Richard Trudgen, author of Why Warriors Lie Down and Die, responds to media coverage of recent violence in NT communities:

Richard Trudgen, author of Why Warriors Lie Down and Die, responds to the ABC news on the recent violence and crime in the NT communities including Alice Springs.

Many, including the Chief Minister of the Northern Territory, are saying that to address the present levels of violence being seen in NT, we will also need to address the social disadvantage of Aboriginal people. The Northern Territory Police Commissioner John McRoberts, also recently said that “social dysfunction…can’t be solved by focusing on law and order alone.”

Statements like this can be made, but what is going to change in our response to see long term sustainable outcomes occur? It seems to me we have two options open to us.

One option is to keep doing things the way it has always been done – and the result will be an increase in violence and crime. We will continue to see Aboriginal people destroying themselves and creating havoc in the process.  Many will complain about the violence and crime, and the offenders will be arrested and jailed. This will mean building even bigger jails than are now planned. Little will be done to try and understand why Aboriginal teenagers and young adults are turning to a life of crime while many of the older people are just giving up.

There will be a lot of mainstream public commentary about how we need to get harder, get tougher and force the people to comply with the mainstream way.  The NT community will become more polarised across the cultural divide.

Option one seems easier, because mainstream Australian society has been doing it for two hundred years. In the past it was called forced assimilation – but it didn’t work then and it won’t work now.

There is another way. We need not have a future of divided fighting communities – this is why I will keep advocating a way that is different – a way that works and can bring stable economic and social development that includes everyone.

Option two, is the only way to deliver long term sustainable change. To do this, we need to move to policies where Aboriginal citizens are seen as key stakeholders at the centre of the crisis. We need to work with them, empower, equip and build capacity within their communities, so they can move from a crisis of living to a state of equality with other citizens.

But for this option to be viable, mainstream Australia will need to learn and understand many things not usually understood or talked about. They would need to understand the dynamics that exist between mainstream Australian society and the Aboriginal people. When the dynamics are understood, the road to long term, sustainable change is much easier to see, understand and deliver. These programs and policies will merge with the real needs of Aboriginal citizens, so they will be ready to take them up and participate in them.

When we can see the real cause to a problem that is in front of us, we are three quarters of the way towards finding answers. Now, many mainstream Australians will say that they understand the “problem”. I have had some people who live in the NT tell me that they know the answers to the “Aboriginal problem” and here lies the real difficulty. Just having lived in the NT does not mean we understand anything about Aboriginal people, or the dynamics that exist between the two cultures.

Let me give you an example:

My own father was an alcoholic and he caused hell for himself and our family many times. Some family members just hated him for what he did. I never liked his drinking, but I always wondered why he drank like he did. Now I know there are many factors behind his drinking. The other night I sat and watched “The Long March”, as it was called on SBS TV.

This was when in the dying days of World War II, Hitler ordered all the prisoner of war camps in Poland and other countries to be emptied, and the prisoners of war (POW) to be marched back through Germany.

No one was ever sure why this was done, but it meant that some of these POW marched over one thousand kilometres in truly inhumane, freezing conditions. When morning broke, some of their colleagues did not move and were left there. Some died beside the road, or were taken off and shot. They had little food and their boots would freeze hard by the morning.

Dad was one of these POW, and at times he had talked about the “long march”. He had even said to me a number of times that he had recurring nightmares about his capture, the time in the prison camp and the long march.  The long march got more mention than the other experiences, but I had never realised really what the “long march” was – until the other night. I had not lived enough of it from the small bits that Dad would tell me. I now know it was too hard for him to explain it all to me in a way that I could really understand. I felt horrified watching the show as I now know that I really never understood. Now it was much clearer why this experience was a major factor leading to Dad’s excessive drinking.

Today we also know of post traumatic stress disorder (PTSD) and its effects on people. The SBS program showed how this experience had affected many of the POWs; some never got married because of it. If I had more understanding, the chances are, I could have been much more useful in helping my Dad work through the issues.

Aboriginal people do not just decide to get drunk, sniff petrol and cause absolute hell for themselves, their own people and everyone else around them for no reason at all. They are driven to it by forces and factors that need to be understood. Some will say that it is all too hard – “we can never understand these forces”, but I say, they can be understood – and through understanding them a clear way forward can be found.

The level of social disobedience we are now seeing in the NT communities is without precedence and there are driving forces behind it; human forces. I could talk in general terms about them, but that would be just like me getting bits and pieces from my dad; and I never really got it.

In short though, it is not an “Aboriginal problem”, but a “human problem”, with human answers. Whenever two groups of people with different languages, cultures and aspirations come together, many of the same issues can be found; issues that can cause division, resistance and outright opposition.  We can continue to apply option one until the people are completely broken – and suffer the consequences. Or we can try option two: understand the issues and then change to empower the people and harvest the fruits that will grow into the future from this new way of relating.

In doing this, we will begin to see the wisdom re-emerging of a group of people with a 40,000 year culture – the oldest surviving culture on earth. That it has survived longer than any other culture on earth should say something in itself; it must be good, it must have sustaining strengths in it. If only we could learn from it and tap these strengths, this would provide genuine and authentic NT answers to the “problem”.

When we realise that there is such integrity and depth in the original Australian culture represented in the NT, we can then move to put in place policies and programs that change things for the long term good, building on that depth and strength. There are ways of doing this, and such programs have been in practice in the NT over the last 20 years. Unfortunately though, they do not always received good support; due I believe to a lack of understanding.

