Reconciliation without rights is not true reconciliation

Author: by Dr Stan Grant Junior, Chair of Indigenous Affairs at Charles Sturt University
Publication Date: Monday, 31 Jul 2017

Tent Embassy colourThis week I stood at the Aboriginal Tent Embassy in Canberra. It remains a collection of canvas and tin, but it has grown in those years since a handful of young Aboriginal activists planted a beach umbrella and wrote the word 'embassy' on a manila folder to shake a fist at the power on the hill.

Today in the midst of winter there is smoke from a campfire, framing a word spelled out on the lawn 'sovereignty'. For 45 years this embassy has stood as a reminder that we are still here - that this is, was and always will be Aboriginal land.

The embassy grew out of frustration. In 1972 it was five years since Australia had voted to give the first people of this country a 'fair go'. The referendum remains the most successful in Australian history; more than 90 per cent of Australians voted 'yes' to count aboriginal people among the population of this country.

Yes, in 1901 the Constitution said aboriginal people would not be counted.

It also amended the Constitution to give the federal government the power to make laws for Indigenous people. As the slogan at time said, vote yes for Aborigines, they want to be Australians too.

Tent Embassy black whiteBut by 1972 a young generation of black activists reminded this country that they did not feel like Australians, they were aliens in their own land. Half a century later the demands of Aboriginal and Torres Strait Islander people - demand for recognition of sovereignty of treaties - remains unfulfilled and so the embassy still stands.

It is true a lot has changed since that time; we have had land rights legislation, the Mabo decision and subsequent native title, an apology to the stolen generations. But we are still short of what many Indigenous leaders have called a 'final settlement', a resolution to that fundamental question - was it lawful to take our land?

It is customary these days to open official functions with a welcome to country ceremony. What is that if not a clear statement that this land belongs to Indigenous people?

Yet the act of a handful of British sailors planting a British flag two centuries ago, annexed this country for the Crown and extinguished the rights of the people who had lived here we now know for at least 65 thousand years.

The argument then was that this was 'terra nullius', a legal doctrine that meant simply this was an empty land, free for the taking. But of course it wasn't empty.

Australia has grappled with that inconvenient fact ever since.

In 1788 the First Fleet established a penal colony in New South Wales and met resistance. The peoples of the Eora nation defended their country; a combination of violence and rampant disease devastated their numbers.

I have a deep connection to that time. In 1870 not a hundred years since that First Fleet arrived my great great grandfather was living with the remnants of the first people of Sydney in a boat shed at Circular Quay on the Sydney harbour. Eventually he and his family were rounded up and banished to the west of the state where he lived on missions and married into the Wiradjuri people, my ancestors.

The Wiradjuri had fought the British after the crossing of the Blue Mountains. In the 1820s martial law was declared on my people. It was a vicious time. Wiradjuri people would be baited with food laced with poison, others rounded up or herded to their deaths.

William Cox, who'd built the road across the Blue Mountains and received the first land grant on the western plains, advised a public gathering that "The best thing that could be done, would be to shoot all the Blacks and manure the ground with their carcases, which is all the good they were fit for".

Within a few years the great Wiradjuri leader Windradyne (a man whose name should be as known to us as Sitting Bull, Crazy Horse and Geronimo are known to Americans) led his people on a trek across the mountains to Parramatta in Sydney to meet with Governor Brisbane.

It was reported that Windradyne wore a straw hat and on the bream he had written the word 'peace'. People do not fight and die for an 'empty land'; a people with no rights do not seek 'peace'. The governor does not meet with a people who are considered legally to be invisible.

Australian law has grappled with this question of Indigenous sovereignty throughout our nation's history. Was this a 'settlement' - as generations of school children, myself included, were told a 'peaceful' settlement - or was this a conquest?

Did Aboriginal people lose their rights, or do those rights remain?

Court cases in the mid-19th century challenged the idea of British settlement. At the time the rulings were in favour of the Crown; British law was the law of the colony and usurped and superseded aboriginal law.

Other cases persisted. In one, the presiding judge said the mere introduction of British law did not extinguish Aboriginal customary law. Justice Willis said, 'In Australia it is the colonists, not the Aborigines, who are the foreigners'.

These legal challenges continued into the 20th century. Rulings maintained the legitimacy of the Crown but could not extinguish completely the Aboriginal claims.

In one famous case Justice Blackburn ruled Australia was indeed a 'settled colony', that this was a 'desert and uncultivated', but he also found that Aboriginal people had a 'subtle and elaborate system of law' as he said 'if ever a system could be called a government of laws … it is shown in the evidence before me'.

