Dialogue and Indigenous Policy in

Darryl Cronin

A thesis in fulfilment of the Requirements for the degree of Doctor of Philosophy

Social Policy Research Centre Faculty of Arts & Social Sciences

September 2015

ABSTRACT My thesis examines whether dialogue is useful for negotiating Indigenous rights and solving intercultural conflict over Indigenous claims for recognition within Australia. As a social and political practice, dialogue has been put forward as a method for identifying and solving difficult problems and for promoting processes of understanding and accommodation. Dialogue in a genuine form has never been attempted with Indigenous people in Australia. Australian constitutionalism is unable to resolve Indigenous claims for recognition because there is no practice of dialogue in Indigenous policy. A key barrier in that regard is the underlying colonial assumptions about Indigenous people and their cultures which have accumulated in various ways over the course of history.

I examine where these assumptions about Indigenous people originate and demonstrate how they have become barriers to dialogue between Indigenous people and governments. I investigate historical and contemporary episodes where Indigenous people have challenged those assumptions through their claims for recognition. Indigenous people have attempted to engage in dialogue with governments over their claims for recognition but these attempts have largely been rejected on the basis of those assumptions.

There is potential for dialogue in Australia however genuine dialogue between Indigenous people and the Australian state is impossible under a colonial relationship. A genuine dialogue must first repudiate colonial and contemporary assumptions and attitudes about Indigenous people. It must also deconstruct the existing colonial relationship between Indigenous people and government.

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TABLE OF CONTENTS

ORIGINALITY STATEMENT ...... i CULTURAL WARNING ...... i COPYRIGHT STATEMENT...... ii AUTHENTICITY STATEMENT ...... ii ABSTRACT ...... iii ACKNOWLEDGEMENTS ...... x ABBREVIATIONS ...... xi CHAPTER 1: INTRODUCTION ...... 1 The background context ...... 2 The term and scope of the topic ...... 7 The research proposal ...... 12 Research aims, methodology and structure ...... 18 CHAPTER 2: DIALOGUE AND INTERCULTURAL DIALOGUE...... 32 Introduction ...... 32 What is dialogue?...... 34 Dialogue distinguished ...... 34 A practical theory of dialogue ...... 36 Group dialogue to societal dialogue ...... 39 Intercultural Dialogue ...... 43 Argument culture and societal dialogue in Australia...... 45 Wicked problems and wicked relationships ...... 51 Post-colonial dialogue in Australia ...... 55 Dialogue and struggles over recognition ...... 57 Constitutionalism and recognition ...... 59 A dialogue for change ...... 64 Negotiating new relationships ...... 68 Dialogue in Australia ...... 70 Conclusion ...... 75 CHAPTER 3: THE BASIS OF THE INDIGENOUS AND NON-INDIGENOUS RELATIONSHIP ...... 77 Introduction ...... 77 The beginnings of the relationship ...... 78 Cultural blind spots ...... 78 iv

Assumptions and conjecture ...... 81 The intellectual underpinnings ...... 83 Savages and barbarians ...... 84 Civilisation, property rights and sovereignty ...... 86 Territorial acquisition and Indigenous people ...... 88 Discovery and occupation of territory ...... 89 Terra nullius and Australian law ...... 93 Terra nullius discourse and the common law ...... 96 The barbarian theory as Australian law ...... 98 Still considered barbarians ...... 111 Conclusion ...... 112 CHAPTER 4: PROTECTION AND MANAGEMENT ...... 115 Introduction ...... 115 Early British policy ...... 115 Protection ...... 116 Aboriginal protection or destruction ...... 119 Corranderrk 1863-1948 ...... 122 aspirations ...... 123 Paternalistic and authoritarian administration...... 125 New Aboriginal policy ...... 130 The demise of ...... 132 Coranderrk: discussion and analysis ...... 134 The assumptions ...... 134 Challenging hegemony ...... 135 Relationships of respect ...... 136 Level and type of dialogue ...... 138 Outcomes of the encounters ...... 139 Lessons and trends ...... 140 Conclusion ...... 142 CHAPTER 5: CIVIL RIGHTS AND CITIZENSHIP ...... 143 Introduction ...... 143 State governments and Aboriginal citizenship ...... 144 The Commonwealth and citizenship ...... 145 The disappearance of Aboriginal people ...... 147 v

States and ultimate absorption ...... 148 Dispossession and control in New South Wales ...... 151 The Day of Mourning 1938 ...... 153 Australia Day celebrations 1938 ...... 154 The Day of Mourning conference ...... 156 The claim for citizenship and other rights ...... 158 Response to the manifesto ...... 160 A national Aboriginal policy ...... 162 The Day of Mourning: discussion and analysis ...... 163 The assumptions ...... 163 Challenging hegemony ...... 164 Relationships of respect ...... 166 Level and type of dialogue ...... 167 Outcomes of encounters ...... 169 Lessons and trends ...... 170 Conclusion ...... 171 CHAPTER 6: ASSIMILATION AND PATERNALISM ...... 173 Introduction ...... 173 The beginnings of assimilation ...... 173 Moving to a policy of assimilation ...... 176 Assimilation, national responsibility and citizenship ...... 177 Assimilation, paternalism and mining ...... 181 The had no say ...... 182 Strength in traditional values ...... 183 Aboriginal rights and assimilation ...... 184 The Yolngu Bark Petition ...... 186 The Yolngu voice ...... 187 Denying the Yolngu voice ...... 188 The select committee ...... 189 No word from anyone ...... 191 Consulting Yolngu was not considered necessary ...... 192 Yolngu Bark Petition: discussion and analysis ...... 193 The assumptions ...... 193 Challenging hegemony ...... 194 vi

Relationships of respect ...... 195 Level and type of dialogue ...... 197 Outcome of encounters ...... 197 Lessons and trends ...... 198 Conclusion ...... 199 CHAPTER 7: ASSIMILATION AND LAND RIGHTS ...... 200 Introduction ...... 200 The Policy Background ...... 200 The basis of a change in direction ...... 201 The struggle over Aboriginal policy...... 203 Government attitudes to land rights ...... 204 Developing policy on Aboriginal land rights ...... 205 McMahon’s Aboriginal policy ...... 206 The Tent Embassy Protest...... 208 A brilliant, brave idea ...... 209 The Embassy demands ...... 210 visits ...... 211 The debate in Parliament ...... 212 Threats and bribes to move the Embassy ...... 214 Police move on Embassy ...... 215 The Government criticised ...... 216 Mass demonstration ...... 217 The activists seek negotiation ...... 218 Coombs recommends negotiation ...... 219 The Government contemptuous ...... 220 A day of symbolic non-violent action ...... 221 They couldn’t hear us ...... 222 The National Conference ...... 223 The Aboriginal Embassy: Discussion and Analysis ...... 225 The assumptions ...... 225 Challenging hegemony ...... 227 Relationships of respect ...... 229 Level and type of dialogue ...... 230 Outcome of encounters ...... 231 vii

Lessons and trends ...... 232 A Turning Point ...... 233 Conclusion ...... 235 CHAPTER 8: SELF-DETERMINATION AND INDIGENOUS ASPIRATIONS ...... 237 Introduction ...... 237 Aboriginal representation - the NACC and NAC ...... 238 Attitudes of assimilation ...... 239 A debating society ...... 241 The treaty idea ...... 242 The Makarrata ...... 244 Government not committed ...... 245 Concerns about the NAC ...... 246 The senate standing committee ...... 248 National Land Rights ...... 249 Government paternalism ...... 251 The land rights model ...... 253 Aboriginal boycott ...... 254 Anti-land rights campaign in Western Australia ...... 255 A shameful back down ...... 256 Reconciliation and Self-determination ...... 258 Conclusion ...... 262 CHAPTER 9: RECONCILIATION, MABO AND NATIVE TITLE ...... 266 Introduction ...... 266 Reconciliation and recognising native title ...... 267 The anti-Mabo debate ...... 267 Federal response to Mabo ...... 269 The Peace Plan ...... 270 Concern over Government position ...... 272 The Government’s principles ...... 273 A minimalist approach ...... 275 The Eva Valley Statement ...... 277 The proposed legislation ...... 279 Validation of Titles ...... 281 Support from Greens and Democrats ...... 283 viii

Black Friday and validating titles...... 285 The Cabinet decision ...... 287 A modicum of justice ...... 290 The Senate Process ...... 291 Reconciliation and recognising native title: Discussion and Analysis ...... 294 The assumptions ...... 294 Challenging hegemony ...... 296 Relationships of respect ...... 298 Level and type of dialogue ...... 300 Outcome of encounters ...... 302 Lessons and trends ...... 303 Conclusion ...... 305 CHAPTER 10: DIALOGUE, LIMITATIONS AND THE FUTURE ...... 306 Introduction ...... 306 Dialogue and Indigenous people ...... 306 The limits of dialogue in Australia ...... 312 Indigenous attempts at dialogue ...... 313 Limitations of dialogue...... 322 What should be addressed? ...... 329 Lessons of the Study ...... 331 Conclusion ...... 333 BIBLIOGRAPHY ...... 335 APPENDICES ...... 372 Appendix 1: Conditions for Dialogue with Indigenous People in Australia ...... 372 Appendix 2: Lessons from the case studies ...... 374

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ACKNOWLEDGEMENTS Firstly, thanks and appreciation to my supervisors, Professor Paul Patton (School of Humanities and Languages) and Dr Kyllie Cripps (Indigenous Law Centre, Faculty of Law) for their dedicated commitment, guidance and encouragement. They were generous with their time.

To, Patrick Dodson, thank you for the inspiration you gave me to write about dialogue and its relevance to the situation of Indigenous people in Australian.

To, Professor Martin Nakata, Director of the Nura Gili Centre for Indigenous Programs, University of New South Wales, thank you for the guidance, advice and other forms of support. Thanks also to Dr Reuben Bolt, Deputy Director and Nura Gili for providing study space, administration support and employment.

To, the Centre for Primary Health Care and Equity at the University of New South Wales, thank you for offering sanctuary and a place to study after some trying times early in my candidature. Thanks also to Dr Jane Lloyd of the Centre for organising the sanctuary and supporting me.

To, Dr Trish Hill (Social Policy Research Centre) who as Postgraduate Coordinator supported and facilitated my engagement with the post graduate research system at the University of New South Wales. Thank you. Also thanks to the Social Policy Research Centre for providing scholarship top-up.

To, Associate Professor Lisa Ford (School of Humanities and Languages), University of New South Wales who read a number of my draft chapters providing important and critical comments. Thank you.

To, the University of New South Wales thank you for providing a University Postgraduate Award. Thanks also to the Faculty of Arts and Social Science for providing a one-off short term scholarship to bridge the gap prior to receiving a scholarship from the Australian Government.

To, the Australian Government, thank you for the 12 month Indigenous staff scholarship which gave me the extra time I needed to complete research, writing and finalisation of the thesis.

To, Professor Juanita Sherwood, Academic Director of the National Centre for Cultural Competence at University, thank you for allowing me time off work to finalise the thesis for submission.

Finally, a big thank you to my wife (Julie Darnell) and my children (Jas, Daly, Mali and Tully) who put up with me, provided support and let me go on my PhD journey.

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ABBREVIATIONS AAPA: Australian Aboriginal Progressive Association

ABC: Australian Broadcasting Company

ACF: Australian Conservation Foundation

ACOSS: Australian Council of Social Service

ACTU: Australian Council of Trade Unions

AIATSIS: Australian Institute of Aboriginal and Islander Studies

ALP:

AMIC: Australian Mining Industry Council

AMEC: Association of Mining and Exploration Companies

ANU: Australian National University

APG: Aboriginal Provisional Government

ATSIC: Aboriginal and Torres Islander Commission

CAA: Council for Aboriginal Affairs

COAG: Council of Australian Governments

DAA: Department of Aboriginal Affairs

FCAATSI: Federal Council for the Advancement of Aboriginal and

KLC: Kimberley

Mabo: Mabo and Others v The State of (1992) 175 CLR 1

MLA: Member of the Legislative Assembly

NAC: National Aboriginal Conference

NACC: National Aboriginal Consultative Committee

NFF: National Farmers Federation

NLC:

NT:

NSW: New South Wales

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QLD: Queensland

RDA: Racial Discrimination Act 1975 (Commonwealth)

RCIADIC: Royal Commission into Aboriginal Deaths in Custody

SA:

SBS: Special Broadcasting Service

WA: Western Australia

Wik: v Queensland (1996) 187 CLR 1.

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CHAPTER 1: INTRODUCTION As an Aboriginal person who has been involved in the struggle for recognition of Indigenous rights for over 25 years I have gained insights into how Indigenous claims for recognition are received by the Australian state and how government policies have impacted on Indigenous people. Indigenous claims for recognition in Australia have encompassed demands for land and recognition of cultural and political distinctiveness as well as demands for equality and civil rights. My experience with the political process and the impact of government policies on Indigenous people has led me to think about why governments and the Australian population largely respond in negative ways to Indigenous claims for recognition and why government Indigenous policy is predominantly focussed on top down approaches.

I have pondered the inability of the Australian constitutional system to address Indigenous claims for recognition and the reluctance of governments to develop mutual relationships of respect and recognition with Indigenous people. It is difficult to undertake an inter-cultural dialogue in Australia with regards to Indigenous claims for recognition because the system of Australian constitutionalism provides limited options to address those claims. Most government approaches to entering dialogue with Indigenous people have been based on the extinguishment or suppression of Indigenous rights and identities or have tried to resolve issues and claims through assimilationist policies. These approaches have largely failed Indigenous people.

Over the course of history, Indigenous people have encountered significant societal, political and legal opposition in regards to their claims for recognition and this opposition is largely based on certain historical assumptions and beliefs about Indigenous people. These historical assumptions and beliefs have their genesis in European theories about property ownership, civil society and sovereignty and were introduced into the British-Australian colonies through social, political and judicial discourses and practices. Contemporary responses and practices in regards to Indigenous policy continue to be influenced by historical attitudes and practices towards Indigenous people, thwarting Indigenous attempts at dialogue and at producing meaningful social and political change. 1

This thesis is a response to my own despair about Indigenous policy and the response of governments to Indigenous claims for recognition in Australia. The need for a new approach for engaging with Indigenous people and to build what James Tully refers to as a ‘fair and just relationship’ with Indigenous people (Tully, 1998) is all the more apparent given my own personal experience and what I have uncovered in this thesis. I use the theory and practice of dialogue as a prism to examine the history of the relationship between Indigenous people, governments and other Australians to determine whether dialogue is useful in negotiating Indigenous rights and accommodating cultural difference in Australia. Understanding the historical context of the relationship is necessary because although Indigenous people have consistently attempted to engage in dialogue, they have largely been rebuffed. In examining the historical relationship I recount some well-known historical and legal episodes to show how Indigenous people have tried to enter into dialogue with Australians and more specifically with governments and its institutions. Most of these attempts at dialogue have failed.

The background context To put this thesis in context, in 1992 I started work at the (KLC) in Derby, Western Australia. It was an important time in Australian nation building as the federal government had just established the formal reconciliation process and the High Court was on the eve of handing down its Mabo judgement.1 I had previously worked for the Northern Land Council (NLC) in Darwin and had witnessed the Northern Territory Government’s aggressive and negative response to Aboriginal land claims under the Aboriginal Land Rights (Northern Territory) Act 1976. I had also witnessed the historic occasion of the Northern and Central Land Councils presenting the Barunga Statement to Prime Minister at Barunga in the Northern Territory in June 1988 and the Hawke Government’s failed commitment to achieving a treaty with Indigenous people.2 My time with the KLC was particularly significant, however,

1 Mabo and Others v The State of Queensland (No. 2) 175 CLR 1; 107 ALR 1; 66 ALJR 408 2 The Barunga Statement presented to Prime Minister Hawke on the 12 June 1988 calls for recognition of Indigenous self-determination; national land rights; compensation for loss of lands; protection of sacred sites, objects and knowledge; respect for Indigenous identity and culture; a national organisation for Indigenous affairs; support for an international declaration of principles for Indigenous rights, and negotiation of a treaty (Aboriginal Law Bulletin, 1988: 16). 2 because it revealed to me how the Australian system of government responds to Indigenous claims.

In 1992-93 I participated in a number of significant events relating to native title. These events emphasised to me the hopes and frustrations of Indigenous people in dealing with governments. Governments can easily subvert the aspirations of Indigenous people because the relationship between Indigenous people and governments is paternalistic and domineering. It is a relationship in which enduring colonial beliefs have been central to the subordination of Indigenous people. According to Tully there are many phases to a colonial relationship throughout history but the constant throughout these phases is a colonial assumption that Indigenous people are subordinate and subject to the imposed system of government (Tully, 2008: 223-227).

The subordination of Indigenous people by state and federal governments is evident in the way governments both colonial and contemporary have dealt with Indigenous people in Australia. Having no constitutional status, Indigenous people are disadvantaged in policy and law making processes. They are at the mercy of governments, parliaments and industry that have the authority and power to limit Indigenous rights and to discriminate against Indigenous people. The way the Western Australian Government responded to the High Court’s recognition of native title is a key example.

In late June 1992, I was at Wamalu (Cadjebut Springs) on Leopold Downs station, the traditional country of the Bunaba people and a Bunaba owned pastoral property. About 150 Aboriginal people from throughout the Kimberley gathered to discuss the changes which the then Labor Government in Western Australia intended to make to the Aboriginal Heritage Act 1972 and to hear about the High Court’s Mabo judgement. The KLC had called the meeting. Patrick Dodson in his new role as Chairman of the Aboriginal Reconciliation Council was also in attendance. After two days of discussion, the meeting rejected the amendments as discriminatory and a threat to the newly recognised ‘’. The meeting considered the Mabo decision as a turning point and in that regard the Western Australian Government had to give effect to it by

3 commencing formal negotiations with Aboriginal people in the Kimberley region (Kimberley Land Council, 1992).

The Western Australian Labor Government’s proposed amendments to the heritage legislation merely reflected the way governments had always treated Aboriginal people in that state.3 The had just recognised the existence of native title at common law but the Western Australian Government was changing its Aboriginal Heritage legislation to potentially impact upon native title. The irony was not lost on the KLC. In a media release on the 3rd July 1992, the KLC said the Western Australian Government was hypocritical and deserved no respect from Aboriginal people because it was intent on acting contrary to the High Court’s decision and the common law. The KLC later wrote to Carmen Lawrence, the then Labor premier of Western Australia, stating that the lack of response by her government to the High Court decision had not given them any confidence that her government would consider Aboriginal interests. The KLC called for government negotiations to ensure the recognition of native title in Western Australia (Personal communication to Hon. Carmen Lawrence, MLA, 20 July 1992).

The first public response of the Western Australian Labor Government to the Mabo decision was through the Aboriginal Affairs Minister at the time, Judyth Watson, who said it was unlikely the decision would have an immediate impact on Western Australia because it related to the Murray Island people (Pryer & Manchee, 1992: 3). This attitude would change, however, after the government realised that there was a substantial portion of Crown Land in Western Australia that could be subject to native title. When government in Western Australia changed in February 1993, Richard Court the new Liberal Coalition premier set his government on a course of extinguishing native title in Western Australia. Soon after he was elected, the KLC wrote to Premier Court suggesting he give serious consideration to establishing a process to enable negotiations to take place on issues relating to the Mabo decision. The KLC wrote again to the premier in March 1993 setting out a number of issues and expressing their

3 See Commissioner Patrick Dodson’s regional report of inquiry into underlying issues in Western Australia as part of the Royal Commission into Aboriginal Deaths in Custody (Commonwealth of Australia, 1991). Volume 1 & 2 examine in detail the social, cultural, legal and economic matters as they directly and indirectly affected Aboriginal people in Western Australia. 4 concern that no formal discussions had taken place, and requested a meeting with the premier (Personal communication to Hon. Richard Court, MLA, 3 March 1993).

Richard Court made it clear he was going to protect mining and business interests as well as their land titles against the Mabo decision. He said he wanted to talk with Aboriginal groups but was not prepared to deal with representatives of Aboriginal organisations or Aboriginal legal advisers. Court said legislation would be required to protect land and mining titles issued before the Mabo decision. To this end his government was developing a proposal to protect land titles from native title claims (Court: Act on Mabo, 1993; Meertens, 1993: 5). Court confirmed his government would validate existing land titles and to extinguish native title at a KLC meeting I attended in late July 1993 at ‘Blue Hole’ in Purnululu National Park (Kimberley Land Council, 1993).

Not one government at either federal or state level responded positively to Mabo. The focus of the Commonwealth Government was to validate non-Indigenous land titles and extinguish native title. I discuss the attitudes and assumptions that played out in the public debate about the Mabo judgement and the approach of the Commonwealth Government in chapter nine. However of all of the state governments, the Court Government expressed the greatest opposition to native title and the proposed Commonwealth legislation. The Court Government’s response was to eliminate native title through the Land (Titles and Traditional Usage) Act 1993. The Act extinguished all native title remaining in Western Australia with no compensation payable for extinguishment. Native title was replaced with ‘rights of traditional usage’, which would be subordinate to all other grants or interests of whatever kind and could not be enforced against those interests. Traditional usage rights could be extinguished or suspended with payment of compensation, although payment would be inferior and a court could not challenge any advice or recommendation of a minister. Only the relevant Minister could grant title to or interests in land for the purpose of advancing the interest of Aboriginal people (Bartlett, 1995).

Therefore the Aboriginal relationship to land was subordinate to all other property rights and interests protected by the Crown. To add insult to injury after having

5 extinguished native title, the Court Government’s legislation empowered the relevant Minister to grant titles and interests in land to Aboriginal people for their advancement. According to Henry Reynolds the assumption underpinning the Court Government’s legislation was ‘… that Aboriginal society was so backward, so primitive that it was never able to establish rights of possession’, not even in thousand years of occupation of the continent (Reynolds, 1993).

Within a day of the Land (Titles and Traditional Usage) Act 1993 coming into operation, the Wororra and Yawuru people from the Kimberley region challenged the constitutional validity of the Western Australian Act in the High Court on the basis that it was inconsistent with the Commonwealth pursuant to section 109 of the Australian Constitution.4 The Martu people of the eastern Pilbara region also issued a legal challenge. Meanwhile the Western Australian Government challenged the Commonwealth Native Title Act in the High Court on the basis that the Act had no application to Western Australia because native title had been extinguished on settlement of the colony; that the Native Title Act was a law about land management therefore a state responsibility; that it impaired the capacity of the state to govern and hence discriminated against Western Australia; and that it also offended the Racial Discrimination Act by discriminating against non-Indigenous Western Australians (Nettheim, 1995: 5; Aboriginal & Torres Strait Islander Social Justice Commissioner, 1994: 201).

The Western Australian Government had prepared for a ‘glorious victory’ having briefed journalists on six possible outcomes of any High Court decision, only one addressing possible loss (Brown & Duffield, 1995: 6). But the High Court, on the 16 March 1995, unanimously declared the Western Australian legislation invalid because it breached the Racial Discrimination Act 1975 and upheld the Native Title Act 1993 (Nettheim, 1995: 4-7; Aboriginal & Torres Strait Islander Social Justice Commissioner, 1994: 201-210). The Aboriginal groups who challenged the Western Australian legislation were happy that the High Court had thrown out the Western Australian

4 The Land (Titles and Traditional Usage) Act 1993 came into operation on 2 December 1993. 6

Government’s ‘racist’ legislation (Victorious Day in the High Court, June 1995; Stoney, 1995a: 9).

On 17 March 1995, the front-page headlines of the West Australian Newspaper screamed ‘Court’s $4m Mabo Folly’ (Courts $4m Mabo Folly, 1995: 1). The paper devoted about nine pages to what it described as Premier Richard Court’s ‘foolhardy pursuit of an ideological fantasy’ which ‘… has left WA morally isolated, derided, out of pocket and beset by increased confusion and uncertainty about the effects of Aboriginal claims to their traditional lands’ (Court ruling ends foolish adventure, 1995: 14). Premier Court was defiant, saying the government accepted the High Court ruling but ‘… we do not accept the Federal Government’s native title legislation and we will use whatever means we can to politically fight that’. He believed ‘… the state was the loser and it was his responsibility to protect WA’s interests’ (Quekett, 1995: 7).

Peter Yu of the Kimberley Land Council said ‘… the Premier and his government should hang their heads in shame’ because the government had adopted ‘… a highly dishonest and reckless and arrogant position in the way it has treated Aboriginal rights’ in Western Australia. Taking note of the behaviour of the mining industry he said ‘the mining industry has also been quite gutless’ as some mining representatives had obviously been intimidated by the State Government (Stoney, 1995b: 9).

The term and scope of the topic I have always been intrigued by the extraordinary lengths the Western Australian Government went to extinguish native title rights. Their response has led me to consider how the continual denial of Indigenous rights and/or claims for recognition limits the ability of the Australian state and the Australian people to have a positive and mutually beneficial relationship with Indigenous people. There is a deeper underlying issue at play. Patrick Dodson picks up on this point when he refers to the Australian nation as being trapped by its history and paralysed by the failure to imagine any relationship with Aboriginal peoples other than assimilation (Dodson 2009a).

My examination of the question of whether dialogue is useful for negotiating Indigenous rights within the Australian state derives from my experience working in 7

Indigenous affairs and my despair at the ongoing failure of Indigenous policy to produce positive change and recognition for Indigenous people. Progress in recognising Indigenous claims has been slow, beneficial impacts from government policies have been limited, and in many cases historical facts and lessons have been ignored in the policy making process. The low point for me in Indigenous affairs policy was the Commonwealth Government’s intervention into Northern Territory Aboriginal communities in June 2007 (‘the intervention’). According to the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous people, the measures contained in the Government’s emergency response ‘… overtly discriminate against aboriginal peoples, infringe their right of self-determination and stigmatize already stigmatized communities’ (Anaya 2010: 3). The despair I felt as a result of the intervention led me to question what constrains and prohibits the Australian state from having a dialogic and equal relationship with Indigenous people. This thesis therefore focuses on the attitudes of Australians and practices of Australian governments that constrain or prohibit effective dialogue with Indigenous people.

My primary question is whether dialogue is capable of decolonising the discourse, attitudes and practices that define the existing relationship between Indigenous and other Australians in order to develop new post-colonial relationships. I examine how the theory and practice of dialogue might apply to the situation of internal colonisation in Australia and what might be the conditions for a genuine dialogue between Indigenous people and other Australians. In looking at how dialogue might be applicable I examine instances of the Indigenous struggle for recognition in Australia. This involved investigating the historical and contemporary relationship between Indigenous people and Australian governments through a number of historical and contemporary case studies where Indigenous people have attempted to engage in dialogue with Government. A number of trends, lessons and principles are drawn from the case studies and these provide a guide for a cross-cultural framework to assist intercultural dialogue in Australia.

Patrick Dodson raised the idea of a national dialogue between government and for the unfinished business of reconciliation in a speech at La Trobe University in October 2007, where he criticised the ’s vision 8 for Indigenous people and the manner in which it conducted governmental affairs (Dodson 2008). In September 2008, the Global Foundation and the Lingiari Foundation proposed an Australian dialogue by way of a series of strategic conversations across the country to reframe the relationship between Indigenous and other Australians. The proposal was put forward by a number of prominent people including Patrick Dodson, Lieutenant General John Sanderson and Noel Pearson who met on the Murrumbidgee River near Gundagai. However the proposal to create a national framework for a new relationship made little progress.

There is no culture and practice of dialogue in Australia with regards to Indigenous issues. This is because the relationship established by colonial governments with Indigenous people has been one of subjugation and exclusion where Indigenous people have had little or no say about their place in the Australian nation (Brennan, Behrendt, Strelein and Williams 2005: 50-54). Australia is a state established by colonisation where a foreign legal and political system was imposed over Indigenous people without their consent resulting in a continuing legacy of injustice for Indigenous people (Keal, 2003: 172-173; Mulgan, 1998: 179-180; Patton, 2009: 59-60). While some Indigenous rights and claims have been recognised by governments there has never been a comprehensive attempt to dismantle the colonial relationship and renegotiate a fair and just relationship with Indigenous people.

Indigenous people are not recognised as sources of political authority within the Australian constitutional system and, as a result, have no legitimate voice and status in the Australian system of law and politics. While the issue of legitimacy is not the focus of this thesis it intersects in a number of ways with dialogue and the recognition of Indigenous rights. My discussion of dialogue raises issues around not only Indigenous legitimacy but also settler Australian legitimacy because of the way in which Indigenous people were dispossessed and the lack of post-colonial agreement with Indigenous people. Hence the issue of legitimacy arises from the perspective of both Indigenous people and the settler Australian population (Mulgan, 1998; Patton, 2009).

Legitimacy of government relates to how the settler state was founded and its ability to rectify past and ongoing injustices in regards to Indigenous people. The legal

9 legitimacy of the British acquisition of sovereignty over the Australian continent has been questioned because Aboriginal peoples did not consent and because it is unclear whether and when the British Crown acquired sovereignty over the entire continent (Patton, 2009: 60). However the High Court regards this issue as non-justiciable and Australian governments refuse to countenance such arguments about legal illegitimacy. Further, international law currently recognises British-Australian sovereignty over the continent. However the appropriation of land, resources and jurisdiction of Indigenous peoples in Australia without the consent or agreement of Indigenous peoples and the ongoing lack of post-colonial agreement with Indigenous people raises questions about the moral and political legitimacy of the Australian state.

Short argues that the question of legitimacy is not about how Indigenous claims against the state can be dealt with but how the colonisers can legitimately settle and establish their own sovereignty by negotiations with Indigenous peoples on a nation- to-nation basis (Short, 2005: 277). The issue for the Australian nation is about establishing moral and political legitimacy through agreement with Indigenous people. Keal argues that a morally illegitimate state is the inevitable consequence of dispossession and engenders ongoing injustice against Indigenous people. To be regarded as morally legitimate a state must seek reconciliation with its Indigenous peoples to secure their rights and their cultural survival (Keal 2003: 174). This includes the elimination of oppression and domination coupled with Indigenous participation in decision making structures, recognition of group difference by the political system and recognition of cultural and group rights (Keal, 2003: 180-182).

Mulgan raises legitimacy as a political and moral problem for Australia, arguing that legitimising the existing Australian state would entail recognising Indigenous rights, even though their implementation involves recognition of the legitimate rights of all Australian citizens (Mulgan, 1998: 186-188). Recognising Indigenous rights would involve recognition of prior Aboriginal occupation, recognition of the injustice of colonial dispossession, a public apology for past injustices and Indigenous acceptance of the apology and willingness to enter a new relationship (Mulgan 1998: 189-190).

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In discussing the Australian context Patton argues that the achievement of political legitimacy by a post-colonial state depends upon the degree to which it removes injustices and becomes ‘sufficiently just’ (Patton, 2009: 67). Applying John Rawls’s liberal principle of legitimacy, this involves embodying principles of justice, acceptable to reasonable people, within a constitutional framework; a connection between legitimacy and justice where justice is the measure for how post-colonial governments become legitimate; a public endorsed consensus in relation to a particular conception of justice; and, importantly, the idea that the principles of justice that underpin political legitimacy are not set in stone but evolve according to the considered judgement of the people (Patton, 2009: 62-64).

In his discussion of North American Indigenous-settler relations, Tully argues that to legitimise European sovereignty and to afford justice to Indigenous people under conditions of internal colonisation, the consent of Indigenous people is required because the exercise of sovereignty is based on the consent of those affected by it (Tully, 2000: 52). To gain the consent of Indigenous people, the Crown must enter into negotiations with Indigenous peoples as nations with equal status to the Crown. Indigenous people consent on the basis of coexisting Indigenous and Crown sovereignty (Tully, 2000: 53). However, the British-Australian Crown has never acknowledged Indigenous sovereignty.

The question of legitimacy in Australia is linked to issues of justice for Indigenous people. In his Lingiari Memorial Lecture in August 1999, Patrick Dodson (2000) set out what he thought would provide justice for Indigenous people. It includes the right to: • equality and fundamental freedoms and distinct rights as Indigenous peoples • maintenance of distinct characteristics and identities within the nation • political self-determination and to pursue economic, social and cultural development • Indigenous law, customs and traditions, and equality before the national law • traditions and customs and to own and control cultural and intellectual property • spiritual and religious traditions including protection and preservation • language, histories, stories, oral traditions and names for people and places 11

• participate in law and policy-making and decision making including obtaining consent • determine priorities and strategies for economic and social development • special measures to improve economic and social conditions • all forms and levels of public education and training, including Indigenous schools • own and control land, waters and other resources, return of land and resources taken or compensation • self-government and autonomy and the capacity to determine the structure and membership • constitutional recognition to recognise and protect Aboriginal rights in the Australian polity • legislation establishing a framework for the negotiation of agreements with the Aboriginal peoples • ongoing processes to promote public awareness and to draft legislation and framework for negotiation.

But other Australians do not necessarily share the concept of justice as understood by Indigenous people. Governments and the judiciary in Australia continue to adhere to colonial presumptions of exclusive and legitimate British-Australian sovereignty. In that regard legitimacy is regarded as not necessary. Further as I show in this thesis Indigenous claims for recognition have not been accepted or received sympathetically because ongoing injustice is not recognised or fully comprehended. Assumptions about Indigenous people prevent or constrain broader notions of justice. In that regard it may be argued that dialogue is necessary to explore conceptions of justice on which to develop a new relationship between Indigenous and non-Indigenous Australians.

The research proposal In trying to understand whether dialogue is useful in negotiating Indigenous rights, and especially how dialogue has been constrained by the resistance to and denial of Indigenous rights, I am guided by certain principles. The first principle is that history plays a significant role in the way the Australian state responds to Indigenous claims or

12 develops Indigenous policy. The historical approach of colonial and contemporary governments towards Indigenous people has been very influential in constructing the relationship between the Australian state and Indigenous peoples and continues to define that relationship. This relationship is based on key colonial assumptions: that Indigenous people did not have organised societies, did not make use of the land and had no recognisable form of sovereignty (Buchan & Heath, 2006). To examine this history I have looked at five case studies that represent successive stages from 1863 to 1993. These case studies represent various stages of British-Australian colonialism reflecting the relationship between Indigenous people and governments. In examining this relationship I critique settler colonialism which has formed the basis of the relationship and in doing so my critique raises certain impacts that highlight how Governments have tried to exterminate Indigenous culture and difference largely based on colonial assumptions about Indigenous people.

These negative assumptions have denied Indigenous people their right to speak, to be heard and to negotiate a different relationship throughout the course of history. They have also constrained the ability of Australians to genuinely engage in dialogue with Indigenous people thus diminishing prospects for change. In that regard, they have become barriers to dismantling the colonial relationship. For this reason Patrick Dodson argues that we need to question the philosophical underpinnings of the relationship between Aboriginal peoples and the Australian nation and create a new national framework for dialogue to transform the nation (Dodson 2009b). Similarly Bradfield argues that once Eurocentric assumptions of inherent superiority are rejected by the Australian people basic principles will emerge that require a shared society to be based on negotiation and consent (Bradfield, 2005: 69).

The second principle is that the relationship between Indigenous people and the Australian state is an intractable conflict and that dialogue is necessary to solve the ‘tough challenges and wicked problems’ that arise in the relationship. Indeed there has been a revival of interest in ‘dialogue’ as a social and political practice in contemporary life to solve intractable conflicts, tough challenges or wicked problems. Intractable conflicts are characterised as “… recalcitrant, intense, deadlocked and extremely difficult to resolve” (Coleman, 2000: 300). Tough challenges involve actors who have 13 different perspectives and interests, which cannot be solved by experts or authorities or best practice, but only by the actors themselves (Kahane, 2010: 5). Wicked problems occur when there is no agreement about the nature of ‘the problem’ and therefore, ‘the problem’ is defined in different ways and stakeholders compete to solve the problem in their own particular way (Roberts, 2002: 8-10).

The relationship between Indigenous people and the Australian state – and the consequences of this relationship – can be conceptualised as an intractable conflict because it involves tough challenges and wicked problems. It is deep rooted and systemic, has persisted for a long period of time, is intense and has often been violent. There are often irreconcilable views and opposing perspectives about what ‘the problem’ is and how best to solve it. The nature of dispossession of Indigenous people in Australia and its genocidal impact has polarized intellectual and political debate in Australia. The removal of Aboriginal children from their families, referred to as the ‘’ has been at the forefront of this debate.5

The 1997 Bringing Them Home report of the Human Rights and Equal Opportunity Commission (Wilson-Dodson Inquiry) stated that during the period 1910 and 1970 between one in three and one in ten Aboriginal children had been separated by either, force, duress or undue pressure from their mother, family and community. The report recommended various forms of restitution for the separated children including monetary compensation and also apologies from the churches and Governments. The inquiry also concluded that the policies and practices of removal to absorb and assimilate the children into European society amounted to the crime of genocide (Manne, 2001: 5, 35). The Howard Coalition Government refused to officially apologise to the stolen generation on the basis that present generations of Australians are not legally or morally responsible for actions of earlier generations particularly when those actions were sanctioned by laws and were considered in the best interest of the children. Instead the Howard Government only expressed a ‘deep and sincere regret’ about past mistreatment of Aboriginal people (Manne, 2001: 75-76: Barta, 2008: 203).

5 The term “stolen generations” refers to the separation of thousands of Aboriginal children of mixed descent from their mothers and communities. They were forcibly removed by agents of the state or relinquished by Aboriginal mothers who were pressured into doing so by those who thought they knew best (Manne, 2001: 2). 14

The ensuring debate about genocide and dispossession of Indigenous people, known as the ‘Australian ’ saw a concerted intellectual and political campaign against the Bringing Them Home report by right-wing think tanks and magazines, conservative journalists writing for popular daily newspapers and former Aboriginal Affairs administrators and patrol officers who had political influence over the Howard Coalition Government (Manne, 2009, 2001). The campaign was largely conducted to not only prevent Australians from accepting the truths of the stolen generation but to also dissuade any discussion about historical injustice and Aboriginal people (Gunstone, 2004: 5).

Prime Minister John Howard argued that any ‘blemishes’ in Australian history could not alter the overall story of great Australian achievement (Gunstone, 2004: 6). The question of whether these policies and practices amounted to genocide was controversial with the Howard Coalition Government and subsequent Australian Governments who have rejected the view that genocide occurred in Australia. But the Indigenous survivors have been damaged by these policies that were intended first to biologically absorb Indigenous people and later to assimilate Indigenous people into white Australian society (Barta, 2008: 205-209).

Australian constitutionalism and the existing framework of Indigenous policy are unable to adequately address issues of truth and justice or disadvantage and Indigenous claims for recognition because of the colonial political context particularly in the way governments and Australian society relate to Indigenous people. At the national political level there has been a succession of efforts by government to create national political representation for Indigenous people, as well as discussions about constitutional change to recognise Indigenous people and even treaty discussions but these efforts have largely failed resulting in no real change to the Australian system of law and politics. The intractable relationship between the Australian state and Indigenous people underlie many of these failures.

The re-emergence of old assimilation policies and coercive forms of government under the Howard Coalition Government that not only blame Indigenous people for their problems but also dismiss Indigenous engagement and participation in policy making

15 and decision making is another example of intractability. According to Marks this blaming approach encouraged a mentality of characterising Indigenous people as dysfunctional when in fact the focus should be on the chronic and significant under funding of essential services and infrastructure and on whether governments have the right policies and service delivery approaches or have the right attitude, skills and capabilities for tackling Indigenous disadvantage (Marks, 2008: 8, 11-13).

The third principle is that an alternate pathway is required to transform the relationship between Indigenous people and other Australians; and that this pathway can be created through dialogue. Patrick Dodson called for a national dialogue between Indigenous people and the Australian State, because there has never been a ‘dialogue’ about the relationship between the British and succeeding settler generations and the Indigenous peoples (Dodson, 2008: 11-12). Certainly there is debate about the relationship between Indigenous people and Governments but it has largely been a debate to counter the scholarship of Indigenous dispossession, the recognition of Indigenous rights to land and the call for Indigenous self-determination. According to Manne these counter attacks were initially driven by the mining industry in the mid-1980s fearful of national land rights and continued into the 1990s with attacks on the Mabo decision and native title, culminating in the intellectual and political attacks on the scholarship of genocide and Indigenous dispossession after the publication of the Bringing Them Home report (Manne, 2009: 16). I discuss the industry and government responses to land rights and native title in chapters 8 and 9.

Dialogue can contribute to political discussion and deliberation because it is regarded as an approach that transforms the way people relate to each other. It is relevant to resolving intercultural conflict and is useful for colonised peoples in constructing a decolonised relationship with the settler state. Prime Minister Kevin Rudd’s apology to the stolen generations in February 2008 was accepted by Indigenous people because it acknowledged their suffering and history, although it did not offer compensation which diminished the quality and sincerity of the apology (Short, 2012: 299). It also called on non-Indigenous Australians to examine the past treatment of Indigenous people thus opening up a new relational space in which to renegotiate the future of the nation (Moses, 2011: 152-156). 16

However postcolonial critics view the apology as another tool for colonial domination and the domestication of Indigenous difference into Australian society (Moses, 2011: 149-151). Barta argues that the apology buried the history of genocide in Australia to ‘enable the celebratory memory of Australia’s past…’ (Barta, 2008: 210). It was a form of appeasement to the Australian population because the history wars exposed a level of discomfort amongst many Australians about the treatment and dispossession of Indigenous people. According to Barta there is a ‘deeply seated impulse’ in Australian society to not recognise the ‘relationship of genocide’ with Indigenous people since European settlement because the nation is not ready to face historical truths in regards to the foundation of the nation or recognise that dispossession has contributed to the destruction of Indigenous peoples (Barta, 2008: 209-210).

Australians prefer not to dwell on the history of Indigenous dispossession and mistreatment. According to Manne many Australians would prefer to ‘avert their gaze from the history of what happened’ and ‘to think of their country as largely innocent of wrongdoing’ (Manne, 2009:17). To open new possibilities for the future the nation must confronts some truths about the colonisation of Australia in order to move settler Australians out of their comfort zone and thus change attitudes (Leigh, 2002: 140-142). Therefore the type and level of dialogue in Australia must be suited to critiquing colonialism and recognising Indigenous cultural and political difference.

The different types and different levels of dialogue, for example facilitated group dialogue, societal or public dialogue, intercultural dialogue, and post-colonial dialogue have some relevance in this regard. Facilitated group dialogue involves a small group of people who serve as a microcosm of the larger society and who are brought together to generate collective insights and shared commitment and influence society at the macro level. Societal or public dialogue is associated with public engagement by governments when making decisions about important public policy issues. Intercultural dialogue is a political dialogue across different cultures and civilisations in order to achieve mutual understanding and recognition.

Post-colonial dialogues are political dialogues between Indigenous or colonised peoples and settler states to decolonise the colonial relationship and to recognise and

17 accommodate the cultural difference of Indigenous people within the constitutional systems of the state. However for colonised peoples in settler states, dialogue is not just a question of having a discussion about their claims for recognition because these claims seek to rectify injustices of colonialism. There is a range of factors that can constrain or prevent dialogue in situations where Indigenous people live under conditions of internal colonialism.

Research aims, methodology and structure In examining whether dialogue is useful for negotiating Indigenous rights in Australia I have positioned myself as an Indigenous person who has been involved in the Indigenous struggle. In that regard I have certain social, cultural and political experiences that I bring to this study. I use the word ‘struggle’ in the broader sense where Indigenous people have struggled to survive and have sought freedom, better conditions and social justice (Smith, 2012: 199) against the forces of imperialism and colonialism in Australia.6 As a researcher I have used the theory and practice of dialogue to understand the Indigenous struggle and to interpret the relationship of power between Indigenous people and governments in Australia.

Research for Indigenous people is part of a larger project of struggling for social justice, self-determination and deconstructing colonial relationships (Smith, 2012: 198-216). It is within that context that my thesis attempts: (1) to analyse and interpret the colonial and contemporary relationship of Indigenous people and the Australian state, and to identify and understand how colonial assumptions about Indigenous people have determined the relationship; (2) to contextualise through case studies how Indigenous people have challenged these assumptions through dialogue and various forms of protest; (3) to identify different kinds and levels of dialogue and their applicability in Australia; and (4) to identify the conditions necessary for dialogue to genuinely transform the Indigenous and non-Indigenous relationship.

6 In describing European imperialism, the term imperialism is used in at least four different ways: (1) economic expansion; (2) the subjugation of ‘others’; (3) an idea or spirit which characterised Europe’s global activities, and; (4) a discursive field of knowledge (Smith, 2012: 22). Colonialism is the ‘port of imperial outreach’ or colonial outposts that facilitated imperial expansion and this meant securing ad subjugating the Indigenous population (Smith, 2012: 22, 24). 18

In analysing the colonial and contemporary relationship between Indigenous people and governments I chose a research methodology that reflects Indigenous voices and experience and which centres Indigenous concerns and worldviews (Smith, 2012) in order to critique the relationship and its history and to understand the present and the future. I am conscious that some Indigenous people, prominent Cape York leader Noel Pearson for example have questioned conventional Indigenous political thought around colonialism presenting an alternate view in regards to the Indigenous predicament which questions the scholarship of ‘Indigeneity’ (Moses, 2010). I choose not to engage in the debate about whether colonialism is the cause of contemporary Indigenous disadvantage. Instead I have sought to highlight the historical and current power imbalance in the relationship and the ongoing hegemony that dominates the relationship between Indigenous people and governments in order to interpret the relationship. The Indigenous voices and experiences in this thesis tell the story of their struggle against what Wolfe terms the ‘logic of elimination’ of settler colonialism (Wolfe, 2006).

Further I have chosen not to engage directly with the scholarship on genocide and its function as an outcome or an ongoing process of colonisation, although the structure of settler society and its colonisation objectives worked to eliminate Aboriginal people through exterminatory policies (Moses, 2004: 30-3). The case studies in this thesis might be taken to support the view that colonisation had a genocidal impact on Aboriginal people. While the destruction of Aboriginal society and culture was an explicit aim of the British colonizers, and colonisation was lethal for Aboriginal people, according to Moses ‘genocidal intentions’ and policies of extermination were not explicit in the early stages of colonisation but gradually developed over time particularly from the 1820s onwards as Indigenous people resisted the invasion of their land for large-scale pastoralism (Moses, 2000: 90-92, 95-97; Moses, 2004: 32-35). The demands of the colonial and international economy including the demand for land, the resistance of Indigenous people and underlying assumptions of Indigenous inferiority gradually forced Colonial Governors to take ‘radical solutions’ to protect pastoralists (Moses, 2000: 92; Moses, 2004: 33).

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There has been a reluctance to describe the impact of colonisation on Indigenous people in Australia as ‘genocide’ because genocide is more commonly associated with ‘total physical destruction’ and that there was no official policy of genocide or that acts of extermination were not directed at the Indigenous population as a single entity or group (Moses, 2004: 18-19).7 Moses argues that regardless of the intention of the state or the settlers, British colonisation was ‘objectively and inherently’ ethnocidal and potentially genocidal because when Aboriginal people did not fade away the settlers and where necessary the state continued the process of elimination after the pacification of the frontier (Moses, 2004: 33-36).

According to Moses while genocide is not applicable to the entire Australian history, the country’s ‘genocidal moments’ are not ‘industrial accidents’ attributable to ‘misguided or wicked men’ but intrinsic to the ‘deep structure of settler society’ (Moses, 2004: 35-36). While direct physical killings subsided as Indigenous lands were seized and the indirect consequences of colonisation such as disease, malnutrition, alcohol, decreased birth rate and demoralisation and despair took its toll, other insidious forms of elimination were instituted on the basis that Indigenous people would eventually die out or would be absorbed into white society. Colonial and contemporary Governments have sought to undermine Indigenous culture and way of life through various policies and practices to eliminate Indigenous culture and political difference. The case studies in this thesis provide examples of these policies and practices.

The ‘stolen generation’ is one example of government policies and practices that attempted to eliminate a rapidly growing population of mixed blood Indigenous people, so called ‘half castes’. Manne distinguishes pre and post Second World War policies and practices of Australian Governments according to whether the thinking behind these policies and practices was genocidal. He argues that the program of

7 Article II of the 1948 UN General Assembly Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as ‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’ by ‘(a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflecting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group’. 20 eugenics advocated by Chief Protectors in Western Australia and the Northern Territory in the 1930s which removed children from their families to biologically absorb them into white society demonstrate genocidal intention.8 However according to Manne the removal of children under the policy of assimilation instituted in the 1950s although ‘racists and paternalistic’ was not driven by genocidal intentions (Manne, 2001: 27-40). But it is Indigenous people who experienced the impact of these policies and practices that intended to destroy their culture and identity. It is a type of genocide that was created and accepted by colonial and contemporary Australian society. The destruction of Indigenous culture through coercive assimilation policies is not considered genocide under the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide. Although for Indigenous people it is equivalent to genocide because it is a direct attack on their cultural continuity (Short, 2010: 55, 62).

Short argues the Australian state has had a history of preventing Indigenous people from maintaining their cultural distinctiveness through dispossession of land and assimilation policies (Short, 2010: 61). Cultural genocide refers to the destruction of the cultural continuity of a group by destroying language, traditions, identity, livelihood, cultural practices, resource management systems, knowledge, norms and institutions (Short, 2010: 46-53). In recent times this has included the subordination of native title rights to commercial and private property rights, the intervention into Aboriginal communities in the Northern Territory, and the forced urbanisation of Aboriginal communities in the Northern Territory (Short, 2010: 53-60). According to Short the contemporary trend of Indigenous affairs policy is towards further dispossession, disempowerment and assimilation (Short, 2010: 63).

The scholarship on genocide in Australia is relevant to examining the history of Indigenous and non-Indigenous relationships because the issue of whether genocide was committed in Australia by the colonising settler society is not only a clear example of an intractable problem but also because the inability to confront tough issues such

8 The program of eugenics encompassed (1) the prohibition of mating between “full bloods” and “half- castes”; (2) the systematic removal of “half-caste” children from their families; and (3) the encouragement of marriage between “Half-caste” females and white males (Manne, 2001: 39). 21 as genocide has a flow-on effect in regards to Indigenous policy making in Australia. The case studies in this thesis are clear examples in that regard. While the genocide scholarship provides a relevant context it is not the analytical lens that I have used in this thesis. I have used the lens of intercultural dialogue to examine the history of Indigenous and non-Indigenous relationships. I do not draw any conclusions relating to genocide because the focus of the thesis is to interpret the relationships and to identify conditions necessary for a genuine dialogue in Australia. In my research I attempt to bring Indigenous perspectives to the surface not only to critique Government policies and practices but also to examine historical assumptions about Indigenous people. An Indigenous perspective is critical to understanding Indigenous political agency because Indigenous people have been mobilising in various ways to fight for their rights. But an Indigenous perspective also counters the discourse about Indigenous people as having cultural deficiencies or as being problems within the system of Australian constitutionalism.

Indigenous research methodologies are ‘alternative ways of thinking about research processes’ ensuring that research on Indigenous issues is more ‘sympathetic, respectful, and ethically correct’ from an Indigenous perspective (Louis, 2007: 133). An Indigenist research methodology not only privileges Indigenous voices but presents a counter narrative through alternate investigative methods where research is part of the struggle of Indigenous people for self-determination (Rigney, 1997 & 2001). I am also mindful of the fact that the Indigenous struggle for recognition extends to research in the academy itself. Therefore in employing an Indigenist research methodology I have sought to present an Indigenous standpoint to explain the lived experience of Indigenous people at the cultural interface of the Indigenous and non- Indigenous relationship (Nakata, 2007). According to Nakata the cultural interface is where the systems of thought and competing discourse – including systems of social, economic and political organisation of the Indigenous and western knowledge systems – intersect. In that regard I have sought to present Indigenous knowledge, histories, experiences and perspectives through my telling of historical case studies as the means to critique the historical relationship between Indigenous people and governments.

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In the thesis I analyse and contextualise the Indigenous and non-Indigenous relationship in Australia by examining historical episodes where Indigenous people in their struggles have attempted to engage or dialogue with the state. In examining past historical events my intention is not to tell or reinforce the dominant story of British- Australian imperialism and colonialism or present a narrative of Indigenous liberation but to draw out and give testimony to Indigenous perspectives of history as well as present examples of Indigenous political agency. Colonial ideology has negated Indigenous views of history because they were regarded as ‘primitive’ and ‘incorrect’ and because ‘they challenged and resisted the mission of colonization’ (Smith, 2012: 31).

Indigenous attempts to reclaim land, language, knowledge and sovereignty have usually contested the colonisers’ account of the past (Smith, 2012: 35). In that regard, I draw on history to highlight the intractable nature of the relationship between Indigenous people and British-Australian governments in examining whether such a relationship can be reconceptualised through dialogue. In examining these historical events I have primarily used secondary sources drawing on written historical accounts of Indigenous people and events.

In undertaking an historical analysis I commence with the voyage of Captain James Cook and the botanist, Joseph Banks up the east coast of Australia in 1770 as well as examine the intellectual underpinnings of the assumptions and views of Cook and Banks. Their views about Indigenous people and the Australian continent became influential in framing the discourse about Indigenous people. The views of travellers such as Cook and Banks ‘… are now taken for granted as fact and have become embedded in the language and attitudes of non-indigenous people towards indigenous peoples’ and ‘… continue to frame the discourses on indigenous issues’ (Smith, 2012: 82).

I also draw on the scholarship of settler colonialism to examine a number of historical events in Australia by way of case study where Indigenous people have struggled to claim recognition of rights. The particular form of settler colonialism in Australia is predicated on the dispossession of Indigenous people and the destruction of

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Indigenous society. Settler colonialism typically emerged in regions that were less densely populated, and where Indigenous populations were nomadic, usually resulting in the almost complete displacement of Indigenous societies (Moran, 2002: 669). The elimination of the Indigenous population was often the consequence of the desire for territory by settler colonists (Wolfe, 2006: 388-389).

Settler colonialism involves the permanent settlement of people in a new territory where they bring their own external source of sovereignty with them and establish a new political order. As founders of a political order the settlers believe they have an inherent right to sovereign entitlements in the new territory. Settler sovereignty dominates, suppresses and displaces Indigenous political sovereignty and identity through a variety of strategies such as extermination, expulsion, incarceration, containment and assimilation in order to remove, transfer or disappear the Indigenous population. Eventually the settler population becomes the majority imposing European political, legal, economic, social and cultural structures over the territory (Veracini, 2010: 3-5, 16-17, 33, 53; Greene, 2007: 237-238; Veracini, 2007; Lovell, 2007).

Settler colonial regimes disavow the very existence of Indigenous people and their claims on the basis that the land is empty or sparsely populated and also perceive ‘settlement’ as peaceful thus denying any founding violence against Indigenous people. Ultimately Indigenous people become transformed into intruders (Veracini, 2010: 77, 82-83, 86). The narrative of settler colonialism is premised on an understanding of ‘progress’ as being the displacement or erasure of Indigenous people (Veracini, 2010: 99, 101). Indigenous people are denied their humanity and settler narratives and ideology informs and determines settler perceptions of the Indigenous people (Wright, 2001: 57; Lane West-Newman, 2004: 192). Settler colonial ideology thereby generates a discourse of national identity that legitimises the economic and institutional structures of the settler colonial state. Indeed, settler colonial nationalism institutionalises a particular sense of national identity or vision of national character that is used to construct and legitimise the political system, and justifies particular policies and forms of privilege (Lovell 2007: 2).

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This settler colonial ideology also creates an authority and legitimacy that allows the settler colonists to define the identity of the Indigenous population as one based on failure, inferiority and primitiveness in biological, cultural, social, economic and political terms (Lovell, 2007: 4), thereby enabling the settler state to frame its own identity in terms of superiority, right and entitlement. The power to define ‘the Indigenous’ has the effect of silencing the Indigenous population leaving little space for them to make claims against the state because settler nationalism is presented as the only legitimate state formation or conception of the national identity (Lovell, 2007: 5). The ideology of settler nationalism thus informs not only the operation of the settler state, but also the thinking of settler citizens. This results in the creation of a colonial state that is engaged in a process of continual and self-perpetuating colonisation (Lovell 2007).

Australia is a clear example of a settler colonial society as its politics and governance are substantially based on settler colonial institutions, ideas and norms that have been institutionalised and normalised (Lovell, 2007: 1-2). This makes the ongoing process of colonisation of Aboriginal people and its impact invisible to many Australians. Ongoing colonialism in Australia encompasses myriad forms of domination and disempowerment that go beyond the historical and continuing dispossession of land and resources (Maguire, 2008: 23). Colonialism and its ideology are not relics of Australia’s past but are part of the fabric of Australian identity and can be seen in how Aboriginal people are governed and how governments and the Australian people respond to Aboriginal claims in contemporary debates (Dodson & Strelein, 2001: 838).

The case studies in this thesis are an example of Indigenous attempts at dialogue with government authorities and with the non-Indigenous population. These historical events provide evidence of the manner in which Government Indigenous policies in Australia work to eliminate Indigenous existence, connection to land and also political difference. While Australia is often referred to as a post-colonial state it is hardly so because there has never been a transformative point or a moment in which the nation has restructured its relationship with Indigenous people to recognise Indigenous political difference. In accordance with the ‘logic of elimination’ (Wolfe, 2006: 390) Government policy in Australia continues to frame Indigenous people as a ‘political 25 problem’ that needs to be eliminated because Indigenous political difference challenges colonial sovereignty (Strakosch & Macoun, 2012: 44-45).

There are a number of ways to eliminate Indigenous political difference, by physically eliminating Indigenous people, by severing Indigenous physical connection to land, by breaking down families and communities, by drawing Indigenous polities into the state and reforming them, and by entering into contractual exchanges such as treaties which erase the political distinction between colonizer and colonized (Strakosch & Macoun, 2012: 45). Each of the case studies in my thesis show how Government policy in Australia sought to eliminate Indigenous political difference and in doing so reject, constrain, misconstrue or ignore Indigenous attempts at dialogue. The case studies include: (1) Coranderrk 1863-1948; (2) the Day of Mourning 1938; (3) the Yolngu Bark Petition 1963; (4) the 1972; and (5) the Mabo judgement and the Native Title Act 1992-1993.

I chose these case studies because I want to tell historical stories that represent the successive stages of the colonial relationship between Indigenous people and governments in Australia. The case studies were chosen because they illustrate the difficulties of achieving genuine dialogue within the settler colonial relationship with its eliminatory policy strategies and attendant negative assumptions about Indigenous people. The case studies are presented in story format explaining how the events unfolded including the action and strategies of Indigenous people and the response by governments. I use the story format to explain the Indigenous struggle for recognition and to demonstrate how negative assumptions about Indigenous people created barriers for Indigenous aspirations.

Indigenous people employ story telling about their struggle for justice to reclaim the past and give testimony to past injustices (Smith, 2012: 36). Through telling their own stories people discover new self-perceptions and strengths and uncover knowledge that has been subjugated to dominant ideas (Williams, Labonte & O’Brien, 2003: 36). Stories provide a structure for reflection enabling insights to be gained that reveal the political nature of personal experience and this leads to critical consciousness and critical action (Ledwith, 1997: 66). The stories as presented in the case studies of this

26 thesis are told not only to give voice to Indigenous experience but they also reveal the nature of the Indigenous struggle for recognition and justice. Further the stories are told in detail. The detail is necessary for understanding the stories. Understanding the stories is the basis for examining, reflecting on and understanding the underlying assumptions about Indigenous people. In that respect story telling has a dialogical and transformative element. Therefore I present the stories in this thesis as an invitation to dialogue with those who read this thesis.

The story of Coranderrk Aboriginal reserve began in colonial . It was a time when Aboriginal people had no recognised rights and government Aboriginal policy assumed that they would either die out or be biologically absorbed into the broader population. Against the enormous hegemony and oppression of the Aborigines Protection Board, members of the Kulin nation sought to regain part of their traditional country, farm it and live as free people in the colonial state. However, their success was not appreciated by surrounding land owners who sought control over the reserve land. For 60 years people at Coranderrk fought to hold their reserve but were gradually worn down by the policies and practices of the Aborigines Protection Board.

In the 1930s and 1940s Aboriginal people in New South Wales were not entitled to citizenship rights nor did they have any recognised rights to land. Government Aboriginal policy administered by the Aborigines Protection Board assumed they would disappear through biological absorption into the dominant European population. But a number of Aboriginal activists were able to agitate for land and citizenship rights and on the 26 January 1938 they held a Day of Mourning protest and conference to develop national policies for the recognition of Aboriginal rights. The policy statement put forward by the Aboriginal activists was ignored by the New South Wales Government. Although the statement was received sympathetically by the prime minister at the time, the Commonwealth had no power over Aboriginal Affairs.

In 1963 the Yolngu people in Arnhem Land, Northern Territory were not considered intelligent enough to understand their own needs and concerns, or to protect their rights. Government Aboriginal policy was paternalistic, deeming Aboriginal people to be wards of the state who were only entitled to full citizenship if they assimilated into

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European society. But the Yolngu were able to draw on their traditional values and protest the mining of their traditional lands by way of a bark petition presented to the federal parliament. The Yolngu were able to secure a parliamentary select committee to inquire into their grievances. Their evidence was convincing as to the deficient approach of the Welfare Department and the Methodist Mission Board who made decisions on behalf of Yolngu in regards to mining on their traditional lands. However the select committee could only recommend certain protections and benefits for the Yolngu.

In the 1960s and 1970s government Aboriginal policy was focused on assimilating Aboriginal people into European society. The assimilation policy was paternalistic and did not recognise Aboriginal rights to land. The Commonwealth Government believed there was no legal or moral obligation to recognise traditional Aboriginal land ownership. In response to the Commonwealth Government’s failure to recognise Aboriginal land rights a group of Aboriginal activists from Redfern in Sydney erected a tent embassy on the lawns of Parliament House in in January 1972. The Aboriginal embassy demanded Aboriginal self-determination, Aboriginal ownership of land, rights to minerals, protection of sacred sites, and compensation for land taken. But the government were contemptuous and brutally removed the embassy from the lawns of Parliament House. Nonetheless the Aboriginal activists and their supporters were able to secure a significant change in Aboriginal policy.

While the Aboriginal embassy protest was only able to secure recognition of land rights in the Northern Territory, the Mabo judgement in 1992 recognised that Indigenous people in Australia had pre-existing rights to land that continued after British colonisation. Yet native title was considered a threat to the Australian system of land law and to economic interests. The ensuing public debate brought out colonial and historical prejudices about Indigenous people with state governments and industry groups pressuring the Commonwealth Government to extinguish native title. The Commonwealth Government sought to formalise those rights in legislation and was heavily influenced by an extinguishment approach. However, a group of Indigenous organisations asserted their right to be involved in the constitutional law making process and were able to negotiate an outcome which protected the basic core 28 of native title. I was personally involved in the Indigenous negotiating process. Although the outcome was less than satisfactory it was a turning point in Australian history because Indigenous people began to engage with Australian constitutionalism through dialogue and negotiation to transform the way governments deal with Indigenous rights.

Prior to each case study, I outline the political context at that time including the particular government Indigenous policy in place. However this thesis is not a study of Indigenous policy in Australia. Rather it is a study of how Indigenous policy has been shaped by colonial assumptions and beliefs about Indigenous people and their culture and how those assumptions and beliefs created barriers for dialogue in relation to Indigenous aspirations and their claims for recognition.

Following each case study is an analysis based on six questions, which I have developed from the research on dialogue outlined in chapter two. The questions are as follows:

1. What was the general policy approach of the government at the time and what were the underlying assumptions about Indigenous people? 2. How did Indigenous people challenge the policies and practices of government including that of white hegemony? 3. Were there any relationships of respect and recognition between Indigenous people and government and/or the dominant society? 4. Were there any cross-cultural frameworks for recognising, establishing and negotiating relations and in what ways and at what levels was there a cross- cultural dialogue? 5. What was the outcome of the intercultural encounters; were there any solutions and what was negotiated or imposed? 6. Are there any trends, lessons or principles that might be useful to assist political and social dialogue today or that are relevant to the Indigenous struggle for recognition?

The thesis comprises ten chapters. Throughout the thesis, I have used the terms ‘Indigenous’ and ‘Aboriginal’ interchangeably. Both of these terms share similar 29 dictionary meanings. However I use the term ‘Aboriginal’ when I refer to or talk about Aboriginal people or groups on mainland Australia. This does not include Torres Strait Island people. I am aware there is some contention in regards to the use of the term ‘Indigenous.’ However I have used the term when I talk generally about or refer to Indigenous people in Australia and this includes both Aboriginal and Torres Strait Islander people. Also in referencing certain authors I have tried to be consistent and use the terms that they have used.

Chapter two discusses the theory and practice of dialogue. It outlines the nature of dialogue, the different levels of dialogue and the conditions necessary for a genuine transformative dialogue in Australia. Chapter three examines the genesis of British and Australian settler assumptions and beliefs about Indigenous people that have formed the basis of the relationship between Indigenous people and other Australians. It includes an examination of the legal discourse that has been so influential in dismissing Indigenous claims for recognition. Chapters four (Coranderrk Aboriginal Reserve), five (The Day of Mourning), six (The Yolngu Bark Petition), seven (The Aboriginal Embassy) and nine (The Mabo Judgement and Native Title) present case studies that illustrate how settler assumptions have influenced and directed historical and contemporary Indigenous government policy in Australia. Chapter eight examines federal government Indigenous policy and Indigenous claims for recognition from the 1970s to the early 1990s that led up to the Mabo judgement. Chapter ten analyses the case studies to ask whether dialogue is useful in negotiating Indigenous rights.

In answering this question I analyse the case studies by looking at how Indigenous people attempted dialogue with governments and how those attempts at dialogue have been constrained or rejected. As evidenced by the case studies, what has occurred throughout Australian history can hardly be considered dialogue because negative assumptions about Indigenous people have constrained or blocked genuine dialogue. For genuine dialogue to occur between Indigenous people and governments a number of conditions must be fulfilled. These are discussed in chapter two and identified in chapter ten. Some key conditions for dialogue with Indigenous people are set out in Appendix 1. Further there are particular lessons and practices which are

30 useful for Indigenous people in their struggles for recognition. I draw these lessons and practices from my analysis of the case studies and they are contained in Appendix 2.

Whilst there is potential for genuine dialogue in Australia, such dialogue must deconstruct the existing colonial relationship, address past injustices and work out ways in which Indigenous people and other Australians will associate in the future. This requires an openness and willingness on the part of Australians to repudiate colonial and contemporary assumptions and attitudes about Indigenous people. It also requires Indigenous people to develop new ways of achieving justice within the nation state by strengthening their societies and engaging with governments in ways that don’t conform to government expectations and approaches.

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CHAPTER 2: DIALOGUE AND INTERCULTURAL DIALOGUE

Introduction Australian constitutionalism has not been able to remedy the colonial legacies of exclusion, marginalisation and injustice suffered by Indigenous people, nor is it able to contemplate a way forward with Indigenous people. I use the term ‘Australian constitutionalism’ to encompass the ‘institutional arrangements and rules and principles’ that are ‘… derived from the written Constitutions of the Commonwealth and States, the unwritten conventions of behaviour under the Constitutions and the common law’ and the acceptance of those institutions, rules and principles ‘… by the institutional actors and wider Australian society’ (French, 2009: 6). Indigenous people were excluded from recognition in colonial Constitutions and other than discriminatory provisions the Constitution of the Commonwealth of Australia 1901 also did not recognise Indigenous people. Further as I discuss in chapter 3 the common law largely denied recognition to Indigenous people.

Unlike other countries colonised by Britain there were no treaties with Indigenous people in Australia. The Constitutional institutions, rules and principles in Australia were created on the basis of Indigenous exclusion. Therefore the system of government is unable to deal with the intractable issues of Indigenous disadvantage or solve the difficult political issues of Indigenous claims for self-determination. Indigenous policy making is an ‘assimilationist and ideological process’ (Tatz, 2009: 95) with a serious lack of Indigenous engagement in policy and decision making (Maddison, 2009) resulting in seriously flawed Indigenous policy (Altman 2009: 1). I contend that to solve the intractable problems of Indigenous disadvantage and the difficult political issues of Indigenous self-determination we need a new foundation. This new foundation can only be created through a process of intercultural dialogue to develop new norms, language and practice in Australian social and political culture to build a renewed relationship with Indigenous people.

Dialogue is ‘… a form of communication oriented towards building understanding and relationships’ that emphasises collaborative engagement, but also embraces difference and conflict (Escobar, 2011: 20). In a dialogic conversation the participants 32 must be able to set aside their assumptions about others and not defend them by attacking the ideas or integrity of others or by making judgements about others. In dialogue people should step back and observe their thoughts and feelings in order to become aware of them. Self-reflection enables people to change the way they think and to become more open to the views and opinions of others. Understanding and transforming underlying assumptions is essential to any post-colonial conversation in Australia.

Drawing on dialogue theory and placing it in the context of intercultural dialogue, reconciliation and intercultural negotiation, I argue for a new dialogue in Australia that recasts settler and Indigenous relationships on the basis of mutual recognition, mutual respect, sharing and mutual responsibility as proposed by Tully (2008). Indigenous and other Australians must have a conversation about a just post-colonial future.

This chapter looks at the theory of dialogue and what a genuine process of dialogue might entail. Dialogue is studied in a variety of ways across many disciplines.9 It is studied in relation to different social, political and organisational problems and at different levels.10 Given these different approaches, dialogue is also used for a range of different purposes. These include generating awareness, problem solving, building relationships, sharing knowledge, innovation, creating a shared vision, capacity building, leadership development, dealing with conflict, planning and decision making (Mille Bojer, Roehl, Knuth & Magner, 2008: 33).11 In this chapter I survey the literature on dialogue that is most relevant to the issue of transformation of relationships in societies affected by colonisation.

9 For example: Discourse theory (Wierzbicka, 2006); Communication theory (Hyde & Bineham, 2000); Deliberative theory (Escobar, 2009; Deveaux, 2003); Public policy and administration (Head, 2008; Rittel & Webber, 1973; Linder, 2001); Philosophy (Tully, 1995; Lange, 2013); Applied psychology (Kelman, 1998; Chryssides, 2008; Nesbitt-Larking, 2008); Peace and conflict studies (Kelman, 2008, 2010); Organisational learning (Isaacs, 1999, 1993); Negotiation Studies (Saunders, 2003); Social theory (Sammut & Gaskell, 2009). 10 For example: Global and intercivilisational (Tsutsumibayashi, 2005); Corporate and organisational (Schein, 1993; Isaacs, 1993); Societal and cultural conflict (Corry, 2012; Kelman, 2010); Indigenous and settler conflict ( Anderson, 2000; Restrepo, 2011; Tully, 1995); Community (Zoller, 2000; Helling & Thomas, 2001); Intercultural (James, 1999); Facilitated small group (Bohm, 1996; Isaacs, 1999). 11 For example: Transforming societal conflict (Gergen, McNamee & Barrett, 2001); Civic engagement (Cramer Walsh, 2006; McCoy & Scully 2002); Intercultural collaboration (Flower, 2003); Cultural and political recognition (Tully, 1995); Reconciliation (Tully, 2008); Problem solving (Kahane, 2004); Conflict resolution (Yankelovich, 1999); Democracy and deliberation (Deveaux, 2003). 33

What is dialogue? In defining dialogue I start with the following definition by Bohm:

“The object of dialogue is not to analyse things, or to win an argument, or to exchange opinions. Rather, it is to suspend your opinions and to look at the opinions – to listen to everybody’s opinions, to suspend them, and to see what all that means. If we can see what all of our opinions mean, then we are sharing a common content, even if we don’t agree entirely” (Bohm, 1996: 30).

To be engaged in dialogue one must be open to questioning one’s fundamental assumptions (Bohm, 1996: 7-8). However dialogue cannot always be partitioned away from every day interaction because communication amongst people is a mixture of discussion and dialogue (Black, 2008: 94).

Dialogue distinguished Dialogue is usually associated with discussion or debate but these concepts are not the same. Debate is about attempting to win points or to make a particular point of view prevail over the points of view of others so as to win an argument or ‘vanquish an opponent’ (Yankelovich, 1999: 38). Similarly, in discussion people bat ideas back and forth like a ‘ping-pong game’ to win points (Bohm, 1996: 7). Discussion is about making a decision. Unlike dialogue, that seeks to open up new possibilities, discussion seeks closure and completion (Isaacs, 1999: 45). While discussion is necessary because it produces valuable results, it is limited in solving intractable problems especially where people bring different assumptions, points of view and have a deep investment in getting what they want (Isaacs, 1999: 46). Discussion lacks all or any of the following three features which are components of dialogue: (1) equality and the absence of coercive influences, (2) listening and empathy, and (3) bringing assumptions into the open and suspending judgement (Yankelovich, 1999: 38-45).

Dialogue is not an instrument of decision making nor is it a negotiating device to seek agreement leading to action (Yankelovich, 1999: 15). Deliberation – a process of narrowing options by careful consideration and weighing of options to make tough

34 decisions – is not the same as dialogue, which is a process of joint inquiry and respectful listening to diverse views (Pruitt & Thomas, 2007: 22-23). Dialogue also differs from negotiation and mediation because its intention is to reach new understanding and in doing so form a new basis on which to think and act (Isaacs, 1999: 19). Mediation or negotiation aims for concrete agreement. These agreements define and satisfy material interests whereas dialogue creates new human and political capacities to solve problems. Negotiation deals with goods or rights that are divided and shared in tangible ways whereas dialogue creates new ground for mutual respect and collaboration (Pruitt & Thomas, 2007: 21-22).

Dialogue also differs from consensus, where people look for a view that reflects what most people can live with assuming that shared action will arise out of a shared position. While consensus creates a measure of agreement, it does not explore or alter the underlying patterns of meaning – the patterns that led people to disagree at the outset. Dialogue brings to the surface these patterns of thought so that people can gain insight into why they arise (Isaacs, 1993: 26). While debate, political activism, negotiation and mediation have a role in a democratic society, dialogue is different because it encourages diversity of thinking and opinion, focuses on mutual understanding and builds new relationships (Herzig & Chasin, 2006: 3; Pruitt & Thomas, 2007: 19-21). Dialogue can also serve as a prelude to or an aspect of negotiation or mediation (Herzig & Chasin, 2006: 3; Dessel & Rogge, 2008: 211).

Dialogue is regarded as a deeper form of conversation where there is a diversity of perspectives; active listening; discouragement of negative attitudes towards others; and understanding as the desired outcome (Magliocca & Sanders, 2008: 139-140). It is a highly specialised form of discussion because it imposes a rigorous discipline on participants. Failure to observe the discipline destroys the benefits of dialogue (Yankelovich, 1999: 16). As a discipline of collective thinking and inquiry, dialogue transforms the quality of conversation by transforming thinking which in turn opens up new possibilities for people to discover new insights instead of seeking closure or completion (Isaacs, 1993: 25; Isaacs, 1999: 45-46).

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A practical theory of dialogue Isaacs argues that dialogue is not merely a philosophical concept but is a ‘distinct form of social inquiry’ (Isaacs, 2001: 722). This means that dialogue is a form of action or practice that contributes to collective learning by inquiring into ‘tacit thought’ in particular exploring the underlying processes that govern tacit thought (Isaacs, 1993: 31). Tacit thought is the know-how or knowledge that people use to think. It governs how we formulate our views, deal with differences, pay attention, and make casual connections (Isaacs, 2001: 718). People essentially see and understand the world through fragmented images and interpretations of life that live in memory (Isaacs, 1999: 307). These images about the world are experienced as ‘literally true and obvious’ therefore people defend these images under conditions of threat and embarrassment (Isaacs, 1993: 31).

Isaacs argues that it is collective attention and learning that enables people to pay attention, understand their assumptions, see the polarisation of opinions and understand the rules for acceptable conversation. In that regard people must watch or experience tacit thought in action to understand it and to gain new insights rather than look back on the conversation to reflect on it (Isaacs, 1993: 31). Seeing and experiencing tacit thought in action is a reflective process that happens in real time.

When people confront tough issues, their views and opinions collide and the environment heats up, causing their association with each other to become unstable and incoherent. Dialogue seeks to produce a ‘cooler’ shared environment by refocusing the group’s shared attention so that people are able to engage in high energy interactions with reduced friction yet still recognise differences (Isaacs, 1993: 32).

According to Isaacs, there are four elements of dialogue. They are as follows:

1. Human beings must invent ways to reduce defensiveness that arise face to face so that they can inquire together and learn from one another. 2. They must invent ways of inquiring into the shared ‘field’ or background conditions out of which they speak to harness the possibility of collective intelligence. 36

3. There is a development sequence where a pattern of inquiry and action that unfolds over time, produces tangible effects. 4. Dialogue employs certain methods to expand the capacity of a group to inquire into and alter the formative forces that govern their experience (Isaacs, 2001: 729-744).

