I don’t get much time off at Easter but I’ve always enjoyed the time. Four days off is a reasonable time to plan something, whether a resurrection or a holiday. I like it too as a moveable feast whether it is the spring of the north or the autumn of the south. One Easter I decided I needed to understand why the massacres in Rwanda happened. And so 13 years ago an Easter that started as a holiday for me changed into something else. I decided to lock myself away and devour a dry Human Rights Watch 900-page explainer in the Easter of 2005 to see if I could understand why. I had printed it off in the office, on two sided-copy four pages up, still 100 sheets of dense A4 reading to get through, when the weather was probably nice outside.
But what I wanted, weather could not provide. 2005 was when I no longer wanted to work in IT but hadn’t yet figured out what to do. So I learned widely. Through a love of history, Aboriginal studies was the subject that compelled my return. What happened here when the neolithic era met European naval might and germs from Malaysia was inevitable, though the spoils less inevitably went to Britain. If the Arabs had worked out the Australian coast the same way they worked out the winds, it would have happened earlier. Or else China would have peeked up just over the horizon. But there remains no firm evidence of any European landing before the Dutch in Queensland. There meetings set the tone and the template for European human behaviour over the next 300 years. It was a topic I would return to again and again. This is the unacknowledged theft of a continent and the categoric rejection that it was genocide that enabled it.
Around that time, Hotel Rwanda was released at the cinema in memory of the killing in that country just over a decade earlier. It was the story of Paul Rusesabagina, the son of mixed Hutu/Tutsi parentage, caught up in the killing, as a relatively powerful position of a conscierge in an exclusive white hotel. The Hôtel des Mille Collines shared its name with the thousands of hills that dominated the capital Kigali but its picturesque setting belied astonishing violence. As the Europeans fled Kigali Rusesabagina turned the hotel into a refuge and the story tells how he and his refugees narrowly avoided the slaughter.
But a slaughter it was. Genocide was certainly possible in Australia in the 19th century, it was possible in Europe in the 1940s and now we were seeing it was still possible in Africa 50 years later. No convention of human rights could stop it nor police nor courts. The name of that report I began reading on Good Friday told the moral: “Leave None to Tell the Story”. The killers knew the more they killed, the less would be around to inform on them. Tens of thousands influenced by fear, hatred, promotion or money, made the choice to kill quickly and easily.
But that barely began to explain what was happening in Rwanda between April and July 1994. In Australia the battleground is identity politics (foolishly forgetting Australian politics has always been about identity). In Rwanda the battle was for real, your identity could kill you. Over half a million people were killed either for being labelled a Tutsi or for being a Hutu who tried to protect Tutsis. Given Hutus grossly outnumbered in Tutsi in Rwanda, it was this latter action that spread widespread fear.
Yet it was a bogus distinction, they are the same people. Hutus and Tutsis had for centuries shared a single language, a common history, the same ideas and cultural practices. They intermarried, they looked alike. Today they are no longer different save arbitrary classifications based on birth. The ancient kings of Rwanda were Tutsi and when the Germans, and then the Belgians ruled, it was convenient for the colonisers to keep the Tutsi elite and marked anyone Tutsi as an elite – as long as they kowtowed to European bosses. But when a gusty democracy was in the air in the Africa of the 1950s, the Belgians saw the numbers and switched sides. From independence in 1963 the Hutus ruled with implicit support of the French who replaced the Belgians as the regional hegemon. The French were happy to deal with a Hutu government and looked away while many Rwandan Tutsis were exiled or killed in the years that followed.
Long-term leader Juvénal Habyarimana was not easily identified as a Communist or capitalist so Rwanda was a powerful pawn in the Cold War, and tactically important to the east and west. Hutus still ruled Rwanda in 1994 but the collapse of the Soviet Union and a surge from a confident Tutsi-refugee army in Uganda (the Rwandan People’s Front or RPF) threatened to change the balance of power again. Habyarimana was in power for over 20 years, increasingly unpopular and facing multi-party elections for the first time. He was increasingly useless to the west and like all unpopular leaders he played to far-right fear. He egged on a Hutu Power group, and drumming up hatred and suspicion of Tutsis by exaggerating the threat of the rebels. State-controlled radio played a crucial role in getting that message out. Habyarimana backed up his talking with violence with several massacres of opponents in the years leading up to the genocide.
He had his supporters. As well as the loyalty of a large standing army, Habyarmina also trained up a young militia, some with guns, but mostly with machetes, and called them “Interihamwe”. Interihamwe was a Rwandan pun meaning “those who stand together” or in a more apt context, “those who attack together”.
Habyarimana had released a demon he could not control. He was growing weaker in his own organisation. There was no longer a Soviet Union to play off against the United States. Worse still the JPF was winning the war. Habyarimana agreed to a peace settlement on their terms. This antagonised Hutu Power who picked up the internal anti-Tutsi spoils. When Tutsis in next-door Burundi decided to overthrow its Hutu president for a Tutsi, Hutu Power decided to act in case Rwanda was next. It decided on large-scale massacres of Tutsis and “sympathisers” to derail the peace process and get the country behind them.
They started at the top. On April 9 Habyarimana’s plane, which he shared with Burundi’s new Tutsi president was gunned down near Kigali Airport killing all aboard. The culprit for this attack was never identified (nor the likely European support it received) but it left his lieutenants free to enact the planned massacre.
Enter Colonel Théoneste Bagosora. Bagosora led the Presidential Guard, other troops and militia in a murder frenzy of Hutu government officials and opposition leaders. The death spree created a power vacuum which Bagosora and his clique filled. The spread of the killing was tacitly condoned and other soldiers and militia also began systematically slaughtering Tutsi as well as Tutsi and Hutu political leaders across the country. Within a day Bagosora’s government was accepted as fact by the army which was now on a war footing again, as the RPF had used Habyarimana’s death to launch another invasion.
The rest of the world looked away. The UN were ordered to withdrew to their posts leaving the local population at the mercy of assailants. Opposition forces appealed to the three colonial powers, France, Belgium and the US not to desert Rwanda. Bill Clinton’s US still smarting from their humbling experience in Somalia in 1993 did nothing. But all a joint European force of French, Belgian, and Italian troops did was evacuate the foreigners, and then departed. The Belgians were also cowarded into withdraw their troops from the UN peacekeeping force after 10 were killed in clashes with Hutu Power.
Bagosora recruited administrators and political leaders for the killing campaign, getting support first from Habyarimana loyalists and then from administrators and local leaders from the other parties who were predominant in central and southern Rwanda. By April 12 state radio stressed partisan interests must be put aside in the battle against the Tutsi enemy across the nation.
By April 17 the last few administrators opposed to the killing were removed and often killed. Radio was used to ridicule and threaten those preaching calm. With no sign of foreign intervention the new government was ready to act. The processes were now in place. As well as the army, the administrators and the militia, a fourth movement sprung up dedicated to a “civilian self-defense” program which put a useful euphemism to the killing task.
Zeal to that task took on more significance than rank: subordinates could prevail over their superiors if they showed greater commitment to genocide. This encouraged ambition and initiative for those willing to trade in lives. In the early days killer systematically targetted opponents’ names and houses but this was not quick enough so a new strategy became driving Tutsi out to public sites, to be then massacred in large-scale operations. Towards the end of April, authorities sensitive to what little international condemnation there was, declared “pacification,” another dangerous euphemism. This was not an end to the killing but greater control over killing.
Like the Nazis the Hutu leadership was too distracted by genocide to ensure its own survival. By mid-May, the RPF were advancing through the country yet the genocide continued into its final phase: tracking down the last surviving Tutsi such as those hidden. or women and children who had been spared so far, or those protected by priestly or medical status. The rush was on to eliminate survivors who could testify to the slaughter.
