A Smear on the Nation, by Joe Morrison

I awoke on 21 June 2007 with great anticipation that by day’s end we might have a united environmental Indigenous voice for northern Australia.

I was the CEO of the North Australian Indigenous Land and Sea Management Alliance (NAILSMA), a coalition of Indigenous bodies concerned with the future of the vast northern tropical lands and seas. But NAILSMA was showing signs of fracture, and I was hoping that a meeting of its members that day would bring everyone back together.

The meeting was facilitated by the ‘father of reconciliation’, Patrick Dodson—our very own Nelson Mandela—who continues to hold out the hope of coexistence, the chance of being at peace with the colonisers. Patrick’s position that day highlighted the tensions that would underpin the Intervention: he favoured the collective approach to decision making, land ownership and benefit sharing. The antithesis of that was represented by the approach of one of the big land councils, which left the meeting, determined to go its own way on the basis of its perceived strength.

Then came the breaking, breathtaking news that Prime Minister John Howard had declared a national emergency: the Commonwealth government, feigning outrage that the Northern Territory chief minister, Clare Martin, was not taking the Little Children Are Sacred report by Pat Anderson and Rex Wild seriously enough, would impose its own rule over NT Aboriginal communities, deploying its constitutional territory powers.

We sat stunned as the news from the ABC website was read aloud. I vividly recall that some Indigenous leaders welcomed the Intervention, and I believe their advocacy for that sort of action had given heart to the prime minister and his minister for Indigenous affairs, Mal Brough.

About a fortnight later, as I drove towards Mt Isa on the Barkly Highway, I listened to Patrick Dodson on the radio. He was infuriated about the imposition of the Intervention because there was no real evidence of systemic child abuse and welfare abuse going on and, most importantly, there had been no consultation with Aboriginal communities and their leadership in the Northern Territory. Dodson was clearly upset, and I recall the tears I shed about what was happening as I drove on that lonely highway. I also recall thinking that this was the beginning of a new relationship with Australia—that our struggle for our rightful place in the nation’s future had been set back decades. Those weeks were surreal and are burnt into my memory, as they are for many thousands of Aboriginal people in the Northern Territory.

Ten years on, the stain of that policy approach here in the Northern Territory still smears the nation, with our First Australians disengaged from participating in its future both practically and symbolically. I think our situation is many times worse than it was before the Northern Territory Emergency Response (NTER, the Intervention). This is why I think that.

I come from a town in the Northern Territory called Katherine, a rather racist frontier settlement on the lands of my mother, her mother, her mother and so on, the country of the Dagoman people. The town was built on the dream of opening the north, which brought the overland telegraph line, the introduction of sheep to Springvale Station by Alfred Giles, and the subsequent death and destruction of my ancestors—first by waves of white settlers, then by a wave of surrounding Aboriginal groups fuelled by the white man’s agenda of private ownership driven by greed.

By 2007 I believed that the nation was getting used to the reality that there had been peoples living here long before the British arrived. It was hard enough to convince the settlers of this, let alone other Aboriginal tribes that developed an insatiable appetite for colonising others’ country. It seems to me that the Intervention, and the philosophy that underpinned it, has encouraged a desperate individual greed rather than having nations come to an agreed position on their interests, both shared and individual.

By the time of the Intervention, I had spent well over a decade working in the bush, with mostly remote-living Aboriginal people, to establish their local capacity to manage their ancestral country.

The Community Development Employment Projects (CDEP) scheme was a means of growing locally led development under the instruction of senior men and women to manage their country for themselves, for the rest of the nation and for all humanity. Indigenous people had resided in Australia for more than 50,000 years and had created a unique knowledge and practice to sustain themselves in this harsh landscape. Our ancestors had created mechanisms to interact with each other, to have trade and commerce to ensure that an economy sustained the people living here, and to grow international trade with Macassan fishermen from south Sulawesi. Imported commodities from the north like steel axes and calico were traded to Central and southern Australia.

In the mid-1990s a new approach, named ‘Caring for Country’, emerged about the sustainable use, occupation and management of the lands and waters that had been returned to traditional owners. It was led by a Gurrgoni man, Dean Yibarbuk from West Arnhem Land, then working for the Bawinanga Aboriginal Corporation’s Djelk Rangers. The first meeting was held at Nimirrilli on the Blyth River, where discussion about this new, post-Mabo approach to the management and development of the Indigenous estate commenced. It was a conversation started by people who had walked out of the mission settlements to re-establish themselves on the lands their ancestors had occupied for tens of thousands of years—people who were fed up with the overcrowding and poverty that emerged in the larger communities.

The declaration of the NTER itself was devastating enough. The Howard government’s decision a month later to dismantle CDEP was another calamity for the Caring for Country movement. But, even against those odds, the Caring for Country brand did continue to gain ground.

I took the opportunity to lobby the then Coalition government hard to support the establishment of ranger programs if the government were to abolish CDEP. Throughout the 2007 election campaign I believed that Labor would win, and so I intensely lobbied Shadow Minister for Indigenous Affairs and Reconciliation Jenny Macklin about the ranger-programs proposal. Along with providing additional support for the Indigenous Protected Areas program, Macklin eventually allocated more than $150 million to these two key areas when she became the Indigenous affairs minister after the election.

