Art as Evidence: The Legacy of the Spinifex People court decision

The Spinifex People's Native Title Determination in 2000 was a landmark moment in Aboriginal land rights.

 
Join us for a conversation with leading barrister and former President of the National Native Title Tribunal, Raelene Webb KC, inside the Spinifex People: Art and stories from Pila Nguru exhibition as we explore the transformative legal landscape and cultural significance of this historic decision.
 
Following the 1992 Mabo case ruling, the Spinifex People began their pursuit of Native Title recognition. Traditional owners from the Spinifex area returned to Country to document birthplaces and record Tjukurpa (dreaming stories). Spinifex painting emerged as part of this process, born from a need to present evidence in support of their claim.
 
By 1998, a Framework Agreement was signed by then WA premier Richard Court. To mark their successful claim, the Spinifex People produced two canvasses mapping Country, which were then later included in the preamble of the final land agreement with the Western Australian Government.
 

Meet the speaker

Raelene Webb KC has a national practice specialising in appellate advocacy, native title, mining law, administrative and constitutional law as well as taxation law.

After more than 20 years as a barrister Raelene was appointed as President of the National Native Title Tribunal from 2013-2018. Prior to her appointment Raelene was recognised as one of the leading native title silks in Australia. She has appeared in the High Court in many landmark constitutional and land rights cases and is one of few women to regularly appear to make oral arguments before the High Court.

Raelene is an experienced mediator with national accreditation. She is also a skilled facilitator with many years of experience working with groups around Australia, focusing on collaborative techniques to assist groups in achieving their goals.

With a life-long passion for education, Raelene has taught in advocacy training courses and provided legal training over many years. She has given guest lectures at Australian and Canadian universities.

Raelene is a fellow of the Australian Academy of Law. She was awarded the Law Council of Australia President’s Medal in 2014, in recognition of her outstanding contribution to the legal profession in Australia. 


Event Partner

This talk is co-presented by Curtin Law School and WA Museum Boola Bardip.

Curtin Spinifex

 

Audio file
Thursday 10 April 2025
  • Episode transcript

    [Recording] You’re listening to the Western Australian Museum Boola Bardip Talks Archive. The WA Museum Boola Bardip hosts a series of thought-provoking talks and conversations tackling big issues, questions and ideas. The Talks Archive is recorded on Whadjuk Nyoongar Boodja. The Western Australian Museum acknowledges and respects the traditional owners of their ancestral lands, waters and skies.

    Professor Robert Cunningham: Good evening everyone. For those of you who don't know me, my name is Robert Cunningham and I'm the Dean and Head of Curtin Law School, and I've got the great pleasure this evening of introducing you to this event and to this, this wonderful space. Of course, there'll be a formal welcome to the country before Raelene Webb KC delivers her presentation. But, one of the things that I often say in terms of good things that happen in academia, it's often based on serendipity, and we had Patricia Gonzalez, who is the partner of Michael, Dr Michael Dizone, who joined the Curtin Law School a couple of years ago. And he approached Katrina Williams and others, within Curtin Law School, to suggest this event. And here we are, law and art, and Katrina Williams and others have suggested that perhaps we might turn this into an annual event where we think about, well, other combinations that we can come up with. Whether it be law and music, law and dance, and the list goes on. And I think, I'm really attracted to that idea because one of the things that I often say to law students is that the wonderful thing about the law is, at its best, you get to combine analytical thinking with creative thinking. And with art and with music, the benefit I think, is that when you're immersed in it goes straight to the heart. And, I know that we're going to experience that if you haven't already had the chance to look at the artwork prior, when we go around and have a look at it afterwards, having that experience of art going straight to the heart is something that I think is really special.

    Raelene Webb KC does not like bios, so I'm not going to do that. But one thing I am going to do is to just draw attention to the fact that I've had the privilege of working as a junior barrister with Raelene Webb on a few matters, one of which was a couple of years ago in the federal court, by the name of Helmbright. And I won't deliver a mini lecture on Helmbright tonight, but I was just saying to one of the other senior counsel within my chambers, Penelope Giles earlier, that when we were engaged with Helmbright it was during the Covid era. And what that meant was that the federal court matter was heard through teams. The really good thing about that is that I got to watch Raelene Webb KC presenting in court as though I was watching it on television as opposed to sitting behind her or next to her, as I would have done in court if we weren't in the Covid era. And the wonderful thing about Raelene is that combination of the analytical and the creative. So, she would often say in matters that I'm interested in floating the balloon about X, Y, Z or ABC, and floating the balloon was often code for thinking outside the box. And she very much encouraged the team involved in Helmbright to do that. So it was a great honor to work alongside her, and I think it's very fitting for Raelene to be giving this presentation tonight.

    But first, let me introduce or welcome up to the stage Freda for Welcome to Country. And I know there is a link between Raelene and Freda, perhaps in many ways, but certainly they both have a passion for education. And I've heard Freda talk a lot about her own passion for education, so I won't give Freda a bio either, because, perhaps she might do so on the way through in her Welcome to Country. So thank you so much, Freda. Thank you, Katrina, also for organizing tonight and everyone else that's been involved. And thank you in advance Raelene for your presentation. Thanks Freda.

