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David Ritter

The Fulcrum of Noonkanbah

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Perceptions of the legacy of Sir Charles Court’s participation in Indigenous affairs inevitably rest upon his role in the Noonkanbah issue.1 A true cause celebre that coincided with the state of Western Australia’s non-Indigenous sesqui-centenary, Noonkanbah received enormous media attention and reached into many of the most intensely debated areas of Indigenous public policy. The late Jack Davis remarked in 1988 that Noonkanbah ‘highlighted and still highlights the issue[s] of two hundred years’.2 Symbolically, before Mabo, Wik and Hindmarsh there was Noonkanbah. In a reductionist sense, Noonkanbah can be depicted as no more than a legal, cultural and political dispute over proposed oil exploration on a small area of the east Kimberley. However, this discussion concentrates on the broader meanings of the dispute and Court’s part within it, rather than the factual minutiae.3 Noonkanbah was a fulcrum, a central point from which matters of great state and national significance were levered by broad social forces and by such political leaders as Court. The implication of the metaphor is that Noonkanbah ‘cannot be looked upon … as just another episode’, but as a ‘moment in history’ that was a pivot of change.4

Noonkanbah: Some facts 5

The Noonkanbah pastoral station is a property of just under 400,000 hectares, approximately 100 kilometres southwest of Fitzroy Crossing in the Kimberley. Described historically as ‘a well-grassed pasture straddling the Fitzroy frontage’,6 it was one of the chief land-holdings of the Emmanuel family, who were ‘probably the most consistently successful of the first generation of pastoralists in the Kimberley district’.7 The pastoral lease, though, was granted over the existing traditional title to the land of the local Aboriginal people, whose native title rights in the country were ignored until the lodgement of a native title claim in 1998 (see the section Noonkanbah Now: Native Title and the right to negotiate, below). This ignorance was not peaceful. The colonial history of the east Kimberley is marked by warfare, massacres and cruelty that continued well into the twentieth century.8 As late as 1956, Aboriginal prisoners in the Kimberley were secured in neck chains and there is documentary evidence of racist police brutality well into the last quarter of the twentieth century.9

In 1976, the Noonkanbah pastoral lease was purchased for the Yungngora community 10 by the Aboriginal Land Fund Commission and so passed from non-Indigenous to Indigenous ownership. Ownership of the lease was vested in the Aboriginal Lands Trust.11 Soon afterwards, in the Kimberley minerals rush of the late 1970s, hundreds of resources tenements were pegged by resource explorers on Noonkanbah station. One thread of this speculative net was an oil exploration program, to be conducted by the petroleum division of Amax Iron Ore Corporation, that included the drilling of an exploration well in the vicinity of Pea Hill 12 or Umpampurru on Noonkanbah station. The Aboriginal Sites Department of the Museum of Western Australia, at that time the responsible entity under the (WA) Aboriginal Heritage Act 1972, initiated an ethnographic investigation of the area, which was conducted in mid-1979 by Peter Bindon, an archaeologist and anthropologist employed by the Museum.13 The investigation revealed that the:

whole area within which any drill hole could be located by the Company falls under the influence of the special sites shown to me by the Aborigines of the clan descent group for that area. The site complex is significant in both a religious and economic context. Mythological connections are both authentic and ancient and are intimately linked to the economic present.14
Notwithstanding these findings, it was intended that drilling would proceed. The state’s position was that Bindon’s findings were simply misconceived. According to the government, the concept of ‘areas of influence’ was not supported by ‘most anthropologists or Aborigines’.15 On 28 November 1980, after the drilling had occurred, Court informed Parliament that categorically ‘sacred sites have not been violated’.16 This was, in a sense, the crux of the matter and it has spawned its own literature within anthropology.17

In June 1979, when Amax personnel and the Mines Department officially arrived at the gate of the Noonkanbah station, they found it locked and their way barred by approximately forty members of the Yungngora community. The situation was repeated the following day, but the spectre of physical confrontation receded because the Aboriginal Legal Service obtained an interim injunction from the Supreme Court of Western Australia preventing drilling from proceeding. Following a successful application by Amax, the injunction was lifted 18 but, in any event, the arrival of the wet season rendered drilling impossible for the remainder of the year.