These programs can give Aboriginal citizens real access to information and knowledge, so they can mobilise and modernise their culture where applicable; or they could at least understand how the new strange world around them operates. When things are not understood, it can be very frightening – we are all often afraid of what we don’t know. If these things are then forced upon you, the level of fear increases, and resistance and fight- back increases in equal intensity.

Why Warriors runs a two day “Bridging the Gap Seminar” to work through many of these underlying human issues. It is a bit like the SBS program was for me in relation to my dad. A lot of people who attend, talk about how they did not understand the depth of the issue, but having understood them, found new ways to change their own behaviour and see ways to work that empower Aboriginal people.  Understanding the issues is an essential and key part towards finding the answer.  This seminar is run by myself, Witiyana Marika and Dianne Gondarra. btg.whywarriors.com.au for more details.

As I see it, option two is the only way forward for the NT. To get there, mainstream Australia need to have this new understanding first, because it is mainstream Australians that have the control over whether things continue as they are – or whether we get smart and move to a new formula.

Richard Trudgen May 2012

For more information or interviews please ring Richard Trudgen (08) 8987 1664

 Yolŋuw Makarr Dhuni represents the people of 8 nations in the Western, Central and East Arnhem Land areas of the Northern Territory:

Miwatj, Laynha, Raminy, Marthakal, Garriny, Gumurr-Rawarraŋ, Gaṯtjirrik and Miḏiyirrk

They have released this statement, regarding Australian Federal Government Stronger Futures Bills and Northern Territory Policies, to the Leaders of the Australian Federal and Northern Territory Parliaments: Prime Minister Julia Gillard, Opposition Leader Tony Abbott, Leader of the Australian Greens Christine Milne, Northern Territory Chief Minister Paul Henderson and Northern Territory Opposition Leader Terry Mills, with a copy to the Federal Minister for Family, Housing, Community Services and Indigenous Affairs Jenny Macklin.

To the Leaders of the Australian Federal and Northern Territory Parliaments: 

1. The Yolŋu Nations reject the Stronger Futures Bill (and those associated) and call on the Senate to discard these Bills in full. We have clearly informed you that we do not support the legislation.

The Australian Federal Government can achieve all its aims through partnership in our communities. They have no need to grant themselves the continued and new powers contained within these Bills.

2. Until the Stronger Futures Bill (and those associated) are thrown out of the Australian Federal Parliament, the Yolŋu Nations call on all traditional owners across the Northern Territory to refuse:

a) participation in land lease negotiations with the Australian Federal Government, and

b) approval for any exploration licenses

3. The traditional owners (T.Os) of prescribed community lands have been placed under extreme pressure from the Australian Federal Government to grant them head leases over these communities. T.Os want independently facilitated negotiations that can result in enhancing the interests of both the T.Os and the Australian Federal Government.

4. The Land Councils are increasingly being pressured by Government to act outside their roles and become agencies of Government. We want our Land Councils to advocate for our needs and not have their independence curtailed by Government funding arrangements and political interference.

The Yolŋu Nations call on the Australian Federal Parliament to ask the Auditor General for a review of the relationship between the Australian Federal Government and the Land Councils of the Northern Territory.

5. The Yolŋu Nations call on both the Australian Federal and Northern Territory Governments to end their interventionist policies and agendas, and return to a mindset of partnership based on the principles of Self-Determination.

6. The Yolŋu Nations call on the Northern Territory Government to reform the structures of local government (the Shires) to better reflect Yolŋu and 1^st People’s government structures which will provide a more locally based and accessible form of local government.

7. The Yolŋu Nations call for an end to the Northern Territory Government’s Working Futures policy. For the sustainable social and economic development of our society Homelands need to be considered equal to communities that were former mission and government settlements.

8. The Yolŋu Nations call for an end to the Northern Territory Government’s Compulsory Teaching in English for the First Four Hours of Each School Day policy. To be successful we need education with instruction in our Yolŋu languages through all levels of schooling.

Djirrkaymirr Rev. Dr. Djiniyini Gondarra

Spokesperson Yolŋuw Makarr Dhuni

………………………………………………………………………………………………………………………………

Djuŋadjuŋa Yunupiŋu’s experience of the NT Intervention

Dalkarramirr for the Gumatj Nation

Spoken in English and Yolŋu Matha

“Intervention when it first came in we thought it was good to help our people… But now our experience is that it has not been beneficial. It has turned our young people against their Elders because it has undermined our ability to determine things for ourselves. Schools- our bilingual program is not being supported, courts- [it’s a new] stolen generations- police [are taking over and not acting in appropriate cultural ways].

[The intervention] takes us back to the 1920’s, 30’s- to the early mission days, the stolen generations. Our memories have been taken back to the time when the Welfare people stepped into our land.

We thought that [the intervention] was manymak (good), but experience showed us a different picture. We see the experience of other black people across the world (their struggles) and we see that here.

Where is all that self-determination, where has all that yäku (name) gone.

You can change names [to Stronger Futures] to convince [us that things are better] but you are still following the same [track].

Our Homelands… People are moving in [to communities]. Homelands have bäyŋu (no) road fixing, bäyŋu (no) help for airstrips, all houses are built in town [attracting people in]. 

