Yirrkala bark petitions, 50th anniversary

Earlier this year NAIDOC week celebrated the 50th anniversary of the presentation of the Yirrkala bark petitions to the House of Representatives.  However, you may not know that their presentation to the House actually happened in August – twice.  In this article Richard Selth explains the story behind how these highly-significant petitions came to be.

The Yirrkala bark petitions of 1963 are significant early steps in the path that led to the statutory acknowledgement of Aboriginal land rights by the Commonwealth in 19761 and the overturning of the doctrine of terra nullius in the High Court’s Mabo2 decision of 1992.

Background

Arnhem Land has been inhabited by Aboriginal people for up to 50,000 years, with stone tools found in the area carbon dated to 35,500 years and among the oldest of their kind in the world. From the seventeenth century, and possibly earlier, the Yolngu people of Arnhem Land had regular contact with traders from south-east Asia, from whom they absorbed significant cultural influences, some of which can be seen in the artwork for which the region is noted. This contact came to an end in 1907 when, for customs reasons, the Commonwealth government prohibited further trade.

European contact with the region began in the early seventeenth century with the voyages of Dutch explorers. In 1803 Matthew Flinders made the first detailed charting of the Arnhem Land coast in the Investigator and in 1824 regular European contact began with the establishment of Fort Dundas on Melville Island and later Fort Wellington and the Victoria Settlement on the Cobourg Peninsula. These settlements were soon abandoned and it was not until 1869 that Palmerston (Darwin) was permanently established.

The first mission station was established in Arnhem Land in 1908 by the Church Mission Society. In 1916 the Northern Territory Administration bought the cattle station at Oenpelli and in 1920 the 6200 square kilometres around the station were converted into the Oenpelli Aboriginal Reserve. The Arnhem Land Reserve was proclaimed in 1931 and these and other reserves in the area were combined as the Arnhem Land Reserve in 1963. The mission at Yirrkala was established in 1934.

Bauxite exploration in Arnhem Land began in 1952 and by 1955 substantial reserves had been identified. In 1958 the first lease to mine bauxite on the Gove Peninsula was granted to Comalco, later transferred to BAC – the British Aluminium Company. In early 1963 the Menzies government granted three leases to Gominco, a subsidiary of the French company Pechiney, and rescinded BAC’s lease because the company would not comply with a key condition of the lease, the construction of an alumina plant on the Gove Peninsula. Gominco wanted the Commonwealth to excise the entire peninsula from the Arnhem Land Aboriginal Reserve and in March 1963 an area of 360 square kilometres was excised from the reserve.

The petitions

The Yolngu people of Yirrkala had become increasingly disturbed by the activities of the mining companies. Following the excision of land from the reserve, mission superintendent Rev Edgar Wells called a public meeting at Yirrkala and explained the excision to the Aborigines.3 In August 1998 Galarrwuy Yunupingu AM, then Chairman of the Northern Land Council, whose father was one of the signatories to the bark petitions, recalled these events in the third Vincent Lingiari Memorial Lecture. He spoke of ‘the great pain of my father when the bauxite mine was imposed on our traditional country against the will of the Yolngu people.’

I suppose I was 16 when the news travelled urgently throughout Yirrkala that the sacred banyan tree at Nhulunbuy was going to be damaged by the mining company. There was a rippling anger that shot through the old people … It was only at that moment that we understood that in the eyes of the Balanda law we were no-one. Our ancient laws and our social systems were invisible to the legal and political system which had total power over our lives.

Yunupingu said that:

Despite the fact we were still living our traditional lives, hunting and fishing on our estates, performing the ceremonies for the land, and following the rules of kinship, we had no standing either as citizens of Australia, or as a people with our own law. We did not exist in Balanda law.4

In April 1963 the Minister for Territories, Paul Hasluck, made a Ministerial Statement in the House on the Welfare of the Aborigines of Gove Peninsula, responding to what he said was misleading information being circulated about the effect of the granting of the mining leases. In his statement Mr Hasluck outlined the steps that had been taken to protect the interests of the Aborigines of East Arnhem Land.

