Irishman wins 25-year fight to restore lands to Aboriginal owners

A people's deep-seated connection to their native land and the impact of colonisation is something Irish people readily understand. That may be why Aboriginal people looked to a Dublin-born lawyer to spearhead their legal battle to get native title rights over their lands, once the centre of a 19th-century gold rush, in midwest Australia.

Franklin Gaffney, long settled in Perth, is a lawyer specialising in cross-cultural negotiations and land settlements. A 25-year court saga culminated earlier this month in a landmark ruling by the Federal Court of Australia granting native title rights to the Yugunga-Nya people over lands about a quarter the size of Ireland, including a mountain of spiritual significance and gold and copper mines. Along the way, Gaffney has learned a lot about reconciliation processes and he sees many similarities with the Irish reconciliation process.

Gaffney grew up in Cabinteely, Dublin, and went to school in Coláiste Eoin in Booterstown. Emigration was common in his extended family and he has relatives around the world. In the late 1980s, primarily for economic reasons, his parents left Dublin with their three children and emigrated to Australia. Gaffney went to university there and in London, where he lived for five years, before returning and settling in Freemantle, Perth. His parents and siblings also live in Perth.

His firm, PBC Legal & Consultancy Services, operates in western Australia, East Timor and British Columbia. Much of its work deals with land law and native title rights.

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The Yugunga-Nya claim concerned about 380 people, many scattered across Australia, but with about 120 still living on the land, many of whom are very disadvantaged and living in poor circumstances.

The claim area included two historic mining towns and Mount Yugaghong, a significant spiritual site for the Yugunga-Nya people. In granting the highest form of native title rights, the judge noted that elders of the Yugunga-Nya had explained the mountain is “part of us” and looks, from the air, “like an emu lying on its nest”.

The elders outlined: “Dingoes attacked the emu while on her nest and, when the emu died, the dingoes pulled the fat off it. Emu fat is yellow. The dogs then vomited up the emu fat and, when they did, they created gold.”

The court noted anthropological evidence supporting the native rights claim, including it could be inferred there was a “catastrophic” decline in the Aboriginal population in the western desert area as a result of the substantial non-Aboriginal population influx during the gold rush and mining boom in the late 19th century. Before that, a system of law and custom at regional societal level was maintained and transmitted from generation to generation, probably before the declaration of sovereignty in western Australia in 1829.

The evidence was that the rights and interests in land and waters distributed throughout the community of Yugunga-Nya native title holders are derived from this body of traditional laws and customs, the court heard.

According to Gaffney, the outcome was a “huge success” after years of difficult litigation against many opposition parties, including farmers, mining companies and the government. All sides had to agree, but the time was right for a resolution and the government had not impeded it, he says.

The outcome means the Yugunga-Nya can, among other things, access the lands, have their law operate on Mount Yugaghong and secure royalties from mining companies.

“Land and culture are universal issues; I doubt that any nation or tribe wants to forego its lands or its culture,” Gaffney says. “Native title cases raise many issues stemming from colonisation. The objective is to try and find consensus and a process of reconciliation. The land issue raises emotional issues which society need to respect and accommodate.”

About 120 members of the Yugunga-Nya attended the historic court hearing in Perth, some of them driving three or four days to get there.

It was “emotional” to watch people crowding into the largest court available, Gaffney says. A TV screen was provided in the hallway so that those who could not get in could watch the judgment being delivered. “It was a great feeling to know so many people valued the outcome.”

Robyn Kelly, chairwoman of the Yugunga-Nya Native Title Aboriginal Corporation, said afterwards that her people can now "finally move forward, not focusing on the past trauma and hurt but united as one, working together on a bigger, better and brighter future for all our Yugunga-Nya people".

Gaffney stresses the importance of the recognition of native title for the Yugunga-Nya people: “As a distinct group of people, the Federal Court of Australia found that they survived colonisation with their laws, culture, governance structures and connection to country intact. The recognition of native title is just one aspect of the reconciliation model in Australia.

“For most indigenous people, because of colonisation, their native title rights were extinguished under Australian law. In the absence of those legal rights, indigenous people ask ‘what are we reconciling?’ This is a difficult conversation that Australia needs to have.”

The reconciliation model in Australia can learn a lot from Irish experiences, he believes.

“Looking from afar, it does appear that institutional power structures are changing in Ireland following the Belfast Agreement in 1998, and while there will always be setbacks – this is inevitable – the constructive conversations endure. Having these conversations, such as how to accommodate different cultures, perspectives and values into existing or new structures, is the key to effective reconciliation.

“The conversations need to be open, and the temptation to create a positive narrative when it doesn’t exist is extremely dangerous. In the eyes of many indigenous people in Australia, the rhetoric around reconciliation clashes with their reality and this breeds cynicism and lack of trust.”

People, he maintains, “need to own the reconciliation process and they shouldn’t allow politicians and the institutions to dictate what reconciliation looks like”.

“The Yugunga-Nya people took ownership of their reconciliation process, and my small contribution was to advise them how to navigate the legal process and institutional structures to negotiate their desired outcome.”