ABORIGINAL
RESOURCE AND DEVELOPMENT SERVICES INC.
INFORMATION
PAPER
NUMBER 5
Revised May 2002
_____________________________________________________________________________
It
is our hope that this paper will draw together some aspects of traditional
land-owning structures and customs/laws, for the Yolngu
people of north-east
BAPURRU
The
bapurru (clan) is the
paternal estate-owning group. The
whole bapurru,
by the authority given to them through their Dhulmu-mulka
Bathi (a traditional
constitutional law object), has rights to all the surface resources of the
estate. These rights stop at the
bedrock. The bed-rock ownership lies with the ringgitj
alliance as outlined on page 4.
The
bapurru or clan has the
full right to exploit the resources of this estate, to expel foreigners, to seek
restitution for violation of that estate and to alienate areas of that estate.
Different bapurru can trade between each other if they are short of food.
For example: if one bapurru's
garul (yam garden – see below) has a shortage of yams, say due to
seasonal factors, then that bapurru
can enter into a contract (djugu'-gurrupan) with a neighbouring bapurru
for the use of their garul.
The bapurru entering into the contract for the use of the gärul
makes return payments (bäka-bakmaram)
of meat, fish or other items of value, as per the terms of the contract.
The Bapurru clans have been trading this way for time immemorial.
Each
bapurru clan divides their
yirralka estate into areas
where different types of natural farming occurs. All these different areas are
named according to the particular activity.
Garul
is the place where yams and other plant varieties are grown.
These crops are not just gathered but are planted, harvested and
replanted, sometimes on a two to three year cycle.
This replanting is done according to the Madayin law.
A small part of the root is left in the ground or the top is cut off and
replanted. The owners know where each yam is growing and they are checked
regularly and weeded where necessary. The whole production processes done
according to the Madayin law.
The
people used a natural fertiliser process to make the yams grow bigger.
The yams are allowed to grow through one season, rot down and grow again
the next season. Through this process the yams grow bigger in size each year.
When the yam reaches about 25cm in diameter it is classed as a special
yam and is eaten ceremonially. It is
wuburr’ (sweat) that makes this big yam special, because for
generations the members of the bapurru
have sweated over the production of yams from this garul.
Wuburr' is seen by the people as conveying märr
(spiritual power or strength) to the yams because the people's sweat is involved
in this production.
Marrandil
is the name given to an area of sea that is owned by a bapurru (clan). There are areas
within this marrandil that
are restricted, where no one can fish, even the owners, as these areas are seen
as dhuyu (holy).
These dhuyu areas are guarded by different species of aggressive
fish, different fish for different bapurru,
but it is seen that these guard fish are there to keep humans away so that the
other fish of that area can mala-buma
(reproduce). These places allow for
the propagation of fish and other marine life, which have fed the people of the
particular bapurru for
many generations. The sacred nature
of these places results from their long-standing importance to the survival of
the bapurru.
Yininhdhi
is a place within the marrandil that the people fish from.
It is a rocky outcrop from the landmass under which fish are known to
congregate, making it very easy for people to catch the fish.
These areas are clearly known to the whole bapurru.
The technology employed by the people ensured that their marrandil
was kept full of fish all the time so that the fish would come to the
people for easy harvesting at the yininhdhi,
rather than the people needing boats to chase after the fish.
This practice ensures that these areas are not over-fished but are well
managed so there are always enough fish. All
the fish stock within these areas are seen as property of the bapurru,
ie dhulngungu walalang
– their private possession.
Mewiyal
is an area where different types of eggs are harvested.
These areas exist where different species of bird’s nest and where
turtles use areas of the beach for egg laying.
There are clear laws as to how many eggs can be taken from each nest site
making sure enough eggs are left for the turtles and birds to mala-buma
(propagate/reproduce). An example of
this is that the law for certain birds demands that three eggs be left in each
nest.
Names
for other areas of the yirralka are as follows:
Bat'pa
miyapunu
(turtles)
Gamata
galanggamirr
(dugong)
Bulku
maranydjalk
(stingray)
Ngulurr
bäru
(Crocodile)
Worrk
warrakan
(general term for animals or bird)
Gambal
weti
(Wallabies)
Each
of these areas has similar laws for the propagation and harvesting of the
species.