The challenge of dialogue is to first reduce face-to-face defensiveness between people that leads them to advocate their views and not inquire into the views of others. In dialogue the intent is to increase levels of self-reflection, increase psychological safety and increase the quality of collective attention and to ‘hold’ the conflict (Isaacs, 2001: 730). Dialogue occurs in the field of shared meaning and energy that emerges amongst a group of people (Isaacs, 1999: 242). The ‘field’ comprises the collective attention, images and tacit thought of people (Isaacs, 2001: 731). It is within the collective shared field that people directly experience the nature of tacit patterns of thought and action. In face-to-face interactions this concerns the quality and nature of effective listening, the tone and texture of interactions, the pattern of shared reasoning and the way in which people tend to reproduce and embody the content of their conversation (Isaacs, 2001: 731-732).

People divide up the world according to how they perceive it (Bohm, 1996: 10, 56). They generally do not recognise that they see the world through memory, because these interpretations are ‘mechanistic processes of thought’ that repeat themselves. These representations of memory are known as ‘idols’ (Isaacs, 2001: 732-733). An idol is ‘… a collective representation or image that is not perceived as such but instead comes across as “real”’ (Isaacs, 1999: 61). Therefore human experience is dominated by idols which are taken as literally valid. Bohm argues that we have lost self- perception at the level of our thought (Bohm, 1996: 28). In that regard our ideas or feelings arrive ‘from nowhere’ or are triggered by the environment and so we lack the ability to connect our perceptions with the nature of our thoughts. Hence we cannot ‘feel’ the direction of our thoughts because consciousness appears as literal and real (Isaacs, 2001: 375).

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In collective dialogue the notion of idols and patterns of thought are brought to the surface through a ‘container’ in which dialogue takes place. A container is ‘the sum of the collective assumptions, shared intentions, and beliefs of a group’ (Isaacs, 1993: 34). It is the space that enables the participants to observe and hear their interactions and that enables them to inquire into underlying images, norms and perceptions (Isaacs, 2001: 734). To explore underlying thinking and use self-perception in the container the participants suspend their assumptions and this enables them to transform their underlying patterns of thought (Isaacs, 2001: 733). The key aspects of the container are: people listening, respecting one another, suspending their judgments, and speaking their own voice (Isaacs, 1999: 242-244).

In dialogue, suspension makes self-perception or self-awareness possible enabling the impulses that lie behind every day thought to be seen (Isaacs, 1999: 146). When assumptions are suspended they are neither expressed nor suppressed, but are held in abeyance. This involves ‘loosening our grip’ on the temptation to fix, correct or problem-solve so we can begin to inquire into what we observe (Isaacs, 1999: 135, 147). Suspension means stepping back to observe your own thoughts and feelings in order to understand your consciousness, but also to become aware of the processes that generated those thoughts and feelings as the prerequisite to transforming thoughts and feelings (Isaacs, 1999: 134-144). This is the transformational vehicle of dialogue because it helps people ‘… notice the connection between the thoughts going on in dialogue, the feelings in the body, and the emotions’ (Bohm, 1996: 23). This process is not about trying to change anybody’s opinion but helping them see what their own and other people’s assumptions and reactions mean. Bohm considers this aspect to be dialogue – when people realise what is on each other’s mind and not come to any conclusions or judgments (Bohm, 1996: 23).

Isaacs proposes that dialogue evolves through a series of phases where a pattern of inquiry and action unfold over time. In the first phase (instability of the container) there is an ‘initiatory crisis’ because participants are concerned with safety and trust in dialogue. Participants struggle with polarisation and conflict in the second phase (instability in the container) as a result of the fragmentation or clash of beliefs and assumptions. By the third phase (inquiry in the container) the participants are able to 38 inquire into polarisation and foreign ideas without taking divisive action on the group’s fragmented knowledge. This leads to the final phase (creativity in the container) where participants begin to think generatively and new understandings based on collective perception emerge (Isaacs, 1999: 257-285; Isaacs, 2001: 741). The result is an approach for dialogue that expands the capacity of individuals and groups of people to inquire into and alter the thoughts that govern and shape their experience in order to transform thinking processes to ultimately create a different kind of face-to-face interaction (Isaacs, 2001: 729-744).

Group dialogue to societal dialogue The most common form of dialogue is facilitated group dialogue where a group of people representing the diversity or differences in an organisation, community, or society come together to reach a common understanding, solve problems, resolve conflict or engage in deliberative processes. On the other hand, in a society divided by social conflict, dialogue is also useful for public discussion about societal or cultural conflicts or important public issues. The scale of public or societal dialogue is much larger and in that regard the evolutionary phases of dialogue as outlined by Isaacs (1999, 2001) are difficult to facilitate in a wide ranging discussion without a container structure to hold the discussion and enable the collective and reflective processes. In a societal dialogue there is no single container in which people build shared meaning however discussion can be relatively contained as in the example of the Canadian Royal Commission on Aboriginal Peoples which I discuss below. However in a society wide dialogue there are multiple forums, visions and agendas which can undermine the collective practices of inquiry and learning that are necessary to create shared meaning and common understanding.

In practice, dialogue at the small group and the societal level are often interrelated and feed into each other to transform social relations. For example a small group can act as a microcosm of the larger society and serve as a vehicle for change at the macro level.12 Bohm suggests a group of 20 or 40 people as a representative microcosm of the whole society (Bohm, 1996: 14-15). The intention is not to reproduce the forces

12 I discuss examples from South Africa, Northern Ireland and Canada in the section of this chapter titled ‘Post-colonial dialogue in Australia’. 39 and systems of the larger society in the small group but to create an environment governed by norms which allow participants to interact, speak, listen and treat each other with respect (Kelman, 1997: 216).

Kelman, for example, uses an ‘interactive problem solving’ approach with small groups of participants to produce change in the participants and also in society. His work with regard to the Israeli-Palestinian conflict involved bringing together leading figures from politics, government (including former military), journalists and academic scholars for workshops facilitated by a panel of social scientists knowledgeable about conflict, group processes and the Middle East region. Participants are encouraged to deal with the conflict analytically. The analytic discussion and direct interaction in the workshops enabled participants to understand each other’s perspectives, gain insights into the dynamics of the conflict and develop new ideas to resolve the conflict. The insights and ideas from the group were also fed back into the discussion and decision making of the broader community (Kelman, 1997: 214).

At the beginning of a dialogue people get to know each other, build trust and establish relationships of sharing and negotiate a common way to proceed (Bohm, 1996: 17-22). Relationship building is an important aspect of any dialogue process and it transpires through direct interaction. Through direct interaction dialogue participants develop a level of empathy, sensitivity and responsiveness to the concerns of others and a working trust all of which are essential to developing new relationships (Kelman, 1997: 219). It is the quality of human experience and interaction that creates the space for consciousness and creative thinking and this also includes differences and disagreements because in the dialogic process they are not obstacles but places for further exploration (Escobar, 2009: 53). In the dialogue relationship people treat each other as equals, refrain from exerting coercive influences over one another, listen and respond empathically to one another and surface their deep-rooted assumptions without challenging or reacting judgmentally and defensively (Roberts, 2002: 6).

Dialogue is effective when it is facilitated by a third party. The role of the facilitator is to nurture a free and open discussion by increasing participants’ understanding of the process and creating enthusiasm and commitment to sustain the dialogue (Zoller,

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2000: 198; Kelman, 1997: 214). Generally in group dialogue there is no obligation on participants to do anything or come to any conclusions. However in situations of conflict the emphasis is on helping participants see into each other’s perspectives and understand each other’s ‘concerns, needs, fears, priorities and constraints’, and encouraging them to deal with the conflict analytically rather than exacerbate and perpetuate conflict (Kelman, 1997: 214). The focus is on transforming relationships.

While the dialogue process is important participants must also build their capacities for dialogue in order to play an effective role. These capacities are listening (without resistance or imposition), respecting (seeing others and their position as legitimate), suspending (suspend assumptions, judgement and unilateral conviction) and voicing (speaking the truth of one’s own authority) (Isaacs, 1999: 419). One of the critical elements of dialogue is not to react when your assumptions are challenged but to suspend your assumptions and listen.

Dialogue must not be an instrument for one group to accomplish its agenda or to have a superficial consultation with people. Pruitt and Thomas (2007) argue that a genuine dialogue process is characterised by certain principles such as inclusiveness, joint ownership, learning, humanity, and a long-term perspective.13 To be inclusive dialogue must give a voice to those people who have been excluded historically because of gender, age, economic status, race, ethnicity or religion. However, having a place in the dialogue does not immediately put people on an equal footing because there will be power imbalances. Steps must be taken to mitigate these imbalances by ‘levelling the playing field’ (Pruitt & Thomas, 2007: 26-28). Dialogic inquiry requires questioning privileges afforded by socio economic status, knowledge, ethnicity or gender (Escobar, 2011: 32-33).

Dialogue provides an opportunity for joint ownership when it enables people to shape their own future and this requires having ‘conversations about what truly matters - the

13 Bettye Pruitt and Philip Thomas authored a handbook on democratic dialogue which was sponsored by and drew on the experience of the International Institute for Democracy and Electoral Assistance, the United Nations Development Program, the Organization of American States and the Canadian International Development Agency.

41 real thing’ (Pruitt & Thomas, 2007: 28-29). The learning aspect of dialogue happens through self-reflection as people ‘… open themselves to hearing and reflecting on what others have to say, to what they themselves are saying, and to the new insight and perspective they may gain as a result’ (Pruitt & Thomas, 2007: 29). To create a safe place in dialogue it is important for people to display humanity, by being open to other points of views and to behave respectfully and responsibly towards each other. This is the safe place of dialogue where empathy (ability to put oneself in another’s shoes) and authenticity (speaking the truth on one’s own authority) are required (Pruitt & Thomas, 2007: 30-31). Finally, finding a sustainable solution to complex problems requires a long-term perspective. There are no quick fixes in dialogue. It takes time for sustainable change from changing individual patterns of thinking and behaviour and then transferring the impact of dialogue to the socio-political level (Pruitt & Thomas, 2007: 31-32).

Dialogue cannot be forced on people although it can be encouraged. For people to participate in dialogue they have to appreciate the need for it (Zoller, 2000: 199). They must have the interest and capacities to engage in such a process as well as hold position and credibility in their own community (Kelman, 1997: 214). A range of factors could make a dialogue happen: an individual or a party is willing to give ground; the parties become more responsive to each other; there is a focus on common interest; or there is a gesture of respect and empathy (Yankelovich, 1999: 54-55, 104-105). The appropriate time to initiate a dialogue especially in intractable conflicts is referred to as ‘ripeness’. Ripeness is the moment when the conflicting parties have reached an impasse and the time is right for dialogue or action (Stimec, Poitras & Campbell, 2011: 143-144; Pruitt, 1997: 237-238).

In social conflict, ripeness results from a number of factors. One such factor is a mutually harmful stalemate that cannot be resolved by victory on either side. In this situation, a party will move to resolution of a conflict in order to achieve de-escalation. They may become optimistic about finding a mutually acceptable agreement that will be binding on the other party (Pruitt, 1997: 237-239). Other ripeness indicators for societal dialogue include broad based support for participatory processes; desire and momentum for positive change; individual motivation to address the challenges of 42 society; a widespread sense of urgency about the need for change; or leaders feeling compelled to address public issues (Pruitt & Thomas, 2007: 70).

Dialogue presents a number of challenges because it is a much longer process than any other method of engagement. It requires commitment, resources and time, and its impact is not immediate or measureable. There is also a degree of vulnerability that not everyone is comfortable with because to develop trust one must make certain sensitive or personal disclosures. This can expose a person to certain risks including the possibility of suffering harm as a result of engaging in intercultural dialogue. Appadurai argues the risks may involve being misunderstood or being understood clearly because the other party sees our deepest convictions and even doubts. There is also risk associated with internal differences on each side of the dialogue. Groups, communities and other large social formations have many internal divisions and so it is impossible for a representative voice to speak with authority on behalf of others. In that regard there needs to be internal group or community dialogue (Appadurai, 2008).

Dialogue has been shown to be an instrument to change and transform relationships between conflicting groups in an organisation or a company, a community, a society, a nation or a civilisation. Dialogue can address intercultural conflicts in liberal democratic societies (James, 1999) or solve tensions across societies with different cultures (Kelman, 1997; Ramirez, 2007). For these reasons dialogue is a useful approach to address colonial legacies in Australia.

Intercultural Dialogue Intercultural dialogue is a process of interaction between cultural groups with distinct identities in order to recognise and accommodate difference, promote mutual understanding and address cultural conflict. It may involve the state because intercultural dialogue is a political process and in that regard it requires a deconstruction and reconstruction of power and power relations (Karsten and Kűntzel, 2006). For colonised and oppressed peoples, dialogue is often regarded as a tool to construct a decolonised relationship of reciprocity (Restrepo, 2011). In the Australian context Anderson argues that this involves reimagining and building new models,

43 moving away from the nationalist framework of majority culture and 'others’ to a nation building model that acknowledges the ‘encounter, exchange, memory, desire and struggle’ of Anglo settler, Indigenous and migrant in the nation building process (Anderson, 2000).

Talking across difference requires an ability to listen, to question and to stand ready to pursue the complexities of other people's world view and knowledge (Flower, 2003). Participants must engage with an attitude of openness and trust, and an understanding of each other’s perspectives; while the conditions of dialogue must be fair to all parties (James, 1999). Whilst intercultural relations are fraught, under appropriate conditions – such as ensuring equal status between groups, cooperative interaction, intergroup acquaintance and supportive institutional norms – intergroup dialogue can reduce prejudice and improve intergroup relations (Sammut & Gaskell, 2009: 48). It can enable ‘others’ to speak in their own voices rather than being interpreted by the dominant culture (Restrepo, 2011: 58).

Intercultural dialogue must be transformative, creating a context in which individuals and groups develop relationships and engage in conversation that goes beyond their values and beliefs to understand the values and beliefs of others in order to transform society (Jenlink, 2008: 51-52). Therefore dialogue must open the parties to each other’s perspectives and realities, and contribute to improving tolerance, reducing prejudice and conflict (Sammut & Gaskell, 2009). The aim is create meaning and understanding across cultures to generate a common frame of reference, a shared view of the world (Banathy, 2008: 78).

In transformative dialogue, certain practices are required to create the context for common understanding between the parties. These practices include relational responsibility rather than blame, self-expression through personal stories, affirming and embracing others, coordinating voice and co-constituting action, self-reflexive conversation and giving voice to multiple positions, and co-creating new realities (Gergen, McNamee and Barrett, 2001). In situations of conflict and tension, intercultural dialogue must be grounded in non-violence and mutual respect, be

44 underpinned by the ideas of pluralism and multiculturalism, and include historical reflection and mutual forgiveness (Ramirez, 2007).

Individuals and groups only begin to understand one another, gain new perspectives and change their assumptions when they are treated equally, are listened to with empathy and their beliefs are considered with respect (Roberts, 2002: 6-7; Isaacs, 1993: 25; Yankelovich, 1999: 41-45). An example of an intercultural dialogue aimed at influencing society in regards to Aboriginal people was aired on SBS television in November 2014. First Contact, a reality program, immersed six white Australians with whom Australians could identify into everyday aspects of Aboriginal life. The show brought out the disparity and disconnection between white and (Munro, 2014; Galvin, 2014). In doing so, it invited participants and viewers to confront their ingrained, negative assumptions about Aboriginal people.

First Contact was a limited form of dialogue because it focused on dispelling myths and breaking down stereotypes. It did not explain the deep rooted institutionalised racism that makes Aboriginal affairs seem intractable, nor did it explain how failed government policies have hindered solutions and undermined Aboriginal self- determination (McQuire, 2014). It also did not confront the difficult ongoing consequences of colonisation and destructive government policies which were directed at eliminating, excluding and assimilating Indigenous people.

For Indigenous people living within established nation states a different approach to intercultural dialogue is required because dialogue is about resolving claims for land and recognition of their cultural and political rights. It also includes agreeing upon principles of recognition on which new relationships of reconciliation can be negotiated. These approaches to dialogue are discussed in the next section.

Argument culture and societal dialogue in Australia Discussion of Indigenous issues and policy in Australia generates argumentative forms of discussion where attack, criticism, opposition or demonisation tends to comprise the public discourse. More often this leads to polarisation in public opinion creating barriers to solving issues and problems. It also creates opposition to longer term aspirations of Indigenous self-determination. 45

At a societal level, some writers note that the breakdown of relationships and communication in Western society occurs because people listen to others through the screen of their own thoughts and prejudices which results in people not being able to cooperate or work together (Bohm, 1996: 2-4; Tannen, 1998: 24-25; Yankelovich, 1999: 19-31). This breakdown of relationships stems from a number of causes, including the adversarial nature of a society where people advocate and defend their interests, beliefs and ideas, and fail to listen to others. Finding common understanding in these circumstances is difficult (Isaacs, 1999: 17-18).

In Western society, argument – including attack, criticism and opposition – is the predominant way of challenging or responding to people or ideas. Argument prevents understanding, because people identify weaknesses in logic, deny facts, filter information and, in the extreme, misrepresent and even lie to win their case (Tannen, 1998: 9-11). Confrontation does not lead to the truth (Tannen, 1998: 10). Further, by emphasising the need for evidence and reasons to support claims, the argument model can devalue other forms of knowledge, experience or reasons as fallacious or anecdotal (Hyde & Bineham, 2000: 211).

The ‘culture of argument’ is a barrier to solving problems because an adversarial frame of mind assumes that there are only two sides to every issue (Tannen, 1998: 3-4, 7-8). While debate can be constructive, it can also polarise views and opinions creating winners and losers in public discourse and fails to consider that there are more than two sides to every question (Hyde & Bineham, 2000: 209-210). Polarisation encourages demonisation of the other side, prevents exploration of alternative views and can obscure solutions to problems (Tannen, 1998: 21). In the competition of reason one position will emerge as the more acceptable (Hyde & Bineham, 2000: 208-210).

Societal or public discussion about Indigenous issues has not been constructive in Australia because of significant differences in culture and understanding between mainstream Australians and Indigenous peoples, and because of the ingrained societal practice of denigrating and racialising Indigenous people. Many Australians perceive and understand Indigenous people through the tacit knowledge that has accumulated over the centuries. This consists largely of negative assumptions about Indigenous

46 people. These assumptions contribute to the negative feelings and attitudes of Australians towards Indigenous people. They create barriers to genuine dialogue.

Assumptions about Indigenous people arise during public discussion on Indigenous issues in Australia. Public or societal discussions about Indigenous issues generally influence public policy deliberative processes. While public deliberation is not the focus of my thesis it intersects with dialogue and is relevant to discussing Indigenous political and social issues in Australia. Indigenous people lack power and authority to influence public discussion and the deliberative process can ignore Indigenous participation and discredit Indigenous voices. Public deliberation is a process of communication whereby participants advocate and persuade others as to their position or opinion and they also inquire into and explore the reasoning and opinion of others (Escobar, 2011: 34-35).

When governments make decisions about important public policy issues the norms of democracy provide an opportunity for citizens to ‘… engage in a rational discussion on political issues, presenting options and seeking a consensus on what is to be done’ (Wheatley, 2003: 508-510). This collective process of deliberation and decision making is referred to as deliberative democracy or public deliberation. It enables real participation in the political system through giving voice, agency, power and opportunities to people to have a say and make a difference (McCoy & Scully, 2002: 118). However in Australia public discussions and deliberation around Indigenous political and social issues are often polarising debates rather than processes of dialogue or considered deliberation.

Issues in regard to the rights of Indigenous people have been exploited and manipulated by governments and politicians to demonise Indigenous people, discredit the Indigenous rights agenda and to galvanise public support for their politics (Dodson, 2008: 4). According to Behrendt, Indigenous communities and people are presented as problems:

“… the public debate is often about us, but not with us. It is often about what is best for us, but not what we think we need. And these public debates often reveal much more about non-Aboriginal people 47

than they reveal or assist Aboriginal people themselves” (Behrendt, 2007: 48).

The relationship between Indigenous people and other Australians is complicated by feelings of guilt, anger, resentment and denial. There are also differences in social representations and social values and a significant inequality in power, privilege and authority. This affects how public discussion and deliberation play out in regards to Indigenous issues. For example it is argued that fear of loss of white lifestyle and privilege is still part of Australian culture (Hage, 2002: 418-422). Further it is argued that collective guilt in regards to colonisation and dispossession of Indigenous people arouses an angry and defensive reaction including the denial of responsibility rather than sympathy or remorse (Williams, 2000). Indeed political leaders in Australia respond with resentment, fear and anxiety in which blaming becomes a projective defence and this includes blaming Indigenous people and their culture for their continuing disadvantage (Williams, 2000).

There is very limited understanding about Indigenous people and their history amongst the Australian population (Mellor & Bretherton, 2003). This reflects a lack of awareness or self-reflection on the part of Australians in regards to history and the ongoing relationship with Indigenous people. Indigenous issues rate poorly in the identification of significant events in Australian history by non-Indigenous Australians and there is minimal recognition that colonisation of the country signified dispossession of Indigenous people (Mellor & Bretherton, 2003: 49-50). Clearly, Indigenous and non-Indigenous people have different social memories, and, as a result, there is a major difference in perspectives on the past (Mellor & Bretherton, 2003: 51-53).

Indigenous anger, grounded in experiences of being dominated, excluded and denied redress, fuels claims for justice and restitution and in return, the dominant majority, frame their anger as a denial of Indigenous rights claims including a denial of responsibility for the past (Lane West-Newman, 2004: 190-191). In that regard the relationship has become stuck in a cycle of claim and counter claim and the contested nature of public deliberation around Indigenous issues reinforces the conflict. Public

48 deliberation has limits because it is often equated with public debate where the best considered argument triumphs (Escobar, 2011:38). Further the emphasis on rational argument through providing and defending reasons silences or devalues other ways in which people communicate meaningfully (Bonham, Citrin, Modell et al, 2009: 332). Public deliberation suits the dominant culture because the opinions, interests and preferences of minority groups including Indigenous people are not represented in formal institutions of decision making such as parliament (Wheatley, 2003: 514).

However, public deliberation can be enhanced through dialogue by merging the deliberation process with a dialogic process. A dialogue and deliberation process first involves an open conversation to explore public reasons free from the urgency of selling or defending positions as employed in deliberation and decision making (Escobar, 2011: 42-43). In the public deliberation process, dialogue brings the benefits of ‘… constructive communication, the dispelling of stereotypes, honesty in relaying ideas and the intention to listen and understand the other’ whereas deliberation brings ‘… the use of critical thinking and reasoned argument as a way for citizens to make decisions on public policy’ (McCoy & Scully, 2002: 117). Tully argues that conflict between Indigenous people and the state over Indigenous claims for recognition can be resolved through dialogue and deliberation with those engaged in the struggle rather than by the decisions of courts or policy makers (Tully, 2004: 93-94). I discuss dialogue and struggle over recognition in a forthcoming section of this chapter.

The dialogic process should provide the opportunity for Australians to reflect and become much more aware of their underlying assumptions in regards to the historical relationship between Indigenous people and other Australians. The deliberative process would involve dialogue and negotiation in regards to how Indigenous and other Australians move forward in building a renewed relationship. However open public discussions to examine historical truths will be contentious as well as unproductive and unsafe for Indigenous people. A safer and respectful public discussion free from racism, self-interest, coercion and manipulation could be conducted through a ‘facilitated group dialogue’ where the group act as a microcosm of the larger Australian society and a vehicle for change at the societal level. The dialogue could discuss the repudiation of historical assumptions about Indigenous 49 people and discuss what a just relationship between Indigenous peoples and other Australians might look like. This should include issues of Indigenous disadvantage and inequality in the broader social and historical context. Insights and ideas from the dialogue could be fed into discussion and decision making of the larger social systems and the national policy and political culture.

This type of dialogue where a smaller group acts as a microcosm of the larger society has been used in various countries to address difficult social challenges (Kahane, 2010 & 2004). For example the Mont Fleur scenario dialogue of 1991-92 was one such forum. Aimed at assisting the South African opposition at the time to develop its strategy for a democratic country it influenced the thinking of the African National Congress, other left wing parties and the white minority de Klerk Government (Kahane 2004: 29-30). In the Republic of Ireland, the Glencree Centre for Reconciliation organised a dialogue process to increase intergroup understanding during the Northern Ireland Peace Process. The primary purpose of the dialogue was intergroup understanding and relationship building (Corry, 2012: 55). The emphasis of the workshops was not on problem solving, interpersonal healing, negotiation, mediation or agreement but on dialogue to increase intergroup understanding and build interpersonal political relationships to breathe oxygen into the political process (Corry, 2012: 55, 76).

Another example of small group dialogue where ideas and insights were fed into the broader society occurred in Canada in June 1991. A group of 12 citizens including one Aboriginal Canadian met to discuss a vision for Canada. Macleans, a leading newsweekly, sponsored the dialogue. The event was recorded for a television program and reporters and editors were also present to write stories about the discussion as it unfolded. The dialogue used a conflict resolution method, which identifies and analyses problems and puts forward solutions in the form of a plan of action (The People’s Verdict: How Canadians can agree on their future, July 1991). Building on this experience, a facilitated group dialogue could also be televised and reported in Australian media to engage citizens on a mass scale. Yankelovich states that television can achieve interactivity with viewers because viewers identify with television performers who express values and feelings comparable to their own. This involves 50 conducting a ‘proxy dialogue’ with a group of people on television with whom viewers can identify with (Yankelovich, 1999: 159-168).

One of the primary challenges to engaging on a public societal scale is the absence of a container in which people collectively engage, build relationships and find common ground. The quality of the dialogue is contingent on personal interaction amongst people. Therefore without a container to hold the public conversation and create the conditions necessary for building relationships the conversation can deteriorate into a polarising debate. But a free flowing open ended public conversation can happen if only to explore and understand different perspectives free from making judgements, finding solutions or making decisions. In that regard the public dialogue needs to be respectful allowing people to safely express their views and be open to different perspectives and different ways of communicating. People in dialogue need to listen thoughtfully and attentively, suspend their assumptions, not rush to judgement and collaborate with others to find common ground and explore differences (Escobar, 2011: 22-29).

Clearly though the dialogue needs to move towards a deliberative phase to resolve outstanding issues leading to deliberation and negotiation with Indigenous people. The dialogue and deliberation must embrace and recognise plurality and diversity.14 It should be bound by the principles of non-domination (no coercion of participants in a dialogue situation), political equality (opportunities to participate in debate and decision making) and revisability (decisions and compromises can be revised at a later point) (Deveaux, 2003).

Wicked problems and wicked relationships In addition to the limitations imposed by the ‘culture of argument’ Indigenous policy making has the characteristics of a ‘wicked problem’ because it is unable to deal with complex multi-dimensional problems of Indigenous disadvantage and the difficult political issues around Indigenous self-determination.

14 Pluralism encompasses the different values and beliefs of people but values can pose a challenge to deliberative democracy because they are not always reconcilable to common political values (Cinalli & O’Flynn, 2014: 82-83). Diversity encompasses principles of multiculturalism or ‘cultural pluralism’ recognizing and accommodating cultural diversity in the national identity and acknowledging the historic injustice of former policies of assimilation and exclusion (Kymlicka, 2003: 150). 51

Rittel and Webber outline ten distinguishing features of wicked problems, namely:

 they are difficult to define  there is no definite solution  there is no true or false answer but they can be judged as good or bad  there is no immediate or ultimate test of a solution  a solution is a one shot operation as there is no opportunity for trial and error  there is no clear set of potential solutions  wicked problems are unique and cannot be developed to fit all members of a class  every wicked problem can be considered a symptom of another problem  wicked problems can be explained in numerous ways,  there is no public tolerance of initiatives that fail (Rittel & Webber, 1973).

Indigenous policy in Australia has all of these characteristics. Indigenous disadvantage is complex, open-ended, and intractable and both the nature of the ‘problem’ and the preferred ‘solution’ are strongly contested (Head, 2008: 101). Mainstream Australia and Indigenous people have different perspectives on the problem and the problems change over time. Imposed solutions are unlikely to produce real solutions and there won’t be a complete resolution because some solutions are inconsistent with Indigenous cultural maintenance (Hunter, 2007: 37).

According to Roberts wicked problems can be dealt with by competitive, authoritative and collaborative strategies. In a competitive strategy, the different parties compete against each other with the winner claiming the right to impose their preferred solution. An authoritative strategy turns the wicked problem over to an authority or expert who has the power to frame the problem and choose the preferred solution. A collaborative strategy seeks to bring all stakeholders together to jointly define the problem and seek a preferred way of dealing with it (Roberts, 2002: 10). Australian government approaches to Indigenous ‘wicked problems’ are largely authoritative and competitive where government imposes a command and control approach that ignores Indigenous voices and perspectives or is not receptive to an Indigenous contrary view. 52

The wickedness is not just about a clash of ideas and values but is implicit in structures, processes and institutional arrangements that give rise to power, authority, and procedural rules (Head, 2008: 104). Therefore the intractable conflict between Indigenous people and governments is ingrained in the historical, political and institutional relationship. Politicians, public sector bureaucrats and other ‘experts’ drive Indigenous policy and determine solutions. But they primarily determine solutions through the values, interests and ideology of government and/or the dominant society, overlooking or ignoring the rights, values, perspectives and lived experience of Indigenous people.

It is difficult to solve intractable social problems if the underlying relationship between Indigenous people and governments is itself a ‘wicked problem’. In the relationship, Indigenous people are subordinated in the very process of policy making and problem solving. There is a notable lack of formal dialogue in the relationship because there is no national policy framework based on partnership between Indigenous people and the Australian nation state (Dodson, 2008). Government approaches to Indigenous policy fail to consider how institutions of government subordinate Indigenous peoples as a result of ongoing historical relationships that are grounded in paternalism, dominance and even racism.

The closing down of services, forced eviction of residents, and closure of the Oombulgarri community in the East Kimberley region of Western Australia in 2011 and the eventual bulldozing of community infrastructure in 2014 exemplifies how Australian law and policy subordinates and fails Aboriginal people. Residents of Oombulgarri have spoken of a lack of consultation, a rushed government process and a lack of consent on their behalf (Amnesty International, 2014; Solonec, 2014). The Western Australian Government evicted the residents and closed Oombulgarri on the basis that the community was unviable. However to forcibly evict people from their traditional lands and assimilate them into white townships is much more ‘unviable’ (Solonec, 2014) because it will only compound the trauma, poverty and disadvantage of Aboriginal people.

53

The Government also threatened to shut down services to another 150 small and remote Aboriginal townships as a result of the Commonwealth Government devolving responsibility for municipal and essential services to the State. The Western Australian Government says these communities are unviable and dangerous because of suicide, poor health and abuse and neglect of children (Davidson, 2014). There was Indigenous anger and offense when the Premier of Western Australia linked the possible closure of the communities to child sexual abuse (Colin Barnett links closure of remote Aboriginal communities to child abuse, March 2015). This anger and offence was compounded when Prime Minister Tony Abbott said the Government could not ‘endlessly subsidise lifestyle choices’ (Medhora, 2015).

The Western Australian Government had not sought any consultation with Aboriginal communities or representative organisations in relation to their community closure policy and only promised formal consultation after nation-wide protests and condemnation from the United Nations (Wahlquist, 2015a & 2015b). On the basis of what happened in Western Australia in regards to the closure of Oombulgarri community and the proposed closure of other Aboriginal communities, it is clear that the government still subordinates Aboriginal people through authoritarian and competitive methods. It is also clear from the Western Australian Government’s actions that the relationship between government and Aboriginal people is a wicked problem reflecting a deep historical relationship of disrespect.

An alternative approach is to find solutions through dialogue and collaborative strategies where stakeholders listen to and learn from each other and begin to appreciate and accommodate each other’s opinions viewing those differences as an opportunity to learn more about the problem and its potential solutions (Head, 2008: 105-106; Roberts, 2002: 10-11). However, to tackle intractable problems, the dialogue must be characterised by the principles of inclusiveness, joint ownership, learning, humanity, and a long-term perspective (Pruitt & Thomas, 2007: 26-32) and also take into consideration the desire of Aboriginal people for cultural and political recognition (Tully, 2004).

54

The dialogue must also be complemented by other strategies including research, social analysis, consensus building, dissemination of knowledge, collaboration among stakeholders, ongoing consultation processes, innovation, strategic thinking, organisational learning and cultural change, and far sighted political leadership (Head, 2008: 114-115). Many of these strategies and principles appeared to be lacking in the way the Western Australian Government approached community closure.

Post-colonial dialogue in Australia Indigenous people in Australia are not recognised as a distinct source of political authority and in that regard have no recognised constitutional status. As a result there is no constitutionally recognised framework for cross cultural engagement with governments. On that basis there is no obligation on governments to recognise or engage in respectful way with Indigenous people. The intractable problem as evidenced by the Western Australian Government’s approach discussed above exemplifies how colonial approaches are still implicit in the way governments treat Indigenous people. But finding alternate collaborative strategies to solve problems in Indigenous affairs is not enough because there is also a need for substantial transformation of the relationship between Indigenous people and governments so that Indigenous people can engage equally, formally and cross culturally with governments.

A limited range of formats exist in Australia to discuss and resolve Indigenous claims and grievances.15 The limited formats emphasise the need for dialogue as a post- colonial or decolonising approach to the relations between Indigenous peoples and settler states. Although his focus is North America, Tully sets out a conception of post- colonial dialogue between Aboriginal people and settler or nation states that could have application in Australia. He argues that a constitutional dialogue can recognise and accommodate the cultural difference of Aboriginal peoples (Tully, 1995). Such a dialogue would involve an ongoing intercultural conversation between Aboriginal and non-Aboriginal people over time. It would not be a once and for all agreement nor frozen in a constitutional document:

15 I highlight these limited formats in the case studies in chapters 4, 5, 6, 7 and 9. 55

“Dialogue is the form of human relationship in which mutual understanding and agreement can be reached and, hence, consent can replace coercion and confrontation. Between Aboriginal and non- Aboriginal people, it is an intercultural dialogue in which the partners aim to reach mutual understanding and uncoerced agreements by contextually appropriate forms of negotiation and reciprocal questioning on how they should cooperate and review their relations of cooperation over time. Specific types of relations are agreed to, written down as treaties, put into practice, reviewed and renewed” (Tully, 2008: 239).

In Australia existing methods for resolving problems in Indigenous policy and in the government-Indigenous relationship have failed to transform the way in which governments interact with and respond to Indigenous claims and grievances. For example the government initiated formal reconciliation process in Australia (1991- 2000), established to promote reconciliation between Indigenous people and the wider Australian community, was criticised for not confronting the difficult issues important to Indigenous people and for failing to advance a new form of engagement and relationship between Indigenous and other Australians (Gunstone, 2007: 132- 166). Australian reconciliation focussed on social justice that did not correspond to the desires of Indigenous people for a broader decolonising approach to justice (Short, 2008: 178). Australia’s lack of genuine interest in addressing the impact of colonialism on Indigenous people meant that issues of Indigenous nationhood and sovereignty were ignored or dismissed (Short, 2008: 180).

There are no norms, conventions or practices in Australia that recognise, respect or are inclusive of Indigenous voices, perspectives and authority in constitutional and political matters. This demonstrates a need to transform the existing relationship between Indigenous people and governments because it subordinates the role and position of Indigenous people in the Australian state. Indigenous people have a genuine stake in political and constitutional matters because the legitimacy of Australian sovereignty is contingent upon Indigenous consent. Australians have yet to complete the step of

56 gaining the consent of Indigenous people to legitimise the sovereignty of the Australian Crown (Tully, 1998: 157).

But to move from a relationship that subordinates Indigenous people to a relationship where Indigenous people are recognised, respected and have authority it is necessary to change the cultural and political beliefs and values that Australians have inherited from their colonial past. It also involves creating new norms and practices in Indigenous policy. Dialogue can change the political and cultural background that influences systems and society. But in Australia this means having difficult conversations that examine deeply held opinions and assumptions and by extension this requires an examination of Australian social identity, societal beliefs and values.

The dialogue should begin as an open ended conversation not only directed at examining underlying assumptions but also discussing the intractable problems of Indigenous disadvantage and decolonising the relationship between Indigenous people, governments and the wider population.

Dialogue and struggles over recognition There has never been a culture or practice of genuine dialogue in regards to Indigenous claims for land and recognition of cultural and political rights in Australia. I demonstrate this in the case studies which I discuss in this thesis. The case studies reveal that the Indigenous struggle for recognition over the course of history has been ignored, undermined, denied or reinterpreted to accord with the limits of national tolerance in Australia. Tully states that ‘struggles over recognition’ occur when individuals or groups in society contest the laws, rules, conventions or customs (norms) of the system of government which prevail over them and which encompass the way in which humans recognise and interact with each other. In a narrow sense they are struggles over cultural, ethnic, linguistic and religious modes of recognition, however in a broad sense they encompass any type of struggle against the prevailing norms of recognition and their effects on the way power and resources are distributed and redistributed (Tully, 2004: 86-87).

Norms of mutual recognition (laws, rules, conventions and customs) are a feature of any rules-based system; not just in formal political systems but also other systems of 57 action coordination such as organisations, bureaucracy, corporations, human rights regimes and so on (Tully, 2004: 88). Tully argues there are various reasons why individuals or groups may challenge the prevailing norms of recognition, however for Indigenous people it may relate to a failure to recognise or an attempt to assimilate them. A struggle against these norms may take on various forms such as negotiation, resistance, grievance and dispute resolution, constitutional negotiations, campaigns of civil disobedience, courts and referenda, or armed struggle (Tully, 2004: 89).

Indigenous claims for recognition of their cultural identity, ways and customs, ownership of land and its resources, and of their cultural knowledge directly challenge the norms of government and settler society because they constitute claims to be recognised as distinct ‘peoples’ with rights of self-determination based on prior occupancy and sovereignty (Tully, 2004: 94). These Indigenous claims for recognition have been dealt with by theorists, courts and policy makers within a liberal and nationalist approach where they have attempted to find solutions by reconciling the legitimacy of minority recognition with the freedom and equality of individuals and national uniformity (Tully, 2004: 90).

However, the liberal and nationalist approach, as stated by Tully, increases rather than resolves conflict. Two of the most problematic issues with this approach are the imposition of solutions from courts, theorists and policy makers and the assumption that there are ‘definitive and final solutions’ to struggles over recognition (Tully, 2004: 91). Tully argues that we need to transform the way in which we think about conflicts over recognition and this entails resolving conflict by inclusive dialogue among those who are subject to the contested norm of mutual recognition, not by monological solutions handed down from above. Such an approach accords with the democratic practice of civic participation, allowing people to have a say over the formulation of the norms of mutual recognition through free and open dialogical exchange of reasons and deliberation (Tully, 2004: 91-93).

Therefore the primary aim of dialogue should not be the search for definitive and final procedures and solutions, but to allow a ‘dialogical civic freedom’ through participation in the practices and institutions of society:

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“… to ensure that those subject to and affected by any system of governance are always free to call its prevailing norms of recognition and action and coordination into question, to present reasons for and against modifying it, to enter into dialogue with those who govern and who have a duty to listen and respond, to be able to challenge the prevailing procedures of negotiation in the course of discussions, to reach or fail to reach an imperfect agreement to amend (or overthrow) the norm in question, to implement the amendment; and then to ensure that the implementation is open to review and possible renegotiation in the future” (Tully, 2004: 99).

Tully argues that ‘dialogical civic freedom’ involves not only a right or freedom to speak out against oppressive, exclusionary or assimilative norms of mutual recognition but a corresponding duty on the part of the powerful to listen and respond in an open dialogue (Tully, 2004: 99). Tully, however, cautions against dialogue being elevated as a solution to all problems because theorists, courts and policy makers still have a counter-balancing role to play. The deliberations of citizens cannot become the unquestioned source and standard of justice as they are fraught with imperfections, injustices and disagreements. Minorities have limited power over the decisions of the powerful groups; at the end of the dialogue they need to be able to appeal to other decision making institutions (such as courts, parliament, international human rights bodies, non-partisan adjudicators or mediators, and global networks) who can provide checks and balances on the powers of the dominant group to manipulate the dialogue and manufacture agreement (Tully, 2004: 101).

Constitutionalism and recognition In his book ‘Strange multiplicity: Constitutionalism in an age of diversity’, Tully discusses the failure of modern constitutional nation states to accord recognition to various groups particularly Indigenous people because their claims for freedom and autonomy have been denied or suppressed by the structure, practices, language and traditions of the nation state. The language and terms of modern constitutionalism has served to justify European imperialism, including the dispossession of Aboriginal

59 nations of their territory and sovereignty.16 Recognition of cultural diversity is problematic for modern constitutionalism because it demands cultural uniformity as well as uniformity in legal and political institutions (Tully, 1995). Therefore Indigenous people who live within established nation states are subject to the traditions of modern constitutionalism, and in Australia that tradition is liberalism. When Aboriginal people make claims for recognition as peoples and nations with sovereignty or rights of self-determination, their claims are constrained by the prevailing language of constitutionalism and are adjudicated and tested by criteria and traditions of interpretation set by modern constitutionalism (Tully, 1995: 39).

Tully maintains that the language and traditions of modern constitutionalism are held in place by customary language, the normal activities of modern constitutional society and the legal and political structures of a constitutional state. In that respect the language, activities and structures of the nation state have worked to keep Aboriginal claims of recognition out of public discussion by discrediting the claim or silencing the claimants (Tully, 1995: 40-41). However the customary uses and criteria of modern constitutionalism are not fixed and unquestioned norms but are open to change and have been changing to recognise and accommodate cultural diversity. In that regard, constitutionalism has been shaped in various ways by intercultural encounters and it is through these cultural interactions and the recognition of cultural diversity that hidden rules and language of modern constitutionalism have emerged. Tully calls these hidden rules and language the ‘hidden constitutions of contemporary societies’ (Tully, 1995: 99). The ‘hidden constitutions’ are forgotten, ignored or misinterpreted common intercultural conventions which facilitate cultural recognition and which can be

16 Modern constitutionalism is associated with the rise and formation of the modern nation state, its institutions and mechanisms beginning in the 16th and 17th Century through to the 19th Century in Europe and which is distinct to the political philosophy of Liberalism (Butle Ritchie, 2004). Constitutionalism imposes limits on government power by a constitutional framework but it also requires a tradition to uphold the constitution and an adherence to the rule of law and protection of fundamental rights (Maddox, 2005: 62-64; Rosenfeld, 1993: 497). While modern constitutionalism is based on popular sovereignty, national identity, uniformity of political and legal authority including institutions of representative government, separation of power, the rule of law, individual liberty, it rests on the stages theory of human social and economic development in that constitutional nation states are considered the highest and most developed form of society in comparison to ‘ancient’ constitutions or ‘savage’ societies (Tully, 1995: 62-70). 60 reconstructed to change the vision of a constitution or resolve an impasse (Tully, 1995: 57).

Hidden constitutions are found in the writings and constitutional arrangements of the agents of justice who have sought to recognise minority groups or Indigenous cultures. They are also found in applications of constitutional law in particular cases and in the common law of Commonwealth countries and in international law (Tully, 1995: 100). Three ‘hidden conventions’ of constitutionalism are identified by Tully and which derive from the interactions between the Aboriginal and European systems of law in North America and Canada as a result of constitutional negotiations. They are: mutual recognition (the recognition of Aboriginal nations as independent and self-governing nations in constitutional negotiations); continuity (the cultural identities of Aboriginal nations as equal and sovereign nations continues through all treaty arrangements over time) and consent (Aboriginal consent is required by the Crown through a process of negotiation to acquire land and establish European sovereignty). These conventions are an authoritative part of the intercultural common ground between Aboriginal peoples and Europeans in the course of constitutional practice in North America and Canada (Tully, 1995: 116, 119-124).

Criticisms of the politics of recognition and the conventions of ‘consent’ and ‘mutual recognition’ espoused by Tully suggest that notions of dialogue with Indigenous people are much more complex because of the political, social and economic power imbalance that exists between Indigenous and non-Indigenous peoples. Recognition is realised through social dialogue where there is a genuine attempt at understanding and valuing the other on their own terms and also reflecting on one’s own assumptions and understanding of the other in order to develop a language of understanding and a ‘shared horizon’ (Schaap, 2004: 527-530). However recognition is also predicated on the relation of dominant-subordinate, hence recognition is distorted by the deployment of power thus entrenching a relationship of conflict and hostility (Schaap, 2004: 530-533). Coulthard, takes up this point and challenges the idea that the politics of recognition can significantly transform colonial relations between Indigenous peoples and the state because, in its contemporary form, it reproduces the very configuration of colonial power that Indigenous peoples have 61 historically sought to transcend (Coulthard, 2007: 438-439). While he concedes that recognition and accommodation of cultural distinctiveness is a marked improvement on past policies of exclusion, genocide and assimilation, Coulthard argues that there is no significant transcendence of power in the colonial relationship because recognition is something that is granted or accorded to Indigenous people who are in a subordinate relationship with a settler state (Coulthard, 2007: 442-443). Coulthard concludes that Indigenous peoples must find the source of liberation in their own transformative praxis through some form of Indigenous self-recognition not only in their struggle against colonialism but also to teach the western world about relationships that are profoundly non-imperialist (Coulthard, 2007: 456). Coulthard’s criticisms echo the situation in Australia as the incremental recognition of Indigenous claims throughout history has not transformed the colonial relationship. Therefore it is necessary for Indigenous people in Australia to develop their own practices for empowerment and liberation.

Lange also criticises the conventions of ‘consent’ and ‘mutual recognition’ on the basis that they reproduce the unequal position of power of Indigenous people with regard to settler colonial states. She concedes that ‘consent’ and ‘mutual recognition’ are useful ethical concepts however to address power imbalances there must be some acknowledgment of power difference and an examination of historical truths as a component of dialogue in order to give greater moral traction to the claims of Indigenous peoples in settler societies. Lange argues that dialogue for Indigenous people is about opening up practical and political possibilities in regards to the unmet expectations of Indigenous people in the processes of transitional justice, such as apology, reparations and new kinds of actions by the dominant powers in the future. She argues that a much more realistic condition of Indigenous and non-Indigenous dialogue is the freedom for Indigenous people to be able to re-assert a history of injustice and unfulfilled promises without any closure. This would render the dialogue ongoing and open ended (Lange, 2013: 364-369). The examination of historical truths in dialogue and the need for dialogue to open up practical and political possibilities for Indigenous people are essential for post-colonial dialogue in Australia. However

62 consent and mutual recognition are also necessary in Australia even though they have been an aspect of constitutional practice in North America.

Tully contends that Indigenous consent is reflected in North American treaties and this demonstrates that the British Crown did not always accept the historical theories and philosophies which deemed Indigenous consent unnecessary in the colonisation process because Indigenous societies were not considered sufficiently developed to acquire rights in land or sovereignty. Tully also refutes historical arguments that Indigenous societies in North America would eventually consent to the superiority of European institutions and embrace Western modernity as a necessary condition for their own development. He argues that Indigenous people have demanded the right to govern themselves and their territories and in that regard have refused to acquiesce or assent to the modern nation states imposed on them in either colonial or decolonised form (Tully, 2010: 237-240).

Tully recognises that modern practices of consent through negotiation do reproduce the colonisation of Indigenous people rather than initiate processes of decolonisation because in the negotiation Indigenous people are subordinated by the hegemony of Western institutions. Hegemony in the relationship between Indigenous peoples and Western governments is difficult to confront in practice because it is so deeply woven into the thoughts and action of non-Indigenous peoples in the form of Western attitudes of superiority and belief of superior civilisation; and Indigenous peoples in the form of attitudes of inferiority and ambivalence, or alienation of their own institutions or beliefs. Further it is difficult for Indigenous people to confront hegemony in contemporary forms of negotiation and consultation because they are so focussed on the pressing needs of the ‘here and now’ (Tully, 2010; 242-245). In that respect hegemony does frame the negotiations through the customs of the dominant partner and negotiations do take place within and through the legal, political and economic institutions that have been imposed on Indigenous people without their consent. Further the negotiations take place within the theses of ‘modernity’.17 By

17 ‘…that western institutions embody the just form of organisation for all humanity (the normative thesis) and that Western processes of development, modernisation and free trade which are spread 63 entering into negotiations under these conditions Indigenous people do appear to tacitly consent to their acquiescence in the imposed institutions and this is the problem of subordination of one partner and the hegemony of the other (Tully, 2010: 241-242).

In that context Tully suggests a four step approach to move dialogue and negotiation forward. These steps are relevant to Indigenous people. Firstly, treaty negotiations should not be rejected because of the unequal situation. All treaty negotiations begin under conditions of hegemony and subordination therefore the aim of negotiations is to change the unequal circumstances (Tully, 2010: 246-247). Secondly, ‘negotiation’ is not just between two partners in an official process with a fixed structure of conditions. Negotiations take place within the broader field and practice of consent and dissent where multiple actors contribute in shaping the course of the negotiations. Also treaty negotiations can be ongoing open-ended relationships that are continually modified by consent, agreement and negotiation and renegotiation (Tully, 2010: 247- 249). Thirdly, the ‘modernity thesis’ that there is a set of necessary and inevitable causal processes of modernisation or globalisation that organises the interactions of individuals and groups should be rejected. There are movements around the world demanding diverse forms of political organisation and legal pluralism that do not conform to these modernisation theses (Tully, 2010: 249-250). Lastly, the dialogue and negotiation should be grounded in the alternative world one wants to defend and advance through negotiation. The resilience, survival, demographic growth and renaissance of traditional customs and ways can provide the ground work for an alternative vision of the world. Therefore strength in negotiation is grounded in the way of life that is being defended and also in creating new community networks and partnerships with non-Indigenous people (Tully, 2010: 250-251).

A dialogue for change One example of an attempt at post-colonial dialogue is the Canadian Royal Commission on Aboriginal Peoples (1991-1996) which set out a vision of a new

around the world by imperial expansion bring western institutions into being (the causal thesis)’ (Tully, 2010: 239). 64 relationship between Aboriginal and non-Aboriginal people in that country.18 The Royal Commission investigated the evolution of the relationship among Aboriginal peoples (Indian, Inuit and Métis), the Canadian Government and Canadian society and the problems that plagued those relationships and that confront Aboriginal peoples (Dussault, Erasmus, Chartrand et al, 1996). The report proposed a restructuring of the relationship between Aboriginal and non-Aboriginal people in Canada.

The Royal Commission was established in response to demands by Aboriginal peoples to dismantle the current colonial relationship administered through the Indian Act and to establish a new relationship that is not only just but is able to provide workable solutions to the chronic social and economic problems faced by Aboriginal people. The vision of a new relationship came from Aboriginal people through a dialogic process of consultation and discussion. The Royal Commission met for five years, conducting over 178 days of public hearings, visiting 96 Aboriginal communities, commissioned over 1200 specialised studies and discussed problems and solutions with Canadians. The vision of a new relationship was tested and redrafted through lengthy discussions with non-Aboriginal Canadians with expertise in areas of law, government, management, health, business, education, economics, forestry, fisheries and the environment. The final draft gained wide consensus from Aboriginal and non-Aboriginal discussants (Tully, 1998: 146-147).

René Dussault, one of the co-chairs of the Royal Commission said it became apparent that to achieve change in many communities or in the relationships between Aboriginal and non-Aboriginal people in Canada, it was not sufficient just to tinker with government regulations, programs and policies, or the laws. What was needed was a report that would be a source of inspiration and provide a road map for change; a guide to begin on a new footing of mutual recognition, respect, sharing and mutual responsibility. The report had to integrate Aboriginal and non-Aboriginal perspectives and include ‘honourable compromises’ in achieving a vision for reconciliation. The Commissioners had to develop a broader vision of the sources of law to include treaties and customary law and a broader vision of the Constitution to enable

18 James Tully worked as advisor to the Canadian Royal Commission on Aboriginal Peoples. 65

Aboriginal people to exercise their autonomy. With regard to land, resources and the economy, the vision had to foster reciprocity and sharing and in regards to socio- cultural matters the vision had to stress the interconnection of all things and foster the protection of Aboriginal identity, languages, cultures and ways of life (Dussault, 2007: 93-94).

The Royal Commission concluded that the primary cause of social and economic crisis facing Aboriginal people was the colonial relationship imposed on them by the Canadian Government through the Indian Act. The relationship is more than 150 years old and since the mid-nineteenth century its aim was to displace Aboriginal people from their traditional lands and assimilate them into Canadian society. Its effect has been to marginalise Aboriginal people and create a system of welfare dependency, alienation and frustration. The Commissioners argued that for Aboriginal people to free themselves from this destructive relationship they first need to replace the ruinous paternalism of the Canadian Government with control over their own lives. Second, they need their own land, resources and governments to reconstruct their society, economic and political order. Finally they need time, space and respect from non-Aboriginal Canadians to heal their spirit and revitalise their culture (Tully, 1998: 147-148).

The Royal Commission focussed on striving for a renewed relationship based, firstly on the recognition of Aboriginal people as ‘peoples’, ‘nations’ or ‘first nations’ that are not subordinate to federal or provincial governments but are coordinate with them. It is a unique (sui generis) relationship because Aboriginal peoples are not some sort of multicultural group or minority within Canadian society. Secondly, Aboriginal people are self-governing in that they have the inherent right and capacity to govern themselves in accordance with their own laws and cultures. They also possess native title, a right to land and resources to render themselves economically self-reliant and to finance their development. Thirdly, the First Nations coexist through all interrelations with the provincial and federal governments. Even if they agree to share or leave many of their powers in the hands of provincial and federal governments, their inherent right to govern themselves continues to co-exist. This principle of continuity or coexistence nullifies the doctrine of terra nullius (that they have no rights 66 of self-government over their territories) and it also nullifies the doctrine of extinguishment (that their status as self-governing first peoples could be extinguished by acts of the federal government) (Tully, 1998: 148-150).

According to the Royal Commission the new relationship should be built upon the principles of mutual recognition, mutual respect, sharing and mutual responsibility. The Royal Commission saw mutual recognition as non-Aboriginal and Aboriginal Canadians recognising and accepting each other as being part of Canada: Aboriginal people being recognised as the original inhabitants and caretakers of the land with distinctive rights and responsibilities flowing from that status; and non-Aboriginal people recognised as being part of the land by birth and adoption having strong ties of affection and loyalty (Dussault, Erasmus, Chartrand et al, 1996: 645-648).

The Royal Commission recognised the importance of respect between cultures for harmonious relations, however, public attitudes of respect require an examination of the make-up, practices and symbols of public institutions to ensure they embody the basic consideration and esteem that are owed to Aboriginal and non-Aboriginal languages and culture (Dussault, Erasmus, Chartrand et al, 1996: 649-651). Sharing and reciprocity are also important components and can be built into a renewed relationship by recognising each other’s rights and respecting each other’s cultures and institutions, recognising unacknowledged histories, ensuring the return of land to Aboriginal people, addressing poverty and dependence, and enhancing people’s capacity to contribute (Dussault, Erasmus, Chartrand et al, 1996: 651-655). Finally, mutual responsibility involves the transformation of the colonial relationship of guardian and ward into a true partnership where Aboriginal peoples and Canada also have responsibilities to the land they share (Dussault, Erasmus, Chartrand et al, 1996: 655-657).

In Canada, treaties are the pre-eminent means of creating and acknowledging relationships and are a key illustration of the importance of dialogue in creating and maintaining relationships. The negotiation and renewal of treaties is important for re- establishing and adjusting relationships because relationships among peoples are not static nor are they ‘once and for all’ transactions. They need to be adjusted regularly

67 and explicitly reaffirmed from time to time. Aboriginal and non-Aboriginal people meet, exchange ideas and negotiate the dialogue on an intercultural common ground which already exists as a result of historical interaction and cooperation. The intercultural institutions and practices resulting from this cooperation and interaction provide the starting point for a renewed dialogue (Dussault, Erasmus, Chartrand et al, 1996: 657-660).

In achieving a reconciliation the Royal Commission stressed that reconciliation is a matter of trust and this required that ‘… partners from both sides leave their comfort zone, question long held views, put aside prejudices often inspired by ignorance and fear, and accept the other in his or her difference’. Further it should not be seen as a threat to Canada in reorienting Canadian society toward respect for Aboriginal autonomy and greater participation into mainstream institutions (Dussault, Erasmus, Chartrand et al, 1996: 95-96).

The Canadian Royal Commission on Aboriginal Peoples is an example of a formal dialogical process that could examine issues and generate a way forward for a renewed relationship between Indigenous people and Governments in Australia. Although there were no ringing endorsements or calls from governments for fundamental change of the kind envisaged by the Canadian Royal Commission on Aboriginal Peoples (Chartrand, 2004: 132) the lessons and principles enunciated by the Royal Commission can inform an intercultural dialogue in Australia because Indigenous people have never consented to British-Australian sovereignty or the imposition of a colonial relationship. This demands the negotiation of a new relationship in Australia through constitutionally recognised agreements. The other lesson of the Royal Commission is that it attempted to find solutions to the many problems and issues that originate from the colonial relationship.

Negotiating new relationships In later work Tully expands on the three conventions of constitutionalism - mutual recognition, continuity and consent – discussed in his book ‘Strange multiplicity: Constitutionalism in an age of diversity’ and also the principles identified by the Canadian Royal Commission on Aboriginal Peoples in an examination of how settler

68 states can recognise and accommodate the Indigenous struggle for self-determination in a new relationship of reconciliation. He specifically refers to the situation in Canada, where he argues that Aboriginal people should be recognised as equal, coexisting and self-governing nations, who should be accommodated by the renewal of treaty relationships. According to Tully a just relationship consists of the following five principles: mutual recognition, intercultural negotiation, mutual respect, sharing and mutual responsibility. These principles and/or values are implicit in both Aboriginal and non-Aboriginal cultures of Canada (Tully, 2008: 229).

In negotiating a postcolonial relationship Aboriginal and non-Aboriginal peoples engage in intercultural dialogue of negotiation to work out how they will address past injustices and how they will associate in the future. In this middle ground or cultural interface the partners listen and speak with each other in their ‘own language and customary ways’ and on equal footing in order to reach fair agreement. Non-Aboriginal people do not speak for Aboriginal people either in the ‘imperial monologue of command and obedience’ or by only permitting Aboriginal people to speak in the ‘languages, traditions and institutions of the dominant society’ (Tully, 2008: 239-241).

A fundamental convention of intercultural dialogue is mutual recognition where Aboriginal and non-Aboriginal people recognise and accept each other as equal peoples (equality) who govern themselves and their lands according to their own laws and cultures (self-government) and their governments and culture co-exist and continue through all their relations and interdependencies over time (coexistence). In a coexisting relationship people live side by side governing their own affairs. It is not separation or isolation. Mutual recognition must be affirmed publicly in the institutions and symbols of the nation state (Tully, 2008: 229-232).

Once Aboriginal and non-Aboriginal peoples recognise each other as equals they must show respect for each other, share legal and political power and act responsibly towards each other. To create a positive and supportive climate for harmonious relations a public attitude of mutual cultural respect is required. It includes showing respect to each other in their languages, cultures, laws and government and in their dialogue with each other (Tully, 2008: 242-244).

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In a new post-colonial relationship future prosperity and wellbeing rests on equitable sharing in the future. It includes sharing legal and political power, which involves supporting Aboriginal self-government and returning land and resources unjustly taken for Aboriginal economic self-sufficiency. This also includes recognising and publicly acknowledging the sharing extended by Aboriginal people that have been unacknowledged and unreciprocated throughout history (Tully, 2008: 244-249).

Finally the partners must act responsibly towards each other and to the habitat and environment they share. The notion of responsibility in Aboriginal society involves responsibility to others and to the environment. In non-Aboriginal society a high value is placed on individual responsibility and individual freedom. However there is now a growing awareness that cultural and ecological diversity is a prime responsibility of humans (Tully, 2008: 250-252).

There are no recognised principles or conventions in Australian constitutionalism that can guide the transformation of the colonial relationship between Indigenous and other Australians. On that basis the principles enunciated by the Canadian Royal Commission on Aboriginal Peoples and expanded on by Tully above – mutual recognition, intercultural dialogue, mutual respect, sharing and, mutual responsibility – offer a way to resolve the challenges in the relationship between Indigenous and non- Indigenous peoples in Australia. They are principles of ‘justice, equality, due process and consent’ (Tully, 1998: 157-162) that can guide intercultural dialogue in Australia.

Dialogue in Australia Some form of dialogue is necessary when people have significant differences in perspectives as well as in world view and identity (Isaacs, 1999: 327-328). The relevance of dialogue for Indigenous and non-Indigenous relationship building is that through communication – rather than through manipulation or coercion – dialogue creates the building blocks to enable new insights and collaboration to emerge despite the differences in views. But the challenges for intercultural dialogue in Australia are immense. For a start Indigenous and white Australian truths of colonisation are not the same and there is no socially agreed mode or conventions for Indigenous and non- Indigenous people to explore and resolve ‘unfinished business’ (Lane West-Newman,

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2004: 2002-204). A greater historical awareness and honesty about colonisation and its consequences is required although ‘not to shame-and-blame the colonisers’ (Alford & Muir, 2004: 101-102). Further there is a need to recognise that Indigenous and non- Indigenous Australians have distinct identities, needs and roles to play in Australian society as opposed to focusing on a single national Australian identity as the basis for reconciliation (Subašić & Reynolds, 2009: 261,263).

An important message of the Canadian Royal Commission on Aboriginal Peoples that has relevance in Australia is that change is achieved not by tinkering with government regulations, programs and policies or laws but by creating a road map for change and creating new footings for a renewed relationship. The Royal Commission also argued that Aboriginal people had to free themselves from the paternalism of the state and then reconstruct their society, economic and political order as well as heal their spirit and revitalise their culture. This approach is applicable to the situation in Australia, because like Canada a colonial model of constitutionalism has been imposed on Aboriginal peoples which subordinates Aboriginal authority and is paternalistic in practice. Consequently Australia is stuck in a cycle of domination by government and resistance by Indigenous people (Bradfield, 2006: 97).

There were no treaties negotiated in Australia between Indigenous peoples and colonial and/or contemporary governments so the prospect for a nation-to-nation relationship institutionalised in treaties between Indigenous peoples and the government as envisaged by the Canadian Royal Commission on Aboriginal Peoples might seem impossible. In the absence of treaties the challenge for Aboriginal and non-Aboriginal Australians is to articulate a vision for how they might associate with each other over time. This requires an intercultural dialogue whose first question should be: how should Indigenous and non-Indigenous Australians recognise and relate to each other in a just post-colonial relationship? On the basis of the principles espoused by Tully and the Canadian Royal Commission this would involve recognising Indigenous peoples as equal, coexisting and self-governing. This raises two tough issues: the status of Indigenous people and the legitimacy of settler Australian

71 sovereignty.19 The possible outcomes to these issues would be discussed by way of dialogue, although the criticism of the politics of recognition in that it reproduces colonial power must be heeded if colonialism is to be overcome.

Schaap advocates a form of political reconciliation where space is created for politics within which citizens divided by past wrongs debate and contest the terms of their political association. The political space enables the possibility for a common identity to emerge (Schaap, 2004: 537-538). Such dialogue must open up practical and political possibilities for Indigenous people in regards to their unmet needs and expectations and not reproduce the existing colonial relationship. Bradfield argues that one outcome of dialogue is to determine how Indigenous people fit within the contemporary Australian state by recognising Indigenous sovereignty and their right to govern themselves in a treaty. This would, according to Bradfield legitimise state sovereignty and recognise Indigenous people as equal partners in constitutional authority thereby remaking a legitimate and consensual society in Australia (Bradfield, 2005: 62). The issues of Indigenous sovereignty, nationhood and consent to British- Australian sovereignty are major sticking points in the Indigenous and non-Indigenous relationship. They have never been resolved in Australia.

Other writers confirm the need to recognise Indigenous sovereignty, nationhood and gain Indigenous consent. To recognise Indigenous people as part of the Australian polity Nettheim argues it is necessary to address the fundamental issue of Indigenous consent to non-Indigenous settlement in their territories and this can only be done by way of negotiated agreements (Nettheim, 2001). Short argues that Australian settler sovereignty can only be legitimised by gaining the consent of Indigenous peoples and this would necessitate nation-to-nation negotiations which treat Indigenous peoples as nations (Short, 2003: 496,505). This would involve ‘… rejecting the assumption of legitimate settler state sovereignty in favour of legitimising nation-to-nation negotiations’ with Indigenous people and this should not be seen as illiberal because liberal philosophy accepts freedom and equality of peoples (Short, 2008: 181)

19 I discuss the issue of British-Australian legitimacy in chapter 1. 72

It is necessary for an intercultural dialogue to deconstruct the existing colonial relationship between Indigenous people and governments. This would involve a process of historical reflection on colonisation and the role that European hegemony has played in forging the existing relationship of subordination. It includes understanding the dynamics of that hegemony and its impact on Indigenous people as well as examining historical truths and understanding how tacit thought – that is non- Indigenous people’s underlying assumptions about Indigenous people – has influenced the behaviour and opinions of Australians. These underlying assumptions about Indigenous people have set the ideological foundations of the colony and the subsequent Australian nation and play a significant role in the subordination of Indigenous people in Australia.

Dialogue has to be genuine, fair and meaningful for Indigenous people. This requires adherence to certain principles and practices to open up dialogical space, provide Indigenous people with a recognised and respected status in the dialogue, and enable informed participation. Further the dialogical relationship is ongoing and the process cannot be treated as final or definitive by governments. The starting point for intercultural dialogue in Australia is the application of the conventions identified by Tully – mutual recognition, continuity and coexistence, consent, mutual respect, sharing and mutual responsibility. It is also possible that there are Australian conventions or ‘hidden constitutions’ as a result of more than 200 years of interaction between Indigenous peoples and settler Australians. For example, one possible element of a hidden constitution is the legal pluralism that emerged in the early period of the colony of New South Wales as a result of uncertainty in regards to the application of the common law to Aboriginal people (Ford, 2010). The United Nations Declaration on the Rights of Indigenous Peoples is an international instrument that is applicable to Australian constitutionalism (United Nations, 2008).

The dialogue must also encompass Indigenous empowerment which is a necessary precursor for a dialogue in order to maintain Indigenous cultural dignity and confidence (Hudson, Roberts, Smith et al, 2010: 64). The strength of Indigenous people in the process is grounded in their culture, world view and sources of liberation. The dialogue must give Indigenous people a voice and allow them to shape their own 73 future in that regard. To that end governments and other Australians must display humanity towards Indigenous people, be open to hearing and reflecting on their perspectives and develop long term strategies for engaging with Indigenous people. Building dialogue capacity is central to building shared understanding. These capacities include listening without resistance; respecting the position and legitimacy of others; suspending assumptions and judgment; and speaking one’s own voice through listening to others (Isaacs, 1999: 83, 111, 134-135, 419). Dialogue capacity also includes tolerance, equality, non- violence and freedom from coercive influences.

A commitment to plurality and diversity is necessary for intercultural dialogue. This involves recognising Indigenous identities and accepting the differences in culture, values, beliefs and history as part of Australian society rather than forcing assimilation and uniformity on Indigenous people. The dialogue must also be an informed conversation, taking into account broader strategies and practices throughout the world for example in regards to the politics of recognition, human rights and intercultural engagement. It is also critical that politicians, courts, theorists or bureaucratic advisors not overly influence the dialogue in order to impose solutions although they play a role in the process.

An essential understanding is that dialogue is the method and process to transform the existing unequal relationship. This requires Australians to move beyond their existing limits of tolerance in recognising Indigenous claims for recognition. It also requires a different stance by Indigenous people as it involves asserting their role as partners with joint ownership of the transformation process. For Indigenous people this also includes showing Australians that cross-cultural relationships can be seen and understood from a decolonised perspective.

In building new relationships there is a fundamental proposition for intercultural dialogue in Australia that should not be denied, ignored or overlooked. That is while Indigenous people may have largely acquiesced to the assertion of British-Australian sovereignty because of a lack of power to resist and because of the dominance of European hegemony, they have never consented to forfeiting their sovereignty or to

74 the imposition of a colonial relationship, which began when Captain James Cook sailed up the east coast of the Australian continent in 1770.

Conclusion As a theory and practice dialogue is relevant to Australia in dealing with the legacies of colonialism and developing innovative thinking around issues of Indigenous disadvantage and the primary issues of Indigenous cultural and political recognition. Dialogue is relevant because many Australians perceive Indigenous people through their tacit thoughts which are based on negative assumptions about Indigenous people. Further government policy approaches to Indigenous issues are anchored in practices that are paternalistic and which subordinate Indigenous people. Indigenous claims for cultural and political recognition or their opposition to government policy and practices can result in public denigration of Indigenous people and their culture. In that regard public discussion in Australia around Indigenous issues can be destructive and unsafe for Indigenous people.

Dialogue focusses on building and transforming relationships through collaborative processes that provides a safe place for discussion; is open to multiple perspectives; is respectful of others; and enables people to suspend their assumptions in order to listen to others and reflect on their thoughts and feelings. This is the transformative aspect of dialogue. Dialogue mainly happens in small groups although it can also happen at a public and societal level. But public dialogue lacks the necessary conditions and dynamics for people to build relationships and mutual understanding. However a small group dialogue can act as a microcosm of the larger society to influence and transform social relations. Dialogue is essential to resolving Indigenous claims for cultural and political rights in Australia. However it is a different form of dialogue because it is intercultural and it involves negotiation with the state over how Indigenous and non-Indigenous people would co-exist in Australia. A significant challenge for intercultural dialogue and intercultural relations in Australia is the historical assumptions and beliefs about Indigenous people which have influenced the way Indigenous people are perceived and the way governments develop Indigenous policy.

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In the next chapter I examine the origins of British and Australian settler assumptions and beliefs about Indigenous people that have denied Indigenous sovereignty and rights to land. In the remaining chapters I examine how Indigenous people have contested this colonial relationship but have also attempted dialogue with governments.

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CHAPTER 3: THE BASIS OF THE INDIGENOUS AND NON-INDIGENOUS RELATIONSHIP

Introduction This chapter explores the basis of the relationship between Indigenous people and settler governments and shows how British and subsequent Australian political thought influenced the formation of a relationship with Indigenous Australians which is based on subordination of and disrespect for Indigenous people. This relationship of disrespect has determined how governments and the institutions of Australian constitutionalism make Indigenous policy, govern Indigenous people and respond to their claims for recognition.

The building blocks of this relationship were laid down in 1770 with the perceptions and assumptions of James Cook and Joseph Banks who – despite having limited contact with and no understanding of the local Aboriginal peoples – judged Aboriginal people to be incapable of having a system of law or government. These early uninformed but ultimately authoritative assumptions provided the justification for concluding that the entire continent was terra nullius, a convenient conclusion which was subsequently used to legally justify British occupation of an inhabited territory without consent and to deny Indigenous rights in Australia (Borch, 2001: 239).

The assumption of terra nullius and the connected intellectual discourse about ‘uncivilised’ Indigenous people has defined the relationship between Indigenous people and governments, both historic and contemporary. These enduring assumptions have implications for any dialogue between Indigenous and other Australians concerning the creation of a post-colonial relationship. Their impact is seen in how Indigenous claims for recognition are treated by governments and perceived by the broader Australian society. Governments, colonial and contemporary, have attempted to eliminate Indigenous rights or have generally rebuffed Indigenous claims for recognition. These assumptions are also evident in the way the Australian judicial system consistently applied the ‘barbarian theory’ to deny Indigenous claims for land rights and sovereignty.

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The beginnings of the relationship In 1770 Captain James Cook sailed up the east coast of Australia; not only did he fail to obtain the consent of Aboriginal people in claiming the eastern coast of the continent for the British Crown, he also failed to engage in any substantial way with Aboriginal people. Nonetheless his observations and those of Joseph Banks formed the basis of the British Government’s decision to occupy New South Wales (Frost, 1998: 44) without recognising Aboriginal rights and interests. The way in which Captain Cook’s preconceived ideas prevented him from understanding Aboriginal people is clear from his accounts of first encounter.

Cultural blind spots Captain Cook was instructed in 1768 to observe the planet Venus crossing the sun near Tahiti and then to proceed southward to search for what was thought to be a great southern continent. He was required to survey and chart the coast, observe the nature of the continent and its wildlife, take plant specimens as well as ‘observe, the genius, temper, disposition and number of natives’ and cultivate friendships and alliances through gift giving and inviting them to trade. Further, he was instructed to take possession of ‘convenient situations in the country’ with their consent or if the country is uninhabited, to take possession by making the appropriate marks and inscriptions as first discoverer and possessor (Price, 1971: 17-20).

Having not found a great continent, Cook sailed the east coast of Australia on his way back to England. When the Endeavour arrived at the entrance of what is now known as Botany Bay on 29 April 1770, there were Aboriginal people on a hill watching the ship and some of the men were ‘threatening and menacing’ the ship with their spears (Brunton, 1998: 22). After the ship was anchored in Botany Bay, Cook rowed to the south point of the bay (Kurnell) – the country of the Gweagal people – hoping to speak with people. However two men armed with spears and throwing sticks challenged him and his party. They called out ‘very loud in a harsh sounding language’, shaking their spears in a menacing way to stop the landing. Cook’s interpreter, Tupia from Tahiti could not understand the language and so they tried signing that they wanted water and meant no harm, throwing strings of beads and nails. The two men continued to

78 oppose the landing whereupon a musket shot was fired over their heads but both men continued their threats. A small shot was fired at the elder of the men striking him in the leg with little effect so another shot was fired at him. He ran to the hut and returned with a shield and both men threw spears at the party who had now landed, although no one was hurt. Two more shots were fired. The elder man threw another spear and then both men backed off but not in haste (Beaglehole, 1988: 305; Brunton, 1998: 23; Reed, 1969: 39-41).

Captain Cook had a friendlier encounter with the near present day Cooktown, north Queensland in June/July 1770 at the mouth of the Endeavour River where he repaired his ship. However he still failed to gain the consent of people in accordance with his original instructions. The Aboriginal people at first avoided Cook’s party, but a few weeks into their stay four men fishing in a canoe came alongside the Endeavour and were given ‘trifles’ as described by Cook. As they returned to shore Tupia asked them to lay down their arms and sat with them. Cook and his crew joined them later inviting them to dinner, which they declined (Beaglehole, 1988; 357-358; Price, 1971: 63-85, Reed, 1969: 94).

In a later encounter, a number of Aboriginal men came on board the ship showing interest in the twelve turtles the Englishmen had been catching as a food source. When ten or so men returned the next day to take two of the turtles they were prevented from doing so. They began throwing ship items overboard. Cook offered the men bread, which they ‘rejected with scorn’. They went ashore setting fire to the dry grass in an attempt to burn out Cook’s camp. A musket with small shot was fired at one of the leaders, wounding him and sending the men into the bush. Cook, Banks and some of his men followed but were met by the Aboriginal men with spears. In return Cook and his men seized some spears causing the men to retreat. Cook and his men then followed calling after the Aboriginal men who eventually laid down their spears and came back, as Cook describes, ‘in a very friendly manner’ (Beaglehole, 1988: 361- 362; Reed, 1969: 97-99).

The firing of the musket at the men in Botany Bay set the scene for Cook’s visit to Botany Bay. It was clear Cook and his party were not welcomed by the Aboriginal

79 people as armed groups of Aboriginal men attempted to intimidate them when they were on shore (Beaglehole, 1988: 306, 308; Reed, 1969: 42; Brunton, 1998: 25). Aboriginal people in Botany Bay instead chose to avoid, ignore or intimidate Cook and his party. Despite leaving strings of beads, cloth, looking glasses, combs, nails and so on Cook was unable to make contact as people refused to even acknowledge him, letting him know he was not welcome. Cook tried – to a very limited degree – to cultivate contact with Aboriginal people in Botany Bay but he failed. His behaviour would have appeared strange to them. Not only did he shoot at some men on first landing, on one occasion he followed a group of men along the shore. On another occasion he, Tupia and Solander chased after some people seeking to meet with them and he also tried to accost a number of people fishing (Beaglehole, 1988: 306-307, 308, 309; Reed, 1969: 42-44).

Cook wrote that Aboriginal people fled on his approach, kept their distance or threw spears at them. Cook admits that he knew very little of Aboriginal customs because he was ‘… not able to form any connections with them’ and the Aboriginal people had not touched the beads, ribbons and trinkets he had left in their huts (Reed, 1969: 50). Banks on the other hand wrote that the Aboriginal people in Botany Bay ‘have turned out such rank cowards’ because they walked or ran away from the Englishmen when encountering them on shore. But he also wrote that Aboriginal people ignored the presence of the Englishmen, especially when canoe fishing, or on occasions they watched, followed or shadowed the Englishmen and even challenged them by shouting or by menacing behaviour and even throwing spears at them (Brunton, 1998: 25). In reality, it seems that the people at Botany Bay were more cautious than cowardly. They saw no reason to engage with Captain Cook as he had nothing of value to offer them, only beads, ribbons and trinkets.

