2. Performing law: The Yolngu of Blue Mud Bay meet the native title process

The native title process is an arena in which, among other things, the sovereignty of a colonising society over its colonised subjects is enacted. As Julie Lahn (Chapter 7) points out, native title is based on a ‘radical assumption of sovereignty’ and the legislation and the growing body of native title case law ‘can be said to continue to exercise the power that defines sovereignty…[a]nd in this sense, it is certainly possible to contend that native title is as implicated in ongoing processes of colonisation, as providing a remedy to aspects of it’.

The Yolngu response to the native title process in the Blue Mud Bay case was in continuity with a long-term tradition of political interaction with the colonising society and its institutions.^[1] It is a response that declares, in essence, ‘we know we are encapsulated, but we are not colonised’. Yolngu have never fully acceded to the proposition that their sovereignty has been eclipsed by the process of colonisation. When sovereignty was asserted over their region by the colonial power—in abstract and at a distance—their ancestors knew nothing of it. Although the colonial frontier encroached upon the fringes of their region many years later, in the early years of the 20th century, there was no significant permanent Euro-Australian presence in the Yolngu heartlands until the establishment of the first missions in the 1930s. At the time Yolngu did not perceive the coming of the missionaries as an act of colonisation nor did they view their own response as a ceding of sovereignty. Nancy Williams writes that: ‘From a Yolngu perspective it was Mawalan, as head of the land-owning Rirratjingu clan, who granted permission to Chaseling, as agent of the “mission” to establish the station at Yirrkala [in 1935]’ (Williams 1987: 20).

Yolngu were brought face to face with colonial power in the 1960s in what became known popularly as the Gove Land Rights case, when the clans of the Yirrkala area took the bauxite mining company Nabalco and the Commonwealth of Australia to court over mineral leases that had been granted to the mining company by the government.^[2] The Yolngu view of the encounter and its aftermath is that although they lost that battle they won a longer war, in that the Aboriginal Land Rights Act (Northern Territory) 1976 (ALRA), which granted the Traditional Owners rights in fee simple over the rest of the Yolngu clan estates (to the low water mark), is seen as a direct result of that earlier loss.

Manuhia Barcham, in his presentation to the workshop Effects of native title from which the present volume originated, drew attention to the ‘politicised nature of the [native title] recognition space’. The politicisation of the space can come from more than one direction. Today’s Yolngu are not naïve, nor are they in a state of false consciousness about the nature of the political situation in which they find themselves. They see and understand the power relations that allow the Australian state to assert its sovereignty over them. But they also consider that this sovereignty was imposed without their consent, and that there never was an act of conquest. They see the ALRA as an acknowledgement of that fact by the state, and to that extent they question the legitimacy of the state’s assertion of sovereignty over their estates. In their view the native title process was as much about the issue of sovereignty—at least in the sense of the recognition of the jurisdiction of Yolngu ‘law’—as about ‘rights’, and their participation in the process must partly be understood as a political act.

This much was clear in discussions with their representing barrister during preparations for the case. The view they put to him rhetorically was, in paraphrase: ‘We know that we own our sea country under our law. Why is it not sufficient for us simply to state this to the court? Why do we have to prove our law under ngapaki [white] law?’^[3] The barrister’s response was, in effect, that as citizens of Australia they were subject to what they were calling ngapaki law, that ngapaki law was not just for ngapaki but for all Australians. He acknowledged that this situation had come about through a prior act of colonisation, but, to paraphrase again, ‘that’s just the way it is, and that’s what we have to work with’.

For the late Mr Justice Selway, who heard the Blue Mud Bay native title case, sovereignty was naturally not at issue. The very existence of the Federal Court, and of the Native Title Act presupposes the sovereignty of the state, and, moreover, ‘[f]ollowing Mabo (No 2) the High Court rejected attempts to use native title as a vehicle to claim indigenous legal and political sovereignty’ (Mantziaris & Martin 2000: 28). But the judge did recognise explicitly that the applicants considered this case as: ‘merely the latest aspect of a more protracted campaign. For my part it is difficult to imagine what more the Yolngu people, including the claim groups, could or should have done lawfully to enforce their rights’ (Selway J 2005 [ 213]).

From the anthropologist’s point of view then, the Blue Mud Bay hearing can be seen as Yolngu discourse about the sovereignty of rom (Yolngu ‘laws and customs’) embedded in a native title discourse about rights under European law. In analysing this discourse within a discourse, the paper looks first at the constraints created by the form and structure of the court, and then at the strategies Yolngu applied to insert their discourse about sovereignty. Their political agenda was rarely explicitly stated, but rather manifested in the strategies that they adopted in their responses to questioning and in their deliberate placement, at two carefully selected points in the proceedings, of performances of rom. The paper concludes with some thoughts about the more long-term effects of the case on the Yolngu view of their position as encapsulated but not colonised subjects.