‘On Just Terms!’ A submission in response to the Native Title Legislation Amendment Bill [Provisions] (Bill). “... The Nyikina people's relationship with the land is all connected with their way of life. The land is part of us, and we are part of the land. That is the whole basis of our culture. Unless people can learn to respect the land as we do, we have no hope for the future of ourselves and our children”. 24 March, 2020 Dr. Anne Poelina Nyikina Warrwa Yimardoowarra Marnin Martuwarra Fitzroy River Fitzroy Catchment West Kimberley, Western Australia Submitted in good faith on a no prejudice basis for review and comment. “Everyone who has an association with the river, whether Indigenous or not, talks about ​ 1 how important it is. It is the River of Life. 1 Poelina, A. (2017). 'Protecting the river of life', in K. Aigner (Ed.), Australia: The Vatican Museum's ​ Indigenous collection. Canberra: Aboriginal Studies Press, p. 217. ​ 1 Submitted in good faith on a no prejudice basis for review and comment. Table Of Contents 1.0 Introduction 4 Roles as a Witness 4 2.0 Stories of Past into Present 6 Background - Past, Present and into the Future 6 Story 1: ‘Win Win’ Rangelands Tenure Options 8 Story 2: A Hard Act to Follow? 12 Received in confidence by the committee 33 Story 4: One ORIC Story– Grave Injustice 43 Received in confidence by the committee 52 3.0 Native Title Amendment Bill 2019: Review of submissions 58 Purpose 58 Background 58 The Submissions 59 Submission Review 60 Discussion 60 High-Level Observations 61 Discourse Analysis 62 4.0 Legislative Reform To The Native Title Act (1993) Is Premature, Too Soon! 64 Regionalism and Culturally Competent Authorities 66 5.0 Conclusion 67 Recommendations 69 6.0 References 71 Appendix 72 2 Submitted in good faith on a no prejudice basis for review and comment. 1.0 INTRODUCTION ​ I am pleased to have the opportunity to make a submission in response to the Native Title Legislation Amendment Bill [Provisions] (Bill). This submission contains ‘stories’ which frame my position and response as a living witness to this continuing process of invasion and colonisation, as noted by my sister Nyikina Elder, Lucy Marshall OAM in her statement about Nyikina people’s relationship to Country made when she was the Chair of Pandanus Park Aboriginal Community to the Aboriginal Land Inquiry 37 years ago: “... The Nyikina people's relationship with the land is all connected with their way of life. The land is part of us, and we are part of the land. That is the whole basis of our culture. Unless people can learn to respect the land as we do, we have no hope for the future of ourselves and our children”. (Marshall, 1983). ​ Lucy went on to become a Member for the Order of Australia, in recognition for her lifelong work as a senior cultural adviser and elder of high degree. ROLES AS A WITNESS ​ ​ ​ ​ ​ ​ ​ Ngajanoo Nilawal, my name is Anne Poelina. In reflecting on my lived experience over the past 60 years at concepts of reconciliation, healing and the ongoing colonial relationship between Australian governments and Australia’s original peoples, our Laws, Land and Living Waters… It just doesn’t feel right! Call it Liyan, call it Feeling, call it a Vibe! It seems to ​ ​ many of Australia’s original peoples, it’s time for justice and it must be done now, ‘On Just ​ Terms’! My Indigenous heritage is Nyikina Warrwa; in my Nyikina language 'ngajanoo Yimardoowarra marnin' means ‘a woman who belongs to the Martuwarra, Fitzroy River’. We are traditional custodians, guardians of this sacred river in the Kimberley region of Western 3 Submitted in good faith on a no prejudice basis for review and comment. Australia. We were given the rules of Warloongarriy Law First Law, from our ancestor Woonyoomboo, from Bookarrakarra, the beginning of time. We continue to respect and stand by this Law. As an Indigenous original Australian my position is as leader in the Kimberley region. I work within six independent nations and from diverse areas of the Martuwarra/Mardoowarra Fitzroy River Country. Our First Law, customary law, rights, interests, authority continues today. It is the basis for civil society’s negotiated ethics, values, principles and codes of conduct. We are living witness to our world and its continuing impacts of colonisation, invasive policies and legal reforms continuously usurping and diminishing our rights, in the guise, the illusion of probity. Colonisation and invasive government policies and laws, perpetuate the injustice. I trust the meaning I propose in my submission may find standing and engender a sense of goodwill to consider Indigenous Australians are looking for a fair go for ALL! ​ ​ It is timely to be brave and rethink who we are as Australians in modernity! This submission seeks to link our people with dates and events from the past, and into the present, while the government is negotiating, brokering and trading off our peoples’ land, living waters, and future, now. 4 Submitted in good faith on a no prejudice basis for review and comment. 