Muir, Kado --- "Back home to stoke the fires: the Outstations Movement in Western Australia" [1999] IndigLawB 23; (1999) 4(19) Indigenous Law Bulletin 11

Back Home to Stoke the Fires:

The Outstations Movement in Western Australia

by Kado Muir

The larger permanent Aboriginal communities in Western Australia generally developed from missions, town reserves, station camps or ration depots. These large communities were populated by Aboriginal people from a variety of backgrounds who were moved from their traditional areas according to the government policies of the time. Often, the relocation of large numbers of very different groups to these communities resulted in many social problems and conflict.

In the 1980s, Aboriginal people sought to address the problems prevalent within these large communities through the Outstations Movement, which has seen Aboriginal people relocate in small groups back to their traditional lands. The Movement developed on an adhoc basis and in most cases outside legislative parameters.

In Western Australia at the time, there was no legal concept of traditional land, nor was there any legal recognition of Aboriginal rights to land. As a result, outstations were often established without secure title to land and without direct government funding. However, both State and Federal governments were moved to develop policies in response to these emerging communities.

State and Federal Government support for and responses to the Outstation Movement

The main issue confronting the Governments is Aboriginal people's ability to access programs and services delivered to the general community.¹ Governments generally have struggled to deliver effective services to urban Aboriginal people and the development of outstations presented an additional dilemma because of their remoteness.

The State of Western Australia has generally been reluctant to endorse the relocation of people to their homelands. In most cases, outstations communities initially relied on funding from the Aboriginal and Torres Strait Islander Commission's (ATSIC) Community Development Employment Program (CDEP). The people moving to outstations were often registered as participants in the CDEP projects of the larger communities. These people then remained on the larger communities' CDEP programs, with the outstation allocated as a specific CDEP project. Their CDEP wage meant that people had an income and were able to purchase essential capital items like trucks for transport and two-way radios for communications.

CDEP is critical to the immediate survival of outstations, as residents are often unable to access or engage in commercial and economic transactions, despite the fact that many are located in wealthy cultural and natural resource areas. A number of the outstations in the Great Sandy Desert are located near major resource projects like the Telfer Goldmine and tourist attractions like the Canning Stock Route, yet the residents are forced to rely on CDEP for a livelihood. The issue of greater financial and economic autonomy is one that is closely linked to the land aspirations of people resident in remote outstations and communities.

As outstations developed, became permanent and incorporated under the Aboriginal Councils and Associations Act 1975 (Cth),[2] they were, formerly, able to secure separate funding from ATSIC for essential services like water, housing and continued CDEP support.

Once an outstation becomes established the State is, in principle, responsible for the delivery of essential services to that community in the same way that it is responsible for the delivery of essential services to the general population. There are two main pieces of legislation devoted to Aboriginal community issues in Western Australia: the Aboriginal Affairs Planning Authority Act 1972 and the Aboriginal Communities Act 1979 (WA).

The Aboriginal Affairs Planning Authority Act 1972 (WA) established three statutory bodies: the Aboriginal Lands Trust (ALT), which holds title to lands of community and other value to Aboriginal people, will be discussed further below; the Aboriginal Advisory Council (AAC) and the Aboriginal Affairs Coordinating Committee (AACC). The AAC is composed of Aboriginal people from around the State who advise the minister on policy and program issues relevant to Aboriginal people. The AACC is a committee composed of the heads of government departments that deliver services to Aboriginal people. These three bodies now operate under the direction of the Minister for Aboriginal Affairs, and both Acts are administered by the Aboriginal Affairs Department, which was established by the government of Premier Richard Court in 1995.[3]

There are now approximately two hundred and twenty five remote Aboriginal communities in Western Australia that have been established as part of the Outstations Movement.[4] Of these; one hundred and fifty are communities which have populations of fifty or more people.[5] Western Australia was to have assumed responsibility for maintaining essential services to forty-eight of these communities through agreement with the Commonwealth.[6] The remaining one hundred and seventy communities were serviced predominantly through ATSIC funding.

Both State and Federal government departments that have provided support for the Outstations Movement in Western Australia were established to meet the needs and improve the well being of Aboriginal people to a level equal to that of other Australian citizens. Unfortunately, in my view this tends to encourage other departments to abrogate their responsibilities toward Aboriginal people. These departments often fail to deliver services to Aboriginal communities commensurate to the rest of the population. Rather, they place responsibility on ATSIC and the AAPA to carry the load.

Land Tenure

Aboriginal people are the original owners of land in Western Australia. They were dispossessed of their lands on the basis of the now refuted legal fiction of terra nullius.[7] The institutional settlements that traditional owners were dispersed to have since become large Aboriginal Reserves held by the Aboriginal Lands Trust, especially in the Kimberley and the Desert region. A large proportion of Aboriginal communities are located on these reserves.

