Aboriginal Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Aboriginal Law Bulletin |
|
by Loretta Kelly
"If I were Aboriginal I would be a terrorist, I would be so angry. They (the Aboriginal members of the Council for Aboriginal Reconciliation) are not." 1
Ray Martin (member of the Council for Aboriginal Reconciliation - the CAR) after hearing some of the life stories of Aboriginal and Torres Strait Islander members of the CAR.
Enthusiasm and good intentions have been the hallmark of both Robert Tickner's term as Federal Minister for Aboriginal Affairs and of the Council for Aboriginal Reconciliation. But "those qualities have never been enough in the long history of black-white relations in Australia. Some of the worst decisions made by governments were well intentioned. Grievous mistakes have been perpetuated by benevolent enthusiasts." 2
The past may be full of such mistakes, but what of the prognosis for the future? What can be done to assure justice for Aboriginal and Torres Strait Islander peoples? 'Reconciliation' is the latest remedy - just add water? However, despite the many attempts to define 'reconciliation' in the context of Aboriginal Affairs, the concept remains aloof. It is obvious that the CAR and the Federal Government wish it to remain so, as the concept can thereby be utilised for almost anything positive that happens to Aborigines and Torres Strait Islanders.
The reconciliation concept may have been based on the recognition idea3, put forward by Brennan and Crawford4. The more neutral and politically acceptable term 'reconciliation' seems to have been chosen because of the Government's desire for bipartisan support in order that some form of dialogue with Aborigines continue through possible changes in government at the federal level.
The most recurring criticisms of reconciliation are its vagueness and the lack of emphasis on land rights and sovereignty. Jopson has suggested that:
"[many Aborigines] do not want to dismiss reconciliation entirely in case it can work, but ... fear it will become a gigantic talk-fest delaying still further national land rights, compensation for land lost and other Aboriginal aspirations."5
The reconciliation concept is only slowly reaching Aboriginal and Torres Strait Islander communities, with many understandably confused as to its meaning and objectives. Undoubtedly the current political focus of most in the community is on the implications of Mabo. The CAR has attempted to ride the Mabo wave in order to raise the profile of reconciliation.6 The importance of Aboriginal Affairs following Labor's election win has been highlighted by the Prime Minister absorbing that portfolio within the Department of Prime Minister and Cabinet. The major reason for this seems to be the Mabo decision, rather than a new commitment to Aboriginal affairs. With the appointment of Michael Wooldridge to deputy leadership of the opposition (the former Shadow Minister for Aboriginal Affairs) bipartisanship in reconciliation seems set to continue. Whether the opposition agrees with the Mabo decision is less clear. Mabo has been given high priority by the Government which has committed itself to 'consultation' until September. This is despite pressure from the mining industry for prompt legislative action to support its interests.
Lois O'Donoghue (chairperson of the Aboriginal and Torres Strait Islander Commission) has been pessimistic about the future of Aborigines within the Australian nation:
"[Aborigines] have, to a large extent, been swept aside by the immensely powerful forces that have occupied our country ... [we] must reconcile ourselves to this fact and to our weakness, our 1.5 per cent [of the population], and work towards a realistic accommodation within modem Australia." 7
Such a statement would not be surprising coming from the Federal Opposition but is disappointing from the leader of the most influential Aboriginal organisation.
According to Jopson, the fear that Aborigines have about the CAR becoming a talk-fest "has been compounded by Tickner s vagueness about the nitty-gritty of reconciliation and by his personal style of arguing emotionally and tending to answer why when he is being asked how."8
Tickner justifies the lack of specificity in the CAR as follows:
"the approach should concentrate on the process of reconciliation and not on an instrument which might become an outcome of the process."9
Tickner is also apparently relying on the work of volunteers in the reconciliation process:
"I have never believed that this was going to be some government based initiative. The only way it will work is if it is fundamentally a community-based, public participatory movement with a commitment of people."10
How this will be achieved without the broad enthusiasm of either the Aboriginal or white communities is unclear. It appears that in order to get the wide community support for reconciliation you firstly need wide community support!
After praising the functions of the CAR as stated in the CAR Act (particularly s6(b) - its educative endeavour), Lavery raises the concern that the CAR is "merely a process to find a process. The primary objective is merely to promote a process of reconciliation."11 Lavery is concerned that the CAR may re-hash old treaty ground, which would prove fruitless. However, statements made by its chairperson, Pat Dodson, do not indicate this will happen.
