The Bark Petition: An expression of legal ownership

Yirrkala, in north-east Arnhem land, is home to the famous 1963 “Bark Petition”. This was a protest action by the Yolngu people that led to the first native title litigation in Australia’s history.

I was there last month for the anniversary of that stage of their landmark struggle.

The petition was an attempt by the Yolngu people to force legal recognition of their land ownership rights.

Of course, their legal system had recognised their rights since time immemorial. But it became apparent to the landowners that Balanda — non-Aboriginal people — didn’t respect the law of the land.

In March 1963, the government had sold part of the Yolngu estate to Nabalco, a bauxite mining company.

The Bark Petition (a petition framed by painted bark) was presented to federal parliament in August that year.

It was, for the Yolngu, a diplomatic move.

It was an attempt to communicate, in legal terms, sovereign to sovereign.

It didn’t work, of course. Even many on the left talk about the document as an artistic, symbolic “stunt”.

Certainly, the federal government didn’t see that what the Yolngu were sharing was a sacred piece of high law that was never meant to be shared — outlining the property ownership laws for this area.

The Yolngu leaders even made it Balanda-friendly: they wrote out aspects of their law in English, under the Gumatj. To no avail.

The Yolngu went on to take Nabalco to the Supreme Court of the Northern Territory in 1968 to once again try to prove their legal claim to the land.

Perhaps it had dawned on them that they would have to play by the now-dominant Balanda law, having failed in their attempt to use their own legal instruments to protect their rights.

The court challenge failed, although in a confidential memo to the government and opposition, Justice Richard Blackburn noted that some sort of systematic recognition of Aboriginal land rights would be “morally right and socially expedient”.

The court case led to the establishment of the Woodward Royal Commission. This, in turn, eventually led to the 1976 Aboriginal Land Rights Act, diluted though it was by the Malcolm Fraser Liberal government.

Today, multinational mining corporation Rio Tinto Alcan is all over north-east Arnhem Land.
It’s almost part of the cultural landscape now, as much as the physical landscape.

Rio is a major sponsor of the annual Garma Festival of traditional culture. Evidently, it is mining much more than Yolngu land, but also putting its logo on their culture in their annual opportunity to share it with the world.

In May, there was much media, government and corporate brouhaha over an agreement signed by Rio Tinto Alcan and traditional owners, ensuring the continuation of local bauxite mines and alumina refineries.

It took this long for traditional owners to even be involved in any sort of discussion about whether or not mining can take place on their lands, decades after the mining companies moved in.

It’s hard to know how easy it would have been for them to say “no” when mining is so entrenched in the local economy and service provision: would saying “no” have really made Rio go away, close down the Nhulunbuy township, the nearby mines, and just leave?

Or would it simply have meant the traditional owners and families wouldn’t have had access to the “range of financial, contractual, asset and employment benefits for Aboriginal traditional owners” that Aboriginal affairs minister Jenny Macklin crowed so loudly about?

Certainly not everybody celebrated the agreement. Previously recognised traditional owners from the area were not properly consulted and are considering legal action. http://blog.whywarriors.com.au/2011/dhurili-nation-challenges-lease-agreement-in-court/)

For many of the older Yolngu, the scars remain from being burnt when they took the calculated risk of sharing such important legal documents, sacred information, with the Balanda world, only to have it misunderstood and dismissed.

This happens again and again.

From the point of view of whichever landowning clan takes part, they perform a legal action representing an important aspect of their law — which has remained strong and served its purpose harmoniously for thousands of years.

Because they understand Balanda society is not a very oral one, and Balanda have short memories, they back up their important ceremony with tangible evidence, represented in a painting or some other object depicting the given aspect of law.

From the Balanda perspective, in the interests of “reconciliation” and maybe a bit of cultural colour, ceremonies are organised and hosted at parliament houses, some nice Aboriginal songs and dances are performed, a painting is handed over and the government can tick some boxes about acknowledging cultural heritage.

The Balanda go home satisfied, if not a bit bored, and the Yolngu go home feeling empty and ashamed, as they realise the Balanda thought they were watching a nice performance.

They are left feeling powerless.

I think about this every time I go to an art gallery and go to the “Aboriginal culture” section. The paintings are invariably described as representing “Dreamtime stories”, and I can’t help but wonder what information they really hold: historical documents relating to population movement, legal documents outlining terms of trade, family histories.

Sometimes I wonder if a tiny step to breaking down racist ignorance in this country could be that when Balanda look at artefacts from Aboriginal clan estates, they are told what they are looking at, rather than everything being reduced to “art” and “Dreamtime stories”.

If they knew that such and such a ceremony or message stick or painting was the equivalent of a few volumes legal statutes, perhaps they might begin to appreciate — if not understand — the completeness and complexity of the legal, social and economic systems that existed here before colonisation.

And that we risk losing all record of it if we don’t make some drastic changes fast.





Of course, capitalist Australian governments have no interest in recognising the legal customs of the pre-invasion population. The implications would be huge: treaties would need to be made, rent and retribution paid. And that would just be the start.

But capitalism has allowed — you might even say “encouraged” — a few select aspects of the original culture to find expression: those with a profit aspect.

Aboriginal “art” is a huge commercial enterprise in Australia — and many of the millions of dollars made do not reach the artists.

Art, of course, is an important form of expression and can itself be a source of political struggle. And Aboriginal art can be beautiful.

But next time you attend a conference or event that begins with a traditional "ceremony" of some description, or enjoy "art" at the gallery, consider that what you're looking at, while maybe you can't hope to understand it, could be more than something on which to feast your eyes.

It may be an assertion, legally binding, that the land under your feet is owned by, and the responsibility of, Aboriginal people, whether they are there to assert their rights and care for their country or not.

[Emma Murphy works on capacity-building and community education projects with the Yolngu people of north-east Arnhem Land. She also has a long history working in the Ngaanyatjarra Lands of Western Australia, including with community art centres.]