The Boyer Lectures of the eminent Australian anthropologist Professor William Stanner entitled After the Dreaming hold their own amongst this country’s finest writings on matters black and white.
Stanner wrote one year aft er the 1967 referendum which, amongst other things, finally incorporated into the Commonwealth the Indigenous people of this country. In this lecture I propose to reflect on some aspects of Stanner’s lectures, whilst tracing some of the developments of the past two decades, leading to the watershed decision of the High Court of Australia on 3 June 1992 on the question of native title to the Murray Islands in the case brought by the late Eddie Mabo and others.
I stood but a child of tender years when Professor Stanner spoke hopefully about our entry with a vengeance into the country’s history. To tell the story of that time and the changes which have happened since and the changes which, like Stanner, we still await, it is appropriate first to tell of the man who commandeered Aboriginal policy in the state of Queensland for more than two decades.
In 1989, on a bright Sunday morning, Joh Bjelke-Petersen stood at the front of the old church at Hope Vale, surveying the long wide street, framed by mango trees and frangipannis, as barking dogs idly chased horses in the background.
Earlier, the former state premier, whose once-authoritarian aspect had by now waned considerably, had regaled the congregation of black faces in the weatherboard church with stories. Stories of how they had transformed dense woodland into paddocks and rows of tin shacks and wide streets named aft er German missionaries now long departed. How they had built this glorious church from the timber that had stood on the paddocks where cattle now grazed. He had returned to the mission to commemorate a community milestone: it was forty years since the Guugu Yimithirr had returned from seven years’ exile in central Queensland. The mission, which had been established in 1886, was closed down during the Second World War, and the people removed when the resident German missionary was interned in 1942.
After the church service, a journalist asked the former premier about land tenure for the people of the community. With perhaps accidental candour, he replied that the land had always belonged to the Guugu Yimithirr. It was just that the government had been looking aft er it for them. And now they had handed the land back to its rightful owners.
It was a startling admission from one who had an international reputation for denying Aboriginal human rights in the state of Queensland and had steadfastly opposed the notion that Indigenous people had certain inherent, traditional rights to their homelands. His government could scarcely bring itself to mention the word ‘traditional’ without suffering acute political nausea.
In the early years of government policy, when it was said we lived ‘under the Act’, Aborigines could be treated unequally because of their alleged backwardness. This belief in innate difference and inequality underpinned a policy of assimilation: by a process of training, civilising and indeed breeding out their backwardness, the blacks could lose their difference and become like everyone else. They could come out into the mainstream society as people exempted from the Act and finally equal. The churches would assist in this endeavour, and to that end no church body broke more sweat than the Hope Vale Lutheran Mission Board under Bjelke-Petersen’s ten-year chairmanship.
My parents watched their contemporaries pack up their young families, leave the mission and go south to live near Lutheran congregations, to milk cows, pick peanuts, cut cane and work on highways, just like poor whites did. I don’t recall wishing that my family had also gone south, but I do recall the strange tolerance that my father and the older people showed those who administered the paternalistic regime under which we lived on the mission: the missionaries and the managers. This was explicable by their over-riding devotion to the church, and by their fierce sense of the mission’s history and of the community’s survival through times of extreme tribulation, hardship, loss and dislocation. Like those born before us and those who would follow, our collective psyche was dominated by the Moses-like figure of Georg Heinrich Schwarz of Neuendettelsau, who had died six years before I was born.
Old Missionary Schwarz had first landed at Cape Bedford in 1887, by which time the Guugu Yimithirr people had been reduced to a demoralised, fringe-dwelling existence by the establishment of Cooktown. Many of their number had by now been exterminated; their bones lined the bloodstained tracks to the Palmer River goldfields. There was gratitude for Schwarz’s lifelong efforts to provide shelter from the colonial storm whose waves had almost completely swamped the Guugu Yimithirr, drowning many of the descendants of those who had first met James Cook at the Endeavour River in 1770. Who among those who saw the sails disappear northwards after the crew of the Endeavour had finished repairing their vessel would have thought that four generations later, the captain’s descendants would return with such vengeance, with a fever for gold and for land, leaving demoralised strugglers begging, sneaking and apologising for an existence in their own country?