If we are citizens together in this country, lifting up the one flag, each calling Australia our home, then we must work with respect. Respect for ourselves, our land, our law, and our language. 

These words ‘self-determination’ and ‘self-management’ they have been taken out of the [Government’s] dictionary. When our Elders first heard these words they were happy. Now later, 40 years [gone].”

 

1. A local economy grows from personal motivation and energy, it cannot be built from outside.
2. Human support is required to overcome cultural and bureaucratic barriers where motivation exists.
3. Production, the basis of any real economy, is driven by local ownership of  local products.
4. Flexibility is needed, appropriate for the pioneering and unique circumstances of remote communities.
5. Subsidies are the best mechanisms of financial aid to support fledgling enterprises.

We will consider the 3rd point in this article.

3. Building from locally owned production

The Northern Territory “growth town” model of economic development seems to be built on a false understanding of  sustainable economies.  The emphasis on developing large ‘urbanised’ centres seems to assume that economic development is a consequence of adequate infrastructure.  The argument often compares Indigenous communities with towns in southern Australia of similar size, noting that they have over 200 local businesses. But this whole concept is flawed, because they forget that those 200 businesses are only possible because of the income provided to these towns by the surrounding farming and production industries.  Historically, where economies have been pioneered, farming, mining and production came first and the town followed.  Or at least they both happened at the same time.  I raised this with the NT Government treasurer in July 2010, only to be told that the Government was looking at ways they could create fishing and mining jobs, as examples.  Her comment made it clear that this is something the Government would solve by themselves for people and bring industry into the region, rather than something that would grow out of  local ownership.  She inadvertently confirmed our fear that the NT Government’s only plan regarding economic development was to import big business as the solution to the economic failure.  A similar mindset is demonstrated in the amendments to the Land Rights Act, where a special category of headlease was created – leases specially designed to prevent land owners putting restrictions on the leases that might limit who the Government can give subleases to.  The argument for this is to encourage private land ownership and business investment.  Thus the Government solution is to make it easy to sell the view, location, and the local labour to external investment – and the rich.  Now, if all we care about is economic growth and not people, this will work.  Aboriginal land would be worth millions of dollars, if it is opened it up to anyone with money to spare.  But doing this would completely over-run Yolŋu people.  My understanding was that the Government and the rest of Australia wanted to help people get out of welfare dependency, educational stagnation and “poverty”.  But, an open slather, external investment pathway will have the opposite effect.  It will result in local Aboriginal people becoming slum dwellers,  while industry and holiday homes are built up around them.  Cheap labour will be imported, simply because it will be easier to do so than to train locals. (This already happens in our community – Asian immigrants and southern low income earners are used to run the few privately owned shops and takeaways and almost all trade and labour positions for government developments are filled by outside contractors, rather than training locals).

However, a ground-up model is possible that encourages local ownership and the production of local products, if the Government is willing to go slower.  A slow and healthy process that will not disempower, is one that builds up and supports those local people with a desire to grow, build, catch, manage or even simply invest.  Local land owners all over Arnhem Land are keen to support investment and to build enterprises and to partner with others, but want to do so on their terms. Current partnership models undercut ownership by traditional owners –  mining agreements are a classic example.  They often offer small royalties, jobs, infrastructure and services rather than encouraging participation in ownership of the mining enterprise.  The fact that Indigenous people don’t know that they could ask for a significant share in the project, works to the mining industry’s advantage, but ultimately undermines the opportunity to include Aboriginal people in the economic development and avoid some of the antagonism between mines and the local community.  We must ensure that economic development is a cooperation with the local people as the drivers of primary production and local industry, and not a race to big dollar outcomes.

Local ownership is required to make possible the genuine participation of the people in the effort of developing sustainable enterprise.  But it is most important in primary production.  Why? To avoid exploitation of land, environment and the local community.  This is a well know phenomenon recognised in the study of appropriate native wildlife industries.  Where landholders, farmers,  and indigenous groups are given exclusive rights over wildlife products, such as ivory, skins and exotic pets on their land, they come to value the native species, work to encourage the growth of the species on their land and use the species in a sustainable way that ensures the survival of the species.  When animal and plants do not belong to anyone, there is no one to protect the asset that they are and the result is poaching and exploitation.  This is a major problem even in government controlled industries, such as the fishing and timber industries.  Companies who are given licenses to cut or catch, work to maximise profits without considering the impact on the land or the fish population. For them, a “bird in the hand is worth two in the bush”, because they can always get a license to go elsewhere, and they have to get the absolute most out of the license while they have it.

As an example, this same phenomena of exploitation plays itself out in Indigenous communities. For example, community gardens in Arnhem Land consistently fail,  although set up as “community owned” ventures – a misnomer, given the fact that Aboriginal communities are usually made up of more than a dozen different corporate entities (the various clans or tribes), with only a few of them being actual land owners under Aboriginal law.  These gardens suffer from seemingly self -defeating exploitation as kids and other locals steal the crops before they are even ripe.  After years of work when the mainstream personnel hand over  a productive farm to the Indigenous trainees, the garden quickly disintegrates, through lack of participation and stealing by the community.  The local workers have no basis for ownership of the garden that is seen as legitimate by the community. The “white fellas” were seen as the owners, having ultimate control and the ability to arbitrate between the different tribes’ interests.  Now, from the community’s perspective the workers are not traditional owners and they are also not “white fellas”, so they can’t claim ownership under Aboriginal law or mainstream laws.  Thus, the garden disintegrates under the competition of the various corporations (clans) for the garden, the disempowerment of the workers and  ”grab while you can” attitude under an authority vacuum.  Where Indigenous land owners are given control, an entirely different situation can eventuate.  Their corporation has an interest in sustaining the enterprises and its productivity, because these resources are their assets. Furthermore, because the traditional owners have legitimate land title, they have the recognised authority to give control to other entrepreneurs and corporations (clans), providing workers with the legitimacy, security and the authority they need.

