Other People's Country

Law, Water amd Entitlement in Settler Colonial Sites

Timothy Neale, Stephen Turner

• Publisher: Routledge
• Year: 2018
• Print ISBN:
  9781138657502
• eBook ISBN:
  9781317219453
• Topic: Social Sciences
• Subtopic: Media Studies
• Index: Social Sciences

Other People's Country thinks through the entangled objects of law – legislation, policies, institutions, treaties and so on – that 'govern' waters and that make bodies of water 'lawful' within settler colonial sites today. Informed by the theoretical interventions of cosmopolitics and political ecology, each opening up new approaches to questions of politics and 'the political', the chapters in this book locate these insights within material settler colonial 'places' rather than abstract structures of domination. A claim to water – whether by Indigenous peoples or settlers – is not simply a claim to a resource. It is a claim to knowledge and to the constitution of place and therefore, in the terms of Isabelle Stengers, to the continued constitution of the past, present and future of real worlds. Including contributions from the fields of anthropology, cultural studies, cultural geography, critical legal studies, and settler colonial studies, this collection not only engages with issues of law, water and entitlement in different national contexts – including Australia, Aotearoa/New Zealand, New Caledonia and the USA – but also from diverse disciplinary and institutional contexts. This book was originally published as a special issue of Settler Colonial Studies.

Remembering ‘the blackfellows’ dam’: Australian Aboriginal water management and settler colonial riparian law in the upper Roper River, Northern Territory

M. Barber^a and S. Jackson^b

^aLand and Water Flagship, CSIRO, Brisbane, Australia; ^bAustralian Rivers Institute, Griffith University, Nathan, Queensland, Australia

Using newly recovered and collated sources, we investigate the extent of pre-colonial and colonial Aboriginal weir construction in the upper Roper River, and we analyse a 1946 court case which considered the practice in the context of colonial pastoralism. Aboriginal people have built these temporary weirs at key locations since pre-colonial times to dam and divert the river flow, creating shallow lagoons that attract and retain key food species. The area subsequently became Elsey Station, the setting for the famous Australian novel, We of the Never Never. This embedded the area and its inhabitants in the national consciousness and Aboriginal people provided crucial pastoral labour for the station. Station management encouraged weir construction from the 1920s as the structures reduced cattle losses in the dry season, but a downstream pastoralist complained of inhibited water flow and took legal action. The resulting case is probably the first legal engagement with Aboriginal water and riparian management in Australia and the judgment overtly acknowledged weir construction as an Aboriginal practice that ‘had been in existence from time immemorial’. However, non-Aboriginal pastoralists’ role in enabling and amplifying weir construction saw the case listed and classified as a pastoral riparian dispute – effectively as an issue of non-Aboriginal settler colonial law – rather than as an Aboriginal, colonial and/or intercultural practice. As a result, the weirs were outlawed as a riparian law violation and the case has therefore remained largely unreferenced in the subsequent literature on Aboriginal resource rights. In this paper, we detail the historical circumstances of the case, Aboriginal involvement in it, and how it has been recollected and interpreted in subsequent local and oral historical accounts. We highlight the importance of local agency, local resistance, and Aboriginal political priorities in Aboriginal accounts, as well as broader processes of historical suppression and memorialization.

Introduction

Historical pasts are continually reconfigured and recreated by intertwined processes of forgetting and recollection, suppression and rediscovery, allowing them to reflect and legitimate current realities as well as enable potential futures. Over the past 40 years, historical assessments of the colonization of Australia and its impacts on Aboriginal people have undergone considerable evolution. This evolution has encompassed topics such as: the extent and severity of colonial frontier violence and how it is reporting was publicly minimized;¹ the impacts of dispossession and resource appropriation on existing patterns of Aboriginal resource management and Aboriginal lifeways;² Aboriginal adaptations to new ways of life, such as pastoralism;³ and more refined accounts of colonization processes, notably the distinction between colonial subjugation and exploitation and settler colonial exclusion or removal.⁴ These historical reassessments have both informed, and been informed by, high profile developments in wider social, political, and legal domains – public protests, referenda, legal decisions, legislative initiatives, and formal acknowledgements of past wrongs by government leaders and parliaments. These events, and the historical work that has supported them, have involved overt public engagement with the role of history and how the negative aspects of colonial pasts can be re-remembered and thereby redressed.⁵

Nevertheless, the colonial and settler colonial processes through which Aboriginal rights and interests were variously ignored, suppressed, occluded, and/or dominated were often highly effective, and in many circumstances, recovering past traces is extremely difficult. Therefore, contexts in which both oral histories and detailed historical and legal records of past actions and encounters are found to exist (such as the upper Roper described here), are of great value. The juxtaposition and comparison of detailed oral and written records is not without its risks, particularly in an Aboriginal context,⁶ but the exercise can nevertheless reveal new knowledge of the past in the location of interest, suggest the complexities of other circumstances where such records do not exist, and enable analyses of what has been remembered and in what way, as well as what has been forgotten, and by whom. Retrospective analyses cannot reach back to recover an objective historical truth, but they can provide important perspectives on past moments of individual, collective, and institutional memorialization and suppression, and how those moments relate to current circumstances.