    Freda Ogilvie: Thank you. And, I think 37 years in the teaching industry says more than any word could describe, or any words could describe, I should say. But I had my head in those books for about five years. I started off in an associate diploma course at Edith Cowan, and then a few things fell in place. This is not going to take me far on my career pathway. So I went down to the front desk, ‘Could I change my course, please?’ ‘Yes Freda, just sign here.’ She gave me piece of paper. ‘This is your first year timetable when you come back after the holidays.’ ‘Oh okay, is it that easy?’ But, I loved teaching, and what I didn't do in teaching you can't write about, what I did in teaching is this. Evidence in the early years learning framework in the first edition. I was part of that group of professors, and here I was just a little teacher, a Nyoongar teacher I should say too, from Western Australia. And I was sitting up there and giving my suggestions and ideas of how this document should look. And I picked up the second edition not long ago and had a look, and I thought, oh, it's just a bit more compact but no, the outcomes and the skills are still there for those 0 to 8 years.

    So I've got all my own 0 to 8 years now, and I think there's 20 great grandchildren, and I think there's about 16 grandchildren. I've got one who's called Freda, she's pre-primary, so it will be interesting to see what she wants to do. And I think Ayana is 9, no 11, and when she was pre-primary she said, ‘I want to be a teacher like Nanna.’ When I was in Darwin with them and I had to go out and look after them while Steph was doing her RN degree and things, and no, nobody's gone into teaching yet so I'm a bit disappointed for that. And I suppose I have to talk a bit more and get the grannies and great grannies involved. But my career spanned the federal government, so while the Kevin O’Seven, or the Prime Minister, was looking around for his platform for early childhood I was there in the department slogging away all that paperwork and then went off and did my teaching degree. And then, 4 or 5 years later, came back. ‘Oh Freda, why don’t you come work in central office?’ ‘ No, I don't think so, it's too political.’ ‘Freda, we want you to come in because you've got the experience.’ ‘Oh, All right then, I’ll go.’ So I finished up flitting all around the countryside with all these professors and at the different universities. So, I'm grateful for the opportunity that I had through teaching, and I think I've got about six AIEOs, Aboriginal workers who took up my challenge. Go and do teaching, you can do it. And so, yes, they're still out there teaching. I've retired. And I could look back on it now and think, yep, I’ve had a fantastic career, but I want to say kaya, kaya, [Nyoongar word]. Hello, hello and welcome. [Talking in Nyoongar] I thought I need a platform. After the defeat of the referendum, I need something to go, I can't just go and do welcome to country, otherwise I'd be saying it and there'd be no heart in it. So I found one, and it was from Eleanor Roosevelt, the great lady herself. And yes, the president might have had his name over all sorts of documents, but she was the real lady of the USA. And she said, with the new day comes new strength and new thoughts. So I thought yep, that's my platform. So I hope you go away with some new thoughts today and continue on learning. And I think my links with Tjuntjuntjara community goes back to my first year of teaching, when Simon Forest was a principal out there at Cundeelee, and he said, ‘Any students want to go out there for a camp?’ ‘Yeah, put my name down, I'm going.’ So we're in a big, eight man, no ten man tent. And I keep saying to them, ‘well where’s the ten men, there's no ten men here, but you're saying this is a ten men tent.’ So that was our joke for a while that we were at university. But it was interesting to go out on country.

    And my other link with Cundeelee is that I was born on the back of a T4 that was carrying super phosphate from Mount Kokeby into Beverley. So yes, it's only just down the road and nothing like the landscape that was out there in the desert. And I actually, oh, they got mum up onto the back of the T4. Our car had broken down apparently, I don't know what sort it was. And, so they took us in to Beverley Hospital, but it was only as far as a verandah because we weren't allowed to go into the hospital. The native hospital was in the tent out the back. So there's a lot of stories that we could tell about our experiences of racism. Some were good, some were bad. About four years of age, I fell backwards into a fire and burned all my hip. So they took me off to Beverley Hospital again, and whatever it was that doctor gave me some medication I was allergic to. Penicillin because it was, it was pain medication of the day. So, they took me to Pingelly and Doctor Rogers, who was the doctor for East Perth football club not so long ago, said ‘no, you've got to go to Princess Margaret Hospital.’

    So I think I spent a full 12 months away from home. Three months in Princess Margaret, three months in Lady Lawley Cottage because I was in respite. And then I went for six months to a Christian family out there around Clifton Hills somewhere. And, so that was it, 12 months away from the family. So when dad came to pick me up, no jumper, no blanket, so he wrapped me in newspaper. So there's lots of interesting little stories there.