In March 1980 a number of government ministers flew to Noonkanbah and met with the Yungngora community. This resulted in no agreement. Later that month, Amax entered the property without notice but with police protection and began bulldozing a camping area. Another delay was created by a second injunction, but that too was lifted a short time later.19 With non-Indigenous law having failed them, the Yungngora resorted to their own law ceremony at a camp adjacent to the Amax workers on the site. Shortly thereafter, for what one commentator has called ‘vague unexplained reasons’, the Amax personnel contractors left the area and returned to a nearby town.20 Others have asserted that Aboriginal Law had, on its own terms, won an emphatic, if rare and temporary, victory.21

An uneasy peace prevailed until 30 May 1980, when Court himself visited the station to discuss the matter with the Yungngora community. The federal Minister for Aboriginal Affairs, Fred Chaney, also became involved in seeking to broker a resolution. However, all talks failed to produce a settlement and in August 1980 a convoy of forty-five trucks bearing drilling equipment left Perth with heavy police escort. The convoy met with various protests and pickets, but ultimately made it through to Noonkanbah. A further delay was caused by union action in support of the Yungngora community, but this reprieve was ended when a non-union crew was assembled and commenced drilling operations on 30 August 1980 at what was officially termed Fitzroy River Number One Well. The drilling program did not discover any commercial reserves of oil and the drill hole was subsequently plugged. The socio-cultural impact on the community still awaits detailed analysis, but witnesses reported a ‘weariness and a malaise’ and ‘an air of sadness, almost mourning’ within the community in the aftermath. One of the principal custodians of the affected country became ill 22 and the man identified by the state as ‘the traditional custodian’ 23 died a year later.24

Weight on the Lever: Court’s Personal Involvement

The Noonkanbah dispute was, at a very personal level, identified with Court. The Premier took a prominent role in both negotiations and the media drama that unfolded.25 He was subjected to vitriolic personal vilification for his involvement and was regularly depicted as a neo-fascist or the primogenitor of a police state.26 The political chronicle of the Australian Journal of Politics and History for the six months from January to June, 1980, records that ‘while the year ended without any more holes being drilled at Noonkanbah, someone was fined for drilling holes in the Premier’s front lawn’.27 The editorials of Western Australia’s newspapers also judged Court personally by the Noonkanbah events.28 The saga has been seen as the defining issue of Court’s final, unfinished term in office, leaving him with a problematic political legacy.29

Unquestionably, Court pursued the objective of seeing the drilling proceed at Noonkanbah with extraordinary ardour.30 The motivations behind this fervour are not mysterious and are set out by Court himself in a written report to the Legislative Assembly in which he outlined ‘five main reasons’ behind his Government’s involvement in Noonkanbah:
Firstly, because the lawful right to explore on Noonkanbah was unlawfully obstructed.

Secondly, because the search for petroleum was and is of national importance, and the national interest demands that it must not be unreasonably obstructed. Thirdly, because obstruction at Noonkanbah was clearly intended to become a precedent for further obstruction over vast areas of the State that would have gravely disrupted essential exploration, as well as denying many people their lawful rights.

Fourthly, because the obstruction was carried out with the clear intention of challenging, and even replacing, the lawful authority of elected government. Finally, because the community of Western Australia clearly wanted lawful order maintained on an even-handed basis, without privilege for any — on grounds of race, or for any other reason.31
A number of factors can be distilled from this manifesto. The Premier saw ‘the rule of law’ as paramount and anything that he perceived to be a challenge to that rule could not be tolerated. Further, the Premier’s understanding of equality under the rule of law was largely one of formal equality of citizens, without special measures: ‘the protection of individual rights on an even handed basis by lawful order’.32 Finally, the Premier implied that a primary objective of the rule of law is to guarantee the property rights necessary for commerce, particularly in this instance the resources industry.33 In Court’s own words, ‘The well drilled on Noonkanbah was an essential part of exploration for petroleum, which must proceed with all the encouragement we can give it in Australia’s interests’.34

Court’s attitude was also characterised by an evident contempt for the forces arrayed against him: ‘People, organizations and movements with a different vision were seen as evil, misguided or both’.35 Court and his Government were heavily critical of those who were seen as non-Indigenous intermeddlers, including: Senator Chaney and Prime Minister Fraser;36 anthropologists; union protesters and the lawyers of the Aboriginal Legal Service.37 Court told Parliament in November 1980 that it was ‘the activists who were the real cause of the disturbance at Noonkanbah’.38 In Noonkanbah: The Facts, these ‘white advisers’ are indicted simply as ‘what went wrong’.39 The Premier simply denied the legitimacy of those critical of his Government’s position. A ‘man watchful of adversaries at every turn’ he saw in his opponents ‘faceless ideological forces: the stirrers, the troublemakers, the malcontents aiming to destroy Western Australia’s economic progress’. It can probably be fairly said that Court was motivated not just by his own ideals, but by contempt for those evinced by his adversaries.40 The Problem with Winning the Battle

