Caught in a racial trap
Thursday, 26 January 2012
We must proceed cautiously given the state of our citizens’ understanding of these issues.
Marcia Langton
How do you change racial provisions in the Constitution when the entire infrastructure of land rights is based on it? That’s the real problem that those who are now looking to redraft the Constitution are grappling with behind the smokescreen of drawing up a Preamble.
Talking about changing the Constitution is becoming about as much a ritual to the start of the political year as New Year resolutions. The latest round was kicked off by this month’s release of the report from the You, Me, Unity Committee advising on Constitutional changes for recognising Aboriginal and Torres Strait islander peoples. In addition to drawing up a Preamble, the committee also reviewed the existing Constitution, especially the amendments made in the 1967 referendum.
The misunderstood referendum
Of all the referendums since federation to change the Constitution, the 1967 referendum must easily be the most widely misunderstood. Some think it gave Aborigines the vote. It did not. Some think it gave Aborigines citizenship. It did not. Both of these had been granted before 1967. The 1967 referendum was at least seen to have removed discrimination against Aboriginal people. It certainly didn’t do that either.
That there is such a widespread misconception about the 1967 referendum is a sure sign that there was something awkward about it. A constitution for a normal modern democracy would be expected to be blind when it comes to race and make laws that would apply regardless of race or skin colour. Yet Australia’s does the reverse. There, plopped right in the middle of the constitution, is section 51 (xxvi), the so-called ‘race powers’, which specifically gives the Federal Government the ability to make special laws that can be applied only to certain people purely on the grounds of their race.
As would be expected, the reasons for putting these powers in the Constitution were mostly discriminatory. Edmund Barton, Australia’s first Prime Minster, was fairly blunt about their role in the run up to Federation, saying they were necessary so that:
the moment the Commonwealth obtains any legislative power at all, it should have the power to regulate the affairs of the people of coloured or inferior races who are in the Commonwealth.
Australia’s first chief justice, Sir Samuel Griffith, was even blunter:
What I have had more particularly in my own mind was the immigration of coolies from British India, or any eastern people subject to civilised powers. … I maintain that no state should be allowed, because the federal parliament did not choose to make a law on the subject, to allow the state to be flooded by such people as I have referred to.
However, until 1967, indigenous people were excluded and any special indigenous laws remained the realm of the states rather than the federal government. In 1967, far from being weakened, these race powers were extended to also include indigenous people at the federal level.
There were several reasons why they had been originally excluded. In the run up to Federation, the states varied widely in their political treatment of indigenous people; from South Australia and New Zealand (in the original Federation discussions) that had given indigenous people the vote, to Queensland and Western Australia where indigenous political representation was either heavily restricted or non-existent. Leaving indigenous relations to the states had one advantage of removing a potential barrier to Federation.
The split between the Federal government handling races from overseas (especially Asian) and leaving indigenous issues to the states also reflected the international/domestic split between federal/state functions that was envisaged as core to Federation at the time.
However, there was a third more subtle reason why the Federal government wanted to avoid the whole indigenous question – it ran counter to a national identity struggling to be created in the sheep paddocks of Queanbeyan. This antagonism was why conditions for indigenous people actually got worse after Federation, with voting rights eroded even in states where they had been granted.
This was supported by the Constitution’s exclusion of indigenous people from the census, which had the effect that even those states that allowed aborigines to vote, would not receive federal funding to reflect it. And it was supplemented immediately after Federation with the Franchise Act of 1902 that prevented Aborigines being on the electoral roll unless they were already on the state roll. So even in South Australia, for example, after the franchise had been extended to all native men and women from 1894, an increasingly restrictive interpretation of the Franchise Act saw indigenous political rights steadily eroded over the first half of the 20th century.
Getting back into step
The situation didn’t change until well after World War II and in the early 1960s leading up to the 1967 referendum. The reason for the changes in Australia were largely the same as to why the UK was dismantling the more overt symbols of Empire and why the US began dismantling racial segregation in the southern states at the same time – overtly racial policies were becoming difficult to defend on an international scale.
They had already been discredited following the 1945 defeat of a certain northern European country that had been rather over-enthusiastic in their application. But a more pressing reason was the difficulty shattered European powers had in regaining their former colonies against national liberation movements in the decades immediately after 1945. While many of the counter-insurgencies, such as Britain and Australia dealing with Malaysian rebels during the 1950s, were being carried under the name of anti-Communism, national liberation movements were claiming, with some success, that this was little more than a cover for old-fashioned racial colonialism.