But the discourse about ‘welfare dependency’ had gained considerable traction—thanks largely to Noel Pearson, who argued that Indigenous people had to engage in the ‘real economy’. The argument went that CDEP had bred dependency that discouraged communities from engaging in this so-called real economy; from that flowed child abuse, alcoholism and other ills. I recall struggling with the question about how that could be fixed by ‘normalising’ remote communities.

‘Normalisation’ entered the Australian political lexicon in May 2006 when Mal Brough introduced amendments to the Aboriginal Land Rights (Northern Territory) Act 1976, which created a pathway for the Commonwealth to secure township leases over communities on Aboriginal land and to diminish the powers of the NT land councils, the larger and more powerful Northern and Central Land Councils in particular.

Those amendments were a ringing harbinger of the Intervention, and, as my former NLC colleague Kirsty Howey recorded in her paper ‘“Normalising” What?’ (Australian Indigenous Law Review 2014/2015), when the legislation for township leases was introduced in May 2006, Brough summarised the tenure reforms as facilitating the ‘normalisation’ of Aboriginal communities. A year later, announcing the Intervention, he said, ‘[t]here are three phases to what we are doing: (1) stabilisation, (2) normalisation and (3) exit’.

Howey wrote that the normalisation discourse, as manifested in the Commonwealth parliament, possessed some distinctly ‘colonial’ attributes, including the consistent construction of NT Aboriginal communities as spatially segregated, economically stagnant and socially dysfunctional.

The impact of such language on Aboriginal people has not yet been measured. But I know that it served to alienate us: Aboriginal men, in particular, are left with the feeling that they have been ostracised, vilified as drunkards, gamblers, wife bashers, pornography addicts and paedophiles.

The Northern Land Council’s chairman, Samuel Bush-Blanasi, revealed his inner hurt to an audience at the Garma Festival a couple of years ago, and he recalled that disclosure in the April 2017 issue of the NLC’s paper, Land Rights News:

Soon after the Intervention was declared, a close female family member was injured during a football match. The climate brought about by the Intervention was such that I was left feeling—quite wrongly—a sense of shame that somehow I would be looked on as being responsible for the injury. I wasn’t the only Aboriginal man who felt branded and abandoned. Those sorts of feelings were widely held by my fellow countrymen.

Yet, for all the police hurriedly herded from interstate to enforce the Intervention, and for all the coercive powers held by the Australian Crime Commission, which was also co-opted, no paedophile rings were uncovered in NT Aboriginal communities. The rhetoric about paedophile rings, which Mal Brough and his braying cohorts in the news media had ramped up to justify his emergency, was hollow.

In a climate of obsession with matters sexual, young Aboriginal men in the Northern Territory—not the ‘big men’ whom Brough identified as the perpetrators of child sexual abuse—were put before the courts for having sex with girls under sixteen.

Near Bulman in Central Arnhem Land, one young man, twenty-two years old, shot himself on 22 August 2008 because (on the evidence before the Coroners Court) he was scared of being sentenced to a long stretch in jail for having sex with an under-age girl. He and the girl had begun a relationship around September 2007 when she was fifteen years old, and evidence was presented to the court that they were very much in love.

The man died after escaping from a cell in a police compound at Bulman that had been hastily assembled after the Intervention was declared. Two interstate AFP officers, seconded to support the Intervention, were on duty at the time. Five other police officers were dispatched from Katherine, 300 kilometres away, to capture the young man. He was found dead from a self-inflicted gunshot wound the next day.

The coroner said, ‘This was a tragic inquest about the untimely death of a young man who was full of talent and highly regarded by those who knew him’. He found that the young man took his own life ‘in the context of great stress’.

The police operation at the beginning of the Intervention was called Operation Themis—an abominating title: Themis in Greek mythology was a goddess, the personification of order and justice, who convened the assembly of the gods. She would have wilted in the heated atmosphere that hung over Aboriginal lands in those early days of the Intervention, because damage was done to Aboriginal people in the name of the law.

Take the case of Tony Jack, mayor of Roper Gulf Shire since 2008 and with a long history of public service before then. Around 9pm on 20 September 2007, he was stranded with four other Aboriginal men at Mataranka, 100 kilometres south of Katherine, waiting to be picked up after their vehicle had broken down. Two police officers approached them on a public lawn and ordered them to leave town.

In affidavits filed with the NT Anti-Discrimination Commission, the men said one male police officer, on transfer from Queensland for the Intervention, called them black bastards: ‘he used the F word a lot’. The police came to a private settlement before the commission had a formal hearing.

Just as well there was the NT Anti-Discrimination Commission where Tony Jack and his companions could seek redress, because they had no standing under the Commonwealth Racial Discrimination Act—parliament had suspended the Act to enable the Intervention.

The Intervention legislation was not only deliberately offensive but seriously defective. The people of Numbulwar, an Aboriginal coastal community on the Gulf of Carpentaria, would suffer grievously because the law had been badly drafted.

