2016 is the 40th anniversary of the passage into law of the Aboriginal Land Rights (Northern Territory) Act. This article looks back at the tough years in Aboriginal affairs leading up to that time. This article was first published in the April 2016 edition of Land Rights News, produced by the Northern Land Council.
The referendum of May 1967 was a turning point in the struggle for land rights, and a key factor in shifts in political attitudes towards legislative solutions to the issue of land rights. However there has been a long tradition of hostility to any idea of Aboriginal land rights from politicians—particularly the Country Party (now National Party), willingly aided and abetted by public servants from Commonwealth departments such as Interior. In fact, the first head of the Commonwealth Department of Aboriginal Affairs would complain: “… the Northern Territory has been established as a virtual Country Party State”.
Through their various changes of names, the federal National Party and the Country Liberals in the Northern Territory have consistently opposed land rights; indeed, they’ve consistently disparaged the very notion of land rights.
Politicians have not been the only active opponents of land rights in the Northern Territory. Until the election of Gough Whitlam in 1972, the Department of the Interior and previously the Department of Territories, which for decades lorded over the Northern Territory as if it was their own fiefdom, had been the permanent preserve of Australian Country Party/National Country Party Ministers.
The Australian Country Party rebadged as the National Country Party in 1975; in 1982 it morphed into the National Party.
The culture of the Department of the Interior was such that it readily and loyally did the bidding of its ministers. Its bureaucrats and Ministers, especially when it came to any suggestion of progressive administration of Aboriginal affairs in the NT, remained wedded to old policies of assimilation even long after they had been officially repudiated.
The tensions between progressive and reactionary forces flared most brightly over the decade preceding the enactment of the Aboriginal Land Rights (Northern) Territory Act 1976. They were at play immediately after Prime Minister Harold Holt, only weeks before he drowned on 17 December 1967, announced in Parliament that he would establish the Council for Aboriginal Affairs (CAA) to advise him on new directions of Commonwealth policies.
One effect of the historic Referendum of May 1967 was to empower the Commonwealth to legislate for Aboriginal people across the country. In the spirit of the Referendum, Holt established the CAA and an Office of Aboriginal Affairs, headed by a career public servant Barrie Dexter, within his own department.
Hopes that Australia’s polices affecting Aboriginal people would improve died with Holt; his successor, Prime Minister John Gorton, would demonstrate scant commitment to any advance of Aboriginal policies, for fear of alienating Country Party Coalition colleagues because of his own precarious hold on the prime minisntership.
The Minister for Territories whom Gorton inherited from Holt was Charles Barnes (Country Party), a former horse trainer from Queensland who had held the portfolio since 1963; the permanent head of the Department of Territories (its responsibilities for the Northern Territory would mostly be transferred to the Department of the Interior in 1968) was a hardened warhorse, Warwick Smith, who went on to head up Interior.
The animus between the CAA and the Department of Territories, especially relating to land rights in the Northern Territory, was evident from the time the CAA was established.
From its earliest considerations, the CAA was concerned about the impact on Aboriginal people at Yirrkala of a lease of Reserve land to Nabalco, (North Australian Bauxite and Alumina Company), which was set up in 1964 to exploit the huge bauxite deposits on the Gove Peninsula.
Further, the CAA was apprehensive about amendments to the Crown Lands Ordinance before the Northern Territory Legislative Council, a partly-elected body which governed the Territory with limited powers before self-government on 1 July 1978.
The Crown Lands amendments would have enabled Aboriginal people to obtain leases of land on Reserves for pastoral, agricultural and miscellaneous purposes, and, after seven years, sell the leases to non-Aboriginal people.
The CAA viewed the legislation as “merely a device to break up the reserves and give non-Aboriginal interests access to their resources”.
Writing to Minister Barnes on 12 February 1968, the Chairman of the CAA, Dr H C (‘Nugget’) Coombs, asked for the amending legislation to be deferred, because it would radically change the character of the Reserves.
Coombs’ letter led to a meeting between the CAA and Minister Barnes on 22 February 1968. “The meeting was a curious one,” CAA member Barrie Dexter recalls in his book, Pandora’s Box.