    But I want to say [speaking in Nyoongar Language]. I pay my respects to my past, present and future leaders, [Nyoongar word] and strangers on Whadjuk land. Our kaartdijin, or knowledge and understanding of Nyoongar boodjar, or country reflects our deep spiritual and physical connection to country and to places of significance. For each Nyoongar group there is a place of significance where we go to celebrate or pay tribute to those who have passed on. And I was saying that my connection with the goldfields is that my mother and father spent about four years with the trachoma eye survey. So, Warburton, Mount Margaret and I'm sure that went to Cundeelee and did all the eye surveys and things and checked their sight. So, yeah, there are still strong. And I looked around at some of the names on the paintings and things, and I thought, oh, I know that name, oh, I know that name. So, yeah, it's a small world in this Nyoongar world. [Speaking in Nyoongar language] As a Wadjuk Ballardong custodian and a traditional owner and a matriach I welcome you to the great sea and the great rivers, the Debal Yerrigan and Derbal Djarlgarro, the Canning River, which means abundance. Where my family and ancestors left the footprints while gathering their food and constructing their mia mia’s for over 60,000 years. Everything in our vast landscape has meaning and purpose. We speak our own language and have our own law and customs. The law is characterized by a strong physical connection to country and to places of significance. In our Nyoongar cosmology, the warkyl is the creator and the keeper of the freshwater sources. He gave us life and the trilogy of belief in the boodjar, the land, as our mother and nurturer of the Nyoongar moort and the family and relations and our kaartdijin, or knowledge of what we weave, that intricate tapestry known as the web of life. Oh I can’t see that, it’s too small now. So Nyoongar law and custom guides the way in which we define our country and our rights to it. Law influences how we connect with the land. As our Nyoongar people, we have a duty to speak for our country, to acknowledge its value to our communities, and to observe law that governs who may or may not speak for country, as well as share with the broader community. So I invite you to walk beside me and share the history, language, and culture of the Nyoongar people. This contribution makes a rich tapestry to move forward in reconciliation and in truth. And I want to teach you a word or two. Yanga, can you say yanga? Thank you. So you can say thank you in Nyoongar language. And the other one is boordawan, boordawan. And because we don't have goodbye in our language, because somewhere down life's journey, we'll meet again. So that's all it's saying. I'll see you later. So thank you very much. And please enjoy the exhibition.

    Raelele Webb KC: So thank you very much Freda. That, I do hope that people learned something tonight. When I sent my thoughts off to Scott Kane, I apologize for making it look like a lecture, I hope it doesn't come across as too much of a lecture. But I'd like to start by acknowledging the original custodians of the land on which we meet tonight the Whadjuk people of the Nyoongar Nation, pay my respects to the elders, past and present. And I also pay my respects to all first Nations people, and particularly in the context of our talk tonight, the Spinifex people and I acknowledge their resilience in the face of the challenges they have faced, and we will no doubt continue to face. And one of those more recent challenges in their lives has been how to present evidence in court, or how to present evidence to the state, in fact, to support their claim to native title. And as you walked into this meeting area, some of you would have noticed two large canvases side by side. At first glance, they look quite different, but they're collaborative works mapping the same country. They are the native title paintings.

    One is a men's painting. One is a women's painting. They're painted by senior Spinifex men and senior Spinifex women to show the relationship of the Spinifex people to their traditional country. They were mentioned in the preamble to the final land agreement between the Spinifex people and the Western Australian government, which agreed to native title being determined in court. And we have with us a person who was then the lawyer for the state government. So thank you for coming along tonight, Kate, it's good to see you. The paintings were positioned behind Chief Justice Black of the Federal Court when his Honour made the determination in 2000 that the Spinifex people held native title to their traditional country.

    What happened with the painting? The painting there was a very important history. It's a history of native title is, the history of native title in Australia, we really need to think about.

    Aboriginal people have lived on this continent for over 65,000 years. When the British came to Australia, all they could see was people who were primitive, unclothed, who were roaming around. They didn't have gardens, they didn't have agriculture and in their mind it was an empty country, was terra nullius. And so what had happened with all the early explorers is that they'd painted this picture of this immense tract of land with very few people, who were savages, primitive savages, and this perception of Australian Aboriginals as a primitive race in some places persists to this day.

    And it is a misconception, and far from the truth, because the outstanding features of the traditional Aboriginal society are highly sophisticated religion, art, social organization, an egalitarian system of justice and decision making, complex, far reaching trade networks, and the demonstrated ability to survive in some of the world's harshest environments. And the spirit Spinifex people are the epitome of these characteristics, and particularly their ability to adapt to and survive in what really is the harshest of environments.

    The history is remarkable. Their law is powerful. Some 7000 years ago, the continent of Australia was surviving the greatest environmental disaster it had ever experienced. Sea level levels were rising, and they were steadily submerging the coastal plains at a rate of up to a meter a week, and the sea was encroaching on the desert fringe. Half the Nullarbor Plain was underwater, families were displaced, territories had disappeared, foraging grounds were submerged, sacred grounds were engulfed. And then the dreaming of the spinifex people acted and thousands of spirit birds moved south from the sand deserts to the face of the sea. And the spinifex people call these spirits the people of the sun and the people of the shadow. The sun people face the encroaching sea from the cliff top, the shadow people blocked the valleys and gorges, and together they built massive ramparts with their spears, leaving behind the monuments of the Nullarbor Cliffs and the Hampton Escarpment. And the law of the Spinifex people had defeated over 8000 years of oceanic flood. The post glacial rise in sea level that inundated Australia between 15,000 and 6000 years ago was ended by the Spinifex law, and for another 200 generations the Spinifex people remained cocooned in their remote sand plains, and those plains contained the essential fabric of their lives. Contained their food, their water, their tools, their shelter, their family and their friends and their law.