However, be warned – simply declaring that land owners are in control is not enough. They need to take control of their own motivation, exercise their authority, and they need to understand the industry they are supporting.  All the other aspects of the cross-cultural environment must be considered, because these barriers undermine motivation and control.  Promoting ownership is more about allowing people to take up ownership and take action where they want to, rather than about any kind of “handover”.

I believe the same benefits extend to the case of managing townships.  When land owners have ultimate ownership, they will work to make it a peaceful and profitable environment for the long term.  Because they can, and because they have confidence that it is not going to be taken from them.  They must be able to rely on the income and stability of the assets of the township into the future, even for the generations to come. Land for accommodation and enterprises in townships should be considered a primary product in and of itself.  In our East Arnhem communities local traidtional land owners want to manage this resource for the benefit of all. It is the same elsewhere, but this cry is usually ignored as a result of stereotypes that label land owners as blockers of development.

Unfortunately, it seems the mainstream systems seek constantly to undermine Indigenous ownership.  The most obvious example is the recent re-invention of the township lease on Aboriginal Land (often referred to as 99 year leases).  This current model, on the surface, is designed to include and engage traditional land owners and their representatives (TORs) in managing townships and the profits from them.  Once a lease is established, the  TORs sit on a committee to make recommendations on all matters regarding the use of land, the issuing of leases, investment in the townships and the profits from rent.  All rent then also goes to the TORs. It is a good model, but for one vital design flaw.   The town lease is not held by the local Indigenous land owners, but by a statutory body.  The director of that body has the final say on all matters regarding the lease.  So who will really control decision making?  Not the TORs but the statutory body.  The result will be that land owners will come to treat the management of the town lease as a political game, with the various land owners competing for control of income.  They will play up to the Balanda bureaucrats to get their trust and support over and above others.  This game will turn away land owners who truly love the land, and others willing to play the game once again will turn into rich beggars.  The mainstream seems to believe that Indigenous people, and especially land owners, are too incompetent to manage their land, or that they are out to exploit it.  But this view, if there is truth to it, is a result of models (as well as communication barriers) that protect Indigenous people from real decision making. Until now, some TORs have lived as exploiters, because royalties without responsibility is all that is offered.  The mainstreams models for economic development continue to re-invent this model.

I hope I have given some insight into the reasons to support real ownership by local people, because it  encourages sustainable and sensible use of primary products such as land.   So, instead of enterprise without responsibility, we must offer people ownership and control, with all the responsibilities that come with it.  The Government and mainstream personnel must give Aboriginal people the job of building their own future of their own land – even though they will make mistakes along the way – supporting them with the information, education and practical support they need.  Under these circumstances, we will see primary industry appear out of the very ground they own, in ways the rest of us never expected.

The Assent law of the first people:

Principles of an effective legal system in Aboriginal communities

Dr Djiniyini Gondarra OAM & Richard Trudgen 22 Feb 2011

The theme of this conference is “Law and Justice within Indigenous Communities”. BUT for there to be a real rule of law and true justice for our people, then the Law our people have assented to for thousands of years must be understood and recognised by all Australians. This will require an education and negotiation process between the Australian government and our Traditional Parliaments.

This morning I want to start that education by talking about our law that Yolŋu[1] people from north-east Arnhem Land have assented to for many generations.

First we must remember that in different regions across Australia other groups of first Australians (Aboriginal people) have their own law and I have no right to talk about their Law systems.

Having said that, I must say that all the first Australian peoples have a common foundation of Law. This common foundation of Law still exists even where some of these peoples may have lost many elements of their particular Law. Even where they have lost most of the elements of their Law they still have a common foundation of law together with us and all other first Australians. It is the common law of this land that precedes all laws and systems of law. It does not matter how hard others try to deny and suppress this fact, we still have a common foundation of Law that has been practiced in this land since the beginning of human history.

However all of my comments this morning will refer to the traditional Law of the Yolŋu people from north-east Arnhem Land of which I am first, a citizen, and second a political leader.

I am a citizen because like all Yolŋu people I have assented to our Law through a ceremonial process called Waṉa Lupthun. And although we have been telling the NT and Australian Governments this for many years, still no one seems to want to understand or recognise that we are citizens of our own Clans and Nation States; it’s like we are a non people and no one can hear us or have serious dialogue and diplomatic relationships with us.

Strangely though, although we have assented to our own Law we have never assented to the Law of the Federation of Australian or any of its States or Territories: what we call “Balanda Law”. Some of us know that this new Australian Law does try to protect and nurture us but we still find it very strange, unfamiliar and very confusing – and it continues to offend us by opposing, harming and destroying us and our rights established under the Original Law of this land.

Let’s hope one day that things will change and we will be respected as a real sovereign people. Then other Australians will sit down and talk to us about some real solutions to the problems we face. This would begin a new era of hope and prosperity where a true rule of Law existed, offering law and justice on an equal footing to all the people of this land. Then we would start to solve some of the very difficult problems we face and change the very uncertain, dismal and sometimes frightening future that many of our people face.

