The unvirtuous circle of SA's Blackfella affairs
27 June 2022
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.
I think it's a symbolic statement with no expectations except perhaps to claim the right to consideration Chris.
Cede is also a different word to surrender.
Posted by: Philip Fitzpatrick | 29 June 2022 at 10:28 AM
In his article, Phil references a need to recognise that the indigenous Australians never ceded sovereignty over their lands.
It is undeniably true that the indigenous peoples fought to retain sovereignty over their lands. This is one of the important historic truths which needs to be acknowledged in any reconciliation process.
However, it is important to understand that doing so does not undo or render invalid the constitutional arrangements which apply in Australia today.
The lesson of history is that sovereignty is almost without exception never ceded other than through force of arms. This depressing reality has been a feature of human societies almost from the very moment when what we call civilisations began to arise.
Thus the Babylonians seized lands that belonged to others in order to create their short lived empire some 4000 years ago before, in their turn, falling under the control of yet another emergent power.
Similarly, the ancient Gauls who lived in modern France and Belgium, did not willingly cede their sovereignty to the Romans. Instead, they were ruthlessly crushed by the Roman legions and forced to submit to the rule of Rome. The same fate befell the ancient Britons.
More recently, after World War 2, large swathes of Eastern Europe unwillingly fell under the control of the USSR and that control was maintained by force until the eventual collapse of the the Soviet empire in 1991. Now, of course, Vladimir Putin is unapologetically seeking to reinstate 'Greater Russia' by using military force to annex Ukraine.
The only situation I am aware of where sovereignty was ceded voluntarily was in Fiji.
In that case the indigenous ruling elite of the Fijian islands had attempted to establish an independent kingdom but found the task of controlling it beyond their capacity.
They eventually felt compelled to invite the British to take over the governance of the islands rather than fall victim to the depredations of the several European powers which were jostling to exert effective control over them. In a sense, they concluded that British rule was a lesser evil than foreign induced anarchy.
By happy chance the Fijians fell under the control of a British colonial power that was happy to agree to protect their basic rights, notably their ownership and control of their traditional lands. By even happier chance, this same policy was introduced in PNG some 20 years later.
In a somewhat similar way the Maori ceded their sovereignty over New Zealand to the British through the Treaty of Waitangi. In that case, the fierce armed resistance of the Maori during the so-called Maori Wars, allowed them sufficient leverage to extract a number of concessions from the British even though the treaty itself for a long time was honoured more in the breach than the observance.
So even if there is some sort of official concession that indigenous Australians did not voluntarily cede sovereignty of their lands, its material impact upon how modern Australia is structured or governed seems destined to be slight at best.
Specifically, notions that ownership of traditional lands might be recovered unconditionally are completely unrealistic. The current arrangements in relation to land rights already in place, with all their complexities and ambiguities, seem likely to remain in place largely unchanged.
To do otherwise would be to invite much strife and contention that would likely to hinder the achievement of other objectives in the Uluru Statement.
Posted by: Chris Overland | 28 June 2022 at 04:33 PM
Blackfella affairs strikes a very familiar tune.
Some folks wish history away with pretence and amnesia.... then banning books with shameful efforts to ban CRT [critical race theory].
That is no longer cutting anymore with newer perspectives and ways of building humane relationships.
Posted by: Corney Korokan Alone | 28 June 2022 at 11:57 AM
Apart from late arrivals like the Austronesians, the indigenous people of Papua New Guinea and Australia stem from the same migrant stock.
During the many glacial periods of the current ice age, the last of which ended 11,700 years ago, they occupied the same large connected landmass.
(We are currently in what is known as an interglacial period which separates us from Papua New Guinea by sea).
Although there would have been interactions when the glacial land bridge existed the two groups are thought to have effectively diverged from each other about 25,000 years ago.
If the indigenous people of Australia can claim to be the world’s oldest civilisation going back 65-70,000 years ago logic dictates that the indigenous people of Papua New Guinea should be able to make the same claim, even though archaeologists only put their occupation back about 46,000 years.
Like most indigenous people, Aboriginal Australians and Papua New Guineans are culturally shaped by their attachment to their land. In both places the use and occupation of the land is paramount.
Since Europeans arrived history has treated the two groups very differently however.