Given the church’s role in the secular administration of the mission, and the fact that the government was now headed by Bjelke-Petersen, a church friend, indeed a mission friend during the years of my early youth, the older people forgave and suffered government paternalism in much the same way that they had suffered the paternalism of Old Missionary Schwarz.
But there was increasing disquiet among the younger people about the government- and church-sanctioned policy of inequality justified by difference. Why were people prohibited from buying motor vehicles, why should they have to seek permission from the manager to leave the reserve, why did the money they earned have to be kept and managed by the mission, why could not the community have title to its land in its own hands?
The increasing awareness that the Queensland government’s policies concerning Aboriginal people breached fundamental human rights, and that our mission friend was a leading and vehement opponent of Aboriginal rights, brought on a significant identity crisis for the community. This crisis led to a realisation that paternalism within the family might be a natural, affectionate relationship, but when it involved adults of different races it was undeniably racist, and arose from a fundamental assumption of inferiority and superiority. The government and the church had assumed our innate inferiority and their own superiority. Like many paternal relationships put asunder, the bitterness of this realisation was painful.
As with the memory of the old missionary, the pain was most acutely felt by those who had watched their parents and grandparents endure a system that treated them as state wards, as incapable and undeserving of equality and dignity. In the young hearts of those who contemplated this history, indignation burned, and their indignation resonated with the memories and secret, long-suppressed feelings of those who had endured the old system. Th ere arose a movement for change and a demand for equality.
During the Brisbane Commonwealth Games in 1982, Aboriginal protests focused international attention on Queensland’s record on human rights generally and land rights in particular and signalled a change in the direction of the National Party government’s policies on Aboriginal affairs. The infamous Aborigines Act was repealed and new, less draconian legislation governing communities was introduced. Together with legislation granting a form of land title to Aboriginal reserves under an instrument called a Deed of Grant in Trust, this heralded a new era during which the government strove to address the long-standing and widespread criticism of its discriminatory laws.
Rather than sanctioning difference and inequality, the new policies emphasised equality and sameness. Aboriginal people were no longer to be distinct from the rest of the Queensland community; they were equal, and this meant that they must not be allowed to be different. Aborigines were to be considered merely dark-skinned Queenslanders.
Formal equality was now largely a fact. The government’s policies were therefore difficult to reproach. The response was always that it now treated Aborigines like any other Queenslanders.
Of course, the respect in which Aborigines were most similar to their fellow Queenslanders was that they had no special claim or right to their traditional homelands. Non-Aboriginal Queenslanders had no such inherent rights: all rights to land in the state were granted by the Crown and there was neither any legal nor moral claim on behalf of Indigenous people to what they claimed were their lands.
Therefore, whilst a substantial policy change occurred in the 1980s, from inequality and difference to equality and sameness, both policies were discriminatory and were premised on a vehement denial of the notion of traditional rights to land. Professor Stanner had confronted the myth of waste and desert lands and said that if Crown title were paraded by, every Aboriginal child would say, like the child in the fairy tale, ‘But the emperor is naked ...’; but in Queensland, the government continued to insist that the emperor was decently attired. Thus the Bjelke-Petersen government moved at a night sitting of the parliament to pass the Queensland Coast Islands Declaratory Act 1985. This Act purported to retrospectively extinguish any native title that might have existed in the Murray Islands. If valid, the legislation would bring to an end the court action brought by Eddie Mabo and others three years before.
That action had challenged the Deed of Grant in Trust system by disputing the Crown’s power to grant title to people who claimed they already held a pre-existing title to their homelands. Before dealing further with the question of pre-existing title and the outcome of what is the most important and controversial decision of the High Court of Australia, I would like to survey briefly the developments which unfolded at the national level following the 1967 referendum and Stanner’s hopes for a final breaking of the Great Australian Silence and for recognition of Aboriginal land rights.
Prior to his Boyer Lectures, Professor Stanner had been to Yirrkala on the Gove Peninsula, consulting the Aboriginal people in relation to bauxite mining leases granted to the Nabalco corporation. He spoke in his lecture about the people’s anxiety about the proposed development, and the strong feelings they expressed about their homelands and what lay ahead. In 1968, the Yirrkala people launched an action in the Supreme Court of the Northern Territory against the mining company, claiming that they held a communal native title, recognised by Australian common law, to their traditional lands. Professor Stanner gave expert evidence for the plaintiffs.
