This article was first published in Overland Magazine 202 in Autumn 2011
It was late November 2010, one of those red-hot days that only the Western Desert can turn on. Over six hundred people travelled for days from far and wide to bury young Jampijinpa at the small town of Nyirripi, a four-and-a-half hour dusty drive west from Alice Springs on rough dirt roads.
They gathered at the modest prefabricated shed that is the local church and joined a queue that snaked out across the shade in the churchyard for six hours and more, lining up to fall weeping onto the coffin. All through the service speeches and eulogies and songs echoed from the small public address system, drowned out, now and then, by the wailing of family that rose and fell like the wind that pushed a hot dust around.
Beside the church, the open grave waited next to eighty-nine other neatly arranged graves – each with its white wooden cross stark against the red dirt. In the distance, Karrku – a large hill and the home of a sacred ochre mine – loomed over us all.
I didn’t know young Jampijinpa, though I’m sure I would have seen him at Yuendumu, either on the street or on the local paddock of dust and rocks that passes for a footy oval. But I knew plenty of his family.
One uncle drove the local council rubbish truck. We’d have a yarn and the occasional cup of tea while leaning on an empty wheelie bin. Another uncle would pull me up and ask for advice on various legal issues he was having. Or invite me out to his outstation at his homelands far to the west of Yuendumu. Or just stop to talk about birds.
Another of the dead man’s uncles has been a friend for almost thirty years. He looked after me for a while when I had a bad motor vehicle accident outside of the small town of Katherine that resulted in the amputation of half of my right leg. He suffered a similar fate – amputation, not a vehicle accident – just a few years ago. We’d make jokes about not being able to front a team for a three-legged race.
And one of the dead boy’s grandmothers is a famous artist that I worked with at the arts centre at Yuendumu.
By all accounts, Jampijinpa was a wholly remarkable young man, a mentor and worker at the Mt Theo substance abuse and youth development centre, who left behind four young children. He was also a champion player for the Yuendumu Magpies and, in this footy-mad part of the country, was most famous for being voted Best on Ground at a warm-up game at the MCG in 2009, an effort that won him a signed number 5 guernsey from the Collingwood football club.
Jampijinpa died from wounds received in a fight on the night of 2 September 2010 at one of the town camps that litter Alice Springs. The police reported that three men had been stabbed in a disturbance involving up to thirty people. Jampijinpa died eight days later, and charges, including murder, were laid against several men.
In mid September, police reported a large disturbance at Yuendumu; apparently Jampijinpa’s relatives were seeking revenge for his wrongful death. According to media reports – and what locals told me – a number of those involved in these incidents were drunk. Five cars were burned and at least five people injured.
Local media picked up police reports that reinforcements, including the local Territory Response Section – aka the riot squad – had been sent to Yuendumu and turned what had been for the police ‘serious disturbances’ into front-page full-blown ‘riots’. But the impressions recorded by long-term Yuendumu resident Frank Jungarrayi Baarda were much less dramatic:
By 6 pm when everything had quietened down, the ‘disturbances’ had metamorphosed on television into full-blown riots. Pictures of smoke palls and large crowds appeared ‘exclusive’ to Channel 9 TV. At first I thought they were photos from Baghdad or Kabul, then I noticed it was from that notoriously dangerous place: Yuendumu … To define what happened yesterday in Yuendumu as a ‘riot’ is simplistic and wrong. It was targeted and specific. Everyone knew who the ‘gang of roaming armed men’ were and whence they’d roam.
Over the next few days, police made further arrests: some charged and bailed to appear, others remanded in custody. But the tensions soon flared up again. Within a few days, a hundred or so members of a family on one side of the dispute left Yuendumu – firstly travelling 300 kilometres to Alice Springs and then a further 1500 kilometres to Adelaide.
That mass evacuation had all manner of repercussions. For a while politicians engaged in an unseemly spat that appeared as much about who spoke for and ‘owned’ the Yuendumu refugees than about resolution of the dispute.
By late September a separate thread in the media analysis had emerged, one that fundamentally skewed the media’s treatment of the Yuendumu refugees and prompted an ill-informed and disingenuous debate about the nature and application of traditional customary law in the NT.
The editorial in The Australian of 30 September 2010 set the tone with its title: ‘When tribal punishment is just an excuse for crime’. The piece betrayed a profound ignorance of the role of traditional law in contemporary Aboriginal communities in the NT, particularly from a paper that proclaims to be the ‘Heart of the Nation’. The editorial pontificated:
It is true that there are remnants of customary law in some indigenous communities, that there are old men who still understand the rules and their application. For a long time, these elders were the custodians of the culture, highly skilled practitioners of an ancient tribal system of justice. … But payback is now more often than not a distorted version of tribal justice, an excuse for random and destructive violence. And worse …
The Yuendumu incident is a reminder of the problems generated when indigenous customs are invoked to disguise illegal behaviour or to undermine the rights of others. While cultural and social context should always inform the work of our courts and police forces, customary law can have no place in our legal system.