To neutralise such claims, leading powers made moves both on the international front and at home to improve anti-racial credentials. Menzies brought in full Commonwealth voting for Aborigines in 1962, and the more recalcitrant states followed, with Queensland finally bringing in full franchise in 1965. But in addition, the federal government increasingly needed to respond to international initiatives, such as the 1963 UN declaration against racial discrimination.
As the Constitution then stood, such international initiatives caused two main problems for Australia. First, at a technical level, the inability to make special laws arguably restricted the national government’s ability to deal with international bodies over the indigenous question. But more importantly, an increasingly unfashionable discriminatory stance put Australia in danger of being seriously out of step with international affairs and facing the type of isolation that apartheid South Africa and Rhodesia were starting to experience. As already we know, international isolation was not an option for Australia.
It was inevitable then, that as the treatment of the indigenous population was becoming an international affair, so responsibility for it would have to increasingly pass from the state to federal sphere – and the exclusion of indigenous people from federal “race powers” would have to end.
The question was under which terms. On this score, looking at the series of parliamentary debates in the run up to the 1967 Referendum is revealing.
Discriminatory, but not discriminatory
The issue was first discussed seriously in Federal Parliament, when, a year after the UN Declaration, in 1964, then Labor leader Arthur Calwell put up a bill to include indigenous people under the race powers by deleting the exclusion, as well as including them in the census. As Calwell, and Whitlam seconding made clear, responding to international pressure was a key motivation. Yet while including Aborigines in the census was no problem for the Coalition government, they were less ready to include them under the race powers. Leading the government resistance was the then up-and-coming Attorney General, and future Liberal leader, Billy Snedden.
Snedden’s argument was an interesting one; by including indigenous people under the race powers, and making special laws about them, it would increase the risk of discrimination rather than reduce it. In reality, the government’s argument was probably more likely driven by states rights. But the idea that the race powers were still very much about discrimination and the way Barton originally intended it was illustrated by this revealing, if unedifying, exchange during the debate:
Snedden (LCP): … As I pointed out earlier, such a provision would empower the Commonwealth to make special laws in relation to the aboriginal race. In other words, the constitutional safeguard would be eliminated.
Beazley (ALP): The Commonwealth can make special laws in relation to Chinese.
Snedden (LCP): That is so, and we want to retain that right.
Bryant (ALP): And the English.
Snedden (LCP): I would not regard the English as a special race in this context.
This was three years before the 1967 referendum and the inclusion of indigenous people under the race powers. And yet in 1964, the same race powers, under the same government, were clearly aimed at special discriminatory measures against non-white people.
The fact that what was portrayed as an anti-discriminatory measure was being carried out through what had intended to be, and clearly still were, discriminatory provisions, was to be a bone of contention throughout the next few years as the constitutional changes were discussed. Simply taking out the indigenous exclusion from the race powers would make it possible to introduce special laws that were clearly detrimental to indigenous people. Liberal MP Billy Wentworth tried again in 1966, but this time tackled the possibility of negative “special laws” by making them only “for the advancement of the Aboriginal natives of the Commonwealth of Australia”. It lapsed.
Finally in 1967, a bipartisan agreement was reached, but on much the same terms as those Calwell proposed but rejected by the Coalition in 1964. What had changed its mind since then? One likely reason was the building international pressure; not only with the escalating war in Indochina, but also in the Commonwealth with pressure on Rhodesia for reform coming to a head with Smith declaring UDI from Britain in 1965 and following South Africa out of the Commonwealth. This increased the need for a national response to the indigenous question and the Federal Government having the powers to bring one about.
But also domestically, shape was being given to that national settlement. South Australia was the first state to pass a forerunner of later land rights legislation under the Lands Trust Act in 1965. Land rights was still a difficult position for the Coalition. State rights remained highly contentious for the Coalition, and were a factor in Gorton’s fall in 1971. So the Coalition made little use of the new race powers federally before Whitlam’s arrival in 1972, beyond some tentative moves in the Northern Territory. Nevertheless, there was recognition that international events would require some type of national response.
“Apartheid without the emotional overtones”
Ironically, just as the constitutional changes to tackle anti-discrimination came out of discriminatory provisions, the shape of the national response came out of the very restrictions that were supposed to be addressed. At the time of the 1967 referendum, the movement of most indigenous people was still restricted around an intricate national system of “reserves” under a complex range of boundaries, conditions and definitions of race by full-, half- or quarter-(‘quadroons’) blood that varied from state to state (indeed, one of the motivations for indigenous federal race powers was to harmonise them, rather than necessarily reform them). It was these that also formed the basis for that conditional ownership known today as “land rights”.
