Aboriginal Law Bulletin
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by Bruce Reyburn
The issue of Aboriginal people gaining recognition for their full rights on land held under pastoral lease in the Northern Territory will become a major battleground for human rights in the 1990s and beyond.
When considering the relocation and resettlement of the Aboriginal people of Australia, any pattern of movement away from their country can only be seen as part of a boomerang movement of return. To contemplate the separation of people from country is pointless. It is equally pointless to contemplate the separation of the country from the people.
In the Northern Territory, the white pastoralists (cattle and beef barons) presently stand poised to drive even deeper the hundred-year-old wedge that separates the Aboriginal people from their country. In many cases they have succeeded in forcing a temporary retreat by Aboriginal people from land held under pastoral lease.
The Northern Territory was granted self-governing status in 1978. Immediately, the white interests that had underwritten the County-Liberal Party government set about consolidating the hold they had acquired on Aboriginal countries. The "locked-gate" strategy of the pastoralists, combined with bluff and intimidation, was directed to ensure that once the "property" had been rid of Aboriginal inhabitants, it remained so.
Aboriginal people on some pastoral leases refuse to accept that they may only remain on their country if they are "workers" (and, as such, liable to dismissal); their continued presence has been a thorn in the side of the pastoralists. The other thorn is the reservation in the pastoral lease that guarantees the legal right for Aboriginal people to live on their land. Although this has long been abused, the continued existence of the reservation serves to compliment the on-the-ground efforts of the Aboriginal people to maintain their relationship with their country.
Although the Crown did not acquire the land from Aboriginal people in the first instance, it made provision in the pastoral leases which, if adhered to, would have produced a very different history of human rights in Australia. The genesis of the reservation in the lease, is found in the instructions from the British secretary of state for the colonies to the governor of NSW in 1848 (Earl Grey to Fitzroy, 11 February 1848: at this time, the whole of the Northern Territory was still part of NSW). Grey wrote:
I think it essential that it should be generally understood that leases granted for this purpose give the grantees only exclusive rights of pasturage for their cattle and of cultivating such land as they may require within the large limits thus assigned to them but that these leases are not intended to deprive the natives of their former right to hunt over these districts or to wander over them in search of subsistence in the manner to which they have been accustomed, from the spontaneous produce of the soil, except over land actually cultivated or fenced in for that purpose (quoted in Central and Northern Land Council submission 1988).
Clearly, the white interests were to be protected by fences; the Aboriginal interests were to continue to range over the country. The history of the Northern Territory has been such that the inverse is the result.
The lands of the Northern Territory Aboriginal people were not subject to pastoral leases until after 1863 when South Australia undertook to exploit, by way of speculation and settlement, the carefully nurtured Aboriginal inheritance. As the lands of other people were taken up in Queensland (1840-1870), pressure mounted for the discovery of fresh fields of interest for speculative capital. The Crown's issuance of new leases in the Northern Territory during the 1870s created a trading frenzy, in which the fate of many Aboriginal people was placed in the hands of gamblers in distant cities. This activity was followed by the actual invasion of cattle into the life-sustaining ecosystems. Tens of thousands of water-guzzling bullocks were driven into the arid Northern Territory lands. Their monopolization of the grasslands, under the careful supervision of the owners' rifles, was the beginning of a social and ecological disaster.
The leases issued by the South Australian Government contained in them, as instructed, the reservation in favour of Aboriginal people. It allowed the Aboriginal people;
full and free right of ingress, egress and regress into, upon and over the said Waste Land and of the Crown ... and in and to the Springs and surface water thereon and to make and erect such wurlies and other dwellings as the said Aboriginals have been heretofore accustomed to make and to take and use for food birds and animals ... in such a manner as they would have been entitled to if this demise had not been made (Reynolds 1987:144)
There was widespread Aboriginal resistance to the invasion of their country. They made it clear that a fundamental conflict existed between the cattle industry and the interests of the Aboriginal people.
The emergent whitefella social structure in the Northern Territory in the latter part of the nineteenth century chose to replicate that of other parts of Australia: to consign the lives and rights of Aboriginal people to the scrap heap and to promote economic viability as the sole criterion for the application of justice. This choice ran through all levels of the frontier society. Getting away with black murder came to be regarded as the right of the frontiersman.