But history is written by the winners. The RPF overthrew the Hutu leadership later that year and turned the country into a dictatorship under Paul Kagame. Many of the hardlines in the Interihamwe and military did what the Tutsi rebels did and continue the fight from exile. Some like Bagosora were caught and sentenced to prison but the majority slid back into obscurity. A few like Rusesabagina also stayed in exile because only there was it safe from Kagame’s wrath to say that Rwanda itself had not learned the lesson as it was subsequently turned into a nation governed by and for the benefit of a small group of elite Tutsis.
The rest of the world was culpable too, wary of interfering in a war-torn country with few resources and dependent on foreign aid. So no one cried “never again” and the conditions for massacre were allowed to fester. If there is a lesson from the Rwandan genocide to the Australian one it is that sometime in the future it will be denied that it ever happened.
With Native Title changes in the news again, it seems timely to look back on the 25th anniversary of the Mabo High Court case that started it all. In 1992 a High Court case was heard for a group of remote Torres Strait Islanders that would have profound impact on land law in Australia, indeed in all settler nations. The case, known as Mabo for its most well-known plaintiff, built on a rich judicial heritage to establish native title in Australia. The story that follows is a greatly condensed summary of Bryan Keon-Cohen’s A Mabo Memoir” with the author being one of the lawyers for Mabo and his fellow plaintiffs in a case that lasted 10 years.
The landmark decisions of US Chief Justice John Marshall in the 1820s and 1830s established the modern doctrines followed in New Zealand and Canada that recognise native title but no case in Australia succeeded until Mabo. Mabo was built on the Gove case of 1971 which was a legal failure but a pioneering case never appealed to the High Court. The 1836 New South Wales Supreme Court proposition that no law existed in the colony before 1788 was upheld by the Privy Council in 1889 (a decision Justice Lionel Murphy called a “convenient falsehood” in 1979) and was never debated or challenged in the constitutional debates of the 1890s.
In the Gove case (Milirrpum v Nabalco) the Yolgnu people of Arnhem Land argued the common law recognised pre-existing traditional rights to land founded on prior occupation, customs and traditions, enforceable even after British colonisation. Justice Blackburn decided no such doctrine was known to Australian law “for want of authority to support it” though he admitted customary laws were a recognisable system of law. The case did eventually lead to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) which recognised traditional rights to land in the Territory.
However in Queensland the Bjelke-Petersen government went in the opposite direction proposing to remove the minimal protection of Aboriginals and Islanders to reside on lands gazetted as “reserves” under the Land Act 1910 (Qld) and it was the Torres Strait Islanders who led the charge against that move.
About four to five thousand people live in the Torres with less than 500 on the western island of Mer (renamed Murray Island by the white newcomers). Rich volcanic soil allowed Meriam residents to do gardening with associated customs and traditions, which became the core of the Mabo case. Cultivation of bananas and yams was associated with a local cult called “Bomai-Malo” which featured prominently in evidence.
Mer was not included in Cook’s 1770 claim of possession of eastern Australia. Christianity arrived with the London Missionary Society one hundred years later and over 30 years their violent evangelical Christianity profoundly impacted Meriam practices. The LMS arrival “The Coming of the Light” is still celebrated every July 1, a fact Queensland used to argue Meriam customs had vanished along with traditional rights to land.
Between 1872 and 1879 the Torres Strait Islands were annexed to Queensland through instruments issued by Whitehall and Brisbane, administered through Thursday Island. This late arrival meant Islanders were subject to fewer destructive influences than the mainland though the Queensland system soon affected all aspects of Islanders’ life. The first Government Resident John Douglas was appointed in 1886 and when he died in 1904 control passed to the Aboriginal Chief Protector whose powers were established under the 1897 Protection Act making islanders subject to the same extensive and restrictive controls as those on mainland Aboriginal reserves.
After a three-year strike on Mer in the 1930s was ended by the arrest of island ringleaders a new Torres Strait Islanders Act 1939 vested some local control in councils but maintained the repression of prior laws and Queensland departmental control. By-laws established offenses such as fornication, adultery, “message-carrying” and domestic squabbling, with fines, imprisonment and banishment from the island for “offenders”. The Department established “birth-to-death” cards which contained an ongoing record of most aspects of person’s life, cards which were used to great effect to attack Eddie Mabo in the court case.
In 1980-81 the Bjelke-Petersen government decided to repeal the 1939 act, revoke island reserves and introduce Deeds of Grant in Trust (DOGITs) in their place. This was Joh’s attempt to head off land rights, but this decision helped trigger the Mabo case.
Eddie Mabo was born on Mer on 29 June 1936 but his mother died just five days later. Mabo claimed he was eventually adopted by her brother Bennie Mabo. When Bennie and his wife died without producing offspring of their own, Mabo claimed to inherit his land under Meriam custom and tradition, a claim hotly contested by his cousin and adoptive sister and eventually denied at the trial. Mabo was educated in Meriam lore, traditional land management, Christianity and traditional beliefs. In 1956 Mabo pleaded guilty to an offence against the community by-laws which contributed to his alienation from Meriam leaders and he left the island first to Thursday Island and then to the mainland. In 1959 then a 23-year-old labourer at Halifax he married 16-year-old Bonita, a descendant of Kanakas from Vanuatu.
Mabo became involved with Indigenous organisations in Townsville and established a Black Community School there in 1971. Working as a gardener at James Cook University he began researching his background and discovered that under Australian law he did not own his traditional land at Mer.
As the Bjelke-Petersen rammed through its DOGIT legislation it was opposed by Aboriginal and Islander groups who contested the autonomy of trustees to lease DOGIT areas to outsiders. Eddie Mabo and Noel Loos organised a lands rights conference in Townsville in 1981 where Mabo spoke about traditional land ownership on Mer. Reverend Dave Passi also spoke of his ownership of Meriam land which he said was threatened by the DOGIT system. The conference discussed a possible High Court challenge which Barbara Hocking of the Melbourne Bar said might prompt political action even if unsuccessful. A group of Mer delegates decided they would take a Gove-type case to the High Court. This was purely about land rights and not an issue of independence or sovereignty. Other court cases had found sovereignty not justiciable in an Australian court.
In 1982 five plaintiffs representing the Meriam group (Mabo, his elderly aunt Celuia Mapo Salee, brothers Dave and Sam Passi and Councillor James Rice) handed a 32-page statement of claim to the High Court based on relevant facts, law and the detailed testimony about their gardening and fishing activities with proceedings served against Queensland and the Commonwealth. A fact-finding trip to Mer uncovered records of a 1913 sale of a block of land by an Islander to Queenslander for use as “Jail House, Court House and Recreation Reserve” and also a Murray Island Community Council and Court which operated from the 1890s.
In August 1982 Queensland issued a summons to strike out the claim as not worthy of consideration accompanied by an affidavit sworn by Patrick Killoran, Director of Queensland’s Aboriginal Affairs department. Killoran claimed the “former modes of life” of Meriam people was “fundamentally and irrevocably modified by outsiders”. The plaintiffs counter-applied to have the case heard immediately referred to the full High Court for hearing. Neither application succeeded in court and the parties compromised on an agreed statement of facts and questions of law to be presented to a single High Court judge. After two years however, Queensland agreed to none of the facts making a complex and lengthy trial inevitable.