“Mr Barnes seemed to consider that the Council was overstepping its responsibilities in wanting to consider matters that he saw as coming within the purview of his Department.” At their meeting, Barnes warned about the dangers of an apartheid policy (a Country Party refrain), and his departmental officers “seemed to evince a hostility towards us that astonished us”.
Only many months later did the three CAA members discover that on the very day they were meeting Minister Barnes and his officers, the Commonwealth granted Nabalco a renewable 42-year mineral lease at Gove.
“We speculated among ourselves that the action had been taken in such secrecy and haste in order to pre-empt any consideration by the Council in the event that the composition of Mr Gorton’s government, which he was then selecting and was sworn in six days later, might give us a base from which to play a useful role, including reconsideration of the terms of the draft Nabalco agreement,” Dexter has written.
“… this affair was a foretaste of the difficulties and, we often believed, the duplicity we were to encounter in our efforts to deal with Northern Territory matters over the next five years”.
Dexter and his fellow CAA members need not have bothered speculating that Prime Minister Gorton’s new Cabinet might have been more sympathetic to their causes.
Gorton moved responsibility for most Northern Territory matters to the Department of the Interior and re-appointed Peter Nixon its minister. Nixon was a grazier from Victoria, and, of course, a Country Party member. He would remain a relentless and ruthless enemy of the CAA.
Gorton also appointed a Minister-in-Charge of Aboriginal Affairs, Mr William Wentworth, putting the CAA and the Office for Aboriginal Affairs at arm’s length from the Prime Minister himself – a clear abrogation of the relationship which Prime Minister Holt had established, but never lived to put into practice.
Wentworth may have been well-intentioned, and professedly sympathetic to Aboriginal needs, but he was a muddled administrator and no match for Nixon.
Evidence of Nixon’s superiority litters the pages of Pandora’s Box. One egregious example of his contempt for any advice from Wentworth’s quarter was the award, without reference to the CAA, of extended mining leases to Nabalco in May 1969.
Many months later, belatedly aware of the extensions, Wentworth protested to Nixon in February 1970, but was brushed off.
Nixon’s high-handed dismissal led Dexter to write to Wentworth: “The council has concluded that there was a definite – and successful – attempt to conceal from it, and hence from you, the intention to grant the leases (to Nabalco) until it was too late to do anything about it.”
Dexter writes: “ The Minister for the Interior (Nixon) and his Department went on their merry way making unilateral decisions involving very important issues of policy without consulting or even informing us, confident that the Minister-in-Charge (Wentworth) was a paper tiger and the Council therefore impotent”.
CAA member Professor Bill Stanner would write in July 1972: ““Mr Wentworth frequently identified his worst opposition as coming from the Country Party … he accepted the risk to the Coalition as more important than his own ambitions.”
Dexter, in Pandora’s Box, writes: “… we soon came to understand that what we were up against in the Northern Territory was, in effect, a Coalition between the Country Party and the administration, the latter comprising the Department of the Interior and its Northern Territory Administration, and that this Coalition was inherently hostile to our approach, even to our existence”.
Commonwealth bureaucrats in Canberra and Darwin went out of their way to nobble the work of the CAA. In conversation with Barrie Dexter, Mr Harry Giese, who headed the Northern Territory Administration’s Welfare Branch in Darwin, “condemned outright ‘southern bludgers, stirrers and do-gooders’ going to the Territory and complicating his task.”
“… it was made plain to us by Interior that visits by ourselves or our minions to the Northern Territory were regarded as unnecessary and improper, although tolerable if made in company with Interior or NT Administration officers,” Dexter writes.
“As time went by we found it increasingly difficult to obtain from Interior or the Welfare Branch information to which we believed we had a perfect right, and that was essential to us for the proper performance of our functions. More and more our enquiries and memoranda remained unanswered, or the answers were inadequate or greatly delayed.
But it was on the question of land rights in the Northern Territory that the CAA and Interior remained implacably at loggerheads.
In its first draft Cabinet submission early in 1968, the CAA had recommended the establishment of a court or tribunal to determine land claims by Aboriginal communities “on the grounds of traditional occupancy”.
