RECONCILIATION AND COLONIAL POWER

In the 1990s several countries that had been divided by mass violence or gross human

rights violations instigated projects of national reconciliation. In 1991 Australia

instigated its own reconciliation project between indigenous and non-indigenous

people. In this book the author offers a sociological interpretation of this process which

suggests that, rather than being a genuine attempt at atonement, that is responsive to

key indigenous aspirations, Australian reconciliation is perhaps better understood as

the latest stage in the colonial project.

Despite being the longest running reconciliation process, to date there has been

no authoritative study of Australian reconciliation. This book fills this significant

gap in theoretical and empirical understanding, considering the relevance of

acknowledgement and apology, restitution and rights, nation building and state

legitimacy to the reconciliation project.

During Australian reconciliation both the Keating and Howard governments had

the opportunity to give legislative effect to common law indigenous land rights,

but as this book shows, the legislation that was supposedly enacted to enshrine

indigenous land rights more closely reflected the needs of commercial interests and

actually functioned to dispossess indigenous people still further.

This is the first book to analyse Australian reconciliation as a reconciliation

process. It compliments the burgeoning literature on reconciliation theory and

practice and provides fertile material for comparisons with reconciliation processes

in other countries such as Chile and South Africa.

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Reconciliation and Colonial PowerIndigenous Rights in Australia

DAMIEN SHORT

Roehampton University, UK

© Damien Short 2008

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system

or transmitted in any form or by any means, electronic, mechanical, photocopying, recording

or otherwise without the prior permission of the publisher.

Damien Short has asserted his right under the Copyright, Designs and Patents Act, 1988, to be

identified as the author of this work.

Published by

Ashgate Publishing Limited Ashgate Publishing Company

Gower House Suite 420

Croft Road 101 Cherry Street

Aldershot Burlington, VT 05401-4405

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England

Ashgate website: http://www.ashgate.com

British Library Cataloguing in Publication Data

Short, Damien

Reconciliation and colonial power : indigenous rights in

Australia

1. Aboriginal Australians - Civil rights 2. Aboriginal

Australians - Politics and government 3. Aboriginal

Australians - Government relations 4. Aboriginal

Australians - Social conditions 5. Australia - Ethnic

relations

I. Title

323.1'19915

Library of Congress Cataloging-in-Publication Data

Short, Damien.

Reconciliation and colonial power : indigenous rights in Australia / by Damien Short.

p. cm.

Includes bibliographical references and index.

ISBN 978-0-7546-4938-0

1. Indigenous peoples--Civil rights--Australia. 2. Indigenous peoples--Australia--

Social conditions. 3. Indigenous peoples--Australia--Government relations.

I. Title

JC599.A8S46 2007

323.119'915--dc22

2007017563

ISBN 978 0 7546 4938 0

Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall.

Contents

List of Figures vii

Acknowledgements ix

List of Abbreviations xi

1 Introduction 1

2 Contribution and Engagement 11

3 Reconciliation and Land 31

4 Reconciliation and Land II: The Wik Case 65

5 Reconciliation and the ‘Stolen Generations’ 87

6 Reconciliation and Non-Indigenous Australians:

The CAR and the ‘People’s Movement’ 109

7 Indigenous People and Australian Reconciliation 131

8 The Political Functions of Australian Reconciliation 155

9 Conclusion 177

Bibliography 185

Index 201

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List of Figures

Figure 6.1 ‘Sorry in the Sky’ 117

Figure 7.1 The Aboriginal Tent Embassy 150

Figure 7.2 Corroboree for Sovereignty 151

Figure 7.3 A protest sign at the Corroboree for Sovereignty 151

Figure 7.4 Another protest sign at the Corroboree for Sovereignty 153

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Acknowledgements

Many people were involved in the process of researching and writing this book. In

particular I would like to thank Dr Colin Samson, from the University of Essex,

who provided invaluable advice and support. I am also indebted to the anonymous

referees from Citizenship Studies, International Political Science Review, Journal

of Intercultural Studies and the Journal of Australian Indigenous Issues, whose

insightful comments, on the articles that emerged from this research, also improved

the larger project. I also wish to thank the Economic and Social Research Council

and the University of Essex, Sociology Department (Fuller Fund) for their financial

support and also the staff at the Centre for Cross Cultural Research, the Australian

National University, Canberra, for their invaluable help throughout my visiting

fellowship in 2003. The Poskitt family deserve a special thank you for their kindness

and wonderful hospitality during my many fieldwork trips, as does Ellie Gilbert who

aided my data collection endeavours enormously.

Much of the material contained herein has been published in the following

papers and is reproduced here with the kind permission of the publishers: Taylor and

Francis, Sage Publications and Monash University.

Short, D. (2003), ‘Australian “Aboriginal” Reconciliation: The Latest Phase in the

Colonial Project’, Citizenship Studies, Vol. 7, No. 3, September, pp. 291–92. For

information see <http://www.tandf.co.uk/journals/titles/13621025.asp>

Short, D. (2003), ‘Reconciliation, Assimilation and the Indigenous Peoples of

Australia’, International Political Science Review, Vol. 24, No. 4, October. For

information see < www.sagepub.com>

Short, D. (2005), ‘Reconciliation and the Problem of Internal Colonialism’, Journal

of Intercultural Studies, Special Edition on Reconciliation, Vol. 26, No. 3, August.

For information see <http://www.tandf.co.uk/journals/titles/13621025.asp>

Short, D. (2006), ‘Reconciliation as Education: the Council and the “People’s

Movement’’’, Journal of Australian Indigenous Issues, Vol. 8. No. 1. For

information see < http://www.arts.monash.edu.au/jaii/index.html>

Short, D. (2007), ‘The Social Construction of Indigenous “Native Title” Land Rights

in Australia’, Current Sociology, 55, pp. 857-876. For information see <http://csi.

sagepub.com/cgi/reprint/55/6/857.pdf>

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List of Abbreviations

ABS Australian Bureau of Statistics

ACT Australian Capital Territory

ALP Australian Labour Party

AMIC Australian Mining Industry Council

ANTAR Australians for Native Title and Reconciliation

APG Aboriginal Provisional Government

ATC Aboriginal Treaty Committee

ATSIC Aboriginal and Torres Strait Islander Commission

BTH Bringing Them Home, the HREOC National Inquiry into

the Separation of Aboriginal and Torres Strait Islander Children

from Their Families

CAR Council for Aboriginal Reconciliation

CARA Council for Aboriginal Reconciliation Act 1991

CERD United Nations Convention on the Elimination of all forms

of Racial Discrimination

CRA Conzinc Riotinto of Australia Ltd

HREOC Human Rights and Equal Opportunities Commission

IDA Issues Deliberation Australia

ILC Indigenous Land Corporation

LRGs Local Reconciliation Groups

MIM Mount Isa Mines PLC

NFF National Farmers Federation

NIWGNT National Indigenous Working Group on Native Title

NTA 1993 Native Title Act 1993

NTAA 1998 Native Title Amendment Act 1998

NTLC Northern Territory Land Council

NTLRA Northern Territory Land Rights Act 1975

RCIADIC Royal Commission into Aboriginal Deaths in Custody 1991

RDA Racial Discrimination Act 1975

SUAPNA Sovereign Union of Aboriginal Peoples and Nations of Australia

SLCRC Senate Legal and Constitutional References Committee

TPP John Howard’s ‘Ten Point Plan’ for amendments to the NTA 1993

TRC South Africa’s Truth and Reconciliation Commission

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Chapter 1

Introduction

For two hundred years we have been subjected to death, abuse and denial of dignity

and basic human rights by the white usurpers of our land. Today we are the products

of the ravages of white settlement … As Aborigines began to sicken physically and

psychologically, they were hit by the full blight of the alien way of thinking. They were

hit by the intolerance and uncomprehending barbarism of a people intent on progress in

material terms, a people who never credited that there could be cathedrals of the spirit as

well as of stone … It is my thesis that Aboriginal Australia underwent a rape of the soul so

profound that the blight continues in the minds of most blacks today.

Kevin Gilbert (Living Black, 1977: 3,238,245)

Kevin Gilbert was one of Aboriginal Australia’s most strident voices. He died in

early 1993 and like most Aboriginal men he failed to reach sixty years of age.1 He

experienced fourteen and a half years in some of the worst prisons in Australia yet

still managed to author many visionary works dedicated to the search for justice for

Aboriginal people. A dominant focus of Gilbert’s quest for justice was a campaign

for a treaty between indigenous peoples and the Australian state that began in

earnest in the late 1970s (see Harris, 1979, Gilbert, 1993) and garnered considerable

support throughout the 1980s. The idea had significant potential as Australia, unlike

New Zealand and North America, was colonised purely by forceful assertion.

No negotiated settlements or treaties were entered into by the colonisers with the

indigenous inhabitants. The sovereignty of the British Crown was simply asserted

through brute force.

Aided by the lobbying efforts of the Aboriginal Treaty Committee and Gilbert’s

Treaty 88 group, the treaty campaign gathered momentum in the late 1980s, but was

ultimately channelled, by political opponents, toward a more equivocal open ended

‘reconciliation’ initiative. The Hawke government suggested that non-indigenous

Australians needed to be ‘educated’ about the Aboriginal problem before they would

be ready for a treaty and consequently that would be one of the priorities of the

reconciliation process.

Two years before Gilbert’s death the Australian parliament created a Council

for Aboriginal Reconciliation (hereafter the CAR) to head a reconciliation process

between Aboriginal and Torres Strait Islanders and non-indigenous society. The

1 The life expectancy at birth for an indigenous male is 56 years, and for an indigenous

female, 63 years. Comparable life expectancies were experienced by males in the total

population in 1901–10, and females in 1920–22. Today males in the total Australian population

have a life expectancy of 76 years and females 82 years, see Australian Bureau of Statistics

(2001).

Reconciliation and Colonial Power2

rationale for the process is set out in the enabling legislation preamble which states

that

because:

(a) Australia was occupied by Aboriginal and Torres Strait Islanders who had settled for

thousands of years, before British settlement at Sydney Cove on 26 January 1788; and

(b) many Aboriginal and Torres Strait Islanders suffered dispossession and dispersal from

their traditional lands by the British Crown;

(c) to date, there has been no formal process of reconciliation between Aboriginal and

Torres Strait Islanders and other Australians; and

(d) by the year 2001, the centenary of Federation, it is most desirable that there be such a

reconciliation; and

(e) as part of the reconciliation process, the Commonwealth will seek an ongoing national

commitment from governments at all levels to cooperate and to coordinate with the

Aboriginal and Torres Strait Islander Commission as appropriate to address progressively

Aboriginal disadvantage and aspirations in relation to land, housing, law and justice,

cultural heritage, education, employment, health, infrastructure, economic development

and any other relevant matters in the decade leading to the centenary of Federation,

2001.

(Council for Aboriginal Reconciliation Act 1991 preamble).

When the process began, indigenous peoples comprised 2.1 per cent of the

Australian population but had the worst rank in every social indicator available. By

one study the poverty of Aboriginal people was so desperate that 40 per cent lacked

the most basic resources in order to survive (Australian Bureau of Statistics, 1991).

Indigenous people died at a rate around 8 times higher than other Australians (ibid.).

They also experienced rates of arrest and imprisonment grossly disproportionate to

their numbers. In 1987 the Royal Commission into Aboriginal Deaths in Custody

found that Aboriginal children represented 2.7 per cent of Western Australian

young people, but over half of the youth in prison were Aboriginal (1991: 101).

The Commission (1991: 256) concluded that the root cause of indigenous peoples’

structurally entrenched social inequality was the dispossession of their lands and

loss of autonomy. It further recommended that the proposed process of reconciliation

address these issues.

During the formal reconciliation process an independent national inquiry into the

state sanctioned practice of indigenous child removal revealed the trauma experienced

by the ‘Stolen Generations’, while the High Court recognised indigenous peoples’

‘native title’ rights to land. In May 2000, 400,000 people walked across Sydney

Harbour Bridge in a massive show of support for the reconciliation process, which

was later heralded as evidence of a growing ‘people’s movement for reconciliation’

(see CAR, 2000). Yet despite these apparently significant events at the end of the

official process’ mandate indigenous peoples were still an excluded underclass; they

had the highest incidences of disease and respiratory infections and the lowest life

expectancy (see Australian Bureau of Statistics, 2002).

According to the Australian Bureau of Statistics (ABS), in 1998–2000 Aboriginal

and Torres Strait Islander males and females at all ages have markedly higher age-

specific death rates compared with the total population. Between the ages of 30

Introduction 3

and 64 years the death rates of indigenous people were approximately seven times

the rates for the total population in those age groups and the significantly lower

life expectancy of indigenous peoples, compared with the total population, also

reflects their higher death rates at all ages (ibid.). According to the ABS, much of

the difference between indigenous and total life expectancy can be attributed to

the excessive rates of infant death among indigenous peoples. In 1998–2000, for

example, the death rate for indigenous infants was around four times the rate in the

total population (ibid.).

Furthermore, as Tatz (1997) has shown, suicide is endemic in many Aboriginal

communities, as is trachoma (an eye disease that has been largely eradicated in

Africa). Where change has occurred it has largely been for the worse. Indeed, in

1997, the Federal Health Minister stated that during the reconciliation period there

has been ‘no evidence of any improvement whatsoever in the last decade ... the

gap (between the health of indigenous and non-indigenous peoples) has actually

widened’ (in Pilger, 1999). This is in spite of the fact that, according to the preamble

to the legislation, Australian reconciliation was instigated to ‘address progressively’

indigenous disadvantage.

The process was also initiated to address ‘indigenous aspirations to land’, and yet

during Australian reconciliation the Keating government responded to a High Court

decision, which recognised limited indigenous rights to land, by enacting legislation

that rendered such rights largely meaningless, while his successor, John Howard,

effectively extinguished the rights all together. Given the centrality of truth-telling,

acknowledgement and restitutive justice to reconciliation projects elsewhere, it is

also significant that there has been neither official acknowledgement nor apology

nor compensation for the Stolen Generations. In light of this it seems that, prima

facie, Australian reconciliation represents a paradox.

In researching this book I sought to develop a sociological understanding of this

apparent paradox while evaluating the process against its own logic (see CARA

1991 preamble) and the aspirations of indigenous peoples. I ask a number of broad

questions: to what extent were key indigenous aspirations2 such as land and redress

for the Stolen Generations addressed during the reconciliation period? Were there

any structural or political impediments to the realisation of indigenous aspirations

during the reconciliation period? Given that the treaty campaign was diluted under

2 The term ‘indigenous aspirations’ is obviously rather broad and could be used to refer

to a host of indigenous concerns. The CARA 1991 preamble, however, lists the dominant

broad aspirations as land, housing, law and justice, cultural heritage, education, employment,

health, infrastructure, economic development. Yet, for the purpose of this thesis I decided

to focus on the two broad issues that indigenous peoples themselves cited as central to the

reconciliation project: land and redress for the Stolen Generations. I arrived at this opinion

after analysis of press releases, conferences, public lectures and media interviews of high

profile ‘national’ indigenous leaders in conjunction with ethnographic fieldwork interviews

I conducted with ‘grassroots’ leaders from Wradjuri, Mirrar, Ngunnawal and Pitjatjantjarra

clans and participant observation at key reconciliation events. The centrality of both land

rights and the Stolen Generations to reconciliation was also confirmed by Issues Deliberation

Australia (2001) who conducted quantitative and qualitative research into reconciliation and

which is discussed in Chapter 6.

Reconciliation and Colonial Power4

the auspices of educating the non-indigenous, did Australian reconciliation have an

impact in this regard? What were the overall functions of Australian reconciliation?

How is the process as a whole best understood? Can it be understood as a genuine

attempt to address colonial dispossession and its legacy and include and recognise

Aboriginal people on their own terms?

Central Focus

The reconciliation paradigm, as a vehicle for social stability, suggests that the

source or multiple sources of the ‘conflict’ need to be adequately identified and

addressed (see Lederach, 1999, Minow 1998, Roteberg and Thomson, 2001). This

usually means the original and subsequent ‘wrongs’ need to be acknowledged and

accompanied by appropriate redress. The CARA 1991 preamble identifies the act of

colonisation as the source of the ‘conflict’ in this context, albeit using the euphemism

‘settlement’. In other words, the original ‘wrong’ was the forcible dispossession of

Aboriginal peoples by the British which first began in 1788.

The dispossession of land and political autonomy is now increasingly cited,

both by indigenous and non-indigenous people, as the root cause of today’s levels

of Aboriginal disadvantage (see for example the Royal Commission, 1991: 256).

Socio-historical understanding has been facilitated over the years by indigenous

and non-indigenous revisionist historians, academics and activists. The works of

historians like Henry Reynolds (1981) and Peter Read (1981), social scientists like

Charles Rowley (1970), coupled with the invaluable contributions of indigenous

writers and activists, such as Kevin Gilbert (1977) and Mudrooroo (1965, 1988), did

much to alter the outlook of both indigenous and non-indigenous Australians.

The writings of Charles Rowley and Kevin Gilbert were particularly distinctive

at the time due to their sociological nature. They sought to explain historical and

contemporary indigenous/settler relations by placing Australia within a critical

account of colonialism and racial discrimination (Yardi and Stokes 1999). Both

Rowley and Gilbert, shifted attention away from explanations based on Aboriginal

‘inferiority’ to more sociological explanations that emphasised broader historical

and structural causal factors. Since the dispossession of land and destruction of

the natural environment also destroyed the basis of indigenous peoples’ spiritual,

cultural, and legal systems, both writers also identified the return of land as key to

Aboriginal recovery (see Rowley, 1986: 46, Gilbert 1993: 160). A point also echoed

by the Royal Commission into Aboriginal Deaths in Custody (1991: 256).

This position is predicated upon an appreciation of the nature of Aboriginal

religion. Despite the significant cultural diversity of Aboriginal groups they share a

communality in their spiritual attachment to the land. They consider themselves as

belonging to the land. It is an integral part of their mythology as well as being their

home, hunting territory, recreation place, cathedral or temple, court of law, their

cemetery, and the place where their spirits return to after death (Greer, 1993: 35). As

Aboriginal writer Larry Langley (1995: 89) states,

Without our land we are nobody, we will die out, finish. The land gives the true meaning

to Aboriginal life.

Introduction 5

Furthermore, as Gilbert (1994: 161) pointed out, the granting of land rights would

also provide much needed ‘symbolic’ redress. Yet for land rights to have more than

just symbolic meaning, indigenous peoples suggest that they need to be accompanied

with a substantial degree of political autonomy (see Gilbert, 1994, Langton, 2000,

Jackson, 2000, Berhendt, 2002, Dodson, 2000). Moreover, since indigenous peoples

were self-governing political entities at the time of colonisation, it follows that a

genuine desire to overcome the injustice of colonial dispossession should involve

an attempt to de-colonise the indigenous/settler relationship. In other words genuine

decolonisation concerns not just land, but also political autonomy. As the Royal

Commission stressed:

The great lesson that stands out is that non-Aboriginals, who currently hold all the power

in dealing with Aboriginals, have to give up the usually well intentioned efforts to do

things for or to Aboriginals, to give up the assumption that they know what is best for

Aboriginals ... who have to be led, educated, manipulated, and re-shaped into the image

of the dominant community. Instead Aboriginals must be recognised for what they are, a

peoples in their own right with their own culture, history and values (RCIADIC National

Inquiry, 1991).

In sum, the accommodation of indigenous peoples’ aspirations in relation to land

and political autonomy within the reconciliation process is therefore a central thread

of this book for two main reasons. First, the preamble to the enabling legislation

identifies colonial dispossession as the source of the conflict and stipulates a desire

to ‘address progressively indigenous aspirations in relation to land and justice’.

Second, indigenous peoples special relationship to their land is such that return of

their lands and political autonomy is considered crucial not only to their cultural

survival as distinct peoples, but also for their physical and mental well-being and

consequently is a key aspiration.

The second major focus of this book is the issue of the ‘Stolen Generations’, an

interesting omission from the official reconciliation remit. The Stolen Generations is

the now common term for possibly the worst injustice perpetrated on Australian soil

during the 20th century: the systematic state sanctioned forcible removal from their

mothers, families and communities of thousands of Aboriginal babies and children

of mixed descent.3 Despite the systematic and widespread nature of the removal

policies they were shrouded in a great silence.

W.E.H Stanner observed in 1968 that Australian history was a narrative silent

about the relations between Aborigines and settlers, and he called upon historians

to break what he termed the ‘cult of forgetfulness’ or ‘the great Australian silence’

(Stanner, 1968: 25). The silence over the forcible removal policies was only truly

broken in 1997 with the publication of the Human Rights and Equal Opportunity

Commission’s report – Bringing Them Home: National Inquiry into the Separation

3 The policies and practices of removal were in effect throughout this century until the

early 1970s. There are many Indigenous people, now in their late twenties and early thirties,

who were removed from their families under these policies. Although the official policies and

practices of removal have been abandoned, the Bringing Them Home report reveals that the past

resonates today in Indigenous individuals, families and communities (See HREOC 1997).

Reconciliation and Colonial Power6

of Aboriginal and Torres Strait Islander Children from Their Families (HREOC,

1997), generally known as ‘Bringing Them Home’ (hereafter BTH).

BTH contained harrowing evidence, finding that forcible removal of indigenous

children was a gross violation of human rights that continued well after Australia

had undertaken international human rights commitments. In particular, the report

concluded that the removal constituted an act of genocide contrary to the Convention

on Genocide (which forbids ‘forcibly transferring children of [a] group to another

group’ with the intention of destroying the group). It was racially discriminatory,

because it only applied to Aboriginal children on that scale. The Report made 54

recommendations, including opening of records, family tracing and reunion services

and the need for reparations.

A prime example of this aspect of Stanner’s great Australian silence was the

omission of any reference to the Stolen Generations in the reconciliation legislation.

This is despite the fact that, by some estimates, up to 100,000 children were removed

under the policies from the early years of settlement up until the late 1970s. With

the publication of BTH, however, the issue of the Stolen Generations has become

inextricably linked with the notion of reconciliation. Indeed, Aborigines in general

consider the Stolen Generations one of the most serious issues in their lives, and

as such, it is regarded as an issue that must be addressed in a genuine attempt at

reconciliation (Tatz, 1998).

Prior to conducting the fieldwork for this book, I had a strong impression that

the issues of land rights and the Stolen Generations were perhaps two of the most

important to Australia’s reconciliation project. This impression was solidified at

many local reconciliation events across the country and most notably at Official

Reconciliation’s show case event: Corroboree 2000.

On the 27 May 2000 the largest, most comprehensive gathering of public

leaders in Australian history assembled at Sydney Opera House for the Council for

Aboriginal Reconciliation sponsored Corroboree (meeting of the minds) 2000. Since

it was perhaps the pinnacle of the reconciliation I made sure to attend. The primary

purpose of the conference was to ‘hand over to the nation’ an ‘Australian Declaration

Towards Reconciliation’. During the ceremony it became quite clear that Aboriginal

people felt a deep sense of frustration over many issues that the reconciliation

process was supposed to have ‘addressed progressively’, but which ten-years later

were being described as ‘unfinished business’. In particular the Corroboree speeches

drew attention to Government failings on the issues of land rights and the Stolen

Generations.

In the few years before Corroboree the Howard government had effectively

extinguished indigenous common law land rights, via the Native Title Amendment

Act 1998 (discussed in Chapter 4), and had sought to deny the existence of the Stolen

Generations (discussed in Chapter 5). Howard also steadfastly refused the victims

of the forcible removal policies a formal apology and compensation. It was not

surprising then that these issues dominated Corroboree 2000.

For the second day of Corroboree 2000 the CAR had planned a ‘people’s walk

for reconciliation’ across Sydney Harbour Bridge. It was attended by around 400,000

people. I had been invited by a group called the ‘Journey of Healing’, who intended

to walk with 54 placards to represent each of the BTH reports’ recommendations

Introduction 7

that they felt had been ignored by the government. During the walk a plane flew

overhead and outlined the word ‘sorry’ in the sky. This gesture was not financed

by the government or the CAR, but by a small North Queensland reconciliation

group that had been deeply moved by the BTH report findings and the lack of

official apology. The emotional and political plight of the Stolen Generations was

undoubtedly a dominant, perhaps the dominant, theme of the Corroboree 2000 walk

for reconciliation.

At the end of the walk there were many Aboriginal groups engaged in a collective

demonstration against the reconciliation process. They held placards that stated

‘No Reconciliation without Justice’, ‘Restore Land Rights Now’ and ‘Recognise

Aboriginal sovereignty!’ Whilst concerned with justice for the Stolen Generations

these groups emphasised the desire for land rights and recognition of political

autonomy and sovereignty, which they see as never having been legitimately

surrendered. They refused to walk in support of a reconciliation process which has,

in their eyes, provided no redress for the injustice of colonisation and its legacy.

The focus of the walk and the demonstrations at the end highlighted the two

dominant issues of the Australian reconciliation discourse: land rights and the

Stolen Generations. It became increasingly clear that a sociological interpretation of

reconciliation in Australia would require an investigation into, and explanation for,

the trajectory of these issues within the official process. If Australian reconciliation,

with the full backing of parliament, was instigated to ‘address progressively’

indigenous aspirations, why, at the end of the process, were they being referred to as

the ‘unfinished business’ of reconciliation?4

The third broad focus of this book is the work of the CAR itself. In particular I

examine the CAR’s ‘educational’ role, since, as we shall see in Chapter 3, politicians

cited the ignorance of the general populace as one of the main reasons for favouring

a reconciliation process with a strong ‘educational’ remit over a formal treaty. Since

one of the CAR’s key tasks was to make policy suggestions to the Minister for

Aboriginal Affairs, I also discuss the CAR’s agenda setting role and the effects and

functions of its policy proposals.

Over the course of this book I show that Australian reconciliation began as a

political response to a growing treaty campaign that had significant resonance

with politicians seeking a legitimate image on the international stage, but which

was considered too divisive for ‘the Australian nation’. I argue that Australian

reconciliation exhibited a subtle yet pervasive nation building agenda that appeared to

offer ‘post-colonial’ legitimacy via the ‘inclusion’ of previously excluded Aboriginal

peoples, but which actually served to weaken Aboriginal claims based on their

traditional ‘separateness’ from settler culture (see Moran, 1999, Short, 2003b).

In short, the book argues that far from being a genuine post-colonial exercise

the political reality of Australian reconciliation was one of intense resistance to

any change in the colonial structures that continue to dominate and subordinate

indigenous peoples. Indeed, the ‘historic turning points’ for land rights, the Mabo

4 The term ‘unfinished business’ was first coined, at least in print, by the Council for

Aboriginal Reconciliation in its final report, see CAR, 2000. It has since become widely

adopted by indigenous supporters and NGOs.

Reconciliation and Colonial Power8

case and the Native Title Act (NTA) of 1993, are exposed as providing no more

than the superficial appearance of justice for colonial dispossession. While the

Howard government’s subsequent amendments to the NTA 1993 are shown to be

a vehicle for the contemporary dispossession of indigenous peoples in favour of

dominant elite groups. I argue that the major failure of Australian reconciliation was

the Federal Government’s prioritising of commercial interests over indigenous land

rights following the landmark High Court cases, Mabo and Wik. Following the Wik

case the Howard government subverted the CAR’s educational role as it sought to

cultivate societal ignorance for its own political ends.

While the reconciliation process had slightly different cosmetic functions

under Paul Keating and John Howard’s premiership, viewed as a whole, I suggest

that the process is best understood as a legitimising ‘post-colonial’ obfuscation

of contemporary dispossession, cultural assimilation and the maintenance of

colonial structures. Finally the book advocates a genuine de-colonising formula for

reconciliation which would address the problem of internal colonisation5 and more

closely reflect indigenous aspirations.

Chapter Outlines

The book is organised into nine chapters. The next chapter (2) discusses a variety

of literatures in order to demonstrate their relevance to the book problematic and to

highlight the importance of the book and its specific contribution. It begins with a

discussion of a broad body of material on reconciliation theory and practice which

has developed in relation to other processes, most notably South Africa’s Truth

and Reconciliation Commission. It then discusses relevant works on indigenous

aspirations and entitlements and sociological approaches to the study of rights, all

of which have informed the book. Finally, the section examines some of the more

interpretive works on Australian reconciliation.

In Chapter 3, I trace the emergence of Australian reconciliation as a political

response to a growing campaign for a treaty which had sought to recognise

indigenous sovereignty and land rights. The chapter moves on to discuss the land

mark High Court decision in Mabo which overturned the terra nullius construct,

that Australia before ‘settlement’ was an ‘empty land’, and recognised a form of

indigenous title to land. The discussion focuses on the public relations campaign

instigated by the mining lobby, in response to the Mabo decision, and its influence

5 In describing the Australian situation as a form of ‘internal’ colonisation I am

borrowing the terminology of political scientist James Tully. Tully (2001: 39) defines this form

of colonisation as ‘internal’ as opposed to ‘external’ ‘because the colonising society is built

on the territories of the formerly free, and now colonised, peoples. The colonising or imperial

society exercises exclusive jurisdiction over them and their territories and the indigenous

peoples refuse to surrender their freedom or self-determination over their territories and

continue to resist within the system as a whole as best they can. The ground of the relation is

the appropriation of the land, resources and jurisdiction of the indigenous peoples, not only

for the sake of resettlement and exploitation (which is also true in external colonisation), but

for the territorial foundation of the dominant society itself’.

Introduction 9

on the Government’s response, the Native Title Act 1993, which the Prime Minister

described as being designed to ‘nourish’ the reconciliation process. This chapter

demonstrates, however, that the legislation was largely a product of the balance

of power between political interests that merely confirmed the dispossessed and

subordinated status of Aboriginal people.

In Chapter 4, I discuss the second major land rights case, the Wik decision,

and the Federal Government’s response. In particular I focus on the influence of

a farming lobby public relations campaign, which followed the lead of the mining

lobby after Mabo in constructing a national crisis of ‘uncertainty’ in order to further

its interests to the detriment of those of indigenous peoples. The chapter concludes

with a discussion of the human rights implications of the Howard government’s

response to Wik.

Chapter 5 focuses on the second major theme of the reconciliation discourse:

the Stolen Generations. It begins with a brief history of the child removal policies

and then discusses the Bringing Them Home (BTH) report and its role in the

reconciliation process. In particular it analyses the BTH conclusion that genocide

was committed in Australia and the ‘implicatory denial’ (Cohen, 2001: 111) of the

Howard government and influential public intellectuals. I link such denialism to a

sanitised view of Australian history, endorsed by the Prime Minister, which I argue

is inimical to the spirit of the reconciliation legislation’s preamble.

Chapter 6 focuses on the specific contribution of the Council for Aboriginal

Reconciliation and its impact upon the attitudes of non-indigenous Australians. In the

late 1980s politicians cited the ignorance of the general populace as one of the main

reasons for favouring a reconciliation initiative with a strong ‘educational’ remit

over a formal treaty. This chapter therefore seeks to evaluate to what extent Official

Reconciliation has had an impact in this regard. In particular it investigates the

CAR’s claim that the enduring legacy of its educational approach is an unstoppable

‘people’s movement for reconciliation’. The chapter argues that on closer inspection

the CAR had little impact on the attitudes of non-indigenous Australians and that

there is only broad popular support for reconciliation when the concept is defined

without reference to key indigenous aspirations.

Chapter 7 focuses on indigenous views of the Australian reconciliation process.

It includes data from interviews with community leaders who frequently assert

that there can be no reconciliation without justice which must include recognition

of Aboriginal sovereignty. It also includes data from interviews with members

of the Stolen Generation and the influential ‘Journey of Healing’ reconciliation

organisation. The chapter discusses the major reconciliation conferences and the

marginalisation of those indigenous leaders who are more critical of reconciliation.

The chapter demonstrates that, generally speaking, indigenous peoples consider

Australian reconciliation to be little more than the latest failure in a long line of

imposed settler ‘initiatives’.

Chapter 8 offers an interpretation of Australian reconciliation based on the research

findings. It highlights the reconciliation process’ broad acceptance of the legitimacy

of existing (colonial) structures and suggests that the process was more concerned

with validating and solidifying dominant structures and legitimising the authority of

the state rather than de-colonising an internal colonial relationship. It concludes by

Reconciliation and Colonial Power10

suggesting that, in the light of the research findings, Australian reconciliation may

be understood as a ‘post-colonial’ smokescreen for the contemporary dispossession

of indigenous peoples and the confirmation of their continued political and social

subordination. In addition to the insights gleaned from the fieldwork findings,

the overall interpretive framework is developed primarily, but not exclusively,

via literature on: the reconciliation paradigm (e.g. Lederach, 1999, Minow, 1999,

Roteberg and Thomson, 2000), political theory and indigenous rights (e.g. Alfred,

1999, Ivison, Patton and Sanders (eds), 2000), Australian identity politics (e.g.

Stokes (ed.), 1997, Spillman, 1997) and Australian anti-colonialism (e.g. Gilbert,

1994, Nacci, 2002).

The concluding chapter summarises the findings and suggests that Australian

reconciliation, in essence, sought to incorporate all that settler society sees as valuable

in indigenous culture whilst offering no redress for the situation that, according to the

preamble of the Act, necessitated the process in the first place, but it does so beneath

a veneer of ‘post-colonial’ goodwill and the appearance of justice. The final part of

the book attempts to sketch an outline for a meaningful decolonising reconciliation

via the work of political scientist James Tully (2000).

Chapter 2

Contribution and Engagement

This chapter seeks to discuss multiple literatures in order to demonstrate their

relevance to the research problematic (Schwandt, 2001: 229) while highlighting the

importance of the work and its specific contribution (Bryman, 2001: 496). Since I have

sought to evaluate and interpret Australia’s reconciliation project this review covers

the following broad areas: First, it discusses the major works on reconciliation as a

paradigm vehicle for social stability in order to better understand the general concept

and its applicability to the case study. Second, it discusses general literature on

indigenous aspirations and entitlements, which demonstrate how colonial structures

continue to restrict indigenous peoples’ autonomy. The indigenous perspective and

the general reconciliation literature combine to elucidate a benchmark by which

to ascertain the authenticity of a process grounded in the need to address colonial

dispossession and its legacy. Lastly, it examines some interpretive perspectives

which focus specifically on the Australian reconciliation process itself and which

have significantly informed my understanding.

Literature on Reconciliation

The twentieth century was marked by horrendous mass atrocities and human rights

violations. The Holocaust, the ‘killing fields’ of Cambodia, the government repression,

mass tortures and murder in Chile and Uganda, the United States’ invasion of Vietnam,

Indonesia’s invasion of East Timor, the Rwandan genocide, Argentina’s ‘Dirty War’

against ‘subversion’ and South Africa’s apartheid and its sustaining violence. Whilst

unique and incomparable, these events involve appalling human behaviour that is

nothing new, perhaps more unusual than the facts of genocide and regimes of torture

marking this era, is the invention of new and distinctive forms of response (Minow

1998: 1). Charting the development over the last two decades of innovative forms

of response to protracted conflict, Lederach (1999: 24) highlights a paradigm shift

in the professional communities of international relations and conflict resolution.

There was a noticeable departure, he suggests, from traditional state diplomacy and

realpolitik toward a more innovative response that attempts to respond to the real

nature of specific conflicts in order to restore and rebuild relationships (Lederach,

1999: 25). The point at which this new innovation meets traditional realism is the

contemporary idea of ‘reconciliation’ (ibid.). Indeed, following incidents of mass

violence or genocide some societies have experienced significant transformations

aided by the reconciliation paradigm. For example, democratic or less repressive

regimes have emerged in El Salvador, Brazil, Chile, and South Africa. However, as

Reconciliation and Colonial Power12

Minow (1998: 2) suggests, such transitions are frequently painful and fraught with

dilemmas over how much to acknowledge, whether to punish, and how to recover.

In searching for a formal response to atrocity, some nations have denounced

forgetfulness and denial and embraced a commitment to replace violence with words

and terror with fairness (ibid.). While more traditional prosecutions of perpetrators

and beneficiaries have been pursued by societies such as Argentina and Rwanda,

many recent innovative responses have been part of an apparent reconciliation

process. These include Canada’s (1997) apology, reparations and grants of land

to some indigenous groups, and Chile (1991) and South Africa’s (1995) Truth

and Reconciliation Commissions (TRCs).1 South Africa’s TRC was an interesting

innovation that was designed to combine an investigation into what happened, a

forum for victims’ truth-telling, a tribunal to decide on reparations, and a mechanism

for granting perpetrator amnesty in return for truthful, often incriminating, testimony.

Under the rubric of reconciliation such actions are frequently coupled with other

measures including remembrance memorials in the forms of public monuments,

sculptures, museums, days of memory and education programmes. These less

aggressive, non-prosecution responses involve not only the government, but also

civil society and institutions outside the law.

Hannah Arendt asserted that in the face of genocide, we ‘are unable to forgive

what [we] cannot punish and [we] are unable to punish what has turned out to be

unforgivable’ (1958: 241). However, the above alternatives are all positive actions,

they all seek to do something even if the best scenario is traversing a path, as Martha

Minow suggests, between ‘too much memory and too much forgetting’ (1998: 4).

Indeed, underlying attempts to act for victims of atrocity is the desire to rise above

inability and incapacity and respond to the needs of victims and perpetrators in the

hope of achieving a peaceful reconciled society.

Reconciliation processes have attempted to provide the machinery, both legal

and cultural, for accommodating and balancing perhaps the two dominant purposes

animating societal responses to collective violence or genocide: the search for

justice and truth (Cohen, 1995: 7). The innovative attempts at dealing with such

issues have in turn generated a significant body of literature. Some have focused

on specific reconciliation projects (see Wilson, 2001, Asmal et al., 1996, Steiner

1997); while other more general theoretical texts have explored the central concerns

of reconciliation as a peacemaking paradigm (see Lederach, 1999, Minow, 1998,

Rotberg and Thomson, 2000).

Truth

There is broad consensus in the literature that establishing the forensic facts

about past injustice is perhaps the first logical step in any attempt at redress and

reconciliation. Indeed, without such knowledge, none of the goals emanating from

the requirement of justice are likely to be realised in any meaningful way. Suitable

1 For the full reports see: Canada – Minister of Indian Affairs and Northern Development

(1997), Chile – CCHR (2000), South Africa – TRC (1996).

Contribution and Engagement 13

reparations cannot be made without a reasonable appreciation of the extent of the

harms inflicted and public acknowledgement must refer to specific occurrences. In

this sense it would appear that the challenges of justice are inextricably linked to

notions of truth. However, truth is a problematic concept that raises questions of

epistemology, objectivity and relativism.

In political contexts ‘truth’, is frequently subject to ideological manipulation, and,

according to Osiel (1995: 510), to charge an official commission with establishing

the truth can raise ‘Orwellian alarms about doublespeak and political show trials

as ‘degradation rituals’.2 Thus, Osiel (ibid.) argues that it is vital to distinguish

and unpack the relevant senses of truth in order to explicate the distinctive moral

conception that might inform a project of reconciliation.

In the context of a reconciliation process, truth will evidently focus on disclosing

prior human rights abuses. Yet this is a complex matter, as reconciliation processes

seek not only knowledge of the relevant facts, but appropriate ways to acknowledge

them. Indeed, the distinction between knowledge and acknowledgement is crucial

for reconciliation. Nagel (cited in Du Toit, 2000: 132) observes that the distinction

involves two quite different senses of truth, none of which make any grand claims to

epistemological certainty. First is the factual truth, relevant to the forensic processes

of gaining and confirming knowledge of particular events and circumstances.

Boraine (in Crocker, 2000: 100) terms this ‘forensic truth’, informing about whose

moral or legal rights were violated, by whom, how, when, where, and why? Truth

commissions can develop knowledge of past atrocities, even if they do not manage to

establish the whole truth they can at least set definite limits to those who for political

reasons would wish to deny the very occurrence of these atrocities (Ignatieff, 1996:

111–113).

The second sense of truth is truth as acknowledgement. At one level the facts

regarding political atrocities or human rights violations are already known, certainly

to the perpetrators and victims themselves; to some degree to their immediate

relations, colleagues, and friends; and to a lesser extent in the wider community.

Yet, the occurrence of these violations is often denied categorically (see Cohen,

2001: 109–111). For example the South African government, frequently stated that

it held no political prisoners at all let alone admitting that prisoners were subjected

to torture or abuse. Where the public gained knowledge of deaths in detention,

these were consistently ascribed to natural or other causes (Du Toit, 2000: 133).

As André Du Toit (ibid.) suggests, this is a political issue precisely because, at one

level, the reality of the violations and atrocities will be known only too well to those

concerned such that the effective refusal to acknowledge them in public amounts to

a basic demonstration of political power. For the victims this could be perceived as a

compounding the original violation and causing a secondary political violation. The

primary violation consists of the actual pain suffered through the original violation

while the political violation consists of the refusal to publicly acknowledge the

original offence (see Du Toit, 2000: 133).

2 Osiel (1995: 510) with reference to Harold Garfinkel, ‘Conditions of Successful

Degradation Ceremonies’, American Journal of Sociology LXI (1956), p. 420.

Reconciliation and Colonial Power14

For a reconciliation process, public acknowledgement of political atrocities

and human rights violations constitutes a special priority, and in this regard truth

commissions, like South Africa’s TRC, can potentially play a vital role. They can

attempt restoration of victims’ civic and human dignity by publicly acknowledging

the truth of what was done to them. This was the rationale behind the TRC’s victims’

hearings where people were enabled to tell their own stories, and to have them

publicly acknowledged in non-adversarial procedures.

The significance of this choice for truth as acknowledgement operates primarily

at a public and political level and not necessarily on a personal level. Indeed, public

acknowledgement may well fail to provide produce personal private healing. Official

public acknowledgment, as Du Toit (2000: 134) maintains, is where

representatives of the state and civil society … take public responsibility for the restoration

of the human and civic dignity of victims whose suffering at the hands of the state or

political agents had so long been denied – that is the political significance of truth as

acknowledgement.

Justice

Reconciliation processes have been concerned with differing senses of justice, all of

which are related to their respective senses of truth. The dominant senses of justice

that have come to the fore are, justice as recognition and justice as restitution and

reparation (see generally Roteberg and Thomson, 2000).

In the case of prosecutions seeking criminal and retributive justice, the structure

of an adversarial system, such as that favoured in North America and much of

Europe, amounts to a special focus on the perpetrator as the accused who is subject

to punishment, but must be presumed innocent until proven guilty. Minow (1998:

9) points out that ‘truth’ in this context is confined to what may be relevant to the

criminal guilt or innocence of the perpetrator. Yet, as Du Toit (2000: 136) asks,

what about the victim’s truth, or the many other complex and multifaceted aspects

of the truth relevant? A truth commission, compared to a criminal justice system

that focuses on the accused, represents an alternative way of linking truth and

justice that puts victims first. Allen (1999: 315) suggests that the relevant sense of

justice, intimately connected with that of truth as acknowledgement, is justice as

recognition: the justice concerned with respecting other persons as equal sources of

truth and bearers of rights.

In practice, Truth Commissions can take the form of non-adversarial, supportive

victim centred forums structured in ways to facilitate victims ‘telling their own

stories’. The relevant sense of truth is of a more holistic narrative truth which

involves the overall framing of the events and experiences that together make up

a victim’s own ‘story’. The perpetrators will however not be invited to tell their

‘own stories’. Such a break with the norms of due process is justified by the specific

circumstances of the conflict, in that the very foundations of law and order were

perverted during the conflict, or the level of official denial is such that there is an

overwhelming need to hear only the victim’s side now.

Contribution and Engagement 15

In addition to justice as recognition the reconciliation paradigm, fuelled by

examples set by working processes such as South Africa’s TRC, has moved away

from prosecutions and embraced an ideal of restorative justice (see Minow 1991:

91). Unlike punishment, restorative justice seeks to repair the injustice and to effect

corrective changes in the record, in relationships and hopefully in future societal

behaviour. The act of violation itself, rather than the offender, is to be renounced and

repentance and forgiveness are encouraged (Zehr, 1990: 211–214).

South Africa’s TRC stated that it was ‘concerned not so much with punishment as

with correcting imbalances, restoring broken relationships – with healing, harmony

and reconciliation’ (TRC Final Report: Chapter 1: 36, 5: 70). The authorising

legislation directed the TRC reparations committee to assemble requests and

proposals from individuals and communities. The TRC in turn has recommended

legislation to establish monetary payments, medical treatment, counselling,

information about murdered relatives, and the naming of parks and schools. The aim

of such reparations was to ‘empower individuals and communities to take control of

their own lives’ (ibid.).

Other reparation efforts after mass atrocities stress restoring specific stolen

properties, paying monetary damages, or securing public apologies from the relevant

authorities (Minow, 1998: 93). Yet, in some circumstances, returning the victims

actual possession is perhaps the best form of reparation. This form of reconciliatory

restitution possibilities is of particular relevance to this book, concerned as it is with

a process instigated to ‘address progressively’ colonial dispossession and its legacy.

Indeed, where the stolen property marks the identity of the wronged group,

restoring such property or granting alternative vacant land or making compensatory

payments and symbolic gestures in this direction, could revive the dignity of the

wronged group. It could also express the commitment of the others to acknowledge

the violations, to make amends, and to break free from the violation and its legacy.

Lands that include burial grounds and religious sites are generally of cultural

importance and become especially worthy candidates for restitution because of their

distinctiveness. As Minow (1998: 110) suggests, restitution becomes the proper

remedy where there is no other remedy for a distinct worthy claim, but where

restitution of the specific article would significantly injure a third party, however,

then spreading the burden, symbolic reparations and/or negotiated settlements, are

all ‘restitutive’ options that could offer a path through the political, moral, and legal

morass.

Reparations express implicitly or explicitly an apology for wrongdoing or for

failing to do more to resist atrocities. This symbolic dimension acknowledges the fact

of harms and accepts a degree of responsibility while guaranteeing non-repetition.

Yet, essentially, the apology depends upon paradox. Nicholas Tavuchis (1991: 5,

77), who has developed a sociology of apology and reconciliation, has highlighted

the almost magical quality of an apology.

Very simply, because an apology, no matter how sincere and effective, does not and cannot

undo what has been done. And yet in a mysterious way and according to its own logic, this

is precisely what it manages to do.

Reconciliation and Colonial Power16

While an apology is perhaps invariably inadequate, forgiveness may depend upon

it. The mystery of apology depends upon the social relationships it summons and

strengthens; the apology is not merely words (Tavuchis, 1991: 115). Crucial here is

the communal nature of the process of apologising. An apology is not a soliloquy

(ibid: 121). An apology requires the involvement of each party and consequently both

reflects and constitutes a moral community. The apology reminds the wrongdoer of

community norms because the apology admits to violating them (ibid: 8). Tavuchis

(1991: 17), argues that ‘to apologise is to declare voluntarily that one has no excuse,

defence, justification, or explanation for an action (or inaction)’. Via examples such

a Richard Nixon’s resignation speech, Tavuchis concludes that any diversion from

accepting responsibility is not an apology. Full acceptance of responsibility by the

wrongdoer is the hallmark of a genuine apology.

An authentic apology cannot be delegated, consigned, exacted, or assumed by

principals, no less outsiders, without totally altering its meaning and vitiating its

moral force (Tavuchis, 1991: 20). Thus, where an official reconciliation process

requires an apology from a state official who was not in power at the time of the

atrocity, the apology is at best offered from the office, not the person. Sorrow is at

best offered then in a formal, official sense (ibid: 104). Official apologies can correct

a public record, publicly acknowledge a violation, assign responsibility and reassert

the moral boundaries. Yet, unless accompanied by direct and immediate actions

(such as payments of compensation) that manifest responsibility for the violation,

the official apology may seem obsequious, insincere and meaningless.

As Chancellor (1998: 8) suggests, ‘apologising is now the rage the world over,

especially in the US, where it has long been a standard means of winning favour

without paying any real price for one’s mistakes’. Nevertheless, it is still the surviving

victims right to withhold forgiveness. Indeed, regardless of who offers the apology

it does not compel forgiveness. As Hannah Arendt (1958: 241) states, ‘forgiveness

itself is and must remain unpredictable’.

In sum, reconciliation as a peacemaking paradigm gradually developed over the

last two decades as several countries attempted to recover from episodes of mass

violence or gross human rights violations. By focusing on restoring and rebuilding

relationships reconciliation initiatives sought to provide an alternative to traditional

state diplomacy and realpolitik (Lederach, 1999). Their primary concern has been to

develop mechanisms that foster state legitimacy, forgiveness and social stability by

attempting to atone for past injustices in novel and context sensitive ways. Lederach,

who has developed one of the few theoretical conceptualisations of reconciliation,

suggests that as peacemaking paradigm reconciliation involves the creation of a

‘social space’ where truth, justice, mercy and forgiveness are validated and joined

together, rather than being forced into a confrontation where one must win out over

the other (see Lederach, 1999).

The practice of reconciliation, however, has not been quite so simple. All too

often it seems the notion of forgiveness does ‘win out’ over justice. South Africa’s

Truth and Reconciliation Commission, for example, has received strong criticism

both from victims, politicians and academics in this regard. Indeed, Wilson (2001)

has shown that while a religious constituency largely embraced the Truth and

Reconciliation Commission’s redemptive language, it had little effect on popular

Contribution and Engagement 17

ideas of retributive justice. Australia’s reconciliation process has also encountered

problems concerning the notion of ‘justice’, yet to date there has been no such

authoritative study of Australian reconciliation. Indeed, Australian reconciliation

does not warrant a mention in any of the major texts on reconciliation despite the

fact that it has been the longest running official process.

The lack of discussion on the subject is perhaps due to the fact that the Australian

process had a much lower profile generally than say that of Chile or South Africa.

Australia was not emerging from a period of protracted bloody conflict nor was it

going through a democratic transition, while the ‘victim group’ represented a much

lower proportion of the population. The lack of academic debate on Australian

reconciliation is also possibly the product of an international view of Australia as a

liberal democratic state with a tradition of upholding human rights internationally

and without any significant domestic ‘conflict’. Yet, as we have seen in the previous

chapter, the Australian reconciliation process poses very interesting questions.

This book seeks to fill this significant gap in empirical understanding via a

sociological evaluation and interpretation of the reconciliation process. It considers,

among other issues, the institutionalisation of indigenous rights in Australia, official

positions on acknowledgement and apology, and the contribution of nation building

and state legitimacy to the reconciliation project. In doing so, I hope to contribute

to a greater understanding of reconciliation in Australia and, more generally,

to reconciliation as a vehicle for social stability and facilitate comparison with

reconciliation processes elsewhere, for example Chile and South Africa.

We now turn to the theoretical debates surrounding indigenous peoples and the

politics of recognition, which I will relate to the notion of reconciliation between

indigenous peoples and their colonisers.

Indigenous Peoples, Liberalism and the Politics of Recognition

Liberal theory has focused primarily on the relation between the individual and the

state. From Hobbes (1982) and Locke (1970) to John Rawls (1999), liberal theorists

have been concerned to explore the individual-state relationship and its inherent

problems. Arguably, the most fundamental premises of liberal thinking are first, that

the individual is regarded as the most fundamental moral agent, and second, that all

individuals are morally equal. Indeed, equality of individual rights and the rule of the

majority have supplied the theoretical foundation for liberal democratic nation-states.

However, the notion of majority rule implies the existence of subordinate

minorities, which liberal-democratic theory deals with as sets of ‘outvoted individuals’

(Freeman, 1995: 25). The legitimation of their situation is based on the guarantee of

their individual rights, which provide them with the opportunity to become a member

of the majority on occasion. On the face of it, this system of majority rule does not

obviously lead to a minority problem. Yet, it is arguable that the creation of modern

nation-states has been partly achieved with the mastery and attempted assimilation3

3 ‘Assimilation’ is a term used to describe the process by which an outsider, immigrant,

or subordinate group (e.g. the Australian Aborigines) becomes indistinguishably integrated

into the dominant host or settler society.

Reconciliation and Colonial Power18

of native or minority communities that has resulted in the formation of permanent

minorities whose interests are persistently neglected or ‘misrecognised’ (Taylor, 1995:

225) by the majority. The state apparatus and the dominant majority may be, in effect,

a permanent bar to the recognition of certain minority interests.

Nevertheless, it would be incorrect to assert that liberal democracy has favoured

individual concerns over collective issues, as it has merely granted the individual

distinguished normative standing within the collectivity that is the nation state.

The explicit irregularity within liberal theory is the collectives that are persistently

unrepresented or at best, as Charles Taylor (ibid.) puts it, ‘misrecognised’ by

their liberal-democratic states. In response to this some theorists point out that an

individual is likely to suffer if her culture or ethnic group is neglected, disparaged,

discriminated against or misrecognised by wider society (see Taylor, 1995: 236,

Freeman, 1995: 25, Kymlicka, 1995). Social recognition is central to an individual’s

identity and well-being and thus misrecognition can seriously damage both (Taylor,

1995). Thus, as Ivison (2002: 8) writes, ‘recent liberal discussions have argued that

cultural or national belonging, other things being equal, is valuable and deserving of

political and institutional support insofar as it helps individuals overcome alienation

from their social world, and contributes to fostering the intersubjective trust and

mutual identification required for re-distributive justice to be realised’.

The case for recognising and protecting a minority via collective rights stems from

the failure of the prevailing liberal doctrine to deal with the problem of persistently

disadvantaged individuals as members of a collective. In overlooking sources of

discrimination like gender or ethnic grouping, the dominant liberal approach is

found wanting. Indeed, Kymlicka (1995) argues that for anti-discrimination policies

to be effective, they require the appreciation that individuals are often discriminated

against by the wider society not merely as individuals but as members of a cultural

group. Moreover, the well being of their members may require that their culture

be protected to a certain extent from the wider society, as it may be hostile to the

traditional values and practices of their communities. To be sure then, while such

writers advocate group specific rights, the underlying justification for the approach is

still inherently individualistic i.e. we should support the notion of group rights where

individuals may suffer if their group does not have rights as a collective.

When we turn the ‘recognition’ debate toward indigenous peoples, however,

there is a more fundamental problem than liberalism’s traditional individualism.

Recognition via collective rights may offer indigenous peoples a greater degree

of equality in fact, and a degree of cultural protection unattainable through pure

individualism, but beneath the veneer of such substantive liberal equality lays the

spectre of colonialism. There is a forceful argument, put forward by many indigenous

writers and post-colonial theorists like Bhikhu Parekh, which asserts that modern

liberalism is founded on an arrogant assertion of cultural superiority, for whilst

western value systems are far from perfect they are nonetheless afforded normative

priority.

As Parekh (1998) observes, liberal notions of justice and fairness are understood

via the assertion of universalised values, like liberal individualism, in contrast to the

supposedly backward, primitive societies that were ‘enlightened’ by colonialism.

Even those liberal and communitarian writers who might be considered champions

Contribution and Engagement 19

of minorities, like Taylor and Kymlicka, skip over the ‘first step in questioning the

sovereignty of the authoritative traditions and institutions they serve to legitimate’

(Tully, 1995: 53).

Such writers, whilst recognising the importance of culture to indigenous

peoples, talk in terms of participation within liberal institutions, and their solutions

to collective disadvantage are framed in a liberal discourse of rights that has been

forced on indigenous peoples by colonialism. Kymlicka, for example, concedes

that indigenous peoples’ special relationship to land is significant enough to justify

recognition via the liberal notions of ‘group rights’ and ‘differentiated citizenship’,

but he exposes the colonial underpinnings of such liberalism by denying indigenous

peoples full political autonomy. Cultural protection should only be available to

indigenous nations ‘if, and in so far as, they are themselves governed by liberal

principles’ (Kymlicka, 1995: 153, my emphasis). Such an approach falsely presumes

the legitimacy of the liberal settler state’s jurisdiction over indigenous nations whose

consent it has not acquired.

Indigenous peoples at the national and international level strongly resist

classification as ‘minorities’. They emphasise their uniqueness both culturally and

via the issue of ‘consent’, which is perhaps the most distinctive aspect of indigenous/

settler state relations. While voluntary immigrant minorities have chosen to become

citizens of the settler nation, many indigenous peoples have never willingly ceded

their lands or political autonomy. Indigenous peoples hold distinct moral claims

as dispossessed first nations, whose ‘forbears will usually have been massacred or

enslaved by settlers, or at the very least cheated out of their land, to which they will

often retain a … spiritual attachment’ (Robertson, 1999: 183, my emphasis).

It is here that the politics of ‘recognition’ fails to accord indigenous peoples

the equal recognition it espouses. The distinct moral claims of indigenous peoples

(as peoples) are frequently trivialised by recognition theorists (see Taylor, 1995,

Kymlicka, 1991, 1995, 2000, Waldron, 1992, Kukathus, 1992, Mulgan, 1998) when

they combine discussion of indigenous peoples with other minorities and largely

focus on internal citizenship based ‘solutions’ to ‘indigenous problems’.4

4 A prime example of such can be found in Kymlicka (1991), where he equates ‘the

special status’ of aboriginal peoples with that of French-Canadians (p. 156) and when he states

that: ‘the issue of minority rights is raised in many countries by the presence of aboriginal

peoples … the rights of Canada’s aboriginal peoples are, therefore, representative of a major

class of minority rights questions’ (p. 157). In a more recent piece (2000: 216) he provides solid

macro reasons for discussing the similarities (2000: 222), and acknowledges the existence of

differences, but in contrast to indigenous peoples themselves he does not attach much weight

to such differences. Moreover, although Kymlicka acknowledges the need for indigenous

autonomy, a crucial limit is evidenced when we consider the possibility of such autonomy

leading to ‘illiberal’ practices such as clitoridectomies. He expresses the limits of his liberal

toleration in Multicultural Citizenship (1995: 153) when he states that cultural protection

should only available to indigenous nations ‘if, and in so far as, they are themselves governed

by liberal principles’. Elizabeth Povinelli (1998) has highlighted that this can only constitute

a degree of autonomy ‘within’ the colonial structures and not full autonomy – Samson (1999)

also concurs with this analysis. For other ‘liberal’ approaches see also Waldron (1992/3),

Kukathus (1992) and Mulgan (1998).

Reconciliation and Colonial Power20

Citizenship is often associated with nation building and state legitimacy and as

such is an unhelpful concept to those ‘citizens’ who question the legitimacy of an

imposed nation-state. As Tully (2000: 39) points out, providing so-called ‘recognition’

to indigenous peoples through settler state granted group rights or citizenship rights

is simply an element of internal colonialism. The problem, for Temagami5 writer

Dale Turner (2006: 57), is that such characterisations of indigenous rights, derived

as they are from various styles of liberalism, do not recognise the legitimacy of

indigenous forms of political sovereignty such that, if they exist at all, they are

subsumed within superior forms of sovereignty held by colonial governments.

Human rights, however, are extra-governmental and have been traditionally used to

counteract the repressive capacity of states (Turner, 1993). This is one of the reasons

why many indigenous peoples have accepted the 1994 United Nations Declaration

on the Rights of Indigenous Peoples (hereafter the UN Declaration) as an articulation

of their rights, as opposed to merely relying on the citizenship rights imposed on

them by settler states.6

The Declaration’s rights to self-determination (Articles 3 and 31) and land (Article

26) are two of the most prized by indigenous peoples. This is because of the centrality

of land to indigenous culture (see Daes, 1999) and because self-determination is seen

as a remedial political right of distinct dispossessed ‘peoples’ and ‘nations’ in contrast

to the individual citizenship rights conferred on them by colonial nation states.7 The

broad interpretation of self-determination in this context refers to the right to political

autonomy, the freedom to determine political status and to freely pursue economic,

social and cultural development. Consequently the right is viewed as central to a ‘just’

response to colonial dispossession and the resultant political and social subordination

of indigenous peoples. As James Anaya (2000: 80) states,

Self-determination precepts comprise a world order standard with which colonialism was

at odds … the substantive content of the principle of self-determination, therefore, inheres

in the precepts by which the international community has held colonialism illegitimate.

Self-determination imposes requirements of participation and consent such that the

end result in the political order reflects the collective will of the peoples governed

and as such does not imply, but neither does it rule out, separate statehood as a

remedy to colonisation (Anaya, 2000: 80).

5 A ‘First Nation’ people of Northern Ontario.

6 For an overview and discussion of these rights see Pritchard (1998).

7 It is for this reason that indigenous peoples have attempted to enshrine the term

‘peoples’ in all UN documents affecting their interests. Yet, it was only very recently that

the term was adopted without qualification in the Political Declaration of the World Summit

on Sustainable Development. It reads: ‘We reaffirm the vital role of indigenous peoples in

sustainable development,’ which is in stark contrast to last year’s UN World Conference

against Racism, held in Durban, South Africa, where the term peoples was qualified as still

being ‘under negotiations’ (paragraph 24 of the Durban Declaration). ‘We think the UN has

made a vital step towards respecting Indigenous Peoples equal to other peoples of the world,’

stated Vicky Tauli-Corpus, ‘This is a significant step in defining the rights of Indigenous

Peoples’, see C.P.S.U (2002). See also Neizen, 2003.

Contribution and Engagement 21

In the 1998 session of the Working Group on the UN Declaration, however,

states, fearful of providing ammunition to secessionist movements, suggested that

indigenous peoples accept the ‘reality’ before them and limit the concept to that

of ‘internal’ self-determination (Lam, 2000: 62). In response, the broad consensus

of indigenous representatives favoured a bifurcate approach: they insisted on a

universally broad, that is, principled reading of the right enshrined in Article 3, but

simultaneously projected a form of its application that would, in most cases, cast

them in associative status states (Lam, 2000: 62). Thus, they consciously rejected

the notion that ‘reality’ dictated subordination to states. As Maori lawyer Moana

Jackson, explains, the breadth of the right to self-determination must be retained to

accommodate those who choose statehood. As for ‘reality’ he observes:

The colonial mind is always inventive, and its final resort is always a political reality

which either permits or denies the right to self-determination. But reality, like law, is a

changing human construct … (in Lam, 2000: 62)

Indigenous calls for self-determination derive from the fact that they were self-

governing political entities or ‘sovereign nations’,8 and in spite of colonisation many

indigenous groups still claim such status. In addition to debates over ‘recognition’,

this situation raises particular concerns for indigenous/settler state reconciliation

processes. In particular, if the concept of reconciliation is concerned with the ‘original

sin’ (Poole 2000: 10) of colonisation without consent and its legacy, we need to be

clear on the appropriateness of the desired outcome. The point is best made with

reference to three broad ‘meanings’ of reconciliation as an outcome identified by

Crocker (2000: 108) that range from ‘thinner’ to ‘thicker’ conceptions.

