Earlier this year, Navi Pillay, the United Nations High Commissioner for Human Rights came to Australia on her first official visit to discuss rights issues with the Government, the Australian Human Rights Commission, as well as Aboriginal and Torres Strait Islander communities and non-governmental organizations. During her visit to Darwin, she met with Aboriginal leaders. Women from Galiwin’ku (Elcho Island, North East Arnhem Land) who are part of the Makarr Dhuni Forum wrote this letter together to Ms Pillay:

13th May 2011

Dear Navi Pillay,

RE: Yolngu Madayin Rom (sacred law) governing Yolngu women in North East Arnhem Land.

We the Yolngu  women of Galiwin’ku, North East Arnhem Land, Northern Territory, Australia wish to inform you of our opinions about women’s rights and responsibilities under our Yolngu law.

In our culture, the symbol of a woman is a sacred and holy dilli bag. This bag carries the law in the same way as a woman carries her child in her womb. Women therefore are carrying and maintaining the discipline, the moral teaching and the law in our community. For this reason women are very highly respected and seen as holy.  Their bodies are seen as sacred, as are their children according to the djalkirri rom (foundation law).

Nyomba Gandangu – wearing the dilly bag at the closing of the Yolngu Ngarra (Parliamentary sitting), before assenting to the law. Photo used with permission. Copyright Makarr Dhuni Forum

One of the practices that protects women and children is the relationship with our mother’s mother’s clan (mari pulu). This clan acts as an asylum or safe house for anyone who wishes to escape persecution or violence.  The perpetrators understand that they are not allowed to set foot in that area. The maris will act as a lawyer /mediator to resolve the issues. Another layer of this complex legal system involves the Djungaya (manager/facilitator) who polices the implementation of the resolution.

We are concerned that our Federal and Territory Governments are not acknowledging that we are still subject to our own djalkirri rom (foundation law) created by Wangarr (God) since time immemorial.  For this reason we wish to reassure you that there are many laws, practices and protocols that we must adhere to as strong Yolngu women according to the djalkirri rom. It is this law that provides safety and protection for all Yolngu. Yolngu law is within our body, our bones, our blood, connecting everything. It is sacred, as our lives and bodies are sacred, connecting us to the land.

We thank you for taking an interest in our situation and feel hopeful about your visit to Darwin.

Kind Regards,

Nyomba Gandangu

Co-chairperson of the Makarr Dhuni Forum (the second tier of the Yolngu Ngarra – Parliament, representing all of the clans of Elcho Island)

On behalf of The Makarr Dhuni Women’s Forum

To read Navi Pillay’s response to her visit to Australia, see: http://www.abc.net.au/news/2011-05-25/un-rights-chief-attacks-disturbing-policies/2730650

The AHED Project supports the Makarr Dhuni Forum

The Dhurili Nation, comprising the Datiwuy, Golumala, Marrakulu and Marrangu clans have previously confirmed to the Northern Land Council and the Minister for Indigenous Affairs that they are lawful traditional owners of some areas of land that are affected by a new mining lease and agreement with Rio Tinto Alcan in the Gove Peninsula in the Northern Territory.

“We feel very sad because our rights under Madayin Law have been pushed aside and much pain and division has been created. This shows that colonisation is still happening today creating disharmony, by people ignoring due process. Again the failures of the Australian Government and the NLC to work with Yolngu people through a proper process of law has created division between the clans of Arnhem Land. We will not be celebrating along with others the signing of this agreement” said Dr Gondarra.

The Northern Land Council and the Minister have allowed a new lease to be signed, despite the Dhurili Nation raising its concerns about a lack of lawful consultation and a failure to seek the consent of its members in line with the requirements of traditional Madayin law and the Aboriginal Land Rights (Northern Territory) Act 1976.

The Dhurili nation, part of the Yolngu people, were previously recognised as traditional owners of parts of the affected area. For reasons presently unknown to them, they were not properly consulted about the recent negotiations with Rio Tinto Alcan. As a result, the clans of the Dhurili Nation consider that their rights under Australian and traditional Aboriginal law have been breached and that they have been improperly excluded from the negotiation process.

The Dhurili Nation is considering challenging the actions of the Northern Land Council and the Minister for Indigenous Affairs in the Courts.

Dated: 7 June 2011

Contact: Rev. Dr. Djiniyini Gondarra, OAM (on behalf of the Dhurili Nation)

Most people will have found some difficulty in really understanding what she was saying about her law at a couple of points in this film because of references to footprints, names and the like.  These are references to massive concepts in the Yolngu peoples Law, some of which are foundational or constituting aspect of their law. That is they make reference to the basis by which rights and responsibilities of law originate. They do not refer literally just to ‘footprints’ or just ‘names’ in the same way that ‘The Constitution’ is not referring to just a piece of paper.

I hope you all pick up on the opinion she expresses that the Balanda Law, Australian Mainstream Law, is being used against Yolngu – to trap them in the inconsistencies of the law.  And she thinks that Balanda (non-Indigenous people) do not even realise they are doing this. But, perhaps she is being polite.

The video message is targeted at ‘Government’ so it would be appreciated if this was passed on to anyone who  is a member of parliament or anyone you know that works for a Government department.