 The Madayin

Let me start by explaining the Yolŋu system of Law (Rom) that is called the Madayin [ma – d[2]ay – in]. I think it is very hard to translate this term Madayin into English as English does not seem to have a word like Madayin. The closest picture I can give you is like when we say, “The Westminster system of law”, we are talking about all the laws and legal processes and practices that come from the Westminster origins. In many ways the Madayin can be used in the same way as the “Westminster system of law” as the Madayin is the name for our complete system of Law.

When we think about the Madayin we think about all our law that relates to our rights from personal, property, our corporate clan rights through to the highest rights we have as citizens of our Riŋgitj Nation States.

The Madayin also covers our legal institutions like our parliaments, legal teaching places and processes for dispute resolution, which most English speakers call “ceremonies”. We call these places “Madayin places” and like most legal places they all are restricted in one way or another.

The Madayin also controls and determines the process we carry out at these Madayin places and how we interact with each other legally. These processes are called by their different names but can also be called Madayin dhukarr mala or Madayin processes. That is, if a new agreement needs to be made there are Madayin ways as to how we should talk, come together and how we should interact in these meetings to come to consensus decisions. In times of dispute we have Madayin processes that instruct us about how we move towards dispute resolution. All of our life processes from how to harvest and prepare our foods through to birthing [women’s domain], healing and health care, social, economic, dispute management, environmental care, living, interacting and even how to die, have Madayin processes that we should follow.

The Madayin also has all our constitutional Law and all our wäyuk laws statutes covering criminal, corporate, resource sharing, religious Laws and sanctions that apply to the breaking of these laws.[3]

So the Madayin is an all encompassing system of law.

A.   Illustrating Aboriginal Customary Law as a rule of law, not rule of men

Madayin’s Origin

Many people asked us where this Madayin law came from.  Our Madayin law comes from time immemorial and was handed down to us from Waŋarr [Waŋ – arr] the Great Creator Spirit.

Waŋarr sent two female creator spirits called Djangawu and Barama. Djangawu was a Dhuwa creator spirit that created all the Dhuwa [4] people, their yirralka  estates of land and sea, gave them their languages and their Madayin Law. Barama was a Yirritja spirit creator and created all the Yirritja people, and their estates, giving them their languages and their Madayin Law.

It was Barama and Djangawu who carried the Madayin law with them from Waŋarr and gave it to the people.

So our Madayin Law came from the djalkiri [djal – kir – i] foundation of the world; when we first stood, the Madayin Law stood beside us.  It came from the highest authority in the universe, Waŋarr the Great Creator Spirit, and so it should be respected and followed by all citizens and foreigners alike who come to our lands.

This foundational law gave us the structure and process of our Law and made us responsible to maintain the Law and to paint our luku gamunungu legal paintings and maintain our Wäyuk Law statutes. What is hard here, for the newcomers to this land, is that our luku gamunungu legal paintings and wäyuk law statutes are not recorded in “black letters” on paper but our luku gamunungu legal paintings use coloured symbols and designs on bark and our Wäyuk Law statutes use coloured symbols and designs on special string that can be read by our Law men and women but not by “Australian” or “International” Lawyers.  So our Madayin paintings and statutes are treated as artefacts, studied by artists, art collectors and investors or as religious objects studied by anthropologists but not by contemporary Australian lawyers or those who are interested in or responsible for Law and Order.

So the Madayin is the Law in Yolŋu society.  The idea that our Law is a rule of “old men”, “powerful individuals” or law of “pay back”[5] comes from the dominant Australian culture stereotyped myth-making about our people. These ideas do not fit or make any sense to us; in fact they are a repulsive, lawless ideas to us. All Yolŋu people know that they are protected by the Madayin Law, from the smallest child to the oldest living person[6].

It is strange, you know, that many of our people, especially young people think that Balanda Law is a lawless rule of “powerful individuals” and that there is no Balanda Law that can protect Aboriginal people or our personal or corporate rights. This was reinforced when the Howard government trashed our property rights and took our communities assets off us in 2007. So many of our young people now believe only powerful, lawless people have any rights under Balanda Law and they try to copy this lawlessness and now fill the Balanda jails.

The Madayin Law is the defining standard and law that we all live by. So Yolŋu people are ruled by the rule of Madayin Law not by man.

B.   A framework that is underpinned by:   good government, consistency of laws and consensus by the people

Clan Groups

All of the Yolŋu Bäpurru[7] Clans are recognised within the Madayin legal structure. Every Yolŋu person is a member of one of those Bäpurru Clans. The Bäpurru Clan own the Yirralka estates and have the economic and political rights at surface level of their estates.

Within the Bäpurru Clan structure everyone is respected and protected within the political structure of the Bäpurru Clan. It protects our rights and gives us the processes so we can live together in a peaceful way. No one is seen as wakinŋu illegitimate, with no rights.

This knowledge and structure unites the clan in a common purpose as they live, work, and learn together. Every member of the clan should, malthun mägaya-kurr dhukarr-kurr, accompany or dwell in the way of peace which the Madayin creates.[8]

As a clan they all together malthun mägaya-kurr dhukarr-kurr; practice the processes and ways of Law that create peace, tranquillity and protection; for all clan members.

