The question we have to decide is whether the power to make laws for the government of a territory of the Commonwealth, whether it be the Australian Capital Territory, the Northern Territory or any other territory such as the territories beyond the mainland of Australia, as for example the Territory of Papua and New Guinea or Norfolk Island, includes a power akin to that possessed by the States of the Commonwealth to make laws for the compulsory acquisition of property without necessarily providing in those laws for terms of acquisition which can be seen in the circumstances to be just. This is a question of the proper construction of the Constitution of the Commonwealth of Australia and nothing more. (Emphasis added.)
Teori Tau v Commonwealth (1969) 119 CLR 564, 569.
The Mariunau people have always lived in this valley. This is our land. Always we fight if other people try to take it from us.
I am a direct descendent of the great ancestor Kinto. I speak with Kinto watching.
I am headman of PakiaVillage in the Kieta prefecture of the Bougainville District of Papua New Guinea. I speak the truth known to be the truth by all my people.
At the beginning, when the rivers began to run, the Mariunau clan were given the land now known as Mariunau. It is our kinship birthright. From the tops of the highest trees to the depths of the earth this is our land. Until Kinto walks the earth once more and the rivers run dry this is our land. Until the stars go out and the sun dies this is our land.
The land of the Mariunau is in the valley called Panguna. In the valley known as Panguna we fish the rivers and farm yams. We catch land crabs. We hunt possum and pig. This is our birthright.
Then pākehā[3] come with guns and machinery to look for gold. We say they should go away and not walk our land but they do not listen.
The first pākehā to come only find small gold then go away and we are happy. But soon more pākehā came to walk our land. Again we say that this is our land and they should go away but the pākehā say there is copper in the ground of Panguna and the copper is not ours. They say the copper in the ground of Panguna belongs to all of the people of New Guinea.
This is not so.
According to the Law of Kinto the land of the Mariunau passes from Mariunau mother to Mariunau daughter.[4] This has always been so.
According to the Law of Kinto the end of one garden and the start of another garden is marked. This has always been so.
According to the law of Kinto every fish and every pig in the valley of Panguna has an owner. This is a clan place. This is owned land. This is Mariunau land. This has always been so.
If there is copper in the ground of Panguna then the copper belongs to the Mariunau and not to the people of New Guinea. This is Law. The Law of Kinto. I speak with Kinto watching.
We tell the pākehā who walk our land of the Law of Kinto but the pākehā do not listen. The pākehā of the clan Copper say the Law of Australia is more powerful than the Law of Kinto. They say the Law of Australia is the only Law. They say that the Law of Kinto does not matter.
This is not so.
So the Mariunau talk with pākehā friends who know the Law of Australia. Our pākehā friends say the Mariunau should ask the Headmen of the village Australia[5] to make a paper for making the Mariunau land ours by the Law of Australia.
Our pākehā friends who know the Australia Law talked long with the Law of Kinto and we showed our pākehā friends the gardens and the markers at the edge of our gardens. Then our pākehā friends went away to talk with the Headmen of the village Australia.
Our pākehā friends who know the Australian Law say their Law has more power than the clan Copper. They say they battle with words in the Court of Australia. They say the Australian Law will respect the clan Mariunau. They ask us to wait the long long time it takes for our Law to travel and meet the Australian Law. They ask us to hold our spears low until the Australian Law speaks and makes a paper.
So, as the headman of PakiaVillage, I talk with my heart to what the pākehā friends say. I ask the Mariunau clan to listen to my words. I ask the Mariunau to hold their spears low until the long long time passed. I asked the Mariunau to let the clan Copper walk the land until we have a paper of Law from the Headmen of the village Australia.
I was wrong to ask my clan for these things. I feel shame.
The pākehā we called friends did not tell the truth. The Headmen of the village Australia are part of the clan Copper. The Headmen of the village of Australia gave the clan Copper a paper to take our land. All the Headmen of the village Australia defecate on the Law of Kinto.