First there is ‘simple co-existence’, whereby former enemies merely cease

hostilities. The second conception is termed ‘liberal social solidarity’ or ‘democratic

reciprocity’, which refers, not just to an end to hostilities, but to a situation where

citizens respect each other and seek to create space to hear each other out, enter

into a give-and-take on public policy, build on areas of common concern, and forge

mutually acceptable compromises. Finally there is ‘a shared comprehensive vision

of mutual healing, restoration and mutual forgiveness’, which is a more robust

conception that is often attributed to the South African and Chilean processes

(Crocker, 2000: 108).

Where a reconciliation process is between indigenous peoples and the settler

state, the continued existence of sovereign nations problematises the second and third

conceptions. While settler state citizenship rights were heralded as a significant step

towards equality within the colonial state, they have essentially assisted the process

of assimilation (see Gilbert, 1994, Mudrooroo, 1995). Citizenship rights fail to do

justice to the unique indigenous status, as, in the eyes of many indigenous peoples,

such rights emanate from an illegitimate settler state that has subordinated indigenous

laws, autonomy and forms of government. From an indigenous perspective they

may be regarded as little more than acts of absorption and redemption. Accordingly

8 For a discussion on Aboriginal ‘nationhood’ and the misconception that Aboriginal

groups were not ‘distinct political entities’ at the time of conquest, see Reynolds (1996).

Reconciliation and Colonial Power22

the second conception of reconciliation as an outcome would be problematic as it

merely promotes a settler state citizenship based result.

The third conception’s emphasis on a ‘shared comprehensive vision’ is challenged

by the existence of indigenous nations that have never shared a comprehensive vision

with the colonisers nor wish to. In this context, as Mohawk scholar Taiaiake Alfred

(1999: 63) has pointed out, demands for conformity to a single language and way of

knowing can only act as a bar to reconciliation.

Such observations are crucial to evaluating an indigenous/settler state reconciliation

process, initiated to address colonial dispossession and its legacy, as they elucidate a

benchmark by which to ascertain the authenticity of such a process. At the same time

indigenous perspectives aid interpretation of the roles of such a process. Particularly

insightful in this regard are the works of indigenous writers Taiaiake Alfred and Kevin

Gilbert,9 both of whom have highlighted the continuation of a colonial relationship

within their respective liberal ‘multicultural’ states despite the institutionalisation of

indigenous rights to land and other ‘recognition’ initiatives.

For Gilbert (1993) land rights, while a move in the right direction for the victims

of a colonial system, fail to question the legitimacy of settler state sovereignty

over indigenous peoples. Accordingly, he continually emphasised the necessity of

negotiating a ‘Sovereign Treaty’ in Australia to grant political rights, return available

land and provide freedom from the colonial reality. The sovereignty challenge is

particularly strong in Australia as the ‘settlement’ of the continent was achieved by

pure assertion and brute force: there is no negotiated agreement for the settlers to

invoke when their sovereignty is challenged. According to Gilbert (1993: 67) the

Australian state will never be legitimate until it gains the consent of indigenous

peoples by way of an internationally recognised legally binding Sovereign Treaty.

Concerned with the same general observation, Alfred (1999: 48) draws attention

to the pertinence of Foucault’s understanding that state power necessarily requires

self-perpetuating domination.

A critique of state power that sees oppression as an inevitable function of the state, even

when constrained by a constitutionally defined social-political contract, should have

special resonance for indigenous people, since their nations were never party to any

contract and yet have been forced to operate within a framework that presupposes the

legitimacy of state sovereignty over them. Arguing for rights within that framework only

reinforces the state’s anti-historic claim to sovereignty by contract.

Alfred (1999: 58) further suggests that settler state granted ‘rights’ should be viewed

as part of colonialism and not a remedy to it since such ‘rights’ are invariably

9 While these are but two indigenous scholars that have contributed to the development

of an ‘indigenous perspective’, I have been greatly influenced by their socio-political approach

in a field dominated by legal scholars (e.g Anaya, 2003, Lam, 2000). Moreover, although

other indigenous writers may differ on the best solution to indigenous problems there is broad

consensus on the type of problems faced (poor health, youth suicides, lack of autonomy,

cultural erosion and the like) and on the root causal factors (dispossession of land, political

and social subordination). For other similar indigenous perspectives see Mudrooroo, 1995,

Vizenor, 1999, Deloria, 1988.

Contribution and Engagement 23

controlled and regulated by the state. Furthermore, he questions their remedial

quality:

given Canada’s shameful history, defining Aboriginal rights in terms of, for example, a

right to fish for food and traditional purposes is better than nothing. But to what extent

does that state-regulated ‘right’ to food-fish represent justice for people who have been

fishing on their rivers and seas since time began?

He adds that to ‘frame the struggle to achieve justice in terms of indigenous

‘claims’ against the state is implicitly to accept the fiction of legitimate settler state

sovereignty’ and the ‘colonial reality’ (ibid.).

Unlike ‘multicultural’ recognition theorists such as Taylor, Kymlicka and Waldron,

the recent works of James Tully and Michael Asch demonstrate that indigenous

critiques of settler state granted ‘rights’ are finally being embraced by some liberal

theorists. Tully (2000: 47) cites with approval Asch’s critique of Canadian ‘indigenous

rights’ grounded in the politics of recognition. As Asch (1999: 436) suggests,

the underlying premise is that Aboriginal rights are not to be defined on the basis of

the philosophical precepts of the liberal enlightenment, are not general and ‘universal’

and thus categorically exclude any fundamental political right, such as a right to self-

determination that could be derived from such abstract principles.

In other words, such rights are entirely derived from a ‘superior’ European based

legal system.

Within the academic debates on the politics of recognition the normative

formulation advocated by Nancy Frazer (2002) is perhaps best placed to

accommodate the indigenous sovereignty challenge. While Frazer (2002: 21) was

not in any way concerned with the specific problems for recognition politics posed

by indigenous peoples, her basic assertion that meaningful recognition can only be

achieved through ‘redistribution’ is pertinent to their plight, especially since in her

formulation ‘redistribution’ is not just concerned with ‘a more just allocation of

resources and goods’ (ibid.). She persuasively argues, albeit without reference to

the specific claims of indigenous peoples, that ‘struggles for recognition occur in

a world of exacerbated material inequality’ (Frazer, 1995: 68) and that ‘economic

disadvantage and cultural disrespect are currently entwined with and support one

another’ (ibid: 69). Thus, she contends that meaningful recognition for groups who

are disadvantaged, both socio-economically and culturally, requires ‘economic and

political restructuring’ in addition to ‘cultural or symbolic change’ (ibid: 73, my

emphasis). Parekh (1995: 343, my emphasis) concurs with this analysis and argues

that ‘misrecognition … can only be countered by both undertaking a rigorous critique

of the dominant culture and radically restructuring the prevailing inequalities of

economic and political power.’

Applying Frazer’s general observation to the case of indigenous peoples

produces the following position: genuine ‘recognition’ of indigenous peoples

(colonised without consent) must involve a redistribution of both political power

and resources, which terminates not only their economic and social subordination

but also the colonial relationship itself. Indeed, as Gilbert, Alfred and Tully have

Reconciliation and Colonial Power24

suggested, to truly address colonial injustice recognition debates over political and

economic restructuring must not assume the legitimacy of settler state sovereignty

over indigenous peoples. Indeed, to fully meet the indigenous sovereignty challenge,

indigenous peoples must be recognised as distinct political entities with sovereign

political rights to the lands they have occupied prior to colonisation and treated as

nations equal in status, but not in form, to the settler state (see Tully, 2000: 53).

The insights presented above have fed into the broad sociological analysis of

Australian reconciliation deployed in this book. In the next section, however, I

focus more specifically on the issue of ‘rights’ and discuss key contributions to the

emerging field of the sociology of human rights while highlighting their relevance

to this project.

Sociology of Human Rights

Until relatively recently, fuelled by a strong scepticism of ‘universalisms’ in favour

of cultural relativism and social constructionism, the discipline of sociology has

largely confined its examination of rights to the realm of citizenship (see Turner,

2001: 109). Turner and Rojek (1993, 2001), however, have suggested that the

concept of citizenship has been closely linked with the modern nation state, but

argues that this political form has been infected with numerous problems, such as

imperialism, globalisation, migrant workers, refugees and indigenous peoples, which

raise questions about the nation state as the framework for an adequate analysis of

citizenship and rights. As globalisation has created problems that are not wholly

internal to nation states, so the concept of citizenship rights must be extended to that

of human rights. Turner (2001: 119) writes:

The problem with sociology’s reluctance to talk about human rights is that human rights

have become a powerful institution and play a major role in political mediation of social

conflict.

Turner (1993: 502) further argues that the concept of human rights can be

understood sociologically by the need to protect vulnerable human beings with

social institutions, which in turn can pose threats to those human beings. The social

and legal institutionalisation of human rights is the predominant modern attempt to

resolve this dilemma that is inherent in modern societies.

Yet, Turner’s analysis goes further than mere explanation. He argues that without

some universal moral grounds it is impossible to talk about justice: ‘there has to be

some foundation of a universalistic character in order for such discussions about

justice to take place. Otherwise we are left with a mere talking shop of difference’

(Turner and Rojek, 2001: 112). He persuasively deploys sociological theory to

explore the moral basis of a universalist doctrine of human rights and proposes that

a shared experience of bodily vulnerability provides the common ground: ‘Human

frailty is a universal experience of human existence’ (Turner, 1993: 505, Turner and

Rojek, 2001: 110).

Taking issue with Turner’s foundationalist approach, Malcolm Waters (1996)

advocates a social-constructionist interpretation of universal human rights. Such an

Contribution and Engagement 25

approach, he suggests, would view the institutionalisation of human rights as little

more than the product of a balance of power between political interests. In reply

Turner (1997: 566) pointed out that:

it is perfectly consistent to argue … that human rights can have a foundationalist ontology

in the notion that human beings are frail and accept the argument that human rights will

be constructed in a contingent and variable way according to the specific characteristics of

the societies in which they are developed and as a particular outcome of political struggles

over interests. The point of a foundationalist ontology … is to provide a universal basis for

normative evaluation of human rights abuses.

And I might add, human rights themselves. In the Australian context the domestic

institutionalisation of international human rights standards (racial equality in this

case) as they pertain to indigenous peoples is perhaps best understood with reference

to both ideals and political interests. In 1992 the High Court of Australia decided in

the Mabo case that to deny indigenous rights to land would be unjust and contrary

to contemporary international human rights standards, especially the principle of

racial equality. The court was aware of, in Turner and Rojek’s (2001: 124) terms, the

‘vulnerability’ of dispossessed indigenous people and did not seek to worsen their

plight by flouting the international moral code which prohibits racial discrimination.

Yet, when the Government responded to the landmark case the interests of vulnerable

indigenous groups were largely ignored in favour of powerful commercial interests.

The net result was legalisation that sought to limit indigenous rights behind a veneer

of agrarian reform. Thus, as Freeman (2002: 85) writes:

the institutionalisation of human rights may … lead, not to their more secure protection

but to their protection in a form that is less threatening to the existing system of power.

The sociological point is not that human rights should never be institutionalised, but,

rather, that institutionalisation is a social process, involving power, and that it should be

analysed and not assumed to be beneficial.

Wilson (1997), a social anthropologist, argues that social scientists should be primarily

concerned with analysing rights as socially constructed phenomena. He writes: ‘the

intellectual efforts of those seeking to develop a framework for understanding the social

life of rights would be better directed not towards foreclosing their ontological status,

but instead by exploring their meaning and use. What is needed are more detailed

studies of human rights according to the actions and intentions of social actors, within

wider historical constraints of institutionalized power’ (Wilson, 1997: 3–4).

In Chapters 3 and 4, I examine the trajectory of indigenous rights to land during

the reconciliation process in a manner which goes beyond the formal, legalistic

and rhetorical dimensions of such rights, where, as Wilson (2001: xvii) points out,

they will always be a ‘good thing’. Indeed, while the Australian High Court can

be commended for finally acknowledging the ‘vulnerability’ of indigenous groups,

recognising land rights and by upholding, prima facie, the established international

principle of racial non-discrimination, the following chapter shows that it did so in

a manner which assumed, and implicitly confirmed, the validity of imposed legal

structures which have dominated indigenous peoples since 1788.

Reconciliation and Colonial Power26

In contrast to formal legalistic perspectives, in this book I question the colonial

assumptions made by the Australian High Court in its recognition of indigenous

rights to land and place the subsequent institutionalisation of such rights in the

context of political battles for control of resources which pitted indigenous peoples

against powerful commercial lobby groups. The following two chapters show how

seemingly beneficial ‘native title’ rights actually maintain existing inequalities and,

in the case of the John Howard government’s legislation discussed in Chapter 4,

serve as a tool for further dispossession. In this sense the book highlights a gulf

between settler state granted indigenous rights and their normative benchmark: the

United Nations Declaration. Indeed, the land rights debate in Australia is an example

of the frequent tension between national systems of rights and international human

rights (Turner and Rojek, 2001: 127).

Since a large part of this book is concerned with examining the social process

that is the institutionalisation of indigenous rights to land in Australia it will make a

significant contribution to the emerging sociological literature on human rights issues.

To be sure, however, I do not seek to justify any particular foundationalist viewpoint

on human rights in general. Chapters 3 and 4 merely take a sociological approach

which analyses a particular rights institutionalisation process in a manner that goes

beyond the formal, legalistic and rhetorical dimensions and does not assume that such

a process will prove beneficial to the rights holders (see Freeman, 2002: 85).

This chapter, concerned as it is to establish the broad framework for analysis

of the reconciliation process as a whole, discusses in the following section the

specific Australian works that offer insights and broad interpretations of Australian

reconciliation as a socio-political entity.

Writings on Australian Reconciliation

In 1998 the Melbourne Journal of Politics launched a special reconciliation issue

that discussed individual issues relevant to the process but which also included

works by Colin Tatz and Anthony Moran that addressed the process as a whole. In

a scathing critique of the reconciliation process, Tatz (1998: 2) lamented the lack of

clarity surrounding the concept of reconciliation in Australia and the unjust burden it

places on the victims. Tatz (ibid.) suggests that with reconciliation

a shibboleth was born, a catchphrase adopted by opinion-makers to discern those who,

stubbornly and wrongly, resist the entwined and ‘synonymous’ notions of ‘forgive and

forget’. If the politics of remembering the feuds, the hatreds and the differences produces

cataclysmic conditions, surely, they say, it must be replaced with an ideology of forgiving

and forgetting which comes at great cost to the victims … It is they who must forgo the

desire or need for retributive justice; it is they who must eschew notions of guilt and

atonement and, all to often, compensation for harms done. It is they who must concur with

the substitution of their memory with our memory and their history with our history. It is

they who must cease to be so hysterical about denialism, that major tributary of forgetting,

which claims (all too often) that there was nothing to remember in the first place, or, at

least, nothing all that serious.

Contribution and Engagement 27

He further suggests that the ills of Aboriginal communities cannot be addressed by

the concept of reconciliation (1998: 3). Yet, while the notion of ‘justice’ may have,

in practice, given way to an ideology of ‘forgive and forget’ this is not a requirement

of reconciliation as a concept. The peacemaking paradigm of reconciliation

recommends a ‘balancing’ of truth, justice, forgiveness and mercy (Lederach, 1999)

and not a confrontation where one must win out over the other. Nevertheless, Tatz’s

interpretation serves as a reminder that theory and practice are often at odds.

Anthony Moran (1998) focused on the unifying rhetoric of reconciliation and the

role of what he called a ‘new breed of settler nationalism’ which sought to address,

what might be considered, Australia’s national identity deficit. Moran suggests that the

gradual deterioration of the link with the British colonial headquarters necessitated a

reorientation of Australian national identity that has been aided by the appropriation

and commodification of Aboriginal spirituality. In contrast to the pre-1960 era, where

settler identity was ostensibly developed in a manner that completely excluded all

traces of Aboriginality, in the present we see extensive symbolic use of Aboriginality

as an integral part of Australian identity. Moran’s primary contribution is a forceful

argument that Australian reconciliation represents a new phase of a more continuous

nationalist project, aimed at resolving the colonial legacy of ‘shallow history’ for the

nation, through incorporating Aboriginality into the cultural fabric of the nation. At

the same time, he points out, this removes ‘an alternative and competing claim to the

national landscape’ (Moran, 1998: 107).

In 2000, Michelle Grattan, a Sydney based political journalist assembled an

anthology of essays on Australia’s reconciliation process which included opinion

pieces by academics, politicians, indigenous leaders and journalists. The vast

majority were polemical essays which sought to map out what reconciliation in

Australia should entail. The lack of clarity over the term allowed even staunch

indigenous rights opponents, such as right-wing columnist P. P. McGuinness, to

profess a commitment to reconciliation. Indeed, while broadly agreeing with the

need for harmony and racial equality, the contributors differed considerably on the

detail. Some of these opinions are discussed in later chapters of this book, but I will

now turn to the more interpretive contribution of historian Henry Reynolds.

Like Tatz (1998), Reynolds (2000) suggested that a lack of direction and

conceptual clarity has resulted in confusion. Reynolds (2000: 53) expressed

doubts over the term ‘Aboriginal Reconciliation’, for it suggested that it was the

indigenous peoples who had to take the initiative when they had already lost so

much. He suggested that it could be interpreted as advocating that Aboriginal people

should reconcile themselves with their loss of land, injustice and poverty (ibid.).

Moreover, Reynolds (ibid.) was unsure about what was expected of white Australia:

‘did reconciliation require anything of them beyond having to come to terms with

a few home truths about the past which had long been hidden away in the cupboard

of forgotten things?’

Yet Reynolds, unlike Tatz, is a convert to Australian reconciliation. His essay seeks

to emphasise the importance of what has come to be called the ‘people’s movement

for reconciliation’. One of the tasks of the CAR was the establishment of local

reconciliation groups. Their function was to bring non-indigenous and indigenous

people together at the local level to discuss issues pertinent to reconciliation. Taken

Reconciliation and Colonial Power28

together it is these groups that are said to constitute the ‘People’s Movement for

Reconciliation’.

Reynolds had lectured widely around Australia in the 18 months leading up to the

publication of his essay and had noticed something interesting about his audiences.

Not only was he impressed with the size of turnout but he was impressed by ‘their

deep concern, their intensity, their obvious concentration on the subject, their clear

sense that this was an important thing they were involved in’ (2000: 54). Reynolds

(ibid: 55) sensed a concern among his audience that since nothing had changed all

that much in indigenous/settler relations since the colonial period they must now

make a difference. He concluded that:

It is that feeling, which I sense in audiences all around Australia, which converted me to

be a supporter of reconciliation. It is a powerful social movement, and for the first time

since 1967 it has given white Australians a means and an instrument to get involved in

the cause … the significant thing is that the reconciliation process has spread widely right

across Australia. It is no longer just a movement of educated middle-class people. It is

no longer just an urban movement. There are reconciliation groups all over the country.

In communities right across Australia, these people are meeting, thinking, researching,

talking and coming up quite often with extremely interesting and creative proposals to try

and reach reconciliation there in their own communities (ibid.).

Reynolds’ distinct contribution is to emphasise the importance of reconciliation’s

local level. Indeed, a nuanced understanding of the Australian process will require

an appreciation of the ‘people’s movement for reconciliation’ as a potential vehicle

for change. In Chapter 6 I evaluate and analyse the so called ‘people’s movement’ via

detailed social research commissioned by the CAR to investigate societal attitudes

towards reconciliation. It is worth noting that Reynolds tempers his enthusiasm for

the ‘people’s movement’ by conceding that while the local level is relevant there are

fundamental constitutional matters, such as the indigenous sovereignty challenge,

that need to be addressed at a national level for genuine reconciliation to become a

reality.

While these writings on Australian reconciliation are insightful, they do not

form anything like a systematic analysis of the various elements of Australian

reconciliation and their relation to the process as a whole, nor do they evaluate and

analyse the process in terms of its own broad policy objectives to address indigenous

aspirations and to effect attitudinal change in the non-indigenous community. Thus,

in what follows I analyse and evaluate Australian reconciliation against the broad

reconciliation paradigm outlined above, the general aspirations of indigenous

peoples, international human rights standards and the reconciliation processes’

own logic, which clearly posits colonial dispossession and its legacy of indigenous

disadvantage as an injustice that needs to be redressed.

Throughout the book I emphasise the contemporary importance of the historical

fact of dispossession and its enduring legacy, as well as the role of imposed societal

structures, such as the legal and political systems, which, as we shall see in the

following chapters, function to maintain existing inequalities often beneath a veneer

of agrarian reform. I invoke a broad sociological approach that contextualises the

various strands of Australian reconciliation, and the process as a whole, with insights

Contribution and Engagement 29

provided by historians, social scientists, legal scholars and indigenous writers, in

addition to primary data sources. In the final chapters I focus on establishing an

interpretive layer for the process as a whole, which broadly focuses on the contrast

between indigenous viewpoints and official strategies, the role of nation building,

national identity constructions and symbolic politics. In short, I emphasise a

sociological standpoint that places Australian reconciliation in the context of nation

building and a hegemonic project of state legitimisation.

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Chapter 3

Reconciliation and Land

The First Fleet of European colonisers arrived on Gamaraigal land on 26 January

1788. The early reports of William Dampier, the English pirate/explorer, and Captain

Cook and others, generally portrayed the ‘natives’ of New Holland, as the continent

was then called, as small in number, wandering nomadically with no fixed territory

and with no recognisable system of laws and customs (see Dampier, 1927: 312).

Subsequently the colonisers applied the legal doctrine of terra nullius, meaning ‘land

of no one’, to the Australian continent. The philosophical eurocentric underpinnings

of this assertion were based on John Locke’s seventeenth century notion of property

ownership. In his Two Treatises of Government, Locke proposed that property in

land originated from tilling the soil, ‘mixing labour with land’ (1970). The apparent

absence of such activities led to the coloniser’s conviction that the natives had no

investment in the soil and hence no legitimate claim to it. This outlook served to

legitimise the widespread use of the terra nullius concept in eighteenth century

international law, facilitating colonial expansion and the dispossession of native

peoples.

The application of the terra nullius doctrine in uninhabited lands was clear; a

European power that discovered a new uninhabited territory was entitled to claim the

land for its empire. However, where lands were inhabited by ‘uncivilised natives’,

the British adopted Lockean ownership principles to discount the moral claims of the

indigenous inhabitants. In other parts of the British Empire, where the inhabitants

were not regarded as quite so ‘uncivilised’, the Crown claimed sovereignty but not

ownership of the land.

In an attempt to ‘legitimately’ gain land the Crown would ordinarily enter into

treaties with the indigenous inhabitants. To be sure, in many cases such treaties

merely reflected the unequal bargaining position facing the indigenous peoples and

were often violated in practice. Nevertheless, in the United States and Canada for

example, the British recognised and treated with the natives. In Australia, however,

the terra nullius doctrine prevailed.

The reality was quite different. When European colonisers first arrived it is

estimated that there were between 300,000 and 1,000,000 Aborigines in Australia

and around 500 different regional groups.1 The culture of traditional Aboriginal

people was diverse in terms of language, totems, food and daily routine but with a

communality of territoriality, kinship, spirituality, ‘Dreaming’, art, family structures,

education, initiation and ceremonies. Moreover, anthropological and historical

1 The upper estimate of 1 million was made by Noel Butlin and has not been endorsed by

anyone else. Nevertheless, it is frequently cited as the estimated upper limit: see for example

Manne (2001: 103).

Reconciliation and Colonial Power32

studies of Australian Aborigines have demonstrated that they, over tens of thousands

of years, developed complex forms of social organisation, including laws relating to

land use and management (Greer, 1993).

The terra nullius doctrine formed the basis for European settlement along the

coast and gradually penetrated into the farthest reaches of the continent. The often

unauthorised settler ‘squatting’ of herds and flocks on areas well beyond established

settlement boundaries led to the inevitable, and frequently disastrous, conflict with

the indigenous peoples (see Reynolds, 1981). As Charles Rowley states, the native

inhabitants of Australia did not ‘melt away magically before the tide of European

settlement like fairy floss … the hard reality is that we killed them’ (Rowley, 1970:

154). Between 1788 and 1884 the indigenous death toll in the conflict is estimated

to be around 20,000. In addition to the physical killing, the dispossession from

their lands and destruction of the natural environment also destroyed the basis of

indigenous peoples’ spiritual, cultural and legal systems. Aborigines have a spiritual

attachment to the land. They consider themselves as belonging to the land. It is

an integral part of their mythology as well as being their home, hunting ground,

recreation place, cathedral or temple, court of law, their cemetery and the place

where their spirits return to after death (Greer, 1983).

In a bid to regulate uncontrolled occupation of vast tracts of land by squatters,

and minimise conflict with the Aborigines, the colonial authorities introduced a

system of ‘pastoral leases’, a form of tenure tailored for the peculiar conditions of

Australia. The squatters were allowed to use the land only for grazing while the

Aborigines had access to the land for their traditional practices and certain other

permitted activities. The new legal arrangement, however, did not stop the conflict.

Massacres, poisoning of flour and waterholes and the banishment of Aboriginal

people from traditional sources of food and water were used by pastoralists and

others as ‘dispersal’ measures (Rowley, 1970: 154).

Aborigines were tolerated when they could act as a pool of cheap labour to

the emerging pastoralists (see May, 1996, Reynolds, 1981). Given their intimate

knowledge of the land and ability to survive under harsh conditions, the Aborigines

made excellent stockmen and became the backbone of the livestock industry. Yet

their wages were usually around half those of white workers and such employment

did little to halt the general trend of dispossession accelerated by government

resettlement programmes and assimilation policies (see Haebich, 2001). The general

settler view by the end of the century was that there was a direct relationship between

colonial progress and the destruction of Aboriginal society (Johnston, 1992: 10.4).

The loss of their lands and autonomy and the resultant cultural erosion and

welfare dependency led to a startling decline in the health and well-being of many

indigenous groups. Faced with such a position and coupled with the failure of

violent resistance, indigenous groups began to mobilise politically. The modern

movement for indigenous rights began in the 1920s with the formation of several

Aboriginal political organisations.2 They focused their attentions on government

2 For example, the Australian Aborigines Protection Association, the Association for

the Protection of the Native Races of Australia and Polynesia and the Aboriginal Union were

all formed around this time.

Reconciliation and Land 33

‘protection’ polices that were effectively destroying their communities and cultures.

They campaigned for justice, citizenship rights, land rights and freedom from the

restrictions imposed by various discriminatory state legislation.

In the mid-1960s, inspired by the civil rights movement in the United States,

Charles Perkins and a group of Aboriginal and white students conducted the

‘freedom rides’ throughout the north-west of NSW. The rides brought an end to

many discriminatory practices and a new awareness of the power of active protest

(see Curthoys, 2002). The success of the freedom rides, coupled with frustration

at failed attempts by the Gurindji and Yirrakala people to protect their traditional

lands from mining exploration, led to a new, more forthright direction in Aboriginal

activism.

In 1966 poor working conditions and low wages of indigenous pastoral workers

prompted the Wave Hill strike, which eventually led to the Commonwealth

Conciliation and Arbitration Commission decree for equal wages. The decision led

pastoralists to mechanise stock management, employ European stockmen, and sack

indigenous workers on a large scale. Since Aboriginal people were no longer a cheap

‘on site’ labour pool there was increasing pressure to move Aboriginal communities

off the land.

On Australia Day 1972, four Aboriginal activists, with the aid of the Communist

Party of Australia, travelled to Canberra to establish the Aboriginal Tent Embassy

in protest at their continuing dispossession and severely disadvantaged status. Such

forthright protests gradually began to draw attention to the plight of indigenous

groups whose focus was firmly on regaining their political autonomy and a land

base from which to regenerate their culture.

Since Australia, unlike Canada, North America and New Zealand, had no

history of treating with the indigenous population, political mobilisation gradually

began to focus on the necessity for a treaty or treaties.3 The notion of a treaty had

significant potential. Whilst many indigenous groups had been totally dispossessed

of their traditional lands and relocated to government designated ‘reserves’, there

still existed the possibility of returning land and political autonomy to those that

had managed to maintain traditional connection to their land. Significant tracts of

vacant ‘crown’ land and indigenous occupied reserve land could also be returned to

indigenous ownership and control.

While it is correct to say that there were significant political and cultural

differences among indigenous groups in the 1970s, there was a growing consensus

that the restoration of land and political autonomy was key to indigenous cultural

survival.4 Indigenous leaders and spokespersons were becoming increasingly

3 The fact that the continent has many indigenous groups who, although they share

many commonalties, utilise significantly different languages, laws and customs, suggests that

a treaty between the settler state and each group would be more appropriate. Discussions

around the concept tend not to rule out the possibility of many treaties, with supporters citing

Canada as an example of such practice.

4 Such differences have continued to this day but as the Aboriginal and Torres Strait

Islander Commission (ATSIC) has recently highlighted, the existence of regional differences

between groups can be accommodated by the concept of ‘self-determination’ which is itself

concomitant with the notion of regional treaties. ATSIC suggests that self-determination can

Reconciliation and Colonial Power34

convinced that the ills of their communities could not be resolved by ‘white people’.5

In 1974 Kevin Gilbert, stated in that ‘if there is to be a regeneration of blacks, it must

come through self-determination, however hesitant the first steps’ (1994: 163). Many

so called ‘urban’ Aboriginal people, including those who had lost all connection with

the traditional way of life, still sought greater autonomy in all aspects of their lives.

Furthermore, the concept of a treaty or treaties that could return land and political

autonomy to ‘traditional’ remote communities had symbolic significance for urban’

Aborigines.6 As Gilbert suggested,

I don’t know of any part-Aboriginal who is not in some way, however assimilated he may

be, affected by what is behind him. The direction my own life has taken and the things that

have happened to my own family are in no small measure a result of the black blood in our

veins and all the implications that that black blood had for us. That is why land rights as

symbol is so important. Land rights as symbol and substance of the fact that some amends

to that black blood are due’ (1994: 161: my emphasis).

According to the Australian Bureau of Statistics (2002), it is estimated that today

around 40 per cent of Australia’s indigenous population are urban dwellers, while the

remaining majority live in rural or remote communities. Many such ‘urban’ Aboriginal

people whom I have spoken to while conducting fieldwork have expressed a longing

to reconnect with their culture. For example, a self professed ‘urban’ Aboriginal

woman, Audrey Ngingali Kinnear, stated in interview: ‘I may live in a town house

in Canberra, but I would love to be able to return to my community in the holidays

and reconnect with my roots, culture and country without the feeling of immense

sadness I get as I see their way of life gradually eroding through lack of autonomy

and control of their traditional lands’ (author interview September 2001).

be achieved through ‘regional autonomy’. See http://www.atsic.gov.au/issues/indigenous_

rights/regional_autonomy/Discussion_Paper_Sept_1999/default.asp.

5 This view has been articulated by the likes of radical leaders like Kevin Gilbert,

Charles Perkins, Michael Anderson and Patrick and Mick Dodson. For a strident articulation

of the argument see Gilbert (1994). It is also the central concern of the Aboriginal and Torres

Strait Islander Commission’s recent report on the ATSIC funding structure available at http://

www.atsic.gov.au/issues/Indigenous_Rights/resourcing_self_determination/Default.asp. For

an example of the negative effects of a lack of political and social autonomy see Trudgen

(2000).

6 According to the Australian Bureau of Statistics, it is estimated that today around

40 per cent of Australia’s indigenous population fall into this bracket, while the remaining

majority live in rural or remote communities. Information available at www.abs.gov.au.

Moreover, many such ‘urban’ Aboriginal people whom I have spoken to while conducting

fieldwork have expressed a longing to ‘reconnect’ with their culture. For example, a self

professed ‘urban’ Aboriginal woman, Audrey Ngingali Kinnear, stated in interview: ‘I may

live in a town house in Canberra, but I would love to be able to return to my community in

the holidays and reconnect with my roots, culture and country without the feeling of immense

sadness I get as I see their way of life gradually eroding through lack of autonomy and control

of their traditional lands’ (author interview September 2001).

Reconciliation and Land 35

From a Treaty to Reconciliation

In April 1979, the National Aboriginal Conference7 instigated a concerted campaign

for a treaty between indigenous people and the Australian State. The campaign gained

a degree of legitimacy when it was adopted by the Aboriginal Treaty Committee

(ATC), a respectable ‘think tank’ of white academics (Attwood and Markus, 1999,

Harris, 1979). The group proposed a treaty that would provide Aboriginal peoples

with:

The protection of identity, languages, law and culture.

The recognition and restoration of rights to land.

Compensation for the loss and damage to traditional lands and to their

traditional way of life.

The right to control their own affairs and to establish their own associations

for this purpose (Harris, 1979).

The stated motivations of the ATC were two-fold. In the first instance they desired

to right the wrongs of the past and to re-examine fundamental assumptions such as

terra nullius in light of modern historical and anthropological knowledge (Harris

1979). Secondly, they considered a proper settlement necessary to address the

legacy of past injustice and decolonise the relationship between indigenous and non-

indigenous society.

In June 1988, the Chairmen of the Central and Northern Land Councils, Wenten

Rubuntja and Galarrwuy Yunupingu, presented the then Prime Minister, Bob

Hawke, with the Barunga Statement (reproduced in Moores, 1994: 332). This called

for Aboriginal self-management, a national system of land rights, compensation

for loss of lands, respect for Aboriginal identity, an end to discrimination, and the

granting of full civil, economic, social, political and cultural rights. It also called on

the Commonwealth Parliament:

to negotiate with us a Treaty or Compact recognising our prior ownership, continued

occupation and sovereignty and affirming our human rights and freedoms (ibid.).

In response, the Prime Minister and the then Minister for Aboriginal Affairs, Gerry

Hand, signed a five-point statement which included:

1. The Government affirms that it is committed to work for a negotiated Treaty

with Aboriginal people.

2. The Government sees the next step as Aborigines deciding what they believe

should be in the Treaty (CAR, 2000).

7 The National Aboriginal Conference (NAC) was established by the Federal

Government in 1977 to provide a forum for the expression of Aboriginal views. A resolution

from the Second National Conference in April, 1979 requested the execution of a Treaty

of Commitment between the Aboriginal Nation and the Federal Government. For NAC

discussion documents see http://www.aiatsis.gov.au/lbry/dig_prgm/treaty/nac.htm.

•

•

•

•

Reconciliation and Colonial Power36

The Prime Minister further stipulated that such a treaty would be in place by 1990

(see Hawke, 1988). However, as with similar proposals a few years earlier, broad

agreement could not be reached in Parliament. Quite simply, politicians have never

liked the word treaty as it seemed to imply two sovereign nations (see Howard, 1988),

preferring instead the more equivocal terms ‘compact’ or ‘agreement’ (SSCCLA

1983: 50). Back in 1983 a Senate Standing Committee report entitled ‘Two Hundred

Years Later’ concluded that non-indigenous societal ‘attitudes’ lay at the heart of the

‘Aboriginal problem’. In the late 1980s the Committee’s conclusion was resurrected

by politicians seeking to water down the treaty promise. Indeed, the theme became

increasingly popular in political speeches which began to emphasise, in vague terms,

the importance of ‘education’, ‘attitudinal change’ and ‘reconciliation’ as necessary

precursors to any treaty or compact. The emergence of education and attitudinal

change as policy initiatives in political speeches coincided with a shift away from

the treaty idea towards a ‘reconciliation’ initiative that made no firm commitments

to address any of the ATC’s key priorities.

Even though the reconciliation minister, Robert Tickner, steadfastly asserted that

‘there can be no reconciliation without justice’, the need for cross-party consensus

made sure that ‘education’ for the non-indigenous rather than ‘justice’ for the

indigenous emerged as the dominant focus of the process. Indeed, the original title for

the official reconciliation body was to be the ‘Council for Aboriginal Reconciliation

and Justice’, but the ‘and Justice’ was viewed by the Prime Ministers’ advisors as

excessive and was subsequently axed from the final version (Tickner, 2001: 29).

In 1991, the Council for Aboriginal Reconciliation Act established a ten-year

reconciliation process led by a Council for Aboriginal Reconciliation (hereafter

CAR). Early ministerial discussions on the reconciliation process focussed on the

possibility of an entirely indigenous CAR (Tickner, 2001). The eventual format,

however, was a 25-person CAR consisting of businessmen, government employees,

academics and high profile Aboriginal people, most of the latter having a background

in the churches. The CAR primarily had a dual role that involved devising community

wide education initiatives and advising the Minister on possible policies that might

further the reconciliation process.

The preamble to the Act outlined the rationale for the process. While it did not commit

to any specific measures, it clearly identified the injustice that necessitated a formal

process (i.e. the original act of colonial dispossession and its legacy of indigenous social

and political disadvantage, which it then suggested should be ‘address progressively’).

Significantly, however, the issue of returning land to indigenous groups was

thrust to the fore of the reconciliation debate not at the behest of Robert Tickner’s

government or the CAR, but by the High Court shortly after the instigation of the

official Australian reconciliation process. In the next section then I discuss the High

Court decision in Mabo (1992) and its implications for the reconciliation process.

Mabo and Others v Queensland (Mabo, 1992)

In the 1970s an Aboriginal man by the name of Eddie Mabo struck up what was to be

a very productive friendship with revisionist historian Henry Reynolds. It developed

Reconciliation and Land 37

while Eddie was a gardener at James Cook University in Queensland. The two men

would often have lunch together and discuss a range of issues. Reynolds (1993: 2)

writes,

He would tell me a great deal about growing up in the Murray Islands in what were

fairly traditional surroundings. Eddie had a great interest in traditional culture. While

at the University he read the anthropological literature associated with the Torres Strait,

reaching back to the great Cambridge (Haddon) expedition of 1901–2, one of the first

great anthropological expeditions. He also mentioned that on his island he and his family

owned land. Although he had not been back home for 10 years, he had no concerns about

this land; everyone on the island knew it was Mabo land and the people there would care

for it. On one of these occasions I said to him, ‘Look, you do appreciate, don’t you, that

although in your view this is your land, it’s actually all Crown land. According to white

Australian law, you don’t own any land on Murray Island’. I still remember the look that

came over his face – it was a look of incredulity; how could anyone be so mistaken about

the land not belonging to his family? He was horrified that what I had said might indeed

be the case.

In the following years, Reynolds secured a research grant to gather ‘black oral

history’ and duly appointed Eddie Mabo to be his research assistant (ibid.). When

Eddie was sent to record the history of Murray Island’s elders he failed to gain

permission from the Queensland government. It was this situation which prompted

Eddie to begin preparing a case for recognition of continuing land rights (ibid.).

After a long struggle through the Australian legal system, the case finally reached

the High Court in 1992. The claim before the court was that the Meriam people of

Murray Island, living in permanent communities with social and political organisation,

had continuously and exclusively inhabited the Island and its surrounding islands

and reefs. It was conceded that the British Crown (in the form of the colony of

Queensland) became sovereign of the islands upon their annexation in 1879, yet the

plaintiffs claimed continued enjoyment of their land rights arguing that they had not

been validly extinguished by the sovereign.

On 3 June 1992 the High Court, by a majority of six to one, upheld the claim,

ruling that when the British Crown acquired the territory and sovereignty, through

‘acts of State’, it merely gained what is known as radical title. It did not become the

beneficial owner of the land, which remained in the possession of the indigenous

people and, in theory at least, their title was protected by the common law. Six of the

judges ruled that the doctrine of terra nullius was an offensive legal fiction, that the

Crown’s radical title gave it the right to distribute land but not the right to absolute

beneficial ownership of it, and that, in the absence of such ownership, the prior

and continuing group ownership of land by Aboriginal and Torres Strait Islander

inhabitants must be recognised by the common law which had ignored it for so long

(Mabo, 1992: 42, see also Bachelard, 1997: 8).

The Court went on to explain that in its view the Crown extinguished native

title in a piecemeal fashion over many years as the wave of settlement washed over

the continent (Reynolds, 1993b). However, native title had survived on the Murray

Islands as the Meriam people maintained their connection with the land and the

Queensland government had done nothing between 1879 and 1992 to extinguish it.

Reconciliation and Colonial Power38

It decided that the Meriam people were entitled to possession, occupation, use and

enjoyment of the Murray Islands. Furthermore, the Court applied the principles in

question to Australia as a whole, which meant that native title could have survived

in other parts of the country. Unfortunately, Eddie Mabo did not live to hear the

decision.

The Limited Nature of Native Title

There are, broadly speaking, two competing interpretations of the nature of land

rights recognised by the High Court in Mabo. First, there is, what I would call, the

‘conservative or interpretation’, which was frequently citied by those that would

most benefit from its acceptance in the post-Mabo political debate. According to that

interpretation, native title is simply one of many possible interests that affect land and

one which Australian property law would now have to accommodate. As Brennan J

stated in Mabo, ‘native title is conceived as specific interests in land (which) requires

a measure of adjustment in the general property regime’ (Mabo, 1992). Such a view

suggests that the implications of Mabo are indeed significant but at the same time

restricted. Conceiving native title rights as merely another private property right

does not sit comfortably with the courts own grounding of such rights.

A second, more nuanced, interpretation of native title can be found in the

judgement. It was suggested in the judgement that the laws and customs of the

indigenous peoples provided the content of native title, which was thus being

recognised not created by the common law. As Brennan J stated,

Native title has its origin in and is given its content by the traditional laws acknowledged

by and the traditional customs observed by the indigenous inhabitants of a territory. The

nature and incidents of native title must be ascertained as a matter of reference to those

laws and customs (Mabo, 1992).

The important point to note here is that, for the purposes of native title, such

customary law must be observable and currently in evidence. It was a strong principle

of the Mabo judgement that indigenous laws and customs were not static, but rather

they continue to evolve to this day. Indeed, it is not pre-contact but contemporary

indigenous custom that provides the content of native title (Mabo, 1992). As Jeremy

Weber (2000: 63) observes,

This suggests something very different from indigenous title as a confined set of rights,

which is simply absorbed into the common law. It acknowledges, at least implicitly, that

indigenous societies form autonomous legal orders, and moreover, that those orders

change over time. The capacity for change suggests a degree of political autonomy (at

least de facto), for indigenous societies are able to determine the evolution of their law by

their own internal means.

Yet this is not to suggest that recognition of political autonomy was anything

more than implicit in the judgement. Indigenous political autonomy exists only on

sufferance, liable to attrition or annihilation by non-indigenous governmental action.

The Court held that the overarching sovereignty of the Australian state could not be

Reconciliation and Land 39

questioned in proceedings before an Australian court. Justice Brennan, in somewhat

dramatic style, stating that to question

the settled colony doctrine would seriously fracture the skeleton of principle which gives

the body of our law its shape and internal consistency. The peace and order of Australian

society is built on the legal system. It can be modified to bring it into conformity with

contemporary notions of justice and human rights, but it cannot be destroyed (Mabo,

1992: 20–21).8

The incoherence of the High Court’s reasoning in this regard is compounded by the

rationale used to rebut the Crown’s assertion of beneficial ownership. Brennan J

stated that the Crown’s assertion of beneficial land ownership ‘judged by any civilised

standard … is unjust’. However, as Canadian legal scholar, Patrick Macklem (1993:

41), observed

equally unjust is the principle, fortified by the illusion of superiority, that the Crown

acquires sovereignty over territory inhabited by an indigenous population by the mere

act of settlement. Just as it is unjust to deny the validity of Aboriginal rights with respect

to land based on the fallacy of European superiority, it is also unjust to deny the validity

of Aboriginal rights of governance on the same fallacy. Aboriginal rights of governance

ought to be recognised as surviving the assertion of Crown sovereignty according to the

same principle of justice governing the survival of Aboriginal rights with respect to land.

Thus, in this very important sense, Mabo cannot be considered a decolonising

revolution in legal reasoning. Put simply the effect of the Mabo decision was to

recognise that native title may continue to exist in areas where indigenous people

still occupied, or could display a continuing association with, their traditional land.

Crucially, for the discussion that follows, where the existence of native title may

produce possible conflict with non-indigenous interests it would be the rights of the

native title holders that would yield. Thus, not one millimetre of non-indigenous land

was at risk from the principles laid down in Mabo.

Perhaps the major limitation of native title is the notion that claimants prove

‘traditional and continuing connection to the land’, which means that not only

will they have to prove current physical occupancy but also that there is a definite

cultural continuity with the original occupants. As Povinelli (2002: 156, emphasis in

original) writes: ‘native title can be extinguished if the genealogical and occupancy

relationship to land is severed and, in addition, if the customary beliefs and practices

of the group claiming native title are severed more or less’. Such restrictions raised

important concerns over evidential requirements and the ability of the court to

objectively determine the validity of indigenous historical narratives. A significant

issue is the Federal Court’s reliance on a biological relatedness model in order to

establish the requisite direct link with the indigenous people who held native title at

the time of the assertion of British sovereignty.9 Such an approach is not reflective

of wider kinship reckoning (such as adoption or residence rights, or in some areas,

8 per Brennan and 57–8 (per Deane and Gaudron JJ), following the Seas and Submerged

Lands case, New South Wales V. Commonwealth (1975) 135 CLR 337.

9 See Mason v Tritton (1994) 34 NSWLR 572.

Reconciliation and Colonial Power40

rights conferred by conception). Although the biological model stresses the status of

genealogies as history, the history in genealogies is often a social artefact reflecting

political, demographic and cultural factors (Finlayson and Curthoys, 1997: 4).

The biological model also has difficulties with indigenous oral history. In

particular, anthropologists and lawyers take issue with the ‘shallow’ genealogical

knowledge exhibited in oral testimonies that rarely seem able to ‘trace the patriline

back beyond three generations’ (Neate, 1995: 526–8). This does not take into account

cultural factors such as the taboo among some Aboriginal peoples, which forbids the

speaking of a deceased relative’s name and the more fluid role of indigenous oral

history compared to the western documentary modes. Native title decisions tend to

prioritise the colonial administrations’ written historical record over indigenous oral

history, which constructs and reproduces a colonial historical ‘truth’.10

For the vast majority of Aboriginal people the value of the Mabo decision would

remain primarily on the symbolic level, albeit as a vitally important correction

of the historical record. Indeed, those Aboriginal people who could not prove a

‘continuing physical association’ with their traditional lands, and ‘continuing cultural

relationship’ with the original occupants would not be able to gain native title. For

them, ownership of land could only come through a straight purchase or a negotiated

political settlement. Speaking in favour of political action to establish a national

fund for land purchases, an issue that gained in significance throughout the Mabo

debate, ATSIC commissioner, Sol Bellear, highlighted the problem …

To few of our brothers and sisters living in Sydney and Melbourne, Brisbane, Perth,

Adelaide and Hobart will be able to prove their native title to land under the restrictive

conditions of the Mabo decision … A national land acquisition fund would complement

the pursuit of land rights through legislation and the courts by providing Aboriginal

people with much greater means to purchase lands and buildings … and would provide

the foundation upon which Aboriginal people, Australian Governments and the wider

community could build a new partnership (in Tickner, 2001: 222).

Evaluation: Mabo and Reconciliation

The Mabo case provided valuable acknowledgement of the truth that indigenous

peoples have known all along, but which colonial society has denied, that Australia

prior to invasion was not an ‘empty land’. Justice Deane and Gaudron (Mabo, 1992)

described the doctrine of terra nullius and its legacy as

the darkest aspect of the history of this nation. The nation as a whole must remain

diminished unless and until there is acknowledgement of, and a retreat from, those past

injustices.

Critics of the judgement like Geoffrey Blainey asserted that the judges had imposed

contemporary moral values on late eighteenth and early nineteenth century

jurisprudence. Henry Reynolds, however, has uncovered persuasive evidence to the

10 See Mason v Tritton (1994) 34 NSWLR 572. For a discussion of this and other issues

concerning the proof of ‘continuing connection’ see, Finlayson and Curthoys, 1997.

Reconciliation and Land 41

contrary. In fact the judges applied old principles to a contemporary legal problem

as there is clear evidence to suggest that the Colonial Office in London, in response

to the weight of evidence arriving from Australia, had abandoned the notion of terra

nullius by the 1830s. Instructions from the Colonial Office to the South Australian

Colonisation Commission, the private entrepreneurial organisation promoting the

new settlement, in 1836 clearly outlined a plan to ‘secure the rights of Aborigines’

by purchasing land directly or providing compensation for land expropriated without

negotiation (Reynolds, 1999: 201).

Thus, by 1836 the doctrine of terra nullius was not taken seriously by the

Colonial Office, Aboriginal people had rights in land that were secure enough to be

recognised in law. The South Australian Colonisation Commission, and others like it,

deliberately and successfully evaded clear instructions to purchase Aboriginal land,

the legacy of which necessitated the re-evaluation inherent in the Mabo decision

(see ibid.). Contrary to the assertions of Professor Blainey, and many others, the

jurisprudential interchange was from past to present, not the other way around.

The Court brought Australia into line with comparable common law countries. As

Reynolds (ibid.) comments, ‘the only surprising feature of the whole matter was that

it had taken local courts so long to do so’.

Despite its critics, the case was lauded by many as a vehicle for advancing

reconciliation both legally and symbolically. Mr Justice David Malcolm A.C, stated

that ‘the Mabo decision has created a constructive opportunity for a significant

advance in the reconciliation of Aboriginal peoples with the wider Australian

community.’ While Peter Yu (1993) of the Kimberly Land Council suggested that,

Mabo is an instrument with the potential to bring about a lasting peaceful settlement

between Aboriginal and non-Aboriginal Australians. Without the legal force of the High

Court judgement, the reconciliation process has a decidedly hollow ring to it. Mabo,

therefore, presents Australia with an opportunity to heal itself of the psychological trauma

of its violent birth and development, which, in all sorts of ways, has continued to tear at

the nation’s soul. More importantly, the Mabo judgement gives Aboriginal people the

legal power to negotiate with governments and industry in order to achieve political and

economic autonomy. Aboriginal people have argued that Mabo is much more than an

issue of land ownership and management. It is also about human rights.

The CAR chairman, Patrick Dodson, stated that they had received the news of the

judgement in a spirit of ‘joy and celebration’ and took the opportunity to attempt to

allay the fears of those commercial interests who quickly lambasted the decision

describing their concerns as ‘understandable but unwarranted’ given the limitations

of the judgement (Tickner, 2001: 90). Dodson went on to announce the CAR’s plans

to instigate a process of communication and consultation on the issues raised by

Mabo. Whilst ATSIC chairperson, Lois O’ Donoghue, issued a public statement that

welcomed the decision and the practical benefits that would ensue for those that

would be able to prove native title, but she stressed that governments have a moral

obligation to address the needs of those that have been completely dispossessed

(ibid.). Furthermore, she announced that ATSIC supported the CAR’s consultation

initiative and also suggested a national convention on the issues (ibid.).

Reconciliation and Colonial Power42

There can be little doubt that Mabo was of great importance to the reconciliation

process, not simply because it provided long overdue acknowledgement of wrongful

dispossession but also because, as we shall see in the next section, it put the notion

of land rights firmly on the political agenda. In this sense the case acted as a catalyst

for Commonwealth action on land rights, a crucial issue for indigenous peoples,

but one which did not appear to be a high priority of the reconciliation process

up to that point. Indeed, according to the vague directions set out in the preamble

to the Council for aboriginal Reconciliation Act, regarding the issue of land, the

Commonwealth commitment was merely ‘to seek an ongoing national commitment

from governments at all levels to cooperate and to coordinate with the ATSIC as

appropriate to address progressively Aboriginal … aspirations in relation to land

… in the decade leading to the centenary of Federation, 2001’. The native title

legislation that eventually emerged as a response to Mabo was certainly not on the

political agenda at the time and it is extremely doubtful that any national land rights

legislation would ever have been, were it not for the Mabo case.

Yet, whilst Mabo provided valuable acknowledgement and was an undoubted

strategic gain for indigenous peoples, it was seriously limited in scope. It was

going to fundamentally alter the colonial relationship. As I mentioned earlier, for

those indigenous peoples lucky enough to be able to prove native title, it would

not be accompanied by the right to govern themselves according to their laws and

customs, the continued existence of which provides the basis for a successful claim.

As Henry Reynolds (1993b) commented, ‘it is regrettable, especially in the era of

reconciliation, that the High Court failed to recognise an inherent right to sovereign

self-government, as another profound injustice would be purged from the system’. In

this sense one could argue that the independent function of the judiciary to determine

the precise state of Australian law in respect to Aboriginal rights in land has not yet

been completely performed (Coombs, 1994: 209). In some quarters it was hoped

that, at the very least, Mabo would stimulate debate on the imposition of settler state

sovereignty, that its wider implications and assumptions would be set out for critical

appraisal. However, this was not to be.

Regarding those indigenous peoples whose dispossession is complete, the Mabo

case offered nothing. For this reason the setting up of a national land fund, to assist

indigenous people to ‘acquire’ land with a western style bona fide purchase, was

one of the demands of Aboriginal groups in the post-Mabo political negotiations.

The sovereignty issue however was well and truly on the margins of a public debate

that became increasingly polarised and subsumed by political agendas that set the

framework for the land rights debate from that date on.

From Mabo to the Native Title Act 1993

The timing of the Mabo decision, coming so soon after the reconciliation legislation,

resulted in the Commonwealth framing its response in terms of a reconciliatory

settlement. The Prime Minister, Paul Keating, even went so far as to suggest that the

Native Title Act 1993 was the best deal Aborigines would ever get from the white

man (Pilger, 1998: 235). Yet, in order to fully understand the Keating government’s

Reconciliation and Land 43

response to Mabo, we have to look behind the reconciliatory veneer and explore

the contributions made by powerful vested interests who constructed a self-serving

discourse that moulded the legislation around their interests. We have to look at,

what Peter Russell has called, the ‘political life’11 of Mabo. As this section will show,

the result of so doing produces a view of the Mabo legislative response which sees it

as a damage limitation exercise, closely reflecting the needs of commercial interests

and maintaining the established colonial order, rather than an exercise in progressive

redress.

Before the protracted, and frequently venomous, Mabo ‘debate’ began in earnest,

the Prime Minister offered hope to indigenous people of a just legislative response

to Mabo in a now famous speech he delivered, at the request of ATSIC, to mark the

Australian launch of the UN International Year of the World’s Indigenous People

in Redfern Park on the 10 December 1992. The landmark speech has subsequently

become known as the Redfern Park Statement (reproduced in Keating, 2000).

The speech delivered by Paul Keating at Redfern Park was perhaps the first

significant national governmental act of the reconciliation era. Many indigenous

people felt that, in addition to the Mabo decision itself, it provided valuable

acknowledgement of colonial injustice and provided hope of a just response to

Mabo. Keating highlighted the incongruous nature of contemporary Australia:

Isn’t it reasonable to say that if we can build a prosperous and remarkable harmonious

multicultural society in Australia, surely we can find just solutions to the problems which

beset the first Australians – the people to whom the most injustice has been done.

And … the starting point might be to recognise that the problem starts with us non-

Aboriginal Australians.

It begins, I think, with that act of recognition, that it was

We who did the dispossessing.

We took the traditional lands and smashed the traditional way of life. We brought

the diseases. The alcohol.

We committed the murders.

We took the children from their mothers.

We practised discrimination and exclusion.

It was our ignorance and our prejudice and our failure to imagine these things being done

to us. With some noble exceptions, we failed to make the most basic human response and

enter into their hearts and minds. We fail to ask – how would I feel if this were done to

me? (Keating, 2000)

Such public and forthright acknowledgement of the historical facts of colonial

dispossession, the like of which had never before been spoken by an Australian

Prime Minister, was lauded by many indigenous groups, yet it was Keating’s timely

11 18th April 2006 Radio National Perspectives Series ‘The Mabo Case and its

Significance for Australia and the World’ transcript available at http://www.abc.net.au/rn/

talks/perspective/stories/s1618394.htm see also his excellent book Russell (2006).

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Reconciliation and Colonial Power44

comments on the Mabo decision that suggested the possibility of substantive change

in the colonial relationship.

We need these practical building blocks of change. The Mabo Judgement should be seen

as one of these. By doing away with the bizarre conceit that this continent had no owners

prior to the settlement of Europeans, Mabo establishes a fundamental truth and lays the

basis for justice. It will be much easier to work from that basis than has ever been the case

in the past. For that reason alone we should ignore the isolated outbreaks of hysteria and

hostility of the past few months. Mabo is an historic decision – we can make it an historic

turning point, the basis of a new relationship between Indigenous and non-Aboriginal

Australians (ibid.).

The Minister for Aboriginal Affairs described the Prime Minister’s speech was as

‘one of the most important ever made to Aboriginal people’ (Tickner, 2001: 96), while

acting Chairperson of the Aboriginal and Torres Strait Islander Commission and

Member of the Council for Aboriginal Reconciliation, Mr Sol Bellear, congratulated

Keating for putting indigenous affairs high on the Government’s list of priorities

and suggested that Keating had reminded the nation of the need, as part of a healing

process, to deliver long overdue justice to indigenous peoples. Praise for the speech

came from all quarters, even the leader of the Coalition opposition, John Hewson,

was said to not disagree significantly with Keating’s sentiments (Tickner, 2001:

96).

One of the more tangible effects of the speech was to raise indigenous expectations

of the possible nature of a national legislative response to Mabo. Keating’s rhetoric

from that day on provided the benchmark by which national legislation would be

judged by indigenous people and in that sense they were to be sorely disappointed.

Following the Mabo decision there began the construction, by powerful vested

interests, of a national crisis that largely focused on hypothetical counterfactual

‘concerns’ but which nonetheless successfully shaped the subsequent legislation.

Indeed, the Court’s legal reasoning in Mabo, in particular the limited nature of

native title, would be intentionally ignored by commercial interests that sought

advancement of their cause via a campaign that constructed a ‘national crisis’ out of

a relatively minor private concern.

Industry ‘Uncertainty’ as a Constructed National Crisis

A crisis, like all news developments, is a creation of the language used to depict it; the

appearance of a crisis is a political act, not a recognition of a fact or of a rare situation

(Edelman, 1988: 31).12

12 In this chapter I make several references to the work of Professor Murray Edelman as

his analysis in ‘Constructing the Political Spectacle’ (1988) and the ‘Politics of Misinformation’

(2001) resonates strongly with my own analysis of the native title debates in Australia. His

observations on the political spectacle are influenced by twentieth century language theory,

and especially the work of Nelson Goodman, Michel Foucault, and Jacques Derrida.

Reconciliation and Land 45

Industry groups, and in particular the mining lobby, were threatened by the Mabo

decision as it was conceivably possible that some of their existing commercial land

titles could be invalid, as no compensation had been paid to resident Aboriginal

groups at the time of purchase, and furthermore by the possibility of future grants

of native title hindering their hitherto unbridled claims for development of vacant

crown land. It is worth noting at the outset, however, that given the extremely

limited nature of native title, in that claimants would have to prove traditional and

continuing connection to the land to be successful, and the poor financial status of

indigenous groups, there really was no significant danger to corporations. The worst

case scenario for industry was that they might have to pay compensation to proven

native title holders for titles acquired prior to Mabo and after the enactment of the

Racial Discrimination Act 1975 (RDA) and possibly negotiate with proven native

title holders over future developments on land subject to the doctrine.13

Essentially, the concept of native title posed a minor problem for an enormously

affluent industrial lobby, in that it had the potential to dent profits, but in keeping

with the inherent desire of commercial interest to maximise profits it was nonetheless

economically rational for them to lobby the Commonwealth to validate their titles,

extinguish native title and pay compensation on their behalf. As already stated, the

primary lobbying tactic for this was the transformation of a minor private problem

into a ‘national crisis’. The media, as one of the key institutions that can promote

misinformation,14 were to take a lead role in aiding this construction. As Robert

Tickner (2001: 94) writes,

the reporting of the native title debate was to be abysmal. It reached its lowest point

when the front page of a Sydney Sunday paper seriously reported a Mabo land claim over

Sydney Opera House, which was without legal foundation of any kind.

As Peter Russell (2006: 280) writes:

In democracies the mass media cover the fights. News editors are far more interested in

hearing from those who promise to fight the case than those who wish to celebrate it. Such

13 In a nutshell, the reason why the Racial Discrimination Act 1975 became relevant is

that land grants were made without consulting Aboriginal groups as governments assumed that

they had no property rights. The Mabo case changed that and there was now concern over this

issue. As Brennan (1995: 39) writes: ‘usually if a miner wanted to obtain a mining title over

land already owned or leased by someone else, the miner would be required to give written

notice to the owner. The owner would have the opportunity to put objections to a mining

warden. There would have to be an agreement or a determination of compensation payable

for disruption to the land before the grant of the mining interest. None of these steps had been

taken in relation to native title land as all parties assumed traditional owners did not have

property rights.’ However, retrospective compensation is the standard remedy for situations

where rights have not been considered. All that was needed was for mining companies to

compensate proven native titleholders for not consulting them.

14 I am largely persuaded by this view of the media, especially given it’s performance

in key debates in Aboriginal affairs, of which the native title debate is just one of many. For

extensive discussions of this view of the media, see Edelman, 1967 and 1998 and for a more

systematic institutional analysis see N. Chomsky and E.S. Herman, 1989.

Reconciliation and Colonial Power46

was the case with the first blast of news coverage of Mabo (no 2). A few frames of Trevor

Graham’s documentary Mabo: Life of an Island Man give the flavour of the comments that

captured the headlines and made the evening news hour: ‘The decision has the potential

to destroy our society’; ‘80% of Western Australia could be claimed’; ‘This is the day of

shame for the Australian parliament’; ‘Many mining projects are at risk’.