The incident with the turtles at the mouth of the Endeavour River highlights the lack of recognition of Aboriginal claims to marine resources by Cook. There is no indication that Cooks and Banks had understood the significance of what had happened that day. Cook would not share two turtles with his hosts. The Aboriginal people were generous enough not to take the incident any further and instead agreed to conciliate when an elderly Aboriginal man spoke to the other men to lay down their spears and to join 80 with Cook and his men (Brunton, 1998: 66-67). Cook and Banks failed to see this incident as an opportunity to develop a more formal relationship for mutual recognition and consent.

In both places, Cook chose not to recognise Aboriginal ownership of land. Taking possession of the eastern coast of Australia seems almost preposterous, not only because it was an act of extraordinary territorial acquisition but because Cook carried out the ceremony for possession on an island that he named ‘Possession Island’ detached from the mainland. Cook had flown the English flag on shore at Botany Bay and had cut an inscription into a tree near the ‘watering place.’ At Possession Island he hoisted the English flag, fired a volley of shots and duly took possession of the eastern coast for the British Crown (Price, 1971: 80, Reed, 1969: 50, 122-124). If claiming an entire continent whilst situated on an outer lying island were not ironic enough, Cook also knew the island itself was inhabited by Aboriginal people – the people (Beaglehole, 1988: 387-388; Reed, 1969: 123).

Assumptions and conjecture Captain Cook’s failed engagements with Aboriginal people and his manner of claiming the whole east coast of Australia in August 1770 without the consent of Aboriginal people set the scene for how the British would relate to Aboriginal Australians. The assumptions of Cook and Banks established the beginnings of a negative social representation of Aboriginal people, which has resonated through history and justified the dispossession of Aboriginal people. Indeed the writings of James Cook and Joseph Banks lay down what could be regarded as the first policies in respect of Aboriginal people in Australia by the British Crown. These policies are based on assumptions about Aboriginal people that were influential in British political thought at the time.

While Cook believed Aboriginal people lived in a state of nature in a tranquil lifestyle with no magnificent houses, household items or clothing, and having all necessities of life provided by the land and sea (Beaglehole, 1988: 399; Reed, 1969: 136), he in fact considered the people, the lifestyle and the society to be inferior. According to Cook the people in Botany Bay were not numerous and did not live in large groups but dispersed in small parties around the bay (Reed, 1969: 49). Cook concluded that the

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‘natives’ of New South Wales were not a ‘warlike people’ but a ‘timorous and inoffensive race, no way inclined to cruelty’ and ‘neither are they numerous’. He said that they lived by the sea and along the banks of lakes, rivers and creeks having no fixed habitation, but move about from place to place ‘like wild beasts in search of food’. Cook said he did not see ‘one inch of cultivated land in the whole country’ (Beaglehole, 1988: 396; Reed, 1969: 133-134).

Banks said that the land is ‘thinly inhabited’ and speculated that the country inland may be totally uninhabited. He said they ‘never but once saw so many as thirty Indians together’ and that people at Botany Bay could muster no more than 15 fighting men and in other places they generally ran away. He believed that the sea was the chief source of supply for the ‘Indians’ because the wild produce alone would scarcely support them and they were ignorant of cultivation (Brunton, 1998: 96-97). Banks also said that Aboriginal people do not have permanent homes because they wander ‘like Arabs from place to place’ and set up a house when they come upon a sufficient supply of food; when the food is exhausted they move, leaving the house behind (Brunton, 1998: 103).

Cook and Banks’ observations of Aboriginal people did not fit with British perceptions of civilisation, government and sovereignty. According to Buchan, Cook and his contemporaries dismissed any notion of Indigenous polity and indeed formed the opinion that Aboriginal people were too uncivilised to have any form of society, property or sovereignty. One indicator of civility was willingness to engage in trade. Europeans believed that trade reflected a level of civility and also indicated that Indigenous people had a level of moral, social and political development. Trade was a device by which the British interpreted and made judgments about Indigenous development (Buchan, 2007). Aboriginal peoples’ refusal to trade with Captain Cook was interpreted as a lack of ‘civilisation’ on the part of Aboriginal people, even though Cook gave nothing of value in return. Cook wrote that Aboriginal people did not value anything given to them and nor did they part with anything of their own in exchange for European articles (Beaglehole, 1988: 399). Banks said Aboriginal people had no idea of trade and nor could they teach them because Aboriginal people did not value

82 what they had and so they could not be induced to part with their items (Brunton, 1998: 99).

This assumption was based on misrecognition. Cook helped himself to water, shot animals for food, took turtles, fish and shellfish, cut grass and timber, took spears belonging to Aboriginal people, and except for water did not ask for permission for any of these things. Cook and Banks’ observations and perceptions of Aboriginal people are significant because their accounts have contributed to a dominant colonial discourse of a sparsely populated continent with a culturally inferior people. This discourse dispossessed Aboriginal people of their land, their rights and their dignity.

The intellectual underpinnings European beliefs in their own progress and superiority emerged in the 16th Century and were very much part of the cultural baggage that was transported to Australia. By the time the British had decided to transport convicts to Australia, Indigenous people throughout the world were already considered ‘barbarians’ and ‘savages’. Non- Europeans were considered to be at a lower stage of political, social and economic development than Europeans (Keal, 2003: 56).

Europeans assumed that people who did not have similar societies were inferior and this resulted in a number of theories and practices to justify European colonial activities. These attitudes were part of an ideology formulated by European intellectuals and thinkers in their attempts to understand their existence and the world around them, especially through the perspectives of European colonialism, capitalism and Christianity. Given this assumption of superiority, Europeans believed it was ‘… not necessary either to comprehend others in their own terms or to attempt to deal with them as equals’ (Keal, 2003: 83).

While the first Europeans in Australia were ethnocentric and believed they were culturally superior to Aboriginal people, most early colonial officials believed that Aboriginal people had the ability to be as capable as Europeans if provided with European education and culture (Broome, 1982: 88). The more enlightened European settlers believed that Aboriginal people displayed acumen and sharp intellect; hence

83 they saw a possibility of ‘civilising’ them. But other Europeans believed Aboriginal people were ‘disgusting’, ‘barbarous’ and ‘stupid’ (Reynolds, 1989: 101-107).

From the second half of the nineteenth century, however, racist ideas came to dominate the thinking of English colonists who considered Aboriginal people as racially inferior. The shift to hard-line racism stemmed from many different factors including cultural and physical differences between European and Aboriginal people, racial ideology and beliefs about Aboriginal ‘savagery’, and above all the need for Europeans to rationalise the dispossession of Aboriginal people and the accompanying exploitation and violence (Broome, 1982: 88-91).

Savages and barbarians The term ‘savages’ became part of the negative discourse employed to categorise Aboriginal people as culturally and racially inferior because of their cultural and physical differences to Europeans. The belief system behind the use of the terms ‘savages’ and ‘barbarians’ was closely linked to European colonial expansion, the rise of capitalism in Europe with its focus on land ownership and private property, and belief in Christianity. Colonialism constructed other people as ‘savages’ and ‘barbarians’ in order to situate them within the language and discourse of civilisation.

By 1780 social and political theorists in Europe subscribed to a ‘stages theory’ of evolution in which mankind passed through a number of stages transitioning from savagery to civilisation. It was accepted that Europeans and other ‘advanced’ societies had passed through four stages of development. The first stage was hunting, followed by pastoralism, agriculture, and finally the development of commerce based economies. Each stage was distinguished by different modes of subsistence, institutions of law, property and government, and different sets of customs, manners and morals (Keal, 2003: 74). Civilisation was considered at the high end of a process of historical development, to the extent that colonisation was not seen as dispossession but as carrying out the essential task of bringing civilisation to the uncivilised.

Indigenous peoples were considered to be in the first stage of development, a stage long surpassed by ‘civilised’ European societies. Terms such as ‘wild men’, ‘savages’ and ‘barbarians’ were used to set apart the ‘civilised’ from the ‘uncivilised’ and to 84 establish the superiority of European culture and political organisation (Keal, 2003: 73). Both savages and barbarians were considered less than human and represented an external threat to ‘civilisation’ and were regarded as incapable of exercising sovereignty (Keal, 2003: 67-69). Those people or cultures were regarded as ‘uncivilised or primitive’ because they did not practise European culture or submit to European social norms, or were not Christian.

The term ‘savage’ was commonly used in Australia to refer to Indigenous people. The so-called ‘savage’ could be noble or ignoble. Both noble and ignoble ‘savages’ lived outside of civil society and were considered an example of the first stage of human development. However the noble savage was an example of a desirable state of existence where ‘uncivilised’ man lived in a state of nature whereas the ignoble savage was considered a less desirable state of existence, a stage of development that Europeans had left behind (Keal, 2003: 72, 74-76). In 19th Century Australia Aboriginal people were regarded as both brute savages and noble savages; ‘brute savages’ lived a ‘poor, solitary, nasty, brutish, short life’ and ‘noble savages’ were uncorrupted by the vices of civilisation although in Australia the noble savage perception declined as frontier racial attitudes hardened (Reynolds, 1989: 97).

The idea that Aboriginal people were ‘savages’ was later hardened by scientific racism. Inferiority, for scientific racists, was defined by physiology. ‘Phrenology’ was one of the most influential of racist scientific theories about differences between races and was widely accepted in Australia from 1820s onwards. Phrenology claimed that the size and bumps of a person’s skull represented the size and shape of the brain within, as well as the different skills and personality traits of the person. According to phrenologists the Aboriginal skull was large and thick and its shape indicated that Aboriginal people had moral and intellectual deficiencies as well as a propensity to roam and an aversion to a fixed place of residence (Broome, 1982: 89, Reynolds, 1989: 107-109).

Beginning in the second half of the 19th Century thinking about Aboriginal people was also supported by social Darwinism. Social Darwinism regarded Aboriginal people as less evolved people who would eventually die out. Charles Darwin’s theory on the

85 evolution of species by way of ‘natural selection’ and ‘survival of the fittest’ was used to explain and support European views of racial superiority and the inevitable demise of Aboriginal people.20 Social Darwinism was widely accepted in Australia and provided a justification for the decline of the Aboriginal population (Broome, 1982: 92-93, Reynolds, 1989: 111-118).

Civilisation, property rights and sovereignty The ‘stages theory’ of human development played an important role in the development of colonial property rights because the stages theory assumed that the laws and institutions of society were dependent upon the mode of subsistence. Therefore those societies deemed to be at the higher stages of development had property rights whereas Indigenous people were considered to be at a ‘lower’ stage of development that did not correlate with property rights, and so their dispossession was justified (Keal, 2003: 75).

Tully explains four assumptions about Aboriginal systems of property and political organisations in North America based on the argument of English philosopher, John Locke, which have influenced European theories of property and which were used to dispossess Aboriginal people of their land and territory. These assumptions were (1) that Aboriginal people in America were in a pre-political ‘state of nature’ having no established system of property or government; (2) that Aboriginal people had no rights in their territories and only had property rights in what they hunted or gathered; (3) that the European commercial system of private property in land is economically superior to the hunting and gathering economy and in that regard Aboriginal people are better off under a commercial system; and (4) that because Aboriginal societies do not have a fixed and recognisable system of property in land they do not have an institutionalised system of law and thus are not recognised as ‘political societies’ or states (Tully, 1994: 159-162).

These theories not only undermined Indigenous rights in property, they established links between property rights, civil society and sovereignty (Keal, 2003: 76-77) that were deemed not to exist in Indigenous societies. Civil society was defined by the idea

20 The Origins of Species (1859). 86 of agrarian labour, which gave men a right to property. Property was the rightful possession of land and, according to John Locke, was derived from investing labour in the land, especially by means of English agricultural practices (Locke, 1947: 133-146). Therefore it was assumed that people living in a state of nature referred to as ‘savages’ did not have property rights. Property rights included ownership of land as well as rights of sovereignty against others (Keal, 2003: 76-78). Civil society was considered a pre-requisite for sovereignty because it enabled ‘civilised’ man to collectively transfer power to a sovereign. On that basis only ‘civilised man’ was regarded as having property rights and civil society. Indigenous non-farmers were not regarded as having property rights or civil society and therefore it was assumed they were unable to collectively authorise a sovereign to act on their behalf and to order the relations between individuals (Keal, 2003: 78-80).

The notion that Indigenous people lack sovereignty is a problem of non-recognition stemming from the fact that Indigenous authority was considered inferior or non- existent. In the modern European constitutional tradition authority is derived from a centralised and uniform system of legal and political authority that is formed by people exercising popular sovereignty. Free and equal individuals deliberate and reach agreement on how they should form political associations, how they should recognise European institutions and traditions and how their society should be constituted. The idea is that people free themselves from customary ways and practices and become more self-determining. This is in contrast to Indigenous forms of governance where people are said to be constituted by their customary ways, in which their constitution is closely tied to the customs of their societies.

Indigenous constitutions are considered to be an ‘earlier’ or ‘lower’ stage of historical development (Tully, 1995: 59-64). They were devalued by virtue of not having a sovereign and not having a uniform system of government. European constitutional government is considered to represent the historical progression of society and is regarded as the only legitimate legal authority (Tully, 1995: 66-67). The objective of modern European constitutionalism is to achieve a cultural and institutional uniform state where individuals are equal and legally undifferentiated. The combination of

87 ideas about European civil society, property and sovereignty were used to justify dispossession of Indigenous people.

Territorial acquisition and Indigenous people These ideas about civil society, property and sovereignty are reflected in the rules developed by Europeans in regard to acquiring foreign territory and in particular the lands of Indigenous peoples. According to these rules, Captain James Cook’s claim to the east coast of Australia on behalf of the British Crown only provided an inchoate title that had to be perfected by effective occupation of the new territory (Castles, 1982: 20-21). British occupation of eastern Australia followed in 1788.

In January 1788 Governor Phillip conducted ceremonies that did not involve Aboriginal people to assert British authority over New South Wales. This assertion of authority was confirmed by the occupation and establishment of governmental administration (Castles, 1982: 23-25). The British claim and subsequent occupation was underpinned by the assumption that the Australian continent was unclaimed territory: that Aboriginal people had no sovereignty, or if they did they lost it when Britain occupied the continent in 1788. But Reynolds argues that Aboriginal tribes had sovereignty according to the law of the time and that had the law been applied with more impartiality it would have been possible to recognise both Aboriginal land ownership and sovereignty (Reynolds, 1996: 41-46, 54-55).

It took many years after 1788 to assert authority and establish governmental control because the colony of New South Wales was enormous. Indeed the assertion of governmental authority over Aboriginal people still continues today (Douglas & Finnane, 2012: 8). Reynolds asserts that white administrative control over large areas of the Australian continent was so feeble that it could not have extinguished Aboriginal sovereignty therefore Aboriginal sovereignty continued and existed concurrently with British and Australian sovereignty because the Crown was not able to maintain effective occupation or ‘real occupation’ over the continent (Reynolds, 2006: 11). Douglas and Finnane support this contention as well, arguing that while the British extended their sovereign reach over lands occupied by Indigenous peoples the colonial

88 officers in these outposts of empire sought accommodation with local Indigenous people to avoid violence (Douglas & Finnane, 2012: 34).

Discovery and occupation of territory At the start of the colonial era towards the end of the 15th Century there was no set of rules internationally accepted for acquiring territory that was not under the control of any recognised sovereign. A sovereign who succeeded in exercising a sufficient degree of exclusive control was generally regarded as having acquired sovereignty (McNeil, 1989: 110). Over time the practice of states and the opinions of political thinkers and jurists produced recognised modes for acquiring new territory which also regulated the respective claims of the European nations.

From the 15th to the 19th Century claims to territory outside of Europe were justified by the Doctrine of Discovery. Discovery gave the first European country to ‘discover’ unknown lands the right to pre-empt or preclude other European nations from gaining an interest in the new lands. Discovery was designed to control exploration and manage conflict between European nations who were making claims of ownership and sovereignty over the territory of Indigenous peoples (Miller, Ruru et al, 2010: 2-6). Discovery and conquest was originally authorised by the issuing of Papal Bulls, a form of authority from the Pope, which authorised Catholic colonial powers such as Spain and Portugal to explore, invade, take property and slaves, and convert non-Christians to Christianity and civilisation, along with the assertion of sovereignty over their lands (Miller, Ruru et al, 2010: 9-15). But England, France and Holland refused to recognise Papal claims and a new rule of discovery was developed. However extravagant claims were being made to vast tracts of territory so discovery was extended to include actual occupation of the discovered lands to perfect the discovery title. Discovery only provided an inchoate title, which had to be followed by actual possession (Lindley, 1926: 124-128, 129-138; Miller, Ruru et al, 2010: 18-19).

Actual possession involved occupation or settlement, the founding of a colony and the establishment of governmental administration for control and administration of the territory (Lindley, 1926: 139-141). Some Europeans argued that they could occupy territory inhabited by non-Christians because non-Christians had no sovereign rights

89 and war could be waged against them (Lindley, 1926: 10-11). But according to Lindley there was also a ‘persistent preponderance’ of juristic opinions going back some three and half centuries in favour of politically organised ‘backward’ peoples having sovereignty over their land (Lindley, 1926: 20). Francesco de Vittoria, a Spanish professor at Salamanca in the 16th Century, argued that Indian people although ‘sinners and infidels’ possessed complete sovereignty over their territory and were the owners of their lands. However, the Spanish could still wage war and take possession of their land under certain circumstances (Lindley, 1926: 12-17).

By the 18th Century, acquisition by settlement usually referred to territories that were totally uninhabited; that is, no one lived in the territory. This is evidenced in writings of philosophers and jurists such as Emmerich de Vattel (The Law of Nations) and William Blackstone (Commentaries on the laws of England) in the 18th Century. Vattel argued that European nations were justified in taking possession of and colonising territories that had ‘no prior owner’ or were ‘desert’ or ‘uninhabited without an owner’ after they had made their intentions sufficiently known. However, this assertion of title had to be followed by real possession (de Vattel, 1863: 98).

Similarly Blackstone said that ‘desert and uncultivated’ territories could be colonised by occupancy and the colonist would take such English law as applicable to the situation and conditions of the infant colony. On the other hand, he said that ‘cultivated’ colonies could only be gained by conquest or ceded by treaty. In such cases, the ‘ancient laws of the country’ unless they are against the law of God would remain until altered by the King (Blackstone & Cooley, 1871: 105). Vattel went further. He said countries that were uncultivated but inhabited by politically ‘unorganised’ and ‘thinly populated’ people who were incapable of occupying the whole of their territory, could be lawfully claimed and occupied, at least in part. According to Vattel, European nations could lawfully possess and colonise those countries where so called ‘savages’ had no particular need for or made no use of land because they could not claim more land than they needed for cultivation or habitation (de Vattel, 1863: 97- 100). It was the European nation that made the determination about whether the territory was ‘uncultivated’, ‘unorganised’ or ‘thinly populated’. Vattel’s extension of his ‘desert’ and ‘uninhabited’ doctrine was directed at the acquisition and colonisation 90 of territories populated by Indigenous or tribal peoples, so called ‘savages’. By this reasoning a country that is inhabited although uncultivated could be possessed and occupied if the Indigenous society did not use or occupy all of their territory, or if it was thinly populated and politically unorganised.

Borch argues that Vattel was not advocating the wholesale takeover of Indigenous land but was advocating that Indians in North America occupied more land than they needed, therefore the colonisers could occupy the areas not needed (Borch, 2001: 234). Vattel’s view clearly comes through in James Cook and Joseph Banks’ assumptions about Aboriginal people. Vattel appeared to recognise a limited or conditional sovereignty in so called ‘backward’ people when he wrote that a nation might take possession of lands not required by people because the land is excess to their needs. Vattel’s view was taken up by other writers who held the view that the territory of ‘backward’ people is open to occupation so long as the Indigenous people did not resist encroachment of the occupying state by force (Lindley, 1926: 17).

These views began to change in the 19th Century as international law became more developed. By the 19th Century, it was common to deny sovereignty to Indigenous or so called ‘backward’ or ‘savage’ people on the grounds that they had not progressed in ‘civilisation’ and had no statehood or sovereignty (Lindley, 1926: 18-20). Territory regarded as ‘unclaimed’, ‘uninhabited’ or inhabited by people considered ‘less advanced’ without political society could be acquired by occupation or settlement (Lindley, 1926: 45). Settlement either authorised by the Crown or an unauthorised private venture involved acquisition of territory where there was ‘no civilised government and legal system’ (Roberts-Wray, 1966: 99-100). If, however, the inhabitants of a territory had a collective political society although crude and rudimentary, acquisition could only be made by way of cession, conquest or prescription (Lindley, 1926: 45).

If there was no treaty with the colonising power to transfer title of an inhabited territory then possession of a territory could be taken by force (conquest) from either a sovereign state or an Indigenous political society, and title to the territory passed to the victorious sovereign (Lindley, 1926: 160). The colonising power assumed

91 sovereignty upon the establishment of a civil government and extended jurisdiction over the territory (Roberts-Wray, 1966: 105-107). If a colonising power had no title or insufficient title to a territory but had effective, continuous and undisturbed sovereignty for a long period then title was acquired by prescription (Lindley, 1926: 178-179).

The change in denying sovereignty to so-called ‘backward’ or ‘savage’ people produced the modern doctrine of ‘terra nullius’. Fitzmaurice argues that the term ‘terra nullius’ was not originally used to justify dispossession in Australia but was a product of the legal tradition regarding the ‘occupation’ of Australia (Fitzmaurice, 2007: 2). Borch argues there was no British policy in accordance with which inhabited lands could be possessed as if they were uninhabited or ownerless, nor was there a legal doctrine to support such action at the time of the establishment of New South Wales (Borch, 2001: 230). The established theory and practice of international law at the time in regards to acquiring new territories was by conquest, cession or purchase (Borch, 2001: 225-227). Banner also argues terra nullius was not a standard feature of colonial land policy but states that it became entrenched in British land policy from the 1780s onwards as a result of James Cook and Joseph Banks’ description of an enormous continent sparsely populated by ‘primitive’ hunter-gatherers (Banner, 2007: 13-17).

Borch contends New South Wales played a significant role in the development of the legal theory that lands inhabited by hunters and gatherers were ownerless (Borch, 2001: 224, 238). This is supported by Fitzmaurice who suggests that, by 1873, international jurists were not only classifying occupation as res nullius but also as territorium nullius and terra nullius. Territorium nullius was applied to African colonies that might have lacked territorial sovereignty but not people and that were not necessarily void of property rights or even sovereignty; hence treaties were required to subsume the territory. Terra nullius on the other hand was used to describe land that had literally no one inhabiting it or a country where the people were regarded as having no rights in land and also no sovereignty (Fitzmaurice, 2012: 855-859; Fitzmaurice, 2007: 9-13).

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Terra nullius would eventually acquire the same level of authority as that attributed to territorium nullius. Its common law counterpart is the ‘desert and uncultivated’ doctrine; (Secher, 2007, 12; Ritter, 1996: 8) both classified inhabited land as uninhabited although the doctrine of terra nullius legitimised the acquisition of sovereignty at international law and the ‘desert and uncultivated’ doctrine determined the law which governed a territory on colonisation at common law (Secher, 2007: 2-3).

Terra nullius and Australian law While the British occupation of the Australian continent in 1788 followed the practice laid down by international law the acquisition of New South Wales was also determined by the English common law. The common law, not the international methods of acquisition, determines the classification of the territory and this in turn determines the law in force in the territory and the powers of the Crown to make law (McNeil, 1989: 111, 113).

The general rule in regard to the introduction of English law was that in conquered and ceded territories local laws and customs in so far as they were not incompatible with the change in sovereignty remained in force until altered by the Crown, whereas in settled territories, English law was introduced to the extent that it was applicable and adaptable to local circumstances (McNeil, 1989: 113-116; McPherson, 2007).

McNeil argues that many of Britain’s territorial acquisitions did not readily fit into the settled, conquered or ceded classification and this was the case in regard to New South Wales (McNeil, 1989: 117-118). To determine whether a territory is classified as conquered, ceded or settled it is necessary to look at the intention and conduct of the Crown based on its perceptions of the nature of the Indigenous society. Although the Crown had prerogative to acquire sovereignty of new territory and to make treaties and proceed as it liked in extending sovereignty over a new territory, it did not have legal authority to determine the constitutional status of its acquisition; only courts could determine this (McNeil, 1989: 130-132). In the colony of New South Wales, this uncertainty played out in sporadic debates about the status of the colony.

As noted, when the colony of New South Wales was being planned, it was treated as terra nullius by the British Crown and this was largely based on the observations and 93 assumptions of James Cook and Joseph Banks that New South Wales was practically unoccupied (Frost, 1981: 518-521). Banks’ evidence to the Committee of Transportation in 1779 and 1785, reiterated his observations and assumptions that the continent was sparsely populated, that Aboriginal people lacked defensive capacity and that Aboriginal people did not have the capacity to sell land because they did not understand trade (Standfield, 2010: 126). These views and assumptions about New South Wales and its inhabitants were largely accepted as fact, even though Cook and Banks had very little contact with Aboriginal people and many of their views about Aboriginal people were conjecture.

The perceptions and assumptions of James Cook and Joseph Banks neatly fitted the classification that a territory that was inhabited could be claimed on the basis that Indigenous people had no land ownership because they roamed over the land like wild animals. This persuaded the British Crown that there was no need to buy land from Aboriginal people (Banner, 2007: 13-20). In the planning for the establishment of New South Wales it was assumed that the colony was unclaimed territory. This is evident in Governor Phillips’ second commission, which assumed that all land in the colony would be vested in the Crown and could be disposed of under the Governor’s directions. No provision was made for Aboriginal people and their lands (Castles, 1982: 23).

Some writers suggest a purported or implied recognition of Aboriginal rights and jurisdiction. Both Justice Deane and Gaudron in the Mabo case speculated that the land needs of the penal establishment could have been satisfied without impairing the existing interests of Aboriginal people or that matters could have been resolved on the spot with the assent or acquiescence of Aboriginal people (Mabo and Others v The State of Queensland [No. 2], 1992: 98). Borch suggests that the British Government believed there would be room for everyone without making further arrangement with Aboriginal people and that the policy would be reviewed in the light of better knowledge of actual conditions. However Governor Phillip failed to suggest that a settlement ought to be made with Aboriginal people in regards to land for the colony (Borch, 2001: 235-236). Ford agrees, arguing that early colonial governments did not assume that they had jurisdiction over Indigenous people, though this changed as Indigenous jurisdiction became a growing threat to the territorial aspirations of the 94 colony (Ford, 2010: 27-30). These authors point to signs of persistent confusion about the reception of law in the colony. However by 1822 it was confirmed in advice that the colony of New South Wales was ‘desert and uninhabited’. Advice from the British Attorney General and Solicitor General in 1819 in regard to the power to impose taxes and advice from the Colonial Office in 1822 in regard to law making powers in the colony were also based on New South Wales being acquired as ‘desert and uninhabited’ (Banner, 2007: 26-28). The case of Cooper v Stuart revisited the status of the colony in 1889 reaffirming the principle that New South Wales was ‘desert and uninhabited’.

But despite the confusion over the reception of law into the colony and the doubts over the legal status of Aboriginal people in regards to the Crown, the question of why the British did not negotiate with Aboriginal people once they encroached further into Aboriginal territory and when Aboriginal people resisted this encroachment, still remains. The coincidence and convergence between the discourse and theories of European racial superiority prevalent at the time of the colonisation of Australia and the discourse of terra nullius as it related to Australia and the development of the doctrine of terra nullius at international law is a possible explanation.

The colonial discourse of terra nullius cast Indigenous people in an inferior role and into a relationship of subordination with the colonial government in order to justify colonisation and the Crown’s disregard for Indigenous sovereignty and property rights (Buchan & Heath, 2006). It also reinforced European contempt of Aboriginal people by legitimising the prevailing beliefs that Aboriginal people were savage, barbarous or backwards (Banner, 2007: 20-24; Watson, 1998). In Australia it was assumed and accepted that there was no ‘civilised government and legal system’ (Roberts-Wray, 1966: 100) and ‘no political society’, therefore ‘occupation was the appropriate method of acquisition’ (Lindley, 1926: 41). These beliefs and assumptions about the deficits of Aboriginal people in regards to European ‘civilisation’ developed into a colonial discourse regarding the status and characteristics of Aboriginal people and were influential in colonial government practices.

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Terra nullius discourse and the common law The application of the discourse of terra nullius in Australian law is evident in two significant cases that became unquestioned law for over 100 years. The following discussion of Australian cases concerning the rights of Aboriginal people shows how the judiciary transported colonial assumptions about Australia being ‘peacefully settled’ – because it was ‘practically unoccupied’ and was considered without settled inhabitants, settled law or a recognised system of land tenure – into the common law, thereby ensuring that these assumptions would later become enshrined in the Australian constitutional system.

The case of R v Jack Congo Murrell before the Supreme Court of NSW in 1836 concerned the rights of Aboriginal people, the application of tribal laws of punishment and the application of British law.21 In deciding whether the Court had jurisdiction to try Jack Congo Murrell and George Bummaree who were charged with murder of two of their countrymen, Justice Burton held that the Court did have jurisdiction to try Murrell because Aboriginal people had no sovereignty and the British Government had exercised rights of domain over the country for a long period. Murrell’s lawyer argued the Court had no jurisdiction to try Murrell because he was not a subject of Great Britain and so not bound by its law, but bound by tribal laws and customs and liable for tribal punishment. He also argued that New South Wales was not originally desert because it was populated by a people who had their own manners and customs and were not bound by British law because they were not protected by it (AustLII, 2012; R v Jack Congo Murrell, 1836).

Justice Burton said that while Aboriginal people might be entitled to be recognised as free and independent, on the taking of possession of the colony ‘… they were not in a position with regard to strength as to be considered free and independent tribes’. He further held that the offence had been committed within the boundary of the colony of New South Wales where the law of England applied and there was no distinction in liability for punishment whether the offence had been committed on a white person or one of his own tribe (R v Jack Congo Murrell, 1836: 73).

21 R v Jack Congo Murrell (1836) 1 Legge 72. 96

The 1889 New South Wales Supreme Court case of Cooper v Stuart which was appealed to the Privy Council did not concern Aboriginal people but was about Crown grants of land, public purpose reservations and the introduction of English law into the colony of New South Wales.22 In deciding the extent to which English law was introduced into the colony of New South Wales, Lord Watson of the Privy Council held that New South Wales was a settled colony therefore the Crown through the Imperial Parliament or the Colonial Legislature may by statute declare what parts of English common law and statute law apply to the colony.

In deciding the case, Lord Watson looked at the extent to which English law was introduced into the colony of NSW and decided that the colony of New South Wales consisted of a tract of ‘territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed’ by the British. In the case of a settled colony the law of England becomes the law of the colony. Lord Watson also said that because there was no land law or tenure existing in the colony at the time of annexation to the Crown it was inevitable that as soon as colonial land became the subject of settlement and commerce, all transactions in relation to it were governed by English law, in so far as that law could be justly and conveniently applied to the colony (Cooper v Stuart 1889: 291-292).

Both cases assumed Aboriginal people had no sovereignty at the time of British colonisation of New South Wales, with the judge in R v Jack Congo Murrell saying that Aboriginal people were too small in numbers and so did not have the strength to be considered a sovereign independent nation and that the British had asserted dominion over New South Wales for a long period of time. Clearly there is an implied reference to the rule of prescription in regards to British assertion of dominion. The point about Aboriginal people lacking strength (in numbers) is rejected by Reynolds on the basis that the strength or weakness of a nation was not relevant in considering whether a nation was sovereign (Reynolds, 1996: 42-43). Cooper v Stuart assumed there was no existing land law or tenure in the colony at the time of its annexation because according to the Privy Council, New South Wales was without settled inhabitants or

22 Cooper v Stuart (1889) 14 App. Cas 286. 97 settled law. In both cases no evidence was relied on in respect of Aboriginal society and sovereignty.

From 1836 until 1992, courts in Australia have largely accepted these views and assumptions. New South Wales was regarded as ‘peacefully settled’ on the basis that so called ‘wandering tribes’ were not considered settled inhabitants with settled law. This classification of New South Wales appears to be based on erroneous factual assumptions because the courts reached their decisions without any evidence in respect to the nature of Aboriginal society (McNeil, 1989, 123).

Australian courts in their decision making have merely applied the perceptions and assumptions that were accepted without question or inquiry by the British Crown. Buchan argues that the failure of the British to acknowledge pre-existing Indigenous forms of government was because they considered Aboriginal people as ‘uncivilised’ or ‘savage’ and this led them to deny that Indigenous Australians could possess their own legitimate forms of government. European ideas of civilisation and concepts such as property, society and government were used to emphasise the ‘deficiencies’ of Indigenous people and the absence of Indigenous government (Buchan, 2005: 3, 12).

The barbarian theory as Australian law Up until Mabo [No. 2] Australian law accepted without question that the Australian continent was without settled inhabitants or settled law and that Indigenous people in Australia had no sovereignty or ownership in land.23 In effect, Indigenous people had rights to nothing because the acquisition of sovereignty of a so-called terra nullius territory by occupation or settlement was also equated with absolute Crown ownership of the land.

Justice Brennan in Mabo [No. 2] refers to this as the ‘barbarian theory’ where Indigenous people were regarded as ‘barbarous’ or unsettled without law or sovereignty, and were ‘primitive’ in their social organisation. In a settled colony the Indigenous inhabitants were regarded as low on the scale of social organisation so their occupancy of land was ignored in considering title to land in the colony. The

23 Mabo and Others v The State of Queensland (1992) 175 CLR 1; 107 ALR 1; 66 ALJR 408 98 colony of New South Wales was treated as ‘uninhabited’ on the basis that there was no proprietor of the land (Mabo and Others v The State of Queensland [No. 2], 1992: 39).

In regards to the barbarian theory Justice Brennan said:

“The facts as we know them today do not fit the “absence of law” or “barbarian” theory underpinning the colonial reception of the common law of England. That being so, there is no warrant for applying in these times rules of the English common law which were the product of this theory. It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to her Majesty’s indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands. Yet the supposedly barbarian nature of indigenous people provided the common law of England with the justification for denying them their traditional rights and interests in land....” (Mabo and Others v The State of Queensland [No. 2], 1992: 39).

The ‘barbarian theory’ was applied by the courts in R v Jack Congo Murrell and Cooper v Stuart and continued to be applied or at least followed by Australian courts in their decision making up to 1979; although the common law continued in that form up until 1992 when the Australian High Court discredited and rejected the ‘barbarian theory’ as the underlying basis for Australian law.

The case of Milirrupum v Nabalco (1970) concerned Yolngu clans (Rirratjingu, Gumatj and Djapu) who took action to assert their rights under ‘native law and custom’ against the Nabalco mining company and the Commonwealth Government in relation to the grant of a mining and ancillary leases in 1968 to mine bauxite and establish a town on the in Arnhem land. The Yolngu representatives accepted that political sovereignty over the land and ultimate radical title vested in the Crown, however they argued that they had occupied the land from time immemorial and that their rights to the land were proprietary. They also argued that these rights of ownership still existed

99 and should be respected by the Crown and that the activities of Nabalco were unlawful and an invasion of their proprietary rights.

In deciding whether a doctrine of communal native title existed at common law and was recognised by the common law, Justice Blackburn cited Cooper v Stuart (1889) as binding authority that New South Wales was a settled or peaceably occupied colony and so English law applied to the whole of the colony. The Yolngu clans argued that Cooper v Stuart was historically inaccurate in light of anthropological knowledge and the land was not without settled inhabitants or settled law. But Justice Blackburn said this was not a question of fact but a question of law which he was not about to overturn.

Blackburn relied on the authority of Australian common law decisions, none of which expressly or implicitly referred to communal native title. According to Justice Blackburn they all affirmed that the Crown is the source of title, therefore all title, rights and interests in land which existed after the foundation of New South Wales and South Australia were the direct consequence of a grant from the Crown. The Crown acquired title to land when it acquired sovereignty over Australia and so the land became the property of the Crown in demesne. According to Justice Blackburn the Yolngu clans were unable to point to a grant from the Crown as the basis of their title therefore their case failed.

Justice Blackburn also said the Yolngu clans failed to show that that their predecessors in 1788 had the same links to the same areas of land as those which the Yolngu now claimed. He further said that the Yolngu relationship to the land was not proprietary in nature. Although the evidence showed that the Yolngu clans had ‘a subtle and elaborate system highly adapted to the country’, which ‘provided a stable order of society’ and which was recognised by Justice Blackburn as a system of law, he concluded that the system ‘did not provide for any proprietary interest in the plaintiffs in any part of the subject land’. He said that the Yolngu rights and obligations in regards to their land did not resemble the characteristics of Australian (English) property law, which is the right to use and enjoy, the right to exclude others and the right to alienate land (Milirrupum v Nabalco, 1970: 262-274).

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Applying principles of English property law in order to deny that Aboriginal people had ownership of land and to suggest that the Yolngu could not prove the same links to the land in 1970 as in 1788 is clearly unjust. Justice Blackburn assumed that in 1788 Aboriginal people throughout Australia lost all their rights, entitlements and interests in land. Although he recognised that the Yolngu have an elaborate system of governance and a stable order of society he regarded Cooper v Stuart (1889) as binding authority that could not be overturned.

Cooper v Stuart was also the authority for the case of R v Wedge where an Aboriginal man, James Leslie Wedge, argued the Court had no jurisdiction to try him with murder because Aboriginal people were and still are sovereign people and as such not subject to English law.24 Wedge further argued that even if Aboriginal people are not sovereign people, the English colonists brought with them only so much of the English law as was applicable to their circumstances and these laws only affected British settlers. Wedge also argued that the acquisition of New South Wales in the presence of Aboriginal people did not conform to any recognised method of acquisition in English law, namely conquest, cession and settlement and that Aboriginal people were neither regarded nor recognised as British subjects or citizens.

Justice Rath held that the Court had jurisdiction on the basis that Aboriginal people were not sovereign and were subject to the laws of New South Wales. He said that Wedge’s propositions were untenable because on the basis of Cooper v Stuart (1889) and according to William Blackstone commentaries, New South Wales was acquired by settlement as uninhabited territory without settled inhabitants or settled law. Justice Rath said that it is not the presence of an Indigenous population that is significant for classification of a colony but the absence of ‘settled inhabitants’ and ‘settled law’ and the absence of cultivation. Therefore in a colony founded by settlement the law of England becomes from the outset the law of the colony. On that basis there was only one sovereign, the King of England and only one law, the English law which provided for the protection of Aboriginal people as subjects. Justice Rath said he was bound by R

24 R v Wedge (1976) 1 NSWLR 581 101 v Murrell (1836) stating the Court ‘… would not lightly reverse a historic decision that has stood for nearly one and a half centuries’ (R v Wedge, 1976: 586).

Clearly, challenging British and Australian sovereignty in a criminal case will always fail because of the nature of these types of cases. But Australian courts still continued to apply Cooper v Stuart. While the case was regarded as badly pleaded causing some antagonism from the judges, the case of Coe v the Commonwealth also relied on Stuart v Cooper as authority.25 Paul Coe asserted Aboriginal sovereignty on behalf of the Aboriginal community and nations of Australia in the High Court against the Commonwealth of Australia and the Government of the United Kingdom. He argued that the claims by Captain Cook were wrongful and contrary to the exclusive sovereignty of Aboriginal people and nations, that the continent was not terra nullius because it was occupied by the sovereign Aboriginal nation and that Aboriginal people were unlawfully dispossessed after 26 January 1788 thereby destroying their culture, customs and way of life.

Coe sought to amend his statement of claim accepting that the British had claimed Australia but that Aboriginal people retained a limited form of sovereignty, however Justice Mason dismissed his application. Mason said that the claim of continuing sovereignty in Aboriginal people is ‘plainly unarguable’ because it was inconsistent with the accepted legal foundations of Australia derived from British occupation and settlement, the exercise of legislative authority over Australia by the United Kingdom Parliament, and the establishment of the Commonwealth of Australia and the states in a federation.

In an appeal to the Full Court of the High Court to amend his statement of claim in the case of Coe v Commonwealth of Australia and Another, Paul Coe accepted British occupation in 1770 but sought to argue that Aboriginal people were domestic dependent nations as expressed in the case of Cherokee Nation v State of Georgia.26 The basis of Coe’s argument was that while radical title vested in the Crown it was subject to the possessory and proprietary right of the Aboriginal people and nation.

25 Coe v the Commonwealth (1978) 18 ALR 592. 26 Coe v Commonwealth of Australia and Another (1979) 24 ALR 118; Cherokee Nation v State of Georgia (1831) 5 Pet 1. 102

Aboriginal people were domestic dependent nations in that they still retained rights and interests in respect of their land until or unless these rights were taken away by bi- lateral treaty, compensation or international intervention. As a result of unlawful dispossession by governments of the United Kingdom and the Commonwealth of Australia, Coe asserted that Aboriginal people had lost benefit of their common law rights in the land and suffered harm to their culture, religion, customs, language and way of life. In a rather strange twist to the case Coe also claimed that the Aboriginal nation had claimed sovereignty over Great Britain by planting the Aboriginal flag on the beach at Dover and had confirmed Aboriginal sovereignty over Australia by planting the Aboriginal flag at Kurnell.

The appeal was dismissed by the High Court on the basis of the finding in Cooper v Stuart that Australia was acquired by settlement. Justice Gibbs said the allegations and claims of Aboriginal sovereignty over the United Kingdom and over Australia were ‘quite absurd’ and ‘clearly vexatious’ amounting to ‘an abuse of process of the court’. He stated that the annexation of the east coast of Australia by Captain James Cook in 1770 and subsequent acts from which Crown dominion extended over the continent were acts of state that could not be validly challenged. In regard to whether there is an Aboriginal nation with sovereignty as in a domestic dependent nation, Justice Gibbs said the Cherokee nation case provided no assistance in determining the position in Australia. He said it is not possible to say that Aboriginal people of Australia were organised as a distinct political society separate from others or that they had been uniformly treated as a state. Justice Gibbs concluded:

“The aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the law of the Commonwealth, or of a State of Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain” (Coe v Commonwealth of Australia and Another, 1979: 129). 103

Justice Gibbs cited the decision of Cooper v Stuart as authority that the Australian colonies have always been regarded as a territory acquired by settlement, not conquest, and this was fundamental to the Australian legal system. Justice Gibbs also said that the claim of Aboriginal people to rights and interests in land that were recognised by the common law and which continue to subsist was too general as the case identified no particular land. Moreover he said it was erroneous to state that the holder of proprietary or possessory rights could not be dispossessed without treaty, compensation or international intervention (Coe v Commonwealth of Australia and Another, 1979: 129-130).

Justice Gibbs recognised that the rights of Aboriginal people in land had become a heated controversy and that there were serious questions to be decided by the courts, however the resolution of such questions he said ‘… will not be assisted by imprecise, emotional or intemperate claims’ and such claims must be ‘… put before the court dispassionately, lucidly and in proper form’. Although a minority judgment, it was Justice Murphy who addressed the issue of whether Aboriginal people had social and political organisations and whether Cooper v Stuart was good law. Coe’s statement of claim did not impress Justice Murphy who said it ‘… exhibits a degree of irresponsibility rarely found in a statement intended to be seriously entertained by a court’. Nonetheless he said Coe was entitled to prove that the concept of terra nullius had no application in Australia, that the lands were acquired by conquest and that the acquisition of sovereignty acquired by the British Crown did not extinguish ownership rights of Aboriginal people in land (Coe v Commonwealth of Australia and Another, 1979: 131, 136, 138).

Justice Murphy said the view of Cooper v Stuart was not binding on the Court and that a cardinal condition of ‘occupation’ was that the territory should be terra nullius; that is, belonging to no one at the time of occupation. He said that there was a wealth of information to support the claim that Aboriginal people had occupied Australia for many thousands of years, and although nomadic they were attached to defined areas of land, they had a complex social and political organisation, and their laws were settled and of great antiquity (Coe v Commonwealth of Australia and Another, 1979:

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137-138). In regards to the authority of Cooper v Stuart and its reference to peaceful annexation, Justice Murphy said:

“… the aborigines did not give up their land peacefully; they were killed or removed forcibly from the lands by United Kingdom forces or the European colonists in what amounted to attempted (and in Tasmania almost complete) genocide. The statement by the Privy Council may be regarded either as having been made in ignorance or as a convenient falsehood to justify the taking of aborigines’ land” (Coe v Commonwealth of Australia and Another, 1979:138).

The decision of Cooper v Stuart achieved almost gospel status in Australian law as it was applied without question for over 100 years. However by the late 1970s it was becoming untenable in light of the political calls for Aboriginal land rights. Whilst Justice Murphy had raised doubts about the underlying assumptions on which Cooper v Stuart was based, it was not until the case of Mabo and Others v The State of Queensland [No. 2] in 1992 that the court decided that it was unjust to continue to uphold the false assumptions underlying Australian law – but only in regards to the rights of Indigenous people to land.

The Mabo case began in 1982 when , David Passi and James Rice, members of the who occupied Murray Island in the Torres Strait, asserted a claim for traditional native title against the State of Queensland and the Commonwealth of Australia in the High Court. They claimed that their traditional native title survived acquisition by the British Crown, that it was a possessory title recognised by the common law and that they could still establish local legal customary rights. The case did not question whether Australia was conquered or settled. It accepted that the British Crown had acquired sovereignty over Australia by settlement but argued that traditional native title rights survived acquisition and were still in existence.

The case had a long and difficult track through the court. On the 3 June 1992 the High Court declared the Meriam people were entitled as against the whole world to the possession, occupation, use and enjoyment of the Murray Islands. All of the judges except Justice Dawson agreed that the common law of Australia recognises a form of 105 native title which comes from the laws and customs of Indigenous people in relation to the occupation and use of land, but that native title could be extinguished by a clear and plain intention as evidenced by government action or by legislation, so long as this did not breach the Racial Discrimination Act 1975.

The High Court examined the issues of the acquisition of sovereignty and the introduction of common law in Australia in deciding whether the Crown had acquired beneficial ownership of the land in the Murray islands. The majority held that Australia was not terra nullius (land belonging to no one) at the time of European settlement. While the Crown gained sovereignty and radical title upon settlement this did not prevent the protection of the pre-existing rights and interests of Indigenous people. Justice Brennan, who wrote the majority judgment, said that the proposition that the Crown became the universal and absolute beneficial owner of all land in Australia upon the acquisition of sovereignty, extinguishing the interests of the Indigenous inhabitants, was by ‘any civilised standards’ unjust because Indigenous people had not ceded the lands nor was the land taken in conquest. Further on the basis of the case law the common law was also unjust because it took away the right of Indigenous people to occupy their traditional land and it deprived them of the sustenance which the land provided making them ‘intruders in their own home and mendicants for a place to live’ (Mabo and others v The State of Queensland [No. 2] (1992): 29).

Justice Brennan looked at the enlarged concept of terra nullius at international law as it was applied in New South Wales. It justified the acquisition of inhabited territory by settlement and facilitated the reception of common law into the colony. As a ‘settled’ colony New South Wales was assumed to have no local law in existence because Aboriginal people were regarded as ‘barbarous or unsettled and without settled law’, therefore English law became the law of the colony. Brennan said the ‘absence of law’ or ‘barbarian’ theory that underpinned the reception of the common law does not fit the facts as they are known today and in that regard the barbarian theory was false, unacceptable in today’s society, and could not be accepted in contemporary law (Mabo and others v The State of Queensland [No. 2] (1992): 31-40).

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Therefore the common law was no longer in step with international law, particularly in respect to the Advisory Opinion on Western Sahara, which condemned the concept of terra nullius and the international covenants and standards of universal human rights which are important and legitimate influences on the common law.27 Justice Brennan rejected the assumption of terra nullius as part of the common law of Australia because the barbarian theory depended on a discriminatory denigration of Indigenous inhabitants, their social organisation and their customs. To continue to embrace the enlarged notion of terra nullius would perpetuate injustice, he said. On that basis the notion that the Crown acquired absolute beneficial ownership of the land when it acquired sovereignty over parts of Australia was also rejected.

The Crown only acquired radical title to land, which enabled the Crown to grant interests in land or to acquire land for the Crown but did not prevent recognition of Indigenous interests in land. In that regard Aboriginal people were not dispossessed in 1788 but were dispossessed by subsequent grants of land to colonists and by the exclusion of Aboriginal people from their traditional territory. However this recognition of the rights and interests of the Indigenous people could not overturn the doctrine of tenure, a ‘skeletal principle’ of the Australian legal system in respect to land ownership (Mabo and others v The State of Queensland [No. 2] (1992): 40-58).

In rejecting terra nullius in regards to Aboriginal land ownership the High Court did not reclassify Australia as ‘conquered’ and Australian sovereignty still remained in place (Ritter, 1996: 26) because the court was not prepared to hold that European occupation of Australia was unlawful. In that regard it used terra nullius as a ‘scape goat’ to explain why the common law had not recognised Aboriginal rights to land. Whilst its rejection resolved a crisis in Australian legal discourse (Ritter, 1996, 7-9), in essence the Mabo decision reiterated Australian sovereignty and ‘… re-legitimated the political economy and moral foundation of Australian society and nationhood’, at the same time reaffirming the structure of power-relations in Australia (Ritter, 1996: 32). According to Fitzmaurice the Court was not so much rejecting terra nullius as reviving it to critique the justice of colonisation. The Mabo judgment was consistent with a 500

27 Western Sahara Advisory Opinion [1975], ICJ Reports, 12. 107 year tradition of using the law of the first taker to defend Indigenous rights whilst concurrently rescuing liberal democracy from the threat posed by the dispossession of colonised peoples (Fitzmaurice, 2007: 14-15).

While the courts are prepared to entertain an Indigenous claim for rights to land within the framework of British common law they are not prepared to entertain any claims that question the classification of Australia as a colony acquired by settlement. Those claims that have been presented are denied on the basis that the acquisition of New South Wales was an act of state which cannot be challenged and that there is no basis in law for such a claim. It is important to note, however, that the way some of these claims were presented was not seen as conducive to a serious examination of the issues.

In the case of Coe v Commonwealth (1993), on behalf of the tribe asserted against the Commonwealth and the State of New South Wales (NSW) that the Wiradjuri are a sovereign nation of people and as a domestic dependent nation they are entitled to self-government and full rights over their traditional lands.28 Coe claimed the Commonwealth had wrongfully and unlawfully acquired Wiradjuri land and that the State of NSW and their predecessors had committed crimes against humanity as a result of wrongful and unlawful seizure of and claim of proprietary interest in Wiradjuri land. Coe further claimed that the Commonwealth and State of NSW had a fiduciary trust relationship with the Wiradjuri nation and had breached that obligation by dispossessing the Wiradjuri from their land and alienating Wiradjuri land. As subjects of King George III he and his successors had failed to protect the rights of the Wiradjuri nation. Coe also claimed compensation for dispossession and damages for loss of possessory rights.

Chief Justice Mason said that Coe’s sovereignty claim was an abuse of process because she was using the proceedings for improper political purposes. He followed the judgment set down in Coe v The Commonwealth (1979) to reject the claim of Aboriginal sovereignty based on the fact that the annexation of the east coast of Australia and the subsequent acts of the Crown were acts of state whose validity could not be

28 Coe v Commonwealth (1993) 118 ALR 193. 108 challenged. Therefore it was settled law that the Australian colonies were acquired by British settlement not conquest. He also said that on the basis of Mabo [No. 2] the Crown’s acquisition of sovereignty over Australia could not be challenged in a municipal case and further stated that Mabo [No. 2] does not support the notion of Aboriginal sovereignty nor support the notion that Aboriginal people are a domestic dependent nation and a free and independent people. He said the claim that the Wiradjuri are a domestic dependent nation and are a free and independent people has no basis in domestic law and no independent legal significance.

In relation to the other claims Mason CJ said Australia does not have legislation to prevent and punish crimes of genocide and in any event many of the acts complained of precede the international convention.29 As for the claim for a fiduciary trust obligation he said Coe did not define or describe the fiduciary duty of the State of NSW nor describe the breaches of fiduciary duty and trust obligations. In relation to the claim that the State of NSW and its predecessors had a sovereign duty to protect the Wiradjuri yet unlawfully purported to extinguish native title rights, Mason CJ said the argument did not reveal the basis of an implied constitutional duty owed by the State of NSW to the Wiradjuri or the basis of such a breach of duty of care. The claim for compensation and damages was also inadequately pleaded as it did not identify the precise tortuous wrong (Coe v Commonwealth, 1993: 200-205).

The High Court has also rejected the assertion that customary law of Aboriginal people survived colonisation, including claims that state or Commonwealth statute law cannot apply to Aboriginal people until it is adopted by Aboriginal people. The case of Walker v The State of New South Wales was about whether Aboriginal criminal law could be recognised by the common law and continues in the way that Aboriginal land tenure laws were held to continue in the case of [No. 2].30 Charged with a criminal offence in New South Wales, Denis Walker argued that the common law is only valid in its application to Aboriginal people to the extent to which it has been accepted by them. His argument was that statute law of the states and Commonwealth cannot apply to Aboriginal people without their consent and has no effect until it is

29 The United Nation Convention on the Prevention and Punishment of the Crime of Genocide 1948. 30 Walker v The State of New South Wales (1994) 182 CLR 45. 109 adopted by Aboriginal people. It was argued that the criminal law imported into New South Wales on colonisation only affected the colonists and was only applicable to the colonists.

Chief Justice Mason stated that Walker’s pleadings were untenable because the New South Wales legislature had power to make laws for the peace, welfare and good government of New South Wales. Citing Coe v The Commonwealth (1979) he rejected the claim that Aboriginal people were sovereign. He also said Mabo v Queensland [No. 2] (1992) does not support the notion that the Commonwealth and New South Wales Parliaments lacked legislative competence to regulate or affect the rights of Aboriginal people or that Commonwealth or state laws are subject to the acceptance, adoption, request or consent of Aboriginal people. Such a notion, he said, amounts to a contention that a new source of sovereignty resides in Aboriginal people. As to the question of whether customary Aboriginal criminal law survived colonisation and hence the criminal law of New South Wales did not apply to Aboriginal people, Mason CJ rejected the proposition because English and Australian criminal law do not accommodate an alternate body of law operating alongside it. He went on to say that even if customary criminal law survived British settlement, it was extinguished by the passage of criminal statutes of general application. He said there was no analogy with the situation in Mabo [No. 2] where native title survived colonisation.

Except for Mabo [No. 2] all of the above Indigenous claims for recognition presented and adjudicated within the language and conventions of the common law failed. In this context, on the face of it Mabo [No. 2] seems an aberration. However Mabo [No. 2] did not recognise Indigenous laws and customs as giving rise to a political right such as self- determination. These vital institutions of Indigenous culture according to Short were not ‘accorded the equal recognition and status of settler institutions’, hence ‘white law would continue to trump Indigenous law’ (Short, 2010: 54). Mabo [No. 2] reinforced the legitimacy of Australian sovereignty on the basis that Crown acquisition of the Australian territory and consequently its sovereignty was an act of state that could not be challenged in an Australian court. The courts in Coe v Commonwealth (1993) and Walker v NSW (1994) also followed this reasoning; the assumption behind it is that Indigenous people either had no sovereignty prior to 1788 or British sovereignty 110 extinguished Indigenous sovereignty in 1788. The courts have therefore consistently and emphatically rejected any notion that Indigenous people in Australia retain any form of sovereignty. In the courts’ view there is no other source of sovereignty other than that exercised by the Commonwealth and state governments.

The High Court asserts the exclusivity and legitimacy of British-Australian sovereignty as the means to extinguish any suggestion or contention that Indigenous people have a form of residual sovereignty that still exists in Australia. Land or native title rights not attached to any notion of Indigenous sovereignty are much more acceptable to the common law. Assertions of Indigenous sovereignty with respect to criminal matters have been equally unsuccessful. Although the two Coe cases were not presented correctly in accordance with the language and conventions of the common law, claims to domestic dependent nationhood were rejected by the courts on the basis of the principle in Cooper v Stuart. Indigenous people sought recognition of continuity of their culture, their rights and authorities and recognition of plurality but these claims did not fit within the language, convention and assumptions of the common law. The common law sees them as a threat or challenge to Australian sovereignty and constitutionalism.

When the High Court in Mabo [No. 2] rejected terra nullius it did not follow through and consider whether Australia had been conquered by the British or ceded by treaty. For it follows that if there was no terra nullius and no treaties then the only available method of acquisition of Australia was conquest (Simpson 1993-1994). The High Court also refused to recognise that native title originates from the collective authorities and powers of Indigenous people over their territory and that these powers have continuity. These powers did not cease in 1788 and while governments and courts have tried over the course of history to eliminate this authority and power by various means, they have not been able to totally eliminate Indigenous people within whom the power resides.

Still considered barbarians Australian courts have played a significant role in perpetuating a colonial discourse that perceives Indigenous people as having deficits in regards to European ‘civilisation’ and on that basis it was assumed that the Australian territory was in fact terra nullius.

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This barbarian theory is still part of the common law to the extent that the High Court in Mabo [No. 2] accepted that Australia was established as a settled British colony. According to the assumptions embedded in the common law, Indigenous people were not and are still not ‘civilised’ enough to be a sovereign people. The High Court also said the acquisition of sovereignty of the Australian continent was within the prerogative power of the Imperial Crown and as such it is an act of state that could not be challenged in an Australian court. Therefore the international law and British common law view that Australia was legally uninhabited for the purpose of acquisition of sovereignty still applies.

Watson argues that the legal theory of terra nullius remains intact because the High Court in Mabo [No. 2] merely replaced the term ‘terra nullius’ with the ‘act of state’ doctrine. A rejection of terra nullius would have dismantled the Australian legal system. In that regard the High Court ‘sanctioned colonialism, dispossession and disempowerment’ of Indigenous people as a ‘legitimate act of state’ (Watson, 1997: 47-48). Reynolds argues that the courts have maintained the assumptions about Australia being a land without sovereignty. But it is not enough for the Crown to assert that at the moment of annexation Indigenous sovereignty disappeared over vast areas of land and among people. According to Reynolds the fiction that Indigenous people had no sovereignty or lost it when Britain annexed Australia cannot continue to underpin our national life or Australian jurisprudence (Reynolds, 2006: 6, 11). However Mabo [No. 2] has effectively confirmed that the acquisition of sovereignty of the Australian continent is an act of state that cannot be challenged in an Australian court.

Conclusion In this chapter I demonstrated how colonial perceptions and assumptions about Indigenous people in Australia have influenced British colonisation of Australia and also influenced the subsequent application of British and Australian jurisdiction over Indigenous people and their territory. These colonial assumptions are strongly reflected in the reasoning of Australian courts in their persistent denial of Indigenous rights to land and sovereignty; and they continue to underpin the relationship between Indigenous people and Australian governments. The power of these

112 assumptions has become inviolable over the course of history, to the extent that they are now ingrained in governmental institutions and the contemporary public attitudes about Indigenous people and have significant influence in government Indigenous policy making.

The relevance of the theory and practice of dialogue as discussed in chapter two is its applicability to not only change the way in which governments make and implement Indigenous policy, but also transform the existing colonial relationship between Indigenous people and governments. In an intercultural context dialogue is a process of interaction to address conflict, recognise and accommodate difference and promote mutual understanding. Dialogue enables people to explore and understand why they hold certain beliefs and assumptions about other people. In that regard dialogue can be used to explore the underlying assumptions that constrain the thinking of Australians and prevent them from developing relationships of recognition and respect with Indigenous people.

Direct struggle against colonisation is almost impossible for Indigenous people, however Tully argues that colonial assumptions can be challenged through intercultural dialogue by drawing on Indigenous language of political thought or drawing on Western language of political thought, and by arguing prior and co-existing sovereignty and self-determination (Tully, 2000: 51-52). An ongoing intercultural dialogue is required in Australia to agree on principles and processes in regards to how Indigenous and other Australians might associate politically in the future and also address past injustice. Dialogue can create new footings for a transformed relationship. However there is no practice or culture of dialogue with Indigenous people in Australia. But there is a history of Indigenous anti-colonial resistance and challenge in Australia and these struggles for freedom and self-determination are discussed in the chapters that follow. The Indigenous struggle in Australia has encompassed the assertion of Indigenous cultural rights and difference, citizenship rights, self-determination including recognition of Indigenous sovereignty, legal and political recognition, reconciliation with settler Australians and economic self- sufficiency.

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Challenging colonialism through the judicial system is difficult for Indigenous people as evidenced by the discussion above in regards to the application of the ‘barbarian theory’ by Australian courts. Challenging colonialism through the political system is also difficult; however it is the political arena where Indigenous people have been able to make the most significant gains. In the next chapter I examine how Aboriginal people at Coranderrk station in colonial Victoria challenged the hegemony of the protection policy, demanding land and freedom to pursue their aspirations of self- sufficiency and self-determination.

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CHAPTER 4: PROTECTION AND MANAGEMENT

Introduction This chapter presents a story about how Aboriginal people at Coranderrk an Aboriginal reserve in colonial Victoria attempted to engage in intercultural dialogue with the settler colonial state between the early 1860’s and the early 1920s. The story focusses on the experiences of Coranderrk Aboriginal people revealing how their attempts at dialogue with the colonial state to protest their treatment and to assert a measure of self-determination were undermined by colonial assumptions about Aboriginal people.

The relationship between Aboriginal peoples and the colonial government at the time was framed by the ideology and practice of settler colonialism. Aboriginal people were regarded as ‘savages’ having no sovereignty or rights and interests in land, and government policy was directed towards ensuring that Aboriginal people would eventually disappear by dying out or by biological absorption and assimilation.

Aboriginal people at Coranderrk faced enormous obstacles yet they challenged the hegemony and dominance of the settler state and attempted to negotiate their way through the colonial laws, rules, conventions and customs to ensure their survival. However, despite their efforts at dialogue with the colonial government, the community was slowly destroyed by the Aborigines’ Protection Board whose members were unable to engage in any form of dialogue with Aboriginal people and who were unable to transform their underlying assumptions about Aboriginal people to recognise the claims of Coranderrk people.

This chapter examines the policy of protection showing how in 1863 settler colonial ideology as reflected in policies relating to the protection and ‘civilisation’ of Aboriginal people were at the forefront of how colonial governments and its institutions related to Aboriginal people. The Coranderrk story is then presented and analysed.

Early British policy Amity, kindness and communication without recognising rights appear to be the policy position of the British towards Aboriginal people in 1788. This is explicit in Captain Arthur Phillips’ instructions to ‘… to open an intercourse with the natives, and to

115 conciliate their affections, enjoining all our subjects to live in amity and kindness with them’ (Bladen, 1978: 89-90). While Captain Arthur Phillip pursued a policy of kindness with the local people, Aboriginal people would later avoid the British settlement and keep their distance (Clendinnen, 2005: 89-93; Karskens, 2010: 355-356). According to Bell, initially British policy was not concerned with civilising Aboriginal people but about preventing their interference with the establishment of the colony. As settlement expanded, conflict with Aboriginal people resulted in punitive expeditions to drive Aboriginal people away from white settlement. Proclamations and General Orders were issued to control contact between whites and Aboriginal people (Bell, 1959: 345).

Some early attempts were made to ‘civilise’ Aboriginal people in and around Sydney without success. By the 1820s opinions differed on how Aboriginal people should be ‘civilised’. Some commentators said Aboriginal advancement would best be served by employing Aboriginal people in socially useful roles. Others argued for segregation from white society shielding them from white vices, and there were those who claimed Christianisation as the necessary first step to civilisation (McGregor, 1997: 11-12).

Protection By 1825 pessimism began to set in about the capacity of Aboriginal people to advance, culminating in the idea that European ‘civilisation’ could result in the inevitable extinction of Aboriginal people. By the 1830s this idea had gained a foothold in the colonial imagination. Some commentators regarded extinction as the end point of a degenerative process (McGregor, 1997: 13-16). The doomed race theory dovetailed with Darwin’s survival of the fittest theory when applied to human races: extinction was considered inevitable when so called ‘low races’ came into contact with so called ‘civilised races’. In the late 19th Century in Australia Aboriginal people were considered ‘backward’ and ‘primitive’ incapable of progress and elevation to civilisation (McGregor, 1997: 48-59).

During the 1830s and 1840s in England reforming groups held considerable political power and they influenced the approach of the British state in its colonial administration of colonised ‘native people’. The ending of slavery in the British

116 colonies in 1833 saw the Anti-Slavery Society, the Exeter Hall humanitarians and other reformers turn their attention to the conditions of the various Indigenous people in the British colonies of New Zealand, Canada and Australia (Goodall, 1996: 45).

Reformists’ views were influential in the 1837 Report from the House of Commons Select Committee on Aborigines (British Settlements). The report looked at measures to secure justice and protect the rights of ‘native inhabitants’ in British colonies and to promote the spread of civilisation and Christianity. The Committee was adamant that Great Britain had an obligation towards Aboriginal people in its colonies and that classing them as ‘savages’ did not exempt the British from their obligations. Further, as enlightened and Christian people, committee members wrote that the British should treat the Aboriginal inhabitants of other lands in a manner similar to how they would like to be treated (Report from the Select Committee on Aborigines (British Settlements), 1837: 3).

The Committee argued for a policy towards Aboriginal peoples based on justice and humanity that would also contribute to the civil and commercial interests of Great Britain. The Committee said it was their business to inquire into how Great Britain has conducted its intercourse with Aboriginal people because Europeans had not understood Aboriginal land ownership:

“It might be presumed that the native inhabitants of any land have an incontrovertible right to their own soil: a plain and sacred right, however, which seems not to have been understood. Europeans have entered their borders uninvited, and, when there, have not only acted as if they were undoubted lords of the soil, but have punished the natives as aggressors if they have evinced a disposition to live in their own country” (Report from the Select Committee on Aborigines (British Settlements), 1837: 5).

“From very large tracts we have, it appears, succeeded in eradicating them; and though from some parts their ejection has not been so apparently violent as from others, it has been complete, through our taking possession of their hunting-grounds whereby we have 117

despoiled them of the means of existence” (Report from the Select Committee on Aborigines (British Settlements), 1837: 6).

In commenting on the Australian colonies the Committee stated that Aboriginal sovereignty or ownership of land had been ‘utterly disregarded’ and the land had been taken from Aboriginal people ‘without the assertion of any title than that of superior force’. The Committee went on to say that whatever the injustice of this encroachment there was no reason to recede from justice or humanity and this needed to be impressed upon the Australian governments and colonial inhabitants. The Committee said that Aboriginal people are entitled to the protection of the Queen and are subject to British law, yet in conflicts, the Europeans ‘acted avowedly upon the principle of enforcing belligerent rights against a public enemy’. Finally, the Committee commented that, considering the government of New South Wales received a return from the sale of unsettled land which ‘was the undisputed property of the Aborigines’, they were required to maintain missionaries to instruct tribes and protectors were required to defend tribes (Report from the Select Committee on Aborigines (British Settlements), 1837: 82-83).

In 1838 as a result of pressure from humanitarian associations in England, the British Government appointed five protectors to ‘civilise and protect’ Aboriginal people in New South Wales (NSW). Protection was intended to achieve two basic aims: preservation of Aboriginal people from racial extinction and uplifting them to a higher stage of civilisation (McGregor, 1997: 83). Nettelbeck states the role of was to alleviate ‘acts of cruelty, oppression or injustice’ against Aboriginal people and to ‘civilise and Christianise’ as well as conciliate Aboriginal people to colonial authority. This included bringing Aboriginal people within the legal ambit of the police, courts and prisons, which often translated into less emphasis on their protection and more on their legal subjugation. In their ‘civilising’ role the protector ensured entry of Aboriginal children into mission schools, educating Aboriginal people in the rules of British law, regulating their mobility through ration distributions and inducing their usefulness to settlers as labourers and domestic workers (Nettelbeck, 2012: 397-398).

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As it was, the protectorate was destined to fail. The powerful settler lobby undermined the efforts of protectors; there was significant government resistance to fulfilling their obligations to Aboriginal peoples and a failure to prosecute or punish settler violence; and Aboriginal people themselves resisted a system that required their transformation (Nettelbeck, 2012: 397). The failure of the NSW protectorate according to Lester and Dussart reflects the inability of British humanitarians to sustain the momentum they had achieved with the Select Committee on Aborigines in the late 1830s against increasing and effective settler opposition to colonial philanthropy. But failure also stemmed in part from the ‘ethnocentric, evangelical assumptions’ of protectors because when Indigenous people refused to become Christian and ‘civilised’, the disillusionment of the protectors left the notion of protection open to settler appropriation during the second half of the 19th Century (Lester and Dussart, 2008: 217-218)

Aboriginal protection or destruction The Port Phillip Protectorate was established under Chief Protector in 1838 to protect Aboriginal people from injustices as a result of white settlement. The protectors were invested with the power of magistrates and they were required to attach themselves to Aboriginal tribes in order to gain their confidence, induce them to settled habits, and represent their rights and interests to promote a religious and civilised life (Nettelbeck, 2012: 398). The Port Phillip Protectorate was considered a failure because of continuing Aboriginal and settler violence and a belief that the system was undermined by the protectors’ lack of ‘sound judgment and zealous activity’. But the protectors had limited resources, lack of support from settlers and the authorities and an inequitable legal system that punished Aboriginal people but not settlers (Nettelbeck, 2012: 399-400).

Following an 1858 Select Committee the colonial government in Victoria enacted a comprehensive scheme to govern the administration of Aboriginal affairs. It included reserving land for agricultural purposes far from licensed taverns where Aborigines could be civilised and Christianised by missionary managers (Broome, 2005:120-122; Chesterman & Galligan, 1997: 12, 16; Massola, 1975:5-6). From May 1860 a Central Board for Aborigines was appointed by the governor to supervise Aboriginal welfare 119 and control the reserve and rationing system. The Central Board recommended that permanent reserves be set aside and that parliament legislate to enable it to order where Aboriginal people should reside. Reserves, stations and missions were established along with laws regulating the sale of alcohol to Aboriginal people. These special precincts were subjected to a tight regulatory regime that denied basic citizenship rights and privileges. Aboriginal people in Victoria had the status of ‘protected persons’ rather than citizens and although they were British subjects subjected to the law they were not entitled to the benefits of citizenship (Chesterman & Galligan, 1997: 15-16).

In 1869 the parliament passed an Act to provide for the protection and management of the Aboriginal Natives of Victoria. The Act gave legislative recognition to the Central Board as the ‘Board for Protection of Aborigines’ (the Protection Board) and it gave power to the governor to prescribe where Aboriginal people could live and to distribute money granted by parliament. The Act defined ‘Aboriginal’ as every Aboriginal native of Australia including every Aboriginal ‘half-caste’ or child of a ‘half caste’ who habitually associated and lived with Aboriginals. By 1874 the Protection Board controlled six Aboriginal stations where around 500 people lived (Chesterman & Galligan, 1997:16- 17)31.

There was an ‘extraordinary level of regulation’ of Aboriginal people by the Protection Board controlling where Aboriginal people lived, where they could take their meals and sleep, conditions of their employment, who they could marry, whether they were entitled to rations and who could live on an Aboriginal station. The Protection Board would later gain power to determine who was an ‘Aborigine’ and who was a ‘half- caste’ as well as the power to separate children from their parents. The 1869 Act was amended with an Act known as the Merging the half-castes Act in 1886. Both Acts were later consolidated into a new Aborigines Act in 1890 (Chesterman & Galligan, 1997:17-26).

31 Coranderrk near Healesville; Framlingham near Warrnambool; Lake Condah north of Portland; Lake Hindmarsh (Ebenezer) in the Wimmera; Ramahyuck (Lake Wellington); and Lake Tyers both in Gippsland. 120

The policy of the 1886 Act was to merge so called ‘half-castes’ into the white community, making them useful members of society and relieving the state of the cost of their maintenance. The 1886 Act narrowly defined ‘Aboriginals’ to exclude ‘half- castes’ except those ‘half-castes’ who were 34 years of age and older living and associating with Aborigines, or those married to or having a licence to reside with Aborigines (Chesterman & Galligan, 1997:18-20). The Protection Board advised all station managers to give notice to all ‘half-castes’ to move off the stations and look for employment and homes among the white population. They were treated as trespassers and steps were taken to remove them from the stations (Chesterman & Galligan, 1997: 21-23). This also included forcing adolescents aged 14 years and over from stations under powers to licence and apprentice out ‘half-caste’ children. This practice would later cease however from 1871 ‘neglected’ and ‘unprotected’ Aboriginal children could be removed to an industrial or reformatory school, while from 1886 ‘half-caste’ children could be removed from stations if they were orphaned or deemed neglected (Chesterman & Galligan, 1997: 24-25).

Both the 1886 and 1890 Acts and the regulations had a devastating impact on Aboriginal people, limiting their freedom, forcing people from their homes on reserves, breaking up families by removing children from their parents, and closing the reserves over a 40 year period (Broome, 2005:188-193). The extinguishment of Aboriginality is considered potential genocide (Broome, 2005) and the 1886 Act is considered an attempt at legal genocide (Christie, 1979:205). Aboriginal administration in Victoria had become entirely authoritarian and paternalistic. The depression of the 1890s caused further hardships for Aboriginal people as the Protection Board was pressed by the government to reduce costs and so began closing and amalgamating its six stations (Barwick, 1998:303).

Despite the new framework of authoritarian and paternalistic control that was established in 1860 to regulate and control the daily lives of Aboriginal people, Aboriginal people at Coranderrk station in colonial Victoria attempted to subvert this system of control.

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Corranderrk 1863-1948 Beginning with the occupying forces’ early contact with the Boonwurrung in 1801 near Sorrento in Port Phillip Bay, and permanent occupation on Gundijtmara land near Portland Bay in 1834, the pastoral settlement into Port Phillip’s interior was rapid. Aboriginal people were generous in guiding Europeans through the country helping them to establish pastoral runs in return for food and tobacco. Relationships and friendships were established and there was accommodation on both sides with exchanges happening between both groups (Broome, 2005:54-60). But relations were not always peaceful on pastoral runs. Many squatters had a sense of absolute ownership of the land and wanted no impediments to their pastoral venture, fearing and distrusting Aboriginal people.

The Kulin were regarded as either ‘savages’ or a ‘fine race’ by early settler colonials and they were also considered capable of being civilised.32 In early the Kulin were a common sight in the streets camping on the outskirts of town. The early years of black-white relations were affable and driven by curiosity and openness on both sides. Aboriginal people were attracted to Melbourne and by 1839 there were 300 Aboriginal people camped by the Yarra River, mainly Kulin. In January 1844 there were 675 Aboriginal people from various regions camped near the town (Broome, 2005:15-20). Aboriginal people embraced and adopted European artefacts, foods and technologies and the English language – but this created dependence. There were also the dangers of alcohol and disease. Fighting and warfare amongst themselves caused their expulsion from the township in September 1840. Aboriginal people elected to move to Narre Warren (Broome, 2005:20-31).

In June 1845 John Batman came to purchase land from the Kulin on behalf of the Port Phillip Association a group of capitalists from Van Diemen’s Land (Tasmania). Batman brought seven ‘Sydney Blacks’ who communicated to the Kulin, Batman’s desire to purchase land in exchange for blankets, steel blades, mirrors, beads and a yearly rent. But the British Government rejected Batman’s treaty as it undermined their claim for

32 The , Boonwurrung, Wathawurrung, DjaDjawurrung, and Daungwurrung clans shared a common language and existed in a loose confederation. They called themselves Kulin. See Broome (2005: xxi). 122 sovereignty over Australia (Broome, 2005:9-11). No effort was made by colonial authorities to address the land needs for the new colony by negotiation with Aboriginal people.

Kulin nation aspirations In late February 1859 a deputation of five Daungwurrung men with Simon Wonga and Tommy Munnering as interpreters met with William Thomas (Guardian of Aborigines and former Assistant Protector of Aborigines) seeking a block of land on their country on the Acheron River near Alexandra on which to farm. Thomas facilitated a meeting with the Surveyor-General of Lands and the deputation was well received. Thomas recommended the group be given 2,000 hectares with some initial provisions, implements and advice from an agricultural family (Barwick, 1998:39-40, Broome, 2005:123, Massola, 1975:7-8).

Thomas also arranged for the men to meet the Minister for Lands and the Board of Lands and Works in March 1859. These ‘dignified men’ moved the Minister and the Board to approve the Acheron proposal. 80 Kulin settled at Acheron and while they waited for government assistance the women produced and sold baskets to raise money for food and tools and the men hired themselves out to surrounding pastoralists (Barwick, 1998:40-41, Broome, 2005:123, Massola, 1975:7-8). The Kulin worked enthusiastically fencing, clearing and planting wheat, vegetables and potatoes on the Acheron reserve. But their aspirations were dealt a severe blow by some pastoralists and squatters who opposed the reservation, forcing their removal to nearby Mohican station that was purchased by the Protection Board. Mohican station proved unsuitable for grazing and agriculture (Barwick, 1998:41-46, Broome, 2005:125, Massola, 1975:9-10).

