The gaps are

not closing: NT WORST

Pages 4-5 Pages 6-8 Pages 20-23 ROYAL COMMISSION STOLEN WAGES LAND RIGHTS ACT Call Off the Dogs Class Action RUBY ANNIVESARY A Lawyer Remembers 2 Land Rights News • Northern Edition January 2017 • www.nlc.org.au January 2017 • www.nlc.org.au Land Rights News • Northern Edition 3 A word from the Chair The NLC’s newly-elected Full Council of the Native Title Act by the Labor A communique issued after all the parties met for the first time at Timber Creek mid- government led by Paul Keating, following met on 16 February noted that it was the first November last year, and I was honoured the High Court’s historic Mabo decision the meeting for many years of user groups with to have been re-elected as Chairman. year previously. interests in the NT’s intertidal zone. All The gaps are gaping Where data on targets can be measured in comparison John Christophersen was elected deputy parties agreed that a new, cooperative and And, let’s not forget that 10 years ago the Chairman. productive approach is needed to implement Commonwealth Government (on 21 June matters outstanding from the High Court’s with the States of and the ACT, the has The NLC exists by virtue of the Aboriginal 2007) announced the notorious Northern 2008 decision - in particular, Land Rights (Northern Territory) Act 1976, Territory Emergency Response – the access to and management of the Aboriginal- performed worst, according to the Prime Minister’s ninth annual which commenced 40 years ago, on 26 “Intervention”. The lives of Aboriginal owned intertidal zone. January (Australia Day) 1977. people in the Northern Territory were most Closing the Gap Report which was presented on 15 February. adversely affected, and we continue to feel Discussion focused on the need to find This year, 2017, we will mark several its effect. solutions and develop plans to achieve an other anniversaries: Firstly, it’s the 50th understanding of the concerns of Traditional anniversary of the referendum which A big agenda item for the new Full Council Owners and their aspirations for the intertidal famously brought about two important last November was a decision to signal zone; resolution of immediate uncertainties changes for Australia’s Indigenous peoples. an end to the “interim” inter-tidal fishing about access; long term certainty for all The referendum, held on 27 May 1967, access arrangement with the Northern user groups; prioritising consultations with enabled the Commonwealth Government Territory government. The decision will affected Aboriginal communities; a five- to (a) make laws for all of the Australian not affect the seven agreements with the year strategy to implement marine ranger people by amending s51 of the Constitution, Government which allow permit-free access fisheries compliance powers; and ecological What are the (previously people of “the Aboriginal race for commercial and recreational fishers in sustainability of fisheries across the NT. in any State” were excluded); and, (b) take “high value” fishing areas. account of Aboriginal people in determining The negotiations were open and constructive, The NLC has since begun negotiations with the population of Australia by repealing s127 and I look forward to further talks towards targets? the Government, the Amateur Fishermen’s of the Constitution (formerly, Indigenous resolving this long outstanding issue. Association of the Northern Territory, Closing the Gap aims to reduce Indigenous people had been haphazardly included in the the Northern Territory Seafood Council, SAMUEL BUSH-BLANASI disadvantage. All Australian governments have census but not counted for the purposes of the Northern Territory Guided Fishing committed to achieve Indigenous health equality Commonwealth funding grants to the states Chairman Industry Association and the Environmental within a generation. or territories). Defender’s Office. In 2008, the Council of Australian Governments It’s also the 25th anniversary of the passing (COAG) set targets in health, education and employment to measure improvements in the health and wellbeing of Aboriginal and Torres Nick Bland 2017 Strait Islander people. The first Closing the Gap report was presented in 2009. he Council for Australian Government (COAG) has set seven targets (see “What are the Targets” on this To monitor change, COAG has set measurable The NLC’s New Executive Council page). But only one of the seven – to have 95 per cent of all Indigenous four-year-olds enrolled in early targets to monitor improvements in the health childhood education by 2025 – is “on track”. As with other targets, the Northern Territory falls far behind and wellbeing of the Aboriginal and Torres Strait other jurisdictions. Of Indigenous children enrolled in early childhood education in the year before full-time Islander population. The targets are: school in 2015, 92 nationally had attended early childhood education in 2015; in the Northern Territory the • Close the life expectancy gap within a attendance was only 73 per cent. generation (by 2031). • Halve the gap in mortality rates for Indigenous Closing the Gap in life expectancy between Indigenous and non- by 2031 is an ever- children under five within a decade (by elusive target. The Prime Minister’s report says it remains challenging because, among other things, non- 2018). Indigenous life expectancy is expected to rise over coming years. In the period 2011 to 2015, the Northern • Ensure access to early childhood education Territory had the highest Indigenous mortality rate (1520 per 100,000 of population), as well as the largest gap for all Indigenous four year olds in remote with the non-Indigenous population. See the table below. communities within five years (by 2013). The target to halve the gap in child mortality by 2018 is unachievable. The Prime Minister’s report on this target • Halve the gap in reading, writing and covers only four states to compare with the Northern Territory because the data elsewhere is not good enough. numeracy achievements for children within a But the comparison shows the NT’s child mortality rate is off the scale – three times the best-performing decade (by 2018). jurisdiction (NSW). • Halve the gap for Indigenous students in year 12 attainment rates (by 2020). The target to improve reading, writing and numeracy also shows the NT far behind the rest of Australia. The • Halve the gap in employment outcomes target covers eight areas (reading and numeracy for Years 3,5,7 and 9), and the NT alone was not on track for between Indigenous and non-Indigenous all eight (the ACT, by comparison, was on track for all eight). The NT had the lowest proportion of Indigenous Australians within a decade (by 2018). students at or above the National Minimum Standards for each area measured. • Close the gap between Indigenous and non- The Northern Territory also had, by far, the lowest proportion of Indigenous 20-24 year olds with Year 12 or Indigenous school attendance within five years (by 2018). equivalent attainment: only 29.7 per cent, compared with 61 per cent nationally.

Following the triennial election of the Full Council, the NLC has a new Executive Council, comprising the Chairman and Deputy Chairman, plus one member chosen from each of the NLC’s seven regions. They are pictured with CEO Joe Morrison (left). Back row, L-R: Raymond Hector (VRD), Peter Lansen (), Richard Dixon (-Barkly), Bobby Wunungmurra Overall mortality rates by Indigenous status: NSW, Qld, WA, SA and the NT 2011- Child mortality rates (0-4 years) by Indigenous status: NSW, Qld, WA, SA and the NT (East Arnhem), Ronald Lami Lami (West Arnhem). Seated, L-R: Helen Lee (Katherine), John Christophersen (West Arnhem, Deputy Chairman), Samuel Bush-Blanasi (Katherine, Chairman), 2015 (age standardised) 2011-2015 Elizabeth Sullivan (Darwin-Daly-Wagait). 4 Land Rights News • Northern Edition January 2017 • www.nlc.org.au January 2017 • www.nlc.org.au Land Rights News • Northern Edition 5

of children as “Dirtbags” in front page also been watching the negative reporting and criticism headlines reflects the basis of this of the Royal Commission. This reporting has made them approach. A society which so labels angry and unimpressed. But, make no mistake, they ROYAL COMMISSION: any of its children is going nowhere, see right through it for what it is. They want this Royal but the media do not care. Of course, Commission to work, to make a difference. They want it the media assert that they are reflecting to do its job, just like the McLellan Royal Commission. the concerns and views of the Is that too much to expect in Australia in 2017? community; but the truth is, they are The day after the Four Corners program, Aboriginal creating and encouraging such views. journalist Stan Grant wrote a moving column for The The effect is obvious and deliberate: Fair Go, not Fair Game Guardian. He talked about his tearful anger and rage community hostility towards child watching “those images”. Like many Australians, he offenders, thereby lessening interest said he couldn’t watch all of it. He called for “this Royal and support in the Royal Commission’s John B Lawrence SC* Commission to do its job. That it look at systemic failure work. and responsibility and retribution.” All of this raises several questions: He also wrote: “Things once seen, cannot be unseen; he Four Corners program on Don Dale screened Corners program, Dylan Voller and “AD”. Following Territorian: “in any case, the Why?; and what are the real reasons the images of those boys, teargassed, beaten, held down, on 25 July 2016. It showed Aboriginal boys being those sittings in December the Royal Commission was real winners of the Royal and motives behind the attacks, and by locked up, hooded. Those boys that look like my boys.” beaten, held down, stripped, shackled, hooded and adjourned, to recommence in March 2017. The original Commission will inevitably whom? To answer these questions, a tear-gassed by NT Corrections officers. It included date for completion in March was extended to early be the PORSCHE DEALERS couple of points can be made. “Cannot be unseen”? – I only wish he was right, but vision of what has become a contemporary symbol of August. of .” I fear not. In Australia 2017, things once seen can be Compare this media hostility towards Australian justice: Dylan Voller placed in a cell, bound unseen. Australian society lives in a 24/7 news cycle. At first, the Royal Commission was welcomed Sky News is a Murdoch the Royal Commission with the to a chair, hooded and catatonic. It was called, Australia’s The sad and dangerous reality is that most Australians unequivocally by most Australians who had witnessed concern, as is The Australian McLellan Royal Commission into Shame. can’t remember what was in the news, including what the existence of a savage regime within the NT juvenile and The NT News. All have Institutional Responses to Child Sexual was seen, two weeks ago. The critics of the Royal It created a massive reaction locally, nationally and justice system. The country was distressed that this had been consistently hostile to Abuse. That Royal Commission is a Commission are relying on that very fact as they internationally. Australians were shocked, appalled descended into manhandling, shackling and handcuffing the Royal Commission – five-year concern which has cost more continue to bombard the community with stories which and angered. This was much bigger than any previous kids, as well as placing them in the infamous Behaviour consider, for example, their than $430 million to date. It enjoys demonise children. crises which Chief Minister had managed to Management Unit (BMU) isolation cells without air stories after the live public extensive reportage. How does the successfully navigate. conditioning or fans for up to 16 days at a stretch. screening of Dylan Voller’s media coverage of that compare? Nevertheless, Stan Grant and the rest of Australia evidence to the Royal can rest assured on this: AD does remember. All of it. Not only had the images from the program created The image of Dylan Voller in that restraint chair Another question to ask now is this: Commission on 12 December And AD’s Nanna, his other family and his Aboriginal a tidal wave of outrage and anger, but most of the appalled most Australians. This was torture, and most Looking back to what was discovered 2016. community all remember it. What’s more, they are incidents broadcast were known to Giles and his CLP agreed with the Prime Minister’s decision to establish and what we objectively now know resolute that they will not allow the media and the colleagues. The gassing of the six boys in August 2014 a Royal Commission so as to find out not only what Unsurprisingly, his evidence about the inhumane juvenile justice interests they represent to prevent Australia having had been widely reported and was the subject of two practices had been going on, but, more importantly, reignited shock and anger. regime that had been in existence for the proper Royal Commission it so badly needs. investigations and public reports. how had an Australian legal system descended into The political editor of The years, why wouldn’t the Australian They believe that this Royal Commission will be the such medieval barbarism in the 21st century? Further, Age, Michael Gordon, community want this Royal Four of the six children gassed were suing the NT breakthrough moment in Indigenous relations that this who was responsible and to what degree? These were reported Mr Voller’s Commission to get to the bottom of it, Government in the Supreme Court for assault, and country desperately requires. the questions required of such an Inquiry to ensure that evidence on 13 December: discover exactly what was happening the Government was pleading that the actions of its recommendations would guarantee no such catastrophe “The first hour of dripping to these children, why and who was *John B Lawrence SC is a Darwin-based barrister. He is officers were, in the circumstances, “reasonable”. The would ever recur. The Prime Minister said this when testimony alone by Dylan Warriors of the Aboriginal Resistance (WAR), Australian flag spit mask, Don Dale 2016, synthetic polymer paint on canvas, responsible? What level of savagery a former president of the NT Bar Association. film of 13-year-old Dylan Voller being grabbed, held asked about the swiftness of his decision: “This Royal Voller vindicated Malcolm adhesive tape, 157.0 x 175.0 cm, courtesy Australia Centre for Contemporary Art, Melbourne. Photo: Andrew Curtis is necessary for this nation to hold a down stripped naked and then left in his cell crying had Commission is a very appropriate response to what Turnbull’s snap decision proper, thorough (á la McLellan) Royal been shown on TV during the subsequent unsuccessful appears to be a systemic failure in the justice system in to call the child detention Commission into such infamy? Are Aboriginal Peak Organisations NT (APO NT) is prosecution of one of the Youth Justice officers. Again, Mr Cunningham as stating: “The Royal Commission the NT.” (ABC News, 9.09.2016). Royal Commission and put a human face to a national restraint chairs, solitary confinement, shackles and spit concerned that attacks on the Royal Commission the same film was played on TV news when the Director should be abandoned now to prevent $100 million being scandal. In clear, succinct and mostly detached hoods not enough? into the Protection and Detention of Children in the of Public Prosecutions unsuccessfully appealed that Having a Royal Commission with such Terms urinated down a legal gutter”. I must say, in more than responses, the 19-year-old has painted a horrid picture Northern Territory are undermining public confidence acquittal to the Supreme Court. of Reference means the whole legal system – its 30 years in the law, I have never before come across I represent the juvenile now described as “AD”. of institutionalised cruelty in a system hopelessly ill- bureaucratic components, relevant members of the such language from any “prominent academic”, but I represent him, and his direct family in Darwin, in the Commission’s work. The Chief Minister reacted like all politicians when equipped to deal with those supposedly in its care”. And, legal profession, including the judiciary – are now that’s Mr Parish’s unedifying contribution. His language Borroloola and . That boy told his story caught out – he immediately went into damage control. “There is no doubt that many things Voller described APO NT spokeswoman Priscilla Collins has in the spotlight and subject to scrutiny. This Royal not only sullies the reputation of CDU, it reflects the to Four Corners and he gave evidence to the Royal At 1:08am the next morning, he issued a media release: will be contested by those in positions of responsibility, dismissed a call by the Independent Member for Commission cannot and will not be just about calibre and standard of his view. Commission on 9 December 2016. Unlike Voller’s “Like all Australians, I was shocked and disgusted by but it is difficult to consider him as anything but a unqualified and inexperienced prison officers, their evidence, his evidence wasn’t published at the time, as a Blain, Mr Terry Mills, to scrap the Commission, and tonight’s Four Corners program”; and further, “Tonight credible witness”. The NT News’ latest contribution came from its senior supervisors and their political masters who oversaw consequence of objections made by the NT Government says negative commentary by the Northern Territory questions were raised about what is going on in our journalist Ben Smee, who on 4 February 2017 concluded the practices which existed in the Don Dale and Alice Contrast that with The Australian’s Amos Aikman, about some of his evidence. AD’s evidence, with News is unwarranted and needlessly destructive. juvenile detention system that date back to 2010. I that the Royal Commission was “a disaster” and “just Springs youth detention facilities. who wrote a clearly negative story on 14 December, minor redactions, was eventually placed on the Royal also will seek advice on the establishment of a Royal about the most outrageous waste of public money in headlined, “Dylan Voller social media posts contrast Commission website on 19 January 2017, and was “APO NT understands the community’s frustrations Commission to investigate the matters raised in the As Prime Minister Turnbull correctly called it, this was Territory history”. His judgement backed that of the with scripted Court appearance”. His report of Voller’s basically not reported by any news agency, other than with wayward youth in the Territory but tough on Four Corners story. I intend to consult the Leader of the “systemic failure”. Royal Commissions are the best independent MLA and former CLP Chief Minister Mr evidence consisted of Facebook entries from 2014 – ABC Darwin Online. crime policies are not working”, Ms Collins said. Opposition on the Terms of Reference of this Inquiry”. mechanism to investigate and expose not just incidents Terry Mills, who in the same week had called for the according Mr Aikman, “seemingly by Voller, although and events, but systemic problems which have emerged. Royal Commission to be abandoned forthwith. AD is an Aboriginal boy from Tennant Creek. He was “Diverting young people away from the justice Later that day at a press conference, his defence that cannot be confirmed” – which were aimed solely at That is what this Royal Commission can and will do. 14 when he was locked in an isolation cell in the BMU developed. He sacked his Minister for Corrections, John All this hostility towards the Royal Commission system makes financial sense and it also helps trying to sully Voller’s character. Brave journalism that. in August 2014. That cell and its dimensions were Elferink, and presented a cover up allegation: “I think The Media and Criticism: “The lady doth protest too is clearly aimed at undermining its progress and prevent reoffending. We need to do what we can to The NT News, through regular stories and opinion pieces shown on Four Corners. The cell was approximately 2 there’s been a culture of cover up going on for many a much, methinks” – Hamlet (III.2.240) diluting its potential effect on the subject matter of its keep young people out of detention. Rehabilitation of by Sky’s Darwin-based journalist, Matt Cunningham, by 3 metres, with a toilet bowl and nothing else therein. long year. The footage we saw last night went back to Inquiry, namely previous governments and the legal From the beginning, the Royal Commission has had has consistently criticised and undermined the Royal No fan, no air conditioning. It was hot. He was kept young people makes communities safer than locking 2010 – and I predict this has gone on for a long time.” establishment. its nay-sayers and critics. Political commentators and Commission on various fronts. Mr Cunningham in there alone for 23 ½ out of 24 hours every day. He them up; intensive supervision works and is cheaper Clearly his initial aim was to keep the inevitable inquiry certain sections of the media have written and reported wrote an opinion piece in The Sunday Territorian on The Royal Commission ended 2016 with evidence on 15 received his meals in that cell. He was kept in there for than detention. Young people in the criminal justice “in house” – i.e., within the Territory. However, Prime consistently in a negative and critical way about the 4 December 2016 which took the well-worn line of December. It was first adjourned until the end of January 16 days in a row. This was the same boy who, on the system are more likely to offend as adults. Minister Malcolm Turnbull had seen the program and very need for a Royal Commission and the way it’s portraying staff of the Royal Commission as southerners 2017; however, in the interim, an extension of time was sixteenth day, went off and found that his cell door was was moved. He understood the shock and outrage it conducting its business. from the café societies of Fitzroy and Double Bay with granted, and so the resumption date is now 13 March in fact unlocked. He got out and, in a clear outburst of “Aboriginal people have invested a lot of trust in this had engendered in the Australian community, and the preconceptions that we Territorians are just “wannabe 2017. That delay was criticised by the same sections of anger, went off in the confined holding area adjacent Royal Commission. APO NT has confidence that it Tony Abbott (of “there will be no undermining and no next day he announced a Royal Commission of Inquiry. Ku Klux Klansmen”. He went on to comment: “It’s little the media. to his and the other cells. The Four Corners program will identify where systems have failed and make sniping” fame) criticised PM Turnbull for his “knee-jerk It would work with the NT Government as regards its wonder many Indigenous leaders [unnamed of course] begins with this very incident. You see and hear him reaction” in establishing the Royal Commission. His Further, in the interim, the NT News and Darwin’s recommendations on how to improve laws, policies administration and costs. have said the Royal Commission risks becoming another screaming, “How long have I been in here brus?” These political ally, Warren Mundine who claims to represent Channel 9 News have delivered a carpet bombing of and practices in the Northern Territory to provide a gab fest that will deliver very few real outcomes”. actions led to the prison guards gassing him and the Within days, the Prime Minister announced the Terms Aboriginal people, joined in. Warren Mundine regularly media hyperbole on the issue of rising youth crime safer future for our children. The next week, his opinion piece (11 December) was other five boys confined in their locked cells. They were of Reference and the proposed Commissioner, former appears on Sky News, often with the virulent, right- in the Northern Territory, which was claimed to be headlined: “The Royal Commission has become all overwhelmed, cuffed, hosed down, spit-hooded, NT Chief Justice Brian Martin. That appointment was wing commentator Andrew Bolt, tearing into the Royal linked to Territory judges’ reluctance to detain juvenile “Calls for the Royal Commission to be abandoned a farce, and we’re footing the bill”. He called it a and placed in the adult prison. AD told the Royal met with more anger and opposition, especially from Commission. offenders because of the opprobrium associated with in favour of ‘quick fix’ solutions are just a shallow “dysfunctional Inquiry”. Commission, just as he explained in his Four Corners the Aboriginal community. Within a week, Brian Martin the Don Dale Detention Centre. The NT News and catchcry. Within a week of the Four Corners program, Mr interview, that he was telling his story in order to prevent withdrew and was replaced by Commissioners White His hostility was again apparent in the NT News on 26 Channel 9 campaigns have been relentless, and even Mundine had made this contribution via The Australian: this kind of thing happening again to other children. “We utterly reject the notion that the Commission has and Gooda. December 2016, when he brought out a Mr Ken Parish, led to the Chief Justice of the Supreme Court on 20 “A Royal Commission is a costly exercise that has been a law lecturer at Charles Darwin University. The article January issuing an 11-page statement explaining there AD and his Nanna whom he lives with, as well as other been a ‘disaster’ or ‘an outrageous waste of money’, The Royal Commission commenced in Darwin on 6 shown to achieve little, while making a whole lot of described Mr Parish as “a prominent legal academic”. was no link in this period between any perceived drop in family members, have all been watching this Royal as the NT News has commented. It still has a lot of September 2016, and sat in October and December, lawyers rich”. Of course, hanging it on lawyers is an Mr Parish’s view was: “The Royal Commission is a detention numbers and reports of rising crime. Commission with great interest. They discuss it regularly important work ahead, and Aboriginal people of the hearing evidence including from two of the juveniles easy way to criticise the Royal Commission. That same silly idea from the beginning. It will boost the cash with me. Several of his family members came up on the featured in the 2014 gassing incident and the Four line of attack came from Bushranger in the Sunday This extreme and obsessive coverage attacking and Northern Territory want that to continue.” flow of the legal profession”; he was then quoted by demonising children goes on unabated. The description bus from Tennant Creek to attend some of it. They have 6 Land Rights News • Northern Edition January 2017 • www.nlc.org.au January 2017 • www.nlc.org.au Land Rights News • Northern Edition 7

