Words and Silences

Aboriginal women, politics and land

Peggy Brock

• Publisher: Routledge
• Year: 2020
• Print ISBN:
  9780367720124
• eBook ISBN:
  9781000248371
• Topic: Social Sciences
• Subtopic: Gender Studies
• Index: Social Sciences

In struggles over access to land, Aboriginal women's concerns have often remained unacknowledged. Their words - and silences - have been frequently misheard, misunderstood, misrepresented, misused.

The controversy about 'secret women's business' in the Hindmarsh Island Bridge conflict has brought this issue to the attention of the general public. How can Aboriginal women assert their claims while protecting, by remaining silent, their culturally sensitive knowledge? How can they prevent their words and silences being misrepresented?

Words and Silences explores the barriers confronting Aboriginal women trying to defend their land rights. The contributors to this volume provide insights into the intricacies of Aboriginal social and cultural knowledge, and introduce the reader to different understandings of how the gendered nature of Aboriginal land ownership adds complexity to the cross-cultural encounter. In lively and engaging prose they document the ongoing struggles of Aboriginal women across Australia, who are fighting to ensure they receive due recognition of their rights in land.

1
Aboriginal women, politics and land

PEGGY BROCK

Words and Silences: Aboriginal Women, Politics and Land discusses, from a variety of perspectives, the gendered nature of Aboriginal knowledge and relationships to the land within the context of the Australian political and legal system. The contributors consider who can speak and be heard in this cross-cultural environment; who is silenced; and why some Aboriginal women must remain silent even when their land is threatened.

Only since the 1960s has the matter of Aboriginal rights to land become an issue in mainstream Australian politics. Before this period few non-Aboriginal Australians considered the implications of colonisation and dispossession for preexisting Aboriginal rights to land. Over the last 30–35 years there have been various attempts by Federal, State and Territory governments to recognise Aboriginal rights to land within the mainstream political and legal system. While these attempts represent a major shift in public acknowledgment of Aboriginal rights, they have required Aboriginal people to adapt their cultural understandings to a system which operates on very different lines. Aboriginal people have gained access to and some control of land, but their land claims have also resulted in confrontations with powerful mainstream economic and political interests. Aboriginal landowners have been forced into compromises which have been destructive of community cohesion and mores in their attempts to conform to requirements under various land rights acts.

Some of the tensions which have arisen from land rights claims reflect the gendered nature of Aboriginal societies and the wider Australian society in which they are encapsulated. In the early days of the land rights campaigns and the implementation of land rights legislation, the major concern of Aboriginal people and their supporters was the recognition of Aboriginal rights to land. As these rights were recognised in various forms, it became evident that some people’s interests were being privileged over others because of the wording and interpretation of laws implementing land rights. Aboriginal women’s interests in land were not always given due recognition, either within their own communities or in the mainstream system. In this volume we analyse the complex social, cultural and political context of land issues, and how women’s interests are expressed, both within Indigenous communities and in the wider society. The following chapters consider: Aboriginal women’s interests in land in different regions of Australia; the way in which these interests have been reflected in land claims and site protection; and how women have organised themselves to protect their knowledge of and rights to land.

In this chapter I give a brief account of land rights, native title and site protection laws introduced and implemented since the 1960s, and consider how Aboriginal women’s interests have been accommodated, or overlooked, in these laws and procedures. This discussion gives the legal and administrative framework to the chapters which follow.

Australia is the only continent in the world where the whole of the landmass was deemed to be terra nullius by European colonisers and the land ocupied without any recognition of Indigenous prior ownership and occupation. In 1969 this attitude to land rights was contested in the Northern Territory Supreme Court by the Yolgnu people on Gove Peninsula who were attempting to prevent bauxite mining on their land. In Milirrpum v. Nabalco Pty Ltd and the Commonwealth the plaintiffs ‘sought declarations that they were entitled to occupy land free from interference and the Commonwealth had no interest in the land enabling it effectively to grant the lease to Nabalco’. ¹ Justice Blackburn found against the Aboriginal people of the Gove Peninsula having a proprietary interest in the land capable of recognition in common law. He interpreted their connection with the land as spiritual, rather than economic; nor was he satisfied that the plaintiffs’ ancestors had the same links to the claimed land as the plaintiffs. Finally he argued that even if the Yolgnu had had any interests in the land they were extinguished when the Crown acquired radical title to that land.²

