4. Some initial effects of pursuing and achieving native title recognition in the northern Kimberley

In August 2004, Justice Ross Sundberg of the Federal Court delivered to Ngarinyin people the final determination of their native title which recognised their exclusive possession of nearly 30 000 square kilometres of their country in conjunction with the co-existent use and occupation of another 38 000 square kilometres of non-Indigenous owned pastoral leases. The ceremony to present this determination was held at Anbada (Mt Barnett station, an Aboriginal owned pastoral lease), in Gubungarri clan country, 300 kilometres up the Gibb River Road from the service town of Derby. As one might expect, the event was something of a field-day for plying moral capital.

In attendance over three days were about 200 Ngarinyin people, Kimberley Land Council staff and consultants, various station owners and other interested parties, local politicians and a large contingent of lawyers including those acting for the applicants, those acting for the various respondents (e.g. the State, the Western Australian Pastoralists’ and Graziers’ Association (PGA), individual station owners, the Western Australian Fishing Industry Council, and others), the National Native Title Tribunal, and, of course, the whole Federal Court retinue.

In my view, by far the most frank appraisal of the recent relationship between the applicants and the respondents was given by the judge himself who declared that the legal battle had been a bitterly fought one in which ‘no quarter’ was given by either side. This statement was in stark contrast to the rather fulsome expressions of sentiments about peaceful co-existence and ‘sharing country’ emanating from some other parties including the local MP, officials from the Land Council and from the State. The PGA, which had maintained an extremely uncompromising stance throughout the proceedings, pushing the concept of adversarial litigation to its limits, later sent a letter to the National Native Title Tribunal complaining that they had not been invited to speak at the determination ceremony. Fred Chaney, the most senior member of the Tribunal in Western Australia, made a speech in which he frankly admitted his total failure in negotiating an outcome outside of the court. Chaney’s admission of the failure of his strong overtures to the claimants to accept a negotiated outcome resonated strongly with the applicants and their legal counsel because the State’s out-of-court offer, although only made after the whole of the case had been presented, apparently came nowhere near what the applicants hoped to, and as it turned out, did achieve in court. This result confirmed the applicants’ suspicions that mediation may only succeed when the respondents are staring down the barrel of a certain and expensive failure in court, and perhaps not even then.^[1]

Amongst the pastoralists attending the ceremony under the Kimberley Land Council’s marquee was Susan Bradley, the manageress of two of the larger white-owned leases in the region. This socially prominent woman, once a local shire president and former owner of two iconic properties in the region (originally founded by the Duracks), accompanied by a female British colleague, took up her accustomed position at centre court. Mrs. Bradley is a member of what could be called, without exaggeration, the elite pastoralist contingent. In recent years she has hitched her wagon to the ever-rising fortunes of a Melbourne based QC, Alan Myers, who is now a major lease holder in this region. Although, as far as I am aware, she is not presently an owner of leases here in her own right, her status as something of a rural aristocrat has been preserved through this vicarious association and accompanied her rise to a prominent position on the Pastoral Lands Board. The owner himself seldom visited his remote properties and even his manageress resided part of the year in Broome, some 500 kilometres to the west. The day to day management of the station seemed to be designated to various underlings.

The presence of this particular manager at the determination ceremony was something of a provocation to some of the claimants. Over the course of the two years just prior to the instigation of the court proceedings, she and her husband had wooed the claimants with offers of joint economic enterprise initiatives. Although some senior Ngarinyin people always maintained serious reservations about such an involvement they were in no position to reject out of hand any potential economic development opportunities. Thus had begun an informal patronage relationship which saw a number of prominent business and legal people, including some top Sydney silks and company directors, visiting the outstation at Maranbabdidi and discussing their proposals for enterprise development, including purchasing cattle leases in the area in conjunction with Ngarinyin people. A charitable trust called the Wanjina Foundation was established partly for these purposes. However, the senior Ngarinyin people’s misgivings about their benefactors began to increase when they were reportedly refused any positions on the board of that foundation. By now, these wealthy patrons had begun to be locally referred to as the ‘million thousand mob’.