Now our gardens are ruined and our markers are no more. There is a big hole where our gardens live. The clan Copper pour angry water into the river and kill the fish. The clan Copper scare the possum and pig and kill the land crab with big machines and guns. The clan Copper are not unknown. They are not good pākehā. They are an enemy.[6]
We will raise our spears. We will speak the Law of Kinto. We will drive the clan Copper from the valley Panguna where the gardens of the Mariunau live. We will not listen to the words of the Australian Law for these words do not tell the truth.
My name is Teori Tau.
I speak with Kinto watching.
I speak the truth known to be the truth by all of my people.
Part 2.Pave paradise, put up a parking lot.
While constitutional law can be a source of empowerment for groups such as indigenous peoples, albeit at great effort and expense, it more often than not enables those with power and resources to blanch a dispute of the merits of the case… Appellants are invariably corporate litigants who are able to constitutionalise a dispute to their advantage with the assistance of adroit legal counsel. As suggested, constitutionalisation enables a dispute to be completely reconceptualised, a process legitimised through the exercise of a right of appeal, a ‘right’ that only the corporate litigant may be able to afford. While the representation of constitutional law as abstract, decorporealised and neutral accords with the idealised and universal norms of justice, such rhetoric serves to disguise the injustice at the root of the case — that is, the particularity of the harm that led to the search for a remedy.
As indicated by Margaret Thornton, a legalist argot is not just a professionally specific discourse; it can also constitute a deliberately obscure language - a language unlikely to be understood by a huge majority of Australians. Thus the use of a legalist argot (in this instance termed ‘constitutionalisation’) can be used to facilitate the deliberate obscuration of an issue, enabling legal practitioners working on behalf of corporate or privileged interests to proffer repugnant propositions to a Court without the need to reveal the particulars of propositions or intentions in a publicly accessible manner.
The fact situation in Teori Tau v Commonwealth (1969) 119 CLR 564, is relatively uncomplicated. The newly formed copper company had obtained mining leases covering the ancestral lands of the Mariunau clan[8] near the village of Pakia on BougainvilleIsland. To utilize the rights conferred by these leases the company would be obliged to alienate rights asserted by the Mariunau clan. The rights asserted included, but were not limited to, the right to freehold title of the land and a right to exclusive occupation of the land.
It can be safely asserted that Teori Tau’s direct ancestors almost certainly settled in the valley of Panguna well before the pyramids of Egypt were even contemplated. The oldest evidence of agriculture on earth comes from the highlands of New Guinea. In this region farming terraces have been dated back to 10000BP.[9] The cultural practices attending the farming in the Panguna valley may very well have been amongst the longest standing continuous cultural observances ever engaged in by human beings. But now we will never know. Now we can never know.
The valley of Panguna is gone. Any chance to find out more about the unique, ancient, and sophisticated land tenure methodologies and practices developed by the Mariunau has been lost to all of mankind.
In the High Court of Australia the interests of the copper company and the traditional landowners were abstracted in such a manner so as to entirely preclude consideration of almost all of the critical issues. We only have to look to the actual circumstances regarding the subsequent history of this particular dispute, within the wider context of the forty year span until this erroneous decision was finally overturned,[10] to see the potential ramifications of a hasty judgement being made in an ultimate court of appeal when particularity and context have been stripped away.
As considered the case turned on the question of whether or not a law made under s122 of the Australian Constitution was bound by provisions listed under the various s51 placitum; it was transformed into a dry and abstract question of constitutional interpretation. But even this dynamic was explored in a facile manner.
If this case had focussed on a land tenure dispute regarding rights asserted by a white Australian living in a territory of mainland Australia would the intent of the constitutional provisions in s122 have been interpreted differently?
Is it not a valid assertion that where a resident inhabits a ‘territory surrendered by any State to and accepted by the Commonwealth’ or otherwise is ‘under the authority of and accepted by the Commonwealth’ that this citizen deserves at least comparable treatment at law? Perhaps a resident of a territory, and so especially a vassal of the commonwealth, is precisely the individual most essentially defined in our foundation statutes? Or is it possible that the various placitum of our constitution, conferring assured protections upon a resident citizen of a State, might be entirely defeasible at the whim of a conspiracy of legislatures?
