The Mind of a Thief

by Patti Miller

  After leaving the library I called in on my mother for a quick goodbye. She began reminiscing about the Chinese in her childhood, market gardeners and shop owners. In the 1920s she started school with a Chinese boy, Henry Ling, who later owned a stock and station store in Wellington and who now lived in one of the retirement units across from her. Her family shopped at Fong Lee’s general store in Percy Street during the Depression because they were the only shopkeepers who let people buy food supplies ‘on tick’ for months at a time. She recalled, too, the Chinese gardeners carrying their vegetables for sale up from the river in swinging baskets carried on a pole across their shoulders. She reminded me there was a display of Chinese memorabilia in the History Museum, but it would have to wait until next visit.

  Until recently, I hadn’t thought the Chinese history in Wellington had anything to do with me. But a couple of years ago, a cousin of mine had an eye operation. This would seem irrelevant except that the surgeon remarked on her Mongolian fold, an eyelid construction, which, he said, only appeared in people of Asian descent. This particular cousin is a double-cousin, we share the same four grandparents, which means we have identical genealogies. Here was another mystery in the family background, an unarguable strand of genes from an Asian ancestor. It made me think again about Joyce’s story – our shared Wiradjuri ancestors. It is clear that what is written down is not the whole story.

  19

  Native Title Fight

  Back in Kings Cross after the trip west, the seasons had changed. The leaves of the plane trees in the street had turned brown and started to fall; the rustling sounds and bare branches and the accents of backpackers returning from their summer of exploring gave the neighbourhood a foreign tang. The cooler air was crisp and I felt the gentle surge of nostalgia that flows into me every autumn; the odd yearning for another time and place. It was melancholic but strangely reassuring, as if I was connecting to past cycles. The smells of damp leaves and wet bark were familiar although they were never part of my childhood – as if I was remembering a European childhood of coolness and mists that I never had.

  I arranged to meet Gaynor, the anthropologist who had been the advisor for Rose’s original claim. She arrived at my place with a video documentary that had been produced about ten years before when that first Native Title claim was made. We chatted while I made a cup of tea. She had come to Australia as a young woman and had fallen in love with the bush from the very first time she had walked out into it. I’ve come across that ‘love at first sight’ before: people who arrive here as adults and it’s as if the Australian landscape was what they had been waiting for all their lives, its ancient dry spirit capturing them instantly.

  I have often wondered whether I would have fallen in love with it if I had not grown up in this landscape, or whether I would have only seen it as harsh and bedraggled, lacking all grace and charm, as the early English settlers did. I suspect that my head full of a European mythology of beauty would have prevented me from seeing or feeling the mystical presence that saturates the bush. After all, I fell in love with Europe in an instant – what sort of faithfulness is that?

  And what am I really saying when I use words like ancient dry spirit and mystical presence? Is there a sub-atomic vibration in the land and the vegetation here that is different from the vibration of Europe or anywhere else? A chemistry of being? A physics? Is there something in the apricot-coloured trunk of an apple gum, the rough bark of a she-oak, the grey-green eucalypt leaves, the fine dust under the kurrajong, the sand in the creek bed, the rocky slope above the river, the kangaroo grass on the hill, the red earth itself? Something that persistently and silently promises revelation. I don’t know. But I acknowledge something unmistakeable happens in the bush that I cannot help being aware of and which I have not felt anywhere else, an inexplicable sense of the landscape dreaming itself into being. As much as the beauty of Europe enchants – a spell made of childhood reading, of meadows and hazelwoods and ruined chateaux – it has never promised revelation.

  I watched the documentary with Gaynor. The camera panned over the familiar landscape of low hills and river flats, a landscape I knew as well as the faces and bodies of my family. I felt the pleasure of seeing my place, myself, reflected. Here it was on the television screen. It must be real. It must matter.

  One of the elders at Nanima, Jim Stanley, said, ‘For a young girl to come along and do this to the old people . . .’ and then was lost for words.

  He was talking about Rose, a woman who would have been at least forty at that stage. His voice was not at all angry, just saddened and shocked. His look of bewilderment and hurt reminded me of someone. I realised it was the same look my father had on his on his face when, with the education he had provided, I dismissed what he believed in.

  Rose, sitting in the open air with her committee, at ease with the camera, engaging and commanding at the same time, said, ‘These people who say they are elders . . . I really don’t know, there was no need to consult with the people of Nanima. These people want to run it for their own gain.’

  The interviewer suggested Rose might be accused of the same thing and she laughed and said, no, she was doing it for all the people to have a future. She had long, thick black hair, a broad face, a large build, that loose-limbed way of sitting and standing and walking. In one shot, she sat leaning forward, legs apart, laughing easily, but there was something edgy in her manner. Her eyes were ready to make an accusation or defend against one. I had the immediate impression that I would rather she was on my side than against me. I remembered how quickly she had taken control of the first telephone call and knew that I hadn’t stood a chance.

  The families on Rose’s committee were Ah See, Amatto, Bell, Peachy and Towney. There were other claimants represented, but these families each had members on the committee. Joyce’s group of claimants didn’t exist as a legal entity at the time of the documentary, but the families associated with it stood there in a loose group – Rileys, Carrs and Stanleys.