TRESPASS
AND THEFT
Under traditional law a particular bapurru clan has the legal authority to expel foreigners by force of the miringu (police or armed force). The instrument of law that gives them this ‘constitutional’ authority is their Dhulmu-mulka Bathi the clans sacred dilly bag. The Dhulmu-mulka Bathi is the legal Madayin instrument that gives each bapurru the ganydjarr (power and authority) to expel foreigners and to also seek restitution for trespass or theft from their yirralka estate. To enter another clan’s estate Yol`u would approach the estate on one of the traditional dhumbarpar dhukarr (trade tracks), which offer protection to all travellers according to the Madayin law; in English they are called “dreaming tracks”. They would then usually go to a particular place, a legally designated place where their clan and the clan territory they want to enter have a common alliance agreement. These places are called ringgitj wanga (alliance place) and they are usually a designated area on a particular track of an animal, bird or fish. These tracks have specific names according to the particular animal, bird or fish the alliance is named around. When the visitor enters the right ringgitj wanga they light a fire and produce smoke, thereby sending a message that they wanted to enter into the yirralka. They would then go direct to the place where they knew the owner would be at that time of the year and talk out their business with the owners. Or if they feel uncertain about their reception they will stay in the legal protection of the rnggitj wanga (alliance place). Still today, people who are travelling across land will light fires, or radio ahead to let people know they will be entering their land and to inform them about the nature of their business.
Under
traditional law it is treated as a very serious offence for someone to enter
another bapurru's land
without firstly seeking permission. The
main reason for the seriousness of such an action is because it is seen as a
threat to the economic resources of the bapurru. If
outsiders were found sneaking around then the landowner would be suspicious of
them intending to steal (manangirr) or to bring harm to the owners in
some way. Similarly, most Balanda
(non-Aboriginal) would be suspicious of a stranger found sneaking around their
property, yard or house. The person
who is caught stealing will have to make payment to the satisfaction of the
owners. This payment could be in
different forms depending on the offence, but it would generally be of food or Madayin
objects (traditional symbols of authority).
If the stealing offence was particularly serious, then some form of
corporal punishment could be incurred in days gone by.
THE
RINGGITJ “NATION” ALLIANCE
These
bapurru (clan) groups are
joined together in alliance with larger definable groups called ringgitj.
This term ringgitj can be used for many different types of alliances, as
it is used above, but the ringgitj
alliances we are talking about here is the primary political
ringgitj alliances that is the sovereign body with a common sub
surface ownership. These alliances are like the alliances that make up a nation.
These national ringgitj
(alliances) can be made up of a number of bapurru
(clans), from the same
moiety, with some of the big ringgitj
having six or more bapurru,
while a small ringgitj
might only have three bapurru.
The
yirralka (estates) that
make up these “nation” ringgitj (alliances) are usually spread over a great area of
land and don't have common boundaries. That
is, the adjoining boundaries are those of different estates belong to a
different “nation” rintggitj.
That means many different bapurru
(clans) are “citizens” of one particular “nation” ringgitj. Many Yol`u see themselves
as belonging to those other clan lands that make up the particular “nation”
ringgitj (alliances). So
one “nation” ringgitj
(alliances) may be made of yirralka estates
which are sometimes many hundreds of kilometres apart and their boundaries will
adjoin the yirralka estates
of other bapurru
(clans).
The
“nation” ringgitj
(alliances) get their legal authority through a common constitutional base
established within traditional Madayin law.
Each “national” ringgitj (alliances) has common song cycles, uses common technology,
has a common army; which will fight to protect the estates of all the clans
within the particular “nation” ringgitj (alliances).
OWNERSHIP
OF THE SUB-SURFACE
Where
the
bapurru
(clan)
owns all surface resources of a particular yirralka
(estate) all the “citizens” of all
the clans in a particular “nation” ringgitj owns the
sub-surface resources. That is the bedrock where it is below the surface and
where it perdures through the surface. This is because the clans Dhulmu-mulka
Bathi (clans sacred dilly
bags) connect all the bapurru
together in one “nation” ringgitj
alliance. The Dhulmu-mulka Bathi legally entitles all the members of the ringgitj,
through a common chamber of law, to exercise their collective rights over
resources of the sub-surface in much the same way that all Australians citizens
collectively exercise rights in relation to minerals and other properties of the
crown.