Was the law simply upheld? Here the mythology[11] of terra nullius might be profitably considered with the New Guinean cases dating from this period in mind. Land tenure terminology within the New Guinean territories did encompass a regard for tribal affiliation and matters regarding customary tenure.[12] It incorporated elements of native title terminology. But it made not a jot of difference;[13] this researcher has been unable to find a single instance where a native New Guinean’s assertion of customary land tenure was endorsed in the High Court of Australia. The findings of the High Court appear remarkably consistent regardless of terra nullius, right up until Mabo.
Two cases are considered particularly relevant.
In Custodian of Expropriated Property v Tedep (1964) 113 CLR 318,a decision of the Supreme Court of the Territory of Papua and New Guineawas overturned.[14]
The actual claim which was made asserted ownership of the subject land by a group of community of [sic] Tolai natives. The ground of the claim was that the subject land had never been legally alienated by them or by their ancestors, that one portion of the land had been illegally sold by one Tokitane and that the remainder of the land had been illegally confiscated by the Imperial German Government about 1902 or 1903.(319).
The title was returned to ‘Mrs Richards’.
In Nambumutka Simbali pro Denangi Lineage v Sacred Heart Mission (New Britain) Property Trust (1973) 2 ALR 203,the title to a 1100 hectare property lying on the Toriu River, ‘uninhabited, uncultivated and surrounded on all sides by ownerless land’ (204) was held by the Supreme Court of Papua New Guinea to be owned by the Sacred Heart Mission (New Britain) Property Trust. An appeal to the High Court by the Denangi clan group failed.
So, an apparent discontinuity might be observed between the obvious intentions of the legislature, as expressed in the clear and seemingly unambiguous language used in the statutes and regulations, and the decisions of the courts inside mainland Australia.
Perhaps an equally legalistic but diametrically opposed interpretation to the one arrived at in Teori Tau is/was available? Consider this fairly recent quote:
The Land Act 1962 put to rest any lingering doubts with regard to the ownership of customary land. Section 7 of the Act declared that ‘all land in Papua New Guineaother than customary land is the property of the Crown subject to any estates, rights, titles in force under any law in force.’ The only land claimed by the administration was ‘waste and vacant land’ (ownerless land) and land purchased from the customary landowners. Because of this policy, to date approximately 97% of land in Papua New Guinea is held under customary tenure. The remainder is state land, of which most is alienated in freehold or leasehold.
John Mugambwa. School of Law, MurdochUniversity. (2007)[15]
This essay argues for more than a passing degree of subjectivity to be retained by the Justices sitting on our highest court. When a legalist approach is considered as the primary or sole correct form of reasoning to be employed by and in front of the High Court bench it does our legal system a disservice. It serves to strip a case of its particularities and diverts the judicial gaze from the substantive issues prompting the submission of a dispute.
The possible ramifications are nowhere more apparent than in the actual history of BougainvilleIsland subsequent to the ‘Bougainville Copper’ case. Consider the following extracts penned in 1996 by the traditional owners regarding their perception of the impact of the mine on their island environment:
The establishment of the copper mine in 1969 saw 800 Bougainville people landless and another 1400 without fishing rights. The land was seized by C.R.A. mining company and forests were cleared. No law in the late 1960's impelled environmental impact studies for industrial developments. Two hundred and twenty (220) hectares of Panguna's forests were poisoned, felled and burnt, then bulldozed directly down into the river, along with tonnes of rich organic topsoil…
C.R.A. mining company gouged a hole 6 kilometres long, 4 kilometres wide and half a kilometre deep. Over a billion tonnes of poisonous tailings were dumped into the river system. The toxic wastes was [sic] poured straight into the KawerongRiver then carried down the JabaRiver to the coast, leaving a trail of death 35 kilometres long. The fish in the rivers developed ulcerations and died, birds, flying foxes and possums disappeared. The JabaRiver became choked with tailings and overflowed its banks, turning flat lands into contaminated swamps.[16]
…and regarding the human rights of islands inhabitants:
On the basis of Australian military intelligence advice, the Australian and PNG governments have adopted a military strategy with two key aims. The first is to isolate Bougainville from the rest of the world which as been achieved by imposing an air and sea military blockade. The deadly blockade is now [in 1996] in its seventh year and has effectively sealed off Bougainville from the outside world. It is designed to force the people of central Bougainville to submit, by depriving them of medicines, fuel and humanitarian aid. According to reputable reports from health workers and the UnitingChurch, the blockade has claimed more than 10,000 lives.[17]
Bibliography.