“In our earliest days as a Council … we were greatly impressed by the attitudes of the tradition-oriented Aborigines we consulted. They clearly desired increased scope to retain and develop at least elements of their traditional social structure, way of life and beliefs. It was evident to us that this could be so only if they were assured continuing access to and rights over their traditional land – in effect land rights”, Dexter recalls in his book.
“It was in large part this that made us determined to go on fighting for land rights. Our first fight was initially concentrated inevitably in the Northern Territory, for the majority of tradition-oriented Aborigines were located there; it was the Commonwealth’s own back yard, and hence an area where the Commonwealth could – and should – set an example; there were numerous developments there that filled us with concern for the future of these Aborigines and their reserves; and we had been treated by the authorities to a display of dishonesty – over the signature of the Nabalco agreement on the very day we thought we were discussing it, which left us with no confidence in the probity of those responsible for administering of the Territory”.
But the CAA was tenacious in the conduct of its cause. In its first year, it was able to head off successfully the attempt by the Northern Territory’s Legislative Council to transfer leases on Reserve land to a non-Aboriginal person, after seven years. “We had exposed so much duplicity,” Dexter recalls.
It was able also to temper the conduct of the Commonwealth of its defence of the Gove land rights case, which Professor Frank Brennan SJ writes about on pages 12 to 15 of the April 2016 edition of Land Rights News.
Off their own bat, and with the support of the mission, in late 1968 the Aboriginal people of Yirrkala launched legal action by way of a writ against Nabalco and the Commonwealth government, seeking title to, possession of, and damages for use of, the land leased to Nabalco, and an injunction against Nabalco’s proceeding with bauxite mining on the Gove Peninsula.
In spite of a Commonwealth commitment to contribute to the legal costs of the Yirrkala people, Dexter and his fellow CAA members concluded that, in the run-up to the hearing in the Supreme Court of the Northern Territory, the Commonwealth Departments of Attorney General and Interior “were acting in bad faith”.
Finally, and at the behest of the CAA, Minister Nixon proclaimed that “in defending the action the Government was not acting in a spirit of opposition to the Aborigines, but was seeking a determination of the legal issues that had been raised. The Commonwealth case would be conducted on this basis.”
The Commonwealth’s first round of behaviour in chambers before Justice Richard Blackburn gave the lie to that pledge. Having attended the hearing in Darwin, CAA member Professor Bill Stanner wrote privately to Minister Wentworth on 1 April 1969: “I would judge, from the Aborigines’ point of view, that it must have been very hard to avoid the conclusion that the Government was standing up for the company (Nabalco) against them.”
The CAA’s intervention had a positive result: Solicitor-General Bob Ellicott (later to be Attorney General when the Land Rights Act was passed by the Fraser Government in 1976) himself took carriage of the case when the substantive hearing began in May 1970.
“There was a distinct improvement in the Crown’s handling of the case, which was much less confrontational and adversarial than at the preliminary hearing”, Dexter records.
Justice Blackburn handed down his decision on the Gove land rights case on 27 April 1971: the Aborigines at Yirrkala had no legal basis for their claim to land at Gove Peninsula.
Seven weeks earlier, a new Prime Minister had been installed: after a tied vote of the Liberal Party caucus, Gorton had chosen to resign and Bill McMahon was elected.
CAA members took some heart from McMahon’s statement to Parliament on 29 April about the outcome of the Gove case: “… the government has been particularly anxious to divorce the legal aspect from the moral problem and the problems associated with justice and reasonable treatment of Australian Aborigines”.
Within hours, CAA Chairman Nugget Coombs had drafted a Cabinet submission, initialed by the Prime Minister, the Minister-in-Charge of Aboriginal Affairs, Bill Wentworth and the new Minister for the Interior, Ralph Hunt, which set a course “to give the protection of Commonwealth legislation to lands reserved for the use and benefit of Aborigines, and within such lands both to ensure to continuing groups of Aborigines the use of land for ceremonial, religious and recreational purposes, and to make available on appropriate tenure to individual Aborigines and groups of Aborigines land necessary for the conduct of commercial purposes; second, to set up an Aboriginal Land Fund … to acquire land coming on the market for Aboriginal groups …”
But, before it reached Cabinet that evening, Hunt, a Country Party grazier from New South Wales, had withdrawn his agreement.