    Spinifex people were almost invisible in modern Aboriginal Australia, known only by rumour to observers of Aboriginal culture and absent from virtually all Western desert anthropology. The first known historical reference to spinifex people was by Norman Tindale in 1934. There were no white settlers nearby to make written observations of their activities, as occurred in other parts of Australia. Spinifex people were hidden from European eyes until the 1950s, when attempts were made by the government to remove people from their homelands due to the atomic bomb testing at Maralinga in 1952 and 1956. Despite those attempts, the last of the spinifex nomads remained uncontacted in their homelands until 1986, which makes them perhaps the last hunter gatherers on Earth. But it was this quality of Aboriginal people, being hunters and gatherers, and therefore considered backward and uncivilized, that allowed the British to view the Australian continent as practically unoccupied or terra nullius. So that when settlement occurred, British laws were automatically applied, and then British sovereignty swept across the country from the 136th degree longitude in 1788, extending to 129th degree longitude and 1824 to include the central core of the continent and finally the entire continent in 1829. And at that time, under British law, the lands of the Spinifex people became the property of the Crown. This meant that the government could do with the land as it wished, by granting rights to others or reserving it for its own use. So, when a large group of Spinifex people returned to their homelands in the 1980s, the southern part of their country had been converted into a nature reserve, the northern third had been leased to another Aboriginal group to the north, and the center was considered to be vacant Crown land owned by the Queen. And the spinifex people were very upset. They said they'd never seen the Queen out there cleaning out the rock holes in the country. How could she be the owner of Spinifex Country? How could it not still be their land?

    And it was the recognition of native title by the High Court in 1992, in the Mabo decision that gave the spinifex people the opportunity to rectify this historic misappropriation of the land. And within a year of that decision in the Native Title Act, the Spinifex people launched their own claim process. They visited the National Native Title Tribunal in person, making it the first time that body had met directly with Aboriginal petitioners rather than their legal and anthropological representatives. The Spinifex people were introduced to everyone in the tribunal, from the reception staff to the president, who became Chief Justice French of the High Court. They were taken on a tour of the conference rooms, the courts and even the tea rooms, and they left with an impression of complexity and cooperation. And in return the Spinifex people pursued their task of reclaiming their land in a spirit of reconciliation, knowing their rights, but also accepting the rights of non-Aboriginal people in Western Australia. And this came at a time when the Western Australian government had challenged the validity of the Commonwealth Native Title Act, which had been passed in 1993 following Mabo, the act that recognised native title and provided a process for claiming it. The state also passed its own legislation in an attempt to extinguish native title in Western Australia, and this was unsuccessful with the High Court later ruling the Commonwealth Act was valid, the State Act inconsistent with it and therefore itself invalid. But despite the state not officially recognizing native title and its opposition to it, it was nonetheless willing to negotiate an agreement that recognized the spinifex people’s rights to their land, and at the same time, the state was aware there would be both political and public hostility to those negotiations if they led to an agreement around native title. So, it was a sensitive time.

    But if any agreement was to have a binding effect, it would have to be ratified by a determination of the Federal Court. So therefore, an application for a determination of native title was lodged in 1995 under the Commonwealth Native Title Act, one of the early applications. Now Native Title recognizes the traditional rights and interests to land and waters of Aboriginal and Torres Strait Islander peoples. It's a special kind of property right that is unlike any other right. In lawyer speak, it's sui generis, literally of its own kind. Now the process required for proving native title is complex and often very lengthy. The key elements required to prove native title under the Australian legal system are these:

    There has to exist an identifiable community or group that's connected with the land claimed

    The rights and interests have to be possessed under traditional laws and customs observed by the Aboriginal and Torres Strait Islander people. Traditional means they have to have a link back to before sovereignty, they have to be pre sovereignty. They could change, but there has to be that link back.

    By those laws and customs, the people have to have a connection with the land and waters. And as I said, those laws and customs, the ones that existed at sovereignty, and they constitute the rules that are observed and acknowledged within a society by the group.

    Those laws and customs have to have continued substantially uninterrupted since sovereignty.

    But then those rights and interests haven't been extinguished by the Crown, granting rights to others or reserving land for its own use.

    So the court needs evidence that Aboriginal and Torres Strait Islander people still have these rights, and this is referred to as connection evidence. And it's usually the most contentious part of all native title claims if there's no extinguishment. And in order to get agreement with the State, the Spinifex people needed to satisfy the government that it still had connection, just putting extinguishment to one side.

    So in 1996, with their native title application underway, the community members whose birthplace in spinifex country would be the grounds for the claim of native title, began to paint and the idea for the paintings was clear. It was to produce artworks which in themselves showed evidence of Spinifex country or, in native title terms, evidence of connection. And the painting of country works in three ways. It works as proof of laws about country that are required under the criteria for native title, it's the law. As establishing the credibility of the claimants, the truth of what they say, and it works as a map. And just as the native title application was formulated around places of birth, because that's the connection in the case of the Spinifex people, so too was the painting project. And a map of Spinifex country birthplaces reveals the clear link between people and country.

    And this exhibition is created on that principle as well. I'm standing right now on the country, the birthplace of Simon Hogan. His paintings are here, and if you go around, you'll see that in each area it will identify whose country it is. It's a wonderfully put together exhibition, this one. And you'll see all of this as you look at it later.

