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Still not sorry!?

By Barbara Hocking - posted Thursday, 22 November 2007


Two hundred years after the "change of sovereignty" of 1788, the "law of the land" in the whole area of reconciliation between the new dominant "settled" society and the old immemorial system of communal land ownership of the indigenous peoples of Australia was legally laid down by the High Court in the Mabo case (1992).

The Mabo reforms were trenchantly opposed then and are still being opposed now. The opponents of the reforms mistakenly claim that they unjustifiably arose from guilt and shame over our colonial history.

Indeed we are sorry for the mistaken application of the common law in the past and the policies of "shame" in our colonial history. However, those of us involved were motivated by a sense of the rule of law and of justice. We are not the ones who see black armbands all around us. We saw Australia’s first people at last legally empowered to become visible, respected and equal citizens with legal recognition of their laws and customs, the gradual re-establishment of self-government and legal recognition of their communal ownership of traditional lands whereever these communities still existed and their native title had not been extinguished. Since the Mabo case, this is the position upheld by the common law and by statutes of every government in the nation.

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But it is necessary to be vigilant to ensure that the law laid down in 1992 in the Mabo case is entrenched in Australia. This political policy is still openly rejected by the Howard federal government in favour of the enforced application of the discredited past policy of assimilation. This is the old colonial policy of genocide writ in modern form and known to the United Nations nowadays as ethnocide.

We must remember that the past can happen again since those who either do not know or are not sorry for their history are wont to repeat it - as is now illustrated by the federal government’s colonial style take-over of Aboriginal land in the Northern Territory. An early Tasmanian Judge, referring to the fate of Aboriginal peoples being forcibly removed from their lands and way of life to a Mission Island, said "They will all die from broken hearts". And indeed they did. On August 21 this year, Irene Fisher, chief executive of Sunrise Health, referring to the increase of deaths in NT indigenous communities since the federal take-over, said "To me it is almost like some are dying of broken hearts". Quite so …

This is a medical syndrome not often seen and identified today, as it is the result of enforced social denial and destruction - it has happened to indigenous and other displaced peoples throughout the world. It is happening here again because of the Howard government’s renewed denial of the local law of the land and its refusal to uphold human rights and international law in this area.

Last September, Australia and the other former British-settled colonies of Canada, New Zealand, and the United States of America refused to accept the United Nations Declaration on the Rights of the Indigenous Peoples; a statement opposed by no other country, but voted against by these four nations. This decision was publicly justified by the Howard government because of a spurious legal furphy concerning "sovereignty".

A return to colonial practices

Australia is now returning to forcible dispossession; denial of rights to control entry onto one’s own land; removal of the rights to negotiate with resource developers concerning terms and conditions both of explorations and of proposed developments on one’s own lands; the threat of the removal of victimised children instead of the alleged criminals and other abandoned and discredited policies of the colonial era.

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That history lingered so long that those who claim they are not sorry because they did not do these things need to be reminded of just how recent the struggles were, to have repealed and changed the laws that still made possible, up to the 1980’s, the practices leading to "the stolen children" generations. Reform was opposed both then and now by many of the same people who still adamantly remain opposed to a national declaration of reconciliation that includes being sorry for the mistakes of our past history.

Australia’s rejection of the internationally recognised human rights of indigenous peoples is consistent with the policies of the Howard government, but it was done in all our names and on our behalf. Surely a majority of Australians no longer support the long history of by-gone colonial policies that led either to outright genocide or to ethnical oblivion through assimilation into the dominant society. Nowadays, the guiding principle of international policy is to preserve the way of life of the indigenous and nomadic peoples of the earth as long as they wish.

Do not mistake my purpose here. I am of course in favour of all the knowledgeable assistance that can be provided to endangered indigenous communities. I am pointing out that the methods enforced here are based on lack of understanding of the nature of native title in Australia - and so they are inappropriate and unlikely to succeed. Moreover, it seems that there may be a further purpose for there is no apparent justifiable reason to weaken or take-over native title as has been done.

Different property relationships with a society's land were at the heart of the Mabo case.  Mabo recognised both the legal existence and the ability to co-exist of Australia's three systems of land tenure. Where native title has survived, it is a communal ownership vested in the Aboriginal community and its members as a whole. It is similar to that of the Meriam people, the Torres Strait Islanders who own Mer Island - the famous Mabo case island. Both these forms of land tenure are quite unlike the individual ownership of our dominant society. These differences must be understood so that muddling of the systems, however well-intentioned, with probable catastrophic consequences, can be avoided.

The Mabo case was the culmination of an Australia-wide movement that corrected past mistaken legal judgments that the colonisation of Australia had been of an empty land owned by no-one – known as a terra nullius in Roman law. Mabo came about because of a sense of justice as well as respect for the rule of law.