The
structure of decision-making within a “nation” ri`gitj
is highly organised on a democratic basis. Representatives
of each bapurru, being the
ngurrudawalangu
(the selected headmen of the council), meet together as the rom-djagamirr mala (law keepers).
These people must meet together for anything that requires a decision
relating to the “national” ringgitj.
For
example:
If there is a question of future mining, or where major excavation work is to
occur and the sub-surface is to be disturbed, on any bapurru
estates within the “nation” ringgitj,
then constitutionally the rom-djagamirr
mala (the council of that ringgitj)
is the only body with the authority to give or withhold approval for these types
of development.
All
members of this council must become ngayangu
wangganythirr' (i.e. all persons must become one with the others in
mind, body and spirit). There is no
notion of taking a vote on a ‘bill’ or a ‘motion’.
Instead, the issue is raised by a principal person in the meeting and
then all are allowed to discuss the matter until there is a consensus, a meeting
of minds and spirits. This may take
days, months, or even years. The
important thing is that no one person is forced to go along with others and the
decision never comes down to just a majority vote.
A
bapurru (clan) can only
alienate themselves from their estate by the giving of a contract to another bapurru
within their ringgitj.
This process must be done through the “national” ringgitj. The
rights, responsibilities and obligations of the receiving bapurru
are clearly set out. Until the
contract has expired or been nullified the ‘contract-giving’ bapurru are restricted from treating that contracted land as
theirs, that is they are not to expect any economic benefit from it.
The
estates of the “national” ringgitj are inalienable outside the ringgitj itself.
This is because the Dhulmu-mulka
Bathi does not allow it. The
Dhulmu-mulka Bathi exists for the protection of the rights of
the rom-watangu walal
(the law owners, citizens).
YOTHU-YINDI
Yothu-Yindi
is a name that all Australians have come to recognise because of the rock band
named as such. But for Yolngu it is
a fundamental cornerstone in Yolngu
law and native title, and has consequential effects on the control and
management of Aboriginal lands.
Yothu-yindi
is the link established between members of different bapurru
according to their matrilineal or ‘mother-child’ relationship.
The yothu (child)
comes from the yindi (mother:
literal translation = "big", "great").
The reference to "mother" is not just to one's natural mother,
it is to all the mother's people. They
are called your yindipulu,
your great or big people.
In
one sense the partners in yothu-yindi do not hold anything in common because they are
from different bapurru and
from different ringgitj,
and therefore have different estates. However
even though they have different land, they are always mother and child; the
‘child’ cares for its ‘mother’.
In
law then the yothu (children) care for their yindipulu (mother's people) by at times fulfilling their
obligations to manage the lands of their mother's estate.
This management includes the care of the Madayin
girri, (symbols of law) and the administration of the ‘mother's
people’s law. The yothu-yindi legal relationship clearly parallels the
‘separation of powers’ that exist within the Westminster system of
Government. This means that people
of one ringgitj will have yothu-yindi
relationships with people of a different ringgitj,
through the separation of powers as encompassed in law.
In Conclusion
"Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs." (Brennan J., Mabo Judgement, Page 42)
This
paper attempts to open a window to what is a complex, complete and unique code
of law as it relates to land ownership for the people of north-east Arnhem Land.
The
Common Law of Australia has now recognised the existence of this law.
Although not many people really know what that means. Further dialogue is
needed to explore the depths of this law sketched out above.
When this is done the dominate Australian community will need to be
educated about this law so that Yol`u and other indigenous Australians can enjoy
hard earned common law rights.
Chief
Executive Officer
© 1993 ARDS INC
September
1993
Darwin:
PO BOX 36921
WINNELLIE NT 0821
Nhulunbuy:
BOX 1671
NHULUNBUY
NT 0881
Revised
February 1998, January 2002, May 2002
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