A 1984 directions hearing achieved little other than a Queensland request for the plaintiffs to amend the statement of claim, an attempt to bury them in paperwork. But with Queensland’s legal options dwindling the Bjelke-Petersen government decided to pass legislation to stop it dead. Claiming the case challenged Queensland’s annexation of Mer (it didn’t), the government passed the Queensland Coast Islands Declaratory Bill 1985 to vest the island in the Crown and free it from “any right, interest or claim that the occupants of the land may have claimed to have existed prior to annexation”. Once passed, Queensland’s lawyers amended their case with new material which relied on the new act as a complete defence to the action.
In response the plaintiffs issued a “demurrer”proceeding designed to have the High Court declare the Act unconstitutional. Their grounds were that the 1985 parliament could not retrospectively change the meaning of the 1879 law, Queensland did not have the power to pass laws to extinguish traditional land rights, and it did not address the Commonwealth-controlled “reefs and seas”. However in the end they succeeded only because the law was inconsistent with the Racial Discrimination Act 1975. Remaining under High Court jurisdiction, the matter was referred to the Queensland Supreme Court in 1986 to establish findings of fact.
The first phase of the trial under Justice Martin Moynihan came in late 1986 with the plaintiffs suffering blows of illness of judge and lawyers, and the withdrawal of the Passi brothers from the case (with Mabo’s aunt now dead that left just him and Rice as plaintiffs). Queensland’s objections to Mabo’s testimony as hearsay were so frequent it broke the flow of evidence and the judge decided defer all rulings on admissibility until the end of the evidence. Moynihan ruled Mabo’s witness statement inadmissible meaning his lawyers had to rely solely on oral evidence. Mabo did describe the legend of octopus-shaped Malo who designated the eight tribes into eight distinct parts of the island with inheritance passing down the eldest male line.
The court adjourned until early 1987 but was abandoned when the plaintiffs convinced Toohey J to hear the demurrer in the High Court in what would become known as Mabo (No 1). There was another directions hearing which left the matter of evidence in Moynihan’s hands but established that some traditional evidence was valid. Ten days later Moynihan decided to “let it all in and rule at the end”, in other words let High Court decide on admissibility, a decision the plaintiffs supported and Queensland did not appeal.
Mabo (No 1) was served in the High Court in March 1987 with a directions hearing in April. The parties agreed that if the demurrer failed the case would be over but if they did strike down the Declaratory Act the trial must continue. A full High Court was scheduled to hear the demurrer case in 1988. That allowed enough time to study the case history of “terra nullius”. Australian law was based on the Privy Council 1889 case Cooper v Stuart about English law relating to estates and had nothing to do with Indigenous people in colonies. The question did English common law recognise pre-existing traditional land rights when introduced into the Straits in 1879 would be the core question in Mabo (No 2).
Mabo (No 1) was almost undone on Day 1 when J Gerard Brennan admitted his son Jesuit priest Frank Brennan was an adviser to Aboriginal people but the plaintiffs breathed a sigh of relief when he was not asked to disqualify himself. The plaintiffs argued the Queensland Act was inconsistent with Commonwealth laws especially the 1975 Racial Discrimination Act. Queensland argued native title was extinguished in 1879 when, according to Queensland’s Solicitor General, “there was a peaceful annexation of people who were, at the time, thought to be uncivilised and who were thought not to have an organised society with an established system of law.” However the court did not accept Queensland’s assertion it could not be re-examined by re-assessing historical facts.
Queensland’s lawyers told the court “they were instructed” (which was code for “they would rather not say this”) there was no record of any by-law approving the island courts. The plaintiffs replied the court did exist and it made decisions which were signed off by the government. The hearing lasted three days and then there was a nine month delay for the outcome.
The case succeeded 4-3 with Justices Brennan, Deane, Toohey and Gaudron agreeing the Declaratory Act was racially discriminatory. The Mabo (No 1) decision meant the claim could continue though whether it would succeed remained open. It was also an important decision for native title as it meant those interests must be dealt with on an equal footing as all other equivalent property rights.
Preparation for Mabo (No 2) helped by another development, a successful Indian rights case Guerin, handed down by the Canadian Supreme Court in 1984. However having done little for seven years the Commonwealth now hardened its interest in the case’s offshore claims and threatened another demurrer case about proprietary rights on the high seas. After two and a half years the Brisbane Supreme Court trial resumed in front of Moynihan J in May 1989. Queensland used its detailed and intrusive knowledge of Islander family details to undermine Mabo’s testimony especially about claimed inheritance and adoption.
Mabo disputed records that showed him returned to his birth father in 1947 however Moynihan J preferred the written record over Mabo’s evidence. Queensland undermined his testimony to be a descendent of traditional leaders or “Aiet” which the state showed was a personal name, a fact that contributed to the judge disbelieving Mabo’s testimony about his own interests. But while Mabo’s personal claim was jeopardised his evidence on the system was untarnished and compelling. For the plaintiffs’ case it was the recognition of the system upon which rights and interests were founded that was the critical question for the High Court.
On May 22, the court moved from Brisbane to Mer so Mabo could point out the boundary-markers. They arrived in the middle of an industrial dispute with island municipal garbage collectors on strike forcing Mabo and his supporters to cart rubbish away on a Sunday so the judge would not see the mess. On the first day Mabo showed a mound of rocks to the court which he said were boundary markers and the court visited the nearby island of Dawar which had an area of claim of plaintiff James Rice.
The following morning Moynihan J opened court at the community hall calling it an “historic occasion” and he said sitting there helped him understand the evidence about Murray Island, its people and culture. The court heard 11 witnesses and then moved to Thursday Island where another five witnesses were heard. Meriam evidence touched on aspects of customs and traditions of land and sea, ownership and stewardship, and boundaries and Island Court disputes. It also revealed islander opposition to plaintiff claims, especially Mabo’s on account of him leaving the island many years ago. However encouraged by events in Mer, Dave Passi applied to be re-admitted as plaintiff though brother Sam stayed out due to fear of costs. Dave Passi’s readmittance was critical as Moynihan’s Determination would later show, because only his claims had a factual foundation solid enough to proceed to the High Court.
Another significant moment came in July 1989 when the plaintiffs dropped the claim against the “outer seas” outside the jurisdiction of Queensland which dismissed the Commonwealth from the proceedings. Evidence concluded in Brisbane with the testimony of Rice and Passi. Rice was a retired school teacher, an island councillor and an Assembly of God official who supported Mabo’s territorial claim but denied Mabo was an island leader. Queensland claimed Rice was subject to a tenancy agreement but Rice could not recall ever paying anything to anyone. Anglican minister Dave Passi was the final witness. Passi said his ministry was influenced by traditional custom “Malo’s Law” which he said was a “law of preservation of land, soil, trees”. Passi said he could see God sending Malo to the island “to prepare the place for the Coming of the Gospel.” For Passi the ancient Bomai-Malo cult with its laws of Malo and the LMS Coming of the Light in 1871 fused together in one philosophy. His oral testimony of how land was transferred by the Passi clan was the clearest display of traditional landholding arrangements and when asked how he “inherited interests” to his land, he replied “I am a Passi. I am born into it, and I am born into the ownership of the land.” That ownership did not extend to the women. “If my sister wants to use the land, she may use it, but will not own it.” It was patriarchal but it did establish to the court it was a recognisable system of law.
Among the other witnesses in Brisbane was Meriam elder Henry Kabere, a close friend and supporter of Rice and a huge source of traditional knowledge. Kabere described a story his grandmother told him of a gunship that landed with the LMS in 1879, which fitted the narrative of the plaintiffs that the area was colonised by conquest not settlement. Kabere also testified the Island Courts used Malo law in their decision-making, including island adoption of extended families members. Expert witness Dr Jeremy Beckett, who studied on Mer, agreed most social interaction on the island was based on kinship. Dr Beckett also agreed the Malo precepts were a system with “fairly simple principles” but it was “in the majority of cases, effective”. It was also the only thing the LMS did not try to suppress or affect the rules and regulations.
