The ‘designed to fail’ policies that glisten with promises come to nought in delivery because the Whitefella wants to be able to control, constrain and interfere with the Blackfella’s interests
TUMBY BAY – I’m currently writing a history of the South Australian Aboriginal Heritage Branch, based in Adelaide, where I was employed between 1974 and 1994.
It’s tentatively called ‘Full Circle’ – the title describing a 20-year trajectory in which the Branch went from virtually nothing to journey through a period of high productivity and public recognition before finally looping back to irrelevance and obscurity, buried in a high rise city building.
A key part of the history follows the development of various pieces of legislation ostensibly designed to protect and conserve Aboriginal heritage in South Australia.
In total, four separate Acts were written. A few years ago, moves were afoot to write a fifth but that seems to have crashed on the usual rocks of government complacency.
What struck me forcefully in going back to look at these Acts of Parliament was the utter fear, on the part of Labor and Liberal governments of the time, to genuinely allow Aboriginal people to have any control over their own heritage.
No matter the strengths of each law, the final arbiter on every matter was a government minister.
And in every case, the Acts had one or more loopholes that favoured the vested interests of developers and miners.
Some of these loopholes were extremely cunning and heavily disguised within the lawyerly form of words.
And, in those cases where a loophole failed to do its job, it could be mitigated in the courts by creative legal interpretation.
The final and current version of the Act enables the minister to authorise the destruction of sacred or archaeologically significant sites.
The minister may take advice but the relevant Aboriginal traditional owners have no right of veto.
This state of affairs has been subverted by developers and miners whose lawyers have been able to convince the minister to allow exploitation of sacred sites located in places that would impede development plans.
In practice, the minister is generally compliant to these approaches.
A high profile recent case along these lines was the destruction in 2020 by Rio Tinto of the Juukan Gorge rock shelters in Western Australia, which showed evidence of continuous human occupation for over 46,000 years.
The fear of ceding control to Indigenous people is also seen in the resistance, especially by the federal government, to recognition of what is known as ‘the Uluru Statement from the Heart’.
The statement is a modest request to establish a legally, if not constitutionally approved voice for First Nations people in Australia.
The statements has five components, the first being to recognise the Aboriginal peoples’ prior occupation of the Australian continent and to accept the fact that their sovereignty was never ceded and that it needs to co-exist with the sovereignty of the Crown.
The second component calls for reforms to empower Aboriginal people to manage their own affairs.
The third seeks the establishment of a Makarrata (Treaty) Commission to develop a national framework that would permit each sovereign Aboriginal nation to negotiate its own respective treaty.
Canada, New Zealand and South Africa have established similar commissions that recognise the occupancy and rights of their own Indigenous peoples.
The fourth part of the statement is the establishment of a truth-telling process that articulates as matters of historical record the past injustices experienced by Aboriginal people.
The fifth is the establishment of an elected Aboriginal voice to the Australian parliament so that Aboriginal people can have a greater influence over laws that affect them.
The Uluru Statement from the Heart was rejected outright by the previous Liberal-National Government but new Labor prime minister Anthony Albanese has said his government is committed to bringing its various elements to fruition.
My gut feeling, based on those previous experiences between 1974 and 1994, is that the federal government will come under great pressure from mining and other interests and baulk at the last moment.
I suspect this will be done by parlaying the statement as a constitutional reform requiring a referendum. This is something the authors of the Statement specifically wanted to avoid, believing that it would be a divisive exercise.
Referendums in Australia are also enormously difficult to pull off. Australians have rejected most proposals for constitutional amendments, approving only eight of the 44 referendums submitted since federation.
Contrary to popular belief the Indigenous elders at Uluru did not ask for a constitutional referendum – indeed they rejected it. Instead they asked the politicians to write and pass a Treaty Act.
The Uluru Statement from the Heart does not mention a referendum.
The elders knew from bitter experience how duplicitous Australian governments are when dealing with Aboriginal issues.
Inserting a referendum as a condition of recognising the reality of the First Nations’ people occupation of Australia could become a ‘poison pill’ that, once more, would stop progress towards remedying the historical hurt of depriving a people of their land.