The ALT controls 12% of the land in Western Australia.[8] The trust acquired these lands through a variety of strategies, including transfers from other departments, purchases and excisions .[9]

The process of acquiring land in trust developed in tandem with the movement toward greater Aboriginal control of their communities.[10] The 1990/91 AAPA Annual Report illustrates a clear snapshot of this process. It highlights the State Government's commitment to 'providing Aboriginal Communities with secure title to living areas for cultural, social and economic purposes'.[11]

Aboriginal Living Areas

A number of communities Were established on vacant Crown land as people moved back to camp around their waterholes and other major sites. People squatted on the land in this way until the ALT was able to gain tenure, creating a living area.[12] Because the outstation communities had no legally recognised right to the land that they occupied, ATSIC could not grant them any funds for the provision of essential services. Secure tenure to the lands occupied therefore became necessary for the provision of services to remote Aboriginal Communities.

The Living Areas Program could be construed as a success in that many outstations have developed because of it. However, in 1996 'more than 500 individual applications for land grants were not resolved by the Government. Some of those applications were originally made in the 1970s'.[13]

Native Title

The continued existence of native title, whether it is determined or not, raises an issue that could be investigated further. As far as the outstations Movement is concerned, the process of relocating to traditional lands and 'squatting' clearly demonstrates the continued acknowledgement of traditional laws and customs that establish the survival of native title rights.[14] It is a native title right to live on the land. The question is whether Aboriginal people's entitlement under customary law is enforceable or recognisable without recognition of that title by the Crown. I would argue that they are entitled to do this even without a determination of native title. The reason for this is that people engaged in the native tide process are simply asking the Courts to recognise the rights and interests that they already hold.[15]

This proposition would bring into question the legal requirement to demonstrate security of tenure before access to essential services is given. As a consequence, the service delivery agencies which do require communities occupying land to show secure tenure before they provide basic services may be in breach of their duty to ensure compliance with procedural fairness requirements under administrative law when providing services on traditional lands.[16]

Community Governance

Aboriginal communities must act in a manner that does not infringe Australian laws of general application but must also be responsive and submit to their own laws.

The Aboriginal Communities Act 1979

(WA) was introduced following the recommendations of an inquiry by Magistrate Sydall 'into aspects of Aboriginal tribal law and as to whether a plan could be formulated to improve understanding of the law by Aboriginal communities'.¹⁷ Sydall had previously allowed elders from communities in the Kimberley to sit with him to assist in explaining and imposing sentences on offenders from their communities. It should be noted that the role of the inquiry and the legislation was to raise awareness of the law within Aboriginal communities and improve its application to members of their communities.

The legislation 'assists certain Aboriginal communities to manage and control community activities, especially those relating to law and order' by making and enforcing by-laws that apply to all persons within the community lands.[18] The community lands and the communities must be proclaimed under the Act and as of 1997 there were twenty-six such communities proclaimed under the Act.[19] Unfortunately, the legislation is of minimal value in recognising the customary laws of communities or in allowing the community to govern itself according to those laws.

The Act appears promising in allowing for a process whereby Aboriginal communities in Western Australia could develop and apply laws to all residents within their lands. Unfortunately, the

by-law making power is strictly circumscribed. True local autonomy or self-government involves a much broader range of issues than is currently provided for under the Act ... if Aboriginal communities are granted true self government the decision as to what laws would apply within the community would be determined by the community.[20]

The Aboriginal Communities Act 1979 (WA) is an example of a method of governance imposed on Aboriginal communities by a legislative framework that Aboriginal people had little or no input in developing. It is a reflection of the paternalistic approaches in giving Aboriginal people what is thought to be good for them. Nevertheless, many communities have taken the opportunity to become proclaimed under the Act and to make by-laws to address issues of concern to them. In this respect, the Act is an opportunity to achieve some measure of control over the community using the Western legal framework.

All communities and other Aboriginal organisations are required to incorporate in order to receive funding from ATSIC. In most cases Aboriginal people incorporate under the Aboriginal Councils and Associations Act 1975

(WA). In many communities, it is the constitution of the Aboriginal corporation and ATSIC grant conditions that are the means of community governance. The communities elect committee members or councillors to represent their interests in decision making about a range of issues relating to expenditure of monies for community purposes and articulating community concerns to the rest of the world.

I am personally aware of the chairperson of these community corporations being allocated responsibility for the conduct of community members during interactions with other communities. This is especially apparent in serious matters of law and punishment for infringements against customary laws. This situation demonstrates how Aboriginal communities use structures like Aboriginal Corporations to give effect to their customary laws and methods of governance even beyond the Act's intent to adopt customary law into non-Indigenous law.