War is perhaps the ultimate form of political leverage, and the Noonkanbah affair was a contest over land use that had many of the hallmarks of a battle. The remote locations, the maps, the vehemence and polarity of views, and the hardware involved, all contributed to the appearance of military engagement.41 It was, commented C D Rowley, ‘reminiscent of the tank corps exercises in the north of the state during the World War II’.42 For his part, Court had a ‘love of the semi-military style of leadership’ and to some extent styled himself accordingly.43 In this conflict the stakes had become symbolic and the ‘Court Government was determined not to be seen as the loser in such a showdown’.44

In a real sense, the ‘battle of Noonkanbah’ goes beyond metaphor. Older members of the Aboriginal community at Noonkanbah were only one generation from those who had been involved in direct military confrontation with colonial authorities in the east Kimberley.45 Within the previous hundred years, the Kimberley had been the subject of colonial conquest:
In the Kimberley region the war lasted longer than anywhere else on the Australian continent, beginning in the 1880s and continuing until 1930. It was a heroic defence which utilised the rugged terrain and the experience gained over two generations of continual fighting.46
Those providing the resistance at Noonkanbah were in part the descendants of those who had earlier defied the colonial invasion. Similarly, at an institutional level, there was continuity between the forces that had done the invading and the forces represented by Court in the Noonkanbah dispute. Making this point is not to equate either side with their predecessors in a simplistic or reductionist way, it is merely to show that there was a clear historical lineage to the events of 1978- 1980. 47

The ‘battle’ of Noonkanbah was clearly won by the Government of Western Australia under Court’s supreme command. Bill Mitchell, Court’s key adviser during Noonkanbah, was happy to describe it in hindsight as a ‘battle’ and reflected that it was a battle that the protesters clearly ‘lost’.48 Access to the drilling site was achieved, drilling was undertaken and the results recorded. In terms of his motivations in the contest, the Premier would have been able to reflect that he had seen the rule of law enforced and, by example, sent a powerful message to the resources industry that the state of Western Australia would take extraordinary measures to guarantee resource companies’ access to country. However, in the aftermath of the Noonkanbah conflict, the problem faced by Court, as by all those who are victorious in military conflict, was how to manage the peace having won the battle? That is, how should the terms of the peace be arranged so that the objectives for which the battle had been conducted were not forfeited? In this light, it can be argued that while the ‘battle’ of Noonkanbah was won by Court and the forces of Government, the victory had many unforeseen consequences that, it can be inferred, were inimical to their stated objectives.

Increased Radicalisation of Aboriginal Politics

In the course of the dispute, the Aboriginal people involved became increasingly radicalised.49 The Premier himself described a hardening of the Indigenous position and an emerging, more extreme leadership:
Claims related to sacred areas were progressively escalated until the whole station was declared out of bounds. And the authority and influence of Friday Muller was progressively destroyed and replaced by hard-line activists, including white advisers, and an emerging Aboriginal leader, Mr Dicky Skinner.50
What Court over-looked was that the perceived growing extremism was merely fed by the various measures adopted by the Government itself.51

The radicalisation of Aboriginal politics extended beyond the Yungngora community. Jim Hagen, Chair of the National Aboriginal Conference, addressed a meeting of the Aboriginal Treaty Committee in Canberra on 21 August 1979, and said that ‘What is happening at Noonkanbah is now more than a local issue’: it had achieved ecumenical significance within the Indigenous world.52 Noonkanbah also led to the first ever delegation of Australian Aboriginal people to address the United Nation Humans Rights Sub-Commission on the Prevention of Discrimination and Protection of Minorities. The United Nations was told that the ‘Noonkanbah community have sought justice and they had been given obstruction. They sought peace and they have been given violence’.53 This is hardly the kind of message about Western Australia that Court would have wanted to gain international currency.

The Birth of the Kimberley Land Council

The Noonkanbah dispute was also the catalyst for the establishment of the institution that would be arguably the most powerful and effective opponent of conservative government in Western Australia in the sphere of Indigenous affairs for the rest of the twentieth century. The Kimberley Land Council (KLC) was founded at Noonkanbah in May 1978. In its formative years, the KLC drew both legitimacy and profile from the Noonkanbah dispute. It might well be suggested that Noonkanbah was the making of the KLC.54 Significantly, a young KLC field officer called Peter Yu, who was involved in Noonkanbah, emerged as the Director of the KLC in the 1990s.55

Following the Mabo decision and the enactment of the (Commonwealth) Native Title Act, the KLC was recognised as a native title representative body with statutory powers and was provided with Commonwealth Government funding. The KLC has played a leading role in many of the key native title cases and has, for most of the native title era, been seen as one of pre-eminent native title representative bodies. Without doubt, one of the secrets of the KLC’s success as a native title representative body has been its political and institutional maturity, derived from its pre-native title history. In native title terms, the KLC proved an intractable opponent of the state throughout Richard Court’s premiership, leading to the suggestion that the policies and politics of Sir Charles Court begat one of the most trenchant political foes of his son when he reached office a decade or so later.