Dodson has stated, prior to his appointment to the CAR, that:
"[P]articipation in the opportunity of a process of reconciliation ... may well be a useful way of removing some of the fear and hostility that clouds both Aboriginal and non-Aboriginal societies."12
Furthermore, "the continued lack of recognition of indigenous rights and reconciliation manifests aspects of the ongoing processes of colonisation."
Dodson does recognise the importance of indigenous rights which, together with the fine line he treads as chairperson of the CAR, should be kept in mind by those critical of his role.
My understanding of the work of the CAR is that it is principally aimed at educating white Australians about Aborigines. An analysis of what Pat Dodson has said about the role of the CAR seems to confirm this. Education of the dominant white community is essential, whether or not an agreement or treaty were to result. As Reynolds has said, the educative role of the CAR may well build compassion and understanding, but what Aborigines overwhelmingly demand is justice.13
Lavery contends that the strategic plans to be drawn up by the CAR (under s8 of the CAR Act) must include plans for substantive recognition of at least some of the neglected legal, political and cultural rights of Aborigines, ‘otherwise the CAR will, after a decade on the road, have gone nowhere.’14
Those hoping for an instrument, treaty or written support for concepts such as autonomy, self-determination or sovereignty will be sorely disappointed. Indeed under s7(3) of the CAR Act, the CAR does not have the power to enter into contracts. Hence the CAR can do no more than make recommendations because of its legal and (mostly unspoken) political constraints.
Michael Mansell, Secretary of the Aboriginal Provisional Government (APG), summed up the concept of reconciliation accurately when he said it is "solely about changing attitudes."15
He also argues that the imbalance between black and white needs to be corrected not by changing bad attitudes within the white community but taking immediate
steps to right wrongs.
Changing entrenched attitudes is a monumental task - requiring large resources over a long period. The CAR would need a phenomenal amount of support from the media (not just Ray Martin!). Yet the media is obsessed with sensationalism and negative stereotypes of Aborigines. Big changes are required. Is this possible by 2001? Or is it a Space Odyssey?
The CAR Act does not mention the achievement of land rights as one of its functions, (which are set out in s6 of the Act), yet the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) has stated that:
"fundamental to securing the real change in the position of Aborigines ... is the recognition that Aborigines are the dispossessed people of this country, the reaching of some real reconciliation with them, and the development of real opportunities of independence and self- management. Fundamental to the latter process is securing the transfer of land, or failing land, other resources into Aboriginal hands to a significant degree."16 (emphasis added)
The educative role of the CAR is very important. But in order for Aboriginal people to accept white society, and move on after the cultural genocide and dispossession, we need land rights, self-determination and justice. White Australians need to reconcile themselves to the fact that they have a lot to pay for.
National Farmers Federation spokesperson, Rick Farley, argues that if reconciliation fails:
"you would get more Aborigines wanting a separate State, which would be violently opposed by sections of the white community ... The bigger problem is the place land plays in Aboriginal culture. They are never going to get it all back."17
This rather alarmist statement is a reflection of the fear that many white Australians have of Aboriginal sovereignty or a black state'. It should be just as alarming to white people that their Commonwealth's sovereignty is a fraudulent claim, illegal and completely untenable in international law 18 We have a right to self-determination, as acknowledged by the United Nations Charter and the International Covenants on Human Rights.19 What this means in current practice is that every culturally and historically distinct people (e.g., Aborigines and Torres Strait Islanders) has the right to choose its political status by democratic means under international supervision. The entire range of political options must be available, including complete independence (sovereignty) 20
Prior to invasion Aborigines and Torres Strait Islanders were sovereign nations. The circumstances of colonisation have united us. In order for us to fight our colonisers we must fight as one nation. We know we will not get all our land back, but we have got some of it back, and we will fight for more. Compensation for what was stolen would allow us to buy back more of our land. The land we get back can form the basis of a sovereign Aboriginal nation.
Frank Brennan sees accommodation of Aborigines within the Commonwealth Constitution as the best method for Aborigines to fulfil self-determination.21 Indeed recognition and empowerment of Aborigines within the Australian constitution is essential to the moral basis of any republic.
Dodson says the republic debate is crucial. "The first (i.e., the current) constitution had no consideration of Aboriginal people."22 He would like the constitution to embody Mabo and recognise prior ownership, plus consider a treaty. What the white members of the CAR think of this is another question.