On July 3, the plaintiffs withdrew part of its claim for Eddie Mabo based in the fact they could not prove he was a leader, the same day as Queensland began its defence. Queensland denied the existence of traditional rights to land, and even if they did exist they were extinguished by the extension of sovereignty in 1879. Nor, they said, was Mabo adopted by Benny Mabo and had no right to Benny’s land. Their historical evidence included the infamous exhibit 80, 42 massive bound volumes of archival records and the whole of the Island Courts record, (which suited the plaintiffs but the judge called it “terrifying”.
Queensland’s most significant witness was former DAIA director (1964-1985) Patrick Killoran. Reportedly close to Bjelke-Petersen, his Department ran as a secretive and defensive government agency exercising almost total control of Indigenous lives in the state. Killoran spoke extensively of the paternalistic administration of island life and tendered the social history cards that governed all aspects of islander lives. The thrust of his evidence under questioning was to avoid any concessions that might preserve native-title rights using obfuscation and irrelevancies. Killoran dismissed the Island Court as dealing with “minor stuff” and would not conceded it fixed land disputes on traditional island principles. Even where evidence was found of a government land payment for a kindergarten in 1968, Queensland claimed this was an ex-gratia payment to keep Islanders quiet and comfortable. Killoran said it was Crown land and the word “purchase” in the correspondence was merely “intended by my Department to be a convenient shorthand method of referring to those persons’ loss of use of the land concerned.” Killoran also dismissed Mabo’s adoption calling it “shuffling of kiddies” to get the maximum child benefit payment.
On completion of the evidence Moynihan J asked for written submissions on “the crunch issues” – the existence and nature of “the system”. The plaintiffs submitted 150 pages drawing an analogy with the common law system as it evolved over 500 years. “Few of its details are the same… Yet we have no difficulty in dealing with the system as a continuity over such a vast period, and despite such vast changes”. Queensland produced a lengthy document in reply disputing the facts of the case which had to be replied to before the judge produced his own fourth version of each numbered fact in his Determination.
Oral submission then began in September 1989. Queensland argued the island court records showed little about a system with no reference to Malo’s Law. It said Britain did not recognise native custom in the Torres Strait Islanders in 1879 because there was no system in place “to deal with the problems of administration”.
Justice Martin Moynihan’s 497-page Determination of Facts was handed down in Brisbane on November 16, 1990. The key chapter was on Murray Islands Society and Land which the High Court focussed on rather than the individual claims. Moynihan J acknowledged the islanders strong sense of relationship to their islands saying “they have no doubt that the Murray Islands are theirs” which was later relied on by one of the High Court judges. Moynihan noted the knowledge of boundaries and the shame of trespass were cultural attitudes “rooted in the pre-contact past”. He rejected the plaintiff rights to the reefs and reef flats ruling out the tidal zone from the high-water mark. He also rejected Mabo’s claim of adoption and therefore his personal land claim. However he agreed the plaintiffs’ traditional rights and interest in land founded on Meriam customs and traditions had survived in legally recognisable form.
Neither side appealed the Determination and the case proceeded to the High Court for final appeal. The common law precedent standing against the plaintiffs was a Privy Council decision on 1889 Cooper v Stuart which purported to confirm the legal assumption underpinning colonisation: Australian colonies were settled not conquered by Britain and the doctrine of terra nullius (land belonging to no one) applied. However while terra nullius provided legal and policy context, it was rarely mentioned in court. Mabo was set for a three-day hearing in May 1991 (and took four), a lengthy time for the High Court and an indication of its importance as a test case. The key issue would be what happened to traditional rights on annexation.
The biggest difficulty the plaintiffs had in trial was in determining whether the claims were individual or communal which encouraged Queensland to claim Moynihan J’s findings were inadequate to allow legal argument to proceed. However Queensland had problems too, its argument no ordered system of land tenure survived annexation did not impress the judges. They accepted Moynihan’s Determination that possession did exist under an identifiable system. Deane J asked Queensland’s team if the Islanders’ status was trespassers after annexation. And after some squirming they admitted Gaudron J’s point “the native population could have lawfully been driven into the sea”. This was not a good look for Queensland which had stressed the state had protected the Islanders on a reserve created for their benefit.
Queensland mentioned the Irish case of Tanistry, where land held under the Tanistry tenure was inherited by the deceased eldest son. The state argued this custom was abolished by the introduction of the English Common Law to Ireland, as were the customs and traditions of Mer in 1879. Queensland also attempted to show that Marshall’s American judgement in Johnson v McIntosh gave the sovereign power free right to terminate right of occupancy. When challenged by Brennan J this was not an “enabling doctrine” for the common law, Queensland’s solicitor-general Geoff Davies reluctantly agreed that “unfortunately the position seems to have been very much in those days that might was right and that those who controlled the country determined what the rights were”.
Following the hearing Eddie Mabo was diagnosed with cancer and his health declined rapidly. He died in Townsville on January 21, 1992. After his grave was vandalised by unknown offenders his family eventually re-buried him on Mer. His death left just two plaintiffs Dave Passi and James Rice to face the High Court judgement on June 3, 1992. Five judgements were delivered, two joint decisions, two separate decisions by Brennan and Toohey JJ (all supporting the plaintiff) and a dissenting decision by Dawson J. Brennan J’s was regarded as the most comprehensive and influential judgement. The six assenting judges agreed the common law recognised an enforceable traditional property right based on provable customs and traditions – native title – which was not extinguished by British sovereignty in Australia or the introduction of British common law in each of the colonies. However being a subsidiary of the ultimate title of lands vested in the Crown at the time of colonisation, native title could be extinguished or impaired by subsequent Crown acts especially in the granting of fee simple titles or commercial leases to settlers. At a stroke this decision saved the commonwealth, states and grantees from Indigenous claims of invalidity and compensation.
Mason CJ later said the doctrine of terra nullius was not central to the decision nor was there any challenge to British sovereignty. He also denied the court was influenced by writings of Henry Reynolds, especially in his 1987 book The Law of the Land. The central question was whether native title was recognised by the common law at the colonisation of a “settled” country to which the answer was “yes”. He said settlement was appropriate, because “the indigenous inhabitants were regarded as barbarous or unsettled, and without a settled law.” However Brennan, Deane and Gaudron JJ rejected terra nullius as outmoded and unacceptable. Brennan J said it was unjust to characterise pre-colonial Australian inhabitants as “people too low in the scale of social organisation to be acknowledged as possessing rights and interests in land.”
It was this judgement that made Mabo so important not just for Torres Strait Islanders but also Australia’s Aboriginal people. Any group who exhibited systems of custom and tradition had rights and interests in their traditional country. Deane and Gaudron JJ reached into Australian colonial history to describe Governor King’s 1804 actions on the Hawkesbury River as the “first stages of the conflagration of oppression and conflict which was, over the following century, to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame”.
While the Australian’s editorial (January 26, 1993) applauded the decision as common sense saying “European settlers did not occupy a country free of inhabitants”, others were less measured. Historian Geoffrey Blainey claimed the decision could “turn Australia in two separate nations” while Victorian premier Jeff Kennett said “back yards were at risk” (they weren’t). Most hysterical was Western Mining chairman Hugh Morgan who claimed the High Court pandered to “the guilt industry” and gave substance to the “Bolshevik left for a separate Aboriginal state”.
