ANZ LitLovers LitBlog

Please note: I have not referred to Indigenous leaders by name
because of cultural sensitivities about naming people who have died.
The author has permission to name them, but I do not.

On this day, in 1984, the Governor of South Australia gave his Assent to the Maralinga Tjarutja Land Rights Act 1984.  This historic legislation enabled the return of Maralinga Lands to their traditional owners, in fulfilment of a promise made decades before to the Anangu People.  Theirs was a unique dispossession.  They were moved off their lands so that the 1953-63 British Atomic Tests could take place.  As Hiskey says in his Preface:

Dispossession occurred elsewhere but it was never for a purpose such as this; to enable the lands to be used for the testing of the atom bomb. (p.3)

Garry Hiskey acted as the solicitor engaged to represent the Yalata Community in negotiations for the return of the land.  Maralinga, The Struggle for Return of the Lands is his account of the complex process by which success was finally achieved. It is, as the blurb says, a story of intrigue, divided loyalties and political controversy. But as John Mansfield AM, QC, says in his Foreword, there are other important reasons to read it:

• It’s a lesson against prejudice.  It is a story of an Aboriginal community and its treatment by a largely white community in the living memory of many of us, and for the information of later generations.
• It offers insights into how we can learn about the culture of Aboriginal Australians because Hiskey shares his journey of learning about the true nature of Aboriginal relationships with their country. 
• It’s an intriguing insight into the processes of decision-making by government. 

All this is true, but it is a complex story, about a complex situation. Though there are amusing anecdotes (especially in the early chapters), and Hiskey’s journey of learning is illuminating, the degree of detail about the legislative issues makes reading some of it rather demanding for an ordinary reader. Although he acknowledges the occasional matters where he has to rely on memory, Hiskey is careful to support what he says by extensive reference to his own records, minutes of meetings and other documentation such as relevant sections of legislation.  The politics involved is complicated too.  What follows is my (probably imperfect) understanding of the issues that made this legislation so difficult to achieve.

Chapter 1 begins with an overview of Indigenous Land Rights, noting that the return of the Maralinga Lands took place before Mabo recognised Native Title in 1992.  Prior to 1992 Australian land laws denied Indigenous prior occupation and connection to the land, but South Australia had pioneered granting limited ‘land rights’ in 1966. Former ‘native reserves’ were transferred to the Aboriginal Lands Trust, which granted long-term leases to various communities, retaining ministerial discretionary powers for some matters (e.g. granting mining licences).

However, Pitjantjatjara lands were not transferred to the Trust or leased back, but instead were granted statutory incorporation decades later under what became known as the APY Act 1981.

These differences between title through either leases or incorporation became important because of mining exploration and development in South Australia (which has vast mineral resources). Mining had the potential to benefit traditional owners through royalties, but also brought the risk of damage to or interference with sacred sites.  When the Anangu people were negotiating for the long-delayed return of their land, the government proposal was to use the Aboriginal Lands Trust Act 1966 (ALTA) rather than make a new Act using the APY Act as a model.  The APY Act enabled Pitjantjatjara control of their lands, whereas lands leased through the Aboriginal Lands Trust offered only the right to consultation, not agreement, and there was no mechanism for the resolution of disputes.  More importantly, the discretionary powers of the Minister for Mining and Energy were considerable.  Although it took time for Hiskey to consolidate a preferred option that was acceptable to the Anangu people at Yalata, he recognised early on that a lease under the ALTA made them vulnerable to decisions that did not take account of their cultural beliefs and traditions.

Hiskey quotes the legal advice of barrister Ron Castan, whose opinion stated that if the Yalata community accepted the government’s proposal, they would be placing themselves at the mercy of successive Ministers of the Crown in relation to mining. 

“I believe that there is no other case in Australia, in which an Aboriginal body having responsibility to Aboriginal land has agreed to the lifting of legislative restrictions on mining upon the basis that the only protection then available will be obligation on the Minister to ‘consult’ after which the Minister may do as he pleases.” (p.104)

Imagine the difficulties in this case.  Hiskey’s priority was that the community at Yalata should understand, despite language difficulties and the chasm between European and Indigenous conceptions of land, what their options were.  Consultation with them involved disputes about who had authority: the Elders, or a younger generation.  It involved speaking with those who had limited or no English, and using ‘stick drawings’ to represent how different options enabled the mining industry to come onto their land.  It involved disputes with anthropological experts and Aboriginal advisers; it involved departmental officials with conflicts of interest, and it involved trying to steer the legislation through the SA Upper House when the government did not have the numbers.

Still, when the community met with the Minister in order to resolve the issue, the Elder who was the first spokesman made it quite simple really:

He is expressing the view strongly that this is their land and they want to look after their own land.  This has been their land for a long time and it wasn’t White fellows’ land and so they’re looking to be able to look after their own land that belonged to them, to their families, and he was reiterating that point, that they should be able to look after their own land because of their long association and their families going right back with this land. (p.154, translated by Bill Edwards).

As Hiskey says, whatever European law had to say about it, the Yalata community regarded themselves as owners of the land, and they had the obligation to look after that land.  And when it came to mining, they wanted it to take place peacefully.

We want to be quite clear as to what’s going on if mining comes in.  We want to be able to go to the people; we want to ask them how long are you here for or what places are you working in.  We want to be quite clear about these points.  Whether we can tell people to go from places or just what our authority is.  (p.154, as translated).

Remember the Australian Democrats? In the lengthy Upper House debate about Indigenous rights to deny access to their lands, this is what Ian Gilfillan had to say in support of the Indigenous right to say ‘no’ to exploration or mining licences:

“Instead of being so obsessed with what Australian will obtain from ripping stuff out of the ground, we should pause for a while to measure the value of the traditional lifestyle of the Aboriginal communities that have lived for so long in the areas of South Australia which have until now been of absolutely no interest to most of us except as a venue for firing rockets or letting off atomic bombs… Because of the rapid advance of mining technology, this area now has a lure, as underneath its surface there is so-called untold wealth.  However, we take the risk of allowing to pass before our eyes one of the rarest, most precious things in the world today— a culture which has survived for so long, which does not destroy resources, and which has developed its own sustainable law.” (p.210)

Well, the legislation passed in the end, and as you can see from the image on the front cover of the book, the title was handed over on 17th December 1984. That’s not the end of the Maralinga story: as Hiskey says, servicemen and defence personnel have a story to tell too.

Map Far North of South Australia (Wikiwand)

Maps credits (Creative Commons Attribution 4.0 International):

• Research Gate  https://www.researchgate.net/figure/Map-showing-the-Anangu-Pitjantjatjara-Yankunytjatjara-APY-Lands-of-South-Australia_fig1_329793037
• South Australia, Far North region, Government of South Australia https://www.wikiwand.com/en/Far_North_(South_Australia)

Author: Garry Hiskey
Title: Maralinga, The Struggle for Return of the Lands
Cover design by Liz Ncholson
Publisher: Wakefield Press, 2021
ISBN: 9781743057254, pbk., 271 pages including colour photo inserts, maps, appendices, acknowledgements and an index
Review copy courtesy of Wakefield Press