Table of Contents
In recent decades, Aboriginal affairs in Australia have been punctuated by disputes over development projects proposed in the vicinity of places attributed mythological significance by local Aboriginal peoples. Noonkanbah, Coronation Hill and Hindmarsh Island have been the biggest of these, attracting intense national political attention. In such disputes, law, party policies and interest group campaigning serially interact through the sometimes prolonged stages of the associated political process. This chapter selects one theme from the management of the Coronation Hill issue, which ran its long and tortuous course from September 1985 to June 1991. It focuses on the early stages of that history, and in particular on the events of 1987, and examines the ways in which two statutory authorities charged with advancing the recognition and protection of Aboriginal interests in land adopted courses of action that in different respects complemented and competed with one another. It further traces the stages through which one of these authorities was able to transform itself from a marginal observer to principal representative of the Aboriginal interest.
The character of the relationship between these two organisations derived from the distinct but overlapping legislative charters under which each operated. There were two Acts involved, and they had a common public policy origin in the recognition of Aboriginal land rights in the Northern Territory in the 1970s. The first and principal Act was the Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA); the second and complementary Act was the Territory’s own Aboriginal Sacred Sites Act 1978 (ASSA). Within the overall land rights regime, jurisdiction was divided between the statutory authorities established by these Acts, the Northern Land Council (NLC) and the Aboriginal Sacred Sites Protection Authority (ASSPA) respectively. There were important differences in the way these authorities were empowered to recognise and manage the indigenous interest in land. These concerned the extent of the land and the purposes to which it could be put, and the category of Aboriginal people which each organisation was required to consult. This chapter thus relates the contest between them over management of Coronation Hill to the different kinds of indigenous interest that were seen to be at stake.
This analysis therefore does not deal with the most contentious aspect of the interaction between indigenous testimony and organisational strategy during the Coronation Hill dispute. That was the problem of determining whether the Aboriginal custodians genuinely held religious beliefs about that place of a kind that should have precluded mining development. Rather, it is about external history, an interpretation of an aspect of the strategies of the two organisations involved, tracked through consultations, meetings, submissions, lobbying and negotiations from Coronation Hill to Canberra. Connections between these issues, however, will readily be found, as the history given here reveals sufficient incidental details to indicate just how fraught the question of the significance of Coronation Hill was, and why it became the point on which policy, in the end, pivoted (Levitus 1996). That end point ultimately came in 1991 when Prime Minister Bob Hawke, acting from a minority position in Cabinet, insisted that the religious values ascribed by Aborigines to Coronation Hill were of such importance as to preclude mining and justify its incorporation within Kakadu National Park.
Rather, my analysis points to the way the organisations’ strategies during this issue flowed in part from the way their understandings of indigenous authority with respect to place were structured both by law and by their own prior histories of practice. In the case of the NLC, that prior history bore the force of precedent from a previous land claim, and in the case of the ASSPA, it took the form of an institutional policy commitment to direct and individualised consultation. Eventually, and after several years of contention, official processes of arbitration and management again called upon local indigenous people to propose their own model of landownership. The model they proposed in response differed significantly from previous representations, most importantly in bringing to salience a structural entity, the patrilineal clan, that had been de-emphasised or left out of account by that prior history of organisational practice.
In the next section, I set out the respective points of departure that grounded the orientations of the two organisations towards Coronation Hill. In later sections, I narrate and analyse the phases of tension and cooperation that developed between them. In the penultimate section I jump ahead to the early 1990s, when the Coronation Hill dispute passed through its final phase and an Aboriginal land claim proceeded over the surrounding area. Here, in an unexpected counterpoint to what had gone before, the local indigenous model of responsibility for country just mentioned achieved recognition in the final political and legal settlements of land interests in the area.
The NLC, one of the statutory authorities concerned, was one of two major land councils brought into existence by the ALRA. It is a body consisting of Aboriginal people elected from various subregions of the top half of the mainland Northern Territory, and served by a substantial professional bureaucracy divided into branches such as Law, Anthropology and Resource Management. In the period to the late 1990s, now thought of as the first generation of land rights, the NLC’s major responsibility was to assist Aborigines to establish their traditional ownership of unalienated Crown land before the Aboriginal Land Commissioner, who could then recommend the granting of inalienable freehold title to an Aboriginal Land Trust (ALRA Section 50(1)(a)). More generally, the NLC’s functions are to ascertain the wishes and represent the interests of traditional Aboriginal owners of land within the top half of the Northern Territory with respect to any issue relating to ownership or use of that land (ibid. Section 23(1)). Such issues have prominently included the negotiation of conditions under which mining interests will be granted.
