Late in May the Federal Court recognised the existence of native title over the 1700 square kilometres of Huckitta station, an Aboriginal-owned pastoral lease roughly 270 kilometres northeast of Alice Springs. The judgement brought to an end a quest dating back almost half a century to the earliest days of the Northern Territory’s Aboriginal Land Rights Act, introduced by the Fraser government in late 1976.
Federal Court justice John Halley delivered the decision at Huckitta station, sitting on a plastic chair under the river gums on the banks of the Plenty River. Based on an agreement between the Central Land Council (representing the native title claimants) and the NT government, it confirmed the native title holders’ exclusive possession of the claim area. Henceforth, they will have perpetual title to their country and enjoy the statutory protections laid down in the Native Title Act.
It’s been a long haul for the claimants and their forebears. The 1976 act gave them the right, for the first time, to make land claims in the Territory, but it met with strong resistance from pastoral and mining interests, particularly when Aboriginal communities sought control of pastoral leases. The Fraser government responded in 1982 by proposing a prohibition on claims over purchased pastoral leases, but that move was opposed by Justice John Toohey when he reported on the act’s operation the following year.
Pressure from pastoralists and miners continued, and in 1987 the Hawke government legislated a ten-year deadline for finalising all claims. From 1997 it would no be longer possible for an Aboriginal group to purchase a pastoral lease and convert it to inalienable title under the Territory act.
In 2010, nearly a quarter-century after the Hawke legislation, Huckitta station was purchased for Eastern Arrernte traditional owners by the Central Land Council. The purchase was funded from the Aboriginals Benefit Account, which receives an equivalent of royalties paid for mining on Aboriginal land in the Territory, after vigorous lobbying by the CLC under its then director David Ross. Indigenous affairs minister Jenny Macklin’s approval for the funding implicitly acknowledged that the widespread take-up of pastoral leases by non-Indigenous interests had limited the Eastern Arrernte’s access to their traditional lands.
While the Huckitta buyout is of enormous significance to its traditional owners, it resonates in a quite different way within legal policy circles.
On New Year’s Eve 1978 a group of three Aboriginal children, Mark Collins, aged twelve, Kevin Stewart, thirteen, Joylene Williams, fourteen, and two Aboriginal women, Josephine Woods (who was intellectually disabled) and Janice Edwards, stole a vehicle and a rifle from the store in Amoonguna fifteen kilometres southeast of Alice Springs.
En route to Queensland, the group drove into the Huckitta homestead to repair punctured tyres. Huckitta was owned by three brothers named Webb, one of whom, Quintin, was resident manager accompanied a single station-hand. After a radio call was made to a nearby station for a spare inner-tube, Edwards accompanied the station-hand to check some baits at a nearby dam. When they returned, they found Quintin Webb had been killed by a single shot to the chest. The three children and Woods were gone in the station’s Toyota.
Police called from nearby Harts Range quickly apprehended the children. All four of them plus were arrested, as was Edwards, and the weapon was recovered. The following day, some nineteen hours after the arrests, police from Alice Springs arranged a series of photographed re-enactments of the alleged events with each of the suspects. Sometime later, all five were brought before a magistrate and charged with Webb’s murder.
The Huckitta Five, as they came to be known, were defended by the Central Australian Aboriginal Legal Aid Service. Pam Ditton, CAALAS’s principal solicitor, arranged for separate representation for each of the defendants; among them were Melbourne barristers John Coldrey and Frank Vincent, both destined to be Supreme Court judges. In his retirement speech in 2008 Coldrey recounted the events leading up to, and following the arrests, and the approach adopted by the defence.
With no independent witnesses to attest to the circumstances of Webb’s death, the police case rested entirely on the defendants’ alleged confessions and the photographed re-enactments. The defence case was based largely on the question of whether the confessions and re-enactments were voluntary and whether the delay between the arrests and the charges (which arguably constituted an arbitrary deprivation of liberty) were justified.
Following an extended pre-trial hearing, Justice John Gallop decided not to admit the records of interview but to allow into evidence the photographic re-enactments. All four of the defendants who had been present when Webb was killed were convicted and sentenced to nine years’ imprisonment. Janice Edwards was acquitted.