The Commonwealth Government, formed in 1901, acquired the Northern Territory from a disillusioned South Australia ten years later. The reservation in favour of Aboriginal people continued to be written into the pastoral leases; it also continued to be ignored. Aboriginal people were either pressed into unpaid labour in return for rations, forced to move to government ration stations and reservations, or sought refuge on the few cattle stations on which they were permitted to form communities. Aboriginal people were classified not as citizens but as wards of the state. They were expected to die off. They did not.
With the change in the domestic and international climate in the 1960's, Aboriginal people were by referendum made citizens of Australia. This was accompanied by a campaign for equal pay for black workers on cattle stations.
The response of the pastoralists was to move rapidly toward employing white stockmen exclusively, replacing droving with trucking and men on horseback with helicopter mustering. The Aboriginal labour requirement was reduced to a minimum. Peak seasonal demands were met with short-term "contract" labour. The Aboriginal community's only value to the pastoralist was now reduced to the fringe benefits incurred by cashing their welfare cheques for them. As government supervision of this practice increased, to ensure the money was going where it was intended, their perceived value was further reduced.
In 1970 the Commonwealth government established a committee of inquiry to investigate conditions on pastoral properties in the Northern Territory. Despite the fact that the recognition of Aboriginal rights was about to undergo a quantum leap in 1972 with the election of the Whitlam Labour government, the Gibb Committee produced an abysmal report that was silent on the abuse of the reservation protecting Aboriginal interests (just as it was silent on the abuse of reservations concerning environmental degradation). The Committee recommended in effect that Aboriginal culture be declared dead and Aboriginal people be fenced in:
That in appropriate areas land be obtained by excision, or by sub-lease from the pastoralists for Aboriginal communities for limited village, economic and recreational purposes to enable Aborigines to preserve traditional cultural ties and obligations and to provide the community with a measure of autonomy; such land naturally needs access to adequate water supplies but in addition it should be of such an area and such a quality that some supplementary activities may be encouraged upon it eg pig, poultry and fishing, gardening and artifact making, etc. (Gibb Report 1971:74)
Gibb excisions, as they are known, entered the political debate as part of the diffuse negotiation process occurring at several levels between the Aboriginal and Anglo-Australian social formation. The power play of the Country-Liberal Party is directed to keeping the discussion within the bounds of the granting or not granting of such excisions. The party refuses to contemplate other alternatives, such as the marriage of interests which would result from the joint ownership and joint management of cattle stations on Aboriginal land.
In 1978 the Commonwealth Act was passed granting self-government to the Northern Territory. This enabled the white interests, which predominate in the Northern Territory electorate, to enact legislation. (See Pat Dodson's "Statehood" [1989] AboriginalLB 41; 2(39)pg14) One of the first actions of the Country-Liberal Party on attaining office in 1978 was to amend the Crown Lands Act in respect to the rights of Aboriginal people resident on cattle stations. The amendment restricted access to educational, medical or other facilities located at the homestead to those Aboriginal people residing within 2 km of the homestead - restricted access which was to cease should the Aboriginal people relocate permanently at a place more than 2 km from the homestead or when similar facilities were provided on a "suitable" site.
This is an attempt to isolate the Aboriginal community from the central point in the system of brokerage established between the resources of the country and the provision of services. In the eyes of the Country-Liberal Party, the direct proceeds flowing from the wealth of the country are reserved for the commercial operators. The last decade has seen increasing pressure placed on Aboriginal communities resident within 2 km to live elsewhere.
Life on these outback cattle stations is extremely remote. The white bosses run "their" properties as feudal empires. The struggle of Aboriginal people to remain, on their own terms, within 2 km of the homestead goes on unseen. The effort of the Wambaya community at Brunette Downs is one outstanding example.