Dr Rosalind Kidd was a key instigator of the 2006 Senate Legal wages in Queensland, which was lodged and Constitutional Affairs Committee of Inquiry into stolen with the Federal Court in September 2016. wages. Her submission revealed how governments around She is also an adviser to Shine Lawyers CLASS ACTION ON STOLEN WAGES Australia intercepted and controlled the private wages, savings, who are pursuing similar redress in other child endowment, pensions, and inheritances of thousands of jurisdictions, including the Northern Shine Lawyers is investigating a class action on Indigenous people for most of the last century. Territory. Dr Kidd works as a freelance researcher investigating official The following account of the history of behalf of Aboriginal people in the Northern Territory records and providing reports for various claimants in Native exploitation in the Northern Territory Title applications and, since 1995, has worked with Indigenous is extracted from Dr Kidd’s submission whose labour was exploited because of wage control lobby groups to win justice and reparations for stolen wages and to the Senate inquiry in 2006. Currency Dr Rosalind Kidd trust monies lost over decades of government maladministration. conversions from £.s.d. to dollars (at 2016 laws in effect from the late 1800s until the 1970s. Since 2015 Dr Kidd has worked as a consultant to Cairns firm value) have been done via the Reserve Bank’s Pre-Decimal BE Law, in support of a class action to recover Indigenous stolen Inflation Calculator. Shine Lawyers says the action would be on grounds Indigenous people pursue similar claims to those similar to the class action Hans Pearson v State of raised in Queensland and NSW against them: “Such Queensland, being for equitable compensation an approach may amount to governments relying egislation in the Northern Territory prostitution to feed their children. of 12 women in ‘wretched’ emaciated Branch were bound to comply with the for breach of trust and/or fiduciary duties. on the age, infirmity and social disadvantage of in 1910 and 1911 implemented condition who fell upon a piece of new provisions. Regulations in 1930 set a minimum The firm says historians estimate that Queensland the claimant group to escape or reduce liability.” employment licences, revocable unleavened damper ‘like starving dogs’. wage for half-caste youths ‘apprenticed’ Wages for wards rose to three pounds may owe Indigenous workers $500 million – The Committee received evidence that suggested if wages or conditions were He cancelled the employer’s licence, but to pastoral work from the government’s ten shillings in 1957, part-paid direct to “and it is likely that similar amounts may be many Indigenous people remain unaware they unsatisfactory, and directed wages was overruled by his Canberra superiors institutions, much of it paid direct to the the trust fund. owed to Indigenous workers by other states and have been denied wages and welfare entitlements; owing to deceased workers be paid who laid no charges against the owner. territories”. department’s trust account. Wages of up it said governments should fund an education and to the Chief Protector, who also had It was not until 1953 that minimum awareness campaign, but that has not happened. to 30 shillings ($119.58) weekly were In the mid-1940s a survey reported It says it is examining allegations that tens of the right to demand any wage be paid wages and conditions were specified for set for drovers but many pastoralists all ration recipients were forced to thousands of Indigenous workers across Australia The Commonwealth Government, in relation to direct to himself. Since no minimum Northern Territory pastoral workers, but never received their wages which were held in the Northern Territory (which it governed from refused to pay and none were prosecuted. labour, including the aged, women wage was mandated, most employers the wage was one-fifth the white rate, government-controlled trust accounts. They were 1911 to 1978), has not taken up a recommendation The Chief Protector said contracted and children; and many stations in the in the pastoral industry paid no cash annual leave was half, and the range of stockmen, farm hands, laundry assistants, kitchen by the Committee to “urgently consult” with employment in central Australia was central-west ruled their workers through component. rations less than 35 per cent the minimum hands, labourers and domestic workers. “In many Indigenous people about the stolen wages issue ‘analogous to slavery’ because the violence and fear. The survey confirmed requirements for white workers. There cases, these workers never received part or any of and to conduct preliminary research of archival Although a minimum wage of 25 regulations were not enforced. In 1933 endemic malnutrition was endemic and were 6000 Aboriginal people reliant their wages,” Shine says. material. The Committee recommended that if shillings weekly was set for government he described many station managers in excessive maternal and infant deaths on pastoral work for their survival, yet The Senate’s Standing Committee on Legal and consultation and research revealed practices of employees (in Darwin), 10 per cent went the Northern Territory as ‘unscrupulous’ were ‘destroying the race’; of four withholding, underpayment or non-payment or between 1959 and 1964 not one cattle Constitutional Affairs inquired into the matter of straight into a trust account controlled in their exploitation of Aboriginal births at Wave Hill during a two-month Indigenous wages and welfare entitlements, a station was prosecuted for failing to “stolen wages” in 2006. Its report, Unfinished by the government and the remainder workers, and police as ‘unreliable’ in period three of the babies and two of the Business: Indigenous stolen wages, recommended compensation scheme should be established. comply with mandatory wages, shelter, could be paid in kind, rather than in setting wages. mothers died. that governments take a more proactive approach The Committee’s recommendations have come to rations and work conditions. cash. Any general wages received by to settling grievances of Indigenous people – nought. Records shows the Commonwealth In 1947, Aboriginal workers in Darwin