From Noonkanbah to Mabo

Between 1971 and 1992, a gulf opened between law and history in Australia.56 In that period, following Milirrpum v Nabalco,57 but prior to the handing down of the Mabo decision, native title was held not to exist under the common law of Australia. It was a period punctuated by the writings of Henry Reynolds and others, all of who articulated a version of Australian history in which Aboriginal people had traditional ownership of land.58 This contrasted with the position under common law in Australia that had not, thus far, recognised the existence of native title.59 Noonkanbah graphically illustrated this disjunction. It was profoundly evident that the Indigenous community at Noonkanbah regarded themselves as the owners, under traditional law and custom, of the land subject to the Noonkanbah pastoral lease. This view was rhetorically opposed by Court and his Government 60 and was not supported by law.61

Without the rights of proprietary owners with an interest stronger than pastoral leasehold, the Aboriginal community at Noonkanbah found itself ultimately powerless to prevent the drilling program from proceeding. Noonkanbah then, with all its attendant publicity, was a key event in the crisis of legitimacy that engulfed the Australian political system in relation to Aboriginal affairs between Milirrpum and Mabo. The Noonkanbah dispute was a critical occasion, when ‘a loss of legitimacy occur[red] to the apparent Official political struggle around land rights’.62 It marked a ‘legitimation crisis’ that, as part of a wider discursive problem, led to Mabo.63

In a more legal sense, events at Noonkanbah also demonstrated the profound weakness of the remedies currently available at law to Aboriginal people to protect their traditional country against the incursions of resource companies. The amendment of the Aboriginal Heritage Act that occurred following Noonkanbah was an illustration of the extent to which even the meagre statutory protection afforded to Indigenous rights in Western Australia was inherently vulnerable to legislative change.64 The failing of Australia’s legislatures to protect Aboriginal interests in land was one of the key stimuli for turning to the common law. Indeed, it was almost precisely one year after drilling began at Noonkanbah that the conference was held in Townsville that proved to be the genesis of the Mabo litigation.65

Direct links between the two events can be found. For instance, the April 1980 Action for Aboriginal Rights Newsletter issued from Fitzroy in Melbourne ran ‘Noonkanbah’ as its cover story.66 Inside was an invitation to a meeting to be held to discuss proposals for an Aboriginal treaty, the speaker at which was Barbara Hocking, a barrister and a member of the Mabo legal team who attended the 1981 conference in Townsville.67 It is hard to imagine that the meeting, held on 29 April 1980 at St Mary’s Hall in the University of Melbourne, which was addressed by one of Eddie Koiki Mabo’s barristers, did not include discussion of Noonkanbah, the burning Aboriginal land issue of the day.68

If events like Noonkanbah are seen as giving rise to the Mabo litigation, the irony is that, with the common law recognition of native title in Australia, there occurred the greatest realignment in power over resources between Aboriginal people and industry since the commencement of colonisation. The recognition of common law native title in Australia made it arguable that all minerals titles issued over Crown land since 1975 were invalid, giving rise to possible rights to compensation. The Native Title Act validated these potentially invalid tenements,69 but it also provided a right to negotiate for registered native title claimant groups in respect of the creation of future rights to mine over the claimed land.70

Court would no doubt have regarded all these developments with disbelief when the Noonkanbah dispute was raging. They are hardly results that he and his Government would have foreseen, desired or intended. However, it is arguable that had the Western Australian (and Queensland) Governments negotiated a fairly modest statutory land rights system in those two states prior to the initiation of the Mabo litigation, the Mabo case would have never been commenced and native title would have remained nothing more than the stuff of academic speculation. Had the extreme position of ‘repressive intervention’ 71 not been taken by the state of Western Australia in Noonkanbah, there would have been no lever for Mabo. As Vachon and Toyne hypothesised in 1983:
The Western Australian Government succeeded in wrestling its drilling rig to Noonkanbah. But in attempting to bulldoze the Noonkanbah people into submission, the Government has inadvertently propelled them, along with other Aborigines, into a political arena where land rights, and not only the protection of sites, may just be possible … Contrary to everything the Government may have intended, a pan-Aboriginal unity has begun to emerge in Western Australia.72
While Court’s Government won the battle of Noonkanbah, it might be said that it lost the wider war.73 The common law now acknowledges the sui generis legal nature of Aboriginal interests in land and both it and the Native Title Act reject the kind of formal legal equality between Indigenous and non-Indigenous interests supported by Court. Resource development including petroleum exploration is now routinely fettered — in an organised and principled way — by Aboriginal people under the native title process. In 1997, the National Executive Director of Australian Petroleum Producers and Explorers Association told a conference that it is appropriate for petroleum companies to ‘minimise the impact of company activities’ on Aboriginal communities, and to ‘pay compensation where appropriate’.74 Contrary to Court’s intentions, Noonkanbah clearly became a symbol and a precedent for wider emancipative action on behalf of Aboriginal people. In an institutional sense, those whom Court may have dismissed as ‘white advisers’ or ‘Aboriginal radicals’ clearly triumphed in the longer term and many of them are now servants of the native title process.75