Riŋgitj Nation States

The Bäpurru Clans are connected together into federations (Riŋgitj Nation States). There are a number of Riŋgitj Nation States across north-east Arnhem Land with about five Bäpurru Clans in each federation. These Riŋgitj Nation States are all known to us by separate names. It is within the Riŋgitj Nation States that we have higher responsibilities and rights. The Riŋgitj Nation States each have their own Ŋärra’ parliament, constitution, army and national anthem. Each Riŋgitj Nation States holds the rights to the subsurface of all the Bäpurru Clans yirralka estates within each federation. So it is the Riŋgitj Nation States that determines all matters of sovereign rights and land title matters for the Bäpurru Clans within each Riŋgitj Nation State.

Our Political Leaders

Each clan also has selected political leaders. These political leaders are not always the head person of the clan which is usually the oldest male or female of the clan. The political leader can be the youngest of a line of brothers; they are selected by the people according to their political knowledge and ability and their personal good character and ability to listen to the people.  In the Yirritja Clans they are called ḏalkarra and in the Dhuwa Clans they are called djirrikay. The ḏalkarra djirrikay are appointed to their position through an internal legal clan process call Gararrak for Yirritja people and Djudda for the Dhuwa Clans.  Every member of the Clan and other members from other Clans that have a rom waṯaŋu[9] relation to that clan are involved in this Gararrak/Djudda.

The office of ḏalkarra or djirrikay (ḏalkarra djirrikay) holds the selected individuals to a position of account to uphold and maintain the Madayin Law and ways. During their ceremonial appointment they are hoisted up into a solid tree fork above all their Clan members where they take an oath reminding them that they need, like all of their clan members to be ŋayaŋu waŋgany and to malthun mägaya-kurr dhukarr-kurr. If they do not follow and uphold the Madayin Law and ways they can have their special political right and responsibilities taken off them; because it is the people through their legal processes that have given them this power so the people can also take it away.

According to the Madayin law nobody can be harmed. If there is conflict between two people or say two families the ḏalkarra djirrikay should step in right away and guykthun – proclaim a legal sanction – over the aggrieved parties on both sides.

This guykthun proclamation informs the aggrieved parties and everyone else around them how they must interact with each other, through the established processes, to resolve the dispute. One of the dispute resolution ways is the Walkindi rom dhukarr, traditional mediation process.[10]  Once the offender has had a guykthun proclamation proclaimed over them they are free to move about without fear of someone taking any illegal revenge on them; even in the case of murder.

Where there is inter-clan dispute a guykthun proclamation can also be proclaimed over a house, allowing only the member of the owning clan to enter, creating a safe refuge for an accused person, so that Madayin dhukarr process can be set in place for the longer term protection of the accused.

Waṉa Lupthun

As I have already mentioned above, all Yolŋu people have assented to our law. This is done through a ceremonial process called Waṉa Lupthun [wan - a  lup - thun]. This accrues after all the Wäyuk Law statutes have been finalised in the Ŋärra’ parliament and brought out to the public. The Gararrak / Djudda process is then completed and then all the people move off to the beach where the Wäyuk

Law statutes are assented to by all the people.  To do this the men and women of the clan go into the sea and immerse themselves in the water, while the Wäyuk Law statutes are held up above all the people, by the head Yothu or Djuŋgaya. (see below).

C.  The Separation of Powers and the roles and responsibilities of the three arms of government

 1. Ŋärra’.

Each Riŋgitj Nation State has a Ŋärra’ parliament where the Bäpurru Clans are all represented in the meeting of their respective Riŋgitj Nation State. There is also a top Yirritja Ŋärra’ and a top Dhuwa Ŋärra’ where all the Yirritja Clans and Dhuwa Clans and Riŋgitj are represented.

Some people including some anthropologists have tried to tell us that our Ŋärra’ are not parliaments.  But we know that our Ŋärra’ are our parliaments. This is where all the ḏalkarra djirrikay law men talk and teach and maintain Wäyuk acts of law. This can only be done when a Ŋärra’ parliament has been opened.

A Ŋärra’ parliament has to be in session for at least 3 months and is a highly restricted place and does not have a public gallery inside the chamber; the public gallery is outside the restricted Ŋärra’ area.

We also have smaller Ŋärra’ or chambers of law that are decision making places for all our smaller Riŋgitj alliances so decision making is done in a legal way following due process. These smaller riŋgitj alliances cover conservation and breeding areas, trade embassies, teaching campuses and many other forms of alliances between different Bäpurru Clans across Arnhem Land and beyond and have operated for tens of thousands of years.

It is true to say that in many ways that our Ŋärra’ parliaments are very different from the Balanda parliaments. The Balanda parliaments have lots of arguments and show no respect for each other, like a lawless rabble, but in our parliaments we talk and talk firm but with respect at all times to the other members.

The Ŋärra’ is a time when all the wäyuk acts of law are maintained and much teaching is done and decisions are made. When all the member’s are ŋayaŋu waŋgany, have a oneness of heart, mind and soul in relation to decisions taken and the work of the Ŋärra’, they accept the wäyuk acts of law but they still have not been assented to by the people, so they are not yet empowered. The Waṉa Lupthun process above has to be carried out by all the people before they are empowered.

 2. Dalkarra Djirrikay Dhuni Meeting

To start any legal process and organise things, the ḏalkarra djirrikay political leaders meet together in a closed meetings called a dhuni; a dhuni is like a confidential closed meeting much like a cabinet meeting or a corporate board meeting.