Historian Bain Attwood argued the sense of national crisis provoked by Mabo arose from the challenge some saw the decision posed to Australia’s sense of self. But its enduring legacy was the Keating government’s legislative response. The Native Title Bill 1993 initially had three elements; native title legislation, an Indigenous land acquisition and management fund, and a “social justice” package which never saw the light of day. The land acquisition fund was operated by the Indigenous Land Corporation and by 2009 had acquired 222 properties in a land area of 5.7 million hectares.
States followed with their own legislation but the Native Title Act was substantially amended by the Howard government’s Ten Point Plan in 1998 following the Wik decision. Deputy prime minister Tim Fischer infamously claimed those changes provided “bucket loads of extinguishment” and indeed validly extinguished native title for thousands of land interests granted by the Crown since 1788. It also restricted the “future act” regime stopping claimants from negotiating terms with miners on claimed land prior to resolution of the claim.
From 1994 to 2010 indigenous groups made 1556 applications for native title covering 13% of Australia’s land mass with 458 of those claims still before the court as of 2010. The real success of the legislation has been agreement-making with 470 Indigenous Land Use Agreements signed off by 2010, using native title for community purposes such as energy facilities, health care centres and gas pipelines. The people of Mer negotiated an ILUA in 2010 to permit the building of a new primary school and associated roads and services.
But the law remains, as Justice Michael Kirby said in 2002, “an impenetrable jungle of legislation” that was difficult to navigate. In 2008 Rudd minister Jenny Macklin delivered the Mabo lecture where she highlighted three areas for reform: the complex and slow claims processes, inadequate representation for claimants, and the flow of payments to claimants and native title holders. Political will remains lacking to make these necessary changes happen. It is unlikely current changes before parliament will in any way help the Indigenous cause.
The new Australia Day lamb ad is likely to be a conversation starter at barbecues on the day as increasingly lamb itself is likely to be on the menu. The ad is the latest creation of Meat and Livestock Australia, the marketing arm of Australian cattle, sheep and goat producers. From 2005 to 2016 their “lambassador” Sam Kekovich has been exorting Australians to eat more lamb on Australia Day. The former AFL player and Victorian media personality has been an inspired choice, in turns hectoring people to eat lamb while blasting vegan culture but usually getting away it with it thanks to his humorous deadpan tone.
The ads became increasingly sophisticated each year and in Kekovich’s final outing in 2016 “Operation Boomerang”, he joined SBS newsreader Lee Lin Chin and a gaggle of celebrities on a mission to save Australians abroad from going without lamb on Australia Day, an ad which was funny but with uncomfortable reminders of the police state Australia sometimes looks like. From an MLA marketing perspective, it was the most successful campaign yet with sales up a third in the weeks before and after Australia Day. The video was watched over 5.5 million times online and achieved over a thousand media mentions with an audience of 400 million. The MLA have upped the ante again in 2017 with less Kekovich, but more ambition, aiming for nothing less than a potted Australian history from the last 50,000 years. It is likely to beat last year for views and will probably also put more lamb on the table on Australia Day.
The ad starts with three Aboriginal people on the beach, the “first here” deciding to have a barbecue. The first visitors are the Dutch (who arrived in 1606) who bring cheese. Then the British arrive (in 1788), whose “We are the First Fleet” is answered by “Not quite, mate. They are very quickly followed by the French (also 1788) who also bring cheese. Next are the Germans (the first non British ship of colonists to arrive in 1848) who “bring their own” beer. This reminds them about ice and the scene moves to Antarctica where Mawson and Shackleton (1907-09) are packing ice for the party. Then come the Chinese (which is out of sequence as they first came in large numbers in the 1850s gold rushes) with explosives from Fyshwyck. Then come the Italians, Greeks and Serbians (including Kekovich in a cameo, the New Australians from after World War II). We are brought up to date by international hordes including an Indian asking Adam Gilchrist asking where the backyard is for cricket, a plug for “the neighbours” (New Zealand), and even the “boat people” before Malaysian-born chef Poh Ling Yeow asks “aren’t we all boat people?” And Australia’s multiculturalism is deemed complete with the “float people” from the Sydney Gay and Lesbian Mardi Gras. Gilchrist thanks the Aboriginal people for “having us” at a great spot for a barbie. “Best in the world,” they reply.
This is an ad with an endless amount of material to be deconstructed, something MLA are only keenly aware of. MLA group marketing manager Andrew Howie told the ABC they consulted Indigenous groups throughout the creative process. “The work that we create is never designed to be offensive, it’s not designed to cause offense to people,” Mr Howie said. “This year’s campaign is a celebration of Australia’s history. This year, and with the essence of the brand being very much around unity, we realised that this time of year there are cultural sensitivities for some groups within the Australian community.”
By “some groups” Howie means the Aboriginal people, the supposed stars of his ad, many of whom oppose the date January 26 as Australia Day as marking “invasion day”, when Britain first declared New South Wales a colony in 1788. For this reason there is no mention of Australia Day in the ad, but given the history of the ads it’s hard avoid the conclusion that it’s about promoting sales on Australia Day. Darumbal woman Amy McQuire picked up this point about using Aboriginal pain to promote the sales of lamb. “There’s Aboriginal people dying in custody, having their children taken away, suiciding … and that oppression stems from that original invasion”. For McQuire and others, Australia’s history is not a celebration.
If that was criticism from the left, there was also criticism from the right. Predictably Pauline Hanson saw the ad as fair game to put the boot in multiculturalism, especially as that was the path the MLA had flagged its campaigns were going last year. “It really is pretty sad, isn’t it?” Hanson said. She blamed “bloody idiots out there, ratbags” though the News Ltd article does not make it clear who Hanson thinks are the idiots and ratbats. But she did feel threatened by the ad. “It’s pretty sad when it’s basically shutting us down for being proud of who we are as Australian citizens.” Hanson was trying to construct an Australian “us” against a ratbag “them” out to destroy all that Australia Day stood for. It was a confusing message but then Australian history is confusing, given it has never been taught properly in Australian schools. Australia Day does not celebrate, as Hanson said it does, “the day we celebrate forming our nation, our federation, our government” (that would be January 1) and MLA are right to downplay its significance other than just a public holiday where people are more likely than usual to attend a barbecue.
The ad is amusing and should also be praised for highlighting indigenous voices even if it did – like most Australian history books until the last 50 years – gloss over the fact that one of those visitors (the British) ended up taking over the beach barbie. Indigenous writer Luke Pearson applauded the ad for its diversity and inclusion but said it would have been more accurate “if the meat the English gave to the Aboriginal people was poisoned with smallpox or strychnine”. Pearson acknowledged that would have distracted from the ad’s core purpose “getting people to confuse eating meat with being patriotic”. Still, it’s capable of having than one purpose and if despite its cultural stereotypes it leads to a more nuanced discussion of Australian history (Hanson notwithstanding), the MLA will have served Australia well.
An amusing photo was posted to Twitter this week of a giant billboard in suburban Melbourne captioned “Thank you Batman – David Feeney MP”. The tweet’s poster Tim Singleton Norton added “to those unaware of the name of the electorate, I’m guessing this billboard looks extremely odd.” When I appropriated the photo for my Facebook feed I added the comments “gratitude in Gotham City” and indeed, the humorous possibilities are endless. Batman, the DC Comics character, has been around since 1939 and transformed by television, cinema and video games, is now a cultural icon as probably the world’s most famous comic book superhero. Of course, David Feeney MP is not thanking the fictional Batman but the people of the Australian federal electorate of Batman, whose name predates the comic book figure.