On-line
Bougainville Freedom Movement, Bougainville fights for freedom, 16 May 1996 at at 11/08/09.
Screen Australia, Mining Bougainville, [NSW / Stage 6 Preliminary / Modern History - Part 1 Case Studies (Pacific)] at 10/08/09.
Roach J, ‘Was Papua New Guinea an Early Agriculture Pioneer?’ (June 23, 2003) National Geographic News. at 15/08/09
Custodian of Expropriated Property v Tedep (1964) 113 CLR 318.
Nambumutka Simbali pro Denangi Lineage v Sacred Heart Mission (New Britain) Property Trust (1973) 2 ALR 203.
Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513.
Teori Tau v Commonwealth (1969) 119 CLR 564.
Wurridjalv Commonwealth [2009] HCA 2.
Books
Levi-Strauss, C,. Structural Anthropology. (1967) New York: Doubleday Anchor Books. (Translated by Claire Jacobson and Brooke Grundfest Schoepf.)
Barthes R, Mythologies. (1989) Collins, New York.
Journal Articles
Mugambwa J, ‘A Comparative Analysis of Land Tenure Law Reform in Uganda and Papua New Guinea’ Journal of South Pacific Law (2007) 11(1) 40.
Thornton M, ‘Towards Embodied Justice: Wrestling with Legal Ethics in the Age of the “New Corporatism”’ (1999) 23 MelbourneUniversity Law Review 749.
[1] The heading is in Pidgin English. It can be roughly translated to mean: ‘The land belongs to the people of Mariunau and the people of Mariunau belong to the land.’
[2]Screen Australia documentary, Mining Bougainville (1970).
[4]On BougainvilleIsland the polity is patriarchal however traditional lands are tied to matrilineal descent groups within a matriarchal tenure system coupled with urilocal residence patterns. These and other details relating to the social structures of the Bougainville Islanders are drawn from notes taken during Adelaide University Lecture 3, 1991, ‘9817 - Pre-colonial Aboriginal Society’ by Professor Lee Sackett.
[5]The largest social aggregation on BougainvilleIsland in 1960-69 was the village; there were no towns and few roads on the island at this time. So, as it is unlikely that any member of the Mariunau clan would have ever traveled beyond the Island at this point in history, as a descriptive agent the term ‘village’ appears to be appropriate.
[6] Most New Guinean tribal groups have a classificatory (section) system in which the white man (pākehā) are divided into one of three groups: unknown, friend, and foe. These groupings roughly correlate with those used to describe neighbouring tribal groups. See also Levi-Strauss, Structural Anthropology, 31-51.
[7]Thornton M, ‘Towards Embodied Justice: Wrestling with Legal Ethics in the Age of the “New Corporatism”’ (1999) 23 MelbourneUniversity Law Review 749.
[8] “[A]s delineated in a plan annexed to decision No. 1969/326 of the Land Titles Commission of the said Territory dated 26th August 1969.” (565).
[9] For example see: John Roach, ‘Was Papua New Guinea an Early Agriculture Pioneer?’ (June 23, 2003) National Geographic News.
[11]This word is used self-consciously (after Barthes) to reference the commonality of discourse current within the legal community in Australia regarding a particular subject.
[12]For example s 41(1) of the Lands Registration Ordinance 1924 (Cth) reads: Nothing contained in this Ordinance and no registration made thereunder shall affect any system or custom of land tenure or of succession to land or transmission of land in use amongst natives.
[13]The implications of this observation go far beyond the scope of this paper.
Lest we imagine the settler apology brings us into a fully postcolonial moment, let us revisit the terms within which this apology is constituted. First, let us recall that the settler apology comes out of a sense of melancholia. Melancholia is in itself a form of resistance to change in that it emerges when there is a refusal to accept the lost object/ideal. In short, the settler apology carries with it a resistance to the new state of the social world created by postcolonizing events.