Constitutional or further statutory recognition is an option for urban Aborigines who would not qualify for an independent State because of the lack of a discrete land base. An alternative may be to adopt the citizenship of a sovereign Aboriginal State but live outside its territory. This is not as radical as it seems. White society was quite happy to tolerate our position as non-citizens in our own land until 1967. What would be the difference if we were to be non-citizens of the Commonwealth again, but citizens of our own nation?
But Brennan does not see hope for Aborigines in arguing for a treatyy or sovereignty. Rather he sees that "an accurate delimitation of the scope of selfdetermination by Aboriginal advocates will be more productive than the expansive rhetoric of sovereignty."23
He feels that sovereignty is an impractical alternative:
"There has never been any prospect of governments negotiating an agreement conceding or ceding sovereignty to an Aboriginal nation or nations."24
But neither was there any prospect that Aboriginal people would even survive. We were supposed to be absorbed into white Australia under the assimilation policy. If Aborigines and Torres Strait Islanders keep sovereignty high on the agenda then eventually the Government must address it - that is if it truly wishes us to have self-determination.
There is an increasing demand among many Aboriginal and Torres Strait Islander people for the recognition of our sovereign rights as the indigenous people of this land. Henry Reynolds describes the need for constitutional amendment as 'inescapable'. He states that although claims of the inherent right of indigenous peoples to self-government - as promoted by the Working Group on Indigenous Populations (WGIP), the Joint House Committee of the Canadian Parliament, the Aboriginal Provisional Government (APG) and other bodies - may seem radical to white Australians, they may have to come to terms with this sooner than they expected.25
Any 'agreement' would not have sufficient protection unless the Aboriginal people are regarded as sovereign. If Aborigines are subject to the laws of the Commonwealth of Australia, the government can always override an 'agreement' legislatively - unless it is part of the Constitution, in which case altering such an agreement would be more difficult.
The term 'treaty' refers to formal agreements between independent States. If an agreement were to take the form of a treaty, sovereignty must, by definition, precede such a treaty. Bob Hawke, during his term as Prime Minister, stopped talking about a treaty after he became aware that sovereignty is the implication of a treaty. We know this will be a long fight if the following views of John Howard (opposition spokesperson for industrial relations) are any indication:
"The concept of a treaty with the Aboriginal people is repugnant to an undivided Australian nationality and must therefore be resisted. ... [and] ... Fragmented Canada is an object lesson to those who believe common citizenship is divisible into bits and pieces."26
Canada's constitutional problems are hardly analogous to Australia. It is the English and French speaking majorities who are causing the disunity - not the Canadian Aborigines. As regards reconciliation he stated: "The progress which has been achieved in reconciling the moral imperative of delivering greater social justice and fairness to Aborigines while preserving the integrity of our common nationality will be an important indicator of how as a nation we have resolved a broader debate."27
This is a novel interpretation of reconciliation and is a good example of the verbose soliloquies that Aborigines have become accustomed to hearing from white politicians. However, it is an accurate reflection of what most white people want from reconciliation: better conditions for Aborigines and Torres Strait Islanders and mutual understanding, but no substantive economic or political control for us.
The only documented vehicle for a sovereign Aboriginal nation is that of the APG, which unfortunately has received little serious discussion outside the Aboriginal and Torres Strait Islander community. The APG does not strive for accommodation within the Commonwealth, but independence. The platform of the APG has been developed by the voluntary labour of its 'executive council', in documents such as The APG Papers Vol 1.28
The APG believes that the whole reconciliation process is vague and meaningless and simply a waste of taxpayers' money which:
"only further exposes Aborigines to the racist but oft-stated view that we are over privileged."29
The APG ask that, if the CAR is to produce a document, how could it possibly be better than the 339 recommendations of the RCIADIC?30 The APG argues that the Aboriginal community is unlikely to raise the 'weighty' issues (i.e., land rights and sovereignty) in the CAR, for fear that the government would dump the CAR (or its funding) if it were to do so.31 This was the outcome for the National Aboriginal Conference, which refused to retreat from its sovereignty position, and had its funding removed in 1985.