Noonkanbah Now: Native Title and the Right to Negotiate

The Noonkanbah lease itself is subject to native title claim. Claimant application for a determination of native title Noonkanbah WC98/9 was lodged with the National Native Title Tribunal on 3 March 1998. 76 Following the September 1998 amendments to the Native Title Act, along with all other native title applications, it was transferred from the Tribunal to the Federal Court, where it was assigned court number WG6229/98. The claim was also registered on 3 March 1998 and has retained the right to negotiate that is contingent on registration since that time. Thus, the traditional owners of Noonkanbah today possess, at law, almost precisely what Court’s Government sought to deny them: the right to object to or negotiate about the issuing of resource tenements.

Conclusion: Striving for Sustainable Settlements

Court and his Government won a notable political victory over the forces arrayed against them at Noonkanbah. The stated objective was achieved and the proposed drilling took place. This victory came at great cost, however, to the fabric of social consensus, and the injustice of Noonkanbah was a fulcrum for the rise and ultimate success of socio-political forces antithetical to Court’s stated position. The broader result of the Noonkanbah drama was a politically unsustainable outcome that left Aboriginal people feeling wronged and aggrieved and driven to seek wider redress. This conclusion about Noonkanbah has a particular redolence in the native title era. Each native title claim that is negotiated to conclusion is a major political settlement in relation to the distribution of natural and social resources within the community.

The burden is on the state Government, and indeed all parties, to ensure that the political and legal resolutions that are reached in order to settle the claims are durable and sustainable; that they are sufficiently just and principled and drawing upon a wider social consensus such that they do not create grounds for future grievances. It remains to be seen whether this challenge is being met. At least one native title claim settled in Western Australia over 48,000 square kilometres (physically dwarfing Noonkanbah) has enormous justice and workability problems that hopefully will not be replicated elsewhere.77 The challenge for those involved in the native title process, then, is to pursue with all of the persistence, resilience and consistency demonstrated by the protagonists in Noonkanbah, fair and lasting settlements of native title in Australia. It is the best way, perhaps, to ensure ‘Noonkanbah: never again’.78