One of the major tools of the press was the ‘opinion’ poll and in most cases the

contextual framing of questions and propositions was more likely to resonate with

mining than with Aboriginal interests (see Goot, 1994). As Goot (1994: 134, my

emphasis) suggests,

The explanation for much of this is not far to seek. Over 60% of the poll items which the

press paid for, or were invited to report, were sponsored by the mining industry’s peak

council or produced at the initiative of an organisation with direct mining links. Surveys

commissioned by AMIC in association with the Chamber of Mines and Energy in Western

Australia accounted for just over a third of the questions to which journalists had open

access; while polls conducted by the Roy Morgan Research centre – whose managing

director had invested heavily in mining in Western Australia – accounted for another

quarter. No polls were paid for or conducted by Aborigines or by those whose fortunes

were linked to Aboriginal interests.

The construction of a national crisis that was aided by the press and financed

by mining companies and their support networks can be deconstructed into four

interrelated layers.

The National Crisis of Native Title: Four Layers of Construction

i) The ‘Granting’ of Native Title

Soon after the Mabo judgement, John Hyde, former Liberal MP and then director of

the influential propagandist Institute of Public Affairs (IPA), gave an indication of

what was to come from the industry lobby when he wrote:

The Justices of the High Court had learnt nothing from the experience of Communism.

The particular title that they have ‘recognised’ has all the worst features of property in

Russia (cited in ibid.).

The statement seemed to suggest that indigenous social organisation, which existed

from time immemorial, was merely an unfortunate and problematic creation of the

High Court. The erroneous conception of native title, as something that was being

‘given’ to Aborigines to the detriment of the nation, rather than the long overdue

common law recognition of a pre-existing inherent right, was a necessary precursor

to the construction of native title as a national ‘crisis’. If native title could be widely

understood as a new phenomenon that the High Court had ‘granted’, in error, without

due consideration for business interests, it would greatly strengthen their arguments

for extinguishment of indigenous native title to land. This erroneous conception of

native title, which was promulgated by large sections of the press and fully embraced

Reconciliation and Land 47

by members of the Coalition, was crucially only the first stage in the construction of

native title as a ‘national crisis’.

ii) ‘Unacceptable Uncertainty’

The second stage of the ‘crisis’ framing can be subdivided into two categories.

Essentially, the assertion was that the concept of native title made: i) existing land

titles and ii) future industrial development possibilities ‘unacceptably uncertain’.

The issue of ‘uncertainty’ for industry was the central rhetorical pillar in the

construction of native title as a ‘national crisis’. The fact that first element of the

uncertainty construction, concerning existing land titles, depended on an incorrect

legal argument did not stop it quickly gaining credence in the press.

Just before the federal election in 1993, the Australian Mining Industry Council

(AMIC) produced a paper for consideration by the newly constituted Mabo Ministerial

Committee that encapsulated the first element of the uncertainty argument. The paper

argued that the combined legal effect of the Racial Discrimination Act (RDA) 1975,

which gave legislative effect to the United Nations Convention on the Elimination

of all forms of Racial Discrimination (CERD), and the High Court’s decision in

Mabo was to place at risk some existing titles, including mining interests of non-

Aboriginal Australians gained after the passage of the RDA in what would otherwise

have been native title land (see Goot, 1994).

The crux of the AMIC’s legal argument was that post-1975 all transactions in

land had to be non-discriminatory and since many potential native title holders

would not have been treated the same as other titleholders during that time (for

example, potential native titleholders would not have had advance notice of, or

received compensation for, impending government appropriation of their land for

a mining grant) they were treated in a discriminatory manner. Thus, the only way

to remedy the situation, so the argument contended, was to introduce retrospective

legislation to override the RDA, Australia’s only anti-discrimination legislation.

The fundamental, and legally incorrect, AMIC assumption was that a defective

title could not be legitimated by the payment of just compensation15 and consequently

the Federal Government had to overcome the failure of state governments to

recognise and respect the interests of native titleholders between the years 1975–93

when native title was not recognised and governments were understandably ignorant.

For Robert Tickner the acceptance of this argument was detrimental to hopes of a

reasoned response to Mabo. He writes (2001: 100):

one of my deepest regrets in all the native title debate is that what I regard as a nonsensical

legal argument took hold and dominated the agenda of industry groups, politicians and,

worst of all, Aboriginal people, even though it was not supported by the government’s

own legal advice. This legal furphy took hold like a grass fire, with terrible consequences

for the progress of the debate.

15 Payment of just compensation is the standard legal remedy invoked when a bona fide

good faith purchaser has inadvertently purchased a defective title.

Reconciliation and Colonial Power48

Even the Attorney-General’s Department suggested that all that was needed was

for each state to enact legislation to extinguish native title providing that it pay

‘reasonable compensation’ to the native title holders whilst validating the previous

commercial grants. Thus the clear legal advice was that Commonwealth legislation

to override the RDA was not essential. Yet, calls for such action refused to go away

largely because neither state governments nor the industry lobby wished to be landed

with the possible compensation bill for extinguishing native title.

The second element of the uncertainty construction was the claim that the existence

of native title made planning for future developments unacceptably problematic.

One of the first people to invoke this logic was Norm Fussell, chief executive of

Mount Isa Mines (MIM) who announced strong concern over the certainty of the

MIM McArthur River mine in the Northern Territory, a $250 million lead-zinc-silver

project approved the previous year by the federal government, which had become

the subject of a native title claim. He publicly threatened to pull out of the deal if

the government did not take prompt action to confirm commercial land titles and

provide the mining industry with the certainty it thought it had (The Australian,

1993; see also Tickner, 2001: 108).

The most high profile use of the argument, however, concerned what became

known as the Wik claim (discussed in full in the next chapter). The claim was made

by the Wik peoples of northern Queensland and covered 35,000 square kilometres

of Cape York. The claim included several areas under a mining lease to CRA Ltd

and the Archer Bend National Park. In a television interview in July, CRA managing

director, John Ralph, suggested that his company would defer or scrap projects worth

$1.75 billion unless the Wik claim issues were resolved. The company followed this

up by sending letters to all government ministers stating that ‘you will appreciate that

we cannot enter into any consultations with the Wik people until we have an assured

position regarding title and absence of liability for any compensation arising out of

invalidity’ (in Tickner, 2001: 110). The crux of the argument was that negotiating in

good faith and on just terms was unacceptable to business; negotiations would only

be acceptable when commercial interests were certain of the best possible outcome.

Yet, as the late Nugget Coombs (1994: 210, my emphasis) suggested,

The claim that uncertainty for miners and other development interests is intolerable and

requires extinguishment of native title is unwarranted. It is the product of the continuing

unwillingness of many resource-exploiting enterprises to concede that they will have

to negotiate with Aboriginal people and accept their right to hire expertise to secure

reasonable equality of bargaining power … dealing with uncertainty is what entrepreneurs

are rewarded for. The Pintubi had no certainty that they would be given the right to live at

Yayai. They asked the owners and no doubt negotiated. Let miners do likewise.

iii) Mining Interests as ‘the National Interest’

The final, and most crucial, stage of the national crisis construction was the promotion

of the argument that it was not just mining industry interests that were threatened

by this uncertainty, but also the interests of the whole nation. Chomsky (1999: 96)

suggests that due to the success of corporate propaganda in western countries in

Reconciliation and Land 49

the years since World War II this is currently a relatively easy task. Indeed ‘the

terms, United States, Australia, Britain, and so on, are now conventionally used

to refer to the structures of power within such countries: the ‘national interest’ is

the interest of these groups, which correlates only weakly with the interests of the

general population’ (ibid.). Commenting on the Australian context Coombs (1994:

104) observed:

There is currently … extensive propaganda urging expansion of investment (especially

foreign capital) in mining as a stimulus to employment. It should be noted that measured

by jobs per unit of capital costs, the location of minerals prospected, the capital-intensive

processes of both the mining itself and the processing of the raw products, money spent in

expanding the mining industry produces a minimum of jobs.

Moreover, an economic report produced for the Northern Land Council concluded

that the only significant benefit to that economy came from the expenditure by

Aborigines and their organisations of the money paid to them by mining companies

under the terms of the Commonwealth’s land rights legislation of 1975 as the rest

of the capital gain disappeared overseas (O’Faircheallaigh, 1986 my emphasis).16

Nevertheless, since the 1970s ‘exploration rush’ the mining lobby has sought to

maintain the relatively mythical link between their interests and the national interest

and the Mabo debate was no exception.

The Northern Territory Chamber of Mines and Petroleum leader, Grant Watt,

was one of the first interested parties to invoke the ‘national interest’ rhetoric, urging

quick Commonwealth action to respond to Mabo and warning that the failure to do

so would have serious consequences for mining investment and thus for Australia

as a whole (The Australian, 1993). He was soon followed by the Shadow Minister

for National Development and Infrastructure, Ian McLachlan, a member of the

Coalition Mabo Subcommittee, who stated, in a speech to the right wing Harvey

Nicholls Society, that in

granting a ‘new right’ (sic) the High Court had failed to take account of the immense

damage it would do to the rights other Australians thought they had’ and had ‘left great

tracks of Australia in turmoil as to title and therefore in those areas, risks the stability and

future development of the nation (in Tickner, 2001: 115, my emphasis).

The tabloid press fuelled this element of the construction. One of the more strident

editorials came from the Sunday Herald Sun, which concurred with Mining Company

Chief Executive Hugh Morgan’s assessment that Mabo was affecting business and

cutting off our economic lifeblood (all because) some politicians and their camp followers

have become slaves of the green movement and others are determined to punish us for

crimes by the British against Aboriginals committed before we, our fathers and even our

grandfathers were born (ibid: 107).

16 The legislation was the Northern Territory Aboriginal Land Rights Act, 1975 enacted

by the Whitlam government after the Woodward Commission of inquiry.

Reconciliation and Colonial Power50

It is somewhat ironic that the construction of native title as a ‘national crisis’ was

fuelled by Aboriginal ‘ambit claims’ that had absolutely no chance of success.

On 29 December 1992, ABC’s AM programme reported that a native title claim

had been lodged that covered Brisbane’s Central Business District. Deputy Prime

Minister, Tim Fischer, suggested that the Brisbane CBD ambit claim had performed

‘a service’ for the nation by highlighting the shocking seriousness of the Mabo

judgement and asserted that mining projects could be jeopardised and promised that

if a Coalition government was elected it would, if necessary, legislate to provide

certainty for the mining industry.

iv) Threatening the Rights of ‘Other Australians’

The tool of the opinion poll came into its own in this layer of the construction.

Typical examples of commercial oriented polls were those produced by AMR:

Quantum (1993) and commissioned on behalf of the mining industry.17 Each of their

surveys asked:

Whether you would be very concerned, somewhat concerned or not at all concerned if the

effect of this Mabo decision were to:

Put at risk the existing property titles of other Australians

Discourage mining investment in Australia

Delay or prevent economic developments

Reduce or prevent employment opportunities in Australia

Result in the control of some publicly owned natural resources by a minority

group

Result in large areas of Australia being claimed by Aboriginal people

The AMR: Quantum (1993) poll was of particular interest as it implicitly and subtly

contained all the ingredients of the ‘national crisis’ construction so far established

while introducing a new element. It continued to emphasise the now familiar corporate

rhetoric that connects mining ‘investment’ and ‘employment opportunities’, with no

mention of the word ‘profits’, while at the same time implying that there was a threat

not just to corporate property titles but to the property titles of ‘other Australians’.

This inference became known as the ‘backyards threat’ which was to add the final

layer to the construction of native title as a national crisis. As Goot (1994: 145)

states,

the AMR: Quantum finding that 89 per cent of the electorate ‘would be … concerned’

if the property titles of ‘other Australians’ were ‘put at risk’ is of little value – except of

course, for the purposes of propaganda. Since threats to homes would be unpopular (an

obvious point, for which one hardly needed a poll), getting people to fear for their homes

because of Mabo (a political task) would leave any party that backed Mabo (read the

government) with a large electoral liability.

17 See for example, AMR: Quantum ‘National Opinion Survey on Aboriginal Issues’

10–15 June 1993 commissioned by AMIC and CME Western Australia, press release 11 June

1993.

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Reconciliation and Land 51

Due to the exceedingly limited nature of the Mabo case, with native title requiring

traditional and continuing indigenous occupation, the threat to private ‘backyards’

was entirely without legal foundation, yet it was frequently cited in the press and

gained further credence when Coalition leader, John Hewson, utilised its dramatic

impact in his Mabo address to the nation shortly before the general election. It seemed

that the industry lobby and the Coalition were well aware that dubious allegations

about the dangers or threats a situation poses are potent avenues for influencing

public opinion (see Edelman, 2001: 91).

Snapshot Fairness and a ‘Balancing of Interests’

The political power of the commercial interests coupled with the construction and

constant reinforcing of native title as a ‘national crisis’ meant that Keating would be

under constant pressure to prioritise corporate interests. The real trick for Keating,

given that the Mabo decision was handed down in the first year of a high profile

reconciliation process, would be to prioritise corporate interests and still convincingly

claim that the legislation would provide a sound basis for the reconciliation process.

For this purpose he chose to frame this agenda with the agreeably neutral terms

‘fairness’ and ‘balance’ that seemed to sit comfortably with the term ‘reconciliation’.

Indeed, the Prime Minister’s stated objective was to achieve ‘a balanced outcome

that both advanced indigenous rights and provided certainty for industry and,

ideally, such an outcome would be nationally negotiated with the support of state

and territory governments’ (in Tickner, 2001: 93, my emphasis). He wanted an

outcome that ‘would stick’, that is, one that commanded the greatest support from

those governments.

However, if one looks closely at the phrasing of many of Keating’s comments

at this time, there was a definite foreshadowing of bias towards corporate interests.

Indigenous rights would be ‘advanced’, hardly difficult given their pre-Mabo levels,

while industry would be guaranteed ‘certainty’. The apparently self evident legitimacy

of notions of ‘fairness’ and ‘balance’ provided the propagandist veneer used to veil

the otherwise blatant prioritising of corporate interests. Indeed, the Prime Minister’s

rhetorical approach was to appeal to a notion of ‘fairness’ that required a ‘balancing

of interests’ that was actually relative to their political power and which paid little

regard to the effects of unequal bargaining power and historically based inequalities.

In reference to the US affirmative action backlash, sociologist, Troy Duster (1995:

5), uses a pertinent gambling analogy to illustrate the inherent unfairness of such an

approach.

All debates that appeal to fairness have a timeframe and cannot be addressed by taking a

snapshot at a particular moment, stripped of its social and historical context. To make my

point, imagine a card game, say, poker, in which someone has been cheating for the first

three hours. Then, after raking in a huge pile of chips, the culprit is caught red-handed,

admits cheating – and then takes the position that, ‘from now on, lets play fair!’ To add

insult to injury, he declares, ‘If you start to take away my chips, I’ll call it ‘reverse-

cheating’. That’s a snapshot version of fairness.

Reconciliation and Colonial Power52

Despite the rather obvious unfairness of balancing contemporary interests without

due regard to historical cause and effect, the logic was almost universally accepted as

the legitimate starting point for the negotiations around the native title legislation. As

the governments ‘consultation’ process got under way however, Keating soon sought

to further deepen the inequalities in bargaining power by blatantly marginalising the

indigenous voice.

Marginalising Indigenous Interests

Before I turn to Keating’s Mabo ‘consultation’ tactics it is necessary to take a brief look

at what, broadly speaking, constituted the ‘national Aboriginal leadership’ at the time.

At the community level, where there is still adherence to traditional social

structures and notwithstanding significant regional differences, authority in

indigenous groups tends to reside in Elders who are usually the older members of

the clan and who are, in essence, the custodians of their culture and empowered to

make decisions on behalf of the group (see Broome, 1994, McIntosh, 2000, Gilbert,

1994, Mudrooroo, 1999).18 Elders are responsible for transmitting knowledge to

younger members and with that knowledge transmission comes power and prestige

(Mudrooroo, 1999: 90).

Aboriginal people still living in accordance with such laws and customs do not

recognise leadership in the sense in which the colonial state does.19 Hence, the nature

of Aboriginal social organisation presents significant problems for the possibility of a

national (colonial state level) Aboriginal leadership ever being representative, much

less appropriate. Moreover, many Aboriginal communities have such high levels of

social disadvantage, trauma, suicide, alcoholism and the like, that it is somewhat

inconceivable that they could participate in the national politics of their colonisers

in any meaningful way.

Nevertheless, over time ‘national’20 level Aboriginal representation began to

develop alongside local indigenous political mobilisation in the face of continued

colonialism. There was a growing feeling amongst Aboriginal activists that since

the colonial state effectively controlled their lives, they needed ‘national’ leaders

18 For a map of the geographical location of Aboriginal communities in Australia

produced by the Australian Institute of Aboriginal and Torres Strait Islander Studies see http://

www.foundingdocs.gov.au/pathways/index.htm

19 To name but a few, the Yolnu of Arnhem Land (see Trudgen, 2001), the Meriam

people from Mer (Murray Island as the British named it) who were the peoples involved in the

Mabo case, and the Wik and Thayorre peoples who brought the Wik case to the High Court.

There are also many groups in Western Australia that continue to practice traditional laws and

customs and consider themselves as constituting their own nations. See the above map for the

location of Western Australian language groups.

20 Henceforth I will use inverted commas when referring to ‘national’ colonial state level

indigenous leadership since this requirement, in a sense, is yet another colonial imposition on

indigenous people who consider themselves distinct nations. The colonial state’s requirement

for such leadership betrays its distinct lack of desire to communicate directly with indigenous

nations as distinct political entities.

Reconciliation and Land 53

to represent them at that level (see Gilbert, 1994). However, in an important sense,

the dominant national leadership that has emerged is itself a product of the colonial

state. The Federal government policy initiatives of the 1980s that sought to move

away from the rhetoric of assimilation toward greater ‘self-determination’ served

to indigenise certain relevant state bureaucracies which in turn produced high-

profile government employed ‘Aboriginal leaders’ (see Mudrooroo, 1999). Due to

the bureaucratic nature of such indigenous appointments, and also the fundamental

cultural problems mentioned above, indigenous leadership at the national settler

state level is now somewhat amorphous (Gilbert, 1994: 136). ‘Aboriginal leaders’

in the employ of the government are broadly distrusted by community Elders at the

local level, not just because of the inherent violation of traditional hierarchies. As

Gilbert (1994: 138) stated

it may not be altogether fair, but in black eyes nevertheless, anyone who takes any type

of government or semi-government job automatically becomes suspect. The money-fear-

security nexus that seems to be the backbone of these jobs sooner or later prevents black

employees from acting in the black interest, no matter how much ‘on side’ they might feel.

They can, perhaps, go so far, but definitely no further. There are examples of blacks in

comfortable jobs for years by virtue of their ability never to upset white bosses.

The crucial problem for such organisations is that Aboriginal people are only ever

permitted a limited managerial role when it comes to handling funds and are ultimately

accountable to white bosses and restrained by their administrative structures. This

was still the case with the last, perhaps most autonomous and representative body

to date: ATSIC. While indigenous people directly elected ATSIC representatives,

it was entirely dependant on Federal government funding and conformed to strict

expenditure accountability requirements. Furthermore it was the Federal government

which set the ATSIC spending priorities. It is entirely understandable therefore that

many indigenous people did not consider ATSIC to be a significant step towards

self-determination and did not consider its leadership to be their leadership. As

Mudrooroo (1999: 88) wrote, it was not long before ‘people were saying that ATSIC

stood for “Aborigines Talking Shit in Canberra”’, a sentiment I have heard expressed

repeatedly while researching this book.

The general dependency of Aboriginal staffed organisations on government funds

and the subsequent restrictions on ‘leaders’ autonomy led a group of community

Elders, from the Pitjatjantjara, Wiradjuri, Yolnu and Eroa clans, to form the Aboriginal

Provisional Government (hereafter the APG). The APG attempted to reconcile

traditional hierarchical structures with the forms of representation required for

liberal legitimacy. Indeed, the APG structure is based on both traditional indigenous

hierarchical structures and ‘western’ democratic principles. It is governed by a body

of community Elders, from the above mentioned clans, who control entry to their

ranks, with a subordinate Executive Council consisting of elected representatives.

As the APG papers (1992: 297) state:

it was thought to be both disrespectful and demeaning to expect our Elders to enter the

APG by popular elections. Had we not been invaded, they would be running our nation.

Reconciliation and Colonial Power54

So why should they be banished to compete with younger Aborigines who have not yet

achieved the status deserving of our Elders?

In contrast to ATSIC the APG is autonomous and free from Federal government

interference. It is a voluntary association of Elders and community representatives

who have decided to campaign for separate sovereign states based on the principle

of indigenous national sovereignty, an issue well beyond the scope of bureaucratic

bodies such as ATSIC.21 Perhaps because APG members are more likely to question

the legitimacy of whole discussion frameworks throughout the reconciliation period

their members were rarely consulted on crucial indigenous issues either by the

government or the CAR. Indeed, when dealing with contentious indigenous issues it

is a common tactic for governments to consult only the ‘Aboriginal leaders’ in their

employ (see Bennett, 1999).

To return then to the Mabo debate, Paul Keating’s government embraced the

general tendency to consult Aboriginal people as narrowly as possible. Wary of this

tendency, and in response to growing industry pressure on the government, Patrick

Dodson, the chair of the Council for Aboriginal Reconciliation, wrote to the Prime

Minister urging him to engage in national discussions with indigenous peoples so

that the government would be better able to appreciate the broader issues involved.22

This did not occur, however, as the government effectively isolated one group of

indigenous spokespeople (the so called ‘B-Team’ including APG elected member

Michael Mansell and Aden Ridgeway (now a Democrat Senator) in favour of another

group (the A-Team which included ATSIC chair Lois O’Donaghue) that seemed

more inclined to begin negotiations with a basic acceptance of the legitimacy of

the ‘uncertainty’ construction and the of the need to balance interests in line with

contemporary entitlements. In reducing the consultative burden Keating was seeking

to confine ‘discussions’ to the ‘fine print’ of his proposals and not the substance.

Such intentional contraction of the consultative net is a common tactic of

governments that publicly request the input of a broad range of interests but privately

seek mere justificatory ammunition for a path already chosen (see Edelman, 2001

and Bennett, 1999). Indeed, Bachrach and Baratz (1962: 71) referred to such use of

political power as an example of ‘the mobilisation of bias’ whereby some issues are

organised into politics while others are organised out. By isolating the ‘B-team’ and

its APG members and failing to canvass the views of indigenous leaders across the

country, Keating was essentially ‘organising out’ such issues as a right of veto over

future developments and the related issues of indigenous political autonomy and

control of resources.

When discussing the ‘two-dimensional view’ of power Lukes’ (1980: 17)

has also drawn attention to the fact that institutional procedures, the rules of the

political game (in this situation the Mabo response consultative framework), are

themselves a product of power relations and can act as a filter to the airing of issues

21 Furthermore, the APG has sought to behave in a state like manner and has issued over

1000 Aboriginal passports.

22 The full text of the letter can be viewed at the CAR’s web archive via http://www.

reconciliation.org.au.

Reconciliation and Land 55

deemed inimical to dominant interests. Keating’s tactics can be seen to invoke this

deployment of power.

In April 1993 the largest version of the moderate ‘A-Team’, predominantly

consisting of government employees from several Aboriginal Land Councils and

Legal Services plus ATSIC chair Lois O’Donoghue, met with the Mabo Ministerial

Committee. The meeting was particularly noteworthy for being the first time that

indigenous languages had been spoken at a meeting of Cabinet ministers and for

the passionate contribution of the late Rob Riley. He warned against excluding

Aboriginal people from the consultations, stating

don’t attempt to do this without our involvement. Please don’t dismiss us. If you do so

you can forget about reconciliation. If we have to we will wind people up. We will hit the

streets. We will go to the international forums. The one thing you, your colleagues, the

miners, the pastoralists and the Australian people have to accept is that the law of the land

changed and we are going to exercise our rights. That is how serious we consider this.

The last comment I want to make today is, you don’t stop negotiating for justice simply

because those around don’t like it. We will not stop fighting. Thank you, that is all I have

to say (cited in Tickner. 2001: 114).

Such a plea for widespread consultation was largely irrelevant to Keating, however,

as he merely needed the approval of the Aboriginal ‘establishment’ in order to frame

the legislation as ‘nourishing the reconciliation process’. While in New Zealand in

May he stated that with the Commonwealth’s response to the Mabo decision he hoped

that Australia was finally coming to a basis of reconciliation with indigenous people.

The Prime Minister’s comments immediately attracted the familiar attack from those

at the extremes, which served to strengthen the apparent ‘fairness’ of Keating’s

approach. Tim Fischer, for example, lamented that the land rights legislation was

being driven solely by the agenda of Aboriginal reconciliation. This accusation of

‘one-sidedness’ invokes the same historically empty logic as the charge of ‘reverse

cheating’ that Duster (1995) notes with regard to affirmative action policies in the

US. It is now a common retort when proposals for historically sensitive redress

policies threaten to breach the ‘snapshot version of fairness’ favoured by those who

seek to maintain existing inequalities.

The first real opportunity for indigenous people to judge what the government

intended to do with their rights came with the release of the ‘June Discussion Paper’.23

The main thrust of the paper was the limiting of rights that would accompany native

title not the advancement of indigenous rights protection implied in Keating’s

rhetoric at Redfern and in subsequent speeches.

The June paper was uncomfortable with the possibility that, in accordance with

historical injustice and Aboriginal special attachment to the land, native title holders

compensation entitlements should be greater than ‘other landholders’ (Rowse,

1994). To the dismay of the Aboriginal negotiators the paper also proposed that

native titleholders would not be granted a right of veto over future developments on

their land.

23 Available from the CAR archive at http://www.reconciliation.org.au.

Reconciliation and Colonial Power56

There was widespread criticism of the paper, even from the ‘A-Team’, Noel

Pearson, accusing the government of reformulating native title as a mere land-

management issue”, with indigenous peoples special attachment to land being

largely ignored (Australian Financial Review, 1993). He concluded that the paper

was a “slimy useless document, a bureaucratic real estate management approach to

an historic injustice (ibid.).

The state Premiers were also quick to criticize the discussion paper, but for not

limiting indigenous rights enough. Richard Court, the Western Australia Premier,24

suggested Australia was heading towards an apartheid system based on unfair land

distribution in favour of Aboriginal groups (see Tickner, 2001: 123). It is interesting

and telling that Keating rarely responded to such pressure by invoking a historically

situated counter argument or even by invoking the rationale of the High Court itself.

He preferred to deflect and appease his various audiences with vague references to

the reconciliation process.

A primary concern for commercial interests, and therefore state governments, in

the native title debate was the possibility of the Commonwealth granting indigenous

people a ‘right of veto’ over native title land, which would mean that future

developers would require the consent of native title holders. Since it was known that

the Commonwealth were in fact considering some form of ‘special’ right that would

reflect indigenous peoples’ unique connection to their land, states made frequent

representations on the subject.

Queensland, for example, was opposed to any ‘naked assertion of Commonwealth

power’ and were adamant that indigenous people should have no rights of consent

(over how their land could be used by others) additional to those exercised by other

landholders (see Tickner, 2001: 117). Such a position conveniently ignores the

importance of land to indigenous culture and the legacy of colonisation, dispossession

and genocide from which ‘other landholders’ have indirectly, and in some cases,

directly benefited. The Queensland position also conveniently ignored the fact that

other landholders rarely have to give up their land ‘in the national interest’ while

indigenous groups would have to do so with some regularity given the development

possibilities of much of the land that could possibly be the subject of successful

native title claims.

In the end it seemed that in displaying an apparent interest in a veto, Keating’s

cabinet were merely engaging in placatory political manoeuvring as a right of

veto was really ‘never on’ (Keating, SBS Dateline, 28 July 1993). On the 27 July,

the Cabinet officially announced a decision to accord native title holders a right

to be ‘consulted’ on proposed actions affecting their land, with arbitration by a

native title tribunal where agreement is not reached but with the capacity for the

decision to be overridden in the ‘national interest’ by either state governments or

the Commonwealth. Moreover, before any establishment of native title, commercial

grants of land could proceed with negotiation with the local Aboriginal authority

with compensation being paid if native title was later proven. It was made clear that

this was not a right of ‘veto’ akin to that in existence in the Northern Territory Land

24 Western Australia was the state that was expected to be most ‘susceptible’ to successful

native title claims and also a fertile sight for future mining development.

Reconciliation and Land 57

Rights Act of 197625 that granted reserve land to Aboriginal people, it was merely

a right to ‘negotiate’ over the possibility of future developments. If the developers

wish to proceed without Aboriginal consent they are free to do so. As indigenous

activist Michael Anderson asked ‘what is the point of having a right to negotiate with

no real bargaining power’?26

Many Aboriginal groups were dismayed by the notion that they merely had a

prima facie right to ‘negotiate’ and not decide what ‘use’ was made of their land that

they have continuously occupied since time immemorial. In a television appearance

the day after the Cabinet decision was made, Keating demonstrated that his earlier

Redfern Statement rhetoric was little more than placatory symbolism, the political

reality of colonial relations would not change in any way. He, explained that

Aboriginal people understood that a generalised veto was never on and that the job was

before the Aboriginal community to convince the government that the special attachment

they had to their land was such that they deserved a right of consultation and negotiation

(SBS Dateline, 28 July 1993).

When Keating used the terms ‘Aboriginal people’, he could only have meant the

A-Team of negotiators from the Aboriginal establishment, for he certainly had not

canvassed beyond that group. In the first week of August the Council for Aboriginal

Reconciliation tried to remedy the government’s deficiency in that regard when it

made its first significant contribution to the Mabo ‘debate’. It helped convene a

meeting, of approximately 400 indigenous people, at Eva Valley which produced

the ‘Eva Valley Statement’ that warned the Commonwealth not to let negotiations

with states and territories compromise its international human rights obligations

and further called for ‘informed consent’ as an essential condition of any grant of

interest over Aboriginal or Islander land, which was tantamount to a right of veto.

Commenting on this narrowing of the consultative net Paul Coe and Charles Perkins

issued a joint press release stating that:

attempting to legitimise the proposed Commonwealth native title legislation by having

the Prime Minister negotiating with five Aboriginals so as to say Aboriginal Australia has

been consulted is not acceptable … We stress that these Aboriginal negotiators have acted

in direct contravention of the resolutions passed by two national meetings of Aboriginal

people at Eva Valley and Queanbeyan.27

The Passage of the NTA 1993

On the 23 July Queensland Premier, Wayne Goss, added his weight to the demands

for certainty by CRA Ltd, the company affected by the Wik claim, in a letter to the

Prime Minister that urged the Commonwealth to secure CRA’s leases at Weipa. On

20 August Cabinet decided, in broad terms, that all non-Aboriginal title back to

25 See Chapter 8 for a summary of this legislation.

26 In conversation 2/1/03.

27 Paul Coe and Charles Perkins, Aboriginal Legal Service, Joint Press Release, 11

November 1993.

Reconciliation and Colonial Power58

1788 would be validated by legislation. This was a major defeat for the Aboriginal

negotiators as the decision amounted to a repudiation of the Racial Discrimination

Act (see Rowse, 1994).

To invoke Bachrach and Baratz’s (1962: 71) terminology, the Aboriginal viewpoint

had been ‘organised out’ of the political process. On the 8 October, subsequently

dubbed ‘Black Friday’, Lois O’Donoghue wrote a letter to Paul Keating, on behalf

of the moderate A-Team, rejecting the Commonwealth’s proposals, which would

effectively rule out marketing the legislation as ‘reconciliatory’. The result, aided by

the fact that Coalition opposition necessitated Keating seeking support elsewhere,

was further negotiations with the Democrats and Greens that focussed on changes

sought by the A-Team of indigenous spokespersons.

In the subsequent negotiations the Aboriginal spokespersons from the A-Team

suggested a ‘solution’ to a major element of the ‘national crisis’ construction. The

‘uncertainty’ that was produced by the interaction of Mabo and the RDA28 could

be overcome, without ‘rolling back’ the RDA, if the legislation to validate leases

and recognise native title were to be enacted as a ‘special measure’ for indigenous

people, as permitted by section 8 of the RDA. The aim of a ‘special measure’ is to

achieve substantive equality through affirmative action.29 To do this the legislation

would have to be framed as of overall benefit to Aboriginal people.

Interestingly, Tickner (2001: 102) has since confirmed that this course of action

was in fact first suggested by AMIC in private letters to ministers back in January of

that year, but as an industry proposed solution in a commercial interest dominated

‘consultation’ process it was not as marketable. With the suggested ‘solution’

now coming from Aboriginal people, however, it transformed ‘validation’ from

something the government was procuring into something the indigenous people

were conferring in return for definite negotiated benefits. As such, this framing

of the ‘solution’ (to a fictitious problem)30 had the added benefit of appearing to

be in keeping with Keating’s ‘give and take/balancing of interests’ rhetoric and

consequently the government welcomed the chance to transform the RDA issue from

a potential embarrassment to a principled basis for action.

However, for the legislation to be successfully classified as a ‘special measure’, as

defined by Article 1(4) of the parent law, the International Convention to Eliminate

all forms of Racial Discrimination, it would have to contain more obvious benefits

for indigenous peoples since the aim of a ‘special measure’ is to achieve substantive

equality through affirmative action, which is inimical to the ‘snapshot’ version of

fairness that was favoured so far. In the latter stages of the Mabo debate, therefore,

indigenous peoples were to enjoy a slightly stronger bargaining position as a result

of an AMIC idea that was appropriated and reframed as an Aboriginal negotiated

concession which required a degree of reciprocity.

28 To reiterate, this uncertainty was a construction since all that was required to ‘validate’

such leases was the payment of just compensation to eventual proven native titleholders.

29 See Race Discrimination Commissioner, 1997. The CDEP Scheme and Racial

Discrimination, HREOC, Sydney. P.40 available at http//:www.hreoc.gov.au.

30 See footnote 38.

Reconciliation and Land 59

In a deal brokered by Farmer’s Federation chair and CAR member, Rick Farley,

the minor concessions indigenous people achieved from their more empowered

position included:

Aboriginal people who purchased pastoral leases could convert them to

native title, although non-indigenous pastoral leases would still extinguish

native title.

The possibility for Aborigines to choose whether to have their native title

claims heard by a state or federal tribunal (a significant defeat for states), with

‘just terms’ as a basis for compensation.

An extension of the time limits for native title holders to negotiate development

proposals (arguably a minor defeat for the mining lobby).

A commitment to include in the Bill a ‘social justice package’ (with the details

to be decided at a later date).

Upon the incorporation of these changes into the proposed legislation, the A-Team

of indigenous negotiators publicly endorsed the bill on the 18 October. Despite the

Bill catering to virtually all commercial interest demands, the Coalition were still

strongly opposed, the opposition Special Minister for Mabo, Peter Reith, invoked the

logic of formal equality suggesting that talk of a ‘special measure’ was fundamentally

at odds with ‘our egalitarian society’. The official Coalition line, however, would

be opposition based on the grounds that the legislation would violate the states’

constitutional mandate to manage land.

Given persistent Coalition opposition the government were forced to make more

minor changes to appease the Greens and the Democrats to secure passage of the

Bill. After eleven months of national crisis propaganda, self-interested political

posturing and arduous negotiations over minor details the Native Title Act 199331

passed through the upper house three days before Christmas. The main sections of

the Act provided for

The validation of past acts which may be invalid because of the existence of

native title.

An Aboriginal right to negotiate over future developments on land that

already was, or likely to be in the future, native title land.

The formation of National, and equivalent State and Territory, Native Title

Tribunals to aid the establishment of, and limits to, native title rights and to

determine compensation claims.

A commitment to enact legislation that would provide the basis for a Land

Acquisition Fund for dispossessed indigenous people who could no longer

prove continuing connection to their land.

In the year following the passage of the Native Title Act 1993, there was much

political manoeuvring over the final point above, the land acquisition fund.

Eventually the Coalition supported a legislative package that would guarantee a

31 The full text of the NTA 1993 is available at http://www.austlii.edu.au/au/legis/cth/

consol_act/nta1993147/.

•

•

•

•

•

•

•

•

Reconciliation and Colonial Power60

commitment of AUS$ 1.5 billion in federal funds over a ten year period. The Bill

proposed to set aside AUS$ 200 Million in the first year with a further AUS$120

million for each of the following nine years. The focus of the Act was the creation of

the Indigenous Land Corporation (ILC) that was to support the adoption of ‘sound

land and environmental management practices and to develop national and local

land strategies covering environmental issues as well as acquiring, granting and

managing land’.

After the passage of the Indigenous Land Corporation Act 1994, the stage was set

for the instigation of Keating’s third tier Mabo response, the social justice package.

ATSIC was asked to develop the package, which it completed in 1995 after extensive

consultations around the country. The report was entitled Recognition Rights and

Reform32 but the incoming Coalition Government of John Howard has so far refused

to embrace the social justice package.

The Native Title Act 1993: Reconciliation or Rights Limitation?

Governmental procedures involving controversial issues are typically designed to

achieve a resolution whether or not it is fair, reasonable, or effective, though rituals and

myths always suggest that it meets these criteria. In fact, the resolution virtually always

perpetuates the status quo (Edelman, 2001: 26).

It is not surprising that indigenous peoples around the world continue to deny the

legitimacy of legislation and agreements which purport to recognise or grant them native

title to land they believe has always been theirs. This is especially the case when a primary

purpose has in fact been to validate earlier dispossessions and to ensure that remaining

land continues to be subject to alienation by compulsion (Coombs, 1994: 209).

Soon after the High Court had handed down its judgement in Mabo it became clear

that the Commonwealth would be under immense pressure from powerful vested

interests to ‘limit’ the application of native title, with some industry commentators

advocating outright extinguishment. Aboriginal people, however, were not without

bargaining power. They now had legally recognised rights and were further aided

by the moral weight of official ‘acknowledgement’ of Australia’s true history, by the

High Court in Mabo, by Keating at Redfern Park, and by the Official Reconciliation

legislation. Yet, such positives were contradicted by other factors. Aborigines were

not granted a right of veto over future development of their land, which, as Justice

Woodward (1993: 418) suggests, renders land rights largely meaningless. The right

of veto was an integral part of the Northern Territory Land Rights legislation back

in 1975 and a key demand in the Aboriginal Peace Plan, yet it gave way to the

interests of a powerful commercial lobby with the aid of a constructed national crisis

of uncertainty and a sympathetic press. The political spectacle that was the Mabo

debate served to obscure a standard political ‘compromise’ based on the balance

of power between interests, the result of which was the protection of commercial

interests and the perpetuation of the established colonial order.

32 Available at www.atsic.gov.au/issues/social_justice/recognit/index.html.

Reconciliation and Land 61

Despite Keating’s Redfern rhetoric, his preferred policy option of ‘balancing’

interests in a manner that ‘would stick’ was essentially code for desiring an outcome

that would not significantly alter the colonial status quo. The legislation’s primary

purpose was the validation of existing commercial titles and the provision of

guarantees that future land negotiations would be conducted within the parameters

set by existing power inequalities. In a radio interview Keating stated, ‘Aboriginal

people understood that a generalised veto was never on and that there was some

doubt that they even deserved a right of consultation and negotiation’ (SBS Dateline,

28 July 1993). Such statements sit more comfortably with the political realities of the

Mabo ‘debate’ than his historically sensitive Redfern rhetoric that offered so much

hope to Aboriginal people of a genuinely just response to Mabo. Indeed, it is clear

that the legislation responded to the agenda of powerful corporations in the mining

industry and to particular state interests to the detriment of indigenous interests.33

The omission of a right to veto supports this interpretation.

The government was able to produce such legislation and still claim Aboriginal

backing, and thus the advancement of the reconciliation process, by primarily dealing

with the Aboriginal establishment. The government made no attempt to consult

widely with the Elders of indigenous nations and grass roots organisations around the

country; rather, to its credit, the CAR took some initiative in this regard and at least

convened the Eva Valley meeting. Yet, the bulk of the negotiating was conducted

with, what became known as, the ‘A-team’ of moderate indigenous ‘leaders’34 as

they were aware, unlike those indigenous people that met at Eva Valley, that a right

of veto ‘was never on’. Moreover, the B-team were depicted as ‘radicals’, out of

step with the political realties, that is, they did not readily accept the validity of the

constructed ‘crisis’ of uncertainty that was allegedly facing the nation. Even the

official consultative body, ATSIC, had its role usurped when Keating created an in-

house Office of Indigenous Affairs (or Office of Insidious Affairs, to use ATSIC chair

Lois O’Donaghue’s ironic terminology). Yet, there is nothing unusual in such tactics,

in fact, keeping consultations as narrow as possible is the norm for governments

when dealing with competing interests (Bennett, 1999: 52).

The ‘A-team’ duly played its role for the government by advocating, and thereby

legitimising, the ‘special measure’ solution to the RDA ‘problem’ that had been

previously suggested by AMIC. The Commonwealth were then able to ‘validate’

titles, with the tax-payer footing the compensation bill, on behalf of mining interests

and still claim the legislation wasn’t discriminatory by asserting that the Act was

of overall benefit to Aboriginal people. This is a moot point, however, as while

it is perhaps fair to suggest that given the previous position of terra nullius the

33 This view is not common among commentators as most analysis is underpinned with

a pluralistic formal equality framework that does not fully appreciate the historic injustice

which would require a focus on equality of bargaining power and outcomes. Perhaps the most

nuanced and interesting writing on the Act and the debate can be found in Coombs (1994) and

briefly in Pilger (1998).

34 Throughout the course of my research, several community Elders have expressed

dismay at what they see as self-appointed leaders describing themselves as such without the

requisite community mandate.

Reconciliation and Colonial Power62

Native Title Act is of benefit, in the context of the rights recognised by Mabo the

overall thrust of the legislation is one of limitation of native title and advancement of

commercial titles. Moreover, the absence of a right of veto over future development

guarantees the continuance of an imbalanced power relationship between indigenous

peoples and mining interests, a situation which is clearly of benefit to the later not

the former.

It is true that gains were made throughout the debate, such as the land acquisition

fund (something that would not have happened under a Coalition government)

and that some Aboriginal people consider the Act to be relatively progressive, yet

these ‘gains’ are minor when compared with the guarantees afforded industry. The

successful ‘national crisis’ construction aided the eventual, and perhaps inevitable,

victory for commercial interests who achieved a tax-payer funded validation of

existing titles and a guarantee that Aboriginal people will not be able to negotiate

future developments on anything like an equal footing, even if native title were

fully proven. In short, Mining companies would be free to proceed with operations

without indigenous consent.

It is perhaps naïve to think that even a Government which displayed significant

pro-Aboriginal sympathies and instigated the Official Reconciliation process would

do anything other than side with industry groups who deem their interests to be

threatened by native title holders, since election to high office is almost impossible

without the financial backing of such affluent groups. Such explanations for

legislative inertia are well researched.35 As Political Scientist Murray Edelman

(2001: 26) states,

Both legislatures and high executive positions are dominated by those who win support

from elites by defending established inequalities … legislators are not nominated by the

major parties unless they are acceptable to established interest groups; and they know

that they will receive the financial support that is increasingly necessary to be elected

and re-elected only if they remain acceptable to those groups. Legislators are therefore

rarely the source of significant changes in established conditions or inequalities, although

they sometimes enact legislation that purports to provide such changes, knowing the

administrators and courts are likely to interpret and implement it in ways that minimise

whatever radical potential it contains.

Such analysis seems entirely applicable to the native title legislation as of 13 March

2006 there have been only 56 successful, yet very limited, determinations by the

‘white administrators’ in the Native Title Tribunal.36 None of the determinations

carry a right of veto and, more often than not, even the right to negotiate is ignored

by commercial interests who frequently fail to give notice to native titleholders of the

commencement of operations (NTLC, 2003). It seems that any ‘radical potential’ has

indeed been minimised, although some of the blame must lie with the Amendments

to the Act instigated in 1998 by the Howard government.

35 In terms of academic work in addition to Edelman (1988, 2001) see Vogel (1986),

Poulantzas (1978) and for a contemporary example of the increasing political need for

corporate financial contributions see the investigative reporting of Palast (2003).

36 See http://www.nntt.gov.au.

Reconciliation and Land 63

That native title determinations are made by ‘white’ institutions highlights

a more elementary problem with the Act, as in spite of the denunciation of terra

nullius it firmly entrenches fundamental colonial assumptions and impositions.

The assumption of legitimate settler state sovereignty, for example, results in the

burden of proof for native title residing firmly with Aboriginal groups whose fate

will continue to be decided by state institutions. In this sense alone, it would seem

entirely unreasonable to suggest that the Act could form the basis of a genuine

reconciliation, as Keating had suggested, for it fails to adequately address the fact

that pre-‘settlement’ indigenous people were distinct political entities with land and

sovereignty and while many groups still claim such status their interests are framed

as little more than the concerns of a disadvantaged minority. While the Act was

created with very little indigenous input, the Aboriginal Peace Plan and the Eva

Valley statement being largely ignored, this did not deter Keating from framing the

Act as the first major step on the road to meaningful reconciliation.

Yet, the history of a conflict is central to the reconciliation paradigm and thus

Keating’s balancing of contemporary interests does not do justice to the historically

based claims of indigenous peoples. The desire to proportionately accommodate

unequal interests that have largely arisen out of the situation that is the focus of the

reconciliation process itself, namely the act of invasion and dispossession, invokes a

‘snapshot’ version of fairness that is inimical to reconciliation as a normative concept.

Moreover, we must not forget that the motivational basis of action is relevant to the

concept of reconciliation. Disingenuous atonement can not be considered to advance

genuine reconciliation as the point of origin is antithetical to the foundational principle

of acknowledgment of harm. Thus, it is highly significant that land rights were not

part of the Commonwealth’s legislative agenda until the High Court intervened and

commercial interests demanded ‘certainty’.

The emergence of the Native Title Act should thus be understood, not as

reconciliatory tool, but rather as a political solution to an unwanted problem. Indeed,

the Commonwealth, pressured by the successful ‘national crisis’ construction,

essentially treated the whole process as a land management issue. The term

‘reconciliation’ was invoked at strategic times, often following an illicit guarantee to

the mining lobby, thereby reducing the concept to the level of mere propaganda.

An appreciation of colonial history was rarely evidenced in the Mabo ‘debate’.

Even Keating’s occasional pro-Aboriginal rhetoric (always framed in terms of

reconciliation) was assuaged by the need to balance contemporary interests. The

result was a political compromise in accordance with interested parties’ relative

political rather than moral weight. With that in mind it seems abhorrent to suggest

that the legislation was fuelled by an appreciation of the historical chain of causation

and by a desire to respond appropriately through core reconciliatory principles

of atonement, restoration and reparation. Yet, even if the political will had been

present to enshrine a more robust native title (including a right to veto) the generally

accepted conception of native title, as merely a limited interest in land, is itself,

perhaps, inherently incompatible with the logical requirements of a reconciliation

process instigated to address colonial dispossession and its legacy.

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Chapter 4

Reconciliation and Land II:

The Wik Case

As I outlined in Chapter 1, the dispossession of land and destruction of the natural

environment also destroyed the basis of indigenous peoples’ spiritual, cultural, and

legal systems and consequently the return of land is considered key to their survival

as distinct peoples (see Royal Commission into Aboriginal Deaths in Custody, 1991,

Rowley, 1986: 46, Gilbert, 1993: 160). The preamble to the Council for Aboriginal

Reconciliation Act 1991 also grounded the need for the process on colonial

dispossession and its legacy. This chapter then continues the discussion of the

trajectory of indigenous rights to land during the reconciliation period. The chapter

focuses on the second major land rights case of the reconciliation period, the Wik

decision, and the Federal Government’s response. I primarily focus on a government

and commercial lobby public relations campaign of misinformation, which aided

a contemporary ‘land grab’ of enormous proportions and further dispossessed

indigenous peoples during an official reconciliation process that was supposed to

address indigenous aspirations in relation to land and justice. It concludes with a

discussion of the human rights implications of the Howard government’s response

to Wik: the Native Title Amendment Act 1998.

Introduction: Co-existence of Proprietary Interests

When the First Fleet arrived in 1788 it brought with it a body of English law,

including a theory of tenures, which upon the assertion of terra nullius meant that

all land holdings had to be derived directly or indirectly from the crown. The crown

retained ultimate ‘radical’ title over all land, while the body of English law created

lesser derivative titles such as freehold and leaseholds, with the owner of the freehold

title usually granting the leasehold. Thus, by definition a lease co-exists with the

Crown’s radical title and frequently also with a freehold title. The Crown’s radical

title is usually manifested today in such statutory prerogatives as the compulsorily

acquisition of land or the granting of access to surface or subterranean mineral

deposits.

While the main body of English law provided the framework for the colonies,

legislatures soon began to develop their own laws tailored to the local conditions. A

prime example of such is the concept of a ‘pastoral lease’, which is a form of land

tenure that was created in the 1830s and 1840s by the British Colonial Office in

response to illicit settler ‘squatting’ of herds and flocks on areas beyond established

boundaries. Despite the fact that indigenous peoples were not consulted in any

Reconciliation and Colonial Power66

meaningful way over the establishment of pastoral leases, there is clear historical

evidence that the colonial headquarters explicitly asserted that pastoral leases should

not stop Aboriginal people from having access to the land (see Nettheim, 1996,

Reynolds, 1996). Indeed, according to historian Reynolds (1996: 14, my emphasis)

there is clear evidence that the pastoral lease was also designed by colonial authorities

to protect indigenous peoples from the onslaught of European settlement. In over half

the continent the policy is written into statute law, and leases expressly recognise the

right of Aboriginal people to have access to the land (Nettheim, 1996). In the 1890s

about 93 per cent of the Northern Territory, and substantial areas of Australia, were

subject to such pastoral leases (NLC, 1997). Countless leases were issued, almost

indiscriminately, to commercial speculators, many of whom neither occupied nor

developed the land, which resulted in many leases reverting to government control

in the early twentieth century. These are known as ‘historic’ or ‘ghost’ leases and

many of them are now undeveloped land owned by state governments, with the

underlying ‘radical’ title still belonging to the Crown.

A general characteristic of a lease is that the tenant has a right of ‘exclusive

possession’, but on the fruition of the lease full rights to the land revert to the

freeholder. In the case of pastoral leases, however, most were granted directly by the

Crown. The essence of a pastoral lease was the permission to exclusively use land,

to graze animals and the like, but crucially this did not amount to exclusive rights of

ownership. Pastoralists merely rent the land from the government and are limited to

conducting specific activities, usually managing stock (Love, 1997: 11).

Following Mabo the Crown has ‘beneficial title’ to lands that were not subject

to surviving native title, yet the Crown’s ‘radical title’, derived from its ultimate

sovereign power, could be invoked to extinguish native title. If government acts show

a ‘clear and plain intention’ to extinguish native title then it will be extinguished at

common law. Such an intention would be inferred where a title grants exclusive

possession, such as a freehold title. Thus any native title claims over freehold land

would be dismissed at the outset, as the two interests could not co-exist since freehold

possession is exclusive. Thus, a freehold title ‘trumps’ native title completely. The

power to enact such extinguishment of native title derives, quite simply, from the

assertion of ultimate sovereign power or crown sovereignty.

In Mabo it was unclear whether Crown grants of leasehold titles would extinguish

native title as leasehold titles do not necessarily convey exclusive possession.

Brennan J did however suggest that leaseholds generally would extinguish native

title (Mabo, 1992: 62), while the preamble to the Keating government’s Native Title

Act 1993 stated ‘that native title is extinguished by valid government acts that are

inconsistent with the continued existence of native title rights and interests, such as

the grant of freehold or leasehold estates’.

There seemed to be a desire to leave un-addressed the particular case of pastoral

leases. In the run up to the 1996 federal election however, the Coalition government

stated that it would soon begin consultations with all interested parties to see early

resolution of the pastoral lease native title issue. Senator Nick Minchin became

Howard’s parliamentary secretary for native title and constitutional change and was

subsequently placed in charge of the consultation process. He eventually released

a discussion paper: Towards a More Workable Native Title Act, which discounted

Reconciliation and Land II: The Wik Case 67

legislation to completely extinguish native title on pastoral leases (known as

‘blanket extinguishment’). Such a course it suggested would likely breach the

Racial Discrimination Act and consequently open up Australia to international

condemnation. It would involve large scale property acquisition and sizeable

compensation payments. In short, the paper stated that it was the government’s

intention to leave the issue up to the High Court and to abide by its ultimate decision.

The government appeared entirely confident that the Court would confirm that the

mere existence of a pastoral lease extinguishes native title as the two interests could

not co-exist.

The Wik Judgement

While the Keating government was negotiating its response to Mabo, the Wik and

the Thayorre peoples, spurred on by Mabo, sought native title over the land on which

they had always lived in the Cape York peninsula in the far north of Queensland.

They sought native title over their share of the 1119 square mile Holroyd River

pastoral lease. Their neighbours, the Thayorre people, claimed native title on part

of what used to be the 535 square mile Mitchellton pastoral lease that bordered and

partly overlapped the Wik claim area but which was now vacant crown land. Due to

the overlapping nature of the claims they were heard together by the Federal Court

and then the High Court. The Wik and Thayorre people claimed native title could

coexist with pastoral leases while the governments argued that the mere granting of a

pastoral lease, at any time, permanently extinguishes native title as the two interests

are incompatible even if the land was never developed.

One of the leases in question in the case had never been farmed in any way,

while the other had been severely neglected to the extent that the stock roamed wild.1

Meanwhile, the Wik and Thayorre people continued to hunt, fish, and practice their

traditional ceremonies at sacred sites on their ancestral land without any interference

from the pastoral leaseholders or officers of the Crown. Thus, the High Court was

considering pastoral leases that bore little resemblance to private family run farms in

the more densely populated parts of the country.

The majority of the justices held that a pastoral lease may restrict the rights of

native title holders, but that did not mean that they could not co-exist side-by-side

with the rights of pastoralists. In the words of Justice Kirby (Wik, 1996 my emphasis)

the court decided to uphold

the basic argument, advanced for the Wik and the Thayorre, to sustain the suggested survival

of their native title notwithstanding the pastoral leases granted in this case. Their argument

was simple and correct. Pastoral leases give rise to statutory interests in land which are

sui generis. Being creatures of Australian statutes, their character and incidents must be

derived from the statute. Neither of the Acts in question here expressly extinguishes native

title. To do so very clear statutory language would, by conventional theory, be required.

When the Acts are examined, clear language of extinguishment is simply missing. On the

1 For an excellent discussion of the ‘pastoral uses’ to which the Wik and Thayorre

peoples land had been put, see Bachelard, 1997: 39–47.

Reconciliation and Colonial Power68

contrary, there are several indications which support the contention of the Wik and the

Thayorre that the interest in land which was granted to the pastoralist was a limited one:

for ‘grazing purposes only’, as the leases stated. Such an interest could, in law, be exercised

and enjoyed to the full without necessarily extinguishing native title interests. The extent

to which the two interests could operate together is a matter for further evidence and legal

analysis. Only if there is inconsistency between the legal interests of the lessee (as defined

by the instrument of lease and the legislation under which it was granted) and the native

title (as established by evidence), will such native title, to the extent of the inconsistency,

be extinguished.

The final italicised paragraph is a crucial point to note here, as its reasoning was

frequently overlooked in the debates that followed. While emphasising the prima

facie co-existence of native title and a pastoral lease, the judgement clearly states

that where the rights of the pastoralist and Aboriginal peoples were inconsistent or in

conflict, native title would be extinguished to the extent of the inconsistency. Thus,

pastoralists had absolute certainty as to their superior title, they could continue to

run their livestock and undertake all activities pursuant to pastoral practices without

interference from indigenous groups. Native title would not be granted where there

was no provision for it in the original lease and where the clear and plain intention

to extinguish native title was apparent. In other words, where the permitted pastoral

activities would make enjoyment of native title impossible there would be no native

title. The plus point for Aboriginal people was that some pastoral practices would

not necessarily be considered incompatible with the enjoyment of native title rights.

To be sure, the legal status of the pastoral lease was not diminished by this case,

merely clarified.

Consequently indigenous peoples hoped that such a clarifying decision would

result in recognition of the rights of thousands of their people, who had provided

valuable cheap labour to the grazing industry now based on their traditional lands,

yet found themselves evicted from such cattle and sheep stations in the late 1960s

and early 1970s.2

Desirable Land and Political Affiliations

The Wik peoples managed to exist with minimal interference from the colonists

until, unfortunately for them, the discovery of bauxite was made in the 1950’s. In

2 As we saw in the previous chapter, given their intimate knowledge of the land and

ability to survive under harsh conditions, the Aborigines made excellent stockmen and became

the backbone of the livestock industry. Yet their wages were usually around half those of white

workers and such employment did little to halt the general trend of dispossession accelerated

by government resettlement programmes and assimilation policies (see Haebich, 2001). In

1966 poor working conditions and low wages of indigenous pastoral workers prompted the

Wave Hill strike, which eventually led to the Commonwealth Conciliation and Arbitration

Commission decree for equal wages. The decision led pastoralists to mechanise stock

management, employ European stockmen, and sack indigenous workers on a large scale.

Since Aboriginal people were no longer a cheap ‘on site’ labour pool there was increasing

pressure to move Aboriginal communities off the land.

Reconciliation and Land II: The Wik Case 69

fact they happened to be living on top of one of the world’s most lucrative bauxite

deposits. As Reynolds (1989: 88) writes, ‘this discovery encouraged the Queensland

government to do all it could to oust the Wik from their lands’. By 1957 the

Queensland government had passed a special Act of Parliament (the Comalco Act)

which effectively handed a 110 year lease to the mining giant Comalco that covered

almost all of the Wik people’s reserve of more than 600, 000 hectares.3 The desire for

access to even more of the Wik peoples’ lands for mining saw the Queensland police

force ordered to remove them from the settlement of Mapoon in November 1963.

Their homes were bulldozed and burned to the ground. The community was forcibly

relocated to Bamaga, several hundred kilometres north (Meadows, 1999: 95).

Following Comalco, in 1975 Aurukun Associates secured a mining lease over 2000

square kilometres without consulting indigenous peoples. According to Stevenson

(1997: 3) the indigenous people received no royalties from mining reserves then

estimated to be worth AUS$14 billion.

While the Mabo case dealt with vacant Crown land, of which there is little

in Australia, the Wik case on the other hand dealt with a form of land tenure that

covered around 42 per cent of Australia and in some states up to 80 per cent of

the land (AUSLIG, 2003). Significant areas of such leases had been used in the

past and will continue to be of considerable value to pastoralists and miners who

conduct operations on pastoral leases.4 While future development prospects will

be of general interest to commercial enterprises and government ministers holding

related portfolios.

Governments would also value such leases. Such land is often utilised to provide

many public services and is also of strategic political importance as many state

and federal ministers have rural constituencies which rely, to a significant extent,

on the income generated by pastoral and mining enterprises. Furthermore, many

pastoral leases were the holdings of some of the most powerful members of the

Australian and international establishment, many of whom have strong links with

the Howard government. Indeed, large companies like the Sultan of Brunei’s Desai

Pty Ltd and Glencoe group control vast areas of Australia’s land mass (currently

8Million Hectares – see AUSLIG, 2003) via pastoral leases and the same can be

said for private individuals such as Kerry Packer and Rupert Murdoch5, while Hugh

McLachlan, Australia’s largest private landowner, is the cousin of the Defence

Minister in the Howard Government and no fewer than twenty-six major landowners

are government MPs (Pilger, 1998: 237).6

3 To recap, the reserve system was setup to relocate many Aboriginal groups when

their traditional lands had been taken over by white farmers, mining companies or for town

settlements. Aboriginal clans were often mixed in this way, with many distinct clans finding

themselves on another clans traditional lands (see Reynolds, 1981 and 1990).

4 In some cases these ‘operations’ may be activities that are not actually permitted by

the terms of the lease. For example, ‘primary production’ activities are not normally permitted

under a ‘pastoral’ lease.

5 Kerry Packer is Australia’s seventh largest landowner and owner of the channel nine

television network. Rupert Murdoch is owner of vast quantities of land and controller of three-

quarters of the Australian press. For further details see Pilger, 1998: 237.

6 For a full list of pastoral landholdings see the Australian Farm Journal, 1996.

Reconciliation and Colonial Power70

Government Options

The fact that Wik had implications for land that either had, or potentially had,

significant commercial value guaranteed that the ensuing ‘public debate’ would be

even more protracted and venomous than that which followed the Mabo case four

years earlier. It also guaranteed that the result would be even more disastrous for

indigenous people.

The Wik decision that pastoral leases and native title could co-exist posed a

problem for a Howard government that had incorrectly assumed that pastoral

leases extinguished native title. It would now be under enormous pressure from

commercial interests to effectively overturn the decision and ensure that the mere

existence of a pastoral lease would guarantee the failure of any native title claim. In

other words the Howard government would be under pressure to legislate a ‘blanket

extinguishment’ of native title on pastoral leases. This in turn created an enormous

challenge for indigenous groups who would now have to desperately lobby the

Howard government to protect their significant common law victory. The Council

for Aboriginal Reconciliation quickly established a conciliatory role, spending

much time and resources convening meetings and consultations between the main

stakeholders.

The obvious courses of action open to the Howard government after Wik were

not dissimilar to those facing Keating after Mabo. Firstly, he could ignore the

decision and leave issues of native title up to the courts, in conjunction with the

mechanisms put in place by the Native Title Act 1993 (the Act). Secondly, there was

the option of amending the Act to give legislative effect to the Wik decision. Thirdly,

the government could simply amend the Act to ensure that the issuing of a pastoral

lease, at any time, would unquestionably, and permanently, extinguish native title.

Yet, Howard and his parliamentary secretary, Nick Minchin, were well aware

that, however desirable in principle, the last option was not politically viable.