Traditional owners are determined by reference to the mythologically sanctioned social structures, such as patrilineal clans or language groups, that mediate relationships between people and land (Keen 1984). In land claims, these structures are described from anthropological research and validated by claimant testimony in a tribunal hearing before the Aboriginal Land Commissioner. Traditional owners thus are members of a group or groups that occupy the appropriate relationship of spiritual responsibility towards sites on the land. While, in a land claim, at least some members of the group will have to show knowledge of the country concerned, those lacking such knowledge retain the status of traditional owners by reason of their membership of the relevant group. Structural entitlement is thus the principal determinant of traditional ownership, and participation in consultations on matters of land management is therefore in principle open to any competent member of the owning group. In accordance with Aboriginal custom with respect to speaking for country and making decisions about land, those with personal attributes of knowledge, relevant life experience, seniority or prestige play the largest roles in deliberations and are those to whom the NLC has most resort for its instructions.
The ASSPA was a Northern Territory Government agency established by the ASSA. The ASSPA existed until 1989, when it was reconstituted by new legislation as the Aboriginal Areas Protection Authority. The Authority, consisting of a majority of Aboriginal members nominated by the Land Councils and served by an office of field anthropologists and technical staff, is responsible for documenting and registering Aboriginal sacred sites throughout the Territory. It registers sites only on a request from local Aborigines customarily responsible for those sites, referred to in its Act as the ‘custodians’ (ASSA Section 3). The custodians generally number between one and a few individuals, and their status derives from a combination of affiliation with the place or area, seniority in age, and knowledge.
Unauthorised trespass upon a site is subject to penalties. Under the original ASSA, in force until 1989, the ASSPA could give written consent for access to and works upon a site. It became the practice of ASSPA officers to arrange consultations between proponents of work and the site custodians, and then to seek from custodians their views as to the acceptability of the work, a matter on which they reported to the ASSPA for a formal decision. Since 1989, these procedures have been formalised in law (Ritchie 1996: 214–5).
Other points concerning these arrangements for the protection of Aboriginal land interests need to be made here. The first relates to the intended complementary relationship between the two regimes just described. The ALRA provided the definition of a sacred site as, in part, ‘a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition’ (Section 3), and further created the offence of unauthorised entry onto a sacred site (Section 69). The Northern Territory’s own sacred sites legislation, however, had its policy genesis in a decision by the Federal Government not to provide for all relevant matters within its own land rights legislation, but to allow subsequent ‘reciprocal’ legislation (ALRA Section 73) to be passed by the Northern Territory Parliament, then approaching self-government. Administration of a sacred sites protection process was considered an appropriate area for such reciprocal legislation. This has been an object of criticism by Land Councils who resent the denial of jurisdiction over a matter they perceive as properly a part of land rights, and mistrust the placing of that jurisdiction in the hands of a Northern Territory government dominated, from self-government in 1978 until 2001, by an openly pro-development Country Liberal Party. Consequently, there has been within the NLC persistent doubt as to the ability or the willingness of the Sacred Sites Authority to stand up forthrightly for Aboriginal interests.
The common policy origin of land rights and sites protection also enshrines an underlying difference in the nature of the land interest being recognised. The recognition of a sacred site has different implications depending on whether it is on land claimable by Aborigines or elsewhere. On claimable land, sacred sites are fundamental to the process of proving traditional ownership, because the members of the claimant group have to demonstrate that they have spiritual affiliations to, and exercise spiritual responsibility for, sites on the land (ALRA Section 3(1)). Recognition of such attachments in a successful land claim thus founds a legal property right. On land that is not available for claim, such attachments found rights of lesser extent which, though their exact character is open to debate (Ritchie 1996: 211, 217), importantly include a right of entry and a right to deny entry to others.
The land registration regimes administered by the NLC and Sites Authority thus contrast in significant respects, including the areas of land involved, the Aborigines with whom they must consult, and the range of issues on which they are required to consult. Generally, the NLC assists in claiming and managing areas of land, while the Authority assists in the protection of particular places of religious significance, mostly of much smaller size. However, the Authority’s charter extends across the entire Northern Territory, while the NLC is restricted to unalienated Crown land with respect to its land claim function, and Aboriginal land for its other functions (subject to an important exception to be mentioned later). The NLC must have regard to the wishes of those identified as traditional owners, while the Authority consults with the site custodians, again a generally more limited group. The NLC must consult regarding the full range of land use purposes bearing upon Aboriginal land, while the Authority specifically manages requests for site registration from the custodians, and requests for site access from others. In summary, then, the laws under which these two authorities operate allow the registration of indigenous land interests of different extent and according to different criteria, and require each organisation to seek instructions from different categories of Aboriginal authority. These differences underlay the divergent and sometimes competing roles of the ASSPA and the NLC with respect to Coronation Hill.