Notes

1 The timing and occasion of the initial version of this paper was ambiguous, as it was commissioned for a conference that appeared more intended to praise Court’s memory than to bury it: ‘Sir Charles Court in Western Australian History: A Conference on his Life and Politics’, Curtin University of Technology, Thursday, 20 September 2001. The subject, and many of his children and supporters, sat in the audience. The lecture was then re-presented to undergraduate students at Notre Dame University and Curtin University of Technology in Perth. Under this various scrutiny I remain confident of the thesis argued herein. Thanks to Deborah Gare for the encouragement and to Mel Forbes for her research assistance. What does one call ‘Noonkanbah’: the Noonkanbah ‘what’? Hawke and Gallagher note that it has been referred to as the Noonkanbah ‘dispute’, ‘episode’ and ‘confrontation’. They prefer to describe it as a ‘drama’. See S Hawke and M Gallagher, Noonkanbah: Whose Land, Whose Law, Fremantle Arts Centre Press, Fremantle, 1989 p 326. Bill Mitchell, the key adviser to Premier Court during Noonkanbah, said of Hawke and Gallagher’s work that those people ‘with short meories may have them instantly revived by the book’s title — “Noonkanbah”’. See B Mitchell, ‘The Day the Drill Went Down’, unpublished occasional lecture presented at the request of Professor David Black, 25 May 1992. Hawke and Gallagher also note that it had taken on a metaphoric meaning as in ‘there will never be another Noonkanbah’, p 326. See also I Palmer, ‘State mechanisms and intervention: An examination of some recent official responses to Aboriginal land rights demands’, Australian and New Zealand Journal of Sociology (ANZJS), vol 19, no 1, 1983, pp 3-32, p 20). Twenty years later, the name stands alone, with its multiple (contested) connotations still well known: see for instance Z Kovacs, ‘Noonkanbah: Twenty years on’, The West Australian, Big Weekend, 16 May 1998, pp 1-2; Brian Wyatt, currently Director of the Goldfields Land Council has said that it has ‘become folklore’, ‘Past and present disputes regarding resource development and sacred sites in Western Australia’, in R Bartlett (ed), Resource Development and Aboriginal Land Rights in Australia, Centre for Commercial and Resources Law, University of Western Australia, Perth, pp 130, 138; and Wil Christensen described it as ‘the so called Noonkanbah affair’, ‘Aborigines and the Argyle Diamond project’, in R A Dixon and M C Dillon, Aborigines and Diamond Mining, University of Western Australia, 1990, p 34.
2 Quoted in Hawke and Gallagher, op cit, p 316.
3 For a succinct comparison of the narrower and broader senses of the dispute see D Vachon and P Toyne, ‘Mining and the challenge of land rights’, in N Peterson and M Langton, Aborigines, Land and Land Rights, Australian Institute of Aboriginal Studies, Canberra, 1983, p 310.
4 Jim Hagen, Chair of the National Aboriginal Conference, addressing a meeting of the Aboriginal Treaty Committee in Canberra on 21 August 1979, quoted in Hawke and Gallagher, op cit, p 294.
5 This subtitle is intended as a play on the (some would say somewhat Orwellian) title of the Western Australian Government’s publication Noonkanbah: The Facts, Government Printer, Perth, September, 1980. Professor R M Berndt called it ‘an appalling document’, ‘a retrogressive statement’ and a ‘combination of truth and half truth’, quoted in E Kolig, The Noonkanbah Story, University of Otago Press, 1987, p 158. The ‘Political Chronicle: Western Australia’ in the Australian Journal of Politics and History, vol 27, no 1, 1981, pp 92-95, p 93, described it as ‘a small booklet ... leading to considerable dispute about what were facts and what were not’. Noonkanbah: The Facts is indeed a strange document, totally undeserving of its title, as its text is composed of numerous, un-footnoted sweeping assertions and ideological statements. See Vachon and Toyne, op cit, for a short critique. Notwithstanding these comments, I have drawn on the chronology contained in Noonkanbah: The Facts. I have also relied heavily on Hawke and Gallagher, op cit, and P Vincent, ‘Noonkanbah’, in Peterson and Langton, op cit, p 335, both of which contain descriptions of ‘the facts’.
6 G C Bolton and H Pedersen, ‘The Emanuels of Noonkanbah and GoGo’, Early Days Journal of the Royal Western Australian Historical Society, vol 8, no 4, 1980, pp 5-21, 9.
7 ibid, p 5.
8 A Grassby and M Hill, Six Australian Battlefields, Allen and Unwin, St Leonards, 1988, pp 65-9; Hawke and Gallagher, op cit, pp 40-60; and Bolton and Pedersen, op cit, pp 9-12.
9 Hawke and Gallagher, op cit, p 59; Grassby and Hill, op cit, p 65; and S Hawke, ‘Police in Fitzroy Crossing’, Legal Service Bulletin, December 1979, pp 231-233.
10 Composed of people of Walmadjari and Nyiginya descent with some Bunapa and Djaru as well. See Vincent, op cit, p 327.