Each Riŋgitj Nation State has a dhuni and the smaller riŋgitj alliances each have their own dhuni. There is also a dhuni for both the top Dhuwa and Yirritja Ŋärra’.  The ḏalkarra djirrikay political leaders represent the wishes and interests of their own Bäpurru Clan in all of these dhuni meetings.

 3. Djuŋgaya Sworn Servants of the Clan

Djuŋgaya are a special group of law officers or servants. They are sworn to their role, similar to police. They have a range of responsibilities including policing, corrective service officers, public servants, lawyers, legislation drafters, estate managers and workers. They take direction from the ḏalkarra and the djirrikay.

Djuŋgaya work in these roles for their mother’s people. That means they are born in one clan and spend most of their life working for another clan. If their mother’s clan is Yirritja they will be from a Dhuwa clan, if their mother’s clan is Dhuwa they will be from a Yirritja clan. This relationship represents the well known yothu yindi relationship that existed in the Yothu Yindi rock band. However all clans in Arnhem Land are yothu to one clan and yindi to another.

That is, Gumatj people in the rock band are the mothers’ people in the relationship. They are called the yindi big people and the Marika members are the yothu children of the Gumatj mothers. In this case the Gumatj people are Yirritja and the Marika people are Dhuwa. This yothu yindi and the Yirritja Dhuwa division  create a separation of powers and roles between these two Clans. If the Gumatj (owners) have a legal process to undertake they will call their yothu (Marika, legal sworn workers) or Djuŋgaya to organise it and carry out all the work for them.

Milak and Gäpan

Milak and Gäpan is seen as the authority that comes from the Madayin Law to keep the peace and apply sanction to Law breakers. Milak symbolises the military force and weapons of the Bäpurru clan and the Riŋgitj Nation States. The weapons that are carried by the Djuŋgaya are to protect the people and their estates and to keep the peace within and between the Clans.

Gäpan is the body paint that is worn like a uniform when the ḏalkarra djirrikay and the Djuŋgaya and their associates are on official duties or on special occasions.

D.  Establishing treaties that respect Indigenous law and custom and dialogue between Customary Law and the Westminster system

If the Australian community really wants to solve the “crime” and escalating imprisonment rates that our communities are now experiencing, while increasing early intervention, and have a re-investment in justice with integrated support we need to find a way where there is a true rule of law and where real justice prevails.

This can only happen when the Madayin law that we have assented to, for many thousands of years, is accepted by all as the Law of our region.

For this to happen the Australian and NT governments need to start diplomatic discussions with our ḏalkarra and djirrikay political leaders and not some ad hock group of Yolŋu citizens chosen by the Australian or NT governments. We need to following the legal processes of both the Madayin and the Westminster system of Law. That is the only way the process will succeed.

The issues discussed need to cover a whole range of things including land/sea rights, mining, mineral resources, minor and major criminal offences and many  other things. This diplomatic dialogue might end up in some form of a legal treaty or a statutory harmonisation of both legal systems, the process will determine this.

This process should be just as it is when the Australia government has diplomatic discussion with other governments like the Indonesian or New Zealand governments. It needs to happen through due process so that both Balanda and Yolŋu can accept it as legally valid.

In 1957 our elders at Galiwin’ku brought out the Madayin constitutional law symbols. This was the first and only time these law symbols have been revealed. They did this so that the Balanda and the Yolŋu governments would come together and talk to each other in a diplomatic and legal way; but this dialogue has never happened.

Then in 1975 the Australian government established the Lands councils under the NT Aboriginal Land rights Act 1975. When this happened the established Lands Councils started acting as middle men. I believe this was done for the convenience of the Australian government. Now we have to bow down to the NLC who act like puppets to both the Australian and NT Governments.

When the government wants to talk to us about something they talk to the NLC or sometime they come themselves without invitation or appointments. Then the NLC send anthropologists to talk to us as individuals denying the correct legal Madayin process. These anthropologists and the government do not see us as having Law and systems of Law so they just talk to us as individuals or in mixed up illegal^[11] meetings like they are talking to us about football or some little thing. Then they want us to give them an answer straight away. Even though they have been talking about the issues for months back in Darwin or Canberra we have to come up with an answer in five minutes.

This is making our people very angry and depressed and our young people very rebellious, by forcing us to do illegal things all the time. It is this lawlessness that  will turn us into lawless people which some of our people are now acting out. We must return to a real system of LAW.

When the Australian government deals with other nations they do it through proper diplomatic process.  But it seems when these same people come to talk to us, they lose the ability to do things in a diplomatic way.  There is no recognition of the fact that we have assented to our law for many thousands of years and we still consider ourselves a sovereign people who belong to different Riŋgitj Nation States.

It is the Riŋgitj Nation States that hold the government for our yirralka estates and our people and they should be approached in the right legal way. Then we should hold our own legal meetings according to the correct Madayin processes and then give our legal response back to the government in our own time.

The first people of this country need to be able to talk directly to the Australian or NT government and come to a negotiated agreement on how we live and work together into the future.

We believe we have never been conquered and we are not subject to the Australian or British law but still maintain our own sovereignty. We still have our language and practice our Madayin Law and as one of the first peoples we assent to the Madayin law not Australian law.  Still we want to find a way forward. So, if the Law we have always assented to is not recognised then there can never be a real rule of Law only lawlessness and true justice can never exist for our people and the communities we live in. So we will continue to fill up NT hospitals and jails.