By the time the Ngarinyin were in the first stages of native title court hearings their alienation from the erstwhile philanthropists was complete. Some members of the ‘million thousand mob’ appeared to have tired of the joint-enterprise idea, and having accurately assessed the economic possibilities in the region through the auspices of the small office operated by Ngarinyin people in Derby, sought to buy privately the very stations for which the Ngarinyin had recently gained purchase approval from the board of the Indigenous Land Corporation (ILC). Not surprisingly, some members of the ‘million thousand mob’ were able to secure finances to make an offer which the ILC could come nowhere near matching. In a rather sad irony, the valuation of the stations was enhanced by the potential value of the Aboriginal rock art on those properties (Redmond 2002). The manageress for the Melbourne QC was one of these people and she was later to block station access to the small cultural tourism enterprise run by Ngarinyin people on adjacent Crown Land. During the subsequent court hearings on the station lands which she managed, she assisted the PGA’s barristers in opposing the Ngarinyin claim. These barristers attempted to damage the credibility of a senior Aboriginal witness under-cross-examination by utilising Mrs. Bradley’s rather jaundiced account of events which had occurred at a time when she had had privileged access to the claimants as a friend and mentor:

And then later again:

These attempts to damage the reputation of the witness were, in the end, an abject failure, the judge summing up Neowarra’s credibility as a witness in the most glowing terms.

Also in the elite pastoralist contingent at the ceremony was the owner–manager of a pastoral property adjacent to Anbada. This woman is the daughter of an eminent Sydney silk, and reportedly came into possession of the million-acre-plus property as a twenty-first birthday present from her father. Somewhat in contrast to her elite peers, she enjoys a reputation for roughing it and eschews the pearls and jodhpur look in favour of the more common white boss’s uniform of Akubra, moleskins, and RM Williams boots.

Another group of pastoralists in the region is more of the ‘battler’ type, or at least perceive themselves this way. There are some very evident differences in the approaches to the cattle business between the ‘battlers’ and the more elite group. Most pertinently for the native title holders, the battler-type pastoralists have long supplemented their income by running home-stay and cultural tourism enterprises on their stations (often without the required licenses). Only at the far eastern end of the claim area, on El Questro Station, a multimillion dollar tourism operation in the Cockburn Ranges, have corporate pastoralists engaged in these lucrative activities in a sustained manner in addition to running cattle.

Many of the elite pastoralists seemed to regard cultural tourism aimed at the general public as somewhat déclassé and invest a great deal of their self-image in the fact that they make their money from beef, something which has not been particularly difficult over the last decade when prices have remained relatively high and labour costs remain low. Nevertheless, as I have shown in another paper (Redmond 2002), at least two of the corporate-owned leases have been running exclusive tours to local rock art sites for small groups of wealthy visitors. These tours are presented as exclusive glimpses into the ‘mysterious world of the Bradshaw paintings’ and attract patronage from elite charitable foundations, such as one run by Dame Elizabeth Murdoch, which has funded rock-art research into the guyon guyon (or so-called Bradshaw Paintings) and wanjina sites by the controversial archaeologist, Graeme Walsh. In this respect the wealthy visitors are buying a form of cultural distinction, in Bourdieu’s (1984) terms, rather than the wilderness or ‘real live cattle ranch’ experience offered on the battler stations. As Bourdieu pointed out, this cultural capital is readily convertible into actual capital.

My impression of the recent effects of having had native title recognised in the region is that there has been a considerable hardening of the position of the pastoralists, both of the elite and the battler variety. When I recently asked the senior Ngarinyin man, Paddy Neowarra, how the white pastoralists have reacted since the judgment came down, he replied (with his characteristic good grace):

During this visit in 2005, I received many reports of pastoralists locking gates to exclude local Aboriginal people. Though this was not uncommon before the judgment was delivered, there now seems to be a more systematic and coordinated attempt to exclude Ngarinyin people from some of these leases. It has been suggested that some of these pastoralists have received advice from the PGA that Aboriginal people are required to seek permission from them to enter their lease, something which is directly contrary to the terms of the judgement. Some lease-holders have informed the Representative Body for the area that all the native title holders need do is come up to the station-house and ask for the key, well aware that the majority of Aboriginal people in the area would be most disinclined to do so as a result the relative power imbalances which have prevailed for so long throughout the region and long set the tone of black and whitefella engagements. Some pastoralists have also claimed that they only lock the gates to keep out unauthorised tourists and to prevent disturbance of their stock. This campaign of locked gates suggests a renewed solidarity amongst the various pastoralists in the face of the newly recognised Aboriginal rights in the area. While, as Neowarra’s statement indicates, none of the European leaseholder’s material rights have been diminished by a native title judgement which grants primacy to their rights as pastoralists over native title rights, there appears to be a very real sense of a loss of political and moral supremacy on the part of the whitefella pastoralist class as a whole. This loss in itself may be a harbinger of cultural change in the area from which new power alignments may emerge over time.