That editorial – while wrongheaded – begs the question: ‘What is the true place of customary law in the lives of Aboriginal people in the NT?’
In the mid 1980s, the Australian Law Reform Commission (ALRC) conducted an extensive review of the role and potential of traditional law, focusing particularly on the interactions between ‘Western’ and Australian Indigenous systems of law. One area given close attention was the relationships between Aboriginal customary laws and (Western) notions of punishment. The ALRC report quotes anthropologist Dr John Sturmer’s assessment of the gulf between local realities and the assumptions of the ‘general’, that is Western, law:
I am struck by the extent to which western cultural blinkers are imposing a certain view on the nature of law and order in Aboriginal settlements … Discussing Aboriginal customary law in the context of the general criminal law deflects attention from the notion of how disputes arise in Aboriginal societies, the issues and interests which underlie them, and the ways in which they are resolved.
Contradicting the persistent myth that customary law punishment consists solely of spearing or similarly severe corporal punishment, the ALRC report notes that traditional penalties can take a wide variety of forms across a broad spectrum, ranging from death (whether directly or indirectly inflicted by ‘sorcery’), spearing or other modes of corporal punishment, and individual or collective ‘duelling’ to compensation and exclusion from a community or participation in ceremonial activities.
And, notwithstanding the view that traditional law is the purview solely of The Australian’s ‘old men’, Aboriginal customary law in the NT, as in many parts of Queensland and Western and South Australia, is a part of a very different but nonetheless widely accepted local legal fabric.
This is apparent from the most basic research into the topic. Two examples will suffice.
The NT Office of the Director of Public Prosecutions issues a number of guidelines that regulate and inform its decision-making. Guideline No. 20 includes the following:
Aboriginal customary law is an everyday part of the lives of Indigenous people in the Northern Territory. It is an important source of the obligations and rights and is the outcome of many historical, social and cultural influences. It is not a code and may vary from one community to another … Aboriginal men and women … may have competing views regarding what should prevail in those particular circumstances.
In 2003, the Northern Territory attorney-general established a Committee of Inquiry into Aboriginal Customary Law. In its report, the committee noted the centrality of customary law for most Aboriginal people in the NT and echoed the observations of the Director of Public Prosecution’s guidelines:
Aboriginal customary law is a fact of life for most Aboriginal people in the Northern Territory, not just for those in Aboriginal communities. This is because it defines a person’s rights and responsibilities, it defines who a person is, and it defines that person’s relationships to everyone else in the world.
There is no shortage of similar expressions of the ubiquity and validity of Aboriginal customary law in the NT. But in the last few months of 2010, all acceptance and understanding of the importance of Aboriginal customary law in the NT – particularly by the media – disappeared.
The politicians and police were in a double bind. In the recent past, it was not uncommon for local officers to turn a blind eye to the meting out of traditional sanctions. In a story broadcast on the local NT edition of the ABC’s Stateline program on 1 October 2010, Anna Henderson reported that:
In an example of tribal punishment, an anthropologist told Stateline he witnessed a man being stabbed during the annual Yuendumu sports day in a community sanctioned and organised event. The man was stabbed several times in his leg as family members held on to him and police were told not to interfere.
That in itself is uncontroversial – out of sight and out of mind. But it is different when the eyes of the media are focused on a small town like Yuendumu in the heat of a national controversy. Henderson also spoke to the local police sergeant and the NT Attorney-General:
Acting Sergeant Sean Gill: ‘The police policy is very clear on this and we do not tolerate any form of payback and we can’t condone it.’
Attorney-General Delia Lawrie: ‘Look, there is no place at all for violence. So, our government has been very clear on the issue of payback if it involves violence – the answer is no. There is no place for perpetrating violence.’
The practice and recognition of customary law in the Northern Territory and beyond has been under attack from governments and the media for years. Claire Martin, the NT’s first Labor chief minister, took aim at traditional marriage practices in 2003. Then, in 2007, as part of the NT Intervention, Indigenous affairs minister Mal Brough introduced legislation that struck at the heart of the relationship between judicial independence, the limited acceptance of some aspects of Aboriginal law in sentencing considerations, and the practice of customary law in general across the board in the NT.
Those changes were, according to the second reading speech upon the introduction of the Northern Territory National Emergency Response Bill 2007 into parliament, designed to ensure that:
no customary law or cultural practice excuses, justifies, authorises, requires, or lessens the seriousness of violence or sexual abuse … This bill … will also apply in relation to bail and sentencing discretion in the Northern Territory.