    Now, this map of country, Spinifex country birthplaces reveals that clear link or connection between people and country. And at one level, the paintings directly relate to this theme that this broader concept of traditional ownership of responsibility for country and knowledge of country can all be glimpsed through a sketch of where people were born. But the painting project rapidly grew to more widely portray the traditional ownership of Spinifex area by including elements of ritual knowledge and Spinifex law. When it got to that level, it became apparent that men and women wouldn't be able to share their ritual knowledge on the same collective canvas. Neither wanted the other present, while they were marking out gender specific places. And so we get the women's and the men's native title paintings that emerged in 1998 from group consultations. And the experience of the native title paintings establish the guidelines for the Spinifex paintings we see elsewhere as a contemporary practice. Just glossing those guidelines that these, unless married men and women usually work separately, each gender owns and paints their own ancestral narratives, and within that gender division collaboration is encouraged and indeed it's essential.

    So those two native title paintings were unveiled at the signing of the Native Title Framework Agreement in July 1998, and this happened at Miramiratjara, an oasis in a remote northeastern corner of the Spinifex country and a site so charged with metaphysical dangers that elders entered in advance to introduce the place to its new visitors. When he arrived by helicopter, the premier of Western Australia, then Richard Court, was only the third white Australian to ever see the sacred water source. This event encapsulated a tension that runs through Spinifex painting, a representative practice that takes traditionally guarded knowledge onto permanent material, puts it on permanent materials, and created for broad circulation. Whereas, prior to this, patterns and designs were short lived, they were put, painted or marked on sand or skin and destined for erasure after ritual use. This was quite a change from temporary to the permanent, and it was done in order to make the ancestral land tenure publicly and politically explicit to others.

    Painting Spinifex style is a form of evidence. What it does is it renders visible what is unspeakable by public disclosure of very carefully guarded stories and sites of ancestral dreamings or Tjukurpa. And while making collective paintings, the artists often sing the song lines that are being committed to canvas. It has been suggested that the Spinifex people's ability to depict dreaming narratives while safeguarding restricted content might be related to the use of materials such as canvas and synthetic acrylic paints, rather than materials, traditional materials such as natural ochres. When it's suggested that they might paint in the natural ochres, the response is very negative. It's don't go there. So the synthetic and the canvas somehow seems to be a mechanism for being able to create these permanent paintings. So, we have the two native title paintings. And following the success and the enthusiasm of those two paintings documenting country, the community then produced a series of ten large paintings to be bequeathed to the people of Western Australia at a symbolic exchange of paintings for land when the final agreement was reached. These paintings are in this gallery, they're mostly hung close to the two native title paintings, the big paintings. They include both collaborative and individual works, and they are a striking record of the geographic and cultural heartland at the centre of the Spinifex Land Agreement. The next two years saw the finalization of the agreement between Spinifex people and the Western Australian government for ratification by the Parliament, as well as putting together the form of words at the Federal Court would use for a consent determination of Native Title. And it was the first consent determination of Native Title in Western Australia, and according to Premier Richard Court, a victory for common sense and reflects the fact that the government has no doubt that these people are traditional owners of the area. The media release did go on to say that it was also fortunate that the Spinifex negotiations relate only to vacant Crown land and reserve land, and no pastoral leases were involved. And I can tell you from experience, had there been mining involved, it's very unlikely agreement would have been reached, no matter how strong. But to be clear, this was not a case where the court heard evidence and arguments about the existence of native title. Strictly the native title paintings were never tended to the court as evidence, but they were referred to in the preamble to the Final Agreement on the Consent Determination to be paid by the court, and they were on display at the consent determination that was made on the 28th of November at a special sitting of the court in the Spinifex homelands.

    Now what I've talked about is the spinifex painting in the context of consent determination of Native Title. But it is not the complete story of how art is used as a legal instrument to prove a long-term connection to their lands, to prove it to non-Aboriginal people. Does it need to be proved to Aboriginal people? They might do the temporary, I'm marking this when we're in ceremony so you know where my country is, but the proof that they need is to prove to non-Aboriginal people. Now, the story really began back in the 1960s with the indigenous led civil rights campaign. A key motivation for which was to affirm and promote First Nations people's relationships with country and the desire to be back on land from which they'd been displaced. And some key events in that movement were these:

    the amendment of the Commonwealth Electoral Act in 1962 to grant Indigenous Australians the right to vote in federal elections, although in enrolling wasn't made compulsory for Aboriginal and Torres Strait Islanders until 1994.

    The sending of the bark petition to the Commonwealth Parliament by the Yolngu people of north east Arnhem Land in 1963, protesting a proposed mine on their traditional lands. And I'll talk more about that.

    The Freedom Ride in 1965, led by the Arltunga man Charles Perkins, drawing attention to segregation and living conditions of Aboriginal people.

    The Wave Hill Walk-off, led by Gurindji man Vincent Lingiari, beginning a strike for better working conditions and the return of traditional lands.

    The 1967 referendum, with a resounding yes vote to amend the Constitution to count Indigenous Australians in the population and to allow the Commonwealth to make laws for them.