© Rob Sampson Collection Protectors were also lodged in a trust Skilled Aboriginal stockmen of many otherwise there was “a risk that past injustices will Shine Lawyers would like to speak to anyone who Government failed to intervene, despite went on strike, demanding full wages and account to be spent ‘solely on behalf years experience were still getting only be compounded with further inaction”. believes either they or their relatives may have knowledge of starvation and deaths full access to their wages and savings. Molly Dodd at Wave Hill c. 1950 of’ the employee, a record to be kept of £1 ($27.87) plus keep in 1961, compared The Committee did not accept the view that been subjected to wages control legislation. among workers and their families. In Despite further strikes in 1948, 1950 receipts and payments. with £14 for their white counterparts. In governments should “wait and see” whether 1934 the government was notified that and 1951, the Minister for the Interior 1965, when 51 per cent of general station From 1918, any Aboriginal female on one station ex-workers were starving refused to intercede in the operations of hands were paid around one-quarter could be controlled for life and sent to death, but it refused to supply rations the Aboriginals Ordinance. the white rate and 34 per cent around he Senate’s Standing Committee on should not be limited to the consequences the Commonwealth enacted new laws on was legally sanctioned at the time or not is out to work. Minimum wages for town arguing this was the responsibility of Although the Welfare Ordinance one-third, the director admitted only Legal and Constitutional Affairs was of mandatory controls over paid Indigenous the issue in 1999. It has been an offence in not crucial to a charge of slavery. Clearly workers were five shillings weekly station management. (1953) exempted all half-castes from 20 stations had even attempted to meet well informed about the issue of “stolen labour. “Indeed, arguably the most British, and Australian, law since at least laws such as the Aboriginals Ordinance plus clothing and food, of which two their legal employment requirements. wages” in the Northern Territory during significant corollary of mandatory control 1824, and at international law since at did not ordain, or even expressly authorise, shillings was paid direct to the trust an inquiry in 2006. over Indigenous labour in the Northern least 1926. It is legally arguable that some conditions of slavery. On the other hand account. The government required Aboriginal drovers were similarly The Committee’s report, “Unfinished Territory is that much of it was unpaid”. Northern Territory employment practices they facilitated and condoned the existence rural employers to buy licences, but underpaid. Mass walk-offs at Newcastle business: Indigenous stolen wages”, Dr Gray noted that from the beginning would have infringed anti-slavery laws, even of such conditions. Many of the legislative these allowed for unlimited workers Waters and Wave Hill were the recommended that the Commonwealth of the 20th century, legislation in the where they were legislatively authorised or restrictions on Aboriginal human rights who had to be provided only with food culmination of protests during the Government, in relation to the Northern Northern Territory authorised or condoned condoned.” Dr Gray wrote. they contained, such as the restrictions on and clothing; wages and housing were previous 20 years. When equal wages Territory, “urgently consult with Indigenous the widespread practice of not paying But he was doubtful about the chances of freedom of movement, would be matters optional if workers’ dependants were were finally implemented the ‘slow people in relation to the stolen wages issue”; Indigenous workers in the pastoral industry success in a court action to recover stolen tending to prove the legal condition of also supported. worker’ clause legitimised continuing it also recommended that the Commonwealth and elsewhere. wages, noting that both native title and ‘slavery’. under payment. Minimum wages in the In the Northern Territory lack of conduct preliminary research of its archival ‘stolen generation’ cases have “generally “Australia was not a ‘slave state’ in the early 1970s, including clothing, were “It expressly authorised this by allowing intervention by the Commonwealth material. disappointed” Indigenous litigants: “In manner of the American South. Nor did all less than half the unemployment benefit. workers to be classified as ‘temporary’ Government allowed exploitation If the consultation and research revealed rather than permanent, and by allowing the light of these decisions, the idea that Aboriginal people during the relevant period litigation will meet the expectations of live in a condition of ‘slavery’. Nevertheless to continue. Stations commonly Child labour practices of withholding, underpayment employers to pay wages ‘in kind’ (in the undercounted worker numbers and or non-payment of wages and welfare form of rations) to an employee or his/her litigants in the ‘stolen wages’ cases should there is a strong argument that at least some From Darwin the Government Resident be treated with some care." Aboriginal people – particularly those in inflated the quantity and quality of recommended in 1907 that all mixed- entitlements, the Committee recommended dependants. Later it authorised non-payment rations supplied; in 1927 pastoralists that the Commonwealth establish a by allowing employees to be classified en “Even if successful,” Dr Gray told the the pastoral industry – lived and worked descent children be institutionalised in conditions which would satisfy the estimated they spent half as much on an for indenture to white families, and the compensation scheme. The recommendation masse as ‘slow, aged or infirm’ and therefore Senate Committee, “litigation based on Aboriginal employee as they did on a was never acted on. not eligible even for the wage prescribed breach of trust or fiduciary duty addresses definitions of ‘slavery’ contained in the 1926 Kahlin compound was started in 1912 Slavery Convention, and in the applicable white worker. The Committee also recommended that under the Wards’ Employment Ordinance. only a relatively small part of the broader to supply servants to Darwin families. law under the Slave Trade Act (UK) 1824. © Rob Sampson Collection the Commonwealth provide funding to Alternatively, it implicitly condoned non- ‘stolen wages’ issue. For many Indigenous A 1929 report found the pastoral industry The Bungalow began in 1914 in Alice the Australian Institute of Aboriginal and payment of wages by allowing employers to people, the injustice is not so much that a “This is not to say that prosecutions should be was ‘absolutely dependent on the blacks L-R: Camerine, Alice Kuwalang, Polly Lajay, unknown, Old Ship Miliyari at the Wave Hill Springs with the aim of taking children Torres Strait Islander Studies to conduct a classify workers as ‘dependants’ rather than portion of their wages or entitlements have brought. Lapse of time is a greater problem for the labour’ and ‘most of the holdings Bakery 1954-58 from the camps and training them for national oral history and archival project “in employees.” disappeared into government ‘trust’, but here even than in the ‘stolen generation’ … would have to be abandoned’ without work. the fact that for decades they were paid at cases, or in potential litigation based on them. Yet the 2500 Aboriginal workers relation to Indigenous stolen wages”. That Dr Gray’s submission addressed the issue In 1938, the anthropologist W E H employment and financial controls, the From 1931, it was government policy to grossly unequal rates, or not paid at all. breach of trust. It is, rather, an argument for and 1500 ‘camp dependants’ on the recommendation, too, was never acted on. of unpaid Indigenous labour by considering Stanner again reported workers and government could declare anyone a institutionalise all ‘illegitimate’ mixed- recognition of the concept within the terms stations were forced to suffer in shelter In its consideration of how Aboriginal whether such unpaid labour should be “An argument based on the legal concept of dependants on several stations were at ward in need of assistance, a category descent children under 16 years, as of reference for any possible reparations cobbled together from waste materials, labour had been exploited in the Northern regarded as slavery. ‘slavery’ is not subject to these limitations. high risk of diseases caused by deficient automatically including around 15,700 well as unmarried women, increasing tribunal formed as a result of the Inquiry into ‘mere kennels and most unsanitary’. Territory, the Committee drew extensively “This is not an attempt to be provocative. The matters required to prove a charge of diets; he said on one station only 10 ‘full blood’ people on the grounds they removals 70 per cent during that decade. Stolen Wages. Without recognition of its The report revealed managers withheld on a submission by Stephen Gray, a lecturer Rather it is an argument that the term ‘slavery’ are precisely the broader matters of children survived from 51 births between had no voting rights. Under the Wards Girls were frequently contracted from existence, meaningful debate on this issue rations to enforce discipline and some at Monash University Faculty of Law, and should play a legitimate part in any national injustice in this area: the fact that Indigenous 1925 and 1929. In 1942 a patrol officer Employment Ordinance (1953) male the Bungalow to work around . cannot occur.” stations refused to supply rations to an Associate to the Castan Centre for Human debate on the issue. Indeed, it has played a people were paid at minimal rates, or not reported at one station workers ‘finished wages doubled to £2 ($68.16) weekly After the Second World War patrol paid at all, and the fact that many had no real non-workers, leaving families to survive Rights Law. prominent role in such debate in the past. in a state of exhaustion due to the hard plus rations and clothing; but as the officers were told to remove all mixed- choice but to work under the conditions they on the offal of beasts killed for station In a covering note to his submission, Dr The submission notes that ‘slavery’ did not labour on the diet of flour only’, there major employers of half-caste wards, descent children to institutions and by did. The question of whether their treatment supplies and forcing many women into Gray argued that debate about stolen wages merely become a criminal offence when was ‘not a vestige of food’ in the camp neither the missions nor the Welfare the early 1950s almost all had been sent 8 Land Rights News • Northern Edition January 2017 • www.nlc.org.au January 2017 • www.nlc.org.au Land Rights News • Northern Edition 9

to missions or government institutions. of unclaimed money showed workers under the Protector’s control was from institutions under the Apprentice did not know of their wage entitlement, £1516 ($119,485.80). By 1926, 24 (Half-Castes) Regulations (1930) went It is clear that child removals reflected nor how to claim it; it admitted other girls and four boys had been sent from direct to the trust account, although labour market demands. In the 20 years PRAISE FOR NLC and CLC CONSULTATIONS monies earned by workers were not the Bungalow as servants in Adelaide, by 1932 pastoralists succeeded in from 1932, 60 per cent of children banked in the trust account. Men over and the Protector suggested wages be slashing the wage to only 10 shillings institutionalised in were 21 years did not necessarily gain control increased to eight shillings weekly after "or such sum as the local Protector may boys trained for pastoral work, whereas of their earnings; in 1921 a 22-year- two years’ service with three shillings consider", of which six shillings went 70 per cent of children institutionalised old man who had worked since he paid directly to the Protector’s control direct to the apprenticeship fund. Youths FOR GAS PIPELINE NEGOTIATIONS in Darwin were girls trained for domestic was 14 and had savings of over £220 – although for girls over the age of 16 over 18 years who joined the Australian service. Girls from both Darwin and ($16,954.30) was denied permission to this now was banked with the South Workers Union were legally due the Alice Springs were sent interstate, have a passbook on the grounds he was Australian Chief Protector in Adelaide same wage as white apprentices. Rowley Jemena, the company selected by the Northern Territory Government to build, own and operate the particularly to meet demand in Adelaide. a "spendthrift". for easier access. mentions a housing scheme operated in Between 1943 and 1972, 350 girls were 1932 for employed half-castes "on the Northern Gas Pipeline (NGP), has praised the role of the Northern and Central Land Councils in their processed through Colebrook Home in Evidence to the 1919/20 Royal A sum of £15.12.0 ($1,462.15) was basis of subscriptions from the Trust to domestic service. Commission on Northern Territory found missing from one worker’s Accounts". The Aborigines Ordinance conduct of consultations with traditional Aboriginal owners and native title claimants. (1933) increased wages of female town workers to six shillings weekly, all of which was paid into the trust account, and mandated employer contributions to the Medical Benefit Fund. From 1933, the Superintendent at Jay Creek settlement (Central Australia) was charged with control of every half-caste male under 21 years south of the 20th parallel, whether in the institution or in employment. Boys were to be contracted to work including – until 1936 – children under 14 years, with the Superintendent as authorising officer to withdraw money from the trust accounts, ensuring the boys were not defrauded or wasting their money. It was his responsibility to make deductions from wages in the trust accounts for the Medical Benefit Fund and to check employers of half- caste workers insured them under the Workman’s Compensation Ordinance. The Superintendent was "directly responsible" to the Chief Protector in the execution of these duties. In the 1930s the trust account held over £3000 ($281,183); 160 official complaints about branch accounts and trust account books continued. emena, 60 per cent -owned by the State Grid Corporation of China and 40 Under the Wards Employment per cent -owned by Singapore Power International Pty Ltd, says that the

© Rob Sampson Collection Ordinance (1953) male wages were Land Councils have made “an invaluable contribution” to the project. doubled to £2 ($68.16) weekly plus Aboriginal stockmen at “Their expertise, advice, and understanding of the local community, coupled rations and clothing. Controls of half- with their commitment to working with Jemena have been key in helping ensure caste wages ceased but trust fund the smooth delivery of the project so far” said Jonathan Spink, the NGP Project provisions continued for the 15,700 Administration revealed it was easy account between 1930/32 and only Director. Trust funds full blood people defined as wards. to access trust monies corruptly, partially repaid, her claim weakened by The 622km pipeline (12 inches in diameter and made of steel) will be buried, and Although wages for wards increased in It appears that in the Northern Territory especially since many workers were the absence of any employment contract. will transport gas from Phillip Creek near Tennant Creek, to Mt Isa. Associated 1957 to £3.10.0 ($106.39) weekly plus the first Aboriginal trust account was illiterate and endorsed withdrawals The Ordinance (1927) empowered the infrastructure includes compressor stations at Phillip Creek and Mr Isa, access keep, the Director retained the power to started in 1913 to take 10 per cent of with a cross; at times cash was released Chief Protector to retain control of the tracks, main and portable camps, mainline valves, scraper stations and cathodic direct part-payment to the trust fund, and wages paid to Aboriginal employees of simply on the word of someone in savings of adult men; half-caste girls protection stations. retained controls on access. Controls of the government; if a servant absconded authority. Immediately after the Royal over 18 years who applied could be The NLC’s Full Council, meeting at Timber Creek in November, decided to enter wages and savings continued until the the employer was refunded all paid Commission, £1184 ($91,244.97) in released from state controls if deemed into a Benefits and Impacts Agreement and Indigenous Land Use Agreements Social Welfare Act (1964). wages. By the time Treasury legitimised "unclaimed money" was transferred into capable of managing their own affairs. (ILUAs), clearing the way for the project to proceed. this procedure in 1915, improper consolidated revenue. From 1928, the savings of half-caste Pensions About 163km (42 per cent) of the proposed NGP is located in the NLC’s region usage of the trust accounts was already workers with more than £20 ($1,558.62) Recovery of wages remained a low In the Northern Territory, missions and and about 221km (58 per cent) is in the CLC’s region. Lawyers for both land apparent. could be transferred to interest bearing priority, as did administration of the pastoral stations received bulk pension councils conducted negotiations with Jemena between March and October 2016. bank accounts. From 1916, children were sent as servants Trust account. Despite attempts by payments. There were no competent In the NLC’s region, the project is proposed over land subject to three registered to Adelaide at wages substantially lower the Chief Protector to have unclaimed From 1929, a medical benefit fund procedures to ensure these were passed claims for non-exclusive native title rights. In the CLC’s region, it will traverse than South Australian child servants. money made available for general required half-castes to contribute on to the beneficiaries. In 1965 it was said land subject to one claim for non-exclusive native title, land held by the Wakaya Employers were required to supply food, Aboriginal benefit it was decided sums sixpence weekly for single workers or managers at Wave Hill were withholding and Warumungu Aboriginal Land Trusts, and other unallocated Crown land and clothing, accommodation and medical unclaimed after six years would revert one shilling for those with dependants, pensions of £9000 ($235,077.84). pastoral land that may be subject to native title claims in the future. attention; children were paid five to Treasury. The government reaped the plus one shilling weekly from employers; Jemena expects the majority of jobs during planning, construction and shillings weekly which went direct to the interest on controlled savings, and, the contributions were optional for white commissioning phases will be filled by residents of the Northern Territory and Alice Springs Protector for lodging in a Aboriginal trust fund was one of the workers who, in any case, received free the Mount Isa region. The company is obliged to seek to employ appropriately savings account and withdrawals could few government schemes which made a medical treatment. This deduction was qualified local Aboriginal people, assist in training, and give preference to only be made with the Chief Protector’s profit. in addition to an employer-financed Contact Shine Lawyers appropriately qualified local Aboriginal businesses. permission. By 1917 there were 481 Aboriginal Medical Benefit Fund which Contracted employment and controlled Phone: 1800 752 617 accounts worth £1448 ($133,908.16). accumulated large balances in Treasury. Photos clockwise from top: savings could be lifetime sentences for Email: [email protected] The Chief Protector argued this fund Joe Morrison, CEO, NLC and Paul Adams, Managing Director, Jemena The Ordinance (1918) directed a Northern Territory girls and women. should be used to build Aboriginal Address: Class Actions portion of rural wages be paid direct to In breach of regulations requiring trust Left to right: Welcome to Country function on Sunday night with Gerry Kelly, hospitals rather than subsidise free protectors or police. In the same year, monies be lodged in a single account, 13/160 Ann Street Brisbane Paul Adams, Chairman Du, Annie Morrison and Patricia Franks medical care for half-castes already unclaimed wages in 500 accounts, with the Alice Springs Protector opened covered by the general benefit fund. He Queensland 0400 Left to right: Joe Morrison, NLC CEO; Jeff Collins Assistant Minister for a total value of £1202 ($104,211.16), individual accounts for Adelaide was overruled. Primary Industry and Resources; Jonathan Spink, Project Director, Northern were simply transferred to Treasury. servants. By 1925, one girl’s account Gas Pipeline Project; Paul Adams, Jemena Managing Director; Greg Marlow, held £83 ($6,541.77), and total savings Much of the wage of youths contracted The administration admitted stockpiles chair Tennant Creek Regional Economic Development Committee. 10 Land Rights News • Northern Edition January 2017 • www.nlc.org.au January 2017 • www.nlc.org.au Land Rights News • Northern Edition 11 Opportunities and challenges discussed at recent APO NT calls for CDP reforms