As Lavery says, "the bottom line is that the government is driving the CAR and this vehicle will not go where the government does not want it to go "32
In fact the CAR Act addresses none of the issues which the APG see as the only things important to Aborigines and Torres Strait Islanders:
"Land, improved conditions and self-government."33
The APG sees that the promotion of reconciliation will simply be holding back moves towards real self-determination. The process of reconciliation is not aimed at 'empowering' Aborigines and Torres Strait Islanders (even though the RCIADIC final report was firmly in favour of empowerment and self-determination) as it leaves control of the political, economic and legal structures in the hands of white governments. The APG argue that to suggest Aborigines and Torres Strait Islanders should have control of their own destiny without these structures “is incredibly naive” .34
White society is quite happy with reconciliation as it gives, in substance, no political or economic rights to Aborigines and Torres Strait Islanders. As the indigenous people of this land we have the right to our land, to justice and to true self-determination (which in my opinion must result in sovereignty). But these are outside the functions of the CAR.
The CAR's main role is to educate and thereby change attitudes. This is very important as it is a change in attitudes which will give rise to a change in actions.
There are no direct implications for a sovereign Aboriginal nation from reconciliation. One can only hope however, that through education and consultation, the reconciliation process will make white people realize that social equity for Aborigines and Torres Strait Islanders is only half the solution.
1. Button, J.,"Healing Wounds", Time (Australia), October 26,1992, p.42.
2. Reynolds, H., "Who is reconciling whom, and to what?" Australian Society, June 1991, pp.3-4.
3. McRae, H., Nettheim, G, and Beacroft, L., Aboriginal Legal Issus: Commentary and Materials, Law Book, Sydney, 1991.
4. Brennan,F., and Crawford, J., "Aboriginality, Recognition and Australian Law: Where to from Here?", Public Law Review, 1990 extracted in McRae et al, op cit, p.299: They proposed the establishment of an Aboriginal Recognition Conunission which would examine Aboriginal laws with the aim of drawing up a Charter of Aboriginal Recognition.
5. Jopson, D., "The Coloured Ball or the brown paper parcel?" Australian Society, September, 1991, p.6.
6. Council for Aboriginal Reconciliation, Making Things Right - Reconciliation after the High Court's Decision on Native Title, January, 1993.
7. O'Donoghue, L, The 1991 Sir Robert Ganat Oration, A15IC, 1991, p.14, quoted in Lavery, D., "The Council for Aboriginal Reconciliation: when the CAR stops on Reconciliation Day will Indigenous Australians have
gone anywhere?", Aboriginal Law Bulletin, Vol.2, No-58, October 1992, pp.7.8.
8. Jopson, D., op.cit., p.6.
9. Tickner, R, Second Reading Speech of the CAR Bill, 1991.
10. Tickner, R, quoted in Jopson, D., op cit., p.7. 11. Lavery,D., op cit., p.6.
12. Dodson, P., RCIADIC, Regional Report of Inquiry into Underlying Issues in W.A., Vol.2, p.730.
13. Reynolds, H., op cit., p.3.
14. Lavery, D., op cit., p.8.
15. Mansell, M.,"Beyond 2001 -the White Man's Dream may be an Aboriginal Nightmare", APG, March 1992, p.l.
16. Woollen, H., RCIADIC, Final Report of Inquiry in NS W, Vic, and Tas, p.406.
17. Button, J., op cit.,p.42.
18. Draft Treaty and Aboriginal Sovereign Position and Legal Entitlement, 1988, P.6.
19. See Pritchard, S., "The Right of Indigenous Peoples to Self-Determination under International Law, Aboriginal Law Bulletin, Vol.2 No.55, April, 1992,
pp.4-5.
20. Barsh, R., "Indigenous Peoples and the Right to Self-Determination in International Law" in Hocking, B., International Law and Aboriginal Human Rights , Law Book Co., Sydney, 1988, extracted in McRae et al., op cit, PP 72-73.
21. Brennan,'The Year of Living Harmoniously", The Australian Constitutional Special, The Australian, April 1,1992, p.5.
22. Usher, R.,' Goodbye to all That", Time (Australia), April 4,1993, pp. 26-31.
23. Brennan, op cit., p.5.
24' Ibid.
25. Reynolds, H., "Me Aboriginal Treaty Dilemma", The Australian Constitutional Special, The Australian, April 1,1992, p.4.
26. The Sydney Morning Herald, January 7,1993, p.8.
27. Ibid.
28. APG Papers, Vol.l, July 1992, Deep South Sovereign Publications.
29. Ibid., p20. 30.Ibid., p21. 31. Ibid.
32. Lavery, D., op cit., p.8.
33. APG Papers, Vol. 1, op cit., p.23.
34. Ibid., p.32.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1993/11.html