The opposition of the Howard government to these policies has now taken a dramatic form with recent take-over of the lands of traditional and native title communities in the Northern Territory - a move executed without consultation, consent, or charm - and as in the past, the army, public service, and police were the instruments used. This is a return to the failed colonial methodologies of our past, underpinned by enormous ignorance and misunderstanding, together with a “we know better than you” mind-set that ensures new failures.

Nothing epitomises this better than the enforced racially discriminatory policy of quarantining individually paid unemployment benefits to be controlled as they were in the past by white managers of the reserve system - of course this results in the trap of powerless "welfare dependency" (just as it was always designed to do).

The misunderstanding of the nature of the traditional communal system of native title is stark. Because of the nature of native title, individual payments made within a communal system of land tenure are a contradiction.

Instead, this thinking should be turned full circle from colonial times to today’s world. The community council should receive a proportion of each of these payments as income for the community as a whole to manage for the benefit of the community and its members. Unfortunately, the Howard government has taken a backward step here.  Because it rejects the policy of enabling self-government to be exercised by surviving indigenous communities living on their own traditional lands, it has chosen to repeat the past.

Of course, living together but separately, requires the observance of basic minimum standards set by the dominant community. Our system fails young Aboriginal and other children when it does not enforce: the Australia-wide minimum age for marriage; the crime of sexual abuse of children; the obligation to attend school; bans on alcohol, and other similar offences within any community subject to counter-pressures from older members as well as outsiders. The old policies arose from greed for the land, racial discrimination, ignorance, a mistaken Darwinism, and ‘born to rule’ and ‘might is right’ attitudes. What is the reason now?

Uranium

The Howard government policy towards the mining of all resources, particularly uranium, is that it is an urgent necessity to be brought about as quickly as possible while the demand lasts. So policy is being enacted to enable the decreased controls over environmental assessments of mining proposals.

A constant criticism by resource interests of Aboriginal land ownership is the restriction on resource companies towards access to native title lands and the requirement that they negotiate exploration rights and conditions for any proposed developments with native title owning communities – a lengthy process that is part of the gradual re-empowerment of indigenous peoples in Australia.

The take-over of Aboriginal lands in the Northern Territory by the Howard government supposedly remedies seriously dysfunctional criminal behaviour towards children within their communities. Yet there has been no employment of resident female workers who could share with female elders the need for through-the-night watches inside houses with children at risk; no building of compulsory over-night hostels for males seen at risk of causing harm. The methods adopted have been those of the colonial past, not today’s empowering Aboriginal communities who still own their traditional lands.

Why has this emergency action necessitated the apparently unrelated serious weakening of indigenous land ownership? The measures have included the potentially disastrous removal of permits for entry on to Aboriginal lands and the freezing of all land applications under the National Native Title Act, both extremely harmful for the self-preservation of the communities concerned.

Why have the federal acquisitions of Aboriginal lands without the "just terms" required by the Constitution  (a case already seeks to have this found unconstitutional) been accompanied by the suspension of the Racial Discrimination Act, and the weakening, if not the removal, of the traditional communities’ rights to negotiate with resource companies on proposals for exploration and development. ALP amendments opposing these provisions were rejected.

Moreover, there is to be a replacement of the existing standards and safeguards of the mining of uranium by new proposals being developed by the Howard Government's "high-level uranium advisory group". Doesn’t this indicate an agenda directed to the facilitation of an urgent rush to large-scale mining of uranium both for export and for use in a possible new nuclear industry to be set up in Australia under the pretext of it being a "clean" energy source?

Maintaining Our Souls

Captain Cook had disobeyed his Royal Instructions: "If he found the land inhabited", he was ordered to "take possession of suitable sites ... with the consent of the natives". Yet consent has still not been formally negotiated. To me, this failure to seek consent represents "unfinished constitutional business" for all of us; and the reconciliation process is needed to formalise the legal foundation of the international nation-state of Australia. By re-taking control of the Aboriginal lands in the Northern Territory in this way, the Howard government in their hearts is still not obeying those long-ago orders because it is refusing to acknowledge the continuation of the land ownership "since time immemorial" of the Aboriginal peoples of Australia. There are indeed proper reasons for help to be given and there are proper ways to do it. A land take-over that seems to be part of other agendas being pursued at the same time is not a proper way for us to "maintain our souls".

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About the Author

Barbara Hocking BA,LLB; LLM; MA(prelim.). MIArb.A. was the first barrister briefed in the Mabo case. She was placed on the Victorian Honour Roll of Women 2006, was a Rockefeller Foundation Visiting Resident Fellow, Bellagio Study and Conference Center, Bellagio, Italy, 2002-03. She won the Distinguished Alumni Monash University Inaugural Award in 1993.
Barbara won the Australian Human Rights Medal 1992.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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