    The 1963 bark petition was an early instance where artwork was used to affirm and promote first Nations relationships with country. The Yolngu people of Yirrkala were grappling with the prospect of losing their land to a bauxite mining company, and in response, they courageously voiced their concerns using two signed bark paintings, which they had painted collaboratively to convince the Federal Government in Canberra that the mining of their tribal lands was illegal. The barks bore paintings with the sacred imagery of the Yolngu in respect of the land in question, together with a typed statement both in English and Yolngu, and the Yolngu requested that no lease be granted until their concerns had been addressed. The petition stated that the Yolngu people had used the land from time immemorial, it sustained their life and contained many sacred sites.

    The Yirrkala Bark Petition in 1963 marked the first time First Nations people in Australia had directly challenged governmental policies concerning their land rights, and it was a pivotal movement for the land rights movement in Australia. It was a paradigm shift politically, and it set in motion a powerful wave of change which drove Australia to reevaluate its relationship with First Nations people.

    The litigation was not successful. The first native title case in Australia was a decision of the Supreme Court of the Northern Territory in Milirrpim and Nabalco in the Commonwealth in 1971. It was unsuccessful, with Justice Blackburne finding that Yolngu proprietary interest in land couldn't be recognized under Australian law. But it did start the conversation about land rights, and it paved the way for the 1976 Commonwealth Aboriginal Land Rights Northern Territory Act, which provided a process for First Nations communities to claim the equivalent of freehold titles in the Northern Territory. And the first successful land claim under the Northern Territory Land Rights Act was lodged in 1976. Now, over 50% of the Northern Territory has been granted to traditional owners, including almost all of the coastline to low watermark. But importantly, the Yirrkala Bark Petition also established a precedent for art to be used as a means by which First Nations people in Australia could pictorially and conceptually communicate their cultural heritage and legal traditions to government agencies.

    It was followed up by the Barunga Statement, painted in 1988 at the Barunga Sport and Cultural Festival, following years of discussions between indigenous leaders in the Northern Territory and the Commonwealth Government, and it took inspiration from the Yirrkala Bark petition. The Barunga Statement took the form of a typed set of demands, surrounded by painted designs affixed to a large piece of hardboard, and it called for compensation for lands that had been lost forever to aboriginal people, coupled with a national framework for asserting and ensuring land rights, the fulfillment of the promise of self-determination and full participation of the indigenous population in the civic life of Australia, including economic, social and cultural rights. And the response of then Prime Minister Bob Hawke, was to create a treaty between Aboriginal people and wider Australia by 1990. And needless to say, this commitment has not been fulfilled. But this painting combines several large clan designs from Yolngu country in north eastern Arnhem Land on the left, with a large design featuring traditional central desert iconography on the right. So it visually affirmed unified demands of the indigenous people of the Northern Territory. The painting was not without controversy, but this time it was internal conflict between Yolngu clan leaders over the unauthorized painting of one clans sacred designs by another and their public display, and under traditional law the penalty for such transgression was death. And these are traditional people. And there is a long story attached, including the retreat of a senior elder to his island home, where, it is said for over a year he was protected by a spear carrying guard of men standing watch on the causeway that linked the island to the mainland. Over a year later, the controversy was quelled when the original artist who'd painted the unauthorized design flew to Canberra, painted over the offending design with another version of this story that was appropriate to display to outside audiences.

    Meanwhile, to the west of Alice Springs, at the government's settlement of Papunya, the Western Desert art movement had begun in the 1970s. And it started with a mural on the external wall of the school yard, encouraged by the school teacher. And it evolved both in style, technique and imagery, and the Papunya Tula Cooperative was established. Wholly owned and directed by Pintupi artists to promote individual artists, provide economic development, and to assist to maintain cultural heritage. It facilitated the production, administration, distribution and sale of traditionally inspired acrylic paintings. And that's the style which spread to other desert communities, as we see here. While bark painting continued and continues in Arnhem Land. And apart from the economic success providing a very welcome source of income, the Pintupi artists understood the role of their artwork in communicating to non-Aboriginal people about their connection to country. They began to be accepted in legal forums as living evidence of the reality of the artists traditional tribal connection and sovereignty over particular areas of land, and this traditional connection to land and its expression in acrylic painting was explained by a Pitjantjatjara elder, an artist from Wingulina, near the tri state border.

    ‘When I am gone, my grandchildren will be able to understand their culture, when they see my paintings. I want white fellas to respect Anangu culture. When they see these important paintings, they will know that Tjukurrpa is strong, that Anangu are strong.’ And perhaps more succinctly, a senior Pintupi artist simply entitled his painting, ‘If I don't paint this story some white fella might come and steal my country.

    Another example of the successful use of art as evidence in a native title claim is in the Ngurrara native title claim over a large area of the great Sandy desert, in the southern Kimberley region. The claim was another early claim, lodged in 1996, just after the spinifex claim. And there was a session that was set up on country, with the National Native Title Tribunal then, to collect information and data. And it soon became obvious that language differences made communication more or less impossible. The claimants themselves spoke several indigenous languages but weren't fluent in English, let alone the high english spoken by members of the tribunal. Tribunal officials didn't speak any Aboriginal languages at all. How then to solve the problem of bridging the gulf between the two different laws and worldviews if they couldn't communicate? And perhaps, thinking along, there came this pathbreaking idea. Instead of merely talking about their claims, they demonstrate their connection to country through a painting. The work would be a collaborative effort with each of the claimants painting his or her own piece of country, the area for which they had special responsibility, much like the Spinifex people started out.