The Division of Batman was created in 1906 and comprises mainly working class areas of north Melbourne, traditionally one of the safest Labor seats in the country. That almost changed in 2016 when Feeney survived a close challenge from the Greens. The hapless Feeney, already with an infamous reputation as one of the “Faceless Men” who unseated Kevin Rudd in 2010 did not help his own cause when he failed to declare $2.3m property on on the parliamentary register of interests. Then he was skewered in a car crash interview on Sky News, unable to answer questions on the $4.8b Schoolkids Bonus policy. The Greens beat Feeney on primary votes but with the help of Liberal preferences Feeney scraped over the line to retain the seat with a 51-49 2PP victory over the Greens. It was probably with much relief Feeney could take to the billboards proclaiming Thank You Batman oblivious to the irony of the other meaning.
Batman the electorate was named for John Batman (1801-1839), a native Vandiemenlander, and one of the original founders of white settlement in Melbourne in 1835. Batman had a mixed reputation as a likely killer of Aboriginal people in Tasmania before treating with Victorian Aborigines. Batman died of syphilis aged 38 and his early death meant there were no portraits of him in his lifetime.
Those that survive are based on William Penn, the English quaker who founded Pennsylvania. Penn was famous for his supposed peace treaty with Delaware natives in 1683 immortalised in a Benjamin West painting “Penn’s Treaty with the Indians”. Batman was an important member of the Port Phillip Association, an informal group of well-connected Tasmanians. Their self-serving yet unique attempt to treat with the indigenous bands of Melbourne was influenced by stories of Penn’s Treaty with the Shackamaxon native Americans. The imaginary connection between the two would lead to the agreement the PPA struck with the Kulin people of Victoria being called “Batman’s Treaty“.
That was the Treaty Batman claimed he signed in 1835 with the Kulin to occupy hundreds of thousands of acres of their territory around what would become Melbourne and Geelong. According to Batman the Kulin consented to the transfer of hundreds of thousands of acres in return for “the yearly rent or tribute of one hundred pair of blankets one hundred knives one hundred tomahawks fifty suits of clothing fifty looking glasses fifty pair of scissors and five tons flour.” Though white sealers and whalers had lived independently around Port Phillip Bay since the late 18th century, the PPA’s treaty was the first formal settlement proposal and a significant threat to the 19 counties Limits of Location the British government imposed in the Sydney hinterland of New South Wales.
The Treaty was initially respected around the Port Phillip area until complicated by the arrival of a rival settlement party from Tasmania in August 1835 led by John Fawkner. In the middle of the white men’s fight, life got dangerous for the original owners. New South Wales governor Richard Bourke was also alarmed, seeking legal advice before disavowing the Treaty. It was an awkward reminder the rest of Australia was being taken up without treaties. The British view was the land belonged to the crown since Cook’s statement of possession in 1770. Though absurd to the Kulin owners, that statement was a “matter of history” and could not be contested. The Treaty was abrogated but the flow of white settlers continued into Melbourne forcing the Kulin people off their land. The significance of events was not the Treaty but that the limits of location were smashed forever. The pace of colonisation of Australia increased dramatically in the decades that followed.
John Batman would have been forgotten given his early death, but for another Tasmanian, historian James Bonwick. Bonwick was an evangelist troubled by British dispossesion of the Aboriginal people though he was more concerned by redeeming the sins of the British than upholding Aboriginal rights. He praised the short-lived Batman’s Treaty but accepted the government’s decision to abrogate it. He was more concerned about Batman’s reputation as a founder of Melbourne then he was about Kulin land claims.
Bonwick began a revisional process which saw Batman become a major historical figure, though those that promoted him glossed over the Treaty. What became more important was an entry in Batman’s diary about a trip up the river where Batman apparently exclaims “this will be a place for a village”. These words – taken out of context – would take on extraordinary significance in narratives about Melbourne. As the grandees of Melbourne celebrated the city’s 50th and then 100th birthday, they celebrated the extraordinary growth from a “village” to a great world city. For their purposes Batman took “unoccupied” lands; the Treaty forgotten as an awkward reminder the land had prior owners who were dispossessed without compensation or apology.
Yet Batman’s image offered a ghostly reminder of that treaty. Artist Frederick William Woodhouse re-enacted Penn’s Treaty with the Indians in his own painting The First Settlers Discover Buckley. William Buckley was the convict who escaped the short-lived Victorian settlement of 1803 and lived with Aboriginal people for 32 years until he met the new settlers in 1835. Batman was not in that meeting but Woodhouse imagined he was and influenced by Benjamin West painted him in a Penn-style quaker necktie and hat. The image stuck and was passed on to all future depictions of Batman.
The Treaty found a new political purpose in the late 1960s when Victorian Aboriginal people led by Pastor Doug Nichols appropriated it for their needs. “The importance of the Batman Treaty lies in its explicit recognition that Aborigines did, in fact, own the land,” a supporter, Barry Pittock, wrote to The Age. Though Batman’s Treaty is not explicitly mentioned, it is probably no coincidence the 2016 Victorian government is the first Australian administration to publicly back a Treaty. “We understand that it’s not for us to decide what treaty or self-determination should look like,” Minister for Aboriginal Affairs Natalie Hutchins said. “We know that action needs to come from the Victorian Aboriginal community.” Like Feeney, she might have added, Thank You Batman.
There were two bits of intertwining news yesterday, one exciting, one sad. The exciting news was that a study of Indigenous Australian DNA dated their origins to more than 50,000 years making them the most ancient continuous civilisation on Earth. The sad news was the death of a man who did more than most to place the Aboriginal context in deep time: John Mulvaney, aged 90.
Aboriginal Australia lacked a written language which made it inscrutable to historians, making it easier to write them out of the history. It took experts from other disciplines such as archeologists like Mulvaney, anthropologists like Bill Stanner and ethnographers like Deborah Rose Bird to make sense of the available texts and create a new history for Australia 50,000 years old not 230 years.
Over 10 years ago another geneticist Spencer Wells found proof humans travelled from Africa to Australia and not vice versa when he found Australian Aboriginal blood has DNA mutations, or markers, from Africa that are 50,000 years old, but no African tribes have Australian markers. He also found genetic data which shows humans travelled along the south Asian coastline (at a time when sea-levels were low) before reaching Australia. The new study by geneticists that also traced the DNA journey from Africa to Australia would have been no surprise to Mulvaney. He made the astonishing discovery that although Africa was the wellspring of humanity, the earliest signs of human evolution outside Africa are in western New South Wales.
At the time sea levels were lower than at present and mainland Australia was part of the mega continent of Sahul with New Guinea and Tasmania. There is evidence to suggest humans were here at least 50 kya (thousand years ago). The earliest direct age for human occupation of Australia is between 50 and 60 kya for stone tools at Malakunanja and Nauwalabila rock shelters in Kakadu National Park in the Northern Territory.
Humans quickly fanned across the continent.Given we have seen rabbits spread across Australia in a century, it is not unreasonable to believe the human invasion happened in a similar timeframe. The spread was aided by great herbivore trails that crossed the land linking watering and feeding sites. Stone artefacts have been found at Devil’s Lair, a single-chamber cave area, near the south-west tip of Western Australia which date to 48kya.
The oldest human remains are found in western New South Wales at Lake Mungo (Willandra Lakes). A near complete skeleton was found in 1974 sprinkled with powdered red ochre before the grave was filled in. In 1999 paleoanthropologist Alan Thorne said the Lake Mungo 3 skeleton is 62kya plus or minus 6000. However later research in Nature journal said humans had been present at Lake Mungo no earlier than 50kya and no later than 46 kya while the skeleton dated to 45-42 kya.
Mulvaney was one of the first archaeologists to realise the significance of the find. He had gone on a scholarship in the 1950s to Cambridge to study pre-history and had urged the need for preservation of cultural materials in museums and legislation to protect important sites. He used the new science of carbon dating to push back known dates of human existence in Australia, first to 13 kya, then eclipsed by others to 20 kya, 30 kya and beyond. He carefully packed the Lake Mungo skeleton into a suitcase to take to the National Museum of Australia.