“Why don’t you Balanda explain to us what are your plans for us?  What is the Government’s plan for us or the Shire’s or whoever’s plan for us? What do you have in mind for our future?  Someone come and explain it to me? We don’t know? You don’t talk to us.  You just change things. Where is the consultation, where is the negotiation.  We have our own parliaments; our own system of law.  You should be talking to us first.”

His speech demonstrated that Indigenous people in some remote communities feel like all the decisions about their community are being made for them.  Not only do they want to know what is going on, they feel they have a right to know and a right to be part of the decision making process.  Yolŋu have been demanding this right since the Balanda first imposed on them. The jurisdiction that their own systems of law gives them over the use of land and governance of their own society, means that decisions made by the Balanda systems without consulting the appropriate person in their own system are seen as imposing, controlling or illegitimate.  These are not naive thoughts.  Yolngu struggle to understand how our political system really works,  but they are fully aware that their land owners, leaders and elders have no say in the constant changes that complicate their lives, and determine how their land is used, despite a system that is supposed to support them.  The last year has been particularly difficult with the coercive tactics of the intervention, removing the permit system, imposing police forces and compulsory income management all without preliminary consultation.  On top of this the NT government disbanded the local community councils, forming them into super shires and so severely limiting local control of the townships.  The statement summarised above implies an anger and perhaps a fear of the Government and the ‘Balanda’ system’s plans for them.  This is evidence of the lack of information people have about the mainstream Australian system, leaving a big question mark about how the power that Balanda exerts over them will be used.  Just as this Yolngu man suggests, Indigenous communities are dependent on non-Indigenous personnel to keep them informed of the plans of Government and other organisations.  The lack of real consultation also means that Indigenous people are excluded from the debates.  Take for example the debate about bilingual education.  This year at the word of the Minister Indigenous languages are all but banned from being taught and used for teaching in the class room.  On such issues the media presents us with rarely more than a couple of Indigenous people who may or may not represent informed local opinion.  Meanwhile a whole range of non-Indigenous experts get to comment on the issue.   In addition, those Indigenous people that do get to speak in the media must do so in English, a foreign language to them, as a result they sound simple minded and shallow when their experience and meaning is deep. That Indigenous people are excluded from decisions that effect them is a real experience they face regularly ( hear about this directly from an remote Indigenous voice).   We must create ways to consult throughly using the local and traditional systems that the people are using.  Consultation takes time.  But taking that time to listen and include the peoples system is part of the solution to Indigenous problems because it allows for learning, it encourages, demonstrates respect and empowers Indigenous Australians with the opportunity to speak.   In fact, time for good consultation reduces many future complications; but that is another story…

During the research, many Yolŋu people expressed the opinion that most non-Aboriginal people demonstrated a serious lack of knowledge and understanding in relation to Yolŋu people, Yolŋu law and Yolŋu ways. Consequently, the current situation was perceived by many Yolŋu as being a two-sided problem. Yolŋu conveyed distress that many Balanda did not even recognise that a Yolŋu legal system was in place, hence the title “Bäyŋu Ŋayaŋu-Dapmaranhamirr Rom ga Ŋorra” which means “no existence of deep and mutual respect”.

The report then goes on to investigate the misunderstanding Yolngu people have about the Balanda legal system. One must really read past the executive summary to get at the real value in this report as the summary fails to highlight the power of the reports content. It is an easy report to read, and is packed full of quotes from Indigenous people and short case studies. The real shock comes from page 21, where the research shows that:

Over 95% of Yolŋu surveyed were unable to correctly identify the meaning of the 30 commonly used English legal terms.

These are words that include:

Accuse/Accused, Bail, Consent, Guarantee, Obliged/Not obliged, Sentence, Alleged, Charge, Directly/Indirectly, Guilty, Offend/Breach, Summons, Appear, Commit, Fail/Failure …

What is interesting in relation to some of the things I have been arguing in relation to Indigenous eduction. For those surveyed who had access to government schools, those born after 1965, 97% of their responses indicated that they had either no understanding, or gave completely incorrect meanings to these legal terms. These Government schools did not use Balanda teachers trained in local languages. Those surveyed who were born prior to 1965 and thus had access personnel on the ‘Missions’ who spoke the local languages, still had a many misunderstandings, but where reported to have a much better understanding of the legal system and they responded with a correct or partially correct understanding of the legal terms 10-20% of the time, as against 3% of the time for those born after 1965 (see page 24).

The report includes a series of studies on how individual words were understood and how this has affected Yolngu individuals in their dealings with the legal system. Perhaps most striking was the perception by some Yolŋu that to be “bailed out” meant they were free, often resulting in them breaking their bail commitments to return to court. In 2005 there were over 5000 warrants out for the arrest of people who had breached bail in the Northern Territory, on current jailing rates 80% of these could have been for Aboriginal people. This is a striking insight to the effects of cross-cultural misunderstandings. It highlights for me the importance of minimising such confusion in my communications with Aboriginal people. I hope it also helps some of you to grasp some of the reasons why things may not work out the way we expect when working with Aboriginal people. Please have a quick read or download the report by clicking here (opens in a new window).