The Acheron reserve was handed over to Hugh Glass, a powerful squatter. A deputation of Kulin sought help from Williams Thomas who urged the Protection Board to intervene but there was no support from them because of the minority status of the government (Barwick, 1998:48-52, Massola, 1975:10-12). In 1861 John Green, a Presbyterian lay preacher, was appointed as General Inspector to advise the Protection Board and implement board policy. Green recommended a return to Acheron and

123 although supported by the Protection Board the Lands Minister was reluctant to gazette a new reserve due to political pressure. Green then advocated removal to a reserve on the Yarra River where he was requested to establish a school (Barwick, 1998:53, 57-63).

John Green and Kulin clan leaders including Simon Wonga and William Barak selected a reserve on Badgers Creek near Healesville. In March 1863 Green, his family and 40 Kulin walked over the Great Dividing Range to their new home which they named Coranderrk. To obtain the Governor’s consent for the reservation a deputation of Kulin, which included Simon Wonga and William Barak, walked to Melbourne to attend the Governor’s celebration of the marriage of the Prince of Wales and the Queen’s Birthday. They presented gifts for the Prince of Wales and Wonga presented a speech in Woiwurrung making a loyal address to Queen Victoria. The deputation also spoke to the Governor about land. In June 1863, 2,300 acres was gazetted as reserve for Coranderrk station (Barwick, 1998:65-69, Broome, 2005:124-125, Massola, 1975:12- 15).

The Kulin began building huts, clearing the land, fencing and planting wheat, oats, potatoes and other vegetables, and raising cattle for milk and meat. Within a year 67 Kulin had settled at Coranderrk and by June 1865 there were 107 Kulin. Between 1864 and 1866 most survivors of Kulin clans had moved to Coranderrk. Aboriginal people from other areas of Victoria were also sent to Coranderrk and this included ‘neglected’ ‘abandoned’, orphaned children or children who might be surrendered under the Aborigines Protection Act of 1869 (Broome, 2005:134-136, Massola, 1975:17-18).

The Kulin created their own reserve court in April 1865, which laid down rules of conduct and punishment of offenders (Barwick, 1998: 68; Broome, 2005: 167-168). To develop the farm, Green used his own salary and the savings of working Kulin men as well as income from nets, bags, baskets, weapons and skin rugs made by the women and old men. The small income from the crops and crafts paid for improvements, clothing and household necessities not provided by the Protection Board (Barwick, 1998:80-81). The farm was self-managing with the Kulin men organising into four companies to manage the farm tasks with little supervision. The community was

124 almost self-supporting producing their own food, growing crops, breeding cattle and cultivating hops as a successful cash crop. They built bush timber and bark slab huts and made their own furniture. However settler farmers in the district began to pressure for alienation of Coranderrk’s agricultural land and in 1869 the Surveyor General recommended the resumption and sale of the reserve. The Protection Board appealed against this, but due to influence and pressure the Protection Board resolved to find another reserve (Barwick, 1998:82-84).

Paternalistic and authoritarian administration By the 1870s a number of issues regarding Coranderrk came to a head: health problems and deaths, resentment over distribution of goods, unrest over payment for work and rations of meat, disputes with European staff and the banishment by the Protection Board of Aboriginal people from Coranderrk for agitating for payment of wages. Criticisms of Green’s management also surfaced. There was also criticism in parliament over land ‘laying waste’ for Aboriginal reserves with pressure on the Protection Board to sell Coranderrk. Changes were also happening with the composition of the Protection Board under the new Aborigines Protection Act 1869. The Protection Board took control over expenditure, the enforcement of Coranderrk court rules and hops cultivation. It appointed authoritarian management and hired European labour to clear land and pick hops (Barwick, 1998: 87-103).

The Kulin and John Green were anxious about the takeover of the farm as they no longer had a voice in its management. Green refused to give up Coranderrk for selection by white farmers and as a result of tensions and disagreements he was pressured to resign as manager of Coranderrk by the Protection Board Secretary, Robert Brough Smyth in August 1874. Smyth was considered a despot. William Barak who took over the leadership after Simon Wonga’s death in 1874 led a deputation to the Protection Board’s office in Melbourne in July 1875 requesting Green’s reinstatement but the request and complaints of the deputation were ignored. Within 14 months the Protection Board had dismissed Green as Inspector General because of his opposition to selling Coranderrk and because he refused to cooperate with Smyth and the Protection Board in the removal of Coranderrk people to the Murray (Broome, 2005:168-169, Christie, 1979:183-184). 125

Growing unrest ensued at Coranderrk. William Barak and others wrote letters of complaint to the Protection Board Secretary and also attended a Board meeting in July 1875. While they were heard, they were also ignored (Barwick, 1998:105-108). The Protection Board had changed profoundly between 1874 and 1876 with founding members replaced by conservatives with a pastoral background. It had become more hard line and disciplinarian. In August 1875 the three new members constituted themselves as a sub-committee to report on the future management of Coranderrk. After an afternoon escorted tour of Coranderrk they concluded the residents were suffering from ‘consumption’ and must be removed to a warmer climate (Barwick, 1998:111-115, 120, 133, 153-154).

William Barak told a journalist in February 1876 that the Yarra was his father’s country and he and his people did not want to leave. Barak led a deputation walking the 60 kilometres to Melbourne to appeal to the premier. While waiting to see John MacPherson, the Chief Secretary of the Board, they were threatened by Frederick Godfrey, a wealthy pastoralist and businessman and the newly elected Vice Chairman of the Board.33 He threatened the men with removal from Coranderrk if they dared speak to the authorities but the deputation defied him. MacPherson promised to visit Coranderrk to investigate their grievance and contradicted rumours that the government intended to remove people. The Protection Board was on the defensive. In parliament Godfrey argued conditions were not terrible at Coranderrk and that the Protection Board did not intend to break up Coranderrk but merely to create a winter quarters on the Murray to counter the high pneumonia rates on the reserve. The Chief Secretary and the Chief Medical Officer visited Coranderrk in the following month. MacPherson challenged the Protection Board’s refusal to allow the Coranderrk men to accept outside employment and also applied pressure for the improvement of Coranderrk (Barwick, 1998:128-132, Broome, 2005:169-170, Christie, 1979:185-186).

In August 1876, following several deaths at Coranderrk the Premier James McCulloch asked the Protection Board to explain. Godfrey argued in parliament that the board were acting in the Kulin’s best interests and that housing should be improved at

33 The Chief Secretary of the Board was also the Minister responsible for Aboriginal people. 126

Coranderrk however it should remain only for the old and infirmed. A parliamentary inquiry conducted in August 1876 absolved the manager of negligence and found the system of health treatment faulty. Two of the inquiry team were Protection Board members. Another two members of the inquiry team submitted a dissenting report demanding an inquiry into the Protection Board’s negligence and the administration of all Aboriginal people. However in September 1876 the Protection Board supported the management of Coranderrk and also resolved that its locality was not fit for the residents (Barwick, 1998:135-143, Broome, 2005:170).

MacPherson’s promise of a Royal Commission was instituted in January 1877 to inquire into the conditions of Aborigines and the future of all reserves. The Commissioners recommended the retention and adequate funding of reserves to make them self- sufficient; that residents should be paid for their work and provided with a store; that ‘wanderers’ be collected on reserves; that missionaries be employed as managers; the Protection Board be streamlined and that the state continue to pay to fulfil its ‘sacred duty’ to those injured by settlement. But little was done as the Protection Board avoided making improvements to Coranderrk and continued in its efforts to close the reserve (Barwick, 1998:154-156, Broome, 2005:171, Christie, 1979:187).

After the Royal Commission, the Protection Board continued to urge for closure of Coranderrk. In April 1878 a deputation of ten men led by William Barak walked most of the night to Melbourne to protest the closure of Coranderrk.34 They were introduced to the Chief Secretary of the Protection Board and Premier Graham Berry by John Dow, The Age and Leader journalist who had been elected to parliament. The deputation was critical of the management at Coranderrk and also complained about the removal of John Green as manager. Graham Berry pledged to do what he could and asked Dow to investigate the management of Coranderrk. However the Protection Board conducted their own investigation, dismissing the Coranderrk grievances as trivial, vexatious and confined to one or two individuals. Dow’s report raised an issue of factionalism in the community that was fostered by the disciplinarian manager at Coranderrk. He advised the reinstatement of John Green as inspector and manager,

34 William Barak, Robert Wandin, Thomas Dunolly, John Charles, William Hamilton, Thomas Bamfield, Dick Richards, Martin Simpson, Tommy Farmer. 127 the disbanding of the Protection Board and the direct control of Aboriginal affairs by the minister. The Chief Secretary did not take up Dow’s recommendations (Barwick, 1998:160-164).

In May 1879 the Protection Board revived their plan to sell Coranderrk based on reasoning that it was too cold and wet and too close to the township of Healesville. There was incessant protest at Coranderrk throughout the 1880s as a result of the underhanded scheme of the Protection Board to sell Coranderrk and move the residents to other reserves. The Protection Board believed the community were not capable of organising protest and that white sympathisers incited protests. A new government in February 1880 was reluctant to intervene in the management of Coranderrk. When the government changed again in July 1880 Graham Berry was returned with a narrow majority and although sympathetic he was unwilling to overrule the Protection Board (Barwick, 1998:165-178).

By March 1881 closure of Coranderrk looked imminent. William Barak and Thomas Bamfield led a deputation of 22 men to Melbourne in order to meet with Graham Berry seeking the disbanding of the Protection Board and for John Green to be reappointed. Three members of the Protection Board attended the meeting believing that interfering whites had incited the Aboriginal protest. Berry sympathised with the deputation on the sacking of John Green and their poor treatment by the board. He confirmed Coranderrk would continue and that they would not be removed from the station however he could not alter the management. Berry also spoke with the Coranderrk men one by one in private. They were happy with the outcome of the meeting. The Protection Board reluctantly allocated funds for improvements at Coranderrk but construction was stopped after a couple of months. The Protection Board then recommended dismissal of three ‘half-caste’ families from Coranderrk on the basis they could not live on a ‘black’ station (Barwick, 1998:178-180).

With the defeat of the Berry Government in July 1881 the new government of Bryan O’Loghlen wanted rail expansion in Victoria including a rail line to Healesville. The Protection Board saw this as an opportunity for the government to sell Coranderrk to pay for the rail line. The Protection Board argued the unhealthy location of Coranderrk

128 and that only 22 of the adults living at Coranderrk were ‘full blood’. 46 Kulin petitioned the new O’Loghlen ministry for the return of John Green and the continuance of Coranderrk. In August 1881 a board of inquiry was appointed to investigate the conditions and management of Coranderrk. The Protection Board attempted to undermine the Minister responsible for Aboriginal people and sought appointment of a local committee and also abandonment of the board of inquiry but without success (Barwick, 1998:180-184, Broome, 2005:172).

Along with a range of other witnesses, 22 Aboriginal residents at Coranderrk were questioned in the inquiry. A petition from Coranderrk signed by 46 people was also presented to the inquiry. It sought the removal of the Protection Board, the Inspector and the Secretary, the reinstatement of John Green and for the station to be placed under the control of the Chief Secretary. The inquiry report recommended the retention and upgrade of Coranderrk, tightened management and reintroduction of meat to basic rations. It also recommended that the ‘full bloods’ be maintained in comfort and the ‘half castes’ be encouraged to hire themselves out under proper supervision. A sub-report of sympathetic members called for an end to Protection Board control of Coranderrk, the abolition of the board secretary position and recommended permanent reservation of Coranderrk. It also urged training for people of ‘mixed descent’ and for them to have a right to return to the reserve as their home. In a rejoinder the Protection Board supporters challenged the authenticity of the Aboriginal complaints claiming they were influenced by outsiders (Barwick, 1998:213- 216, Broome, 2005:172-176; Christie, 1979:188-189).

Encouraged by the support they received from the inquiry 21 Coranderrk people signed a petition in February 1882 seeking reinstatement of John Green as manager and the abolition of the Protection Board, and they urged implementation of the recommendations of the sub-report of the Coranderrk supporters. Coranderrk residents also marched to Melbourne to press for their petition. But Green was never reinstated and the Protection Board remained (Barwick, 1998:216-218; Christie, 1979:189-191).

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The O’Loghlen Government never publicly proclaimed a decision on the Inquiry report but in June 1882 gazetted four new members to reform the board. Whilst a new manager sympathetic to Coranderrk people was also appointed, the Coranderrk people were not satisfied. Again in July 1882 the leaders along with William Barak walked to Melbourne to argue for the reinstatement of Green but the Chief Secretary would not intervene. An appeal to the board was useless so the men walked home, returning ‘crestfallen’. However the new manager William Goodall earned their respect and loyalty working beside them, successfully harvesting a record hops crop and winning a gold medal and money prize for their hops at the Melbourne Exhibition in 1884 (Barwick, 1998: 221, 240, 248-249, 258-259, 281).

New Aboriginal policy A conference of managers held by the Protection Board in August 1882 made a number of decisions about the future of Aboriginal policy and established disciplinary rules on stations including the banishment of rebellious residents to other stations. Some of the critical decisions included merging ‘half-castes’ into the general population, allowing men to work elsewhere providing they supported their families, and apprenticing out youth or compelling them to work at home. The Coranderrk leaders criticised the rules with Barak, Wandin, Dunolly, Bamfield, Parker, Morgan and four more senior Kulin and men signing a letter to The Argus newspaper stating the rules treated them as slaves and arguing they were as free as any white men (Barwick, 1998:251-252; Christie, 1979:195).

The 1880s was a time of change as new Aboriginal policy emerged based on racial classification and ideas of self-improvement. Following the 1877 Royal Commission there was a growing tendency to distinguish between ‘full bloods’ and ‘half castes’. The thinking of the white colonial population was to encourage ‘half-castes’ to make their way in society. The eventual aim was to absorb Aboriginal people into the general community. The young ‘half-castes’ were considered the group most capable of being absorbed into the white population. A major focus of the Protection Board was the removal of ‘literate half-castes’ from Coranderrk to assimilate them into mainstream community but also to disperse so called ‘trouble makers’ from Coranderrk (Broome, 2005:178-180; Christie, 1979:191-194). 130

Change was also happening within the Coranderrk community with most of the old Kulin pioneers who had walked from the Acheron reaching old age and suffering sickness. They were a minority on the reserve being displaced by a younger generation, many of whom were brought to Coranderrk as dependent children. This younger group of people was favoured by the manager at Coranderrk as they spoke good English and understood European expectations (Barwick, 1998:236-237, 263- 264).

When the O’Loghlen Government lost the election in January 1883, Graham Berry became Chief Secretary of the Board. Although sympathetic to Coranderrk people he had to deal with an unsympathetic and undermining Protection Board and became embroiled in the banishment of Tommy Bamfield from Coranderrk. Bamfield was a central figure in the protest movement and was William Barak’s spokesman on matters concerning the community but the Protection Board considered him troublesome. When Bamfield protested over meat rations, the board secretary – without consulting the manager – sought an Order-in-Council for Bamfield’s removal to Gippsland. The recently elected Minister Berry approved this order and Bamfield was arrested in April 1883. 21 men from Coranderrk set off again walking to Melbourne to appeal to the Minister who rescinded the order saying he wanted to uphold the deputation’s dignity as upright and honest men (Barwick, 1998:261-268).

The Protection Board unanimously adopted a proposal for removing ‘half-castes’ under the age of 35 years from the reserves in May 1884. The scheme included discretion to supply the needy with rations, clothing and blankets for a period of seven years. Girls and boys from the age of 13 years would be required to leave the station for apprenticeships as servants and all orphans would be transferred to public institutions. The Protection Board was also prepared to permanently exile individuals from their homes. There was no public debate on the morality of this decision. Most colonial Victorians supported the policy assuming that ‘half-castes’ would benefit from absorption into white society. But public acceptance was also motivated by self- interest because dispersal of the ‘half-castes’ would save the government money by reducing the Protection Board’s budget, ease the labour shortage and free reserve land for selection (Barwick, 1998:281-283). 131

The Protection Board lobbied the Minister Graham Berry for the legal enactment of their scheme and to amend the 1869 Aborigines Act. It argued dispersal of ‘half-castes’ would reduce the costs to government, enable amalgamation of stations and, when vacated, the land and buildings could be used for industrial and agricultural school purposes. Berry promised amendments in the general direction suggested by the board as he was in favour of gradual merging. However, he insisted that Aboriginal people should be able to look upon the station as home or refuge (Barwick, 1998:283- 284). The intention of the new Bill was to disperse ‘half-castes’ off the reserves and manage those left on the stations. ‘Half-castes’ would be prosecuted under vagrancy laws if they refused to work and as for those Aboriginal people who were left on the reserves they would be punished with removal from the station if they misbehaved (Christie, 1979:196-197).

The Coranderrk people sought redress from Graham Berry arguing it would be a great hardship for them to be turned away from the station because they had lived there for a long time and it was their home. But the board had already sought parliamentary support for the legislation and the public were less sympathetic to the ‘half-caste’ question (Christie, 1979:197). However in July 1884 without informing the Protection Board, Berry arranged for gazettal of the whole 4,850 acres of Coranderrk as a permanent reserve revocable only by an Act of parliament (Barwick, 1998:284).

The demise of Coranderrk A series of changes would impact on Coranderrk and contribute to its demise. Between 1879 and 1886, 15 so called ‘fullblood’ and 29 so called ‘halfcaste’ adults and children migrated from Coranderrk to Maloga mission. A number of ‘half castes’ were also exiled from Coranderrk after the passage of the 1886 Aborigines Act. In December 1885, an authoritarian manager replaced the manager William Goodall. In February 1886 the government resigned and a new coalition government was elected. Alfred Deakin succeeded Graham Berry as Liberal leader and also took on the role of Chief Secretary of the Protection Board (Barwick, 1998:293-296, 302).

Concerned with the impending legislation, William Barak and Tommy Bamfield and their supporters Ann Bon and Ephraim Zox presented a petition to Alfred Deakin in

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September 1886 asking him to ensure that they retained the right to appeal from the Protection Board to the Chief Secretary and objecting to a clause in the Bill which gave the Protection Board power to punish residents of stations by removal or forfeiture of rations. 15 Kulin, Pangerang and Burapper men from Coranderrk, signed the petition. Deakin promised to put their views to Cabinet. But the Bill received quick passage into law in December 1886 after the two coercive clauses were removed (Barwick, 1998:299-300). The 1886 Act changed the definition of Aboriginality dividing people into ‘Aboriginal’ and ‘half-caste’.

Coranderrk was slowly being destroyed. When mixed blood Aboriginal people were removed from Coranderrk the farm development ended. Only half of the reserve was being used. The Healesville Shire Council applied to alienate Coranderrk reserve for an agricultural college and to cut a road through the reserve in 1889. The Protection Board consented to the road proposal. The Protection Board relinquished the eastern half of the reserve near Healesville to the Lands Department in 1893. In October 1893 William Barak and Robert Wandin collected the signatures of all Coranderrk residents in a protest petition; however the Bill for the 1890 Consolidation Act was already before parliament and the Protection Board threatened punishment if the Coranderrk residents attempted a public protest (Barwick, 1998:304-306).

Healesville residents petitioned the government to resume the reserve for a permanent military camp in 1914 and 1915. In the post-war years Coranderrk was also considered for resumption for soldier settlement and all residents were to be transferred to . In 1917 the Protection Board was persuaded to consent to the abandonment of Coranderrk but the Aboriginal residents refused to leave. Coranderrk residents petitioned the Protection Board for retention of the reserve in August 1919. However by 1921, pressure was being applied by the Healesville Shire Council, the Repatriation Committee, the Patriotic League, the local branch of the RSL and six returned European soldiers who wanted blocks of land (Barwick, 1998:306-307).

Besides the impact of the Aborigines Act, generational change was also happening in Coranderrk, with many of the Aboriginal leaders being too old to be active or passing

133 on. Tommy Bamfield died in 1893, William Barak in 1903, and Robert Wandin in 1908 (Barwick, 1998:303). Similarly, sympathetic white supporters had passed on or were no longer active because of age. Public opinion was also no longer sympathetic, being influenced by those who sought alienation of Coranderrk land. The Coranderrk residents wrote letters to the papers and sent petitions to the Protection Board with little impact (Barwick, 1998:308-309).

The Protection Board continued to remove families from Coranderrk and leased the land for grazing and cultivation. In December 1923 the Protection Board resolved to allow nine people to remain in their cottages at Coranderrk until their deaths and instructed the police to move the mixed Aboriginal people living outside the reserve. In February 1924 with government approval Coranderrk was closed. After the Second World War further lobbying to obtain Coranderrk land for soldier settlement resulted in the passing of the Coranderrk Land Bill in July 1948, revoking its permanent reserve status to enable the land to be handed to the Soldier Settlement Commission. None of the returning Aboriginal soldiers from the region acquired any of the Coranderrk land (Barwick, 1998:310-311, Broome, 2005:214-216).

Coranderrk: discussion and analysis

The assumptions The struggle at Coranderrk unfolded against the background of a number of colonial assumptions that affected the way in which Europeans engaged with Aboriginal people. These assumptions impacted on the way the Coranderrk people were treated by the Aborigines Protection Board and also the government. As Aboriginal people, they were considered to have no rights to anything and in that regard the authorities did not consider it necessary to talk, engage with or listen to Coranderrk people.

The assumption that Aboriginal people were not capable of self-management resulted in authoritarian policies and paternalistic practices at Coranderrk. Further when people in Coranderrk asserted their rights and protested about their treatment it was assumed by the authorities that they were incapable of organising protests and were instead manipulated by their white supporters.

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While enlightened humanitarian reform policies concerned with the protection of Aboriginal people enabled the Kulin and other Aboriginal groups to obtain land for a community and for self-sufficiency, the system of ‘protection’ instituted by colonial governments was more oppressive than protective. The reservation of land did not recognise Aboriginal traditional ownership but were precincts in which to regulate and control Aboriginal people. One of the most destructive assumptions was the doomed race theory in which the so-called ‘primitive’ Aboriginal race would eventually become extinct. So-called ‘full bloods’ would die out and so-called ‘half-castes’ would be uplifted and merged into white society. It was assumed by settler colonials that mixed blood Aboriginal people would benefit from losing their identity and being absorbed into white society.

Challenging hegemony The struggle by the Kulin and other Aboriginal people in Coranderrk not only challenged the authority of the Protection Board but also challenged the norms of settler colonialism which treated them as inferior and as having no rights in land. A key demand of the Kulin was for land to not only secure their traditional country but to farm like Europeans and to be self-sufficient. Central to their demand for land and improved living conditions was the demand for self-determination and this involved the reinstatement of John Green as manager. Over a period of some 65 years people in Coranderrk challenged the injustice of the laws and systems which not only denied them privileges of being British subjects but which denied them the right to be self- determining, self-sufficient and to make their own way in the colony as free and independent people with their own identity.

Coranderrk people used both protest and direct dialogue with authorities to challenge colonial authority and assert their right to be heard. In advancing their struggle the Kulin adopted political tactics that included letter writing to their supporters and the press, strikes, petitions and deputations to ministers, which included walking to and from Melbourne a total distance of 120 kilometres (Nanni & James, 2013: 20) to engage in dialogue with government. Protest and resistance happened locally in the community and was also articulated in the form of petitions and letters to the authorities including the newspaper. Coranderrk people were also able to contest the 135 strategies of colonialism from within by giving evidence to parliamentary inquiries to influence decision makers and confronting authorities by way of face-to-face meetings. In their discussions and advocacy they drew on the Western language of injustice and equality and drew on their own cultural political thought arguing the right to stay on traditional country.

The ability of the Kulin to enlist the support of influential supporters, politicians and members of the press was crucial in preventing closure of Coranderrk (Nanni & James, 2013: 24). They had achieved a level of independence and economic success at Coranderrk that was not appreciated by local pastoralists and the Protection Board. The nature of their demands and their ability to engage cross culturally is an important example of how Aboriginal people attempted to dialogue with government within the framework of settler colonialism. They had limited options to pursue their aspirations to manage their own affairs and to become self-sufficient because the colonial system was determined to maintain their subordinate status, yet they were determined to assert their rights, capacity and agency and show that they were as ‘civilised’ as white settlers in farming the land and becoming part of colonial society. Coranderrk leaders had no recognised status however they were able to command respect and open up dialogical space to enable the government to understand and relate to their perspectives.

Relationships of respect In dealing with the Protection Board, the government and the wider settler society, people at Coranderrk were able to cultivate relationships of respect, openness and empathy but they also had to endure relationships of disrespect where they experienced oppression and coercion. The most significant relationship of respect and recognition was with John and Mary Green, Scottish emigrant lay preachers who had forged collaborative relationships with the Kulin over a number of years. As Inspector General for the Board of Protection and manager of Coranderrk, John Green’s approach was to empower Aboriginal people and allow them a level of self- determination (Broome, 2005: 166-167).

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Green’s relationship with Coranderrk people was dialogic and empowering. It is arguable that this relationship was the key to Coranderrk’s success. While he held colonial notions of ‘civilisation’ and ‘progress’ he did not subscribe to racial superiority. He worked with Aboriginal people treating the Kulin as free and independent people (Nanni & James, 2013: 162-163). However Green’s support and advocacy for Coranderrk threatened the Protection Board prompting the Board to remove him. Green’s relationship with people at Coranderrk is in stark contrast to the relationship between the Protection Board and Coranderrk people, which was a relationship of disrespect and subordination. A number of Coranderrk station managers who were appointed by the Protection Board had similarly disrespectful relationships with the people at Coranderrk. From 1875 after John Green’s dismissal, managers characterised as authoritarian and disciplinarian ruled people at Coranderrk.

The Protection Board through the Secretary had enormous power over the lives of Aboriginal people and this power could be used in destructive ways with very few checks on their power. The Protection Board comprised pastoralists whose interests were in direct conflict to those of Aboriginal people. In many respects the power of the individual board members ensured the Protection Board had enormous political and social influence. It had its own agenda and was run by a number of seemingly despotic, vindictive and authoritarian individuals who attempted to coerce people at Coranderrk into leaving. Captain Andrew Page, a former army officer, was the Protection Board Secretary between 1877 and 1890. He was authoritarian and vindictive and had enormous control over the lives of Aboriginal people across Victoria (Nanni & James, 2013: 108-109).

There were other open and empathic relationships with individuals, many of whom were politicians but some were also Protection Board members and humanitarian individuals. One of the advocates of the Coranderrk people was Anne Fraser Bon, a wealthy pastoralist in the region. She had a strong interest in the welfare of Aboriginal people whom she regularly employed, having a lifelong friendship with Tommy Bamfield and William Barak (Nanni & James, 2013: 26). Her relationship with Aboriginal people in Victoria, particularly people at Coranderrk, was political – supporting their struggle to undermine or subvert the power of the Protection Board. 137

As the only woman who engaged publicly to support Aboriginal people at the time she was accorded special treatment and vitriol by colonial officials being represented as betraying her race and behaving in ways unbecoming of a woman of her class (Reed, 2005).

The dialogic relationships with two Chief Secretaries appear significant: John MacPherson who promised and instituted a Royal Commission and Graham Berry who listened, sympathised and respected the Coranderrk delegations who met with him. He took action on some matters, in particular gazetting Coranderrk as a permanent reserve, but he was also restricted by the minority status of his governments. Unfortunately Aboriginal policy is subject to the whims and political machinations of mainstream politics. It determines what action politicians do or do not take to protect Aboriginal interests. The views and attitudes of settler colonial society were also clearly influential because Graham Berry along with most politicians at the time supported the merging of so called ‘half-caste’ into white society and generally supported the strategy of closing down and amalgamation of the Aboriginal reserves.

Level and type of dialogue Aboriginal policy in colonial Victoria at the time was paternalistic and authoritarian and in that regard policy was predicated on relationships of subordination with Aboriginal people. There were no formal or informal cross-cultural frameworks for intercultural dialogue and negotiation. Yet protest leaders at Coranderrk engaged in a dialogue at the political level. In doing so they had to engage with and cultivate relationships with significant and influential white humanitarians in order to gain access to political decision makers. Once the Coranderrk leaders opened the doors of power they saw the value in going direct to the minister rather than dealing with the Protection Board. Gift giving, diplomacy and attending functions of the state were also part of the tactics and strategies used by the Coranderrk leaders. For example in 1863 the Kulin displayed ‘political savvy’ speaking to the Governor Sir Henry Barkly about land to expedite the gazettal of Coranderrk. They offered gifts to the newly married Prince of Wales and made a loyal address to the Queen (Broome, 2005: 124).

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Protest leaders were able to create informal political relationships by meeting politicians personally and lobbying for their interests. Despite the lack of political status and even though they were not always successful, the Coranderrk protest leaders were able to develop informal political processes through these relationships in which they could engage in cross-cultural conversations. For example when William Barak and his deputation took their grievances to the Chief Secretary, John MacPherson, they secured a Royal Commission inquiry into the conditions of Aboriginal people placing political pressure on the Protection Board. When the Protection Board continued to advocate closure of Coranderrk after the Royal Commission, William Barak and his deputation gained access to the Premier Graham Berry. The Coranderrk leaders were able to secure an investigation into the management at Coranderrk and as a result of their relationship with Berry they were able to secure the rescinding of a banishment order against Tommy Bamfield and gazettal of Coranderrk as a permanent reserve.

The act of the Coranderrk protest leaders of walking to Melbourne to meet with politicians or the Protection Board was both political and dialogical. It was a statement of their claim for recognition and of their determination and intent.

Outcomes of the encounters In their struggle for land, better living conditions and self-determination, Coranderrk leaders attempted to subvert the prevailing norm that treated Aboriginal as inferior and subordinate. By-passing the Aborigines’ Protection Board, Coranderrk leaders engaged in dialogue direct with government to create new norms of recognition and cooperation. Despite the enormous power and influence of the Protection Board, Coranderrk leaders were able to hold off the despotic and cruel intentions of the Protection Board for a number of years.

Direct intercultural contact and dialogue can reduce prejudice and improve intergroup relations under certain conditions (Sammut & Gaskell, 2009: 48). It can engender a process where people learn from each other and allow people to speak in their own voices (Restrepo, 2011: 58). Clearly this appears to have happened in some of the intercultural encounters between the Coranderrk leaders and government

139 representatives. While they were not regarded as being equal in social and political status the Coranderrk leaders were able to secure positive outcomes as a result of direct intercultural dialogue. For example they were able to secure the governor’s consent for the creation of Coranderrk reserve after attending the governor’s celebration of the English Crown. Their direct contact and relationship with significant individuals in the colony also opened doors for them. The various deputations to Melbourne to meet with the Chief Secretary secured commitment from the government to not close down the reserve and also secured inquiries and reports which supported their stance as well as securing changes to the composition of the Protection Board.

Clearly the Coranderrk leaders were able to engage in intercultural dialogue with significant individuals such as John Green and Anne Bon as well as with the chief secretaries and also the premier of government. These people were prepared to listen and understand the perspectives of Coranderrk people. The Coranderrk leaders were able to find new ways of engaging to achieve mutual understanding and recognition. But the Coranderrk leaders were unsuccessful in trying to secure the reinstatement of John Green as manager and Inspector General or to remove the Protection Board and position of Secretary. They were also unable to sustain an ongoing struggle as the Aborigines’ Protection Board consistently undermined them and eventually secured the support of the government to change the Aborigines Act to move people off the reserve. When Graham Berry retired from Parliament in 1886, Coranderrk leaders had reached the limits of dialogue with the colonial state as the government had stopped listening and the public were no longer sympathetic to their plight. For Coranderrk people dialogue was only possible when there was sympathetic and influential individuals, who were prepared to listen to them, understand their perspectives and take political action.

Lessons and trends There are relevant lessons from the Coranderrk history to assist political and social dialogue today even though the Coranderrk struggle for recognition began over 150 years ago. People at Coranderrk fought for their cultural and political survival against a repressive social and political structure of protection and management. Wolfe (2006) 140 argues that settler colonialism is an organising structure focussed on the elimination of Indigenous society in order to appropriate territory and erect a new colonial society, although it does not always manifest as genocide. In that regard settler colonialism is ‘… an inclusive land-centred project that coordinates a comprehensive range of agencies, from the metropolitan centre to the frontier encampment with a view to eliminating Indigenous societies’ (Wolfe, 2006: 393). The colonial impact on Coranderrk people through the Aborigines Protection Board and the various protection and management acts in Victoria, 1869, 1886 and 1890 were intended to dispossess Aboriginal people from their reserve land and destroy their traditional society. ‘Civilising’ Aboriginal people meant destroying their traditional society (Moses, 2000: 90). Some commentators have considered the 1886 act known as ‘merging the half- castes’ act to be legal genocide since it was aimed at removing Aboriginal people as a distinct group by removing so called ‘half-caste’ people from the reserves and forcing their assimilation into white society (Barta, 2008: 202; Christie, 1979: 205).

In many respects this scenario of structural elimination is still played out today, where the focus of elimination is Aboriginal cultural and political difference as was the case with Coranderrk. Aboriginal cultural and political recognition has to be struggled for therefore in the struggle it is important to understand the structure of settler colonialism and its underlying assumptions with regard to Aboriginal people because it is those assumptions that drive government as well as societal opinions and practices and in turn determines the structure and approach of Aboriginal policy. In that context people in Coranderrk initiated direct intercultural contact and dialogue with government and influential individuals to break down assumptions, reduce prejudices and improve understanding. They also cultivated open, respectful and empathic relationships with significant people in the broader society to open the doors of change or influence government action and public opinion.

There are also some lessons relevant to the Aboriginal struggle for recognition. The Coranderrk protest was grounded in the Aboriginal political thought and language of cultural survival and also in Western political thought in regards to the injustice of settler colonialism. Coranderrk people challenged settler colonial ideological constraints by arguing they were just as capable as white settlers in farming the land 141 and living as free and independent subjects in the colony. The Coranderrk leaders were very active and were also able to maintain a culture and practice of struggle against colonialism for over more than 60 years. In the absence of any form of political status Coranderrk leaders were able to assert their struggle for freedom and self- determination through the conventions, processes and language of the colonial system of government.

The Coranderrk leaders seem to maintain leadership succession; however the removal of people from the reserve and its closing down affected leadership succession. Therefore it is important to develop internal processes for leadership succession and generational change. Cultivating a younger sympathetic generation of non-Aboriginal people who can support the struggles of the next generation of Aboriginal leaders and to influence public opinion is also critical.

Conclusion In contesting the system of paternalism and control that had been imposed over Aboriginal people, the Coranderrk people challenged underlying assumptions and beliefs about Aboriginal people, forming respectful dialogic relationships with various individuals in colonial society and within government in their struggles for recognition. In the process these individuals were able to transcend underlying assumptions about Aboriginal people to have the claims and grievances of the Coranderrk people recognised. Similarly Coranderrk people were able to transcend attitudes and practices that treated them as inferior. But their dialogic ways of engaging with others challenged the authority of the Aborigines’ Protection Board and also challenged the limits of tolerance of government and colonial society. Although they maintained their struggle for a long period of time they were ultimately unable to significantly transform the attitudes and opinions of government and the Aborigines’ Protection Board. Dialogue had reached its limits so there was no prospect for an ongoing dialogic relationship. In the next chapter I examine the Day of Mourning Protest for land and citizenship rights that took place in Sydney in 1938, where Aboriginal activists in New South Wales and Victoria challenged white Australians to examine their conscience in regards to the treatment of Aboriginal people under protection policies.

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CHAPTER 5: CIVIL RIGHTS AND CITIZENSHIP

Introduction This chapter presents a story of Aboriginal people from the 1920s to the 1940s in New South Wales and Victoria, focusing on the Day of Mourning on the 26th January 1938. The story highlights the experiences of Aboriginal people during that time revealing how underlying assumptions about Aboriginal people created barriers to recognition of their claim for citizenship rights. An analysis of the Aboriginal struggle in the context of dialogue follows the story.

At the time Aboriginal people were not entitled to citizenship rights and the policy of state governments was for Aboriginal people to disappear by way of biological absorption into the white population. Aboriginal people were excluded from the substantive rights and benefits of citizenship. They had no say in how they were ruled nor did they share in the rights and entitlements of being an Australian citizen such as the right to vote, the right to speak and move freely, the right to a minimum wage, be equally protected by the law, enjoy basic health care, a minimum level of social security, and a basic level of education (Chesterman & Galligan, 1999; Chesterman & Galligan, 1997:2-5).

From the early 1900s onwards Aboriginal people in New South Wales were subjected to dispossession, control and dispersal by the Aborigines Protection Board who feared a growing mixed blood Aboriginal population that still identified as Aboriginal. There were no formal processes of engagement or dialogue between government and Aboriginal people however Aboriginal activists in New South Wales and Victoria were able to develop forms of cross cultural dialogue with the white community, directly appealing to them in relation to their claims for citizenship rights and rights to land. Despite the complete lack of recognition of their rights, Aboriginal people were able to organise politically to agitate for land and citizenship rights as well as develop national policies for the recognition of Aboriginal rights.

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State governments and Aboriginal citizenship In 1938 when the Day of Mourning was staged, the policy of protection was still in place. It focused on biological absorption of Aboriginal people into mainstream society and was regulated and administered by state and territory governments. When Aboriginal activists from New South Wales and Victoria called for citizenship and land rights, these matters were also the responsibilities of state governments. Under state laws and policies in place at the time, Aboriginal people were not treated equally with regard to rights and duties of citizenship.

Citizenship refers to the relationship between an individual and the state. All who possess this status are equal in respect to rights and duties, although there is no universal principle that defines those rights and duties (Marshall, 1950: 28-29). There are three elements to citizenship: civil (individual freedom), political (exercise of political power) and social (economic security and welfare), each of which developed from the 18th to 20th Century (Marshall, 1950: 10-11). In Australia the civil aspect of citizenship refers to the shared enjoyment of certain legal, political and social rights provided for by Commonwealth and state laws (Chesterman, 2005: 3-4). However the states had responsibility for Aboriginal policy because the Commonwealth had no power to legislate over Aboriginal affairs. Aboriginal people were subject to various state regimes of Aboriginal protection and were not entitled to citizenship.

When the Australian nation was formally constituted in 1901 the Constitution did not contain power over citizenship; this power was deliberately left to the states (Chesterman & Galligan, 1997: 58-62). In that regard the Constitution respected and guaranteed the special treatment of and entrenched discrimination against Aboriginal people exercised by the colonial governments (Chesterman & Galligan, 1997: 67). The lack of definition of Australian citizenship also meant that both Commonwealth and state through their parliaments, governments and bureaucracies systematically excluded Aboriginal people from citizen rights and entitlements (Chesterman & Galligan, 1997: 82).

Special treatment of Aboriginal people was embodied in the policy and practices of protection. Prior to or beginning in 1901 each state except Tasmania had regimes of

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Protection Boards or Protectors.35 These regimes defined who was Aboriginal and regulated and controlled the daily lives of Aboriginal people. This was done through the provision of rations as well as denying basic citizenship rights, for example by restricting or regulating the movements of Aboriginal people, determining where and how they could live, what responsibilities they had, how they were employed, who they could marry, whether they could rear their own children, who they could have sexual relations with, who they could associate with, whether they could own property, whether they could give evidence in court, whether they could vote in elections and their access to alcohol. Each state eventually formalised their policies and practices of protection by legislation after Victoria was the first to pass legislation in 1869.36

The Commonwealth and citizenship There was no comprehensive instrument or definition of Australian citizenship recognised in Commonwealth law until 1948, although from 1901 various forms of Commonwealth legislation granted particular rights and entitlements of citizenship. ‘Aboriginal natives’ were uniformly excluded from basic citizenship rights and entitlements under these legislative regimes (Chesterman & Galligan, 1997: 84-86).37 The term ‘Aboriginal native’ not only referred to Indigenous Australians but also people from Asia, Africa and the Pacific Islands (Chesterman & Galligan, 1997: 86). An Australian citizen was considered white and European. There was no uniform definition of ‘Aboriginal native’ in the various legislative regimes, so the bureaucracy relied on the opinion of the Attorneys and Solicitors Generals to interpret the term (Chesterman & Galligan, 1997: 88). Mixed race Aboriginal people – so called ‘half- castes’ – were not regarded as Aboriginal but more generally regarded as European (Chesterman & Galligan, 1997: 92). However it became generally accepted that an ‘Aboriginal native’ was ‘a person born in a particular place, of a racial group found in that same place prior to the arrival of Europeans’ (Chesterman & Galligan, 1997: 98).

35 The Northern Territory was part of South Australia until 1911. 36 See chapters 1 and 2 of Chesterman and Galligan (1997) where they examine the policies in Victoria and Queensland prior to and after 1901. 37 See Chesterman & Galligan (1997), pages 85-86 for a list of these legislative regimes. 145

Between 1920 and 1948 the regimes for citizenship went through a period of transformation. In 1920 the Commonwealth dropped its exclusion of ‘Aboriginal natives’ of Asia, Africa and Pacific Islands, in a new Nationality Act, however naturalisation did not entitle these people to the rights, powers and privileges of natural born British subjects (Chesterman & Galligan, 1997: 98-100). Thereafter, Indians and Asians were provided the right to vote and Indians were able to access some social security benefits although they were still excluded from immigrating. Queensland and Western Australia still maintained a range of restrictions and discriminations against Indians. However Aboriginal Australians including Papuans, Torres Strait Islanders as well as other ‘Aboriginal natives’ were excluded from voting and benefits, like the invalid and old age pension (Chesterman & Galligan, 1997: 115- 117). The Commonwealth also refined its definition of an ‘Aboriginal native’. Aboriginality was seen as a question of blood rather than identity so any person with a preponderance of ‘Aboriginal blood’ was excluded from citizenship rights. People of mixed Aboriginal-White parentage were considered European, however some states considered so called ‘half-castes’ to be ‘Aboriginal’ (Chesterman & Galligan, 1997: 109- 114).

In the 1940s, when the Commonwealth Government passed new legislation relating to pensions and social security benefits, it continued to use ‘Aboriginal native’ as an exclusionary category however the category was narrowed to ‘Aboriginal natives of Australia’. By 1947 the exclusion in regards to social services had been narrowed to apply only to Aboriginal Australians.38 Despite increasing public pressure from Aboriginal rights activists for changes to the citizenship status of Aboriginal people, the Government excluded its own Aboriginal population from welfare benefits (Chesterman & Galligan, 1997: 117-118). In 1948 the Commonwealth created the Australian citizen as a legal entity under the Nationality and Citizenship Act however according to Chesterman and Galligan the Act changed ‘little or nothing’ for ‘Aboriginal natives’ as it gave no new citizenship rights to Aboriginal people. The Act did not alter

38 Most Aboriginal Australians were excluded from receiving invalid and old-age pensions, widow’s pensions, maternity allowances, the child endowment and unemployment and sickness benefits. 146 the position of Aboriginal people with regard to existing Commonwealth and state legislation (Chesterman & Galligan, 1997: 119).

In 1949 the Commonwealth Government enfranchised all Aboriginal Australians at the Commonwealth level by passing the Commonwealth Electoral Act, however most Aboriginal people in Queensland, Western Australia and the Northern Territory remained largely disenfranchised (Chesterman & Galligan, 1997: 118). The Nationality and Citizenship Act only provided an ‘empty category’ of citizenship to Aboriginal people, because Aboriginal people were still excluded from citizenship rights and entitlements including welfare benefits by other Commonwealth and state legislation. By tolerating the continued exclusion of Aboriginal people from voting in key states and territories, the Commonwealth Government deprived Aboriginal people of political and social citizenship: they were ‘citizens without rights’ (Chesterman & Galligan, 1997: 3).

The disappearance of Aboriginal people The policies and practices of protection implemented by various state government Protection Acts formed the basis of the relationship between Aboriginal people and the state governments and served to exclude Aboriginal people from the benefits of citizenship and restricted their freedom at the state level. A key assumption of protection policies was that Aboriginal people would disappear. The ‘doomed race’ theory assumed that Aboriginal people of full descent would die out and assimilation theories anticipated biological absorption of mixed descent Aboriginal people into the white population as a result of interracial relationships (Ellinghaus, 2003: 183, 185- 186).

Western Australia and Northern Territory established processes to speed up the biological absorption through interracial marriage by separating mixed descent people from those of full descent and ensuring that mixed descent Aboriginal people would marry whites or other Aboriginal people of mixed descent (Ellinghaus, 2003: 190-191). In Victoria, New South Wales and South Australia, administrators were more obsessed with the supposed ‘cost’ of Aboriginal people to the state. Nonetheless they did have similar policies of absorption which divided the Aboriginal people into ‘mixed descent’

147 and ‘full-descent’ groups, and financial support was removed from the mixed descent groups. The mixed descent groups were also removed from the reserves. Children were singled out according to racial classification and removed from their families to destroy Aboriginal identity (Ellinghaus, 2003: 193-196). In Queensland interracial marriage was controlled but not to absorb Aboriginal people into the white population. The marriage of an Aboriginal woman to any person other than an Aboriginal man was conditional on written permission from a Protector (Ellinghaus, 2003: 197-200).

The policy of protection and its focus on biological absorption reflect the lengths to which state governments went to control Aboriginal people and exclude or deny them citizenship rights and privileges. The Commonwealth had no power to legislate for Aboriginal people until after 1967. In controlling their movements and restricting their freedoms such as the right to marry, vote or work, state regimes denied Aboriginal people the civil and political rights foundational to full citizenship.

States and ultimate absorption By the 1930s Aboriginal activists and white Australian support groups were calling for Commonwealth control of Aboriginal Affairs. In 1933 the National Missionary Council of Australia supported by the Aborigines’ Friends’ Association and the Association for the Protection of Native Races lobbied the Federal Government to assume control over Aboriginal Affairs and to establish an advisory board of state representatives to formulate Aboriginal policy (Chesterman & Galligan, 1997: 153). However a state premier’s conference in in August 1936 decided it would be impractical to hand over control of all Aboriginal people to the Commonwealth. Instead there should be regular conferences of Chief Protectors and Boards controlling Aboriginal people (Commonwealth of Australia, 1937: 5).

The initial conference in Canberra in April 1937 was attended by Chief Protectors, Commissioner of Native Affairs and representatives of Aborigines’ Protection Boards.39 The delegates resolved that the administration of Aboriginal Affairs should remain with

39 Northern Territory (C E Cook); Queensland (J W Bleakley); and South Australia (M T McLean); Western Australia (A O Neville); New South Wales (D E Morris, B S Harkness & A C Pettit) and Victoria (H S Bailey & L L Chapman). 148 the individual States but that legislation should be uniform as far as possible and that the Western Australian definition of ‘native’ should be adopted by the States or Commonwealth in any uniform legislation. Further the Commonwealth should provide financial assistance towards the States for the ‘care, protection and education of natives’. The first resolution of the delegates stated that ‘the destiny of the natives of aboriginal origin, but not of the full blood lies in their ultimate absorption by the people of the Commonwealth’ and that ‘all efforts be directed to that end’ (Commonwealth of Australia, 1937: 21, 33-34).

The Chief Protectors, Commissioner of Native Affairs and representatives of Aborigines’ Protection Boards discussed biological absorption of so called ‘cross breeds’ or ‘half-castes’ at the 1937 conference. The increase in the population of mixed blood Aboriginal people was considered a threat to the nation. The solution to the so called ‘half-caste problem’ was their ultimate absorption into the white population (Commonwealth of Australia, 1937: 10). Biological absorption involved official intervention to breed out Aboriginality by the promotion of interbreeding between white and mixed blood Aboriginal Australians and the curtailment of unions between full and mixed blood Aboriginal people. Therefore over successive generations Aboriginal people would become progressively European. They would be physically transformed into white Australians (McGregor, 2011: 1-6).

Aboriginal people were defined and classified according to blood quantum and also level of so called ‘civilisation’. For example Chief Protectors Bleakley and Cook divided Aboriginal people along a continuum from ‘primitive nomads’ or ‘wild, uncivilised blacks’ to ‘semi-civilised’ or ‘detribalised’ and then ‘cross-breeds’ or ‘half-castes’. The solutions in regards to ‘full-blood natives’ related to the category in which they were classified; for example, for ‘detribalised’ Aboriginal people living near centres of white towns their children were to be educated to ‘white standards’ for employment. So called ‘semi-civilised’ Aboriginal people would be kept on pastoral properties and reserves in their own tribal areas where they may live as close as possible to ‘a normal tribal life’; and so called ‘uncivilised natives’ would be preserved in their normal tribal state on established ‘inviolable reserves’ (Commonwealth of Australia, 1937: 10-21, 34). 149

Chief Protector Cook of the Northern Territory was concerned about the fast growing ‘half-caste’ population because along with the other Aboriginal people they would eventually outnumber and ‘swamp’ the white population in the Northern Territory, either absorbing whites or driving them out of the Northern Territory. He was also concerned that if the ‘half-castes’ were maintained at an inferior status and their population multiplied quickly they would ‘rise in revolt’ and this would create serious racial conflict. Therefore the solution was to raise the ‘half-castes’ to the level of the whites and absorb them into the white community. As for the so-called ‘full bloods’ and ‘semi-civilised’ Aborigines they could be left to die out and there would no longer be a problem or they could be protected, but this would create the problem of having a large black population (Commonwealth of Australia, 1937: 13-14, 17-18).

The Commissioner of Native Affairs in Western Australia, A O Neville saw no objection to the ultimate absorption of the Aboriginal race into the white race and his assumption was that people would eventually forget that there were ever any Aboriginal people in Australia. He was of the opinion that the problem of ‘full blood’ Aboriginal people in Western Australia would ‘eventually solve itself’ because they would eventually die out. However he thought the problem for the future was the ‘coloured people of various degrees’ (Commonwealth of Australia, 1937: 11, 14, 16). The solution according to Neville was to increase the number of ‘coloured people’ (‘half-castes’) to assimilate them into the white community and reduce the number of ‘full-blooded Aborigines’. This involved taking children at the age of six away from their mothers and controlling the marriage of half-castes to prevent them from marrying a ‘full-blooded’ Aboriginal (Commonwealth of Australia, 1937: 11, 17).

The doomed race theory in regards to so called ‘full blood’ Aboriginal people and policies of assimilation directed at absorbing so called ‘half-caste’ Aboriginal people into mainstream white society were prevalent in 1938 when Aboriginal activists staged the Day of Mourning. In New South Wales, the Aborigines’ Protection Board had enormous power over Aboriginal people, including people referred to as ‘half-caste’, and it implemented a number of strategies to force the assimilation and absorption of Aboriginal people into mainstream white society. The policy of biological absorption was directed at people like the Aboriginal activists involved in the citizenship struggle, 150 who were articulate, strong in their Aboriginal identity and not prepared to accept an inferior social status in Australia.

Dispossession and control in New South Wales The early 1900s in New South Wales was a period of dispossession, control and dispersal by the Aborigines’ Protection Board. Goodall states there was fear of a growing mixed blood Aboriginal population in New South Wales who continued to identify as Aboriginal and were living on reserves. Along with the increasing financial burden of funding rations and maintaining Aboriginal reserves the Protection Board campaigned for stronger powers to disperse the Aboriginal population off reserves. The Protection Board also sought to gain control over Aboriginal children on the basis of indenturing them as domestics and labourers and sought to reduce the birth rate of the Aboriginal population by taking away adolescent girls from their communities. However when the new laws came into the force in 1909 the Protection Board only had the power to control children judged to be neglected (Goodall, 1996: 118-120).

There was also pressure to revoke Aboriginal reserves and for the land to be taken over by white Australians. The soldier settlement scheme of 1917 whereby returned soldiers could select a block of agricultural land placed further demand for Aboriginal land although returned Aboriginal soldiers did not benefit from this scheme. Although the Board initially resisted the pressure to turn Aboriginal land over to whites, it would eventually do so to raise funds for its activities. By 1911 the Protection Board had sought more power from the government to take away children; in order to generate revenue to fund its program to take children it began leasing Aboriginal reserve land to white settlers for residential and farming expansion (Goodall, 1996: 115-116, 120-124).

During the 1920s, under the impact of drought and economic depression and in order to escape repression on reserves, Aboriginal people moved to live in town camps on the outskirts of white townships. But a rising tide of protest from white town people demanded that Aboriginal people be excluded from schools, shops, streets and town boundaries. There were frequent battles as whites sought to control entry into the town and exclude Aboriginal people (Goodall, 1996: 173-174). It was during this time that the Australian Aboriginal Progressive Association (AAPA) emerged. Led by Fred

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Maynard who, with the support of friends and family including the support of Elizabeth McKenzie-Hatton, agitated for land on the basis of prior ownership and as an economic base and for the cessation of removal of Aboriginal children from families under the apprenticeship system and for the protection of Aboriginal girls. The AAPA also demanded the dissolution of the Protection Board and full privileges of citizenship for Aboriginal people. The Protection Board was threatened by the AAPA and sought to discredit the organisation and its leaders. However as the economic recession deepened the organisational structure of the AAPA broke up in 1927 (Goodall, 1996: 149-156, 162-166).

As economic depression took hold in the 1930s, Aboriginal people were hit with unemployment and had to move back to the reserves and stations to obtain Protection Board rations because they were denied unemployment and work relief. But the Protection Board was in no position to support the many Aboriginal people who were previously employed in the mainstream economy and in 1932 it urged the incoming conservative government to remove widespread discrimination being practised in New South Wales. Having suffered funding cuts the Protection Board took control of family endowment payments to Aboriginal people on reserves to meet its rations and maintenance costs. But the government was eager to cut costs and ruled that the Aboriginal unemployed were only entitled to the dole if they could prove they had done ‘white man’s work’ in the previous years of employment. Aboriginal people from all over the State protested the injustice (Goodall, 1996: 179-182).

By the mid-1930s the Protection Board surrendered to the demands of white town people and initiated a policy of concentrating Aboriginal people on reserves so they could undergo training to be eventually assimilated with the white population. The Protection Board were able to remove to reserves those Aboriginal people who were still living on stock routes and in town camps. The intention was to remove and confine any person with Aboriginal blood on reserves where they would be provided with ‘disciplinary supervision’ and they could not leave until they could be effectively assimilated. The concentration powers were also used to break Aboriginal connection to their country and their kin. To secure the necessary power the Protection Board sought amendment to the Aborigines Protection Act. To apply pressure to reluctant 152 politicians the Protection Board spread a groundless fear amongst the white population that uncontrolled Aboriginal populations would spread a virulent blinding infection (gonoccocal opthalmia). In 1936 the Protection Board was granted all the power it had wanted (Chesterman & Galligan, 1997: 137; Goodall, 1996: 193-199).

The emergence of the AAPA in New South Wales in the 1920s was in response to the hardship suffered by Aboriginal people. Aboriginal people in New South Wales were very vulnerable being under the duress of the Aborigines Protection Board but also affected by economic depression and subject to racism and violence in the townships. The AAPA agitated for land ownership and economic self-sufficiency and demanded the dissolution of the Aborigines Protection Board and for citizenship for Aboriginal people. The emergence of Jack Patten, William Ferguson and William Cooper and other activists who staged the Day of Mourning carried on the struggle for land ownership, economic self-sufficiency, citizenship rights and the elimination of the Aborigines Protection Board.

The Day of Mourning 1938 On Wednesday 26 January 1938 as Sydney was celebrating the 150th anniversary of the landing of the First Fleet in 1788, Aboriginal people led by William Cooper, William Ferguson and Jack Patten were preparing for a protest march and a conference to inform white Australians of the conditions and plight of Aboriginal people. Conference delegates arrived from around New South Wales and also from Melbourne in Victoria. The Day of Mourning delegates watched the Australia Day procession of floats from Park Street near the Town Hall before they marched in silent protest from Town Hall to the Australian Hall in Elizabeth Street in Sydney (AIATSIS, 2013:63-64, Horner, 1994).

William Cooper, William Ferguson and Jack Patten led different regional groups of activists who came together to stage the day of mourning conference. This Aboriginal movement had begun to emerge in October 1937 with a campaign of public speeches, support meetings and press interviews attacking the discriminatory unemployment relief system, the increase in Protection Board powers and the appalling conditions on Protection Board stations and reserves. As a result of their protests, they were able to attract the attention of the NSW Premier who established a Parliamentary Select

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Committee to inquire into the policies and administration of the Aborigines Protection Board. The Select Committee lapsed without reporting before the Public Service Board then took up this task (Goodall, 1996: 230-231).

Australia Day celebrations 1938 For the 150th anniversary celebrations of Australia Day there was a re-enactment of Governor Phillip’s landing in Sydney Cove in 1788 and immediately afterwards a parade of floats through the streets of Sydney commemorating the unfolding story of ‘Australia’s March to Nationhood’ followed by gala events at the showground in the evening (Rehearsal at Farm Cove, Preparation for Pageant, 1938a: 11). Aboriginal people participated in the Australia Day parade, some standing on the First Fleet float and others on an ‘Aborigines’ float’. The Sydney Morning Herald explained there were ‘… a dozen full-blooded aborigines some bending over a fire, some sharpening axes and other waving ’. The newspaper wrote that ‘… most of the aborigines appeared a little morose and disinclined to acknowledge the cheers of the crowd’ (Telling a Story. History Given in Floats, 1938b: 12). This is hardly surprising, because in 1938 Aboriginal people had no citizenship or other rights and every aspect of their lives was controlled. Those on the float probably had no say or choice about being there.

The re-enactment of the First Fleet landing took place at a specially prepared beach at Farm Cove in Sydney Harbour and it involved costumed actors and ‘a troupe of Aborigines’ but no convicts. A plan to bring an Aboriginal group from Palm Island was abandoned and so at the eleventh hour a group of 26 Aboriginal people led by Hero Black were brought from western New South Wales. Twenty one of the group came from Menindee and five came from Brewarrina. They were accommodated at the Redfern Police Barracks (Souter, 1987). There were strict instructions that the group were not to see anybody as the Secretary of the Aborigines’ Protection Board suspected that William Ferguson would try to prevent the men from taking part in the re-enactment. Ferguson was indignant when he read about the re-enactment (Horner, 1994: 61-62) and was anxious to persuade Hero Black to boycott the re-enactment. Sydney relatives of one of the men, Peter Johnson, tried to visit him to get a message to Hero Black from William Ferguson but they were told they had to obtain permission 154 from the Protection Board, which initially refused permission. The two women relatives eventually saw Johnson in the presence of Protection Board officials, but no message from Ferguson was delivered (Horner & Langton, 1987).40

The re-enactment proceeded as planned but the re-enactment itself was a fantasy that portrayed Australia as being ‘peacefully settled’ at colonisation. There was no reflection on how occupation had impacted Aboriginal people and how colonial policies were oppressing and exterminating Aboriginal people in New South Wales in the 1930s. As the Aboriginal men dressed in cloth and gum leaves and armed with boomerangs took their appointed positions, a boat load of actors representing the British seamen and marines rowed towards the shore from a replica of the HMS Supply. Hero Black and his men rushed forward then withdrew from the beach to the lawn where they performed a . When the party landed the marines with fixed bayonets advanced as the Aboriginal men retreated, but not too far as an English actor playing Governor Phillip approached and placed a red cloth around the neck of Hero Black. An actor playing Judge-Advocate David Collins read an abbreviated version of Phillip’s Commission, although in 1788 this was not read until 12 days after the initial landing. In a short oration the actor Phillip expressed the hope that this country would become the most valuable acquisition the British had ever made. There was a toast to the King, three cheers and a feu de joie, a celebratory firing of guns (Souter, 1987: 13-18).

There was nothing intercultural about the fictitious re-enactment. It was more a humiliation of Aboriginal people. Whilst it is unfortunate that Hero Black and his companions participated in the fantasy play, given the treatment of Aboriginal people at the time it is difficult to judge or criticise their involvement. Indeed Menindee and Brewarrina were two sites where the Aborigines’ Protection Board carried out its concentration policies. They were vulnerable and distressed communities (Goodall, 1996: 202).

40 Doris William (Johnson’s niece) and her grandmother Mrs Ingram. 155

The Day of Mourning conference By contrast the Aboriginal Day of Mourning in Sydney rejected such a fantasy. The protest walk and subsequent conference were attended by over 100 Aboriginal people, plus two white policemen and two white journalists. Among those attending were William Cooper, William Ferguson, Jack Patten, Douglas Nicholls, Margaret Tucker, Pearl Gibbs, Jack Kinchela, Helen Grosvenor, Tom Foster and others. The conference began after the Australia Day parade.

The Day of Mourning conference came together as a result of a dismal and dismissive response from the Prime Minister’s office to William Cooper’s petition to King George VI in 1937. In the petition Cooper stated that white Australians had a moral duty to care for Aboriginal people, however Aboriginal people had been dispossessed of land and denied status. Cooper called on the King to intervene to prevent the extinction of Aboriginal people, to provide better conditions and for the representation of Aboriginal people in federal parliament (Attwood, 2003: 59, 70). Jack Patten, William Ferguson and Cooper planned a day of mourning to coincide with Australia’s 150th anniversary celebration. According to Patten the purpose of the conference was to arouse ‘the conscience of White Australians’ who had power over Aboriginal people but chose not to help Aboriginal people (Patten, 1938a).

Those who spoke at the conference spoke about the predicament and treatment of Aboriginal people. Jack Patten and William Ferguson spoke of the deplorable conditions of Aboriginal people in New South Wales and argued strongly for full citizenship rights and benefits for Aboriginal people. Clearly there was a sense of anger and frustration at continuing injustice in the voices of the speakers. While white Australians were celebrating 150 years of being in Australia, Aboriginal people were living in oppressive conditions under the control of the Aborigines’ Protection Board and excluded from citizenship rights and benefits. Patten and Ferguson clearly felt that Aboriginal people had to take action themselves because white Australians were not forthcoming in helping Aboriginal people fight injustice (Patten, 1938a).

Justice, rights and opportunity for Aboriginal people were themes running strongly through the proceedings of the conference. The denial of rights and opportunity were

156 clearly related to the oppressive Aboriginal administration, the lack of acknowledgment by white Australians of the rights of Aboriginal people and their lack of understanding of the situation of Aboriginal people living on reserves. Jack Patten argued that the lack of opportunity and citizenship rights for Aboriginal people was related to white Australian attitudes about Aboriginal people being inferior and so incapable of bettering themselves. He asked that Aboriginal people be given a chance and be accorded full citizenship rights ‘… including old age pensions, maternity bonus, relief work when unemployed and the right to a full Australian education for our children’. He said that Aboriginal people ‘… do not wish to be herded like cattle and treated as a special class’. This is obviously a reference to how the Protection Board of New South Wales treated Aboriginal people. A case in point mentioned by both Patten and Ferguson was the apprenticing out of young Aboriginal women for domestic labour without payment. They argued this amounted to slavery. Further according to Patten, the undernourishment and poor education of Aboriginal people was a disgrace and a major handicap to equality with other Australians. Patten stated the Aborigines’ Protection Board had to be abolished (Patten, 1938a).

Ferguson spoke of the ‘dreadful suffering’ of people on the reserves and argued for citizen rights for Aboriginal people. Access to health, education, training, and other opportunity including land ownership were key issues raised by Ferguson at the conference. Ferguson said that the lack of real opportunity and the denial of opportunity prevented Aboriginal progress. Ferguson argued that while Aboriginal people have assisted white people to produce wealth from the land they were prevented from creating wealth and making a living for themselves. He was scathing of the system of Aboriginal protection stating that Aboriginal people did not need government protection and that Aboriginal legislation was driving people onto reserves where there was no future for them. He also said the abolition of the Aborigines’ Protection Board was an objective of the Aborigines’ Progressives Association (Patten, 1938a).

Doug Nicholls and William Cooper of the Victorian Aborigines’ League supported the focus on the lack of justice and opportunity for Aboriginal people. Doug Nicholls said that Aboriginal people must fight hard for equality, because after 150 years Aboriginal 157 people were ‘… still influenced and bossed by white people…’ but could ‘… hold our own with others if given the chance’. William Cooper urged continuation of the struggle ‘until we win our objective’. Cooper focused on the lack of protection from the Aborigines’ Protection Board. He said ‘protect’ should mean ‘protect from injury’ but the Board ‘do not live up to this idea’, and ‘do not act in accordance with British justice’ (Patten, 1938a).

Despite agitating for their rights, it is interesting to note the language and discourse used by some of the delegates at the conference. Doug Nicholls reminded those at the conference not to forget ‘our people who are still in a primitive state’, as ‘we should try to do something’ for them. Patten suggested a staged approach for achieving civil rights. He said Aboriginal people should not be thrown out of reserves and expected to live like ‘whitemen’ when they did not have a white standard of education. Patten said that for those ‘primitive people who are uncivilised’ there must be some ‘stepping stone to modern civilisation’. For Patten the key to citizenship for Aboriginal people was education and equal opportunity. Ferguson recognised that education and equal rights were critical but said people should not ‘worry too much about the stepping stone’ because it would take care of itself when Aboriginal people had full citizen rights (Patten, 1938a).

The claim for citizenship and other rights The one and only resolution of the Day of Mourning conference was carried unanimously. The resolution protested against the treatment of Aboriginal people and called for citizenship and equality for Aboriginal people. The resolution read:

“We, representing the Aborigines of Australia, assembled in conference at the Australian Hall, Sydney, on the 26th day of January, 1938, this being the 150th Anniversary of the Whiteman’s seizure of our country, hereby make protest against the callous treatment of our people by the Whiteman during the past 150 years, and we appeal to the Australian nation of today to make new laws for the education and care of Aborigines, we ask for a new policy which will

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raise our people to full citizen status and equality within the community” (Patten, 1938a).

Jack Patten and Bill Ferguson of the Aborigines’ Progressive Association launched their manifesto titled Aborigines Claim Citizen Rights at the conference (Egan, 2012: 151- 152; Horner & Langton, 1987). The manifesto was sent to the press, national libraries and selected people accompanied by a press notice that a day of mourning would be held on the 26 January 1938 (Horner, 1994: 56). The manifesto was in part an attack on the official policy of protection as the manifesto linked ‘protection’ with the denial of citizenship (Eggerking, 1997: 84). It was written to show why the 26 January is a day of mourning for Aboriginal people, setting out Aboriginal objections to being treated as a ‘lower caste in Australian society’ (Horner, 1994: 57).

The manifesto explained that the 26th January 1938 was a day of mourning for Aboriginal people because the new Australians took the land by force, almost exterminating the original Australians. The manifesto asked white Australians whether their conscience was clear in regards to the treatment of Aboriginal people; it asserted that white Australians could hardly claim to be ‘civilised, progressive, kindly and humane’ given the cruel and callous treatment of Aboriginal people. The manifesto also highlighted the hypocrisy of the policy of ‘protection’ because rather than protect it had degraded, humiliated and exterminated Aboriginal people. The manifesto stated that Aboriginal people were not asking for ‘protection’ or ‘charity’ or ‘sentimental sympathy’ but were asking for ‘equal education, equal opportunity, equal wages, equal rights to possess property, or to be our own masters’ in other words ‘equal citizenship’ (Patten & Ferguson, 1938).

The key points of the manifesto were:

1. That white invasion had imposed misery and degradation upon the original inhabitants over the previous 150 years. 2. That the system of Aboriginal protection should be repealed because it was based on the belief that Aboriginal people are backward and inferior and require supervision by government.

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3. That the Boards for the Protection of Aborigines should be abolished because their almost unlimited power of control deprived Aboriginal people of their citizen rights and reduced the Aboriginal ‘standards of living below life- preservation point’. 4. That the Labor Parties and the Trade Unions were indifferent to the use of Aboriginal people as cheap labour and had given no real support to Aboriginal people to achieve citizen rights. 5. That the attitudes towards Aboriginal people needed to change to become more enlightened because the attitude was one of racial prejudice and misunderstanding, with the popular press creating perceptions that Aboriginal people are sub-human.

Response to the manifesto The editorial of the Melbourne Argus on 17 January 1938 said fair-minded Australians would welcome the opinions expressed in the manifesto and that, while there was an element of truth, other claims in the manifesto would not withstand critical examination. The Argus recognised that white Australians had ‘… not carried out conscientiously and efficiently its moral obligations’ to Aboriginal people. However in responding to the manifesto’s charge that the classification of Aboriginal people as being a ‘backward and lowly race’ is a scientific lie, the paper expressed views closely resembling social Darwinism and the stages theory of human development (Aborigines’ Protest, 1938a: 10).

The Argus editorial argued this was a ‘simple, self-evident truth’ and despite the denial of racial and cultural inferiority by the Aboriginal spokesmen, Aboriginal people ‘cannot be treated as a modern civilised race’ as ‘they are properly regarded as a dying relic of a dead past’. The editorial’s reasoning for this view was that Aboriginal culture had not advanced beyond the stage of nomadic hunters. Aboriginal people, according to The Argus, belonged to an early stage of human development:

“The Australian aboriginal culture belongs to a very early stage of mankind’s development. Aborigines, in spite of their occupation for untold generations of a favoured land, had not at the advent of the

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white man advanced beyond the stage of being nomadic hunters. Their implements and weapons were most primitive. Agriculture, one of the earliest phases of civilisation, was to them an unknown art. Their scant numbers scattered over a vast area of the earth’s surface did not indicate any desire or ability to occupy their heritage effectively” (Aborigines’ Protest, 1938a: 10).

The Sydney Morning Herald was dismissive of the Day of Mourning stating that any attempt to mar the 150th anniversary celebrations by staging a day of mourning must be deplored. The editorial said the Day of Mourning organisers should heed the statement of , a man from South Australia and advocate for Aboriginal rights who said the Day of Mourning movement was political and largely emotional and sponsored by sympathetic white people and ‘half-castes’; he said that full blooded Aborigines would have little part in the demonstration but would await granting of their privileges (Aborigines’ Day of Mourning. Emotional Protest Criticised, 13 January 1938c: 8; 150 Years After, 18 January 1938d: 10). But in another editorial on 22 January 1938 The Sydney Morning Herald said the Day of Mourning ‘… offers deserved criticism of the nation, reminding us that the inevitable clash of white and black cultures has produced a sad disintegration of aboriginal life which we have failed to remedy...’(Aboriginal Art, 22 January 1938e: 10).

A deputation of 20 people who attended the conference subsequently met the Prime Minister, Joe Lyon and Mrs Lyons as well as John McEwen, Minister for the Interior in Sydney on 31 January 1938. The deputation included Jack Patten, William Ferguson, Helen Grosvenor, Pearl Gibbs, Tom Foster and others. Jack Patten and William Ferguson spoke in the meeting. Patten provided a copy of a ‘Policy for Aborigines’ expressed in a ten-point statement to the Prime Minister. Together Patten and Ferguson, supported by the other members of the deputation, answered questions from the Prime Minister, Mrs Lyon and John McEwen. The Prime Minister received the delegation and policy statement sympathetically, however he indicated there would need to be an alteration to the Constitution or an agreement by all States before the Commonwealth could take control of Aboriginal Affairs (Horner, 1994: 68-70).

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A national Aboriginal policy The policy statement given to the Prime Minister was written as a long-range policy for Aboriginal people. However it also contained an urgent interim policy requesting the Commonwealth to make a special financial grant to the States for the purpose of increasing rations and improving housing conditions for Aboriginal people. The national policy had two aims: the first was achievement of full citizen status by all Aboriginal people and the second was land settlement based on Aboriginal prior ownership of land (Goodall, 1996, 239-240).

Given the context of Aboriginal Affairs at the time the policy is outstanding, strong in its commitment to equality and citizenship and also rights to land. Some aspects of the policy pick up the colonial discourse of progress and civilisation for Aboriginal people which can be somewhat disconcerting. Both the manifesto and the ten-point plan advocated a ‘civilising’ agenda, which argued that Aboriginal people were not ‘backward’ but were capable of progress and ‘civilisation’. According to McGregor the Aboriginal political leaders of the 1930s based their demands for civil rights not on Aboriginality but on the ideal of civilisation. They took up the western idea of progress and civilisation to argue the case for civil rights on the basis that Aboriginal people were capable of attaining a civilised status which had for so long been denied them by white Australians (McGregor, 1993).

The Aboriginal policy statements sought a national Aboriginal policy and Commonwealth control of Aboriginal Affairs; a Minister of Aboriginal Affairs to be a member of Cabinet; a departmental head to be in charge of a Department of Aboriginal Affairs which should be advised by an Advisory Board of six people, three of whom should be Aboriginal and nominated by the Aborigines’ Progressive Association. The aim of the Department would be to raise all Aboriginal people to full citizen status and ensure Aboriginal people receive certain entitlements relating to education, work and wages, pensions and benefits, owning land and property. This also included equality in marriage and freedom to marry; the same privileges in respect to housing; and that free maternity and hospital treatment be provided to Aboriginal women. In regards to land, the policy called for a special land settlement scheme to assist Aboriginal people to settle on the land and to provide them with advice and financial 162 support. However the policy also sought the retention of reserves for ‘aged and incompetent Aborigines’ who are unable to take their place in white society. Other aspects of the policy related to training Aboriginal men and women as patrol officers and having nurses and teachers working with ‘uncivilised and semi-civilised’ Aboriginal people (Horner, 1994: 69-70; Patten, 1938b: 1).

The Day of Mourning: discussion and analysis

The assumptions In the early 1900s there were a number of conflicting assumptions about Aboriginal people which caused significant destruction to Aboriginal families and Aboriginal society. The assumption that Aboriginal people were an inferior race and that so called ‘full blood’ Aboriginal people would die out was still prevalent. In fact, Aboriginal people were not disappearing because there was a significant expansion in the numbers of Aboriginal people living on reserves as a result of a growing mixed blood Aboriginal population who identified as Aboriginal. This growing Aboriginal population and their cultural assertiveness were perceived as a racial and cultural threat to the nation (Goodall, 1996: 118-119). The assumed solution to this growing racial group was to get rid of them by biological absorption and assimilation into the white population.

To absorb Aboriginal people into white society the Aborigines’ Protection Board sought to disperse Aboriginal people off the reserves on the assumption that it would make them assimilate into white society. But this policy failed because Aboriginal people lived in town camps and white people did not want Aboriginal people in their towns therefore forcing many Aboriginal people back onto the reserves. At the same time the assumption that Aboriginal people were not productive and therefore did not need as much land as they had on the reserves and stations resulted in whites pressuring the government to resume Aboriginal reserves and to turn the land over to white farmers.

The assumption of Aboriginal inferiority was significant in the Protection Board policy of forced removal and imprisonment of Aboriginal people on reserves for so called ‘civilisation’ training, which included taking Aboriginal children away to become a source of indentured labour for whites. Assumptions of Aboriginal inferiority also 163 sustained the denial of benefits and obligations of Australian citizenship to Aboriginal people. They were considered not ‘civilised’ enough to be citizens. Further it appears that it was not necessary to listen to Aboriginal people or respond to their claims and concerns. The assumption that Aboriginal people were incapable of determining their needs and self-managing was clearly fundamental to the operations of the Protection Board.

The assumption surrounding the 150th celebration of the landing of the first fleet on 26th January 1938 – that Australia was peacefully settled and that there were no negative consequences for Aboriginal people – reflect a lack of understanding of history and of the impact of colonisation on Aboriginal people. Jack Patten and Bill Ferguson highlighted this point in the Day of Mourning conference when they pointed out that while whites were celebrating Aboriginal people were suffering oppression and exclusion. Further there was an assumption that it was appropriate to portray Aboriginal people as barbarians and to humiliate them during white Australia’s celebration of 150 years of colonisation – which is precisely what Jack Patten and Bill Ferguson were arguing against. This is a powerful example of how settler colonialism defines Aboriginal people, asserts its authority and denies Aboriginal claims for recognition.

Challenging hegemony Members of the Aborigines’ Progressive Association and the Victorian Aborigines’ League organised politically to challenge injustice by agitating for the protection of Aboriginal children from removal, for citizenship and land rights and for the abolition of the Aborigines’ Protection Board. Aboriginal activists and white supporters came together to agitate for Aboriginal rights. Led by credible people such as William Cooper, William Ferguson and Jack Patten Aboriginal activists were seeking respect, recognition and justice for dispossession and policies of extermination.

They were able to present their views in publications, speeches, and used the media and the political system to draw attention to the plight of Aboriginal people. A publication called the Australian Abo Call written and edited by Jack Patten printed the proceedings of the Day of Mourning conference (Patten, 1938a). Although published

164 for a limited time the Abo Call was funded by P. R. Stephensen and his business partner W. B. Miles, both white Australian nationalists. It was an important publication for the movement, being distributed widely throughout the country.