Yet the Little Children Are Sacred report by Rex Wild QC and Patricia Anderson, released earlier that year, had busted the myth – propagated by Brough and his handmaidens in the media – of a causal relationship between Aboriginal law and child sexual abuse in the NT. The inquiry was unable to find any case where Aboriginal law has been used and accepted as a defence for an offence of violence against a woman or a child.
Indeed, a Northern Territory judge who in 2009 considered the effect of the changes to the Emergency Response Act 2007 noted that: ‘the precise mischief that [the section] is intended to remedy is unclear’. He went on to argue that because the legislation precluded consideration of a range of previously acceptable and relevant issues, it ‘distorts [the] well established sentencing principle of proportionality, and may result in … disproportionate sentences’.
A case heard from early January 2011 highlighted the injustice from an unforeseen effect of the legislation. That case – Aboriginal Areas Protection Authority v S & R Building & Construction Pty Ltd – concerned an appeal by the authority against the decision of an NT magistrate to record no conviction and a $500 fine against a company that had entered a guilty plea to carrying out unauthorised work on a sacred site: the construction of a pit toilet at the remote Gulf community of Numbulwar.
Following a finding that, because of the Intervention legislation, evidence of the detrimental effect of the site’s desecration upon its custodians and the community could not be taken into consideration, Northern Land Council Chief Executive Kim Hill spoke of the hurt and disappointment felt by the site’s custodians and traditional owners:
The Intervention was supposed to improve the lives of Aboriginal people living in the Northern Territory. If the desecration had occurred in relation to a Greek Orthodox Church, any Territorian or Australian Court could receive and properly consider evidence about the effect of the desecration on the Greek community … but no such consideration can be given to the level of cultural harm inflicted on Aboriginal people.
And Kim Hill isn’t alone in making the link between the manifest injustices flowing from the Intervention and the various crises in remote Northern Territory Aboriginal townships.
One reason why I attended the funeral at Nyirripi last November was to see if people would talk to me about how they felt. I spoke to two of the uncles of the young man who was being buried that day.
I asked Tommy Jangala Watson – an uncle of the deceased – about the use of the term ‘payback’, what traditional law means for him and his thoughts on the Intervention:
Payback is Kardia’s [whitefella’s] name – we are looking at the mala-mala. That is the Warlpiri traditional name for Aboriginal punishment. When you say payback – you know it is a bit scary. Mala-mala is the right name for that business, you know. That is what we are looking at.
The Intervention is getting on top of us Aboriginal people. It has taken our law, we can’t use that law, enforce that law. The Intervention has been really rough. The Intervention is racist. It is not for Yapa [Aboriginal] people – it is for Kardia people – the Intervention is racist. The Intervention is racist, yeah.
It was a theme echoed by Tommy’s brother Billy Jangala Watson:
Our mala-mala has been with us all the time here in our communities, but this a new one, they keep on changing. They keep on changing that new law. These old people don’t understand this. That Kardia law should be working side-by-side with our Yapa law and our culture and everything, but they are taking it away.
They should come and listen to Yapa people, to make that Intervention really strong and to work properly they have got to listen to Yapa. But that Intervention, they took our culture, that one, they weaken our culture and it made it worse. Everybody’s gone wild because of the Intervention – now there is no law.
A few weeks later I was back at Yuendumu to cover the bush court hearings and caught up with Bruno Wilson, a young Warlpiri man who had just returned from his first year of study of law at the University of New South Wales.
I asked how he felt when he heard politicians, magistrates and the media say that Aboriginal law no longer had a place in his community. Bruno told me:
I just feel disgusted. I feel really angry about it. It is like going to the parliament and just chucking their Constitution into the rubbish bin. Our law is really strong. We had this law before … for hundreds and thousands of years before Kardia came to this country … [the Intervention] has been really bad. They can enter people’s houses without anything. They just make people really angry and pissed off. I mean it is not only at Yuendumu. A lot of people at Ampilatwatcha, at Lajamanu: everywhere people are really upset.
At the end of a long hot day, 600 or so mourners sit in the red dust of the Nyirripi cemetery. Above them hovers a murmur of wails and tears that has a physical force. As Jampijinpa is lowered into the ground, I can hear a mass intake of breath, followed by screams from his family next to the grave. Children cry, are hushed, and, as the first handfuls of dirt thud against his coffin, people rise and shuffle forward into another queue to pay their last respects.
There is no doubt that customary law still has a place out here. For Tommy Jangala Watson, his law – mala-mala – is not so much about punishment or retribution as it is about restoring community harmony.
Mala-mala is only for one day, not for years and years, you know, we don’t carry on for years. It is only for a short time. We can be free after that, after mala-mala we can all be one family again, everybody can be happy. We did it, that is it. They tell that fella to sit down as a family again.