Part 2: "Undermined: Tales From The Kimberley" - Native Title

Young leader Albert Wiggan. Courtesy of Mark Jones/Undermined Film, 2019.

“What we’re talking about is a colonial framework, and Indigenous people are living in times where the colonisation has not left. We are confronted with it on a daily basis.” - Albert Wiggan, Nyul Nyul and Bardi Traditional Owner, 2018. 

The initial motivation to investigate the political and ecological issues in the Kimberley came to fruition when the WA state government announced the plan to close between 100 and 150 remote Aboriginal communities in 2015. Since there was little in-depth media coverage reaching the East Coast of Australia, the filmmakers decided to record the stories of the local community members affected (Undermined film, 2018). In a Q&A with MIFF (2018), the producer Nicholas Wrathall spoke of their discovery from talking to locals about this issue:

“We found that people on the ground in the Kimberley region were not getting any information on the future of their own communities and were living under a cloud of government threats of closures and uncertainty for their future on their lands...Once we started speaking to local people in the region we discovered that their major concerns centred around the proposed development push to open up the region to increased mining, fracking and agricultural development. This became the central issue of our film as we continued our work.”

Activist, musician and Bardi-Kija-Nyul Nyul Traditional Owner, Albert Wiggan, joined the film crew as Co-Producer and Indigenous Consultant to ensure that the integrity of locals in the Kimberleys were reflected in a respectful and culturally appropriate manner. With the help of Albert, the producers were ready to embark on their investigation. This involved delving into the political economy of the Kimberley region, particularly in relation to the developers engaging with Traditional Owners via the Native Title process and the WA government’s new policy of Developing Northern Australia (Undermined film, 2018).

Kimberley Language Groups. Courtesy of the Kimberley Language Resource Centre, 2018. Disclaimer: The Kimberley Language Resource Centre acknowledges that there are dialects not represented on this map.

Native Title 

Producer Nicholas Wrathall wanted to create awareness around the concerns for Traditional Owner’s rights in the Native Title Act in regards to the future development of the north. To break this down for you, let’s look at some history for a brief moment. After Eddie Mabo’s famous victory in 1992 in the High Court, the colonial legal doctrine of terra nullius (empty country) was diminished in favour of the rightful claims of Australia’s First People. This welcomed the enactment of the Native Title Act 1993, which commenced on 1 January, 1994. Here, it is important to note that there are fundamental differences between land rights and native title. Land rights are “rights created by the Australian, state or territory governments” and they “usually comprise a grant or freehold or perpetual lease title to Indigenous Australians” (Australian Government Attorney General’s Department, 2021). Whereas, native title is a “result of the recognition, under Australian common law, of pre-existing Indigenous rights and interests according to traditional laws and customs. Native title is not a grant or right created by governments” (Australian Government Attorney General’s Department, 2021). This means that the federal Native Title Act affords Traditional Owners a set of rights to access their Country for traditional purposes such as ceremony, hunting, fishing and gathering. It does not, however, provide actual land tenure (Undermined film, 2018). 

The Kimberleys has the highest percentage of Aboriginal people living on Country in Australia, and 94 percent of the landmass is subject to a Native Title claim or determination. As confirmed by Tony Eyres from Austrade during his interview with producers at the Developing Northern Australia Conference in Darwin, 2016:

“The vast majority of Northern Australia is held by Traditional Owners with Native Title. They have their foot on a huge amount of the land in the north.”

In the eyes of an investor, Eyres (2016) explained that the Kimberleys region is ideal for large-scale development due to “its abundance in natural resources, and its proximity to Asia” (Eyres, 2016). The seriousness of this interest was already pitched at the 2016 Developing Northern Australia Conference, whereby the Kimberley region is proposed to be the next international food bowl for Asia (Undermined film, 2018). Essentially, what is happening here is the old-age colonial story of opening up the land to pave the way for development. 

In Wrathall’s latter interview with MIFF (2018), he discussed this classic case of land grab:

“...native title laws are being circumvented to allow corporations to open up the land for development without traditional owners being included in the planning and also the potential benefits that flow from development.” 

 Origin Energy fracking in the Northern Territory. Courtesy of Environs Kimberley, 2021.

Forty to fifty years ago there was no such thing as native title, so if a mining company wanted to build a mine they just had to get approval from the state government. Supposedly, since the Act was passed mining companies cannot build a mine unless they negotiate an agreement with the Traditional Owners of the Country (Parker, 2019). Nyikina Traditional Custodian and Indigenous Rights Advocate, Dr. Anne Poelina explained in the documentary that this is not the case as the Native Title Tribunal has been set up in a way to fast-track development. This means that the Native Title law and its Right to Negotiate will only allow six months for Traditional Owners, Elders and significant community members to become organised and coalesce a surrounding decision as to whether they agree on the particular development on Country or not. If an agreement is not reached within this time period, the power then resides with the developer to proceed as they please. Essentially, this forces Traditional Owners into negotiations with developers on their land with no right of veto (Poelina, 2018). 

Bardi-Kija-Nyul Nyul man, Albert Wiggan (2018), firmly believes that from his experience as the representative on the board of the Kimberley Land Council and Nyul Nyul Indigenous ranger, “the way politics and general business is being negotiated, Indigenous people are being used.” Former CEO of the Kimberley Land Council and proud Nyikina man, Wayne Bergmann (2018) also told Wrathall of his experience in regards to these negotiations:

“Native Title gives you a seat at the table, and that’s all it does...It does not encourage companies to do an agreement. It legitimises mining companies or developers to access Aboriginal land, and take it away without paying any compensation.”

Dr. Anne Poelina in Kimberley region. Courtesy of Charles Darwin University, 2021.

During the aforementioned conference, Yawuru man, former Executive Director of the Kimberley Land Council (in the 1990s) and current CEO of Yawuru Prescribed Body Corporate, Peter Yu (2018) described that this approach of “posting Western developments, at the expense of Indigenous traditional culture and values… is a development approach from the 19th century.” Resultantly, the WA government’s reliance on this aged approach is based on “exploiting the north’s national resources, and extracting the region’s wealth for the benefit of Southern Australia, and not the permanent population of the north.” Peter Yu (2018), believes that the risk involved in this circumvention of Native Title Rights is that “many Indigenous people see governments’ development as a continuation of the colonial past.” 

Between this ecological uncertainty and the race to tap natural resources in the Kimberleys, we are faced with the questions: who gets to define what meaningful negotiation looks like between developers and Traditional Owners? What will be the continuing path to social justice for First Nations peoples? What will this development mean for the Kimberley’s custodians, cultures and lands? And will they be able to survive the economic pressures forced upon them from the industrialisation of their Country?

Check out the trailer of “Undermined: Tales From The Kimberley” below! Courtesy of MIFF, 2018. 

If you haven’t already read Part 1 of this series, focussing on this incredibly insightful documentary and the environmental and communal issues surrounding it, click here to catch up.

 Keep your eyes peeled for Part 3 of this installment, focussing on the saving of James Price Point!