John Coldrey takes up the story:
On appeal to the Federal Court, Justice Brennan ruled that the re-enactments had not been shown to be voluntary and were therefore inadmissible. He pointed to the conduct of the police in taking the appellants back to Huckitta without their consent; leaving them at the scene for many hours without informing them of the reason for their presence there; providing a prisoner’s friend who was unknown to them and who virtually acted as a police agent; and requiring them to perform re-enactments without any adequate caution. At no time were the children’s parents notified of their predicament.
Justice Brennan was in the minority, however, and the convictions were upheld. The High Court refused leave to appeal.
NT legal aid lawyers Suzan Cox and Russel Goldflam argue that Justice Brennan’s dissenting judgment in the Huckitta case “served as one of the foundation stones of the jurisprudence developed by the High Court” after Brennan joined that court, “culminating in Williams v The Queen, which considered and constrained the lawful limits of post-arrest police detention.”
Cox and Goldflam go on to outline the sorry history of police powers of detention in the NT. Subsequent legislation aimed to bypass the High Court’s explication in Williams v The Queen of the common law rights of citizens not to be arbitrarily detained. As of 2019, NT police had the broadest powers of detention without charge of any jurisdiction in Australia, a situation that does not appear to have substantively changed since then.
Apart from the common link of Huckitta station, these two narratives — the lead-up to the determination of native title over Huckitta pastoral lease and the repercussions of the murder of the owner of Huckitta station — seem to have little in common. Yet there are intriguing resonances within and between each narrative, both individual and institutional. These interconnections don’t amount to a theory of causation, but do suggest the existence of deeper and more complex factors in play in relation to the precursors and indeed the ongoing consequences of any policy initiative.
One example comes in Sir Edward Woodward’s 2005 memoir One Brief Interval, in which he recounts his appointment by the Whitlam government in 1973 to head the royal commission into Aboriginal land rights in the NT. Among his recruits was Gerard Brennan, then a barrister at the Queensland bar, whose job was to act for the nascent Northern Land Council, which had been established to represent Aboriginal views. Woodward’s reports provided the basis for the design of the Whitlam government’s NT Aboriginal Land Rights Bill, which was enacted by the Fraser government in 1976.
When Brennan later came to write the lead judgment in the Mabo Case, which established a new form of land title within the common law, native title, and overturned centuries of judicial precedent based on terra nullius, he would undoubtedly have drawn on his experiences during the Woodward royal commission and the Huckitta Five case. Each involved the interplay of Indigenous societies’ traditional, linguistic and cultural ways of seeing the world and relationships to the land and the wider Australian legal system.
The public servant who oversaw the preparation of the Whitlam–Fraser legislation was former patrol officer Bill Gray. Gray went on to lead the drafting of the legislation that created the Aboriginal and Torres Strait Islander Commission, and as that organisation’s first chief executive he established a close working relationship with its inaugural chair, Lowitja O’Donoghue. He subsequently served as the Australian Electoral Commissioner.
One of the Woodward’s recommendations was for traditional owners not only to have a veto over mining on their land but also to have access to the royalties that flowed from mines on their land. These were to be shared between the land councils and the Aborigines Benefits Trust Fund, which had been established in 1952 during Paul Hasluck’s time as territories minster. Woodward’s recommendations were largely accepted and the subsequent legislation established the Aboriginals Benefit Account, which played a crucial role in facilitating the purchase of Huckitta for its traditional owners.
Subsequent to his months-long involvement in the Huckitta Five case, John Coldrey decided to spend time working as principal legal officer for the Central Land Council alongside Patrick Dodson, Marcia Langton, David Ross and other Aboriginal leaders and CLC anthropologist Jeffrey Stead.
The work of expert anthropologists is crucial in land claim processes. Justice Halley’s Huckitta determination refers to the NT government’s appointment of Stead as an expert anthropologist. Highly regarded in native title circles, Stead has deep experience across the Territory, having worked with both major land councils, the sacred sites authority, and on numerous land claims. He began his career as a patrol officer on Pintubi country near Papunya.