Of course, the most celebrated case of all was Mabo. Here the High Court struck down the idea of terra nullius, but it did not assert Aboriginal sovereignty as such. The ruling found that as people were here, this was not an empty land, but it was British common law that recognised the existing native title.

Effectively, when the flag was planted native title fell to the soil with the laws of the Crown.

Sovereignty CanberraThe issue of sovereignty is not settled - this was not terra nullius - Aboriginal people were indeed here with a recognisable system of laws and governance; they fought and died defending their land, they are still here today.

If Australia was indeed conquered, then international law tells us that the rights of the so called conquered people would also still remain. British common law is modified by the realities of the new colonies. This is the reality of countries like New Zealand and underpins their Treaty of Waitangi.

The Tent Embassy stands as a reminder of sovereignty unrecognised.

So in its absence, what were they - Aboriginal people, aliens in their own land - to do?

In my recent quarterly essay 'The Australian Dream – Blood, History and Belonging', I looked at my ancestors as 'economic migrants' – strangers, people like migrants everywhere having to adapt to a foreign country.

By tracing an economic story, a fascinating story of transformation is revealed. In the early years of the 19th century it was assumed that if Aboriginal people were to have any future in this land it would be through the colonial economy. Governor Macquarie, the so called father of Australia, made that explicit.

By the 1880s the newly-founded Aborigines Protection Board saw missions and reserves as places where Aboriginal people would be trained as mechanics or farmers. This persisted into the 20th century, the beginnings of the assimilation period. Again it was expected that Aboriginal people would become numerate and literate to be able to make their way in the world, albeit at the lowest rung of the ladder.

I followed my own family's story. My great great grandfather Frank Foster - the man born into the Circular Quay boatshed - eventually became a school teacher. He was trained on the missions and helped found a school for Aboriginal children in the 1880s. I found a NSW Department of Education report that described him as 'an intelligent half caste who conducted a lesson in mathematics'.

Anthropologist Ian Keen edited a work 'Indigenous participation in Australian economies' which he said 'counters the relative invisibility of Aboriginal people in economic histories'. In that work economist Christopher Lloyd wrote that 'indigenous people developed economic relations with settlers and in some places supplied labour while at the same time being marginalised and impoverished due to land seizures'.

This is my family's story. It is the story of so many aboriginal families. My people were rural workers - labourers, saw millers, fruit pickers - it was a tradition I was born into. It was the end of the official segregation era and post-World War Two Australia when Aboriginal people seized opportunity.

My grandfather – a Rat of Tobruk - came home from the war and walked his family off the mission at Condobolin in western New South Wales. Other families joined him. They walked three hundred miles to the Murrumbidgee Irrigation Area to work; new settlements grew up, effectively black migrant workers' camps.

This opened a new world. These economic pioneers helped lead the push for an end to racial discrimination. They weren't going to be locked out of swimming pools and pubs and cinemas, they wanted houses in town; they demanded their kids get access to public schools.

Indigenous academic Maria Lane studied this phenomenon. She looked at the movement of Aboriginal people in South Australia. She tracked what she called an 'open society'. These people, she said, were 'opportunity, effort and outcome oriented'.

Lane called it the 'slow grind' founded on 'universal human rights, the rights to a rigorous standard education and equal rights to a place in the Australian society and economy'. Lane found that the grandchildren of these Aboriginal economic migrants in the 1990s were graduating from high school and entering university in booming numbers.

This new generation is part of what Indigenous academic Marcia Langton in her Boyer lectures of a few years ago called 'the quiet revolution' - the emergence of an Aboriginal middle class. I am undoubtedly part of this. Last year a report by the Centre for Independent Studies found that 65 per cent of Aboriginal people are employed and living lives materially and socio-economically like those of other Australians.

This is a story our media doesn't often tell.

It is a story of how between 1996 and 2006 the Indigenous professional class - university educated - grew by 75 per cent. Dr Julie Lahn from the Australian National University has studied this and said 'Aboriginal professionals in urban centres remain largely overlooked'.

In 1991 there were fewer than 4 000 Indigenous university graduates; now there are more 30 000 and that number will double in the next 20 years. Between 1990 and 2000 there were 55 Indigenous people awarded PhDs; in the following decade that jumped 400 per cent.

Marcia Langton says this challenges the old narrative 'from the tired old story of aboriginal victim/protester to a more informed account of aboriginal engagement with modernity'. And yet this middle class does not obscure the still overwhelming story of Aboriginal suffering.

Indigenous people are the most impoverished and imprisoned in Australia. We have the worst health, housing, education and employment outcomes, the highest levels of suicide, domestic violence and mental illness.

Tent embassy sovereign protestersThe emergence of a successful vibrant Indigenous people from this tale of misery is remarkable.