2.0 STORIES OF PAST INTO PRESENT ​ ​ ​ ​ ​ ​ ​ ​ ​ On 17 November 2015, the Western Australia Legislation Constitution Act of 1889 (Constitution Act, 1889) was amended to recognise the state's Aboriginal inhabitants for the ​ first time as the First People of Western Australia and traditional owners and custodians of the land - what we ourselves call 'Country'. The amendment promotes the view that the state parliament should seek reconciliation with Western Australia’s Aboriginal people. Although the amendment was a gesture of support, neither state nor federal governments have yet recognised the full extent of Indigenous rights, interests, guardianship and authority, in terms of the true spirit of native title. BACKGROUND - PAST, PRESENT AND INTO THE FUTURE ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ On 2 and 3 November 2016, Aboriginal leaders met in Fitzroy Crossing to showcase to the world the recognition that the National Heritage Fitzroy River is our living ancestor from source to sea. The Fitzroy Declaration (Kimberley Land Council, 2016) claims: ​ ​ “... Traditional Owners of the Kimberley region of Western Australia are concerned by extensive development proposals facing the Fitzroy River and its catchment and the potential for cumulative impacts on its unique cultural and environmental values. The Fitzroy River is a living ancestral being and has a right to life. It must be protected for current and future generations, and managed jointly.” (Kimberley Land Council (KLC), 2016). ​ The United Nations Permanent Forum On Indigenous Issues Background Guide (Australian Human Rights Commission, 2012) was launched in 2016, and we recognise this ​ document as an important model for cultural governance of our natural and cultural resources. The UN framework grounds the Fitzroy River Declaration and the resolution of Kimberley traditional owners and custodians, allowing us to 'investigate legal options ... 5 Submitted in good faith on a no prejudice basis for review and comment. strengthening protection under the Commonwealth Environmental Protection and Biodiversity Act (1999)', along with protection under the Western Australian Aboriginal Heritage Act (1972), whilst exploring legislation in all its forms to protect the Fitzroy River Catchment. The continuing colonial invasion and occupation of our country and peoples remains structurally violent, and the results at the personal, community and organisational level is brutal. It results in subjugation and modern-day slavery of people, with invasive, unjust development, on the increase. We understand that the colonial states were established to create wealth for private and foreign interests at the expense of Indigenous people, our lands and living waters. Since the historical discourse regarding development from the Anglo-Australian perspective has been in terms of the process and impacts of invasion, this begs the question as to how it benefits First Nation peoples, and specifically Kimberley Aboriginal nations. I am a witness to, and share in, the struggle to reconcile conditions imposed on Aboriginal people across the continent with the fulfillment of traditional law. The focus of federal and state government policy and private investment is on the development of Northern Australia within a Western economic framework. Anglo-Australian settler society disregards the value our cultural and human 'capital' grounded in traditional knowledge systems and the rights of nature. Foreign and national corporate interests view Country as a resource for investment: from the pastoral industry and intensive agriculture, mining for diamonds and gold, and pearls as well as through fracking for oil and gas. None of these industries is sustainable: each has an adverse effect on air, land, water and biodiversity; and brings poverty to local people due to the Development Paradox. The experience of Aboriginal people in the Kimberley and throughout Australia is shared with other colonised, Indigenous and First Nations peoples. The Norwegian peace philosopher Johan Galtung (1996) calls this legislated inequality 'structural violence'. This submission provides the process and impacts to evidence the continuing usurping of our native title rights and interests and how this intersects with multiple forms of legislation targeted as ‘reforms’ for the benefit of Australia’s Aboriginal and Torres Strait inhabitants! 6 Submitted in good faith on a no prejudice basis for review and comment. STORY 1: ‘WIN WIN’ RANGELANDS TENURE OPTIONS ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2011 Amendments to the Pastoral Lease – Western Australia In May 2011 leading up to the amendments of the pastoral lease in Western Australia, I submitted to Western Australian government a submission titled, Win Win Rangelands. Tenure Options: Discussion Paper Response (May 2011). Many of us are descendants of pastoralists and we have a shared heritage and history, but we may need to remember it was our grandfathers who managed and operated these pastoral leases, which created great wealth for the ‘Verandah Managers'.