One important strand of historical (re)assessment of Australian colonization involves the nature and extent of Aboriginal involvement in the pastoral industry. Analyses of Aboriginal roles in pastoralism encompass the range of contemporary forms of history, notably general regional histories⁷ and more specific accounts prioritizing Aboriginal oral narratives from particular locations.⁸ The northern pastoral industry is interesting because it clearly demonstrates the significance of material and economic drivers in shaping colonization processes – the settler colonial deprivation of formal rights and access to resources (particularly land and water) was combined with the colonial subjugation and exploitation of Aboriginal labour necessary to extract profit from such marginal lands. Indeed, following early violence and coercion,⁹ this combination of colonial and settler colonial forms was more in the nature of an interdependency – Aboriginal exclusion from the benefits of resources relied on permanent non-Aboriginal presence, which in turn relied on the exploitation of a ‘pacified’ Aboriginal labour force, at least until a combination of wage increases, mechanization, and land use changes rendered such a labour force redundant.¹⁰ Similarly, despite recent attempts at various kinds of restitution, notably in the form of land rights legislation, this colonial history continues to shape contemporary Aboriginal lives, as well as political debates about co-existence of indigenous customary and settler colonial property rights.¹¹ Yet past and ongoing involvement in the cattle industry is also a source of pride for Aboriginal people, as well as a crucial means by which attachments to important landscapes were and are maintained.¹² Although predicated on a history of colonial domination and exploitation, the history of shared work by Aboriginal and non-Aboriginal industry participants can provide a source of commonality across cultural and colonial barriers¹³ as well as the potential for direct intercultural collaboration on matters of mutual interest.¹⁴ Although it was economically ‘peripheral’ to Australian primary production volumes and occurred relatively late in Australian colonization, the history of the northern industry remains a useful means of interrogating colonial and settler colonial pasts.¹⁵

This paper is part of a series of publications from the upper Roper River focused on Aboriginal water values, rights and interests, on traditional techniques and purposes for water management, on contemporary water planning, and on intercultural pastoral history.¹⁶ The current paper focuses on the dispute over weir construction at Elsey Station during the 1930s and 1940s, Aboriginal involvement in that dispute, and how it was variously remembered and forgotten in subsequent decades. This dispute has interesting implications for legal and political history which will be investigated in far greater detail in a forthcoming publication (but see Burdon et al. in this volume for a general treatment of Aboriginal water rights). The emphasis here is on the relationship of history and memory in the dispute. Jeannie Gunn’s early pastoral memoir We of the Never-Never¹⁷ established Elsey Station as a place of national historical interest, and encouraged an overt historical consciousness in some of its inhabitants. The weir dispute is recalled locally and has been the subject of occasional brief description in published accounts, but it has never been systematically investigated until now. The collation of scattered existing sources combined with newly located archives and field interviews enables the general ‘re-remembering’ and rediscovery of the weir story, enabling commentary on the local ambiguities and interconnections of colonial and settler colonial processes, on the role of Aboriginal actors in colonial contexts, as well as on cross-cultural processes of memorialization and suppression.¹⁸

Study site, methods, and sources

Northern Australia has a monsoonal climate and a correspondingly variable river flow pattern. In the wet season, water is abundant, but in the mid-late dry season many rivers are reduced to non-flowing pools and this makes permanently flowing, groundwater-fed rivers such as the Roper River (Figure 1) of particular ecological and social significance.¹⁹ The upper Roper has a very flat topography and two important consequences are relevant here – it causes the river to braid into smaller channels, and enables small obstructions of wood and paperbark to be built at strategic points in those channels to flood wide areas to shallow depth and thereby provide significant additional aquatic habitat. The Roper weirs variously saturated the soil, reduced, and/or redirected water flow across the floodplain, shifted water from the main channel down alternative side channels to widen the geographic footprint of the river itself, and created and/or augmented large shallow lagoons which further sustained animals and aquatic plants.

The main Aboriginal language groups in the focal area (Figure 2) are the Mangarrayi people (associated with Jilkminggan and Elsey Station) and the Yangman people (associated with the town of Mataranka). Considerable colonial violence complicated life for these language groups, but they have nevertheless been ab...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Citation Information
• Notes on Contributors
• Introduction – Other people’s country: law, water, entitlement
• 1. Remembering ‘the blackfellows’ dam’: Australian Aboriginal water management and settler colonial riparian law in the upper Roper River, Northern Territory
• 2. Contested sites, land claims and economic development in Poum, New Caledonia
• 3. ‘Nothing never change’: mapping land, water and Aboriginal identity in the changing environments of northern Australia’s Gulf Country
• 4. Decolonising Indigenous water ‘rights’ in Australia: flow, difference, and the limits of law
• 5. Returning to the water to enact a treaty relationship: the Two Row Wampum Renewal Campaign
• 6. The sensible order of the eel
• 7. What has water got to do with it? Indigenous public housing and Australian settler-colonial relations
• 8. First law and the force of water: law, water, entitlement
• Index