• The program is focused on individuals at the expense • it should include a much greater emphasis on job NLC Indigenous Women Ranger Conference The Aboriginal Peak Organisation NT of community development and engagement; creation; • The program is focused on short-term outcomes with • it must include much greater support for job retention The NLC Indigenous Women Ranger Conference held in Katherine (APO NT) has called for fundamental no measurement of net gain to communities; and career advancement; and in October was an opportunity for women from some of the ranger reforms of the Commonwealth • Under CDP, most participants are required to do • it should be much less bureaucratic, so that program groups across the to meet and exchange knowledge many more work-for-the-dole hours than others resources go into individual and community impact, and support. It gave women a forum in which to discuss the Government’s Community in order to receive income support – meaning that not into red tape. participants are being set up to fail; opportunities and challenges facing them, and inform the NLC of Development Program (CDP). While maintaining a focus on the need for comprehensive where they think ranger programs should head in the future. APO NT’s membership comprises the Northern and • The penalty regime is disproportionately impacting on reform, the forum also identified short–term improvements Central Land Councils, Aboriginal Medical Services remote Aboriginal people leading to food insecurity, which could be implemented without legislative Alliance Northern Territory (AMSANT, itself the peak greater poverty, and increased disengagement from reform. Forum participants are calling on the Australian he conference was attended by 19 rangers from ten ranger groups, including NLC, the body representing Aboriginal medical services, with the the system entirely; and Government to immediately: Indigenous Land Corporation (ILC) and independent groups, from Croker Island to aim of improving the health of Aboriginal people through • Thousands of CDP participants are locked into • reduce the current work-for-the-dole requirements Robinson River, Numbulwar to Timber Creek. promoting and extending the principle of local Aboriginal work at a rate well below award rates, with no work applied to CDP participants to a level more closely The NLC Chairman, Samuel Bush Banasi, gave a welcome speech affirming his support community control over primary health care services to entitlements or protections and with little or no aligned to requirements elsewhere; Aboriginal people) and the Territory’s two Aboriginal legal prospect of earning additional income or leaving for employing women in caring for country programs. He spoke of the importance of the • provide local flexibility in the arrangement of days services, the North Australian Aboriginal Justice Agency income support. contribution of women rangers to caring for country work and noted that women are “the and hours of participation and associated supervision backbone of the organisation.” Samuel acknowledged the work women rangers do looking (NAAJA) and the Central Australian Aboriginal Legal Aid Service (CAALAS). In addition, some critical program delivery and and administrative arrangements; after country, and assured the group he supports them 100 per cent. implementations challenges were identified including: APO NT convened a forum in Darwin in December 2016 to • revise CDP contractual arrangements to allow Supporting women has always been a NLC priority, but as of 2015/16 less than a quarter of discuss concerns about the effect that the CDP is having on • Expensive and complex administrative and IT providers to determine when to recommend breaches permanent rangers employed in NLC ranger groups were women. As some ranger groups its participants, their families and communities. Attended systems resulting in more time spent on compliance based on community and individual circumstances have no women at all, more effort is needed to reach equality. by more than 20 organisations, predominantly Aboriginal and reporting than on delivering outcomes, and without penalty; and preventing the employment of local people; Rangers from each group gave presentations outlining the activities and aims of their ranger organisations and CDP providers, the forum concluded • make adjustments within existing social security NLC Indigenous Women Rangers Conference, October 2016, Katherine (Photo: that the CDP is doing substantial harm to individuals and • Appropriate assessment processes are simply not laws to improve the fairness of the system. programs. This was followed by an open forum where the rangers participated in identifying Katherine Van Wezel) communities without generating sufficient opportunity. available in remote locations; and barriers and developing priorities for the future. Achieving both immediate and long-term reform of CDP The priorities they identified were to increase the number of women rangers, women Combining both CDP provider expertise and strong • Department of Human Services systems, particularly is a priority issue for many CDP providers, Aboriginal coordinators, and women in leadership roles. The need for more culture camps was also Aboriginal community relationships and perspectives, the participant access to Centrelink, are inadequate. organisations and other supporters. APO NT has forum identified fundamental flaws with the program: committed to building a strong alliance of organisations to important, as was the need for more ranger exchanges between groups. This reflects the Based on the substantial evidence that CDP is failing, and progress this work in 2017, and has asked the Government importance of providing opportunities for women from different communities, who undertake • The lack of Aboriginal community control or input drawing on extensive experience delivering successful to commit to an inclusive collaborative process to redesign the same job and face similar challenges, to interact with and support each other. into the program design, or delivery; programs in remote Aboriginal communities, forum the program with a view to improving better outcomes for participants agreed to work together to develop an Following the conference, rangers participated in land management training. Fifteen rangers • The lack of employment outcomes, and inability to Aboriginal people living in remote areas. undertook and passed a certified three-day course to apply chemicals and treat weeds provide career pathways and long-term "on the job’" alternative model that could form the basis of negotiations with the Commonwealth. delivered by Charles Darwin University at their Katherine campus. This provided women support; with the knowledge and skills to safely undertake weed management work on their country • The program does not do enough to encourage The alternative model would be underpinned by the For further information, please contact: alongside male rangers. following principles: enterprise development or stimulate job creation; Brionee Noonan The final group training was prescribed burning delivered by Brett Stephens. Wagiman • The lack of flexibility in CDP implementation • the program must be driven by community level APO NT Coordinator Ranger Group Coordinator Veronica Birrell and the Wagiman rangers hosted women from decision making, not centrally imposed rules; resulting in a complete inability to tailor arrangements Aboriginal Peak Organisations of the Northern the Waanyi Garawa, Garawa, and Timber Creek ranger groups at the Wagiman ranger base to maximise positive outcomes in different regions • it should include greater access to waged employment Territory [APO NT] at Lewin Springs. This training taught rangers to plan and undertake prescribed burning to and communities; and emphasise incentives over punishment; protect assets and culturally significant sites, and to work safely with fire. P: (08) 8944 6672 M: 0488 006 680 • The program is punitive and fundamentally fails to • it should foster long term economic, social and Email: [email protected] Another Indigenous Women Rangers Conference is proposed for 2017 which will focus on understand what drives change in remote Aboriginal cultural development and be measured on its success developing policies and targets for employment in NLC groups, and leadership development. communities; in supporting these over an extended period; www.amsant.org.au/apont/ Invitations will be extended to independent ranger groups in the Top End. Other work over the next six months will focus on working with the ranger groups without women rangers to discuss ways to increase engagement and employment of women. On-going Veronica Burrell (Wagiman Ranger Coordinator) giving an inspiring talk at the support for women currently employed as rangers will be maintained, and ranger exchanges conference about the ability of women to move into more senior roles. will be held to provide opportunities to share knowledge and experience, and gain new skills. APONT Aboriginal Governance & Management Program Innovating to Succeed Forum

Central Australia is set to host Aboriginal organisations Aboriginal Corporation, Central Australian Aboriginal from across the NT at the 3 March “Innovating to Congress and the Palngun Wurnangat Aboriginal Succeed: How NT Aboriginal Organisations are Corporation, among others. There will also be updates Affecting Change” Forum at the Alice Springs from government representatives and Q&A discussion. Convention Centre. Like the hugely successful 2015 Topics will include governance, succession planning, CEOs Forum in Darwin, this event is organised through commercial venture and a transition to independence. APO NT’s Aboriginal Governance & Management Aboriginal organisations face unique challenges and Program. make a significant contribution to the economy and the Forum participants will represent a variety of fields, from community. In 2014/15 NT Aboriginal organisations health, education, environment, and justice, to arts and generated more than $800 million, the greatest overall culture, and many more. This diverse group will come share of the country’s top 500 Aboriginal organisations’ together to share their stories about new approaches to combined income. This demonstrates the enormous grow and strengthen business and service delivery, be contribution made by this industry to the Territory and CEOs, managers, chairs and board members of NT more sustainable, and self-determine success. how important it is to ensure these organisations have Aboriginal organisations will attend the Aboriginal Peak the skills and resilience to manage change in a dynamic Organisations NT (APO NT) “Innovating to Succeed The forum’s program will include and opening by the Weed Training, Katherine October 2016 (Photo Katherine Van Wezel) environment. Forum” on 3 March in Alice Springs. This is a full day Chief Minister opening, a keynote address from the event run by and for NT Aboriginal organisations, with 2016 National Indigenous Governance Award winner, The event is free and fully catered. Register now at www. For further information about the Women's ranger Program, please contact Penny Mules at Nakira Davey, Waanyi Garawa Rangers, Rosemary Bunonjoa, Mimal Rangers, Western Desert Dialysis (aka The Purple Truck), as well aboriginalgovernance.org.au. For further information Lewin Springs October 2016 Katherine October 2016 a focus on sharing knowledge about ways to achieve the NLC on (08) 8920 5214. success in this unique industry. as presentations from the Warlpiri Youth Development call 8959 4623 or email [email protected] 12 Land Rights News • Northern Edition January 2017 • www.nlc.org.au January 2017 • www.nlc.org.au Land Rights News • Northern Edition 13

The NLC’s newly-elected Full Council meeting at Timber Creek mid-November 2016 Gabby Gumurdul, standing (Gunbalanya WA), Peter Lansen, standing behind (Nutwood/Cox River Ngukurr), David Djalangi, standing front (Galiwin’ku EA), Keith Farrell L-R back row: David Warraya (Ramingining EA), John Daly (Daly River South DDW), Shadrack Retchford (Bulla VRD), Larry Johns (Timber Creek VRD), Phillip Goodman (Hodgson Downs Ngukurr), Audrey Tilmouth (Darwin DDW), John Sullivan (Daly River West DDW), Virginia Nundhirribala, seated front (Numbulwar Ngukurr), Jody Evans, (Darwin South DDW), David Rumba Rumba (Ramingining EA), George Milaypuma (Milingimbi EA), John Wilson (Peppimenarti DDW), Wesley Bandi Bandi (Gapuwiyak standing (Borroloola BB), Maxine Wallace, seated back (Brunette Downs BB), Jason Mullholland, standing (Borroloola BB), Wayne Wauchope, standing front (Gunbalanya WA), EA), Graham Kenyon (Darwin East DDW), George King (Yingawunari VRD), Matthew Shields (Daly River North DDW), Raymond Hector (Pigeon Hole VRD), Jason Guyula Tobias Nganbe, seated on steps (Port Keats DDW), Martin (observer), seated on steps (Port Keats North DDW), Walter Rogers, seated on steps (Ngukurr) (Galiwin’ku EA), Paul Henwood (Darwin South West DDW), Brian Limerick (Alexandria BB), John Finlay (Wombaya BB), Jason Bill (Muckaty BB), Chris Neade (Elliot BB), Timothy Lansen (Nicholson BB) Linda Fletcher (Katherine Kath), Helen Lee (Barunga Kath)Lisa Mumbin (Katherine Kath)Samantha Lindsay (Bulman Kath). Absent from photo: L-R 2nd row seated on stairs: Otto Dann ( Gunbalanya WA), Bunug Galaminda (Warruwi WA), Jenny Inmulugulu (Warruwi WA), Keith Rory (Borroloola BB), Joy Priest (North Barkly BB), Richard Dixon (Robinson River BB), Kevin Quall (Darwin DDW), James Sing (Darwin West DDW), Mark Tunmuck Smith (Port Keats North DDW), Adrian Ariuu (Palumpa DDW), Sharon Daly (Daly River DDW), Dhuwarrwarr Marika ( EA), Caroline Dhamarrandji (Yirrkala EA), L-R 2nd row after stairs: Yananymul Munungurr (Yirrkala EA), Faye Manggurra (Numbulwar Ngukurr) Shannon Dixon, kneeling (Murranji BB), Jabani Lalara, standing (Blue Jocelyn James (Mataranka/Djimbra Kath), John Dalywater (Weemol Kath), Grace Daniels (Ngukurr), Gregory Daniels (Ngukurr), Timothy Wurramara (Numbulwar Ngukurr), Mud Bay EA), Gordon Noonan, kneeling (Rockhampton Downs BB), Jonathon Nunggumajbarr, standing (Blue Mud Bay EA), Samuel Bush-Blanasi, seated front (Beswick Kath), Clifford Duncan (Urapunga Ngukurr), Kenovan Anthony (Amanbidji VRD), Matthew Ryan (Maningrida WA), Victor Rostron (Maningrida WA), Helen Williams (Maningrida Kenny Djekurr Guyula, seated back (Galiwin’ku EA) Clint Julius Kernan, kneeling (Maningrida WA), Johnny Burrawanga, seated back (Galiwin’ku EA), Michael Ali, standing WA), Matthew Ngarlbin (Croker WA) (Milingimbi EA), Bobby Wunungmurra (Gapuwiyak EA)George Campbell, seated front (Yarralin VRD), Elizabeth Sullivan, standing (Pine Creek DDW), Djawa Yunupingu, standing (Ski Beach EA), John Christophersen, seated front (Kakadu WA), Ronald Lami Lami, standing (Cobourg WA), (list continues next page) Regions: BB - Borroloola Barkley; DDW - Darwin Daly Wagait; EA - East Arnhem; Kath - Katherine; Ngukurr; VRD - Victoria River District; WA - West Arnhem 14 Land Rights News • Northern Edition January 2017 • www.nlc.org.au January 2017 • www.nlc.org.au Land Rights News • Northern Edition 15 ANAO Audit of the Indigenous Advancement Strategy (IAS) Michael Dillon ‘Though this be madness, yet there is method in it’ Hamlet Act II, Scene ii

