêche-de-mer and turtle shell industries. Some were abducted, others went voluntarily seeking adventure, and some were sold by tribal elders in exchange for flour. During 1897, 100 young men from Old Mapoon were to work in the pearling industry, and only one third survived. Many died from lung complaints, emaciation and venereal diseases.
The problem facing missionaries at Old Mapoon was that while they opposed the conditions which brought about the high mortality of the Wik, the mission financially benefited from it. Rather than oppose what they felt they couldn't change, the mission co-operated by supplying labour in exchange for half the earnings. Finally, in 1897, Reverend Hey spoke out and expressed grave concern for Aborigines, whom he feared would `soon have disappeared from the face of the earth'. Further, he condemned recruitment of Indigenous peoples to the pearling industry:
`I believe only by absolutely prohibiting the employment of Aborigines in the pearl shell, turtle and bêche-de-mer industry can the evils be remedied and further evils prevented'.Time and time again economic motives took precedence over concern for humanity. As if the slave labour trade were not appaling enough, when the world's richest deposits of bauxite were discovered beneath Weipa and Old Mapoon in the 1960s, the Queensland Government forced Wik peoples away from their country at gunpoint, away from their homes. They were then relocated to the Northern Peninsula, to an area named by the Queensland Government `New Mapoon'. This is not some relic dug up from ancient history. It is fresh in both time and life.
The actions of the Queensland government
The Queensland Government assisted Comalco, which discovered bauxite, by passing the Comalco Act (Commonwealth Aluminium Corporation Pty Ltd Agreement Act 1957 (Qld)). Nearly 8,000 square kilometres were excised from the mission reserve. After a joint decision between the Queensland Government and Comalco to move the residents off the mission, the Queensland police forcibly removed the remaining residents from Old Mapoon to New Mapoon on 15 November 1963.
`We're the ones that were moved out by police, by gunpoint, [on] that boat they sent for us ... sneaked in on us in the night ... they came from Thursday Island. We were really sad, but we just had to go because they told us we were going for questioning. At the Bamaga wharf they told us there were seven houses waiting for us to walk in and light the stoves. And when we arrived in Bamaga there were no homes. We were just standing out in the streets like a mob of cattle with nowhere to go'.`This is what they do, but the world doesn't know. People don't know how we were treated. They destroyed the homes, burnt them down you know. And I seen all the burning down of the homes, the church ... it was destroying our culture, our lives.'
But the Wik did not go quietly, they never have. In opposition to intense pressure to abandon the mission, they demonstrated and went on strike, only to be put down with threats to deprive them of the mere services they received. Many were punished by expulsion, then prevented from returning to Old Mapoon, and people who left legitimately for employment, medical or other purposes were not allowed back, so that families were divided. When the missionaries eventually abandoned Old Mapoon, over 70 Aboriginal residents remained and lived off the bush, as they had always done. However, their refusal to go quietly was the last straw for the Queensland Government, just as relocation was the last straw for the Wik, who swapped spears for strike action and then litigation in the courts.
The first High Court challenge was Peinkinna & Ors v Director of Aboriginal and Islander Advancement, which the Church facilitated by providing Old Man Peinkinna with access to legal advice. In this case, the Wik peoples of Aurukun challenged an agreement by the Queensland Director of Aboriginal and Islanders Advancement, consenting to bauxite mining under which profits would be paid to him on behalf of Aborigines.
Old Man Peinkinna, on behalf of his people, won in the Supreme Court on the grounds that the agreement was in breach of trust. However, this decision was overturned on appeal by the conservative judicial committee of the Privy Council in 1978, on the basis that the Director of Aboriginal and Islander Advancement was under no obligation to make any particular provision for the community. Subsequent to this appeal the Federal Government, under Malcolm Fraser, passed an Act to assert control over the reserve, which the Bjelke-Petersen Government sidestepped by reclassifying the reserve as a shire. What the Premier overlooked, in his haste, was that the Wik were significantly empowered by this decision, which permitted them to make their own rules as a shire. However, self-determination was meaningless without certainty of title over their traditional lands.
Four years later (Tarpage) Old Man Koowarta, an Aboriginal man, challenged a decision of the Queensland Government in the High Court after he was prevented from owning land because of his race. In Koowarta v Bjelke-Petersen the Aboriginal Development Council contracted with the lessees of Crown land to purchase leasehold land on behalf of the Wik people. However Government policy opposed `proposals to acquire large areas of additional freehold land or leasehold land for development by Aborigines or Aboriginal groups in isolation'. In other words, the Winychanam people were not allowed to own land, their traditional homelands!
When Old Man Koowarta won this case, the Queensland Government moved swiftly to frustrate this victory. Their tactic was to proclaim a string of national parks on what was previously environmentally degraded pastoral properties that Aboriginal peoples had expressed interest in buying, to prevent these people from legally purchasing the land. The Wik peoples' law was put beyond their reach through conversion of their land into a national park.
Old Man Koowarta died during the late 1980s, leaving the fight for the recognition of his peoples' property rights to his relations. He is a symbol of the spirit of Winychanam people, and although his spirit has returned to his Homeland, he lives on in the struggle of his people for their property rights. This is the kind of justice so often experienced by Australia's Indigenous peoples.