  After we watched the video, Gaynor expanded on the documentary. She agreed that part of the conflict lay in the fact that the NSW Aboriginal Land Rights Act decreed membership of local Land Councils was to be based on residency rather than tribal identity. This meant that whether you were Wiradjuri or not, you could still sit on the local Land Council. She said that at first Rose didn’t want the Land Council to have anything to do with the claim, but then saw it would be to her advantage to have it onside and so she organised for people from her group to be elected onto it, which backed up what Joyce had told me.

  ‘Rose’s mob systematically took over key positions in key organisations, even the Health Co-op that Joyce had devoted years of her life to setting up.’

  I commented, knowledgeably I thought, that Wiradjuri identity came through the mothers so Rose had no right to local land.

  ‘That’s not true. I suppose Joyce told you that.’

  ‘Yes, but not just Joyce. I found it in my research as well. An early ethnologist, Henderson, I think, he said so as well. You’re Wiradjuri if your mother is.’

  ‘Wiradjuri is a language group. There’s a blurring of concepts here. And Aboriginal identity is not just through biological family, it’s a whole pattern of elements. Your totem comes through your mother. In relation to the land, it’s also about who has the right to identify with country and who has the right to speak for it – not the same thing either.’

  ‘So how is someone Wiradjuri then?’

  ‘We need to go back a bit. Traditionally, the moiety of Wiradjuri was matrilineal. Moiety is the division of a clan in the same language group into skin groups and determines kinship,’ Gaynor explained. It was her area of research, she had written a number of papers and a couple of books on Wiradjuri history. ‘It means you can have skin sisters, brothers, cousins, aunts and uncles that you are not biologically related to. The skin group dictates all social relations includin
g who can marry whom, and who must avoid whom. It’s ritually significant and determines what your totem will be. Most of the Wiradjuri were one of two totems, the crow and the eaglehawk. Your moiety gives you the right to identify spiritually with certain areas of land, but so does where you were born, who your mother and father are. Couples always lived in the woman’s country and your moiety and therefore totem was passed down through your mother.’

  ‘What about now? Do Wiradjuri still know their moiety or totem?’

  ‘No, they don’t, not any of the people I’ve talked to, but there is still the notion of the right to identify with country and the right to speak for it. You can identify with country, have a spiritual right to it, but you don’t necessarily have the right to speak for it. And that’s distinct from ritual or economic or political rights as well.’

  ‘What gives you the right to identify with country?’

  ‘You can have it through your mother or father or where you grew up.’

  ‘Doesn’t that mean Rose has the right to identify?’

  I was thinking of myself, plaintively. Don’t I have the right?

  ‘Rose left Wellington as a teenager and didn’t come back for twenty years. She still has the right to identify, but not the right to speak for country. She did not try to reconnect with the elders and reintegrate herself. She spoke as a resident with a childhood connection, but in Aboriginal culture, that does not give the right to speak. This is the heart of the problem, the real offence. The Land Rights Act, in effect, collapsed the distinction between the right to identify and the right to speak for country, but for Aboriginal people it is still law. Under Aboriginal law, Rose had no right to speak for country.’

  I immediately thought of the look in Jim Stanley’s eyes and the tone of his voice. He could not comprehend how Rose could give such offence – For a young girl to come along and do this to the old people. It’s all there in the phrasing: a young girl – she wasn’t an elder and had no right; to come along – she came from somewhere else; do this to the old people – they had not been accorded the respect they were due.

  Afterwards I realised that was what Joyce had been trying to tell me. Recounting family lineage was not to tell me who was related to whom; she was speaking about Aboriginal law and tradition, about who was entitled to speak for country. I had not properly listened, because I had already decided Aboriginal culture didn’t exist anymore in Wellington. And it is true that there isn’t much traditional Aboriginal culture these days – at least not observably. All the Aborigines in Wellington and Nanima live in houses, go to school, go to the pub, play football, shop at Bi-Lo, same as the whites. The older women wear the same unobtrusive style of skirt and cardigan as my mother, the young men the same baseball caps and t-shirts as my sons. It’s the stories of family and kinship and identity that are different.

  20

  Native Title Histories

  I couldn’t help feeling that what I had been told so far might be unfair to Rose. She had been struggling for the Town Common land for fourteen years. She obviously felt she belonged in Wellington too. There must be more to her story. But before I begged Rose for an interview again, I had to clarify the sequence of events. I had the timeline, but I needed to try to fill in the factual gaps that Joyce had partly woven over with stories. Not being a historian with a proper dedication to facts, there was a strong temptation to spread out what I had and smudge the edges of each bit to cover the blank space.

  The central aspect that needed to be clear, even before the timeline, was the Native Title process itself. I sat down with the National Native Title Tribunal’s guidelines: first, a group of people, claimants, must form themselves into a legally recognisable body, then lodge an application with the Federal Court. At the same time, a separate body, the Native Title Tribunal, which has no power to determine claims, must decide whether the claim can be registered.

