The evidence shows that the practice of damming the river by the natives for their own purposes had been going on for many years; that it was, in fact, an “old fellow, black fellow” custom, or, to put it in legal terms, had been in existence from time immemorial.

This brief excerpt from the decision of Justice Wells of the Northern Territory Supreme Court in the 1946 case of Thomas Allison Holt v Harold Eric Thonemann & Harold Stanage Giles (“the Roper River dams case”) lay unreported and ignored in the official records of the court until recovered by researchers in 2012 during research into Aboriginal knowledge and use of water in the country of the Mangarrayi people of the upper reaches of the Roper River in the NT.

Justice Wells’ choice of the words “from time immemorial” was deliberate and drew on that thread of the common law that gives authority to custom as law and would later be recognised as a source of native title rights. The Roper River Dams case concerned the customary practice of the local Mangarrayi Aboriginal owners of the land from which the vast Elsey Station was carved.

The plaintiff Holt was the leaseholder of the downstream Roper Valley station, and defendants Thonemann and Giles the owner and manager respectively of the Elsey Station leasehold straddling the headwaters of the Roper River near Mataranka.

Justice Wells summed up Holt’s claims against Thonemann and Giles in the first paragraph of his judgement.

This is an application for an injunction to restrain the defendants from obstructing or continuing [to] obstruct the natural flow of the Roper River … in such [a way] to infringe the rights of the plaintiff as riparian owner; and for an award of damages for losses of cattle …

As the Australian Law Reform Commission noted in its landmark inquiry into Aboriginal customary laws in 1986, the common law has always:

… allowed that local customs which meet its criteria for recognition could be applied as law. No clear limits seem to have been set to the customs that could be recognised in this way … Briefly, the common law requires that the custom not be inconsistent with any statute or fundamental principle of common law, that it have existed ‘from time immemorial’, that it have been exercised continuously and peaceably, as of right, that it should be sufficiently certain both as to its content and its beneficiaries, and that it be regarded as ‘reasonable’ by the court

In 1971 Justice Blackburn delivered his judgment in Milurrpum’s case, now recognized as the first native title rights litigation. Justice Blackburn dismissed the Yolngu plaintiff’s claim, but did find as a matter of fact the Yolngu of north-east Arnhem land had:

… a subtle and elaborate system of social rules and customs which was highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of person whim or influence. If ever a system could be called ‘a government of law, and not of men’, it is that shown in the evidence before me.

As noted in the first part of this series, while relationships between non-Aboriginal settlers and Aboriginal people in the pastoral lands of the Northern Territory were fraught with habituated violence and exploitation, relationships between pastoralists—particularly the continuing feuds between neighboring stations like the Roper Valley and Elsey stations, where issues manipulation of water flow had been the source of tension since the 1920s—often came close to open warfare.

Jane Gleeson observed in her 1985 monograph that explored the history of white settlement at Mataranka that civil actions such as Holt’s suit against his neighbours were seen as a last resort in the region.

The first formal complaint was made by [the then owner] J. P. Rogers of Roper Valley in 1926, and Rogers continued to register annual complaints after Harold Giles was appointed manager of Elsey in 1927. In 1934, Roper Valley was sold to a partnership of T. Allison Holt and Roy Chisholm who, after extensive and numerous reports on the dam by police, surveyors, engineers, and even the army, took the issue to court in 1946 … Mary Peterson of Mataranka said that Elsey and Roper Valley were ‘always fighting over anything’, and that ‘Mannion [the Mataranka polceman in the 1930s] had much bigger problems with cattle stations than with Aborigines.

There are no records pointing to good relations between pastoralists though presumably they existed. Available evidence points always to conflict.

Thonemann, mindful perhaps that the feuding with his downstream neighbours may end up in court–and also aware of the import of the phrase “from time immemorial”–had in 1937 conducted a long interview with Dick Badbock, a senior Mangarrayi man who, as confirmed by anthropological research conducted by linguist and anthropologist Francesca Merlan in the 1980s, was “an appropriate successor and primary spokesperson for the Red Lily [lagoon] area.”

As researchers Sue Jackson and Marcus Barber note in their 2012 report into the use of and values the Mangarrayi people accord to water, Thonemann was a man well ahead of his time:

… it is noteworthy that Thonemann frames the issue of indigenous river diversion or regulation (damming) as a water right, many decades before Indigenous legal rights to inland waters were recognized by Australian government.