He stated that in the negotiations of the leases and agreements for mining development the government had relied on the Director of Welfare and his officers in the Northern Territory to advise on what conditions should be imposed to serve the interests of the Aborigines. He said that the government had also been in close consultation with mission authorities, who had agreed to a statement of measures to safeguard the interests of the Aborigines. Notably, especially in the context of the creation of the petitions later that year, there was no direct consultation between the government and the Aborigines themselves.

In concluding his statement Mr Hasluck pointed out that the creation of an Aboriginal reserve in 1931 ‘did not create any legal title either to the land or resources of that reserve for those living on it’.5 In an unusual step, the Member for Fremantle, Kim Beazley senior, moved an amendment to Mr Hasluck’s motion that the Ministerial Statement be printed. Included in the terms of the amendment was the proposition that ‘An aboriginal title to the land of aboriginal reserves should be created in the Northern Territory’.6

Debating the motion in the House of Representatives on 23 May 1963 Mr Beazley stated that it was the view of the Opposition that there should be a ‘revolutionary approach to the position of aborigines in relation to reserves’ and that it was time that Parliament ‘faced the question of whether there was any aboriginal entitlement to land’.7 The House was dissolved for the 1963 election without the questions on the amendment and the motion being put.

Following the granting of the leases early in 1963 and the excision of part of the reserve, a group of Yolngu leaders decided to fight what they saw as the injustice of these decisions.

In July two Opposition MPs, Gordon Bryant and Kim Beazley, visited Yirrkala and heard from the Yolngu of their dismay at the lack of consultation with them about the decisions in relation to the granting of mining leases and the excision of land from the reserve. In a report for the Federal Council for Aboriginal Advancement on their visit, Mr Bryant and Mr Beazley stated that, ‘the right of the Aborigines to some form of collective ownership is unchallengeable … this land belongs to the Aboriginal people by right of occupancy from time immemorial … The Government has acted with complete insensitivity to the economics and social structure of the community.’8

Rev Edgar Wells, the mission superintendent, later described how one morning during their visit he found the two MPs in the new mission church, admiring the freshly painted bark art boards which had been created specifically for the church. It was this that prompted Mr Beazley to advise the community to make a bark petition. He gave them the wording of the prayer required for a petition to be in order, so that it could be presented in the House. The petitions were typed on paper in English and Gumatj and glued to stringybark sheets with surrounding bark paintings of symbolic designs proclaiming Yolngu law and the relationship of the people to the land.9

In the words of Galarrwuy Yunupingu:

Think about what they did for a moment. Using traditional methods, they prepared a document which expressed the most important aspects of Yolngu law and society. The thirteen clans came together, negotiated what should be included, and set about preparing this painting which was unique and unprecedented. It could be likened to the Magna Carta of Balanda law because it was the first time Yolngu had ever set our law down for others to see.10

Yirrkala Petition, 14 August 1963On 14 August two petitions were presented to the House, one by Mr Nelson, the Member for the Northern Territory, and one by Mr Wentworth, the Member for Mackellar. According to Rev Wells, five petitions were to be prepared.11 It is not clear why the other three were not presented; one is now in the possession of the National Museum of Australia and the fate of the other two is unknown. The petitions stated, in part:

[T]he land in question has been hunting and food-gathering for the Yirrkala tribes from time immemorial; we were all born here. [P]laces sacred to the Yirrkala people as well as vital to their livelihood are in the excised land, especially Melville Bay. [T]he people of this area fear that their needs and interests will be completely ignored as they have been ignored in the past, and they fear that the fate which has overtaken the Larrakia tribe will overtake them.

The next day the Melbourne Age reported:

The strangest petition yet received by the House of Representatives – written in the aboriginal language on a length of stringy bark – was presented to the House today. It began – ‘Bukudjuini gonga yuru napurrunha yirrakilli’ Which means – ‘The humble petition of the undersigned people of Yirrkala’.12

According to The Age the Clerk of the House of Representatives, Mr Turner, said that it was the first time such a petition had been presented to the Parliament.