The equivocal roots of land rights was reflected in the explicit association at the time of the 1967 referendum with the “land rights” accorded black majorities under the apartheid regimes in South Africa and Rhodesia – such as that made by Beazley Snr (ALP) in the last debate on the constitutional amendments just before the 1967 referendum:
The Commonwealth should have this power because it is the Government which is confronted with the conscience of the world on this issue. I believe that we ought to transform our Aboriginal policies because it is right to do so. I am not speaking about a lot of sentimental policies; I am speaking about policies which are right. There must be some kind of recognition of land rights where people still live in tribal states, for instance. Until last week when the Commonwealth took action in the Northern Territory we were almost the only country in the world which acknowledged no land rights for the original inhabitants.
We have the effrontery to stand here and criticise South Africa. I am no apologist for South Africa, but at least the South Africans acknowledged the ownership of 400,000 square miles of South Africa by the original native inhabitants. We would regard Smith as going entirely berserk in Rhodesia if he acknowledged no native land rights at all. But the position in Australia is that we acknowledge no native land rights whatever.
Such land rights into which the black majorities of southern Africa states were forced were justified on the basis of the need for “apartheid”, or separate cultural development. While obviously racial, they were cloaked in the language of cultural difference. Here, again in the final debate, is another supporter of the referendum changes, the CLP member for the Northern Territory, making clear the link between land rights and apartheid:
I hope we will not confuse ourselves with other words which have come up in relation to the Aboriginal people. If ‘citizenship” is a confusion word and ‘reserve’ is a confusion word, because the Aboriginals do not own the reserves, another confusion word is ‘assimilation’. If an Aboriginal wishes to remain an Aboriginal I hope we are not going to say: ‘Without consulting you we have decided that assimilation is the policy’. Actually the only protagonists of apartheid I have met in Australia are the Aboriginals themselves. I do not say all of them are. ‘Aboriginal’ is another dangerous word and it is one of our words. They do not think of themselves as Aboriginals. They think of themselves as Arunta or Tiwi and all sorts of separate tribes
… Assimilation is our word. Many Aboriginals take it as meaning they are to be bred out. They wish to remain a distinctive people. After all, apartheid is always the policy of the minority race that does not wish to be absorbed. In Australia the minority race that does not want to be absorbed is the people we call the Aboriginals. Some of them desire that their reserves be inviolate, that their way of life be inviolate and they be allowed to continue as a separate community. This is apartheid without the emotional overtones for which we attack South Africa. Here there is no superior race connotation.
The desire of the Aboriginals to be a distinctive people is something we should respect wherever it exists. We should acknowledge the economic basis of such a distinctive existence or in other words that they might have some title to the remaining reserves.
The debates ahead of the 1967 referendum centred around a delicate balancing act: on the one hand appearing to be anti-discriminatory to indigenous people, while at the same time bringing in race specific discriminatory laws for indigenous peoples, as described in the electoral literature at the time:
The purposes of these proposed amendments … are to remove any ground for the belief that, as at present worded, the Constitution discriminates in some ways against people of the Aboriginal race, and, at the same time, to make it possible for the Commonwealth Parliament to make special laws for the people of the Aboriginal race, wherever they may live, if the Commonwealth Parliament considers this desirable or necessary.
But at the end of the day, such a policy of separate development on racial lines obviously requires laws based on racial lines. And today, the whole basis of land rights and the system by which the indigenous question is dealt with is still based on racial lines using racial laws, yet done so under the name of non-discrimination. There is not even, as Wentworth wanted, any requirement in such special laws to be beneficial to indigenous people. This is why the 1967 referendum is so widely misunderstood today – the basis of it is so contradictory.
This is not just a legalistic constitutional issue. It is not just the cases where such special powers have been used in a way that was openly detrimental to indigenous people, such as Howard’s Hindmarsh Island Bridge Act of 1997. Nor just the cases where the powers have been claimed to be beneficial, but arguably not, such as suspending welfare payments after the NT intervention. Racial separation is embedded in judicial thinking; such as last year’s Bolt case where Bolt was deemed to be racially discriminatory – but not as in the normal meaning of the word, being detrimental about someone’s racial identity, but in the very questioning of that racial identity. Or, to take a more sordid example, the release in 2007 of men found guilty of raping a 10 year old girl in Aurukun on the basis of different cultural standards.
Word games
All of this points to the dilemma faced by those who want to alter the Constitution today. For those given the task to redraft the Constitution, especially those closely associated with the land rights lobby (as many of those consulting the Constitutional committee are), they have a choice: either get rid of the openly racial sections of the Constitution, and therefore undermine the whole basis of indigenous policy and land rights over the last 40 years, or keep them and then have to deal with the their anachronistic and racial basis.
