Australia At The Crossroads
In Australia, the English settlers neither enacted nor even contemplated a treaty with the indigenous Aborigines and Torres Strait Islanders prior to the 1970s. Upon European incursion in 1788, the Indigenous population numbered about 300,000 divided into hundreds of linguistic groups, but by 1900, 75 percent of this population had succumbed to introduced diseases like small pox and tuberculosis, or had been killed through the violent acts of convicts and other newcomers on the frontier. In 1999, Australia's Indigenous population is once again around 300,000, less than two percent of the nation's population, and there is a groundswell of support on the part of the non-Aboriginal majority for the recognition of the property rights of these first Australians. Yet for nearly 200 years there was no official recognition of even their presence. It was only in 1967, for instance, that they received the right to vote and were officially counted in the national census. Is it too late to contemplate a treaty or pact of reconciliation with Australia's Indigenous people? What form would such a treaty take and who would benefit?
The year 2001 marks the centenary of Australia's federation and there is much soul-searching about the future of the island continent. A significant number of Australians had hoped that the year 2000 would herald the election of an Australian head of state in the place of the nation's titular English monarch - but this was not to be. In a November 1999 referendum, Australians voted to retain Queen Elizabeth II as their head of state. But whether Australia ever becomes a republic, the need to achieve a lasting reconciliation with Australia's Indigenous people ranks high on the national agenda. And the 1990s have witnessed an unprecedented groundswell of support for such a rapprochement. However the movement stagnates because of disagreement over the meaning of the term "reconciliation." Some non-Aborigines believe reconciliation is about saying sorry for the past and moving on. Others believe it is about land rights and compensation. Still others suggest a need for a complete re-writing of Australian history. Most Aborigines will say that all of the above are necessary prerequisites. In the 1990s, Australia's Indigenous people made significant headway in achieving the first of these prerequisites -- recognition of their property rights -- as a result of two progressive High Court decisions: Mabo 1992, and Wik 1996. While I say "progressive," in truth these decisions merely brought Australia into line with developments in international law. Terra nullius or "land without people," the legal doctrine which facilitated Aboriginal dispossession, had been discredited by the International Court of Justice in its advisory opinion in the Western Sahara case in the 1970s, but the concept was not similarly dispatched in Australia until the 1990s with the Mabo High Court decision. Under the terra nullius regime, any and all rights that Aborigines enjoyed were deemed to have been extinguished as a consequence of British colonization. However, in 1992, the Australian High Court affirmed that there is a place in the common law for Aboriginal and Islander customary law. As Reynolds (1999:224) says, Aboriginal property or native title rights were not rights invented by the courts or a gift of the government to Indigenous people. These rights were pre-existing, being derived from Aboriginal society as it was before settlement. For the very first time, Aboriginal and Islander native title holders were able to direct what was to happen on their traditional lands, and had an opportunity to negotiate for employment, training and other benefits accruing from approved development projects. This was the very essence of reconciliation, many Aboriginal leaders declared.
The Aboriginal victory was short-lived. Whereas under Mabo five percent of the nation could be claimed by Aborigines as their traditional lands, following the Wik High Court decision over 70 percent of the continental landmass was considered to be subject to claim, fueling fears of an Aboriginal land grab. The Mabo and Wik decisions caused such a stir because they threatened long accustomed patterns of hierarchy and subordination -- leading inevitably to a sustained and bitter backlash. Federal native title legislation facilitating the Aboriginal claims process was deemed unworkable by the mining and pastoral lobbies and forecasters proclaimed imminent stagnation for the national economy. In 1998, the Federal Government, incensed with so-called "radical" High Court decisions, modified the Native Title Act to favor the interests of developers over and above the interests of Aborigines and Torres Strait Islanders. A 10-point amendment plan insisted that Indigenous claimants have a continuing physical connection with the land of their ancestors, even though the majority of Australia's Indigenous people were forcibly removed from their homelands as a result of colonization. Aboriginal leaders declared this reactionary move to be tantamount to a return to terra nullius -- and the end of the reconciliation process (Galarrwuy Yunupingu pers. comm. 1998).