In Question Time on 20 August a government backbencher, Richard Cleaver, asked the Minister for Territories whether he had been ‘able to establish the status of the natives who appended their signature’ to the petitions presented on 14 August.13 While stating that he was ‘not questioning in any way the propriety of the presentation of this petition, nor the right of the people who signed it to do so,’ Mr Hasluck said that only six of thirteen tribal groups were represented by the signatories and that only one of them occupied a position which entitled him to speak on behalf of one of the groups. Mr Hasluck concluded that ‘one could not regard this petition as having been signed by twelve persons who were in a position to speak on behalf of the whole of the people of Yirrkala.’14

However, according to Edgar Wells, following the dedication of the new church, including the bark artwork:

As far as the local Aboriginal people understood these things, a form of religious sanction now blessed their work; that this sanction was extended to the protection of their ancestral land holdings which housed the original totemic forms and symbols of their traditional associations they had no doubt whatsoever. The young people in Aboriginal society joined hands with the traditional elders in this particular frame of reference; thus, those who were able to write their names could quite properly represent the older, non-literate sections of the community.15

In response to the Minister’s comments Mr Bryant issued a statement in which he said that the Minister had taken ‘the unprecedented step of criticising a petition presented to the Parliament on behalf of the Aboriginal people of Yirrkala … No previous petitioners of the Parliament have ever been so peremptorily rebuked.’16

When they learnt of the Minister’s comments the people of Yirrkala created two new petitions, identical in wording to those presented on 14 August. Sent with these were three sheets containing the thumbprints of 31 elders of the various clans, indicating the support of the entire Yirrkala community for the petitions. The two petitions were presented on 28 August, one by the Leader of the Opposition, Mr Calwell, and one by Mr Beazley.17

The select committee

Yirrkala Petition, 28 August 1963On 12 September Mr Beazley moved: ‘That a Select Committee be appointed to inquire into the grievances of certain aboriginal people of Yirrkala relating to the excision of land from the Aboriginal Reserve in Arnhem Land, contained in their Petition presented and read to the House on the 28th August, 1963’.18 The motion was not opposed by the government and a select committee was accordingly established. Evidence was taken from 25 witnesses, including 10 Yolngu, over five days at Yirrkala and Darwin. The report was presented on 29 October 1963.

Among the findings of the committee were that:

  • it had not been intended that the lands included in the reserve were to be handed over absolutely to the Aborigines, and that if a payable mineral field were discovered in a reserve, the area was to be withdrawn from the reserve;
  • government policy was that Aborigines should benefit from royalties flowing from the development of reserves;
  • no discussion had taken place between Administration representatives and the Yirrkala people before the excision of land from the Arnhem Land Reserve; and
  • particular sites had very real spiritual significance to the Aborigines, and no discussions had been held with them to determine the precise location of any sacred sites.19

The committee made a number of recommendations, including that the people of Yirrkala be consulted as early as possible about the location of their sacred places and that those places be set aside for their exclusive use. The committee also recommended compensation for the loss of traditional occupancy, in the form of land grants, capital grants and monetary compensation.20

Two days after the report was presented the House was dissolved for a general election. In the new Parliament Opposition members asked questions on a few occasions about what response the government might make to the recommendations but no action was taken.

Subsequent events

The Yolngu felt that the petition had failed:

That unique and powerful document was taken to Canberra, along with our sacred objects and symbols. And we were told that the government could not help us. We had given them the secrets of our law and they still refused to act. This was heartbreaking for the Yolngu; this was betrayal; and this was terra nullius in operation. It was clear that our law was invisible, and that the only way to fight the Balanda was using Balanda law.21

Following the granting of leases to Nabalco to mine bauxite and establish a township, and the commencement of works to do so, Yolngu leaders launched the Gove Land Rights Case in the Northern Territory Supreme Court in December 1968.22 This was thought to be the first case brought by Australian Aborigines to seek legal recognition of their customary land rights.23 The applicants asserted that since time immemorial they had held a ‘communal native title’ that had not been validly extinguished or acquired under the Lands Acquisition Act 1955 and that should be recognized as an enforceable proprietary right. Hearings were held in 1970 and judgement delivered in April 1971.