And so began a renewed counter-offensive by Interior against any prospect of the government’s establishing a form of Aboriginal land tenure based on traditional association.
By the end of May 1971, there was even less chance of that achievement. Prime Minister McMahon replaced Wentworth with Peter Howson, an English-born and educated, Liberal Party MP from Victoria.
McMahon gave him the portfolio of Environment, Aborigines and the Arts, and as he left the Prime Minister’s office, a colleague asked him what he had got. According to journalist Mungo MacCallum, Howson snarled back, “The little bastard gave me trees, boongs and poofters.”
Howson would sideline the CAA and the Office of Aboriginal Affairs, accept cuts to their budgets, and yield to the Department of Interior on matters affecting the Northern Territory. Professor Stanner put it this way in a note on 19 July 1971: “The situation with which the Council will have to deal over the remaining life of the Government promises to be one in which policy towards the Aborigines … will virtually be Country Party Aboriginal policy”.
The next day, Dexter lamented similarly in a note to Dr Coombs and Professor Stanner, his two colleagues on the CAA: “… the Northern Territory has been established as a virtual Country Party State and our own scope for effective activity there has been severely reduced. The problem is intractable …there is little or no possibility of the situation improving this side of the elections, if then.”
The McMahon government would finally turn its back on any prospect of real land rights in the Northern Territory in a statement by the Prime Minister on Australia Day 1972. He proposed a new form of lease on Aboriginal Reserves, for economic and social purposes, “rather than attempt simply to translate the Aboriginal affinity with the land into some form of legal right under the Australian system, such as that claimed before the (Blackburn) decision of the Supreme Court of the Northern Territory.”
McMahon’s statement immediately provoked Aboriginal protesters to establish the Tent Embassy on the lawns outside Parliament House in Canberra.
Promise of real land rights came with Labor leader Gough Whitlam’s policy speech on 13 November 1972: “We will legislate to give Aborigines land rights – not just because their case is beyond argument, but because all of us as Australians are diminished while the Aborigines are denied their rightful place in this nation.
“We will establish once and for all Aborigines’ rights to land and insist that whatever the law of George III says, a tribe and a race with an identity of centuries – millennia – is as much entitled to our land as even a proprietary company.”
Soon after winning government on 2 December 1972, Whitlam abolished the Department of the Interior and created a Department of the Northern Territory which seemingly inherited the old guard culture of Interior, and would remain – as Ian Viner writes on pages 6 and 7 of the April 2016 edition of Land Rights News – intransigently opposed to land rights in its domain.
Whitlam also established the first stand-alone Department of Aboriginal Affairs, headed by Barrie Dexter, and appointed Justice Edward Woodward as a Commissioner to advise how land rights should be implemented in the Northern Territory.
One week after the legislation resulting from the lengthy Woodward inquiry had been introduced, the Whitlam government was dismissed by the Governor-General on 11 November 1975.
Liberal Prime Minister Malcolm Fraser, elected on 13 December 1975, displayed an early hostility to the Department of Aboriginal Affairs, but stayed true to his party’s pre-election commitment to introduce land rights.
Fraser’s biographer, Margaret Simons, has written that negotiating new legislation faced “bitter opposition of the Country Liberal Party Territory government, the Minister for the Northern Territory Evan Adermann (Country Party, a dairy farmer from Kingaroy, Queensland) and the federal Department of the Northern Territory.”
Fraser’s first Minister for Aboriginal Affairs, Ian Viner, recalls on pages 6 & 7 of the April 2016 edition of Land Rights News, the struggle to introduce the Aboriginal Land Rights (Northern) Territory Act 1976.
Barrie Dexter recalls that the Department of the Northern Territory wanted responsibility for the detailed legislation to rest with the Northern Territory. “This, of course, was totally unacceptable to the Council (for Aboriginal Affairs) and Department (of Aboriginal Affairs), for we knew there could be no effective legislation if the (NT) Legislative Assembly were responsible”.
