In the late 1870s Alexander Forrest travelled from the western side of King Sound, crossed the Fraser River and then journeyed up to the Fitzroy River. He climbed Mount Clarkson and said he had a very extensive view of the surrounding country.  

To the west clear grassy plains stretched out into the distance, while to the south the lowlands of the Fitzroy could be seen. On the top of Mount Clarkson, he saw columns of smoke from the native fires which rose up in every direction. This gave him the idea of a thickly populated country which he wrote in his journal. 

This is Nyikina country – the ancestral land of my people and my family. 

Word had gone around of Alexander Forrest’s travels; the rich land for grazing and the opportunity to develop the Western Australian colony. This discovery of land along the Fitzroy River would set my people on a collision course, the taking of our traditional lands, the forced removal of our people and their exclusion from the economy which is still being played out today. 

It is déjà vu as history repeats itself when the Government of today makes deals with pastoralists to the exclusion of Native Title holders. 

The settling of the Fitzroy River started with the establishment of Yeeda Station by the Cornish brothers in 1882, through the Kimberley Cattle Company. The Cornish brothers’ own journals record the shooting and killing of Nyikina men as they started to establish a footprint on the river and settled the current Yeeda Station homestead location, the birth place of my great grandmother. 

Anthony Cornish, a working partner, shareholder and the youngest of the five brothers that set up Kimberley Pastoral Company on Yeeda Station, was the first white man speared and killed on the Fitzroy River at Lanji Lanji. Lanji is an area used today for fishing and recreational activities. It is still today a place for Nyikina people, culturally and economically.

There was no agreement to take our ancestral land. As a result of Anthony Cornish’s death, the politics of development and the protection of settlers was used as a tool to dispossess our people of their homelands, our property rights and warrant injustice against us.

The government of the day gave full protection to the settlers who resided in distant parts of the colony and the attitude and policy of the day was reinforced as reported in The West Australian on March 2, 1883. The newspaper reported the need for “protection and support” of settlers taking justice into their own hands in northern areas such as the Kimberley, where cattle were being killed by Aboriginal people.

The newspaper said the “blacks” had not yet acquired a knowledge of the full power of the whites, signalling the beginning of the government of the day turning a blind eye to the injustice being afforded to Aboriginal people. The early pastoralists pushed for whites to display power by dishing out justice and punishment on the spot to the black. This was seen as the only way to protect the settlement’s commercial effort to establish a pastoral industry on the Fitzroy River. 

Sadly, the principle of dispossession is upon us again. Despite Traditional Owners gaining acknowledgement of our ancestral rights after 140 years, through Native Title on and along the Fitzroy River, Traditional Owners are concerned that the Western Australian McGowan Government has positioned itself to back private pastoral interests on the Fitzroy River.

This would further dispossess Traditional Owners of their property and water rights, handing those rights to the pastoralists.

This is being played out in State Government as part of the State’s position on land tenure. The Department of Planning Lands and Heritage (DPLH) is continuing to implement policy and action in support of the doctrine of Terra nullius which was overturned by the High Court of Australia. That is, Crown Land is referred to as “vacant or unallocated,” despite Native Title being recognised as existing on Crown Land, as determined by the Federal and High Courts.

However, the McGowan Government is treating Aboriginal people’s interest in their land the same as the law around any ordinary person’s property interest. That is to say, they are trying to make laws that take away Aboriginal property rights but do not affect the ordinary person’s interest. However if you are not prepared to take away everyone’s property interest identically, then you should not treat Aboriginal property interest as different. 

As Dr Martin Luther King Jr. said, when the majority makes a law that only affects a minority in society and doesn’t apply that law to the majority, then it is an unjust law. 

We expect fairness and justice given how recent and ruthless first contact was in the Kimberley. The State and settlers have had over 109 years of economic advantage to use our traditional lands via pastoral leases. This has created economic independence for themselves and built the wealth of the State while my ancestors were shown the power of the “white settlers” at the time. 