Curiously, the Australian government continues to stress its commitment to reconciliation. Yet, in 1999 when Aborigines pressed the Government for a national apology for past dispossession as a sign of good faith in continuing the reconciliation process, Australia's Prime Minister John Howard refused. He argued that an apology would signify an acceptance of guilt, and his generation was not responsible for any atrocities committed against Aborigines. Another setback came with the Aboriginal rejection of a draft preamble to a revised Australian constitution, which would recognize their place as the past inhibitors of the continent -- they were to be honored for their "ancient and continuing cultures." In the draft, Indigenous people were relegated to the status of migrants, just like the newer arrivals, and while the wording stressed respect for the human rights of individuals, it made no mention of the group rights of the first Australians. And so on the eve of the new millennium, the process of reconciliation in Australia has come to a standstill.
A History of Treaty Negotiations
Some non-Aborigines argue that there cannot be a treaty between Aborigines and non-Aborigines because there was never a war. Australia was discovered by Captain Cook in 1770 and peacefully settled in 1788, not taken by conquest. But, as historian Henry Reynolds (1999) asks, if there was no state-sanctioned conflict with the Indigenous landholders, how do we explain the conservative estimate of over 20,000 Aboriginal bodies? The colonists were murderers and colonial society complicit in the killing? Is this a more attractive way of viewing the past? Reynolds notes that truth is central to the Aboriginal agenda for reconciliation: specifically, the truth about taking the children away, the exploitation of Aboriginal labor, the abuse of women, and frontier massacres.
The "great Australian silence" on the past mistreatment of Aborigines is one of the primary reasons why treaty negotiations in Australia are of such recent origin. For instance, it was only in 1967, following the national referendum that gave Aborigines the vote, that federal money began to be allocated to Aboriginal Affairs. This momentum of reform led, in the 1970s, to the establishment by the federal government of a Treaty Committee, comprised entirely of non-Aborigines. The committee's function was to sell to the non-Aboriginal population the idea that a treaty was necessary for Australia's future, and there was a genuine belief that only with the enactment of such a compact could Australians look openly and honestly at the past and build a future as a multicultural nation. As Gough Whitlam, Labor Party leader and Australia's Prime Minister from 1972 to 1975 proclaimed, "We are all diminished while the Aboriginal people are denied their basic rights."
Treaty consultation among Aborigines, in the first instance, was the task of a newly established committee, the National Aboriginal Consultative Committee (N.A.C.C). However, after a number of years, it became obvious that this body was inadequate in representing the vast range of Indigenous voices across Australia. There are some Aborigines who have title to their own tribal lands; there are some who live on small reservations excised from the world's largest cattle stations; in "humpies" or lean-to dwellings on the outskirts of small rural towns; and there are urban dwellers who, apart from their poverty, are living a life almost indistinguishable from most non-Aboriginal Australians. Then there are the people of the Torres Strait, living on the islands between Australia and Papua New Guinea. Saibai Island, for instance, lies just off the south coast of New Guinea and the principal affiliation of the inhabitants is with the Fly River people and the residents of Dam in New Guinea. Similarly remote are the Aborigines of the western desert, who have little or no communication with anyone outside of their communities. Finally, there is the anomalous position of the "Kanakas," originally from the Solomon and other Pacific Islands, brought to east coast sugar plantations in the 1800s as indentured laborers, some of whom now live within the Aboriginal and Islander community along the Queensland coast.
Like so many public policies and programs of the day, there was little consultation with Aborigines prior to the establishment of the N.A.C.C. Here was an institution designed by non-Aborigines, structured on principles foreign to most Aborigines, which could not possibly facilitate Indigenous involvement in the reconciliation process. And there was little Indigenous support for, or interest in, a treaty. A majority of Australia's indigenous people wanted land and financial compensation for prior dispossession. A treaty would not solve the myriad of social and economic problems they were facing. In 1984 the Treaty Committee was disbanded.