Aboriginal land rights in Australian law

The failure of the Australian courts to find in favour of Aboriginal people claiming rights to land led to the search for another strategy to make land available to Aboriginal claim. The Federal Government investigated the option of legislating land rights for Aboriginal people. The Whitlam Labor Government appointed Justice Woodward, who had represented the plaintiffs in the Gove case, to report on

The appropriate means to recognise and establish the traditional rights and interests of the Aborigines in and in relation to the land, and to satisfy in other ways the reasonable aspirations of the Aborigines to rights in or in relation to land …³

These terms of reference represented a great leap forward in recognition of Aboriginal rights in land. Woodward was not asked to investigate whether Aboriginal people had rights, but how to recognise rights which were assumed to exist. Following Woodward’s reports, land rights legislation was drafted for the Northern Territory, a region where the Federal Government had direct administrative control. The resultant bill was introduced to parliament, but the dismissal of the Whitlam Government in 1975 delayed the passing of the bill. The Fraser Government in 1976 passed a modified bill. The Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) established a procedure whereby Aboriginal people in the Territory could claim specified areas of land⁴ by putting their case to a Land Commissioner, who made recommendations to the Minister for Aboriginal Affairs. They had to prove they were the traditional owners of the land according to criteria set out in the Act. These criteria were based on anthropological models of Aboriginal land ownership and kinship.

Subsequently other land rights acts were passed in the various Australian States (except Western Australia), giving Aboriginal people inalienable freehold title to varying amounts of land. South Australia made the largest allocations of land (18 per cent) to the Pitjantjatjara (1981) and Maralinga Tjarutja (1984) peoples of the remote northwest of the state.⁵ These two Acts specified the area of land made over to the traditional owners without specifying in the legislation who the traditional owners are.⁶ Unlike the ALRA which established a claims process, the Pitjantjatjara and Maralinga Tjarutja peoples decide among themselves, according to their own protocols, who the owners of particular lands are.

In 1992 Australia fell in line with much (although not all⁷) of the western democratic world when the High Court established in Mabo and others v. The State of Qld that native title in common law does exist in Australia, overturning the legal concept of terra nullius. Similar rights had previously been recognised in Canada, New Zealand and the United States. In these countries recognition of native title (also referred to as aboriginal title) dates back to the time of non-Indigenous settlement when treaties between Indigenous peoples and colonial powers were signed acknowledging Indigenous prior rights in land. But it has only been in the latter part of the twentieth century that Indigenous groups have used the treaties and other evidence of their native rights to assert these rights through the courts and other quasi-judicial processes. The debates and conflicts over native title in Australia, therefore, follow, and to some extent have been informed by previous land rights legislation and the international experience.

Eighteen months after the High Court brought down its judgment, the Federal Parliament passed the Native Title Act 1993 (Cth)(NTA), which established a procedure for mediating and determining native title claims. Unlike legislated land rights, which are defined in Australian law, native title is a pre-existing Aboriginal title to land, which is defined in Aboriginal law and recognised under Australian common law. The NTA does not, therefore, define what native title is. Native title claimants delineate native title as they understand it in their own law.⁸ Nevertheless these native title rights can only be exercised after they are recognised by the Australian judicial and bureaucratic system (see Chapter 6). Under the NTA native title claimants must prove to a non-Indigenous authority that their title to a particular piece of land existed prior to colonisation and that they have maintained ‘connection’ with the land since colonisation. They must also prove that they have inherited their rights from the pre-colonial owners of the land, and show that their rights have not been extinguished in the interim. It took Eddie Mabo and his co-plaintiffs ten years to establish their native title claim to the Murray Islands. More recently it took the Miriuwung and Gajerrong people, operating under the NTA, four years to obtain a ruling in the Federal court recognising their claim over parts of the east Kimberley. This judgment has been appealed to the High Court, so it may be many years yet before these people can exercise their native title rights.

There is another important form of land-based law in Australia, which, if not unique to Australia, is rarely found outside this country. This legislation protects significant Aboriginal sites. From an Indigenous perspective it is a much weaker form of land law than statutory land rights or native title in common law, as the protection offered does not give Aboriginal people any direct control over, or legal ‘ownership’ of a threatened site. When site protection laws work effectively (from an Aboriginal perspective) they prevent physical damage or desecration of sites from activities such as mining and tourism. Site protection, which does not transfer or impact on the legal ownership of a site, has probably generated more ongoing public controversy than other forms of Aboriginal land tenure. The first major confrontation over site protection, which led to national and international media coverage, was at Noonkanbah, an Aboriginal-owned pastoral station (lease-hold title), in the Kimberley. Mining exploration destroyed a significant site, which the Western Australian Aboriginal Heritage Act of 1972 could not protect in the face of government determination to proceed with mining. Other prolonged and acrimonious confrontations have occurred between Aboriginal people, developers and government over protection of sites near Alice Springs, Coronation Hill and Hindmarsh Island.