“should be viewed as a historical observation on impacted, only one internal quantitative evaluation The Australian National Audit Office a process carried out two-and-a-half years ago”. which suggests that the program’s impact, while (ANAO) released its effectiveness The implication that the ANAO and the Auditor positive, is far from making a meaningful difference General is a step behind the Government in releasing to overall remote school attendance. Yet the media audit of the Indigenous Advancement this report, and that its assessment is not “fair and releases, magazine articles and good news stories reasonable”, is on its face extraordinary. So too is keep rolling out. Strategy (IAS) on 3 February 2017. the Minister’s quite direct criticism of the ANAO In an interview with the ABC in relation to the ANAO The IAS is the Commonwealth for failing to focus on the Government’s alleged Report, the Minister was reported as stating that he successes as stated in the Minister’s media release: did not think errors were made: Government’s major grants program Assessing the success of the IAS based on the “I don’t accept that this was some sort of disaster in Indigenous Affairs, allocating in introductory period is premature. Any fair and at all,” Senator Scullion told the ABC. reasonable assessment of the IAS needs to consider “All of these criticisms are about departments and excess of $1bn per annum for activities a timeframe well beyond the introductory period processes. What my job is to do is focus on what to give the strategy time to deliver the intended designed to deliver services to people who receive the services think. benefits. Indigenous citizens and communities. “The fact is Aboriginal and , By focusing its audit on the grants round, the as a consequence of these remarkable changes, ANAO has paid insufficient regard to the state are far better off.” The Australian newspaper described the audit as Indigenous Affairs was in when the Coalition Indigenous Affairs Minister, Nigel Scullion addressing the NLC Full Council meeting at Timber Creek, November 2016 “scathing”, and noted: Government came to office in 2013 – and hence In essence the Government’s response has been to argue that the IAS involved “remarkable changes”, the need for the Government to implement its 10. The department’s grants administration records throughout the assessment and decision- School Attendance Strategy. The dashboard reports However the audit found that a seven-week that any issues identified by the ANAO are “historical reforms. processes fell short of the standard required making process. In particular, the basis for the provide a reflection of activity within the regions, planning and design period had “limited the observations” of no relevance today, and that to effectively manage a billion dollars of committee’s recommendations is not documented but do not meaningfully report on the performance department’s ability to fully implement key Before the Coalition introduced the IAS, it was not “these criticisms” are “unreasonable and unfair” Commonwealth resources. The basis by which and so it is not possible to determine how the of the regional network. processes and frameworks, such as consultation, possible to say where and how much taxpayer and all about bureaucratic processes for which the projects were recommended to the Minister was committee arrived at its funding recommendations. risk management and advice to Ministers”. money was being spent or what outcomes were Minister is not responsible. 4.17. This meant that the information from the not clear and, as a result, limited assurance is The department did not record compliance with expected for the outlay. I know this to be true, application assessments was so aggregated that The program’s short implementation time had available that the projects funded support the probity requirements. Further, the department because they were questions I repeatedly asked in Before assessing the merits of these arguments, it is it did not provide meaningful information to the then “affected the department’s ability to establish department’s desired outcomes. Further, the did not maintain adequate records of Ministerial Senate Estimates as an Opposition Senator. worth noting some of the ANAO’s detailed findings. committee against the selection criteria, and transitional arrangements and structures that department did not: approval of grant funding. Of necessity, they are extracts and the report needs subsequently the Minister. focused on prioritising the needs of indigenous These criticisms ought to be seen for what they are: to be read in its entirety. Nevertheless, a number of • assess applications in a manner that was 1. 15. The ANAO does not have assurance that the communities”. attempts to divert attention from the shortcomings the findings are extremely concerning and suggest 4.20. ANAO analysis shows that some projects that consistent with the guidelines and the department has produced complete records of the identified by the ANAO. In relation to the claim deep-seated problems existed (and presumably were awarded a high score against the selection Further, the department’s grants administration department’s public statements; design and implementation of the Strategy. about assessments, in the ‘introductory period’ criteria and need score were not recommended process “fell short of the standard required continue to exist) in the way Indigenous public the Minister himself decided that the previous • meet some of its obligations under the 2.9. The department advised the ANAO that it for funding, and some low-scoring applicants to effectively manage a billion dollars of policy is being implemented. Government’s Remote Jobs and Communities Commonwealth Grants Rules and Guidelines; met with Indigenous leaders and national peak were recommended. For example, 59 projects that Commonwealth resources”. Program was a failure and should be abolished In terms of understanding what has gone on here, bodies outside of the council but did not keep were awarded assessment scores of 20 or below • keep records of key decisions; or An ABC story led with the following paragraph: while it was still less than 12 months old, and the it is important to understand that the ANAO is records of the meetings. As such, it is not clear and a need score of 3 or less were recommended replacement Community Development Program is precluded from examining the actions of Ministers; • establish performance targets for all funded The Abbott government bungled its overhaul of who the department met with, what feedback the for funding. Further, 222 projects that were in diabolical trouble, with soaring breach rates and its focus is entirely on the actions of agencies, projects. department received and how this was considered awarded assessment scores of 26 or above, and a billions of dollars worth of Indigenous funding, a substantial community concern. The comments notwithstanding that the Minister is the decision- major report has found. 11. The department has commenced some in developing the Strategy. need score of six or above were not recommended about not being able to say where the money was maker and he and his office would have been for funding. The Department of Prime Minister and Cabinet being spent and what outcomes were expected integrally involved in the roll out of this program evaluations of individual projects delivered under 3.21. There is limited evidence that regional website published a summary of the Department’s under the previous Government are issues (as was confirmed in Secretary Parkinson’s letter, the Strategy but has not planned its evaluation profiles were considered in the grant assessment 4.25. The department provided the ANAO with a response to the audit which tries valiantly to shift identified by the ANAO in relation to IAS. The degree discussed below). approach after 2016-17. process. As at August 2016, two years after the list of 415 demand-driven applications it assessed, the focus to the future and away from the findings, of transparency in relation to the IAS is virtually 16. The department did not meet its commitments commencement of the regional network, the but could not confirm that it was a complete list Here are some of the more worrying quotes from department has drafted but not finalised regional of the applications received. The ANAO identified and, as a result in my opinion, fails to adequately non-existent, as a cursory trawl through the PM&C the ANAO report (emphasis added): with respect to providing advice on all the acknowledge the seriousness of the findings. website will reveal. elements identified as necessary for the strategies. 11 applications that were under assessment for more than one year, with the longest time between 7. While the Department of the Prime Minister and implementation of the Strategy. The department 3.23. The department advised that it has provided The Minister for Indigenous Affairs published a media To take just one example: the level of detail available application and notification of outcome being 592 Cabinet’s design work was focused on achieving also did not advise the Minister of the risks the Minister with dashboard reports since August release in response to the audit, titled,Government in relation to expenditure on the Minister’s signature days. a step ahead of the ANAO audit recommendations, program, the Remote School Attendance Strategy is the Indigenous Advancement Strategy’s policy associated with establishing the Strategy within a 2015. The reports include a short local issues which stated in the first paragraph that the audit woeful, with no accessible detail on the allocation objectives,the department did not effectively short timeframe. section that, until January 2016, focused on the 4.34. The review of applications identified 300 implement the Strategy. findings related to the 2014 grant round, and of funding, no detail on the numbers of students 24. The department did not maintain sufficient Community Development Program and Remote missing applications that the department had 16 Land Rights News • Northern Edition January 2017 • www.nlc.org.au January 2017 • www.nlc.org.au Land Rights News • Northern Edition 17

received but not registered for assessment. extremely serious in their own right, but it seems to attack the ANAO’s conclusions (replicated more 4.36. The requirement that all projects were me that there are two broader issues which deserve diplomatically by the PM&C Secretary). This has assessed by two staff was not applied to all attention. the effect of eroding the authority and independence projects. Analysis by the ANAO identified that 815 The first goes to the quality of the advice provided of the ANAO and deserves public censure. out of approximately 5000 project assessments did by the Department to the Minister. The ANAO The overall outcome of all this is just too cute. The Inside The Kenbi Land Claim not receive two assessment scores … makes clear that the advice was substantively faulty Department did not advise the Minister of the risks, 4.37. As a consequence of being assigned an in relation to a substantial proportion of the grants so he takes no responsibility. The Secretary claims automated score, the 815 projects were not being considered. This raises broader issues relating the program was integral to “a very ambitious reform appropriately considered against each of the to the capacity of the Australian Public Service agenda but one that was long overdue in the delivery (APS) to provide quality advice to Ministers. It needs of Indigenous programs” and any “shortfalls in its Negotiations: Watersheds and Waterlogs individual selection criteria at the assessment panel stage. to be remembered that while Indigenous affairs is processes outlined in the Report and the potential a complex area of public administration, managing implications arising from the are overstated when 4.40. The probity plan required that committee grants programs is core business for the bureaucracy seen in the full light of the transition…”, so there is no Kirsty Howey* meetings be recorded, with minutes signed by and it seems almost unbelievable to me that a central case for the Department to be held responsible. The the Chair of the committee, and that the Chair agency such as PM&C could get it so wrong. Minister claims that as a result of “these remarkable ensure that the grant assessment process be One must wonder where the Department’s Audit changes” Indigenous people are “far better off”, and This article originally appeared in the Territory v Olney and the Northern Land comprehensively documented and tied explicitly to Committee was during this process. Where was the the problems identified by the ANAO are merely of indigenous law bulletin and is reproduced Council FCA [1439/88 Fed No 325] 11). the selection criteria. The committee did not record Executive Leadership Group which, according to historical significance and in effect have either been with the permission of the Indigenous minutes of its meetings, keep a record of the With these technical battles out of the Annual Report for 2013-14, “considers strategic fixed or are being fixed. No one takes responsibility. Law Centre, UNSW. To learn more about actions taken by the committee to address conflicts the way, the hearing of the traditional issues impacting on the Department, including the indigenous law bulletin, go to www. of interest recorded by committee members,or The information disclosed in the ANAO Report evidence could finally commence. But yet any ongoing or emerging risks, and monitors may just be an account of teething problems in ilc.unsw.edu.au. keep records of key decisions. performance in delivering outcomes”? another barrier confronted the claimants, the reform of a complex grant program under tight with Justice Olney finding that there 4.41. The ANAO was provided with two different It was less than 10 years ago that Peter Shergold deadlines. But those reforms, driven by the Minister, were no "traditional Aboriginal owners" felt a familiar mixture of elation spreadsheets that, according to the department, (the then Secretary of PM&C) identified policy and also created a system which created the potential for as required by the ALRA (although and deflation as I read the headlines recorded the funding recommendations made by program implementation as key areas of focus for substantial subversion of normal grant management there was one person who satisfied the announcing the settlement of the the committee. Neither spreadsheet matched the APS and established an implementation unit in principles and normal principles of governance, definition), and hence that the claim must Kenbi land claim in April 2016. with the value of funding recommendations PM&C to drive a stronger focus on the issue across where the Minister could, if he so wished, take fail. However, in a successful appeal, While the stories covered the basics, they recorded on the brief that the committee the APS. funding decisions in accordance with whatever the Federal Court of Australia overruled could never capture the complexity of a Chair signed to approve the recommendations whim came to him, could reward favorites, punish Justice Olney’s decision in 1992, finding More importantly, and more worryingly, is the land claim which bookends the Northern to the Minister, and one of the spreadsheets enemies, without reasons being recorded, details that the descent criteria adopted by the implication which can be drawn from reading Territory’s own political history, which recorded recommendations that the department kept, and all hidden from view and scrutiny. There Commissioner to fulfil the definition of between the lines of Parkinson’s letter, (and from was publicly fought out in the High Court later advised the Minister were not an is no evidence in the ANAO report that this occurred traditional Aboriginal ownership were too paragraph 16 of the ANAO summary) that PM&C three times and the Federal Court four accurate representation of the committee’s restrictive (and that persons of matrilineal, failed to properly advise the Minister of the risks of in relation to this program, but the question is: where times, which brutally adjudicated the legal recommendations. not just patrilineal, descent could also is the assurance that it didn’t occur, and where is identities of the Aboriginal people who attempting to implement major change to Indigenous satisfy the definition). 4.46. The department provided descriptive funding programs “within very ambitious timelines” the assurance that it is not occurring today? That is sought to be recognised by it, and which information (such as project locations and presumably set by the Minister – either because it the purpose of good process, record keeping, timely had taken over 15 years to settle since The consequence was that the whole claim transparency and equal and fair grant management Les Kundjil, Prince of Wales (playing didj), Johnny Bianimu, Tommy Barrtjap, Rusty electorates), but did not provide the Minister didn’t recognise the full nature of the risks (but see the Aboriginal Land Commissioner’s Moreen, Bobby Lane 1979 had to be reheard, this time by a new with assessments of the extent to which projects paragraphs 2.18 and 2.19), or it decided to ignore or processes. ‘final’ report recommending the grant of Commissioner, Justice Gray. This meant Aboriginal land. that the claimants had to once again endure met each of the five Strategy selection criteria. discount them. The inevitable conclusion drawn by We might believe that virtually all politicians and Territory gained self-government, the new Kenbi—a brief and inadequate the arduous process of proving that they The department advised the ANAO that it provided the ANAO was that the bureaucracy did not provide ministers are akin to saints and will never seek to While the media outlets suggested that NT government tried to head off the Kenbi legal history fitted within the definition of "traditional the assessment score and need score to the appropriate (i.e., frank, fearless and quality) advice, pursue personal or political agendas; but the realist this was the apical moment in the history land claim by passing regulations which Formally lodged in 1979, the Kenbi land Aboriginal owners" as required to win a Minister in its initial $917 million recommendation and we might surmise that the Department was within tells me there will always be a minority who of the claim, for me it was but one of many declared the Cox Peninsula part of the claim was the key battleground in the land claim. brief, but was unable to provide evidence of this. perhaps afraid to tell the Minister and Government are prepared to opportunistically pursue self-interest town of Darwin, expanding the city from watershed events in the 10 years in which fight for jurisdiction over land between 142.4 square kilometres to 4,350 square 4.48. Similarly, the department did not maintain that the reform agenda in the timeframe demanded and political agendas under the guise of operating in I had been involved, raising the questions: the newly formed Northern Territory There was a further complication, with kilometres. Three months later, the land adequate records of the grants approved by the was not possible. the public interest. And that is why all those with an how many decisive moments had there Government, and the NLC (established the NLC on counsel’s advice deciding to been over the 37-year history of the claim was formally lodged by the NLC. divide the Larrakia claimant groups into Minister. This is an issue of much broader import than program interest in good governance ought to be concerned under the Aboriginal Land Rights For the next decade, the parties were with what has been shown to have gone on here. claim? And how often were the players, (Northern Territory) Act 1976 (Cth) the Tommy Lyons group (a subgroup 4.61. As such, the department has limited administration in the Indigenous Affairs portfolio, entangled in a series of complex court be they Aboriginal claimants, lawyers, [ALRA]). The claim was particularly of the Larrakia comprising six people), assurance that the process of negotiating funding and goes to the increasing politicisation of senior challenges related to the validity of these anthropologists or bureaucrats, utterly controversial because it covered prime and the ‘wider’ Larrakia (comprising agreements and amounts was conducted fairly, levels of the APS – not in a partisan sense, but in regulations. While this wrangling has convinced that the fate of the Kenbi land real estate immediately adjacent to approximately 2000 people). The Belyuen and that applicants received similar treatment the sense that it is career suicide for a senior public provided fertile ground for generations of claim had been finally determined? Darwin, encompassing the wealth of families long resident on the Cox Peninsula across the regional network. servant to say, “No, Minister, that is not possible”. administrative law professors, in the end also decided to make a separate claim, as In this article, I explore this concept of the Cox Peninsula’s natural bushland, This increased politicisation of the bureaucracy the NT’s machinations were fruitless, with did a further subgroup of the Larrakia, the 5.26. The department drafted an evaluation stops and starts by describing the most bountiful estuaries, calm harbours and strengthens the arguments for stronger independent Justice Olney (the fourth Commissioner) Dangalaba clan. The NLC funded separate strategy in June 2014 … A constraint on evaluation recent phase of the Kenbi land claim, the sandy beaches. It was ripe for urban checks and balances elsewhere in the systems of holding in 1988 that the regulations had legal and anthropological representation activity was that the evaluation strategy was negotiation of its settlement, and briefly development and desired for hunting and public policy and administration. been made for the "improper purpose of for all four claimants groups. reflecting upon the multiplicity of turning fishing. not formalised and no funding was set aside to preventing claims under the Land Rights The second issue goes to the notion of ministerial points during this phase (the watersheds), The decision to split the claim can be seen implement the evaluation strategy. In 1978, just five months after the Northern Act" – (Attorney General for the Northern responsibility. It is appalling that no-one appears and the times the whole thing seemed to as either inspired or devastating, depending The ANAO has also published a copy of the letter prepared to take responsibility for what is an grind to a halt (the waterlogs). responding to the audit from the Secretary of extraordinary litany of incompetence and ineffective I write from the perspective of a land PM&C, Dr Martin Parkinson. It is a only a slightly program implementation. Of course, the ANAO council lawyer. The spheres of activity I more balanced response than that provided by can only assess what is recorded and it may well the Minister, but is nevertheless a letter which no have operated within limit what I can say. be that the Department was verbally warning the In particular, I cannot hope to understand Secretary, let alone the Secretary of PM&C, would Minister of the risks and the need to take corrective ever wish to have to sign. the complexity and depth of meanings of action. And, of course, once the course is set by the the land claim to the Aboriginal groups Parkinson acknowledges what he terms shortfalls Minister, it is often impossible to turn the clock back. who were involved, although I have some in “some” of the Department’s processes, including Given the inevitability that the bureaucracy’s advice understanding of their perspectives as record keeping. He notes, inter alia: and relationship with the minister is a “black box”, mediated through the NLC consultation even to auditors, and that the levels of resourcing process. What I do offer is the perspective The department worked closely with the Minister for agencies are set by governments, there is an The author, Mike Dillon, has been an Aboriginal affairs of someone who has both observed and for Indigenous Affairs and his Office to ensure that extremely strong public interest in the Minister bureaucrat with the Commonwealth and Northern Territory participated in the discursive relationships they were apprised of the progress being made being held accountable for the performance of his governments. He worked as an adviser to Labor’s Jenny underpinning the Kenbi land claim and implementation challenges …The department Department. This is the normal Westminster theory, Macklin from 2008 to 2011 when she was Minister for settlement, a perspective beyond the considers the shortfalls in its processes outlined in a notion which appears to be increasingly ignored Families, Community Services and Indigenous Affairs, brief media incursions into the Report and the potential implications arising in practice. and in the Department of Families, Housing, Community ‘business’ normally accessible to the from them are overstated when seen in the full Services and Indigenous Affairs from 20011 to 2013. He is reader. light of the transition … What is particularly concerning in the present now a visiting fellow at the Centre for Aboriginal Economic case, and unprecedented in my memory, is the The substantive issues raised by the ANAO are Policy Research at the Australian National University. Minister’s preparedness to denigrate the ANAO and Former Land Commissioner Peter Gray with Principal Legal Officer Michael O'Donnell at the Kenbi handback ceremony 21 July 2016 18 Land Rights News • Northern Edition January 2017 • www.nlc.org.au January 2017 • www.nlc.org.au Land Rights News • Northern Edition 19