    The artist stories were represented by a series of abstract symbols, which the claimants identified with specific locations in their land. And the initial painting was done at a clay pan site called Pirnini on the edge of the great Sandy desert. It was a collaborative effort of over 50 artists. The original canvas, which we call Ngurrara Canvas One, measured 8 x 5m. But the following year, the claimants decided that that original lacked appropriate integration and scale and they produced another canvas, Ngurrara Two 1997. That measured 10 x 8 meters, and the designs and patterns of their related areas address the same issues as the first canvas, but the overall effect was more organically conceived, and it used a blend of flowing colours and forms which better illustrated the spirit of interconnection between people and the land.

    There was no grid-like effect in the second canvas, showing separation of territories, but it blended adjacent areas which imitated the flow of people's movement through the country and how their family connections work. But importantly to the claimants, the painting represented both their land and its traditional law. And an important aspect of the relevance of traditional law with regard to land ownership and artistic copyright was explained by one of the artists like this. ‘When I was a kid, if my father and my mother took me to someone else's country, we couldn't mention the name of that waterhole. We used an indirect language which we call Markanini. We couldn't mention the name of someone else's country because we come from another place, from different country. That's really the Aboriginal way of respecting copyright.’ It means that you can't steal the stories or songs or dances from other places. The law is still valid and it's the same when we paint. We can't paint someone else's country. We can paint our own story, our own place, but not anyone else's country. And this was reinforced by the claimants at a display in 1997 before the tribunal, each claimant stood on the traditionally encoded section of the canvas with the painted symbols that represented their lands, and they presented their evidence in their traditional language.

    And although the symbols and language used were indecipherable to the non-indigenous observers, this was received as evidence derived directly from indigenous law. And in the logic of native title, what gives a painting value with evidence is its use of traditional designs which are intricately bound up with the land, its boundaries, and the dreaming stories and lore related to it. And these presentations are understood by native title claimants as proof that they hold the records of knowledge of the country and that they continue to practice it as lore. From the perspective of the non-Indigenous judicial authorities, they not only have to suspend any disbelief and put to one side their knowledge of how the non-Indigenous world works, but also interpret it through other principles while accepting the authenticity of the evidence presented.

    Now, with the Ngurrara Claim the State, in 2007, accepted that the connection materials showed that the claimants had maintained a strong connection to their land, and a determination of native title by the Federal Court followed shortly after. Again a consent determination, and the judgment accompanying the determination noted that the vital nature of the additional evidence provided to the court by the claimants, specifically noting that the artists demonstrated their connection to the lands in question of painting country and the places where they were born and grew up.

    The third what I want to talk about is the Yirrkala Saltwater Bark Collection, Going back to Yirrkala. And this was a collection of, this was a litigated hearing, very hard fought for the reasons you'll understand when I get to the end. This was a collection of 80 bark paintings that were pivotal documents in a major case for indigenous sea rights. This case had a long history. It went up to the High Court, I think if I recall correctly, three times on various, and back again and up again and back again. In the 2008 ruling by the High Court in what is known as the Blue Mud Bay Case, the High Court considered the paintings by the Yolngu people of the northeast Arnhem Land as title deeds to the rights that are associated with coastal intertidal zone. The paintings in question were created by 47 artists from 15 clans and 18 homeland communities from 1997 onwards as a reaction to illegal fishing discovered by the Madarrpa clan leader, Djambawa Marawili, on his clan estate. And as Marawili declared in 1999, it is time for non-Aboriginal people to learn about this land, learn about the waters, so if we are living in the way of reconciliation, you must learn about native title and see right.

    And the salt water bark paintings are a visual and traditional representation of Yolngu living and interacting with their sea estates, and the artworks refer to the traditional narratives relating to ancestral beings and their actions, as well as the relations between people's, places, the sea and the water. The paintings were presented in support of an argument that the coastal waters between low and high tide mark involve sacred sites, both in the physical and spiritual planes, and the High Court's decision gave Aboriginal ownership to 80% of the Northern Territory's coastline, a ruling that included precedence over any commercial interests fishing. At that stage, it could rightly have been described as the most significant ruling for Aboriginal landowners since the High Court's Mabo decision. Perhaps now surpassed by, for the Yolngu people by the recent High Court decision in Yunupingu, which found that the Commonwealth government can be liable for compensation for granting, at least to Nabalco, for bauxite mining in 1968. And so this circle for Yolngu completes back to the Yirrkala Bark Petition in 1963, where the Yolgnu people of Yirrikala were then grappling with the prospect of losing their land to a bauxite mining company, and now they're to be compensated for their loss. Now for the Spinifex people, their land was returned to them on the 28th of November 2000.

    I just want to read to you briefly from this book, which in fact was the connection report prepared by Doctor Scott Kane as an anthropologist. So good was this as a connection report that the State, in fact, encouraged him to have it published. You will not find it, it's been long out of publication. It's very hard to get a copy of, but it's an excellent, excellent, not only connection report, but just as a general read. But I just wanted to read to you from the epilog.