William Cooper emphasised the importance of the Aboriginal voice and perspective in advocating for rights and interests because white Australians could not ‘think black’. Cooper resented white people speaking for Aboriginal people. According to Cooper the Aboriginal perspective was very different to that of whites and he argued for an Aboriginal point of view in government policy (Attwood, 2003: 62-63; Attwood & Markus, 2004). Similarly Jack Patten and Bill Ferguson were strong on Aboriginal people speaking in their own voice and hearing an Aboriginal perspective. Patten and Ferguson produced a policy statement that was a direct and forceful in its message to white Australians challenging them in regards to their treatment of Aboriginal people.

The manifesto pointed out that white Australians were ‘new Australians’ as opposed to the ‘Original Australians’ who had lived on the land for thousands of years but who were dispossessed by force and almost exterminated. The manifesto asked for justice not charity and a new deal for Aboriginal people. Patten and Ferguson admitted the manifesto was ‘hard words’ but they wanted white Australians to face the truth: that the so called policy of ‘protection’ was in fact exterminating Aboriginal people. They wanted white Australians to hear the Aboriginal point of view and to see the problems and issues from an Aboriginal perspective. They argued that Aboriginal people were not asking for charity or to be studied as ‘scientific freaks’ and were also not asking for ‘protection’ but wanted ‘justice, decency and fair play’ (Patten & Ferguson, 1938: 3-4).

In challenging the policies and practice of government, the demands of the Aboriginal activists in 1938 were considered radical because they were claiming the same rights as white Australians. In that regard their challenge denied white assumptions of superiority (Attwood, 2003: 66). The dialogue narrative of the Aboriginal activists was not constrained by the dominant narrative at the time. McGregor argues that in employing the language of equal rights the Aboriginal activists were showing that Aboriginal people were capable of adapting to ‘civilisation’ that white Australians regarded as a prerequisite for awarding citizenship rights. McGregor states that while

165 the Aboriginal political agenda was based on an assimilationist ideology arguing for citizenship rights, the Aboriginal activists were in fact fashioning new arguments to challenge the dominant white narrative that Aboriginal people did not deserve citizen rights (McGregor, 1993).

Relationships of respect While suspicious of white people and their intentions, Aboriginal activists formed relationships with white humanitarian organisations, members of the Australian Labor Party and Communist Party as well as white individuals to pursue their rights agenda. Although paternalistic these organisations campaigned on behalf of Aboriginal people. Aboriginal activists were able to work cooperatively with them. A number of relationships were also forged with white individuals many of them women, middle class and Christian.

Bill Ferguson had a long involvement with the Australian Workers’ Union and during 1937-1938 he made contacts with trade unionist and left wing political activists in Sydney. Among his allies were the Communist Party of Australia, trade union leaders, feminist groups and left-leaning Christians. Jack Patten had political connections with white activists in Sydney and also had connections with various nationalist groups, particularly P. R. Stephensen, a publisher and leader of the right wing Australia First movement. Stephensen was also anti-imperialist and Anglophobic and was seeking to develop a stronger sense of place for white Australians. However he was interested in social relations and Aboriginal culture and was receptive to Aboriginal demands for rights to land (Attwood, 2003: 40-41; Goodall, 1996: 232-233, 236-238). Apparently Stephensen had a habit of ‘helping’ his Aboriginal political friends write posters, manifestos and press releases and may have insinuated some of his own ideas into the manifesto (Manne, 2001: 37). While most of the support came from the Left of politics, the leaders of the Aboriginal rights movement in the 1930s were able attract support from both the Left and Right of white Australian politics.

The political connections with unions, feminist groups, Christian groups and the Communist Party provided the resources to support Aboriginal agency and also provided the political platform to enable the Aboriginal activists to pursue their rights

166 agenda. However the entry of anthropologists into the public debate over Aboriginal policy in the 1930s changed the language and issues in the debate. Their closeness to government and their desire for roles in Aboriginal administration were met with suspicion and derision from Patten and Ferguson. For example, the anthropologist A P Elkin – who was eventually appointed to the Welfare Board – believed that anthropological expertise could interpret the current conditions and future needs of Aboriginal people. But Patten and Ferguson felt that anthropologists such as Elkin would use their power and expertise to continue white control of and interference in Aboriginal communities. Aboriginal people did not need more white people to look after them (Goodall, 1996: 234-236).

The advice of anthropologists to government denied Aboriginal people a voice in their attempted dialogue with government and denied Aboriginal agency in shaping their own future. The influence of anthropologists on government policy reflects a top down ‘expert’ approach because their political connections to the Aboriginal activists were limited and they did not work directly with the Aboriginal activists on the front line of their struggle. Elkin did not have close relationships with Aboriginal activists in New South Wales and Victoria because his interest lay with traditional Aboriginal communities in the north, however he did have significant influence over Aboriginal policy in New South Wales and nationally. This undermined the Aboriginal political platform for social and political change.

There was no significant relationship between the Aborigines’ Protection Board and the Aboriginal activists. It was a relationship of disrespect given the Board’s attitudes towards Aboriginal people and its practices of discrimination, oppression and destruction of Aboriginal families and society. The Protection Board undermined the Aboriginal voice and their agency in their struggle for rights. They lacked humanity towards Aboriginal people and were not open to hearing what Aboriginal people had to say.

Level and type of dialogue The Day of Mourning manifesto and the resolution of the conference was a dialogue with the Australian public in regards to equality and citizenship for Aboriginal people.

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The Aboriginal activists challenged white Australians to examine their conscience and to examine the treatment of Aboriginal people by the Protection Boards. But the message was clearly directed at governments and its authorities for more enlightened policies and for more opportunities for Aboriginal people.

Given the limited options open to them at the time the Aboriginal activists attempted to assert agency and capacity to participate in a dialogue with government about their policies and the impact of policies on Aboriginal people. Whilst there were no formal processes for cross cultural dialogue with government, the activists were able to secure a meeting with the Prime Minister. Nonetheless Aboriginal leaders found it difficult to penetrate government decision making in New South Wales. They were ignored in government inquiry processes, as was the case of the Public Service Board Inquiry in 1938 into the Aborigines’ Protection Board. It consulted Protection Board staff and anthropologists but failed to talk to any Aboriginal people (Goodall, 1996: 231). The Aborigines’ Protection Board advised the New South Wales Government on Aboriginal policy.

While Aboriginal activists had no entry into government processes of policy making they were able to develop forms of cross cultural dialogue with the public through processes of leadership, relationship building and campaigning. It was a strategy of public dialogue whereby Aboriginal activists had to influence and seek the support of white activists, white political organisations and the general population to pressure government to change Aboriginal policy. They also had to organise rural Aboriginal communities and this involved travelling to communities to seek their support as well as supporting communities struggling to get away from the control of the Protection Board.

Courage in leadership and commitment to the cause was essential in leading a cross cultural dialogue, but Aboriginal activists also lobbied government ministers and were prolific letter writers, especially to politicians. William Cooper used a colonial political method of petitioning the King to publicise his cause. Aboriginal activists also saw the value in utilising the mainstream media as well as their own publications.

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While the New South Wales Government refused to meet an Aboriginal delegation about reform of the Aborigines’ Protection Board, a delegation of activists who had attended the Day of Mourning conference met with the Prime Minister and Minister for Interior to present their national Aboriginal policy.

Outcomes of encounters Nothing came of the meeting with Prime Minister Joe Lyon because the Commonwealth was reluctant to pursue an alteration to the Australian Constitution or seek agreement from the States in that regard. In any case, as discussed above, Aboriginal Affairs administrators from the States and Northern Territory had resolved at a conference in 1937 that administration of Aboriginal Affairs should remain with individual states and that the States should work towards uniformity in legislation. In 1944 the Commonwealth Government attempted to hold a referendum and secure Aboriginal law making power but the referendum was defeated. Activism and public campaigning in the late 1950s and early 1960s forced the Government to hold a referendum in 1967 to amend discriminatory sections of the Constitution and to enable the Commonwealth Government to have legislative power over Aboriginal people (Attwood & Markus, 2007).

It was clear there was no change in Aboriginal policy in New South Wales and in the way the Protection Board administered Aboriginal Affairs, as evidenced by the way the government and the Protection Board behaved and responded to the claims of Aboriginal people in Cumeroogunga reserve on the Murray River and their walk-off in 1939. The Cumeroogunga protest was defeated because the Protection Board and the New South Wales Government refused to listen to or hear the complaints of Aboriginal people about living conditions and the reserve management (Attwood, 2003: 31-53).

In June 1940 the Aborigines Protection Act was amended after an inquiry by the Public Service Board into the Protection Board resulting in changes to the administration of Aboriginal people in New South Wales. The inquiry recommended reconstitution of the Protection Board into a Welfare Board, the appointment of a Superintendent and a policy for the gradual assimilation of Aboriginal people ‘into the general and social life of the general community’. It also recommended developing Aboriginal stations to

169 produce crops and foodstuffs; providing training to Aboriginal people; and improving housing and other necessary buildings on reserves. New appointments were made to the Welfare Board with anthropologist A P Elkin being appointed (Aborigines Welfare Board, 1941).

Newspapers in Sydney and Melbourne were generally dismissive of the Day of Mourning, although the fact that they recognised some truth in the criticism indicates that the message of the Aboriginal activists to draw attention to the plight of Aboriginal people had reached its target. The important aspects of the intercultural relations forged by the Aboriginal activists enabled them to play a constructive and historical role in agitating for citizenship and land rights for Aboriginal people. Although an Aboriginal-only forum, the Day of Mourning conference enabled Aboriginal people to develop and assert their own political agenda. It operated in stark contrast to the white Australian celebrations taking place on the 26 January 1938.

Lessons and trends In the late 1800s Aboriginal people at Coranderrk argued they were as a capable as white settlers in farming the land and living as free independent people. Similarly the Aboriginal activists in the late 1930s were able to turn around the settler colonial ideological constraints by arguing that Aboriginal people could adapt to western civilisation and progress if provided with real opportunities and positive support and protection from the Aborigines’ Protection Board. Government policies excluded Aboriginal people from citizenship on the basis of Aboriginal inferiority but the Aboriginal activists directly challenged these colonial assumptions.

Another important lesson is that despite the lack of freedom Aboriginal people had in 1930 under the oppressive rule of the Aborigines’ Protection Board, the Aboriginal activists were able to navigate their way through the constraints. Their leadership was courageous as they built coalitions between Aboriginal political organisations, engaged Aboriginal communities and committed to pursuing a rights agenda.

The Aboriginal activists were able to speak from their own experience, culture and voice and refused to allow other people to speak for them. Aboriginal people were able to create the space to develop their own political agenda to secure their rights 170 and also their survival. In a hegemonic European political and social environment, the Aboriginal activists who initiated the Day of Mourning conference were not totally constrained but developed their own political narrative that challenged Australians to recognise their citizenship and land rights.

Further, being able to engage cross culturally with a diverse range of non-Aboriginal organisations and individuals across political lines is an important lesson because the struggle for Aboriginal recognition is not a struggle anchored in the Left or Right of Australian and western political thought. The struggle for Aboriginal recognition should be grounded in Aboriginal political thought and in developing the capacity of those involved to ‘think black.’ This should encompass the language of historical dispossession, physical and cultural extermination, cultural survival, assertion and recognition of cultural rights, freedom from discrimination and oppression, Aboriginal agency and self-determination. It should also encompass the language of Aboriginal improvement, development and citizenship.

Conclusion The struggle for citizenship, land rights and economic self-sufficiency by Jack Patten, William Ferguson, William Cooper and other Aboriginal activists challenged the protection policy exposing its deficiencies and its authoritarian intent. As a result of their efforts, white Australian humanitarian organisations and individuals began to take up the concerns of Aboriginal people arguing for equality for Aboriginal people and for Commonwealth control of Aboriginal Affairs. Nonetheless, the ‘new deal’ policy for the Northern Territory was still aimed at assimilating Aboriginal people into the Australian community through the provision of health, education and training so that Aboriginal people could secure rights of citizenship.

In the next chapter I examine the claim for recognition of the Yolngu clans on the Gove Peninsula in the Northern Territory. Under the assimilation policy a Methodist mission was established in 1934 at for the Yolngu clans. Yirrkala is within the Arnhem Land Reserve which was established as a sanctuary for Aboriginal people in 1931. In 1963 the Commonwealth Government excised a large area of the reserve on the Gove Peninsula for mining ignoring the rights and interests of the Yolngu clans. The Yolngu

171 challenged the Government’s action asserting ownership of the land. In doing so they also challenged the assimilation policy, particularly its paternalism and its lack of recognition of Aboriginal rights to land.

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CHAPTER 6: ASSIMILATION AND PATERNALISM

Introduction This chapter presents a story about the Yirrkala petition to Federal Parliament in 1963 and the government policy of assimilation from the 1950s through to the 1960s. The story gives voice to the Yolngu experience and reveals how their struggles for recognition and justice were impeded by negative assumptions about the Yolngu and their culture. At the time government policy deemed Aboriginal people as wards of the state in need of guardianship. Whilst Aboriginal people could be deemed Australian citizens under the Nationality and Citizenship Act 1948, they were not entitled to the full benefits of citizenship. Full citizenship was dependent upon successful assimilation into white society.

The Yolngu in Yirrkala had strong connection to their country, to their customs and to their traditions but the Commonwealth Government did not consider them intelligent enough to understand their own needs and concerns, or for that matter to have the capacity to protect their interests. However the Yolngu were able to establish dialogue with the Government in a way that challenged the Government’s assumptions about them and also challenged the guardian/ward relationship and the policy of assimilation.

The beginnings of assimilation The alliance between Jack Patten and Bill Ferguson split in April 1938 but the struggle continued. Patten focussed on the struggle in Cumeroogunga and Ferguson continued to pressure the New South Wales Government in regards to Aboriginal political goals. A number of white humanitarian organisations had also taken up the concerns of Aboriginal people and campaigned politically on their behalf. There was also a change in the discourse of Aboriginal policy.

These white humanitarian organisations emphasised protection and segregation of Aboriginal people and subscribed to the view that Aboriginal people needed to be Christianised and civilised to reach a higher level of civilisation. Although paternalistic in their views of Aboriginal people, they nonetheless recognised Australia had a

173 national responsibility to Aboriginal people. The Victorian Aboriginal Group for example believed that settler Australians had a national duty to Aboriginal people because of contemporary and historical dispossession and that a debt was owed for the whole of the continent. In that regard the federal government should take the lead in formulating and coordinating Aboriginal policy through the development of a special Department of Native Affairs. They concentrated on the plight of Aboriginal people in the northern and central frontiers calling for the protection of Aboriginal people through the maintenance of inviolable reserves where Aboriginal people could evolve towards European civilisation (Attwood, 2003: 85, 87-89, 91).

From 1934 the humanitarian Aboriginal rights campaigners were increasingly influenced by Adolphus P Elkin who called for a positive policy of assimilation and adaptation which came to be associated with the call for civil rights (Attwood, 2003: 100-101). Elkin, an Anglican minister, anthropologist and lobbyist for the rights of Aboriginal people, developed a concept of full citizenship for Aboriginal people. However his discourse on citizenship was based on a social evolutionary model of society where Aboriginal people had to move or be moved along the scale of civilisation (Gray, 1998: 57-60).

Elkin believed that protection was negative policy because it was authoritarian and it failed to protect Aboriginal people from injustice and violence and it did not envisage a future for Aboriginal people. He argued that the nation is a ‘trustee and custodian of the Aboriginal race’ and that white Australians had a duty to understand Aboriginal people because they helped whites in the exploitation of the country. He said it was not enough to know superficially how to treat Aboriginal people in order to get them to work. A much deeper understanding of Aboriginal people was needed to gain a better service from them, a service which might be of value to them as well as to white people (Elkin, 1933: 3-5).

Elkin was scathing about the failure of Australians to realise that Aboriginal people are a national responsibility:

“The great majority of Australians, including almost all of our politicians, fail to realise that the Aborigines are our national 174

responsibility. For the most part, this is due to ignorance: very few of us know anything about the Aborigines, and fewer still know any of them personally; consequently we do not think of them as human personalities, but just as blacks. Moreover, the vast majority of Australians are quite ignorant of the problems of racial and cultural clash. In some cases, however, it is a matter of wilful refusal to regard the natives as anything except “niggers” – the lowest of mankind, though the women are apparently good enough for concubinage and the men for cheap labour” (Elkin, 1934a: 52).

The inevitable changes to the Aboriginal environment as a result of white contact and the usurpation of their country concerned Elkin. He advocated a positive policy for protecting and advancing the welfare of Aboriginal people so they could become worthy citizens and not ‘hangers-on to station and townships’. Elkin’s positive policy for a system of Aboriginal Affairs administration in northern and central Australia involved administrators, a Department of Native Affairs, a Department of Native Justice, employment of tribal police, education and training for Aboriginal people as well as religious instructions. A key aspect of this policy was that Aboriginal people would not only be protected from injustice but also assured of a livelihood (Elkin, 1944: 12; Elkin, 1934b).

The essential features of the policy included health services, education and improved conditions of employment. According to Elkin two things had to change: first, the deeply entrenched attitude amongst white settlers that Aboriginal people were inferior – to be used, abused and treated paternally – and second, the ongoing forms of Aboriginal ‘parasitic adaptation’.41 His ideas were adopted by the Association for the Protection of Native Races (Sydney) and supported by the Aborigines’ Friends’ Association (Adelaide), the Victorian Aboriginal Group and other missionary organisations. In 1933 the National Missionary Council of Australia endorsed a national

41 Elkin referred to the Aboriginal adaptation to white people as ‘intelligent parasitism’. According to Elkin after the initial cultural clash and pacification by force, Aboriginal people realised that white settlers and station managers were dependent upon them for labour and sexual partners and in return they could obtain white man goods and articles (tobacco, sugar, tea, flour and iron) which they desired (Elkin 1964: 364-365). 175 policy calling for a number of changes in Aboriginal policy especially Commonwealth oversight and control of Aboriginal people; a separate Department of Aboriginal Affairs; and uplifting Aboriginal people to train them to become ‘capable, industrious and self-reliant people’ (Elkin, 1964: 367; Elkin, 1944: 15-16).

Elkin believed that anthropologists had a role in uplifting Aboriginal people in the ‘cultural scale’ and helping them to adapt to change. He argued that interfering with and destroying the Aboriginal social, economic and religious organisation through which Aboriginal people adapt themselves to their geographical and social environment results in tribal disintegration and ultimately depopulation. Aboriginal organisation, he said, should be recognised as integral to future dealings between white Australians and Aboriginal people and should be respected and taken into consideration in framing Aboriginal policy (Elkin, 1934b: 2-5).

Moving to a policy of assimilation The move away from the protection policy to a new policy of assimilation began with Elkin’s involvement in developing a new federal government policy for Aboriginal people in the Northern Territory. This policy put in place by John McEwen, Minister for the Interior and the Secretary of the Department, was referred to as a ‘new deal’ for Aborigines (‘New Deal’ Policy. Education of Aborigines, 1938b: 13). It was aimed at taking care of the immediate physical needs of Aboriginal people including their health, education, and training for ‘useful community service’, however its long term objective was assimilation into the Australian community over many generations in order for Aboriginal people to secure the rights of citizenship (McEwen, 1939: 1-2). Western religion would provide a philosophy and moral code for Aboriginal people and would involve religious training through church missions which would be subsidised by the government to provide services to the ‘native’ emerging from the ‘tribal state’ or who is a ‘hanger-on’ with ‘no objective in life’ (McEwen, 1939: 11).

The policy created a Native Affairs Branch in the Northern Territory under the responsibility of a director and assistant director. They would be supported by district officers, patrol officers and other officers. A Native Constabulary was also proposed and would be under the control of the district officers to carry out police work. The role

176 of the Native Affairs Branch was to provide services and train ‘natives and half-castes’ to qualify for citizenship. The policy identified four classes of Aboriginal people in the Northern Territory: ‘the fully detribalised’; ‘the semi-detribalised’; ‘the Myalls or aboriginals in their native state’; and ‘half-castes’ (McEwen, 1939: 2-3). The Argus newspaper reported that it was unlikely the Government would attempt any ‘uplift’ with the myalls because many ‘were still a menace to the white man’ (‘New Deal’ Policy. Education of Aborigines, 1938b: 13).

In accordance with the policy so called ‘fully detribalised natives’ living around pastoral stations and main towns would be provided with housing, education and health care in Aboriginal compounds in Darwin and Alice Springs. The compounds would enable people to engage in gardening, fishing, and animal husbandry and also provided with some entertainment to keep them away from town. So called ‘half-castes’ born in wedlock to ‘half-caste’ parents would be cared for by their parents and those born of an Aboriginal mother and non-Aboriginal father would be cared for in government institutions, given elementary education and later put in separate institutions according to sex. The girls would be trained to be domestics and the boys trained for station work as a source of labour for whites. The near-white children would be trained apart from the half-caste children. So called ‘Myalls’ still living in a tribal state and ‘semi-detribalised’ Aboriginal people would be left alone and protected from white intrusion and exploitation of resources on reserves would be prevented. District Officer Stations were to be established on the boundaries of reserves ‘as buffers between tribal natives and outer civilisation’ and as centres for gradual contact with ‘civilisation’. The stations would become training and employment centres for ‘natives’ preparing them to gradually develop in their own way rather than drift into towns only to become ‘hangers-on’ (McEwen, 1939: 4-10).

Assimilation, national responsibility and citizenship The assimilation of Aboriginal people was integral to an Australian vision of a uniform nation. Aboriginal people would be inculcated with white Australia’s values and aspirations and conform to its established way of life to become members of the nation. It was assumed that Aboriginal people would embrace this new way of life and

177 that it would be an unproblematic and inevitable passage for Aboriginal people. To achieve assimilation, the support of white Australians in accepting Aboriginal people as full citizens was necessary; however this required abandonment of entrenched discriminatory attitudes and practices (Haebich, 2002; McGregor, 2011: 78-80).

The assimilation policy was associated with greater Commonwealth Government involvement in Aboriginal affairs. In many respects this was because the Government was concerned with its international reputation in relation to the treatment of Aboriginal people. In June 1950, Paul Hasluck MP, argued in Parliament that Australia’s record on ‘native administration’ would not stand international scrutiny and in that regard the Federal Government had responsibility to initiate steps for cooperation with the states to improve the conditions and welfare of Aboriginal people (House of Representatives Official Hansard, 1950, No. 23: 3979-3980).

Hasluck also argued that the nation needed to move to a new era in social advancement for Aboriginal people away from the ‘crude protection’ of ‘primitive’ people living in the bush. He said at least two-thirds of Aboriginal people were closely in touch with the European way of life and their future was in associating with Europeans where they would gain the ‘full opportunity to live worthily and happily’ (House of Representatives Official Hansard,1950, No. 23: 3977-3978).

A Commonwealth conference on native welfare policy in September 1951 attended by the governments of New South Wales, Queensland, South Australia and Western Australia agreed that assimilation was the objective for ‘native welfare’ but that executive responsibility for ‘native affairs’ would remain with respective governments. According to Paul Hasluck the conference was significant because all ministers agreed that assimilation should govern all aspects of native affairs administration. He defined assimilation as all persons of Aboriginal or mixed blood living in the same way as white Australians (House of Representatives Official Hansard, 1951, No. 42: 875).

While the Commonwealth and states acknowledged that many Aboriginal people were capable of accepting citizenship responsibilities they believed a number of Aboriginal people in northern Australia needed special legislation to assist their advancement into ‘civilisation’. The governments were mindful of human rights standards however they 178 did not think they were treating persons defined as ‘native’ and ‘Aboriginal’ as a different class of citizen. In their view, these people were wards of the state in need of guardianship. They would cease to be wards once they obtained full citizenship, but this could only be achieved if they lived and worked as accepted members of the community (Commonwealth of Australia, 1951).

Thus the benefits of full citizenship for Aboriginal people were linked to their successful assimilation into white society. According to Hasluck this did not mean ‘suppression of Aboriginal culture’; instead, over the generations, Aboriginal people would lose their ‘tribal life’ and grow into white society. He asserted that more than two-thirds of Aboriginal people were ‘detribalised’ and that assimilation provided an alternative to the loss of ‘tribal customs’. Nonetheless, he said there would be some Aboriginal people at a ‘lower level of civilisation’ who would be segregated for a temporary duration (House of Representatives Official Hansard, 1951, No. 42: 875-876).

The assimilation and citizenship process was controlled by the exemption provisions of Aboriginal legislation. Aboriginal people – including so called ‘half-castes’ – gained citizenship rights only by being exempted from the provisions of special Aboriginal legislation; however such exemptions did not always imply full citizenship. In New South Wales (NSW), Queensland (Qld), South Australia (SA), Western Australia (WA) and the Northern Territory (NT) a certificate of exemption could exempt Aboriginal people from the provisions of the Aborigines Acts. The exemption was based on the opinion of the Board in NSW and SA, the Director in QLD and NT, and the Minister in WA. In SA the legislation specifically stated that an Aboriginal person had to have a certain standard of character and level of intelligence and development to be granted exemption; and in WA there were conditions relating to having a certain standard of health and freedom from diseases (Commonwealth of Australia, 1951).

Participants in a Native Welfare Conference on 26 January 1961 discussed how Aboriginal people could transition from one stage to another: from living on a reserve where their lives are carefully managed, to being exempted and moved into the general white community where they would be regarded as having full citizenship (Native Welfare Conference, 1961: 8). The definition of assimilation advanced at this

179 conference was much more detailed and defined the status of Aboriginal people as Australian citizens and the methods for advancing the policy of assimilation. As outlined by Paul Hasluck in Parliament:

“The policy of assimilation, in the view of all Australian governments, means that all aborigines and part aborigines are expected eventually to attain the same manner of living as other Australians and to live as members of a single Australian community enjoying the same rights and privileges, accepting the same responsibilities, observing the same customs and influenced by the same beliefs, hopes and loyalties as other Australians. Thus, any special measures taken for aborigines and part aborigines are regarded as temporary measures not based on colour but intended to meet their need for special care and assistance, to protect them from any ill effects of sudden change, and to assist them to make the transition from one stage to another in such a way as will be favourable to their future social, economic and political advancement” (House of Representatives Official Hansard, 1961, No. 16: 1051-1052).

Aboriginal people were already Australian citizens by reason of birth and by virtue of the Nationality and Citizenship Act 1948, but were not entitled to full citizenship rights and responsibilities. To justify why Aboriginal people had limited citizenship entitlements, the Commonwealth Government put forward the view that Aboriginal people were of equivalent status to a minor under 21 years of age: that is, they could not do everything others were able to do and also needed to be protected and assisted in ways in which adults were not. The Government argued that being placed under the provisions of native welfare legislation did not take away Australian citizenship. Whilst it may limit the exercise of some rights enjoyed by other non-Aboriginal Australians it also afforded assistance which was not given to other citizens (House of Representatives Official Hansard, 1961, No. 16: 1052).

The policy of assimilation would be advanced by a range of strategies which were outlined in Parliament. Particular attention would be paid to building more houses;

180 providing transitional housing; ensuring supervision and guidance from welfare workers; creating employment interest in a new way of life; and educating Aboriginal children (House of Representatives Official Hansard, 1961, No. 16: 1052-1053).

Assimilation, paternalism and mining In March 1963 the Minister for Territories, Paul Hasluck signed a 42 year lease to enable Gove Bauxite Corporation, in association with a French Aluminium company Péchiney, to establish an alumina plant and to mine bauxite on land near Yirrkala. At the time, Yirrkala was a Methodist mission with over 500 Yolngu inhabitants. The Yolngu had no say in the decision because they were considered wards of the state. However, the Yolngu considered themselves owners of the country, as affirmed by anthropologist Ronald Berndt:

“To the best of my knowledge, they [the Yolngu] have never consciously thought of anyone else (the ‘Government’ included) except themselves as being the owners of that land” (Berndt, 1964: 263).

Discussions over the possibility of bauxite mining at Yirrkala had been underway since early 1958. The agreement in principle to the mine was reached between Rev. Cecil Gribble, General Secretary of the Board of Methodist Overseas Missions, Rev. GS Symons, Chairman of the North Australia District of the Methodist Church and Roger Nott, representing the Commonwealth Government. According to the Yirrkala Mission Superintendent, Edgar Wells, the decision ‘had been kept quiet as possible’. No Aboriginal people were present at the meeting of the Mission’s Board, which ratified the agreement in the presence of the Technical Director of the Gove Bauxite Corporation. The Board made no request for either the direct representation of Aboriginal people or for a report to be submitted on their behalf (Clark, 2008: 94-95, Wells, 1982: 41-42).

In negotiating the mining lease, Hasluck said the Federal Government wanted to ensure that there were no harmful effects on Aboriginal people and that the Yirrkala mission work would continue, thereby ensuring that the older generation maintain access to their ‘totemic sites’ and the younger generation obtain benefits from employment and 181 training (House of Representatives Official Hansard, 1963, No. 15: 482). He said the excision of 140 square miles was the most practical way of handling the administrative arrangements for the mining venture and for the welfare of Aboriginal people (House of Representatives Official Hansard, 1963, No. 15: 483-484).

The Yolngu had no say The Yolngu were not consulted because the Government deemed their interests to be represented by the Director of Welfare in the Northern Territory and officials of the Methodist Board of Missions. The General Secretary of the Methodist Board of Missions was satisfied that the Federal Government and the mining company had ‘taken all possible care to safeguard the interest’ of the Aboriginal people (House of Representatives Official Hansard, 1963, No. 15: 482). The Mission Superintendent, Edgar Wells felt that the exclusion of the Yolngu and the expected impact of mining warranted a protest. Wells was angry that he had not been consulted by the Mission Board. He understood the nature of the Yolngu’s relationship to their land and was aware that other British colonies had recognised Indigenous land rights. He was determined to exercise his responsibility to the Yolngu. (Attwood, 2003: 217-218; Clark, 2008: 95; Wells, 1982: 41, 52-54).

Troubled by the lack of consultations with the Yolngu, Wells was scathing of the Mission Board for not considering Yolngu consent necessary when approving the transfer of Aboriginal reserve land for mining purposes, and for not seeking the views of the Yolngu on mining (Wells, 1982:51). He sent dramatically worded telegrams to church officials in Sydney, Perth and Adelaide as well as the Courier Mail, the Sydney Morning Herald, Stan Davey, Secretary of the Federal Council for Aboriginal Advancement, and the Leader of the Federal Opposition, Arthur Calwell, advising that people at Yirrkala were being squeezed into half a square mile from the original holding of 200 square miles as a result of the bauxite land grab, making it impossible to house the population of the mission and cultivate and graze the land. He also sent telegrams to Director of Welfare in the Northern Territory, H C Giese, Reverend Professor Trigge, President of the Methodist Church of Australasia and Reverend Cecil Gribble, recommending that no document of transfer of facilities be signed and that there be no negotiations with the mining company or government over transfer of land tenure or 182 living space of Aboriginal people for 30 days (Attwood, 2003: 215-217; Clark, 2008: 95- 96; Wells, 1982: 41-44).

Stan Davey condemned the Commonwealth Government and the Mission Board for ‘defrauding’ the Aboriginal people of their tribal land and for opening the way for their destruction. Davey argued the actions of the Government and the Mission Board were propped up by the assimilation policy and that both the Government and Mission Board had a moral obligation to protect the land and community rights of the Yolngu. Along with Gordon Bryant, Vice-President of the Federal Council for Aboriginal Advancement, he saw this as an opportunity to take a stand against assimilation and to make a case for Aboriginal land rights. Davey called for suspension of the mining development until certain conditions were met and for negotiations with the Yolngu. He also demanded that the Australian government enact legislation to grant title to tribal lands to people living on reserves and to assure Aboriginal people they had inalienable rights which could only be set aside by negotiation and just compensation (Attwood, 2003: 219-221).

Strength in traditional values The uncertainty of what the mining company was doing, a lack of explanation concerning company activities and absence of negotiation in relation to the land caused anxiety amongst the Yolngu and mission staff (Wells, 1982:14-16). The Yolngu discussed the presence of the mining company and the increasing loads of machinery on the mission wharf at Melville Bay (Wells, 1982: 30). There was concern and disquiet that strangers could walk about the country boring holes, marking off areas, erecting buildings, and delaying mission shipments on the wharf without any real attempt at explaining their future intentions (Wells, 1982: 19).

Wells understood that traditional values relating to their relationship to land was the source of Aboriginal strength and power and that assisting the Yolngu reaffirm their traditional association with their land and their spirituality would reinforce survival values, increase intellectual power and ensure a full and free discussion amongst the Yolngu (Wells, 1982: 17-18). The Yolngu were also artists and emphasis on art at Yirrkala brought the clan leaders together, where they exchanged views on other issues

183 including the mining of their land. The Yolngu leaders used their own people who could write. Wandjuk Marika’s old type writer was used to write letters to Edgar Wells asking questions and explaining the importance of their country.42 They also wrote to Harry Giese, Director of Welfare, asking for his help (Wells, 1982: 70).

The Yolngu leaders said the mining company could use the country but they wanted to hunt freely over their country and they did not want mining to encroach on the mission. Giese responded stating that while it may appear that the Government was not helping, the mining would be beneficial to the Yolngu. He assured them they would not be pushed out of Yirrkala and he would send the Chief Welfare Officer, Ted Evans to explain what the mining company can do and how people would benefit (Wells, 1982: 71-72).

In May 1963 the Yolngu leaders wrote to both Harry Giese and Paul Hasluck requesting compensation because the Government would benefit financially from the mining. In exchange for mining their country they wanted brick houses including housing for single people, a shop, bakery, tables and chairs, two toilet blocks as well as a truck and four wheel drive vehicles for hunting (Wells, 1982: 72).

Aboriginal rights and assimilation The dispute over mining at Yirrkala focused public attention on the policy of assimilation. Paul Hasluck said the Government was trying to foster home industries such as gardening, fishing, cattle-raising, forestry and production of artefacts for sale on all missions in Arnhem Land to transition Aboriginal people into gainful occupation. These home industries would complement other measures for the advancement of people such as the industrial development in east Arnhem Land, which according to Hasluck need not be a source of harm but represented a valuable opportunity for advancing Aboriginal people (House of Representatives Official Hansard, 1963, No. 15: 482).

42 Wandjuk Marika (1927-1987). Wandjuk was an artist, actor and activist. He was a member of the Rirratjingu group of the Yolngu people. See Australian Dictionary of Biography: http://adb.anu.edu.au/biography/marika-wandjuk-djuakan-14917 [Accessed 16/9/2015]. 184

Cecil Gribble believed that assimilation was inevitable for Aboriginal people in Arnhem Land and that the Church’s role was to comfort them during this transition. Gribble’s position was consistent with the National Missionary Council of Australia General Policy on Aborigines of 1959 which endorsed assimilation because they believed that Aboriginal people would progress if merged into the white community (Clark, 2008:99- 100). However in June 1963 the Council questioned its policy on assimilation and developed a supplement which supported the desire of Aboriginal people to retain their distinctive culture and identity and their right to contribute to decision making and policies which affect their lives (Clark, 2008:102-103).

To the Government, however, assimilation was incompatible with rights to land or maintaining Aboriginal language and culture. Paul Hasluck pointed out that reserves were created to protect ‘tribal nomads’ from other Australians by isolating them on inviolable reserves and did not create any legal title to the land or its resources for Aboriginal people. Under the assimilation policy the issue was how to best transition Aboriginal people from a ‘sheltered life on the mission’ to a full life in the Australian community. This involved providing ‘gainful occupation’ and ensuring development on reserves promoted their welfare (House of Representatives Official Hansard, 1963, No. 15: 482).

Peter Howson, who would later have ministerial responsibility for Aboriginal Affairs, said the Government’s aim was for assimilation into one community where Aboriginal people would assimilate into European society. This required them to ‘change their communal way of life to an individual life’. According to Howson, assimilation meant individual ownership of land and housing – not sharing on a communal basis – as well as taking up European forms of employment. Howson also said Aborigines should be treated the same and have the same opportunities as other Australians.

The Federal Labor Opposition said there should be a ‘revolutionary approach’ to the position of Aboriginal people on reserves. Kim Beazley senior (Snr) said the time had come for the Commonwealth Parliament to create an Aboriginal title to reserve land in the Northern Territory as it was within the constitutional power of the Government to do so (House of Representatives, Official Hansard, 1963, No. 21: 1795-1796).

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Beazley Snr said it was time for the Parliament to face the question of Aboriginal entitlement to land because Europeans in Australia had never acknowledged that Aboriginal people might have such an entitlement. He asserted that the proclamation of reserves by the Commonwealth would mean nothing if areas where minerals had been found were excised from reserves leaving Aboriginal people less desirable country. Beazley Snr was also critical of the Government for not consulting with Aboriginal people and for accepting the mission as the representative of Aboriginal people. He said Aboriginal rights should be safeguarded by discussions with Aboriginal leaders of the Gove Peninsula (House of Representatives, Official Hansard, 1963, No. 21: 1796-1797).

Labor member Gordon Bryant also called on the Parliament to find a new approach to Aboriginal Affairs, arguing that Aboriginal people had a right to their traditional lands and should be consulted in regard to the use of their land. He said the rights of Aboriginal people in Yirrkala had not received proper consideration and noted that tribal elders were concerned about what had happened. He also argued that if this part of Arnhem Land was to be developed then it must be developed for Aboriginal people. Bryant recognised that the Australian conscience could not be clear because Aboriginal people were not being treated equally and that little consideration had been given by governments to the fundamental human dignity of Aboriginal people (House of Representatives, Official Hansard, 1963, No. 21: 1800-1803). In response to the Labor Party’s call for an Aboriginal title in land, Howson said that to create Aboriginal title and hand over land would be treating Aboriginal people differently to other Australians (House of Representatives, Official Hansard, 1963, No. 21:1798-1800).

The Yolngu Bark Petition It was the Yolngu paintings in the Yirrkala church that provided the inspiration for a bark petition to Federal Parliament. The painting impressed Labor Party politicians Gordon Bryant and Kim Beazley Snr when they both visited Yirrkala in July 1963. They saw a working mission cultivating peanuts, vegetables, sorghum and bananas, and also noted the improved pasture. But the area of the mission had been reduced to about one square mile as a result of the mining lease. Bryant felt there had been a complete

186 disregard for the Yolngu people and that the people at Yirrkala were ‘isolated and practically defenceless’ while the administration charged with their protection ‘stands mute’ agreeing with the mining company as though it is an arm of government (Bryant, 1963).

The Yolngu voice The two large paintings in the new church building in Yirrkala represented the essence of Yolngu existence by depicting the relationship between the Yolngu and their land. They also linked Christianity and Yolngu spirituality as a meeting of cultures. Over a discussion about the cultural meaning of the paintings, Beazley Snr suggested the Yolngu make a bark petition surrounded by an Aboriginal painting to convey their concerns (Clark, 2008:108-109, Wells, 1982:58-62). He provided the wording to the petition in English while the paintings and the matching Yolngu Matha petition was done by the Yolngu. While one group worked on the matching Yolngu Matha words of the petition, a senior group of Yolngu artists painted the bark boards on which the petition would be glued (Wells, 1982:79-80).

The bark petition was presented to Federal Parliament by John (Jock) Nelson, member for the Northern Territory, on 14 August 1963. The petition asked that: (1) the House of Representatives appoint a committee with competent interpreters to hear the views of the people of Yirrkala before permitting the excision of any land from the Aboriginal Reserve in Arnhem Land; and (2) no arrangement be entered into with any company that will destroy the livelihood and independence of the Yirrkala people (House of Representatives Official Hansard, 1963, No. 33: 81).

The Yolngu bark petition was considered the first of its kind in the Australian parliament and this was reflected in the newspaper headlines. The Age of 15 August 1963 said ‘House Hears Plea in Strange Tongue,’ stating that the House of Representatives had received the ‘strangest petition’ written in ‘Aboriginal language on a length of stringy bark’ (House Hears Plea in Strange Tongue, 1963). The Canberra Times read ‘Novel Plea By Tribal Group,’ stating that a petition written in English and an Aboriginal language and mounted on stringy bark decorated with ochre pictures of turtles, fish, goannas and bandicoots was presented by members of a Yirrkala group of

187 tribes to the House of Representatives. The Canberra Times went on to say that the ‘bark petition’ caused ‘a ripple of surprise and interest’ (Aboriginal Petition On Bark. Novel Plea By Tribal Group, 1963:3).

The wording of the Yolngu petition relayed more than a request to Parliament for a committee to hear the views of Yirrkala people and a halt to mining development. It was a political statement that highlighted the deficient approach of government in excising the land from the reserve without consultation and without recognition of the rights of the Yolngu. The Yolngu felt that their needs and interests had been completely ignored and they feared their fate would be much the same as the Larrakeyah people in Darwin (Report from the Select Committee on Grievances of Yirrkala Aborigines, Arnhem Land Reserve, 1963).

The petition had considerable impact not only because it was different but also because Yolngu culture was recognisable to settler Australians due to the work of anthropologists such as Donald Thomson and Ronald and Catherine Berndt. Yolngu art had won Australian and international audiences (Attwood, 2003: 231-232). According to Wells, the petition carried ‘the flame of its own success’ and served notice that there was serious discontent amongst Arnhem Land’s Aboriginal people concerning the lack of communication and compensation for loss of traditional land (Wells, 1982: 81).

Denying the Yolngu voice Representatives of the Federal Government and the Methodist Overseas Mission would not accept that Yolngu were ‘coming of age’ in society and tried to identify a missionary organiser in Yirrkala responsible for the petition (Wells, 1982: 81). Gribble implied that Europeans were pressuring the Yolngu. He said that Aboriginal leaders in Yirrkala had assured him that they did not object to the development and understood that they would receive certain advantages from the project. He claimed that the Methodist Mission was instrumental in safeguarding the rights and welfare of the people and their sacred places (Wells, 1982: 81-82).

In Parliament, Paul Hasluck rejected the petition because only about six of the thirteen tribal groups in Yirrkala are represented by the signatories and none of the 12 signatories were over 30 years of age therefore they could not be regarded as having 188 authority to speak on behalf of the people of Yirrkala (House of Representatives Official Hansard, 1963, No. 34: 276-277).

In response the Yolngu prepared a second bark petition as proof of their support for the petition. Wandjuk Marika organised the taking of names and thumb prints which were witnessed by a missionary. Most of the community sent their witnessed thumb prints to Canberra (Attwood, 2003:232, Clark, 2008:117, Wells, 1982:85). Gordon Bryant said it was disappointing that Hasluck and Gribble, who were directly responsible for protecting the people of Yirrkala, should attempt to silence the Yolngu voice. Bryant also pointed out that the bark painting surrounding the written petition had the authority of the four senior Yolngu men who did the painting (Wells, 1982:84).

Representatives of the Welfare Department in the Northern Territory, such as Harry Giese, believed the Yolngu were happy about what was happening. Giese said the petition surprised him because he believed that people at Yirrkala were happy about the arrangements to safeguard their interests and those of the mission. Ted Evans, Chief Welfare Officer, said he had no knowledge of the petition and that people at Yirrkala had not raised their fears with him. Giese was of the view that there was a movement by one or two mission staff to instigate the petition (Report from the Select Committee on Grievances of Yirrkala Aborigines, 1963: 9-10, 12, 59-60). He said it was ‘factually incorrect’ that the lease excision had been kept secret from the Yolngu because full facts of the matter were made known to mission authorities. He indicated that certain people at the mission had misrepresented the truth or made statements that caused misunderstandings amongst the Yolngu and had endeavoured to influence them (Report from the Select Committee on Grievances of Yirrkala Aborigines, 1963:9, 18, 20). Evans said there was no specific request made to him to convey anything to government and that it was ‘grossly untrue’ to say that Yolngu had been ignored in the past (Report from the Select Committee on Grievances of Yirrkala Aborigines, 1963:59, 63).

The select committee The Parliament agreed to appoint a select committee to inquire into the grievance of the Yolngu people as expressed in their petition. The approach of the Coalition

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Government and the Opposition were in direct contrast. Kim Beazley Snr spoke about Australia’s international obligations, the need to accept its obligations for justice and restitution towards Aboriginal Australians for dispossession and the need to give them a voice in parliament. He argued that if they can be dispossessed without consent, consultation, compensation or offer of alternatives then they were being treated as conquered people. He recommended that the Commonwealth Parliament ratify the International Labour Organisation Convention 107, which recognises the rights of Aboriginal peoples (House of Representatives Official Hansard, 1963, No. 37: 927-930).

Paul Hasluck believed the select committee inquiry would remove any doubts and misunderstandings. He also hoped the select committee would educate the Yirrkala people so that any grievances that may exist in their minds would be assuaged as a result of having a true understanding of their situation. Hasluck said the Government’s policy in relation to Aboriginal reserves was not about providing reserves for Aboriginal people to ‘retreat and live in a tribal state’ but to meet the future needs of Aboriginal people as they ‘advanced further towards civilisation’ (House of Representatives Official Hansard, 1963, No. 37: 930-933).

Given that decisions had already been made in regards to mining on Yolngu land the select committee could only recommend certain protections and benefits for the Yolngu such as ensuring access to the land for hunting; protection of sacred sites; restricting unauthorised access to the mission; providing compensation for loss of traditional occupancy; building of homes; making provision for land within the town; and ensuring consultation on the location of the proposed town (Clark, 2008: 113; Report from the Select Committee on Grievances of Yirrkala Aborigines, 1963: 12).

The only consolation for the Yolngu was the vindication of their grievance about lack of explanation and consultation. While the committee was impressed with the quality of the Aboriginal evidence presented, it found that no discussion had taken place between the Government representatives and the Yirrkala people prior to the land excision. The committee noted that the Chief Welfare Officer was absent on leave during the ‘vital period’ when consultations could have taken place and there was a ‘failure in clear communication’ when welfare officers met with the people in May

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1963 to explain the mining proposal. The committee was also of the opinion that the welfare officers and government officials had not conveyed the views and feelings of the Yirrkala people to the Government ‘as far as these officers understood them’ (Report from the Select Committee on Grievances of Yirrkala Aborigines, 1963:10).

No word from anyone The Yolngu were clearly of the view that the Gove peninsula was their country, that they had first rights of ownership, and in that regard should share in the wealth to be made from their country. Milirrpum, Dadayna and Djalalinba told the select committee that Aboriginal clans owned different places in Arnhem Land, that white people should have explained and discussed the mining with them, that the Yolngu must receive something in exchange for the mining and that the wealth derived by the mining company and government should be shared (Report from the Select Committee on Grievances of Yirrkala Aborigines, 1963: 29-30, 31, 50, 51).43

The Yolngu explained to the select committee that the lack of communication from the Government caused them to worry about their country and what the mining company was doing. They said that they wanted to stay on their country and for their children to be able to enjoy their country. They were concerned about sacred sites and they wanted to be able to hunt and hold ceremonies on country. They were also concerned about the use of water and the impact of large numbers of white people coming onto their country. (Report from the Select Committee on Grievances of Yirrkala Aborigines, 1963: 31, 49, 50, 52-53, 55, 73).

They agreed that the company could use the country providing they received something in exchange as compensation. The Yolngu felt that there should be an equal partnership arrangement between them, the mining company and the Government. As owner of the country, Milirrpum said the mining company should inform them what is happening and share the wealth. Wandjuk said the Government and the Church should work ‘side by side’ in partnership with Yolngu. Djalalinba and Narritjin both said the

43 Milirrpum, Dadayna and Djalalinba were senior Yolngu men who gave evidence to the House of Representative Select Committee Inquiry on Yolngu grievances. Milirrpum (1927-1983) represented Yolngu in the case of Milirrpum and Others v Nabalco Pty Ltd and the Commonwealth of Australia (1971). Others who gave evidence were Wandjuk, Djalalinba, Dadayna, Narritjin, Mungurrawuy, Mawalan and Garramali. Two Yolngu women also gave evidence – Yinitjuwa and Nyubililnu. 191 company had to give something in return for mining. Dadayna expressed his concern about the lack of cooperation from white people and said that they wanted a fair bargain and for everyone to be equal and happy with one another (Report from the Select Committee on Grievances of Yirrkala Aborigines, 1963: 31, 49, 51-52, 54).

Consulting Yolngu was not considered necessary The Government had undertaken limited consultations with the Yolngu. Ted Evans visited Yirrkala on 16th May and did not return again until 30th August 1963. He said on neither occasion was he ‘spontaneously approached’ by elders in regards to the proposed mining activity. He saw the purpose of his visit as to explain the Government’s reasons, communicate what the Government thought people could derive from the mining activity and to clear up any possible misunderstandings (Report from the Select Committee on Grievances of Yirrkala Aborigines, 1963: 56).

Harry Giese visited Yirrkala on 17 May 1963. Through an interpreter he explained what the Government was proposing to do and the arrangements for the leases. Giese left the meeting with a ‘fairly clear impression’ that the people were satisfied with the general arrangements in regards to the leases and the financial assistance from government, including the safeguarding of their interests and those of the mission. When questioned in the select committee about whether the Yolngu were satisfied prior to his meeting with them, Giese said that people had certain questions and doubts about the lease boundaries, the area excised from the reserve, and the extent of financial assistance from government, but he thought these ‘doubts and misapprehensions’ were cleared up as a result of Ted Evans’ visit (Report from the Select Committee on Grievances of Yirrkala Aborigines, 1963: 12, 16).

In their evidence to the select committee, some of the Yolngu said that Harry Giese’s visit to Yirrkala was very short. He came in the afternoon, flew out the same afternoon, and they did not really understand him in the meeting. There was no opportunity to ask him any questions and Giese did not make it clear that a decision had already been made about mining. Money was apparently mentioned at the meeting but Yolngu did not think it was sufficient compensation. Giese spoke about the township but did not

192 speak about water or sacred sites (Report from the Select Committee on Grievances of Yirrkala Aborigines, 1963: 49, 50-51, 52-53).

Yolngu Bark Petition: discussion and analysis

The assumptions There were a number of key assumptions on the part of the Government. It was assumed that Aboriginal society had nothing to offer and that Aboriginal people were culturally inferior therefore a process of assimilation would transition them into a superior ‘civilisation’. Gainful occupation through home industries linked to the mainstream economy as opposed to a traditional economy was considered a stepping stone for advancement. In regards to the Yolngu people there was an assumption that industrial development would complement the home industries, providing opportunities to enhance their transition towards assimilation into European society.

The Government assumed that white Australians would accept Aboriginal people as their equal and that Aboriginal people – particularly those no longer living a traditional life – would readily accept assimilation, forgoing their identity and culture. Aboriginal people living a traditional life were therefore placed on reserves run by church missions; these mission communities were training and employment centres for gradual assimilation.

Assimilation was incompatible with maintaining Aboriginal culture or recognising Aboriginal rights to land. In that regard the Government did not consider the reserve on which the Yolngu lived as their traditional country but merely land on which mining could take place to assist in Yolngu advancement. It was assumed that Yolngu had no title or rights to land or to the resources of the land. Indeed reserves were not created to recognise Aboriginal title in land but were only places to protect ‘tribal nomads’ and to be run as centres where they could receive training for eventual assimilation.

The assumption of Aboriginal inferiority placed Aboriginal people in a relationship of guardianship and wardship with the state. As wards of the state it was assumed that they were incapable of being responsible for their own lives or making decisions about their needs. Only the government or Christian missions could determine what was in

193 their best interest and could make decisions on their behalf. Paternalism was a key aspect of the policy of assimilation therefore there was no need to consult Yolngu and involve them in negotiations in regards to mining on their country. It was assumed that the Yolngu would see the mining as beneficial. The Methodist Mission Board and the Welfare Department believed they understood the needs and concerns of the Yolngu and that they would take care of them. Further it was assumed the Yolngu were not intelligent enough to understand what was happening and so when they began to protest and articulate their concerns it was assumed that white agitators were manipulating the Yolngu.

Challenging hegemony The Yolngu anchored their struggle in their traditional values – especially in their spiritual and physical connection to country. They wanted to show that they owned the land through their desire to protect sacred sites, to access country for hunting, undertake ceremonies on country, and ensure the country was not damaged or over exploited. They were worried about their future and about maintaining connection to country as they were concerned that mining and the influx of white people would force them off their country into small living areas. Reciprocity was an important value to Yolngu and they expected that white people – particularly the Mission Board, the Government and the mining company who had made decisions about using their country – would share this respect and respond accordingly: that is, by entering into an arrangement with the Yolngu to provide a share of the wealth from bauxite mining.

The Yolngu men were active in trying to make sense of what was happening and what was likely to happen in the future. They sought answers from mission staff and also wrote letters to the Director of Welfare and the Federal Minister for Territories. But it was the bark petition presented to Federal Parliament that forced a House of Representative select committee inquiry which in turn called into account the actions of the Methodist Overseas Mission and the Federal Government, including the Welfare Department.

Whilst the Yolngu used the political processes of Australian constitutionalism to present their concerns and grievances, the petition was grounded in an alternative

194 discourse that expressed the Aboriginal relationship and title to land. The petition was presented as a bark painting however it was not just a novel petition written in a ‘strange tongue’. It constituted a political statement and a claim to land and although its significance and sophistication was lost on the media and most parliamentarians it forced the Government to listen. It was no ordinary petition because the painting showed the clan designs of all the areas threatened by mining and represented a claim to land or title to land (Schwarz, 1999: 54, 57; Morphy, 1978: 38). The artwork was an expression of the relationship between the Yolngu and the identified land and the symbols used in the painting depicted the sacred significance of that relationship (Clark, 2008: 109).

A number of Yolngu presented evidence to the select committee inquiry and despite language differences and assumptions of their inability to articulate their own views and opinions, their evidence was convincing in regards to the deficient approach of the Welfare Department and the Methodist Mission Board. Yet in the end the select committee could only make recommendations for certain protections and benefits for the Yolngu in regards to the mining project and the development of the town site.

Relationships of respect The Yolngu were in a subordinate relationship with the Government, the Welfare Department and the Methodist Mission Board. There was a lack of respect and empathy for the Yolngu; they were not listened to and, other than superficial consultation, they were not provided with an opportunity to shape their own future. As a result Yolngu were denied agency and voice. There were however some strong relationships of respect and recognition. For example the relationship with Egdar Wells, the Yirrkala mission superintendent was significant because he understood the nature of the Yolngu relationship to land and their cultural values. He also believed the Yolngu were capable of articulating their views and concerns and negotiating on their own behalf. Wells provided the space for the Yolngu men to discuss issues and connect with their traditional values and also challenged his superiors in the Methodist Church to create public discussion and to facilitate the Yolngu voice to government.

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Edgar Wells was disciplined by the Methodist Overseas Mission for his involvement in supporting the Yolngu protest, specifically the telegrams he sent from Yirrkala and his objection to the Methodist Overseas Mission’s consent to the excision of land from the Aboriginal reserve and the negotiation of the mining lease. Wells refused a request to transfer and his appointment as superintendent at Yirrkala was terminated in December 1963 (Wells, 1982:113-114). He said he was proud to be part of this ‘great historical incident’ in the history of Australia’s dealing with Aboriginal people. He believed that great and lasting benefits came from the bark petition challenge (Wells, 1982:118).

Politicians such as Kim Beazely Snr and Gordon Bryant saw that it was time for the Australian nation to face up to the dispossession of Aboriginal people and to recognise Aboriginal rights to land. While the Government were blinded by the policy of assimilation and its associated forms of paternalism, Beazley Snr and Bryant were arguing for a revolutionary approach to Aboriginal policy which respected human dignity and recognised Aboriginal rights to land. Both supported the Yolngu petition to Parliament. Beazley Snr argued that the Australian nation had to examine the issue of whether Aboriginal people were conquered peoples in the context of international law because in effect the Government were treating the Yolngu as conquered people by disposing of their land without consent or consultation. Bryant asserted that Aboriginal people were not Australian citizens with the same entitlements as white people because parliament could deprive them of equality and exclude them from benefits of citizenship (House of Representative Official Hansard, 1963, No. 37: 935).

The Federal Council for Aboriginal Advancement were also supportive of the Yolngu. They championed the select committee’s report as a historic document because it was the first official recognition that Aboriginal people had a moral right to land and it was a breakthrough in relation to the whole issue of white Australia’s treatment of Aboriginal people. The Federal Council consequently committed to a campaign for Aboriginal ownership of traditional lands and for recognition as a minority people who were entitled to respect for their culture and customs (Attwood, 2003:236).

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Level and type of dialogue The Yolngu were regarded as wards of the state with no right to be consulted, no rights to be a party to the negotiations and no rights to land. The Yolngu were also not considered articulate enough to express their own views and opinions or for that matter to advocate for their rights. Even though they were excluded from the initial processes of consultation and negotiation in regards to the mining lease, the Yolngu actively engaged with the systems of Australian government in order to be heard. They initiated a dialogue with the Australian parliament and the government administration in the Northern Territory through the bark petition and the House of Representative select committee. Through the bark petition they were able to force the Federal Parliament to institute a process of dialogue in which they could tell their story and assert their authority over their lands. The bark petition was a form of cross cultural communication that introduced a different discourse into the parliament. The evidence of the Yolngu to the select committee was profound and clear as they were able to express their concerns about mining and articulate the reciprocal relationship they wanted with the government and the mining company.

Clark argues the Yirrkala dispute profoundly concerned the relationship between authority and the power of speech, where the power of the Church and the Government was subverted by the moral authority of the Yolngu who demanded the right to speak for themselves, to speak with their own authority, and to speak in their own language about how their world view is shaped (Clark, 2008: 110-111). According to Schwarz the petition challenged the colonial hierarchy because it threw into question the government’s ability to assert its authority in Arnhem Land and the petition’s authoritative nature indicated that Yolngu connection to country could not be relegated to the periphery of the white agenda (Schwarz, 1999: 82). At the same time the Yolngu were attempting to build bridges to facilitate a better understanding with government and to also engage with white Australian law and culture (Schwarz, 1999: 57, 79).

Outcome of encounters Although the complex meaning of the bark petition was not fully grasped it created significant interest in the parliament and the media thus raising the profile of the 197

Yolngu grievances. The subsequent establishment of the select committee highlighted the deficiency of the guardian-ward relationship and the shortcomings of the policy of assimilation which was incompatible with Aboriginal difference and Aboriginal rights. The lack of concern for Yolngu and lack of engagement with Yolngu by the Welfare Department was also highlighted by the evidence provided to the select committee. The select committee inquiry was however unable to change the relationship between the Government, Methodist Overseas Mission and the Yolngu.

According to Schwarz the petition signified both an achievement and a failure that many Australians have yet to realise and understand. The achievement is the challenge to the Commonwealth Government by the Yirrkala people for acknowledgement of their traditional and rightful ownership of country. The failure is Australia’s inability and unwillingness to foster better relations with Indigenous people (Schwarz, 1999: 93).

As discussed in chapter 2 the Yolngu clans lodged an unsuccessful claim for native title in the case of Milirrupum v Nabalco (1970) arguing they had rights to land under their laws and customs which should be respected by government and that could not be terminated by government without their consent. The failure of this claim by the Yolngu and the subsequent Aboriginal Tent Embassy protest in Canberra in 1972 would lead Gough Whitlam, Leader of the Opposition, to commit that his government would recognise land rights in the Northern Territory.

Lessons and trends A key lesson from the Yirrkala bark painting petition for political and social dialogue in relation to Aboriginal policy today is the critical importance of having cross cultural relations with other Australians who are not only sympathetic but who understand and can see the injustice of government Aboriginal policy and practice. Such supporters can facilitate public discussion, open doors and facilitate communication or act as advocates within the institutions of Australian constitutionalism.

Another critical lesson for Aboriginal people in their struggle for recognition is ensuring that they have the space to discuss and develop a political agenda internally and also to anchor the struggle in Aboriginal political thought and action. This may involve 198 emphasising the language of cultural values as well as adopting the Western language of injustice and rights. It is necessary for Aboriginal people to assert their political and cultural values to challenge governments. Without question, it will need to involve Aboriginal people speaking in their accustomed voice presenting an alternative discourse or understanding that challenges the dominant discourse. It is only through challenging assumptions that new ways of pursuing dialogue are created.

Presenting the Aboriginal political agenda in innovative and novel ways can attract interest from politicians and the media – both Western institutions that are essential to creating change. This may involve telling a cultural story that not only asserts Aboriginal authority but that builds bridges and understanding with other Australians. In asserting their political and cultural values it is important for Aboriginal people to utilise the processes and forums of Australian constitutionalism to not only engage with the institutions of government but to assert Aboriginal authority within those institutions.

Conclusion Although they were considered inarticulate and primitive, the Yolngu – with the support of some white Australians – engaged in a very sophisticated dialogue with the Commonwealth Government and with the wider Australian community at the time. Despite significant opposition from the Church and government, they established agency and were able to speak in their own voice that was anchored in their cultural values, particularly in the value of reciprocity. The bark petition had a significant impact in challenging the authority of government. However the Government was not respectful of Yolngu and in that regard was not open to Yolngu perspectives nor was it open to recognising Yolngu claims for recognition of their rights to land. Ultimately, the Government was not able to transcend their assumptions that Yolngu were culturally inferior and had to live and be the same as white people in order to be recognised and gain full citizenship rights.

In the next chapter I examine the Aboriginal Tent Embassy in 1972 in the context of the assimilation policy. A new generation of Aboriginal activist challenged the assimilation policy, demanding recognition of Aboriginal sovereignty and rights to land.

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CHAPTER 7: ASSIMILATION AND LAND RIGHTS

Introduction This chapter tells the story of the Aboriginal Tent Embassy in 1972 in the context of Aboriginal policy during the 1960s and 1970s. The story focuses on the Aboriginal experience in challenging the authority of the Commonwealth government and reflects on how assumptions about Aboriginal people and the Aboriginal activists created barriers to their struggle. At the time government policy still focused on assimilating Aboriginal people into white society.

The assimilation policy did not recognise Aboriginal rights to land nor did it recognise that Aboriginal people could be self-determining. However a new generation of Aboriginal activists emerged to challenge the assimilation policy. They spoke in the language of international black revolution and Indigenous experience in Australia (Clark, 2008: 203). The activists advocated autonomy and empowerment as the means to strengthen Aboriginal culture and identity and advance Aboriginal interests and aspirations (McGregor, 2009: 352).

The success of the 1967 referendum created an expectation that the Commonwealth Government would take immediate action but the Government was reluctant to make any change to its policies.44 Aboriginal activists from Sydney, Melbourne and Brisbane staged a protest in Canberra that garnered significant public support. In the absence of genuine dialogue with government, they succeeded in starting a dialogue with the Australian population and the international community. They asserted Aboriginal rights to land and challenged the settler colonial assumptions that Aboriginal people had no form of land title or sovereignty.

The Policy Background Following the 1967 referendum Prime Minister emphasised that the Commonwealth would not assume responsibility for Aboriginal administration or intrude unnecessarily into an area of state responsibility, except in the Northern

44 The 1967 referendum amended the Australian constitution to enable Aboriginal people to be counted in the national census and to enable the Commonwealth Government to enact special laws for Aboriginal people. 200

Territory because in his view the primary function of the Commonwealth was to coordinate and facilitate policy and provide funding to the states. He also believed the needs of Aboriginal people was predominantly a social problem and should not be ‘magnified or misrepresented’ as racial (House of Representatives Official Hansard, 1967, No. 36: 973-975).

In November 1967 Holt announced the formation of a Council for Aboriginal Affairs to advise the Government on national Aboriginal policy and to consult with Commonwealth departments as well as ensure official cooperation between the Commonwealth and state authorities. Herbert ‘Nugget’ Coombs, retiring Reserve Bank Governor, was appointed as Chairman of the Council. Other appointed members were Professor of Anthropology and Sociology at the Australian National University, Professor W E H Stanner and Barrie Dexter, Australian Ambassador to Laos at the time. Dexter was also the Director of the Office of Aboriginal Affairs (Holt, 1967a, 1967b).

When John Gorton assumed the prime ministership after Holt’s death in January 1968 his government’s objective was the assimilation of Aboriginal people ‘as fully effective members of a single Australian society’. Therefore the Government had to ‘… avoid measures which are likely to set Aboriginal citizens permanently apart from other Australians through having their development based upon separate or different standards’ (Gorton, 1968). According to Coombs, Gorton saw no justification or need for new policies to assist Aboriginal people and it was ‘wholly unacceptable’ to him that Aboriginal people had valid rights to land based on traditional title (Coombs, 1981: 272).

The basis of a change in direction When William McMahon was elected Prime Minister in March 1971 he kept Aboriginal Affairs within his portfolio and with the advice and guidance of Nuggett Coombs and the Council for Aboriginal Affairs, Aboriginal policy began to change its emphasis. This is evident in McMahon’s policy statement to a meeting of Commonwealth and state ministers in Cairns in April 1971 (Coombs, 1981: 279-280; Rowse, 2000: 53, 57). The Cairns policy statement focused on equality of opportunity for Aboriginal people in

201 mainstream society but also accepted that Aboriginal people could maintain their culture and tradition:

“We believe that Aboriginal Australians should be assisted as individuals and, if they wish, as groups to hold effective and respected places within one Australian society with equal access to the rights and opportunities it provides and accepting responsibilities towards it. At the same time they should be encouraged and assisted to preserve and develop their culture – their language, traditions and arts – so that these can become living elements in the diverse culture of the Australian society”(McMahon, 1971).

McMahon proposed the establishment of a special Ministerial Committee presided over by the Minister for Aboriginal Affairs and advised by the Council and Office of Aboriginal Affairs. The Council of Aboriginal Affairs would consult with state and Commonwealth departments on a program to increase the economic strength and independence of Aboriginal people through employment opportunities and assist with individual and community enterprises. Consideration would be given to ensuring Aboriginal groups had access to land for recreational and ceremonial purposes as well as for the development of enterprises. Legislation would also be examined to remove any discrimination against Aboriginal people. Finally McMahon said Aboriginal people must be helped to manage their own affairs and he welcomed the moves taken to develop representative and consultative bodies at state, regional and local level (McMahon, 1971).

Coombs said the Prime Minister’s statement in Cairns would have provided the basis for a change of direction but the Minister for Interior undermined its effectiveness by presenting another statement at the same conference. The principles embodied in the Cairns statement were soon tested by the Gurindji demands for return of their traditional land and the claim by the Yolngu for land rights.45 The Council for Aboriginal

45 The worked on (their traditional country) in the Northern Territory owned by Lord Vestey of England. In 1966 under the leadership of they walked off the station in protest over low wages, poor working conditions and bad treatment. They refused to return to 202

Affairs had recommended to Government that procedures be established to examine claims to land based on traditional association and to examine the Gurindji case according to those procedures, but there was opposition from Northern Territory pastoralists (Coombs, 1981: 281).

The struggle over Aboriginal policy When Peter Howson became Minister for Environment, Aborigines and Art in late May 1971 he set about reigning in and isolating Nugget Coombs and the Council for Aboriginal Affairs. Howson had doubts about the Government’s Aboriginal policy. He felt the task is ‘not to look to the past but to look to the future’ and for Aboriginal people to economically exploit land having the same legal organisations as Europeans (Howson, 1984: 735, 755-756).

Howson chaired the newly created Ministerial Committee on Aboriginal Affairs and established an inter-departmental committee to examine the details of Aboriginal policy (Howson, 1984:755). Howson referred the Council for Aboriginal Affairs paper on government policy and land rights to the inter-departmental committee (Rowse, 2000:62). It was within this inter-departmental committee that the Department of Interior and the Northern Territory administration strongly resisted Coombs and the Council for Aboriginal Affairs proposals. Coombs felt that he had to retain the interest and support of the Prime Minister for there to be any chance of reasonable concession to the Aboriginal cause (Coombs, 1981:282).

However the influence of the Council for Aboriginal Affairs on Aboriginal policy is seen in the Commonwealth Aboriginal policy endorsed by the Ministerial Committee in September 1971. The starting point of the policy was that Aboriginal people would have equal access to rights and opportunities in Australian society but at the same time be allowed to preserve their identity, culture and tradition. This strategy required collaboration with the States to: (a) encourage and strengthen Aboriginal capacity to manage their own affairs (b) increase their economic independence (c) reduce existing

work and began to campaign for return and ownership of their traditional country. In 1975 Prime Minister Gough Whitlam handed the Gurindji a lease over part of their traditional country. See Collaborating for Indigenous Rights. Wave Hill walk off 1966-75. http://indigenousrights.net.au/land_rights/wave_hill_walk_off,_1966-75 [Accessed 16/9/2015]. 203

‘social and other handicaps’ in health, education and vocational training, and (d) promote their enjoyment of normal civil liberties and eliminate discriminatory laws. Special measures would be required to overcome the disabilities experienced by Aboriginal people and they would be ‘temporary and transitional’ (Cabinet Minute, Committee on Aboriginal Affairs, Decision no. 453 (AA), 1971).

Government attitudes to land rights However the Government’s attitude to Aboriginal rights to land did not match with its stated policy of allowing Aboriginal people to preserve their identity, culture and tradition. The Government saw no moral or legal obligation to recognise Aboriginal land ownership because in their view Aboriginal people should secure land through the same system as all Australians. Peter Nixon, the Minister for Interior, sums this up in discussing the Gurindji demands for their traditional land:

“The Government believes that it is wholly wrong to encourage Aboriginals to think that because their ancestors have had a long association with a particular piece of land, Aboriginals of the present day have the right to demand ownership of it. There is the question whether establishing the principle that Aboriginals who can show some association with a piece of land and want to have it should be entitled to it as of right, is a help or a hindrance in achieving the best possible future for the Aboriginals and for all Australians. The Government believes that it would be a hindrance and no help. This does not mean that Aboriginals cannot own land. They can, and do. But the Government believes they should secure land ownership under the system that applied to the Australian community and not outside it” (House of Representatives Official Hansard, 1970, No. 36: 968).

The Yolngu people in Yirrkala challenged this assumption in the Milirrpum case in 1971 but the court denied their traditional claim to the land.46 The Canberra Times strongly rebuked the Australian Parliament and Government for not taking its mandated

46 Milirrpum and Others v Nabalco Pty Ltd and The Commonwealth of Australia (1971) 17 FLR 141 204 obligations seriously and failing to enact legislation to safeguard the land rights of the Aboriginal people. The editorial stated that a remedy for Aboriginal land rights should be sought through Parliament that Australia must give Aboriginal people a proud place in the community, entitlements to some land including mineral and other rights, and large sums of money commensurate with Aboriginal needs. The editorial further stated that Aboriginal people are entitled to maintain their own culture and traditions and that assimilation – or absorption or integration – should not be imposed arbitrarily as forced assimilation is ‘undesirable and offensive’ (Time for Remedy, 1971:2).

Developing policy on Aboriginal land rights In light of the Milirrpum decision and growing public support for legislative recognition of Aboriginal land rights, the Council for Aboriginal Affairs recommended to the Ministerial Committee on Aboriginal Affairs that Aboriginal reserves should be protected by an Act of parliament and that an Aboriginal Land Fund be established to purchase properties for Aboriginal communities. It also recommended that Aboriginal claims for land should be investigated and land identified by ‘traditional claim or long occupancy’ should be vested in communities through 99 year leases. However the Council said land claims should fit within the existing Australian legal system and should not question the Crown title of 1788. For Aboriginal communities outside of reserves the Government should set aside small areas for residential, recreational and ceremonial purposes (Cabinet Minute, Committee on Aboriginal Affairs, Decision No. 341 (AA) with attached submission No. 245, 1971).

The Department of Interior opposed the submission of the Council for Aboriginal Affairs suggesting that to set apart Aboriginal people from other Australians with new forms of assistance could encourage part Aboriginal people to ‘identify themselves as Aborigines’ and lead to ‘resentment and bitterness’ from white Australians. The Department also rejected the establishment of an Aboriginal Land Fund because in their view it was ‘discriminatory and separatist in character’ (Cabinet Minute, Committee on Aboriginal Affairs, Decision No. 341 (AA) with attached Submission No. 285, 1971).

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Coombs acknowledged the submission on Aboriginal land rights fell far short of what the Yirrkala people and others wanted – that is, recognition of their traditional title – but the submission sought to reconcile Aboriginal desires with Australian land laws and the Government’s economic approach (Rowse, 2000: 63). The Ministerial Committee supported a number of measures however it would not accept ‘traditional association’ as a criterion in granting a lease to an Aboriginal community (Cabinet Minute, Committee on Aboriginal Affairs, Decision No. 480 (AA) & 486 (AA), 1971).47

Coombs told McMahon that the Ministerial Committee decision was a tragic mistake and he felt that to rule out ‘traditional association’ would alienate liberal opinion (Rowse, 2000: 64). Coombs’ influence with the Prime Minister forced Howson to propose ‘long association’ as one of the grounds on which the Northern Territory Land Board could lease land to Aboriginal people. But Coombs wanted a greater concession. Both Justice Blackburn (the Milirrpum case judge) in his private capacity and the Commonwealth Solicitor General R J Ellicott argued in papers circulated to the Ministerial Committee that the Aboriginal relationship to land should be recognised and preserved (Rowse, 2000: 65; Blackburn, 1971; Ellicott, 1971).

The Council for Aboriginal Affairs argued that leases granted on the basis of tradition should include social purposes and should be for larger areas of land (Rowse, 2000: 66). A meeting of the Ministerial Committee in December 1971 decided that Aboriginal communities, groups or individuals on reserves in the Northern Territory could apply to the Lands Board for multi-purpose leases of land and such leases would be granted if Aboriginal people could demonstrate the ‘intention and ability to make reasonable use of the area for economic and social purposes’ (Cabinet Minute, Committee on Aboriginal Affairs, Decision No. 613 (AA), Submission No. 457 1971).

McMahon’s Aboriginal policy Against the advice of the Council for Aboriginal Affairs, Prime Minister McMahon released his Government’s Aboriginal policy to coincide with Australia Day, the 26

47 The measures supported by the Ministerial Committee included the establishment of the Aboriginal Land Fund; consultations with Aboriginal people before the grant of mineral exploration licences; legislative protection for Aboriginal reserves; lease of reserve land to Aboriginal communities, groups or individuals as an economic base; and for grants to be made available from the Aboriginal Advancement Trust Account for Aboriginal commercial enterprises. 206

January 1972 (Rowse, 2000: 67) – known as the ‘Day of Mourning’ or ‘Invasion Day’ by Aboriginal people. The policy primarily focused on Aboriginal people in the Northern Territory.

The Government’s policy focused on: (1) providing assistance to Aboriginal people to become part of Australian society but allowing them to preserve and develop their own culture, language and traditions; (2) recognising that Aboriginal people could choose the degree and pace at which they identified with Australian society; (3) ensuring that programs evolve in accordance with the effects of action taken so far, the needs of the times, and the expressed wishes of Aboriginal people; (4) collaboration with the States to deal with problems faced by Aboriginal people and encouraging and strengthening Aboriginal capacity to manage their affairs, increase economic independence, reduce existing social and other handicaps and promote enjoyment of normal civil liberties; and (5) recognising that special ‘temporary and transitional’ measures will be necessary to overcome the disabilities experienced by Aboriginal people (McMahon, 1972).

However it was the Government’s statement on Aboriginal rights to land that was the most controversial. The Government would create general purpose leases for a period of 50 years which Aboriginal individuals, groups and communities could apply for providing they could demonstrate ‘reasonable and economic and social use of the land’. Such leases were only available on Aboriginal reserves in the Northern Territory and provided for economic and social purposes that included Aboriginal educational, recreational, cultural and religious activities. For Aboriginal people in the Northern Territory not living on reserves the Government would purchase land for their economic and social development. McMahon said the Government decided not to translate the Aboriginal affinity with land into a legal right under the Australian system because it would have unforeseen implications and lead to uncertainty and challenges to land titles elsewhere in Australia (McMahon, 1972).

Other aspects of the Government’s Aboriginal policy included the establishment of enterprises by Aboriginal communities not just in the Northern Territory but in the States as well. Funding would be provided for enterprises such as market gardening, fishing, poultry, brick making, forestry, service stations, tourist accommodation and

207 service. Other proposed measures included a flexible form of incorporation for Aboriginal communities; protection of reserves from being revoked without a review by Parliament; access for Aboriginal people to hunt and forage on land reserved for their benefit and on pastoral leases; and protection of land on and off reserves for Aboriginal religious and ceremonial use. As mining was considered to be in the national interest, mineral exploration and development would continue on Aboriginal reserves, however double royalties would be paid to the Crown and these royalties would be paid into the Aboriginal Benefits Trust Fund (McMahon, 1972).