The Committee’s report shows it was well aware of this problem:
It is important that the races power not simply be repealed. An important achievement of the 1967 referendum was to ensure that the Federal Parliament can pass laws for Indigenous peoples in areas like land rights, health and the protection of sacred sites
Actually neither the protection of sacred sites nor health require special racial powers (equal access to health services would be a nice start). We are really just talking about land rights.
So we have the call for indigenous recognition in a preamble. It’s legally meaningless, as two of the committee members proposing it, admitted last week. But it does help to place a garnish on what is a constitutional cow-pat. But as for the Constitution itself? To disguise the racial basis embedded in it, the committee have suggested some clever word play.
First it is to pretend that it is possible for special laws for indigenous people not to be on the grounds of race. The report goes on at length of the problem of racial definitions and categories as belonging to a bygone age (this is true, but it might raise the question of what they think about the whole infrastructure of land rights that is based on it). But then on what basis can special laws be made for indigenous peoples? This will be done not on race but:
because of their unique place in the history of the country and their prior and continuing existence.
This is cute. There is no doubt that the source of the harsh treatment of indigenous (as opposed to other minorities) comes from their particular unique status with regards to the Australian nation state and identity. It is why the “rights v responsibilities” of indigenous activists like Pearson, Langton and the land rights lobby always miss the point, as it ends up making the issue about indigenous behaviour rather than the problem of the Australian state. But that relationship is experienced as a racial one not a political one. However it is dressed up in cultural terms, as the plaintiffs in the Bolt case made clear last year, being indigenous is a racial category of descent and blood, not a political/cultural one of choice.
The argument that “Indigenous and Torres Strait Islanders” is not a racial category is clearly unconvincing. So they have done something extra tricky. In replace of the special race powers, there are now two new additions:
Section 51A: Recognition of Aboriginal and Torres Strait Islander peoples
- Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;
- Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;
- Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;
- Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander Peoples;the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.
… and this one in a totally different part of the Constitution …
Section 116A Prohibition of racial discrimination
(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.
On its own, the last one looks odd. What’s a group? Does it mean protecting the culture of Collingwood supporters? The heritage of the Port Noarlunga Historical Society? On its own, the first is either banal (what is “acknowledging”?) or redundant (presumably the Commonwealth already has powers to make laws for good governance for everyone, as well as indigenous people).
What they look to have proposed is a race provision with no specific powers, and specific powers but with no mention of race. But put them together and we have the race powers back again, but this time only applying to indigenous peoples, not other non-white races as before.
The first problem with this is that we are still left with the question of what constitutes a beneficial law or one that “overcomes advantage”. This is not clear cut. After all, both Marcia Langton, one of the report’s authors, and Noel Pearson who contributed to the report, were supporters of the Intervention, presumably on the basis it overcame disadvantage. But even those that want to continue the system that the committee wants to protect, must surely have to wonder how it can be such an advancement when the result after four decades of its application so clearly is not.
“Complex”
But there may also be a problem of the referendum’s success. It’s unsurprising that in the final, and perhaps most annoying part of the report, of how to sell it to us dumb lot, the committee have emphasised not only the need to keep the clauses together (so the race power hiding in it remains intact) but to keep it simple. But the difficulty that Langton refers to of citizens getting their head around this is not because we are thick, but because of the trickiness of trying to selling a discriminatory provision as its opposite. They did it in 1967, but it might be harder this time round.
Especially as the public seem to want discrimination in the Constitution even less than they did in 1967. In extensive commentary in the report on polling done around the changes, there was only a brief mention to the fact that in a quantitative survey done by Newspoll in November, most surveyed “recognised the need to support Aboriginal and Torres Strait Islander peoples, but saw the singling out of one group of Australians as a ‘stumbling block’.”
Since this was not an option, as it would undermine the legal basis of the land rights system this is all designed to protect, it suggested to the panel “the particular importance of a properly resourced public education and awareness campaign in the lead-up to the referendum.”
It’s unsurprising that the Australian public would want a modern Constitution that doesn’t single out one group for different treatment. It’s also unsurprising that they won’t get it.
Posted by The Piping Shrike on Thursday, 26 January 2012.
Filed under The Australian stateTags: Constitution, NT intervention, Race
Thank you for this.
Informative and disturbing.
More please.
An extremely interesting and informative piece. I believe this is some sense a subset of the problems around the concept of positive discrimination. The intent is good, discrimination on arbitrary grounds is bad.