    On the 28th of November 2001, the Federal Court of Australia visited the Spinifex Homelands at Kulkapin the historic location at which the spinifex people first encountered white people in their country. Chief Justice Michael Black sat in black robes backed by two traditional paintings of the Spinifex homelands, under the shade of a blue tarpaulin. He read a short Dermination of Native Title, and in a rather low key manner formally recognized the Native Title rights and interests of the spinifex people over their homelands. To emphasize the historical significance of this recognition of native title, the Federal Court inscribed the detail of the determination on a sheet of parchment imported from Europe. The symbolism of the parchment might have been lost on the Spinifex people, but its material presence was not. They waved the white banner in celebration, each seeking to hold it in tangible recognition of the greatness of the moment.

    The parchment was a welcome flag of celebration. The image was captured on a dozen cameras and seen on television screens and in newspapers around the country. Aboriginal communities throughout Australia recall this historic moment through the vision of happy people wearing a banner, waving a banner of white paper in the air, and you’ll see the parchment next to the native title paintings. As a searing north westerly wind blew across the end of the proceedings, the Federal Court packed his bags, drove to its awaiting plane and flew away. From the air, the judge, his assistants and the contingent of government officials saw the spinifex people resting in small groups, on the hot sand, in the sparse shade of small mulga trees. All looked quiet and still, the heat visibly quenching the excitement of the day. On the ground some of the older people seemed troubled. Some of the younger ones wondered what it all really meant. They asked what did the parchment signify? Did it mean they had become Christians? The older people listened as it was explained the symbolic meaning of the document. It was simply something for the spinifex people to keep, he said, a way of showing openly that the Australian law recognized Spinifex Tjukurpa, accepted Spinifex People as the owners of their country and recognized their body of custom and tradition. The parchment and its calligraphic determination of native title was a representation of the customs and traditions of the Spinifex people, he said. The Federal Court of Australia recognized that the Spinifex people owned, had always owned their land. You'll get a chance to go through the exhibition, and as you enjoy this amazing display of Spinifex artworks, please take the time to reflect on the art as a very powerful tool for First Nations storytelling, knowledge transmission, and connection to land and ancestors.

    What started in 1997 for the Spinifex people with the spinifex Art project, directed at proving native title, has now developed into a rich body of work by Spinifex artists. And you’ll see around the room what we call community paintings. With respect to their own community, artists paint homeland narratives to allow family, who may not have visited their country, to view and understand it’s Tjukurpa through visual representation.

    Painting country and stories also allows Spinifex people to pass on information to following generations. As a senior Spinifex artist said, when I die, my paintings will keep going. They'll stay around forever. Now keeps telling the story of Kamanti, where I was born.

    For what may be the last hunter gatherer society in the world has come this aesthetically rich and sophisticated body of art which ensures the survival of a vibrant culture within the harsh environment of the Great Victoria Desert. And I invite you to enjoy it. Thank you for listening. [applause]

    I’m happy to attempt to answer questions if there are any.

    Audience Question: [Not audible]

    RW: That’s the way it was seen by the early colonists, and that’s the problem. They didn’t understand. You just think about it, if only, if only the early colonists had tried to learn from these people who had survived for centuries in areas where non-aboriginal people still can’t live, who still don’t have the ability to do that. What did we do? Instead of learning from the people who had lived here for centuries, we brought sheep, we brought all the things in England out to Australia and tried to reproduce it here disastrously. So they were the words that were used, and yes that is how these people live, they are people who hunt and gather for survival. But it’s a very rich life.

    Audience Question: [Not audible]

    RW: The land grants in South Australia, they were exactly that. Native Title is something different. They were a recognition certainly of people who lived in those areas and had rights in those areas, the Tjuntjuntjara lands, but that’s a different concept to Native Title.

    Audience Question: [Not audible]

    RW: No I actually don’t, I understand that South Australia was always ahead with the way they did it with that kind of engagement. They were leaders but it wasn’t really a pre cursor, and neither was the Land Rights Act in it’s own way. And if fact there was a lot of, um, how they worked together has had some vex problems in the early days.

    RC: I’ve been told there are drinks waiting for everyone.

    RW: Yes, and I’m holding eveyone up.

    RC: And there’s also artwork waiting as well. So I know you’ve all enjoyed Raelene’s presentation as much as I did so can we please just give our appreciation once again [applause]

    RW: Thank you, thank you, I’m very sorry to keep you from the drinks.

    RC: I’m told we can look at the art and drink but we can’t do both at the same time. So you might like to look at the artwork first and then go to the foyer and have a drink or you might like to go to the foyer and have a drink and then come and look at the artwork. But you can’t bring a drink back into here which I think is fair enough. Do what you please, but do as Raelene said and others and take the time not to just look at the art but to reflect upon it’s deep meaning. Thank you for coming tonight and thank you again to Raelene and to Freda and to Katrina Williams and everyone else involved as well. Patricia and Michael Dizone, and you all for being here. Thank you very much.

    [Recording] Thanks for listening to the talks archive brought to you by the Western Australian Museum Boola Bardip. To listen to other episodes, go to visit.museum.wa.gov.au/episodes/conversation where you can hear a range of talks and conversations. The talks archive is recorded on Whadjuk Nyoongar Boodjar. The Western Australian Museum acknowledges and respects the traditional owners of their ancestral lands, waters and skies.

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