In a 1971 decision now known as the Gove land rights case, Justice Blackburn of the Northern Territory Supreme Court found that there was a traditional system in place in the claimed lands, which he described as ‘a government of laws and not of men’. Nevertheless, his judgment denied that native title was part of Australian common law, and he confirmed the assumed doctrine of terra nullius: before 1788, Australia had been an empty land without owners.
However, the negative finding in the Gove case, combined with increasing political agitation by Aboriginal people in the early 1970s, gave rise to a political imperative to address land rights. If Aboriginal people possessed no inherent rights to land as a matter of law, then a moral onus fell upon parliament to grant them rights to land. Such Aboriginal ‘rights’ to land would emanate from the same source as the land tenure held by non-Aboriginal Australians; that is, by virtue of Crown grants. The Indigenous people possessed no inherent or pre-existing legal rights to land.
The Woodward Commission, established by the Whitlam Labor government, eventually led to the enactment of the Northern Territory Land Rights Act 1976. Other parliaments were slower and less willing to act and, despite having the constitutional ability to create similar statutory regimes for the states, the Commonwealth was only willing to act in relation to the territories, principally the Northern Territory. Statutory land rights schemes were eventually established in South Australia, New South Wales and Queensland with varied, and mostly unsatisfactory, results; it is true to say that each subsequent measure was less inspired than the last.
The recommendations of the Seaman Inquiry for a statutory scheme in Western Australia were not taken up by the state Labor government, which succumbed to an intense opposition campaign from the mining lobby. Th is campaign also saw the Commonwealth’s attempt to establish a national land rights scheme come to grief because of a failure of political will. Tasmania has refused to enact even the most modest of measures.
What has resulted is a patchwork of legislative regimes that have made provision for some areas of the country and no provision in respect of others. Moves in the mid-1980s at the federal level to introduce a national land rights model failed to fulfil the need for a national provision. The wellspring of goodwill which erupted aft er the Gove case had petered out to a trickle by the time Michael Mansell made his assessment in 1989 that no more would we see land rights legislation in this country. The question, so far as the materialistic Australians of the 1980s were concerned, had been more or less addressed and, if not addressed, then at least attempted. In confirmation of Mansell’s assessment, in 1991 the Queensland Labor government introduced the Aboriginal Land Act, which restricted native title claims to land that had been expressly made available by the government. This was a much more conservative approach than the ALP had promised before the 1990 election, and the party subsequently adjusted its land rights policy platform downwards to match its legislation. The outcome determined the policy.
It therefore appeared by 1991 that there would be no more political or social impetus for any national movement on land rights. At this point, Mansell quite correctly asked whether our better prospects might lie outside of the nation rather than within it.
The constitutional mandate over Aboriginal affairs which the 1967 referendum gave the Commonwealth has been infrequently exercised. The states have too often been left to repeat the long history of neglect and denial that gave rise to the need for constitutional change in the first place. One of the few occasions on which the Commonwealth assumed responsibility for Aboriginal affairs was the Whitlam Labor government’s enactment of legislation outlawing Queensland’s discriminatory laws. And of course, the most significant exercise of the race power came in the last days of that government with the enactment of the Racial Discrimination Act in October 1975.
This Act has proved to be pivotal in the protection of native title as established in the Mabocases. The High Court found in 1992 that although, under Australian common law, the British Crown had acquired sovereignty over the country, this did not extinguish the beneficial title of the Indigenous inhabitants. This decision has revolutionised the nation’s understanding of its land laws and indeed its history.
Certain historical truths are difficult for some to accept, given that history is so important to contemporary political ideology. Certain prescriptions taste like too many bitter pills to many Australians, who have lamented, grieved and felt betrayed by the Court’s decision. There are black Australians, too, who will feel betrayed by the Court’s decision, who will feel short-changed by history and white law. But for many Australians, both black and white, Maborepresents an opportunity to achieve a greater national resolution of the question of Aboriginal land rights, and to improve relations between the new and old of this land; Mabo represents a first step in a new direction which might yield the changes necessary for Indigenous people to be genuinely repossessed of their inheritance.