Since 1984, national parliamentary inquiries into the alarming rate of Aboriginal deaths while in police custody; into the fate of those "stolen generation" children forcibly removed from the custody of their parents "for their own good"; and the protracted court battles between developers and Aborigines over the planned destruction of sacred sites, all signaled a growing commitment for a rapprochement on Aboriginal terms. In 1988 at the Northern Territory Barunga Festival celebrating the survival of Aboriginal culture through 40,000 years, the then Prime Minister Bob Hawke made an historic commitment to the negotiation and conclusion of a treaty or compact between the Commonwealth of Australia and the Aboriginal people. He invited Aborigines and Islanders to consider what the terms of such a compact would be. The outcome was the 1991 establishment of the Council for Aboriginal Reconciliation through a unanimous vote in both houses of the federal government. (Council for Aboriginal Reconciliation 1997)
Comprised of twenty-five members (twelve of whom are Aboriginal, two are Torres Strait Islanders) the Council has identified eight key goals for the reconciliation process. These are:
1) To promote a greater understanding of the importance of the land and sea in Indigenous societies
2) To build better relationships between Indigenous people and the wider community
3) To foster the recognition of Indigenous cultures and heritage as a valued part of the Australian heritage
4) To share ownership of Australian history
5) To understand the causes of disadvantage that prevents Indigenous people from achieving fair and proper standards in health, housing, employment and education
6) To address the underlying causes of the unacceptably high levels of imprisonment for Indigenous people
7) To provide opportunities for Indigenous people to control their destinies
8) To agree on whether the process of reconciliation would be advanced by a document of reconciliation or treaty (Council for Aboriginal Reconciliation 1997).
Yet despite these very clear goals, reconciliation is an issue that is far from understood by the average Australian. My review of articles appearing in Australian newspapers reveals that there are seven prominent positions with regard to the subject, and I have labeled them as follows:
1) The justice-before-reconciliation argument encompasses a range of positions, from the charismatic anti-mining Aboriginal activist Murandoo Yanner's "Holy crusade against murderous invaders," where proponents have little faith in the non-Aboriginal concept of justice and therefore of reconciliation, to former Aboriginal Reconciliation Chairperson Pat Dodson's more broadly popular appeal for social justice through a restructuring of the administration of Aboriginal affairs in order to facilitate Aboriginal self-determination (Courier Mail 4/18/98). The basic argument is that Aborigines have not conceded ownership of Australia, and while some groups have been successful in obtaining land title through Crown grant, other groups have not consented to the extinguishment of their native title. For reconciliation to be a reality, this injustice must be addressed.
2) The "genocide" argument focuses on the unfortunate living circumstances of Aborigines living in both urban and rural communities. Genocide is a very strong term, yet Aboriginal infant mortality rates are many times higher than in the non-Aboriginal community and Aborigines are dying of illnesses which are readily treatable. Often compared to conditions in some African countries, the enormity of the social, physical, and health problems of Aborigines is often ignored in the heated debate about native title in Australian law courts and houses of parliament. As Aboriginal author Rosemary O'Grady says, genocide is going on while the government and do-gooders, "black" and "white," sit back. "It is okay to talk of reconciliation and being sorry for the past. But until the unemployment, `grog' (alcohol) and violence problems are addressed, there will be no change." Discussion about a treaty should be temporarily set aside and attention focused on ameliorating the pressing problems of Aboriginal survival into the 21st century. (Courier Mail 3/21/98)
3) The pay-your-own-way argument is closely related to the above, suggesting that the $16 billion dollars expended on Aboriginal welfare over the past 13 years has done nothing but line the pockets of bureaucrats and other non-Aborigines. No appreciable improvement is detectable in the deplorable housing, health, education or employment conditions of the nation's Indigenous people. The Federal Government policy of self-determination for Aborigines, according to this argument, has facilitated exploitative activities by non-Aboriginal entrepreneurs, made possible by Aboriginal mismanagement of taxpayer funds. While Aborigines believe themselves to be victims of institutional racism, non-Aborigines respond with a claim of institutional irresponsibility on the part of Indigenous organizations. Justice must not only be seen to be done for Aborigines by the other 98 percent of Australians, who largely bear the cost of Aboriginal justice and welfare. They must be able to see that their tax-dollar contributions are not being wasted. (Courier Mail 4/18/98)
4) The equality-before-the-law argument is analogous to the one used by opponents of affirmative action in the US, i.e. that Indigenous people have no more and no less right to basic community services than anyone else. How can there be one law for non-Aborigines and another for Aborigines in the one nation? Why should Aborigines have a right to negotiate for developments on their land when non-Aborigines do not enjoy such a right? Alternatively there is a desire to "wipe clean the slate" and have all land claims finalized here and now, either through grants of land or financial compensation, as was proposed in the US in the 1940s with the Indian Claims Commission. It is argued that reconciliation is a "two way street" and it is in everyone's best interests if the playing field is leveled.