Indeed, as mentioned earlier, in May 1996 they expressly ruled out such action

due to concerns over contravention of the Racial Discrimination Act 1975 and a

potentially massive compensation bill. The combination of both those factors meant

that such a provision would also have very little chance of passing in the Senate. Yet

despite this knowledge and their established non-extinguishment position, Howard

and his ministers did very little to dispel the misinformation that emerged from

commercial interest groups who were well aware of how effective the construction

of a ‘national crisis’ can be in public relations campaigns. In fact Howard and his

ministers frequently stoked the flames of the heated debate, appearing to endorse the

calls for extinguishment by lending credence to claims concerning the threat posed

by native title to private ‘backyards’, which had no legal foundation. With hindsight

it can now be suggested that such action aided Howard’s eventual claims to have

achieved, with his ‘ten point plan’, what everyone began to think was impossible

given the venomous debate, a fair and balanced solution that delivered ‘certainty’ to

both business and Aboriginal groups.

Reconciliation and Land II: The Wik Case 71

Another Constructed ‘National Crisis’

Even though the Wik decision ran contrary to the expectations and legal advice

received by the Howard government, the Prime Minister’s initial reaction was

reasonably measured. Howard merely described the decision as ‘disappointing’,

while his Attorney General, Daryl Williams (1996), suggested that the complexity

of the decision necessitated ‘careful consideration’.

The State premiers, however, unequivocally deemed native title extinguishment

as the only solution for the ‘problem’ of coexisting native tile and pastoral leases. The

chief protagonist was the Queensland premier, Rob Borbidge, who, prior to the Wik

decision, had supported a negotiated coexistence agreement entitled the Cape York

Land Use Agreement. The agreement was negotiated in February 1996 between the

Cape York Land Council, the Cattlemen’s Union of Australia, the Peninsula Region

of ATSIC, the Australian Conservation Foundation, and the Wilderness Society. It

detailed a process to address problematic land use questions on Cape York, appearing

to offer a secure and sustainable cattle industry, a significant degree of land justice

for indigenous people, and the protection of natural and cultural values of indubitable

international significance.

The Wik decision, however, demolished Borbidge’s support for such negotiated

agreements. The problem stemmed from his Government issuing 800 mining and

mineral exploration leases on pastoral land, in reliance on erroneous legal advice

and the preamble to the Act, without having notified interested indigenous groups,

thereby denying them the right to lodge claims (Bachelard, 1997: 75). This meant

that if native title were to be established compensation would be payable by the State

of Queensland. Borbidge’s desire to deny the possibility of native title coexisting on

pastoral leases resulted in his government failing to provide notice to indigenous

peoples as required under the Act (ibid.). The result was the pursuance of an

instrumentally rational ‘extinguishment’ agenda by Borbidge, as he sought to offload

the burden of his Government’s error on to the Federal government.

Borbidge’s primary tactic was to portray the Wik decision as a precursor to a

national crisis of ‘uncertainty’. The tactic owed largely to the successful public

relations campaign developed by the mining lobby in the aftermath of the Mabo

decision. He began the campaign by instigating his own impairment of pastoral

leasehold title by suspending development activities and by freezing new and

renewal lease applications, all of which was conducted without legal advice and

which had significant economic consequences for miners and pastoralists.

Other conservative states were quick to follow Borbidge’s lead and they

collectively released a discussion paper in early February that called for a January

2000 deadline on all native title claims, the passing of a law extinguishing native title

on pastoral leases, replacing it with limited statutory access rights, and the reduction

of Aboriginal rights to negotiate and the limiting of compensation payments (ibid.).

Such an approach would have effectively reversed Wik and Mabo in return for

severely limited compensation payments, which would have incensed indigenous

peoples and the international community. However, this was a response the Coalition

had already ruled out.

Reconciliation and Colonial Power72

Howard’s Coalition partners, the National Party, also found merit in the now

tried and trusted ‘national crisis’ construction. Speaking at the party’s special federal

council meeting, Don McDonald, one of Australia’s largest leaseholders7 and the

party’s federal president, said that because of the uncertainties created by Wik,

Australia faced the ‘greatest degree of uncertainty we’ve ever seen … we could

stagnate and go backwards … the whole nation is on the brink of closing down’ (The

Australian 1997).

The same meeting also saw the resurrection, by the deputy Prime Minister,

Tim Fischer, of the ‘backyards’ argument that was last used to good effect in the

Mabo debate where it aided the transformation of a relatively minor problem for

commercial interests into another ‘crisis’ for the Australian nation. Mr Fischer

warned that nobody was safe from native title claims, not even city-dwellers, living

in the ‘leafy suburbs of Sydney and Melbourne. Do not be misled by soft TV footage

and do not think you are divorced from this problem – it relates to all Australians’

(ibid.).

Indeed, the general message of the meeting was that it was not only leasehold

arrangements in rural areas that were vulnerable to claims, but freehold properties,

some urban land and a range of resources including land, water and infrastructure. It

is perhaps worth reiterating that Wik only concerned pastoral leases and where any

conflict arose native title rights would yield. Moreover, the Wik case did not affect

in any way the types of titles found in the more populated parts of Australia, such as

commercial leases, residential leases or freehold titles.

At the meeting the party’s federal leader and minister for primary industries, Mr

Anderson, stated that Aboriginal people and their leaders had a responsibility to honour

the 1993 pre-Wik agreement that pastoral leases extinguished native title, warning that

failure to do so could ‘irreparably damage’ the reconciliation process (ibid.). Yet, as

Marcia Langton (1997), among others, has shown there could be no bad faith on behalf

of Aboriginal groups in this instance as no such agreement existed.

As was the case following Mabo, the construction of a national crisis was ably

aided by the mainstream media who generally propagated a view of native title as a

threat to the established order.8 Meadows (1999) conducted a systematic analysis of

41 stories over a one month period (June–July, 1998) in the Australian newspaper

concerning indigenous affairs. During that period the Wik issue became the primary

definer of what was news in indigenous affairs (Meadows, 1999: 98). Meadows found

that of the 41 articles analysed just eight included background contextualisation of

the Wik issue.

There was no attempt by The Australian during this crucial period to make connections

between the present and past treatment of the Wik people by successive colonial, state

and federal governments … and powerful organisations like Comalco. The low level

of contextual material provided in both news and feature stories would not have helped

readers to get a sense of the original High Court Mabo decision, the ensuing Native Title

Act … or the High Court Wik decision. Questions as to why it was being opposed were

7 See Australian Farm Journal, 1996.

8 See previous Chapter and for a more systematic analysis of the role of the media in the

debate see Meadows, 1994.

Reconciliation and Land II: The Wik Case 73

answered overwhelmingly by conservative politicians and rural industry representatives

with indigenous views being virtually ignored until the protagonists had ‘cut a deal’.

(1999: 99, 102).

The omission of important contextual material has become a common occurrence in

Australian newspaper coverage of indigenous affairs (see Meadows, 1993, 1994a,

Hippocrates and Meadows, 1996). Moreover, the omission of the indigenous voice

is also a common occurrence. This aspect of Australian newspaper coverage of

indigenous affairs has remained unchanged in some outlets for the past 20 years.

Meadows’ studies have consistently shown that indigenous sources ‘are used

sparingly in stories about indigenous affairs’ (1999: 100). Indeed, in the first five

years of the 1990’s indigenous voices made up just 20 per cent of opinion sought

concerning issues of deep fundamental concern to indigenous people (ibid.).

Wik: Another ‘Crisis’ for the Mining Industry and the Nation

As discussed in the previous chapter, following the Mabo decision the Australian

mining industry vigorously embarked on a public relations campaign which argued

that native title would impede significantly the industry’s ability to explore and

develop minerals and that this should be considered a ‘crisis of national interest’.

After quietening down somewhat, following the Wik decision the campaign once

again gathered momentum. AMIC chief executive George Savell claimed that ‘native

title is the biggest disaster for [mining] investment that has ever been visited upon

us in this country’ (Syvret and Kitney 1996). On Brisbane Radio (ABC Brisbane

21 October 1998) Queensland Mining Council chief executive Michael Pinnock

maintained that the NTA had been ‘just an utter disaster’ and that the NTA 1993 was

‘totally unworkable’. AMIC also sought to highlight how miners were being ‘held

to ransom’ by the right to negotiate (AMIC, 1997) and that native title has been a

‘crippling burden’ (AMIC, 1998: 2).

Yet, financial statistics suggest that native title has had negligible impact on

general mining industry trends. As Manning (1997: 15) writes:

There is very little evidence for depressed exploration activity in Australia post-Mabo. In

fact, mineral exploration expenditures revived in 1993 after a lull during the recession of

the early 1990s, and since then have been running at levels to rival the boom of the late

1980s.

Noonan (in Lavelle, 2001: 104) at the height of the debate about the economic

implications of Wik commented:

Over the next three years, 120 companies plan to spend more than $60 billion on mineral

exploration and mineral processing plants in Australia … Despite all the hot air and

fevered arguments about Wik in the lobbying forums of the country, the real world of

outback mining and mineral processing is getting on with it.

Moreover, contrary to the statements of some mining industry leaders the downturns

in mineral exploration expenditure between 1996–1999 and increasing offshore

Reconciliation and Colonial Power74

activities cannot be attributed to native title (Lavelle, 2001: 105). Perhaps a far more

significant causal factor was the 1997 Asian economic crisis, the consequent collapse

in commodity prices and resource company share prices, all of which reduced the

ability of mining companies to raise share-market capital for exploration purposes

(Lavelle, 2001).

This is not to suggest that native title has not had some impact on mining

industry activity, for negotiating with native title claimants has undoubtedly meant

an increase in costs. Nevertheless, as Manning states ‘the amounts involved are not

a serious disincentive to investment’ (1998: 15). Moreover, native title’s contribution

to ‘uncertainty’ must be considered in the context of a range of other economic,

political and social factors that may influence investor certainty.

Lavelle (2001) has offered a considered reading of mining industry responses to

native title and suggests that it represents opportunist ‘political posturing’ designed

to exert control over a ‘negative variable’. The ideological element to this posturing

was the notion that modern societies should encourage mineral investment because

it is in the ‘national interest’ (ibid: 108). Lavelle (ibid: 109) demonstrates that such

framing tactics are well rehearsed:

Empirical evidence suggests that mining companies ritually criticise government policies

in order to secure more favourable policy outcomes. Mining interests have in the past

waged strong campaigns on other policy fronts, conveying the impression that the policies

are of greater significance than the evidence suggests.

A key determinant for mining lobbyist action over Wik was the perceived ability to

control a negative variable. Deputy Director of the National Institute of Economic

and Industry Research, Ian Manning, for example argued that key investment

determining factors, such as commodity prices, are not targeted by industry because,

unlike native title, they are largely beyond its control (in Lavelle, 2001). Chief

executive of the Western Australian Chamber of Mines and Energy, Ian Satchwell,

for example stated:

Of the issues affecting exploration (native title) is the only one we can influence in

Australia. Low commodity prices and access to capital are largely outside our control

(ibid.).

In short, the mining industry’s campaign against native title was waged because

it was something over which it could potentially exercise a significant degree of

control. The mining lobby deployed strategies which closely resembled those used

against other government policies, most notably the prediction of industry crisis, the

threat of job loses and declining investment and all with dire consequences for ‘the

nation’ (Lavelle, 2001: 112).

While the mining lobby continued to frame native title as a national crisis, post-

Wik it was the National Farmers Federation that utilised the tactic most virulently.

Reconciliation and Land II: The Wik Case 75

Wik, the National ‘Crisis’ and the National Farmers Federation

Following Wik the National Farmers Federation (hereafter NFF) built on the post-

Mabo mining lobby tactics and set about constructing their own ‘national crisis of

uncertainty’. A significant element of their campaign was a cross network television

advertisement, filmed in monochrome, which depicted the Australian land tenure

system as a somewhat ugly version of the 1970’s party game Twister (Bachelard,

1997: 78). It involved a battle between two children, one black (Aboriginal) one

white, with the black child clearly winning the contest and was consequently labelled

as ‘racist propaganda’ by the National Council of Churches (The Australian 25

March 1997). This element of their campaign was aimed at city dwellers, while the

rural areas were treated to a series of ‘educational’ lectures from Donald McGauchie

that sought to reinforce the extinguishment agenda.9 In Brisbane in May 1997 he

suggested that native title would endanger water, electricity, and gas supplies while

also invoking the tried and tested ‘backyards’ threat, stating that ‘the residents of

Sydney and Melbourne have no reason for optimism’ concerning the security of their

property titles (ibid.).

Such propaganda had potent resonance as many non-freehold farms had been the

subjects of native title claims since 1994, and while they had no chance of success,

it is understandable that the owners would feel vulnerable. Yet, it is absolutely clear

from the Court’s decisions in both Mabo and Wik that native title would operate

around the fringes of white property rights and will require stringent proof of

‘traditional and continuing connection to the land’, which means that in the densely

farmed areas there will be virtually no room for native title. Moreover, where there

is any conflict, the Court explicitly and unequivocally stated that native title would

yield.

Thus, one would be forgiven for thinking that in such circumstances the role

of the NFF should have been based on support and education, providing briefings

to explain the correct legal position to allay fears rather than compound them. As

former NFF leader, Rick Farley, observed the NFF’s strategy was to talk down the

value of its constituents’ properties (Bachelard, 1997: 79). Yet, financial institutions

advised that the Wik decision would not adversely affect the value of pastoral leases

or cause borrowing difficulties, as a monetary advance is secured against the value

of the stock and equipment (termed a ‘stock mortgage’) and certainly not on the

value of the land itself.10

The Australian Bankers’ Association (see West Australian 8 January 1997)

reiterated this view, as did the Australian Institute of Valuers and Land Economists,

stating that its ‘lenders [and their valuers and advisers] should recognise that little

has changed, and almost certainly the property rights of pastoral lessees are no less

9 Several of which are archived at http://www.nff.org.au/pages/speeches/speech_old/

default.htm.

10 Ian Gilbert, legal adviser to the Australian Bankers Association’s, at a conference in

Canberra in June 1996, stated that he had been unable to identify any incidents of ‘concern over

native title as an issue in so far as a bank and its lending and security position is concerned’,

because ‘invariably a bank will look to the stock that is on the land rather than the land itself

as its primary source of security’.

Reconciliation and Colonial Power76

secure than previously’ (Press release, February, 1997). Marcia Langton (1997:

18) contended that the ‘manufactured hysteria’ in response to the High Court’s Wik

decision by State premiers, and the more extreme parts of the pastoral industry,

could not have been more cynical. She further contended that there was a concerted

effort, through a co-ordinated public relations campaign, to propagate the following

‘falsehoods’:

‘That the Wik decision is economically detrimental to pastoralists. There is

no evidence of this.

That “certainty”, by which is meant security of tenure, for pastoralists is in

jeopardy. It is not and never has been.

That the land values of pastoral leases will fall as a result of the Wik decision.

There is no evidence of this.

That the banks will foreclose on their loans and mortgages. This is completely

false, as the Australian Bankers Association attests’ (ibid.).

To be sure, there is little doubt that pastoral lessees have to endure many hardships,

such as climate unpredictability leading to frequent low productivity. Yet while such

factors mean that many businesses are not as profitable as the proprietors would like,

the issue is unrelated to the Wik decision.

The NFF, and later the Prime Minister, further confused the issue by conflating

two distinct operations, those of ‘farmers’ and ‘graziers’. Wik was not concerned in

any way with farmers’ agricultural leases of freehold title, rather it was limited to

pastoral leases that had never conferred rights of exclusive possession nor permitted

the whole range of operational possibilities available on agricultural leases or

freehold title. Indeed, a pastoral lease is a lease to graze hard-hoofed animals on

public land, nothing more nothing less; the ‘certainty’ that pastoralists are entitled to

enjoy is limited to the duration and terms of their current leases (Horstman, 1998).

Perhaps this fact sheds some light on the intentions behind the ‘national crisis’

construction. By suggesting that the ‘uncertainty’ caused by Wik will unduly hinder

the reasonable development and land management activities of ‘farmers’, the NFF

and National Party were subtly taking the opportunity presented by Wik to upgrade

pastoral leases to allow previously unauthorised operations, such as ‘primary

production’ and ‘tourist activities’. A fact that was not lost on the National Indigenous

Working Group on Native Title (NIWGNT) who, after months of negotiations with

the NFF and the government, accused the NFF of using the native title debate

to perpetrate a ‘gigantic scam’ on the Australian community with its proposal to

upgrade pastoral leases (NIWGNT, 1997).

Working Group member, Mr Noel Pearson, accused the NFF of wanting to abolish

native title on pastoral leases so that they could upgrade to full primary production

leases, perpetual leases or freehold land, ‘for a pittance’ (ibid.). He further suggested

that the NFF had acted in

bad faith with its attempts to upgrade pastoral leases and its disgusting advertising

campaign, which distorted the issues and provided no justice for Aboriginal people. The

intention of indigenous representatives had always been to support the existing rights of

•

•

•

•

Reconciliation and Land II: The Wik Case 77

pastoralists, but we will not accept an upgrade of those rights if it means that the rights of

Aboriginal people would be diminished (ibid.).

The NIWGNT also drew attention to the NFF’s newspaper advertisement, which

took the form of an open letter to Prime Minister Howard from ‘the farmers of

Australia’. The advertisement claimed that, because of native title, some farmers

‘will have to quit the land’. The then Aboriginal and Torres Strait Islander Social

Justice Commissioner, Mr Mick Dodson, displayed his irritation with the prolonged

campaign of misinformation urging the press to

get something straight: we’re not talking about poor little battling farmers – they’re

unaffected by Wik ... some of these lease holdings (in question) are as big as Belgium.

We’re talking about pastoral lessees who have three to four thousand square kilometres

of land (ibid.).

The NIWGNT subsequently pulled out of further negotiations with the NFF over

the Federal Government’s response to Wik. When one compares the actual Wik

decision with the representations of the NFF and National party, one can’t help but

form the conclusion that the Wik case seemed to provide the pastoral lobby with a

strategic opportunity to achieve a long-time goal. It seems that behind their appeals

for ‘certainty’ was a political campaign to achieve a ‘windfall’ at the expense of the

general public (the owners of the leases) and prospective native title holders. One

commentator has called it the ‘second age of squatting’ as, according to the Wik

judgement, the more rights leaseholders have, the fewer rights remain for native

title holders (NIWGNT, 1997a). Essentially, a title upgrade of pastoral leases would

amount to de facto extinguishment of native title.

Gradually, when details began to emerge of the Howard’s Ten Point Plan, the

government’s eventual response to Wik, it became apparent that the ‘national crisis’

construction had been largely successful once again. On 1May, in a letter to Howard,

the NIWGNT, so dismayed at their lack of input into the Ten Point Plan and the ‘bad

faith’ shown by the Government and other stakeholders, withdrew themselves from

the ‘consultation’ process (NIWGNT, 1997b). Undeterred, however, and somewhat

proving the Working Groups point, Howard persevered with his plan, which received

the endorsement of the Federal Cabinet on the 7 May 1997.

The ‘Ten Point Plan’: De facto Extinguishment

On 4 June 1997 John Howard publicly released the Ten Point Plan (hereafter TPP)

which represented his government’s proposed response to the fictitious ‘uncertainty

created by Wik’. The main provisions sought to validate government acts/grants

between 1 January 1994 and 23 December 1996, confirm extinguishment on

‘exclusive’ tenures and restrictively define the interplay of native title and pastoral

leases.

The ‘validation’ provisions of the TPP were intended to provide an escape

route to any state premier who did not see fit to utilise the consultation provisions

detailed in the NTA and allowed mining or exploration leases on pastoral land

Reconciliation and Colonial Power78

without consulting potential native title holders. The offending government would

pay just 25 per cent of the compensation with the Commonwealth underwriting the

rest. Rob Borbidge’s government issued around 800 such leases between 1994 and

1996. Furthermore, under the TPP provisions state governments, such as Borbidge’s,

would be in a position to encourage pastoralists on vast areas of land to upgrade their

leases to freehold. While the pastoralist would have to pay a ‘betterment fee’ for the

upgrade, such a burden could be assuaged with reduced rate state government loans

and discounts. The states could afford to do this as 75 per cent of the compensation

bill to native title holders would be paid by the Commonwealth under the TPP.

While many indigenous representatives made clear their agreement to the

confirmation of all pastoral acts conducted within the terms of existing pastoral

leases, they complained that ‘validating’ such mining or exploration grants was

unjust as it offered nothing to native title holders but rewarded those states that

ignored or defied the provisions of the NTA 1993 (see ATSIC, 1997).

The confirmation provisions identified ‘extensive areas’ over which native title

would be extinguished (ibid.). Regarding the interplay between native title and

pastoral leases the TPP intended to widen permitted leasehold activities to include

‘primary production’. Following the Income Tax Assessment Act 1936 definition

of primary production, the permitted activities would now include agriculture,

horticulture, fishing and forest operations without negotiation with native title

holders. The TPP also proposed that where these expanded pastoral activities have

the effect of extinguishing native title it will be permanent, ruling out any possibility

that native title can revive at the end of the lease.

This situation goes well beyond the common law, as Wik merely stated that in

the case of conflict the rights of the pastoralist would prevail. It did not state that

native title rights are permanently extinguished. Crucially, this point of the TPP

also encompasses the removal of the Right to Negotiate for native title parties faced

with compulsory acquisition of their rights on pastoral leases to allow upgrading

to freehold or equivalent. The government seemed unconcerned that this proposal

would almost certainly offend the RDA as it allowed for the compulsory transfer of

the property rights of one group of citizens, native title holders, to another group,

pastoralists.

The initial responses from indigenous people were almost entirely negative, not

surprisingly since they were largely ignored in the ‘consultation’ process. While

Paul Keating, in the ‘consultations’ that led to the original NTA 1993, held extensive

negotiations with an admittedly small and hardly representative group of Aboriginal

negotiators, Howard set his stall out immediately to ‘swing the pendulum’ back in

favour of white property interests and consequently sought little indigenous input.

The issue Howard faced was simply how to achieve that end without appearing to

be too draconian.

As suggested earlier, this was achieved by actively encouraging the extremist

elements involved in the ‘national crisis’ construction, so that, by comparison, his

Ten Point Plan appeared ‘moderate’, ‘fair’ and ‘balanced’ and did not cave in to the

NFF and National Party’s demands for blanket extinguishment. Indigenous peoples,

however, were not persuaded by the political rhetoric. Chairman of ATSIC, Gatjil

Djerrkura, stated that

Reconciliation and Land II: The Wik Case 79

unfortunately, I believe that this is the case … an analysis of the plan shows the

extinguishment of native title to be a central feature. Such an approach is unjust because

after 200 years of seeking justice and having achieved limited recognition of native title

in the common law, the rules are arbitrarily changed. The 10 Point Plan allows for a

substantial upgrading of pastoralists’ and miners’ rights, at the direct expense of the rights,

recognised by the High Court, of indigenous people. As well, the right of native title

holders to negotiate over mining projects will be removed on pastoral leases, including

former leases which have reverted to vacant crown land. The Right to Negotiate will be

significantly reduced on vacant crown land. This is a major loss of the rights of indigenous

people and will make it very difficult for indigenous people to protect our cultures and

to participate in, and benefit from, economic development on traditional lands (ATSIC,

1997).

While, Peter Yu, Executive Director of the Kimberly Land Council, stated that

For all the Prime Minister’s public posturing about non-extinguishment, the Government’s

proposals will extinguish Indigenous native title rights. The Plan represents an attack on

the property rights of Indigenous Australians, whilst providing for a significant upgrade of

the rights of pastoral leaseholders. If implemented, the Government’s plan will mean that

a small number of already wealthy corporate interests – including the national President of

the National Party – may stand to gain full ownership of a vast amount of publicly owned

Australian land. The public should be most concerned that the Government has been

forced to bow to political pressure brought by the National Party when senior members

of the Party have not had to declare their financial interests in the issue. The National

Party … put up a facade of battered Akubras and hard done by farmers to mask what is

really a land grab by the wealthy and powerful. This is shameful. Let’s remember that

the Wik decision was about the property rights of Indigenous Australians. It recognised

that pastoral activities can co-exist with native title rights. It also confirmed the rights of

pastoralists (NIWGNT, 1997c).

The general mood of post-Wik panic created by the NFF and National party was so

successful however, that indigenous opposition counted for very little.

The representation of ‘fairness’ was only occasionally shattered by the candid

boasts of Howard’s Deputy Prime Minister, National Party leader Tim Fischer. On

the 16 May on ABC radio11 he described the Ten Point Plan as containing ‘bucketfuls

of extinguishment’. Indeed, when one considers the extension of permitted ‘pastoral’

activities to include ‘primary production’ it seems Mr Fischer is entirely correct. By

Howard’s own admission, in a press conference on the 28 April 1997, he stated that

the 10 Point plan’s ‘primary production’ definition was ‘very wide indeed ... it goes

far beyond pastoral activities that are currently sanctioned under pastoral leases ...

those activities will be able to be carried on without any let or hindrance from either

native title claimants or indeed any other section of the Australian community’.

Moreover, Howard freely admitted that his TPP was intended to ‘swing the pendulum

back’ away from Aboriginal rights (Bachelard, 1997: 95).

Discussion of the inconsistencies between the rhetoric and the realities were,

however, lost in the ‘manufactured hysteria’ that continued unabated throughout

1997. Nevertheless, Howard made one final public relations push on 1 December

11 See radio interviews archives list in the appendices.

Reconciliation and Colonial Power80

that reinforced the erroneous proposition that ‘farm’ properties were threatened by

the Wik decision while invoking traditional Australian cultural imagery of the out-

back ‘battler’. He lamented that

Australia’s farmers, of course, have always occupied a very special place in our heart.

They often endure the heartbreak of drought, the disappointment of bad international

prices after a hard-worked season and quite frankly I find it impossible to imagine the

Australia I love without a strong and vibrant farming sector. The nub of the problem is

that in the Wik case, the High Court of Australia significantly changed what had been the

understanding of most people about the law when the original Native Title Act was passed

in 1993. At that time virtually nobody believed that you could make a native title claim on

a farm property (Howard, 1997, my emphasis).

Howard’s use of traditional Australian national imagery in this speech, perhaps

highlights a significant problem faced by indigenous peoples in this ‘debate’, namely

the propagation of the battling bushman farmer, rather than the Aborigine, as the one

who truly belongs to the land. As historian Norman Etherington (1997), suggests, it

appears that the dominant contemporary Australian conception of

the ‘man who belongs to the land’ is a ruddy-faced bloke in a 4 wheel drive, pausing to

open the stock gate on his property. This is so widespread that it has become possible for

the media to do what would have been impossible on the basis of historical documentation:

to present the Aborigine as the alien Other who threatens to dispossess people of their

ancient patrimony.

Etherington also suggests an illuminating alternative framing of the Wik ‘problem’

which highlights the overwhelming political power of the pastoral lobby. He suggests

that,

It would be virtually impossible now to make the media take up the alternative proposition

that might be phrased along the following lines:

Although they number less than 20,000 of Australia’s population of 17 million, they

are laying claim to 42% of the continent, which they refuse to share. Unlike ordinary

Australians, who must face up to the harsh consequences of unemployment or business

failure, their powerful lobbyists have been successful in shielding them from the hazards

of their environment. When drought comes along, or interest rates get too high, they rely

on the government for relief that is not normally given to any other group. Who are this

privileged tribal minority? They are the Pastorali Tribe, the pastoral leaseholders who

continue to exercise power out of all proportion to their numbers (ibid.).

The Native Title Amendment Act 1998 (NTAA 1998)12

Following a few minor alterations the substantive provisions of the TPP became

the Native Title Amendment Act 1998. The Act does not achieve ‘certainty’ through

12 The full Act can be viewed at http://www.austlii.edu.au/au/legis/cth/consol_act/

ntaa1998147/.

Reconciliation and Land II: The Wik Case 81

detailing workable rules for co-existence of interests in land, but rather it subordinates

the native title interests of Aboriginal peoples. Indeed, it goes well beyond Wik by

categorically scheduling a list of interests that extinguish native title regardless of

co-existence possibilities. Through complex and subtle means it either adversely

affects or extinguishes native title whilst permitting the expansion of non-indigenous

interests in land. The Act incorporated perhaps the two most discriminatory provisions

of the TPP via validation and confirmation sections.

The Act contains provisions that seek to validate hitherto illegal acts (e.g.

the granting of a lease without regard for the procedures of the Native Title Act)

performed by a government between 1 January 1994 (the date that the NTA was

introduced) and 23 December 1996 (the date of the Wik decision). The validation

provisions are inherently discriminatory as they extinguish or impair the rights of

native title holders for the benefit of other title holders. Indeed, the government

was obviously mindful of this, as the NTAA 1998 (s7.3) states that the validation

provisions are not to be read and construed in accordance with Australia’s Racial

Discrimination Act 1975.

The validation provisions expressly privilege the rights of all other property

holders over those of native titleholders. They extinguish or impair native title while

leaving intact those proprietary rights derived from the Crown and enjoyed by peoples

of other races. As such, these provisions offend the most basic test for racial non-

discrimination on both formal and substantive grounds. Although the amendments

provide for compensation on just terms (if relevant), compensation does not remove

the discriminatory effect of the provisions.

The Act also purports to ‘confirm’ the operation of the common law in extinguishing

native title. Leases granted to miscellaneous interests often in the distant past are

classified as previous exclusive possession acts, with the effect that they are deemed

to permanently extinguish native title.13 Furthermore, where an interest is deemed

to amount to an exclusive possession, it is confirmed as permanently extinguishing

native title, regardless of whether the extinguishing interest continues to subsist on

the land or not.14 In scheduling specific ‘extinguishing’ interests to the NTAA, the

Howard Government undoubtedly afforded priority to the interests of non-indigenous

titleholders over those of native titleholders. Consequently, in this respect alone

the NTAA 1998 is a clear breach of Australia’s international obligations to treat

people equally and without discrimination. Indeed, the confirmation provisions are

undoubtedly at variance even with the notion of formal equality, as they seek to confer

different status a priori, before the courts have examined the conflicting interests in

land and determined the legitimacy of such an action. Such provisions elevate the

property rights of non-indigenous peoples to a status that cannot now be achieved

by indigenous peoples as native titleholders.15 Thus, the extensive list of interests in

13 Schedule 1 of the Act details an extensive list of such interests amounting to fifty

pages in total.

14 NTAA, s23C. Extinguishment is defined in s237A as ‘permanent’.

15 The act would not stop an Aboriginal business or conglomerate purchasing land and

extinguishing native title in an area. It is only in this sense that the Act may meet the notion

of formal equality. However, extinguishing the rights of Aboriginal peoples for the benefit of

Reconciliation and Colonial Power82

land that extinguish native title (schedule 1 of the NTAA 1998) can be seen to be a

modern day continuation of the historical pattern of colonial dispossession.

The validation and confirmation provisions, whilst undoubtedly two of the

amendments’ more discriminatory provisions, are but two sections in an enormous

and complex Act.16 Generally the Act amends existing law by:

Providing the opportunity for States and Territories to replace the right to

negotiate on pastoral leases with an alternative scheme that has many elements

of the right to negotiate.17

Requiring that some native titleholders prove traditional connection and in

addition, establish physical connection with the land to attain the right to

negotiate.18

Ensuring that a full range of primary production activities will be allowed

on what are now pastoral leases without negotiating with the native

titleholders.

Reducing the say native titleholders have over exploration of their traditional

country, moderated to some extent by alternative consultation schemes.

Allowing state governments to pursue the complete extinguishment of native

title on pastoral leases by compulsory acquisition of co-existing native title

rights, upgrading leasehold to freehold and thereby extinguishing all native

title rights.

Ensuring that interim statutory access rights to pastoral leases will not be

available to those indigenous people who have not had regular physical

access to the lands at the date of the Wik decision.19

Reducing the influence of native title holders over a whole range of Government

activities on their lands including the management of national parks, forest

reserves and other reserves, public facilities and water resources.

Removing the requirement that courts take account of indigenous cultural

concerns and wave strict rules of evidence if applicable e.g. the rule against

hearsay.20

others (without judicial examination of the terms of the interests) is to fail to afford Aborigines

equal consideration. In this sense the notion of formal equality is not met.

16 For a more detailed analysis of the general provisions see ATSIC (1998).

17 The practical effect will depend on what schemes are actually implemented by the

various State governments.

18 This would involve providing documentary AND oral witness testimony that would

satisfy a tribunal of traditional and continued physical connection to the land. This will make

it virtually impossible for the numerous members of the Stolen Generations’ to prove native

title, since their removal from their communities would mean they would be unable to prove

‘continuing’ connection.

19 Again, this will prove fatal to the claims of the numerous members of the ‘stolen

generations’.

20 These will apply unless the claimants can convince the court otherwise. Furthermore,

the rule against hearsay may well prove very problematic for aboriginal communities, as

proving native title will frequently require oral testimony of cultural traditions and the like

which may fall foul of the rule.

•

•

•

•

•

•

•

•

Reconciliation and Land II: The Wik Case 83

The overall effect of the various amendments is very disturbing from an indigenous

perspective. The actions of the State Government of Victoria provide us with one

example of how the amendments discretionary powers are being used. In 1998 it

passed the Land Titles Validation (Amendment) Act which confirmed and validated

otherwise invalid property titles, at the expense of native title.21 Moreover, the

amended Section 7 of the NTAA 1998 (which effectively suspends the application

of the RDA 1975), ensures that native title legislation is unrestrained by Australia’s

only legal national standard of non-discrimination.

Essentially, the result of the amendments is that about 40 per cent of Australia

will gradually pass from leasehold to freehold, and be controlled by a mere 20,000

people (Pilger, 1998: 237). There is no doubt as to who has benefited the most

from the legislation. Wealthy Australian businessmen like Kerry Packer and Rupert

Murdoch and overseas investors like the Sultan of Brunei. It is no coincidence

that Hugh McLachlan, Australia’s largest private landowner, is the cousin of the

Defence Minister in the Howard Government and no fewer than twenty-six major

landowners are government MPs (ibid.). The extraordinary aspect of this Act is that

whichever way it is viewed, there can be no denying it places race firmly back on

the modern political agenda, as John Pilger commented in the UK Observer Review,

‘the legislation regardless of its obfuscations, is straight out of the ideology known

as apartheid’.

The NTAA 1998, Reconciliation and Australia’s International Human Rights

Commitments

As the previous chapter demonstrated, in 1993 Prime Minister Paul Keating

frequently suggested that his Native Title legislative package would ‘nourish’ the

reconciliation process by enshrining native title while providing ‘certainty’ for

industry. John Howard however did not market his legislation as anything like

an agrarian reform package which sought to address historic injustice. Rather, he

presented the legislation as re-establishing formal equality in a post-Mabo and Wik

climate dominated by the ‘special’ rights of indigenous peoples. In his words he

21 In 1788 Victorian Aborigines controlled some 2,2760,000 hectares of land. In 1999,

after some thirty years of the so-called ‘Land Rights Era’, Victorian Kooris have control

of some one hundredth of one percent of Victoria. That’s 1/10,000 of the land, which they

held at the time of white occupation. According to most estimates, the Koori population of

Victoria is today about the same size as it was in 1788. It is by a significant margin the smallest

percentage of land controlled by indigenous people in mainland Australia. Only NSW comes

halfway close with somewhere between .06 per cent and .1 per cent of land under indigenous

control (between 6 and 10 times the Victorian percentage, but still trivial in the extreme

compared with the original area, and even with any other mainland state). 10 per cent of the

land originally controlled would amount to a 1000 fold improvement on the existing situation

in Victoria. These figures were kindly brought to my attention by Wayne Atkinson, Yorta

Yorta elder and historian from his unpublished doctoral thesis – reproduced at http://www.

mail-archive.com/

Reconciliation and Colonial Power84

sought to ‘swing the pendulum back’ in favour of business interests (Bachelard,

1997: 95).

Not long after the Wik decision the Council for Aboriginal Reconciliation hosted

its first National Convention on 26 May 1997. The Convention was well publicised

and attracted high profile academics, politicians, reconciliation practitioners and

indigenous peoples from around the world. While there were many speeches on

a variety of themes, the government’s response to Wik was a pervasive theme.

In a vigorous opening address, the then Council chair Pat Dodson said that the

amendments were not acceptable because taken as a whole they:

… do not treat coexistence fairly. They take away the rights of indigenous people that

were recognised in the common law of Australia by the highest court in the land, whilst

proposing at the same time to increase the landholding rights of those with pastoral leases,

largely at taxpayers’ expense. If Indigenous people see their common-law rights taken

away or severely curtailed, they cannot but conclude that they still remain the plaything of

the dominant society. They see their legitimate rights being treated as less important than

the rights of others (in Brennan, 1997).

John Howard (1997) responded angrily. Waving his fist in the air he stated:

I also in the name of truth and in the name of a frank discussion of these issues have

to repudiate the claim that my ten point plan (for the amendments) involves a massive

handout of freehold title at taxpayer expense. That is an absolute myth, it is absolutely

contrary to the facts and I absolutely repudiate it.

In keeping with Howard’s growing tendency to vary his position according to his

audience, his subsequent clarifying statement to the Sydney Morning Herald on

the 14 June 1997 appeared entirely consistent with Pat Dodson`s assessment of the

proposed amendments. Indeed, he confirmed the ‘Commonwealth’s offer of 75%

payment of compensation’ (Sydney Morning Herald 14 June 1997).

Dr Alex Borraine, former Vice-Chair of the South African Truth and Reconciliation

Commission, also speaking at the Reconciliation Convention subtly took issue with

the proposed amendments.

If reconciliation is to be more than a dream or vision it must be anchored and (an) important

anchor is that of restitution … It is not good enough to talk about reconciliation, the laws

and the statute book that make it impossible for equality and justice have to be scrapped

and have to be amended and that is what is happening now … The high court in your land

and in mine ought to be sacrosanct. Politicians and parliaments should be subject to the

highest law of the land and should not interfere when interpretations are made which seek

to give restitution and a restoration of a moral order rather than maintaining it (Borraine,

1997)

As Pat Dodson commented

a just and fair resolution of native title has become the ultimate test of Australian justice, of

Australian decency, and of our national leadership. Native title has become the benchmark

for reconciliation’ (1997) … land and native title are not distractions from reconciliation,

but central, fundamental and foundational for reconciliation (1997a).

Reconciliation and Land II: The Wik Case 85

It is clear from the Howard government’s response to Wik that it has little regard

for ‘special’ indigenous rights to land, but what of the relation between such rights

and fundamental international norms such as non-discrimination? With reference

to The Universal Declaration of Human Rights 1948, the Australian government

has commented that ‘although not legally binding, it carries immense moral force.

It is rightly regarded as the foundation of the international human rights system

(Department of Foreign Affairs and Trade, 1998: 1). Australia’s role in promoting and

protecting human rights within the United Nations’ structure over the past fifty years

earned it a reputation as a good international citizen. However, when one considers

the enactment of the NTAA 1998 at a time when the international community moves

towards establishing higher indigenous human rights standards, this reputation

becomes questionable. Indeed, Amnesty International commented that

in drafting laws the government should always take into account its commitments to human

rights standards accepted internationally, including the principle of non-discrimination on

the basis of race ... and that it is time the government backed its international human

rights promotion with a willingness to improve its record at home (Amnesty International

1997).

In August 1998 the Committee on the Elimination of Racial Discrimination

(CERD),22 instituted an ‘early warning’ procedure against Australia. The Committee

wished to examine the compatibility of the Amendments with Australia’s obligations

under the International Convention (CERD, 1998). Australia was the first ‘western’

country to be placed under an early warning. Countries previously called to account

include Rwanda, Burundi, Israel, the Former Yugoslav Republic of Macedonia,

the Russian Federation, Algeria, Bosnia Herzegovina, Croatia and the Federal

Republic of Yugoslavia (Serbia and Montenegro) (Pritchard, 1998: 17). In March

1999 the Committee determined that Australia breached the Convention and called

upon Australia to suspend the Native Title Amendment Act 1998 and enter into

negotiations with the Aboriginal and Torres Strait Islander Peoples. However, since

March 1999 the Australian Government has refused to accept the findings of the

Committee and has engaged in extensive political campaigning to pressure CERD

to alter its findings. The Howard government has attacked the CERD Committee

for failing to understand its policies on indigenous peoples. However, as indigenous

spokesperson Les Malezer (1999) stated:

if the government is so concerned the CERD Committee does not understand its policies on

indigenous peoples, why doesn’t the government give a clear statement of its policies, and

why has the government failed to provide the two outstanding periodic reports due to the

Committee for the period since 1994. The government is in denial of its responsibilities,

and is attacking the body responsible to the UN rather than facing its own racist views

and actions.

22 The Committee is responsible for the implementation of the United Nations

International Covenant on the Elimination of All Forms of Racial Discrimination – the CERD

Committee

Reconciliation and Colonial Power86

The CERD committee has now rejected the Government’s arguments, and stated

that if anything the situation with regard to indigenous land rights in Australia is

becoming worse. Perhaps the foremost British race relations sociologist of the 1970s

and 1980s, Michael Banton, also a member of the CERD committee, stated that: ‘The

committee understood that there was a strong case for improving legal certainty as a

result of the Wik decision. But it considered that it had secured that certainty at the

expense of the rights of native titleholders. There was a real doubt as to whether the

outcome was equitable.’ Thus, the CERD Committee repeated its call for the Federal

Government to suspend implementation of the NTAA 1998 and reopen discussions

with Aboriginal groups.

The principles of equality before the law and non-discrimination are foundational

in international law and are recognised in all major human rights documents.23

The principle of racial non-discrimination has reached the status of customary

international law (McKean, 1983: 271–277), whilst the prohibition of systemic

racial discrimination has attained the highest status of international law, jus cogens

(Brownlie, 1979: 596–598). Principles that have reached the status of jus cogens are

‘peremptory norm(s) of international law from which no derogation is permitted.’

Thus, the principle of racial non-discrimination arguably exists independently of

treaty obligations and cannot be displaced.

The Commonwealth has consistently confirmed that it was seeking to ensure

the equal treatment of all Australians, without one group (indigenous people in

this case) having greater or ‘superior’ procedural rights than others. Yet, the Act

effectively removes or severely restricts the property rights of one group of peoples

for the benefit of another. As Aboriginal spokesperson Ray Jackson commented, the

‘Federal Government continues to insult our Elders and Leaders. They continue to

malign our true history. They continue to steal the land. All with impunity. Yet they

talk of reconciliation’.24

23 For example, Universal Declaration of Human Rights (UDHR), Article 2; International

Covenant on Civil and Political Rights (ICCPR), Article 2; International Covenant on the

Elimination of All Forms of Racial Discrimination (CERD), Article 2; Convention on the

Rights of the Child, Article 2; International Covenant on Economic, Social and Cultural Rights

(ICESCR), Article 2; and International Labor Organization Convention No.169 concerning

Indigenous and Tribal Peoples in Independent Countries, Article 2 although Australia has not

ratified this.

24 From a speech given to a Socialist Worker sponsored Reconciliation Meeting, Redfern

Sydney, June 2000.

Chapter 5

Reconciliation and the

‘Stolen Generations’

The publication in 1997 of ‘Bringing Them Home’, the National Inquiry into the

separation of indigenous children from their families, ensured that the issue of the

Stolen Generations became inextricably linked with the notion of reconciliation. As

Tatz (1998) suggests, Aborigines in general consider the Stolen Generations one of

the most serious issues in their lives, and as such, it is regarded as an issue that must

be addressed in a genuine attempt at reconciliation. This chapter then concentrates

on the second major theme of the reconciliation period: the Stolen Generations. It

begins with a brief history of the child removal policies and then moves on to discuss

the ‘Bringing Them Home’ (BTH) report and its role in the reconciliation process.

In the second half I discuss the BTH conclusion that genocide was committed in

Australia and the ‘implicatory denial’ (Cohen, 2001: 111) of the Howard government

and influential public intellectuals. The latter part of the chapter examines the

implications of this ‘denialism’ and evaluates its compatibility with the spirit of the

reconciliation legislation’s preamble.

Background to the National Inquiry into Child Removal: Historical Context

and Rationale1

The exploitation of indigenous children, forcibly separated from their families

and communities, occurred from the very first days of the European occupation of

Australia. Throughout the frontier conflict indigenous children were often kidnapped

and exploited for their labour.

the greatest advantage of young Aboriginal servants was that they came cheap and were

never paid beyond the provision of variable quantities of food and clothing. As a result

any European on or near the frontier, quite regardless of their own circumstances, could

acquire and maintain a personal servant (Reynolds, 1990: 169).

In addition to random kidnappings, there was systematic government and

missionary child removal programmes designed to ‘inculcate European values and

1 This section outlines the contextual background and justificatory rationale behind the

laws, practices and policies of child removal. In the interests of accuracy I quote the language

of the times, however, much of the language was offensive to indigenous people then and is

now. For example, the terms ‘full blood’, ‘half caste’, ‘quadroon’ and ‘octoroon’ were used,

whereas now it is more acceptable to use the terms ‘full descent’ and ‘mixed descent’.

Reconciliation and Colonial Power88

work habits in children, who would then be employed in service to the colonial

settlers’ (Mason, 1993: 31). Such practices frequently came under the banner of

‘protection and segregation’ of indigenous people. The ‘benevolent’ aspect of the

practices originated with a Select Committee Inquiry set up by the British colonial

headquarters following alarming reports of massacres and atrocities committed by

expansionist Anglo-Celtic settlers.

The Select Committee Inquiry proposed the establishment of a ‘protectorate’

system, noting that ‘the education of the young will of course be amongst the

foremost of the cares of the missionaries’ (Victorian Government Submission, in

Bringing Then Home National Overview, 1997). The underlying aspiration of the

protectorate system was that indigenous people would seek to establish, on ‘reserved

areas’, self-contained agricultural communities based on the English village model

and cease resistance to colonial land appropriation. Yet, by the mid-nineteenth century

indigenous peoples continued survival seemed increasingly precarious. As we saw in

Chapter 3, indigenous peoples, forced by unregulated settler squatting to the edges of

non-indigenous settlement, suffered malnutrition and disease and became dependent

upon government ‘welfare’ measures. Consequently, governments increasingly

considered indigenous people to be an unnecessary burden on resources, while

rural settlers found their presence a discomfort and an embarrassment. The apparent

immanent demise of indigenous people was characterised in social Darwinist

terminology as a process of ‘natural selection, a survival of the fittest’. Indeed, the

general settler view by the end of the century was that there was a direct relationship

between colonial progress – the fulfilment of their mission and the destruction of

Aboriginal society. It was in itself a proof of progress (Johnston, 1992: 4).

In the late nineteenth and early twentieth century educated opinion in Australia

seems, generally, to have been of the view that the full-blood tribal Aborigine

represented a dying race, doomed in the fullness of time to extinction (Manne, 1998:

2). ‘Civilisation’ was constructed as a deadly force in itself, as one commentator

observed, it ‘imposed on them the sad fate reserved for the inferior races … In a

near future we shall no longer have anything but remembrance for them (Scientific

American Supplement 1893 in Haebich, 2001: 70).’ In the meanwhile it was desirable

to ‘smooth the dying pillow’ (ibid: 18) by issuing rations while keeping them out of

sight via the ‘reserve system’, whereby land was exclusively reserved for indigenous

groups under the control of a government appointed and subsidised ‘Chief Protector’

(BTH National Overview, 1997). Some groups were lucky enough to have reserves

created on their own country, but most were relocated far from their traditional

lands. The ‘protection’ amounted to almost complete control of the everyday lives

of indigenous residents. Indeed, the 1905 Western Australian Aborigines Act, for

example, established a system of controls over Aboriginal families and children

which regulated marriage, freedom of movement, employment and guardianship of

children. Through this legislation the so-called Chief Protector of Aborigines had

legal guardianship over Aboriginal children born outside of legal marriages (the

vast majority of Aboriginal children). Police officers had legal authority to remove

any of these children under the age of eight on their own initiative; there were no

legal criteria setting out conditions for removals and no court committal process.

Furthermore, the Chief Protector had the power to detain children in institutions to

Reconciliation and the ‘Stolen Generations’ 89

age 16 and could also enforce employment under his supervision while controlling

their wages.2 The institutions were used to distance indigenous children from their

culture and to encourage conversion to Christianity; they were often housed in

dormitories and only permitted minimal contact with their families. The Annual

Report of the New South Wales Welfare Board for 1921 claimed, ‘the continuation

of this policy of dissociating children from camp life must eventually solve the

Aboriginal problem’.

While the full blood ‘Aboriginal problem’ was expected to take care of itself a

new one was gradually beginning to materialise. This was the emergence of a growing

population of mixed descent children, specifically children born to Aboriginal

mothers usually with Anglo-Celtic or sometimes Chinese or Pacific Islander fathers.

In the first half of the twentieth-century the settlers thought of these mixed descent

children and their descendants, whom they labelled ‘half-castes’, ‘crossbreeds’,

‘quadroons’ and ‘octoroons’, as a growing social problem (Manne 1998: 2). Even

though such children did not fit so easily into neat social Darwinist categorisations,

as Manne (ibid.) states, they were generally ‘looked upon with undisguised distaste

and alarm’, and were the product of liaisons that were termed ‘miscegenation’.

The former Northern Territory constable M.C. Willshire wrote in 1896:

The mongrel half-caste inherits only the vices of civilisation … If it is a male he is born

for the gallows or to be shot; if a female she becomes a wanton devoid of shame. I hold

out no gleam of hope for such a repulsive breed (in ibid: 38).

In 1927 the Perth Sunday Times stated that:

Central Australia’s half-caste problem ... must be tackled boldly and immediately. The

greatest danger, experts agree, is that three races will develop in Australia: white, black

and the pathetic sinister third race which is neither (ibid.).

Tackling the issue ‘boldly’ involved embracing the increasingly influential science

of eugenics.3 Indeed, in the late 1920s and early 1930s Australian policy makers,

usually consisting of eminent anthropologists, medical scientists, publicists and

like minded politicians, began to develop a policy based on eugenics designed to

solve the ‘half-caste’ problem. The policy was designed to ‘breed out the colour’ and

subsequently became known as ‘the policy of biological assimilation or absorption’

(Haebich, 2001: 19).

The policy involved significant anthropological speculation based on the claim

that the Aborigines belonged to the Caucasian or Aryan race and were related through

2 Similar legislative controlling regimes were in place in all states but they tended to

vary their level of control with the size of the indigenous population. Wide ranging controls

were in place in Queensland, Western Australia and the Northern Territory, while Victoria and

Tasmania, with their smaller populations, worked with mainstream child care authorities in

dealing with indigenous children. See Kidd (2002).

3 In the 1920s and 1930s the science enjoyed increasing popularity. A central pillar of

its thought concerned the responsibility of the modern state to improve a nation’s racial stock

via positive breeding programs.

Reconciliation and Colonial Power90

blood to the peoples of contemporary Europe or Britain (Manne, 1999: 4). As the

anthropologist, Herbe Basedow, put it:

The Australian Aboriginal stands somewhere near the bottom rung of the great evolutionary

ladder we have ascended: he the bud, we the glorified flower of human culture (in ibid.)

The underlying assumption of the biological rationale was the existence of racial

affinity between the Aborigine and the European. According to this view a controlled

breeding programme, over the course of three to four generations, had every success

with a negligible chance of so-called ‘atavism’ or ‘throwbacks’.

A.O. Neville, the Western Australian Protector, wholeheartedly embraced

eugenicist dogma and successfully lobbied politicians to support his policy through

legislation. This resulted in the Native Administration Act 1936, which contained

provisions that outlawed ‘unregulated’ sexual relations between Europeans and

Aborigines, required that Aborigines seek permission to marry and prohibited

marriages between ‘half-castes’ and ‘full bloods’. The Act encapsulated the official

policy: the ‘full bloods’ would die out, while those of mixed decent would be ‘bred

out’ (Kidd, 2002: 253). All children under the age of twenty one were under controlled

by the Department of Native affairs. Indeed, the Protector could effectively remove

any children at anytime from their families.

Neville went on to present at the Initial Conference of Commonwealth and State

Aboriginal Authorities in Canberra in April 1937, which resulted in a resolution,

passed unanimously, termed ‘the destiny of the race’. It read:

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 it therefore recommends

that all efforts be directed to that end. In relation to indigenous children, the conference

resolved that ... efforts of all State authorities should be directed towards the education of

children of mixed aboriginal blood at white standards, and their subsequent employment

under the same conditions as whites with a view to their taking their place in the white

community on an equal footing with the whites (Report of the Initial Conference of

Commonwealth and State Aboriginal Authorities, Canberra, April, 1937 in BTH National

Overview, 1997).

Robert Manne (1999: 6) has recently stated ‘if there exists a more terrible moment

in the history of the twentieth-century Australian state than the Canberra conference

of April 1937, I for one do not know where it is to be discovered’.

Brisbane’s Telegraph newspaper reported in May 1937, that Mr Neville was of

the opinion that

within one hundred years the pure black will be extinct. However, the ‘half-caste’ problem

was increasing every year. Therefore their idea was to keep the pure blacks segregated

and absorb the half-castes into the white population. Sixty years ago, he said, there were

over 60,000 full-blooded natives in Western Australia. Today there are only 20,000. In

time there would be none. Perhaps it would take one hundred years, perhaps longer, but

the race was dying. The pure blooded Aboriginal was not a quick breeder. On the other

hand the half-caste was. In Western Australia there were half-caste families of twenty and

upwards. That showed the magnitude of the problem (in Bulti, 1995: 35).

Reconciliation and the ‘Stolen Generations’ 91

The adoption of Neville’s approach was instrumentally rational for all Australian

governments as the growth of the population meant that they would pose a significant

‘welfare’ burden to governments if they could not ‘contribute’ to settler society.

The biological absorption/removal model had the potential to lighten this burden

and also to yield a cheap source of labour for the developing Australian economy.

Indeed, the strategy of ‘rescuing’ mixed decent children from what was often defined

as the ‘contamination’ of tribal life and the desperate conditions of marginal living,

embraced not only the aim of education based on white values, but also the market

imperative for useful workers (Kidd, 2002).

To this end, the authorities went to great pains to ensure that the children lost all

contact with their parents or families. Removal, renaming and relocation of children

were the primary tactics employed (Van Krieken, 1991: 108). In all Australian

states and territories half-caste institutions were established for children of mixed

descent who were selected and removed and then transferred by an agent of the state.

The children would then be educated away from the ‘primitive’ influences of their

community before being sent out to work. A lack of adequate funding dogged such

institutions which resulted scores of ‘inmates’ being denied food and basic facilities,

including medical treatment, resulting in unsurprisingly high mortality rates.4

While the child removals continued unabated in the post-war years, the political

climate was not favourable to racial eugenicist policies such that there was a shift

away from biological ‘absorption and merging’ to straight ‘assimilation’. The

assimilationist era embraced a socio-cultural rationale which implicitly denied

indigenous culture any inherent value.

Nobody who knows anything about these groups can deny that their members are socially

and culturally deprived. What has to be recognised is that the integration of these groups

differs in no way from that of the highly integrated groups of economically depressed

Europeans found in the slums of any city and in certain rural areas of New South Wales.

In other words, these groups are just like groups of poor whites. The policy for them must

be one of welfare. Improve their lot so that they can take their place economically and

socially in the general community and not merely around the periphery. Once this is done,

the break-up of such groups will be rapid (Bell, 1964: 68 in BTH, 1997).

The programme of assimilation accelerated in the 1950s and 1960s to an extent

which overloaded the usual institutions. The preferred solution was to remove the

child, alter his/her identity and position with non-indigenous foster families. ‘A baby

placed with white parents would obviously be more quickly assimilated than one

placed with black parents’. So ran the official thinking, but more importantly, so also

ran the feelings of the majority of honest and conscientious white citizens (Edwards

and Read, 1989: XX).

4 In 1938–39 the jurisdictions with the largest Indigenous populations – the Northern

Territory, Western Australia and Queensland – spent the least per capita on Indigenous people.

The Commonwealth’s spending of £1 per person per annum compared to £42.10s per annum

on non-Indigenous pensioners and £10,000 on the Governor-General’s salary. See Markus

(1990: 10).

Reconciliation and Colonial Power92

By the 1960s it was becoming increasingly obvious, however, that ‘full blood’

indigenous people were not dying out and that the assimilation policies were not

having the overall desired affect. Indigenous peoples cultural identity remained

strong and, coupled with general discrimination by the non-indigenous community,

acted as a bar to the completion of the assimilation programme. Furthermore, there

was growing unease among policy makers that the removal practices would soon

attract criticism for the ‘violation of the present day conception of human rights’

as they would probably ‘outrage the feelings of the average observer’ (Leydin,

Government Secretary, 1950, in Long, 1992).5 Consequently a new initiative that

allowed for greater indigenous ‘choice’ began to emerge. As Altman and Sanders

(1995: 211) state:

‘Assimilation’ was discarded as the key term of Aboriginal policy in favour of ‘integration’,

though precisely what this signified was somewhat unclear ... Although these were

significant changes, they continued to operate through the established structures and

organisations of Aboriginal policy, rather than in any way directly challenging them.

Regardless of the label used the overall result of the removal policies was that

between the years 1910 and 1970 (when reasonably accurate numbers can be

estimated) somewhere between 17,000 to 50,0006 Aboriginal children of mixed

decent, the majority under five 5 years of age, were forcibly removed, or at the very

least removed under duress, from their families. Many were raised in church or

state institutions, while some were fostered or adopted by white parents and lived a

life of domestic servitude and often suffered physical and sexual abuse (see BTH,

1997). These children have subsequently become know as the ‘Stolen Generations’,

the term coined by historian Peter Read who in 1981 published the results of

one of the first studies of child removal policies (Read, 1981). Spurred on by the

emergence of such research, key indigenous agencies and communities began to

lobby Governments and NGOs out of concern that the general public’s ignorance of

the history of forcible removal was obstructing possible remedial responses to the

needs of the victims and their families.

A key turning point was the October 1994 Going Home Conference in Darwin.

Representatives from every state and territory met to share experiences, to bring to

light the history and its effects in each jurisdiction and to devise strategies to meet the

needs of those children and their families who survive. Several hundred Aboriginal

people were in attendance, a great many of whom had been removed from their

families as children. At the conference, the Minister for Aboriginal and Torres Strait

Islander Affairs, Robert Tickner, announced that he intended to write to the Attorney

5 See the work of former patrol officer: Long (1992).

6 There has been significant debate around the numbers removed. Poor record keeping,

the loss of records and changes to department structures have made it almost impossible to

trace many connections, thus the best that can be achieved is a reasonably accurate estimate

based on knowledge available. The 17,000 figure is the conservative estimate cited by the

Australian Bureau of Statistics and the 50,000 figure has been cited by historian Peter Read

in his book A Rape of the Soul So Profound (1999). Historian Robert Manne (2001: 27) has

suggested that a figure of around 20–25,000 is probably more accurate.

Reconciliation and the ‘Stolen Generations’ 93

General and suggest that the Human Rights and Equal Opportunities Commission

(hereafter HREOC) conduct an inquiry into why thousands of Aboriginal children

had been separated from their families during the course of the twentieth century.

In May 1995 the National Inquiry into the Separation of Aboriginal and Torres

Strait Islander Children from Their Families was established. The inquiry was

headed by Sir Ronald Wilson, former High Court judge and President of HREOC

and Mick Dodson, the HREOC Social Justice Commissioner. The inquiry was to last

two years but was only granted AUS$ 1.5 million funding compared with the AUS$

30 million allocated to the Royal Commission into Aboriginal Deaths in Custody.

‘Bringing Them Home’: Report of the National Inquiry into the Separation of

Aboriginal and Torres Strait Islander Children from Their Families

On 11 May 1995, with regard to the Australian Government’s ‘human rights, social

justice and access and equity policies’ the then Attorney-General, Michael Lavarch

MP, referred the issue of past and present practices of separation of indigenous

children from their families to the HREOC.

The HREOC Inquiry undertook an extensive program of hearings in every

capital city and in many regional and smaller centres. The first hearings took

place on 4 December 1995 on Flinders Island with the last round of hearings

ending on 3 October 1996 in Sydney. Public evidence was taken from indigenous

organisations and individuals, state and territory government representatives, church

representatives, other non-government agencies, former mission and government

employees and individual members of the community. Confidential evidence was

taken in private from indigenous people affected by the policies and from adoptive

and foster parents. Many people and organisations made written submissions to the

inquiry, including many who also gave oral evidence. There were 777 submissions

received, which included 535 indigenous individual and group submissions, 49

church submissions, 7 government submissions and 500 confidential submissions.

A Testimony

The report contained large sections of confidential Aboriginal witness testimony that

revealed both the abhorrent circumstances of removals and extent of the subsequent

trauma and suffering. Indeed, the individual testimonies of removed children make

for moving and often traumatic reading. The following is just one of the stories that

can be found in the report. It details the events surrounding the removal of a girl

named (by the inquiry) Millicent.

In 1949 the Protector of Aborigines with the Native Welfare Department visited the

sandhill camps. All the families living there were to be moved to other campsites or to

the Moore River Aboriginal Settlement. Because my parents were fair in complexion, the

authorities decided us kids could pass as whitefellas. I was four years old and that was

the last time I was to see my parents again. Because my sisters were older than me they

were taken to the Government receiving home at Mount Lawley. My brother Kevin was

Reconciliation and Colonial Power94

taken to the boys home in Kenwick. Colin and I were taken to the Sister Kate’s Home. We

were put in separate accommodation and hardly ever saw each other. I was so afraid and

unhappy and didn’t understand what was happening. We were told Sundays was visiting

day when parents and relatives came and spent the day. For Colin and I that was a patch

of lies because our family were not allowed to visit. We spent each Sunday crying and

comforting each other as we waited for our family. Each time it was the same – no one

came. That night we would cry ourselves to sleep and wonder why. We were too young to

understand we were not allowed family visits.

A couple of years passed and I started primary school. It had been such a long time since I

had seen my brother Colin. I was so helpless and alone. My brother had been taken away

to the boys’ home in Kenwick and now I was by myself. I became more withdrawn and

shy and lived in a little world of my own hoping one day Mum would come and take me

out of that dreadful place. As the years passed I realised that I would never see my family

again. They told me that my family didn’t care or want me and I had to forget them. They

said it was very degrading to belong to an Aboriginal family and that I should be ashamed

of myself, I was inferior to whitefellas. They tried to make us act like white kids but at

the same time we had to give up our seat for a whitefella because an Aboriginal never sits

down when a white person is present.