on one’s perspective. In December 2000, communities that might result if the land several landmark native title settlements ALRA, but would come under the NT’s suggested by sociologist Dorothy Smith, in the right to access and fish the intertidal "traditional Aboriginal owners". The that approving the settlement was seen Justice Gray found that the six members of was granted). for the Larrakia in the Darwin region, and jurisdiction and hence be subject to NT law her book Conceptual Practices of Power: zone and beaches of the Cox Peninsula, Federal Court’s ruling in Risk v Northern as forever enshrining the findings of the the Tommy Lyons group were "traditional subsequent Kenbi negotiations built on rather than Commonwealth law if dispute It was alleged detriment to others that A Feminist Sociology of Knowledge, these a necessary consequence of the High Territory in 2006 that the Larrakia Commissioner. In fact, once the land Aboriginal owners" of most of the land this success. The negotiation commenced arose regarding future development. made the grant of land in Kenbi such texts stabilised institutional memory of the Court’s Blue Mud Bay decision in 2008. did not possess native title rights and is granted, the NLC can appropriately claim, and recommended that this land in earnest in early 2006 (just after I joined an elusive goal. There were over 100 Thus, uniquely for the settlement of a settlement, and coordinated and structured Evolving Commonwealth and NT policies interests over Darwin, notwithstanding review traditional Aboriginal ownership, be granted as freehold to an Aboriginal the NLC), and through accident rather than stakeholders claiming interests in the land claim, there would be three forms the action that came after them (also to obtain and pay market rent for leases the Commissioner’s finding in 2000 that effectively deferring this issue for another land trust for their benefit, as well as for design there was a constellation of very Cox Peninsula, from squatters with of tenure underpinning the settlement: D Smith, Writing the Social: Critique, on Aboriginal land also impacted the every Larrakia and Belyuen person had at day and perhaps setting the stage for a the benefit of the other claimants who capable NT, NLC and Commonwealth illegal beach shacks, to lighthouses, to the vast majority would be granted as Theory and Investigations). They became negotiations. This package included a least a traditional right to hunt and fish on future Kenbi battleground. were found to have traditional rights and senior staff assigned to the matter who recreational and commercial fishers, to inalienable freehold title to an Aboriginal For the Aboriginal claimants, one can only interests in the land. While it initially had worked together before and could see gravel extraction tenement-holders. To land trust under the ALRA, a portion on speculate about what the decisive moment looked like the findings might again run a way through. My impression was that that may be added the general public the north-eastern side of the claim area was in the Kenbi land claim. It is likely the gamut of the court process, challenges all stakeholders knew that agreement was of Darwin, represented by the NT would be granted as NT freehold to the that there have been many. One may have by the NT and members of the Dangalaba the only way through the political process Government, which claimed it would Larrakia Development Corporation or a been the NLC’s decision to split the claim clan were discontinued. It was a victory— now being faced—otherwise there was suffer detriment if the land were granted similar commercial entity representing by elevating a subgroup of the Larrakia at least for some. a risk that the land under claim could to a land trust due to its inability to expand Larrakia interests for immediate to a higher status, with many Larrakia conceivably be "locked up" forever. (It is Darwin. While the Commissioner gave the development, and some land along the believing that it sounded the death knell not possible to "deal" with land under a From a legal process to a NT’s expansionary plans for Darwin short northern coastline would be granted as NT for their claim to the Cox Peninsula. traditional land claim, including the grant political one—why did Kenbi shrift (including the optimistic planned freehold to a land trust established under Scambary writes about how divisive this of leases or other developments, except growth of Darwin from a town of 100,000 NT legislation with future development decision was at the time, fuelling "intense need to be ‘settled’? in limited circumstances: see s67A of the to a city of 1 million), he did find that it expected over the longer term. Native title contestation" about Larrakia identity and Most claimants consider they have "won" ALRA.) a land claim after the Commissioner’s would suffer detriment from the grant. issues (which were significantly curtailed authenticity. A converse view is that it report is published, and there is usually There were other stakeholders whom the What did the negotiation look like? It when the Larrakia lost their native title ensured the success of the land claim for only a short period between the report and Commissioner found would not suffer took different forms at different times, but claim in 2006) would be resolved by an all Aboriginal claimants, and should be the handover ceremony where the deed of detriment (including the squatters, because physically it looked like a large rectangular Indigenous land use agreement which celebrated. Other turning points might be grant of Aboriginal land is delivered. In they had no legal rights to begin with, and conference table in Darwin with senior would extinguish any native title over the the way the genealogies were compiled Kenbi, there was a delay of over 15 years. the holders of mining tenements, because bureaucrats seated around it, slowly land granted to the Larrakia Development by the NLC, which particular lawyers their interests would be preserved). working through a schedule of "detriment Corporation so the land could be developed or anthropologists were appointed to Legally, under the Aboriginal Land Rights issues" one by one, allocating tasks, and and sold as unencumbered freehold, but The political reality for the claimants was run the claim, or which piece of crucial (Northern Territory) Act 1976, there are returning to the same table every fortnight also provided that the grant of land to the that, in order to get the land granted, they historical evidence was accepted or two steps that must be taken between to report on their progress. This is the NT land trust would be subject to the non- would need to make arrangements with all ignored. Or perhaps the announcement the Commissioner’s report and the grant. mundane reality of a complex negotiation, extinguishment principle. people claiming to possess interests on the of the settlement on 6 April 2016 was the First, the Minister for Indigenous Affairs, and it was during this productive period Cox Peninsula (whether legally recognised Once this issue was resolved, the defining moment in the claim. once satisfied that the land claimed that the key tenets of today’s settlement or not). The word "settlement" could thus proposed resolution of the other detriment No land claim or native title claim can should be granted to a land trust, must were thrashed out. establish the land trust and recommend be substituted with "compromise", for issues seemed to follow quickly—the ever parallel the Kenbi land claim for this is what was required. Having fought Gordian knot had been cut. The Gordian to the Governor-General that the grant Urban development—the the fierceness of its contestation, nor the be made. Second, the Governor-General, so hard during the land claim process, the knot metaphor was Ron Levy’s (former complexity of its issues. There have been upon receiving the recommendation, may claimants now needed to find some way to Gordian Knot principal legal officer at the NLC), not many times over the last 37 years when execute the deed of grant and deliver it accommodate those who had opposed their Although I don’t recall the exact date, mine. all appeared to be lost, either through to the land trust (usually at a handover claim in order to "satisfy" the minister that I remember the day the NLC conveyed government maneuvering, the court ceremony). the land should be granted. the news that the Larrakia and Belyuen The settlement of Kenbi—the process, or the political realities of the people did not agree that the whole false start and the power of negotiation. The claim has such deep northern coastline of the Cox Peninsula documents meaning, for Aboriginal groups as well should be freed up for immediate urban as the armies of lawyers, anthropologists, development. The NT bureaucrats’ From reading the news headlines about politicians and bureaucrats whose careers, shoulders visibly sank, the despair in the Kenbi in early 2009, and then again in and perhaps identities, have been defined room palpable. The process seemed to mid-2011, it would appear that Kenbi had The Kenbi settlement was announced 6 April 2016 at Parliament House Darwin: From left, Traditional Owners Zoe and Raylene Singh, by their involvement and whose efforts screech to a halt. been settled before. In March 2009, the NLC Chairman Samuel Bush-Blanasi, and Traditional Owner Jason Singh. I wish to acknowledge here. Whether or NT and the NLC jointly announced the not all support the settlement, most would The issue that needed resolution was the signing of an "In-Principle Settlement" historical artifacts with present-day $6 million parcel of land on the railway the adjacent Cox Peninsula, compounded acknowledge that the return of this land to NT’s desire to pursue the planning of (IPA) proposing the resolution of all impacts, ossifying the key components corridor at East Arm Wharf, leasehold title this anguish. Aboriginal ownership is nothing short of Darwin for an expanded population by stakeholder issues. Then in June 2011, of the settlement as at 2009 and 2011 and to the old Retta Dixon home in Darwin remarkable. making land along the northern coastline the Commonwealth jumped on board, There are tangible legal and social making renegotiation of resolved issues where many Larrakia members of the available for urban development as NT with former PM Julia Gillard signing a effects flowing from the Commissioner’s difficult. Through this force, they also Stolen Generation grew up, and a right of freehold. Heads of Agreement (HOA) that formally findings. While the Larrakia and Belyuen gave some much needed stability and first refusal to a residential development adopted the IPA. people have the right to be consulted On the other side of the table, the Larrakia structure to the negotiation and impacted in the satellite city of Palmerston, with about the land under claim, the members and Belyuen people had made it clear to The elevated status that these documents subsequent texts, metamorphosing into the Larrakia Development Corporation to of the Tommy Lyons group who were the NLC in consultations that there was assumed in the years following their the over 100 legal documents which now receive all these benefits. identified as traditional Aboriginal owners one non-negotiable: all the land subject signing baffled me. To my lawyerly brain, underpin the settlement. The revolving door of politicians and are catapulted to decision-makers whose to claim had to be returned to Aboriginal they were more political documents bureaucrats had a big impact, sometimes consent (as a group) is required for all ownership, as had occurred in every than anything else, with the IPA in Surprise, chaos and the policy bringing renewed vigour which spurred development under the Aboriginal Land successful land claim. They were willing particular designed to place pressure context things along, but more often than not Rights (Northern Territory) Act 1976 to countenance that some of the land on the Commonwealth to agree to the Kenbi Land Claim Hearing at Belyuen 1989-1990 It is impossible to do justice in this article slowing the whole thing down while a cast (Cth), ss 19(5) and 23(3). While I consider along the northern coastline be granted proposed settlement. They were quickly to all the other quirks that characterised of new characters "got their head around" the Larrakia and Belyuen people were as NT freehold to the recently established drafted and not legally binding, in the different components of the Kenbi Kenbi. The settlement is very much a integral to the settlement process, many Larrakia Development Corporation for amorphous category of a memorandum Accordingly, the decision whether The negotiation phase—key settlement, and contributed to its final product of its time—if negotiations started do not share the Commissioner’s view as immediate development, but not all of the of understanding. A lot more work was to recommend the grant of land after form. While the basic structure of the today the final package may look very to traditional ownership, and feel keenly turning points land flagged for development by the NT. needed by all parties to flesh out the detail a Commissioner’s report lies firmly settlement as set out in the IPA has remained different. disappointed at their status as people to If the hallmark of the claim process was of the settlement. For example, a vague within the discretion of the relevant But, just as quickly as the roadblock consistent for nearly a decade, it has been be "consulted", rather than people who disputation and retreat to the courts, reference in the IPA to a lease needed to minister, requiring a shift from the legal emerged, it seemed to magically disappear. battered about by the chaotic reality of a "consent". the hallmark of the negotiation process be bolstered with details of the term, rent The Aboriginal groups—consent and anthropological domain to a realm The solution, suggested by a NT lawyer, multilateral negotiation. No one foresaw *Kirsty Howey worked at the NLC for 10 was pragmatic cooperation. The desired payable, lease area and other conditions, and consultation It was and is the NLC’s function to years as a lawyer, including on the Kenbi ‘pregnant with political controversy’ was to create an Aboriginal land trust the extent of asbestos and polychlorinated goal was accommodation between What is starkly missing from the foregoing facilitate consultations with respect land claim settlement. She is currently under NT legislation to which the most of which required further negotiation biphenyls (PCB) contamination on (Brennan J in Re Toohey; ex parte development and Aboriginal property discussion is the space for the Aboriginal to the settlement, and it held over 100 undertaking a legal and ethnographic study "developable" land would be transferred. with external parties. certain areas of Commonwealth land, Meneling Station Pty Ltd 1983 44 ALR interests. This change in approach was claimants in the negotiation process. meetings with members of the Tommy of the Northern Land Council as a PhD A similar form of tenure had recently been However, despite their lack of legal clout, which required a lengthy bureaucratic 63 at 91) While the weight to be given attributed by some to the new NT Labor While I am cautious about trying to speak Lyons group, and Larrakia and Belyuen candidate at the University of Sydney. created to underpin various national parks the IPA and HOA exerted a coercive force and parliamentary process to ensure the to various matters is for the minister to Government which, voted in after 23 years for them in any way, for many over the course of a decade about under the NT "parks deal"—and many of throughout the negotiation. Time and time allocation of $31.5 million to clean up decide, there are constraints. In reaching of conservative rule in 2001, immediately and Belyuen people the negotiation the settlement. The process has been the people seated at the table had been part again when things got tense, or a party the mess. Nor did anyone realise just how their decision, the minister must have discontinued a Federal Court challenge to of the settlement has perpetuated the hard and deeply affecting for NLC staff of those negotiations. would suggest a creative resolution of difficult it would be to reach agreement regard to the Commissioner’s report, the Commissioner’s findings. However, deep distress and devastation felt from and the groups involved. While many an issue, the other parties would retreat about the compensation package to be in particular to the matters commented the preceding years under the conservative The land would operate in the same way the Commissioner’s findings that only Larrakia and Belyuen people supported into the clauses of the IPA and HOA as paid in exchange for giving the public upon in accordance with s 50(3) of the NT Government had been marked by as Aboriginal land granted under the six people met the legal definition of the settlement, I got the sense from others Act (that is, ’the detriment‘ to persons or evidence of what had "been agreed". As 20 Land Rights News • Northern Edition January 2017 • www.nlc.org.au January 2017 • www.nlc.org.au Land Rights News • Northern Edition 21 Land Rights Act: 40 years on Australia Day, 26 January 2017, was the 40th anniversary of the commencement of the Aboriginal Land Rights (Northern Territory) Act. On the occasion of the anniversary, Ross Howie draws on his experience as a lawyer who worked on land claims for more than two decades.