At Lake Nash, on the other hand, lack of support from outside organizations has resulted in the community being relocated to a "flash" (in-the-pan) government-sponsored settlement complete with houses, a school, a store and an electrical power supply. What these Alyawarra people have lost, however, is the ground which states that the wealth produced from the countryside is theirs by right and not by government largess. When the cost of upkeep of this settlement becomes prohibitive, the residents will find that they are legally excluded from the services at the homestead. Although it is comparatively easy for an Aboriginal community to negotiate an excision from a pastoral lease when it will take the community 2km away from the homestead; Aboriginal communities already off the pastoral lease find it exceedingly difficult to obtain a similar concession. Attempts to establish communities on pastoral leases and without whitefella title have been literally bulldozed into the ground.
It was discovered that the right to lay a traditional land claim to unalienated Crown land enabled Aboriginal people to claim stock routes and stock reserves, areas of land excluded from pastoral leases but not alienated to another body. For many Aboriginal people, claims of this type constitute the only chance they have of obtaining whitefella title to their own country.
The response of the NT Government was to form a land-holding corporation and to vest the title of stock routes and reserves in that body. In most cases these stock routes have not been used for genuine stock movement for more than 20 years; the problems of disease control in stock suggest that they will remain so. The move, then, appears to be designed to alienate the land and remove it from the scope of the Land Rights Act.
The issue of the claimability of stock routes and reserves has gone through the courts and has been resolved against the Northern Territory Government. The High Court of Australia refused the Northern Territory Government further leave to appeal in May 1988. This places those Aboriginal people who have made claims to the stock routes and reserves prior to the purported alienation in a position to negotiate with pastoralists for other areas of land under lease.
Prior to the resolution of the court cases concerning the stock-route issue, the NT government had set up, in 1984-85, a process of consultation with the Central and Northern Land Councils regarding excisions on land held under pastoral lease. These talks paralleled the actual introduction of a new form of title for pastoral lands.
The new perpetual lease title stopped short of freehold title, as freehold is universally acknowledged in Australia to run contrary to the interests of the pastoral industry itself. Freehold lacks the covenants that not only ensure that the land will be used for pastoral purposes, but also represent the wider interests of society regarding the use of the land. The perpetual lease, however, as opposed to the term lease, placed title firmly in the hands of a small number of companies and families. The Central and Northern Land Councils noted the Government's disregard for Aboriginal interests when converting term leases to perpetual leases.
Expressions of interest (lodged with Department of Lands, yet to be acted on by any party): 122
Negotiations proceeding: 15
Negotiations not proceeding/ deadlocked/ no reply: 60
Titles negotiated under guidelines
Crown term lease: 2
Freehold lease: nil
Rejections
lessee refusals: 59
Land and Housing opposing or rejecting: 2
Living areas negotiated and concluded prior to introduction of guidelines or as a separate process: 21
If all existing claims for excisions were granted, the pastoral industry would lose a tenth of one per cent of the entire pastoral estate.
The NT Government produced guidelines for considering excisions applications. Those groups eligible to apply for a five-year Crown lease are:
Those groups ineligible to apply are:
Although the NT Government has demonstrated a clear lack of political will with respect to negotiating living areas for Aboriginal people on cattle stations, it has been less inhibited in passing legislative amendments that further restrict the rights of Aboriginal people. In 1985, the Crown Lands Act was again amended to restrict the right to reside on land held under pastoral lease to those Aborigines who "ordinarily" reside there.
This amendment constituted a restriction on movement and residence incompatible with the culture of Aboriginal people. By tradition they move over, and reside at, different places on their country in keeping with seasonal and cultural dictates. Earl Grey's instructions have been inverted.
It will probably come as no surprise to learn that the NT Government is presently undergoing a major factional brawl over the issue of freehold title to pastoralists. Were the pastoral establishment to win - and that is the likely outcome - the final blow would be delivered to the wedge driven between Aboriginal people and the land which ancient tradition demands that they manage.
At least one of the leading pastoralists in the drive for freehold title has been identified, in the courtroom context of a land claim hearing, as being involved in the use of political patronage to bypass the agricultural inspection process similarly required by reservations in the lease.
As things stand, the well-being of Aboriginal people and their countries in the Northern Territory has been severely abused for more than 100 years. The treasure of the Dreamtime, which is coded in the landscape, is presently being ground under the hard hoof of the white man's cattle. It looks as though our inheritance is to be lost so that a few hamburger chains around the world, and a few magnates, can make a fleeting profit.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1989/35.html