Barrie Dexter recalls that the Country Liberal Party, which in 1976 held all but two seats in the 20-member NT Legislative Assembly, “resorted at an early stage to what seemed to Mr Viner and me to be rough tactics”.
CLP Leader Dr Goff Letts wrote to Mr Viner on 6 February 1976, “with regret and only after a great deal of consideration”, that the pursuit of land rights legislation would cause: “loss of confidence in the move towards ‘Statehood’; creation of deep internal divisions within our Party in the Territory; a serious rift between us and our Federal colleagues; difficulty in attracting and holding capable people to serve on the right side of politics here; and, wider problems in the Territory community in the future that our Government will have to answer for and I for one will not be prepared to live with.”
Dr Letts was even more agitated when he telegrammed Prime Minister Fraser and Deputy Prime Minister Doug Anthony on 19 March: “The government appears for have failed to appreciate the depth of concern in the CLP and the whole NT community on this major policy matter … designed to satisfy a minority but very vocal view.”
Gotts threatened to resign “from all associations with the Country and Liberal parties at all levels”, unless his views on the legislation were heard and taken into account.
In reply, Prime Minister Fraser gave Letts short shrift.
The mining industry also maintained a strong campaign against the proposed land rights legislation, and Dexter records that in late 1976 “stories started to circulate that the Prime Minister’s resolution to legislate on land rights was weakening in the face of substantial opposition from within the governing Coalition, the mining industry and other areas.
“According to whispers around Parliament House, succor came in the form of insistence by a group of backbenchers led by (Senator) Fred Chaney, that the legislation proceed, or they would cross the floor. The Prime Minister was said to have responded positively to this unexpected display of support for the course he had previously been pursuing.”
Prime Minister Fraser held to his course, and the Land Rights Act finally passed through Parliament on 14 December 1976, and received Vice-Regal assent on 16 December.
In the Northern Territory, the Country Liberal Party government would use every ruse within its power – and beyond – to thwart claims under the Act, and would spend tens of millions of dollars in legal fees to sustain its relentless opposition to every claim that it could challenge.
A search of Cabinet records reveals that only weeks after self-government in 1978, the CLP. Cabinet discussed vesting unalienated Crown lands in the Territory Development Corporation – a ploy to put the land beyond the reach of claim under the Land Rights Act.
Exploiting fears about land rights helped to keep the CLP in power for successive elections after self-government in 1978. The pollster Mark Textor admitted to the Sydney Morning Herald two years ago “things I deeply regret doing now” – particularly the way he advised the CLP to whip up fear about land rights. “At the end of the day, you just say, ‘Well, I didn’t need to do that to win.’”
Forty years after its enactment, the CLP still wants to wrest control of the Land Rights Act from the Commonwealth. Only last year, the Northern Territory Attorney General John Elferink yet again made a pitch to have the act “repatriated”(as if it had ever been with the NT).
Land rights, he said, had become a “wall of imprisonment” blocking Aborigines from participating in northern development.
The last words are left to Federal Indigenous Affairs Minister Nigel Scullion. Elected in October 2001 as a CLP Senator for the Northern Territory, he said in his maiden speech that the “Aboriginal land act (sic) is an ill-considered piece of legislation that became law in the Northern Territory in 1976 because Territorians had no choice in the matter.
“Whilst I am sure that the social debris from the collision between a Stone Age culture and modern times is not going to be cleaned up through implementing just one or two ideas, I suspect that the special Aboriginal freehold title issued to indigenous Territorians under the current legislation is a sad comparison with the real freehold title enjoyed by other Australians. The nature of the tenure of this land is a principal impediment to development and the economic self-determination that will surely follow.”
A transcript of his maiden speech continues to grace Senator Scullion’s personal website.
Pandora’s Box is available from the publisher, Keeaira Press – www.kpress.com.au
Photo: Bob Secretary, Fred Waters, Bill Parry and Keith Chulung protesting on top of an iron ore stack, Fort Hill, Darwin, July 1972. Courtesy Northern Territory Library/WB Day Collection