It is Traditional Owners’ time to have certainty and secure tenure for our future. The last remaining part of Crown Land is not unallocated land, it is Native Title land. We have lost so much and therefore we should have priority over any land decisions made. 

We have waited with hope for the election of Ben Wyatt, Treasurer, Minister for Finance; Aboriginal Affairs; Lands, for land tenure that would allow us to secure our future. Time is running out, this may become a missed opportunity by Labor to reform the debilitating land tenure arrangements affecting Aboriginal people in WA.

Aboriginal people suffer each and every day as a result of WA’s historical legacy of dispossessing Indigenous people of their lands. This has been entrenched in a State land tenure system which refuses to recognise Native Title as a registrable interest. Despite the Labor Party having a policy that Native Title is property, the administration of the Department of Planning Lands and Heritage in WA, administered by the McGowan Government, has no signs of addressing this reality and appears to be frozen in time as if we are still in the 1880s.

For years, if not decades, vast tracts of land have been mislabelled as “Unallocated Crown Land” when this land has in fact been determined as exclusive possession Native Title under the Commonwealth’s Native Title Act 1993.

But the State continues to diminish the value of those determinations by not allowing Aboriginal landowners to use their lands for economic benefit.

We cannot deal in these lands in the same way that any other landowner deals, developing the land, registering mortgages and trading in tenure over the land to build an economic future for ourselves.

For Aboriginal people, we are sadly left with having to ask for handouts, becoming a burden on the taxpayer. There is also no process for the settlement of compensation in this state.  We are waiting to see what the state will do with the amendments to the Aboriginal Heritage Act 1972; recognise our values or continue to operate in an 1880s mentality.  

This discrimination is reinforced by the State’s historical enmity with the Commonwealth Government over the introduction of Native Title in the 1990s. WA saw Native Title as a direct threat to its constitutional control over land administration, a system which was introduced in the colonial era. 

The appointment of the first Aboriginal person as Minister for Aboriginal Affairs at State and Commonwealth level may have led Aboriginal people to hold out hope that change was coming.

Instead, with only a year or so to go until the end of the McGowan Government’s term in office, nothing has progressed concerning land tenure and addressing compensation.

We are stuck in the horrible twilight of neglect and dependency on a system that doesn’t seem to care.

We have been left in the lurch despite WA having existing laws that could assist with secure tenure. An example of this is section 83 of the Land Administration Act 1997, which allows for the Minister for Lands to issue Aboriginal leaseholds for a term or in perpetuity or freehold on lands across the State, but nothing has been progressed.

The Department of Planning Land and Heritage, an amorphous monster which seems to have very little interest in advancing Aboriginal interests, now administers both the Aboriginal Land Trust lands and the Land Administration Act 1997.  It is understood there are only a handful of Section 83 titles ever issued in Western Australia and none under the current Government. This is a major disappointment.

Almost every day, I meet Aboriginal people who are very frustrated. They live in buildings and homes on land without tenure and try to run businesses on “Crown,” Native Title lands, but they live in a legal twilight zone like squatters with homes which they cannot insure or mortgage and businesses that must rely on government grants to raise capital. 

Most have long given up on the dream of home ownership and rely on Aboriginal housing administered by another unresponsive bureaucracy, the Department of Communities, thereby reinforcing their dependency on State handouts. As taxpayers, we all need to stand up as this is not acceptable.

In general, I believe Australians are very sympathetic to Aboriginal people and want to see the gulf of disadvantage closed. The door is open for the McGowan Government not to squander this opportunity. Aboriginal people are expecting leadership, not more bureaucracy and obfuscation.  

I am happy to take a delegation of Premier Mark McGowan and his Cabinet ministers to see first-hand the opportunities that are possible with good leadership. Change is long overdue. We are not in the 1880s, this is the challenge.

By Wayne Bergmann

Wayne Bergmann is a Nyikina Traditional Owner and an Owner of National Indigenous Times.