Attempts to deal with the distribution of land resources between Indigenous and non-Indigenous Australians, whether through the courts or parliament, start from an assumption that there are two distinct systems of land tenure: an Indigenous system which is ‘traditional’ and unchanging; and a non-Indigenous system based on property law transplanted from Britain. This law is also ‘traditional’, with its roots going back centuries, but it is perceived to be flexible and adaptable. It can be changed or modified by parliament or by judicial interpretation. A dramatic example of this adaptability is the recognition of women’s property rights over the last century.

In current discourses about land, this codified law is contrasted with Indigenous Australians’ law. Aboriginal people are perceived not to have ‘property laws’ as such, rather they are said to have a ‘spiritual connection’ to the land, a ‘relationship’ with the land which is as ill-defined as family relationships. They nurture the land, but do not exploit it. They have communal, rather than individual rights to land. And they have ‘tradition’, which is backward looking rather than progressive; unchanging and inflexible. These rights to land cannot be generalised, nor can they be transplanted or adapted. As Justice Wootten pointed out in 1995, there is a danger that even where native title is recognised, it is considered to be something less than an ‘owning’ relationship with the land. Indigenous Australians are expected to use the land for hunting or performing ceremonies, rather than having proprietary ownership of the land:

On this view the land belonged to no one—we are back to terra nullius with grafted on to it a few superficial usufructuary rights [rights of use but not of ownership] which may become of decreasing importance or be abandoned as Aboriginal people are drawn more into the western economy and western lifestyles.⁹

The history of recognition of Indigenous rights to land has moved from a denial by our colonial forebears that these rights exist, to a questioning of the founding myth of terra nullius in the latter part of the twentieth century. Justice Blackburn’s judgment in the Gove case reflects these changing understandings, but also the inability of other Australians to recognise that Aboriginal rights could have survived the dramatic changes of the last two centuries.

Land rights, native title and site protection legislation represent non-Indigenous Australians’ attempts to incorporate Aboriginal traditional rights to land perceived as ‘backward looking and inflexible’ within the Australian legal system. While Aboriginal people were consulted in these attempts to make the two land systems compatible, the ensuing legislation represented non-Aboriginal understandings of Aboriginal law. The only exception to this generalisation is the Pitjantjatjara Land Rights Act, where the initiative was with the Pitjantjatjara people, although they had to compromise with the legislators and the range of interests they represented.¹⁰ Site protection legislation was also drafted on behalf of the Aboriginal people; rarely were they consulted. In fact the early site protection laws were passed to protect Aboriginal heritage, not for Aboriginal people, but for the wider Australian community.¹¹

Aboriginal women and land

The understandings of Aboriginal rights to land that informed the ALRA in the Northern Territory were based on anthropological knowledge of the time. The research, consultation, drafting and passing of the Act were undertaken by men. Aboriginal people were only considered in the guise of the (post)colonial ‘other’: an undifferentiated group, whose persona was male, and whose relationship with the land, while localised, conformed to common, anthropologically established criteria. At the time the Act was drafted, new understandings of Aboriginal relationships with the land were emerging from a new generation of anthropologists, including feminist anthropologists.¹² While this revisionist anthropology did not influence the wording of the Act, it did question its early implementation, because the Act did not take full cognisance of women’s rights in land, or matrilineal (maternal) lines of descent and inheritance.

There is now an established body of literature which analyses cross-cultural gender relations.¹³ I will not review this literature here—rather, I will discuss how earlier misconceptions have impacted on women’s ability to lay claim to land. I will briefly consider implementation of the ALRA in the Northern Territory (a more detailed discussion can be found in Chapter 7); conflicts over site protection; and then make preliminary observations about the implementation of ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Contributors
• 1 Aboriginal women, politics and land
• 2 ‘Speaking what our mothers want us to say’: Aboriginal women, land and the Western Women’s Council in New South Wales, 1984–85
• 3 Seeking justice: traditions of social action among Indigenous women in the southwest of Western Australia
• 4 The silence and power of women
• 5 The word of a woman: Ngarrindjeri stories and a bridge to Hindmarsh Island
• 6 Aboriginal women and the Commonwealth Government’s response to Mabo—an international human rights perspective
• 7 Gendered landscapes: the politics and processes of inquiry and negotiating interests in land
• Notes
• Bibliography
• Index