Mabo is an attempt by the colonialist legal system to accommodate Aboriginal land rights. It is by no means the most perfect accommodation between rights under Aboriginal law and the white legal system. But, from all assessments, it is close to the best accommodation achievable within the Australian legal system. It stands creditably against similar accommodations in Canada, the United States and New Zealand. The significance of the decision is that it recognises Aboriginal law and custom as a source of law for the first time in 204 years of colonial settlement. For the most part, however, Aboriginal law remains unrecognised. Mabo sets the stage for an interaction which has never before been possible.
Colonial law has been a reality in Australia since 1788. Colonial law is part of our Indigenous reality here in Australia: it determines our ability to exercise our law, enjoy our rights and maintain our identities. But Aboriginal law is also a reality, and we are unanimous in our resolve that it continue to be so. With Mabo, the colonial system is saying: yes, we do recognise Aboriginal law in certain circumstances relating to land, but our law also says that there has been legal extinguishment of Aboriginal title in many circumstances. As to the balance of Aboriginal law, well, the colonial law is saying: it has no reality, insofar as we are concerned and insofar as we are prepared to act.
No matter the illegitimacy of the imposition of colonial law, no matter how revisionist and how artificial and pragmatic the High Court’s recognition of Indigenous law in the Murray Island case might be said to be – it is nevertheless the prevailing reality. If this is the situation – that Aboriginal law has restricted recognition and there is little prospect for an extension of that recognition through agitation of the common law – what strategies can we pursue to make Aboriginal law have consequence for our colonial condition?
First of all, we need a new political ideology for Indigenous political strategy. For the most part, the Aboriginal political system occupies a sphere quite distinct from the white political system. Indigenous political activity and philosophy tend to spin in an orbit that does not have much relevance to, or impact upon, the dominant sphere in which many of the critical developments take place.
Uncle Tom and Malcolm X represent the two extreme characterisations of racial politics in the United States, where the pan-African American struggle has provided an image of how black politics ought to be understood. At one end of the spectrum is the sell-out, at the other the radical activist. These characterisations are largely white constructs. The colonists have defined the way in which our struggle is to be understood – they, the media, the wider colonial society, defi ne our struggles as moderate or radical, conservative or activist, to suit themselves, and we have internalised these characterisations and made them our own.
In Australia, early black leaders seized upon the politics of liberating victims that had defined the black struggle against segregation in America. Later, the emergence of radical activism forced Australians to change how they viewed the victims, but it did not always change the position from which the victims spoke – they were still defined as a powerless and oppressed minority. The language of victim politics positioned the rest of Australia as guilty perpetrators. This is an uncomfortable position, and not one which will sustain a political cause. The Australian body politic will salve its conscience for only so long before it reacts with an indignant backlash – the ‘we can’t be blamed for what happened’ response.
Such conscience-salving is to be particularly observed in the ready agreement of those most vehemently opposed to land rights who nevertheless concede the need to address the shameful health, sanitation, educational, employment and housing conditions of black Australians. Rather than land rights, this view urges conscience-salving through the pursuit of what Stanner called ‘hobby horses’: particular measures targeting specific problems. In 1968, many of the statistics were deteriorating rather than improving, which makes Stanner’s questioning of this approach relevant to 1993. Of those who pursued these pet projects he said: ‘They are all in part right and therefore dangerous. If all these particular measures, with perhaps fi ft y or a hundred other, were carried out everywhere, simultaneously, and on a sufficient scale, possibly there would be a general advance ... But who shall mobilise and command this regiment of one-eyed hobby horses? And keep them in column?’
For the Indigenous quarter, our changing political circumstances require us to re-evaluate our political strategies. People aren’t moderates or conservatives on the one hand, and radicals and extremists on the other. Rather, actions and strategies should be seen as moderate or radical. Th e test of a strategy’s credibility is not whether it is radical or conservative, but whether it is smart or dumb, and whether it enhances or jeopardises the rights and interests of one’s people.
The politics of victimhood asserts that unless the dominant state accepts us on our own terms, any complicity, any dealing, constitutes an unacceptable relinquishment of our power. For a long time, the only political currency Aboriginal people could use was their refusal to be involved. Now that the non-Aboriginal legal system has offered something in the way of rights, however narrow, to refuse to engage in the game and to fail to appreciate the rules and its limitations – even if we still wish to disrupt the game – no longer seems smart. Th e challenge is to negotiate the expansion of those rights without losing ground and without damaging the chances of future advances in a struggle which has incrementally advanced and whose destination is still far away.