According to Rowse, the Australia Day policy statement of the McMahon Government reflected the limits of the political influence of the Council for Aboriginal Affairs against the power of the Country Party in Federal Cabinet (Rowse, 2000: 68). Coombs said that the Prime Minister had done his best to use his authority to force through a decision which for the first time acknowledged Aboriginal traditional rights in land and provided a means by which they could obtain a limited title to it (Coombs, 1981: 290). However, Clark argues that the Government failed to capitalise on the new conditions and sensibility created by the 1967 Referendum and also failed to understand that claims for land rights also ‘… demanded a changed perception of law, justice, ownership and morality’ (Clark, 2008: 237). Robinson suggests that the Government’s statement was ‘diluted assimilationism’ aimed at quashing the ‘separateness’ of Aboriginal people and making them part of Australian society (Robinson, 1994: 49)

The Tent Embassy Protest According to Kevin Gilbert, the Australia Day statement came at a ‘particularly depressing point of morale’ for Aboriginal people because they had hoped conditions would improve after the 1967 Referendum and that land rights would be a possibility. Instead they saw the official bullying of the Gurindji people in the Northern Territory, the negative findings of the Milirrpum case and official figures that showed disproportionately high Aboriginal infant mortality (Gilbert, 1973: 26). The editorial of The Australian newspaper pointed out that the choice of 26 January by the Government to deliver its policy was poor if not offensive because for Aboriginal people the day is the anniversary of ‘history’s enormous calamity’. What was missing,

208 stated the editorial, was ‘the guts of an historic act’ and once again ‘… everything has been decided in terms of what white men regard as reasonable, not what the recipients feel’ (A price on our guilt, 1972).

Aboriginal activists in the inner city of Sydney were ‘shocked and disappointed’ as most people thought that Nugget Coombs’ advice to the Prime Minister would see the rightness of Aboriginal claims; instead the Prime Minister supported the ideas of the Country Party (Briscoe, 2013: 51). It was a ‘provocative move’ and a ‘significant political mistake’ according to Gary Foley because it agitated the ‘young black radicals of Redfern’ and Aboriginal activists around Australia. Sydney Aboriginal activists felt that a strong response was immediately required to communicate to the rest of Australia that the Aboriginal movement ‘absolutely rejected’ the Prime Minister’s statement (Foley, 2012: 191, 194).

A brilliant, brave idea There are a number of different stories as to where, how and by whom the original idea of a tent embassy came about (Foley, 2012; Robinson, 1993: 91-94). Michael Anderson recounts how the idea had started 14 months beforehand and had gathered momentum over a number of different meetings and protests and was finally put into action after the Prime Minister’s statement (Anderson, 2013). A small group of activists (Michael Anderson, Billy Craigie, Tony Coorey and Bert Williams) were despatched to Canberra that night to establish a presence. The general idea was to stage a protest on the lawns of Parliament House in the hope that media would capture some images for broadcast before the police arrived. Arriving late at night the group drove to the Canberra home of an Australian National University (ANU) lecturer who provided them with a beach umbrella and materials to make placards. They erected the beach umbrella and a sign that read ‘Aboriginal Embassy’ on the lawns of Federal Parliament (Foley, 2012: 195-198, Robinson, 1993: 95-96, Robinson, 1994: 50-51).

On the 28 January 1972 the Canberra Times reported that three Aboriginal men had set up their own ‘embassy’ and would remain there until the Government withdrew its statement about Aboriginal land rights, reconsidered the issue and consulted Aboriginal people. Michael Anderson said the land taken from Aboriginal people should

209 be valued and Aboriginal people should be compensated to enable them to buy the land back (Aboriginal women gather for conference, 1972: 3). On the second day better tents were installed for the office and for sleeping; there were numerous offers of food, blankets and money from Canberra residents and a group of students at the ANU who had been active in the anti-apartheid movement made contact with the Embassy making an important contribution to the protest (Foley, 2012: 214-215, Foley, 2013: 32, Robinson, 1993: 100). By the 28 January delegates to the National Council of Aboriginal and Island Women had joined the Aboriginal Embassy and more people were expected to join (More join embassy, 1972: 9). Aboriginal activist and non-Aboriginal supporters began arriving in Canberra at the Embassy site and within a month it had grown to a dozen tents. White Australian families and tourists also began visiting the Embassy (Harris, 1972: 97).

Howson said there was a ‘disturbing undertone’ in the use of the ‘Aboriginal Embassy’ sign as it ‘implied another sovereign state or separate development’ of the Aboriginal race. This cut across the Government objection to separate development and was ‘kindred to apartheid’ (Howson Hits Black Power Sign, 1972). The police did not move on the Aboriginal Embassy as there was no law against camping on the lawns of Parliament and moreover the protestors refused to move. The only applicable law, the Gaming and Betting Ordinance, prohibited loitering in a public place.48 So on 30 January a 24 hour police surveillance of the embassy camp was established. However the relationship between the protestors and the police was casual and cordial (Foley, 2012: 199, 201-202, Robinson, 1993: 102-103) although it would later change.

The Embassy demands By early February the Aboriginal Embassy was preparing to fly its own flag and it issued a comprehensive statement of demand as an assertion of sovereignty. Early versions of symbolic flags were replaced in July 1972 by the black, red and yellow Aboriginal flag designed by Harold Thomas in association with Gary Foley (Aborigines to fly flag, 1972:3; Foley, 2012: 180-184, 200).

48 Section 19a Gaming and Betting Ordinance, ACT. 210

On 5 February John Newfong an Indigenous journalist on behalf of the Aboriginal Embassy released a comprehensive statement of demand in the form of a petition. The petition contained a five point plan calling for: (1) statehood for the Northern Territory with a predominantly Aboriginal Parliament; (2) Aboriginal ownership of existing reserves and a settlement throughout Australia including rights to minerals; (3) the preservation of all sacred sites in Australia; (3) Aboriginal ownership of areas of land in and around all capital cities including mineral rights; (4) compensation for all lands taken with a down payment of $6 billion and an annual percentage of the gross national income (Foley, 2012: 204-205, Newfong, 1972: 4, Robinson, 1993: 103).

Robinson states that while it lacked detail the demands were an ‘expression of a programme of land rights’ for all Aboriginal people and stood in direct contradiction to the assimilation policies of the Government. The demand for compensation recognised the original dispossession of Aboriginal people and was a central component of the idea of economic empowerment through self-determination rather than reliance on Government funding which was bestowed in a ‘paternalistic matter’ (Robinson, 1993: 104, 135-136). Foley also argued that the Aboriginal activists regarded legal ownership of land as an economic base for development and economic self-sufficiency. Impoverished Aboriginal communities would benefit from land rights and royalties and an ongoing form of compensation would enable the economic, social and political reconstruction of Aboriginal people that would take generations. They also recognised its sacred and spiritual importance. (Foley, 2012: 205).

Gough Whitlam visits In early February Gough Whitlam visited the Aboriginal embassy with , the Labor member for the ACT, to express his party’s identification with Aboriginal rights and to deny the accusation of Paul Coe that Labor Party policy was ‘only promises’ (Robinson, 1993:107). He promised that a Labor government would grant full freehold title to ‘Aboriginal tribes and clans’ and would not hesitate to use the power of the Federal Parliament to overrule any state laws that discriminated against Aboriginal people. He noted there was precedent in other common law countries such as Canada and the United States for communal land ownership and this was supported by the

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International Labour Organisation Convention on Indigenous peoples’ rights (Labor promises Aborigines land, 1972: 3).49

Whilst Whitlam stated that Labor in government would recognise Aboriginal land rights where tribes or clan had connection to land, the weakness in the Labor party policy related to ‘urbanised and part-Aboriginal people’ (Eatock, 2013: 143-144). Paul Coe was not impressed with the Labor Party’s policy in that regard as it did not acknowledge Aboriginal ‘pre-ownership of land’ and was only applicable to Aboriginal people who had tribal association to land. The majority of Aboriginal people, particularly those in the eastern states, would not benefit from land rights (Paul Coe and Bobbi Sykes, Monday Conference, ABC Television, 1972, 2013: 154-155).

The debate in Parliament The promise of freehold title to Aboriginal people was the first time any Australian political leader had done so (Harris, 1972: 30). Whitlam said exclusive land rights vested in a trust would be granted to Aboriginal communities which retain a strong tribal structure or could demonstrate potential for corporate action with regard to land presently reserved for Aboriginal people, or where traditional occupancy could be established by anthropological or other evidence. Land rights would carry the full rights to minerals in the lands and no Aboriginal land would be alienated unless approved by the Trust and the Parliament. Sacred sites would be mapped and protected (House of Representatives Official Hansard, 1972, No. 8: 127).

Peter Howson, the Minister for Environment, Aborigines and Arts on the other hand tabled the Prime Minister’s Australia Day policy statement and outlined the Government’s aim of ‘one Australian society’ in which all Australians including Aboriginal people would have equal rights, responsibilities and opportunities and would be encouraged to preserve and develop their own culture, language, traditions and arts. Howson stated ‘separate development’ was completely alien to the Government’s objectives. Ralph Hunt, the Minister for Interior, reiterated this policy saying separate development was alien and that the Government did not want apartheid (House of Representatives Official Hansard, 1972, No. 8: 122-124, 130).

49 ILO Convention No. 107. 212

Ralph Hunt made it clear that the Government was opposed to recognising any form of Aboriginal ownership of land when he said:

“Of course, the Government recognises the deep attachment that Aboriginal people have to land but it cannot reverse the whole course of Australian history without interfering with the rights of other Australians. European Australians who have sweated to carve out a nation from a desolate continent have a legitimate stake in this country and security of title to land is paramount in an orderly society. The claim for $6 billion compensation for dispossession of land in the past which has been made by some groups of Aborigines inspired by radical groups flows quite naturally from the argument that Aborigines anywhere in Australia have a moral, if not legal, right to land based on their ancestral association with the land” (House of Representatives Official Hansard, 1972, No. 8: 130).

Hunt implied that communist controlled unionists, peace movements, Maoists, Trotskyites and left wingers were behind the protest, using Aboriginal people as a launching pad for their own motives. He said that neither emotional speeches nor land rights would overcome the ‘disabilities’ of Aboriginal people and that welfare policies based on race rather than need would create a white backlash. He asserted that there should not be one land law for Aboriginal people and another for Australians (House of Representatives Official Hansard, 1972, No. 8: 129, 133-34). Gordon Bryant said Hunt’s ‘Red baiting’ was nonsense and that the establishment of the Aboriginal embassy was ‘one of the most original demonstrations’ that had happened for some time. He argued that actions of governments continued to make Aboriginal people feel they were not part of the Australian community because they could not ‘speak with a free voice, with an equal voice or with self-respect’ (House of Representatives Official Hansard, 1972, No. 8: 133-134).

Gough Whitlam said the Government’s policies were ‘such patronising proposals’ because in regards to 50 year leases Aboriginal people were being treated differently from any other identifiable group in Australia. Whitlam said the policy statement did

213 not conform to Australia’s international obligations and did not conform to contemporary initiatives in countries such as the United States of America and Canada which had made provision for communal ownership of land. The Commonwealth had the power to do so but had done so little for Aboriginal people since the 1967 Referendum (House of Representatives Official Hansard, 1972, No. 8: 125-129).

Threats and bribes to move the Embassy At the opening of Parliament in 1972, a delegation of Aboriginal leaders from the Northern Territory had arrived for meetings with the Federal Government and they endorsed the Embassy protest (Foley, 2012: 210). In Parliament that day Ralph Hunt stated the Government would ensure that Parliament was not a place in which people can camp indefinitely (House of Representatives Official Hansard, 1972, No. 8: 108). The Department of Interior was already finalising a draft ordinance to go before Cabinet to move the Aboriginal Embassy.

The Government was increasing the pressure on the Aboriginal activists but also trying to create a way out of the impasse by offering to create a centre in Canberra as an alternate site for the protest. This would remove the protestors from the lawns of Parliament House and also remove the symbolic value of the protest (Robinson, 1993: 128). In a meeting with Neville Bonner and John Newfong representing the Embassy, Ralph Hunt suggested the idea of a centre could be developed to incorporate a lobby at the federal level for Aboriginal people, but the Government and the Embassy remained firm in their opposing stance (Foley, 2012: 225; Robinson, 1993: 129).

Peter Howson rejected the idea of an Aboriginal centre stating that the Government should not have to bow to the demands of the Aboriginal Embassy, which he considered not representative of all Aboriginal people. Howson was not happy that the Department of Interior had been discussing the idea of a building in Canberra as they had done so without consultations with him or his department (Rowse, 2000: 98; Howson, 1984: 870). The Council for Aboriginal Affairs also opposed the idea of an Aboriginal centre because they considered it an attempt to bribe the Embassy. Further the Council for Aboriginal Affairs also opposed the Government’s proposed action of removing the tents (Robinson, 1993: 129).

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In mid-May there were nine resident protestors in six tents; the numbers of protestors fluctuated but usually peaked on weekends when groups of people arrived from Sydney. The Government however was moving towards its objective of removal of the Embassy and in early May Federal Cabinet endorsed the removal of the Embassy to be achieved with reasonable notice and carried out tactfully with the least disturbance (Robinson, 1993: 124-126; Foley, 2012: 217-222, 224). Ralph Hunt explained that the Government would make it an offence for persons to camp on unleased Commonwealth land in the city and would empower authorities to move their possessions in the event they did not comply with a direction to move (House of Representatives Official Hansard, 1972, No. 19: 2407).

Police move on Embassy Within days of the Black Moratorium protest marches on 14 July 1972 the Federal Police moved on the Embassy. The Black Moratorium was a series of coordinated rallies across the country focused on ownership and rights to land and minerals, compensation for loss of land since 1770, the right of communities to control their lives and land, and support for struggles in regards to health, employment, housing and education (Goodall, 1996: 349). Thousands of Aboriginal people and white supporters marched on the streets of the major capitals except Darwin where the city council banned the march. Protests were also coordinated in Auckland and Port Moresby. The images of mass support for Aboriginal land demands alarmed Ralph Hunt who hastened passage of the ordinance to remove the Embassy from the lawns of Parliament House (Foley, 2012: 232-233, Goodall, 1996: 350, Robinson, 1993: 138-139).

On 17 July Federal Police Inspector Johnson handed a copy of the proposed ordinance and explanatory notes to Ambrose Golden-Brown at the Embassy advising that once the ordinance became law, camping on unleased land would be prohibited and the police would enforce the law (Police 'to move Aboriginal embassy', 1972: 1). Gazettal of the ordinance was imminent and Aboriginal Embassy protestors were preparing for the police action. Aboriginal activists in Redfern were warned of the imminent attack on the Embassy and word had gone out to Aboriginal people in Sydney, Melbourne, Brisbane and Adelaide to get people to Canberra, but the swiftness of the police action caught the activists off guard (Foley, 2012: 234). 215

On 20 July 150 police marched in paramilitary fashion from behind Parliament House and were met by Embassy representatives who informed Inspector Osborne they intended to surround the office tent and defend it vigorously. The police ejected people from several tents and pulled them down without resistance. However the protestors linked arms around the office tent and chanted while Inspector Osborne called on the protestors to move or be arrested for obstructing police. The police then advanced and with extraordinary brutality attacked the protestors, ripping down the tent (Foley, 2012: 234-235; Goodall, 1996: 350; Robinson, 1993: 142-145).

Eight police officers were injured and Paul Coe was admitted to hospital. Eight people including five Aboriginal people were arrested and charged with hindering police in the execution of their duty and with assaulting police. However none of the people arrested were charged under the new ordinance. Gordon Bryant and Kep Enderby were present and witnessed the event but their ALP colleagues were nowhere in sight. The ugly images and violence appeared in the afternoon press and on the evening television shocking white Australia (Eight policemen hurt, 1972: 3; Goodall, 1996: 350; Robinson, 1993: 145). Ralph Hunt appeared on ABC television that night stating that he regretted the violence but blamed it on the demonstrators saying they had tried to prevent the police in executing their duty and so police had no alternative but to do what they did (Criticism follows 'embassy' action, 1972: 3).

The Government criticised Peter Howson felt that ‘this is only the first round of the battle’ with more ‘worry and trouble’ expected (Howson, 1984: 888). But the Government was roundly criticised by the Opposition Labor Leader and the Canberra Times. Opposition Leader, Gough Whitlam, criticised the Government for acting ‘forcibly and furtively’ against the Embassy. Whitlam congratulated people who had manned the Embassy for their initiative and discipline and said that as result of their efforts thousands of people were now aware that the aspirations of the Aboriginal population could only be satisfied by recognising their rights to land (Whitlam, 1972).

Although the editorial of the Canberra Times said the Embassy should never have been allowed to stay in front of Parliament House, the Embassy had made its point well and

216 its destruction would win more sympathy for the Aboriginal cause. However the editorial argued sympathy was not enough because Australian apathy towards Aboriginal people had resulted in only minute economic, social and political gains for them. This ‘appalling apathy’ had led directly to the establishment of the Embassy (A Turning Point, 1972: 2).

Nugget Coombs regretted the violence and said that the closing of the Embassy had cut off one channel of protest but asserted that there remained other avenues of protest (Criticism follows 'embassy' action, 1972: 3). On the 21 July Embassy activists Ambrose Golden-Brown, Billy Harrison, Allan Sharpley and Pat Eatock sought a High Court injunction to prevent any further removal of the tents under the ordinance. But the application for injunction was denied (Robinson, 1993: 148, 157).

Mass demonstration Continuing the protest was priority. On the morning of 22 July a march was held in Canberra Civic. Then on 23 July Aboriginal activists and their supporters marched on Parliament House assembling on the road and lawns in front of the House. A tent was set up to symbolise the erection of the Embassy and the crowd surrounded the tent. There were speeches by Shirley Smith, Bob Maza and Paul Coe. Inspector Osborne approached the rally and called on them to disband but they refused jeering loudly. The protestors formed themselves in a circle. Some 360 policed including reinforcements from the New South Wales police emerged in paramilitary style. The protestors chanted the ‘Sieg Heil’ of Nazism in parody of the power of the State (Foley, 2012: 242; Robinson, 1993: 151-153).

The violent encounter that ensued was described as more brutal than the previous confrontation, with people being smashed in the face, knocked to the ground, and kicked. Having superior numbers the police pulled the tent down. Eighteen people including eight Aboriginal people were arrested and nine people were treated for injuries with four people kept for observation in hospital. Five police officers were also treated for bites, cuts and abrasions. Anger, shock and disbelief characterised the opinion of the protestors in the aftermath of the violent clash. There were a variety of opinions in relation to further protests including retaliation however no other decisions

217 were made other than to re-erect the Embassy (Foley, 2012: 242-243, Robinson, 1993:153-156).

Stewart Harris who witnessed the events that day believed that some of the Aboriginal protestors were seeking a compromise and wanted someone from the Government to talk with them. But Ralph Hunt and the Prime Minister were not in Canberra and no other minister emerged to talk to the protestors. Harris said the Government wanted the Embassy removed with a show of force and so a reluctant Inspector Osborne had to order his men forward (Harris, 1972: 28-29).

The activists seek negotiation The idea of an Aboriginal centre in Canberra was raised again as a conciliatory measure. A broad cross section of Aboriginal protestors at the Embassy had signed a letter to Peter Howson seeking a meeting to discuss an ‘Aboriginal peoples’ place’ in Canberra with status equivalent to an embassy. The idea of a centre was now also supported by the Council for Aboriginal Affairs who endorsed long term Aboriginal representation in Canberra (Robinson, 1993: 159-160). But Howson said he would only ‘… negotiate with a fully representative Aboriginal body and not with a group of unrepresentative militants’. He had called a ‘national consultation’ conference for 10 and 11 August and in his view this was the opportunity for Aboriginal people to present their views (Howson, 1984: 888-890).

Howson worked on strengthening his hand against the idea of an Aboriginal centre and his hard line approach to the Aboriginal Embassy at a meeting of state and Commonwealth ministers responsible for Aboriginal welfare in Darwin on 27 July 1972 (Howson, 1984: 890-891). Howson was also concerned the Prime Minister was weakening and that Nuggett Coombs had a hand in this. He said the Government would be ‘showing great signs of weakness’ if they handed over the centre. Howson obtained Hunt’s agreement to a joint statement inviting protest organisers to meet with them, hear the Government’s position and to discuss how best to ensure peaceful Aboriginal contribution to the Government’s policy. Howson also obtained confirmation and support from all state ministers that the national conference and his hard line approach was correct (Howson, 1984: 891; Rowse, 2000: 102).

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Coombs recommends negotiation Coombs and the Council for Aboriginal Affairs prepared a report for a meeting of cabinet ministers in Canberra on 29 July to defuse the situation and avoid confrontation by negotiation of an interim arrangement (Coombs, 1981:291). Coombs also met a group of about 15 Aboriginal protestors in Canberra to obtain specific proposals making a summary of the issues and providing the brief to the Cabinet office. Coombs says the original issues of land rights, greater expenditure on education and health and so on had become overwhelmed by concern over police action, the right to meet ministers and a desire for a continuing Aboriginal presence in Canberra (Coombs, 1978: 17).

Howson was ‘extremely annoyed’ that Coombs and the Council had circulated a submission to all cabinet ministers advocating the proposal he had already rejected and annoyed at Coombs for meeting with the protest leaders to discuss matters with them before discussing it with him (Howson, 1984: 892). Coombs felt the Council for Aboriginal Affairs had ‘… an overriding obligation to ensure that significant Aboriginal voices were heard’ (Coombs, 1978: 18-19). He treated the Embassy as a significant representative forum and accepted that the protestors had something important to say, attempting to bring moderate protestors into the dialogue. But Howson felt that talking with the Embassy protestors made a mockery of the national consultation he had authorised. In the cabinet meeting Coombs recommended a partial list of the Embassy’s demands to the ministers, including temporary representation in a centre in Canberra, the dropping of all charges from the previous two demonstrations and permission to re-erect the tent and subsequently remove it to a new temporary centre. But the ministers were then offered Howson’s option of a national conference in August with the advice that Aboriginal people could lobby through those channels. Nonetheless, the Council for Aboriginal Affairs efforts were partly successful as cabinet ministers agreed for Howson, Ralph Hunt and to meet the Aboriginal protestors and police were instructed to avoid a show of force in dealing with the next demonstration (Coombs, 1978: 18-19; Robinson, 1993: 163; Rowse, 2000: 101-102).

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The Government contemptuous In a meeting with Embassy protestors on 29 July, Howson’s contempt was blatant. In his diary he records the meeting with a ‘deputation from the militant Aborigines’ and states as follows:

“We had two hours with the militant group. It was mainly a public relations exercise to show that we are prepared to talk with them. They had no proposals to put to us and only received our suggestions with a torrent of abuse. But it was interesting to meet the people whose names I’ve seen on paper over the last few months. We were patient and got rid of them after about two hours. Then back into Cabinet to report and to decide on the moves for the demonstration tomorrow. This was unanimously agreed, and we also got in the Commissioner of Police and agreed a move with him” (Howson, 1984: 892).

Nugget Coombs was present at the ministerial meeting with the protestors and thought it a ‘strange episode’. According to Coombs the ministers were of the attitude that the protestors did not have the mandate to represent Aboriginal opinion and they had to submit proposals for consideration through state and territory advisory groups. Coombs went on:

“After stating this position they [Ministers] sat silent and impassive while Aboriginal after Aboriginal spoke of their grievances, their frustrations and their fears. A passionate earnestness gave eloquence to their pleas and made the occasion, for me at least, a moving experience. It apparently affected Ralph Hunt the same way. As we walked away from the meeting he remarked that it was a sad commentary on two hundred years of white occupation that it should have occasioned such hatred, bitterness and distrust. His colleagues made no response” (Coombs, 1978: 18).

Peter Howson and Ralph Hunt issued a joint press release after the discussion with Aboriginal Embassy representatives. The press statement said a national meeting of 220

Aboriginal Advisory Councillors from six states and the Northern Territory was convened so that Howson could obtain the views of a wide body of Aboriginal opinion. This advisory council was endorsed by all state ministers responsible for Aboriginal Affairs as the best way of obtaining a ‘truly representative expression of Aboriginal views’. The Aboriginal protestors were invited to submit proposals for a national Aboriginal centre to the conference which would be discussed at the national conference (Howson & Hunt, 1972).

A day of symbolic non-violent action On the morning of Sunday 30 July, bus and car loads of Aboriginal supporters came from Sydney, Melbourne, Brisbane and Adelaide converging on Canberra. With support from many white Australians the crowd of supporters was a tenfold increase on the numbers of previous demonstrations. Led by Paul Coe, Michael Anderson, Sol Bellear, Alana Doolan, Bobbi Sykes and Isobel Coe the demonstrators arrived on the lawns of Parliament House mid-morning. A police presence of some 300 supported by two NSW police vehicles faced the protestors from across the road. With an additional 1000 or more tourist and spectators, there were an estimated 3000 people at the event (Foley, 2012: 250-251; Robinson, 1993: 166-168).

As marchers arrived on the lawns of Parliament House they formed a large circle. A tent was erected in the middle and guards moved around the circles of people ready to counter any police violence. But to the surprise of the demonstrators there was no immediate response by police and for the next four hours the demonstration remained in front of Parliament House as an air of festivity prevailed. By three o’clock in the afternoon no action had been taken by police other than to issue a further deadline for dispersal (Foley, 2012: 252; Robinson, 1993: 168-169).

It was the initiative of the protestors and their supporters that defused any violence at the protest that Sunday. Hal Wootten (President Redfern Legal Service) had contacted the Police Commissioner advising that Aboriginal leaders did not want violence and with restraint by police it would be possible for the day to pass peacefully. On the day Wootten had passed a message from the Aboriginal protestors to the police saying they would allow unarmed police to come into the crowd and dismantle the tent. The

221 police were suspicious but accepted assurances the crowd would disperse peacefully. Seven police officers led by Inspector Osborne walked through the crowd and removed the tent and although some booed the police there was no resistance. In a final symbolic act the protestors moved over to the side holding a piece of canvas over their heads and when police came running across to tear it down they found a number of people smiling at them making the V-sign of peace and raising the original Aboriginal Embassy placard. According to Robinson, the demonstration was a day of symbolic, non-violent action and this was possible because of the restraint shown by both sides but importantly the non-violent action in the tactics adopted by the protestors (Robinson, 1993: 166, 170-171).

Foley explains that the Aboriginal protestors allowed Hal Wootten to approach police because as a member of the legal profession the protestors thought he would have a better chance at getting the police and Government to see reason. Further during the many discussions over the preceding week the activists had come to a consensus the ‘… embassy had achieved more than any of them had dreamed possible when it was first established’. The activists’ plan was to declare the Embassy project a success and claim the high moral ground by allowing the police to remove the canvas from over the heads of a group of activists. This was considered an honourable and victorious way to end their protest (Foley, 2012: 252-253).

They couldn’t hear us Speeches on the day of the protest march reflected fear and anger, as well confidence in the Aboriginal protestors. The Embassy protests not only stood for Aboriginal land rights but also Aboriginal equality, and the demonstration proved that the Aboriginal claims for land rights had moral ascendancy (Speeches at the Aboriginal Embassy 30 July 1972, recorded by Derek Freeman, 2013: 177, 178, 179, 181, 183, 184, 188, 189).

Criticism was directed at the Government’s ‘racist actions’ in destroying the Embassy and also at the lack of support from trade unions. White Australians were called upon to support Aboriginal rights because it was recognised that Aboriginal people would not succeed without their support. Police also came in for criticism although they were not considered the real problem for Aboriginal people. The main barrier for Aboriginal

222 people was racism and apathy of the Australian people (Speeches at the Aboriginal Embassy 30 July 1972, recorded by Derek Freeman, 2013: 177, 179, 182, 186, 188, 189).

Speakers also raised issues in regards to the lack of discussion and negotiation with government, the lack of political processes to create change and the lack of relationships between government and Aboriginal people. Roberta Sykes spoke about how the protestors had attempted to negotiate with the Government leading up to the protest but ministers refused to meet with them and when they eventually met with Government ministers, the ministers really didn’t hear them:

“We sat down last night, twelve or fourteen of us, at the same table and we talked into the air and they talked into the air. They talked about things like articles, constitutions, laws, which they made. And we talked to them about bloodshed, people in the creek beds, people in , people dying, children dying, lack of food, malnutrition. And they couldn’t hear us. Well we want them to hear us now” (Speeches at the Aboriginal Embassy 30 July 1972, recorded by Derek Freeman, 2013: 179-180).

Other than protest there were no processes for Aboriginal people to advocate and create change in government policy. Michael Anderson asked whether Aboriginal people should protest peacefully going through the proper channels as they had been told to do. But he was unsure of what those ‘proper bloody channels’ might be. The lack of established relationships between government and Aboriginal people was also raised. Jack Cummings said the Government had not developed diplomatic relations with Indigenous people and that they should be trying to establish such relations. He said the Government’s attitude to the ‘black man’ was not just a national issue but an international issue (Speeches at the Aboriginal Embassy 30 July 1972, recorded by Derek Freeman, 2013: 178, 180).

The National Conference Peter Howson had dismissed the Aboriginal Embassy protest placing his hopes on the national conference of Aboriginal and Torres Strait Island Advisory Councillors held on 223

10 and 11 August 1972 in Canberra. Howson promoted the conference as a representative gathering of Aboriginal delegates who had authority to speak for their people. He said the conference was an opportunity for assessing government policy through Aboriginal eyes and would be a truly representative expression of Aboriginal views. Seventy odd delegates from all states and the Northern Territory attended the conference (Harris, 1972: 99; Robinson, 1993: 173-174; Rowse, 2000: 109).

In opening the conference Howson said he had been trying to find the best means of establishing a dialogue between Aborigines and the Commonwealth Government (Aboriginal Conference. Demand on land ownership, 1972: 1). But the conference was to prove that it was not the sort of ‘dialogue’ the Government wanted. According to Rowse the conference was ‘rescued from anti-climax’ by the Aboriginal people who had gate crashed it (Rowse, 2000: 109). In full glare of the television media Embassy activists lead by Paul Coe, Chicka Dixon and Bobby McLeod wearing white mouth gags as a symbol of the Government’s attempt to silence them marched into the conference during Minister Howson’s opening speech. The protesters were granted full speaking and voting rights by the conference delegates (Aboriginal Conference. Demand on land ownership, 1972:1; Foley, 2012: 253-254).

Conference delegates discussed the big issues such as land rights, Commonwealth control of Aboriginal Affairs, Aboriginal political representation and the Aboriginal centre and passed resolutions on a range of other issues including women’s rights, education, housing, employment and training and social services. The conference resolved that reserve land be returned to Aboriginal ownership and be vested in incorporated Aboriginal groups, and exempt from mining. A land fund was to be established to acquire other lands for individuals and Aboriginal communities, and an Aboriginal claims commission established to determine Aboriginal claims to land and compensation for land taken from Aboriginal people since colonisation. The National Centre or Aboriginal Centre suggested as a way to move the Aboriginal Embassy from the lawns of Parliament House was not discussed by the conference. The delegates resolved that the issue would not be discussed until the Embassy was re-established on the lawns of Parliament House (Resolutions by National Conference of Aboriginal Councillors, August 1972). 224

The conference delegates called for the Commonwealth Government to take full financial and administrative control of Aboriginal Affairs and for State Departments to be abolished. Conference delegates also resolved that there be a national Aboriginal council and conference system whereby the Federal Government implements uniform policy in all states to ensure Aboriginal councillors are elected by Aboriginal and Islander people without interference by government and there be no government appointees on Aboriginal councils or at Aboriginal conferences. Conference delegates also resolved that there be guaranteed Aboriginal representation in each State and the Federal Parliament as well as the Northern Territory Legislative Council (Resolutions by National Conference of Aboriginal Councillors, August 1972).

Northern Territory delegates were not in favour of an Aboriginal Embassy in Canberra or the Northern Territory because they believed they could communicate directly with government themselves. They also felt they were not ready to have Aboriginal representation in the Northern Territory Legislative Council stating they would gain representation through the normal processes of government ‘as our people become more educated’. Northern Territory delegates also expressed dissatisfaction with aspects of the conference complaining that a small group of people placed most of the motions and there was not adequate time to understand the motions. They were also critical they were not given a chance to communicate their point of view or have the opportunity to discuss issues with their people before the conference (Rowse, 2000: 109-110).

The Aboriginal Embassy: Discussion and Analysis

The assumptions The assimilation policy was still in existence and strongly supported by government at the time of the Embassy protest. Assimilation was based on historical assumptions about Aboriginal culture being inferior and on the assumption that Aboriginal people could only advance by transitioning into white society. While there was a slight refocus of the assimilation policy during the McMahon Government with emphasis on maintaining language, tradition and culture there were however elements within the Government who saw assimilation as enforcing uniformity on Aboriginal people.

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The Government clearly understood the basis of Aboriginal demands for their traditional lands; however the assumption of terra nullius was still influential in the way it responded to those demands. The assumption that Aboriginal people had no sovereignty and no laws, society or rights in property was still very strong and this is evident in the view that Aboriginal people could only secure land ownership under Australian law. The Government believed that Aboriginal people had neither legal nor moral rights to land. While the proposals of the Council for Aboriginal Affairs recognised Aboriginal people had rights to land this recognition however could not call into question Crown title of 1788. Therefore recognition of Aboriginal land rights in the Northern Territory only amounted to lease of Aboriginal reserve land.

The assimilation policy also justified the denial and reluctance of the Government in recognising Aboriginal rights to land. However judging from the responses of the Department of Interior and the Minister Peter Howson there was a fear of recognising Aboriginal land ownership based on tradition because they believed it would create a separate system. It was assumed that Aboriginal rights to land would threaten or dispossess white Australians of their rights and benefits. The recommendation of leases for Aboriginal communities along with maintenance of culture and traditions was also considered separate development. There was an assumption that providing leases to Aboriginal people would lock away land for potential development and would create a separate and different land system in Australia.

There was an assumption within the Government that the urban-based Aboriginal activists who established and led the embassy protest were not ‘Aboriginal’. In that regard it was also assumed they were not representative of Aboriginal people. The Government assumed that only representatives appointed within the structure of the Australian Government such as the national conference of Aboriginal and Torres Strait Islander Advisory Councillors were representative of Aboriginal people or that national bodies such as the Federal Council for the Advancement of Aborigines and Torres Strait Islanders were representative. The non-recognition of Embassy leaders was an obvious strategy to disempower them but in many respects it also reflects colonial assumptions, attitudes and practices about Aboriginal people and about their leaders.

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Government had an unshakable belief and conviction that assimilation into white society was the basis of Aboriginal advancement. The Government assumed they had the right policy prescription for Aboriginal people. They assumed that so called Aboriginal ‘disabilities’ could only be overcome by assimilation and this included a focus on employment, education, enterprise development as well as mining on Aboriginal reserves.

Challenging hegemony To erect a beach umbrella on the lawns before Parliament House and take over that land on behalf of Aboriginal people was regarded as a ‘brilliant, brave idea’ because no white Australian had dared to do anything like this (Harris, 1972:97). The Aboriginal activists who emerged in the late 1960s drew their inspiration from the Black Power movement in the United States which emphasised militancy, black solidarity and struggle.50 However Black Power activists in Australia rejected violence in favour of non-violent direct action (Howell, 2013: 72).

Black Power enabled Aboriginal activists in Sydney, Melbourne and Brisbane to respond to the political hegemony of the state including police terror tactics against Aboriginal people in inner city Aboriginal communities (Howell, 2013: 68). These activists developed a range of self-help organisations for inner city Aboriginal people to obtain free legal advice as well as medical and housing assistance. They also developed ideas around land rights, economic independence, cultural integrity and self- determination (Foley & Anderson, 2006: 89). Black Power provided the language, ideology and practice for black consciousness and empowerment to push for Aboriginal land rights and self-determination. Black Power demanded the right of Aboriginal people to speak for themselves, to organise themselves and work together to effect change; it signified the Aboriginal struggle and resistance against colonisation but it was also invoked to spread fear amongst white people (Howell, 2013: 72-74).

According to Howell the Aboriginal Embassy was the ‘greatest act of defacement’ for the Black Power movement as it ‘ruptured the disciplinary thought order of colonisation’ (Howell, 2013: 80). It was a protest to challenge Australian government

50 The ideas of Marcus Garvey, Malcolm X and the Black Panther Party influenced activists in Australia. 227 authority, attract public attention and create public discussion about Aboriginal land rights and self-determination. Rights to land based on Indigeneity, Aboriginal self- determination, cultural integrity and black pride anchored the political thoughts of the activists and formed the basis of their struggle. What was creative and innovative about the Embassy protest was that it mocked Commonwealth Aboriginal policy which declared Aboriginal people aliens in their own land, so as aliens they established an embassy. It also mocked parliament by mimicking the state with an embassy that had its own ministers, a national flag and by claiming parliamentary space; its canvas tents symbolised the fringe camps and the material conditions that Aboriginal people lived in (Howell, 2013: 76, 80).

The Aboriginal Embassy asserted an alternate political view of the relationship between Aboriginal people and Australians as opposed to the monological view of Australian constitutionalism. In the monological view of Australian constitutionalism there is only one Australian law and one society and Aboriginal people had to conform by assimilating into it. The Embassy asserted Aboriginal sovereignty to challenge the legitimacy of the Australian state and also challenge the legitimacy of citizenship by asserting their ‘… Aboriginality as the cornerstone of their citizenship’ (Muldoon & Schaap, 2013: 223, 232).

According to Muldoon and Schaap, the Embassy opened up a public space in which Aboriginal people could assert an identity, assert an Aboriginal polity and fearlessly challenge the constituted order of settler Australia (Muldoon & Schaap, 2013: 221, 229-231). Embassy activists sought to provoke the decolonisation of the Australian state by challenging the false assumption that Aboriginal people did not have recognisable legal and political systems of their own. This was unsettling for the Government because it challenged the legitimacy of the Australian state and asserted that recognition of Aboriginal political and legal order is fundamental to any effort to legitimise the Australian state (Muldoon & Schaap, 2013: 223). In provoking decolonisation of the constitutional order the Embassy protestors according to Muldoon and Schaap exploited the ambiguous status of Aboriginal people as citizens within the Australian constitutional order but who are also aliens in their own land as a

228 result of the continuing process of colonial dispossession (Muldoon & Schaap, 2013: 220, 233-234)

Relationships of respect The relationship between the Government and the Embassy leaders was more a relationship of disrespect judging by the reactions of Peter Howson and Ralph Hunt. The Aboriginal Embassy leaders were denied agency and voice because they were not considered to be representative of Aboriginal people. However there were respectful relationships among the Aboriginal activists and their supporters.

The effectiveness of the Embassy demonstration was largely due to the respect and solidarity amongst the Aboriginal people regardless of political factions or organisational representation. Aboriginal activists and supporters representing different ideologies were able to communicate with each other and develop unity of purpose as well as settle differences and decide on action (Duncan, 2013: 64). The Embassy protest was instigated, directed and strategically planned by Aboriginal people and was part of a long tradition of Aboriginal resistance in New South Wales (Maynard, 2013: 97). The relationship with the ANU Student Representative Council was also vital as the students supported the protests and made available their facilities to the Aboriginal Embassy (Foley, 2012: 214-215; Robinson, 1993: 120-123).

While not having a close relationship with the Embassy protestors, Nuggett Coombs and the Council for Aboriginal Affairs were respectful of the protest and its aspirations. Coombs and his colleagues worked within government to find solutions to the demands of the Aboriginal embassy. Coombs met with Embassy leaders in Canberra and put their issues before Federal Cabinet against the wishes of his Minister. Coombs and his colleagues respected and understood the Aboriginal Embassy voice and tried to bring that voice to the decision making of the Government. Nugget Coombs and the Council for Aboriginal Affairs recognised that Aboriginal people did not want to be assimilated but were determined ‘to maintain a distinctive racial and social existence within the Australian community’ (Coombs, 1978:217-218).

Gough Whitlam’s visit to the Embassy and his promise to recognise Aboriginal title to land, albeit only in the Northern Territory, was significant. Members of the Labor party 229 such as Kim Beazley Snr and Gordon Bryant had been advocating recognition of Aboriginal rights to land in the early 1960s. However other than the show of support from Gough Whitlam and some other Labor politicians the majority of the Labor politicians were largely silent. Similarly the minimal support for the Embassy from Trade Unions was obvious.

Level and type of dialogue The establishment of the Aboriginal Embassy was not a dialogue with the Government because the Government refused to even listen to or recognise embassy protestors. Rather this was a dialogue with the Australian population and the international community. It gained widespread news coverage. The Embassy embarrassed the Government because not only did it defy Australian parliamentary authority, it was also confronting and it caused offence. Not having constitutional processes by which they could make their claims for recognition and be heard, Aboriginal activists used the symbolism of the Aboriginal Embassy to highlight the failure of government and call into question Australian constitutionalism. The Embassy was a place where Aboriginal activists could courageously and fearlessly raise their voices against government policy and challenge settler sovereignty (Muldoon & Schaap, 2013: 221).

The Embassy activists understood the importance of influencing the media to frame history and challenge dominant ways of thinking. This involved informing readers and viewers and raising public awareness of Aboriginal demands (Howell, 2013: 74) thus challenging state hegemony, influencing public opinion and attracting support. Most major Australian newspapers, television news, current affairs and radio news programs including international television and print news reported on the Embassy (Foley, 2012: 203-204). Embassy activists were able to cultivate and make connections with a number of sympathetic journalists (Foley, 2013: 38). But there was also criticism of the media. Paul Coe accused the media of denying the right of Aboriginal people to get their opinions heard because they were more interested in Gough Whitlam (Paul Coe and Bobbi Sykes, Monday Conference. ABC Television, 20 March 1972, 2013: 153).

There were meetings between government officials and Embassy leaders in attempts to resolve issues; however these meetings were not dialogic. Both the Government and

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Embassy leaders stuck to their positions and there was nothing to break the face to face defensiveness between the parties. The Government-appointed process of the national conference was presented as a dialogue with Aboriginal people but it was not established as a constitutional process to discuss the demands of the Aboriginal Embassy. Embassy leaders were not given access to the conference and only gained access and status by gate crashing the conference.

Nuggett Coombs tried to open up avenues for dialogue and negotiation between the Embassy protestors and the Government but his efforts were resisted and opposed by his own Minister, Peter Howson. Coombs’ recommendation to Government for a compromise solution involved the establishment of an Aboriginal centre, alternative temporary accommodation for the embassy and a trust arrangement for the Aboriginal centre but this was dismissed by Howson. The Government had no interest in engaging with Embassy leaders and this is reflected in the meetings that Ralph Hunt had with them. Hunt’s strategy of luring the protestors away from the lawns of Parliament House with the offer of an Aboriginal centre in Canberra seems more a trick than a genuine offer because in the end Hunt refused to recognise the Embassy protestors when they raised the idea of the Aboriginal centre as a conciliatory solution to end the protest.

Outcome of encounters Middleton concludes the Embassy was ‘contradictory and finally harmful in its results’ stating that extremist opinions and violence alienated many people (Middleton, 1977: 134-135). But this is in stark contrast to how others saw the impact of the Embassy. Certainly it symbolised the highly political and highly contested interface between Aboriginal people and settler Australia. But Embassy protestors fought to be heard and to be respected and as a result of the Embassy there was popular respect and growing support for Aboriginal people (Harris, 1972: 213). When looked at in terms of Aboriginal and non-Aboriginal relations in Australia, the Embassy is an example of white Australians taking up the challenge to support Aboriginal aspirations and their claims for recognition. According to Harris, the courage of the Aboriginal Embassy protestors and their white supporters and the forceful physical response of the police changed Australian public opinion making the policies of the Whitlam Government 231 possible (Harris, 1972: 213). However the challenge still exists for white Australians – to respond to and cooperate with Aboriginal people in their attempts at decolonising the Australian constitution (Muldoon & Schaap, 2013: 229).

The Embassy protest was sustained for six months. Foley states that the Embassy was the beginning of a new era of Aboriginal struggle for justice (Foley, 2012: 264-265). Sykes argues that while it was ‘poor and shabby’ just like the people, the Embassy was seen by Aboriginal people as a symbol of hope, a pathway out of degradation and a battle against oppression (Sykes, 1972: 165). The Embassy protest became the human face of Aboriginal political consciousness (Briscoe, 2013: 53). The Embassy contested the legitimacy of the existing constitutional order (Muldoon & Schaap, 2013: 221) and represented the defiance of Aboriginal demands for self-determination (Howell, 2013: 78). It became a national symbol of Aboriginal protest. The actions of the Government only succeeded in building public support for the Embassy and also created an ongoing Aboriginal political resistance and defiance that still operates today.

Robinson argues that the Embassy was a relatively successful protest that used the democratic processes to demand real change through creation of publicity to convey a political message and influence the Labor party platform in partial fulfilment of its demand for land rights. Particularly important was the new prominence of Aboriginal issues as a result of the Embassy, marking the end of assimilation as a guiding philosophy (Robinson, 1993: 187-209).

Lessons and trends A clear lesson from the Embassy protest particularly for Aboriginal people is that political protest against the authority of government requires fearlessness and courage. This seems to be lacking today as Aboriginal people adopt more conciliatory approaches in responding to government policy or asserting their claims for recognition. Nonetheless elements of the fearlessness displayed by Embassy protestors still exist in Aboriginal communities and it needs to be nurtured and developed in the right direction because there is a place for public protest in Aboriginal political thought.

But challenging Australian constitutional authority requires more than fearless protest. Social and political dialogue in Australia needs to open up new ways of thinking about 232 the political relationship between Aboriginal and settler Australians. Governments tend to assume that any challenge by Aboriginal people to assert their distinctive identities and cultural rights is separatism, a form of apartheid. This is not what Aboriginal people are seeking and never have sought. Separation is what governments have imposed on Aboriginal people in the past through policies of protection and exclusion. Governments also dismiss Aboriginal claims to sovereignty based on assumptions stemming from terra nullius or on arguments that Aboriginal people would be incapable of exercising sovereignty.

Aboriginal people need to support Australians to move their thinking about Aboriginal self-determination beyond the underlying assumptions which in many cases are still anchored in colonial thoughts. This can only be done through dialogue. The dialogue needs to inform people, challenge ignorance and build understanding. One of the lessons from the Aboriginal Embassy in 1972 is that the media are an important tool in reaching the Australian population. Winning the middle ground of white Australian support is critical in the highly contested area of Aboriginal rights (Maynard, 2013: 95).

The Embassy protest offers some insights on how such a dialogue might be conducted. It has to be innovative and creative to catch people’s attention. It should involve dramatic performances, mimicry and humour and engage the Australian sense of larrikinism. Further it should be strategic with a series of tactical manoeuvres that open up prospects for transformation and change through action and discussion. Finally there should be an exit strategy which allows people an honourable way to withdraw or retreat without implying defeat or to have some breathing space. But dialogue is ongoing so while time and space for a break is important there must be strategies and action to enable resumption of dialogue.

A Turning Point The Aboriginal Embassy protest proved to be a turning point as there was a major shift away from the policy of assimilation with the subsequent election of the Whitlam Labor Government in December 1972. The Whitlam Government assumed full responsibility for Aboriginal Affairs and was committed to addressing the historical disadvantage of Aboriginal people through self-determination and to including Aboriginal people in the

233 process of Government (Attwood & Markus, 1999: 276). According to Whitlam the object of his government policy was ‘… to restore to the Aboriginal people of Australia their lost power of self-determination in economic, social and political affairs’ (Whitlam, 1973).

The Whitlam Government instituted a number of reforms within Aboriginals Affairs including establishment of a Department of Aboriginal Affairs and taking over the remanent State Aboriginal Welfare authorities, except Queensland’s (Sanders, 2002:3).51 The Government also outlined its intention to ratify International Labour Organisation Convention No. 107 dealing with Indigenous and tribal populations and indicated it would ratify the International Convention for the Elimination of All Forms of Racial Discrimination by introducing general legislation to outlaw acts of racial discrimination (Bryant, 1973a).

Consultation with Aboriginal people, Aboriginal representation in policymaking and recognition of land rights were major planks of the Government’s self-determination policy. However the policy of self-determination was more focused on self- management and self-reliance, especially in tackling social disadvantage in the communities in regards to health, housing, education and vocational training enabling Aboriginal groups and communities to determine their own decision making processes and decide their own future (Whitlam, 1973; Bryant, 1973a: 899; Bryant, 1973b: 502).

For Nugget Coombs and the Council for Aboriginal Affairs, ‘self-determination’ was more about empowering local Aboriginal communities to act in a wide range of issues of community concern so they may adapt their customary law and traditions to the needs of the present. This did not include a Department of Aboriginal Affairs but rather reformed Indigenous programs carried out by an array of functional departments dealing with local incorporated Aboriginal organisations that would carry out programs focusing on community welfare, recreation, culture and art, the education of pre-

51 The Whitlam Government also encouraged the development of incorporated community based Aboriginal organisations to conduct community affairs and deliver government funded services. It established a Royal Commission to examine how land rights could be recognised especially in the Northern Territory where the Commonwealth had jurisdictional control. It also established the National Aboriginal Consultative Committee (NACC), a national elected body of 41 Indigenous people to advise on Indigenous affairs (Sanders, 2002:3). 234 school children and the provision of legal and medical services. A national representative body should evolve through initiatives of local Aboriginal organisations, councils and corporations (Rowse, 2000: 107-108, 110).

For the Labor Government, Aboriginal representation in policy-making involved the election of an Aboriginal consultative council at the national level with which government could confer and the recruitment of Aboriginal people into the Australian Public Service including the Aboriginalisation of the public service. But there was little consideration of whether a national body could speak authoritatively on behalf of Aboriginal people and the Government gave little thought to the potential conflict between the advocacy role of Aboriginal people appointed to the public service and the traditional expectations of the role of public servants (Robbins, 1994: 130-135).

The Government abolished the Department of Interior in December 1972 however to the dismay of Charles Perkins and other Aboriginal leaders, personnel from the Department and the Northern Territory Welfare Branch were relocated to the new Department of Aboriginal Affairs. It was a turbulent time in Aboriginal Affairs. Charles Perkins the Assistant Secretary in charge of the Consultative and Liaison Branch frequently criticised the Department as well as Government policy and attitudes. He wanted a much greater Aboriginal representation with the Department and to establish the National Aboriginal Consultative Committee as an independent voice outside of the Department (Read, 1990: 171-176; Robbins, 1994: 125-126, 133, 138-139; Rowse, 2000: 119).

Conclusion The influence of Nuggett Coombs and the Council for Aboriginal Affairs on the Prime Minister was important in changing the emphasis of Aboriginal policy. Based on the assimilation of Aboriginal people in Australian society the policy allowed Aboriginal people to preserve and develop their culture and it recognised Aboriginal self- management and economic independence. But the policy did not recognise Aboriginal rights to land based on traditional ownership or prior occupation. It recognised that Aboriginal people in the Northern Territory could secure a lease over reserve land. That was the extent of political tolerance and recognition of Aboriginal claims for

235 recognition. To achieve further gains it was necessary for Aboriginal people to challenge those limits and the Aboriginal Embassy was effective in that regard.

While the change from assimilation to self-determination was a turning point, the real turning point was the growing assertiveness of Indigenous people to take control of their affairs and determine their own future. This assertiveness along with the influence of the Council for Aboriginal Affairs in government was effective in changing Indigenous policy. As a result there were significant advances in the 1970s and 1980s. The policy of self-determination and self-management provided the space for Indigenous people to input into government policy making and enabled key Indigenous aspirations to be discussed as public policy. But residual paternalism within government and also societal resistance to recognising Indigenous rights would ensure these issues failed. In the next chapter I discuss the policy of self-determination from the perspective of national Indigenous political representation, the Makarrata, national land rights and reconciliation.

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CHAPTER 8: SELF-DETERMINATION AND INDIGENOUS ASPIRATIONS

Introduction This chapter examines the Commonwealth Government approach to Indigenous claims for recognition from the 1970s to the early 1990s. While there is no single attempted dialogue that provides the focus of this chapter it provides the foreground to the next chapter where I examine the public and political response to the Mabo judgment and native title. I present this chapter in story format as well in order to draw out the Indigenous experience and their aspirations for land rights and a treaty. It is important to understand this period of history because the views, attitudes and responses of governments, industry and the Federal Opposition in regards to Indigenous aspirations are instructive in how they influence the social and political environment and create barriers to resolving Indigenous claims.

From the 1970s Indigenous political voices were forceful and became even more so as Indigenous people gained national political representation through the National Aboriginal Consultative Committee (NACC) and thereafter the National Aboriginal Conference (NAC). Sympathetic voices within government acknowledged Indigenous dispossession allowing for discussions about a new direction in Indigenous affairs. There were a number of issues such as treaty and national land rights that emerged in the Indigenous policy agenda.

At the same time these issues were only open for discussion within a nationalist framework and providing they did not challenge Australian sovereignty. There was a firm belief that Indigenous people lacked sovereignty or any form of political authority placing limits on Indigenous aspirations for control and self-determination. Further, attitudes of paternalism within government and the bureaucracy relegated the status of Indigenous voices in the policy discussions, treating those voices as rubber stamps for the government agenda. As a representative body the NACC and also NAC would experience similar limitations because the government at the time only wanted an advisory body not a form of Indigenous government.

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Indigenous aspirations for a treaty and national land rights would ultimately be dashed. Whilst Indigenous distrust of government and lack of consensus between Indigenous people contributed to the failures, the historical assumptions and attitudes held by politicians and governments were unquestionably dominant contributing factors.

Aboriginal representation - the NACC and NAC The National Aboriginal Consultative Committee (NACC) began as an interim body to advise the Minister, Gordon Bryant on how best to form a national representative body. Gordon Bryant promoted a policy of Aboriginal political development at the national level. The interim committee were keen to impose their agenda. They asked for Aboriginal reserves and settlements to be handed over to Aboriginal ownership, for recognition of prior Aboriginal ownership of Australia including compensation for dispossession and for all monies allocated to federal and state departments for Aboriginal programs to be placed under the control of the NACC (Hiatt et al, 1976: 13; Robbins, 1994:136; Weaver, 1983a: 6).

Interim delegates wanted the NACC to be established by statute with 82 members elected for two years from 41 electorates throughout Australia. However the Commonwealth Government only wanted an advisory body comprising 41 delegates that would meet two or three times per year (Hiatt et al, 1976: 13-16). Aboriginal Liberal senator, Neville Bonner from Queensland said the NACC would be a ‘separate Aboriginal parliament’, a ‘kind of auto-apartheid’ that would divide Aboriginal people amongst themselves and also from the rest of the Australian community (Senate Official Hansard, 1973, No. 47: 2016-2017, 2018-2019).

At its inaugural meeting in December 1973, the NACC specifically pressed for reserved Aboriginal seats in state and federal parliaments as well as the Northern Territory Legislative Council and for Aboriginal representation on a number of commissions and boards. The NACC also proposed a public relations program to educate white Australians about the prior occupation rights of Aboriginal people. It further called for a Commission on Land Rights to be established, for compensation for loss of land and

238 for a royal commission into police brutality towards Aboriginal people throughout Australia, especially in Western Australia (Hiatt et al, 1976: 16-22).

The NACC was not prepared to be a docile consultative body and pushed for greater impact in Aboriginal Affairs decision making. In February 1974 the NACC resolved to become an independent body known as the ‘National Aboriginal Congress’ with the ultimate aim to achieve direct responsibility of government funding for Aboriginal Affairs. The NACC also declared their intention to make the Department of Aboriginal Affairs their secretariat and to assume the role of the Department (O'Leary, 1974: 1, 3; Robbins, 1994: 157-159). The NACC sought to incorporate an association to receive funds for a secretariat and for administration of the NACC’s affairs however the NACC was still regarded as an advisory body (Hiatt et al, 1976:22-27) with no change in role or control over its own expenditure ever eventuating.

Attitudes of assimilation The Department of Aboriginal Affairs (DAA) was wary of the NACC trying to establish a wider role. The DAA felt the NACC did not provide useful advice to the Minister, the Government or to the Department. But in reality the DAA rarely sought the advice of the NACC and when it did, the advice it sought was limited to seeking nominations of Aboriginal people to various committees (Hiatt et al, 1976: 33, 36). The DAA was unsympathetic to NACC, believing the NACC’s formation was hasty and ill-conceived and that Aboriginal people did not want a national organisation. They felt the NACC was an alien structure to ‘tribal Aboriginals’ which could not serve their interests and they found the NACC’s assertiveness unacceptable (Weaver, 1983a: 8-9).

But there was more to DAA’s lack of sympathy. There was a problem of attitude towards Aboriginal people within the Department and amongst government officials. Charles Perkins said that while there was a tremendous amount of new thinking in Aboriginal affairs there was also resistance to change from public servants who were not happy about being accountable to Aboriginal people. Perkins said he could not tolerate the ‘blind ignorance, racism and lack of humanity’ from senior officers in government (Perkins, 1975: 171, 196).

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Public servants in DAA were unable to throw off colonial attitudes about Aboriginal people and change to a new direction in Aboriginal Affairs (Read, 1990: 170-171, Robbins, 1994:149). Coombs states there was a persistence of assimilationist and protectionist attitudes as well as ‘profound and widespread ignorance’ that compounded their lack of experience in dealing with Aboriginal people (Coombs et al, 1976: 336). The consistent view within government including the DAA at the time was that part-descent or mixed blood Aboriginal people were not ‘real’ Aboriginal people and that they shouted down ‘traditional’ people (Read, 1990: 232). Further the DAA officials did not think an Aboriginal officer was any better at mediating between the Department and ‘traditional’ Aboriginal people. They felt that the push for Aboriginalisation of the Department came from a group of ‘urbanised intellectuals’ (Rowse, 2000: 124).

Charles Perkins also considered the Council for Aboriginal Affairs (CAA) a paternalistic body with too much control over Aboriginal policy (Perkins, 1975: 172).52 Nugget Coombs, however, was concerned about Charles Perkins’ outspokenness and its impact on the DAA. He and his colleagues were also worried by the NACC aspirations to be the body in charge of Aboriginal affairs policy fearing it would become a channel for the political energies of dissident and ambitious Aboriginal people. The CAA believed that local organisations were the preferable instruments of Aboriginal decisions and for spending public money and that the structure of the NACC more reflected the political ideas and ambitions of urban Aboriginal people rather than traditionally based communities (Rowse, 2000: 116-117, 120-122, 125).

But according to Read, liberalism and programs of self-management did not achieve the outcomes that urban Aboriginal people wanted. Charles Perkins and the NACC highlighted the dissatisfaction of Aboriginal people thus showing that it was possible to fight bureaucracy. Importantly, Perkins and the NACC had established ‘how far the Whites were prepared to go’ in allowing Aboriginal control of their own affairs not just locally but also nationally. Read states that when the momentum of demand for

52 I explain the formation of the Council for Aboriginal Affairs in chapter 7. It was established in November 1967 and comprised three people Nugget Coombs, W E H Stanner and Barrie Dexter. It was wound up by the Fraser Liberal-Coalition Government in November 1976. 240 change had passed from mainly white people to predominantly black people, Aboriginal people were met with hostility (Read, 1990: 209-210).

A debating society The dismissal of the Whitlam Labor Government in November 1975 and the election of the Fraser Liberal Coalition Government saw changes to the NACC and Aboriginal affairs. The Fraser Government’s Aboriginal affairs policy focused on promoting ‘self- management and self-sufficiency’ (Senate Official Hansard, 1976, No. 8: 11). The new Minister considered that having a national body between the government and Aboriginal people to control and use public funds was incompatible with the parliamentary system of government (Hiatt et al, 1976:27).

The Fraser Government undertook a review of the DAA and also established an inquiry into the NACC. The Hiatt Inquiry concluded that the NACC had not functioned as a consultative committee and had not been effective in providing advice to government on Aboriginal policies and programs. The inquiry also reported that the great majority of Aboriginal people did not know of the activities of the NACC (Hiatt et al, 1976:45). However the inquiry found widespread support for a national Aboriginal body, although Aboriginal people in Arnhem Land expressed disgust about the NACC’s militancy (Hiatt et al, 1976:32, 57, 63). The Hiatt Report recommended the NACC become the ‘National Aboriginal Congress’ that would have formal meetings at State Branch, National Executive and National Congress level. It also recommended the creation of a statutory commission for Aboriginal development, with both appointed members and NAC delegates to function as an advisory body to the Minister for Aboriginal Affairs (Hiatt et al, 1976:69-83).

Three options were presented to government for consideration, however, a modified Hiatt option was attractive to Ian Viner, the Minister for Aboriginal Affairs (Weaver, 1983b: 90-94). Viner replaced the NACC with the National Aboriginal Conference (NAC) comprising 35 members who would meet annually at the national level with members in each state or territory meeting twice a year. The Minister also announced the formation of the Council for Aboriginal Development, a formal advisory body to the Minister for Aboriginal Affairs (House of Representatives Official Hansard, 1977, No.

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22: 2104-2113). The creation of the Council for Aboriginal Development effectively sidelined the NAC thus relegating the NAC to a ‘debating society’ (Hanks, 1984: 42).

The NAC was incorporated in October 1978 as an Aboriginal corporation enabling it to establish a limited secretariat and administer its own budget outside the direct control of the DAA. However while NAC members aspired to real power and influence over Aboriginal policy they lacked experience and knowledge of government, had limited resources and were poorly supported in policy research. The Commonwealth Government had no intention of bestowing any real power or status on the NAC (Beresford, 2006: 124-125; Robbins, 1994: 211-214). Rob Riley and Peter Yu – both Western Australians elected to the NAC in 1981 – attempted to bring an organised political approach, lifting the profile of the NAC. However the NAC was undermined by the lack of recognition from state and Commonwealth governments. The NAC became largely irrelevant as the newly emerging statutory land councils in the Northern Territory began to change the dynamics of Aboriginal politics (Beresford, 2006: 125- 137). The NAC was terminated in 1985 but not before it was involved in some significant public policy issues such as a treaty and national land rights.

The treaty idea Jack Davis, President of the Western Australian Aboriginal Association, raised the need for a treaty with Aboriginal people with the Federal Council for the Advancement of Aboriginal and Torres Strait Islanders (FCAATSI) in 1969 (Pitty, 2006: 51). In March 1972 the Gwalwa Daraniki Larrakia group in Darwin sent a petition to the Prime Minister demanding the Government appoint a commission to ‘work out a treaty to suit each tribe’ and provide legal assistance to each tribe. But Prime Minister McMahon considered it inappropriate to negotiate with British subjects as though they were foreign powers (Wright, 1985: 14-17). In September 1974 Aboriginal senator Neville Bonner (Liberal QLD) introduced a motion into the Senate calling for recognition of prior ownership and compensation to Aboriginal and Torres Strait Islander people for their dispossession. The motion was passed unanimously on 20 February 1975 but thereafter lay dead (Wright, 1985: 31).

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Bonner argued that money allocated for Indigenous people was government charity and implied a ‘handout mentality’. He wanted a ‘true and due entitlement for dispossession’. Bonner asked for an amount of money to be set aside from the annual national budget for compensation for loss of land and ‘enforced disintegration’ and this money would be channelled through a statutory Aboriginal and Torres Strait Islander body (Senate Official Hansard, 1974, No. 38: 1267-1273).

In September 1976 Stewart Harris wrote in the Canberra Times that a ‘Treaty of Commitment’ with Aboriginal people would provide resources for Aboriginal development through the allocation of an agreed fixed proportion of annual royalties on minerals and forestry, fishing and hunting products on all of the land of Australia. The treaty would also promise a fixed proportion of the total budget every year for the Department of Aboriginal Affairs until the Department became redundant. Finally the exploitation of minerals and forestry, fishing and hunting on Aboriginal reserve land would be a matter of negotiation between the Aboriginal owners, the government and the interested company, giving Aboriginal people a say in exploitation of these resources (Harris, 1976: 2).

Nuggett Coombs convened the Aboriginal Treaty Committee with six people in April 1979 as a means to influence and mobilise Australian opinion for exclusive Commonwealth responsibility of Aboriginal affairs and for a treaty between Aboriginal people, the Commonwealth and Australian society. He said a treaty was necessary to establish a constitutional relationship between Aboriginal people and Australian society and to bring an end to hostilities between black and white Australians (Harris, 1979: 2-4; Rowse, 2000: 174-177; Wright, 1985: 95-106). Coombs felt that white Australians had a serious problem with reconciling invasion, dispossession and violence with their own moral code and that the grievances of Indigenous people would not go away unless white Australians removed the causes (Read, 2006: 32-33).

The Aboriginal Treaty Committee took out a full page advertisement in the National Times in August 1979 explaining that a treaty freely negotiated with the Commonwealth Government was required to make a just settlement with Aboriginal and Torres Strait Islanders and to recognise their status and rights (We Call For A

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Treaty Within Australia, Between Australians, 1979: 13). The advertisement suggested a method of dialogue whereby the Commonwealth Government should enable the NAC to convene a meeting of Aboriginal representatives from Aboriginal communities and associations to choose negotiators, propose the basis of negotiations and settlement, organise the negotiations as well as submit any treaty to Parliament for ratification. The advertisement further set out what provisions should be in a treaty (We Call For A Treaty Within Australia, Between Australians, 1979:13).

The Makarrata The NAC took up the idea of a treaty in April 1979, forming a sub-committee to consult Aboriginal people in relation to the proposal. They also announced they would adopt the term ‘Makarrata’ for a treaty.53 Fred Chaney, Minister for Aboriginal Affairs, welcomed the NAC initiatives stating the Government’s willingness to join discussions as the proposal moved forward (Two Hundred Years Later, 1983: 14-15).

But the Government’s readiness in accepting the NAC proposal raised suspicions amongst a group of Aboriginal protestors who had set up a tent protest on Capitol Hill in Canberra, calling themselves the National Aboriginal Government of Australia. They called for a Federal Aboriginal Bill of Rights and a treaty of commitment from the Federal Government (Aborigines stake claim on Capitol Hill, 1979: 3). The protestors feared the NAC would come under pressure to conclude an agreement without proper consultation. The Aboriginal Treaty Committee was also suspicious about the Government’s readiness to consider the NAC demands as the Government had already proved its ‘untrustworthiness and guile’ (Wright, 1985: 107, 122-123).

The NAC consulted with Aboriginal communities in all states as well as the Northern Territory over a number of weeks in 1980, and found that many people were not familiar with the idea of a treaty, wanting more time to consider it. People were also divided on the use of the word ‘treaty’ and ‘Makarrata’ (Hagan, 1980). In its interim report the NAC stated the Makarrata would recognise prior ownership of Aboriginal people and would involve compensation for loss of culture and land through a

53 Makarrata is a Yolngu word from North-East Arnhem Land which the NAC described as meaning ‘a coming together after a struggle’, to settle a dispute. 244 percentage of Gross National Product (GNP). It would also pursue recognition for a range of other matters (Makarrata Report, undated; Two Hundred Years Later, 1983:15-16).54 However the Aboriginal Treaty Committee felt that the NAC had not been able to establish any firm basis for their proposal. Nugget Coombs advised of the need for an effective communication process with Aboriginal groups and organisations, more time for discussion, and further resources for the NAC to undertake consultations and fund research (Rowse, 2000: 181, Wright, 1985: 129).

NAC Chairman Jim Hagan had asked Nugget Coombs for advice on Aboriginal representation in treaty negotiations. Coombs proposed a six step process in which the NAC would commission options papers to be circulated to Aboriginal communities and organisations. The NAC would then call Aboriginal representatives to a convention to discuss the option papers after which the representatives would discuss the issues with their communities. The NAC would then recall convention representatives to consider a first draft of an agreement for submission to government and the convention would remain in existence to consider issues during negotiations and to approve or reject the provisional agreement (Rowse, 2000: 182; Wright, 1985: 155).

Government not committed But the notion of a treaty was not acceptable to the Attorney-General, Peter Durack, because in his view Aboriginal people did not constitute a domestic dependent nation and any agreement which was accorded the status of treaty would risk Aboriginal claims to self-determination as a nation. The Attorney-General said the Parliament could enact legislation to create obligations to Aboriginal Australians and provide compensation for past treatment but the word ‘compensation’ could not be used in a legal sense. The Attorney-General also advised against use of the word ‘dispossession’ (Wright, 1985: 138-139).

In early 1981, the Minister for Aboriginal Affairs Senator Peter Baume said the Government was prepared to acknowledge prior Aboriginal occupation of Australia but

54 These matters included teaching of Aboriginal culture in schools; the reservation of seats in Commonwealth, State and local governments; the recognition of National Aborigines Day as a public holiday; the honouring of Aboriginal heroes and the identification of Aboriginal places of struggle; a fixed proportion of Aboriginal people employed in government; and return of Aboriginal skeletons and artefacts from museums. 245 could not legitimately negotiate a ‘treaty’ as it implied an internationally recognised agreement between two nations. Further the Government was not prepared to act unilaterally in areas where states had an interest. Return of tribal lands including sacred sites and freehold title should be taken up by the NAC with the states. He said the Government could not agree to a fixed percentage of GNP as compensation nor any fixed financial commitment into the future. Further the Government would not agree to reserved seats for Aboriginal people in the Commonwealth Parliament stating special representation in state parliaments and local government bodies was a matter for the states. As for employment of Aboriginal people in government bodies, the Government did not believe in a fixed formula for Aboriginal employment and would continue to promote existing employment schemes (Two Hundred Years Later, 1983: 17-18).

Despite having expressed early support for the concept of a treaty, the Fraser Government effectively stymied the NAC’s aspirations for a treaty and the process was now all the more difficult as the NAC would have to discuss matters relating to the Makarrata with each state as well as the Commonwealth Government. The Commonwealth Government was not prepared to play a role in leading Makarrata discussions with the states, but left the NAC to pursue the matter on their own.

Concerns about the NAC The NAC was trying to demonstrate a strong stance on the treaty issue arguing that Aboriginal people should at least be recognised as a ‘domestic dependent nation’. The NAC also argued it should have corporate standing and statutory functions to enable it to facilitate the Aboriginal discussion to determine the content of the treaty and negotiate the Makarrata on behalf of Aboriginal people (The Makarrata. Some Ways Forward, 1981).

But there were concerns that the NAC was being pressured by the Government into a short time frame and was pursuing a treaty without proper consultations. Further because the NAC was considered a government body there were concerns it did not have a mandate to represent Aboriginal people (Rowse, 2000: 181-182, Wright, 1985:140-143). The NAC suggested a two phase negotiation process for a Makarrata

246 involving: first, the negotiation of a short nationwide agreement in principle to be possibly entrenched in the Constitution and second, the negotiation of a more detailed agreement for various regions (Keon-Cohen & Morse, 1984:87).

Criticism of the NAC came to the fore during the Third Assembly of the World Council of Indigenous Peoples (WCIP) which was working on an international covenant on the rights of Indigenous people. The NAC hosted the WCIP in Canberra in April/May 1981 and were the only accredited representatives for Australian Indigenous people. The WCIP organising committee was asked to accredit Aboriginal speakers outside the NAC because the NAC was a government created organisation. A separate Aboriginal forum was organised where the NAC was criticised for its monopoly over political representation and it was asked to disassociate itself from any negotiations for a Makarrata (Robbins, 1994: 221, 224-225, Rowse, 2000: 183, Wright, 1985: 152).

The NAC called a public meeting in Canberra in August 1981 to discuss a draft Makarrata document (Wright, 1985: 165) where more than 60 representatives of Aboriginal communities in southern and western New South Wales called on the NAC to prepare a draft Makarrata proposal and submit it to government (Call for draft Makarrata proposal, 1981:8). However elsewhere there were concerns that the NAC had buckled to the Government’s demand to have a draft document prepared in time for the Commonwealth Heads of Government Meeting (Rowse, 2000: 184, Wright, 1985: 163-165).

Despite these concerns and the Government’s failure to accept some of the specific proposals, the NAC were determined to pursue the Makarrata sending a further list of items to the Government to be added to the Makarrata proposal (Two Hundred Years Later, 1983: 19, 177-178). But new Aboriginal voices were emerging that were sceptical of the NAC’s role in the Makarrata process. The NAC was not regarded as having authority to represent Aboriginal people in agreement negotiations. Further there was concern the Government could not be trusted to honour the treaty and that white Australians may see the treaty as a denial of what they regarded as rightfully theirs. There were also concerns about whether a treaty could guarantee every day basic human needs in addition to recognising continuing Aboriginal sovereignty.

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Working towards agreeing to a treaty in principle with the Australian government was considered a better option (Read, 2006).

In November 1981, the National Federation of Land Councils – representing Aboriginal land councils – condemned the Makarrata as a ‘confidence trick’ by the Federal Government and rejected the treaty on the basis of insufficient consultation with Aboriginal people and because it would legalise occupation and use of Aboriginal lands by the Australian settler state. The National Federation also emphasised that Aboriginal people had never ceded sovereignty and declared that Aboriginal people were being pressured into signing an agreement before the bicentennial year (Wright, 1985: 171).

The senate standing committee The Standing Committee on Constitutional and Legal Affairs in the Australian Senate established an inquiry into the feasibility of a compact or ‘Makarrata’ between the Commonwealth Government and Aboriginal people in September 1981. It called for submissions and held 19 public hearings throughout the country (Two Hundred Years Later, 1983: 2-3). In its report the Standing Committee concluded that Aboriginal people did not have sovereignty and so could not negotiate with the Commonwealth as a sovereign entity. Instead it recommended that the Commonwealth should consider an amendment by referendum to the Constitution by inserting a provision (similar to section 105A) that would give the Commonwealth power to enter into a compact with the representatives of Aboriginal people. The Standing Committee also said that the compact would be negotiated between the Commonwealth and the NAC as the representative of Aboriginal people (Two Hundred Years Later, 1983: 50, 115, 130-131, 146-147).

The Standing Committee applied the law as set out by Milirrpum v Nabalco (1970) and Coe v The Commonwealth (1979) and also asserted the ‘rule of prescription’ in its conclusion about Aboriginal sovereignty.55 The Standing Committee admitted that Aboriginal people had sovereignty at the time of ‘settlement’, but as a ‘legal

55 At international law the rule of prescription provides a clear title to the sovereign who has continually and undisputedly claimed sovereignty such that it has become part of the international order of nations. 248 proposition’ no longer held sovereignty except sharing in the common sovereignty of all people in the Commonwealth of Australia. However, the Standing Committee did recognise that Aboriginal people had asserted claims to sovereignty, there was a history of violent resistance to British colonial expansion, that there were ‘cultural blind spots’ in the colonial perceptions of Aboriginal authority, that the significance of land to Aboriginal people was underestimated and misunderstood by English law, and that the ‘settled colony principle’ was grossly offensive to Aboriginal people (Two Hundred Years Later, 1983: 37-39, 43-47, 50).

Aboriginal people who gave evidence to the inquiry did not want the Makarrata to divert attention away from dealing with the urgent problems facing Aboriginal communities. In that regard the Standing Committee said that the preferable approach was to work towards a compact contemporaneously with resolution of specific issues such as adequate standard of housing, health and welfare facilities as well as recognition of Aboriginal culture and law. Such a compact would go beyond being a ‘shopping list’ of demands for compensation for injury done to Aboriginal people but would be a ‘… formal symbol, denoting the achievement of a sound footing in the relationship between Aboriginal and non-Aboriginal Australians’ (Two Hundred Years Later, 1983: 121-125).

The compact according to the Standing Committee would establish a new framework in which to conduct the relationship. The compact would recognise that Aboriginal people would have legitimate rights to such claims not as a disadvantaged group but as recognised prior owner of Australia (Two Hundred Years Later, 1983: 125-126). The Standing Committee also said it would be necessary for the Commonwealth to sponsor programs to raise community consciousness for an informed discussion and this awareness discussion was also necessary in the Aboriginal community to build an understanding of the idea of a compact (Two Hundred Years Later, 1983: 126-127, 155-156).

National Land Rights The election of the Hawke Labor Government in March 1983 promised a new approach by restoring the policy of self-determination, and legislating for uniform land rights as

249 well as dealing with a range of other issues. According to Clyde Holding, Minister for Aboriginal Affairs, the Government’s approach was based on ‘consultation and self- determination’, where Aboriginal people would be completely involved in the process. More resources would be provided to the NAC and it would have regular access to the Department of Aboriginal Affairs and the Minister. A major government policy issue was land rights based on five principles of inalienable freehold title, protection of sacred sites, control in relation to mining, mining royalty equivalents, and compensation for lost land (House of Representatives Official Hansard, 1983, No. 134: 3484-3494).

The Government’s focus was the bicentennial year of 1988 in which the nation could think about its national beginnings, come to terms with its history and make amends with Aboriginal people. Clive Holding said the past had to be understood in order to build the future however, the nation should ‘not repeat the hypocrisy’ and only make cosmetic changes for the sake of bicentennial celebrations. The underlying message from Holding was that principles of reconciliation between ‘pre-and post-colonial Australia’ should be established by 1988 (House of Representatives Official Hansard, 1983, No. 134: 3486-3487).

Holding said the nation needed to come to terms with its past and should not ignore legacies of racial discrimination and injustice. He asserted that this generation of Australians ‘should right the wrongs of our forebears’ and redress the legacies of the past. The restoration of land rights, he said was a ‘necessity’ and a ‘solemn duty’ of the Parliament, but the grant of land rights or recognition of prior ownership and occupation would not undermine Australia’s sovereignty. Holding insisted that Australians could no longer live with the ‘naive and arrogant concept’ that Australia was terra nullius and that Aboriginal people were not people at all (House of Representatives Official Hansard, 1983, No. 134: 3489-3490, 3493).