Then the religion began. We had church three times a day, before breakfast, lunchtime and

after school. If we were naughty or got home from school late we had to kneel at the altar

for hours and polish all the floors and brass in the church. We had religion rammed down

our throats from hypocrites who didn’t know the meaning of the word. We used to get

whipped with a wet ironing cord and sometimes had to hold other children (naked) while

they were whipped, and if we didn’t hold them we got another whipping. To wake us up in

the morning we were sprayed up the backside with an old fashioned pump fly spray. If we

complained we got more. Hurt and humiliation was a part of our every day life and we had

to learn to live with it. Several more years passed and I still had no contact with my family,

I didn’t know what they looked like or how I could ever find them. By this time I was old

enough to go to High School. This meant I didn’t have to look after several of the younger

kids as I had previously done, bathing, feeding and putting them on the potty and then off

to bed, chopping wood before school and housework which all of us kids done and the

housemothers sat back and collected wages – for doing nothing. My life was miserable,

and I felt I was a nobody and things couldn’t get any worse. But I was wrong.

The worst was yet to come. While I was in first year high school I was sent out to work on

a farm as a domestic. I thought it would be great to get away from the home for a while.

At first it was. I was made welcome and treated with kindness. The four shillings I was

payed went to the home. I wasn’t allowed to keep it, I didn’t care. I was never payed for

the work I did at Sister Kate’s so you don’t miss what you didn’t get, pocket money etc.

The first time I was sent to the farm for only a few weeks and then back to school. In the

next holidays I had to go back. This time it was a terrifying experience, the man of the

house used to come into my room at night and force me to have sex. I tried to fight him

off but he was too strong.

When I returned to the home I was feeling so used and unwanted. I went to the Matron and

told her what happened. She washed my mouth out with soap and boxed my ears and told

me that awful things would happen to me if I told any of the other kids. I was so scared and

wanted to die. When the next school holidays came I begged not to be sent to that farm

Reconciliation and the ‘Stolen Generations’ 95

again. But they would not listen and said I had to. I ran away from the home, I was going

to try to find my family. It was impossible, I didn’t even know where to go. The only thing

was to go back. I got a good belting and had to kneel at the altar everyday after school for

two weeks. Then I had to go back to that farm to work. The anguish and humiliation of

being sent back was bad enough but the worse was yet to come.

This time I was raped, bashed and slashed with a razor blade on both of my arms and legs

because I would not stop struggling and screaming. The farmer and one of his workers

raped me several times. I wanted to die, I wanted my mother to take me home where I

would be safe and wanted. Because I was bruised and in a state of shock I didn’t have

to do any work but wasn’t allowed to leave the property. When they returned me to the

home I once again went to the Matron. I got a belting with a wet ironing cord, my mouth

washed out with soap and put in a cottage by myself away from everyone so I couldn’t

talk to the other girls. They constantly told me that I was bad and a disgrace and if anyone

knew it would bring shame to Sister Kate’s Home. They showed me no comfort which

I desperately needed. I became more and more distant from everyone and tried to block

everything out of my mind but couldn’t. I ate rat poison to try and kill myself but became

very sick and vomited. This meant another belting. After several weeks of being kept

away from everyone I was examined by a doctor who told the Matron I was pregnant.

Another belting, they blamed me for everything that had happened. I didn’t care what

happened to me anymore and kept to myself. All I wanted now was to have my baby and

get away as far as I could and try and find my family.

My daughter was born [in 1962] at King Edward Memorial Hospital. I was so happy, I had

a beautiful baby girl of my own who I could love and cherish and have with me always.

But my dreams were soon crushed: the bastards took her from me and said she would be

fostered out until I was old enough to look after her. They said when I left Sister Kate’s

I could have my baby back. I couldn’t believe what was happening. My baby was taken

away from me just as I was from my mother.

Once again I approached the Matron asking for the Address of my family and address of

the foster family who had my daughter. She said that it was Government Policy not to

give information about family and she could not help me. I then asked again about my

baby girl and was told she did not know her whereabouts. In desperation I rang the King

Edward Memorial Hospital. They said there was no record of me ever giving birth or of

my daughter Toni. Then I wrote to the Native Welfare Department only to be told the same

thing and that there were no records of the D. family because all records were destroyed

by fire.

I now had no other options but to find a job and somewhere to live. After working for a

while I left Western Australia and moved to Adelaide to try and get my life together and

put the past behind me. I was very alone, shy and not many friends and would break down

over the simplest thing. Every time I saw a baby I used to wonder, could that by my little

girl. I loved her and so desperately wanted her back. So in 1972 I returned to Western

Australia and again searched for my family and child. I returned to see the Matron from

Sister Kate’s. This time she told me that my daughter was dead and it would be in my best

interest to go back to South Australia and forget about my past and my family. I so wanted

to find them, heartbroken I wandered the streets hoping for the impossible. I soon realised

that I could come face to face with a family member and wouldn’t even know.

Reconciliation and Colonial Power96

Defeated I finally returned to Adelaide. In my heart I believed that one day everything

would be alright and I would be reunited with my family. My baby was dead. (That’s

what I was told). I didn’t even get to hold her, kiss her and had no photographs, but her

image would always be with me, and I would always love her. They couldn’t take that

away from me.7

The Effects

The Inquiry heard evidence from many different people from all over Australia, yet

the evidence identified many common characteristics of the removal and separation

practices. Children could be taken at any age, but many were taken within days of

their birth (especially for adoption) or in early infancy (BTH, Chapter 11).8 Limited

resources meant, however, that significant numbers of children were removed nearer

school age since they were less of a resource burden. Most institutions were run

by non-indigenous staff and housed predominantly indigenous children. Foster and

adoptive families were almost always non-indigenous.

‘Since the objective was to absorb the children into white society, Aboriginality

was not positively affirmed … many children experienced contempt and denigration

of their Aboriginality and that of their parents or denial of their Aboriginality’ (ibid.).

The usual story disseminated to the children in order to obscure the clandestine

objective was either that their families had rejected them or that they had all died.

This was made all the more easy in many cases as family members were too far

away to visit or had no knowledge of the whereabouts of their children. Children

in this position were therefore completely cut off from their family and culture and

dependent on the institution or foster parents. The inquiry reported that many such

children were exploited and abused and only a few who gave evidence to the inquiry

had been happy and secure. Those few had become closely attached to institution

staff or found loving and supportive adoptive families (ibid.).

The inquiry found it impossible to capture all the complexity of the effects of

such practices on each individual as they all responded in their own way to similar

traumas. For the majority of witnesses to the inquiry, the effects have been multiple,

profoundly disabling and continuing. Despite the suggestion that children were

removed ‘for their own good’ or that policies were essentially benign in intent, the

separation of mixed decent children from their families has had long term negative

consequences. The Inquiry found that children removed from their families:

are more likely to come to the attention of the police as they grow into

adolescence;

7 Confidential submission 640, South Australia: WA woman removed in 1949. In

January 1996, Millicent received an enquiry from the South Australian welfare authorities. A

woman born in 1962 was searching for her birth mother. This was Toni, Millicent’s daughter.

The two have since been reunited. Millicent’s story appears on page 115 of ‘Bringing Them

Home’.

8 All references are from the website archive and therefore have no page numbers.

The text can be located via the chapter numbers on the internet at <ttp://www.hreoc.gov.

au/social_justice/stolen_children>

•

Reconciliation and the ‘Stolen Generations’ 97

are more likely to suffer low self-esteem, depression and even mental illness;

are more vulnerable to physical, emotional and sexual abuse;

had been almost always taught to reject their Aboriginality and Aboriginal

culture;

are unable to retain links with their land;

could not take a role in the cultural and spiritual life of their former

communities;

are unlikely to be able to establish their right to native title (ibid.).

The Inquiry concluded that psychological and emotional damage suffered by the

children rendered many less able to learn social and survival skills and to operate

successfully in either the indigenous or non-indigenous world. Such difficulties

caused low educational achievement, unemployment and poverty, which in turn

caused their own emotional distress leading some to perpetrate violence, self-harm,

substance abuse or anti-social behaviour (ibid.). Ultimately, the result of the removal

practices was to leave many people in a ‘cultural void’, having no knowledge of

their indigenous heritage and culture, while lacking sufficient skills and knowledge

to be accepted into non-indigenous society. Yet, it was not just the individuals that

were effected, the Inquiry was told of the emotional damage to parents and siblings

and their communities. Furthermore, subsequent generations continue to suffer the

effects of parents and grandparents having been forcibly removed, institutionalised,

denied contact with their Aboriginality and in some cases traumatised and abused

(ibid.).

Such consequences were not a surprise to many dissidents of the policies.

Indeed, the report found that the policies and practices of separation and removal

were implemented contrary to explicit concern regarding likely consequences. From

as early as 1874 warnings were sounded about the threat to family structures and

systems; links were clearly identified between the removal of young girl children

for domestic work, and slavery; about the lack of responsibility, authority and

supervision of those involved in the forcible removal of children, and about the

repressive conditions in which children were held (ibid.). Despite the prevailing

racist attitudes of the times, the report quoted many people, often from within the

system, who were clearly concerned that the removal policies were detrimental to

the children and their communities. The following are just two examples cited by

BTH (1997: 11):

Removal is prejudicial to a healthy development of character and the rearing of children as

good and useful men and women. The one fatal and all-sufficient objection to the massing

of children together under the necessary conditions of barrack life is, its utter variance

from the family system recognised by nature in the constitution of human society as the

best suited for the training of the young. 1874 Public Charities Commission Inquiry.

The general opinion of station people is that it is a mistake to take these children out of

the bush. They say that the aboriginal mothers are fond of their children and in their own

way look after them and provide for them and that when they grow up they are more easily

absorbed and employed than those who have been taken out of their natural environment

and removed to towns. The Mission Representatives say that if the girls are left in the bush

•

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Reconciliation and Colonial Power98

they only became the prey of white men and mothers at a very early age. My experience

has been that removing them to towns and to institutions does not overcome this trouble

and only accentuates and increases it. Chief Protector of Aboriginals, to Commissioner of

Public Works, 27 August 1932.

While a great many people spoke out at the time, some occupying prominent positions

within the removal system, a great silence ensued, a silence that was not truly broken

until the publication of BTH. Testament to this great silence was the fact that there is

no mention of the policies and their legacy in the reconciliation legislation.

In summary, the report contained harrowing evidence, finding that forcible removal

of indigenous children was a gross violation of human rights that continued well after

Australia had undertaken international human rights commitments. In particular,

the report concluded that the removal constituted an act of genocide contrary to

the Convention on Genocide (which forbids ‘forcibly transferring children of [a]

group to another group’ with the intention of destroying the group). It was racially

discriminatory, because it only applied to Aboriginal children on that scale. The Report

made 54 recommendations, including opening of records, family tracing and reunion

services and the need for reparations. The main recommendations were:

Provide Reparations – that reparation be made in recognition of the history

of gross violations of human rights; and that the van Boven principles guide

the reparation measures. Reparation should consist of: 1. acknowledgement

and apology; 2. guarantees against repetition; 3. measures of restitution; 4.

measures of rehabilitation, and 5. monetary compensation. That reparation

be made to all who suffered because of forcible removal policies including

individuals who were forcibly removed as children; family members,

communities and descendants who suffered as a result of their removal.

Acknowledgement and apology: That parliaments, police forces, churches and

others, acknowledge and apologise for their role in the removal practices.

Commemoration – That ATSIC, in consultation with the CAR, arrange for a

national Sorry Day and to be celebrated each year to commemorate the history

of forcible removals and its effects.

Genocide Convention – that the Commonwealth legislate to implement the

Genocide Convention with full domestic effect.

Assistance to return to country – that governments ensure that appropriate

indigenous organisations are adequately funded to employ family reunion

workers to travel with clients to their country.

Social justice – that the Council of Australian Governments, in partnership

with ATSIC, the CAR and other relevant organisations, develop and implement

a social justice package for indigenous families and children.

Self-determination – that governments negotiate with indigenous organisations

to establish a framework for negotiations at community and regional levels

for the implementation of self-determination in relation to the well-being of

indigenous children and young people.9

9 For the full list see, ‘Bringing Them Home: Recommendations’ at http://www.hreoc.

gov.au/social_justice/stolen_children/.

•

•

•

•

•

•

•

Reconciliation and the ‘Stolen Generations’ 99

Responses to Bringing Them Home (BTH)

The questions this history raises for us to contemplate today, at the very least, are what

implications it has for relations between Aboriginal and white Australians, and what

traces of that systematic attempt at social and biological engineering remain in current

child welfare practices and institutions (van Krieken 1991: 144).

Very quickly after its release BTH became the highest selling government publication

in history. Press coverage in the month following the release was so intense that by

one study’s estimate 1300 news items cited the term ‘Stolen Generations’ (AIATSIS,

1998). The study also found that eighty percent of the press coverage was supportive

of the Inquiry’s findings. In particular, virtually all the newspapers agreed with the

need for a formal apology from the Federal Government, although they were less

enthusiastic about the need for monetary reparations. Manne (2001: 5) has suggested

that, ‘no inquiry in recent Australian history has had a more overwhelming reception

nor, at least in the short term, a more culturally transforming impact’. However,

on the day the report was tabled in Federal Parliament the Prime Minister, John

Howard, was described as flapping his arms to ‘shoo’ Coalition MPs out of the

lower house so they would not hear Opposition leader Kim Beazley read testimony

from ‘Bringing Them Home’ (Neill, 2002: 122). An unfavourable response from

the Howard government was not unexpected as it had declined to assist the BTH

inquiry in producing a history of Commonwealth policy regarding Aboriginal child

removals in the Northern Territory and also refused a relatively modest request for

extra funds.

Regardless of the government’s position, the issue of indigenous child removal

soon took centre stage in Australian political debate. Even though the issue of

child removal was not deemed significant enough to make it into the reconciliation

legislation’s preamble, the belated instigation of the BTH inquiry could be considered

the most significant government sponsored reconciliatory initiative. Following

its report the issue of the Stolen Generations became central to the reconciliation

process. The Inquiry was unique in the history of indigenous/settler state relations

in Australia as, for the first time, it provided a national level forum for indigenous

‘truth-telling’ that successfully created an atmosphere of trust and which thereby

allowed victims’ stories of trauma, abuse, confusion, and bewilderment to flow

unhindered.

One of the major recommendations of ‘Bringing Them Home’ was that all

Australian Parliaments issue formal apologies to the Stolen Generations for the

actions of their predecessors. The overwhelmingly sympathetic media and political

responses meant that it was not long before all state governments apologised, except

the Northern Territory, which made a statement of ‘acknowledgement’. Many local

governments, police forces, government agencies, non-government organisations

and church groups also apologised. A conspicuous absentee, however, was John

Howard’s Federal Government. The motivations for this lack of Federal apology

have subsequently become reasonably clear in the debate around the charge of

genocide, the most controversial conclusion of BTH.

Reconciliation and Colonial Power100

Genocide: Official Denial?

No one in his right senses believes that the Commonwealth of Australia will be called

before the bar of public opinion, if there is such a thing, and asked to answer for any of

the things which are enumerated in this convention. – Archie Cameron, Liberal Member

for Barker, in the parliamentary debate on Australia’s ratification of the Convention on the

Prevention and Punishment of the Crime of Genocide, June 1949. (Hansard, 1949: 1871)

... the horrible crime of genocide is unthinkable in Australia ... That we detest all forms

of genocide ... arises from the fact that we are a moral people. – Leslie Haylen, Labor

Member for Parkes (ibid.).

The BTH conclusion that genocide was committed in Australia during the same years

as the Nazi genocide of the Jews, and after, has caused considerable controversy.

Indeed, support of the HREOC conclusion is typically dismissed as mischief,

pedantry or overreaction (Gaita 1997: 41). Kenneth Minogue (1998: 14), for example,

writes that, ‘indigenous peoples in their more extreme moments have a weakness for

dramatising their sufferings by invoking the idea of genocide,’ which he describes

as exploiting a ‘prefabricated emotional charge’. Similarly, Ron Brunton (1998: 19)

describes the accusation of genocide as ‘rhetorical misuse by political activists and

others indifferent to the importance of proper hierarchies of wrongdoing … attracted

to genocide’s status as the ultimate evil.’

It is possible that such reactions are not politically motivated but rather stem from a

genuine misunderstanding of the concept of genocide fuelled by the common perception

that genocide necessarily involves mass murder. As Tatz (1999: 2) suggests

(stereotypically) genocide connotes either the bulldozed corpses at Belsen or the serried

rows of Cambodian skulls, the panga-wielding Hutu in pursuit of Tutsi victims or the

ethnic cleansing in the former Yugoslavia.

Inga Clendinnen (2001: 106) also concedes that

When I see the word genocide I still see Gypsies and Jews being herded into trains, into

pits, into ravines, and behind them the shadowy figures of Armenian women and children

being marched into the desert by armed men. I see deliberate mass murder.

Yet, as Anne Orford (2006: 854) writes

Attention to the Australian example of the genre of truth commission reporting unsettles the

assumption that massive human rights violations are an exceptional problem confronting

states in transformation from authoritarianism or dictatorship to democracy. ‘Bringing

Them Home’ documents the everydayness and bureaucratisation of genocide and of

massive human rights violations in the liberal democratic state within which I live.

While Raimond Gaita (1997: 44) feels that

many people take the Nazi attempt to exterminate the Jews and the gypsies as a paradigm

for genocide, and I suppose that I did so when [at first] I reacted with irritation to Dodson’s

(one of the BTH Chair’s) remarks.

Reconciliation and the ‘Stolen Generations’ 101

Gaita (1999: 113) may have put his finger on the problem by suggesting that the

means by which a genocidal intention is realised, sometimes by physical killing,

sometimes by imposing measures to prevent births within the group, differ radically

in moral seriousness, so much so that we are misled into believing that we are

confronted by different crimes (ibid.).

This issue may indicate a need to further conceptualise the moral and legal

dimensions of the crime of genocide. The UN Convention, for example, seems to

equate in seriousness the act of physical killing and the forcible removal of children.

It could be argued that some forms of genocide are worse than others by virtue

of the means chosen to eliminate a people. Thus, Tatz (1995: 16) believes there

is a ‘crying need to examine the gradations and levels of genocide’ and concludes

that the Convention would benefit from a two or three tier formula of genocide

1, genocide 2 and genocide 3. A Convention of this nature would certainly help

overcome the assumption that crimes existing under one concept necessarily equate

in moral seriousness.

On the 24 November 1999, the Australian Senate referred the matter of the Federal

Government’s response to the BTH report to the Senate Legal and Constitutional

References Committee (SLCRC). 10 The Federal Government’s submission to the

SLCRC Inquiry into the Stolen Generation represents a statement of opposition

to the BTH conclusions. The submission is deeply flawed. It professes a list of

genocidal acts yet mentions only murder, which is an erroneous view of genocide

and a distortion intended to release the colonial state from culpability (see Federal

Government Submission 2000: 30). The submission also sought to emphasise the

benign intent of the child removal practices, which it claimed were directed at

improving the lot of Aboriginal children (ibid.). Yet for a policy to be defended on

the grounds of good intentions such a defence must not rest on the policy-makers’

professions of their good intentions, but on their intentions being recognisable to us

as in some sense good (Manne, 1998: 22).

The concept of good intention cannot be relativised indefinitely to an agent’s

perception of it as good, otherwise we would have to say that the Nazi murderers had

good intentions because many of them believed it to be their duty to humankind to

rid the earth of the Jews (Gaita 1997b: 20–21). Quite simply a genocidal intention to

eliminate a people still exists whether or not it co-exists with a benign motive. The

intent to destroy clause in the Convention does not require malice. As Ratner and

Abrams (1997: 36) have noted, ‘the primary motive may be a desire to benefit (or

act ‘in the interests of’) the individuals comprising the group’. Similarly, according

10 Federal Government Submission, Senate Legal and Constitutional References

Committee, Inquiry into the Stolen Generation (31/03/2000). On 24 November 1999, the

Senate referred the following matters to the Senate Legal and Constitutional References

Committee for inquiry and report by 5 October 2000;

1) The adequacy and effectiveness of the Government’s response to the recommendations

of ‘Bringing Them Home’; 2) The consistency of this response with the aims of the Council

for Aboriginal Reconciliation and the hopes, aspirations and needs of members of the stolen

generation and their descendants; and 3) Effective ways of implementing recommendations

of the ‘Bringing Them Home’ report, including an examination of existing funding

arrangements.

Reconciliation and Colonial Power102

to Starkman, ‘the reasons for perpetrating the crime are irrelevant … the crime of

genocide is committed whenever the intentional destruction of a protected group

takes place’ (Starkman, 1984: fn14).

In pursuing this line of argument the Federal Government is engaging in what

Stanley Cohen (2001: 111) has termed ‘implicatory denial’. This form of official

denial can involve limited acknowledgment that a wrong occurred but seeks to

diminish the seriousness of the wrong with ‘contextualisation’ (see Cohen, 2001:

111). In this case the ‘contextualisation’ involves the claim that ‘we thought it was in

their best interests … we were acting in good faith … the ill effects are an unfortunate

by-product of otherwise benevolent policies’.

Also central to the Federal Government submission is the proposition that the

policies and practices of forcible removal must be viewed in accordance with the

ideas and standards of the day (Federal Government Submission SLCRC 2000: 6).

This position is similar to another denial tactic identified by Cohen (see ibid: 110),

namely the appeal to a set of values other than ‘universal’ international human rights

standards. Unlike the examples cited by Cohen, however, the Federal Government

in this instance is not saying that current human rights standards are not universal,

only that they should not apply retrospectively to a time-period where they were not

part of the moral fabric of the state.

The Government’s argument, however, is seriously flawed as it overlooks

significant aspects of the standards of the day, notably the significant body of

international human rights law which Australia not only voluntarily subscribed

to, but also played a leading role in developing and promoting post-World War II.

In particular, the prohibition of the crime of genocide was clearly established as a

standard of the day against which policies of forcible removal should be evaluated.

In effect the Federal Government is appearing to suggest that, despite Australia’s

involvement in the development of an international moral code and its liberal

democratic status, we should not judge officials of the Australian state involved in

child removal practices too harshly. The justification for this appeal seems to the

claim that such officials were suffering from a form of moral blindness inherent in

the ‘values of the day’ which obscured the human distress and suffering that resulted

from their actions. It seems that such arguments are designed to deny the accusation

of genocide and to side-step liability, rather than offering a genuine reasoned

explanation of past practices.

To compound matters the Government also asserted that only 10 per cent of

Aboriginal children were removed from their families in the years from 1910–1970,

and that the term ‘stolen generation(s)’ should therefore be rejected as emotive and

imprecise (ibid: 13–18, my emphasis). The assertion is based on a rejection of the

HREOC finding that between one in ten and one in three indigenous children were

removed, which, the Government claims, is based on ‘uncertain guestimates and

shoddy research’ (ibid: 13).

To be sure many commentators have also cast doubt on the HREOC figures (e.g

Manne 2001), but the simple fact of the matter is that it is impossible to provide

an accurate figure. The HREOC figures are necessarily vague. Moreover, the

Government’s own calculation is based on a more recent study that has already been

identified by the HREOC as likely to understate the extent of removal as it was not

Reconciliation and the ‘Stolen Generations’ 103

able to record those people who had died before the time of the survey. Indeed, the

1994 National Aboriginal and Torres Strait Islander Survey (NATSIS) conducted

by the Australian Bureau of Statistics would likely miss most people removed

from 1910 until 1940 (or even later), which constitutes the peak period for forcible

removals in many parts of the country. The numbers of deceased by 1994 are also

likely to be high since, as both ‘Bringing Them Home’ and the Royal Commission

into Aboriginal Deaths in Custody (RCIADIC) note, people forcibly removed from

their families experience higher rates of incarceration and experience poorer health

standards than the rest of the Aboriginal community. This lower health status and life

expectancy would influence the number of people who had survived until 1994. The

ABS estimated that in total around 17,000 removals occurred. Manne (2001: 27) has

suggested that a more accurate figure could be arrived at by adjusting the ABS figure

in line with Aboriginal life expectancy. He concluded that it seems probable that

between 20,000 and 25,000 Aboriginal children were separated from their families

between 1910 to 1970 (ibid.).

The motivation behind the Government’s attempt to discredit the number of

children removed appears in the same submission: ‘the minority of children affected

(10 per cent or less) is plainly inconsistent with the extravagance of the allegation

[of genocide]’ (ibid: 13). Here, the government is in error yet again. Genocide is not

contingent on intent to destroy the group in whole. Article II of the Convention states

there must be ‘intent to destroy the group in whole or in part’.11

There is, however, reasonable agreement that the ‘part’ must be substantial. While

the Convention is not explicit on this Freeman (1984: 13) argues that it should likely

not be interpreted as meaning intent to destroy any part, however small. Robinson

(1950: 498) also suggests that the intent to destroy a subsection of a protected group

may be classified as genocide, ‘provided the number is substantial because the aim

of the convention is to deal with action against large numbers, not individuals, even

if they happen to possess the same characteristics’. Nonetheless, I would suggest that

even the understated figure of 10.2 per cent constitutes a substantial part. I am sure

the victims would also agree.

Stanley Cohen (2001: 112) has described such official denial as a ‘counter-

offensive’:

In today’s political culture, accounts are negotiated through spectacle, simulation and

stage management. Governments have to contend with victims, social movements and

pressure groups that have been empowered by humanitarian organisations that are

visible and telegenic. Moreover, these sources of denunciation have access to powerful

communication methods – electronic mail, internet, fax, video – not easily subjected to

state power. In this market place of accounts, governments defend themselves by pre-

emptive attack and ‘shooting the messenger’... if allegations look undeniable, evade them

by discrediting the source.

The ‘discrediting of the source’ has been aided by a group of right-wing commentators

writing for the magazine Quadrant and various newspapers. The group includes

11 For the full text of the Convention see http://www.hrweb.org/legal/genocide.html.

Reconciliation and Colonial Power104

anthropologist Ron Brunton, the Quadrant editor P.P. McGuinness, historian

Geoffrey Blainey and several journalists.

Six months after BTH was published, Brunton, a member of the influential

right-wing think-tank ‘the Institute of Public Affairs’, published an article entitled

‘Betraying the Victims’. In the article he targeted BTH for methodological offences

including quoting ‘only’ 143 out of a possible 535 witnesses and claiming that

therefore the rest were ‘largely ignored’. As Manne (2001: 32) suggests one of the

reasons BTH is so interesting is the amount of space it devotes to lengthy extracts

from the evidence it heard. If BTH had quoted from all its witnesses it would have

been interminable. Brunton further suggested that a ‘disturbing possibility’ was the

BTH may have deliberately excluded positive testimony (Brunton 1998). Yet, he

offers no evidence for the accusation. In a later article for Quadrant he called upon

Australia politicians ‘to condemn the authors of BTH’ while calling for the authors

to apologise ‘for their calumnies’ (Brunton, 1999).

Perhaps the most incendiary contribution came, however, from McGuinness the

Quadrant editor and Sydney Morning Herald columnist. In a Quadrant editorial

entitled ‘Poor Fella My Stolen Generation’ (McGuinness, 1999) he suggested that

the BTH witnesses might have suffered from a form of ‘collective hysteria’ or from

a condition know as ‘false memory syndrome’. He also provided no evidence for

this. Apart from such unsubstantiated claims McGuinness has also promulgated

outright falsehoods. He has contended that the policy of ‘breeding out the colour’

was never ‘the basis for policy in any specific State of Territory’ and that ‘no one’

had ever found ‘a government policy or even an internal policy document’ to prove

this, which as this chapter has shown is entirely incorrect.

In In Denial: The Stolen Generations and the Right, Robert Manne (2001) has

persuasively argued that the power of such criticism of BTH lies not in the accuracy

of the critique but in the fact that the arguments were willingly taken up by large

sections of the press and also by the Howard government. The result is that far

from providing unequivocal acknowledgment of the harms inflicted by the removal

policies, the BTH inquiry and the genocide issue are now hotly contested in debates

that rarely deal with established facts.

The Black Armband View of History

The implicatory denial of the experiences of the Stolen Generations is only the most

recent rejection by the Federal Government of any genocidal basis in Australian

history. Since his election in 1996, Prime Minister John Howard has consistently

attacked the derisively termed ‘black armband’ interpretation of history. The term

was first coined by Geoffrey Blainey (1997: 22–23, 1999: 10–14) to denote the

writing of Australian history in such a way that ‘the minuses virtually wipe out

the pluses’. It reflects the belief, Howard (1996) maintains, that ‘most Australian

history since 1788 has been little more than a disgraceful story of imperialism,

exploitation, racism and other forms of discrimination’. Yet death, dispossession,

displacement, relocation and removal have largely been elided from Howard’s view

of the Australian past, which, as he sees it, ‘broadly constitutes an heroic and unique

Reconciliation and the ‘Stolen Generations’ 105

achievement against great odds’ (ibid.). Indeed, the Howard view of history lacks

any appreciation of the meaning of colonisation other than as a white history of

settlement and development.

Yet it is only really in the last 25 years or more that historians have sought to

address the Aboriginal perspective. In particular, contrasting histories were inspired

by W.E.H. Stanner’s (1968: 25) observation in 1968 that Australian history was

a narrative silent about the relations between Aborigines and settlers, and his call

upon historians to break what he termed the ‘cult of forgetfulness’ or ‘the great

Australian silence’. This was not, as some mistakenly assume, a total silence on

all matters Aboriginal, for there had been much anthropological interest in the

Aborigines from the beginning of the colonial encounter, rather it was ‘the story

of the unacknowledged relations between two racial groups within a single field

of life … the assumption that the racial structure which is part of our anatomy has

no connection with our civilisation past’ (ibid.). This silence, he claimed, could

not be explained by absentmindedness, rather it was a ‘structural matter, a view

from a window which has been carefully placed to exclude a whole quadrant of

the landscape’ (ibid.). As Henry Reynolds (1981: 163) also later described it, ‘deft

scholarly feet avoided the embarrassment of bloodied billabongs, which were out

of place in works that celebrated national achievement or catalogued peaceful

settlement in a quiet continent’.

Nevertheless, as a result of the work of published Aboriginal writers (the late

Kevin Gilbert, Mudrooroo, Ruby Langford, Marcia Langton and many others)

and non-Aboriginal historians (Charles Rowley, Noel Loos and Henry Reynolds12

there has been recognition of what Bain Attwood (1996: xv) refers to as the new

Australian history. This has had a tremendous influence at the highest political and

legal levels evidenced in particular by the stance of the Australian Labor Party (ALP)

governments of Bob Hawke and Paul Keating (1983–1996) and the High Court of

Australia. Indeed, such have been the implications of the new narrative that Rosemary

Hunter (1996: 1–16) argues that major (albeit largely symbolic) changes such as the

High Court’s June 1992 Mabo No.2 decision would have been inconceivable without

their historical meta-narratives, which were so compelling that the High Court was

forced to abandon its old legal narrative. This is strikingly evident, for example,

in Justice Deane and Gaudron’s contention that a ‘conflagration of oppression and

conflict … spread across the entire continent to dispossess, degrade and devastate the

Aboriginal peoples and to leave a national legacy of unutterable shame’. Similarly,

it was the theme of Keating’s speech made to launch the International Year of the

World’s Indigenous People, in which he states that ‘there is nothing to fear or to lose

in the recognition of historical truth’ (reproduced in Keating, 2000).

The retrieved critical past has the power to disrupt the contemporary political

order. The Mabo decision significantly changed the moral and political map of

Australian ‘settlement’. The decision in effect ruled that Australia is morally

illegitimate to the extent that it is founded on European denial of the continent’s

12 Henry Reynolds’ most recent book (1999) is about his personal journey towards

the realisation that he had grown up, as had many other generations of Australians, with a

distorted and idealised version of the past based on the myth of peaceful settlement.

Reconciliation and Colonial Power106

prior ownership by indigenous people. As Reynolds points out, “it is not just a matter

of attaching Aboriginal history to the back left hand corner of the old homestead

… the changes will ultimately have to be far more radical – a new floor perhaps,

even new foundations’ (in Attwood 1996: xv). In this context, Howard’s call for a

return to an ‘heroic’ or ‘benign’ history can be seen as an attempt to re-establish an

unproblematic view of Australia’s past which denies the legitimacy of Aboriginal

political initiatives. Indeed, since Aboriginal people largely rely on the recognition

of their historical dispossession, discrimination and exclusion as the foundation of

their present political demands, the characterisation of the British invasion and the

dispossession of the Aborigines as a mere ‘blemish’ (The Age, 11 July and Howard,

2000: 90) on the nation’s history has serious consequences. In particular, as Mark

McKenna (1998: 75) points out, in the current climate the use of the ‘black armband’

label assists the Government argument that the stolen generation should not be

compensated. It also assists the Government argument that they do not deserve and

official apology.

HREOC recommended that the first step in healing for the victims of violations

of human rights must be the acknowledgement of the truth, and has recommended

that all Australian Parliaments, churches and other relevant agencies ‘acknowledge

the responsibility of their predecessors for the past policies and practices of forcible

removal’ (HREOC, 1997: 284–292). Further, the HREOC maintains that an apology

to Aboriginal people would constitute the appropriate gesture of comprehensive

acknowledgement (ibid.). State governments, churches, mission societies, city and

shire councils have all apologised; not for genocide as such, but for the forcible

removal of children. The Victorian Magistrates’ Court has offered a formal apology

for the injustices of the past (ABC News, 2000). The ALP has pledged an apology

on return to office (Shadow Minister for Aboriginal Affairs, 1998).

There remain just two jurisdictions in which the Parliament has not apologised;

the Northern Territory (NT) and the Commonwealth. The former has stated that

separation policies were implemented by the Commonwealth Government prior

to NT self-government and that it cannot therefore be accountable for the laws,

policies and practices leading to the removal of children from their families. The

latter has issued a motion expressing ‘its deep and sincere regret that indigenous

Australians suffered injustices under the practices of past generations’ (Howard,

1999). It steadfastly refuses, however, to issue a public apology, stating that non-

Aboriginal Australians cannot take upon themselves the burden or responsibility of

previous generations’ wrongdoing (Howard, 1997). What we have here is a wilful

lack of appreciation of the role of the perpetrator state in a reconciliation process.

Acknowledgement in this context is not about personal guilt or responsibility it is

about institutional culpability in the eyes of the victims.

In his address to Corroboree 2000, Dr Mick Dodson (2000), Chairperson of the

Australian Institute of Aboriginal and Torres Strait Islander Studies Unit, stated that,

‘the fixation with one man’s incapacity to say sorry will forever distract us from lasting

reconciliation’. Yet it would be fair to say that Aborigines in general rate the Stolen

Generations as one of the most serious issues in their lives, and for a large majority of

Aboriginal agencies and organisations there can be no reconciliation until this matter

is fully acknowledged through an apology and due compensation paid. Indeed, in its

Reconciliation and the ‘Stolen Generations’ 107

submission to the Senate Legal and Constitutional References Committee Inquiry

into the Stolen Generation, the Aboriginal and Torres Strait Islander Commission

(ATSIC) asserted that, ‘the matter of apology is inextricably linked to the process

of reconciliation between indigenous and non-indigenous Australians’ (ATSIC,

2000: 7). Similarly, sociologist Nicholas Tavuchis (1991) stresses the sociological

importance of apology as a prelude to any kind of meaningful reconciliation.

The normative importance of apology is evidenced by the international acceptance

of apology as a reconciliatory medium. Indeed, the refusal of the Federal Government

to properly traverse the past and to apologise for policies and practices of forcible

removal is contrary to a world-wide trend. Increasingly, governments across the globe

are scrutinising the practices of their predecessors and seeking to make amends.

In January 1998, for example, the Canadian Federal Government (1998) released

Gathering Strength, its response to the five volume report of the Royal Commission

on Aboriginal People (RCAP). It includes a Statement of Reconciliation, in which

the Government acknowledges the injustices of the past and offers an apology to

the Aboriginal people of Canada. In particular, the statement offers an apology for

the role of the government in the development and administration of the residential

school system.13 It is estimated that approximately 100,000 indigenous children were

placed in residential schools, the avowed purpose of which was to house children

away from their families and culture and to achieve their assimilation into white

society. The RCAP has revealed that widespread sexual, physical and emotional

abuse occurred within these institutions, which was for the most part hidden, ignored

or denied. The parallels with Australia are clear, although in the Australian case

reuniting was never intended and once the children were removed the administrators

of the system envisaged finality.

13 For information on the residential school system see ‘Looking Forward, Looking

Back’, Chapter 10, Royal Commission on Aboriginal Peoples, see Canada (1996).

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Chapter 6

Reconciliation and Non-Indigenous

Australians: The CAR and the

‘People’s Movement’

In the late 1980s politicians cited the ignorance of the general populace as one of

the main reasons for favouring a reconciliation initiative with a strong ‘educational’

remit over a formal treaty. This chapter evaluates the CAR’s impact upon the

attitudes of non-indigenous Australians. In particular it examines the CAR’s claim

that the enduring legacy of its educational approach is an unstoppable ‘people’s

movement for reconciliation’. When one considers the qualitative and quantitative

social research conducted on behalf of the CAR, however, it becomes clear that the

CAR has had little impact on the attitudes of non-indigenous Australians and that

broad support is only present when reconciliation is defined without reference to key

indigenous aspirations to land and redress for the Stolen Generations.

Reconciliation as Education

Section 6 of the enabling legislation (CARA 1991) sets out the broad functions of the

Council for Aboriginal Reconciliation as:

to undertake initiatives for the purpose of promoting reconciliation between

Aboriginal and Torres Strait Islanders and the wider Australian community,

focusing in particular on the local community level; and

to promote, by leadership, education and discussion, a deeper understanding

by all Australians of the history, cultures, past dispossession and continuing

disadvantage of Aboriginal and Torres Strait Islanders and of the need to

redress that disadvantage; and

to foster an ongoing national commitment to co-operate to address Aboriginal

and Torres Strait Islander disadvantage; and

to provide a forum for discussion by all Australians of issues relating to

reconciliation and of policies to be adopted by governments; and

to consult Aboriginal and Torres Strait Islanders and the wider Australian

community on whether reconciliation would be advanced by a formal

document or formal documents of reconciliation and to report such views to

the Minister and to make recommendations to the Minister on the nature and

content of, and manner of giving effect to, such a document or documents

(CARA 1991: s6).

•

•

•

•

•

Reconciliation and Colonial Power110

The CAR had an agenda setting role in that it advised the Minister on policies to

promote reconciliation, undertook local level discussion and education initiatives

and canvassed opinion on the desirability of a document of reconciliation. Broadly

speaking, it guided and oversaw the Australian reconciliation process.

One of the concessions achieved by the Coalition during the cross-party

discussions leading up to the CARA 1991 was the inclusion of strict accountability

clauses in the legislation intended to keep the CAR ‘goal-oriented’ (see Tickner,

2001: 37). This was a response to a growing perception of endemic corruption and

the chronic ‘misuse of funds’ within Aboriginal Affairs. It was therefore considered

necessary for the CAR to be ‘openly accountable to Parliament’. The accountability

clauses called for strategic plans to be prepared for each triennium of the CAR’s life

and for such plans to be approved by the Minister and laid before each House of the

Parliament.

Initial meetings of the CAR concentrated on the task of strategic planning,

including the adoption of a vision statement (CAR, 1994) reflecting how the CAR

wished to see Australian society in the year 2001:

A united Australia which respects this land of ours; values the Aboriginal and Torres Strait

Islander heritage; and provides justice and equity for all.

It is significant that the vision statement, being the first thing the CAR had to produce,

did not seek to emphasise the importance of addressing Aboriginal disadvantage and

aspirations, as stressed in the preamble of the Act. Rather, the CAR appeared to want

to expand its remit and seek to achieve ‘justice and equity for all’. This wording

did not grow out of some benevolent utopian inspiration; rather, it was the product

of a CAR that needed to balance indigenous and non-indigenous interests and thus

sought to begin the process in the spirit of ‘formal equality’. Indeed, after considering

an entirely indigenous CAR, the Keating government eventually decided on a 25-

person CAR consisting of businessmen, government employees, academics and high

profile self-appointed indigenous ‘leaders’, most of the latter having a background

in the churches.

The CAR’s formal equality slant contrasts starkly with ‘victim group’ oriented

Treaty campaign of the late 1980s from which the reconciliation process emerged.

From the outset CAR rhetoric had broad focus that sought to include, what it termed,

‘wider society’ wherever possible. Unlike other reconciliation processes, South

Africa’s TRC for example, official Australian reconciliation focused far less on the

needs of the victims and more on the educational needs of the de facto perpetrators.

Reconciliation had to take place in the hearts and minds of all Australians, and through

people working together to change communities, workplaces, sectors and organisations

around the country (CAR, 2000: Communications Strategy, my emphasis).

Unlike the original Treaty campaign the main focus for the CAR was educating non-

indigenous Australian society. The thrust of the CAR’s education communication

strategy can be found in the first triennial plan of May 1992 (CAR, 1992). The

Strategic Plan articulated eight issues central to reconciliation:

Reconciliation and Non-Indigenous Australians 111

a greater understanding of the importance of land and sea in Aboriginal and

Torres Strait Islander society;

better relationships between Aboriginal and Torres Strait Islander Australians

and the wider community;

recognition that Aboriginal and Torres Strait Islander culture and heritage are

a valued part of the Australian heritage;

a sense for all Australians of a shared ownership of their history,

a greater awareness of the causes of disadvantage that prevent Aboriginal

and Torres Strait Islander peoples from achieving fair and proper standards in

health, housing, employment and education;

a greater community response to addressing the underlying causes that

currently give rise to the unacceptably high levels of custody for Aboriginal

and Torres Strait Islander peoples;

greater opportunity for Aboriginal and Torres Strait Islander peoples to control

their destinies; and

agreement on whether the process of reconciliation would be advanced by a

document of reconciliation’ (CAR, 1991).

The CAR saw the process of reconciliation as ‘one of raising awareness, facilitating

change, and stimulating action to redress past wrongs through all sectors of Australian

society’ (ibid.). It envisioned a ‘bottom up’ process where significant change would

filter through existing structures once non-indigenous society had been sufficiently

educated in indigenous issues. This was a far cry from the restitution, compensation

and acknowledgment demands made by the Treaty campaign from which the

reconciliation process eventually emerged.

The main vehicle for the CAR’s educational approach was the establishment

of a grass-roots network entitled ‘Australians for Reconciliation’ to promote

reconciliation at a local level.1 ‘Australians for Reconciliation’ (AFR) was launched in

December 1993. Through this network involving local councils, community groups,

service clubs, churches, a variety of ethnic groups, conservation organisations and

individuals, people were encouraged to take practical and concrete steps to improve

community relations (ibid.).

Coordinators, working under contract to the Department of the Prime Minister and

Cabinet, were appointed in all States and Territories to manage regional community

education programs. AFR coordinators would strategically disseminate information,

support study circles, State Reconciliation Committees, local reconciliation groups

and foster the development of local and regional reconciliation agreements. The

local networking activities centred on two types of groups: learning circles and

reconciliation groups. The learning circle groups were generally seen as a precursor

to the establishment of a full reconciliation group which would then engage in

1 It has to be noted here that one of the main reasons for the CAR’s reliance (and

perhaps emphasis) on local level voluntary work was its pitifully small budget of AUS $4

million per annum (for full budgetary details see any of the CAR’s annual reports cited in the

bibliography). The result was that over the course of ten years the CAR instigated only two

national reconciliation conferences.

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Reconciliation and Colonial Power112

practical community initiatives. The CAR developed resource ‘toolkits’ (e.g.

‘Working Together – a kit to help you work for change’, see CAR, 2000b) for these

groups which contained briefings on Aboriginal history, current issues, examples of

case studies and practical suggestions for the conduct of meetings.

The resource kits continued the CAR’s ‘inclusionary’ message, emphasising

strongly the need for local partnerships.

Local Reconciliation Groups are important to carrying forward the

reconciliation movement because they can stimulate useful actions and

reconciliation activities in local communities. They acknowledge that each

community has its own history, local dynamics, unique concerns, people,

ways of working, assets, needs and problems. They recognise that local-level

transformation often happens when people meet each other, build relationships

and work together. They help build the partnerships with other community

groups that are vital to achieving social justice at the local level. In the end,

each local group will find its own way to build dialogue and commitment to

reconciliation. But there are precedents, principles, ideas and examples to learn

from and build on. This Toolkit is about sharing some of these experiences

and learnings (sic) (CAR, 2000b, my emphasis).

The CAR suggested that local reconciliation groups engage in activities such as:

Opening avenues for indigenous involvement in schools and other community

organisations.

Holding organisations accountable and questioning responses that are not

appropriate.

Working with local authorities to stimulate local reconciliation agreements

and other long-term action.

Hosting public events that enable indigenous people to tell their stories.

Helping to rebut myths.

Helping to change negative media images.

Working with indigenous people to prepare articles for newspaper

publication.

Encouraging schools to teach inclusive history (ibid.).

In 1996 the CAR began to plan a national Reconciliation Convention to raise the

profile of the process and to enable a broad cross-section of Australians to review

progress towards reconciliation and to plan an agenda for the CAR’s final three-year

term (CAR, 2000b). The preparations for the conference involved over a hundred

lead-up meetings across the country that were facilitated by the existence of around

twenty established local reconciliation groups.

Over 1800 people participated in the Australian Reconciliation Convention

(hereafter, the Convention), while 10,000 people attended the local lead-up meetings

across the country (ibid.). The interest in the local Reconciliation Convention ‘lead-

up’ meetings was such that the CAR began to talk of the emergence of a ‘people’s

movement’. It is important to note here that when the CAR displayed leadership,

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Reconciliation and Non-Indigenous Australians 113

by organising and convening local meetings around the country, participation was

strong (10,000 people). This contrasts starkly with the levels of involvement when

people were left to their own devices. Indeed, before the Convention only 20 LRG’s

were registered nationwide (ibid.).

The national Convention was attended by CAR members, prominent politicians,

including the Prime Minister, and international guests from Canada, the USA and

South Africa. Given the costs of the event, however, indigenous participation was

severely limited. The CAR deflected this obvious criticism by maintaining that the

views of local Aboriginal groups were canvassed as part of the local lead-up meetings

process. Over three days, more than 160 prominent speakers worked together

with participants to explore the Conventions key themes: reconciliation in the

community; human rights and indigenous Australians; documents of reconciliation

and constitutional issues.

The Convention boasted a host of prominent constitutional lawyers, political

scientists and indigenous scholars, who all, to varying degrees, discussed the

relevance to reconciliation of key indigenous aspirations to land and self-

determination. Moreover, given the run up to the convention was dominated by

the government’s high profile stance on the Wik case and the Stolen Generations

report, those issues were bound to feature strongly in the speeches and focus

groups. Yet the Convention’s final ‘Motion of Reconciliation’ fails to mention such

issues. Rather the motion vaguely asserts that reconciliation ‘can only be achieved

through a people’s movement’ (ibid.). The only demand made of governments was

the recommendation that all governments issue an apology for past practices. The

Motion of Reconciliation stated:

We, the participants at this convention, affirm to all the people of this nation: that

reconciliation between Australia’s indigenous peoples and other Australians is central to

the renewal of this nation as a harmonious and just society which lives out its national

ethos of a fair go for all; and that until we achieve such reconciliation, this nation will

remain diminished. We further declare that reconciliation and the renewal of the nation

can be achieved only through a people’s movement which obtains the commitment of

Australians in all their diversity to make reconciliation a living reality in their communities,

workplaces, institutions, organisations and in all expressions of our common citizenship.

This convention has been a profoundly moving experience for all of us privileged to

take part, and has renewed the spirit and determination of all participants to carry on

their work for reconciliation. The commitment and the spirit we have all witnessed here

demonstrates that the principles and values of reconciliation have become embedded in

the hearts and minds of many Australians. This convention has put reconciliation firmly

at the centre of the national political agenda. Despite the airing of differences on specific

issues, the convention also witnessed some profoundly unifying statements from political

and community leaders who all affirmed support for reconciliation and found common

ground in recognising some requirements of reconciliation. These included coming to

terms with our intertwining histories, better human relationships, and the addressing of

disadvantage. We note that leaders across the social spectrum expressed their own personal

apologies and sorrow for the treatment of indigenous peoples; this was itself an historic

moment. We call on all parliaments, local governments, organisations and institutions to

follow this lead with their own form of apology so that we can all move forward together

to share responsibility for the future of this nation. We call on our fellow Australians to

Reconciliation and Colonial Power114

join together across this land to build a people’s movement for reconciliation of sufficient

breadth and power to guarantee that Australia can truly celebrate the centenary of its

nationhood in 2001 confident that it has established a sound foundation for reconciliation.

We commit ourselves to leave this gathering determined to work with all those prepared

to join us in this movement. We call on all Australians not to stand on the sidelines but

to demonstrate a commitment to reconciliation by becoming personally involved in

reconciliation activities in their neighbourhood, their communities, and their workplace.

This will ensure that Australians can walk together beyond the centenary of Federation

into the next millennium towards the vision of: A united Australia which respects this land

of ours; values the Aboriginal and Torres Strait Islander heritage; and provides justice and

equity for all (CAR, 1997, my emphasis).

The motion is indicative of the CAR’s overall approach to reconciliation. Seemingly

propelled by a concern to have broad appeal, the CAR avoided making any demands

on governments that would possibly alienate non-indigenous people, particularly

the Anglo-Celtic settler population. Especially since, in the aftermath of Wik and

the publication of Bringing Them Home, the Convention gained significant media

coverage. The CAR’s uncontroversial evasive strategy appeared to work as there

was a significant increase in local level support for ‘reconciliation’ (albeit undefined

or deconstructed) after the Convention. Between July 1997 and June 1998 it is

estimated that the number of local ‘Australians for Reconciliation’ groups increased

from about 20 to more than 260 (ibid.). After the Convention the CAR (ibid.) reported

an increase in the volume of requests for information ‘about becoming involved in

working for reconciliation’ and suggested that it indicated ‘broadly based popular

recognition of and support for the process’.

LRG activities, endorsed by the CAR, tended to focus on undertaking symbolic

reconciliatory gestures. For example, many groups persuaded councils to fly

Aboriginal and Torres Strait Islander flags outside their offices (CAR, 1997). The

municipalities of Banyule, Whitehorse, Manningham and Nillumbik in Melbourne’s

eastern suburbs joined with local Aboriginal communities to develop a statement

of commitment supporting the principles of justice and equity for Indigenous

Australians, acknowledging Aboriginal prior occupation of the region and Indigenous

culture and heritage (CAR, 1997). Perhaps the two most prominent local groups,

however, focussed on gaining local and national support for substantive measures

to address specific problems and were not instigated with the aid of the CAR’s LRG

‘toolkits’. Unlike the CAR, these groups positively promoted specific causes they

saw as crucial to a genuine reconciliation process.

One such initiative emerged in response to the Howard government’s proposed

amendments to the Native Title Act 1993.2 The ‘Sea of Hands’ was originally

conceived in 1997 by Australians for Native Title and Reconciliation (ANTAR) as a

creative way of symbolising opposition to the Federal Government’s Ten Point Plan

proposals. The Sea of Hands was preceded by a petition, the Citizen’s Statement

on Native Title, which quickly attracted thousands of signatories. Being somewhat

pessimistic about a favourable response from the government, the organisers sought

a way of producing a more effective and lasting result. The idea of a field of hands in

2 The Ten Point Plan discussed in the previous chapter.

Reconciliation and Non-Indigenous Australians 115

rows was conceived, like the white crosses of war cemeteries (Australians for Native

Title and Reconciliation, 2003).

The first Sea of Hands was held on the 12 October 1997. 70,000 coloured plastic

hands, each one carrying one signature from the Citizen’s Statement, were installed

in front of Parliament House in Canberra (ibid.). Six weeks later the Sea of Hands

returned to Parliament House, this time with 120,000 hands, to launch a blueprint

for a coexistence approach to native title. The popularity of the first Sea of Hands in

Canberra was such that over 500 volunteers turned up before work on the day of the

second event to help plant the hands. The anti-Ten Point Plan blueprint launched that

day, ‘Six Steps to Coexistence’, was endorsed by all the major opposition parties and

representatives from national organisations (ibid.).

Although the Howard government’s amendments to the Native Title Act were

subsequently passed in 1998, the Sea of Hands has continued as an ongoing project.

It has become an integral part of the protest activities of those who seek justice for

indigenous Australians.3 A guiding principle for use of the Sea of Hands has been

to help make space for Indigenous people themselves to articulate their aspirations

to non-indigenous Australians (ibid.). Many prominent Indigenous leaders and

individuals4 have spoken at Sea of Hands events.

Equally significant, however, is the encouragement the Sea of Hands has provided

to indigenous people at the local level. Local reconciliation events featuring smaller

Sea of Hands displays have been held throughout Australia. With such actions the

organisers hope to encourage non-indigenous recognition of indigenous communities

and help to build new relationships based on mutual understanding and respect

(ibid.). To date over two and a half million hands have been planted in hundreds of

locations around Australia and internationally (ibid.). I was one of the volunteers at

the Sea of Hands’ UK debut during ‘Australia Week’ (to celebrate the centenary of

Federation) in 2000. The hands were planted in Russell Square, London as a protest

at the NTAA 1998 to coincide with John Howard’s visit during the week.

The other high profile specific issue national campaign to have emerged from

a local network initiative is the ‘Journey of Healing’, which focuses on the Stolen

Generations. The Bringing Them Home (BTH) report tabled in the Federal Parliament

on 26 May, 1997 recommended that a national ‘Sorry Day’ be held each year by way

of acknowledgement and commemoration. Former Prime Minister, Malcolm Fraser,

prominent indigenous spokesperson Lowitja O’Donaghue and other members of the

Stolen Generations from New South Wales and Australian Capitol Territory formed

the National Sorry Day Committee (NSDC), which held the first national Sorry Day

exactly one year after BTH reported. Over half a million people responded, signing

3 I have formed this view after attending several Sea of Hands events and speaking with

numerous ANTAR members and spokespersons. The Sea of Hands has also been adopted

as a symbol of protest of the European branch of ANTAR called the European Network for

Indigenous Australian Rights (ENIAR).

4 Including the ‘Father of Reconciliation’, Pat Dodson, Geoff Clark, Mick Dodson,

Lowitja O’Donohue, Evelyn Scott, Aden Ridgeway, Peter Yu, Gladys Typingoompa,

Manduwuy Yunipingu, Jimmy Little, Linda Burney and many others (ibid.).

Reconciliation and Colonial Power116

Sorry Books and taking part in ceremonies on Sorry Day. In May 1999, the NSDC

launched a new initiative: the ‘Journey of Healing’.

The co-chair of the National Sorry Day Committee, Carol Kendall, who was

removed from her parents as a child, adopted a similar approach to the CAR when she

described the initiative as being about ‘recognition, commitment and unity … the name

Sorry Day is being replaced with ‘Journey of Healing’ (JoH) in an attempt to make it

less painful for the Stolen Generations and to render the message more palatable to

other Australians who may think ‘sorry’ means apologising for something they did

not do (Sydney Morning Herald, 6 May 1999). The patron of the new day, Lowitja

O’Donoghue said: ‘Let’s try to move on ... Some of the people who are nervous about

the whole process ought to be able to take this journey with us’ (ibid.).

While their moderate language and desire not to offend the sensibilities of non-

indigenous Australians may be in keeping with the CAR’s rhetoric, the Journey of

Healing has campaigned quite vigorously on behalf of the Stolen Generations over

the years. Its supporters come from all backgrounds and it has enjoyed significant

political influence. A major lobbying focus for the JoH is the Howard government’s

failure to implement the 54 recommendations of BTH, the Stolen Generations

report. A particularly imaginative and important protest occurred during the events

surrounding the CAR’s Corroboree 2000 conference.

There were two threads to Corroboree 2000. The Conference was held over two

days with the first day being set aside for the official launch of the CAR’s draft

Document of Reconciliation, while the second day’s activities concentrated on a

‘People’s Walk for Reconciliation’ across Sydney Harbour Bridge. Corroboree 2000

was one of the major reconciliation events I attended while researching this book and

I very grateful to be invited to walk across the bridge with the Journey of Healing.

At 7.00 am on a cold Sydney winter morning I met the JoH secretary, John Bond,

a few hundred yards from where the walk would begin. After a warm greeting I was

quickly set to task. ‘Can you staple these 54 wooden poles to the accompanying

placards?’ he asked, pointing to a huge pile of banners resting against the rear wall

of McDonalds. He explained their intention was to walk across the bridge with 54

members of the Stolen Generations each carrying a banner to represent all of the

BTH report’s recommendations yet to be implemented by the Howard government.

Well before the walk was scheduled to start it became obvious that it was

going to be a huge event. There was a constant flow of people pouring out of trains

and busses from 7.00 am, even though the walk was not scheduled to start until

10.00 am. The vast majority of people appeared to be non-indigenous. When the

walk was underway, the members of the Stolen Generations walking with us were

clearly overwhelmed by the numbers of non-indigenous people taking part. More

specifically they were encouraged by the number of people repeatedly chanting ‘say

sorry Howard!’ The lack of official apology for the Stolen Generations was, by my

estimation, perhaps the major focus of the walk’s protest banners.5

Perhaps the most memorable moment of the walk for me was when Lowitja

O’Donaghue (ATSIC chair) and Sir Ronald Wilson (Co-Author of Bringing them

5 The other dominant theme concerns the desirability of a treaty between indigenous

people and the state, which will be discussed in the next chapter.

Reconciliation and Non-Indigenous Australians 117

Home) simultaneously noticed the dramatic gesture of apology that was being

written in the sky (Figure 6.1). Both were moved to tears, as were many of the others

in our group.

The ‘People’s Walk for Reconciliation’ officially attracted just over 250,000

people (CAR, 2001). The CAR heralded the walk as a massive demonstration of

an unstoppable People’s Movement for Reconciliation (CAR, 2001). There is little

doubt in my mind, as a participant, that the walk had much to commend it, some

aspects of which will be discussed in the next chapter. Yet, while walking and looking

around at the banners, I found myself wondering ‘how many people would have

walked in support of reconciliation if the CAR’s rhetoric and educational strategy

had been more specifically focused on indigenous aspirations and redress for historic

injustice, including rights to land and political autonomy?’

Indeed, I was left with the overwhelming impression that the CAR’s lack of focus

on key indigenous aspirations facilitated such large numbers of people to ‘walk for

reconciliation’, but I remained unconvinced that such numbers would have ‘walked

for indigenous land rights and self-determination’. Throughout the CAR’s term

it commissioned social research to investigate societal attitudes to reconciliation.

The CAR suggested that the reports subsequently ‘informed its policies’, yet the

implications of the reports were rarely discussed or disseminated publicly. The

next section discusses the findings of the social research which tend to confirm the

Figure 6.1 ‘Sorry in the Sky’

Reconciliation and Colonial Power118

impressions I was left with after the bridge walk. The reports demonstrate widespread

support for reconciliation between indigenous and non-indigenous Australians but

this disintegrates when reconciliation is linked with specific issues of justice, such as

land rights and an apology for the Stolen Generations.

CAR Commissioned Social Research

An integral part of the CAR’s mandate involved raising awareness and understanding

of the reconciliation process and its importance to the nation, building positive

community attitudes towards reconciliation and determining whether the process of

reconciliation would be advanced by a document of reconciliation. Central to this

endeavour was the conduct of social research. Since 1991 both qualitative research

and quantitative attitudinal tracking studies were carried out on behalf of the CAR.

In late 1995 and early 1996 Brian Sweeney & Associates was commissioned to

undertake both qualitative and quantitative research. In broad terms their objectives

were to understand spontaneous ‘wider Australian community’ perceptions of

Aboriginal Reconciliation and to understand community knowledge of and attitudes

towards a range of issues relating to indigenous people (Johnson and Brian Sweeney

& Associates 1996).

The 1996 survey found that 51 per cent of Australians have heard about

Aboriginal reconciliation. Awareness of reconciliation was highest in the following

subgroups: males generally, over 45 year olds (males and females), the tertiary

educated, and residents of the Northern Territory and the ACT (ibid.). The previous

tracking research showed that awareness climbed sharply during 1993, two years

into the CAR’s life, but since then it has plateaued (ibid.). In mid-1996 48 per cent

of Australians registered strong support for the concept of reconciliation; overall 83

per cent supported reconciliation to some degree (ibid.).

In 1999–2000 three further sets of social research gauged the public’s reaction to

the reconciliation process as a whole and more specifically to CAR’s draft document.

The first two surveys comprised a qualitative component conducted by Saulwick

and Associates involving focus groups and in-depth interviews, and a quantitative

component conducted by Newspoll Market Research which polled 1,300 people.

In attempting to gauge attitudes to the reconciliation process, the Newspoll

(2000) survey first sought to focus on certain matters that underpin the concept.

Particularly interesting were community attitudes to ‘equality and disadvantage’ and

‘the link between the past and the present’. The Newspoll (2000: 8) survey found

that although there is universal community support for the notion of ‘equal rights

and opportunities’, opinions as to whether Aboriginal people are above or below the

‘equality line’ varied. 41 per cent of the community considered Aboriginal people a

disadvantaged group, while 52 per cent did not. However, 52 per cent believed that

in terms of living conditions, Aboriginal people are generally worse off than other

Australians. By way of tentative explanation of this point the Newspoll researchers

referred to the qualitative research, which ‘suggests the attitude that Aboriginal

people are not disadvantaged can stem from a belief that, in one way or another, they

receive ‘special treatment’ which cuts across the grain of ‘equality’’ (ibid.).