The Lake Mungo finds put Australia on the world map of pre-history. Use of ochre for paint and grindstones for pulverising plant food were skills humans learned in Africa and brought to Australia. From 60-43kya Lake Mungo was full of freshwater and the land was green and lush but the newcomers had to adapt to climate stress. Australia was an ancient land with low fertility, poor soil quality and a low energy ecology. At Kow Swamp in Victoria a population of humans dating to 22-19 kya lived by Kow Lake shore in a period of glacial advance in the Southern Highlands until their shellfish population died out and they moved on.
Mulvaney was instrumental in getting Kakadu and Lake Mungo added to the World Heritage List (and had helped develop the criteria for that list in the 1970s.) The discovery at Lake Mungo showed the power of the site to represent archaeology’s resonance in society and the broader cultural meaning of antiquity. It also helped the political ambitions of Indigenous Australians when they could point to this astonishing connection with deep time.
The new genetic findings, based on a population analysis of 83 Indigenous Australians and 25 Papuans, shows these groups can trace their origins back 50 kya and they remained almost entirely isolated until 4kya. I said these findings would not have been a surprise to Mulvaney. Nor are they a surprise to Indigenous Australians. Larissa Behrendt said they confirmed their oral history (another form of history mostly ignored in the western written tradition). Behrendt said Aboriginal culture and traditions were often viewed through a Eurocentric gaze that failed to see the rich historical wisdom in its values and teachings.”Cultural stories were often illustrated for children without looking for deeper meanings and codes,” Behrendt said. “These stories didn’t just tell a tale of how the echidna got its spikes, they contained – like parables in the bible – a set of messages about the importance of sharing resources in a hunter-gatherer society and the consequences of selfishness.”
What Behrendt is talking about is the dismantling of the racial discourse of white Australia and its near-sighted notions of superiority. What Mulvaney found was pre-history and its awesome timescale was uniquely qualified to make that discourse irrelevant. In an attention economy-dominated society where a week is a long time in politics, fame lasts 15 minutes and soundbytes eight seconds, the deep timescale of Indigenous Australia cannot be discussed enough.
This weekend was the 50th anniversary of the Northern Territory Wave Hill walk-off by the Gurindji People. It eventually led to one of the most iconic moments in Australian race relations: Prime Minister Gough Whitlam pouring sand into Vincent Lingiari’s hand. The strike had massive consequences, positively for land rights and negatively for Aboriginal employment in the stock industry. The collapse of that employment led to profound consequences still being felt today.
In the early 1960s Indigenous people were the bedrock of the pastoral industry in northern Australia. They were cheap labour, governed under the Wards’ Employment Ordinance in Queensland and the NT. The Ordinance set low wages and poor living conditions and excluded Indigenous people from industrial awards.
Indigenous groups were pushing for equal pay for equal work, a move resisted by the pastoral industry. In September 1963 the ACTU adopted a comprehensive statement endorsing equal wages. The move targeted pastoral workers unions, the AWU and North Australian Workers’ Union, initially indifferent to the plight of Aboriginal workers.
The NT Cattle Producers Council appealed to the Conciliation and Arbitration Commission for a full bench hearing to keep the clause excluding Aboriginal workers. The NT Council for Aboriginal Rights said the cattle industry exploited their people on low wages for years and “kicked us, whipped us, shot us, and raped our fairest daughters”.
In 1964 a big Darwin rally increased pressure on NAWU. The newly-formed Australian newspaper under enlightened editor Adrian Deamer and the Melbourne Herald’s Douglas Lockwood lent publicity to the cause, highlighting appalling conditions at British company Vesteys’ operations.
Cattle Producers Council lawyer John Kerr, later the Governor-General who sacked Whitlam, detailed evidence drawing on supposed racial knowledge over many decades to show cultural differences made Aboriginal people less useful workers. An Aboriginal stockmen loudly complained in court “you plenty liar” but Kerr’s case was not effectively countered and the Commission accepted it.
It was not until the full ruling in March 1966 the Commission embraced equal wages but in a compromise deferred it until December 1, 1968. The Commission accepted the employers’ argument that repeal of Wards’ Employment Ordinance would greatly increase costs and also lead to unemployment and displacement of workers and dependents.
In time this is exactly what happened. However this was not the fault of the Indigenous workers.
Indigenous NAWU organiser Dexter Daniels complained about the delay. Daniels had been to Kenya in 1964 and seen how black people were winning rights from colonial masters. “Our people have been waiting more than 50 years, and they should get the award straight away,” he said. Daniels organised a strike of 80 Aboriginal workers at Newcastle Waters and wanted to spread it to Wave Hill a few hours away to the west. Wave Hill was a 16,000 sq km pastoral lease with 40,000 cattle and employed the largest number of Aboriginal people in NT.
The Wave Hill area was colonised in the 1880s and the station was bought around 1900 by British agribusiness Vesteys. At first, white cattle station owners killed many Aboriginals and ran others off the land; later they lured them with beef, flour and tea and exploited them as cheap labour.
Vesteys had a terrible reputation. Stan Davey from the Victorian Trades Council was shocked by conditions. “I have been astounded at the blatant continuation of a feudal type of control of Aborigines,” he said. “Their pay has been irregular and would appear to have frequently fallen short of the prescribed [wages]. People at Wave Hill were living structures no bigger than dog kennels. There were no sanitation provisions and no readily accessible water supply, People have been fed a slab of bread and a piece of salted beef three times a day.”
Wave Hill head stockman Vincent Lingiari, then 47, was in Darwin and Daniels arranged to meet him to see if he would join the strike. On August 22, 1966 Lingiari led 80 workers and 120 dependents in a walk-off to Wattie Creek. This was not the first strike at the station. They had walked off before in 1949, 1952 and 1955 but this was the first strike supported by a union.
The Australasian Meat Industry Employees Union placed a black ban on Newcastle Waters and Wave Hill. In September unions and employers struck an agreement that “fully efficient” Aboriginal workers would get the full award rate, married men would get basic wage less keep and singles would get smaller increases and keep. A publicity tour led by Gurindji stockman Captain Major to southern capitals raised considerable funds. “You can see I have a black skin, but I have a white heart. What I want is a fair go for my people,” Major told his audience.
The Gurindji refused to go back to Wave Hill. In October 1966 Labor MP Gordon Bryant read a Lingiari letter to parliament demanding the return of “tribal lands” belonging to “forefathers from time immemorial”. Author and journalist Frank Hardy was on his way north on holiday when he heard about the strike and he rushed to Wave Hill.
Hardy later wrote about the struggle in his book The Unlucky Australians (1968). It took Hardy a while to realise the dispute was more than about pay. Lingiari explained they ultimately wanted to replace Vesteys with Indigenous owners: “One day last year we talk about these things, about hidings, about living in dog kennels, about white men taking our women, about bad tucker, about no pay. We decide then we got to go. Make our own way. We can do these things.” Lingiari told Hardy: “I bin thinkin’ in my mind we can run Wave Hill, without Bestey mob”.
Once Hardy grasped the significance of Gurindji demands, he became their spokesperson. He drafted a letter to The Australian: “Vesteys do not own this land…The land is Crown Land controlled by the Federal Government but the rightful owners of it are the Aboriginal tribes of the Hooker Creek area who lived there for centuries before the white man came to pillage the land, despoil their women and reduce them to the status of slaves. Aboriginal stockmen at Wave Hill …asked for equal pay with white stockmen and were ‘sacked’ from their own tribal and sacred lands for having the temerity to do so… The economic issue is equal pay but a more momentous issue lies at the heart of the matter. The moral issue of the plight of the native people, the monstrous and criminal indifference to their welfare, the cruel exploitation of them. Of course they must be granted equal pay.. and it should be granted now instead of three years as the Court has decided. But what of the wider issue. What about compensation from the cattle barons and the great mining companies who are raking great fortunes out of the north? And what about tenure of their own tribal lands?”
