The Monthly's Blindspot On The Burrup


In a recent article in The Monthly, "Into The Beehive" writer Robyn Davidson documents her visit to the Burrup peninsula in the West Pilbara, noted for its vast array of rock art. Davidson notes with concern the past and ongoing destruction of this unique art and the conflict surrounding development in the area, drawing parallels with the proposed gas hub at James Price Point and writing that although "superficially, the story is simple … open the lid and there’s a beehive" Davidson has however overlooked some of the nuances in the buzzing she encounters.

Interactions between Aboriginal and Torres Strait Islander groups and developers — which are often fraught, complex and highly politicised — merit careful analysis. Unfortunately, reportage of these interactions is often incomplete, characterised by unexplained gaps and silences — and Davidson’s article is a case in point.

It is particularly unfortunate that a writer who notes that Aboriginal people "have gained some legal rights to land" and who asks rhetorically whether negotiation "is just defeat in sheep’s clothing" fails to explain the workings of the native title system in general, or the landholdings in the relevant area.

Put simply, native title law provides recognition of the continuing existence and vitality of systems of traditional laws and customs that give rise to rights in land and waters. It is a complex area, but it is surely disrespectful to write about Aboriginal connections to country without acknowledging these traditional systems of law, the rights existing within them, and the context in which decisions are made.

"Into the Beehive" does not discuss the intense negotiations (pdf) over the Burrup that took place in 2001-2002 between the State of Western Australia and the (then) three registered native title claim groups and which led to the deal to which Davidson refers.

As with James Price Point, these negotiations took place against a compulsory acquisition application by the State Government; they were described (pdf) by one claimant, Michelle Adams, as "like being stabbed in the stomach constantly. Negotiating under duress — the State has issued compulsory acquisition notices and will take your land anyway". Adams continued: "Burrup is a highly religious, spiritual site. We didn’t want development but understood we had no veto". Davidson neglected to include any information on this background, which would have provided context on the history of development and the Burrup — as well as the difficulties faced by Aboriginal people seeking to oppose or influence it.

There is also no acknowledgment of the native title determinations in the relevant area.

Litigation under the Native Title Act culminated in a series of Federal Court rulings — see particularly Daniel v WA [2003] — which found that although there was no native title in the Burrup itself, the Ngarluma and Yindjibarndi people held native title elsewhere, including the area adjacent to the Burrup. Davidson’s acceptance of the credentials of "a traditional owner and Wong-goo-tt-oo (WGT) man" is unfortunate in view of the findings in Daniel, in which it was held that the WGT "had not made out their claim to be a traditional group". The name WGT was admitted to be created for native title claim purposes and WGT members were not found to be differentiated from the rest of the Ngarluma people and Yindjibarndi people; it was noted that although they may have native title rights as members of these groups, they did not hold native title as a separate group.

In 2009, the remainder of the WGT claim was struck out for failing to disclose a reasonable cause of action; the State’s strike-out motion was supported by two other native title groups whose claims were overlapped by the WGT claim. The result of an appeal before the Full Federal Court is pending.* Despite noting that Aboriginal people "are no longer, if they ever were, homogeneous in outlook, history or aspiration", Davidson fails to explore these hotly contested issues of legitimacy under traditional law and custom.

Problematically, the article also conceptually links income derived from native title with charity or welfare. Thus its slightly misleading statement that "mining companies … provide payouts for use of Indigenous land" (no law obliges them to do so), and the suggestion that mining money might merely be "a sexier version of welfare".

Notwithstanding the sense of exoticism with which they are viewed, native title rights are proprietary in nature. Admittedly, these rights are fragile; successive courts have interpreted native title very narrowly indeed, leading to persuasive critiques of the system. Noel Pearson has been a trenchant critic of judicial interpretations of the Native Title Act, arguing that viewed accurately: "whether it is an English lord slaughtering innocent fowls on his estate or whether it is an Australian Aborigine standing on one leg in the sunset on his father’s ancient homelands — the title is the same".

Their limited nature notwithstanding, it bears repeating: native title rights are akin to property rights.

Why then is there such an explosion of concerned hand-wringing when Aboriginal people use property rights for monetary gain, as landlords and shareholders do? Davidson suggests that Aboriginal people in the Kimberley who welcome the proposed gas hub "are swayed by the prospect of vast sums of money, not understanding that funds will not be administered to individuals but to the community at large".

This statement verges on the patronising and risks leaving the casual reader with the impression that Aboriginal people cannot be trusted to make decisions about their country. There also seems a hint of judgment in Davidson’s statement that "if wealth from mining can bring about solutions to community problems, then perhaps it is worth chopping up a Dreamtime story, trashing a piece of wild and stunning coastline, fencing off some rock art".

"Into the Beehive" needs to be read against the current context of criticism of Aboriginal groups for ‘doing deals’. As with the proposed gas hub at James Price Point, Pilbara groups have in some instances been judged harshly for what is seen as a readiness to accommodate the dictates of the mining and petroleum industries.

Frances Flanagan, a former lawyer and negotiator for the Ngarluma Yindjibarndi native title claimants, noted (pdf) that media reporting during the negotiations on the compulsory acquisition was particularly unhelpful; a front page newspaper article in The West Australian on 23 May 2002 characterised the Ngarluma Yindjibarndi community as being "keen to sign up to the package" that would "ruin pristine beach at Hearson’s Cove" and "cut off the northern parts of the Burrup."

Flanagan commented that political parties and lobby groups that opposed industrial development on the Burrup "tended to exploit perceptions of Aboriginal interests in the Burrup to bolster their arguments and political aims, with complete disregard for the statutory basis for the negotiations or the views of Aboriginal people themselves". Some continuities can be discerned almost a decade later across the political spectrum; Aboriginal people are either praised as aspirational market capitalists or as "natural conservationists" — according to a commentator’s ideological inclinations.

Davidson correctly observes some troubling patterns in development within Western Australia, where "the state ethos [is]influenced by muscular frontier values". Unfortunately, her article presents a limited picture — an opportunity for a more thorough exploration of the issues has been lost.

*Disclosure: the author was instructing solicitor to one of the native title parties in the strike-out action, and appeared as junior counsel in the appeal.


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