Australia’s Indigenous traditional owners will closely observe what promises to be the glacial progress of a quest by a north-east Arnhem Land clan for commonwealth compensation for the loss of culture and income from half a century of bauxite mining.
The Gumatj clan of the Yolngu people have received statutory mining royalties since 1978 and are now recipients, via a future fund, of $700m in incremental payments stretching out to 2053. But the Gumatj elder Galarrwuy Yunupingu is now also seeking commonwealth compensation for the cultural impact of mining on his land and people by Nabalco and Rio Tinto.
Complicated legal precedents will be examined. And non-Indigenous Australians, to understand what is at stake, will need to grapple with equally complex, challenging notions of Indigenous and spiritual connections to land, sea and sky – to explore the meanings of “country” in First Nations sensibility.
Yunupingu enjoys a sometimes controversial reputation as a canny negotiator for his people. This week his lawyers launched a federal court case that will challenge interpretations of the constitution and the 1968 parliamentary act that granted Nabalco its mining rights on Gove Peninsula, part of north-east Arnhem Land and home to the Yolngu for at least 60,000 years.
The constitution stipulates that land can be taken “on just terms” – the heart of the challenge in question, because the Gumatj insist the terms have been anything but that, given the levels of cultural destruction wrought on them by mining and the financial loss they have endured through the appropriation of their mineral rights.
The challenge over cultural loss is inspired by a high court precedent set earlier this year.
The court granted a small number of Indigenous custodians some $2.5m for the extinguishment of their non-exclusive native title rights – due to dozens of acts by the Northern Territory government between 1980 and 1996 – over 1.26sq km of the town of Timber Creek. It included compensation for loss of culture.
The Gumatj case will seek commonwealth compensation for the loss of native title over minerals exploited by Nabalco and its successor Rio Tinto, and for the destruction of key cultural sites. Nabalco began bauxite mining on Yolngu country in 1969 in defiance of the traditional owners, who used the Yirrkala bark petitions in 1963 to assert their long sovereignty over the land.
But the mining leases were granted and excised without deference to the traditional owners or the petitions, which were effectively ignored. Today, however, in light of the high court’s 1992 Mabo decision, which dispelled the notion of “terra nullius” – the basis on which the government granted mining leases on Indigenous land “on just terms” – the petitions now hang with some reverence in Parliament House.
Yolngu associated with the new legal action – which could take many years and will almost certainly end up in the high court – say Indigenous traditional owners across the continent will parse the case closely for implications about the destruction of their own traditional lands and loss of culture by mining and other industry.
The outcome could potentially give rise to hundreds of similar claims for compensation in the billions of dollars.
This week the Noongar people of Western Australia filed a compensation claim of more than $290bn in the federal court for “spiritual damage” caused by loss of their traditional land under the same Timber Creek precedent.
A source associated with the Gumatj action said: “There are big questions at stake – how do you compensate for the loss and destruction of traditional culture and how does a whitefella court ultimately apportion a monetary cost to that?”
Country is memory laid down by the lives of one’s family, by the events of one’s childhood, by the journeys of one’s ancestors and by the conflicts of a changing worldJohn Carty
The federal government executive blithely rejected the Yirrkala bark petitions in the 1960s, blind to any understanding that so much of Yolngu culture and belief is reflected in the traditional, ongoing practice of bark art painting.
The Yolngu have rich and long connections with people of other continents, including the Macassans of Suluwesi, with whom they traded fishing rights for beche de mere (sea cucumber) in exchange for iron tools, tobacco, gin and other goods. An Asian trade route for the sea slugs extended as far China. The Yolngu intermarried extensively with the Macassans and they were introduced to Islam centuries before Christianity made its way to Arnhem Land through the missionaries in the early 1930s.
Yolngu spirituality encompasses belief in an animated earth, sea and sky that features totemic creationist animals, as well as elements of Islam and Christianity.
A few years ago I asked an old and wise Yolngu woman who has since died to explain how the Christian God fitted into traditional belief. She explained: “God was there in the beginning and we always believed in the spirit. God the creator was always there and he is there in the songlines and in the stories of the land. And he has been reintroduced to us again through the missions. It’s not complicated for us.”
In Yolngu (and other Indigenous) belief, the stories of the coming into being of the land and the water, and of the people, and of the power of the creationist animals, are in the songlines that snake across the land and sea, and also reach into the sky. Story is incarnate in the land itself. This is where mining (and other industries) that alter or destroy the land without permission of traditional owners and in contravention of Native Title, can potentially give rise to compensation claims.
Traditional Yolngu belief is reflected in the timeless traditions of bark painting in Arnhem Land. The paintings were always produced for ceremonial and prosaic domestic purposes. When white anthropologists first made their way to Arnhem Land in the 1920s the artworks became the subject of feverish, competitive and often destructive ethnological inquiry. But since the 1950s, when anthropologists – and urban collectors – began to appreciate the aesthetic value and immense beauty of the bark paintings, there has been a burgeoning international market.
In considering the impact of cultural loss associated with mining and other industries, courts will need to contemplate the multi-layered meaning of land and traditional “country” to traditional owners. This is not always a simple concept for non-Indigenous people who have not been raised with notions of country that are intrinsic to spiritual belief.
A few years ago the anthropologist John Carty, who has spent decades talking to traditional Indigenous owners about the meaning of their land, wrote the most succinct, enlightening explanation of “country” I have read.
He wrote: “I’m talking about country as a concept that gets thrown around every day in art and museum circles but rarely used or interrogated with the seriousness that it deserves. I’m not talking about country in political terms, of nation state nor aesthetic country in terms of a neutral landscape. Country, which in the translation from various Aboriginal words such as Ngurra into English has a depth of meaning far exceeding its common usage. It is a political and aesthetic phenomenon but is so much more. Country is a kind of memory, it is memory laid down by the lives of one’s family, by the events of one’s childhood, by the journeys of one’s ancestors and by the tensions and conflicts of a changing world. Historical, mythological, familial and personal narratives are all layered, sedimented in places where they happened, they are not separated out into different moments in time or categories of reality.”
In their recent book Song Spirals, the Gay’wu Group of Women from north-east Arnhem Land, wrote: “To talk of country means not just land, but also the waters, the people, the winds, animals, plants, stories, songs and feelings, everything that becomes together to make up place. Country is alive for us, it cares for us, communicates with us, and we are part of it.”
The big question, as Indigenous traditional owners across the continent follow closely the Gumatj case over many years, will be: how do you apportion a monetary value to all of that?