In October 2007, only a couple of months after the legislation (consisting of more than 500 pages) was hustled through parliament, a contracting company was working in Numbulwar to install services to a headquarters for a newly appointed government business manager (GBM). (GBMs—‘ginger bread men’ in local parlance—were another feature of the Intervention: they were placed in all seventy-three prescribed Aboriginal communities to be the eyes and ears of Canberra). The contracting company’s workers took it upon themselves to dig a pit toilet on a signposted sacred site.

Three years later the company pleaded guilty in the Darwin Magistrates Court to an offence under the Northern Territory Aboriginal Sacred Sites Act. The company was fined just $500; at the time of the offence, the maximum fine for a corporation under the Act was $220,000.

But when the sentence was appealed in the Supreme Court, the judge’s hands were tied on one point of appeal because, under the Intervention laws, evidence citing the detrimental effect of the desecration on Aboriginal culture and the Numbulwar community could not be put before the court.

Supreme Court justice Stephen Southwood noted in his decision dismissing the appeal that the contractors had failed to make any due enquiries as to whether part of the land on which they were to undertake the construction work was a sacred site. ‘They did not obtain a clearance from the Northern Territory Land Council (sic). Nor did they obtain an Authority Certificate or a Minister’s Certificate permitting the respondent to carry out work on the area of land on which the toilet was placed. Nor did they obtain permission to construct the toilet from any custodians of the sacred site’, the judge said. He noted from a victim-impact statement that ‘great shame has been brought upon the traditional owners of the sacred site’.

The whole operation at Numbulwar was a shambles from the start, vivid testament to the damage wrought on Aboriginal people because of thoughtlessness and indecent haste. The government business manager’s headquarters had to be trucked in from Darwin, after a Navy barge, having sailed all the way around the coast from Darwin, could not unload it because the barge landing was too shallow for the vessel.

The offending contractors at Numbulwar did not have a permit to enter onto Aboriginal-owned land. The Intervention has allowed open access to Aboriginal townships on major roads in the name of progress. Unchecked visitors can now arrive in communities without the landowner being aware of their intentions. To my mind, this has potentially opened the door to some of the very people whom the Intervention was meant to target.

The consequences of the Intervention legislation in relation to the Numbulwar incident were unintended but predictable. And let’s not forget that the legislation was supported by the Labor opposition as it passed through parliament with unconscionable haste in August 2007. The Numbulwar community still reels from this desecration, which has unfortunately impacted on their ability to perform their religious obligations.

Labor leader Kevin Rudd had an eye to the election in November; the whip was cracked, and any dissenters in his ranks had to fall in behind. The late Darwin author Andrew McMillan wrote in his 2007 book An Intruder’s Guide to East Arnhem Land that, at the Garma Festival a week before the legislation was introduced, Northern Territory Labor senator Trish Crossin threatened to abstain from the vote—‘but failed to do so when it came to the crunch, earning the ire of people who’d taken her at her word’.

Labor won that November election. Although it did wind back some more egregious measures of the Howard/Brough Intervention (for example, it reinstated the Racial Discrimination Act), it subsequently rebranded the rest from 2012 as ‘Stronger Futures for the Northern Territory’: the Intervention has effectively been maintained.

But at least Labor in its two terms didn’t vigorously pursue the 2006 Brough amendments to the Aboriginal Land Rights (Northern Territory) Act 1976 that sought to delegate the powers of land councils to regional corporations, and to have township leases over Aboriginal communities held by a Commonwealth officer, the executive director of township leasing (EDTL), in Canberra.

The insidious aspect of this is that the office of the EDTL is funded by the Aboriginals Benefit Account, which was established to benefit Aboriginal people, not to disable them. This is another example of the disregard of the Australian government for Aboriginal people and their legal rights and standing in the Northern Territory.

Those 2006 amendments and the Intervention legislation a year later would have passed through parliament even if Labor had opposed them: for all but the first nine months after the 2003 election, the fourth Howard government enjoyed a rare majority in both the House of Representatives and the Senate.

Not even the legal system could offer salvation—in 2009 the High Court dismissed a constitutional challenge to the Intervention laws brought by Reggie Wurridjal, a traditional owner from Maningrida. But at least this action led to the payment of just-terms compensation for the compulsory leasing of Aboriginal land. Today leases generate millions of dollars in payments to traditional owners for the use of their lands by third-party entities, but not by governments for housing estates.

But money is no compensation for the hurt and distress that were heaped on our people by the 2007 Intervention. It continues to blight relations between the Australian government and the Aboriginal people of the Northern Territory. It continues to be raised at nearly every forum of Aboriginal people I attend. The hurt and distress endure; I too feel this.

I have now spent more than three years as the CEO of the Northern Land Council. I spend most of my time defending the hard-fought-for rights of Aboriginal people that had previously been secured. This, unfortunately, is the situation for all NT land councils. I didn’t anticipate coming to this important job to spend so much of my time defending long-established rights, and this sadly reflects a regression in relations between First Australians and the Australian nation state. I live in anticipation and hope that this will change one day soon and that I can secure a future for my children whereby they can walk proud knowing that they are both Indigenous and Australian.