The action failed, but in delivering his judgement Justice Blackburn accepted that Yolngu had been living at Yirrkala for tens of thousands of years and that their law was based on intricate relations to the land:

the natives had established a subtle and elaborate system of social rules and customs which was highly adapted to the country in which the people lived and which provided a stable order of society remarkably free from the vagaries of personal whim or influence. The system was recognized as obligatory by a definable community of aboriginals which made ritual and economic use of the areas claimed. Accordingly, the system established was recognizable as a system of law.24

However, he also held that:

The doctrine of communal native title contended for by the natives did not form, and never had formed, part of the law of any part of Australia. Such a doctrine has no place in a settled colony except under express statutory provisions.25

The judgement was not appealed.

Before this case was launched the people of Yirrkala had sent a new petition to Parliament on a related matter. The township being developed by Nabalco on the Gove Peninsula was to be named Gove but the Yolngu insisted that it be called Nhulunbuy, their name for the nearby sacred hill. A bark petition from the Yolngu calling for a change of name was presented to the House on 8 October 1968 by the Leader of the Opposition, Mr Whitlam.26 Subsequently the area was renamed in accordance with the petitioners’ request.

The judgement in Milirrpum v Nabalco acknowledged for the first time in an Australian higher court the existence of a system of Aboriginal law. In 1976 the Aboriginal Land Rights (Northern Territory) Act was passed. This was the first Australian law which allowed a claim of title if claimants could provide evidence of their traditional association with land. It would take the Mabo27case in 1992 to overturn the doctrine of terra nullius and recognise native title throughout Australia. The Parliament subsequently enacted the High Court’s findings in that case in the Native Title Act 1993.

[1] Aboriginal Land Rights (Northern Territory) Act 1976.

[2] Mabo v Queensland [1992] HCA 23; (1992) 175 CLR 1.

[3] Edgar Wells, Reward and Punishment in Arnhem Land 1962-1963, p 134.

[4] Galarrwuy Yunupingu AM, ‘We know these things to be true: The Third Vincent Lingiari Memorial Lecture’, 20 August 1998.

[5] Paul Hasluck MP, Minister for Territories, House of Representatives Debates, 9 April 1963, pp 481-484.

[6] Votes and Proceedings, 23 May 1963, p 506.

[7] Kim Beazley MP, House of Representatives Debates, 23 May 1963, p 1796.

[8] The Federal Council for Aboriginal Advancement, Report on Yirrkala, Northern Territory and Bauxite Deposit Leases.

[9] Edgar Wells, Reward and Punishment in Arnhem Land 1962-1963, pp 79-80.

[10] Galarrwuy Yunupingu AM, ‘We know these things to be true: The Third Vincent Lingiari Memorial Lecture’, 20 August 1998.

[11] Edgar Wells, Reward and Punishment in Arnhem Land 1962-1963, p 80. According to the Melbourne Age the petitions were sent to Canberra by mail, to Mr Nelson, to the Leader of the Opposition, Mr Calwell, and to the Prime Minister, Mr Menzies.

[12] The Age, 15 August 1963, copy at http://www.aiatsis.gov.au/collections/exhibitions/yirrkala/newspaper.html

[13] Richard Cleaver MP, House of Representatives Debates, 20 August 1963, p 276.

[14] Paul Hasluck MP, Minister for Territories, House of Representatives Debates, 20 August 1963, pp 276-277.

[15] Edgar Wells, Reward and Punishment in Arnhem Land 1962-1963, p 81.

[16] Quoted in Wells, Reward and Punishment, p 84.

[17] Votes and Proceedings, 28 August 1963, p 531.

[18] Votes and Proceedings, 12 September 1963, p 549.

[19] Report from the Select Committee on Grievances of Yirrkala Aborigines, Arnhem Land Reserve, pp 9-11.

[20] Report from the Select Committee on Grievances of Yirrkala Aborigines, Arnhem Land Reserve, p 12.

 [21] Galarrwuy Yunupingu AM, ‘We know these things to be true: The Third Vincent Lingiari Memorial Lecture’, 20 August 1998.

[22] Milirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141 at p 143.

[23] John Hookey, ‘The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia’, Federal Law Review 1972, p 85.

[24] Milirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141 at, p 143.

[25] Milirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141 at p 143.

[26] Votes and Proceedings, 8 October 1968, p 223.

[27] Mabo v Queensland [1992] HCA 23; (1992) 175 CLR 1.

 

 

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