Ross Howie*

hen in November 1972 Gough Aboriginal people entitled by Aboriginal hands part of the earth itself as a token The Court, Barwick CJ dissenting, agreed Whitlam declared his intention tradition to the use or occupation of the that these lands will be in the possession with the Land Council submission that the to give Aboriginal people in land. Much of that land, the land not of you and your children forever. The title lease held by the Aboriginal Land Fund the Northern Territory land included in Schedule 1, has been won in he handed to him was, in fact, a pastoral was held “on behalf of Aboriginals” and rights “not just because their case is more than sixty traditional land claims lease which ran until 30 June 2004, a as such could be subject to a traditional beyond argument, but because all of heard and determined by Aboriginal period of 23 years. For anything better land claim under the Act. Since then, in us as Australians are diminished while Land Commissioners – Justices Toohey, it was necessary to bring a claim to the addition to Utopia, seven other cattle the aborigines are denied their rightful Kearney, Maurice, Olney and Gray. land under the Land Rights Act. The land stations, including Daguragu Station place in this nation”, he overcame the Early Ministers for Aboriginal Affairs, claim to Daguragu Station was heard by (Wattie Creek), have been successfully opposition to land rights of years of particularly Ian Viner, Fred Chaney and Justice Toohey in 1981. It was not until his claimed and become inalienable freehold conservative governments since the Bark Peter Baume, were of critical importance report in November 1981, and judgment land. Petition in 1963 and the Gurindji walk- in their staunch defense of the Act against in March 1984 following an appeal to the The negotiations over the Mereenie oil off in 1966. The appointment of Justice the continuing attacks of the miners, the High Court, that a freehold grant of the field, 225 kilometres south-west of Alice Woodward as the Aboriginal Land Rights pastoralists and the Northern Territory Gurindji land was made. Springs, were an interesting example of Commissioner a few months later in Government. Geoff Eames has a lovely story about the ongoing resistance to the Land Rights February 1973 and his two reports in July What must be acknowledged is that the the handover, which he emailed to me Act by the Northern Territory Government 1973 and April 1974 led to the tabling achievements of the Land Rights Act have on the day of Gough’s passing (Tuesday and the mining industry. The Magellan of the Aboriginal Land Rights Bill in been due most of all to the successful work 21 October 2014, aged 98). “I watched companies had permits to explore for the House of Representatives in October of the land councils – the CLC and the the film of the handover of title at Wattie oil, but under the Land Rights Act had 1975. There it lay when the Whitlam NLC. They have made the Land Rights Creek, and it is all so memorable. Gough to make an agreement with the Land Government was dismissed the following Act work. There would be no land rights had handed me the title document (a Council before a mining interest could be month on 11 November 1975. without these two land councils. Those lease, at that stage) for safe keeping, after granted. They complained loud and long During the following election campaign who attack them attack land rights. They the famous earth in Vincent’s hand photo, about this requirement, issuing statements Bob Ellicott, shadow Minister for are an essential part of the Woodward and people kept borrowing it for photos, on the Stock Exchange, and bombarding Aboriginal Affairs, promised in a telex proposal and the key element in the until when he asked me to hand it back the Commonwealth Government with message to pass the land rights legislation structure of the Land Rights Act. Their (presumably, for his own photo op) I said letters and submissions claiming that the Ross Howie, lawyer, delivers opening address to the Aboriginal Land Commissioner, Justice John Toohey, at Dagaragu during the land claim by Gurindji to if elected to government. Powerful forces role in identifying traditional owners, I had no idea where it was. ‘Christ’, he Act was not working and calling for it Dagaragu Station, July1981. opposing land rights were mobilised – the acting on their instructions, lodging said, ‘it took them two hundred years to to be changed. They were supported by Northern Territory Administration, the and preparing land claims, providing get title back and you lost it again in one the Minister for Mines , Cox, Gavin O’Brien and Maria Loveson been no land claims without these lawyers was adjourned and the Land Council because they are the only areas left. mining industry, the pastoral industry, expert advice and professional skills for day’. Fortunately, I did track it down – the local member Roger Vale, the CLP come to mind, but there have been many who lodged them, prepared them and appealed to the High Court. In March They are not necessarily the areas the Finke River Mission. The opposition proposed use of land, are essential for the safe but with red earth finger marks all senator Bernie Kilgariff and MHR Sam others. The anthropologists and linguists dealt with the manifold issues involved. 1984 the Court upheld the appeal and held of choice, but because they are the continued with the election of the Fraser over it.” Calder. Each of them attacked the Land are too numerous to mention, but without that the land, save for one area, was able only areas left and because they Each land claim is memorable for the government in December 1975. The Council. doubt one of the pleasures for the lawyers to be claimed and the Commissioner had affect non-Aboriginal interests, they There would not have been a successful experience it brings of working with Central Land Council (CLC) and the The Central Land Council involved has been to work with colleagues jurisdiction to hear the claim. create tremendous divisiveness and claim to the Gurindji land if the claim to These attacks were firmly resisted by Aboriginal people, many of them Northern Land Council (NLC), which had of such ability and skill. I want to mention put people in confrontation with one Utopia Station had not been successful. Commonwealth Ministers for Aboriginal remarkable men and women, and The hearing then recommenced before come into existence to make submissions and the Northern Land the land council solicitors – Geoff Eames, another. Is there no way that all the The Utopia claim was the first cattle station Affairs Ian Viner and Fred Chaney. It was representing them in matters of such Justice Maurice in Tennant Creek to the Woodward Inquiry, campaigned Mark Hird, John Coldrey, Bruce Donald, parties could get together and work Council … have made claim and the first claim under the Land only after a meeting in June 1979 when importance to them. in March 1985. In the meantime the vigorously to have the legislation passed. Neil Andrews, Tom Keely, David Avery, out alternative areas which could Rights Act to be considered by the High Mr Chaney spelt out to Magellan and to unhelpful R Report had been abandoned Geoff Eames, the lawyer working for the Land Rights Act work. Two land claims, Warumungu and Kenbi, become Aboriginal land in lieu of Court. It began before Justice Toohey in Mr Tuxworth that “the Act will not be and a new report prepared by competent the CLC, played the critical role in that were particularly memorable, for the time some of the more contentious areas September 1979. Self government had amended, start talking to the land council, researchers. It was a keenly fought case campaign. There would be no land they took, the opposition to them, and the under claim been given to the Northern Territory make an agreement”, that genuine Land claims are … with many parties, including the Northern number of times they went to the High Eventually, in December 1976, the rights without these two on 1 July 1978. There was no shortage negotiations commenced. An agreement Territory Government, contesting the Despite this plea the hearing continued invariably substantial, Court. Each was a claim to land adjacent Aboriginal Land Rights (Northern of political testosterone. The newly was reached by the following February. claim. In the fifth week of the hearing, during 1985. It became even more Territory) Act 1976 was passed. It came land councils. empowered government was incensed by to a town, Tennant Creek in the case of Since those early days there have been lengthy, and complex as he heard the evidence of the Aboriginal contentious. The R Report had into operation on Australia Day of the anything that questioned its sense of its Warumungu, and Darwin in the case of numerous agreements with mining claimants and of the opposing parties, suggested that descent was not a factor following year, 26 January 1977, 40 years power, particularly the Land Rights Act. It Kenbi. companies, and the efficacy of the Act litigation, and often the judge expressed his “developing in responsibility for land. Although the ago. Twenty areas of land, former reserves was bitterly opposed to Aboriginal owned Act to work. And it has worked, despite and ability of the land councils to make The hearing of the Warumungu claim, sense of powerlessness and frustration” claimants did not rely on this report, and missions, were included in Schedule cattle stations becoming Aboriginal land. enough, vigorously the attacks on the land councils, which, at agreements have been demonstrated again lodged in November 1978, commenced at the limits of what might be achievable the Northern Territory was hopeful of 1 of the Act, to become Aboriginal land on The Attorney-General and Chief Minister times, have seemed relentless. and again. contested. before Justice Kearney in November under the Land Rights Act. He made the finding information in the field notes of the establishment of relevant Land Trusts. Paul Everingham attacked the land claim 1982. It had difficulties due to the following plea. the researchers damaging to the claim. Land claims on the basis of need, which For those involved in land claim work, to Utopia Station and the Land Council Each year since September 1977 when anthropologists’ report (the “R Report”) Summonses were served on each of the had been part of the original Bill, were not as I was for 24 years from 1978 to alleging that the claim had been lodged the hearing of the first land claim, the James Nugent, Paul Burke, Jonathon which was ideological and verbose in we are into our fifth week and we researchers requiring them to prepare included in the Act as passed. Land claims 2002, there have been many memorable without instructions and that the station Borroloola land claim, began, there Rodd, Phil Teitzel, Brett Midena, Robert style, significantly irrelevant in content, have heard a lot of evidence from affidavits and produce all documents to unalienated Crown land, and land held moments. One was to give effect to the would become “a running sore” and “a have been land claim hearings. Each Blowes, Ray Plibersek, Ione Rummery, and failed to address issues required by the Aboriginal people who have got quite relating to their research for the land claim, by or on behalf of Aboriginals, required promise made by Prime Minister Whitlam harbor of disease”. A complaint about of these claims involved a massive Sean McLaughlin, Tony Young, Susan Land Rights Act. Fortunately, during the clearly traditional claims to ownership including their field notes. As they had proof of traditional ownership according to Vincent Lingiari at Wattie Creek on such language to the Solicitor General amount of work for the Land Councils Gilmour, Jessica Klingender, Mick first week of the hearing it was revealed of country around Tennant Creek. We been engaged by the Land Council, and to the complex definition provided in the 16 August 1975 when, handing to him a Ian Barker QC was rejected by him as “a in researching, preparing and presenting Dodson, Ian Gray, Ron Levy … with that the Northern Territory Government have heard quite a lot of evidence some had carried out work for the Sacred Act. title and pouring a handful of dirt into his mere impertinence”. Mr Everingham, as the claims. The burden of this work apologies to those I have overlooked. had alienated areas of land under claim from non-Aboriginal people who have Sites Authority, both the Land Council hand, he said to him: Vincent Lingiari, I Attorney-General, brought proceedings has been borne by the field staff, the got legitimate expectations in respect What an extraordinary 40 years it has been. Land claims are legal proceedings. They to its Development Land Corporation. and the Authority became involved. solemnly hand to you this deed as proof in in the High Court to stop Justice Toohey researchers, the solicitors and the counsel of the same country. The claims that More than half of the land in the Northern are invariably substantial, lengthy, and Justice Kearney ruled that those areas Issues of public interest immunity, and Australian law that these lands belong to hearing the claim. they engaged. The field staff have been have been made by the Aboriginal Territory is now freehold Aboriginal land complex litigation, and often enough, were no longer “unalienated Crown land” of legal professional privilege and waiver the , and I place in your magnificent. Toly Sawenko, Barbara people have quite understandably held by Land Trusts for the benefit of The High Court dismissed the proceedings. vigorously contested. There would have and could not be claimed. The hearing were raised. The researchers made their been made to the areas they have affidavits, produced their documents, 22 Land Rights News • Northern Edition January 2017 • www.nlc.org.au January 2017 • www.nlc.org.au Land Rights News • Northern Edition 23