There’s an element of The West Lothian Question about this.
The constitution is an inadequate instrument.
What’s required is a treaty.
And for a treaty, both parties need sovereignty.
Such a concession and assertion, aboriginal sovereignty, really would redefine Australia.
Treaties come after wars, and the assertion of sovereignty. No matter how much the media want to turn an AFP stuff up into rampaging Tent Embassy protestors, we haven’t seen that.
So to me any “Treaty” will be as phoney and meaningless as a Preamble and similarly based on racial definitions.
Great stuff. also a lot of what drove 1967 is redundant. aboriginal heritage can be protected by world heritage eg tasmanian dams legislation. Mabo doesn’t require federal land rights legislation that was common law. Racial discrimination generally is banned by legislation ratifying UN covenants, as is feeding, educating disadvantaged children. Destroying Aboriginal customs and religion probably banned by no state religion powers in constitution at a stretch.
And everything is regulated by the corporations power now. If aborignal land trusts etc set up as corporations, can probably do what they like.
i like your linking of menzies and gorton to south africa and rhodesia. Reminds me of hawke talking about not becoming argentina and chile. The templates for settlement colonies are not good. They imply expropriation rather than conquest. Without a deep tap root of national identity they can be easily captured by sectional interests, and when democracy tries to assert itself, the army might take over.
“Treaties come after wars, and the assertion of sovereignty.
… So to me any “Treaty” will be as phoney and meaningless as a Preamble and similarly based on racial definitions.”
Yes and no.
Because a treaty implies those things, the cessation of hostilities, sovereignty, it would be difficult to write one that was phoney, meaningless and acceptable.
More difficult, yes. And more worthwhile.
Defining sovereignty would force to the surface Justice Brennan’s NON-racial definition of aboriginality.
If you mean Brennan’s definition that he used in Mabo, it still looks racial to me (based on descent), even if there is also a community element to it, which itself seems to me either circular – or racial.
I think a treaty would be phoney precisely because treaties do come from a contest of sovereignty and that is not what we are seeing here. Treaties do not create a clash of sovereignty just by claiming to resolve it.
It would not be a result of real social pressure or contest of sovereignty but the Australian state resolving an awkward identity problem that happens to centre in this case around indigenous people (or role in Asia or even, god forbid, ‘mateship’), such as it is trying to do for the Constitution. Put it another way, to me this is a state identity problem posing as a sovereignty problem.
To me the first step would be to remove any racial considerations from both legal and Constitutional matters – they belong in the 19th century – not embody them.
Brennan quite clearly saw that the ‘descent’ element of the definition could and should reduce to vanishing point.
Unfortunately, ‘descent’ persists.
Can you explain what you mean when distinguishing ‘state’ from ‘sovereignty’?
An australian treaty would first have to establish what sovereignty or state it was treating with. Attempting this would expose the identity problem.
I can’t see how the racial provisions in the constitution which underlie current Land Rights can be removed without their replacement by sovereignty. And if this is done, a treaty would be required.
Australia has a treaty with Indonesia, so it can’t be that hard, or requiring of a war.
Brennan sees descent being eventually replaced by a “community-based” definition. But on what basis is this community defined? Can a new community be formed, and on what grounds? The answer seems inevitably to involve racial descent and to me is just a racial definition by another name.
More importantly, if someone leaves the community and has no more contact with it, are they still indigenous? I think they could be whether it was wanted or not. This points to the other problem with such culture/community definitions: there is an implication of choice and it disguises that ultimately racial definitions are imposed, resulting in the state’s obsession with racial definitions of which I see Brennan’s as just the latest.
You’re right about Indonesia, but I guess I meant that treaties manage sovereignties and recognise it where it has been asserted. A state’s sovereignty can be challenged by another sovereignty (say, a national liberation movement against a colonial power) without having yet formed a state. I don’t see such a challenge being asserted in this case so there is no genuine treaty to be had – just a tool for managing an identity problem of an existing state.
Part of the problem with people getting too excited about the Mabo decision is that it reframes dispossession of a pre-capitalist hunter-gatherer people in terms of bourgeois property rights. Hence, it cannot be anything other than racial because property rights are passed through descent.
It is understandable that Indigenous activists have in the past framed their struggles in terms of a national struggle (of some type) but it is also a struggle that can only achieve its goals in any serious sense if it challenges the original dispossession — the alienation of the land post-1788 that formed the basis for capital accumulation. But to seriously accommodate that would mean challenging the very basis of Australian capitalism.