According to Holding the Government was seeking to build a nation on compassion, understanding and sharing by responding to the hopes and aspirations of Aboriginal people and according them dignity:

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“… until we give to the Aboriginal people that which is theirs this nation cannot aspire to greatness. We shall have to make this reparation, not in the sense of giving it and taking it back, but giving it with a sense of generosity, of compassion, and with a proper understanding that the beginning of this nation, as we know it today, were among the most brutal and genocidal in history” (House of Representatives Official Hansard, 1983, No. 134: 3493-3494).

The Hawke Government came to power promising national land rights but their good intentions were thwarted by the Australian system of federalism. While the Commonwealth has power to legislate for Aboriginal people as a result of the 1967 Referendum, the states also have powers relating to land ownership, land use, health, education, social welfare, and housing which are not easily overridden by the Commonwealth. In that regard national land rights was a case of ‘seeking the impossible’; the Commonwealth felt it could only set standards which it hoped the states would follow (Bennett, 1988: 20, 21,26).

Government paternalism Clyde Holding’s strategy was to encourage the state and territory governments to legislate for Aboriginal land rights commensurate with Commonwealth standards; if they didn’t the federal government would adopt overriding legislation. He established an Aboriginal Land Rights Steering Committee to make political policy for the land rights legislation after consultations with Aboriginal people.56 He also established a panel of lawyers to draft the legislation.57 But Holding tended to disregard the advice of the steering committee and he imposed rigid deadlines on the Steering Committee to endorse policy decisions he and others had made, even informing the Committee after he had made a policy decision (Libby, 1989: 19-22).

56 The steering committee comprised NAC representatives and representatives from the Northern, Central, Kimberley and North Queensland land councils plus Charles Perkins and the chairman of the Aboriginal Development Commission. 57 The lawyers panel included three appointed by the NAC, two appointed by the National Federation of Aboriginal Land Councils, one from the Northern land Council, one from the Department of Aboriginal Affairs, one representing the Minister and one appointed by the Minister to assist the panel. 251

Clive Holding short circuited the original process for formulating the legislation by instructing the lawyers to prepare a list of questions in relation to legislation for consideration by the steering committee. The lawyers were concerned they had pre- determined the form of the legislation.58 The questions were given to the members of the Steering Committee along with answers suggested by the Department of Aboriginal Affairs only a few days in advance of their Melbourne meeting in February 1984. At the meeting Holding insisted upon immediate responses to the questions and would not allow more time for Steering Committee members to consult with their constituents before taking any position on the questions. Holding said opinion surveys were starting to show people thought enough was already being done for Aboriginal people and he did not want legislation to be torn to pieces while he waited for Aboriginal endorsement. He said when the legislation was complete it would be given to the NAC who could either accept or reject it or seek more time for consultation before endorsing the legislation (Libby, 1989: 26-28).

A discussion paper prepared by the Department of Aboriginal Affairs was presented to the Steering Committee in August 1984 outlining the parameters of federal legislation. Neither the Steering Committee nor the panel of lawyers had seen the document before the meeting. Holding argued that setting out the parameters of the legislation was necessary to defuse growing anti-land rights pressure, to ensure it was acceptable to the Federal Government and to form a basis for consultation with the states, miners, rural and other concerned interests. The Steering Committee rejected proposals in regards to the categories of land available for claim, the establishment of state tribunals to hear land claims, and the control of Aboriginal land in regards to mining. The Steering Committee said they would prepare position papers on areas of disagreement with the discussion paper but political events would eventually overtake them (Libby, 1989: 34-35).

58 The original process was for the NAC and the Federation of Land Councils to consult with Aboriginal people and determine the Aboriginal position on land rights. The NAC, Federation and the Minister would then agree on the principles and terms of the land rights legislation and the Minister and Aboriginal representatives would negotiate on a state by state basis with state and territory governments for suitable complementary state legislation. 252

The land rights model In August 1985 Federal Cabinet endorsed the preferred national land rights model put forward by Clyde Holding which enabled states to implement consistent land rights legislation rather than have overriding Commonwealth legislation. The national model would provide inalienable freehold title to Aboriginal groups pursuant to a claims process, with former Aboriginal reserves and missions, vacant Crown land and Commonwealth national parks available for claim. Land could be granted on the basis of traditional entitlement, historical association, long term occupation or for specific purposes. There was no right of veto for Aboriginal people over exploration and mining on their land only a right to negotiate an agreement (Cabinet Minute, National Aboriginal Land Rights Legislation, Decision No. 6505, Submission No. 3146, 1985).

In response to the Commonwealth preferred model the states and the Northern Territory said land rights and land use were a state responsibility and that Commonwealth legislation should only apply to those states with no legislation. This was supported by the mining and pastoral industries who also argued the particular land title should not be too restrictive for commercial development and that Aboriginal land should be capable of resumption. The mining industry felt that Aboriginal consent for exploration and mining was a ‘de facto’ veto. Both the mining and pastoral industries said the Land Rights Act in the Northern Territory should be amended on the basis of the preferred model. By contrast, Aboriginal organisations felt the model did not meet the five principles and that there should be further consultations with Aboriginal people.59 They argued the category of land available for claim was too restrictive and that Aboriginal land should not be appropriated other than by an Act of Parliament. Further Aboriginal people should have the power to veto and control mining and exploration. Church groups expressed similar views (Cabinet Minute, National Aboriginal Land Rights Legislation, Decision No. 6505, Submission No. 3146, 1985).

59 The principles were: inalienable freehold title, protection of sacred sites, control in relation to mining, mining royalty equivalents, and compensation for lost land. 253

Aboriginal boycott The Commonwealth Government’s approach to national land rights changed when Western Australian Premier Brian Burke met with Federal Cabinet in September 1984. Burke opposed major elements of the Seaman Report on recognising Aboriginal land rights in Western Australia and he advised that land rights were politically explosive electorally.60 The mining industry also argued that future growth of the industry would also be affected if mining provisions similar to the Northern Territory Land Rights Act were adopted nationally. Federal Cabinet believed it necessary to balance Aboriginal land rights with the rights of major economic interests, namely the mining industry (Libby, 1989: 35-36).

Pressure from Brian Burke forced Prime Minister Bob Hawke to unilaterally remove Aboriginal negotiation powers in regards to exploration and mining, undermining Clyde Holding on land rights legislation. This decision was made without consultation with Federal Cabinet, ALP caucus or prior discussions with the Minister for Aboriginal Affairs (Libby, 1989: 37). Holding eventually endorsed the Prime Minister position. The NAC felt that the Commonwealth Government had caved in on their principles of land rights.61 They believed that Clyde Holding had gone along with the Prime Minister in allowing Brian Burke to have his way and had also introduced new land rights principles to cabinet, principles unknown to them. The NAC also felt that the Western Australian legislation would become the model for national land rights and in that regard they recommended that all Aboriginal organisations reject the Western Australian legislation as well as all state legislation as it was clear the Federal Government would not override states in the area of land rights (Libby, 1989: 51-52).

When the NAC and the Federation of Land Councils met in Canberra in February 1985 they decided to boycott the proposed Steering Committee meeting and the meeting with the ALP caucus sub-committee on Aboriginal affairs, marking the end of their participation in the Steering Committee. They resolved to advance and protect Aboriginal land rights through a public campaign against the Federal Government’s

60 The Western Australia Land Inquiry chaired by Paul Seaman QC. 61 The principles were: inalienable freehold title, protection of sacred sites, control in relation to mining, mining royalty equivalents, and compensation for lost land. 254 action. They were angry that the Government had rejected the NAC requests for access to cabinet proposals and for federal ministers to attend a Steering Committee meeting. In a joint statement the NAC and Federation of Land Councils called on the Federal Government to intervene in Western Australia in regards to its proposed land rights legislation; make no changes to the Aboriginal land rights act without the consent of the Northern Territory land councils; not to proceed with national land rights legislation; convene a national summit on land rights; and take immediate action to ensure Indigenous peoples can develop acceptable national principles for a proper relationship between Indigenous peoples and all governments (Libby, 1989: 53-54).

The Aboriginal organisations’ public campaign included a national Aboriginal summit in May 1985 and a delegation to the United Nations in July 1985 to protest the Hawke Government action. But there was little impact on Government land rights policy. In July 1985 the NAC were terminated by the Government (Libby, 1989: 54). The land councils in the Northern Territory went on to fight a successful campaign to stop the Federal Government from amending the Northern Territory Land Rights Act 1976 and removing the mining veto from that act (Libby, 1989: 139-146).

Anti-land rights campaign in Western Australia The Chambers of Mines of Western Australia supported by the AMIC successfully campaigned against the Seaman Inquiry recommendations on Aboriginal land rights in Western Australia and also against national land rights. The campaign exerted public pressure on the Burke Government and Hawke Government to influence the political outcome of the land rights issue. It was an aggressive ‘belt level’ newspaper and television advertising campaign to harness underlying social prejudice against Aboriginal people reinforcing public opposition to land rights (Libby, 1989: 61, 67, 76, 85).

The campaign forced the Burke Labor Government to reach an agreement with the Chamber of Mines on acceptable principles for state land rights legislation. It also forced the Burke Government into a strategy of co-opting the mining industry to support the land rights bill in order to defuse the issue of land rights in WA. Industry groups, miners, pastoralists and farmers were included on the committee which

255 drafted the Aboriginal land rights bill. When the bill was subsequently defeated in the upper house of State Parliament, Brian Burke went on to wage a successful political battle against the Federal Government national land rights legislation (Libby, 1989: 81, 85).

To isolate the Liberal Party anti-land rights campaign in Western Australia the Burke Government won the support of major industry for the state land rights legislation and also sought assurances from the Federal Government not to impose overriding national land rights legislation in Western Australia. Brian Burke persuaded the Prime Minister to issue a public statement in October 1984 and also January 1986 that the Federal Government would not override any land rights legislation in Western Australia. The Prime Minister and the right wing of the Labor Party were prepared to compromise the Clyde Holding principles on land rights in the interest of the political survival of the Burke Government. However, this position was opposed by left and centre-left factions of the Federal Labor Party (Libby, 1989: 107-113).

Brian Burke’s Labor Government easily won the Western Australian election in February 1986 on a platform opposed to any land rights legislation. Burke warned the Federal Government that if it tried to pursue national land rights it would encounter the same kind of political opposition it had encountered in Western Australia. A compromise deal was worked out between the Federal Labor Government and the Western Australian Government shortly after the elections. The elements of the agreement included no overriding federal land rights legislation and progress of land rights on a state by state basis, although there would be a funding package for Western Australia, retention of the mining veto in the Northern Territory Land Rights Act and no change in the national Labor Party Aboriginal land rights policy (Libby, 1989: 113-114).

A shameful back down By March 1986 the Federal Government had abandoned its promise of national land rights legislation. In his address to Parliament, Clyde Holding tried to put a positive spin on the Government’s retreat. The Opposition Coalition Party called Holding’s speech an admission of failure of the Government’s land rights policy and cynically welcomed

256 the Government in accepting Coalition policy: that land rights for Aboriginal people could only be achieved through state legislation and with community support (House of Representatives Official Hansard, 1986, No. 147: 1437-1480).

The Canberra Times claimed it was the ‘obdurate opposition’ of the Western Australian Labor Party to land rights which precipitated the Government’s back down on land rights:

“The Government’s shameful backdown this week on national Aboriginal land rights is but the biggest symbol of the fact that to the present Government the welfare of Aborigines comes a considerable second to expediency and appeasement of powerful vested interests” (A Shameful Backdown, 1986: 2).

The editorial stated that the Government lacked courage and had also ‘… dishonoured undertakings to Aboriginal representatives about the consultative programs’ and in the middle of the process disbanded the ‘… only thing approaching a national voice’ for Aboriginal people and had done nothing about replacing it. Further the Government did ‘… nothing to counter a campaign of misinformation and fear from powerful lobbies, particularly the mining industry…’ and its negative impact was used by the Government to justify its back down (A Shameful BackDown, 1986: 2).

Libby argues there was also an absence of Aboriginal consensus as shown by the disputes between the National Federation of Land Councils and the NAC in that the NAC did not represent their interests and it lacked credibility with Aboriginal people. There was also no consensus among Aboriginal groups about what should be included in the national land rights bill and this included the type of land title they wanted. While the NAC and the Federation had equal representation on the joint Steering Committee, the Steering Committee lacked the support of the Minister, had insufficient resources and no terms of reference. Further the Northern Land Council refused affiliation with the National Federation of Land Councils and it was granted a position on the Steering Committee with legal representation on the panel of lawyers (Libby, 1989: 23-26).

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Reconciliation and Self-determination Many of the political and social elements affecting the national land rights process can be seen again in the way the Commonwealth Government dealt with the Mabo judgement in 1992. A major difference by 1992 however, was the policy of reconciliation with Indigenous people, instituted by the Hawke Government in the late 1980s. The discourse of reconciliation spanned a number of policy areas but by 1987 the term ‘reconciliation’ was applied almost exclusively to Aboriginal Affairs. The Liberal-National Opposition supported the idea of reconciliation between Indigenous and other Australians but they perceived reconciliation more as addressing Indigenous disadvantage and as reconciliation of hearts and minds (Phillips, 2002: 115-120).

The Labor Government’s move towards reconciliation and self-determination significantly changed the language of Aboriginal policy. In August 1988 in response to a call by Australian Christian Churches for the Parliament to pass a motion in support of reconciliation, Prime Minister Bob Hawke moved a motion to promote reconciliation with Indigenous people. He also affirmed the importance of Aboriginal and Torres Strait Islander culture and heritage and their entitlement to self-management and self- determination subject to the constitution and laws of Australia. Opposition Leader John Howard tried to amend the motion to state that Indigenous self-management and self-determination should be ‘in common with all other Australians’ because the motion created a ‘… perception of separate development and the impression of divisions in the Australian community’. Howard also warned of the ‘unwisdom of encountering a treaty’ (House of Representatives Official Hansard, 1988, No. 162: 137, 140). But the Government refused to accept the amendment and the motion was passed on party lines.

Aboriginal Affairs Minister Clyde Holding considered the Government’s policy program to be the beginning of a process of reconciliation where the nation would come to terms with its own history, make amends, and provide some redress to Indigenous people. Holding wanted the principles of reconciliation to be clearly established by 1988, the year of Australia’s bicentennial celebration (House of Representatives Official Hansard, 1983, No. 134: 3486-3487). In its move towards reconciliation as a

258 framework for justice the Hawke government announced a Royal Commission into Aboriginal Deaths in Custody in August 1987 after a political campaign and lobbying by the National Committee to Defend Black Rights. Further in July 1987 Prime Minister Hawke announced the creation of a new statutory corporation for Aboriginal Affairs (Tickner, 2001: 50, 67).

Announcing the creation of the Aboriginal and Torres Strait Islander Commission (ATSIC) new Minister for Aboriginal Affairs, Gerry Hand stated ATSIC was being established as an instrument of Aboriginal self-determination where Indigenous people would be involved in the decision making process of government and would decide what was best for them (House of Representatives Official Hansard, 1987, No. 158: 3152-3154). John Howard, Leader of the Opposition said the ATSIC legislation ‘strikes at the heart’ of the Australian unity and that the creation of ATSIC would ‘create more resentment and more division’ (House of Representative Official Hansard, 1989, No. 166: 1332). Although regarded as a ‘radical shift’ in representative decision making for Aboriginal people (Tickner, 2001: 49), ATSIC was devised by the Government because it needed a ‘national indigenous interlocutor’ (Rowse, 2000: 199).

When Australia celebrated its bicentenary on 26 January 1988, the celebrations of 200 years of European colonisation ignored Indigenous demands for reparation and failed to embrace the diversity of the population (Castles, Cope et al, 1987: 15). In the lead up to the bicentenary there was very little emphasis on the need to address Indigenous aspirations as a precondition to celebrating the bicentenary (Tickner, 2001: 33). In opposition to the dominant view of the meaning of Australia Day and to highlight past and ongoing injustices, Indigenous people staged a large protest march for ‘peace, hope and justice’ from Redfern Oval to Hyde Park. There was also a second protest march from Redfern to Lady Macquarie’s Chair where activists had established a tent embassy (Black power on the march, 1988).

The Canberra Times editorial stated the 200th anniversary of European settlement gave all Australians including Aboriginal people some cause for celebration. While the editorial said it was a shame the original Australians are the most neglected it also

259 argued that the ‘problems of Aborigines’ would not be solved by ‘… regurgitating the sins of the past’ and that it was ‘… time for a new cooperative approach that will look to the future’ (Celebrating Freedom, 1988: 2). Former Prime Minister Malcolm Fraser said Australians ‘… should not feel guilty about the sins of 200 years ago because if we are, there isn’t a single nation or race on Earth that won’t go around feeling guilt- ridden’ (No reason to feel guilty, says Fraser, 1988: 3). An opinion piece given prominence in the Canberra Times took the matter further arguing the current generations of Australians are not responsible for what happened in the past and should not have to pay any compensation to existing Aboriginal people as a result of that historical harm (Kerr, 1988: 2).

Indigenous aspirations for a treaty was again placed on the public policy agenda when the Central and Northern Land Councils presented Prime Minister Hawke with a statement of rights and aspirations comprising a series of demands framed by a bark painting – the Barunga statement – at the Barunga Festival in June 1988. Among the demands was a call for the Commonwealth Parliament to negotiate a treaty or compact ‘recognising prior ownership, continued occupation and sovereignty and affirming our human rights’ (Tickner, 2001: 40-41; Broome, 2010: 272). Hawke promised that a treaty would be negotiated between Aboriginal people and the Government by the middle of 1990 and that the Government would fund a consultation process and the first part of the process would be for Aboriginal people to decide what they would like included in the treaty (Aboriginal treaty by ‘mid-1990’, 1988: 3).

Opposition Leader John Howard said it is ‘… an absurd proposition for a nation to make a treaty with some of its citizens’. Howard stated it would divide the Australian community and ‘spawn a form of apartheid’ and would increase hostility amongst white Australians towards Aboriginal people. The Opposition feared that a treaty could open the way for large land claims and a separate sovereign Aboriginal state within Australia. Further the Opposition believed that ‘symbolic gestures’ would do nothing to ‘heal the rift’ between Aboriginal people and the rest of Australia and that instead genuine reconciliation would only be addressed by directing government financial resources towards basic needs (Scott, 1988: 1). 260

The idea of a treaty galvanised conservative political opposition causing Hawke to retreat and instead propose a more politically agreeable concept of reconciliation (Gunstone 2007: 25-26). In June 1991 the Australian Parliament unanimously passed legislation instituting a formal ten year process of reconciliation between Indigenous people and the Australian community (Gunstone, 2007: 1, 300). The reconciliation process was conducted through the Council for Aboriginal Reconciliation comprising Indigenous and non-Indigenous members. The aim was to promote reconciliation through education and awareness, seek an ongoing commitment from governments to address Indigenous disadvantage and aspirations, and to consult with the Australian community on whether to advance reconciliation by a formal document (House of Representatives Hansard, 1991, No. 178: 4498-4504).

According to Robert Tickner, who became Aboriginal Affairs Minister in April 1990, the political strategy to achieve change and elevate Indigenous aspirations lay in a reconciliation process to educate Australians about Indigenous issues and build a political movement to address Indigenous aspirations, human rights and social justice (Tickner, 2001: 29). However after ten years of the formal reconciliation process, the wider community had not become better educated about Indigenous issues, there was no significant improvement in the Indigenous socio-economic conditions and there was no document of reconciliation (Gunstone, 2007: 47). According to Gunstone reconciliation was focused within a nationalist framework with emphasis on a single national identity, culture and history thus marginalising issues important to Indigenous people (Gunstone, 2007: 146-158). Further justice for Indigenous people was limited to addressing Indigenous socio-economic disadvantage rather than encompassing a broader notion of justice that included issues such as treaty, sovereignty, self- determination, land rights and challenging the existing power relations (Gunstone, 2007: 302-303).

At the commencement of the formal reconciliation process the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) delivered its final report.62 The report

62 The RCIADIC investigated the over representation of Indigenous deaths in custody making 339 recommendations. The RCIADIC also looked in detail at issues of Indigenous poverty, inequality and 261 supported reconciliation and self-determination. In his overview report, Commissioner Elliott Johnston contended that understanding the dispossession and deliberate policies and practices of disempowerment of Aboriginal people based on the assumption of superiority and racist attitudes was important in understanding Indigenous disadvantage (Johnson, 1991a: 7-11). Commissioner Johnston saw the ‘extraordinary domination’ of Indigenous people by non-Indigenous people as the underlying cause of disadvantage and that disadvantage could only be eliminated by ending domination and empowering Indigenous people to control their lives and their communities. Commissioner Johnston affirmed the principle of self-determination particularly the desire and capacity of Aboriginal people to control their own lives and the importance of the broader society providing assistance to empower Aboriginal people and their communities in accordance with the principles of self-determination (Johnson, 1991a: 15-20).

The RCIADIC also recommended that political leaders use their ‘best endeavours’ to ensure bi-partisan public support for a process of reconciliation. Commissioner Johnston said steps needed to be taken to improve relations between Aboriginal and non-Aboriginal people because it was characterised by ‘distrust, enmity and disputation’. He said the process of reconciliation must ensure and recognise diversity of Aboriginal opinion and that all Australians needed to understand the country’s past and the treatment of Indigenous people. He also said the process should not place any pre-conditions on issues or agendas for discussion. Johnston said that negotiation based on ‘mutual respect and equality’ will advance reconciliation (Johnston, 1991b, Vol. 5).

Conclusion Even though the NACC and the NAC were advisory bodies to the Commonwealth Government there were many barriers that excluded Indigenous people from decision making and constitutional power. Colonial attitudes and ignorance within the DAA denied respect and recognition to Indigenous people and denied the voice of urban Indigenous people. Tensions with Indigenous people from traditional communities disadvantage in health, housing, education, employment and income and it made recommendations about reducing and eliminating disadvantage. 262 caused by the assertiveness of the NACC leadership were reinforced by the DAA who considered urban or mixed blood Indigenous people as being too assertive. In the DAA’s view, they were no more effective than a white person at mediating with traditional Aboriginal communities. Further when the NACC was reformed it had no real power or status because the Government inserted another advisory body (the Council for Aboriginal Development) between the NAC and the Government, thus reinforcing the relationship of subordination. There was a lack of respect and recognition of the NAC from state and Commonwealth governments and this undermined the legitimacy of the NAC.

The Makarrata treaty process was not a joint process of dialogue between the Federal Government, the NAC and the state governments based on recognition, respect, sharing and responsibility. Both the Commonwealth and state governments did not display respect for the NAC or for the views and opinions of Indigenous people. The Commonwealth Government’s position in regards to the sovereignty of Indigenous people was based on the ‘barbarian theory’ which I discuss in chapter 3. Although the Senate Standing Committee on Constitutional and Legal Affairs recommended negotiation of a ‘compact’ the Commonwealth Government considered it could not negotiate a treaty with Indigenous people. There was a distinct lack of commitment from the Government judging by its response to many of the issues raised by the NAC’s report on the Makarrata and its subsequent reluctance to play a leadership role in regards to matters where the states had responsibilities. Criticism and distrust by Indigenous people of the NAC because of its perceived lack of authority to represent Aboriginal people in negotiations with government made it all the more difficult despite the NAC’s strong stance in pursuing the Makarrata.

Although it had good intentions the Hawke Labor Government’s approach to national land rights is an example of how government policy approaches can undermine or dismiss Indigenous legitimacy; by not engaging Indigenous people as partners in the process, not being respectful of Indigenous people, not being open to Indigenous voices and lacking long term perspectives in developing a relationship with Indigenous people to find solutions to problems. Clyde Holding the Minister for Aboriginal Affairs preferred the technical advice of lawyers in drafting the legislation rather than the 263 advice of the Aboriginal Steering Committee. The Steering Committee had strict time frames imposed on them and they were expected to endorse proposals and responses produced by the lawyers and the DAA. The Government determined the process. It was neither inclusive nor collaborative; the Government’s approach was to draft the legislation and then provide it to the NAC to accept or reject. Terminating the NAC at a critical stage of the national land rights process is reflective of the underlying colonial relationship with Indigenous people.

The Commonwealth Government was balancing the rights and interests of Indigenous people with the interests of state and territory governments as well as the mining and pastoral industries. The Government did not mitigate any imbalances as a result of power differential, socio-economic status or privilege of the state and territory governments and industry groups. Indigenous people did not have an equal footing in the process. This became obvious when the Western Australian Government under pressure from industry groups not only opposed the recommendations of its own land rights inquiry but also opposed the Commonwealth’s national land rights proposal. In response the Commonwealth compromised its own principles on national land rights and subsequently abandoned its promise of national land rights using the negative campaign and misinformation of industry to justify its back down. In the conflict between Indigenous policy and Commonwealth-state relations the Commonwealth favoured the rights and interests of the Western Australian Labor Government over the rights and interests of Indigenous people.

The Commonwealth Government debacle with the NAC, the treaty and national land rights is a clear illustration of how the system of Australian government is unable to engage equally and respectfully with Indigenous claims for recognition and is also a reminder of the unequal status and lack of constitutional power that Indigenous people have in the systems of Australian constitutionalism. Indigenous claims for recognition are subject to the political whims of Australian federalism and the powerful interests of industry groups. The Hawke Labor Government moved to institute a process of reconciliation and created ATSIC as a representative Indigenous body but by then the social and political environment in Australia had been tainted, especially by the negativity and hostility of the national land rights and treaty debate. 264

Indigenous people had also lost any trust they might have had in the Australian government. Further judging by the celebration of Australia’s bicentenary the Government appeared to lack commitment to cultural pluralism in Australia.

The Mabo judgement which I discuss in the next chapter was handed down by the High Court in this social and political environment. The hostility and negativity in regards to national land rights and the treaty was still fresh in the Australian conscience thereby creating barriers to future engagement with Indigenous claims for recognition.

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CHAPTER 9: RECONCILIATION, MABO AND NATIVE TITLE

Introduction This chapter presents a story of dialogue and negotiation between Indigenous representatives and the Commonwealth Governments in 1992-93 as the government sought to legislate after the Mabo judgement. This is an in-depth story. That is because I was directly involved in the Indigenous response to the Commonwealth legislative process in a coordination role and was also directly and indirectly involved in the Indigenous processes leading up to the negotiations over the native title legislation. In this chapter I draw out the Indigenous experience and present Indigenous perspectives of the process to reveal how the responses of Indigenous representatives in 1992-93 were impeded by colonial assumptions about Indigenous people and their rights to land.

The recognition of Indigenous people’s dispossession and the need for reconciliation to repair and restore relationships influenced the Keating Government in its response to the Mabo judgement. This was made clear in Prime Minister Paul Keating’s speech at the Australian launch of the International Year of the World’s Indigenous People at Redfern Park in Sydney on 10 December 1992. In his speech, the Prime Minister said the starting point for justice was for non-Aboriginal Australians to recognise that the problem of dispossession and colonisation starts with white Australians. Australians had failed to make the most basic human response to Aboriginal people. Keating said the Mabo judgment was a ‘practical building block’ for change and was ‘the basis of a new relation between Indigenous and non-Indigenous Australians’ and there was nothing to fear or lose in the recognition of historical truths or the extension of social justice or indeed the inclusion of Indigenous people in Australian social democracy (Keating, 1992).

However subsequent public discussion about the Mabo judgement and native title became another reminder of the persistence of colonial assumptions and attitudes about Indigenous people and their rights. When Indigenous representatives sought a role in the Australian constitutional processes, it became clear that Australian politicians and the Australian public considered Indigenous people and their rights to 266 be inferior. Despite this, the native title legislative process was significant because it opened a space that allowed Indigenous representatives to participate in a constitutional dialogue and negotiation with the Commonwealth government.

Reconciliation and recognising native title

The anti-Mabo debate While initial public responses were supportive of Indigenous land rights, a full-scale attack on the High Court’s decision, the High Court itself and Indigenous people ensued. The hostile public arguments reflected ‘deep seated and emotionally charged racial fear and fantasies about Aboriginal people’ (Cowlishaw, 1995: 60-62).

In an address to the Foreign Correspondent Association, Chief Minister of the Northern Territory Marshall Perron said Aboriginal people were centuries behind in their cultural attitudes and aspirations. He said that they lacked hygiene, slept with dogs and did not want to live in houses (Hewett & Magazanik, 1993). Tim Fischer, Leader of the National Party, asserted on talk back radio that he was not going to apologise for ‘200 years of white progress in this country’ and he would fight the ‘guilt industry’ (Peake, 1993a: 3). In a speech to the NSW National Party Conference, Fischer said Aboriginal dispossession was inevitable because their sense of nationhood and infrastructure was not highly developed. He said ‘at no stage did Aboriginal civilisation develop substantial buildings, roadways or even a wheeled cart’ (Walker, Bita & Irving, 1993: 1- 2).

Historian Geoffrey Blainey argued that the Aboriginal way of life was bound to be overthrown because it supported so few people on so much land. He also argued Aboriginal people were being over compensated with more valuable land for the land they lost since 1788 (Blainey, 1993a). He feared that land rights would weaken the economy and the sovereignty of Australia (Blainey, 1993b: 15). Hugh Morgan, Managing Director of Western Mining Corporation, agreed. He criticised the Mabo decision for recognising ‘Aboriginal law as if it were the law of a foreign country’ and for leaving property law in a ‘state of disarray’. He said Aboriginal people had no agriculture and did not graze animals and their utensils, weapons and ornaments were crude. Further he said Aboriginal people had ‘… no written language, no sense of time 267 or history, no common spoken language and no political institutions which went beyond the life and boundaries of their many clans’ (Morgan, 1992: 4-6).

Other industry bodies were also hostile to Aboriginal land rights. The mining industry was only prepared to recognise ‘customary rights’ that did not amount to title in land. They also warned that if native title gave veto rights to Indigenous stakeholders, investors would go offshore. The Australian Mining Industry Council (AMIC) along with the Western Australian Chamber of Mines and Energy and the Association of Mining and Exploration Companies (AMEC) conducted a major campaign calling for validation of existing mining titles as well as identifying and limiting native title. They also called for amendments to the Commonwealth Racial Discrimination Act 1975 (RDA) to prevent any past or future infringement on mining rights by Aboriginal interests (Gill, 1993a; Ewing, 1994:18).63 The National Farmers Federation (NFF) called for government legislation to validate all pastoral and agricultural titles already issued. However, the Western Australian Farmers Federation and the Pastoralists and Graziers Association of Western Australia took a more hard-line approach, by supporting Premier Richard Court’s legislative response to the Mabo decision (Humphries & Irving, 1993: 1-2).

As Markus pointed out, public discourse like this strove to protect vested interests (Markus, 1996: 99). He identifies five prominent themes in the discourse: (1) that devastating consequences would follow from the Mabo decision, including territorial dismemberment of the Australian continent; (2) that dispossession was always going to happen and that Aboriginal people should be grateful that the British arrived first; (3) that Aboriginal people were not a disadvantaged group but were privileged; (4) that the unelected High Court judges were embarking on a revolution and their politically driven decision was fatally flawed; and (5) that Aboriginal people are stone age, their civilisation is backward and such cultures are not strong enough to survive competition with powerful cultures (Markus, 1996: 88-92).

63 The RDA came into operation in 1975. It is important because it limits the Commonwealth’s capacity to pass legislation discriminating against anyone on the basis of race. 268

Federal response to Mabo These campaigns had a significant impact on the Commonwealth Government’s response. While the Government acknowledged the significance of the Mabo decision and of advancing reconciliation and establishing agreements with Indigenous people it focused on certainty in the land tenure system and on protecting and promoting national economic interests. The Government proposed the validation of all land titles that had been issued after 1975 and which might have otherwise been invalid because of the RDA. The proposed solution was for the states and territories to extinguish native title and for the Federal Government to compensate native title holders. The Government also outlined a tribunal system to identify the existence of native title and a land fund for those Indigenous people who did not benefit from Mabo (Commonwealth of Australia, 1992).

The Commonwealth Government initiated a consultative process that was directed by a Mabo Ministerial Committee comprising the Prime Minister and other key ministers supported by senior officials in the Department of Prime Minister and Cabinet. The Government consulted with state governments, the mining and pastoral industries, the Aboriginal and Torres Strait Islander Commission (ATSIC), the Council for Aboriginal Reconciliation and some Aboriginal land councils. The Council of Aboriginal Reconciliation received the Mabo decision as a challenge and an opportunity. The Council felt that tensions between competing interests could be resolved through the definition, recognition and negotiation of rights (Council for Aboriginal Reconciliation, 1993: 9-11). Patrick Dodson, Chair of the Reconciliation Council, said Indigenous people should be recognised as legitimate stakeholders with an opportunity to argue their case, comment on the options being put by government, and participate in meaningful negotiations (Council for Aboriginal Reconciliation, 1994: 52).

The ATSIC also called on the Commonwealth Government to maintain the integrity of the Mabo decision, to prevent further extinguishment of native title and to establish appropriate processes and legislation to negotiate the settlement of native title claims (Aboriginal & Torres Strait Islander Commission, 1993a). Lois O’Donoghue, ATSIC Chairperson, wrote to the Prime Minister advising of the need for a social justice component to compensate or provide land for dispossessed people who would not 269 benefit from native title. She was also concerned about state government action to validate land granted to non-Indigenous people after 1975 as well as possible amendments to the RDA in order to validate mining and other interests over land (Personal communication to Hon. P J Keating MP, Prime Minister, 22 March 1993).

Apprehensive about the vulnerability of native title to extinguishment, the Kimberley, Cape York, Central and Northern Land Councils wrote to the Prime Minister in October 1992 urging protection of existing native title rights but also seeking recognition of native title over national parks, reserves and vacant Crown land as well as appropriate resources to consult and represent native title holders (Personal communication to the Hon. Paul Keating MP, Prime Minister, 16 October 1992). The land councils raised these issues directly with government officials in Darwin in December 1992 (Northern Land Council, 1992). While the officials at the Darwin meeting listened to Indigenous concerns about protecting native title from state government action they appeared more interested in determining where native title existed and how it should be defined as well as validating existing land titles. It soon became clear that the so-called ‘consultation’ by government officials in Darwin was merely the government selling its policy position to the land councils.

In later meetings in Canberra with Aboriginal organisations, government officials felt national economic imperatives required the validation of all land titles that had been issued after 1975 and which might have otherwise been invalid. The Land councils and the Western Australian Aboriginal Legal Service wanted a proper consultation process with Indigenous people and a negotiation process between Indigenous people and government. They did not think that validating existing titles was as urgent as the mining industry made out because titles validly issued were safe (Canberra Mabo Discussions of KLC, NLC, CLC & CYLC, 31 March to 2 April 1993).

The Peace Plan When government officials completed their report, Indigenous representatives were invited to attend a meeting of the Ministerial Committee in Canberra.64 Not having

64 The Kimberley, Cape York, Central and Northern Land Councils, the New South Wales Aboriginal Land Council, the Western Australian Aboriginal Legal Service, ATSIC, Patrick Dodson and Mick Dodson, the newly appointed Aboriginal and Torres Strait Islander Social Justice Commissioner. 270 seen the report the Indigenous organisations were concerned it would be published before they had the opportunity to comment on it, so the four land councils and the Western Australian Aboriginal Legal Service proposed a meeting in Alice Springs on the 19-20 April 1993 to formulate a position to present to the Ministerial Committee. Other organisations such as New South Wales Land Council, Aboriginal Legal Rights Movement of South Australia and some prominent Aboriginal individuals were invited.

At the Alice Springs meeting, a statement of principles called the ‘Red Centre Statement’ was developed.65 The ‘Aboriginal Peace Plan’, presented by Indigenous representatives to the Prime Minister and Mabo Ministerial Committee in Canberra on 27 April 1993, was developed from this statement.66 The Peace Plan outlined eight key principles which the Government needed to accept and adopt. These principles included: recognition and protection of Indigenous rights; no extinguishment of Indigenous title but co-existence and revival; no extinguishment or impairment without Indigenous consent; a declaration of Indigenous title in reserves and other defined lands; a tribunal to recognise Indigenous land title; a long term settlement process for Indigenous benefit; security for sacred sites and heritage areas; and negotiation with Indigenous people for constitutional recognition (Rowse, 2000: 197). In exchange Indigenous people would accept validation of titles between 1975 and 1992 that might otherwise be invalid by virtue of the RDA. They would accept post 1975 titles on the condition that the Commonwealth Government and resource developers negotiated agreements with native title holders and, if no agreement could

65 It asserted the primary role of the Federal Government in relation to Indigenous rights including recognition of Indigenous rights both through legislation and in the Constitution; ensuring no extinguishment without consent; vesting Aboriginal title in Aboriginal reserves; and establishing a tribunal process and a settlement process. The Statement also sought negotiations and agreement with the Federal Government to manage and govern social, cultural and economic needs. In return Indigenous people would agree to validation of mining leases issued between 1975 and 1992 but agreement had to be reached with traditional land owners in regards to mining. 66 Indigenous representatives were: Mick Dodson - Aboriginal & Torres Strait islander Social Justice Commissioner; Lois O’Donoghue, George Mye, Gerhardt Pearson - ATSIC; Jean George, Noel Pearson - Cape York Land Council; Kunmanara Breaden, David Ross - ; Patrick Dodson, Wenten Rubuntja - Council for Aboriginal Reconciliation; John Watson, Peter Yu - Kimberley Land Council; Manual Ritchie, Danny Chapman - NSW Aboriginal Land Council; , John Ah Kit - Northern Land Council; Tauto Sansbury, Esther Williams - SA Aboriginal Legal Rights Movement; Getano Lui - Torres Strait Island Coordinating Council; Ted Wilkes, Robert Riley - WA Aboriginal Legal Service. Government representatives were: Paul Keating, Robert Tickner, Frank Walker, John Dawkins, Simon Crean, Ralph Willis, Duncan Kerr, Warren Snowden, Michael Lee, Sandy Hollway, Simon Balderstone. 271 be reached, a tribunal would have jurisdiction to determine the dispute (The Aboriginal Peace Plan, 1993: 8).

The Prime Minister said the meeting was historic. Senior Indigenous representatives at the meeting spoke of their law, history, culture, language, their attachment to country, the brutal dispossession of Indigenous people and their hope that that the government would provide justice. Younger Indigenous representatives presented and explained the principles of the Peace Plan advising the Prime Minister of their concerns the mining and pastoral industries would trick the Prime Minister into passing quick fix legislation and cautioning him not to dismiss or exclude Aboriginal people from the process (Notes of Mabo Ministerial Meeting, Cabinet Room, April 1993).

Patrick Dodson concluded that reconciliation would be rendered sterile if there was no Aboriginal participation to resolve some of the dilemmas facing the nation. The Prime Minister said the Government had no intention of selling out Indigenous people but it would be difficult to sell the deal because the Peace Plan was asking the Commonwealth to operate a land title system which is the business of the states under the Constitution. Nonetheless he believed there was a possibility of developing a regime that provided national consistency. But Government Ministers seemed preoccupied with identifying and determining the existence of native title and paying compensation for its extinguishment (Notes of Mabo Ministerial Meeting, Cabinet Room, April 1993).

Concern over Government position A smaller delegation of Indigenous representatives met with the Prime Minister and the Ministerial Committee in May 1993 to clarify issues because they were concerned about the position of the Ministerial Committee in regards to extinguishing native title and paying compensation. The delegation informed the Prime Minister that the Commonwealth had to take responsibility in relation to protecting, affirming and dealing with native title and to override the states in much the same way it had done in industrial relations, corporations law and equal opportunities and human rights. They also informed the Prime Minister that providing a right of consent to Indigenous land owners was not providing a superior right because it was no different to the

272 protection farmers in Western Australia, or wine growers and church goers in Victoria enjoyed (The Aboriginal Peace Plan, Points of clarification for meeting with Prime Minister and Ministerial Committee, May 1993).

The lack of Indigenous representation from Tasmania, Victoria and parts of Queensland moved the Indigenous organisations to organise a meeting in Adelaide in May 1993 to inform a wider group about recent developments and seek their involvement in the process. Delegates in Adelaide were concerned that the Commonwealth Government was focused on providing certainty to farmers, pastoralists and miners and that the Commonwealth could bypass the Indigenous organisations and work through ATSIC and the Council for Aboriginal Reconciliation, which were not regarded as representatives of Indigenous people. They also worried that the Prime Minister might leave the protection of native title to the states. The Adelaide meeting reaffirmed that Commonwealth legislation should not only deal with land tenure, but form part of a broader human rights package enshrining other Indigenous rights.

The Government’s principles Indigenous organisations began looking at drafting legislation but they were increasingly pulled into tighter Commonwealth timeframes. The work of their lawyers was eclipsed by the Commonwealth Government’s Mabo principles and its discussion paper for proposed legislation that became public in early May 1993 (Commonwealth of Australia, 1993a).67 Both Noel Pearson and Mick Dodson were forthright in their public criticism of the document implying that government were continuing the colonial legacy of dispossessing Aboriginal people (Brough, 1993: 1, 4; Chamberlin, 1993a).

The Commonwealth also supported Northern Territory government legislation to fast track development of the McArthur River mine by validating the mining leases and

67 These principles included: Identification of native title by a tribunal and protection of native title by co-existence and revival; Recognition of native title by Commonwealth, State and Territory laws; Validation of existing grants with the Commonwealth and States paying compensation, but maintaining the integrity of the RDA; Ensuring future grants are validly issued and subject to negotiation for the consent of native title holders but only where it is enjoyed by other title holders; Compensation to be paid to native titleholders when a grant is made over native title land; A social justice package to recognise past dispossession and commitment to reconciliation. 273 bypassing negotiation with the native title holders, a troubling indication of its attitude to Indigenous title. The Northern Land Council wrote to the Prime Minister expressing concern about extinguishment of native title by the Northern Territory legislation and Commonwealth support for that legislation (personal communication to Hon. Paul Keating, Prime Minister, 28 May 1993).68

When the Prime Minister sought agreement from the states and territories at the Council of Australian Governments (COAG) meeting in Melbourne on a number of core propositions, including allowing states to validate grants and the Commonwealth paying full compensation, the talks collapsed. There was resistance from Western Australia, Victoria and Tasmania which called for extinguishment of native title (Peake, 1993b: 1, 2; Peake, 1993c: 1, 2). The Prime Minister was disappointed that the states were reluctant to recognise the Mabo decision; however he said the Commonwealth would proceed to draft legislation dealing with native title (Keating, 1993a). He warned the states not to go it alone stating they had to accept native title as reality and accept a national approach (Keating, 1993b).

When Indigenous representatives met in Darwin in June 1993 to consider the outcome of the COAG meeting they heard the Prime Minister was looking for a statement of support that his Government’s principles met Indigenous needs. But Indigenous representatives criticised the Government’s handling of the McArthur River project. They were suspicious that the Prime Minister’s offer to the states and territories had ignored their position and were concerned that the Government had not initiated a process of negotiation with Indigenous people. In their view the Prime Minister appeared to respond narrowly to the Mabo decision rather than address the broader rights issues as set out in the Peace Plan. Representatives were also concerned that the Government’s 33 principles ignored broader rights claims, especially hunting, fishing and gathering rights. The Government had also appeared to back away from the issues of revival of native title, the right to consent, historical claims to land, and protection of sacred sites.

68 The Commonwealth later moved to legislate that the McArthur river mine grants did not extinguish native title. 274

Nevertheless, Indigenous representatives agreed that it was preferable to negotiate rather than litigate. To negotiate, however, they had to develop a national representative body that had the authority to speak for all Indigenous people. Although not entirely representative, for the sake of continuity it was agreed the representative structure of land councils and legal services already in place should continue until the planned national meeting in August.69 Despite their suspicions the Indigenous representatives wrote to the Prime Minister acknowledging his principled stand in dealing with the premiers and chief ministers. However they were concerned that communication, consultation and negotiation had appeared to diminish and that the five points in his letter to the premiers and chief ministers appeared to accept a narrow view of Mabo (personal communication to the Hon Paul J Keating MP, Prime Minister, 20 June 1993).

A minimalist approach By July 1993, Indigenous organisations began to see drafting instructions for a possible Commonwealth Bill that provided for the validation of past grants and acts, future grants and future dealings with native title, and a national native title tribunal. Indigenous representatives did not have formal discussions with government officials with regard to drafting the legislation although they felt the Government should have been negotiating with them; however they and their legal advisers were able to make representations to the Government through Phillip Toyne, who was the government’s special advisor on Mabo. He proved to be a useful conduit to the Government although he would later feel that his role was untenable.

With regard to the draft legislation, the Indigenous organisations felt that the principle of non-discrimination precluded native title from being treated differently. They argued that native title was being treated as a bundle of rights that did not amount to ownership and that regulation of native title could extinguish it. There was no provision for revival of lapsed native title or for the co-existence of native title with other titles. There was also concern that pastoral leases would extinguish native title. The cut-off date for validation of land grants which might have been invalid had been

69 Representative spokespersons included Noel Pearson, Mick Dodson, Esther Williams, Rob Riley and Peter Yu. 275 extended to 30 June 1993, the question of Indigenous consent was being ignored and there was no provision for negotiation of regional or local agreements. Finally, there was no social justice or reconciliation measure.70

In an address to the Press Club in Canberra, the Prime Minister said the Mabo judgment placed a great responsibility upon the nation and like the United States, New Zealand and Canada who faced up to their responsibilities, some aspects of Australian life had to be set right. He said the Commonwealth would set the benchmarks and would not accept the lowest common denominator or fail to establish national standards and mechanisms for dealing with native title. In his view the nub of the matter was to reconcile certainty about land tenure and the discharge of ‘deep obligations’ to Indigenous people (Keating, 1993c).

The Indigenous representatives were greatly encouraged by the Prime Minister’s public position but his words were not reflected in the draft legislation. In a letter to the Prime Minister the Victorian Aboriginal Legal Service, the Central Land Council, the Kimberley Land Council and the Northern Land Council stated that the draft legislation ‘assimilated’ and ‘castrated’ native title and advanced the vested interests of miners and pastoralists while doing nothing to protect Indigenous interests beyond the bare minimum required by law. They believed the draft legislation had even retreated from the 33 principles of the Government. They also implied that the government officials were running the show (personal communication to Hon. Paul Keating, Prime Minister, 26 July 1993). The Left faction of the Labor Party also recognised the possible flaws in the draft legislation and commented on the ‘boy fixers’ in the public service who wanted to ‘fix it up for industry’ (Labor left warns PM of flaws in Mabo law, 1993:2).

In late July, Federal Cabinet received a detailed briefing from government officials on the progress of the legislation and addressed a number of issues, primarily extinguishment, compensation, right of consent, and the tribunal. Cabinet only agreed to a ‘right to negotiate’ not to consent (Dateline SBS, 28 July 1993). The Government was of the view that native title was extinguished by freehold, tourist leases and

70 The Indigenous organisation position was taken from a number of internal discussion and position papers produced by the Indigenous organisations. 276 pastoral leases, except where there were reservations in favour of Indigenous people but not by mining leases, minor licences and permits. Cabinet agreed the Commonwealth would allow states to operate their own tribunals provided the state satisfactorily validated titles between 1975 and 1993 and providing the state tribunal complied with Commonwealth standards. However the Commonwealth government could override the decision of the tribunal in the national interest. The Government would also proceed with social justice initiatives to advance the process of reconciliation (Tickner, 1993).

The Indigenous organisations felt that Indigenous people should not have to prove the existence or nature of their title particularly to those areas where it would most likely exist, such as vacant crown land, crown land allocated for conservation reserves and national parks, land vested for the benefit of Indigenous people, offshore areas and rivers as well as pastoral lease land. The role of the tribunal should be to determine the extent to which native title had been impaired by a grant or act of government.

The Eva Valley Statement In order to develop a national Indigenous position, ATSIC and the Council for Aboriginal Reconciliation sponsored a three day national meeting at Manyallaluk on country in the Northern Territory in August 1993. Over 400 Indigenous people attended. While many people supported the Peace Plan principles there were concerns that many people had not heard of them. The advanced position of the Government was troubling for Indigenous people at the meeting because many did not understand the Mabo decision and they had not been part of the process initiated by the Government. Some people argued that the government was using certain Indigenous organisations as though they were representative of Indigenous people. A position was finally agreed on after people methodically worked through the principles of what became known as the ‘Eva Valley Statement’. The outcome of the meeting was total rejection of the draft Commonwealth legislation and formation of a new

277 representative body called the Eva Valley Working Group to act as a negotiating team (Notes of Manyallaluk Meeting, 3-5 August 1993).71

The main thrust of the Eva Valley Statement (Mansell, 1993a: 6) was that the Commonwealth had to honour its obligations under international human rights instruments and international law. The Commonwealth also had to agree to a negotiating process to set national standards and pass legislation with the full and free consent of Indigenous peoples to advance Indigenous rights to land and to make redress for the impact of dispossession. Further the Commonwealth had to respond to the Mabo decision in accordance with five principles:

 Recognition and protection of Indigenous rights  Acknowledgement that Indigenous title cannot be extinguished by grants of other interests  Ensuring that interests cannot be granted over Indigenous title without the informed consent of all title holders  Declaring Indigenous title in reserves and other lands  Providing security for sacred sites and heritage areas.

At the press conference after the meeting Galarrwuy Yunupingu said the Prime Minister had undermined the reconciliation process. Mick Dodson the Aboriginal and Torres Strait Islander Social Justice Commissioner said the Government had not bothered to talk with Aboriginal people, had not negotiated and did not have Aboriginal consent (Scott, 1993a: 1, 2). The Prime Minister responded stating the Government had consulted widely and with goodwill with the Indigenous community. He said accusations of lack of consultation were untrue because he had met with about 30 members of the ‘Aboriginal community’. He also said it was untrue that the Government would not take into account Aboriginal views. He said if Aboriginal people seek justice and equity they must provide leaders that accepted responsibility and leadership (Keating, 1993d).

71 The members of this working group were: Peter Yu, Michael Mansell, Darryl Pearce, David Ross, Noel Pearson, Marcia Langton, Rob Riley, Sandra Saunders, Geoff Clark, Archie Barton, Danny Chapman, Manuel Ritchie, Phil Cooper, Billy Craigie, Terry O’Shane, Kaye Mundine, Barbara Flick, Isobelle Coe. 278

The Government wanted an outline of legislation by September and to present the Bill in parliament by October 1993. When Indigenous representatives handed a copy of the Eva Valley Statement to the Prime Minister in Canberra on 25 August the Prime Minister said if the Government pulled off the legislative scheme the settlement would be broader and deeper. For this to happen he had to get the state premiers signed up although he recognised he would not get all of them. Mick Dodson warned the Prime Minister that the legislation would not be great if Indigenous people were not happy with it (Notes of Meeting with Prime Minister, 25 August 1993).

The proposed legislation Indigenous representatives could see they were rapidly being overrun by the Government’s timetable so they turned their attention to having full time coordination in Canberra.72 On 2 September the Prime Minister released an outline of the proposed legislation and invited state and territory leaders to join the Commonwealth in a national approach. The Commonwealth Native Title Bill would recognise, protect and set standards for future dealings with native title. However to resolve ‘uncertainties’ it would validate Commonwealth, state and territory laws, acts and grants that happened before 1 July 1993 and this validation would go back to 1788. Validation carried with it extinguishment of native title by freehold and a wide category of leases. For future grants, tribunals would be established to decide native title claims and assist in resolving conflicting interests in land (Commonwealth of Australia, 1993b).

Indigenous organisations and ATSIC objected that the legislation gave states more power as native title tribunals would be loaded against Indigenous interests. They argued that not providing a right of consent and allowing for the extinguishment of native title was unacceptable. The Government had also failed to provide social justice measures (Sexton, Nason & Kennedy, 1993: 2). In a letter to the Attorney-General, Michael Lavarch, Mick Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, reported that the legislation failed to fulfil its own objectives, failed to appropriately recognise native title and failed to recognise the true character of the title and its connection with the spiritual and cultural fabric of Indigenous societies

72 I began work as full time Coordinator in Canberra in September 1993 having taken over from the Central Land Council employee who had been coordinating the representative group. 279

(personal communication to the Hon Michael Lavarch MP, Attorney-General, 22 September 1993). In an address to the National Press Club, Patrick Dodson said the proposals did not come close to providing justice or equality or attempting to bring forward reconciliation. He said more cooperation and a greater willingness by the nation to find a generosity of spirit was required (Gill, 1993b).

There was a further national Indigenous meeting in late September 1993 in Canberra to formulate a response to the proposed legislation, develop principles for a social justice package and consider the formation of a national Indigenous coordinating structure. But it was a tall order to have a diverse group of Indigenous people develop a detailed and unified position in such a short time because there were different understandings of the issues, different priorities and many people were very bitter about historical treatment of Aboriginal people – some perceived the proposed legislation as just another insult. Some Indigenous groups including the New South Wales Aboriginal Legal Service rejected the legislation outright arguing there should be no further negotiation with government (Coe, 1993).

The overwhelming response from the Canberra meeting was to reject the Commonwealth proposals on the legislation and walk away. This meant the Eva Valley Working Group could not negotiate any further with government. However, Indigenous groups could negotiate with government or assert their rights so long as they did not purport to represent the interest of other Indigenous groups (Anger as Government sells out over Mabo, 1993:3, 13).

Representatives of the main land councils, some legal services and other organisations were concerned about the decision of the national meeting. While they found the Government’s legislative proposal unacceptable they were not about to walk away from the process as they felt they had to protect the interests of their constituents. A coalition under the name of the Coalition of Aboriginal Organisations Working Party (Aboriginal Coalition) was established. The Government aimed to introduce legislation into Parliament on 18 October and to have the legislation operating by January 1994. Some Indigenous groups and the Council for Aboriginal Reconciliation asked for a delay but the Government believed any delay would only harden the stakeholder positions.

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Validation of Titles The outline of the Commonwealth legislation did not specifically say so but validation of past grants and acts of government between 1975 and 1993 would be done by overriding or suspending the RDA. The Commonwealth Government considered these grants and acts to be innocently issued or carried out because previous governments were not aware of the existence of native title. However because of the operation of the RDA from October 1975 onwards these titles were potentially invalid as the rights of native title holders had been ignored, they were not paid compensation and were not provided with a right of procedural fairness. Suspending the RDA to validate grants would withdraw the protection of the RDA for Indigenous people.

To the Indigenous organisations this was particularly abhorrent because not only was the Government proposing to take away the protection of the RDA just for Indigenous people, it was intending to carry out an act of racial discrimination in breach of Australia’s international obligations under the Convention on the Elimination of All Forms of Racial Discrimination. In fact the Indigenous organisations had provided a method for validation of post 1975 grants in the Peace Plan. The Indigenous method was based on a process of negotiation and co-existence of native title and other interests in land, not on sacrificing one interest in land to another (Dodson, 1993:19- 26). But governments and industry would not accept negotiation on validation because they believed it would be a lengthy process of case by case negotiation.

Support groups such as the Australian Council for Overseas Aid representing more than 90 non-government aid organisations picked up on the RDA issue urging the government to uphold the RDA (Media Release, Australian Council for Overseas Aid Denounces Racist Legislation 1993). ATSIC moved to seek political support from the Australian Democrats and Greens (WA) meeting with them in late September 1993. The parties released a joint statement to the media. They were concerned that the legislation should not be weakened any further to accommodate the states, that ATSIC’s proposals to strengthen the legislation should be accommodated and the social justice package had to be made explicit before the legislation was presented to the senate (Joint Media Release, ATSIC - Australian Democrats - Greens (WA), Mabo Statement, 1993). 281

In early October 1993, representatives of the Aboriginal Coalition signalled their intention to the Prime Minister to develop a position on the proposed legislation.73 Their focus would be on the Government’s plan to override the RDA to validate titles. The Aboriginal Coalition wanted to maintain the integrity of the RDA and they felt they had to provide an alternative method of validation. They preferred validation by negotiation where the title holder, government and the native title holder would negotiate reasonable terms and conditions for such validation including payment of compensation. If agreement could not be reached then the tribunal would arbitrate settlement.

The Aboriginal Coalition were concerned the Government appeared to think that its legislation was a just outcome for Indigenous people. They were also concerned that ATSIC had conceded a limited suspension of the RDA. In order to ensure a consistent approach the Aboriginal Coalition met with a number of ATSIC commissioners and officials. While the Aboriginal Coalition felt their arguments in relation to validation of grants post 1975 was lost, they wanted to go hard on subjecting the whole of the legislation to the RDA. ATSIC agreed to amend a number of their positions to accord with the Aboriginal Coalition view particularly in regards to opposing any suspension of the RDA.

The Aboriginal Coalition also drew up some principles relating to no suspension of the RDA, protection of native title through co-existence and right to control development and the inclusion of a social justice package in the legislation. The Aboriginal Coalition and ATSIC agreed to seek the support of the minor parties in the Senate, the Greens and Democrats for upfront validation. If the Prime Minister did not agree, then the Greens and Democrats would be asked to block the legislation. Pressure could also be applied to the Prime Minister through the ALP Caucus Committee on Aboriginal Affairs and Social Justice (Notes of Meeting with ATSIC, 5 October 1993).

When the Aboriginal Coalition and ATSIC representatives met with the Prime Minister they argued strongly against suspending the RDA. But the Government was

73 Membership of the Aboriginal Coalition comprised the Cape York Land Council, Central Land Council, Northern Land Council, Kimberley Land Council, New South Wales Land Council, Aboriginal Legal Service of WA, Aboriginal Legal Rights Movement of SA, and Tasmanian Aboriginal Centre. 282 determined. Frank Walker, the Special Minister of State said titles could not be validated without suspending the RDA and further said the Commonwealth, states and mining industry had advice that validation could not be done without suspending the RDA. The Prime Minister said he wanted the support of the states for the legislation and believed he would get all of them except Western Australia. If there was no ‘certainty’ he believed the states would pass their own legislation. The Prime Minister also indicated he was willing to seek support from the Liberal National opposition informing ATSIC and the Aboriginal Coalition representatives not to assume the support of the Greens (Notes of Meeting with Prime Minister, 5 October 1993).

After the meeting with ATSIC and the Prime Minister some of the organisations in the Aboriginal Coalition dropped out and only the land councils from the north continued with the coalition. With ATSIC, they continued the round of meetings and negotiations. They met with the Labor Party Aboriginal Affairs and Social Justice Caucus Committee who were concerned with the Government’s position indicating they had not seen the Governments legal advice on validation (Henzell, 1993).

Support from Greens and Democrats Both the Greens and the Australian Democrats were supportive of the ATSIC and Aboriginal Coalition approach, although the Greens offered reluctant support because they had instructions from Aboriginal people in Perth, Western Australia who were rejecting the legislation entirely. The Greens wanted something better than a minimum position. They stated they would only support the proposed legislation if there was no suspension of the RDA, coexistence of titles, Commonwealth tribunals and a social justice package (Notes of Meeting with Greens & Democrats, 5 October 1993).

When the Aboriginal Coalition, ATSIC, Greens and Democrats met with the Prime Minister, he confirmed that the Government had made a number of concessions to the states to get their support.74 These included state tribunals to decide native title claims

74 These included widening the definition of grants that extinguished native title to include industrial, commercial, farming, utilities, telecommunications and recreational leases, the validation date be extended to 30 June 1994, states courts to have authority to determine native title claims and the future grants process simplified (Groom, 1993). 283 and future land use and the states would accept the right of negotiation in regards to future grants of title and acts of government. It also included a ‘technical suspension’ of the RDA but rights of negotiation and compensation would be provided (Notes of Meeting with Prime Minister, 6 October 1993a). In a later meeting the Prime Minister tried to appease ATSIC and the Aboriginal Coalition in regards to their concerns about the legislation by going through the 21 points of their position indicating support for some, and possible movement on others; however the RDA validation and choice of either state or Commonwealth tribunal issues were still a problem (Notes of Meeting with Prime Minister, 6 October 1993b).

Philip Toyne, the Government’s own special advisor, was also deeply troubled believing the Government’s approach and process was deficient because it did not provide for direct Indigenous input to the ministerial committee and did not provide for a social justice package for those people who had been most dispossessed. He said the concept of validation by extinguishment was not justified on the High Court ruling (Personal communication to Hon. Frank Walker, Special Minister of State, 5 October 1993). Patrick Dodson threatened to quit his post as Chairman of the Council for Aboriginal Reconciliation because the integrity of the reconciliation process was being damaged. In his view the lack of strong central government was close to a betrayal of Aboriginal people and the actions by state governments were the closest thing he had seen to sedition. He said unless the Federal Government showed a greater degree of commitment to the reconciliation process it might as well wind up reconciliation (Forbes, 1993:3).

The Prime Minister attempted to placate Aboriginal Coalition representatives in a breakfast meeting at the Lodge to discuss a form of words for validation put forward by the Commonwealth and funding for non-statutory land councils including a statutory land fund.75 A lengthy meeting later took place between ATSIC, the Aboriginal Coalition and the Prime Minister and his advisers. But the Government still insisted on suspending the RDA to validate titles and on providing no choice between state and Commonwealth tribunals. The cut-off date for validation would also remain

75 The lodge is the official residence of the Prime Minister in Canberra, ACT. David Ross, Noel Pearson and Darryl Pearce attended this meeting. 284 at June 1993 and the category of leases that would extinguish native title would be extended to include public utilities, roads, and railway lines. However social justice measures would provide land and economic benefits to Indigenous people who would not directly benefit from the Mabo decision or whose native title had been impaired and extinguished. A statutory body would be set up by legislation to buy and manage land (Notes of Meeting with Prime Minister, 7 October 1993).

Black Friday and validating titles In a letter to the Prime Minister, ATSIC and the Aboriginal Coalition representatives said they wanted to maintain dialogue and would provide a more detailed response but there were major differences on a majority of the points and they regarded a number of issues as fundamentally unacceptable (Personal communication to the Hon P J Keating MP, 7 October 1993).76 Soon after, the Prime Minister went public saying the original outstanding issues between the Government and Indigenous representatives had been narrowed to three or four, however, he was concerned that two or three of the outstanding matters were incompatible with the position emerging in discussion with the states (Keating, 1993e).

This angered the Indigenous representatives. In an emotional press conference on so called ‘Black Friday’ Lois O’Donoghue, Mick Dodson and Noel Pearson said the Government was clearly indicating it was more interested in protecting state rights than Indigenous human rights. They informed the media the Prime Minister’s statement of only three or four issues of disagreement was wrong. In response the Prime Minister said he was ‘deeply disappointed’ stating he did not know why such bad faith was being shown by Aboriginal leaders and in another shot at the Aboriginal leadership he said he was ‘… not sure whether Indigenous leaders can ever psychologically make the change to decide to come into a process, be part of it and take the burden of responsibility that goes with it …’ (Chamberlin, 1993b: 1; Scott, 1993b: 1-2; Tingle, 1993a). Despite this insult, the Indigenous representatives informed

76 These included any suspension or impairment of the RDA; any restriction on native title holders/claimants to choose and Commonwealth or State Tribunal; any cut-off date later than June 1993; and any failure to provide a genuine opportunity to negotiate a fair outcome through arbitration after negotiations fail. 285 the Prime Minister that they were ready to continue talks with him (Personal communication to Hon. P J Keating, Prime Minister, 11 October 1993).

There were not ‘three or four’, but 19 outstanding issues on which agreement had not been reached (Notes of Telephone Conference, Coalition of Aboriginal Organisation & ATSIC, 10 October 1993). However, at this point, Indigenous lobbying efforts within the Labor Party began to pay off. Labor Party left and centre-left faction members began to privately and publicly raise their concerns about the Government’s plans. A coalition of organisations including the Australian Council of Trade Unions (ACTU), Australian Council of Social Service (ACOSS) and Australian Conservation Foundation (ACF) called on the Prime Minister not to suspend the RDA. A number of church groups, the Australian Council of Churches, the Uniting Church, the Religious Society of Friends and prominent Australians began to voice their concerns about the proposed legislation (Tickner 2001: 194).

Daryl Melham, Labor left member, sought a legal opinion indicating that the RDA did not have to be suspended to validate titles if the ‘special measures’ approach was used. Special measures are a form of affirmative action that is intended as temporary measures to relieve disadvantage.77 Melham was able to get the advice to the Prime Minister (Ramsey, 1993:33). The special measures approach was thereafter confirmed by the Attorney-General, Michael Lavarch and Minister of State, Frank Walker and government lawyers. Over the next couple of days the Prime Minister had a series of discussions with all major stakeholders.

When the Indigenous representatives met the Prime Minister on 14 October his attitude had changed. In a lengthy meeting the Prime Minster said he wanted Indigenous support for the legislation in order to secure the support of the Greens and Democrats. He conceded that it was possible under the RDA to construct a series of special measures to validate title and the Commonwealth would pay compensation. The Indigenous representatives and the Prime Minister then went through the outstanding issues. There were some matters the Prime Minister was not prepared to

77 Robert Tickner, Aboriginal and Torres Strait Islander Affairs Minister at the time states that the special measures approach was originally put forward by AMIC to the Government in early 1993 but reportedly raised again by two Sydney barristers who were consulted by Daryl Melham (Tickner, 2001: 193). 286 move on because in his view Cabinet would not accept them (Notes of Meeting with Prime Minister, 14 October 1993).

The next day the Indigenous representatives met government officials to discuss the detail and clarify matters, later meeting the Prime Minister and his advisers to continue negotiations on the remaining outstanding issues. There was broad agreement on most matters.78 Indigenous representatives believed that, with the resolution of a few key issues they could seek the support of Indigenous people for the Bill and negotiate with the Democrats and Greens for their support in the Senate. The Government would not agree on co-existence of native title and pastoral leases because the National Farmers Federation (NFF) wanted extinguishment and to subject the legislation to the RDA because they wanted to avoid High Court challenges to the legislation. The Prime Minister was confident he could get everything through Cabinet but needed the support of the pastoralists and farmers (Notes of Meeting with Prime Minister, 15 October 1993). The Greens were encouraged by the latest developments and the Democrats were supportive.

The Cabinet decision Federal Cabinet met on the evening of 18 October 1993 to consider the final shape of the legislation. Land council and ATSIC representatives were provided a room in the inner sanctum in Parliament House, across from the Prime Minister’s office. During breaks in the cabinet meeting the Prime Minister spoke to the Indigenous representatives a number of times advising on what was happening. Cabinet would not agree on co-existence of native title with pastoral leases. However they did agree that pastoral leases issued between 1975 and 1993 would extinguish native title but preserve reservations in favour of Aboriginal people. Also where native title could be proved Aboriginal owned pastoral leases could be converted to native title. The issue

78 There was agreement on the government’s position in relation to: Crown ownership of minerals, Extension of negotiation time limits, Negotiation rights for non-registered claimants, Commonwealth tribunal, Co-existence and mining leases, No sunset clause, Funding Indigenous organisations and Social Justice Package. There was no shift on principles but reluctant acceptance of the government’s position on: Override of tribunal decision and Validation cut-off date. Agreement was close on: Negotiation rights for all grants, Negotiation rights for compulsory acquisitions, No grants over native title unless over freehold and Special attachment and compensation. A few major issues were outstanding on: No suspension of RDA, No extinguishment by validation, Compensation for all past extinguishment, Choice of Commonwealth/State tribunals, Hunting, harvesting and fishing rights. 287 of co-existence of all other pastoral leases would be left to the common law to decide (Burton, 1993: 1, 10; Cole-Adams, 1993: 13; Tingle, 1993b; Tickner, 2001: 197-198). The Prime Minister put the proposal to Rick Farley of the NFF who agreed after being assured of extinguishment. Farley had gone out on a limb and felt it was the best possible deal for the NFF. The NFF’s support had given the Government’s legislation ‘vital legitimacy’ (Brown & Boden, 2012: 223-224)

In a press conference the next day dubbed ‘Ruby Tuesday’, Lois O’Donoghue called the cabinet decision historic and that a ‘remarkable settlement and historic agreement’ had been secured. She said a ‘new political voice has emerged’, a ‘new generation of Aboriginal leadership, speaking with the commitment of the past but with the language of today’ (ATSIC, 1993b, Scott, 1993c:14). The Prime Minister talked up the outcome calling the legislation ‘a new deal between Indigenous and non-Indigenous Australians’, paying tribute to the Aboriginal leadership under Lois O’Donoghue because they were able to work out where Aboriginal interests ‘truly lie’ and offset them against the economic interests of the country. He paid tribute to officials from the Department of Prime Minister and Cabinet and thanked those ‘state premiers who could see something bigger and something better’ and who tried to see what could be done to meet Commonwealth, state and Indigenous interests (Keating, 1993f).

The Victorian Government supported Cabinet’s resolution whereas the premiers of New South Wales, Queensland, South Australia, Tasmania and the Chief Minister of the Northern Territory gave cautious support. Premier Richard Court of Western Australia rejected the Commonwealth’s final position stating Western Australia would proceed with its own legislation (Cautious support in all but the west, 1993: 14). The Federal Opposition also rejected the draft Bill. Opposition leader John Hewson stated that there was a huge cloud of uncertainty over pastoral leases plus other problems with the Bill, including the right to negotiate which would become a veto on development, the costs of compensation and the issue of legal assistance to claimants (Scott, 1993d: 1,2).

Rick Farley of the NFF said farm organisations had given their support to the legislative package and he urged the Federal Opposition to ignore the stance of Richard Court

288 and to negotiate with the Federal Government. He also urged state governments to take a constructive approach to the legislation (Rural groups urging new negotiations, 1993:14). The Queensland Mining Council complained that the Federal Government discriminated against miners because mining leases did not extinguish native title. The Western Australian Chamber of Mines and Energy said critical elements of the legislation were unworkable (Decision 'the basis of discrimination', 1993:14).

Indigenous reaction to the cabinet decision was mixed. Michael Mansell commented that the outcome revealed that Aboriginal land interests would always be subordinate to white interests (Mansell, 1993b). Chairperson of the Council for Aboriginal Reconciliation, Patrick Dodson expressed the same sentiments stating the legislation subordinated native title to all other interests. He was also concerned that state definition and control of native title without an explicit recognition of its cultural base may see the death of native title rights (Personal communication to D A Hollway, Deputy Secretary, Department of Prime Minister and Cabinet, 11 November 1993). Rob Riley was concerned about extinguishment of native title on pastoral leases and did not think that it was a step forward for reconciliation because reconciliation had to be based on a proper recognition of Aboriginal rights (Dixon & Freeman-Greene, 1993: 19). Isabelle Coe said the legislation did nothing for people in New South Wales and people on the eastern seaboard and the people meeting with the Prime Minister did not speak for Wuradjuri people (Dixon & Freeman-Greene, 1993: 19). Ray Robinson, the President of the National Aboriginal and Islander Legal Service, said the Indigenous representatives had no mandate and were dealing away the future of Aboriginal people (Willox & Magazanik, 1993: 3). Paul Coe said no one had authority to negotiate and the apparent ‘closed doors conspiracy’ between the Prime Minister and the Indigenous representatives denied natural justice and self-determination to Aboriginal people (Taylor, & Nason, 1993: 6).

Within days of the cabinet decision there was a cooling of relations between the group of land councils who had been negotiating with the Government and the other Indigenous organisations who had initially been part of the process. While the Indigenous representatives were accused of selling out Indigenous interests they felt they had a duty to their constituents to negotiate and they were only speaking for 289 their constituents. Their assessment was that the overall general reaction from the Indigenous community was positive.

A modicum of justice The Government moved quickly to draft the Bill and the focus of the Indigenous representatives turned to informing Indigenous people and supporters of the outcome of the negotiations, clarifying certain issues with the Government, providing an input into the drafting process and seeking support from the Australian Greens and Australian Democrats in the Senate. The basic framework of the legislation had almost been resolved and the process focused more on the technical development of the Bill and commenting on its drafting. An issue of concern to Aboriginal organisations in Western Australia was that the Court Government would try to issue as many grants as possible before the cut-off date for validation and would also try to validate unlawful acts and grants. Rick Farley thought it still technically possible to test for native title on validly issued pastoral leases. He urged Indigenous representatives to publicly state there was little point in pursuing native title rights on validly issued pastoral leases (Notes of Meeting with Rick Farley, 20 October 1993). As the Wik case had already been filed in court, Indigenous representatives agreed (Tingle & Jinman, 1993).

To facilitate the passage of the Bill, the Indigenous representatives publicly agreed that the Government had met their key demands and they also sought the support of the minor parties in the senate. While the Democrats felt the government arrived at a ‘reasoned position’ which provided for the interest of Indigenous people and ensured certainty over land titles (Kernot, 1993) the Greens reserved their support of the Bill. Their support would depend on what was in the legislation and its impact on the ground (Notes of Meeting with Australian Greens, 20 October 1993). They wanted to ensure that Aboriginal people were better off under the proposals (Willox & Magazanik, 1993:3). Some final matters were dealt with in a meeting with the Prime Minister in early November.

The introduction of the Land (Titles and Traditional Usage) Bill into the Western Australian (WA) Parliament in early November 1993 brought a sense of urgency to getting the proposed Commonwealth legislation through Parliament. The WA

290 legislation extinguished native title and replaced it with a lesser right of ‘traditional usage’. Early advice to the Indigenous representatives was that it would be found to be invalid. In a door stop interview, the Prime Minister said Premier Richard Court was ‘contemplating the most unconscionable extinguishment of private land titles in this country’s history’ and the Commonwealth would assert its primacy ‘without fear or favour’ (Keating, 1993g).

The Native Title Bill was introduced into the House of Representatives on 16 November 1993. In his second reading speech the Prime Minister said ‘a modicum of justice’ was being offered to Indigenous Australians. The nation was taking ‘… a major step towards a new and better relationship between Aboriginal and non-Aboriginal Australians’. The Prime Minister said that the negotiation process in developing the Bill had extended the frontier of mutual understanding in which a great deal was learnt about each other and about how to work together (House of Representatives Official Hansard, 1993, No. 190: 2877-2883).

The Senate Process The Aboriginal Alliance emerged to extract further amendments in the senate process. It comprised the New South Wales Land Council, the Aboriginal Provisional Government (APG), the Tasmanian Aboriginal Centre, the Victorian Aboriginal Legal Service and the Aboriginal Legal Service of Western Australia. They wrote to the Prime Minister commending his strong personal stand but they felt the legislation had to be further altered to ensure that it did not discriminate against Aboriginal people; did not restrict the capacity of the common law to develop its recognition of Aboriginal rights over time; and did not allow the states to interfere with the existence or development of common law Aboriginal rights in a manner adverse to Aboriginal people. The Aboriginal Alliance believed the Indigenous representatives in the Aboriginal Coalition had become too close to the Government (Personal communication to Hon. Paul J Keating, Prime Minister, 12 November 1993). With the emergence of two different Indigenous groups seeking a better deal in the Senate, the Indigenous representatives who had negotiated with Government were dubbed the ‘A Team’ and the Aboriginal Alliance, the ‘B Team’.

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Indigenous representatives began considering amendments to the Bill in the Senate through the Greens and Democrats. But the Greens were reluctant to support the Bill in its present form and wanted the legislation examined by a senate select committee (Chamarette, 1993). The Aboriginal Coalition thought the Greens’ stance on the Bill was misguided and a threat to Indigenous people. It was also inconsistent with the position of the Aboriginal Legal Service of Western Australia and the Kimberley Land Council who supported the passing of the Bill with amendments. However, because the Greens held the balance of power in the Senate, the Government agreed to refer the Native Title Bill to the Standing Committee on Legal and Constitutional Affairs.

The Government wanted the Native Title Bill through Parliament before the Christmas break but the Opposition and the Greens were threatening to delay it. The Greens believed the Bill re-asserted terra nullius by validating past discriminatory acts and by extinguishing native title. The call by the Green senators from Western Australia for more time and more consultation would bring an enormous amount of pressure to bear on them, especially from Aboriginal people in Western Australia because the premier Richard Court had rushed through state legislation to extinguish native title and replace it with rights of traditional usage. The Opposition said the Bill was ‘rotten to its core’, was against the national interests and would harm investment and threaten employment. They had resolved to oppose every amendment to the Bill, even to oppose those amendments that were supported by industry groups (Taylor, 1993: 2; Scott, 1993e: 13; Willox, 1993: 6).