In Take Power, Alexis Wright’s edited anthology of essays celebrating twenty years of land rights in Central Australia, Coldrey describes the CLC’s campaigning against the Fraser government’s efforts to strengthen the interests of miners and pastoralists within the legislative framework of the NT Land Rights Act. As head of the land rights division of the Department of Aboriginal Affairs, Bill Gray played a key role in drafting and negotiating the required amendments. The proposals emerged in mid-1982 only to lapse with the defeat of the Fraser government in March 1983; but elements were legislated by the Labor government in 1987 after pressure from WA Labor premier Brian Burke and pastoral and mining interests persuaded it to drop its national land rights legislation.
One of the most astute and influential Indigenous leaders of his generation, the low-key David Ross held key executive roles within the CLC over a period of almost forty years, and was a member of the team that negotiated the Native Title Act with the Keating government. At various points he was also an ATSIC commissioner and a director of the Indigenous Land Corporation. His aim in pursuing the Huckitta purchase was to open a pathway to inalienable title for the Huckitta traditional owners via a native title determination, an opportunity opened up by the Native Title Act but withdrawn from the NT Land Rights Act.
In 2011, not long after the pastoral lease was purchased, the CLC began researching the native title claim that ultimately led to the recent Federal Court determination. Of course, the Native Title Act would not have existed but for the High Court judgment in Mabo and the Indigenous leadership’s pragmatic negotiations with the Keating government.
What emerges from these examples is a different appreciation of the nature of the two policy issues — native title and police powers of detention — that we began with. Yes, they can both be linked to Huckitta. More substantively, though, they were phases in the lengthier evolution of land rights and access to justice.
In fact, each of these processes is arguably an element in the other. As constitutional lawyers Guy Aitken and Robert Orr note in the latest edition of Geoffrey Sawer’s The Australian Constitution, Justice Brennan’s repudiation of terra nullius rested on the view that “the doctrine was not simply at odds with history; it was racially discriminatory and ‘morally repugnant’” and “the court should not perpetuate a doctrine which was unjust, did not respect Australians as equal before the law.” The links between the two issues are reinforced by their joint reliance on the role of networks of engaged individuals to find ways to reframe and resolve apparently intractable issues.
In relation to land justice for the Eastern Arrernte, Ross’s vision was supported by the combined influence of a cadre of legal and policy advocates, of which John Coldrey and Jeffrey Stead were members, and facilitated by the legal professionals and judges engaged in tackling the untenable notion of terra nullius. Despite the frictions that inevitably permeate institutional change, these networks built on the work of patrol officers mediating between customary societies and the colonial attitudes of governments of all persuasions. It is noteworthy that former patrol officers such as Gray and Stead (and others, including former NT Administrator Ted Egan) have continued to play roles in shaping policy through to the present day.
Still unresolved is the need for guaranteed access to justice for Territory citizens arrested but not charged within a reasonable period. Here, a similar cadre of legal advocates — Pam Ditton, Ross Howie, John Coldrey, Frank Vincent and judicial visionaries including Gerard Brennan — have played an outsize role in seeking to hold police and the courts to the principle that citizens have a right to due process, even where they might be guilty. The fact that the Northern Territory has yet to fully accept this notion is testament to the propensity of political and legal cultures to resist change and defer hard decisions.
In its report on the Huckitta native title determination, ABC News quoted one of the newly recognised native title holders, Raymond Webb, as providing this advice to his community: “Get strong, get together. We gonna be all one mob then.” Perhaps this is advice all Australians might take to heart.
Might Raymond Webb be a descendant of Rosie Webb, listed in the 1957 Northern Territory Register of Wards as having been born Aranda (Arrernte) with the tribal name Argi in 1909? By 1957 she was living at nearby Mt Riddock station, which had been owned since the turn of the century by the Webb brothers’ father, Ben Webb. On the banks of the Plenty River, as across the nation, the complex entwinement of processes of colonisation, amelioration and the exercise of pre-existing Aboriginal ownership continues into the present. •
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