11 Although not foreseen (or foreseeable) at the time, the vesting of a pastoral lease for the benefit of an Aboriginal community has important native title consequences. See section 47 (Cwth) Native Title Act 1993.
12 Sometimes spelled ‘P Hill’.
13 For analysis of how the (WA) Aboriginal Heritage Act 1972 then worked, see G McDonald, ‘Western Australia’, in N Peterson (ed), Aboriginal Land Rights: A Handbook, Australian Institute of Aboriginal andTorres Strait Islander Studies (AIATSIS), Canberra, 1981, p 221; and WDix, ‘The Aboriginal Heritage Act of 1972’, in M C Howard, Whitefella Business: Aborigines in Australian Politics, Institute for the Study of Human Issues, Philadelphia, 1978.
14 P Bindon, ‘Museum report on Noonkanbah investigations’, unpublished and restricted, 14 June 1979, p 19.
15 Noonkanbah: The Facts, op cit, p 6.
16 C Court, ‘The Drilling at Noonkanbah: A Report to Parliament by the Premier of Western Australia’, incorporated into Hansard by leave of the Legislative Assembly, Hansard, Assembly, Friday, 28 November 1980, pp 4,282-3.
17 For a wonderfully nuanced discussion of the matter, see Kolig, The Noonkanbah Story, pp 132-44; see also Kolig, ‘Government polices and religious strategies: Fighting with myth at Noonkanbah’, in R Tonkinson and M Howard (eds), Going it Alone? Prospects for Aboriginal Autonomy, Aboriginal Studies Press, Canberra, 1990, p 235; and, R M Berndt, ‘The Noonkanbah Dispute’ and ‘Points in Regard to the Noonkanbah Dispute’, unpublished, c1980, copies are held in the collection of the National Native Title Tribunal in Perth.
18 Noonkanbah Pastoral Company Pty Ltd and Another v Amax Iron Ore Corp and Others, Unreported, Brinsden J., Supreme Court of Western Australia, 1558/79, 27 June 1979.
19 Yungngora Aboriginal Corporation Inc v. Amax Iron Ore Corporation, Unreported, Wallace J., Supreme Court of Western Australia, 1324/80, 27 March 1980.
20 Vincent, op cit, p 335.
21 Hawke and Gallagher, op cit, pp 208-19.
22 ibid, p 316.
23 Noonkanbah: The Facts, op cit, p 5.
24 Hawke and Gallagher, op cit, p 319.
25 Court met with the community on 30 May 1980 and then later attended the drilling site and offered to meet with the community, which was rejected, on 31 August 1980. See Hawke and Gallagher, op cit, passim.
26 Patrick Cook bestowed the epithet ‘Charles Rommel’ on Court in the National Times, quoted in C Tatz, Aborigines and Uranium and Other Essays, Heinemann, Richmond, 1982, p 92; see also the letter from Jeffrey Kemp to the West Australian, 26 August 1980, p 25, accusing Court of ‘jackboot tactics’. Lorna Lippman described Court’s world view as ‘mining uber alles’, Generations of Resistance: The Aboriginal Struggle for Justice, Melbourne, Longman Cheshire, 1981, p 188. Court accused his opponents of Hitlerite tactics in the course of the saga, Court, op cit, p 4283.
27 ‘Political Chronicle: Western Australia’, Australian Journal of Politics and History, vol 26, no 3, 1980, pp 443-6, p 445.
28 See, for instance, those quoted in Hawke and Gallagher, op cit, p 303.
29 G Bolton, ‘Court in Power’, Westerly, vol 3 (September), 1982, pp 57-66, p 64; and Hawke and Gallagher, op cit, p 322. Court retired in 1982 and was replaced by his deputy, Ray O’Connor.
30 Hawke and Gallagher, op cit, p 96.
31 Court, op cit, p 4282. A pretty clear picture of Court’s motivations is also provided in Mitchell, ‘The Day the Drill Went Down’.
32 Court, op cit, p 4283.
33 Court clearly embraced what Dixon has called ‘the ideology of development’, ‘In the shadows of exclusion: Aborigines and the ideology of development in Western Australia’, in Dixon and M C Dillon, op cit, pp 155-68.
34 Court, op cit, p 4301; see also Vachon and Toyne, op cit, p 310.
35 Hawke and Gallagher, op cit, p 97.
36 ibid, pp 192, 314.
37 See Court, op cit, passim; and Noonkanbah: The Facts, op cit, passim. For some discussion of this phenomenon see C D Rowley, Recovery: The Politics of Aboriginal Reform, Penguin, Ringwood, Vic, 1986, pp 105-6.
38 Court, op cit, p 4283.
39 Noonkanbah: The Facts, op cit, p 5. The zenith of this kind of thinking is provided by Mitchell, op cit. See also Vincent, op cit, p 335. See n.11 for a discussion of the nature of Noonkanbah: The Facts.
40 Bolton, ‘Court in Power’, op cit, p 58.
41 Christensen, op cit, p 34.
42 Rowley, op cit, p 73.
43 Bolton, ‘Court in Power’, op cit, p 63.
44 Hawke and Gallagher, op cit, p 165.
45 ibid, p 47.
46 Grassby and Hill, op cit, p 65.
47 A lineage that is drawn out at length in Hawke and Gallagher, op cit.
48 Mitchell, op cit, pp 1-2.
49 Noonkanbah also probably indirectly contributed to the increasing ‘juridification’ of Aboriginal relations. See C Mantziaris and D Martin, Native Title Corporations: A Legal and Anthropological Analysis, Federation Press, Sydney, 2000, pp 126-128.
50 Court, op cit, p 4,287. See also Noonkanbah: The Facts, op cit, pp 5-6.