We have been legally marginalised from the mainstream Australian society and the result can be seen in all the bad statistics we have all heard so much about.

I call for a new approach that will bring real law and justice, and make Australia a leader amongst Nations in relation to their Indigenous people. This can only be done by recognising us as the First Australian People and our legal system as the First Australian Legal System. Let’s start the real dialogue and find the real lasting solutions to the Law and Order issue.

Thank You

Reverend Dr Djiniyini Goṉḏarra OAM, Senior Elder Dhurili Clan Nation & Chairman of Arnhem Land Progress Aboriginal Corporation.

AHED Client Timothy Dhimala discusses his market garden enterprise with an AHED Facilitator

2. Supporting motivation

Passion and motivation die hard.  We came to Galiwin’ku to support motivated individuals and groups 18 months ago. In that time, more than 18 different people and groups have engaged with us in enterprises they are actively developing, based on their own internal motivation and effort.  This is despite 30-40 years of  crisis, demoralisation and welfare disincentives in their community.  But without support, people give up.  Motivated individuals must be supported to overcome all the barriers involved in participating in the economy and running an enterprise.  They need help to find resources, supplies and the practical things that come with managing money, staff and analysing business decisions etc.  This is not much different to the needs of mainstream entrepreneurs.  However, for many remote Aboriginal people, support must also include learning the “white man’s” rules about how to start and run a corporate structure, eg. understanding the taxation system and the function of a corporation.  They also need help overcoming cultural barriers.  As many remote locals have English as a second language, they cannot communicate well with the mainstream and don’t know where to start to find even basic information about their needs.  Without support in these areas, they find themselves in the dark and isolated, unable to succeed and not knowing why.  This turns motivation into depression and other mental disorders.

Motivation cannot be created by outside influence.  Real, empowering education gives people the ability to find their vision, but passion is birthed within the person by their own soul. No one can insert it.  This makes it a valuable commodity indeed. So when and within whom it blossoms it must be supported.

Surprisingly, in 2008 we found that very few (almost no) services existed to provide such support to economic visionaries in Arnhem Land remote Aboriginal communities.  Programs were designed to help write business plans, and get loans or even small business grants, but mostly there was nothing designed to give no-strings-attached help to the everyday learning, information and resourcing needs of Indigenous people with big ideas.  This support to local visionaries is the second key to successful and sustainable economic development, because it enables those with the passion and internal motivation to overcome barriers to create new productive nodes in the local economy.

Let’s look at an example.  One of our clients many years ago was sucessfully running a lush tropical market garden, using treated effluent from the local sewage farm.  The effluent was being pumped onto his land, but he did not know that he could not use it under Balanda (Australian) law without a special license.  His access was shut off.  At this point no one offered to help him get the right licenses or teach him how to use the water safely.  Even while the local community garden  in town failed time and time again, no one asked how can we provide long term help to allow this visionary to maintain his once  flourishing garden.  He got help here and there, but when he came to us shortly after we started the AHED project in his community, he was successfully growing sugar cane, but his bananas were still failing for lack of nutrients.  He was also an old man now so he needed workers to help in the garden.  Thus supporting his motivation meant finding and importing a sugar cane juicer he could afford, helping him learn to run a market stall for his juice, bringing in expert advice on how to get nutrients with his low income, looking into the law on sewage reuse and working towards a reuse license, helping him find strategies to save for vehicles and equipment, and helping him find and motivate a workforce.  Despite some set backs his garden is gradually improving without the nutrients from the effluent and we are working toward him getting his license.  Despite his age and the barriers he has faced his motivation and activity in his enterprise has increased.

Supporting visionaries in their passion unfortunately is not as simple as diving in and helping everyone with anything they want.  If the support person ends up running around doing everything for the visionary, this is not empowerment, but rather, leads back to an unhealthy dependency and can undermine a person’s drive.  The visionary will likely creep into laziness at the hands of an overzealous program or supporter.  The supporter  can also get into the danger of  managing the client and their vision, which strips their sense of control from the client and also ruins motivation. So, support must focus on keeping the visionary informed, educated, and the principal party in all decisions. We must focus on supporting a person’s motivation by removing the real barriers they face and leaving the barriers that they have the ability to change themselves.  By this process the short term success will not be shown in statistical outcomes, but in the direct effort the local visionary/ies put in, and this effort should well exceed that of the dominant culture supporters. In the example above, our gardener today proves to have as much or more motivation in his enterprise than when he started, even though his workforce failed him many times and his garden was lost to a bush fire on one ocassion.  Still, his motivation is demonstrated by his increasing commitment to put in hours and effort every day to improving his garden.

To support motivation for economic growth in Indigenous communities, we must do so through mechanisms that allow the entrepreneur to do the hard yards – to allow them to fail and get back up. Motivation can only be supported if the models for economic and enterprise development value the person and human process over the economic outcomes their enterprise might achieve.  The result is not rapid economic growth and the sudden rescuing of these Aboriginal economies (a dangerous hope), but it is gradual, sustainable growthm with the potential for the exponential expansion of these economies in the long term as people’s hopes and hearts turn mistakes into learnings – and finally success.

See the AHED project website for more information about the model we are using to provide this support without encouraging dependency.