Reconciliation and Non-Indigenous Australians 119

Newspoll found that around 60 per cent of respondents believed that Aboriginal

people get too much ‘special government assistance’ and around 70 per cent believed

that Aboriginal people do not do enough to help themselves. They also found a

widespread perception that little has been achieved with previous efforts to assist

Aboriginal people. Consequently about 8-in-10 Australians supported the idea that:

‘The nation should help Aboriginal people become more financially independent

and self-reliant’ (ibid.). The majority of people were more inclined to say Aboriginal

people have themselves to blame for any disadvantage they may experience, as

opposed to putting the blame on past mistreatment. The researchers (Newspoll,

2000: 10) suggested that this finding:

should be tempered with the fact that the premise ‘past injustice = cause of disadvantage’, is

a very complex one. As noted in the qualitative research report, ‘there is little understanding

of the possible psychological or social effects on a people of the undermining of their

culture by a dominant culture’. Perhaps the most appropriate way to view the finding

is that either because of the complexity of the premise, or other attitudes, a majority of

Australians do not believe there is a link between current disadvantage and the past.

Such attitudes pose significant problems for a reconciliation process that was founded

on the need to address the legacy of historic injustice. The attitudes would also pose

problems for a process that seeks to adhere to the reconciliation paradigm which

emphasises the centrality of apology, acknowledgement and appropriate redress

measures. When Newspoll (ibid.) asked about the need for an apology 40 per cent

agreed but 57 per cent disagreed that ‘On behalf of the community, governments

should apologise to Aboriginal people for what’s happened in the past’. Moreover

around 60 per cent felt that ‘Australians today weren’t responsible for what happened

in the past, so today’s governments should not have to apologise for it’. Almost 8-in-

10 agreed that ‘Everyone should stop talking about the way Aboriginal people were

treated in the past, and just get on with the future’.

Thus, the Newspoll report concluded that ‘although a majority are in agreement

with the notion of formally recognising the past, the majority are not prepared to

apologise for it – ‘why should we, we didn’t do it’ (ibid.). It was also apparent that,

‘as found in the qualitative research, there is a desire in the community for a sense of

closure or resolution, and to get on with the future’ (ibid.).

The Saulwick and Associates (2000) qualitative study that complimented

the Newspoll quantitative survey was based on a series of fourteen focus group

discussions conducted throughout the country from December 7, 1999 to January 13,

2000 and on 23 depth interviews with leading citizens in ‘high contact’ areas during

the same period. Concerning the attitudes of the non-indigenous community towards

Aboriginal people they reported that people with less than 50 per cent Aboriginal

lineage were not considered ‘real’ Aborigines (ibid: 8).

The interviewees claimed that many such people have been brought up on

welfare (many for two or three generations), that they expect it, do nothing to help

themselves, and fail to take responsibility for themselves. The researchers found

that ‘people generally see these Aboriginal people as living off society and they

resent this’ (ibid.). They resented their taxes supporting people who will not help

themselves and felt that Aboriginal people are getting special privileges which others

Reconciliation and Colonial Power120

were not. Overall there was the feeling that Aborigines, or people who choose to call

themselves Aborigines, ‘abuse’ the system (ibid.).

The Saulwick and Associates (2000) interviewees argued that Australia is a

free and democratic society in which all people should be treated equally. They

argued that Aborigines, and those who call themselves Aborigines, get preferential

treatment: ‘they get special money’, ‘they are treated, even if they are drunk in a park,

better than non-Aborigines are treated’ (ibid: 8). The report concluded that in this

context people see the treatment of Aborigines as offending against the egalitarian

ethic (2000: 9). The crux of the matter seemed to be the widespread acceptance of

several self-centred assumptions: First, an ahistorical approach to justice. Second,

an individualistic, even libertarian view of the world and of human nature. Third, a

tendency to apportion personal blame to indigenous people for not being successful

in an imposed social order.

Such a position has significant implications for the notion of indigenous land

rights. Indeed, the qualitative study found that Aboriginal demands on land, or the

possibility of such demands, ‘worried people’. The report surmised that the concern

seemed to arise from a number of sources:

people on rural properties think that their tenure may be disturbed,

many do not know of the definition of identification with the land which the

courts have made, and feel insecure as a consequence of their ignorance,

some feel that excessive demands are, or will be, made which have little basis

but which will nonetheless be pursued,

many feel that Aboriginal leaders will make claims so that they will be in a

position to negotiate on mineral royalties from the land claimed (ibid: 9).

The land rights issue was just another incident where people felt that Aboriginal

people were being treated ‘as special’. The researchers (Saulwick and Associates,

2000: 10) summarised the position thus:

As a result of this cluster of attitudes, many people say that all Australians should come

together as one people and that there should be no apologies, and Aboriginal people should

not continue to receive special help as they believe that this is both unfair and tends to

perpetuate a culture of dependency.

Since 1995 the CAR had been working on the final part of its legislative mandate:

consultations on the suitability of a document of reconciliation. This requirement

was a concession to the original Treaty movement to which the reconciliation process

was a political response.6 The CAR had already undertaken some consultations on

the form and content of the Document and had produced a draft text. In keeping

with the CAR’s preferred uncontroversial and evasive approach to materials that

were nationally disseminated, the document was moderate in the extreme. Yet, when

Saulwick and Associates focused on attitudes toward the somewhat sickly Draft

Declaration of Reconciliation the results further demonstrated a distinct failure to

6 There was no legislative requirement, however, for any particular type of document.

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Reconciliation and Non-Indigenous Australians 121

empathise on the part of non-indigenous Australians. It further seemed that it was an

intentional failure grounded in an ahistorical approach to justice.

Taking the Draft paragraph by paragraph, the researchers reported the

following:

Draft Declaration paragraph 1: Speaking with one voice, we the people of Australia, of

many origins as we are, make a commitment to go on together recognising the gift of one

another’s presence.

Saulwick and Associates (2000: 75) reported: this was uncontroversial. People particularly

liked the reference to ‘our many origins’ and the idea of speaking with one voice.

Draft Declaration paragraph 2: We value the unique status of Aboriginal and Torres Strait

Islander peoples as the original owners and custodians of traditional lands and waters.

The researchers, Saulwick and Associates (ibid.), reported: People question the use of

the word ‘unique’, saying everyone is unique in some way, and why should Aboriginal

and Torres Strait Islander people be singled out again. The reference to ownership of land

alarmed many people, who said it would be used as a springboard for land claims.

Draft Declaration paragraph 3: We respect and recognise continuing customary laws,

beliefs and traditions.

The researchers (ibid: 76) reported: Some people especially women who have worked

closely with Aboriginal communities in northern Australia say that some customary laws,

especially as they relate to young girls, are barbaric and would be totally unacceptable

to the wider Australian community. Others saw it as divisive, indicating one law for

Aboriginal Australians and another for non-Aboriginal Australians.

Draft Declaration Paragraph 4: And through the land and its first people, we may taste this

spirituality and rejoice in its grandeur.

This was basically uncontroversial (see ibid.).

Draft Declaration paragraph 5: We acknowledge this land was colonised without the

consent of the original inhabitants.

Saulwick and Associates reported this as ‘very controversial’. The majority of people

rejected it, saying no one knows for sure whether consent was obtained, and that in some

cases it probably was.

Draft Declaration paragraph 6: Our nation must have the courage to own the truth, to heal

the wounds of its past so that we can move on together at peace with ourselves.

According to the researchers (ibid.) this was perhaps the most popular statement in the

entire Draft. In particular, people are ready to move on together at peace with ourselves.

People also agree that we must have the courage to own the truth. In the light of their

objections to other passages in the Draft, however, the question arises: whose truth?

Reconciliation and Colonial Power122

Draft Declaration paragraph 7: And so we take this step: as one part of the nation expresses

its sorrow and profoundly regrets the injustices of the past, so the other part accepts the

apology and forgives.

This was reported as being by far the most unpopular statement in the Draft. Not only do

most people feel hostile in principle to the idea of apologising for something they and in

many cases their forebears did not do, but they do not believe that acceptance of any such

apology can be forced. The very formulation of the paragraph ‘one part of the nation . .

. the other part’ they find offensively divisive. Even the few people who are disposed to

apologise do not like that (ibid.).

Draft Declaration paragraph 8: Our new journey then begins. We must learn our shared

history, walk together and grow together to enrich our understanding.

Again, this was very popular. Many respondents say they want to know the truth about

our past, want to acknowledge wrongs committed on both sides, and move on in a unified

way (ibid.).

Draft Declaration paragraph 9: We desire a future where all Australians enjoy equal rights

and share opportunities and responsibilities according to their aspirations.

The report found that people want an end to what they perceive as special treatment for

Aborigines, who they want to see shouldering their responsibilities and thereby being in

a position to share opportunities not according to their aspirations, but according to their

qualifications and merit (ibid.).

Draft Declaration paragraph 10: And so, we pledge ourselves to stop injustice, address

disadvantage and respect the right of Aboriginal and Torres Strait Islander peoples to

determine their own destinies.

Saulwick and Associates (ibid.) reported: people want this statement to apply to all

Australians but they are worried by what ‘determine their own destinies’ might mean. An

extreme (and very much a minority) view is that it means some kind of apartheid. The

wider and more moderate view is that it suggests some kind of self-determination that

would weaken the body politic of Australia.

Draft Declaration paragraph 11: Therefore, we stand proud as a united Australia that

respects this land of ours, values the Aboriginal and Torres Strait Islander heritage, and

provides justice and equity for all.

This was accepted in its entirety and without demur (ibid.).

In summary, the Saulwick and Associates (2000: 75) qualitative study reported that

‘apart from the small minority who accepted the concept and the words without

demur, our respondents had strong and mostly negative views about the content of

the Draft Declaration’. Taken as a whole, they concluded that the Draft was seen

as divisive and backward-looking; based only on the Aboriginal perspective and

requiring a series of concessions from non-Aboriginal Australians without any

corresponding ‘give’ by Aboriginal people (ibid.). Moreover, it was considered

a high-risk document which would probably be used as the basis for claims for

Reconciliation and Non-Indigenous Australians 123

land and monetary compensation. All in all the report concluded that ‘there is a

willingness to treat Aboriginal Australians like any other Australians provided they

are prepared to accept our values and play by our rules’ (2000: 5).

The notion of equality and the Australian slogan of a ‘fair go for all’ were

frequently cited throughout all the studies as a reason for resisting ‘special’ rights

and privileges for indigenous peoples. There was little evidence of an understanding

of the difference between ‘formal’ and ‘substantive’ equality. There was no real

appreciation of the necessity, or desirability, of conferring special treatment on a

disadvantaged group in order to attain equality of outcome. Neither did respondents

exhibit any propensity to agree to ‘special’ rights for indigenous peoples based

on a notion of compensatory justice for historic mistreatment and contemporary

dispossession.

In the CAR’s final report to Parliament it concluded that the research it

commissioned ‘presented a mixed picture of community attitudes about reconciliation

and related issues, but strong general support for the process of reconciliation’ (CAR,

2000). Yet, this was a serious misrepresentation. The ‘in principle’ support for the

reconciliation process was contingent on it occurring on non-indigenous terms and

there was widespread disapproval of indigenous land rights, self-determination and

official apology.

Contrary to the CAR, the 1996 Johnson and Brian Sweeney & Associates study

suggested that to assert broad support for reconciliation was problematic. Indeed, they

identified three attitudes that, in their view, act as barriers to a genuine reconciliation

which would not simply ignore key indigenous aspirations. The barriers were fear,

apathy and ignorance:

Mabo has to an extent set the scene for reconciliation by giving it a context, but it has

also heightened concerns about loss of land to indigenous people. These people fear

that reconciliation may open the door to a ‘never-ending succession of claims’ for land

rights or compensation. The barrier of apathy is perhaps most difficult to overcome. It

is highlighted by the attitude ... ‘As a culture, it will self-destruct anyway’. The third

barrier is ignorance. There are those who don’t know and don’t want to know but the

research did uncover a level of genuine confusion and uncertainty about many indigenous

issues, or cultural issues impacting on indigenous people (Johnson and Brian Sweeney &

Associates 1996).

While the notion of ‘a fair go for all’ and a strong egalitarian ethic were frequently

espoused by respondents in all studies, it seems that fear, apathy and ignorance blind

non-indigenous people to the ‘equality’ based justification for ‘special’ rights for

indigenous people. The studies showed that there is a widespread feeling throughout

Australia that Aborigines have been badly treated in the past. Yet, there was little

recognition of, to use Brian Attwood’s (2000: 254) terms, ‘the burden of the past in

the present’. There is a lack of understanding of, and impatience with, indigenous

people who do not conform to non-indigenous norms and who receive welfare funds

on the fringes of small towns. The studies also showed that indigenous interest in

land rights is not widely understood. Most Australians believe that it has a pecuniary

foundation and to accede to it would be to accept double standards, ‘one rule for

Aborigines and one for others’ (Saulwick and Associates, 2000).

Reconciliation and Colonial Power124

It also seemed that most Australians have come to accept a ‘one nation, one

people’ version of multiculturalism and see view the possibility of indigenous self-

determination as threatening this. Most are also convinced that to offer an official

apology for past treatment may well lead to further claims for compensation.

Crucially, most participants viewed Official Reconciliation as an ‘Aboriginal

issue, not as an issue for all Australians’ (see ibid.). People can not see where the

corresponding ‘give’ from Aboriginal people will come from. The expectation of this

exists regardless of the fact that non-indigenous people are predisposed themselves

not to concede anything ‘special’ to Aboriginal people.

It is interesting that such attitudes toward indigenous claims mirror closely the

rhetoric and propaganda that dominated the Mabo, Wik and Stolen Generations

debates. As I have discussed in the previous chapters, a key tactic of commercial

interests and State and Federal governments, was the depiction of indigenous land

claims as contrary to the national interest. It was frequently asserted that native

title was threatening development to crisis levels (see chapters 3 and 4). Deputy

Prime Minister Tim Fischer, among others, also sought to heighten the fear factor by

incorrectly suggesting that native title could threaten residential ‘backyards’.

The notion that Aboriginal people should not get ‘special’ treatment is also a central

rhetorical pillar of current Prime Minister, John Howard’s indigenous affairs policy.

During the Wik debate Howard frequently stated that the ‘pendulum had swung too far

in favour of Aboriginal interests’ and should therefore be brought back into line with the

interests of other Australians. It is also the foundational principle for his government’s

‘practical reconciliation’ policy which seeks to improve service delivery to indigenous

Australians without the need for specific indigenous rights to anything. Underpinning

the ‘practical reconciliation’ agenda is the rhetoric of ‘formal equality’. Howard has

frequently lambasted pro-Aboriginal initiatives as offending the ‘Australian sense of

equality’ and going ‘too far’. He explicitly rejects the notion of ‘special rights’ for

indigenous peoples as ‘inconsistent with citizenship rights’ and inimical to the notion

of equal treatment for all (Howard 1988: 6, 2000: 90).

Howard (1997) has also publicly, and vehemently, rejected calls for an official

apology to the Stolen Generations, arguing that non-Aboriginal Australians cannot

take upon themselves the burden or responsibility of previous generations’ (Howard,

1997) wrongdoing while expressing concern over the possibility of an apology

leading to compensation claims. He later issued a motion expressing ‘deep and

sincere regret that indigenous Australians suffered injustices under the practices of

past generations’ (Howard, 1999).

Howard’s argument mirrors closely the justifications citied by respondents in

the CAR commissioned research. While there are many theories concerning the

relationship between public opinion and government policies, the findings of recent

‘Deliberative Polls’ tend to suggest that when the public is provided with balanced

factually correct information it tends to make balanced informed decisions. The

concept of the Deliberative Poll was developed by Jim Fishkin of the University of

Texas to bridge the gap between focus group research and random sample surveys. It

involves conducting surveys of views on a specific topic before and after ‘informed’

deliberations. This enables gauging of opinion change as a result of balanced

Reconciliation and Non-Indigenous Australians 125

information, discussion, and questions being answered by experts from a diverse

range of perspectives.

Some of the findings of the CAR commissioned research suggested that such a

deliberative approach to reconciliation polling would find fertile ground especially

among non-indigenous Australians. Indeed, Johnson and Brian Sweeney Associates

(1996) found:

a constant curiosity … about the indigenous point of view. ‘What do they want?’ ‘Do

they want Reconciliation?’ ‘I’d like to know the opinion of the ordinary Aborigine’.

Most in the community, however, recognise the prevalence of misinformation and lack

of understanding of the needs and attitudes of both indigenous people and the wider

community ... While these people may not actively seek out answers, they can be expected

to respond to appropriate stimuli and information … They seek a leadership position from

government and call for public education in the form of community consultation and

debate, so that Australians may be truly reconciled.

At the end of its final term the CAR decided to donate some of its final budget to

a non-profit market research company, Issues Deliberation Australia, to organize

and coordinate a national Deliberative Poll on reconciliation.7 The Poll was not

a CAR initiative however. All previous Deliberative Polls provide compelling

evidence that people who have had the opportunity to be informed, to question

competing experts and advocates and to discuss the issues with their peers, think

fundamentally differently and draw different conclusions to those who have not had

such opportunities (Issues Deliberation Australia, 2001: 12).

Citizens participating in the deliberations on reconciliation were surveyed on

their views of reconciliation before and after deliberations. Newspoll and Issues

Deliberation Australia developed the initial survey instrument in consultation with

Professors Jim Fishkin and John Higley at the University of Texas. The instrument

was used in telephone interviews for the national random sample, and as a self-

complete questionnaire for the regional sample. The questions were specifically

designed to assess people’s knowledge and attitudes on issues associated with a

diverse range of aspects of the general topic of reconciliation (ibid: 21).

A national random sample was selected by Newspoll on 21 November 2000

using their normal random sampling techniques.8 Interviewing of this national

random sample was conducted by Newspoll, by telephone, during the third week of

November 2000, about ten weeks prior to attending the weekend of deliberations. At

7 Australia Deliberates on Reconciliation was the twentieth Deliberative Poll® to be

held internationally. There have been six in Great Britain, on topics ranging from Crime and

Punishment and Britain’s Role in Europe, to the Future of the National Health Service. Eleven

have been conducted in the USA, on topics including Welfare and the Family, the Economy,

and The Provision of Energy in Texas. See http://www.i-d-a.com.au .

8 They used a stratified random sampling process which included: a quota for each capital

city and non-capital city area; random selection of household telephone numbers drawn from

current telephone listings for each area code in Australia; and random selection of an individual

in each household by a ‘last birthday’ screening question. To reflect the population distribution,

these data were weighted by gender, age and geographic area (ibid: 21).

Reconciliation and Colonial Power126

the conclusion of the interview, all 1220 people interviewed were invited to attend

an expenses-paid weekend in Canberra on 16–18 February 2001.

Prior to attending the National Deliberation in Canberra, all participants were

sent a briefing document. The briefing document, compiled with the aid of prominent

historians, social scientists and journalists, aimed to provide participants with a

balanced synopsis of reconciliation – its history and future direction, thus providing

participants with background for the discussions (ibid.).

In addition to the national survey of non-indigenous peoples, a team of researchers

convened focus groups and conducted surveys with indigenous Australians in

every state and territory. The research culminated in a national Deliberative Poll

on 16–18 February 2001 involving 344 ‘Representative Australians’9 and 46

‘Regional Australians’10 who had completed the initial surveys. Over the weekend

the participants were able to question experts, advocates and community leaders on

a variety of aspects of the reconciliation dialogue, and to debate their own personal

views with their peers.

The Deliberative Poll produced a very significant shift in opinion on major

reconciliation issues. Perception of reconciliation as an important issue facing the

nation rose dramatically from 31 per cent (31 per cent)11 prior to deliberations to 60

per cent (63 per cent) following deliberations (ibid: 44). Perception of disadvantage

of indigenous Australians in relation to other Australians rose dramatically: from

52 per cent (51 per cent) prior to deliberation to 80 per cent (82 per cent) post

deliberation (ibid: 45). Levels of political knowledge in relation to indigenous

issues, government services and political leaders also rose substantially, with gains

in knowledge ranging from 11(9) to 50 (52) percentage points depending on the item

(ibid: 54). Correlating significantly with changes in perceptions of the importance of

the issue, changes in perceptions of levels of indigenous disadvantage and increases

in levels of political knowledge, were levels of support for a range of national

initiatives: formal acknowledgement that Australia was occupied without consent of

indigenous Australians: 68 per cent (67 per cent) to 81 per cent (82 per cent) (ibid:

48); formal acknowledgement that indigenous Australians were the original owners

of the land and waters: 73 per cent (74 per cent) to 81 per cent (82 per cent) (ibid.);

an apology to the Stolen Generation: 46 per cent (45 per cent) to 68 per cent (70 per

cent) (ibid: 49).

In contrast, support for some initiatives remained relatively unchanged before

and after deliberations: a treaty or set of agreements between indigenous and non-

indigenous Australians; allocation of special seats in parliament for indigenous

Australians. Where support increased for other initiatives, such as land rights and

compensation to the Stolen Generation, support was based on specific conditions,

9 Defined as an Australian citizen, randomly selected from the white pages of the

Australian telephone directory who agreed to attend (ibid: 5).

10 Defined as an Australian of Aboriginal and Torres Strait Islander decent who attended

on of the regional deliberations (ibid.).

11 First percentages quoted are those controlled for indigenous participation in group

discussion, sample size =240, percentages in parentheses are those for the complete national

random sample of 344 (ibid: 42).

Reconciliation and Non-Indigenous Australians 127

such as proof of historical/cultural links with the land,12 and proof of physical,

emotional, financial and cultural deprivation as a result of removal.

One of the most striking aspects of the results from the national survey of the

general population of Australians, was that an intensified perception of the degree

of indigenous disadvantage correlated highly with the tendency to agree to an

official government apology, a treaty, native title, an integrated legal system and

compensation to the Stolen Generation (see ibid: 43). A further point of interest

was that prior to deliberations, Coalition and ALP supporters were starkly different

(see ibid: 44). Comprehensive weighing of opposing arguments, however, tended

to negate that political divide, with post-deliberation opinions converging on key

aspects of reconciliation.

The report concluded that regardless of these ‘political affiliation gaps’, the

informed voice, as measured by exposure to various expert opinions, of a representative

sample of the general population was a far less divided and ambivalent a voice

than the pre-deliberation uninformed voice. In general, informed Representative

Australians revised their perceptions of how important the issue of reconciliation is

to the nation, and how disadvantaged indigenous Australians are in comparison to

their non-indigenous counterparts (ibid: 58).

Non-Indigenous Australia and the Role of the CAR

In the midst of the Treaty campaign in the 1980s, a Senate Standing Committee

published a report entitled Two Hundred Years Later which concluded that societal

‘attitudes’ lay at the heart of the ‘Aboriginal problem’. It stated:

There will need to be a continuing and extended education program occurring in the non-

Aboriginal community so that, by the time a compact (a diluted term for a treaty) is

ready to be concluded, a valuable process of healing and understanding between both

communities will have taken place. Perhaps the fundamental task in this process will be

to create an attitudinal change, generated by discussion, consultation and negotiations’

(Senate Standing Committee, 1983: 256).

From its publication onwards the ‘attitudinal change’ theme became increasingly

popular in political speeches that began to emphasise, in vague terms, the importance

of education, attitudinal change and reconciliation. The emergence of education and

attitudinal change as policy initiatives in political speeches coincided with a shift

away from the treaty idea towards a ‘reconciliation’ initiative that made no firm

commitments to address any of the treaty movement’s key priorities.

As we have seen, while the reconciliation minister at the time, Robert Tickner

(2001: 29), steadfastly asserted that ‘there can be no reconciliation without justice’,

the need for cross-party consensus made sure that ‘education’ for the non-indigenous

rather than ‘justice’ for the indigenous emerged as the dominant theme of the process.

Indeed, the original title for the official reconciliation body was to be the ‘Council

for Aboriginal Reconciliation and Justice’, but the ‘and Justice’ was viewed by the

12 Interestingly, this is a lesser standard than that imposed by the High Court in Mabo.

Reconciliation and Colonial Power128

Prime Ministers’ advisors as excessive and was subsequently axed from the final

version (ibid.).

A primary duty of the CAR’s was the promotion, by leadership, education and

discussion, of a deeper understanding by all Australians of the history, cultures,

past dispossession and continuing disadvantage of Australia’s indigenous people

(CARA 1991: s.6). At the end of the CAR’s term support for the broad concept of

reconciliation had plateaued, while the commissioned research had demonstrated a

strong resistance to ‘special’ indigenous rights to land and self-determination and to

an apology and compensation for the Stolen Generations. The research suggested

that after ten years of reconciliation non-indigenous Australians were still largely

ignorant of the nuances of the ‘Aboriginal problem’. There was no real appreciation

of the burden of the past in the present, of Aboriginal disadvantage, of the legacy of

dispossession and of the quite appalling effects of cultural erosion. It seemed that

the reconciliation process had made no progress in ‘educating wider society’ about

indigenous issues, which was the basis on which the process was sold to the treaty

campaigners at its outset.

While the size of the CAR’s budget was no doubt a significant hindrance (around

AUS$4 million per annum),13 one has to question the CAR’s ‘inclusive’ strategy.

By seeking to appeal to a broad base of Australian societal opinion it effectively

gave equal weight the un-informed ignorant attitudes of non-indigenous people that

were well documented by the CAR commissioned social research. Consequently,

Aboriginal aspirations were either non-existent or toned down and softened when

listed in nationally disseminated CAR documents. For example, the Motion for

Reconciliation released by the CAR after the Reconciliation Convention in 1997,

failed to reflect any of the debates and discussion, particularly on land rights and the

Stolen Generations, that occurred during the Convention. The CAR commissioned

social research found a demonstrable lack of support for ‘special’ indigenous rights,

which would not have been helped by CAR rhetoric (justice for all etc) that persistently

lacked any real focus on key indigenous aspirations to land, self-determination and

redress and apology for the Stolen Generations. Given the strength of the public

relations campaign waged by mining companies, farmers and Coalition politicians

against native title, it is not surprising that the CAR’s warm and inoffensive rhetoric

failed to offset the negative aspects of such a campaign on the attitudes of non-

indigenous Australians.

The CAR’s vague inoffensive and unchallenging approach was perhaps to be

expected given that the key leaders of the Treaty movement, Michael Mansell, Kevin

Gilbert and Paul Coe were not invited by the Keating government to be indigenous

representatives on the CAR. The government preferred to appoint moderate indigenous

‘spokespersons’ most of whom were state bureaucrats and/or church ministers who

had lost all connection with their local indigenous communities. The rest of the CAR

consisted of liberal academics and mining and farming industry executives.

The CAR’s effectiveness in performing its educational leadership remit must

surely be questioned especially when one considers the findings of the research

13 The Howard government reduced this amount by AUS$1 million on gaining office in

a broad reduction of the Aboriginal affairs budget, see CAR 1997.

Reconciliation and Non-Indigenous Australians 129

it commissioned. Back in 1996, Brian Sweeney and Associates research found ‘a

constant curiosity … about the indigenous point of view’ while recognising the

prevalence of misinformation. The researchers reported that the respondents sought

a positive leadership position and could be expected to respond to appropriate stimuli

and information (Brian Sweeney and Associates, 1996). They did not report that they

must be cajoled and sheltered from considering key indigenous issues, such as land

rights and redress for the Stolen Generations.

The findings of the Deliberative Poll demonstrate what can be achieved with

leadership and balanced information. Issues Deliberation Australia managed a

dramatic increase in support for reconciliation even when the concept was inextricably

linked to key indigenous aspirations. The CAR, however, sought to gloss over, rather

than confront, substantial societal resistance to key indigenous aspirations by merely

asserting that it had achieved ‘widespread support for reconciliation’ (CAR, 2000).

On the back of the Sydney Harbour Bridge walk it was thus possible for the CAR

to claim that the ‘People’s Movement’ for reconciliation was unstoppable and that it

was its ‘enduring contribution’ (CAR, 2000).

In essence the CAR’s education strategy relied on the vague hope that people, at

the local level, would educate themselves with the aid of reconciliation ‘Toolkits’.

Much of the CAR’s money was spent on consultants14 who prepared detailed policy

documents that considered the myriad of issues involved in indigenous affairs but

which did not influence CAR rhetoric. To be sure the consultancy papers are available

to the public, but their findings, which occasionally emphasized the importance of

land rights and meaningful self-determination, did not permeate any of the CAR’s

nationally disseminated documents. Moreover, many of the LRG representatives I

met expressed feelings of impotence and bitterness largely due to lack of funds which

were being channelled elsewhere. Indeed, one ACT LRG member told me that

once we have digested the CAR’s toolkit and come up with our own action plan, there is

no financial support available to spread the word further. The CAR spends all that money

on ‘expert’ opinion that just sits on their website and when local people, who they always

say are crucial to the process, want to really do something there is no money or backing

(author interview 10/9/01).

The success of groups like ANTAR and the JoH has been largely down to the hard

work (often voluntary) and dedication of key individuals in attracting support from

sympathetic organizations and lobbying others. They were not born out of an LRG or

learning circle, nor did they receive financial assistance from the CAR. Furthermore,

their organizers suggested that their success can also be attributed to a sharp focus on

issues of real importance to indigenous peoples.15 Such an approach enabled them to

focus their energies and resources on a specific issue rather than vaguely promoting

‘reconciliation initiatives’ which would usually only result in a symbolic gesture of

some kind.

14 For example in 1994–5 out of a total expenditure of AUS$ 4,353, 927, AUS$ 2,874,

146 was spent on professional consultants (CAR, 1996: 2). This proportion was replicated up

until the Council’s final year – see the Council annual reports cited in the bibliography.

15 Information drawn from author interviews.

Reconciliation and Colonial Power130

It seems that for the CAR to have made a real impact on the ‘attitudes’ of the

majority of non-indigenous Australians it would have needed far more significant

financial backing and a far greater focus on the indigenous voice rather than high

priced consultants that frequently drained over half of the CAR’s annual budget. It

was meant to spend ten years educating non-indigenous Australians about Aboriginal

issues, yet from the outset its presentations were more concerned with focusing on

the needs of ‘all Australians’. The findings of the Deliberative Poll demonstrate that

informed discussion of the issues that go to the heart of the reconciliation debate is

far more likely to impact favourably upon public opinion than the CAR’s avoidance

strategy.

In some ways it could be argued that by giving equal weight, at all times, to the

opinions of ‘other’ Australians, the CAR will have increased an expectation that

Aboriginal people need to make yet further concessions to achieve reconciliation.

To be sure, there is nothing wrong with canvassing ‘other’ Australians equally. The

problem comes in giving equal weight to their opinions. The reconciliation paradigm

is founded on the premise that historical and present injustices have to be officially

acknowledged by the perpetrators, their ancestors or official state representatives.

If these injustices are broadly recognised as facts, and facts pertinent to the current

situation of indigenous people, then giving equal weight to the often ignorant

and racist views of ‘other’ Australians is completely at odds with the principle of

reconciliation in this context. For the non-indigenous there is nothing to reconcile.

Such an approach by the CAR could only have hindered the quest to change the

attitudes of the non-indigenous towards accepting the legitimacy, and necessity, for

indigenous rights to land and redress for injustices.

Chapter 7

Indigenous People and Australian

Reconciliation

The preamble to the reconciliation legislation stated that the ‘dispossession and

dispersal’ of indigenous people from their traditional lands by the British Crown

necessitated ‘a formal process of reconciliation between Aboriginal and Torres

Strait Islanders and other Australians’ (CARA 1991: Preamble). This rationale gave

the strong impression that indigenous peoples would be the focus of Australian

reconciliation, yet as I discussed in the previous chapter the CAR gave the interests

and opinions of non-indigenous people equal weight in its policy initiatives. This

chapter, however, focuses solely on indigenous views of the process. It includes

the opinions of indigenous community leaders, who assert that ‘there can be no

reconciliation without justice that recognises Aboriginal sovereignty’, and the

views of members of the Stolen Generation and the influential ‘Journey of Healing’

reconciliation organisation. It goes on to discuss the major reconciliation conferences

and the marginalisation of those indigenous representatives who were more critical

of reconciliation and shows that many indigenous people consider the reconciliation

process to have been just another empty gesture.

Initial Dismay

There shall be a treaty negotiated between the Aboriginal people and the Government of

Australia. We would expect and hope and work for the conclusion of such a treaty before

the end of the life of this Parliament. Prime Minister Bob Hawke at the Barunga festival

on 12th June 1988. (Hawke, 1988)

The pinnacle of the campaign for a treaty in the 1980s was the presentation, by a

coalition of indigenous groups, of the Barunga Statement. The Statement detailed

Aboriginal demands for a treaty that would recognise ‘prior ownership, continued

occupation and sovereignty’ while affirming ‘indigenous human rights and freedom’

(reproduced in Moores, 1995: 332). It further called for ‘permanent control and

enjoyment of ancestral lands and compensation for the loss of our lands, there having

been no extinction of original title’ (ibid.).

Speaking at the Barunga meeting Aboriginal Elder Wenten Rubunjta said:

Today there are lots of people living in this country. People from all over the world. But

we don’t call them foreigners. We don’t ask, ‘Where is your country? Where is your father

from?’ They have been born here. Their mother’s blood is in this country … this is their

country too now. So all of us have to live together. We have to share this country. And

Reconciliation and Colonial Power132

this means respecting each others laws and culture. We have to work out a way of sharing

this country, but there has to be an understanding of and respect of our culture, our law.

Hopefully that is what this treaty will mean (ibid.).

At the same meeting Galarrwuy Yunupingu, Chairman of the Northern Land Council

stated:

What we want from a treaty is the creation of a just and mature society which black and

white Australians can enjoy together. A treaty which recognises our rights and status will

provide the basis for building a society in which people live in mutual respect. To those

who say they support the concept of ‘One Australia’ I can only say that I agree. There

should be one Australia and we should be part of it. But our part should be on our terms. A

treaty will wipe out injustice and address the wrongs of today, which can be traced to the

wrongs of the past. It will put us on the right track for the future. It will create an Australia

we can all share in pride. It will mean, in 2088 and 2188 and all other 88s, all Australians

celebrating their achievement. (in Duke 1995: 285)

As we know, despite the hopes of Galarrwuy Yunupingu and the promises of Prime

Minister Hawke, the treaty never came. Instead the Commonwealth government

instigated the reconciliation process to consider, among other issues, whether or

not the Australian community as a whole desires a document or documents of

reconciliation. Yet, the process made no firm commitment to the negotiation of

a treaty. Fuelled by Hawke’s promise, many indigenous people at the time were

dismayed at the political slide from a treaty to a somewhat desultory reconciliation

process. Aboriginal activist Jim Everett asked ‘is the Commonwealth offering

a serious intention of having a treaty with the aboriginal people or are they just

offering a handshake to be friends? (ibid: 283). While Kevin Gilbert, one of the

treaty campaign organisers, stated:

We have to look at the word ‘reconciliation’. What are we to reconcile ourselves to? To a

holocaust, to massacre, to the removal of us from our land, from the taking of our land?

The reconciliation process can achieve nothing because it does not at the end of the day

promise justice. It does not promise a Treaty and it does not promise reparation for the

taking away of our lives, our lands and of our economic and political base. Unless it can

return these very vital things, unless it can return to us an economic, a political and a

viable land base, what have we? A handshake? A symbolic dance? An exchange of leaves

or feathers or something like that? (1993: 2)

Gilbert remained extremely sceptical of the reconciliation process right up until

his death in late 1993. Many Elders and community leaders from outside the

Aboriginal ‘establishment’ shared the same scepticism. In particular many of the

leaders involved with the treaty campaigns who were also members of the recently

formed independent Aboriginal Provisional Government (APG), people like Paul

Coe, Michael Mansell and Michael Anderson, felt they had seen it all before.1 The

process seemed to promise warm sentiment but little substance.

1 For a summary of their early views on reconciliation see Moores, 1995.

Indigenous People and Australian Reconciliation 133

As discussed in chapter 3, however, a year into Official Reconciliation the Mabo

case appeared to offer indigenous people hope of land rights and compensation for

dispossession. While many APG members were dismayed at the Keating government’s

response, the mainstream national ‘leadership’ of government employed bureaucrats

remained hopeful that the Native Title Act 1993 and the ‘Social Justice’ package

would provide a significant land base for indigenous people. At that early stage of

Official Reconciliation there was a noticeable divide between those ‘leaders’ that

were in the employ of the government, either in the CAR or ATSIC, and the activists

and Elders who had campaigned for a treaty in the 1980s (some of whom had now

formed the APG as we saw in Chapter 3) and still enjoyed the support of their local

communities.

The main point of difference for these two camps concerned the issue of

indigenous sovereignty. The government appointed ‘leaders’ almost never mentioned

the word, preferring to emphasise the importance of land rights and social justice

to the notion of reconciliation, while Gilbert, Anderson, Mansell and Coe viewed

sovereignty as central to the struggle for justice and quite possibly at odds with the

concept of reconciliation. Shortly before the reconciliation process began Mansell

and Coe initiated the APG to act as a national body to campaign for recognition

of Aboriginal sovereignty and right to self-determination. In one of the first APG

(1992: 306) discussion papers, they expressed deep concern over the role of the

CAR for Aboriginal Reconciliation with regard to indigenous interests.

There has been no opportunity for Aboriginal communities to rationally consider ways out

of our predicament. Who is in a position to encourage such discussion, even if motivated

to do so? Not local organizations, who are overwhelmed by delivery of services to keep

our communities alive, and then besieged by the bureaucracy of ATSIC when seeking

the finances so necessary for their efforts. They are not suited to take on the national

tasks. True, there are national Aboriginal organizations, but they are specialist groups,

and necessarily so given the daunting tasks they have before them. The Council of

Reconciliation will not do it, given its stated aims are to encourage Aborigines and whites

to say hello to each other in the streets, and to allay the mining and pastoralists’ fears about

‘reckless’ claims that Aborigines have rights to land throughout Australia. One shudders at

the thought of unleashing this body as our saviours.

The APG further highlighted the vagueness of reconciliation. In contrast to the idea of

negotiating a treaty, which would provide a legal basis for compensation, recognition

of sovereignty and self-determination, the reconciliation process promised nothing.

Dogging the government’s new approach is the criticism that the whole process is so

vague as to be meaningless and that it will simply result in a waste of taxpayers’ funds.

This only further exposes Aborigines to the racist but oft-stated view that we are over-

privileged. Instead of Aborigines standing to gain from the process, we may well find

ourselves resented even more by whites, through no fault of our own. Nobody really

knows what is meant to happen when the process of reconciliation is complete. Is there

meant to be a social policy document capable of being implemented by governments?

If so, how could that possibly be better than the 339 recommendations of the Black

Deaths in Custody Commission, under consideration by state and federal governments

now for several months? And if the Council is meant to enquire into the circumstances

Reconciliation and Colonial Power134

of Aborigines, has that not already been done, over and over again? This is not good

enough. Aboriginal people have a right to be told why they should patiently await the

outcome of the reconciliation process, while still suffering because of government neglect

to bring on more immediate change. By failing to come clean on this, the government will

continue to frustrate Aboriginal people by raising expectations without any intention of

satisfying them. This will be particularly important when the Council does its rounds of

Aboriginal communities, if it intends to do so. Without guidelines on what sorts of issues

the government expects to be raised, Aborigines will have no idea what to ask for. ‘We

want a four-wheel drive, 3 houses and meat for our dogs’ would be an understandable

response because the government has failed to explain what the Council can do (ibid.).

In the first half of the CAR’s life it set about articulating its vision for reconciliation. It

had of course no power to do anything other than recommend policy to the Minister,

but in this regard it was immensely successful in developing a huge quantity of

written material (at large expense) that sought to elucidate a comprehensive set of

strategies for reconciliation. Apart from instigating some meetings of indigenous

groups during the Native Title Act 1993 ‘consultations’, in its first five years the

CAR did little other than develop its policy documents, with the help of outside

consultants and expensive ‘experts’.2 To be fair it also offered, on occasion, moderate

commentary on indigenous issues in the national media, while encouraging the

development of a ‘people’s movement for reconciliation’ through its support for local

reconciliation groups. It was not until 1997, however, that it held its first national

level Reconciliation Convention.

Indigenous People and the Reconciliation Conventions

The CAR convened the Convention to ‘enable a broad cross-section of Australians

to review progress so far in the reconciliation process and to plan an agenda of

achievable goals for the final three-year term of the CAR, due to end on 1 January

2001, the centenary of Federation’ (Chairman’s speech: Dodson, 1997). The CAR

had originally planned for 1,000 participants; but nearly 2,000 overflowed the venue

and hundreds more could not be accommodated (ibid.). In his opening speech the

CAR chair, Patrick Dodson, emphasised that while the event had limited space the

10,000 people who attended the 100 preliminary meetings across Australia were an

integral part of the convention itself. According to the CAR, the data collected from

such meetings were incorporated into its final triennial plan. Yet, as discussed in the

previous chapter, these meetings were reliant on existing community interest and

goodwill and rarely much indigenous input.3 Processing opinions from such meetings

could not be considered as canvassing a broad base of indigenous opinion.

2 During my research I spoke to several disgruntled former Council employees who

were dismayed at the amount of money that was spent on such ‘experts’ as opposed to

spending money on visits to remote communities and run down urban ‘settlements’ to speak

to Aboriginal people face to face. An extract from one such interview was discussed in the

previous chapter.

3 I have attended many such local meetings in ACT and NSW where there have been no

indigenous people present at all.

Indigenous People and Australian Reconciliation 135

In the Convention itself the only community Elders present were those who also

belonged to Land Councils who could afford the participation costs and while some

of the old treaty campaigners also managed to raise the admission fees, neither of

them were invited to make speeches on the main podia. Indeed, their participation

was restricted to the low-profile seminar ‘workshops’. The main proceedings were

dominated by the government employed high profile indigenous ‘leaders’. This

marginalisation of local community Elders and activists facilitated the exclusion of

their ideas and opinions from the Convention ‘outcomes’ report.

APG national secretary, Michael Mansell (1997), who was confined to the

‘seminar workshops’, described a divide between indigenous ‘pragmatists’ and

‘ideologists’. In essence, their disagreement concerns the implications for self-

determination of the sovereignty issue. The pragmatic view is stated by former

ATSIC chair Lois O’Donoghue, speaking at the United Nations Working Group on

the then Draft Declaration she said:

If the right to self-determination were qualified in any way ... futures for Indigenous peoples

would be qualified, futures would be denied. I believe we cannot qualify this concept to

exclude separate sovereignty because it, too, may give expression to self-determination to

some Indigenous peoples. In Australia this is not likely to be a practical solution yet it is

not a future I would like to see denied to others (in Mansell, 1997, my emphasis).

The ‘principled overseas’/’pragmatic at home’ line is the approach favoured by

mainstream indigenous spokespersons. Little energy is spent discussing creative

ways of recognising indigenous sovereignty in Australia. That more ideological

task is usually taken up at the margins of national debate by people like Michael

Mansell (Secretary: APG), Michael Anderson (Sovereign Union of Aboriginal

Peoples of Australia) and Paul Coe (APG), all of whom were involved in the original

campaign for a treaty yet never spoke on the main stage of a national reconciliation

event. To be sure, the sovereignty issue is sometimes discussed by more prominent

representatives such as Geoff Clark (ATSIC) and Peter Yu (Kimberly Land Council)

but, like Mansell and co, neither man was given a centre stage platform at the first

major convention in 1997. Indeed, in national reconciliation events that attracted

significant media attention the pragmatists were usually given centre stage while the

ideologists were either not invited or marginalised as much as possible.

The ‘ideologists’ contributions to the Reconciliation Convention 1997 took place

in the workshop seminars not in the main hall and their views did not permeate

the CAR’s Convention ‘outcomes’ report. Yet their papers all offered concrete

suggestions for the future of the reconciliation process which, according to the CAR,

was the central purpose of the Convention. Below are samples of the views expressed

by such delegates. They constitute a powerful critique of the imposed settler state

system and of the trajectory of Australian reconciliation, which might have been one

of the reasons why the CAR confined them to the workshops.

A common thread of their contributions is the link between land rights, self-

determination and sovereignty. ATSIC chairman Geoff Clark (1997) began his paper

by taking issue with the Convention’s ‘Self-Determination Session Speaking Notes’,

prepared in advance by the CAR:

Reconciliation and Colonial Power136

I note that the speaking notes for this seminar outline the Australian Reconciliation

Convention’s position. It states: ‘The Australian Reconciliation Convention supports

recognition of indigenous peoples rights to self-determination within the rule of law, in

control of their own destiny, in pursuit of their cultural identity.’ It further seeks to qualify

self-determination in the Australian context (my emphasis).

‘Within the rule of law’ is essentially a euphemism for ‘within the settler state

system’. In other documents the CAR prefers the term ‘within the life of the nation’

for the same purpose. Clark (1997) went on to draw the links between the indigenous

sovereignty argument and self determination:

We have never consented to European rule, or law. We have never determined that you

govern us. Who can show me what individual or group of Aboriginal people ever signed a

set of documents where we surrendered our rights? ... The question I pose for you is who

needs whose consent at this Convention? ... Australia has repeatedly stressed the point

that the right of self-determination does not equate to the right of secession. However, I

believe that where there is a gross and systematic abuse of the human rights of a group of

people, a case for secession may be made. For example, this Government’s reaction and

planned response to the Wik decision may legally dispossess indigenous people, 200 years

after the original, illegal dispossession … What other group could so easily be singled out

and asked to give up their property rights with hardly a murmur of protest? It’s an outrage.

Who would blame us if we were to decide to develop independently of white Australia?

Self-determination is our right, and it should not be qualified. It should not be defined to

exclude the possibility of secession, because limiting rights perpetrates the existence of

two classes of people. Perhaps indigenous people need to have that debate, even if we

ultimately decide that it is not a practical option. The point is that we may choose not to

become an independent nation; the choice is not pre-determined for us.

Another indigenous speaker confined to the workshops was John Ah Kit who sought

to use his unique position as one of only two indigenous members of government to

launch a critique, based on the sovereignty argument, of the CAR’s recommendations

for special indigenous seats in the national parliament. Thus, it is worth quoting this

contribution at length:

the most crucial flaw in the argument for reserved seats (is) the way in which it breaches

the independence and sovereignty of indigenous Australian nations. In my situation, as the

Member for the seat of Arnhem and spokesperson on Aboriginal Affairs. I try to represent

and advance the interest of my constituents, most of whom are Aboriginal – or that of

indigenous Territorians generally. However, I cannot ‘speak for country’. I cannot usurp

this role for the traditional owners and elders of the country. I would not choose to do so,

nor would it be tolerated if I tried. Nor am I able to subvert the sovereign right of those

indigenous groups to maintain their cultures and religions or, for that matter, interfere with

groups such as those moving towards economic independence. For example, economic

independence is the stated aim of the Jawoyn people – much of whose country lies in

the seat I represent. While I try and represent the Jawoyn, I do not speak for them: nor

could I interfere with the sovereign right of the Jawoyn to directly negotiate with the

Commonwealth or Northern Territory governments. Indeed, I am well aware the Jawoyn

Nation does negotiate directly with both these arms of government. Neither government

says to them, ‘Oh well you should talk to your local member of parliament, or to ATSIC.

Indigenous People and Australian Reconciliation 137

Whether they are aware of it in these terms or not, these governments accept the sovereign

rights of the Jawoyn to negotiate directly with them. It is highly implausible that the

Jawoyn would be satisfied with anything less than this.

The justification for the invasion of this country 209 years ago rested, until the 1992

Mabo decision, on the fiction of terra nullius. The High Court overturned this legal fiction

and acknowledged that customary forms of land tenure had, in many parts of Australia,

survived along with the Common Law of the invaders. The High Court deliberately

stopped short of acknowledging Indigenous sovereignty, but it nevertheless signalled to

the general public something that indigenous Australians have known about their country

since the first days of the invasion: that this always was, and always will be, Aboriginal

land. And, in acknowledging the historical fact of invasion, the High Court also signalled

the reason why we, as indigenous Australians, should not settle for reserved or dedicated

seats in the parliaments of the Commonwealth and its states and territories. Such reserved

or dedicated seats would become an excuse for not negotiating directly with the Indigenous

nations of Australia. The existence of such seats would directly attack our rights as

sovereign nations to deal with the Australian national government – the Crown as it is still

known in non-Republican Australian – as equal partners. It goes back to a fundamental

aspect of Aboriginal Law: you cannot speak for or make decisions over someone else’s

country and, quite simply, dedicated or reserved parliamentary seats would not be able to

subvert this Law. The reason for this is that traditional land ownership and Aboriginal Law

is not amenable to simple majoritarian democracy (Ah Kit, 1997).

Other indigenous speakers, also confined to the seminars, highlighted the

interconnectedness of key indigenous issues. In the Convention session on

‘Documents of Reconciliation and Constitutional Issues’, Executive Director of the

Kimberly Land Council, Peter Yu (1997), emphasised the importance of native title

and redress for the Stolen Generations and linked both issues to the claim for self-

determination.

I think most Australians have forgotten what native title is all about – the essence of the so

called native title debate today is more about real people and their human rights. Native

Title is about community. It’s about family, it is about country and it is, most fundamentally

of all, about our rights as indigenous people. As we all know, the Government last night

tabled the Stolen Generations Report. For me, the Stolen Children inquiry and the Native

Title are inseparable. Both are about our rights to self determination. Sadly they are

both also about a failure on the part of the current Government and its leaders to meet

indigenous aspirations with grace, dignity and generosity. It seems a life time ago that I

sat with hundreds of other Traditional Owners of the Kimberley region in the shadows

of the towering King Leopold Ranges celebrating the Mabo judgement – the first of a

number of similar celebrations over the next few years. But all of this excitement about

the possibilities for new relationships between Aboriginal and non-Aboriginal Australians

has now changed to grim determination to resist a return to the lie of terra nullius. The

(UN) Draft Declaration of the Rights of Indigenous Peoples says that indigenous peoples

have the right of self-determination. That right should provide us with the capacity to

freely determine our political status and to freely pursue our economic, social and cultural

development. Yet for many indigenous people in Australia, our lives are still dominated

by a centralist colonial regime operating from Canberra and the various capital cities (Yu,

1997).

Reconciliation and Colonial Power138

In another minor seminar session Galarrwuy Yunipingu, a Yolngu Elder and Chair of

the Northern Land Council, launched a scathing attack on what was then Howard’s

Ten Point Plan (which later became the NTAA 1998 as discussed in Chapter 4). He

said:

I have called the PM’s 10 point plan, ‘the last drink at the poisoned waterhole’, because

what he is trying to do will kill off our customary law and culture. Without our rights

to land, we will be like a dry leaf dropped from a tree, floating down the river with no

direction, no home, no future. Mr Howard wants to cut us off from our roots and leave

us like parasites around the edges of the cities and towns of Australia, living on compo,

grieving for our land. Last week in Timber Creek, over 130 members of the Northern,

Central and Kimberley Land Councils met together to work on our response to Mr

Howard. We did it in the blackfella way, not the whitefella way. The only lawyers were

our traditional law people. We had ceremony and burned the government’s plan to show

our strength and purpose. It is our duty to protect our rights and our law. We will do this

firstly by seeking to make people understand exactly what is going on. Native title is not

a piece of paper or words in a book. It is our living Aboriginal culture. It is our songs and

our dances, painted on our bodies and written in the sand. It is our law which has been

unchanged for thousands of years. If it is taken away, then we have lost everything. And

Australia has lost its last chance for reconciliation (Yunupingu, 1997).

In both the Convention closing address and the follow up report from the CAR, such

critical contributions from indigenous spokespersons were effectively ignored. The

CAR appointed Convention Rapporteur, Father Frank Brennan, a well known liberal

commentator, highlighted the less contentious contributions made by the usual

high-profile indigenous ‘leaders’ and their distinguished international guests, rather

than discuss some of the creative suggestions propagated by the less well known

indigenous delegates. ‘Prompted by Noel Pearson’, the high-profile indigenous

Australian Democrat Senator, Brennan took ‘as the markers for (his) final reflection

the eight signposts’ for reconciliation suggested by Governor General Sir William

Deane (Brennan, 1997).

Sir William’s contribution vaguely adhered to the international reconciliation

paradigm, in that he called for acknowledgement and redress for historic injustice so

as to ‘move forward’, but when it came to the practical application of Sir Williams’s

approach Brennan made sure to continue the colonial tradition of telling indigenous

people how their rights should be defined. After an elementary exposition of the

standard precursors to reconciliation, acknowledgement of harm, expressions of

regret, recognition of the need for ‘some’ redress and the like, Brennan arrived at

perhaps the central issue for indigenous people: the issue of self-determination.

While Brennan could not ignore the fact that indigenous delegates had emphasised

the importance, and interconnectedness, of land, sovereignty and self-determination,

with a prescriptive tone he sought to emphasise a restrictive understanding of self-

determination.

The third signpost which was given us by Sir William Deane was the common rejection

of any policy of complete assimilation, and common acceptance of the approach that the

Aborigines have the right to ‘effective choice about the degree to which and the pace at

which’ they are assimilated with, or integrated in, ordinary Australian society, and that the

Indigenous People and Australian Reconciliation 139

primary role of government should be to assist the Aboriginal peoples ‘to achieve their

goals by their own efforts’ (Brennan, 1997).

Unlike the debates he was supposed to be summarising Brennan did not link

recognition of indigenous sovereignty or land rights with self-determination nor

did he discuss the creative possibilities for sovereignty recognition proposed by

delegates like Mansell and Yu. Rather, Brennan outlined the two extreme positions:

the international law perspective on the one hand and succession on the other and

left little doubt as to which one he prefers. To aid his restrictive agenda Brennan,

sought also to draw attention to the relatively small number of indigenous peoples

in Australia.

Hearing the Aboriginal and Torres Strait Islander speakers at this convention, we are in

no doubt that Indigenous Australians are practical and realistic people. It is known that

of course the indigenous population of this country will remain only about two percent.

A minority, but a minority entitled to a special place – a special place in the life of this

nation, a special place in this land and we non-Indigenous Australians owe them that

much … As we look at this vexed issue of self determination, all of us Australians have to

acknowledge that this is about a system of law and order which is not just about the will

of the elected leaders. We are talking about democracy under the rule of law. Democracy

under the rule of law that ensures the special protection of the place of Indigenous

Australians (Brennan, 1997).

The vocabulary Brennan uses serves as a subtle rhetorical device to ensure

indigenous peoples know their place, albeit a ‘special’ one, within the structures of

the settler state. Michael Mansell, in one of the seminar sessions that Brennan, as

the Convention Rapporteur, was supposed to be summarising, drew attention to the

colonial assumptions implicit in such rhetoric.

Another issue … is the question of entitlement. Put bluntly, are Aborigines entitled to

fundamental rights such as self government or self determination or, because they are citizens

of the Australian nation, are those rights necessarily more limited? That answer depends on

the distinction to be drawn between Aboriginal Australians and Australian Aborigines. The

former confines Aboriginal rights by equating them to those of other Australians. The latter

recognises Aborigines as a distinct people, with distinct rights. Those rights are distinctive

because they flow only to indigenous people. Politicians and also some Aboriginal leaders

selectively and quite deliberately choose to describe Aborigines as ‘Aboriginal Australians’.

In doing so, their view of Aboriginal rights is to be limited accordingly. The contest between

the so-called pragmatists and ideologists is not to be ignored. The division has prompted high

profile Aboriginal leader Noel Pearson to somewhat brazenly describe those who campaign

on a higher plain as ‘chest thumping to show the Aboriginal and Islander community its

ideological purity compared to the black pragmatists’. Such criticism is cheap and ignores

the substance of the bigger arguments …

Aborigines have been subjected to policies of dispossession of lands and loss of self

control; our children have been forcefully and deliberately taken from our families and

communities; at all times we have been subjected to the demands of white people; the

courts turned a blind eye to the systematic subjugation of Aboriginal people or worse

often legitimised the process. No, not even blind Freddy would swallow the view that we

Reconciliation and Colonial Power140

have consented all this time to the way we have been treated. From this discussion two

propositions emerge. One, that Aborigines are still pursuing rights of a sovereign people

and two, that so long as the opponents of the push are not able to adequately explain how

it came to pass that Aborigines validly lost our distinct rights, such failure enhances the

legitimacy of the Aboriginal sovereign voice (Mansell, 1997)

Yet, Brennan chose to ignore the need to canvass the sovereign voice of indigenous

nations, preferring instead to follow Sir William Deane’s call for ‘someone who can

speak and act with authority on behalf of the Aboriginal people’ (Brennan, 1997). In

other words, an assimilated indigenous politician who could speak the language of

the coloniser and who ‘white’ Australia could ‘do business with’. The Convention

Rapporteur concluded that the absence of meaningful redress need not delay

reconciliation since it was possible to reconcile ‘notwithstanding that much remained

undone’ (ibid.). In a further attempt at limitation, in summing up he suggested that

‘we have to be specific about what is achievable and go for it’ (ibid., my emphasis).

The implication is that recognition of indigenous sovereignty and genuine self-

determination is unachievable and unrealistic since it would not receive widespread

popular or political support. However, as Michael Mansell (1997) suggested at the

Convention,

that approach begs the questions: are Aboriginal rights and entitlements entirely

dependent on public goodwill of whites? Alternatively, do Indigenous people attract a set

of rights irrespective of public opinion. Public opinion is therefore only relevant to the

accomplishment of that right. If the latter principle applies, ‘contentious’ issues such as

self determination are not subject to popular opinion, but the question of whether that right

is to be included by specific reference in the Constitution is. The lack of public support for

inclusion of self determination (as an example) in the Constitution would mean the broad

public do not support the concept, not that Aborigines are not entitled to it.

With the help of Brennan’s closing address the Convention skirted over the piquant

observations of the more radical indigenous delegates and embraced two so-called

‘achievable outcomes’. First, a ‘Call to the Nation’, which essentially called on all

Australian citizens to work towards ‘reconciliation in the community’ by supporting

the growing ‘people’s movement for reconciliation’. Second, as a step towards

fulfilling the CAR’s legislative mandate, the Convention concluded that a document or

documents of reconciliation was something to aim for by the centenary of federation

in 2001. The Convention ‘outcomes report’ (CAR, 1998) did not, however, offer

guidance on the form or content of such a document, a surprising fact given the

detailed papers and commentary on land rights, sovereignty and self-determination

provided by indigenous delegates at the Convention. Moreover, in spite of the recent

publication of Bringing Them Home, the issue of redress for the Stolen Generations

was entirely overlooked as a future goal of the reconciliation process.

As a Pitjantjatjarra woman put it to me, ‘the Reconciliation Convention was just

another ‘white’-wash. They did not consult Aboriginal people. They were not interested

in hearing our suggestions. Nothing has changed’.4 Given the marginalisation of

4 In conversation with author.

Indigenous People and Australian Reconciliation 141

Elders and community representatives and the eventual Convention outcomes it is

hard to disagree with such a view.

Corroboree 2000

Following the Reconciliation Convention the CAR began its work on the document

of reconciliation. The CAR reported that

participants at the (1997) Convention urged the CAR to produce a document or documents

of reconciliation in time for the centenary of Federation and in the months leading up

to the convention, about 10,000 people attended over 100 meetings around Australia,

and forwarded views and suggestions to the convention itself … These meetings also

overwhelmingly supported proposals for a document or documents of reconciliation

(CAR, 1998).

The CAR further suggested that ‘this goal can only be achieved with the widest

possible involvement of the Australian community’ (ibid.). To this end, the CAR

established a process to ‘enable all interested Australians to have their say about

the form and content of a document’ (ibid.). The process included distribution of

a Draft Document for public discussion and comment with specific nationwide

consultation meetings being held. The process would conclude with consideration

of the responses received by the CAR and presentation of the final document to a

major national event in May 2000.

Yet again however, the CAR developed its Draft Document for Reconciliation

after consultation with ‘prominent people from the Aboriginal, Torres Strait Islander

and wider communities’ (ibid., my emphasis). The Draft was not drawn up via

nationwide consultations with indigenous peoples at the local level or with the input

of the old treaty campaigners such as Michael Anderson (of SUAPNA) or Michael

Mansell and Paul Coe (of APG). The failure to prioritise the victim group in this

context displays a distinct lack of appreciation of the basics of the reconciliation

paradigm. While there is much debate in the practitioner and academic literature

over whether to prioritise truth over justice or vice versa, prioritising the interests

of the de facto perpetrators over the victims is certainly not recommended. This is a

colonial inversion peculiar to Australian reconciliation.

The Draft Document that was eventually circulated nationally did not take an

objective principled stance on the contentious political issues of the day: native title

and the Stolen Generations, both of which had recently suffered at the hands of the

Howard government. Instead, as one Aboriginal person put it, ‘all they did was present

a bad poem to us as a fait accompli. It had no legal force, did not guarantee land

rights or even offer a formal apology to the Stolen Generations. It was a disgrace’ (in

conversation with author 9/9/01). Indeed, the Native Title Amendment Act 1998 and

government’s submission to the Senate Inquiry into the Stolen Generations made no

impact on the Draft Document even though they were of fundamental importance to

Aboriginal people. The CAR merely sought to comment on these issues in its media

releases from time to time.

Reconciliation and Colonial Power142

In a March 1998 press release the CAR stated that ‘indigenous people and many

other Australians see Native Title and the nation’s response to the Stolen Generation

report as touchstones of reconciliation’ (CAR, 1998b). It further stated that ‘Senator

Herron’s submission to a Senate Committee on the Stolen Generation (discussed

in Chapter 5) had greatly harmed reconciliation and expressed its empathy and

support for members of the Stolen Generation and all indigenous people who had

experienced pain and suffering since the release of the submission (ibid.). In the same

press release indigenous Chairwoman, Evelyn Scott, said ‘the greatest challenge

for reconciliation right now is the need to resolve the issue of native title in a fair

and just way. Any resolution which is seen by Indigenous people as taking away

important rights which they have won in the courts will do great damage to the cause

of reconciliation’ (ibid.).

Despite the unequivocally pro-indigenous tone of the CAR in such press releases,

the Draft Document was constructed with a view to accommodating the views

of ‘all Australians’ and consequently skirted around the issues of land rights and

redress for the Stolen Generations. Its language and substance was extremely vague.