Looking for some halfway house — a Mabo decision or a treaty — misses the point that these will always be shaped to minimise the logical consequences of acknowledging that original dispossession even as they admit that it happened. So Gina Rinehart will not be exposed to any serious challenge to her riches even as the state admits that she has amassed them on the basis of the alienation of the land she mines from the Indigenous population.
Also, having come from NZ, I can tell you the Treaty Of Waitangi did little to prevent the most horrific racism towards the Maori people continuing.
” I don’t see such a challenge being asserted in this case so there is no genuine treaty to be had – just a tool for managing an identity problem of an existing state.”
Exactly so.
That’s why proposing a treaty is a better idea than editing the constitution.
Sovereignty would demand a non-racial definition of aboriginally.
And it would force a re-definition of an existing state.
A bit like the West Lothian question.
Dr. Tad, the Waitangi Treaty is not an instrument to abolish racism.
It does however put maori-pakeha diplomacy on a much stronger and clearer footing than what Australia is stuck with.
A treaty must generally be between two states. There is no single Aboriginal “state”, “tribe” or whatever you want to call it. There is no single Aboriginal government or representative to negotiate a treaty, nor is there any mechanism by which such a representative could be selected with any legitimacy (on the assumption that our principle of democracy would be relevant here). Presumably it would be another round up of the usual suspects, much the same as this committee. How convincingly would a group of government appointees negotiate with the government on behalf of the non-existent single community they are supposed to represent? You cannot make this all look like New Zealand just by wishing, although it might be easier if it did.
Whatever came out of this process would not look much like a treaty. In any event, treaties are not directly enforceable in domestic law, unlike the constitution, so where would it get you anyway? You would still be left to try and put it into domestic law. You might as well go straight to that part without bothering with a phoney treaty.
Erm … we’re already making domestic law from a flawed constitution. It’s a very serious flaw. Hence the need for something different.
New Zealand HAS a treaty. So it is possible.
How would you edit the constitution to make provision for land rights?
That’s exactly what’s being done. But since land rights were set up on a racial basis, so the Constitution must retain its racial provisions. A problem, in my view.
The position in New Zealand is not really relevant here. When the British came to NZ they were dealing with a more cohesive society with a more cohesive leadership structure, organised enough to effectively wage a war against the colonists. The maoris recognised themselves as a people and in fact as colonists themselves, retaining oral history of how they had come to occupy the north island, and retaining trans-pacific cultural contacts. By contrast, Australia was inhabited by a wide range of different cultures with little in common with each other, which were unable to organise collectively even had they wanted to. Unquestionably the New Zealand position has worked out better for the maori, however it does not present a model which can realistically work here, since the treaty would involve the creation of an artificial “Aboriginal” construct to be one party to it.
The experience in North America might be more relevant – there many treaties were made with different tribes, which differed in their terms.
However, the other point is that a treaty involves bargaining, and the aboriginal side of the table does not have anything to bargain with. The process will be an artificial exercise of the Australian state deciding what to “give away” in the treaty by “negotiating” with (probably) a group of state appointees.
The deeper question which is being avoided is whether land rights awarded on a “racial” basis are a good idea. This creates an incentive to maintaining an artifical construct of race. Given the artificiality of racial disctinctions, the question of who is “in” and who is “out” is rather vexed. The communitarian aspect of the rights means that the entitlement to deal with the rights is also vague, and it also leads to benefits (for example, pay offs from mining companies) being directed by “community leaders” of perhaps doubtful provenance.
The whole debate on the land rights is rather similar to the debate on enclosure which occurred in 18th century England. The conclusion there was that rights in common were wiped out in favour of individual ownership, and that is the system we have still got in Australia (for non-Aboriginals at least). You can debate the merits of this system (collective farms anyone?), but surely if we believe that the law is to be determined democratically and without regard for race, it should be the same for everyone? Which is not to say that land rights should be snuffed out, but is perhaps to say that they should be converted into “bourgeois” rights of an ordinary legal kind which don’t need the power of a race-based constitution to support them.
Then perhaps if the new Aboriginal owners of the land want to continue with their “traditional” ways and community living, it will be up to them. However, if they want to sell up and move to the city, it will also be up to them. Tough choices perhaps, but no tougher than the choices that we all face. And perhaps the defenders of land rights are worried that the “wrong” choice will be made?
I think the problem is that even if one wanted to, land rights would be difficult to unravel. The intervention, probably the most sustained assault on the arrangement, made on the back of a child abuse scare, showed that neither Labor or the Coalition had anything to replace it.
Yet the racial foundations of it look increasingly anachronistic. Hence the “trap”described above.