In Australia the British declared the land vacant and claimed it as their own. In official parlance they referred to the land they invaded and stole as ‘terra nullius’.
‘Terra nullius’ means "nobody's land". It is a concept that says ownership by seizure of a thing no one owns is legitimate.
The same thing could have happened in Papua New Guinea when it was a British colony except for two things.
Australia, driven by strategic concerns about its geopolitical security and the prospect of an eminently exploitable mining province on its doorstep convinced the British to cede it control of Papua in 1908.
And in so doing appointed a visionary administrator in the person of Lieutenant-Governor Hubert Murray who put the brakes on any idea of mass alienation of Papuan land by Europeans.
This was then extended to New Guinea when Australia acquired it as a mandated territory in 1921.
Up until 1993, when the concept of ‘terra nullius’ was buried by the ‘Native Title Act’, a political hypocrisy existed in Australia.
On the one hand it maintained that indigenous Australians had no rights to their traditional lands while up until independence in 1975 it had simultaneously acknowledged those rights for indigenous Papua New Guineans.
Indigenous Australians must have wondered how land rights could have been assured by its government for Papua New Guineans but not for them.
The answer, of course, was because the British had been taken out of the equation.
The ‘Native Title Act’ is far from perfect. It can only grant title to non-freehold and certain other classes of land.
The legal battles this involves are incredibly expensive and complex and throw different claimant groups into bitter competition with each other that irreversibly damage inter-family relationships. It is better than nothing however.
These shortcomings are one of the reasons why the Uluru Statement from the Heart is so important.
That statement if passed into law will finally acknowledge how badly indigenous Australians have been treated by successive Australian governments.
For Papua New Guineans they might like to contemplate the fact that if it hadn’t been for men like Sir Hubert Murray they might have gone down the same road of invasion and dispossession.
Posted by: Philip Fitzpatrick | 28 June 2022 at 09:47 AM
From Museum of Australian Democracy - Secret Instructions to Lieutenant Cook 30 July 1768 (UK):
The Secret Instructions, contained in the Letterbook carried on the Endeavour, include the Additional Instructions which authorised James Cook to take possession of 'a Continent or Land of great extent' thought to exist in southern latitudes. The second page instructs Cook 'with the Consent of the Natives to take possession of Convenient Situations in the Country in the Name of the King of Great Britain'.
He sailed north, landing at Botany Bay, before continuing to chart the Australian coast all the way north to the tip of Queensland. There, on Possession Island, just before sunset on Wednesday 22 August 1770, he declared the coast a British possession:
Notwithstand[ing] I had in the Name of His Majesty taken possession of several places upon this coast, I now once more hoisted English Coulers and in the Name of His Majesty King George the Third took possession of the whole Eastern Coast . . . by the name New South Wales, together with all the Bays, Harbours Rivers and Islands situate upon the said coast, after which we fired three Volleys of small Arms which were Answerd by the like number from the Ship.
Cook had recorded signs that the coast was inhabited during the voyage north, and here he noted as he returned to the ship the great number of fires on all the land and islands about them, 'a certain sign they are Inhabited'.
No reference by Cook to having obtained the consent of the people. That such a concept could have been conveyed is doubtful. Clearly consent was never obtained and therefore by the Crown’s own definition the act of taking possession null and void.
The act of taking possession was theft pure and simple and the subsequent declaration of Terra nullius wrong both in substance and fact.
But none the less used to justify the so called “Frontier Wars” – euphemism for genocide. First acknowledged massacre 1794, the last, Coniston Station in 1928.
Dispossession, incarceration of people from multiple nations together in concentration camps, some run by missions. The forced crushing of culture, language and identity.
The stolen generations, non-representation in the census or the right to vote until 1969.
Non recognition of any traditional claim to country until Mabo in 1992. Institutionalised racism and discrimination to this day.
And still no representative voice in parliament where laws affecting first Australians are made. No, the indigenous Members represent electorates and their parties, they do not speak for any of the 450 nations.
The Uluru Statement from the Heart confirms all that. It seeks to initiate a process of truth telling, recognition of past wrongs, reconciliation and a process through which all first nations may convey their advice, wishes and aspirations. A pathway by which all Australians can walk together towards a more inclusive future.
If we actually believe, “we are one and free”, then what the bloody hell are we waiting for?