After nationwide consultations the final document was strengthened to include an

unequivocal apology to the Stolen Generations. In every other respect, however, it

remained largely unchanged from the CAR produced first draft, which only consulted

‘prominent’ Aboriginal people, such that one wonders how much the CAR actually

responded to the feedback it received.

More fundamentally, however, the Document did not seek to guarantee

indigenous rights. Under Section 6 of the CAR legislation the CAR was responsible

for consulting:

Aboriginal and Torres Strait Islanders and the wider Australian community on

whether reconciliation would be advanced by a formal document or formal

documents of reconciliation; and after that consultation to:

Report to the Minister on the views of Aboriginal and Torres Strait Islanders

and of the wider Australian community as to whether such a document or

documents would benefit the Australian community as a whole, and if the

Council considers there would be such a benefit, to make recommendations to

the Minister on the nature and content of, and manner of giving effect to, such

a document or documents; (CARA 1991, s.6:g,h)

Thus, the Document had to be of benefit to ‘the Australian community as a whole’

and reflect the opinions of ‘wider Australian society’, which in itself made it difficult

for the CAR to adopt an indigenous rights based agenda as CAR commissioned

social research, discussed in the previous chapter, demonstrated that ‘wider society’

regarded indigenous rights as contrary to the Australian egalitarian ethic and

consequently undesirable. Furthermore the CAR could only make recommendations

to the Minister on how to give effect to the Document. In other words after all

the consultations it was nonetheless still up to the government to act. Given the

Howard government’s performance on key issues, such as land rights and redress

for the Stolen Generations, it was highly likely that the government would simply

ignore the document. Indeed, the CAR eventually decided to call the final document

•

•

Indigenous People and Australian Reconciliation 143

the ‘Australian Declaration Towards Reconciliation’ in acknowledgment that the

NTAA 1998 and the Government’s Submission to the Senate Inquiry into the Stolen

Generations had seriously tarnished the chances for reconciliation such that it was

an impossibility by 2001 (CAR, 2000, my emphasis).

The CAR planned one last event before the end of its final term which would

be a showcase for the Document Towards Reconciliation. This event was called

Corroboree 2000. Initially the CAR hoped to present the Document to the Prime

Minister who would then act on its substance. However, in further acknowledgment

of the Howard government’s poor performance on key issues, such as an official

apology to the Stolen Generations and the NTAA 1998, the CAR decided that it

would present the Document symbolically ‘to the nation’ as opposed to the Prime

Minister.

Thus the final document was little more than an aspirational text designed to

appeal to the Australian community as a whole and to offend as few non-indigenous

people as possible. The text reads:

We, the peoples of Australia, of many origins as we are, make a commitment to go on

together in a spirit of reconciliation. We value the unique status of Aboriginal and Torres

Strait Islander peoples as the original owners and custodians of lands and waters. We

recognise this land and its waters were settled as colonies without treaty or consent.

Reaffirming the human rights of all Australians, we respect and recognise continuing

customary laws, beliefs and traditions. Through understanding the spiritual relationship

between the land and its first peoples, we share our future and live in harmony. Our nation

must have the courage to own the truth, to heal the wounds of its past so that we can

move on together at peace with ourselves. Reconciliation must live in the hearts and

minds of all Australians. Many steps have been taken, many steps remain as we learn

our shared histories. As we walk the journey of healing, one part of the nation apologises

and expresses its sorrow and sincere regret for the injustices of the past, so the other part

accepts the apologies and forgives. We desire a future where all Australians enjoy their

rights, accept their responsibilities, and have the opportunity to achieve their full potential.

And so, we pledge ourselves to stop injustice, overcome disadvantage, and respect that

Aboriginal and Torres Strait Islander peoples have the right to self-determination within

the life of the nation. Our hope is for a united Australia that respects this land of ours;

values the Aboriginal and Torres Strait Islander heritage; and provides justice and equity

for all (CAR, 2000).

Registration for Corroboree 2000 was somewhat expensive, which meant that

indigenous participation was low. The CAR’s inclusive approach to the process meant

that a wide range of people were ‘encouraged to attend’, yet there was little money

spare to sponsor the attendance of indigenous peoples from the more rural or poor

urban communities. The CAR stated that those registered represented ‘a wide range

of our diverse society, including Aboriginal and Torres Strait Islander people and

organisations, and business, industry and community groups from around Australia’

(CAR 2000c). The number of indigenous participants appeared to be extremely

low. Given the relative poverty of many more secluded rural communities, the vast

majority of people from those areas would almost certainly have had great difficulty

affording the registration, travel and accommodation costs.

Reconciliation and Colonial Power144

Some indigenous people who could afford to attend chose not to do so in protest

at the Government’s performance on key issues and also because there was growing

scepticism of the whole notion of reconciliation. The net result was that, much like

the previous Convention, the event was dominated by high-profile government

employed indigenous ‘leaders’, politicians and a host of ‘eminent’ Australians. As

an indigenous delegate, who sat next to me in the conference, put it, ‘this just seems

to be all about white men in suits feeling good about themselves’.

As with the Reconciliation Convention in 1997, the stage was dominated by

white men in suits who were flanked by a handful of high-profile government

employed indigenous ‘leaders’. Among those pictured, at the front is Evelyn Scott,

the CAR chair, and at the rear left is ATSIC chair, Geoff Clark. A noticeable absentee

was Patrick Dodson, the former CAR chairman who had become so disillusioned

with the Howard government’s approach to reconciliation that he chose not to

attend. Unlike the 1997 convention, however, there was no space at all for the APG

members, community Elders or even Land Council representatives. The late Charles

Perkins was one of the more critical indigenous activists not invited to speak but

who attended nonetheless. His contribution was confined to frantically waving a

rattle and blowing a whistle throughout the Prime Minister’s speech.

Unlike at the Reconciliation Convention in 1997, Geoff Clark, an APG member

but also chairman of ATSIC, was invited to speak from the central podium. Clark used

the opportunity to equate ‘true reconciliation’ with self-determination and a treaty.

many of our indigenous brothers and sisters have chosen not to attend here today. I

understand and respect their decision. In turn, a number of them have made it clear they

respect and understand my decision to attend. I do so because this occasion affords me

an opportunity to send a special plea to the Aboriginal and Torres Strait Islander peoples

(and) to send a strong message to our national political leaders and to non-indigenous

Australia … We must now step up our struggle for recognition, rights and reform. We

must unify behind a bold new push for true reconciliation. True reconciliation means

recognising we possess distinct rights. They arise from our status as first peoples, our

relationships with our territories and waters, and our own systems of law and governance.

Our right to self-determination is a core principle. The reconciliation process must lead

us into a new era of constitutional consent. No constitution or other document records

our consent to the terms of our relationship with non-indigenous Australians. There has

been no treaties, no formal settlements, no compacts. There now needs to be. There is no

mention of Australia’s first peoples in the constitution. There now needs to be. The few

rights we now enjoy remain vulnerable in the absence of constitutional protection. As the

elected head of ATSIC I can offer these commitments. To lead our peoples to accept the

extended hand of true reconciliation if the Government of Australia extends to us this fair

and noble proposition. To offer a welcoming hand to all Australians who can support our

rights without patronage and without undermining our processes of self-determination. A

commitment from Government to negotiate a treaty is essential. As I make way for you

on this podium, Prime Minister, I invite you not to speak about what you have decided for

us, but what you will decide with us (Clark, 2000).

Unfortunately for indigenous people, the Prime Minister chose not to accept Clark’s

offer but to focus on his government’s ‘practical reconciliation’ agenda, which merely

promised better access to services and opportunities enjoyed by ‘other Australians’. In

Indigenous People and Australian Reconciliation 145

other words, as the indigenous delegate next to me shouted, ‘practical reconciliation

means practically nothing’! When Howard moved on to the Stolen Generations, as

in the Reconciliation Convention three years earlier, he was furiously heckled when

he merely expressed ‘regret’ for their plight. He justified his stance on the formal

apology issue with further reference to the importance of ‘practical initiatives’ over

‘symbolism’.

During the conference, Mick Dodson, another high-profile indigenous

spokesperson, threw his weight behind the calls for a treaty while taking issue with

Howard’s ‘practical reconciliation’ agenda.

Although issues of the health, housing and education of indigenous Australians are of

key concern to a nation, they are not issues that are at the very heart or the very soul of

reconciliation. But they are – quite simply – the entitlements every Australian should

enjoy. The tragedy is that they are entitlements successive governments have denied. Why

should they be given some higher order of things in the reconciliation process? ... we

must have a treaty. That should be the central objective ... I have no difficulty with the

model suggested by Patrick Dodson. I will tell you why. It is a model based on rights. It

is a model that recognises and honours our status as the first Australians. It is a model that

presents a sensible, achievable goal. It is a model that will deliver a nation with honour.

It is a model which will enable us to adopt the manner and habits of a civilised nation

… Above all, it will finish the unfinished business. And that is what it is about. If we are

to have ‘words on paper’ this is where those words have to at first be – they have to be

words that openly – and honestly – reflect our histories, and our hope for the future, for

our children and grandchildren. And above all mean something and deliver (Dodson, M,

2000).

With the CAR’s life drawing to an end even the moderate leaders felt compelled to call

for a substantive rights based treaty since it was clear that an aspirational document at

the end of a ten year ‘process’ was an unacceptable outcome regardless of a ‘growing

people’s movement for reconciliation’. Yet, one had to go outside Sydney Opera

House to sense any real frustration at such calls for a treaty ten years into a process that

emerged out of the ashes of the first treaty campaign. There were a significant number

of Aboriginal protestors holding a demonstration outside the Opera House while

Corroboree was in progress. One protestor from the Sovereign Union of Aboriginal

Peoples and Nations of Australia expressed his exasperation to me:

Here we are again, calling for a treaty just like before this process began. Thank god it is

coming to an end, no longer can they say ‘let the white folks learn first, then we can all consult

and see what shape it takes’. Well, the shape it has taken is a meaningless bad poem.5

This protestor, however, underestimated just how popular the CAR’s vague non-

committal approach had become. On the walk for reconciliation across Sydney

Harbour Bridge the following day there were many people collecting money

to aid the establishment of a foundation to continue the work of the CAR. The

establishment of ‘Reconciliation Australia’ coupled with the fact that there was now

a Minister responsible for Reconciliation and the CAR’s frequent assertion that

5 In conversation 27/5/00.

Reconciliation and Colonial Power146

reconciliation was a ‘long road’ meant that the term ‘reconciliation’ would continue

to be synonymous with Aboriginal affairs for a long time yet. Moreover, as one

Aboriginal person I met on the walk suggested ‘the beauty of reconciliation for the

politicians lies in the fact that it can mean many different things to many different

people. It allows people like Howard to voice their support for ‘reconciliation’ while

having no real intention of changing a thing’.6

The CAR did its best to gloss over the lack of tangible end product for the

reconciliation process. Indeed, Corroboree 2000 was so full of self-congratulatory

fanfare it was easy to think something meaningful had been achieved. Overblown

symbolism was the order of the day, with much use being made of the younger

generation to convey the message that reconciliation was something for everybody

to be involved in. The inclusive message was hammered home in the grand finale

performance of the song ‘Absolutely Everybody’ by a Sydney-based dance

troop.7

On the face of it perhaps the most encouraging event of the weekend for indigenous

people was the walk for reconciliation the day after the Opera House fanfare.

Around 400,000 people ‘walked for reconciliation’ that day. However, as discussed

in the previous chapter, it was unclear exactly what people were actually walking in

support of. I was one of many people who wore a badge stating ‘Australia needs a

Treaty’ which were being handed out by volunteers from ANTAR. However, I did

not spot many pre-made placards displaying the same message. The overwhelming

impression I was left with was that the majority of people were marching for fairer

treatment of indigenous people generally but more specifically for a formal apology

to the Stolen Generations.

At the end of the walk, however, there were a significant number of indigenous

protestors displaying banners stating ‘No Reconciliation without Justice’. Most

were representatives of the Sovereign Union of Aboriginal Peoples and Nations of

Australia (SUAPNA) which is one of the more politically active indigenous groups.

SUAPNA was founded by Kevin Gilbert’s widow, Ellie, and Michael Anderson who

was one of the original founders of the Aboriginal Tent Embassy. When I asked them

why they decided not to walk, Ellie Gilbert replied:

We (SUAPNA) don’t believe in this reconciliation process. My late husband, just before

he died, said that it would not achieve anything, because it made no firm commitments,

and he was right. It has been a lot of hot air with not one single outcome to speak of. Why

should Aboriginal people walk in support of something that has just perpetuated colonial

domination. It simply buried the Treaty issue for ten years.8

6 In conversation 27/5/00.

7 See also fellow attendee Peter Russell’s (2006: 362) similar reflections on this.

8 Author interview 28/5/00.

Indigenous People and Australian Reconciliation 147

Post-Australian Reconciliation Opinion

Issues Deliberation Australia (IDA): ‘Australia Deliberates Reconciliation’

The IDA ‘Deliberative Poll’ research, discussed in the context of non-indigenous

opinion in the previous chapter, also produced valuable data on indigenous attitudes

toward reconciliation. A team of researchers convened focus groups and conducted

surveys with indigenous Australians in every state and territory (Issues Deliberation

Australia, 2001: 23). The survey of 234 indigenous people across Australian revealed

extremely consistent and strongly held views about reconciliation, relations between

indigenous and non-indigenous Australians, as well as strategies for the future. IDA

commented that

the results were virtually unanimous across Australia, across indigenous language groups,

across ages, and education levels. The message from indigenous Australians is loud and

clear (ibid: 24).

In stark contrast to the Howard government’s insistence on a purely practical

approach to reconciliation, ‘symbolic’ gestures were universally perceived by

Aboriginal and Torres Strait Islanders, to be the foundation of enduring reconciliation

(see ibid.). Indeed, given the history of colonisation, dispossession, violence and

racism, indigenous attitudes were fairly predictable and perfectly consistent with the

basic international reconciliation paradigm. In summary indigenous people wanted

a combination of symbolic gestures and concrete practical changes. The results

showed a desire for:

Symbolic Actions

Formal acknowledgement of the past and its injustices. Indigenous people

felt very strongly about the need to acknowledge that Australia was occupied

without the consent of existing indigenous people with 84 per cent strongly

agreeing while 8 per cent moderately agreed. 93 per cent of respondents also

strongly desired formal acknowledgment that indigenous people were the

traditional owners of the lands and seas (ibid: 26).

94 per cent of indigenous respondents supported a formal apology to the

Stolen Generations. In addition some 88 per cent of respondents wanted

compensation to be paid to members of the Stolen Generations (ibid.).

IDA concluded that such strong and unanimous opinion from indigenous

Australians around the country pointed to the symbolic and healing role that formal

acknowledgment, apology and compensation might play in the ongoing process of

reconciliation (ibid: 25). In terms of more structural issues, indigenous respondents

wanted:

•

•

Reconciliation and Colonial Power148

Concrete Symbols of Reconciliation

Legal structures to enhance reconciliation: there was 90 per cent support for

a treaty between indigenous and non-indigenous Australians. 94 per cent

wanted to see special seats in parliament for indigenous Australians, while

95 per cent wanted an integrated system of indigenous and dominant culture

laws. 88 per cent of indigenous respondents wanted the continuation of Native

Title grants (ibid: 27).

More education for the non-indigenous about Aboriginal culture and history.

There was 97 per cent support for more education in all Australian schools

about indigenous culture, and 99 per cent support for more education on the

indigenous components of the continents history (ibid: 26).

94 per cent of indigenous respondents felt that the Government should

support help indigenous people improve their health, housing, education and

employment opportunities. When asked to prioritise the areas, 40 per cent

selected health as the most importance, 29 per cent education, 14 per cent

unemployment and 10 per cent housing (ibid.).

While the above were the pre-deliberation findings, unlike with the non-indigenous

participants (discussed in the previous chapter), the views of indigenous people barely

changed at all once the deliberation process had concluded. This is not surprising

since most of the information provided by the IDA researchers was aimed at clarifying

aspects of Australian history and contemporary society that are well known to

indigenous people. Furthermore, the collaborating qualitative data, generated from

the focus groups held in all states and territories, was entirely consistent with the

unanimous and unequivocal nature of the pre-deliberation results (ibid: 28). In sum

the IDA researchers found that, when asked to articulate the ingredients for a genuine

reconciliation, indigenous people across Australia displayed strong agreement on the

nature and content of their requirements.

While researching this book, in New South Wales, the Australian Capital

Territory, the Northern Territory and Queensland, I found a remarkable consistency of

opinion concerning key issues that indigenous people felt constituted the ‘unfinished

business’ of the reconciliation process. To be sure, there was undoubted emphasis

variation but concerning the broad prerequisites for meaningful reconciliation

there was general consistency. As with the IDA findings, my own interviews,

conversations, correspondence, coupled with the overall impressions gleaned from

participant observation at key reconciliation events, confirmed a general consensus

on the need for:

Acknowledgment of the ‘true’ history of conquest and colonisation.

Acknowledgment of the existence and suffering of the Stolen Generations.

Monetary compensation for the Stolen Generations and their families.

Land rights and an economic base.

A treaty or treaties, which recognise prior indigenous sovereignty/political

and legal autonomy and afford this equal respect in the present.

•

•

•

•

•

•

•

•

Indigenous People and Australian Reconciliation 149

Over the years I heard much debate among indigenous people about the exact best

methods of achieving the last point, but there was a general agreement that it should

happen in some shape or form. Perhaps, the most frequently held view was that

the fine details of a political power sharing treaty should be worked out by the

indigenous nation in question and the settler state, in other words nation to nation

negotiations under the general rubric of national indigenous self-determination.

For many however, the most important first step toward such a position is for the

Australian state authorities to formally acknowledge that indigenous sovereignty has

not been legitimately ceded or ‘extinguished’.

Wadjularbinna Nulyarimma, a Gungalidda Elder and member of the Aboriginal

Tent Embassy, explaines the crucial connection between land, recognition of

sovereignty and the cultural survival of indigenous people:

First Nations Peoples belong to a system of Laws/Lores, which bind them spiritually

and culturally to the land, our mother and all things natural. This continent is made up

of more than 500 nations, with their own languages and they all make up the diversity

of this continent from rainforest to desert. Our spirituality and religion is in the land

and the environment and connects us as collective Peoples to each other through our

unique complex system of family [mob] for the purpose of keeping the balance between

humanity and nature. Ours are the oldest cultures in the world, which is our birthright and

heritage. Today we have reached a point where the farmers, graziers, mining companies

and developers are destroying this sacred continent and the sacred sites within it and our

Peoples … Slowly but surely we are living a life of hell on earth through our disconnection

from our lands. Our life’s journey starts with the land and ends with the land and we are

like zombies without it.

Colonialism is alive and well in Australia today. Yet, First Nations Peoples hold the key to

the survival of this continent and global survival as well. Imposing a condition of life set

to destroy the group in whole or in part is a continuation of colonial genocide. What we

want and what we expect is recognition, acceptance and respect of our ancient spirituality,

which is the core of our Being. We want recognition of our un-ceded sovereignty. We are

asserting our own sovereignty and self-determination in our own lands. Reconciliation

without truth and justice is genocide. So long as Australia denies its history there will

always be an Aboriginal Embassy9.

Kevin Buzzacott, an Elder from the Arabunna Nation, put it more simply:

For the foreigners it is not too late to come the right way and respect us and accept us

as the authority of this land in order to make peace. We have the recipe of life for this

land.10

On the 26 January 2003, the Aboriginal Tent Embassy (pictured below) held an

alternate Corroboree for Sovereignty, which unlike the CAR’s version, was aimed

at highlighting the failure to recognise indigenous sovereignty from the time of

invasion to the present.

9 Author interview, 1/26/03 and subsequently in SUAPNA press release 1/28/03 on file

with author.

10 In conversation 14/9/02.

Reconciliation and Colonial Power150

Since its inception on 26 January 1972 the Aboriginal Tent Embassy has maintained

that Aboriginal nations should be treated as equal to the nations represented on

Embassy Row in Canberra and has insisted that justice for Aboriginal people

involves recognition of prior and continuing Aboriginal sovereignty. Their stance on

reconciliation is unequivocal: ‘reconciliation without justice is genocide’. As Tent

Embassy Elder, Neville ‘Chappy’ Williams, stated

What have Aboriginal people got to reconcile? What do we have to reconcile with? Our

history of massacres, murders, removal of our children, the taking of our land? Its just

been 214 years of heartache, suffering and pain which meant the death of our culture,

our language, our dreaming, our lore …. The message from the Tent Embassy is that

‘reconciliation without justice is genocide’.11

Aboriginal Tent Embassy ‘Guardian Keeper of the Sacred Fire for Peace and

Justice’,12 Darren Bloomfield, reiterated this stance in interview with me in 2001.

He said:

Reconciliation is just for the white folks, it’s done nothing for us. It may be a new policy

name but it’s the same old story. We are doing this FOR you; you just sit in the corner out

11 In conversation 7/9/02.

12 The fire that was lit for Kevin Gilbert on his death in 1992 and which has been burning

continuously ever since.

Figure 7.1 The Aboriginal Tent Embassy

Indigenous People and Australian Reconciliation 151

Figure 7.2 Corroboree for Sovereignty

Figure 7.3 A protest sign at the Corroboree for Sovereignty

Reconciliation and Colonial Power152

of sight and keep quiet. It has deflected talk away from issues that matter to Aboriginal

peoples, such as land rights and self-government. Self-government and autonomy does

not mean ATSIC, or as we call it ‘Aborigines Talking Shit in Canberra’. ATSIC is nothing

like Self-determination it is just another white dependant organisation that they throw at

us periodically to make it look like they are doing something, yet nothing changes. This is

because 90 per cent of funds go into white hands via the bureaucracy, because they don’t

trust Aboriginal financial management. Which at times is fair enough, however there are

youngsters coming through now that can see the evil of drink and don’t want any part of

it and there are ways and means of allowing autonomy from government that will produce

results for Aboriginal people – the control should be at a community level.

Justice requires recognition of prior sovereignty and traditional law and the incorporation

of this into the constitution via a set of formal treaties. Broadly speaking this is what

Aborigines want and are entitled too. Justice also requires the back payment of 212 years

of rent, plus interest, owed to Aboriginal peoples since conquest. Why should this be too

much to ask for? It is a common notion in the white-mans world. Furthermore, it would also

require an apology to the Stolen Generations and reparations. The treaties would have to

be the product of community wide consultations with full participation of the community

Elders and using Aboriginal methods of negotiation and not restricted to a white mans time

constraints. Crucially they should not be negotiated by the woman with the hat (a reference

to the Reconciliation Council chair, Evelyn Scott) or any other self-appointed ‘leader’.

To be reconciled we first need justice, including a treaty, and then we might be able to

consider reconciliation. If we don’t get justice, a treaty, autonomy, and the ability to

educated our young in the old ways, and soon, then we are doomed. Our fighting spirit is

still strong though we are not dead yet, not even after all that they have thrown at us over

the last 200 years, all the diseases, the massacres, the assimilation policies yet we are still

here fighting. They are ruining this country, up until 200 years ago we lived and traded

sustainably, we didn’t rape the land and pollute like they do now. They should learn from

us. We are connected to this land in a way that they could never be, that is why they may

depress us but ultimately the Aborigine remains free in his spirituality.13

The activists and leaders involved with the Tent Embassy and with the original

treaty campaign and those involved with organisations like the SUAPNA and the

APG were always sceptical of the reconciliation process, while the more moderate

high profile leaders tended to see it as something to work with. Yet, after the end of

the CAR’s life virtually all politically active indigenous leaders and representatives

were calling for a treaty or treaties to be negotiated as a matter of urgency and as part

of, what they described as, the ‘unfinished business’ of reconciliation.

It is unfortunate that the CAR did not conduct the type of research undertaken

by IDA. If they had they too would have discovered that indigenous people

throughout Australia had very specific requirements for reconciliation. They want

acknowledgment of the true history of their colonisation, not the selective and censored

‘white blindfold view’14 favoured by John Howard; they want acknowledgment

and compensation for the Stolen Generations; they want their land rights upheld

13 Author interview 3/9/01.

14 Darren Bloomfield, Aboriginal Tent Embassy spokesperson, author interview,

3/9/01.

Indigenous People and Australian Reconciliation 153

not extinguished; they want treaties that recognise and guarantee the equality of

indigenous sovereignty and that allow for meaningful self-determination. If the

CAR had advocated the fulfilment of these aspirations instead attempting to appeal

to ‘all Australians’ then some progress might have been made during the official

period. At least then the CAR would not have been vulnerable to the accusation of

being just another ‘whitefella whitewash’. Moreover, if the Howard government had

not effectively extinguished native title via the NTAA 1998 and had offered a formal

apology and compensation to the Stolen Generations, then the reconciliation process

might have had a rather different complexion. As it stands, however, it is difficult to

argue with APG and Redfern Aboriginal Legal Service member, Paul Coe’s, early

analysis of the potentialities for reconciliation in Australia:

Aboriginal people have never asked for reconciliation, we have never asked for the

imposition of white culture or government over us. The term ‘reconciliation’ is premised

on the notion of a pre-existing state of goodwill between the invaders and Aboriginal

people. Such goodwill has never existed. Now the government wants to impose this

reconciliation process. It’s like giving the dog another touch of the whip. Why should

justice for aboriginal people be delayed until the oppressor is enlightened in its attitudes?

The only basis of reconciliation would be the placing of Aboriginal people in an equal

bargaining position with non-indigenous Australians. This is difficult as each day we

are becoming more and more of a minority as immigration continues. The only true

reconciliation would be a united nations monitored negotiated process between indigenous

people of Australia and the people of the invaders – a process that would ensure that we

bargain as equals (in Duke, 1995: 283).

Figure 7.4 Another protest sign at the Corroboree for Sovereignty

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Chapter 8

The Political Functions

of Australian Reconciliation

Having discussed the main events in the reconciliation process it is now necessary

to take a step backwards. In order to fully understand the reconciliation process it is

important to contextualise its origins not only in the political debates surrounding

the treaty, as discussed in Chapter 3, but also in the context of the move from the

White Australia policy, an official government strategy which restricted immigration

to white Europeans, to a re-imagining of Australia as a harmonious post-colonial

multicultural nation.

For the sake of clarity, before beginning the discussion it is perhaps worth

reiterating that the Council for Aboriginal Reconciliation Act 1991 gave the CAR

the mandate to promote reconciliation through educational initiatives such as local

meetings, national conferences and the like, but outside that realm it only had the

power to develop policy suggestions for governmental consideration. Australian

reconciliation then consisted of both CAR initiatives and Government responses

and consequently this book has examined both. While this chapter also looks at both

CAR and government strategies, its main focus is on the quite different functions of

reconciliation during the Keating and Howard eras. The first part of this chapter seeks

to explore the roles and functions of reconciliation under a Keating administration

that embraced the rhetoric of multiculturalism and the need for legitimacy through

reconciliation, while the second part focuses on the Howard era which saw a return

to an assimilationist agenda and a staunch denial of serious wrongdoing.

The Keating Era

Post-Colonial Legitimacy: Re-imagining Australia

International capital and migration fundamentally shaped the post-war Australian

economy and society perhaps more so that any other advanced capitalist country (see

Collins, 1992, Knightley, 2000). Pre-World War II Australian immigration policies had

been extremely restrictive. For over a hundred years the policies were based on what

became known as the ‘White Australia’ policy. The Federal Immigration Restriction

Act 1901 (CMTH) was designed to permit predominantly Anglo-Celtic immigration

so as to minimise ‘integration problems’. Post 1945 however, in response to a lack

of unskilled migrants coming from Britain, the Chifley administration implemented

an immigration policy that allowed European refugees from non-English speaking

backgrounds to settle in Australia. To meet the growth demands of capital (under

Reconciliation and Colonial Power156

the political banner ‘populate or perish’) an international refugee scheme was

implemented which targeted young, single, healthy Europeans displaced by the war.

Through the years 1947 to 1952 these cheap able-bodied European labourers were

admitted under strict employment related contractual conditions which were usually

imposed for a minimum of two years. They were expected to conform to the norms

and values imposed by a predominantly Anglo-Celtic ethnic group representing

90.27 per cent of a population of just under 7 million.1

For many years after this period the Australian Labour Party (ALP) were

strongly opposed to Asian immigration in order to preserve the living conditions and

minimum wage of existing Australian workers. It was the conservative leader, Robert

Menzies, who was the first to permit Asian immigration, under strict conditions

preventing both naturalisation and family reunion, of Chinese refugees fleeing the

Maoist persecutions. Following Menzies’ initiative by the end of the decade his

successor, Harold Holt, all but eliminated the White Australia policy. In terms of

accommodating a plurality of ethnic cultures, Australia would become increasingly

‘multicultural’ (Jupp, 1997: 133).

In repudiating the doctrine of ‘White Australia’, Australians relinquished a

national political identity which served for more than half a century (Kane, 1997:

118). It was an identity that had a decidedly racist foundation. The arrival of the

First Fleet as the moment of birth, the unrelenting emphasis on ‘British stock’, the

exclusion of indigenous people from political participation and the denial of their

rights and the White Australia policy from the 1890s all suggest the importance that

was given to the racial connotations of nationalism (Walter, 1992: 11). It should be

noted, however, that the racist outlook of Australians in the late nineteenth century

was far from unique. It was in fact a ubiquitous feature of white colonial nations, for,

as we saw in chapter 5, this was the heyday of scientific racism and social Darwinist

philosophies which influenced social policy in many European and European

diaspora countries (see Kane, 1997: 123).

National governments usually lay first claim to the right to form national

identities (Jupp, 1997: 132). Indeed, in seeking votes and public support for policies,

political leaders commonly refer to constructed national identities. The ending of

racial discrimination in immigration and the passage of the Racial Discrimination

Act in 1975 went some way towards laying the practical foundations for the symbolic

construction of a new ‘multicultural’ Australian national identity.

Yet a significant political obstacle to re-imagining Australia, as a harmonious

multicultural society, was the continued disquiet of an Aboriginal population who

did not view Australia as a land of opportunity and new beginnings. Indeed, up to

this point Aborigines were frequently regarded as an ‘other’ to a national identity

constructed around racism and progress (Spillman, 1997: 54). The post-colonial

challenge for politicians was to find a way to include Aboriginal people in the cultural

fabric of the nation which would seem fair and appropriate and would therefore

serve to legitimise indigenous/settler relations, since the inescapable fact for non-

1 For these non-English speaking labourers doing jobs most Anglo-Australians were

not willing to do, the command of English was the pre-requisite for the right to vote (see

Nacci, 2002: 12).

The Political Functions of Australian Reconciliation 157

indigenous Australians is that they gain their identity from someone else’s land. It

was this challenge that prompted Labour leader Gough Whitlam in his 1972 election

campaign to refer to Aborigines as the victims of entrenched and institutionalised

racism and consequently Aboriginal reform became a central tenet of a successful

federal campaign (see Whitlam, G, 1972). Whitlam frequently reminded his audiences

that the ‘Aboriginal problem’ could not be avoided in a post-colonial nation in the

making (see ibid.).

Aborigines are a responsibility we cannot escape, cannot share, cannot shuffle off: the

world will not let us forget that … Australia’s real test as far as the rest of the world, and

particularly our region, is concerned is the role we create for our own Aborigines (ALP

speech 13 November 1972, Blacktown Civic Centre (ibid: 132).

During the Whitlam years the Aborigines, together with Australia’s migrants,

became the symbolic embodiment of post-colonial equality in the land of the ‘fair

go for all’.2 Whitlam sought to legitimise the colonial relationship by recognising

Aboriginal people as traditional owners of land and by enacting the Aboriginal Land

Rights (Northern Territory) Act 1976, which unlike Keating’s Native Title Act 1993

included a right of veto over development.3 Strong as the ALRA 1976 was, it was

nonetheless restricted to the Northern Territory as the only territory under exclusive

Commonwealth jurisdiction.4

Grants made under the ALRA were freehold title to ‘Aboriginal reserve’ lands

only; there was no land for Aboriginal people living on pastoral leases or otherwise

alienated lands or any land outside the Northern Territory. Furthermore, the

legislation was strictly confined to land title; there was no discussion of the need for

a decolonising (and hence legitimising) return of political autonomy to indigenous

communities. For these reasons Whitlam’s legitimising initiative, while benefiting a

few indigenous groups, did not deter Aboriginal leaders from instigating the treaty

movement discussed in Chapter 3. At least on a symbolic level, however, Whitlam

had made a significant step towards constructing a legitimate post-colonial national

identity.

It was the government of Bob Hawke that had to deal with the full force of

the Aboriginal treaty campaign, but after promising a treaty during the lifetime of

his last term he reneged. As we saw in Chapter 3, Hawke diluted his promise of a

treaty into a vague reconciliation initiative, which did not pledge decolonising land

rights and the return of political autonomy, but emphasised the need to educate non-

indigenous Australians as a precursor to achieving a genuine post-colonial shift. The

2 For a discussion of such Australian cultural myths see Stokes, 1997.

3 For this reason it should be regarded, in my view, as the only meaningful land rights

legislation in Australia. This is also the view of Justice Woodward who designed the legislation

(see Woodward, 1974) and many Aboriginal people (see Nacci, 2000: 24).

4 Whitlam knew better than to attempt to enforce his new legitimising agenda on state

governments, whose primary loyalties lay with commercial interests that would be competing

with Aboriginal interests, as was to happen many years later in the Mabo and Wik debates.

As Nacci (2000: 24) writes, Gough Whitlam chose carefully to limit the precedent to the

Commonwealth-controlled territory.

Reconciliation and Colonial Power158

beauty of Australian reconciliation as a political tool was that, under a veil of post-

colonial sentiment, it promised nothing.

When Keating took over as Prime Minister in 1991 he quickly set about realising

the full legitimising potential of the language of reconciliation. As a tool for ‘post-

colonial’ legitimation the term reconciliation had far more potential than the term

‘treaty’. As Tatz (2000: 75) writes, ‘reconciliation appeals as a sane approach,

ethical and moral … It offers hope, harmony and ‘humane-ness’. It suggests an end

to enmity and a settling of differences.’ The discourse of reconciliation became a

useful rhetorical aid to the re-imagining of Australia as a harmonious multicultural

post-colonial nation.

Claims about social, cultural and political identity, from the early invasion to

the present, have often been used in attempts to persuade Australians to reform their

ways (Stokes, 1997: 3). Journalists, novelists and historians have not only aimed to

delineate the distinguishing characteristics of Australians, but also asked whether

these have been adequate to the tasks deemed important at the time (see essays in

Beaumont 1993, also White, 1981).

The political functionality of this ‘national obsession’ (White, 1981: viii),

was apparent in the rhetoric and policies of former Labour Prime Minister Paul

Keating, who made it one of his government’s explicit goals to develop a clear

and coherent national identity (see Keating, 1994). A central concern for Keating

was Australia’s international image, especially regarding the status of indigenous

peoples. On the 13 June 1993, Keating told the News South Wales Conference of

the ALP that reconciliation and the implementation of the Mabo decision had to be

a labour ambition: ‘I believe this is because the history and contemporary reality of

Aboriginal Australia is a blight on our reputation, our traditions of fairness, social

justice and self-esteem. It is therefore a Labour cause and I urge the entire Labour

movement to get behind it’ (in Brennan 1995: 50).

Keating’s contention was that in this respect the Australian national self was

deficient and that this could be remedied by constructing a singular identity which

better reflected current ‘realities’.

We can only play a part in … (the region) if we go to the world as one nation, as a nation

united and not a nation in any way divided. That is why Australians need to be clear about

their identity and be proud of it. That is why you can’t go hobbling around the world

saying: ‘Please put us in the big race, but by the way our indigenes don’t have any real

part of it’ (Keating in Gordon, 1994: 19).

Keating used Australian reconciliation as a vehicle for the construction of a post-

colonial (inter)national identity. The above quote encapsulates both the legitimising

and restricting functions of reconciliation during the Keating era. Keating gained

legitimacy by explicitly and publicly including indigenous peoples within the domain

of moral concern, but as we shall see such ‘inclusion’ also served the rhetorical

function of limiting indigenous aspirations within a nation-building framework. In

the next section we shall examine and evaluate both of these functions of Australian

reconciliation.

The Political Functions of Australian Reconciliation 159

Talk is Cheap: Australian Reconciliation as Legitimation and Rights

Limitation

It is imperative in today’s world that the common law should neither be nor seen to

be frozen in an age of racial discrimination … It might be presumed that the native

inhabitants of any land have an incontrovertible right to their own soil … (therefore) the

Meriam people are entitled as against the whole world to possession, occupation, use and

enjoyment of the island of Mer (Justice Brennan, Mabo, 1992).

Shortly after the Mabo case, Prime Minister, Paul Keating, spoke in the predominantly

Aboriginal Sydney suburb of Redfern (see Chapter, 3). The choice of location was

not without symbolic significance. To recount, Keating asked: ‘isn’t it reasonable

to say that if we can build a prosperous and remarkable harmonious multicultural

society in Australia, surely we can find just solutions to the problems which beset

the first Australians – the people to whom the most injustice has been done?’ He

suggested that the first step is the act of ‘recognition that it was we who did the

dispossessing. We took the traditional lands and smashed the traditional way of

life. We brought the diseases, the alcohol. We committed the murders. We took the

children from their mothers. We practised discrimination and exclusion’ (reproduced

in Keating, 2000). He continued by linking, for the first time, the Mabo case to the

national reconciliation project: ‘We need these practical building blocks of change.

The Mabo Judgement should be seen as one of these. Mabo is an historic decision

– we can make it an historic turning point, the basis of a new relationship between

Indigenous and non-Aboriginal Australians’.

Yet, as we saw in Chapter 3, the Mabo case was predicated on the assertion of settler

state sovereignty and was rife with colonial assumptions. Indigenous laws and customs

provided the content of native title, but they were held to be subordinate in status to

the imposed colonial legal system which could not be ‘fractured’ (Mabo, 1992: 20–21).

While the Meriam islanders continued to enjoy ‘inalienable rights’, the indigenous

people on the resource-rich mainland had been conveniently evicted by what Justice

Brennan gracefully called the ‘tide of history’. Native title on the mainland was restricted

to land unclaimed by the settlers, otherwise known as ‘vacant crown land’. In Mabo the

judges skilfully traversed a path which created the illusion of non-discrimination while

legitimising the colonial ‘tide of history’. As Povinelli states:

The deictical field the court (in Mabo) cites and iterates (‘ours’ and ‘theirs’) to separate

Australian and aboriginal laws and cultural practices makes it possible, even expected,

to differentiate the sites from which these ‘legal systems’ obtain their value and seek

their telos and to represent this differentiation, this cultural discrimination, as a non-

discriminatory project … in doing so they distract the national critical consciousness from

the law’s actual aim: the resubordination of the Aboriginal society vis-à-vis European law

and society (1999: 589, 591, my emphasis).

In the Australian cultural arena such subtleties were largely ignored and the Mabo

decision was widely accepted as a historic turning point.5 Yet, as Nacci (2002: 29)

writes

5 See Chapter 3.

Reconciliation and Colonial Power160

clearly the Mabo decision posits the do-gooder instead of the deeds. The so-called historic

decision offered little prospect of direct benefit for Aborigines, while allowing the heirs

of the European settlement to secure their position in the cultural imaginary by getting rid

of ‘racial discrimination.

Indeed, contrary to the Redfern rhetoric of ‘turning points’, reconciliation and ‘a

new relationship’, Keating ensured that his government’s response to Mabo would

perpetuate the colonial status quo. The NTA 1993 contained no right of veto over

future development for native title holders, thus rendering native title symbolically

meaningful but practically meaningless. Moreover, recognition of customary law

and political autonomy never even made the preliminary discussion stage.

A possible explanation for the gulf between Keating’s rhetoric and actions is

contained in the fact that the issue of indigenous land rights entered the national

political arena because of Eddie Mabo’s court case, not following a CAR or federal

government initiative. While the reconciliation process’ enabling legislation sought

to ‘take steps to address progressively indigenous aspirations’, before the Mabo

judgement land rights were not on Keating’s legislative agenda. Thus, Keating’s

post-Mabo rhetoric could be interpreted as the act of a skilled politician creating a

smokescreen of self-validating reconciliatory intentions, before severely limiting the

potentialities of an unwanted High Court decision.

Keating’s ‘post-colonial’ smokescreen continued to develop during the NTA 1993

‘consultations’. The language of reconciliation, invoking as it does such notions

as ‘fairness’, ‘humane-ness’, ‘respect’ and ‘atonement’ (see Tatz, 2000) provided

Keating with the rhetorical ammunition for this end. Indeed, his desire to include

(but not prioritise) indigenous peoples within a ‘fair balancing of interests’ which

would ‘nourish’ the reconciliation process appeared both ethical and reasoned in the

face of the mining lobby’s calls for extinguishment of native title.

Yet, as I argued in Chapter 3, the apparently reasonable ‘balancing of interests’

approach conveniently ignored the temporal dimension. That dimension was

colonial injustice and its legacy. Keating sought to balance interests based solely on

contemporary entitlements assessed without reference to a past now washed away by

the ‘tide of history’. In doing so, Keating ensured that Mabo was merely a discursive

‘turning point’. As a result of the NTA 1993, not one single native title grant was

made before Keating left office in 1996. As Nacci (2002: 31) writes ‘the legislation

was little more than a simulacrum of social justice for the moral conscience of the

doer without historical deeds.’

The cumulative social function of reconciliation, the Mabo case and the NTA

1993 is the production of a new ethical image which legitimises the existence of

the expatriates via the admission of liability for ‘past’ mistreatment of indigenous

people and the promise of ‘future’ social justice. The temporal dimension is

crucial to understanding the cosmetic display of reconciliation. The mere act of

freely acknowledging past colonial racism and the promise of future reconciliation

effectively re-imagined Australia as currently post-colonial.

Condemnation of a ‘past’ colonial period successfully periodises the problem,

and thereby legitimises the present day non-indigenous, such that language is the

only instrument Australian post-colonialism requires. In this sense, Australian

The Political Functions of Australian Reconciliation 161

reconciliation was merely an exercise in discursive legitimisation. The process

was instigated as a deflection of the Aboriginal treaty campaign and shrouded in a

veneer of warm sentiment it guaranteed not a single substantive measure over a ten

year period. In the Australian post-colonial discourse, substantive change is always

coming but never here.

The next section examines a further function of Australian reconciliation

discourse, namely symbolic nation building. As we shall see, the desire to be ‘one

nation’ through reconciliation was another discursive instrument of legitimation

invoked periodically by both Keating and the CAR.

Building a Legitimate Nation through Reconciliation

Australia’s national identity was a prime concern for Paul Keating throughout

his tenure. As we saw above, he expressed a strong desire that Australia should

present itself to the world as ‘one nation, as a nation united and not a nation in

any way divided’. The CAR, selected by Keating and his Minister Robert Tickner,

wholeheartedly adopted this theme and made it a central rhetorical pillar of Australian

reconciliation.

In a fashion not dissimilar to South Africa’s TRC, the dominant emphasis

of Australian reconciliation was on moving forward as a united Australia.

Reconciliation’s showcase events, the Reconciliation Convention and Corroboree

2000, attempted to construct a celebratory atmosphere centred on the CAR’s unifying

agenda. The primary rhetorical device of this endeavour was the CAR’s forward

looking vision statement:

A united Australia which respects this land of ours; values the Aboriginal and Torres

Strait Islander heritage; and provides justice and equity for all. Vision statement: Council

for Aboriginal Reconciliation (CAR, Annual Report, 1994–5).

The vision statement highlighted the two central tenets of Australian reconciliation. First

is the ‘united Australia’ theme that spearheaded a distinct nation building agenda, which

embraced the colonial assumption that indigenous groups are not to be construed as

distinct nations in their own right. Second, is the inclusive theme suggested by the focus

on ‘justice and equity for all’ as opposed to a focus on the victims who suffered a history

of dispossession, massacres, genocide, racism and political and social subordination,

most of which continue to this day. In this sense, Australian reconciliation’s focus on

‘all Australians’ contrast poorly with Truth Commissions victims’ hearings, like those

held in South Africa, which provided an official victim centred forum that elevated

victims’ narratives to a status above prior official ‘denials’.6

The ‘united Australia’ theme was foundational to Australian reconciliation

rhetoric. Indeed, a pervasive nation building schema is in evidence in many CAR

6 See Minow, 1999: 60 on this.

Reconciliation and Colonial Power162

documents.7 For example, the CAR’s social justice agenda, articulated in its annual

report for 1994, states:

indigenous peoples are central and integral to the cultural fabric of this nation and that the

government should acknowledge the true place of indigenous peoples within the nation

(Council for Aboriginal Reconciliation 1995: 5, my emphasis).

This approach ignores the fact that at the time of invasion indigenous peoples were

self-governing political entities or ‘sovereign nations’ (see Reynolds 1996),8 and

in spite of two hundred years of colonialism many indigenous groups still claim

such status.9 Academic definitions of nationhood tend to buttress the view that the

Australian continent is home to more than one nation (see Mill, 1963, Smithm,

1981, Kellasm, 1991, Reynolds, 1996). As Reynolds (1996: 178) states, Australia

‘has never been one nation, popular rhetoric notwithstanding. We share a country, a

continent and a state, but not a nation’.

Nevertheless, Australian nationalist rhetoric, since the nineteenth century,

has always defended the ‘one nation and one state, in one territory’ formula of

nationhood (see Moran, 1999). Australian reconciliation continued in this mode,

positively promoting the construction of Australia as ‘one nation’. The crucial point

to note here is that while there may be many so-called ‘urban’ indigenous people

who may regard themselves as belonging to an ‘Australian nation’ there will be

many who consider themselves to belong to their respective indigenous nation.10

For this reason, the counterfactual construction of a singularity of nationhood seems

inimical to the spirit of the enabling legislation’s preamble, which grounded the need

for a reconciliation process on colonial injustice and its legacy. By tying social justice

for indigenous peoples to a national building framework the discourse of Australian

reconciliation effectively places a (colonial) ceiling on indigenous aspirations.11

In addition to the legitimising effect of the cosmetically non-discriminatory call

for the ‘inclusion’ of Aboriginal people within the Australian nation, constructing

‘one nation’ through reconciliation also sought to address the post-White Australia

national identity deficit. The gradual deterioration of the link with the British colonial

headquarters, the repudiation of the White Australia policy and the colonists’ desire

7 This has subsequently been wholeheartedly embraced by the new replacement

foundation, ‘Reconciliation Australia’.

8 For a discussion on Aboriginal ‘nationhood’ and the misconception that Aboriginal

groups were not ‘distinct political entities’ at the time of conquest, see Reynolds (1996).

9 For example, but for the imposition of settler jurisdiction, the Yolnu people of Arnhem

land would be able to govern themselves according to traditional laws that have survived to

this day, see Trudgen (2000).

10 To name but a few, the Yolnu of Arnhem Land (see Trudgen 2001), the Meriam people

from Mer (Murray Island as the British named it) who were the peoples involved in the Mabo

case, and the Wik and Thayorre peoples who brought the Wik case to the High Court. There

are many other indigenous peoples throughout Australia who continue to practice traditional

laws and customs and consider themselves as constituting their own distinct nations.

11 See Anthony Moran’s (1999) excellent article on this.

The Political Functions of Australian Reconciliation 163

for legitimacy necessitated a reorientation of Australian national identity via the

appropriation and commodification of Aboriginal spirituality.12

In contrast to the pre-1960 era, where settler identity was ostensibly developed

in a manner that completely excluded all traces of Aboriginality, in the present we

see extensive symbolic use of Aboriginality as an integral part of Australian identity.

One only had to watch the opening ceremony of the 2000 Olympics in Sydney to see

the extent of the appropriation or visit any of Australia’s international airport arrival

lounges where a visitor’s first steps are frequently taken on carpets patterned with

‘Aboriginal’ mosaics. Aboriginal culture has been incorporated into the ideological

property of the colonial state and is now part of ‘Australia’s heritage’ (Perry, 1996:

192).

Australian reconciliation’s nation building agenda is in evidence in many

Council documents. The Key Issues Paper, Sharing History, is perhaps the clearest

example.

A shared sense of history has the potential to be an influential agent of reconciliation ...

By actively sharing Aboriginal and Torres Strait Islander peoples’ history and culture,

non-indigenous Australians are able to lengthen and strengthen their association with this

land. Any immigrant peoples will, for a time, experience a degree of historical discomfort

in a ‘strange’ and ‘new’ land, and one way of coming to terms with an adopted country

is to view the land through the eyes of its indigenous owners. In forging a new identity,

the immigrant peoples in Australia have sought to share with, and often appropriate,

indigenous symbols, motifs, phrases, and place names – defining Australia’s distinctiveness

by seeking to share Aboriginal and Torres Strait Islander peoples’ culture and history.13

(CAR, 1994: 1)

It was not just Paul Keating and the CAR that called for the indigenising of settler

culture, such sentiments are prevalent amongst many supporters of indigenous rights.

Reconciliation Convention (1997) Rapporteur, Father Frank Brennan, for example

linked the ‘one nation’ agenda to the desire for a strong national identity. Brennan

(2001: xv) writes that,

it would be better for all Australians … if we could go into the next millennium committed

to the legacy of ‘one land, one nation’. Our shared commitment to the nation would forge

a strong identity and secure a place for all who belong on this continent (my emphasis).

The unidirectional flow of such ‘sharing’ of history suggests that behind the

rhetoric lies egocentric settler motivations. Again, the CAR’s Key Issue Paper is

illuminating:

The reconciliation process seeks to encourage non-indigenous Australians to deepen and

enrich their association with this country by identifying with the ancient Aboriginal and

Torres Strait Islander presence in Australia. A common misconception is that Australia is

the youngest continent – only 206 years old – whereas in reality it is one of the oldest:

12 Aboriginal art and artefacts have become commodities in a market in which indigenous

peoples have little involvement (see Perry, 1996: 192).

13 I am indebted to Moran (1999) for this point.

Reconciliation and Colonial Power164

both in terms of geology and continuous human history. It is only through indigenous

Australians that non-indigenous Australians can claim a long-standing relationship with

and deeper understanding of Australia’s land and seas, in a way possible to other nations

who have occupied their native soil for thousands of years. (CAR, 1994: 28)

These aspects of Australian reconciliation appear to have several functions. First, by

seeking to ‘include’ people, thereby implicitly acknowledging their prior ‘exclusion’,

it legitimises and periodises the non-indigenous and aids the claim to post-colonial

status. Second, via the full incorporation of indigenous people, it aims to enrich

a historically immature settler culture with symbols of Aboriginal spirituality,

which highlight their deep cultural and historical connection with the land. Third,

incorporating Aboriginality into the cultural fabric of the nation inherently weakens

Aboriginal claims based on their traditional ‘separateness’ from settler culture (see

Moran, 1999). Indeed, indigenous claims for recognition of sovereignty and political

autonomy are at variance with this element of Australian reconciliation rhetoric,

which is more in keeping with the blatant assimilation policies of the pre-1960 era.

To compound matters, the incorporation of Aboriginality is asserted in the

language of positive rights. In the CAR’s Annual Report of 1994–5, the social

justice section states, ‘indigenous peoples are central and integral to the cultural

fabric of this nation. Their place is one of right, not privilege or patronage’ (CAR,

Annual Report, 1994–5). Thus, it seems that indigenous peoples have a right to be

incorporated into the Australian nation but not a right to refuse. As Perry (1996: 197)

writes ‘despite extensive attempts by recent Australian governments to reform and

improve the situation of indigenous peoples, the goal of incorporating them into the

state seems to have continued, regardless of the shifts in public rhetoric or innovative

phraseology’. If Australian reconciliation were truly concerned with addressing past

injustice and its legacy it should proceed, in principle, without the assumption that

settler and indigenous communities comprise one nation.

Yet, by the time Keating left office in 1996, it seemed that Australia’s national

identity had been reconfigured in the cultural imaginary as post-colonial, harmonious

and multicultural. With the aid of high profile developments like Mabo, the Redfern

Park Statement, the NTA 1993 and Australian reconciliation, indigenous peoples

could now be considered a legitimate part of the Australian nation. Their interests

would be ‘balanced’ against those of ‘other’ Australians; there would be no more

discrimination. Yet as we have seen this is mere illusion. Beneath the veneer of

agrarian reform Mabo essentially legitimised colonial dispossession, while the NTA

1993 prioritised commercial interests over the indigenous rights it was supposedly

protecting in such a way as to render them meaningless. Australian reconciliation

acted as an overarching legitimising (nation-building) discourse that aided the

counterfactual ‘post-colonial’ framing of both Mabo and the NTA 1993.

Following the passage of the NTA 1993 the Australian reconciliation discourse

turned away from the issue of land towards attaining ‘social justice’ for indigenous

peoples. As we shall see in the next section, the policy served to deflect attention

away from key indigenous aspirations. Consequently it was embraced, although

reframed as ‘practical reconciliation’, by a Howard government who reluctantly

inherited the reconciliation process.

The Political Functions of Australian Reconciliation 165

Reconciliation as Rights Limitation: Justice as ‘Social’ Justice

Despite the ‘post-colonial’ governmental rhetoric, the domestic political reality

for indigenous peoples in Australia is one of intense resistance to any fundamental

change in the underlying colonial structures that continue to control and dominate.

As we have seen in Chapters 3 and 4, the emergence of, and response to, the concept

of ‘native title’ in Australia is indicative of such a reality.14 Despite Prime Minister,

Paul Keating’s ‘post-colonial’ rhetoric at the time, the NTA 1993 was a product of the

balance of power between political interests that simply confirmed the dispossessed

and subordinated status of Aboriginal people, failing, quite catastrophically, to

provide them with a significant land base (see Coombs, 1994: 210).15 In spite of this,

the native title legislation served to divorce the issue of land from the CAR’s ‘social

justice’ agenda, thereby flouting a central conclusion of the Royal Commission

into Aboriginal Deaths in Custody (hereafter the Royal Commission), which stated

that the root cause of current structurally entrenched social inequality was the

dispossession of land and loss of autonomy (1991).

The CAR’s Social Justice issues paper defines the term as having three dimensions

– ‘the securing of citizenship rights, of specific indigenous rights, and constitutional

acknowledgment of these rights’ (Council for Aboriginal Reconciliation 1995). The

Council defines indigenous rights as:

cultural and intellectual property rights, covering such things as the protection of

indigenous art, music, stories and dance, and rights related to indigenous knowledge of the

medicinal and food values of native flora and fauna. These rights should be enforceable for

indigenous peoples as the first peoples of Australia (Council for Aboriginal Reconciliation,

1995: Chairperson’s Introduction).

Under this ‘flora and fauna’ definition the ‘first peoples of Australia’ do not possess

inherent rights to self-determination and land.16 The CAR also suggests, in the

same report, that during its initial policy consultation process ‘a common view

expressed … was: ‘There can be no reconciliation without social justice’ (Council

for Aboriginal Reconciliation 1995). Yet, in the many interviews and conversations

14 For an illuminating discussion of the responses of interested parties to the Mabo

decision see Tickner (2001).

15 The land rights recognised thus far under the Native Title Act 1993 (NTA) have failed

to provide indigenous people with the land base that is so central to their culture. So far there

have been just 30 determinations of native title, most of which are in the form of ‘Land Use

Agreements’, which do not amount to anything like freehold title (they do not even convey

a right of veto on future land ‘use’), are certainly not accompanied by political autonomy

and are largely off mainland Australia. Furthermore, the 1998 amendments to the NTA

have weakened indigenous land rights to the extent that they are now almost meaningless.

Consequently, Australia has been severely criticised on no less than three separate occasions,

by the United Nations Committee on the Elimination of all forms of Racial Discrimination,

see for example: -Decision 1(53); CERD/C/53/Misc.17/Rev.2, 11 August 1998.

16 Over the years indigenous rights to land and self-determination were occasionally

mentioned in various Council documents, but they never assumed a central place within the

dominant notion of social justice.

Reconciliation and Colonial Power166

I have had with indigenous people the word ‘justice’ was never preceded by the

word ‘social’, since, despite the existence of native title, there is a strong sense that

the underlying injustice of historic and continuing dispossession has not been dealt

with. For example, Michael Anderson of the Sovereign Union of Aboriginal Peoples

of Australia stated:

there can be no reconciliation without justice that recognises continuing Aboriginal

Sovereignty and brings meaningful self-determination to Aboriginal peoples ... talk of

just social justice insinuates that such issues have been dealt with ... they have not (author

interview, 12 December 2002).

Kevin Gilbert (1994: 163) also suggested that ‘if there is to be a regeneration of

blacks, it must come through self-determination, however hesitant the first steps’.

Historian Bain Attwood (2000: 258) states that the crux of the matter is:

to recognise the past in the present – to see the horrible destruction of the past continues

to burden the present of Aboriginal and Torres Strait Islanders – and to take responsibility

for helping to address this through reparation … (isn’t it odd that this term is seldom

heard here yet it is commonly used in the context of the German state and the Jewish

Holocaust?).

The function of Australian reconciliation’s narrow focus on ‘social’ justice was

the effective exclusion of discussion of reparations, meaningful land rights, and

remedial political rights like self-determination, concerned as it is with present social

inequality in isolation from the past. The historical chain of causality was largely

ignored while the legitimacy of imposed colonial structures remained unquestioned.

Indeed, Australian reconciliation persistently failed to adequately address the causal

connection, highlighted by the Royal Commission, between current structurally

entrenched social disadvantage and the dispossession of land and loss of autonomy.

A prime example is the ‘National Strategy for Economic Independence’ which

avoids the issues of land and self-determination:

National Strategy for Economic Independence – This strategy recognizes that economic

empowerment will not occur through welfare programs … but through; better access to

capital, business planning advice and assistance; better access to training and development

opportunities; promotion and encouragement of Aboriginal and Torres Strait Islander small

business; fostering partnerships with the business community (Council for Aboriginal

Reconciliation: National Strategies for the Advancement of Reconciliation).

A primary focus on capitalist oriented solutions seems inimical to a reconciliation

process instigated to ‘address progressively indigenous aspirations in relation to land

… law and justice’ (Council for Aboriginal Reconciliation Act 1991: Preamble). As

Aboriginal spokesperson Ray Jackson (2000) commented,

our economic independence is based in and on and with our lands. We do not all aspire to

becoming a Packer or a Murdoch, nor do we all aspire to be shop owners. Independence

and our lands are as one, indivisible one from the other.

The Political Functions of Australian Reconciliation 167

The function of this aspect of Australian reconciliation was to encourage cultural

assimilation and the acceptance of individualistic market based ‘solutions’ to

contemporary inequalities. Indeed, Australian reconciliation’s social justice ‘flora

and fauna’ conception of indigenous rights offered no consolation to those indigenous

peoples with an alternative view of the good life.

Conceptions of indigenous rights like those of Mabo and Australian reconciliation

are based on the distinctiveness of Aboriginal peoples as Aborigines. The politics of

difference is now the common foundation for settler state granted ‘Aboriginal’ rights

and while such rights may have ushered in a somewhat higher degree of internal

autonomy for indigenous peoples within state systems, they deny indigenous peoples

the right to appeal to ‘universal’ principles of freedom and equality in struggling

against injustice, precisely the appeal that would call into question the basis of

internal colonisation (Tully, 2000: 47).

Settler state granted indigenous rights are not based on universal principles,

such as the freedom and equality of peoples, the sovereignty of long standing, self-

governing nations, or the jurisdiction of a people over the territory they have occupied

and used to the exclusion and recognition of other peoples since time immemorial

(ibid: 46). The CAR’s approach to indigenous rights is based on the same logic that

justified the Australian High Court’s Mabo decision and the Keating Government’s

Native Title Act 1993. The underlying premise is that Aboriginal rights are not to be

defined on the basis of the philosophical precepts of the liberal enlightenment,17 are

not general and universal and thus categorically exclude any fundamental political

right, such as a right to self-determination that could be derived from such abstract

principles (Asch 1999: 436). In other words Aboriginal people are not considered

‘peoples’ with an inherent right to self-determination, they are ‘cultural’ minorities

who should only posses rights to their ‘intellectual’ property (see CAR definition

above).

The practical root of the problem, however, is a battle for control of natural

resources. As we saw in Chapters 3 and 4 when the hegemony of mining and pastoral

interests was even slightly challenged they instigated misinformation propaganda

campaigns and aggressively lobbied politicians in order to guarantee that indigenous

land rights legislation would not affect their present interests and the prospects for

future development. Indeed, if it were not for the concerns of the mining and pastoral

lobby there would have been no indigenous land rights legislation during Australian

reconciliation’s official period. It was not on Keating’s agenda and given Howard’s

reaction to Wik it would certainly not have been on his agenda either.

Regardless of Keating’s benevolent and reconciliatory ‘new deal’ framing

it is quite clear that the NTA 1993 was a damage limitation exercise. After Mabo

17 To be sure, liberal enlightenment thinking was in many respects used against the cause

of indigenous peoples (see Locke for example) but only because they were considered to

be outside moral concern due to their primitive status and therefore not to be considered

as self-governing sovereign nations. Nevertheless, the philosophical precepts of the liberal

enlightenment uphold the idea that all peoples have the ‘universal’ right to self-determination

and the like. Once we accept that indigenous peoples are ‘peoples’ then such rights duly apply

to them.

Reconciliation and Colonial Power168

it seemed that some indigenous peoples may be able to regain control over their

traditional lands and therefore the resources on them, but Keating made sure that

when enacting legislation to ‘protect’ indigenous land rights he did not include a

right of veto over future development, which, as the Woodward commission stated

back in 1975, makes land rights largely meaningless.

The legislation ensured that to gain ‘economic independence’ indigenous peoples

would have to sell their labour and compete in the capitalist market place as individual

workers not collective owners able to deal with their resources as they see fit. Thus,

in the light of such legislation the CAR’s unquestioning acceptance of individualistic

capitalist solutions to the problem of social justice serves to reinforce rather than

undermine the colonial relationship while encouraging cultural assimilation.