In one of my earliest memories I kneel on the backseat of a Holden on a hot summer's day, staring as a plume of bulldust billows into the air behind a trip into town. The rolling bare New England hillsides are clad in a late summer brown and the passing barbed wire fences and lonely gum trees all dance in a heat shimmer. There is no true horizon, just an indistinct haze in the middle distance. The car stinks of vinyl, tobacco, and grease. We are bound for the Bonshaw Pub where the kids will play on the shady veranda and drink ice-cold seven ounce glasses of squash, the menfolk will sit in the bar drinking beer and discussing the serious magic of farming. The mothers and sisters will be absent.
The ways of seeing the world I learnt whilst staring out the back window of that Holden are still with me. The geographical/social/personal common sense I absorbed as I watched the bulldust rise is the common sense I employ today. Those trips into town in the back of a Holden, with a gruff Uncle driving and a dangerous cousin by my side, are my Holden Car Dreaming.
I am a colonial boy.
One might imagine that 'sorry people' - being non-indigenous, mainly white (and mostly from an Anglo-Celtic background) and largely middle class - are empowered enough by their placement in the structure of a settler nation to be outside of any destabilizing ill-effects that might come from a call for an apology. On the contrary, the reconciliation process implicates these Australians quite specifically.
When a colonial boy encounters a raw washaway along a creek gully, with the ragged remains of a barbed wire fence suspended and strained across it, he feels at home. This is not ecological damage - it is colonised land. The colonial boy has walked a hundred miles along these same gullies into the late evening setting steel-jawed rabbit traps. And most mornings he will hurry back along the same trap line in the cold pre-dawn gloom - half asleep but sickened and ashamed for the sound of a distant rabbit screaming in agony.
Sensitivity is not a colonial virtue. Any child of a traditional rural household knows a farmer's relationship with the earth is rarely sentimental. Settlers 'battle' land. They 'clear' bush. 'Fence' countryside. 'Fight' elements. Clear felling is 'progress.' Raw bush is 'unworked.' When you turn the soil you scar mother earth and kill wildlife, there is no room for sentiment. It must be, and is, refuted. Sentiment is suppressed.
Cleared, burnt, fenced, turned, and planted ground is a colonial landscape and I am a colonial boy. Thirty years later this history imbues my vision with an overlay of colonial anticipation, also grief, even before I have a chance to apprehend the geography.
The internal soundtrack of the denuded paddock remains, for me, the sound of that distant rabbit screaming in exquisite agony.
Pavlov's dog.
When gutting, pairing, and hanging rabbits along a fence in the early dawn, I would often watch hawks and eagles gather at the end of the paddock, waiting for an early morning treat. So now even the birds are complicit. The sight of an eagle sitting on a fence instantly evokes the red stink of blood in my nostrils and a concomitant surge of guilt.
When younger this rhetoric of guilt was inaccessible, it was experienced as an undifferentiated fog of regret, a passing timeless moment in which present and past merged in melancholia. Now, as an adult, I can articulate my angst for country, dead trees, extinct wildlife, murdered blacks, lost knowledge, and my own brutally mutilated vision.
Yet still Pavlov's dog howls in my night.
Postcolonial Angst.
I am the colonial boy. I am coloniser and colonised, simultaneously. My very gaze imposes imperatives and extinguishes contingency, at once - unconsciously - incessantly.
I know there is a different Australia but my knowledge is not my vision. My own eyes will always betray what I know and believe. Every time I look to the land I see first my own history, and then hear the distant scream of the tortured bunnies of my youth.
Perhaps this is an internal tension that every 'sorry person' must negotiate, self-consciously, with every glance? Perhaps we 'sorry people' must learn to 'unsee' even as we see? Maybe for the colonial boy an understanding of home will always be a negotiation with grief?
And so I frame the question I cannot yet answer: can my reimagining of the self and social ever be anything other than a constant reinterpretation of the colonial experience?
envoi
My greatest aspiration for my daughter is that she will never experience postcolonial angst. I want her to stay well in a non-colonial geography. To see a raw washaway and at once feel for the soul of the devastated land. To see ringbarked trees and at once weep for what has been desecrated. To see prior occupation.
Most of all I want her to see the birds and find companionship and beauty - not shame.