Land and Money

The land is essential to communities to maintain their traditions. Land is also an economic resource providing social benefits to community members. The Native Title Act 1993 (Cth), especially the right to negotiate, is doing what a hundred years of State and Federal administration has failed to do. It is providing Aboriginal communities with an opportunity to obtain and exercise title to land and engage with resource developers to realise a sound financial and economic base for Aboriginal people. This type of negotiation is well justified given that it is the appropriation and exploitation of Aboriginal land that enriches the Australian economy.

This discussion has provided a brief overview of remote Aboriginal communities in Western Australia. There is much more to the story. This is an area of social and political action that often gets overlooked. The fact that some of these communities have developed without tenure to land, that people live in some of the most remote areas of the State and actively pursue the principles of self determination through initiatives like their own schools and their own customary governance structures suggest that a closer scrutiny of the outstations movement may yield useful insights into the social, legal and political issues in contemporary Aboriginal societies.

The continued survival of remote communities and outstations are central to the economic, social, cultural and political well being of many Aboriginal people. The economics of these communities need to be given serious consideration by all levels of government with a commitment to enable these communities to establish a sound economic base. The Government also needs to recognise that these communities are legitimate social and political entities deserving of appropriate representation as stakeholders in issues concerning remote Australia.

I believe the stories behind the Outstations Movement are epic tales of determination and struggle. Communities often faced great adversity, suffered tremendous tragedy and yet pursued the dream of returning to the lands of their ancestors with tenacity equal to if not surpassing the achievements of the American pilgrims or the First Fleet. One day, perhaps as these communities grow, the broader Australian community will recognise the significant contribution of these people and their leaders to the social and cultural life of remote Australia.

Kado Muir is a Ngalia man from the Northern Goldfields region of Western Australia and is currently a Visiting Research Fellow at the Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies.

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[1]	Services like housing, education, electricity, roads, health, waste disposal etc.
[2]	As all must in order to receive ATSIC funding. See below, p 13.
[3]	This department was created to replace the Aboriginal Affairs Planning Authority (AAPA). The emergence of a new department reflected a shift in government policy aimed at improving service delivery to Aboriginal people on a 'whole of government' basis. This shift in policy meant that many government departments could no longer ignore their responsibilities to Aboriginal communities by referring all matters to the AAPA. The effect of this change in policy on Aboriginal Communities is still to be assessed. See McCarrey, L. Provision of Servicer to Aboriginal People in Western Australia: The Issues, An Action Plan and Proposed Legislation, A Paper for Discussion, (Aboriginal Affairs Legislative Reference Group, AGES, 1996).
[4]	A manual count of communities shown on the Western Australian Map Pack produced by the Aboriginal Affairs Department in 1995. The majority of these communities are located in remote parts of the state and about one hundred and fifty are in the Kimberley.
[5]	Wallace, K. and Raymond, M. Local Government Services to Aboriginal Communities, (Western Australian Municipal Association, Perth, 1995), p 3.
[6]	The State has not yet entered into any such agreement with the Commonwealth. Further, it has only ever provided resources to two communities as demonstration projects. See Brian English and the Aboriginal Affairs Department (WA), Initial Evaluation of the Demonstration Project (Aboriginal Communities Strategic Investment Program), (WA Government, Perth, 1998).
[7]	Mabo v Queensland (No 2) (1992) 175 CLR 1 [Mabo (No 2)].
[8]	The land is owned by the Crown but is held in trust for Aboriginal people. Bonner, N. et al, Report of the Review of the Aboriginal Lands Trust, (Government of Western Australia, Aboriginal Affairs Department, Perth, 1996).
[9]	The provision of secure title included excisions of living areas from pastoral leases, the creation of reserves from vacant Crown land and negotiations with Churches to for the transfer of mission lands to the occupying communities: Aboriginal Affairs Planning Authority, Annual Report 1990/91, p 6.
[10]	If the recommendations of the late Neville Bonner's recent review of the ALT are implemented, it will transfer ownership of its estate to Aboriginal people over a six year period between 1996-2002.
[11]	op cit, above n 13.
[12]	This is policy initiative of the State in response to the Outstations Movement.
[13]	op cit, above n 11.
[14]	See Mabo (No.2) per Brennan J at 59-60.
[15]	For a discussion of the two conceptual bases for native title recognised by Australian Courts, see Strelein, L. 'Fiction over Fact: Extinguishing Native Title in the Larrakia Case' 4(18) Indigenous Law Bulletin (1999): 18.
[16]	ATSIC has stated this concern in the policy document Community Housing and infrastructure Program -Policy 1997-2000, (ATSIC, Canberra, 1997), p 18.
[17]	Hansard, Legislative Council Western Australia, 24 April 1979, p 603.
[18]	op cit, above n 13.
[19]	Aboriginal Affairs Department Annual Report 1997, p 11.
[20]	Kamien, T. Implementing Self-Government-An Examination of the Aboriginal Communities Act (Western Australia), (E Law, Murdoch University School of Law, Canningvale, Western Australia, 1995).