Change is hard, and probably if not done carefully may actually make things worse. And there are probably no votes in doing anything about land rights, just a whole lot of opprobrium. However, history has not stopped, and the land rights we have now are only 40 years old. If there is no change, I think the biggest trap is for the “beneficiaries” of land rights who are living in remote communities without the basic amenities of civilisation which the rest of us enjoy, and without the option to use their “rights” to get them.
” But since land rights were set up on a racial basis, so the Constitution must retain its racial provisions. A problem, in my view.” …
And mine.
So. Remove the racial provisions. Replace them with what?
F: “Unquestionably the New Zealand position has worked out better for the maori”
On this, we agree.
But if you agree that Land Rights is worth pursuing, the Inclosure Acts are not a good precedent. Most aboriginal Australians don’t have recourse under existing Land Rights provisions. Any such proposal really would present a threat to people’s back yards.
I can’t see an alternative to the Racial Provisions that doesn’t involve some sort of sovereignty and an agreement.
Jeff – I am not advocating the transfer of land other than that which is already in aboriginal hands.
The problem is essentially this – for aboriginal people to get land rights under the existing legislation, they have the burden of always showing a continuous connection to the land. This is because of the justification of the land rights based on a mystical racial connection with the land, rather than any recognition that there were identifiable legal rights pre-existing European arrival. This was a tactical mistake by the land rights lawyers, which is now recognised by some of them.
Thus the “beneficiaries” of the land rights are trapped in remote communities, unless they want to lose their land rights and renounce the identity which goes along with the land rights. And it can hardly be surprising that living in a remote community results in worse education and healthcare. In my view, aboriginal people would be better off moving out of the country and into towns. I don’t know whether that is the answer or not. However, the current structure of land rights provides a barrier against anyone who might otherwise exercise that choice.
F; I agree with you to this extent: The beneficiaries ought be ALL indigenous people.
But most of them already live in cities and towns and any claims they might bring will fail under the current system.
They can’t show ‘continuous use or attachment’.
So they don’t bring them.
A failed claim means extinguishment of further rights, claims or appeals.
There’s nothing mystical or racial about this.
What’s racial is the legal basis in the constitution that enables the laws to be made.
What’s required is a clear, non-racial enunciation of Brennan’s definition of aboriginality, combined with a Land Rights remedy that is accessible and of benefit to all aboriginal australians.
Where land can’t practically be ceded, original ownership can still be acknowledged and rent paid.
Who receives the rent?
This question demands an aboriginal sovereignty. Reserved seats in parliament, like the NZ system would be a democratic way to sort this out.
I know our host, PS, only describes the daggers he sees before him, but I’d like him to prescribe some medicine for the miserable.
Jeff – I think you and I have different ideas of what land rights should be used for. Your position seems to be that land rights are the key which should be used to unlock “aboriginal” prosperity or self-esteem or to acknowledge past wrongs. I think that they are a barrier to the integration of aboriginals into a multicultural society which must eventually occur, if we believe that aboriginals are to be as healthy and prosperous as the rest of us. This requires adaption on both sides, and a willingness for aboriginal culture to adapt and become more inclusive – as maori culture has already done.
Therefore, I do not see a need to have a continuing role for land rights, and I do not see a need for the existing land rights to benefit anyone other than the existing inhabitants of the land. Those who have moved into the city are already one step further toward integration.
Your idea of rent is the same as imposing an Australia wide property tax and using the proceeds to pay aboriginal benefits, which appears divisive. That is not to say that people should not be supported by the state, as indeed people who can claim aboriginal descent already are to a greater extent than those who cannot, because of special benefits which are directed towards them. In my view, benefits should be based on need and not on “race”. In general people of aboriginal descent are clearly less well off, but in particular cases that is not always true.
Your and Brennan’s attempts to claim a non-racial definition of aboriginality are specious, and become more artificial with every year that passes beyond settlement.
As for aboriginal seats in Parliament, why will that fix anything? Why should aboriginals get more voting power than anyone else in the remaining more than 90% of the population? Because their ancestors lived here for longer? Would you say that first fleeters should get more votes than more recent arrivals? The point about democracy is to provide a system which the population will accept as fair, so as to maximise engagement and minimise insurrection. In my view, it is unlikely that your suggestion will command greater acceptance than the present system, and the chances of it getting through a referendum is nil.
Politics is the art of the possible, and this is a political blog. The reason that politicians are in charge is not because they are good at taking decisions, because god knows they aren’t. The point of them is to know what is politically possible, which they have a very finely honed sense of. The very best of them can change what is possible, but that is a rare talent which seems currently absent worldwide.