The Howard Era

The Denial of Illegitimacy and the Outback ‘Battler’

Unlike Paul Keating, when John Howard became Prime Minister in 1996 he reluctantly

inherited the reconciliation process.18 Howard was one of the most strident anti-treaty

campaigners in the late 1980s (allegedly on the ideological grounds that a nation state

can not construct a treaty with its own citizens) and his liberal party only consented

to the passage of the reconciliation legislation when it was certain that it would not

bind governments in any way (see Tickner, 2001). Accordingly Howard’s first act

concerning Aboriginal affairs, or the ‘Aboriginal industry’ as he contemptuously

called it, was to cut the budget by AUS$400 million dollars (Pilger, 1998: 232), an

act which set the tone for his premiership from that point on. In contrast to Keating,

Howard sought to construct a more traditional conservative national identity that was

in many ways at odds with the spirit of Australian reconciliation as outlined in the

CAR legislation’s preamble.19 Where Keating sought legitimacy Howard lambasted

the ‘guilt industry’ and trivialised colonial injustice.

While both the practical and theoretical literature on reconciliation frequently

engages in disputes over justice there is almost unanimous support for the proposition

that the first step must be the full and unequivocal acknowledgment of harm. Yet,

when faced with the publication of Bringing Them Home and the press calls for an

official apology, Howard engaged in what Cohen (2001: 109) has termed ‘implicatory

denial’. Rather than symbolically apologise for past injustices he expressed regret

for the ‘blemish’ (Howard, 2000: 90) of the past. For Howard there was very little

that was illegitimate about Australia’s past and consequently he disagreed strongly

with his predecessor’s approach to national identity and the need for legitimising

reconciliation.

18 As we saw above Keating was a willing participant in the redemptive rhetoric of

reconciliation and utilised the language of reconciliation frequently during the Mabo

‘debates’.

19 In accordance with this he cut immigration and reduced the funding of the Human

rights and Equal Opportunities Commission whose responsibility is to protect minorities and

raise awareness about racism (see www.hreoc.gov.au).

The Political Functions of Australian Reconciliation 169

According to Howard (1995), and other conservative writers like McGuniness

(1993), concerns over post-colonial legitimacy displayed a lack of national self-

confidence. As discussed in Chapter 5, Howard also contested the revisionist

historical narrative, embraced by Keating, which had finally addressed the historical

exclusion of the Aboriginal perspective but which Howard (1996) disparagingly

referred to as the ‘black armband view of history’. He preferred to return to the

colonial ‘white blindfold’ view of Australian history, which constructs the past as

broadly constituting a ‘heroic and unique achievement against great odds’ (ibid.). As

Gray (1999: 80) writes:

For Howard, the purpose of history was – and is – simple: firstly to inculcate in all

Australians a sense of belonging to ‘one nation’, and secondly to nurture pride in the

heroic achievements of ‘our’ forbears. The Prime Minister accused ‘revisionist’ historians

of undermining that purpose when they draw attention to past divisions and conflict,

question the founding myths and triumphalist moments of the nation’s history.

Like Keating, Howard used identity claims to justify political actions, but in

contrast to Keating he implicitly set out his political stall in opposition to the prior

ideological thrust of reconciliation. There would be only limited acknowledgment

of the ‘blemish’ of colonial history and certainly no apology or compensation for the

Stolen Generations. On these issues Howard displayed the self-confidence he wished

to instil in the Australian cultural imaginary. An Australian population confident of

its ‘heroic past’ and egalitarian present would have no time for the ‘guilt industry’.

Howard used his interpretation of Australian national identity as justification for

political actions inimical to the spirit of the reconciliation legislation’s preamble. His

calls for Australians to be confident of their achievements and national identity and

to shun the ‘black armband view of history’ which spawned the ‘guilt industry’ (read

Australian Reconciliation under Keating) assisted his political agenda on several

fronts. It aided his government’s outright denial of BTH’s accusation of genocide and

its ‘implicatory denial’ of the whole issue of the Stolen Generations. Consequently,

it made its refusal of an apology and compensation for the child removal policies

seem more reasonable. In addition, as we saw in Chapter 4, in order to add weight

to the mining lobby’s construction of a national crisis of ‘uncertainty’ following the

Wik decision, Howard invoked his preferred cultural imagery to justify the de facto

extinguishment of native title through the NTAA 1998.

Throughout the Wik debate indigenous peoples were constructed as the alien

Other threatening to dispossess the out-back ‘battling’ bush farmers who had

heroically struggled for decades to successfully master the adverse climate. ‘They

often endure the heartbreak of drought’ and the ‘disappointment of bad international

prices after a hard-worked season’ and they consequently occupy ‘a very special

place in our heart’ (Howard, 1997). In contrast, Aboriginal people were once again

seen as pests standing in the way of progress. Indeed, Howard found ‘it impossible

to imagine’ the Australia he loves ‘without a strong and vibrant farming sector’ and

that ‘the nub of the problem’ was the Wik case (see Howard, 1997 and Chapter 4 for

the full text). On reading such rhetoric one is left with the impression that it is the

good old Aussie farmer who ‘belongs to the land’ and not the Aborigine.

Reconciliation and Colonial Power170

Invoking such imagery as a justificatory tool for extinguishing native title was a

tried and tested formula. Indeed, it is reminiscent of the seventeenth century Lockean

notion that people could only truly ‘own’ their land if they ‘improved the soil’, which

of course was used to justify colonial dispossession. In this instance the rhetoric

was used to justify a contemporary land grab of enormous proportions. Under the

auspices of achieving ‘certainty’ for the pastoral industry Howard upgraded hundreds

of pastoral leases to freehold title. Furthermore, where once Aboriginal native title

rights (to hunt, fish and conduct ‘traditional practices’) legally coexisted with the

rights of pastoralists to ‘graze stock’, under Howard’s NTAA 1998 pastoralists could

now engage in previously illegal ‘primary production’ activities totally antithetical

to the enjoyment of native title. Extremely wealthy domestic and international elites

could now obtain a taxpayer sponsored ‘upgrade’ of land title at the expense of

impoverished indigenous communities.20

While the enactment of the NTAA 1998 was itself an affront to the spirit of the

reconciliation legislation’s preamble, in that rather than address indigenous aspirations

to land it dispossessed them still further, the pre-legislation Wik debate undoubtedly

undermined the CAR’s educational work, its central official purpose. In Chapter 6

we saw how the CAR had somewhat unsuccessfully executed its educational role. I

concluded that this was down to a number of factors: a severe lack of funds leading to

an over reliance on goodwill and local initiatives, an unfocussed inclusive approach

that failed to adequately concentrate on indigenous people and their key aspirations,

and last, but by no means least, the political rhetoric of commercial interests and the

Howard government who sought to cultivate societal ignorance of indigenous issues

to further their extinguishment agenda.

An under-funded and somewhat misguided CAR was unable to compete with

the government and corporate propaganda campaign. Ministers frequently invoked

populist cultural stereotypes that the CAR was trying to eradicate through it education

campaign. For example, during the Wik debate, Howard’s adviser, Senator Nick

Minchen (1996), suggested that if Aborigines ‘got too much’ the community would

resent their ‘special rights’ and therefore ‘undermine the reconciliation process’.21

The government and the industry lobby dominated the mass media coverage to an

extent that rendered the CAR largely impotent. Howard reinforced the impotency

by deciding ‘not to renew’ the post of the CAR’s increasingly critical Chair, Patrick

Dodson.

In short, soon after his election John Howard instigated an implicit assault on the

foundations of reconciliation. Unlike Keating who at least embraced the language,

if not the spirit, of reconciliation, Howard had little time for the concept as it served

no useful political or social purpose. Politically it was a hindrance, while socially

Howard felt that Australians just needed to be more self-confident of their collective

identity: a mere ‘blemish’ does not require atonement, acknowledgement or redress.

Indeed, under Howard Australian reconciliation, as construed by Keating and the

CAR, had no place either in the national cultural imaginary or the political process,

20 For a list of major leaseholders and their connection with the Howard government see

Chapter 4.

21 Radio Australia interview 13 May, 1996 see Minchen, 1996.

The Political Functions of Australian Reconciliation 171

since its foundation was instantly undermined by a view of the past that suggested

there was nothing really to reconcile.

Nevertheless, Howard was stuck with an official process that had a legislative

mandate up until 2001. Politically while Howard had no need for reconciliation he

still needed an official stance. Thus, the challenge was to construct a policy position

that could accommodate his political ideology. Howard, like many Prime Ministers

before, gave the distinct impression that he would rather indigenous people were

simply absorbed into the Australian working class. Throughout his premiership he

has displayed very little sympathy or understanding of their plight and provided them

with no hope of change. The only reconciliation policy he could endorse exhibited

a decidedly assimilationist thrust. He termed this approach ‘practical reconciliation’

which, as we shall see in the next section, served to deflect attention away from his

stance on the Stolen Generations and the extinguishment of native title.

Assimilation through ‘Practical Reconciliation’

The Howard government strategically sought to shift the reconciliation discourse

away from rights issues by promoting a ‘practical reconciliation’ agenda which

focused on ‘individuals’ (see Howard, 2000). Former Senator for Aboriginal Affairs,

John Herron, described this directional shift at the United Nations Working Group

on Indigenous Populations. He stated that it was his government’s desire to change

the direction of indigenous affairs away from welfare dependency towards:

policies that facilitate and promote genuine economic independence for indigenous

people, policies that go beyond the ‘catchcry’ of land and mining royalties and encompass

both individual-skills development and productive business enterprises. There have

been ... assertions that the solution ultimately lies in the direction of forms of Aboriginal

sovereign self-government as contemplated by the ‘self-determination’ provisions of the

Draft Declaration of the Rights of Indigenous Peoples. The Draft Declaration itself is at

risk of becoming a distraction from the real tasks and priorities before us. The Australian

Government rejects ‘the politics of symbolism’. We believe in practical measures leading

to practical results that improve the lives of individual people where they live (1999).

Underpinning the new ‘practical’ approach, then, is a desire to ‘go beyond’ the

‘catchcry’ of key indigenous aspirations concerning land rights, sovereignty and

self-determination. While the ‘practical’ policy promised to target the worst areas of

indigenous socio-economic disadvantage, namely, employment, education, housing

and health, the policy attaches little significance to the fact that Aboriginal people

will have little influence on policy implementation as such areas are almost entirely

controlled by ‘white’ institutions. Perhaps more than any other government over

the last 15–20 years, the Howard government has shown no desire to learn what

the Royal Commission into Aboriginal Deaths in Custody (1991) termed the ‘great

lesson’ of indigenous/settler state relations:

The great lesson that stands out is that non-Aboriginals, who currently hold all the power

in dealing with Aboriginals, have to give up the usually well intentioned efforts to do

things for or to Aboriginals, to give up the assumption that they know what is best for

Reconciliation and Colonial Power172

Aboriginals ... who have to be led, educated, manipulated, and re-shaped into the image

of the dominant community. Instead Aboriginals must be recognised for what they are, a

peoples in their own right with their own culture, history and values’ (RCIADIC National

Inquiry 1991).

In his Reconciliation Convention (1997) speech Howard began planting the seeds of

‘practical reconciliation’ by invoking the rhetoric of formal equality and reinforcing

his government’s position on self-determination:

(reconciliation will not work) effectively if one of its central purposes becomes the

establishment of different systems of accountability and lawful conduct among Australians

on the basis of their race or any other factor (ibid.).

He then linked the policy of ‘practical reconciliation’ with the notion of social justice

first adopted by Keating and the CAR: ‘this practical, on-the-ground approach will

remain a primary focus of our policy making. This is because we believe it will bring

about true social justice for indigenous Australians’ (ibid.).

Underpinning the ‘practical reconciliation’ agenda is the rhetoric of ‘formal

equality’. Howard has frequently lambasted pro-Aboriginal initiatives as offending

the ‘Australian sense of equality’ and going ‘too far’. He explicitly rejects the notion

of ‘special rights’ for indigenous peoples as ‘inconsistent with citizenship rights’

and inimical to the notion of equal treatment for all (Howard 1988: 6, and 2000: 90).

Such rhetoric serves to reinforce the ‘one nation’ theme, developed by the CAR,

which denies indigenous nationhood and claims for political autonomy. This crucial

function is plainly evident when Howard (2000: 90, my emphasis) suggests that,

We all have rights and obligations as Australians (but) we cannot share a common

destiny if these rights are available to some Australians, but not all. Likewise, we cannot

share a common destiny without an overriding and unifying commitment to Australian

institutions.

Yet, the stated aim of ‘practical reconciliation’, to ‘go beyond’ the ‘catchcry’ of key

indigenous aspirations such as land rights and self-determination, appears to be little

more than a smokescreen for an inherently assimilationist ‘initiative’ that merely

focuses on capitalist solutions to the ‘Aboriginal problem’. As Aboriginal scholar

Larissa Behrendt writes:

the clear agenda (of ‘practical reconciliation’) is one of assimilation and integration. This

of course, is not a new ideology, but a throwback to the paternalistic days when Welfare

Boards and Aboriginal Protection Boards dictated the lives of indigenous people and their

children. It is an ideology that has been used in the past, did not work then, and has not

only been rejected by indigenous people, but has left a lasting legacy of disadvantage,

trauma and family breakdown that is still plaguing indigenous communities and families

today (2002).

Howard (2000: 90) has further sought to diminish the force of historically based

Aboriginal claims by suggesting that ‘the reconciliation process must focus on the

future’. The Prime Minister’s favoured rhetorical approach has been to frame his

The Political Functions of Australian Reconciliation 173

‘practical’ initiative around the cultural myth that Australia is the land of egalitarian

‘mateship’ and the ‘fair go for all’. Yet, Howard’s notion of fairness was situated

entirely in the needs of the present with no regard for the effects of unequal bargaining

power and historically based inequalities.22 The inherent contradiction in such an

approach, however, was highlighted by the Royal Commission when it made the

rather obvious connection between past and continuing dispossession and present

social disadvantage. As Ross Poole (2000: 10) suggests,

indigenous peoples represent the expropriation – the original sin – on which settler

societies were founded. Far from this injustice having been ‘superseded’ by the onward

march of history, it continues in the material and cultural conditions of indigenous life. If

we are to understand the present we must also come to terms with the past.

Howard’s white blindfold view of history and his reformulated version of

reconciliation sought to sanitise the past and at the same time disconnect it from the

present. While Howard may have found the existence of a reconciliation process

a political hindrance during the Wik and Stolen Generations debates, once he had

formulated his own reconciliation policy he sought to dictate and shape the national

reconciliation agenda by forcefully promoting his ‘practical’ approach whenever

the opportunity arose. The task was made easier when the CAR’s mandate ended

in 2001. Since then Reconciliation Australia, a private foundation set up with

Howard’s backing to continue the work of the CAR, but dependant on charitable

donations, conceded that they had to work within Howard’s ‘practical’ framework

(Reconciliation Australia, 2003).

Even though Howard finally found a use for the language of reconciliation he

continued to be at odds with the spirit of reconciliation and, while it existed, with

the CAR itself. It should be noted, however, that in many ways Howard’s ‘practical

reconciliation’ initiative was not dissimilar to the CAR’s social justice strategy in

that they both emphasised individualistic capitalist solutions to the ‘indigenous

problem’. It seems that the point of divergence concerned the symbolic dimensions

of reconciliation, apology, acknowledgment and the like, since, as we have seen,

neither the CAR nor Howard were interested in changing the colonial relationship

in any fundamental way.

Reconciliation: From Keating to Howard

The demise of the White Australia policy and the advent of an increasingly

multicultural demographic necessitated a shift in the Australian national cultural

imaginary. With increasing frequency politicians began to inform the population

that Australia was fast becoming a harmonious multicultural society. Yet, a major

obstacle to this re-imagining of Australia was the status of the indigenous peoples.

22 Howard has stated that the reconciliation process ‘must focus on the future’, yet while

reconciliation is concerned with a achieving a peaceful future it’s focus must primarily be on

the past injustices that have necessitated the process in the first place. For a general statement

of his overall position see, Howard (2000: 87).

Reconciliation and Colonial Power174

The growing politicisation of Aboriginal peoples, coupled with an emerging

revisionist historical narrative, began to raise the profile of the indigenous plight

such that politicians became concerned about Australia’s international image.

The desire for a legitimate image is one of the reasons why the Aboriginal

campaign for a treaty in the 1980s had significant resonance. Yet, the desire for

the appearance of legitimacy is one thing; the desire for fundamental change is

another. Hawke’s promise of a decolonising treaty was gradually diluted and recast

as a vague reconciliation initiative. In that sense the first and primary function of

Australian reconciliation was the deflection of the treaty debate. The importance

of education and attitudinal change for the non-indigenous became the focus of

Australian reconciliation at the expense of commitments to justice that would bring

land rights and political rights to indigenous peoples. In spite of this Australian

reconciliation still functioned as a discursive device for the construction of a post-

colonial legitimacy so keenly sought by Labour politicians at the time.

Paul Keating’s Redfern Park Statement was perhaps the effusive peak of the

political desire for the appearance of post-colonial legitimacy. Under Keating’s

stewardship the cumulative political and social function of Australian reconciliation,

incorporating the Mabo case and the NTA 1993, was the construction of a new ethical

image which legitimised the non-indigenous via the admission of liability for past

mistreatment of indigenous people and the promise of future social justice.

This new ethical image was further enhanced by Australian reconciliation’s

apparently benevolent and well intentioned nation-building agenda that sought

to ‘include’ indigenous people in the cultural fabric of ‘the nation’. Yet without

substantive redress measures for colonial injustice and its legacy such ‘inclusive’

approaches merely served to fill a post-White Australia national identity deficit

with Aboriginal cultural symbols while at the same time diminishing the force of

indigenous claims based on their separateness from ‘other Australians’. Indeed,

despite the obvious limitations of the NTA 1993, the issue of land rights, sovereignty

and self-determination failed to feature in the CAR’s ‘social’ justice policy.

Thus, in its early years reconciliation, as defined by CAR and government action,

should be understood as concerned only with the appearance of justice for indigenous

peoples. It was an exercise in self-validating ‘post-colonial’ legitimisation which

took place merely in the imagined political community and made no impact on the

colonial structures that continue to dominate and subordinate indigenous peoples.

On the contrary, the language of reconciliation was utilised to obscure the fact that

Mabo and the NTA 1993 confirmed the colonial relationship, while the function of

Official Reconciliation’s narrow focus on ‘social’ justice was the effective exclusion

of discussion of reparations and remedial political rights, concerned as it was with

current social inequality in isolation from the past.

When Howard reluctantly inherited the reconciliation process in 1996 its function

became uncertain. Unlike Keating, Howard seemed to be ideologically at odds

with the dominant thrust of the process. Where Keating had constructed an illusion

of legitimacy and the appearance of justice through skilful use of the language of

reconciliation, Howard seemed unconcerned with such subtleties. After a severe

budget cut there followed a concerted assault on the revisionist historical narrative that

fuelled the treaty campaign and led to the reconciliation process. For Howard post-

The Political Functions of Australian Reconciliation 175

colonial legitimacy was not needed, there was nothing to be ashamed of. Australians

just needed to be more self-confident since colonial injustice was little more than a

‘blemish’ on the Australian cultural landscape. As Gray (1999: 81) writes:

Howard presents a view of Australia that is relaxed and comfortable, where there are

no divisions or conflicts. In this world Australians are at ease with themselves and their

past, and ‘whiteness’ as a cultural and social value is sought by all. This is the world of

assimilation where race (and difference) is erased.

Howard’s ‘white blindfold’ view of colonial history facilitated the denial of an official

apology and compensation for the Stolen Generations, while his Wik legislation

ensured that the battling Aussie bush farmer who ‘belonged to the land’ (in actuality

the primary beneficiaries are Australian and international elites, see Chapter 4)

would not be dispossessed by the undeserving lazy Aboriginal. Following the Wik

and Stolen Generations debates Howard sought to move the reconciliation discourse

away from rights issues toward ‘practical’ assimilationist policies that were more

in keeping with his political ideology. Such a retrograde initiative was inimical to

the spirit of reconciliation, as outlined in the legislation’s preamble, but was not

dissimilar to the CAR’s own social justice agenda.

Indeed, while the CAR disagreed with Howard’s approach to Wik and the Stolen

Generations, there was little difference between the CAR’s social justice agenda

and Howard’s ‘practical reconciliation’ initiative. Both approaches emphasised

individualistic capitalist solutions to indigenous disadvantage while ignoring key

indigenous aspirations of self-determination and land rights which would confer full

control of both the land itself and its natural resources. The CAR and Howard had

their differences but when it came to social justice they were largely cosmetic.

In short, it is possible to identify two overarching functions of reconciliation during

the Howard era: the encouragement of cultural assimilation and the sanitisation of

colonial history. Under Howard reconciliation’s dire lack of substance emerged from

behind Keating’s ‘post-colonial’ smokescreen. Stripped of the legitimising pretensions

all that really remained were the individualistic culturally destructive ‘solutions’,

which, as we saw in the previous chapter, were entirely out of step with indigenous

aspirations. Reconciliation through assimilation became the dominant ideology.

Early on in Howard’s premiership he derided the ‘black armband view of

history’ and the ‘guilt industry’ in order to diminish the force of historically based

Aboriginal claims. Gradually however, Howard’s white blindfold view of colonial

history became intertwined with his government’s approach to reconciliation.

Indeed, this sanitisation strategy is evidenced by the creation of Reconciliation

Place in Canberra, a monument created with minimal indigenous input ‘to tell stories

of hurt and hardship but more importantly to celebrate Australia’s achievements’

(Ruddock 2002, my emphasis) and the continued efforts to remove the ‘unsightly’

Aboriginal Tent Embassy, the most famous reminder of colonial domination. As

Darren Bloomfield, embassy spokesperson, told me ‘once again their version of our

past becomes the truth. Where does Reconciliation Place tell stories of genocide,

massacres, poisoning, rape and our ongoing dispossession?’23

23 Author interview, 5/5/02.

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Chapter 9

Conclusion

Australian reconciliation was born out of a political desire to deflect the growing

campaign for a treaty in the 1980s. Indeed, far from providing the basis for nation to

nation treaty negotiations with indigenous peoples on equal terms, Prime Minister

Paul Keating and the CAR positively promoted an overt nation building agenda

which aimed to cosmetically legitimise the settler nation, by the inclusion of

previously excluded Aboriginal people, while at the same time indigenising settler

culture and effectively restricting indigenous aspirations to participation ‘within’ the

political and cultural confines of the nation state.

Freeman (2002: 85, see also Chapter 2) has warned that the ‘institutionalisation of

human rights may … lead, not to their more secure protection but to their protection

in a form that is less threatening to the existing system of power.’ Sociological

analysis of ‘rights’ can highlight the role of power relations in the social process of

their construction and consequently we should not assume that the eventual rights

conferred will be of benefit to the rights holders. During Australian reconciliation

both the Keating and Howard governments had the opportunity to give legislative

effect to common law indigenous land rights. Yet, as we have seen, the initial

legislation that was supposedly enacted to ‘advance’ indigenous native title rights

and ‘nourish’ the reconciliation process closely reflected the opposing demands of

commercial interests, while the Native Title Amendment Act 1998 actually functioned

to dispossess indigenous people still further.

Following the second piece of ‘land rights legislation’ the Howard government

began to promote its ‘practical reconciliation’ policy in order to ‘move beyond’ the

‘distraction’ of indigenous rights and return to assimilationist initiatives primarily

framed in the language of formal equality and citizenship rights. The Howard

administration also engaged in ‘implicatory denial’ (Cohen, 2001: 111) of the Stolen

Generations and refused both a formal apology and reparations for their treatment.

The trajectory of both the land rights issue and the Stolen Generations ensured that

Australian reconciliation became almost completely out of step with the aspirations

of most indigenous peoples.1 Australian reconciliation promoted an indigenised

settler cultural imaginary, through the incorporation and appropriating of indigenous

cultural symbols, whilst offering no redress for the situation that, according to the

preamble of the Act, necessitated the process in the first place. As Colin Tatz suggests,

this must be the best possible ‘bargain’ for settler society (2000: 2).

As we have seen, Australian reconciliation process was underpinned by colonial

assumptions and positively engaged in an erroneous construction of a singularity

of nationhood. If one considers such underpinnings in conjunction with the poor

1 See Chapter 7, particularly the Issues Deliberation Australia (2001) research findings.

Reconciliation and Colonial Power178

performance of successive governments on key indigenous aspirations during the

reconciliation period, and the failure of the CAR’s educational function as we saw in

Chapter 6, it is understandable that many indigenous peoples view reconciliation as

yet another disingenuous ‘initiative’ fuelled by selfish settler motivations.

Yet, this situation did not lead to the total abandonment of the concept of

reconciliation. Rather it began to galvanise support amongst many indigenous

activists, spokespersons and leaders for a campaign that focused on the ‘unfinished

business’ of reconciliation (see Huggins 2000). Indeed, at the end of the formal process

of reconciliation the debates came full circle. Several major national conferences were

held to consider the reconciliatory potential of a treaty or treaties (see Indigenous

Governance Conference, Canberra, April 2002, National Treaty Conference, Canberra,

August 2002). Such conferences focussed on what form a truly de-colonising

reconciliation process should take. In order to consider this question here it is helpful

to take a step back to the beginning of this book and briefly reflect on the insights

provided by the theoretical literature on reconciliation processes.

Reconciliation as a peacemaking paradigm gradually developed over the last two

decades as several countries attempted to recover from episodes of mass violence

and gross human rights violations (see Allen, 1999, Minow, 1998, Lederach, 1999,

Roteberg and Thomson, 2001). By focusing on restoring and rebuilding relationships

reconciliation initiatives sought to provide an alternative to traditional state diplomacy

and realpolitik (Lederach, 1999). Their primary concern has been to develop

mechanisms that foster state legitimacy, forgiveness and social stability by attempting

to atone for past injustices in novel and context sensitive ways. In theory reconciliation

as a peacemaking paradigm involves the creation of a ‘social space’ where truth, justice,

vengeance and forgiveness are validated and joined together, rather than being forced

into a confrontation where one must win out over the other (see Lederach, 1999).2

The practice of reconciliation, however, has not been quite so simple. All too

often it seems the notion of forgiveness does ‘win out’ over justice. South Africa’s

Truth and Reconciliation Commission, for example, has received strong criticism

both from victims, politicians and academics in this regard. Indeed, Wilson (2001)

has shown that while a religious constituency largely embraced the Truth and

Reconciliation Commission’s redemptive language, it had little effect on popular

ideas of retributive justice. As we have seen, Australian reconciliation’s narrow

emphasis on social justice was also out of step with the victims’ desire for a broader

de-colonising approach to justice.

In this regard, where the reconciliation paradigm is concerned with indigenous/

settler state relations, there are fundamental issues which need to be addressed (see

Short, 2005). If the concept of reconciliation is concerned with the ‘original sin’

(Poole 2000: 10) of colonisation without consent and its legacy, we need to be clear

2 Adapted from a conceptualisation provided by John Paul Lederach. I emphasise the

word paradigm as this is a normative theoretical position and not a reflection of past practice.

I deviated from Lederach’s conceptualisation with the inclusion of ‘vengeance’ and the

omission of ‘mercy’, as I felt that his conceptualisation was unduly restricted to the elements

identified in Psalm 85 and felt that a more accurate exposition of human responses to ‘harm’

is provided by Minow (1998).

Conclusion 179

on the appropriateness of the desired outcome. As we saw in Chapter 2, Crocker

(2000: 108) has identified three broad ‘meanings’ of reconciliation as an outcome

that range from ‘thinner’ to ‘thicker’ conceptions. First there is ‘simple co-existence’,

whereby former enemies merely cease hostilities. The second conception is termed

‘liberal social solidarity’ or ‘democratic reciprocity’, which refers, not just to an

end to hostilities, but to a situation where citizens respect each other and seek to

create space to hear each other out, enter into a give-and-take on public policy, build

on areas of common concern, and forge mutually acceptable compromises. Finally

there is ‘a shared comprehensive vision of mutual healing, restoration and mutual

forgiveness’, which is a more robust conception that is often attributed to the South

African and Chilean processes.

Where a reconciliation process is instigated to address the harms that flow from

colonisation there are strong reasons to support the first conception over the second

and third. While settler state citizenship rights were heralded as a significant step

towards equality, they have failed to protect indigenous cultures from assimilationist

pressures. Moreover, as we saw in Chapter 1, citizenship rights fail to do justice to

the unique indigenous status, as, in the eyes of many indigenous peoples, such rights

emanate from an illegitimate settler state that has subordinated indigenous laws and

forms of government. Accordingly the second conception of reconciliation as an

outcome would be problematic as it merely promotes a citizenship based result.3

The third conception’s emphasis on a ‘shared comprehensive vision’ appears

closely related to Australian reconciliation’s vision of a ‘united Australia’. Since

many indigenous peoples do not share the settler Australian vision of the ‘good life’

and consider themselves as separate nations this conception is inappropriate. In this

context demands for conformity to single language and way of knowing can only act

as a bar to reconciliation (Alfred, 1999: 63). Thus, it could be argued that a simple

cessation of hostilities is, prima facie, preferable to the second and third conception

as it is not laden with such colonial assumptions. Moreover, as Tully (in Alfred,

1999: 63) has highlighted,

the imperial demand for uniformity is obsolete and unachievable in the (ethnically,

linguistically, racially) diverse social and political communities characteristic of modern

states. Justice, demands recognition – intellectual, legal, and political – of the diversity

of languages and knowledge that exists among people, indigenous peoples’ ideas about

relationships and power commanding the same respect as those that used to constitute

the singular reality of the state. Creating a legitimate post-colonial relationship means

abandoning notions of European cultural superiority and adopting a mutually respectful

stance.

In addition to the need for such ‘de-colonisation of the imagination’ (Parekh and

Pieterse 1995) we should also note here that even within ‘western’ legal discourse,

legitimate state sovereignty is contingent upon the consent of those affected by it

(ICJ, 1975).4

3 This point was developed further in Short (2003a).

4 The Advisory Opinion of the International Court of Justice in 1975 considered, among

other issues, whether or not at the time of Spanish colonisation the Western Sahara region

Reconciliation and Colonial Power180

Thus, if Australia was genuinely interested in addressing the harms that flow

from colonisation and become truly post-colonial it cannot ignore the problem of

indigenous nationhood and sovereignty. To this end, political scientist James Tully

(2000) has articulated a rational and just solution to the sovereignty challenge

which draws on the works of indigenous academics.5 Tully (ibid: 53) suggests that

for the settler state to gain the consent of indigenous people it is necessary to hold

negotiations ‘nation’ to ‘nation’. Indigenous peoples would be treated as nations

equal in status to the settler state and consequently the ensuing treaties would be

‘international treaties’, which would open up the relevant international avenues

for infringement redress. He argues that such negotiations have the potential to

resolve the problem of internal colonisation provided they adhere to three important

provisions.

1. Indigenous peoples must continue to exercise, without interference, their own

stateless, popular sovereignty on the territories they reserve for themselves.

2. In return for non-interference on indigenous territories, the settlers can

establish their own governments and jurisdictions on unoccupied territories

given to them by indigenous peoples.

3. Indigenous peoples agree to share jurisdiction with the settlers over the

remaining overlapping territories, treating each other as equal, self-governing,

and co-existing entities and setting up negotiating procedures to work out

consensual and mutually binding relations of autonomy and interdependence

… subject to review and renegotiation where necessary, as circumstances

change and differences arise (ibid.).

This method, which Tully describes as a form of treaty federalism, responds to the fact

that indigenous peoples have not legitimately surrendered their pre-colonial status

could be considered terra nullius. The court stated the following: ‘the ‘time of colonization

by Spain’ may be considered as the period beginning in 1884 … it is therefore by reference

to the law in force at that period that the legal concept of terra nullius must be interpreted.

According to the State practice of that period, territories inhabited by tribes or peoples having

a social and political organization were not regarded as terra nullius: in their case sovereignty

was not generally considered as effected through occupation, but through agreements

concluded with local rulers. The information furnished to the Court shows that at the time of

colonization Western Sahara was inhabited by peoples which, if nomadic, were socially and

politically organized in tribes and under chiefs competent to represent them … (consequently)

the decolonization process envisaged by the General Assembly is one which will respect the

right of the population of Western Sahara to determine their future political status by their

own freely expressed will. This right to self-determination … is not affected by the request

for advisory opinion and constitutes a basic assumption of the questions put to the Court’

(International Court of Justice, 1975).

5 There are many writers, both indigenous and non-indigenous, that have articulated

potential solutions to the problem of internal colonialism, such as Asch (1999); Deloria and

De Mallie (1999); Macklem (1993); Alfred (1999); Gilbert (1994); Williams (1997); McIntosh

(1999). For the purposes of this final section, I have opted to focus on the work of Tully

primarily because I consider his articulation of a treaty solution to be the most clear, concise

and pertinent to Australia’s federal political system.

Conclusion 181

as independent political entities. It also challenges the assumption that jurisdiction

cannot be shared. Indeed, the idea, grounded on two indigenous principles, makes the

normative suggestion that free and equal peoples on the same continent can mutually

recognise the autonomy or sovereignty of each other in certain spheres and share

jurisdictions in others without incorporation or subordination (ibid., my emphasis).

In essence, Tully’s formula recognises ‘prior and existing sovereignty not as state

sovereignty, but, rather, a stateless, self governing and autonomous people, equal in

status, but not in form, to the (settler) state, with a willingness to negotiate shared

jurisdiction of land and resources’ (ibid.). Approaching reconciliation based on

Tully’s model would provide indigenous peoples with non-subordinate ‘recognition’

of equal status. Such recognition would be in keeping with Nancy Frazer’s (2002)

broad normative approach to recognition politics discussed in Chapter 2. It would be

recognition based on ‘redistribution’ (Frazer, 2002), not only of resources but also

of political power.

Lederach (1999: 24) has suggested that reconciliation, to be successful, requires

‘innovation’. Where a reconciliation process is concerned with the problem of

internal colonisation, I would suggest that such innovation involve rejecting the

assumption of legitimate settler state sovereignty in favour of legitimising nation-

to-nation negotiations. In the Australian context, however, politicians often suggest

that a negotiated treaty based approach would be ‘illiberal’, a charge that finds

support in the writings of academics such as Kymlicka (1995); Kukathus (1992);

Waldron (1992/3) and most recently Kuper (2003). Yet, as Asch has suggested,

the philosophical precepts of the liberal enlightenment, such as the freedom and

equality of peoples, the sovereignty of long standing, self-governing nations and

the like, provide the justificatory means to extend universal fundamental political

rights to indigenous peoples (see generally Asch, 1999). If liberalism is indeed, ‘a

broad church’ as Kymlicka has suggested, it should not have difficulty accepting the

status of ‘peoples’ as free and equal political entities and sanction the negotiation

of shared jurisdiction on that basis.6 Dealing with indigenous nations on an equal

footing would involve government ministers and mining executives entering into

Aboriginal language, world-views, cosmologies and institutions, and accepting the

different kinds of autonomy and modes of decision making among those peoples,

rather than continuing the colonial project of arbitrary dispossession and nation

building (see Samson, 1999).

Such an approach may seem naively hopeful given past and present Australian

practice. Yet on the international stage nation-state sovereignty is now shared with

organisations such as the United Nations and the European Union and there is no

conceptual impediment to the application of such pan-national political power

‘sharing’ between states and ‘nations within’. Since ethno-cultural conflict has

become the main source of political violence worldwide global peace and security

may indeed depend upon such arrangements. Moreover, as Gurr postulates,

perhaps the single most important cause of such conflicts is struggles over land and

settlement policies between states and ‘nations within’ (1993). Placed in this light,

6 For an excellent discussion of possible practical applications and limitations of this

position see Chapter 10 of Curry (2004).

Reconciliation and Colonial Power182

the problem of how states deal with ‘nations within’ is not a marginal issue: it is one

of the key issues, perhaps even the central issue, for states in the twenty-first century

(Kymlicka, 2000: 223).

Yet, given the outcome of the negotiations over native title, it would seem that

there is little likelihood of treaty federalism in Australia. As I mentioned above,

however, at the end of the CAR’s term in 2001 political debates returned once

again to the question of a treaty or treaties. Although there is some disagreement

among indigenous leaders over what exactly represents the best way forward

for the treaty campaign, the reports of the treaty and governance conferences in

2002 (Indigenous Governance Conference, Canberra April 2002, National Treaty

Conference, Canberra August 2002) tended to favour a localised ‘treaties’ approach

in order to accommodate better political and regional differences. This would localise

negotiations and decision-making along indigenous national lines, thereby reducing

the possibility of unattainable Federal level consensus.

Political differences among indigenous leaders should not diminish the case for the

return of available land and political autonomy via a treaty or treaties. Disagreement,

compromise and negotiation are central and not inimical to the political endeavour.

The eventual possibility of a treaty or treaties becomes more plausible when one

considers the population explosion currently affecting the indigenous population.

Between the census years 1986–1996 the Aboriginal population increased by 55 per

cent compared with 12 per cent rise in the non-indigenous population (Australian

Bureau of Statistics, 1998). Demographer John Taylor (1997) estimates that by

2010 there will be one-million self-identified indigenous people in Australia. As

Professor Marcia Langton notes, ‘whereas presently, most Australians are able to

dismiss Aboriginal demands for justice as the complaints of a miniscule minority,

their children will not be so able to avoid the problem’ (ibid.). For Langton:

the calls for a treaty go to the heart of juridicial denial, in Australian case law, of the

existence of Aboriginal nations in Australia prior to the seizure of the land and consequent

dispossession of indigenous peoples by the British Crown. This denial has in effect

accorded our nations the status of an anomaly among the settler colonial states. The

monstrous injustice of the seizure of and establishment of dominion over Aboriginal lands

by the crown, and the lack of agreements and treaties, remains a stain on Australian history

and the chief obstacle to constructing an honourable place for indigenous Australians in

the modern nation state. That place must now be found both through, and beyond, the

limits of a legal discursive framework that dehumanises and de-historicises Aboriginal

people, rendering us as mere wondering brutes of Hobbesian and Rosseauvian mythology

(ibid.).

It is often suggested by politicians, media commentators and some liberal academics,

that since genuine de-colonising treaty negations are currently off the political radar

in countries like Australia, Canada and the USA, indigenous peoples should be

pragmatic and accept the (colonial) ‘reality’ before them and limit their aspirations

to purely internal solutions. Yet, as Maori lawyer Moana Jackson observes:

Conclusion 183

The colonial mind is always inventive, and its final resort is always a political reality

which either permits or denies the right to self-determination. But reality, like law, is a

changing human construct … (Lam, 2000: 62)

The work of the international indigenous peoples’ movement and the broad indigenous

support for the UN Declaration which does not limit the right to self-determination

to internal self-determination, suggests that indigenous peoples do not accept the

colonial reality. On the contrary, they have mobilised to change it.7

7 Considering the Australian case, we should also not lose sight of the fact that in the

late 1980s a campaign for a treaty gathered such momentum that it led the Prime Minister,

Bob Hawke, to promise that a treaty would be negotiated during his tenure (see Tickner,

2001). While the promise was eventually diluted into the Australian reconciliation process,

following the end of Australian reconciliation political debates turned full-circle and returned

once again to the idea of a treaty (see CAR final report at <http://www.austlii.edu.au/au/other/

IndigLRes/car/2000/16/contents.htm>). There is no reason to suggest that given time, under a

more sympathetic government, such a treaty campaign would not be more successful than the

last. On indigenous international political mobilisation to construct a robust rights declaration

see Neizen (2003) and Morgan (2004).

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Index

Aboriginal Deaths in Custody, Royal

Commission report 2, 4, 5, 65, 103, 133, 171

Aboriginal Peace Plan 60, 63

Aboriginal peoples

assimilation policies 90–2

biological absorption/removal model

89–90

colonial protectorate system 88

culture 31–2

deaths

colonial 32

in custody 2

infants 3

rates 3

dispossession 4

Elders 52, 53–4

‘freedom rides’ 33

integration policies 92

land, attachment to 4, 5

life expectancy 1fn1, 2, 3

national leadership 52–3

as Other 80, 156, 169

political activism 32–3

population 31, 182

public attitudes to 118–20, 121–2

social indicators 2

stockmen 68fn2

suicide rates 3

trachoma disease 3

traditional structures 52

urbanisation 34

Victoria, historical land holdings 83fn21

see also Aboriginal and Torres Strait

Islanders

Aboriginal Tent Embassy 33, 152, 175

Corroboree for Sovereignty 149

photos 151, 153

photo 150

Aboriginal and Torres Strait Islanders 1, 2,

85, 121, 122

see also ATSIC

Aboriginal Treaty Committee 1

Aboriginality, and Australian identity 27,

162–3

Aborigine population (1788) 31

ABS (Australian Bureau of Statistics) 2, 3,

34, 103

AFR (Australians for Reconciliation),

launch 111

Ah Kit, John, on indigenous sovereignty

136–7

Alfred, Taiaiake, on state power 22–3

ALP (Australian Labor Party) 105, 106

immigration policy 156

ALRA 1976 (Aboriginal Land Rights

(Northern Territory) Act 1976 157

AMIC (Australian Mining Industry Council)

47, 73

see also mining interests; mining lobby

Amnesty International 85

Anaya, James 20

Anderson, Michael 57, 132, 135, 141, 166

ANTAR (Australians for Native Title and

Reconciliation) 114, 129

APG (Aboriginal Provisional Government)

53–4, 132

on CAR role 133

on reconciliation 133–4

apology

by Commonwealth of Australia, refusal

106

and forgiveness, withholding of 16

Howard attitude to 124

as moral community 16

mystery of 15–16

need for 106

NT refusal 106

official 16

public attitudes to 119, 122, 124

sociology of 15

Reconciliation and Colonial Power202

Stolen Generations, need for 106–7

Arendt, Hannah

on forgiveness 16

on genocide 12

Asch, Michael 23, 181

assimilation 17–18

meaning 17fn3

reconciliation as 164, 171–3

assimilation policies

Aboriginal peoples 90–2

Howard government 171–3, 175

ATC (Aboriginal Treaty Committee),

proposals 35

ATSIC (Aboriginal and Torres Strait

Islander Commission) 33fn4, 53, 54,

61, 107

indigenous attitudes to 152

Recognition Rights and Reform 60

Attwood, Bain 105, 166

Australia

Aborigine population (1788) 31

CERD

breach of Convention 85–6

early warning 85

Commonwealth, apology, refusal 106

first Europeans 31

immigration policy 155–6

nations in 162

Australian Bankers’ Association 75

Australian identity

appropriation of Aboriginal symbols

162–3

and Howard 169

and Keating 161

Australian Institute of Valuers and Land

Economists 75

Australian reconciliation 4, 7, 8

indigenous views 9

low profile 17

Moran on 27

one-nation rhetoric 162–3, 163–4, 177

as post-colonial legitimacy ploy 10, 158,

174, 177

publications

National Strategy of Economic

Independence 166

Sharing History 163

research findings 9

sidelining of 170–1

‘social’ justice rhetoric 166–7, 178

sociological approach 28–9

TRC comparison 161

united Australia theme 161–2

writings on 26–9

Australians, non-indigenous, CAR impact

on 127–30

Banton, Michael 86

Barunga Statement 35, 131

government reply 35–6

Basedow, Herbe 90

bauxite, discovery 69–70

Beazley, Kim 99

Behrendt, Larissa 172

Bellear, Sol 40, 44

black armband, view of history 104–7

Blainey, Geoffrey 40, 41, 104

Bloomfield, Darren 150, 175

Bond, John 116

Borbidge, Rob 71, 78

Borraine, Alex, on restitution 84

Brennan, Frank Fr

one-nation rhetoric 163

on self-determination 138–9

Brunton, Ron 100

attack on BTH report 104

BTH (Bringing Them Home) report 5–6, 7,

9, 87, 93–104, 140

Aboriginal testimonies 93–6

apologies 99

Brunton attack on 104

genocide charge 100–4

Howard government response 99, 101–3

criticism of 102

recommendations 6, 98

JoH campaign 116

and reconciliation 9

responses to 99

see also Stolen Generations

Buzzacott, Kevin 149

Canada

Federal Government, Gathering Strength

107

indigenous peoples 12, 19

rights 23

RCAP report, Reconciliation Statement

107

Cape York Land Use Agreement 71

Index 203

Cape York peninsula 67

CAR (Council for Aboriginal

Reconciliation)

accountability 110

AFR launch 111

APG view of 133

budget 111fn1, 128, 170

consultants, expenditure on 129, 134

Convention 84, 112–14, 134–41

Draft Document for Reconciliation

limitations 141–3

public attitudes to 120–3

educational

leadership 128–9

role 7, 170, 178

establishment 1, 36

‘Eva Valley Statement’ 57, 61

functions 109–10

on indigenous rights 165

and indigenous sovereignty 162

lack of focus 118

membership 36, 110

non-indigenous Australians, impact on 9,

127–30

rationale 1–2

reconciliation

local group activities 112

view of 111, 113–14

resource kits 112

‘social’ justice rhetoric 165

social research commissioned 118–27

Strategic Plan 110–11

Sydney Harbour Bridge walk 6–7,

116–17, 129

vision statement 110

see also Australian reconciliation

CARA (Council for Aboriginal

Reconciliation Act 1991) 3, 36, 42, 65,

109, 110

CAR establishment 110, 161

indigenous aspirations 3

preamble 2, 4, 65

CERD (Convention on the Elimination of

Racial Discrimination) 47

Australia

breach of Convention 85–6

early warning 85

Chancellor, A. 16

child removal

Aboriginal testimonies 93–6

effects 96–8

as genocide 6, 9, 103

numbers 6, 102–3

policies 9, 87–93

rationale 87–9

see also BTH report; Stolen Generations

Chile, TRC 12

citizenship

and indigenous status 21–2

and nation state 20, 24

Clark, Geoff 135–6

on reconciliation 144

Clendinnen, Inga 100

Coe, Paul 57, 128, 132, 133, 135, 141, 153

Cohen, Stanley 102, 103

collective rights

minorities 18

and recognition 18

colonialism 18

‘reality’ rhetoric 182–3

colonisation, internal 8fn5

Comalco Act 69

Commmonwealth Conciliation and

Arbitration Commission 33

commodity prices, and mining interests 74

Cook, Capt James 31

Coombs, Nugget 48, 49

Corroboree 2000 6, 7, 106, 116, 143–6

limited indigenous participation 143–4

Corroboree for Sovereignty 149

photos 151, 153

Court, Richard 56

CRA Ltd 57

culture, indigenous peoples 19

Dampier, William 31

Deane, Sir William, Gov Gen 138, 140

Deliberative Polls, reconciliation attitudes

124–7, 129, 130

Djerrkura, Gatjil 78–9

Dodson, Mick 77, 84, 106, 145

Dodson, Patrick 41, 54, 84, 134, 144, 145,

170

Du Toit, André 13, 14

Edelman, Murray, on legislators and interest

groups 62

Etherington, Norman 80

eugenics 89

Reconciliation and Colonial Power204

‘Eva Valley Statement’, CAR 57, 61, 63

Everett, Jim 132

Farley, Rick 59, 75

Fischer, Tim 50, 55, 72, 79, 124

Fishkin, Jim 124, 125

forgiveness

Arendt on 16

unpredictability 16

withholding of, and apology 16

Fraser, Malcolm 115

Frazer, Nancy 23, 181

Freeman, 177

Fussell, Norm 48

Gaita, Raimond 100–1

Geneva Convention, genocide 100, 101, 103

genocide 150

Arendt on 12

BTH report 100–4

child removal as 6, 9, 103

dimensions 100–1

examples 11, 100

Geneva Convention 100, 101, 103

Gilbert, Kevin 4, 5, 22, 34, 53, 128, 166

Treaty campaign 1, 22, 132

Going Home Conference (1994) 92

Goss, Wayne 57

Grattan, Michelle 27

Gray, G. 169, 175

group rights

indigenous peoples 18

need for 18

Gurindji people 33

Hand, Gerry 35

Harvey Nicholls Society 49

Hawke, Bob 35, 131, 132, 157

Hawke government 1

Herron, John 171

Hewson, John 44, 51

Higley, John 125

historians

Aboriginal 105

revisionist 4, 169

history

black armband view 104–7

Howard’s view of 104–5, 169, 174–5

meta-narratives 105

new Australian 105–6

Hobbes, Thomas 17

Holocaust 11

Holt, Harold 156

Howard government 6, 8, 60

assimilation policies 171–3, 175

response to BTH 99, 101–3, 168

Towards a More Workable Native Title

Act 66–7

TPP 77–80, 114

Wik case, response 70–3, 124, 169

Howard, John 3, 8, 84

anti-treaty 168

apology, attitude to 124

and Australian identity 169

history, view of 104–5, 169, 174–5

reconciliation, attitude to 144–5, 171–3,

174, 175

speech, Reconciliation Convention 172

HREOC (Human Rights and Equal

Opportunities Commission) Inquiry

5–6, 93, 93–104, 106

see also BTH report

human rights

and indigenous rights 25

moral basis 24

social-constructionist approach 24–5

sociology of 24–6

Turner on 24

Waters on 24–5

Human Rights, Universal Declaration

(1948) 85

Hyde, John 46

ideologists, vs pragmatists 135, 139

ILC (Indigenous Land Corporation) 60

Indigenous Affairs, Office of 61

indigenous aspirations 8

meaning 3fn2

indigenous peoples

Canada 12, 19, 23

culture 19

group rights 18

‘minorities’ label, resistance to 19

moral claims, trivialisation 19

political sovereignty, recognition of 20

recognition 18, 19, 20, 21, 23–4

UN Declaration on 171

see also Aboriginal peoples

indigenous rights, and human rights 25

Index 205

indigenous sovereignty 133

and CAR 162

failure to recognise 135

Kit on 136–7

Mansell on 139–40

recognition of 149

and self-determination 136

Tully on 180

indigenous status, and citizenship 21–2

individual

and liberal democracy 18

social recognition, need for 18

and the state 17

infant deaths, Aboriginal peoples 3

integration policies, Aboriginal peoples 92

interest groups, legislators, influence on 62

Issues Deliberation Australia 125

Ivison, D. 18

Jackson, Moana 21, 182–3

Jackson, Ray 86, 166

JoH (Journey of Healing) 9, 115, 129

campaign, BTH recommendations 116

‘June Discussion Paper’, land rights 55–6

justice

as recognition 14, 15, 179

and reconciliation 166

as restitution/reparation 14

restorative 15

retributive 14

and truth 12–13

Keating government 3

Mabo case tactics 54–5, 61, 160, 168

reconciliation 158

Keating, Paul 8, 42, 56, 63, 83

and Australian identity 161

corporate interests, bias 51–2

on Mabo case 44, 159

reconciliation, attitude to 174

Redfern Park Statement 43–4, 57, 61,

159, 174

Kendall, Carol 116

Kimberly Land Council 41, 79

Kinnear, Audrey Ngingali 34

Kymlicka, W. 18, 19, 181

land rights 7

indigenous view of 149

interpretations 38

‘June Discussion Paper’ 55–6

and Mabo case 25, 42, 133

and political autonomy 3, 4, 20

public attitudes to 120, 123

and settler state sovereignty 22

significance 4, 6, 34, 166

see also Mabo case; native title; pastoral

leases; Wik case

Langley, Larry 4

Langton, Marcia 72, 76, 182

Lavarch, Michael 93

Lederach, J.P. 16

legislators, interest groups, influence of 62

liberal democracy 17

and the individual 18

liberal theorists 17

life expectancy, Aboriginal peoples 1fn1

Locke, John 17

property ownership concept 31

Two Treatises of Government 31

LRGs (Local Reconciliation Groups) 112,

113

activities 114

financial support, lack 129

Mabo case 7–8, 9, 36–8, 66

colonial history, absence 63

effects 39, 105–6

Keating government tactics 54–5, 61,

160, 168

Keating on 44, 159

and land rights 25, 42, 133

limitations 42, 159–60, 164

and mining lobby 8–9, 45–6, 50

and reconciliation 40–2

terra nullius doctrine 8, 62

Mabo, Eddy 36, 37, 38

Mabo Ministerial Committee 47, 55

McArthur River mine, native title claim 48

McDonald, Don 72

McGauchie, Donald 75

McGuinness, P.P. 27, 104

McKenna, Mark 106

Macklem, Patrick 39

McLachlan, Hugh 69, 83

McLachlan, Ian 49

majority rule, and minority interests 17–18

Malezer, Les 85

Manne, Robert 90

Reconciliation and Colonial Power206

In Denial 104

Manning, Ian 74

Mansell, Michael 54, 128, 132, 133, 135,

141

on indigenous sovereignty 139–40

media hype, and native title 45–6, 72–3

Melbourne Journal of Politics,

reconciliation issue 26

Menzies, Robert 156

Meriam people 37, 38

Minchin, Nick 66, 70, 170

mining interests

and commodity prices 74

misinformation propaganda 167

as national interest, representation 48–50

native title, effect of 73–4

and Wik case 73–4

mining lobby

and Mabo case 8–9, 45–6, 50

opinion polls, use of 46, 50

see also AMIC

Minogue, Kenneth 100

minorities

collective rights 18

misrecognition of 18

permanent, and majority rule 17–18

Minow, Martha 12, 15

misrecognition, of minorities 18

Moran, Anthony 26

on Australian reconciliation 27

Morgan, Hugh 49

Mudrooroo 4, 53

Murdoch, Rupert 69, 83

Murray Islands 37, 38

NAC (National Aboriginal Conference),

treaty campaign 35

Nacci, D. 159–60

nation state

and citizenship 20, 24

‘nations within’, relations with 182

shared sovereignty, examples 181

National Aboriginal Conference 35

National Council of Churches 75

‘national crisis’

native title as 46–51, 169

Wik case as 71–7

national interest, mining interests

represented as 48–50

nations

in Australia 162

within nation state, relations with 182

Native Administration Act (1936) 90

native title 37, 40, 59

and Crown sovereign power 66

determinations 63

extinguishment 79, 81, 169, 170

limitations 38–9, 45

McArthur River mine, claim on 48

and media hype 45–6, 72–3

mining interests, effect on 73–4

misrepresentation of 46–7

as national crisis 46–51, 169

and NTA 93 66, 160, 165

pastoral leases, co-existence 66–8, 70,

170

unfairness argument 51–2

Weber on 38

see also NTA 93; NTA 98

Native Title Tribunal 62

NATSIS (National Aboriginal and Torres

Strait Islander Survey) 103

Neville, A.O. 90–1

NFF (National Farmers Federation), and

Wik case 74–7

NIWGNT (National Indigenous Working

Group on Native Title) 76–7

Northern Land Council 49, 132

Northern Territory Land Rights Act (1976)

57

NSDC (National Sorry Day Committee),

‘Sorry Day’ 115–16

NT (Northern Territory)

apology, refusal to 106

pastoral leases 66

NTA 93 (Native Title Act 1993) 8, 9, 42, 63,

66, 73, 133

limitations 60–1, 167

main provisions 59

and native title 66, 160, 165

preliminary negotiations 57–9

and reconciliation 63

NTAA 98 (Native Title Amendment Act,

1998) 6, 65, 141, 153, 169, 177

provisions 81–3

confirmation 81

validation 81

Nulyarimma, Wadjularbinna 149

Index 207

O’Donoghue, Lowitja (Lois) 41, 54, 55, 58,

61, 115, 116, 135

one-nation rhetoric

Australian reconciliation 162–3, 163–4, 177

Brennan 163

opinion polls, use by mining lobby 46, 50

Orford, Anne 100

Other, Aboriginal peoples as 80, 156, 169

Packer, Kerry 69, 83

Parekh, Bhikhu 18, 23

pastoral leases 32, 59, 65–6

and Aboriginal rights 66

basis 66

extent 69

freehold, conversion to 170

Holroyd River 67

MPs’ holdings 69, 83

native title, co-existence 66–8, 70, 170

NT 66

overseas holdings 69

Wik case 67–8, 72

Pearson, Noel 56, 76, 138, 139

People’s Walk for Reconciliation see

Sydney Harbour Bridge Walk

Perkins, Charles 33, 57, 144

Pilger, John 83

Pinnock, Michael 73

political autonomy, and land rights 3, 4, 20

Poole, Ross 173

Povinelli, 159

pragmatists, vs ideologists 135, 139

property ownership concept, Locke 31

Quadrant magazine 103, 104

Rawls, John 17

RCAP (Royal Commission on Aboriginal

People), Canada, report 107

RDA (Racial Discrimination Act, 1975) 45,

47, 67, 70, 156

repudiation 58

Read, Peter 4, 92

‘reality’, colonial 182–3

recognition 43

and collective rights 18

elements 43

indigenous peoples 18, 19, 20, 21, 23–4

justice as 14, 15, 179

non-subordinate 181

redistribution as basis 23

reconciliation

APG view of 133–4

as assimilation 164, 171–3

attitudes, Deliberative Polls 124–7, 129,

130, 147

and BTH report 9

CAR

document, public attitudes to 120–3

view 111, 113–14

Clark on 144

concrete symbols 148–53

decolonising 10

as democratic reciprocity 21, 179

discourse, function 160–1

as diversion from treaty 1

Howard, attitude to 144–5, 171–3, 174,

175

indigenous attitudes to 147, 150, 152–3

and justice 166

Keating, attitude to 174

Keating government 158

legislation 2

limitations of 26–7, 110

literature on 11–12

and Mabo case 40–2

meanings 21–2

and NTA 93 63

paradigm 4, 10, 178–9

examples 11–12

peacemaking 16, 27

as people’s movement 28

as post-colonial legitimising ploy 8, 36,

174

processes, purpose 12

public

attitudes to 118, 123

awareness of 118

and restitution 84

Reynolds on 27–8

as rights limitation 165–8

scepticism about 132

as shared comprehensive vision 21, 179

as simple co-existence 21, 179

symbolic actions 147

temporal dimension 160–1

‘unfinished business’ of 6, 7, 145, 148,

152, 178

unifying rhetoric 27

Reconciliation and Colonial Power208

see also Australian reconciliation; CAR

Reconciliation Australia, establishment 173

Reconciliation Convention 84, 112–14,

134–41

Howard speech 172

‘Motion of Reconciliation’, shortcomings

113–14, 128

Redfern Park Statement, Keating 43–4, 57,

61, 159, 174

redistribution, as basis of recognition 23

Reith, Peter 59

restitution

Borraine on 84

property restoration 15

and reconciliation 84

Reynolds, Henry 4, 36, 37, 40–1, 42, 105,

162

on reconciliation 27–8

Ridgeway, Aden 54

rights, settler state, limitations 22–3

see also collective rights; group rights;

human rights

Rights of Indigenous Peoples (UN

Declaration, 1994) 21

land 20

self-determination 20

Riley, Rob 55

Rowley, Charles 4, 32

Rubuntja, Wenten 35, 131–2

Russell, Peter 43, 45–6

Satchwell, Ian 74

Savell, George 73

Scott, Evelyn 144

‘Sea of Hands’ 114, 115

in UK 115

self-determination

Brennan on 138–9

centrality of 20, 166

denial of 167

in UN Declaration 20

and indigenous sovereignty 136

internal 21

Yu on 137

Senate Standing Committee, Two Hundred

Years Later 127

SLCRC (Senate Legal and Constitutional

References Committee) 101

social indicators, Aboriginal peoples 2

‘social’ justice rhetoric, Australian

reconciliation 166–7, 178

social recognition, individual need for 18

‘Sorry Day’, NSDC 115–16

see also JoH

Stanner, W.E.H. 5, 105

state

and citizenship 24

and the individual 17

power, Alfred on 22–3

see also nation state

Stolen Generations 2, 3, 6, 7, 92, 177

apology, need for 106–7

meaning 5

numbers involved 92fn6

significance 6

see also BTH report

SUAPNA (Sovereign Union of Aboriginal

Peoples and Nations of Australia) 141,

146, 152, 166

suicide rates, Aboriginal peoples 3

Sultan of Brunei 69, 83

Sydney Harbour Bridge Walk 6–7, 116–17, 129

numbers 117

Tatz, Colin 3, 26–7, 177

Tavuchis, Nicholas 15, 16, 107

Taylor, Charles 18

Taylor, John 182

terra nullius doctrine 32, 65

basis 31

and colonial expansion 31, 137

criticism of 40

declared offensive legal fiction 37

early abandonment of 41

Mabo case 8, 62

Thayorre people 67

Tickner, Robert 36, 45, 47, 92–3, 127

TPP (Ten Point Plan)

Howard government 77–80, 114

‘Six Steps to Coexistence’ anti-blueprint

115

Yunipingu attack on 138

see also NTAA 98

trachoma disease, Aboriginal peoples 3

TRC (Truth and Reconciliation

Commission)

Chile 12

South Africa 8, 12, 84

Index 209

Australian reconciliation, comparison

161

criticism 16–17, 178

purpose 15

restorative justice 15

Treaty 88 group 1

Treaty campaign 1, 22, 110, 127, 131–2,

152, 157, 174

dilution 3–4, 132, 183fn7

localised treaties approach 182

NAC 35

treaty federalism, proposals 180–1

truth

as acknowledgement 13, 14

forensic 13

and justice 12–13

narrative 14

senses of 13–14

victim’s 14

Truth Commissions 14

see also TRC

Tully, James 10, 23, 179

on indigenous sovereignty 180

Turner, Dale 20

on human rights 24

Two Hundred Years Later, Senate Standing

Committee 127

‘unfinished business’, of reconciliation 6, 7,

145, 148, 152, 178

urbanisation, Aboriginal peoples 34

Waters, Malcolm, on human rights 24–5

Watt, Grant 49

Wave Hill strike 33

Weber, Jeremy, on native title 38

White Australia policy 155, 156, 173

Whitlam, Gough 157

Wik case 8, 9, 48, 57

falsehoods about 76

Howard government, response 70–3, 124,

169

and mining interests 73–4

‘national crisis’, representation as 71–7

and NFF 74–7

pastoral leases 67–8, 72

Wik people 48, 67

forcible relocation 69

Williams, Daryl 71

Williams, Neville ‘Chappy’ 150

Wilson, Sir Ronald 93, 116

Yirrakala people 33

Yu, Peter 41, 79, 135

on self-determination 137

Yunupingu, Galarrwuy 35, 132

attack on TPP 138