The Aboriginal Alliance and the APG worked through the Greens to obtain amendments to the Bill. The Aboriginal Coalition and ATSIC also worked with the Democrats to obtain further amendments. However, to keep the Greens honest, the Aboriginal Coalition with assistance from Community Aid Abroad and the Australian Council of Churches brought six Western Australian Aboriginal representatives to Canberra.79 The Kimberley Land Council also brought a number of Kimberley Aboriginal

79 Those who were able to come to Canberra were: Frank Woods, Wheatbelt Aboriginal Corporation - Northam; Dean Collard, Manguri - Perth; Mike Hill, Lake Jasper Project - Busselton; Wayne Warner, Yamitji Land and Sea Council - Geraldton; Brian Samson, Western Desert Aboriginal Corporation - Port Hedland; Mary Attwood, Pilbara Land Council - Port Hedland. Those from the Kimberley region were: Ivan McPhee, Chairman Kimberley Land Council; Peter Yu, Executive Director, Kimberley Land council; 292 representatives to Canberra. The strategy was to apply as much pressure as possible to the Greens to secure their vote for the Bill.

In the Senate, the Opposition dragged the debate out by filibuster, debating the Bill clause by clause (Taylor & King, 1993). The Government sought an amendment for renewal or extension of pastoral leases and to provide perpetual rights to renew mining leases without negotiation with native title holders but it was voted down. Rick Farley of the NFF withdrew his support. He felt betrayed because the NFF had negotiated in good faith to develop a national approach to native title issues (Scott, 1993f: 1). An alternative amendment by the Democrats allowed for renewal, regrant or extension of pastoral, agricultural or residential leases without negotiation with native title holders but not for mining leases. This was accepted by the NFF, the Government and the Greens. The Government also moved a guillotine motion that was supported by the Greens and Democrats to end the Opposition’s filibustering.

When the Greens announced they would support the Bill stating they had won concessions and had achieved the best possible outcome for Aboriginal people the Senate debate was all but over (Scott, 1993g: 1). After more than 50 hours of debate the Bill passed in the Senate on the night of 21 December 1993 by a vote of 34 to 30. There was immediate applause and a standing ovation. The Opposition were motionless. When the Bill was returned to the House of Representatives the next morning the amendments were taken into consideration and the Bill was passed. The Prime Minister said it was appropriate that the last thing the Parliament did on the last sitting day of the International Year for the World’s Indigenous People was to pass the Native Title Bill. Opposition leader John Hewson said it was a day of shame for Australia and they were proud on behalf of all Australians to dissociate themselves from the legislation (House of Representatives Official Hansard, 1993, No. 191: 4541- 4546).

Robert Watson, Wanang Ngari Aboriginal Corporation - Derby; Eileen Torres, Mamabulanjin Aboriginal Corporation - Broome; Sam Butters, Ballingarri Aboriginal Corporation - Warmun; Pearl Gordon, Mindibungu Aboriginal Corporation – Billiluna. 293

Reconciliation and recognising native title: Discussion and Analysis

The assumptions Many of the colonial assumptions that underpinned the historical discourse about Aboriginal people and their rights came out in the public discussion about native title in 1992-93. These assumptions and attitudes refer to Aboriginal people being inferior, and having a ‘backward’ culture without any concept of land ownership. Cowlishaw argues that public discussion after the Mabo judgement attempted to bring back racial inequality as a normal part of Australian society (Cowlishaw, 1995: 43-63). Pearson argues that the persistence of legal Darwinism in public pronouncements of politicians after the Mabo decision showed how notions of social Darwinism had been deeply embedded in the property law of Australia and in the minds of people (Pearson, 1993: 77-78). Attwood discusses how historical discourses about Aboriginal people have formed the narrative of the Australian nation and still form the conventional truth of many Australians (Attwood, 1996: 103). In this narrative ‘Australians’ are the present – the possessors of the land representing progress and modernity – whereas Aboriginal people represent the old and the past, something which Europeans had left behind (Attwood, 1996: 102, 111).

The argument that native title and Aboriginal rights to land would undermine the Australian system of land law, threaten the interests and land titles of other Australians as well as threaten the national interest, sovereignty and Anglo identity of Australia is a familiar narrative. Attwood argues the Mabo judgement formed a new historical narrative about Australia that challenged and subverted the conventional Anglo Australian narrative of white progress by ending the historical silence about the Aboriginal pre-colonial and colonial past (Attwood, 1996: 116). Although there was no significant danger to commercial interests, the mining industry in particular was threatened by the Mabo decision. To influence government and to shape the Native Title Act the mining industry waged a propaganda campaign against native title employing tactical strategies that ‘… predicted industry crisis, the threat of job losses and declining investment, with disastrous consequences for the nation’ (Short, 2007: 866).

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Indigenous dealings with the Commonwealth Government also highlighted societal assumptions grounded in the notion of terra nullius and fears that native title would impair or dispossess other Australians of their rights in land. These fears are evidenced in the Native Title Act 1993. Chamarette one of the Greens senators involved in passing the Bill argues the objective and effect of native title legislation was to provide security to other existing stakeholders in land and even extend those tenures so that native title would not challenge those interests. She also argues the position of the Opposition Liberal-National Coalition was fundamentally based on terra nullius (Chamarette, 2000: 169-169). The Government, including its policy advisors, assumed that to prevent any challenge from native title they could restrict or extinguish it and pay native title holders financial compensation for the damage caused. But native title emanates from Indigenous culture and heritage. The assumption that Indigenous people would accept extinguishment of their culture and heritage merely extends the principle of terra nullius to contemporary relationships between Indigenous people and governments.

Colonial assumptions about Indigenous people perhaps played a role in the Government’s rejection of the political premise of the Aboriginal Peace Plan. Indigenous representatives felt that the Mabo decision could form the basis of a post- colonial settlement between Indigenous people and governments. But a post-colonial settlement is dependent upon recognising and accepting Indigenous people as equals and it is also reliant upon respect, sharing of power and acting responsibly towards Indigenous people. While some aspects of the legislative process recognised and respected Indigenous people, the overall approach and outcome of the Native Title Act confirmed the dispossession of Indigenous people by legally validating all past grants and acts of government. Further the Government treated native title as a land management issue to be integrated into the land law of Australia. Therefore the Native Title Act is ‘… a technical scheme of real estate law rather than a program for working towards new, post-colonial, political arrangements with Indigenous peoples’ (Russell, 2005: 310).

There is an assumption that Indigenous interests can be represented by Indigenous representative bodies particularly government created bodies. But Indigenous people 295 have never accepted government constituted bodies as their representatives nor do they accept that other Indigenous bodies can act on their behalf, as evidenced by the criticism directed at ATSIC and the land councils who negotiated with the Government. The Government needed an Indigenous interlocutor and in the case of the Native Title Act it found that in the group of land councils and ATSIC. While the land councils stressed they were only representing their constituency they were also wary of ATSIC’s status as a government created representative body. They felt ATSIC could not represent the interests of Indigenous land owners and native title holders. Had the group of land councils not asserted themselves into the process the Government would have negotiated with ATSIC.

Further when Indigenous groups engage in legislative processes, government and other stakeholders equate them with lobby groups similar to the mining, farming and pastoral industries, albeit a powerless lobby group. There is no recognition on the part of government that Indigenous people have their own sources of authority as a result of prior occupation and continuity of their nationhood and cultural identities or that Indigenous people have an equal and special constitutional status in Australia.

Challenging hegemony Settler colonialism and white hegemony framed the public discussion and the government’s response to the Mabo judgment. In the aftermath of the Mabo judgement Indigenous people were confronted with a hostile and racially charged public debate. They were also confronted with the power of governments and industry groups who aimed to extinguish native title or at least reduce native title to a right to hunt and gather in order to preserve British-Australian dominion over the Australian continent. The mining industry had spooked the Commonwealth Government into an extinguishment approach by talking up ‘uncertainty’ of mining titles. Some ambit native title claims by Indigenous groups were also not helpful but in the view of the Indigenous representatives these ambit claims were not serious propositions (Pearson, 1994: 6).

But the Mabo judgement had laid the basis for Australians to negotiate with Indigenous people on rights to land, rights to compensation and restitution and

296 jurisdictional rights (Pearson, 1993: 89). According to Mick Dodson, Indigenous Australians seek the power to have power, to be recognised as subjects of the law not its objects and to be creators of systems not just recipients of what the system delivers (Dodson, 1994: 71). The Aboriginal Peace Plan implied an equal and coexisting relationship as the basis for Indigenous claims for recognition and power. The proposition was that Indigenous people had something that the Australian nation needed – that is validation of uncertain titles. Among other demands the Peace Plan sought a role for Indigenous groups in the Commonwealth legislative process. But the Commonwealth Government would not entertain the political premise of the Peace Plan thereby denying Indigenous people political leverage. Rowse states that the Government regarded validation as not a matter for negotiation but a decision of the Commonwealth government and state and territory governments. On that basis native title was construed as nothing more than a property right that could be extinguished and compensated (Rowse, 2000: 197).

Indigenous representatives were asserting recognition of a legal right not a moral obligation on the part of government (Pearson, 1994: 8). They sought to defend the values, traditions and customs of Indigenous society on the basis of human rights and justice. These arguments are reflected in the Aboriginal Peace Plan which emphasised a long term settlement process with Indigenous people, constitutional recognition of Indigenous rights and co-existence of native title and other land titles. An emphasis on human rights is also seen in the Eva Valley Statement which urged the Commonwealth Government to set national standards in accordance with international human rights obligations and international law, including full and free consent of Indigenous people.

Indigenous organisations who participated in the Mabo government processes initially came together as a group of organisations who represented the land interests of their constituents. They were concerned to protect the recognised native title rights of Indigenous people and felt they had to engage the Commonwealth Government to do so. ATSIC was not involved in their initial meetings. However as the Commonwealth Government began to impose its approach and process to dealing with the Mabo judgement, the group of organisations saw the need to widen their representative status and this would later involve a cooperative partnership with ATSIC. But it is 297 difficult to achieve genuine representation for all Indigenous peoples because it requires engaging with the Indigenous community in every step of the process to gain instructions (Dodson, 1994: 72).

The Government already had Indigenous interlocutors in the group of land councils and ATSIC although there were Indigenous people who were not represented by any organisations. From the Government’s perspective ATSIC was the national Indigenous representative. But ATSIC was a government created entity and was an advisor to government on Indigenous policy. It was part of the Governments Inter-Departmental Committee. However it acted as the representative of Indigenous people in the negotiations with government. This, according to Paul Coe, provided the appearance that the Government had consulted and negotiated with Indigenous people and obtained their endorsement (Coe, 1994: 38-39).

The Indigenous representatives were criticised by Indigenous people for negotiating with government because they were not considered representative and there was a perception they had been co-opted. However negotiation was an obvious outcome of Indigenous involvement in the process. It would not have been prudent or politically strategic for the Indigenous representatives to withdraw from the process on the eve of the Government settling the outline and content of the legislation. In many respects they became locked into government process and this was critical for the Government in bringing its native title legislation to fruition. While the Government had dictated much of the consultative process and the model for the legislation Indigenous representatives asserted their right for negotiating status.

Relationships of respect Respect and recognition in a dialogue requires mutuality. Both parties accept each other as equal having a co-existing relationship and also having a mutual public attitude of respect towards each other. There is no relationship of mutual recognition and respect between Aboriginal people and government in Australia. Although there is symbolic recognition of Aboriginal people as prior occupiers, this recognition has its basis in moral atonement. This lack of recognition and respect was evident in the public discourse about native title and Indigenous people, in the way government

298 responded to the Mabo judgement and also in the Commonwealth Government’s response to the Aboriginal Peace Plan and the Eva Valley Statement.

Initially the Indigenous representatives were not taken seriously in the government’s legislative decision making process. They were only included and taken seriously after the ‘Black Friday’ challenge. But Prime Minister Keating’s Redfern Park speech in December 1992 had created the foundation for Indigenous inclusion. Keating recognised that the Mabo judgement was an opportunity to make peace with Aboriginal people and native title provided the cornerstone for the ‘settlement of colonial grievance’ (Pearson, 2009: 206-207). Keating’s willingness to meet and negotiate directly with Indigenous representatives created the political space for dialogue and negotiation. Keating’s recognition of Indigenous people was not based on recognition of Indigenous nationhood or any constitutional right of Indigenous people, however his moral and inclusive approach enabled the Indigenous representatives to play an active role in the negotiated outcome. Despite early problems in the relationship, Indigenous representatives grew to respect the Prime Minister for his strong stance. This is in direct contrast to how Prime Minister John Howard treated Indigenous representatives during the amendments to the Native Title Act in 1996-97 after the Wik High Court judgment, when they were excluded from the government and constitutional process.80

The executive director of the NFF, Rick Farley was a positive force in the process. Farley had ‘gone out on a limb’ and provided legitimacy to the Government’s legislation. Although criticised by sections of the NFF constituency he was able to rise above the politics of the debate (Brown & Boden, 2012: 223-225). Farley was a member of the Council for Aboriginal Reconciliation and sought to balance the interests of his rural constituency with a commitment to reconciliation thus enabling the NFF to remain in the negotiating process (Tickner, 2001: 91. 196). While some Indigenous representatives had indirect relations with Rick Farley there was respect from the Indigenous representatives for Rick Farley and the NFF for its constructive approach.

80 (1996) 187 CLR 1. 299

The role played by Phillip Toyne the government advisor in linking the Indigenous voice into the government process was also constructive and his decent and respectful approach engendered respect from the Indigenous representatives. Left and centre left factions of the parliamentary Labor Party supported the Indigenous negotiating strategy building a relationship of respect. Although relations were often strained with the Greens there was a relationship of respect between the Greens and the Aboriginal Coalition and the respectful relationships also extended to the Democrats and the Aboriginal Alliance. But the same could not be said of the government officials who drove an extinguishment agenda in regards to native title. The officials set the government agenda and had direct access to the Prime Minister. What troubled the Indigenous representatives was the conflict between the Prime Minister’s public statement of Mabo being an opportunity and a basis for reconciliation and his bureaucratic advisors’ interest in achieving ‘certainty’ for industry and state and territory governments.

Level and type of dialogue The Mabo judgement along with a number of other factors such as the emphasis on treaty, land rights, self-determination, Indigenous national representation and reconciliation opened up a unique opportunity for Indigenous people to engage in the kind of constitutional dialogue and negotiation that Tully advances as a means by which Indigenous people can achieve cultural recognition. But initial government consultations with Indigenous organisations were not true dialogue spaces because the Government had already developed a policy position before it consulted with Indigenous people and sought only to sell its solution.

Whilst there was dialogue and negotiation between the Prime Minister and the Indigenous representatives involving elements of recognition, respect, listening and humanity, it was a process that relied on the goodwill of the Prime Minister. It was not a post-colonial dialogue of mutual recognition nor was it a dialogue of reflection in which government would examine its underlying assumptions about Indigenous people and respond with a different political approach. The Government’s approach was driven by its assumption that economic and other land interests had to be protected from the impact of native title. It was also a dialogue with the Australian 300 population conducted through the media on the basis of reconciliation and justice. Public support was vital in putting pressure on the government to respect Indigenous human rights.

‘Black Friday’ was pivotal for Indigenous representatives as they called the Government to account over its approach in the legislative process and asserted their right to be heard and to be taken seriously. The Government was confronted with the choice of continuing in the same direction and risking Indigenous opposition to the legislation or negotiating with Indigenous representatives to get the legislation through parliament (Tickner, 2001: 190). The Indigenous organisations highlighted the collusion between governments and the willingness of the states and the Commonwealth Government to suspend the RDA to validate land titles and in the process extinguish native title. By interfering with Indigenous property rights in this way the Indigenous representatives argued that the Government’s approach was an act of racial discrimination. According to Pearson this consequence seemed to have been lost on state and Commonwealth governments even though Australia abides by the International Covenant on the Elimination of all Forms of Racial Discrimination. He argues the approach of the Indigenous representatives was to call on the Australian population to ensure politicians did not sacrifice human rights protection for political imperatives (Pearson, 1994: 5). This strategy had some impact.

Efforts were made to engage a broader group of Indigenous people in the process especially through the two national meetings to build Indigenous alliance and consensus. Indigenous representatives also sought to engage others particularly church groups and the Australian public in support of their negotiation with government and in shaping the public discourse. This included engaging the parliamentary Labor Party through members of the left and centre-left faction. But the majority of Indigenous people were disenfranchised from the process. There were numerous calls by the Indigenous organisations for the Government to provide resources to enable Indigenous people to fully participate in the process but the Government saw no need to develop a wide consultative program or commit resources to a Mabo information program for Indigenous people or for the general population. It is common tactic of government to keep consultations as narrow as 301 possible and to only consult with ‘Aboriginal leaders’ who in this case were primarily the ‘A-team’ (Short, 2007: 868) and also ATSIC.

Outcome of encounters The overall outcome of the negotiation fell far short of what the Indigenous representatives wanted. The Native Title Act was a political compromise that accorded with the political weight of the interested parties and in that regard the outcome was more about advancement of commercial titles rather than protection of native title (Short, 2007: 868-870). Indigenous representatives had to concede a number of points in negotiation. However Indigenous aspiration and Indigenous leadership gained prominence ‘… unmatched in any of the other English-settler countries’ at that time (Russell, 2005: 304).

Given the enormous power of industry and the state and territory governments as well as the power of Commonwealth officials in driving government policy the Indigenous representatives were forced into a political struggle to protect native title. However the passing of the Native Title Act was considered a victory for Indigenous people at the time. According to Rowse the Act goes beyond mere ‘validation’ because it deals with the Mabo decision as something more than a threat to Australia’s land tenure system. The Act repudiates the Hawke Government’s decision in 1986 that Indigenous land rights were a matter for the states; and by not suspending the RDA the legislation sustains Indigenous common law rights which were under threat (Rowse, 1994: 131). On the basis of what happened Rowse’s opinion has relevance.

Even though outcomes for Indigenous people under the Native Title Act have been somewhat disappointing and the High Court has since misinterpreted the definition of native title and ‘fundamentally misapplied the law’ (Pearson, 2009: 100-132), the Indigenous leadership secured a place in Australian constitutional processes. Procedures and precedents were created by which Indigenous Australians can be included in constitutional processes. The downside is that this procedure and precedent is not recognised in law or conventions and relies on the grace and goodwill of the Prime Minister or parliamentarians. This gives credence to the argument that

302 the politics of recognition does not significantly modify colonial relationships (Coulthard, 2007; Lange, 2013).

Lessons and trends The politics surrounding the recognition of native title was unable to transform the colonial relationship in Australia. Negative assumptions and attitudes about Indigenous people are still prevalent. In 1992, after more than 204 years, the response of settler Australians to the Mabo judgement was to treat native title and Indigenous rights as a threat. In his Redfern park speech, Prime Minister Keating attempted to focus Australians on the impact of dispossession on Indigenous people and their failure to make the ‘most basic human response’ to Indigenous people. In his leadership role he tried to create an environment in which Australians would confront these issues and examine their attitudes and opinions. However the racially charged debate ultimately trumped the Prime Minister’s good will. The lesson here is that settler colonialism continues and this is evidenced in the attitudes, assumptions and practices of Australians and their institutions of constitutionalism. What continues to drive these negative assumptions and attitudes is the failure to acknowledge historical as well as contemporary truths about wrong doing and injustice. This failure is reflected in the denial of injustice against Indigenous people, the projection of fears resulting in claims of Indigenous greed, privilege and illegality as well as perceptions of Indigenous people as the enemy of the nation (Chamarette, 2000: 170-171).

There is a greater fear for settler colonial states and that is the fear of Indigenous people asserting their sovereignty against the state when their cultural survival is threatened or when they make claims for recognition. Settler colonialism continues today because according to Wolfe ‘… its operations are not dependent on the presence or absence of formal state institutions or functionaries’ (Wolfe, 2006: 393). Today settler colonialism manifests itself through ‘mercantilism or neoliberal private-public partnerships’ (Preston, 2013: 44). In private-public partnerships the state colludes with global capitalism in a multitude of ways to structure and manage contemporary social and economic life, particularly securing land and resources while strategically managing Indigenous people to ensure they do not threaten resource development projects (Preston, 2013: 49). The validation provision of the Native Title Act and the 303 absence of a right of veto for Indigenous people over future development guarantees the inequality of power between Indigenous people and the mining industry (Short, 2007: 868-869). It also reflects settler colonial expansionism through private-public collusion given the influence of the mining industries propaganda campaign on the government and its successful outcome in forcing the government to take a validation and extinguishment approach in respect to native title.

Winning a High Court case can gain important recognition of rights for Indigenous people however the value of the decision depends on how others respond to Indigenous claims. Parliament, politicians and government officials respond according to the assumptions and attitudes of industry and the broader Australian population. If industry views Indigenous rights as a threat and the Australian population are in denial, apathetic or perceives that Indigenous people are privileged, the government will act accordingly. This is clear in how government responded to the Mabo judgement. While Indigenous people forced a space for dialogue, that space did not endure because of the absence of constitutional practices or conventions in Australia that provide recognition for Indigenous people to assert their claims or to share power in Australia. Therefore Indigenous people asserting their rights are seen as just another stakeholder interest. Further the constitutional system is not inclined to accommodate pluralism, to respect and value Indigenous voices, or to suspend prejudicial or colonial assumptions.

The Mabo judgement developed new insights in regards to inherent Indigenous rights and the importance of negotiated outcomes between Indigenous representatives and the Commonwealth government. But even that dialogue process showed that, while many politicians are supportive of Indigenous rights, in reality they serve the institution and traditions of Australian constitutionalism which has largely resisted and discredited Indigenous claims for recognition. They are also inclined to find policy and legal solutions within a liberal nationalist approach which accords with what is acceptable to the dominant Australian population. According to Mick Dodson, real change in the situation of Indigenous people requires a fundamental shift in the structure of power which will allow Indigenous peoples to regain control over their lives (Dodson 1994: 68). There is a positive correlation between Indigenous people 304 resuming responsibility for their societies and the wellbeing of the members of those societies (Russell, 2005: 337).

Conclusion In 1993 Indigenous representatives secured a political place in the Australian constitutional system that afforded them a measure of recognition and respect to engage in dialogue and negotiations with Prime Minister Paul Keating and his government. This place in the Australian constitutional system has not been replicated at such a scale since. In that regard it was historic. However the political space only existed because of the goodwill of the Prime Minister. There are no conventions or recognised practices in the Australian system of government that recognise a constitutional stake in policy making and power sharing for Indigenous people. The Mabo judgement contradicted Liberal principles of uniformity and equal treatment to provide some justice to Indigenous people; however the ongoing challenge is to find ‘ways of going beyond the exclusion or assimilation of difference, up to and including Aboriginal self-determination’ (Patton, 1995: 92). In the next chapter I conclude this thesis by analysing whether dialogue is useful in negotiating Indigenous rights.

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CHAPTER 10: DIALOGUE, LIMITATIONS AND THE FUTURE

Introduction My thesis has held a mirror to contemporary Australian attitudes and assumptions about Indigenous people to show where these assumptions originate and how they have constrained or created barriers to dialogue. History has been significant in shaping assumptions and attitudes about Indigenous people. These assumptions and attitudes are still being regurgitated in contemporary public and political discussions. The colonial relationship between Australian governments and Indigenous people is ongoing. This relationship needs to be dismantled. To do so however requires different practices and processes that emphasise dialogue and confront the underlying assumptions that non-Indigenous Australians have about Indigenous people.

Important and sensitive issues will need to be confronted to transform the existing colonial relationship between Indigenous people and the Australian state. Genuine dialogue must address past injustices and work out ways in which Indigenous people and the Australian state can associate in the future.

This chapter pulls together my analysis with regards to the question of whether dialogue is useful in negotiating Indigenous rights. It looks at the purpose of dialogue particularly with regards to Indigenous claims for recognition. It also examines how Indigenous people have attempted dialogue with the state, the limitations of dialogue, the conditions of dialogue and what needs to be addressed in the future.

Dialogue and Indigenous people In chapter one of this thesis I refer to a meeting at ‘Blue Hole’ in Purnululu National Park in the Kimberley region of Western Australia as an example of the importance of dialogue and its relevance to transforming the existing colonial relationship between Indigenous and non-Indigenous people. At this meeting, Richard Court, Premier of Western Australia, confirmed his government would draft legislation to extinguish native title. The way in which Premier Richard Court communicated with Aboriginal people at that meeting and thereafter typifies the way in which governments have treated Aboriginal people or dealt with their concerns throughout history.

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When the Kimberley Land Council (KLC) finished their meeting at Blue Hole, representatives from other Kimberley Aboriginal organisations began arriving in preparation for a meeting with Richard Court on 30 July 1993. I was at this meeting and as part of the preparation a mock meeting was held with the Aboriginal groups where Peter Yu of the Kimberley Land Council acted the role of the Premier. Yu had obviously read the Premier because the similarities between his answers to questions from the audience and the answers of Premier Court in the real meeting later on were uncanny. For Yu, however, it was not hard to imitate the Premier because he had seen and heard it all before – in particular when Sir Charles Court, Richard Court’s father, was premier of Western Australia. Peter Yu was the first field officer for the KLC, which was launched at Noonkanbah Station. In 1979, Sir Charles Court used the power of the state to crush the opposition of the Noonkanbah Aboriginal community against the Amax mining company who were drilling for oil on the Station (Hawke & Gallagher, 1989).

Premier Court had attended the Blue Hole meeting to inform Aboriginal people in the Kimberley that his government was drafting legislation to validate existing land titles and extinguish native title. During the meeting he was asked a range of questions of concern to Kimberley Aboriginal people ranging from recognising Aboriginal rights to land, management of national parks, access to pastoral leases and negotiations over implementation of the Mabo judgement. Court’s responses to the questions were unsatisfactory. John Watson – chairman of the KLC at the time and chair of the meeting – sat listening to Court and became increasingly frustrated at the Premier’s responses. After allowing the Premier a reasonable opportunity to talk, he rose from his seat, walked over to Court and took the microphone from his hand. Watson said the Premier was not recognising nor accepting the Mabo judgement and so he called the meeting to an end.

Richard Court’s contribution to the meeting was minimal and he offered nothing in terms of building a relationship or developing an ongoing process of discussion and negotiation with Aboriginal people to resolve issues of concern. This was not dialogue; nor was it debate, discussion, or even consultation with Aboriginal people. It was the state telling Aboriginal people that native title rights would not be recognised and that 307 the government would impose its own solution in relation to what it regarded as a problem for the state. This response is a typical example of how governments traditionally treat Indigenous claims as we have seen in the case studies discussed in this thesis. The normative response for Australian governments is to ignore, dismiss, challenge, undermine or reinterpret such claims or – like Premier Court – simply oppose the idea that Indigenous people have any legitimate grounds on which to press claims.

There has never been a practice or culture of dialogue on the part of government in regards to Indigenous rights in Australia. Australian governments have no formal relationship with Indigenous people or any constitutional process for dealing with Indigenous claims. Indigenous people are generally forced to make legal and political claims against the state as well as use other strategies involving conflict and resistance to force government to consider their claims or listen to their perspectives. Governments deal with Indigenous claims within and through a constitutional system that has been imposed upon Indigenous people whilst simultaneously very deliberately excluding them. By its very nature, this system precludes any possibility of dialogue with Indigenous people.

While Australian constitutionalism has accorded limited recognition to Indigenous rights over the last two centuries it has not been able to address Indigenous political aspirations or adequately deal with claims for cultural rights. This is because the recognition of Indigenous rights is constrained by the traditions, language and practices of Australian constitutionalism which is based on principles that enforce uniformity in identity of citizens and treats citizens equally and the same. The assimilation policy which I discuss in the case studies is an example of this practice. Further however, colonisation of Indigenous people has created persistent and deep seated assumptions about Indigenous people and their culture which have denied Indigenous humanity. The limited recognition that Indigenous people have achieved to date is because Indigenous people with the support of sympathetic Australians have asserted their rights thereby challenging the traditions and practices of Australian constitutionalism. The Australian state has no way of understanding or recognising Indigenous difference or engaging with Indigenous people other than through the 308 traditions and practices of Liberalism and the colonial assumptions about Indigenous people. The limitations of Australian constitutionalism and the ingrained assumptions about Indigenous people create intractable conflict involving tough challenges and wicked problems. Dialogue can provide a pathway for resolving intercultural conflict and for decolonising colonial relationships.

I emphasise the theoretical approach of William Isaacs (1999) and David Bohm (1996) and also James Tully (1995) in applying the theory and practice of dialogue to the situation of Indigenous people in Australia. The approach of Isaacs and Bohm emphasises facilitated group dialogue as the method by which people examine their underlying patterns of thoughts and open themselves to the views and opinions of others. Such a dialogue emphasises mutual understanding between participants or parties involved in processes of communication. The Isaac and Bohm approach to group dialogue focuses on understanding the views and opinions of others by learning about your own thinking whereas the approach of Tully focuses on creating intercultural political dialogue that recognises the political and cultural rights of Indigenous people and accommodating that difference within the nation by way of negotiation.

In the Isaacs and Bohm approach mutual understanding is achieved through a process of dialogue where participants become more conscious of their own thinking and begin to understand the thinking of others. Transforming thinking within a group of people involves individuals controlling their reflex responses and suspending – rather than defending – their opinions in order to listen to what other people have to say. The idea is to step back and use self-perception in order to observe and experience one’s own thoughts and feelings in the dialogic process. When individuals understand their thoughts and feelings they are better able to transform them. This approach to dialogue is suited to facilitated small group discussion between conflicting parties and in that regard is also applicable to the situation of continuing conflict between Indigenous people and governments in Australia.

The literature on dialogue discusses inter-cultural dialogue, however it does not adequately address the situation of Indigenous people who live within settler nation

309 states and who seek cultural and political recognition within the state. Therefore the approach of Tully is relevant because Indigenous claims for recognition are not just about transforming thinking in society but also resolving historical grievances and claims for cultural and political recognition within the nation state. Indigenous claims for justice are political because they challenge the beliefs and practices of the nation state which emphasise cultural and political uniformity. Indigenous claims have to be made within the accepted norms and language of state institutions and are adjudicated and interpreted by criteria as determined by those institutions. They are usually considered subordinate to the interests of the state.

Indigenous attempts at participation or engagement in the systems of Australian constitutionalism cannot be considered dialogue per se because Indigenous claims for recognition are made within a constitutional system that ignores, excludes, discredits or redefines their claims. Both the language of constitutionalism and its institutions have historically excluded or demeaned Indigenous people and their cultural or political rights. Indigenous efforts at dialogue in Australia have been constrained by a framework that subordinates their humanity and their rights. The traditions and conventions of parliaments, the courts, bureaucracy and systems of authority have reinforced this framework and have not been able to respond in ways that remove injustice and positively recognise Indigenous difference.

Indigenous people have not only contested laws and policies of governments that have denied their rights but have also struggled against the beliefs, assumptions and norms of settler Australian society that have sought to destroy or assimilate Indigenous culture and exclude Indigenous rights. Therefore Indigenous people’s engagement with governments in Australia has always been unequal. This unequal standing has excluded Indigenous people from having a voice in the constitutional system. In that regard achieving mutual understanding through dialogue is not simply about transforming the thinking of individuals or groups in Australian society to change dominant assumptions about Indigenous people. Dialogue also needs to create change in the traditions and practices of the institutions of the Australian state. There is a need for the institutions of the state to move beyond the existing limits to incorporate recognition of and respect for Indigenous people and their rights. 310

While dialogue is useful in bringing people with conflicting views together to build common understanding it is not necessarily useful or meaningful to Indigenous Australians in pursuing their rights. To be meaningful, dialogue must address Indigenous claims for recognition and it must transform the existing relationship between Indigenous people and governments. This entails a political process to deconstruct the existing relationship and to create a vision and framework for mutual recognition and political association into the future. To that end, dialogue in Australia should focus on creating mutual understanding between Indigenous people and government that encourages recognition of and respect for Indigenous people. This means thinking positively about Indigenous cultural and political difference, appreciating that difference and creating new ways of understanding and incorporating that difference within the political institutions of the nation.

Dialogue has a particular purpose for Indigenous people because they seek recognition of cultural and political rights. In that regard dialogue is an important method of engagement that can be adopted to shape public recognition of Indigenous people and their rights. Genuine recognition requires understanding ‘the other’ on their own terms and reflecting on policies and practices in terms of how they impact on the other. In Australia this requires non-Indigenous Australians to reflect upon and understand their assumptions about Indigenous people. It means recognising and valuing Indigenous difference within Australian society and ensuring that recognition is reflected in the institutions of Australian constitutionalism.

Indigenous people must jointly own the dialogic process. It is hardly dialogue if one party determines the process, imposes the rules, criteria or language of engagement, does not value the views and opinions of others, attempts to speak for the other, or uses the discussion to achieve its own objectives. Further, as we saw in chapter two, dialogue as the means to recognising Indigenous claims is not a perfect process. The politics of recognition has been criticised for reproducing the unequal position of Indigenous people and thereby reinforcing the prevailing legal, social and moral order. Indigenous people need to find their own transformative practices in their struggle and this includes countering the prevailing order of colonialism as well as finding new ways of talking with governments, institutions and the public about justice and freedom. 311

The limits of dialogue in Australia Throughout history Indigenous people have challenged and engaged the Australian state to create a dialogic space in which to resolve their grievances against government policies and practices and resolve their claims for recognition. However these forms of engagement cannot properly be described as dialogue because Indigenous attempts at engaging on an equal basis with government have been contested, ignored or demeaned. Whilst in some instances their struggles have opened up the political and constitutional system for change and while Indigenous people have made small gains, they have not always been successful in achieving their objectives.

In many respects dialogue between Indigenous people and the Australian state is limited by settler colonialism. Veracini argues that in the settler colonial mentality the very presence of Indigenous people is unsettling and hence acknowledging Indigenous sovereignty is even more so because settler colonialism is characterized by ‘Indigenous deterritorialisation’ and a ‘sustained denial of any state-making capability for Indigenous people’ therefore any negotiation of sovereignty must happen within the polity of the settler state and this can result in the erasure of Indigenous sovereignty (Veracini, 2010: 105, 108-109, 114-115) . He further argues there is no narrative or imagination in regards to reconciliation and conceptualising the decolonisation of settler colonial forms therefore the narrative of settler ‘progress’ and Indigenous displacement, dispossession or erasure remains the paradigm for settler-Indigenous relations (Veracini, 2010: 99, 101, 108-109, 112-113, 115).

There is no narrative in Australia for decolonisation of the settler state and the recognition of Indigenous sovereignty. Despite this major limitation I examine the potential usefulness of dialogue in promoting and negotiating Indigenous rights in Australia and examine whether dialogue can be a useful tool for future negotiations. In that regard I review the historical cases discussed in this thesis according to the following questions:

1) How did Aboriginal people attempt dialogue and who with? 2) Were the conditions of dialogue met? 3) What were the limitations of dialogue?

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4) What needs to be addressed for potential future dialogue?

Indigenous attempts at dialogue Indigenous agency has been instrumental in challenging government policies and practices and creating the space for dialogue possibilities. To agitate their grievances or make claims for recognition Indigenous people have used conflict, resistance or subversion. They have also adapted their struggles to the social and political context, engaging with government within the terms of the policies in place at the time.

In the colonial era of the 1800s Indigenous people were not only considered inferior and deficient according to standards of white ‘civilisation’ they were also considered a doomed race that would die out. British humanitarian reformers recommended a system of protection; however protection became an elaborate system of control and oppression of Aboriginal people. Despite the harshness of the policy Aboriginal people in Coranderrk were able to assert their claim to land, highlight their grievances and challenge the policies of protection by showing that they were equal to any person in the colony of Victoria through their determination to achieve a level of self- management and self-sufficiency by farming the land.

Through protest and resistance, deputations and lobbying of politicians, as well as petitions, letter writing and providing evidence to the Parliamentary Royal Commission, Coranderrk people attempted to challenge the oppressive polices of protection through engaging in a dialogic relationship with government for retention of the reserve and for better conditions at Coranderrk. In doing so they were able to engage in dialogic relationships with some significant individuals within the system of government. Within these relationships people at Coranderrk were listened to and treated with respect even though colonial society at the time regarded Aboriginal people as inferior. Ultimately, though, power rested with the Aborigines Protection Board. The Board considered Coranderrk people inferior and their aspirations to become self-determining a threat, and so it continually undermined Aboriginal efforts at dialogic engagement.

The oppressive regime of the protection policy also sought to determine who was an ‘Aboriginal’ and whether they were entitled to citizenship rights. Any person with a 313 preponderance of Aboriginal blood was excluded from citizenship rights. On the other hand any person with mixed Aboriginal and European blood was usually not considered ‘Aboriginal’ and was excluded from state ‘protection’. In the late 1930s in New South Wales there were limited options for Aboriginal activists in demanding citizenship and land rights because the Aborigines Protection Board held enormous power and control over the lives of Aboriginal people. Despite this, activists such as Bill Ferguson, Jack Patten and others asserted the right of Aboriginal people to be treated equally. They appealed to the conscience of white Australians, challenging their views and asking them to reflect on the treatment of Aboriginal people under the protection policies.

These Aboriginal activists used the white Australian celebration of the 150th anniversary of the landing of the first fleet to stage a Day of Mourning conference in Sydney to highlight Aboriginal grievances against the policies of protection. During their campaign the Aboriginal activists forged relationships with other Australian political activists and used mainstream media, speeches, as well as the publication of an Aboriginal newspaper in attempts to create dialogue with the Australian public. They also developed and published an alternate Aboriginal policy to replace the protection policy. But their efforts at dialogue and their demands were largely ignored by the New South Wales Government. While Prime Minister Joe Lyon and the Commonwealth Minister for the Interior met with the activists – who presented their proposed national Aboriginal policy – the activists’ efforts at dialogue and change were thwarted by the Australian system of federalism because the states controlled Aboriginal affairs.

The difference between the experience and struggle of Aboriginal people under the policy of protection and the experience and privilege of white Australians is reflected in what happened on 26 January 1938 in Sydney. Aboriginal people staged a Day of Mourning whilst other Australians staged a celebration. There was significant difference between Aboriginal and white Australian perceptions and understanding of the meaning of the day, and this divide could not be bridged because of the assumptions, beliefs and practices of government and the public towards Aboriginal people. Surprisingly this difference and divide continues to be played out every year on 314 the 26 January, although Indigenous people now celebrate their survival while mainstream Australia celebrates the birth of the settler nation.

The policy of protection was considered to have failed by the late 1930s and so the Commonwealth Government initiated a policy of assimilation in the Northern Territory. State governments confirmed and accepted assimilation as a policy in the early 1950s. Assimilation assumed that all Aboriginal people would eventually transition from their ‘tribal’ or ‘detribalised’ life and live as white Australians in a homogenous Australian community. The policy of assimilation treated Aboriginal people as inferior beings with the status of underage minors and did not recognise Aboriginal culture or Aboriginal traditional rights to land.

In keeping with the assumptions of assimilation, in 1963 the Yolngu people in Arnhem Land in the Northern Territory were regarded as inferior and unintelligent. The Commonwealth, the Northern Territory Administration and the Methodist Mission Board did not consider it necessary to negotiate, consult or even engage with the Yolngu in regards to the development of a bauxite mine on their land. The Yolngu challenged the assimilation policy and the decisions of the Commonwealth Government by petitioning the Commonwealth Parliament, asserting their rights to their traditional lands while calling to account the actions of the welfare authorities and the federal minister.

The Yolngu agitated their grievances and their right to be heard by asserting their ownership of the land and the need to protect their country and their culture. Yolngu agency, including key relationships with significant others, enabled the Yolngu to engage in intelligent ways with politicians, the parliament and the Australian public to gain respect and present their claims and grievances. They secured a parliamentary select committee inquiry, which vindicated Yolngu grievances about the lack of explanation and consultation from government in regards to the mining project. It also enabled the Yolngu to highlight the deficiencies of the guardian-ward relationship – in accordance with which their lives were managed – and of the assimilation policy.

Although Yolngu were ultimately not successful in their protest and challenge, their struggle resonated with a new generation of Aboriginal activists who emerged in the 315 late 1960s and early 1970s in Sydney and elsewhere on the east coast of Australia. This new generation challenged the paternalistic and assimilationist policies of the Commonwealth Government by challenging parliamentary authority with an ingenious form of protest and resistance to bring attention to the lack of recognition of Aboriginal rights to land. At the time the Commonwealth Government believed that Aboriginal people had no legal or moral right to land and that any recognition of land ownership based on tradition amounted to separatism.

Setting up the Tent Embassy defied parliamentary authority and embarrassed the Government. It was also a method that the Aboriginal activists used to engage in dialogue with the Australian people. The activists were not seeking dialogue with government but with the Australian people – for recognition of Aboriginal land rights throughout Australia as well as compensation for dispossession. They used protest rallies, political speeches and mainstream media to publicise their claims. They also developed an alternate policy plan for Aboriginal land rights and self-determination. The activists’ actions threatened the authority of the government who passed legislation to evict the Embassy from the lawns of Parliament House.

Nuggett Coombs and the Council for Aboriginal Affairs attempted to open up avenues of dialogue between government and Aboriginal activists at the time but the Commonwealth Government was contemptuous. The Government’s attitude and actions exposed to the nation its inability and unwillingness to respect Aboriginal people and to recognise Aboriginal rights to land. The recognition and support particularly from the Australian public and the Australian National University student representative council demonstrates that when governments act in unjust ways and Australians are challenged in that regard, change is possible. The Aboriginal Embassy was eventually torn down by the Government but the protest caught the attention of Gough Whitlam, Leader of the Opposition Labor Party, who promised that a Labor government would recognise Aboriginal land rights in the Northern Territory.

The election of the Whitlam Government in December 1972 changed Aboriginal affairs policy and administration. The policy of assimilation was replaced with a policy of self- determination, which promoted Aboriginal self-management, self-reliance and tackling

316 social disadvantage. Aboriginal affairs became the responsibility of the national government and Aboriginal people were provided with advisory representative capacity in Aboriginal policy making at the national level through the NACC and NAC. Issues such as national land rights and a treaty would later emerge in the Aboriginal policy agenda. But the failure of the federal government in regards to those issues in the 1970s and 1980s would provide the impetus for a process of national reconciliation in the 1990s. Even then, there were lingering attitudes of paternalism and assimilation in government and there was opposition to the recognition of Aboriginal rights and political reconciliation with Aboriginal people within conservative politics in Australia. This would create ongoing uncertainties for Aboriginal people despite more than a decade of positive change.

When the High Court handed down its decision on the claim for native title by the Meriam people in June 1992, hostile and racially charged responses would dominate the public debate. For Indigenous leaders however, the Mabo judgement laid the basis for a post-colonial settlement. But the Commonwealth Government did not accept this premise, choosing to interpret native title as merely a land management issue for the states as opposed to a recognition of pre-existing rights to land. When the Commonwealth Government moved to legislate the court decision in 1993 it was influenced by an extinguishment approach to native title as the basis for protecting economic and private property interests. When Aboriginal leaders saw this approach gaining traction they sought dialogue and formal negotiation with the Prime Minister. The Prime Minister saw the Mabo decision as a moral challenge for the Parliament and the nation and he was open to dialogue and negotiation with Indigenous leaders. However the policy issues and framework for the negotiation were determined by the government. Nevertheless Prime Minister Paul Keating’s moral and inclusive approach accorded recognition and respect enabling Aboriginal land council representatives to play an active role in negotiations.

In the initial stages of the legislative process the Government merely consulted with Aboriginal representatives in order to pursue its agenda, thus ignoring the principles of the Aboriginal Peace Plan and the Eva Valley Statement. However as the Aboriginal representatives became more politically organised and aligned their approach with 317 that of the ATSIC they pursued a strategy of discussion and dialogue with the Prime Minister and government officials. This also included a dialogue with the Australian people appealing to their sense of justice and fairness.

The Aboriginal representatives used the mainstream media to appeal to the nation as well as to hold the government to account in regards to suspension of the Racial Discrimination Act. After the ‘Black Friday’ press conference the Government chose a negotiated outcome with Aboriginal representatives in order to secure passage of the legislation through parliament. The Aboriginal negotiators were criticised by other Aboriginal people for negotiating with government and for not being representative of Aboriginal people. But constitutional space was created for dialogue and negotiation enabling the Aboriginal representatives to assert their right to be heard and to be taken seriously within the law making process of the Australian Parliament.

Conditions of dialogue The purpose of intercultural dialogue is to engage across cultural differences by building mutual recognition and respect between parties, with the aim of reaching understanding and agreement through appropriate discussion and negotiation. In each of the case studies I have examined in this thesis there are instances where Aboriginal people engaged in discussion with governments and were accorded a limited form of recognition and respect.

Despite these instances of limited recognition and respect, I argue that the efforts of Indigenous people to engage with governments and the response by government to Indigenous claims over the course of history cannot properly be considered dialogue. For genuine dialogue to occur between governments and Aboriginal people a number of conditions must be fulfilled. Many of these conditions have been lacking in the historical encounters as outlined in the case studies. Indeed the historical context and the assumptions and attitudes that prevailed about Aboriginal people at those particular times in history explain why these historical encounters cannot be understood as dialogue. Negative assumptions and attitudes about Aboriginal people have accumulated over the years and have constrained or blocked efforts at dialogue,

318 although the negotiations in 1993 over the Native Title Act contained a number of elements of a genuine dialogue.

In determining what might amounts to a genuine dialogue between Indigenous people and government I have identified a number of conditions that are necessary for genuine dialogue (See Appendix 1). These are as follows:

 Behave and act responsibly towards each other to build trust.  Listen to others without resistance and remain open to their perspectives and realities.  Allow people to speak in their own voice and in their own way.  Suspend, not defend, assumptions about others and self-reflect to understand one’s own thinking.  Examine and interrogate attitudes and deeply held assumptions about others.  Embrace and recognise different values and beliefs and accommodate cultural diversity.  Recognise and respect the continuity of Indigenous cultures and identities.  Recognise that dialogue entails a right and freedom to speak out against injustice and oppression.  Historical truths are examined and reflected on in order to address past injustices.  Political and social leadership must endeavour to build relationships across existing cultural and political divides.  Power differences are acknowledged and addressed through checks and balances.  Solutions are not imposed by politicians, courts, theorists or bureaucratic advisors.  Coercion, blame, violence or enforcement of authority has no place in dialogue.

The purpose of a genuine intercultural dialogue in the Australian context could be to establish the political space for ongoing intercultural dialogue and to agree on guiding principles to create the framework for a new relationship. A genuine intercultural dialogue would aim to transform thinking and beliefs to ultimately transform traditions 319 and practices of Australian political and cultural institutions so that these might recognise and accommodate Indigenous difference. In order to recognise and respect Indigenous cultures and identities, it may consider possibilities for a distinct constitutional status for Indigenous people as is the case in other British settled countries. It may also address issues of Indigenous social and economic development examining models that embrace plurality and diversity. It should also take into account Indigenous knowledge and perspectives of development rather than perceiving Indigenous development as something to be achieved only by adopting or assimilating into Western ways. Importantly, an intercultural dialogue would lead to negotiation and agreement with Indigenous people, although outcomes would be open to review and revision. In that regard dialogue is ongoing and requires a long-term perspective.

In all of the case studies examined in this thesis Indigenous people fought for the freedom to speak out against and call into question injustice and oppression, even where governments would have preferred for Indigenous people to remain silent. This involved considerable effort and struggle on their part such as walking from Coranderrk to Melbourne to present their case to government or establishing a tent embassy to highlight their grievances to the world and so on. While they could speak out against injustice the system of Australian constitutionalism attempted to silence or discredit Aboriginal voices. The case studies show that Indigenous people found ways to speak in their own voices and to express themselves in their own way, even when governments made it clear that they expected Indigenous people to comply with the approaches and expectations of government. In all case studies except the 1993 negotiations over the Native Title Act none of the above conditions were satisfied in any significant way.

In the case of Coranderrk there were instances of political and social leadership attempting to build relationships, which resulted in action to investigate the conditions and management at Coranderrk. Whilst these investigations placed checks and balances on the power of the Aborigines Protection Board giving hope to people at Coranderrk, in the end little was done by government to implement the recommendations or curtail the power of the Protection Board.

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There were not many positive outcomes for the activists who staged the Day of Mourning protest and conference. Certainly social leadership from other Australians enabled the Aboriginal activists to build alliances and publicise their cause. At another level influential Australians such as Anglican minister and anthropologist, Adolphus Elkin, who I discuss in chapter five, questioned the authoritarian nature of the protection policy and its failure to protect Aboriginal people. These Australians also advocated that Aboriginal welfare should be a national responsibility. The protection policy – with its emphasis on absorption of Aboriginal people into white Australia – and the harsh practices of the Aborigines Protection Board were not conducive to dialogue.

The new policy of assimilation was also authoritarian and paternalistic as evidenced by the Yolngu protest in Arnhem Land in 1963 and the Aboriginal Tent Embassy protest in 1972. Whilst political leadership from opposition politicians and social leadership supported the Yolngu with their bark petition to the Commonwealth Parliament to secure a select committee inquiry, the colonial relationship between the Yolngu and government did not permit dialogical transformation. Similarly the Aboriginal activists who staged the Tent Embassy protest were supported in their struggle through the social leadership of other Australians even though political leadership from the government was lacking. Gough Whitlam, Leader of the Opposition Labor Party, as well as Nuggett Coombs and the Council for Aboriginal Affairs recognised the activists and their struggle. The Tent Embassy protest had a significant impact in changing thinking around Aboriginal rights to land and Aboriginal self-determination. This resulted in an ongoing dialogue with the subsequent governments of Prime Ministers Gough Whitlam, Malcom Fraser, Bob Hawke and Paul Keating.

The political leadership of successive federal governments in the 1970s, 1980s and 1990s in recognising Indigenous land rights, Indigenous cultural difference, Indigenous self-management and public policy discussions about a treaty paved the way for greater involvement of Indigenous people in the law making process after the Mabo judgment. This judgment recognised the continuity of Indigenous culture and identities. In his Redfern park speech of December 1992, Prime Minister Paul Keating attempted to examine historical truths seeing the Mabo judgment as opening up the 321 possibility of recognising Aboriginal cultural difference in Australian democracy. Paul Keating’s political leadership created the space and opportunity for Aboriginal representatives to negotiate with him and his government over the native title legislation. Keating was prepared to listen to Aboriginal people and his personal behaviour towards the Aboriginal negotiators was respectful and responsible.

However despite meeting a number of the abovementioned conditions for intercultural dialogue, the 1993 process fell short of what can be regarded as genuine dialogue. There was no dialogue with Aboriginal people in determining the policy framework because government advisors and politicians determined and imposed the policy solution and its approach. Nor was there any reflection by the Government on how it could approach the legislative recognition of native title much more positively rather than by treating the High Court’s recognition of Indigenous difference as a threat to non-Indigenous people. Negative historical assumptions about Aboriginal people that have driven government Aboriginal policy making in the past were still prevalent in 1993. Further, Aboriginal representatives had no recognised political and constitutional status in the negotiating process. They were regarded as another stakeholder group along with farmers and miners.

Limitations of dialogue In all of the instances of potential dialogue discussed in detail in the case studies there were limitations on what Aboriginal people could do and what they could achieve with regard to their claims for recognition. Throughout the thesis I have identified a number of underlying assumptions and attitudes about Aboriginal people that have served as barriers or constraints to communication and dialogue between Aboriginal people and government. These assumptions and attitudes have accumulated in various forms over the course of history and have largely dictated government policy towards Indigenous people. They have also influenced the way governments have responded to Indigenous claims for recognition.

These assumptions have their genesis in European theories and ideas of sovereignty, property and civil society. Long before Captain James Cook sailed up the east coast of Australia in 1770, European social and political theorists formulated rules on how

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European nations such as England, France, Holland, Spain and Portugal could lay claim to other territories, including the territory of Indigenous peoples. By the 18th Century these rules had become fairly well established among European nations and were reflected in international law and English common law. Territories that were uninhabited without any people could be possessed and colonised by the European ‘discoverer’, however for territories owned and occupied by Indigenous peoples rules were developed around the social, political and economic capacity of Indigenous people to determine whether a European nation could claim and occupy their territory.

In chapter three I examine how these rules and the surrounding discourse with regards to Indigenous people were applied in the colonisation of Australia. Most Indigenous peoples, including those in Australia, were considered inferior to Europeans because according to European ideas they had not progressed to the level of European civilisation. Europeans believed that many Indigenous peoples were not capable of having sovereignty or owning property. A discourse characterising Indigenous people as ‘barbarians’ or ‘savages’ developed around the rules for acquisition of Indigenous territory to justify European colonisation. This discourse was reflected in ideas of racial hierarchy, racial superiority and scientific racism supported by theories such as the great chain of being, phrenology, the stages theory of human development and Social Darwinism.

The descriptions and characterisations of Aboriginal people written by Captain James Cook and his colleague Joseph Banks in their journals appeared to fit the terms of international and English common law in regards to the acquisition of territory. For example Cook and Banks wrote that the Australian continent was sparsely populated and that Aboriginal people had no houses nor had any form of settled habitation, had no idea of trade, and did not cultivate the land. They also wrote that Aboriginal people lacked defensive capabilities. The writings of Cook and Banks were influential in the decision by the British Government to occupy the Australian continent and to establish a penal colony. Under British common law New South Wales was classified as ‘desert and uncultivated’ even though it was inhabited by Aboriginal people. On that basis it could be acquired by settlement and colonised without due regard to the rights of the 323

Aboriginal inhabitants. The equivalent doctrine at international law is terra nullius, which applied to territory where people were regarded as having no rights in land and no sovereignty.

The British treated New South Wales as terra nullius, which effectively negated the sovereign status of Indigenous people. A clear barrier to dialogue in colonial Australia was the false assumption that Indigenous people were so ‘backward’ or ‘barbarous’ that they lacked a system of law and government and so had no rights in land or sovereignty over land. The assumptions that Indigenous people had no settled law, no forms of government, no ordered society and therefore no rights of ownership of land and no sovereignty became part of the beliefs, policies and laws of the new British- Australian colony. The doctrine that New South Wales was ‘desert and uncultivated’ was applied in the legal discourse of Australian courts up until the 1992 Mabo judgment. Although the Mabo judgment overturned the colonial assumption that Indigenous people had no rights in land, Australian courts still deny Indigenous sovereignty.

Indigenous people were not recognised as having any rights or independent status in the new British-Australian colonies. On that basis it was considered not necessary to recognise or respect Aboriginal people, or engage in dialogue or negotiate with them. In the colonial frontier of Australia, Indigenous people were treated as obstacles to European progress. This was recognised by the House of Commons Select Committee on Aborigines in 1837 who argued that Britain had obligations to protect Aboriginal people in its colonies. In colonial Australia the prevailing view was that Aboriginal people were incapable of progress or elevation to ‘civilisation’. Therefore due to their so-called ‘backwardness’ and the cruelty and oppression of Europeans in the colonies Aboriginal people would die out as they came into contact with Europeans. Aboriginal people were subsequently placed on reserves for their protection and where they would also be uplifted into ‘civilisation’.

In reality though government policy was not about protection because its ultimate aim was to ensure the disappearance of Indigenous people and consequently the reduction of state expenditure on Indigenous people by moving mixed blood people off reserve

324 stations and closing those reserves. Under these circumstances there was no possibility of colonial governments having an intercultural and dialogic relationship with Indigenous people. Indeed the policy and practices of the Aborigines Protection Board in colonial Victoria were not conducive to any form of dialogue. The Protection Board failed to recognise and respect Aboriginal people. It was a relationship of disrespect because the Protection Board wilfully set out to undermine the aspirations and struggles of Coranderrk people. Attempts at dialogue with government in challenging the Protection Board policy ultimately failed because the colonial assumptions and attitudes that deemed Aboriginal people as inferior were very much a part of the institutions of government.

These assumptions about Aboriginal people would continue to influence Aboriginal policy in the new Australian Commonwealth where state governments controlled Aboriginal Affairs. When Jack Patten, Bill Ferguson, William Cooper and others staged the Day of Mourning Conference in January 1938, Aboriginal people were considered ‘backward’ and inferior, not ‘civilised’ enough to be citizens or capable of making progress towards ‘civilisation’. These assumptions about Aboriginal people were barriers to any form of dialogic relationship with government. Commonwealth and state laws and practices excluded Aboriginal people from the benefits of citizenship. New South Wales government policy was directed at dispersing a growing population of mixed blood Aboriginal people from the reserves to remove government financial support from these people, reduce government expenditure on reserves and to absorb mixed blood Aboriginal people into the white population.

The assumption that Aboriginal people were culturally inferior, would die out or could be readily absorbed into the white population, demeaned and excluded Aboriginal people from being recognised as people and as citizens. Government policy and practice reinforced the lack of recognition and respect for Aboriginal people. Under these circumstances dialogue was impossible because governments were not open to recognising Aboriginal people, to understanding their perspectives and realities or embracing Aboriginal people as citizens of Australia. There was no possibility of listening to and recognising the claims of the Day of Mourning activists for citizenship

325 and land rights because the nation was in denial in regards to the negative impact of colonisation and subsequent government policies upon Aboriginal people.

The assumption of Aboriginal cultural inferiority and the belief that Aboriginal people had no ‘civilised’ society or rights of ownership in land were ingrained into the assimilation policy of the Commonwealth Government. The assimilation policy was paternalistic and placed the Yolngu people in Arnhem Land in a relationship of guardianship similar to that of wards of the state. As such, the Yolngu were treated as though they were children – incapable of understanding their situation, of making decisions about their needs, wellbeing and future, or of being responsible for their lives. On that basis there was no possibility of dialogue between the Yolngu and the Commonwealth Government. The Government did not consider it necessary to consult or engage with the Yolngu over the bauxite mining project on their land. While the Yolngu tried to speak in their voice and in their way they were not recognised, respected or heard. Indeed it was assumed the mining development would benefit the Yolngu and would assist their transition into mainstream society.

The Yolngu challenged the decision of the Government with assistance from their supporters and in doing so they also challenged the basis of the assimilation policy. Although the Yolngu were successful in petitioning for a parliamentary select committee inquiry they were unsuccessful in securing a fair exchange in regards to the mining project and in gaining recognition of their native title rights in court action.81 The court action also exposed the deficiencies in the Australian judicial system which at the time persisted in applying Australian legal authorities predicated on a ‘barbarian theory’ in respect of Aboriginal people. It was difficult for the Yolngu to overcome the entrenched assumptions and attitudes about Aboriginal people in the political and legal institutions of Australian government.

By the 1970s the language of the assimilation policy was modified to provide a minor concession to Indigenous people that allowed them to preserve and develop their language, traditions and art. However the assimilation policy maintained focus on political and cultural uniformity of the nation. The policy was still imbued with the

81 Milirrupum and Others v Nabalco (1970) 17 FLR 141 326 colonial attitudes and assumptions of Indigenous cultural inferiority whereby Indigenous people were seen to have no civilised society, settled law or rights of ownership in land. Government focused on the provision of services with regards to housing, health, welfare, education, employment and enterprise development including mining on Indigenous land to transition Indigenous people into mainstream Australian society. The provision of services to Indigenous people was essential, however the assimilation policy was still underpinned by the assumption that so called Indigenous ‘disabilities’ could be overcome by assimilation into white society. Under the policy Indigenous people could only own land through purchase or by government grant under Australian law.

When the urban based Aboriginal activists established the Aboriginal Embassy in 1972 the Commonwealth Government did not consider them to be truly ‘Aboriginal’ but rather a group of ‘unrepresentative militants’. They were not recognised, respected or considered as equals. On that basis the Government believed it was not necessary to engage with them. The underlying assumptions of the assimilation policy and the attitudes of government created a barrier to any form of engagement or dialogue between the activists and the Commonwealth Government at the time.

The initial objective of the Aboriginal activists was to protest against and highlight the inadequacy of the Commonwealth Government’s Aboriginal affairs policy to the Australian population, however as the protest dragged on it became necessary for the activists to engage with the Government. Despite the efforts of the activists to negotiate a resolution and despite the work of Nuggett Coombs and the Council of Aboriginal Affairs for a negotiated outcome, the Minister for Aboriginal Affairs and the Minister for the Interior could not transcend their assumptions about Aboriginal people nor see an alternative to their hard line approach.

The Aboriginal Embassy protest ushered in an era of significant and positive change to Aboriginal policy during the 1970s and 1980s extending into the early 1990s. Assumptions in regards to Aboriginal rights to land began to change after land rights legislation was enacted for the Northern Territory. Further, the policy of self- determination enabled Aboriginal people to gain a national political voice with

327 governments. Sympathetic voices in government also acknowledged Aboriginal dispossession and the need for redress. The rise of Aboriginal organisations also began to assert their authority and influence on the Indigenous political agenda.

In 1993, the land councils in the north of the country along with other Indigenous organisations sought to engage in the constitutional law making process outside of the government appointed Indigenous consultative framework.82 They had to overcome public and political assumptions about Indigenous people and native title rights that regarded Indigenous people and their rights as inferior. There were also assumptions that native title would undermine the system of Australian land law and threaten the interests and land titles of other Australians. There was a lack of public recognition and respect for Indigenous people. Indigenous people were not regarded as equals in Australian society and their rights were regarded as subordinate to the rights and interests of other Australians.

In 1993 the Commonwealth Government took a narrow consultative approach in translating the Mabo judgment into legislation. However the Government was not inclined to undertake a broad consultative program with Indigenous communities throughout the country. The government initiated process was not conducive to genuine dialogue because Commonwealth Government officials had already determined the solution and sought to sell it to the land councils. Government officials were not open to the perspectives and realities of Indigenous people. There were also significant power differences between the Indigenous representatives and the Government.

The reality of the Mabo judgment meant that the Government had to embrace cultural diversity and recognise the continuity of Indigenous cultures and heritage; however the government was more concerned with protecting the land titles of industry and private land holders. This was done by identifying the existence of native title, defining it and limiting the extent of its impact. The representatives of the land councils and other Aboriginal organisations tried to present an alternative dialogic approach in the

82 The land councils included Northern Land Council, Central Land Council, Cape York Land Council, Kimberley Land Council. 328

‘Peace Plan’ as the basis for reconciliation and a just settlement. Recognition, respect, protection, negotiation, consent, co-existence and non-extinguishment were key principles in the Peace Plan but the Government did not accept the Peace Plan.

The premise of the Peace Plan was that the recognition of native title and the validation of uncertain land titles could be assured by negotiation with Indigenous communities. The Government, however, did not regard validation as a matter for negotiation but as a decision to be made and imposed by the Commonwealth Government and state and territory governments. The Commonwealth Government’s approach to dealing with the recognition of native title was to treat it as a property right that could be validated and/or extinguished by state governments as part of their land management responsibilities. By reducing native title to a land management issue – as opposed to recognising it as a pre-existing right that required a fundamental shift in the way Australians and governments perceived Aboriginal ownership of land – Indigenous organisational representatives were denied constitutional status and thus political leverage. Indigenous representatives were forced to assert their authority and right to participate in the process as a stakeholder lobby group rather than as a distinct group of people who have constitutional authority and who have rights to land that pre-date the colonial system of property.

What should be addressed? Tully (1995) argues that a contemporary constitution can recognise and accommodate cultural diversity rather than impose assimilation and uniformity and that this recognition can be achieved through intercultural dialogue and negotiation. For Indigenous people in settler states, Tully argues, a form of political reconciliation should be achieved whereby Indigenous people and the state engage in dialogue and create new relationships based on principles of mutual recognition, intercultural negotiation, mutual respect, sharing and mutual responsibility (Tully, 2008). Political reconciliation requires the creation of political space in which citizens’ discuss the terms of their political association (Schaap, 2004).

Australian governments have created limited political space from time to time to discuss important Indigenous public policy issues with Indigenous people however they

329 are rarely dialogic and they focus on assimilationist and/or nationalist outcomes. What is needed instead is an ongoing dialogical space that provides a social and political forum in which Australians can have a dialogue about the constitutional and political status of Indigenous people in the Australian nation. A conversational dialogue is also needed to examine historical truths and interrogate deeply held assumptions about Indigenous people. This includes discussing a broader notion of justice for Indigenous people based on recognising Indigenous difference rather than confining justice to closing the socio-economic gap between Indigenous and other Australians. This requires ‘adaptive leadership’ on the part of Australian political leaders to develop a dialogue between Indigenous and other Australians in regards to reconciliation; create an environment in which Australians are forced to confront truths in respect to colonialization and dispossession in order to adapt or change their attitudes towards Indigenous people; develop relationships and agreements between Indigenous and other Australians at the local community level; and develop Indigenous and Anglo- Australian leadership to engage with their own communities on issues of reconciliation (Leigh, 2002: 139-145). Australians must also be capable of thinking positively about cultural difference and also appreciate the value of such difference in the social life of the nation as well as develop new ideas of justice in the Australian political system (Patton, 1995: 91-92).

After more than 227 years of colonialism in Australia the issue for a national dialogue is not about recognising Indigenous people in a narrow constitutional sense. There is a clear need for redress and transformation. To move forward there must be a commitment to acknowledging and rectifying past injustice by instituting a genuine reconciliation process that has restorative and transformative dimensions. Rouhana argues that for genuine reconciliation to take root four key issues must be addressed: enthocultural justice, historic truth, historical responsibility, and restructuring the social and political relationship and consequently restructuring the state’s constitutional structure to reflect such change (Rouhana, 2008: 76). The real issues relate to providing Indigenous people with recognised and meaningful political authority within the Australian constitutional system and discussing when this recognition might be accorded. But to have this conversation it is necessary to

330 dismantle the barriers to recognising and respecting Indigenous people, otherwise the conversation will not be genuinely dialogic. These barriers are the colonial attitudes and practices that have accumulated over the course of history and which have constrained and prevented the Australian nation from transforming the existing relationship with Indigenous people. It is also necessary to identify the principles upon which an Indigenous-state relationship should be based and to recognise these principles as important conventions and obligations of Australian constitutionalism. Further there is need for a road map to guide change and build the foundations for a renewed relationship.

From an Indigenous perspective it is also critical to confront the hegemony and inertia of Australian legal, political and economic institutions that assert significant power and influence in opposing Indigenous rights or Indigenous claims for recognition. In this context Indigenous people need to rebuild their political and cultural values and practices to challenge and undercut the hegemony and inertia of colonialism. It also requires vigilance and assertiveness in any public discussion as Indigenous perspectives and issues can easily be distorted to benefit the government’s agenda, or can be ignored and opposed on the basis of colonial or out-dated assumptions in order to deny or demean Indigenous perspectives. Indigenous people must assert their stake or status in public discussion and this also includes strategies of political protest. It also requires Indigenous political leaders to articulate new models of Indigenous-state constitutional relationships based on Indigenous values and practices using approaches of dialogue and negotiation. Existing government methods of consultation with Indigenous people maintain the colonial relationship which places Indigenous people in a subordinate position.

Lessons of the Study In reflecting on the experience of my own journey as discussed in the chapter one of this thesis it is clear that the colonial mindset is still strong in Australia. The examination of case studies and colonial discourses explain the origins of the attitudes and assumptions about Indigenous people and show the continuing existence of this mindset. However through their struggle for recognition Indigenous people have

331 managed to shift the mindset through their attempts at dialogue with the state. Further the case studies also show that dialogue is possible but it requires a genuine effort on the part of the Australian state to dismantle the colonial relationship and engage Indigenous people in a genuine dialogue.

While I have examined how dialogue is relevant to building a renewed relationship between Indigenous people, the Australian population and governments, it is clear that genuine dialogue between Indigenous people and the Australian state is impossible under the prevailing colonial relationship. This colonial relationship is evidenced by how Australian constitutional institutions have – for more than 200 years – consistently applied colonial discourses about Indigenous people in policy and judicial decision making.

Despite the concerted struggles of Indigenous people who exposed the brutality of protection policies it took some time to break down this colonial discourse. It started to unravel quickly when Indigenous people challenged the authority of Parliament and its assimilation policy in 1972. It became untenable for Parliament and the Australian people to continue to apply this colonial discourse especially after the Yolngu people in Arnhem Land had challenged and exposed deficiencies in the underlying assumptions and beliefs about Aboriginal people. The eventual recognition and acceptance that Indigenous people do have rights to land – albeit granted in accordance with Australian law – and are capable of determining their own future changed the way the Australian nation viewed and engaged with Indigenous people in the 1970s and 1980s. Then in 1992 when the Mabo judgment recognised that Indigenous people had rights to land that preceded European colonisation the colonial assumptions and attitudes about Indigenous rights to land unravelled even further.

The process of change in recognising Indigenous rights accelerated after 1972 but in reality change has been slow for Indigenous people in Australia. The political and legal systems of other countries such as New Zealand, Canada and the United States of America already recognise formal Indigenous-state relationships whereas Australia has no such formal relationship. Clearly Indigenous initiative and agency is critical in forcing change. As evidenced by the case studies, change only happens when

332

Indigenous people challenge the norms, policies and practices of Australian constitutionalism by asserting their rights or claiming recognition through strategies of conflict, resistance, subversion or negotiation.

It is necessary for Indigenous people to continually assert their claims for recognition because their struggles will force Australians to examine and reflect on their commonly held assumptions and beliefs and force the creation of political space for dialogue.83 The underlying assumptions about Indigenous people are real stumbling blocks to a dialogic relationship because they frame and maintain the existing colonial relationship. Genuine dialogue will not happen if the colonial assumptions and attitudes continue to prevail. Some of these underlying assumptions have shifted in relation to public acceptance and understanding around Indigenous rights to land. However because there is no constitutional protection or recognition of Indigenous rights or Indigenous status, Indigenous policy can turn quickly if societal attitudes and assumptions about Indigenous people swing toward a negative view.

Conclusion Indigenous agency plus support and goodwill on the part of some Australians has provided limited recognition and respect to Indigenous people in their struggle for recognition. While there have been some positive gains, recognition and change has been slow as shown by my examination of the historical case studies. The case studies show that there has never been a genuine dialogue between Indigenous people and Australian governments.

I regard a genuine dialogue as having the conditions as set out above. However a genuine dialogue must also be constitutional in character. It must deconstruct the existing colonial relationship between Indigenous people and government. It would focus on building a form of shared understanding around addressing past injustices and associating politically in the future. It must be committed to recognising plurality and diversity and be an ongoing dialogue without seeking to impose closure. There has

83 In Appendix 2, I set out some lessons which Indigenous people can take from the case studies in this thesis. 333 been slow incremental progress towards a form of dialogue over the course of history. However genuine dialogue has not yet taken place. There is still a long way to go.

Dialogue has the potential to develop alternate pathways to build a unique relationship between Indigenous and other Australians based on justice and reconciliation. The principles of a just relationship as advanced by James Tully include intercultural dialogue, mutual recognition, mutual cultural respect, sharing and responsibility. However there are other principles – some of which are recognised by Tully but that were also put forward in the ‘Aboriginal Peace Plan’ – which are equally important such as negotiation, consent, coexistence, and non-extinguishment of rights.

Meaningful dialogue requires a predisposition to understanding and helping others through an approach built on openness, absence of resistance and building trusting relationships. Australians can assist Indigenous people by adopting an openness and willingness to confront issues important to Indigenous people. This also includes confronting the underlying assumptions they hold about Indigenous people. This is very sensitive territory for non-Indigenous Australians and may evoke anger; however the purpose is not to moralise about guilt with Australians but to repudiate colonial and contemporary assumptions and attitudes about Indigenous people that are assimilationist and paternalistic in order to move forward.

For Indigenous people, this will mean lowering their guard and moving out of safe spaces from where they have been able to unsettle the conscience of the nation, and to engage constructively with mainstream Australia to move forward. This will also entail helping and supporting Australians to emancipate themselves from deeply held assumptions about Indigenous people, free from feelings of guilt, fear or anger. An openness and willingness to change prevailing attitudes and opinions is necessary for dialogue to transform the colonial relationships between Indigenous and non- Indigenous Australians and to create renewed relationships that will provide the foundation for achieving real and enduring justice for Indigenous people.

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APPENDICES

Appendix 1: Conditions for Dialogue with Indigenous People in Australia

Mutual responsibility People must behave and act responsibly towards each other to build trust. Blaming, insulting and demeaning others must be discouraged in dialogue.

Listening and openness Dialogue requires an ability to listen without resistance and to remain open to the perspectives and realities of others to understand their world view.

Speak in own voice Indigenous people should be able to speak in their own voice, in their own ways of speaking and not be compelled to speak in the language, forms and conventions of the dominant society.

Self-reflection and suspending assumptions To reduce defensiveness it is necessary to understand one’s own thinking and thought processes through a process of self-reflection. This involves suspending and not defending assumptions and opinions.

Confront attitudes and underlying Attitudes and deeply held assumptions about assumptions Indigenous people need to be examined and interrogated to understand how they influence societal behaviour, opinions and policy.

Cultural pluralism and cultural diversity Dialogue must embrace and recognise different values and beliefs and accommodate cultural diversity.

Cultural continuity and respect There must be recognition and respect for the continuity of Indigenous cultures, identities and socio-political organisations.

Freedom to speak out A right and freedom on the part of Indigenous people to speak out against and to call into question the norms that perpetuate injustice and oppression.

Examine historical truths and address past The examination of historical truths must be a injustices component of dialogue to achieve a shared

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interpretation of history. This includes historical reflection in order to address past injustices.

Leadership and relationship building Political and social leaders must build bridges, enhance cooperation and empower people across social, political and cultural divides. This includes reimagining new nation building models.

Mitigation of power imbalances To ensure inclusiveness and a level playing field the empowerment of Indigenous people is a necessary precursor. Power differences must also be acknowledged and addressed through checks and balances.

Solutions cannot be imposed Solutions cannot be imposed from above by politicians, courts, theorists and bureaucratic advisors. However courts, parliaments and human rights forums have a role in providing checks and balances.

Non-domination Dialogue should be free from coercion, blame, violence of any form or enforcement of dominant authority.

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Appendix 2: Lessons from the case studies

The following is a summary of useful lessons for Indigenous people in their struggles for recognition which are drawn from the case studies in this thesis. Indigenous people already practice many of these lessons because they have responded in many ways to colonialism throughout history. The case studies demonstrate that the system of Australian constitutionalism only recognises Indigenous claims when Indigenous people challenge the injustice of the norms, policies, rules and principles of Australian constitutionalism.84 A key lesson for Indigenous political struggle is ‘thinking black’ and grounding the struggle in Indigenous political thought to present an alternate discourse. Western political thought should also be incorporated especially the principle of justice which is vital in challenging policies and practices of colonialism. Indigenous people must speak in their own voice, from their experience, and not allow others to speak for them.

An Indigenous political and social agenda must be created by Indigenous people, not created and imposed by governments or a dominant population group. This also includes having a narrative about Indigenous aspirations for public consumption. Court cases are useful in supporting the Indigenous struggle however their value depends on how governments and the public respond to and tolerate Indigenous claims. Indigenous people have had more success in the political arena. However while politicians are generally supportive of Indigenous rights there is a limit to their tolerance because they make decisions according to ‘economic imperatives’ and the tolerance of the Australian public. Ultimately, however politicians hold allegiance to the institutions and traditions of Australian constitutionalism that has traditionally excluded Indigenous claims for recognition or has re-interpreted Indigenous claims and provided minimal recognition.

A colonial relationship still exists between Indigenous people and the Australian state because the institutions of Australian constitutionalism have consistently applied colonial assumptions and discourses about Indigenous people in policy and decision making. However it is necessary for Indigenous people to utilise the processes and forums of Australian constitutionalism to make their claims and assert Indigenous authority in those institutions. Not only to seek justice but to also open up new ways of talking and thinking about the Indigenous-State relationship in order to transform the relationship. It is essential to create dialogic space and also assert a right to be

84 ‘Australian constitutionalism’ encompasses the ‘institutional arrangements and rules and principles’ that are ‘… derived from the written Constitutions of the Commonwealth and States, the unwritten conventions of behaviour under the Constitutions and the common law’ and the acceptance of those institutions, rules and principles ‘… by the institutional actors and wider Australian society’ (French, 2009: 6). 374 recognised and respected and this includes negotiation between governments and Indigenous people. This involves more than just consultation.

Direct intercultural contact and dialogue with governments and influential individuals can break down assumptions and improve understanding. At the same time it is also critical to cultivate open, respectful and empathic relationships with significant individuals and organisations in society to open political doors or exert influence on governments or public opinion. In that regard utilising the media is necessary to build understanding in Australian society. Building understanding includes helping Australians to examine their underlying assumptions about Indigenous people free from guilt, fear or anger and helping them to think differently about post-colonial relationships with Indigenous people.

The Indigenous approach to seeking dialogue and negotiation should include innovative, novel or creative ways to attract attention and encourage dialogue. It must involve a series of strategic and tactical approaches to open up prospects for dialogue and negotiation. It should also have an exit strategy to allow breathing space or an honourable withdrawal. Indigenous people need to be fearless and courageous when they assert their claims for recognition. These qualities should be nurtured in local communities but in the right direction especially involving Indigenous ways of doing and including methods of dialogue and negotiation. Particular attention must be given to developing Indigenous leadership succession for generational change and also cultivating a sympathetic group of young non-Indigenous people who can provide societal and political support to the next generation of Indigenous leaders.

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