  Registration is the key, because once a claim is registered, the claimants have certain rights, such as the right to negotiate over use of the land. This right is given even before the legitimacy of the claim is determined, so the tribunal has to be sure it’s a reasonable claim. In a sense, registration is an acknowledgement of Native Title. Practically, it is treated as an acknowledgement and gaining registration is celebrated as a victory – the claimants have shown beyond reasonable doubt that the land is rightfully theirs.

  Because of the rights registration gives, the tribunal must establish that the people on the claim can be clearly identified, and that there has been a continuing physical connection with the land. But a physical connection can be a slippery thing to prove, especially when, as with the Wellington Wiradjuri, the traditional way of life – hunting and gathering – has not been possible for a long time. This means there has to be an investigation of the claimants’ family trees and life histories, and so anthropologists, like Gaynor, are often called in to gather evidence. The tribunal publicises the claim so that anyone – pastoralists, local councils, mining companies or other Aborigines – can object. If there are objections or interests, the Federal Court makes orders about mediation and the tribunal organises the mediations.

  Now all this can take a few years and if the tribunal decides the claim can be registered then the case goes ahead in the court. If everyone is in agreement a determination is simply made, but if not, then a trial follows where the evidence of all sides is heard.

  This is the framework for what was happening in Wellington, an elaborate, wiry construction of law, mostly invisible to most of the people involved, determining the validity of their every move. Joyce and Rose both recounted stories about their ancestors to anyone who asked – lawyers, anthropologists, journalists – trying to make their words affect this strange legal machinery, trying to make it yield by its own arcane magic the right to 183 hectares of land.

  So what had happened in Wellington? As far as I have been able to piece it together in my own haphazard fashion, this is more or less what unfolded.

  After the mediation presided over by Robert French in 1994, the New South Wales government had to sign the agreement before it could be lodged with the tribunal. The then Liberal government wasn’t over-eager to sign. A newspaper report records that the claimant’s lawyer, Mr Paul Coe, himself Wiradjuri, said, ‘the New South Wales government is being its usual racial and discriminatory self’. But the incoming Labor government was just as reluctant. It stated it had no desire to block the claim but expressed reservations about the level of evidence of ongoing connection with the land.

  There was legal opinion that the lack of a ‘threshold of evidence’ of connection meant any Native Title claim, no matter how vexatious or implausible, could be registered by the tribunal. Theoretically, any Aboriginal person could make a claim over any Crown land, which if registered, meant the claimant could intervene in its use. It’s pretty clear that no-one in government wanted to open that can of worms, so no-one was going to do anything until a threshold was set. The claim stayed on ministers’ desks as months turned into years.

  After the claim stalled I couldn’t find any more clues until the September 1997 Native Title newsletter, which said the claim was due back in the Federal Court. Here it was noted for the first time that a new solution might be possible: a freehold transfer of the land via an Indigenous land use agreement.

  The following year, Gaynor withdrew as anthropological consultant because, in her judgment, there wasn’t enough evidence to support the claim. She wrote to Rose and told her she could no longer work with her. Rose and her committee asked that the case be referred to the Federal Court. The Sydney Morning Herald again reported that the Wellington Common was ‘close to being handed back to the Aborigines’.

  It must have been feeling like groundhog day for Rose. She was quoted as saying: ‘Young people have grown big and gone the wrong way and some elders have died in the years we have waited for politicians to come to a deci
sion.’ It was such a rhythmic poetic sentence; if that was actually the way she talked, I had to meet her.

  In 1999 the Aboriginal Affairs minister in the New South Wales government, Dr Andrew Refshauge, appointed a mediator, Tim Moore, to negotiate an Indigenous land use agreement. Mr Moore was optimistic, saying it would only be four or five months before land could be given to the claimants. By then the claimants had agreed that any Native Title claims would be surrendered for freehold title. It wasn’t much to surrender; their Native Title claim had failed because the conditions required for the identity of claimants had not been met.

  In the meantime, Rose had tired of all the to-and-fro and moved into an old tin hut on the Common where her grandmother Matilda Bell had lived. She said, again so poetically, ‘Old government rigmarole takes such a long time.’ She was directed to change her list of claimants to include those Wiradjuri not presently living in the area, and excluding those not eligible. I could hear Joyce saying, ‘see, exactly, they’re not entitled’. But after being excluded for so long, after not being considered and respected as elders, there was no way Joyce and her ‘Traditional Families’, as she called them, were going to join in.

  It was Rose the media wrote lyrically about when the July 2000 announcement was, at last, made:

  ‘It’s a beautiful evening,’ said Mrs Chown, as rain fell on the tin roof of her grandmother’s humpie. She had received the news that the hand-written application she lodged in January 1994, just 17 days after the Act was passed, had finally led the Government to announce that the Wiradjuri would own the land.

  It was sounding like a great conclusion for Rose. Mr Moore said it looked like the land would be formally handed over by the end of the year, but it was still going on by mid 2002, when the claim was finally lodged. By then one objection had also been lodged – from Joyce’s mob. On and on it went, but the official records continued to sound as if everything was unfolding as neatly as it should.