More recently, the historic wrangling of Koowarta has been revisited following the decision of the High Court in Wik Peoples v State of Queensland & Ors. The Queensland Government, among others, is fighting to avoid a decision it doesn't happen to like. What next? Will the Queensland Government be calling for repeal of the Australia Act 1986 (Cth) to facilitate appeals to the Privy Council? Rather than progressing, the Queensland Government is once again attempting to deny the Wik and other Indigenous peoples the right to own their traditional lands, despite the fact that the Australian common law now expressly recognises the property rights of native title holders.
After over thirty years fighting for justice within the Australian legal system, the experience of the Wik is that law can no more offer certainty than the government. Every time the Wik attain a legal victory, the fruits of their victory are removed. Even Australia's domestically-entrenched international treaty obligations, like the Racial Discrimination Act 1975 (Cth), are not safe:
`Having agreed to play the game by our rules and take on the arduous task of arguing their case in the courts, they now face the prospect of seeing their gains snatched away by the passage of new laws'.
There is no question that the Wik people have been dished out a raw deal, despite earlier rhetoric describing the colonists' moral obligation to `do the right thing'. That's the same sort of lip service Indigenous peoples with which have always been patronised. In the face of perpetual oppression, the Wik have demonstrated incredible patience and courage. However, if the legal system can't help, what comes next? Everyone else is demanding certainty, while Indigenous peoples are expected to embrace their own uncertainty in the spirit of so-called reconciliation.
The underlying irony of the debate surrounding native title is that `extinguishment' and `reconciliation' are bandied around in the same breath, which reflects where we are at as a nation and just how far we have to go. True commitment to reconciliation would see the public's heart-felt empathy for pastoralists extending to Indigenous peoples dispossessed of their land. Calls for certainty of title would be embraced not only by pastoralists and miners, but Indigenous peoples as well.
However reconciliation cannot proceed without acknowledging the place of Indigenous peoples in Australia's history, instead of pretending they will go away. Embracing our collective past will unveil the injustice of extinguishment for the sake of certainty, when this certainty was only made possible by inflicting uncertainty upon Indigenous peoples. Instead, as a people, we are expected to remember nothing, forgive everything, and graciously accept what we are given.
 (1996) 141 ALR 129.
 Quoting Sunlight Bassini of Port Stewart in `The Homecoming' by K Houghton, The Courier Mail,
22 February 1997.
 Kie Daudai (1st Edition), E Toohey, Merino Lithographics, PL ISBN
No. 0 646 18545 4.
 Invasion and Resistance: Aboriginal-European Relations on the North Queensland Frontier 1861-1897, Loos, ANUP, Canberra, 1982, p 8.
 A Story of the Australian People (Queensland edition), K R Cram, George B Philip & Son, Sydney, 1927, p 12.
 `Power People' by J Schultz in The Courier Mail, 22 February 1997, p 24.
  HCA 23; (1992) 175 CLR 1.
 Wik Peoples v State of Queensland & Ors (No. QG 104 of 1993) at 46.
 Extract from the account of Rev FA Hagenauer's Tour of Queensland, from extracts of the Periodical Accounts, Missions of the Church of the United Brethren Among the Heathen p 15, cited in One Blood, Harris, Albatross Books, Sydney, 1990, p 485.
 Wik Peoples v State of Queensland & Ors (No. QG 104 of 1993) at 46.
 One Blood, Harris, Albatross Books, Sydney, 1990, p 486.
 `Long Forgotten War' by B Belsham in The Sydney Morning Herald, 1 March 1997, p 45.
 One Blood, Harris, Albatross Books, Sydney, 1990, quoting Jerry Hudson, p 487.
 Ibid, p 498.
 Hey, 1897, cited in One Blood, Harris, Albatross Books, Sydney, 1990, p 491.
 WF Roth (Chief Protector), QP, V&P, 1902, 1, p 1143, cited in One Blood, Harris, Albatross Books, Sydney, 1990, p 487.
 Hey, 1897, cited in One Blood, Harris, Albatross Books, Sydney, 1990.
 Unidentified newspaper clipping, 21 July 1897, cited in One Blood, Harris, Albatross Books, Sydney, 1990, p 492.
 Rachel Peter, personal conversation.
 Rachel Peter in Mapoon Story, Book 3, J Roberts and D McLean, International Development Action, 1976, p 10.
 One Blood, Harris, Albatross Books, Sydney, 1990, p 498.
 Ibid, p 499.
 Director of Aboriginal and Islander Advancement v Peinkinna &Ors, (1977) 17 ALR 129.
 It is the tradition of the Wik (as respect) not to use the first name of a deceased person--that person is referred to indirectly or as Tarpage.
  HCA 27; (1982) 39 ALR 417.
 Australian Constitutional Law: Materials and Commentary, (4th ed), PJHanks, Butterworths, Sydney, 1990, p 6.
 (1996) 141 ALR 129
 `Sins of the Colonist Repeated' by H Reynolds in The Courier Mail, 24 February 1997.