Blue Mud Bay: Yolngu win takes Wik to the water

Today's Northern Territory election is proving a surprisingly tight contest with a wafer-thin majority in the former Labor leader’s seat now likely to decide the election. Labor were expected to win comfortably but have lost four seats already. They will retain government only if they can hang on in a close contest for the seat of Fannie Bay, formerly held by Clare Martin. With the highest participation of amateur fishing in Australia, Labor may have suffered a backlash in the wake of the Blue Mud Bay land rights case, despite fighting it in the courts. Labor lost that case to the Yolngu people. A landmark ruling in the High Court last month awarded them custody of 7,000 kms of lucrative coastline.

As Paul Toohey wrote in The Australian, neither major party congratulated the traditional owners for their historic court triumph last month. The angling industry is up in arms: the ruling means non-indigenous fishermen will probably have to pay a fee to fish for recreation and commercial purposes in Blue Mud Bay. Commercial fishers will need to apply to an Aboriginal land trust for licences to fish in tide-affected rivers, deltas and coastline. Amateurs will be relying on the Territory Government to do a deal with traditional owners and acquire free one-off permits on their behalf to enter Aboriginal owned inter-tidal zones.

Blue Mud Bay is Yolngu country in East Arnhem Land, a couple of hundred kilometres south of Yirrkala. Yirrkala is some 600km and a ten hour drive from Katherine in the dry season, and is cut off in the wet. Despite their remoteness, the Yolngu had encounters with non-Aboriginals well before the First Fleet arrived in Sydney. But the contact was with Islam not Christianity. The Muslims to the north knew about Australia as early as the year 820. Persian mathematician Muhammad ibn Musa al-Khwarizmi drew a map of the Sea of Java which showed Cape York Peninsula, a "V" shaped Gulf of Carpentaria and a curved Arnhem Land.

From the fifteenth century, trade grew rapidly in the Indonesian archipelago. Macassan sailors from the island of Sulawesi (Celebes) began trading with northern Aboriginal fishermen. The Macassans came in search of trepang. Otherwise known as bêche-de-mer, sea cucumber, or sea-slug, trepang was a delicacy in China, where it could be traded for profit. The Asian impact transformed the lives of the coastal Aborigines.

The language of the traders became the lingua franca for many tribes from the Gulf of Carpentaria to the Kimberley. Their own languages became dotted with Macassan words. In places like Groote Eylandt, Macassan elements became incorporated in local rituals. Aspects of Islam infiltrated Dreaming ceremonies. It is likely a few traders settled there intermingling their blood into local populations.

This neighbourly relationship was brought to a rude end by the colony, and then state, of South Australia which ruled the Northern Territories until 1911. The British first came to northern Australia with the establishment of Fort Dundas in 1824. Dundas was too remote and failed but other fortications followed. The new masters didn’t like the trade between the local blacks and the heathens across the sea. They eventually prohibited the selling of trepang in 1906 ostensibly because it encouraged smuggling. The real reason was to restrict Asian economic endeavours to protect new White capitalist initiatives in Adelaide and elsewhere in the south.

The loss of trade was devastating for the Yolngu. Already suffering from the occasional massacre and their lack of immunity to European diseases, they descended into poverty and became, like all other Aboriginals, “wards of the state”. They continued to fish, however, and in the early 1930s were party to an extraordinary encounter that would have significant reverberations still felt today.

Japanese fishermen also prized the bêche-de-mer and they entered Yolngu lands without a permit in 1932. Between three and five of them were speared to death by locals at Caledon Bay. Japan protested to Australia over the killings and a police party was sent from Darwin to look for suspects. They kidnapped four women all of whom disappeared. After one of the police party was speared in revenge along with two white trepangers, anger mounted in Darwin. There was a growing desire to “teach the uppity blacks a lesson”.

But coming shortly after the cover-up of the Coniston massacre, the idea of a punitive expedition was put down. Protest meetings in Sydney and Melbourne raised a collection to send missionaries to Woodah Island. There, they persuaded several Yolngu leaders to come to Darwin, where they were promptly arrested. One of their members, Dhakiyarr Wirrpanda, was charged with the murder of the policeman. The white jury found him guilty even though there was a glaring lack of evidence and no witnesses. Dhakiyarr (named “Tuckiar” by the court) was sentenced to hang. His defence appealed to the High Court which quashed the conviction. He was freed from Fannie Bay Gaol and was taken to Darwin. A missionary arranged to meet him but Dhakiyarr missed the appointment and was never seen again.

In 2003, Dhakiyarr’s family held a reconciliation ceremony in the presence of the Chief Justices of Australia and the Northern Territories. The ceremony began with a ritual symbolising the cleansing tides of a tidal surge, before moving inside the Darwin Supreme Court building to install ceremonial poles. The legal importance of the seawater symbolism would become more apparent in the years to come.

In 2005, the Federal Court of Australia ruled on the Blue Mud Bay case. The issue at stake was whether the Bay's traditional owners could exclude fishermen and others from tidal areas of the claim zone under the Native Title Acts. The court ruled in their favour on the grounds of their continuous association with the land. With 80 percent of their lands now off limits, the angling industry protested. On their behalf, the Territory government, supported by the Federal Government appealed to the High Court.

The Canberra court found in favour of the Yolngu. The High Court decision followed in the logical paths of the Mabo and Wik decisions on native title. The doctrine of “Terra Nullius”, the land without owners, was a myth. Despite the annexation of Australia in 1788, the Colonial Office clearly recognised the Aboriginals retained a proprietorial title to their land which had not been extinguished by the claim of sovereignty.

The court confirmed Aboriginals as legal owners of 7,000 kms of Yolngu country around the north-east Arnhem Land coastline. As a result, an estimated 45,000 anglers who use the bay will no longer be able to fish there for free. Local white conservatives are furious. Country Party Liberal leader and fisherman Terry Mills says his rights have been infringed and he won’t apply for a permit. "The freedoms Territorians enjoy have been challenged by this decision,” he said.

Mills was keen to make Blue Mud Bay an election issue. Meanwhile Labor, who took the Yolngu to court, wanted to be seen as practical peacemakers. Last week Chief Minister Paul Henderson said it would comply with the High Court ruling but also sought “the capacity for recreational fishermen to go fishing on affected waters without charge or need for an individual fishing permit”. With a narrow win, or a possible hung parliament on the cards, Henderson will need to place great store than ever on “the willingness of Territorians to resolve these matters.”