Posted by: Stephen Charteris | 27 June 2022 at 10:05 PM
The history of Australian governments in dealing with the indigenous peoples is very dismal indeed.
The now departed and unlamented LNP government continued this tradition whereby weasel words were deemed an adequate substitute for meaningful action.
This lamentable domestic history tends to throw a rather flattering light upon the work of Sir Hubert Murray and his successors in PNG, who assiduously protected and preserved the land rights of the indigenous people even in the face often concerted attempts to over turn that policy.
When those rights were over ridden, as was the case in Bougainville, the appalling results only served to highlight the wisdom of Murray's policy.
Alas for indigenous Australians there was no equivalent to Sir Hubert Murray with the humanity and foresight to implement a similar policy.
The last 20 years or so have seen important changes, such as the Mabo and Wik decisions of the High Court, that have somewhat restored the ancient rights and liberties of indigenous Australians.
Despite this, there is still work to be done and the Uluru Statement has outlined some of those tasks.
Personally, I think that there is sufficient goodwill amongst the wider community whereby a constitutional change to create a Voice to Parliament seems to have a reasonable prospect of succeeding.
As usual, the reactionary conservative right will be opposed but the outcome of the plebiscite on gay marriage suggests that they no longer hold sway in the way they once did.
The negotiation and implementation of treaties relating to hundreds of notional indigenous 'nations' seems a much more problematic issue to me.
Even if you assume that what were once called 'tribes' may legitimately be conceived as 'nations', which is not a given, then the legal intricacies inherent in the process seem to me to verge upon the insurmountable.
To make this aspiration a reality, I believe that the Federal Parliament would need to pass special enabling legislation to allow such treaties to be written. I am sceptical that the current body of common and statute law is able to encompass such treaties although I may be wrong.
This legislation very probably would need to spell out some of the basic terms and conditions that might be applied to such documents so as to ensure, at a minimum, consistency with the prevailing constitutional arrangements relating to the states, territories and the Commonwealth, as well as other laws relating to such things as property and access rights.
This is not impossible but it is certainly bound to be complex, difficult and contentious.
So, it may well prove that embedding a Voice to Parliament in the constitution will be a relatively easy task compared to other proposals mentioned in the Uluru Statement.
I guess time will tell.
Posted by: Chris Overland | 27 June 2022 at 09:46 PM
Bernard, the influence of the British and the Privy Council also figured in the Aboriginal elders rejection of a Constitutional amendment.
"They feared that referendum-based changes to the Constitution would only perpetuate the UK Crown's domination of Aboriginal people and void Aboriginal sovereignty which they never ceded."
If the Australian Constitution is to be amended to accommodate the Uluru Statement, Australia needs to become a republic first.
See for instance' Uluru Statement from the Heart - Creative Spirits', retrieved from https://www.creativespirits.info/aboriginalculture/selfdetermination/uluru-statement-from-the-heart
Posted by: Philip Fitzpatrick | 27 June 2022 at 06:04 PM
"We know that no one ever seizes power with the intention of relinquishing it. Power is not a means; it is an end.” - George Orwell
Posted by: Bernard Corden | 27 June 2022 at 01:04 PM
Additional encumbrances that supplement the pernicious delay, deny and die tactics include the Queen's Privy Council and Royal Prerogative.
In the case of the Chagos Archipelago, in 2000 the High Court of Justice of England and Wales ruled that a local ordinance made by the Commissioner of the British Indian Ocean Territory exiling the islanders was unlawful, a decision which was accepted by the British foreign secretary Robin Cook.
It was legislation passed under a royal prerogative, not an exercise of the prerogative itself, and was overturned as being beyond the powers given.
After this decision, the British government issued an Order in Council, a primary exercise of the royal prerogative, to achieve the same objective.
This Order was also ruled unlawful by the High Court, a ruling upheld in the Court of Appeal. However, on Wednesday, 22 October 2008, the government won its appeal in the House of Lords against the previous rulings.
The House decided by a three-to-two majority that the Order in Council was a lawful exercise of authority.
In their speeches, the Law Lords admitted the government of the day was morally wrong to force out some 2,000 residents of the Chagos Archipelago, a British Crown colony, to make way for a US air base in the 1960s.
Nevertheless, the majority could not find legal fault in the Order.
Posted by: Bernard Corden | 27 June 2022 at 10:00 AM