51 This is strongly brought out in Hawke and Gallagher, op cit; see also Kolig, ‘Dialectics of Aboriginal Life Space’, in M C Howard, Whitefella Business: Aborigines in Australian Politics, Institute for the Study of Human Issues, Philadelphia, 1978, p 74.
52 Hawke and Gallagher, op cit, p 294; see also Pat Dodson’s comments, quoted on p 223 and, in general, the description of the involvement of other Indigenous organisations in the dispute.
53 Quoted in Vincent, op cit, p 337.
54 Kovacs, op cit.
55 Hawke and Gallagher, op cit, p 229.
56 See D Ritter, ‘The rejection of Terra Nullius in Mabo: A Critical Analysis’, Sydney Law Review, vol 18, no 1, March 1996, p 5.
57 Milirrpum v Nabalco (1971) 17 FLR 141. This case marked the first occasion that it had been argued that native title existed under the common law of Australia.
58 Henry Reynolds has written immensely prolifically on this subject: ‘The breaking of the great Australian silence: Aborigines in Australian historiography 1955-1983’, the Trevor Reese Memorial Lecture 1984, University of London, Institute of Commonwealth Studies, Australian Studies Centre, 1984; The Other Side of the Frontier, Ringwood, Vic, Penguin, 1982; and The Law of the Land, Ringwood, Vic, Penguin, 1988.
59 It is often asserted that this is because of the doctrine of terra nullius. The assertion is incorrect. See Ritter, op cit.
60 See Noonkanbah: The Facts, op cit.
61 At the time, the Yungngora community had no rights greater than pastoral lessees. See Palmer, op cit, p 20.
62 Palmer, op cit, p 26.
63 ibid, p 20. Palmer’s article directly supports the hypothesis that I argue in Ritter, op cit, but, annoyingly, I was not aware of Palmer’s work at the time of writing. Palmer describes the kind of legitimation crisis posed by Noonkanbah. See also the prescient comments in Tatz, op cit, p 92; and C D Rowley, ‘Aboriginals and the political system’, Politics, vol 15, no 2, 1980, pp 232-48, 232.
64 Tatz, op cit, p 92.
65 E Olbrei (ed), Black Australians: The Prospects For Change, Townsville, 1982; see also B A Keon-Cohen, ‘The Mabo Litigation: A Personal and Procedural Account’, Melbourne University Law Review, vol 24, 2000, pp 893-951.
66 Action for Aboriginal Rights Newsletter (Formerly Aboriginal Action), no 9, April 1980, p 1. 67 ibid, p 3. 68 It clearly also inspired the Ngaanyatjarra Council. See Vachon and Toyne, op cit, p 312. 69 After Mabo, it was probably open to challenge that the Noonkanbah petroleum tenements had been invalidly granted. They were, along with other interests in land created in Australia between 1975 and 1994, validated by the Commonwealth Native Title Act. See (Cwth) Native Title Act 1993, Division 2 — “Validation of Past Acts”.
70 ibid, Division 3 – “Future Acts etc and Native Title”.
71 Palmer, op cit, p 19.
72 Vachon and Toyne, op cit, p 311.
73 It did not always look this way. The year before the Mabo decision was handed down, Michael Dillon wrote that, ‘In terms of land rights, the Aboriginal people at ... Noonkanbah, lost both the battle and the war in that sites of particular importance to them were damaged and destroyed, and their aspirations for statutory recognition of their traditional ownership of their land were denied’, M Dillon, ‘Interpreting Argyle: Aborigines and diamond mining in northwest Australia’, in J Connell and R Howitt, Mining and Indigenous Peoples in Australasia, Sydney University Press, 1991, p 146. Coincidentally, writing one month before the Mabo(2) decision was handed down, Mitchell suggested of Noonkanbah that: ‘One thing stands out, however. Black apartheid died after Noonkanbah’, Mitchell, op cit, p 11. Ignoring the silly language used by Mitchell and accepting his meaning, he was clearly and spectacularly wrong, as within a few years of his words, much of Australia was covered by Native Title claim.
74 B Jones, ‘The petroleum industry perspective’, paper delivered at the AIC Doing Business with Aboriginal Communities Conference, 10-12 March 1997, Kalgoorlie, p 4.
75 Phil Vincent, lawyer for the Yungngora Community, is retained counsel for the Goldfields Land Council; Fred Chaney is a Member of the National Native Title Tribunal; Michael Gallagher, a researcher supporting the Yungngora Community, has been heavily involved in the Native Title Process in a variety of research capacities.
76 For the latest information, see the National Native Title Tribunal web site at http://www.nntt.gov.au.
77 Clarrie Smith v State of Western Australia [2000] FCA 1249. For some critique of this, see Ritter, ‘The Long Spoon’, paper delivered at The Past and Future of Land Rights and Native Title, Native Title Representative Bodies Legal Conference, Southbank Hotel and Convention Centre, Townsville, 28-30 August 2001.
78 A play on Deputy Prime Minister Doug Anthony’s call in August 1980 for no more ‘Noonkanbahs’, interpolated in Palmer, op cit, p 20.

Originally published in Richard Nile (ed), Country: Journal of Australian Studies no 75, St Lucia, UQP, 2002.