were called by the claimants and gave was an extraordinary legal achievement The Northern Territory then objected neatest solution to the problem.” Mr separate representation for three groups their evidence. R was not called by the to overcome the massive obstacles to producing the documents relating to Barker’s memo of 1 December 1978 of claimants, the larger group of Larrakia claimants and was separately represented. erected to defeat the land claim. On 22 the making of the regulations, claiming headed “Aboriginal Land Rights and claimants, the Belyuen community, and December 1978 the Northern Territory they were subject to legal professional Town Lands” noted: “Our decision on a smaller group of Larrakia claimants On 1 October 1985 Maurice J gave a Administrator, acting on the advice of the privilege. Justice Kearney dismissed that Wednesday was to make regulations under known as the Tommy Lyons group. comprehensive ruling on the issues Executive Council, passed regulations objection and ordered that the documents the Town Planning Ordinance so that Justice Gray presented his report on 12 relating to the production of documents. making the Cox Peninsula part of the be produced for inspection by the Land the unalienated land east of Darwin and December 2000. He found that the only He held that as the R Report had not been town of Darwin. Council. The Attorney General’s appeal on the Cox Peninsula becomes a ‘town’ claimants who fell within the definition tendered in evidence by the claimants, and to the Federal Court was dismissed and within the meaning of the Aboriginal of traditional Aboriginal owners were the was not relied upon by them or deployed The purpose seemed to be to block the his appeal to the High Court was also Land Rights (Northern Territory) Act.” members of the Tommy Lyons group, and on their behalf, they had not waived their land claim, as land in a town could not dismissed. that the strength of traditional attachment privilege in information gathered by him. be claimed under the Land Rights Act. Having seen the documents the Land justified him in recommending the grant He also held that there was an insufficient The Land Council challenged the validity When the opportunity came to examine Council proceeded with the application of the whole of the land claimed with basis for a claim by the Sacred Sites of the regulations as not being a proper the memos of senior officers of the to have the regulation declared invalid. It the exception of an area in the south- Authority of public interest immunity in exercise of the power under the Town Northern Territory there were some real came before Justice Maurice in March and east. It took another fifteen years of the information gathered by it. Planning Act and made for the ulterior gems. One from the Department of Law April 1987, the same time period in which representation and negotiation by the purpose of defeating the land claim. to the Solicitor General (Ian Barker QC) the last aspects of the Warumungu claim The Attorney General for the Northern Land Council before the deeds of grant Justice Toohey ruled that the motives of dated 28 November 1978 began: “I refer were being heard. Because of remarks Territory challenged the decision of were handed over on 21 June 2016. the Administrator could not be examined, to your request that I examine further made by the Judge in the closing stages Maurice J. The Federal Court upheld his that the regulations were valid, and the the methods by which certain lands in of the Warumungu claim, the Northern These are accounts of the twists and turns decision. The Attorney General appealed land could not be claimed. The Land the Northern Territory may be taken out Territory applied to the Federal Court for of just some land claims. There have to the High Court. This was the second Council challenged this ruling in the High of the definition of ‘unalienated Crown him to be disqualified in the Kenbi claim. been more than 60 in the 40 years since occasion that the Warumungu claim Court. On 24 December 1981 the Court land’ within the meaning of Section 3 The Full Court prohibited him from the Act was passed. I have been involved had gone to the High Court. The Court held that the claimants were entitled to of the Aboriginal Land Rights (Northern proceeding with the Kenbi claim. Justice in about 25 of them. They would not have dismissed the appeal. The Sacred Sites challenge the validity of the regulations Territory) Act.” The proposal to use Olney then heard the case concerning the happened without the land councils and Authority also challenged the ruling of on the ground that they were made for the regulatory powers under the Town validity of the 1978 regulations. It ran for the work of the land council lawyers, Maurice J. That application was dismissed the ulterior purpose of defeating the land Planning Ordinance to treat the land seven days from 18 to 26 October 1988. field staff and researchers. Each of the by the Full Federal Court (Bowen CJ, Kenbi Land Claim Hearing at Belyuen 1989-1990 claim. as a town led the solicitor general and He gave his decision on 8 December land claims has required Aboriginal Woodward and Toohey JJ). others to “agree that the proposal is the 1988. women and men to disclose extensive In the meantime two other contentious fiery exchanges between the judge in of the areas and recommended those areas lands. … information concerning their knowledge issues had arisen. In March 1986 Maurice I have not the slightest hesitation in court and the Chief Minister Mr. Hatton for grant. He dealt comprehensively with We nearly got away with it: perhaps of country, their personal lives and their J had ruled that, although there was an concluding from the evidence … that in the media. It was complicated by the the large number of people and bodies another generation or two and the spiritual beliefs and practices. It has often error in the application in the description [the relevant Minister] embarked on fact that an election was taking place, with interests in the land claimed and the Warumungu would have become so been at considerable personal cost. There of the claimed land, the intention of the a course of conduct designed for the that counsel assisting, , was manner in which they may be affected. detached from their traditional land have been many pleasures for a lawyer in claim was clear. The Attorney-General purpose of ensuring that the land a Labor candidate in the election and he It is an impressive document. Most base that their spiritual affiliations land claim work, especially the collegiate (NT) challenged this ruling in the Federal could not be made the subject of a also made public statements. impressive of all is the way in which he and much of their oral traditions nature of it, but the greatest pleasure and Court. Beaumont J upheld the ruling in acknowledged the Warumungu people. land claim. … On the evidence I find privilege has been the time spent with so On 23 March 1987, day 61 of the hearing, would have been lost. …Sadly, the November 1986, and the appeal by the as a fact that the regulations were many impressive Aboriginal people in the Attorney-General, now represented by One has only to read the accounts Northern Territory has not recognised Attorney to the Full Court was dismissed planned and implemented, from start dealing with matters most dear to them. David Bennett QC, applied to the judge to the moral strength of Aboriginal land in July 1987. The judge had also ruled that and view the photographs and to finish, to ensure that no Aboriginal disqualify himself. An affidavit in support claims or, indeed, the fundamental a stock route was a road and could not be drawings of Spencer and Gillen to land claim could be made … That of the application by Peter Conran, place that belonging to land has claimed. The Full Court disagreed and realise that in 1901 the Warumungu was the sole reason for making the Deputy Secretary of the Department of in shaping Aboriginal self-identity. held that stock routes could be claimed. were a flourishing nation in the regulations … [They] were not a valid Law, revealed the astonishing information ordinary sense: a large number of Encouragingly, the general population exercise of the regulation making After these diversions the hearing of the that on 4 March 1987 counsel for the people of mainly common descent, of Tennant Creek has: their support power … It follows that the land Warumungu land claim recommenced on Northern Territory, including Ian Barker language and history, inhabiting a for the claimants’ proposals to described as Cox Peninsula … was not 23 February 1987 in order to complete the QC, who was in Darwin for the Morling territory bounded by defined limits compromise important parts of their at the time the claim was lodged … evidence and submissions in the case. It Inquiry into the Chamberlain case, had and forming a society under one claim – proposals not treated seriously land within a town was the 52nd day of the hearing. Maurice met with the judge and counsel assisting. by the Government – marks the town government. They were reputed to be The Attorney General’s challenge to J expressed his frustration. It was news to counsel for the claimants, apart from many others where black the most numerous, most intelligent this decision was dismissed by the Full who were not at the meeting and had no and white Australians live. My concern about these matters will and physically the best tribe in Central Court on 28 June 1989. Special leave notice of it. have been obvious from the pleas I Australia. In the report he wrote of people’s to appeal was refused by the High have made to the participants to try Maurice J refused to disqualify himself. Within a matter of years, the landedness, that their identities “have Court on 15 September 1989. Ross Howie was a partner in a firm of The Attorney General brought an been shaped by the distinctive Aboriginal and reach some compromise …. The Warumungu had been almost At last, roughly ten years after it solicitors in Melbourne before going application in the Federal Court to society in which they have grown up and Northern Territory has offered no completely dispossessed. They had commenced, the Kenbi land claim prevent him from proceeding further with live and the traditional culture which has to Alice Springs with his wife Janet alternative, at least none that I am fought vigorously to defend their could be heard. Justice Olney the hearing of the Warumungu claim. On been such a part of their lives. Though and three children in November 1975 aware of. Still, that is typical of its inland state from the white invasion, commenced hearing it in November 13 April 1987, the Full Court, who began their lifestyles may be vastly different approach to all of the claims under the but their spears and 1989 and concluded in December to be senior lawyer with the Central the judgment with the words “This is from what they would have been had Land Rights Act in which I have been were no match for men on horseback 1990. He presented his report on 21 a most regrettable case”, dismissed the they lived one hundred years ago, the Australian Aboriginal Legal Aid Service. involved … its actions consistently carrying firearms. …Astonishingly, February 1991. What an irony, after all betray an underlying hostility to the application. The Court held that although superficial trappings of white civilisation perhaps, much of the Warumungu these battles, he found that there were In January 1978 he moved to the the judge had been severely critical of belie the fact that, in my judgment, they basic principle of land rights for a identity remains, and even today no traditional owners of the land. The the competence of the Northern Territory remain deeply Aboriginal. Everything Central Land Council as principal legal dispossessed people. It does nothing the sense of belonging to land is a Land Council applied to the Federal Government and had cast aspersions upon about them finally attests to this. The to acknowledge the moral strength of powerful influence in the lives of Court to review this decision. On 27 officer until December 1981. He went any of their claims. its integrity, it could not be reasonably these people in the Barkly Region. way they talk, the way they think, their mannerisms, the things they talk about, February 1992 the Full Court held to the Victorian bar in March 1982, was On day 54 a senior pastoral inspector apprehended that he might not resolve In a sense, white Australia has how and where they live, what they eat, that Justice Olney had made errors gave evidence that when he went from the issues before him in the Warumungu been caught in delicto with the appointed Senior Counsel in 2000 and how they dress and groom themselves, of law, in particular holding that the Darwin to inspect Singleton Station, claim in a fair and unbiased way. Warumungu. We have taken all their was appointed a judge of the County how they relate to one another and to other expression “local descent group” in after once being refused entry and turned good land; no watercourse remains The hearing resumed on 21 April 1987. Aboriginal folk – the whole atmosphere the definition of traditional Aboriginal Court of Victoria in October 2002. back, he had been met by the pastoralist’s which does not have some European There was further evidence in April of their presentation.” This is such a owner in the Act should be construed to solicitor who remained present during claim to it. We have comforted and June and submissions in August. splendid insight. mean “patrilineal clan”, and set aside Since retiring in December 2012 he the inspection, and was later asked by It concluded on 19 August 1987, day ourselves with myths about what his decision. has continued as alternate chairperson a superior to tone down his report. The 69. Justice Maurice delivered his report Aboriginal people wanted, what was The other epic land claim, of course, Justice Gray commenced the second judge’s observations concerning this on 8 July 1988. At 280 pages it is the important to them, what was good for was Kenbi. The application for Dum- of the Youth Parole Board, works as inquiry on 16 October 1995. Despite evidence, which included I must say longest Land Commissioner’s report. them – all the while taking more and In-Mirrie Island lodged on 29 June 1978 the fact that the transcript of evidence a volunteer at the Asylum Seeker that the evidence which you have given The Warumungu claim was really the more of their land, shifting them here, was consolidated with the application for and exhibits in the earlier inquiry seriously disturbs me and it raises equivalent of many claims. There were shunting them there; until all that was the Cox Peninsula on 20 March 1979. Resource Centre in Footscray, were evidence in the second inquiry, questions about some form of patronage fifteen areas under claim and eleven left was desert wasteland and what Thirty-seven years later, on 21 June 2016, and enjoys more time with his nine it still occupied fifty-seven sitting going on in this Territory attracted the claimant groups. The judge found claimant the Northern Territory Government the Prime Minister handed deeds of grant Traditional Owner Raylene Singh displays the title deeds to the Kenbi land claim, given to her days, concluding on 4 June 1999. In grandchildren. interest of the press, and led to ongoing groups to be traditional owners of twelve would describe as public purpose to the land to the traditional owners. It by Prime Minister Malcolm Turnbull on 21 June 2016. this inquiry the Land Council provided 24 Land Rights News • Northern Edition January 2017 • www.nlc.org.au

Dr Gumana: a great man who won the respect of all Jonathan McLeod was the Northern Land Council’s acting CEO when the memorial service was held at Gangan for Dr Gumana, and he delivered the following eulogy: oday, along with the many others gathered here, the His involvement in Yolngu land rights was continuous and Northern Land Council – its members and staff – in 2005 he was the lead plaintiff in the Blue Mud Bay land honour a great man who, through his long life, won the rights case which has returned to Aboriginal ownership respect of all who knew him. more than 85 per cent of the Northern Territory coastline. His contributions to our society as a senior cultural, With the works of other plaintiffs, his art was admitted as community and religious leader, artist and learned scholar, evidence before the Federal Court which first heard the Blue were properly recognised through the high honours that Mud Bay case in 2004. were awarded to him during his lifetime. With the others, he was described by the judge as an In 2002 he was awarded the overall Telstra National impressive witness. The judge must have been particularly Aboriginal and Torres Strait Islander Art Award. impressed by Dr Gumana’s evidence, because he published The following year he received an Order of Australia. long extracts in an appendix to his judgement. The citation stated he was a cultural ambassador and Of him and other Yolngu witnesses, the judge said they were religious leader who promoted understanding, leadership honest and truthful, and had a detailed understanding of the and mutual respect to the reconciliation process and to the laws, traditions and customs of the clans about which they arts as a significant contributor to Australia’s Indigenous gave evidence. artistic heritage. And in 2007 he was awarded an Honorary Dr Gumana will be especially remembered for his unrelenting Doctorate by Charles Darwin University. support for the homelands movement, and revered for the But those honours are only one measure that reflects his strength of his leadership in maintaining his Dhalwangu clan contributions to the Northern Territory and to Australian life. land and its centre here at Gangan. His contributions to his Yolngu people are also indicated in This place has been one of the few clan centres that has other roles which he discharged as a young man. remained continuously a living homeland from its sacred In 1962, then in his 20s, he contributed to painting the origin, through the period of development of the homelands Yirrkala Church panels, which were a forerunner a year later movement in the 1970s, to the present time. to the Bark Petition, which now rests in our Commonwealth It will surely remain a living tribute to the wisdom and Parliament House in Canberra. leadership of Dr Gumana. He was a senior clan leader in the Milirrpum land rights We at the Northern Land Council salute his legacy. We case where he acted as an interpreter. And then there was remember today a man of high standing and intellect, and Jonathan McLeod, Acting CEO, NLC delivering the eulogy at Dr Gumana' Memorial Service his continuing support for the Homelands movement which we convey our heartfelt condolences to the family of this began in the early 1970s. great man.

facility and he underwent treatment for more that they had occupied the land since time Over the last two decades his stature as an In May 2007, Dr Gumana was than a decade. During that time he learned immemorial and that the government had no artist and ambassador for Yolngu culture awarded an Honorary Doctorate English, got married and became a Christian. right to negotiate arrangements for mining has been recognised. He has been painting He also began painting, drawing on his the land without their consent. Dr Gumana for almost 60 years and his work has been by Charles Darwin University. memory to depict scenes of his country and acted as an interpreter and cross-cultural included in major local and international The then Chancellor of CDU, Richard its stories. That way he kept strong his links bridge during the proceedings. collections since 1966. He has travelled to with his land. London, Paris, Singapore and other places Ryan, presented Dr Gumana with the The Yolngu lost their Supreme Court action, with art and dance troupes and he has degree of Doctor of Arts, Honoris Dr Gumana said later that during his time but the loss was a direct catalyst for the around Darwin he learned three ways to look enactment of laws which protected Aboriginal featured in many documentary productions Causa, in recognition for his outstanding at the world – the Yolngu Aboriginal way, the land rights in the Northern Territory. which describe Yolngu art and aspirations. contribution to the whole of Australia western way, and God’s way. His importance The homelands movement, the return of In 2002, Dr Gumana won the Telstra National and the Northern Territory in particular as a mediator in many complex situations Aboriginal people to live on their traditional Aboriginal Art Award, for a painting on a – especially in recognition of his part in flows from that ability to see and understand country, was one of the outcomes of the hollowed-out stringybark log of the kind creating a contemporary world where things from these different points of view. new land rights system. Dr Gumana led which was once used to store the remains people can live together with mutual Eventually he returned to Arnhem Land, his clan back to its traditional country at of the dead. respect and understanding; and in settled at Yirrkala and was given an important Gangan, about 150 kilometres south-west of His status among his people was further acknowledgement of his notable work as place in local life as the eldest son of the clan Nhulunbuy. There, he led his people in the demonstrated when he was selected to be an artist. leader Birrikitji. By then, issues were arising creation of a homeland centre for about 80 the lead plaintiff in the 2005 Federal Court about the future ownership and management people. Gangan has been acknowledged case which resulted in the affirmation of The following text is drawn from Mr of the land which the Yolngu people had as one of the notable success stories of the Yolngu native title rights over inland and Ryan’s address at the award ceremony. thought was theirs alone. homelands movement. coastal waters. Dr Gumana was born in north-east Arnhem In 1962 Dr Gumana joined with other In 1992 he was ordained a Minister of the Dr Gumana is now continuing his life mission Land in about 1930. He grew up around Yolngu artists to paint the panels which Uniting Church, following study through to bring knowledge of the western world to Gangan, near powerful sources of traditional were installed on either side of the altar in Nungalinya College in Darwin. He regarded his Yolngu people, and to help outside people lore and culture and alongside the continuing the Yirrkala church. The panels depicted the his course of theological study as part of to learn about the Yolngu. He accepts that presence of the creative ancestors. His early creation stories that gave the Yolngu their the lifelong process of acquiring knowledge; before he can teach about these things he life was steeped in tradition and the learning claim to the surrounding lands. The panels while being ordained was a logical step in the must first learn as much as he can about life, of skills such as the making of canoe voyages inspired the bark petition of 1963 which put discharge of his responsibilities toward his culture and lore. For him, that is an essential across the open sea to . all Australians on notice that there were people. He says that he is a warrior on behalf part of the process of people learning how people whose claims to land long predated of his people and that while a generation ago to be closer to each another in an undivided When he was a young man he was diagnosed European arrival in 1788. his weapons would have been spears, now Australia. He can be well satisfied with with leprosy. It was then a fearful disease his weapon is his tongue. Dr Gumana has his own role in helping to create a better and he was brought into the Channel Island It was a turning point in Australian history. said that his continuing study of the lore and Australia, a place where people can indeed leprosarium for confinement and treatment. In 1968 Yirrkala people took action in the life is essential so that his tongue can speak live closer together. Later, he was moved to the new East Arm Northern Territory Supreme Court to protect their interests in their land. They claimed well.