Notwithstanding Thonemann & Giles’ attempts to run a defence using the Mangarrayi’s customary use of water in the Roper River, Thomas Holt was wholly successful in his suit, with Justice Wells ordering that:

… the defendants forthwith remove all artificial obstructions from the main channel of the Roper River … and from all other channels … they be restrained from erecting or causing to be erected … any dams, weirs or obstructions of any sort whatsoever … and pay to the plaintiff the sum of £350 as damages.

Despite this unequivocal injunction from the court, following the carving up of Elsey Station after World War II, Les MacFarlane and his family–from 1951 the lessee of the newly-excised Moroak Station downstream from Elsey Station–readily adopted the Mangarrayi techniques for water diversion along the Roper River.

In their 2012 paper Jackson and Barber interviewed Les MacFarlane’s son Hamish, who told them that a “significant number” of stockmen—not just Mangarrayi but also members of the Alawa, Yangman and Ritharangu language groups—moved from Elsey Station to Moroak and continued their water management practices there from the time the MacFarlane’s took up Moroak through to the late 1980s.

Hamish MacFarlane told Jackson and Barber that:

Aboriginal people, to our knowledge from the fifties onwards, had always blocked and maintained flows into lagoons … We still did it because we had beliefs, same as they did … that we have responsibilities to land … and sometimes if you have to do the wrong thing to maintain your principles and responsibilities, then that’s what you do.

I will return to the MacFarlane family and their relationships to Aboriginal claims for control of their land and water in future instalments of this series.

In July 1991 the Mangarrayi made application for ownership Elsey Station under the Aboriginal Land Rights (Northern Territory) Act 1976. As reported by Lorena Allam in 1999 for the ABC’s Background Briefing program, reaction against the claim from local whitefellas and the NT government was wholly predictable.

Once the news got out, Territory Parliament was in an uproar. The government said the new owners would ruin Elsey as a cattle station and cause untold damage to the Territory economy. Aborigines were taking over the land at a terrifying rate, a sure sign of the imminent death of the cattle industry.

Local opposition wasn’t the only matter of concern to the Mangarrayi in their long wait for their land, and the Commonwealth government’s approach to the hardback of their land to the Mangarrayi was dilatory. Here is Alan Ramsey in the Sydney Morning Herald in April 1999.

The Elsey claim was listed for hearing on September 27, 1993. Oral evidence was completed on February 3, 1994. Written submissions for and against continued until April 13, 1995… Judge Gray’s last act as Aboriginal Land Commissioner was to submit his 125-page report on the Elsey claim to John Howard’s Aboriginal Affairs Minister, John Herron, on November 28, 1997.

Elsey Station was finally handed back to the Mangarrayi traditional owners three years later in March 2000. The Mangarrayi had won their long struggle for the return of their land–but not their water.

That will be the subject of coming installments of this series.

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Image: John Herron and John Howard sitting on the Elsey land claim no. 132, and burning the 1976 Northern Territory Land Rights Act, watched by Ian Viner and a group of Aboriginals. Pen and ink drawing by Ward O’Neill April, 1999. National Library of Australia.

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This is the second of a series of articles on the battles for control of land and water along the Northern Territory’s Roper River from the time of first incursion by non-Aboriginal settlers to the current day. This second part examines the period from then end of World War II through to the early nineteen-nineties. You can see the first part examining the period from 1870 through to just after World War II here.

Further recommended reading

Whose ‘Never Never’? Produced by Lorena Allam. Background Briefing, ABC Radio National, Sunday 12 September  1999.

‘Making People Quiet’ in the Pastoral North: Reminiscences of Elsey Station. Francesca Merlan. Aboriginal History, 2: 70. ANU 1978.

Blocks, runs and claims : Mataranka and the Daly, two studies in the history of settlement in the Northern Territory, Jane Gleeson. North Australian Research Unit, 1985 in Mataranka and the Daly, Two Studies of the history of settlement in the Northern Territory.

Indigenous Water Management and Water Planning in the Upper Roper River, Northern Territory: History and Implications for Contemporary Water Planning. Marcus Barber and Sue Jackson, 2012. Report to the National Water Commission and the Department of Sustainability, Environment, Water, Population and Communities.

Remembering ‘the blackfellows’ dam’: Australian Aboriginal water management and settler colonial riparian law in the upper Roper River, Northern Territory. Marcus Barber and Sue Jackson, 2015. In Settler Colonial Studies, Routledge.

Australian Law Reform Commission. Recognition of Aboriginal Customary Laws (ALRC Report 31). 1986. Australian Government.

‘Nigger Hunts’ in the never never. The battles for land and water on the Roper River, 1870-1945. The Northern Myth, 13 January 2016.