Lawyer Dick Ward advised Hardy it would be difficult to make a legal claim but a better bet would be a petition to parliament like the Yirrkala did in 1963 for their land near Gove. Hardy discussed the idea with Bryant who was keen to assist. The Petition signed by Lingiari and others represented claimants demanding their tribal land:
“We the leaders of the Gurindji people, write to you requesting that you bring before the Parliament of Australia the present position of our people, and our earnest desire to regain tenure of our tribal lands…of which we were forcibly dispossessed in times past, and for which we received no recompense. This land belonged to our forefathers from time immemorial, and many of our people have been killed trying to regain it. Therefore we feel that morally, if not legally the land is ours and should be returned to us. The very name by which you call us, ‘Aboriginal’, acknowledges our prior claim to this country in which we are now a depressed minority.”
They wanted a lease they could run co-operatively as a cattle station. Hardy said the legal question was whether land tenure began with white settlement or with the original owners. In late 1966 Major returned to his own country and claimed the name Lupgna Giari. Lingiari asked Giari to have “proper talk” with Hardy. They put together a new petition which outlined the Gurindji relationship to Wattie Creek and claimed the land. On Lionel Murphy’s advice, it was addressed to Governor-General. There was a new passage inserted: “our culture, myths, dreaming and sacred places have evolved in this land… We have never ceased to say amongst ourselves that Vesteys should go away and leave us to our land. On the attached map, we have marked out the boundaries of the sacred places of our dreaming…we have begun to build our own new homestead on the banks of beautiful Wattie Creek…This is the main place of our dreaming only a few miles from the Seal Gorge where we have kept the bones of our martyrs all these years since white men killed many of our people. On the walls of the sacred caves where these bones are kept, are the paintings of the totems of our tribe. We have already occupied a small area at Seal Yard…we will…build up a cattle station within the borders of this ancient Gurindji land.”
Hardy played a crucial role in marking the Aborigines as “Gurindji” a tribal marker that authenticated their claim to the land. They put up a sign at Wattie Creek which they saw as having extraordinary power. One elder told Hardy, “All them mob hab sign outside. Bestey’s got ’em sign outside, policemen got ’em sign outside. Welfare got ’em sign outside. We want ’em sign for Wattie Creek homestead. Can you write ’em sign?”
Hardy asked them what they wanted on the sign. “Put that Gurindji word there,” they replied, “We never been see that word, only in we head.”
When they put up the sign which read “GURINDJI, mining lease and cattle station”, Peter Morris, Vesteys’ manager of Vesteys’ pastoral properties asked Lingiari what they were doing on Vesteys land and who had painted the sign. Lingiari replied “this belong to my grandfather…I asked that Frank Hardy to paint it. It’s our sign and we camp here.”
The Liberal Federal Government rejected the petition a few months later. But land rights was moving to the forefront of the reform agenda. Gurindji, Wave Hill, the Yolngu and Yirrkala would become major symbols of the battles that followed. The petition gathered 100,000 signatures by 1969 and when the Labor government was elected in 1972, Whitlam appointed Ted Woodward royal commissioner to consider how Aboriginal people could be granted land in NT. In 1975 Whitlam attended a ceremonial handover of Wattie Creek to Gurindji, widely regarded as an enormous achievement in Indigenous civil and land rights. But it took land rights legislation passed in 1976 to allow for valid claims on the basis of traditional association. The Gurindji 1976 claim for 3293 sq km of Daguraga Station was finally achieved in 1983.
The events were immortalised in Paul Kelly’s song Big Things From Little Things Grow and it was indeed a great success in land rights. But it came at a terrible price. Most stations sacked their Aboriginal workforce rather than grant equal pay. A huge influx of itinerant populations came into towns with no work and no prospects. Many lives descended into alcohol and violence as a result. The era of great Indigenous stockmen and women “born in the cattle” was over.
Townsville is the largest city in northern Queensland and although I’d passed through here on a number of occasions, I’d never stayed the night here before. The first time I was here was one Easter in the early 2000s when all accommodation was booked out (I can’t remember which year but the city was recovering from a cyclone). The next time I stayed on Magnetic Island and most recently I came driving through in the middle of the day and while I drove to the top of Castle Hill, I spent the night further up the coast. This time I was determined to walk up Castle Hill which was not too far from my motel.
Castle Hill is a stunning pink granite monolith that dominates the city and the shoreline below. There is a 2.6km road to the summit but I was determined to walk up via the goat track from the centre of town. The walk was tough but the view from the top was its own reward.
Below was the town squeezed between the rock, the river and the sea. Townsville was established as the need for a port north of the regularly flooding Burdekin River. Built on the traditional home of the Wulgurukaba people, the town was named in 1866 for merchant and entrepreneur Robert Towns.
Straight across Cleveland Bay is Magnetic Island, both of which were named by James Cook in his 1770 voyage up the coast of eastern Australia. Cook said the island affected the compass aboard the Endeavour (“the compass would not travis well when near it”, he claimed) but no navigator since has observed any similar magnetic qualities of the island. It is magnetic to tourists (myself included) who flock there by boat for its beauty and peacefulness. The walk across the top of the island is awe-inspiring too.
Once I was finished admiring the view from the top of Castle Hill I came back down to sea level and went for a walk along the Strand, beginning at the Breakwater Marina, a great sheltering spot for hundreds of boats.
Then it was a long walk north along the Strand and the beachfront. The cloudy and windy weather was unusual for May and it meant the beaches were deserted but the views out to Magnetic Island were still enchanting.
There was another reason no one was in the water. It’s bad enough with sharks and crocodiles in the water waiting to kill you but November to May is marine stinger season. Stingers are box jellyfish found in Australian tropical waters which can cause potent toxic stings leading to serious illness and death in some cases. Most northern beaches have an emergency supply of vinegar nearby which kills the stinging cells. There is usually a small netted-area where you can swim free from threats of stingers.
Past the Strand is the hill which holds Kissing Point Fort. Constructed in 1889-91, it is significant as one of the few remaining fixed coastal defences constructed in Australia in the 19th century. Kissing Point Fort is significant in the initial phase of Australia assuming responsibility for its own defence after British land forces left in 1870. The Fort was erected against perceived threats of 19th century foreign invasion but played a role in a real 20th century invasion when Japanese planes strafed Townsville in 1942. Lights flashing from the Fort disoriented the invaders enough for them to drop most of their payload in Cleveland Bay. The Fort was left to decay after the war until the Army and local citizens carried out conservation works in 1979-80 and from 1980 part of the Fort became the North Queensland Military Museum. The old Jezzine Barracks had a $40m facelift a couple of years ago.
Beyond the Fort is a clifftop boardwalk celebrating the Indigenous heritage of Kissing Point, or Garabarra. The traditional owners of Garabarra are the Wulgurukaba and the Bindal peoples, who retain an enduring ‘connection to country’ despite the impact of non-Aboriginal settlement in the area. For thousands of years Garabarra was the centre of a common food foraging area for local Aboriginal people – an area with immeasurable cultural and spiritual values, commemorated in thoughtful sculptures along the coast. The connection is still strong today and in 2012 the Wulgurukaba won native title rights to part of Magnetic Island (which was once linked to the mainland via a spit).