Our resilience as a people is remarkable.

But the emergence of this middle class can risk obscuring other challenges. We can be guilty of creating the 'exceptional Aboriginal'; damned with faint praise, 'haven't you done well', or 'you're not like the others'. How many times do we hear that phrase, 'the first Aboriginal …'?

It may be tempting to see this as the answer; all we need is access to opportunity and we can all succeed. Yes, that is part of the story. But individual success does not resolve the deep structural issues. It does not resolve the question of justice.

Closing the gap and reconciliation have dominated the agenda at the expense of justice and rights. Governments see Indigenous issues as a socio-economic story. Reconciliation Action Plans (RAPs), programs for diversity, inclusion and cultural awareness typically benchmark success. Attainment is measured, boxes are ticked, numbers are counted but while this is undoubtedly useful it is hollow without the political architecture to properly advance Indigenous sovereignty and self-determination.

To be frank, reconciliation without rights sounds too close to assimilation.

We are the first people of this country – invaded, dispossessed, segregated; locked out of the dream and suffering still. We have not had a final settlement. Australia again is facing the question of recognition, Constitutional reform. In states like Victoria and South Australia treaty processes are underway.

Do we have the leadership and the maturity to resolve these issues of our history? Is our democracy capable, in the words of John Stuart Mill, to 'soften the extreme form to narrow the differences between us'?

What would this settlement look like? What is sovereignty? Indigenous lawyer Michael Mansell provides a framework in his new book Treaty and Statehood: Aboriginal Self Determination. Mansell seeks a place for Indigenous people at the heart of Australian democracy.

He asks, how can this work for us all? Very early in his book Mansell says his suggested reforms 'assume that Aboriginals accept Australian sovereignty as legitimate'. Aboriginal sovereignty, he writes, challenges Australia's legitimacy. Takeover was 'acquired by force, not consent', and it is time for Australia to 'wind back its domination, where domination is neither necessary nor justified'.

Mansell accepts that Indigenous sovereignty may not look as it did in 1788. He says he does not seek to wind back the clock but to reach a settlement that meets conditions that exist today. For Mansell, representation in Australian democracy is critical. He quotes Canadian philosopher, Will Kymlicka: 'citizens who do not see themselves reflected in the legislature may become alienated from the political process'.

Mansell identifies three main issues in his book: identity, treaty and statehood. He seeks to put fearful minds at ease: 'Acknowledging Aboriginal sovereignty will not harm Australia. It will not upend the constitution … it will not overturn the legal system. It will not take houses or farms away'.

In Mansell's equation a modern treaty with Indigenous peoples in Australia, he says, could be based on 'first, restoring all that which Indigenous peoples had in 1788; second, exclude from that list all that is impractical today, and third, accommodate the remainder'. This, he says, will ensure governments are free to govern, the constitution and legal systems remain intact, and private land ownership is not disturbed and the lifestyles of Australians are left alone.

Clearly, Indigenous people are a part of Australia. We are citizens and should enjoy the full benefits of that citizenship. We are reliant on the state for our security and wellbeing. Sovereignty – as clearly conceived by Mansell – sits within the Commonwealth. He proffers a dependent sovereignty – a co-existence – not unlike that enjoyed by Native Americans.

Stan Grant (square)Australia is no longer 'terra-nullius'; Mabo out paid to that fiction. Land has been returned – a crucial part of sovereignty. What remains unfulfilled is the question of governance. Justice Blackburn acknowledged the traditional system of government employed by Indigenous peoples; the challenge remains to give contemporary form to that governance.

Treaties and Constitutional change, a representative body, all of these options are being actively pursued. All go to the question of justice. They should not be conflated with issues of disadvantage – closing the gap – or reconciliation. Indeed, true reconciliation remains insincere without a 'final settlement'. To fulfil their full potential Reconciliation Action Plans must embrace the idea of the pursuit of justice as well as socio-economic equity.

Reconciliation without rights is not reconciliation at all.

A 'final settlement' offers the chance to complete our nation. It promises to allow my ancestors – black and white – buried in this land, to rest in peace. In its absence we have the resilience and the strength of our people, the ability to rise above our history and stake an individual claim in this country.

Success, individual achievement, is our right, like all Australians. The Tent Embassy stands still, to remind us of our unique sovereign rights as the first Australians.


Media contact: by Dr Stan Grant Junior, Chair of Indigenous Affairs at Charles Sturt University, (02) 6338 6084

Media Note:

Contact CSU Media to arrange interviews with Dr Stan Grant Junior (pictured).

Dr Grant is Chair of Indigenous Affairs at Charles Sturt University and a leading award-winning Australian journalist and commentator.