5) The no-Indigenous-viewpoint argument is critical of the notion that an Aboriginal community exists with whom negotiations could be carried out, if a treaty were considered a desirable outcome of the reconciliation process. This argument condemns the tendency to treat contemporaneous Aboriginal/non-Aboriginal relations as if it were 1788 and first settlement once again. The reality is that Aboriginal and non-Aboriginal lives are completely intertwined. Aboriginality is a matter of history, upbringing, and descent, and there is tremendous diversity in contemporary Australian Aboriginal life. While proponents of reconciliation tend to stress that all Aborigines have a special spiritual connection to the land, this is not so. There is no single sovereign Aboriginal nation and no common Indigenous point of view.
6) The building-a-future-together-as-a-single-nation argument is the theme of the Aboriginal Reconciliation movement, and it has many adherents. Like US President Bill Clinton's "Initiative on Race," the ambition is to establish a dialogue on issues that divide the nation. Up until recent times, Americans, like Australians, have either refused to accept that there is a problem, or simply ignored the question.
7) The "membership and remembership" argument could be considered as a response to the "great Australian silence" or "disremembering" on Indigenous/non-Indigenous relations. Simply put, it revolves around the Aboriginal concept of adoption i.e. Aborigines adopting non-Aborigines into their domain and vice versa, affirming the worth of both parties. Non-Aborigines are landowners as a result of Aboriginal dispossession and must "remember" the rights of the traditional landholders. Also, Aborigines are Australian citizens, but they "remember" (or assert their rights as members of a land-owning language group, clan, and family. The ideology was summarized by Aboriginal leader David Burrumarra when he said that for Aborigines, human rights entails following Aboriginal law, building up one's own clan and homeland, and bringing honor to both yourself, other Aborigines, and the wider Australian community. (see McIntosh 1999)
Since 1991, support for Aboriginal rights has emerged among Australia's rank and file in the form of a people's movement for reconciliation and justice. The number of grassroots organizations promoting reconciliation has increased from 10 to 229, according to Phil Glendenning, national coordinator of Australians for Native Title and Reconciliation (McIntosh 1999:134).
Perhaps the most visible public signs of support for Aboriginal reconciliation by non-Aborigines are the growing "sea of hands" sculptures found at various locations throughout Australia, for instance at Bondi Beach in Sydney, and in Brisbane's popular central city botanical gardens. Over 100,000 multicolored hands, each carrying the name of an individual who supports (raises one's hand in favor of) reconciliation and native title, have so far been planted.
In the minds of many Australians, signing a hand sculpture and placing it in the "sea of hands" is innocuous enough. In a quote from a Brisbane newspaper, the Courier-Mail, a mother is reported to have explained to her child that the "sea of hands" meant that "white" and "black" Australians should be equal before the law. Others say it means giving Aborigines a "fair go," or that non-Aborigines are sorry for their treatment of the world's oldest living cultural group. This type of ambiguity has characterized the debate on reconciliation. Any one of the seven prominent positions could inspire the planting of a hand in the name of reconciliation. Yet, the inevitable outcome if any one of these models were to succeed would be very different. All have varying degrees of support from both Aborigines and non-Aborigines -- and it is evident that until such time as there is agreement as to the meaning of the term reconciliation, the process cannot move further.
Note: This is an abbreviated version of a paper in the soon to be published volume bt B. Dean and J. Levy `At the Risk of Being Heard', Michigan University Press. See also my text `Aborginal Reconciliation and the Dreaming', for a detailed case study of the significance of the Reconcilliation debate in north-east Arnhem Land.
Council for Aboriginal Reconciliation (1997), The Path to Reconciliation: Issues for a People's Movement. Australian Government Publishing, Canberra.
McIntosh, I.S. (1999). Aboriginal Reconciliation and the Dreaming: Warramiri Yolngu and the Quest for Equality. Boston: Allyn and Bacon.
Reynolds, H. (1999). Why Weren't We Told? A Personal Search for the Truth About Our History. Ringwood: Viking.
Article copyright Cultural Survival, Inc.