None of what we have been discussing seems politically possible, and hence the probable result is that we will muddle through much as before, the difficult problems will be shunted into the future. That is why PS will not be engaging in our utopian debate.
As for the future, a shock referendum defeat and a worldwide murmur about Australian racism await, perhaps followed by a few ironic shakes of the head on this blog that failing to include race based powers in our constitution is racist.
F. Your position looks, walks and quacks like ‘assimilation’.
There is no such thing as ‘race’. Having it in the constitution is problematic.
You can’t just call Brennan’s ruling specious. You need to produce an argument.
Existing Land Rights arrangements were thought politically impossible 40 years ago. They have been achieved through political struggle. It continues.
Maori politics and the developments of the Maori seats in NZ are instructive. Look into it and you’ll see that your questions about it are ill-framed.
If your goal is not assimilation of the entire Australian population into a single multicultural society, then what is it? Do you regard achieving equality of health and other outcomes as desirable? If so, how is this to be achieved in your view?
Brennan says:
“Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise.”
So notice the weasel words “clan or group” and “indigenous people”, but the omission of the essentially synonymous word “race”. In order to benefit from land rights, you have to have the right descent, from those people which were in Australia pre-settlement, from time immemorial, another legal fiction to rank up there with terra nullius. Given that the rights are accorded to the “Meriam people” and that membership of the Meriam people depends on descent, this seems basically equivalent to an award on the basis of “race”, whatever that is, just without using the word race. Hence, specious.
However, here is the sting:
“…when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. Australian law can protect the interests of members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so). Once traditional native title expires, the Crown’s radical title expands to a full beneficial title, for then there is no other proprietor than the Crown.”
So the basis of native title is the continued observance of those customs which supposedly existed at settlement, with no reference made to the fact that aboriginal culture pre-settlement was not in fact static, and no acknowledgement that the fact of European settlement is likely to impact substantially on the preservation of existing customs. There is the trap.
F.
You’re confusing the Land Rights judgement with a much simpler ruling, that on the DEFINITION of aboriginality.
That current Land Rights laws depend on racial provisions in the constitution is not contested; it’s acknowledged as a problem.
Here’s the current chain of precedent:
Brennan’s Mabo (No. 2) judgement;
“Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.(14)”
The first of Justice Brennan’s 3 criteria, ‘biological descent’, was found in WA v Ward (2000) to not imply strict patrilineal descent, and the administrative definition, ‘Aboriginal descent’, was found by Justice Merkel in Shaw v Wolf (1998) to not need to be proved ‘according to any strict legal standard’, it being;
” a technical rather than a real criterion for identity, which after all in this day and age, is accepted as a social, rather than a genetic, construct.”
So ‘descent’ is out, gone, not in it.
The question then becomes the relationship of aboriginal australians, so defined, with the australian state. Either it’s different to that of settlers, or it’s the same.
I think it ought be different.
Your conundrum, such as it is, rests effectively on a claim that land rights/native title are inherently discriminatory. Otherwise there is no constitutional issue. I realize the view is common in (white) Australia, but it falsely assumes both corrective justice or affirmative action are discriminatory.
Nor is there a formal legal issue if it is just that references to ‘race’ or ‘Indigenous peoples’ offends your sense of propriety or language. Native title is common law founded (look around our constitutions, state and
federal, ‘land’ isn’t a subject, except for peremptory
assertions of acquisition by the Crown). It can be statutorily regulated by coordination by the states or referral of power. Ditto any other provision (eg Abstudy) through powers that are facially, racially blind.
A deeper institutional problem was the abandonment of ATSIC, an elected, regionalized body. It suits government/regulators/media to hide behind the claim that Aboriginal and Islander peoples are ‘ too plural’, there’s noone to deal with, as it allows less consultation, nil self determination, and selectively picking the favored ‘spokesperson’ of the day (Pearson, Mundine etc)
Graeme
The problem with ‘race’ as a concept is not trivial.
Removing ‘descent’ from the 3-point definition is essential to progress.
And of course Land Rights ARE discriminatory.
It’s a remedy attained through positive discrimination.
That’s why a robust definition of aboriginality is required.
Even in cases where land claims are founded in common law, they do nothing to address sovereignty, they can even work against it. Your final paragraph alludes to aspects of this.
The fact that ATSIC ever existed at all is evidence that it IS possible to move toward something that could be likened to the NZ arrangements.
Jeff – Thanks for the update on the law. I am not sure the aboriginal community accepts that aboriginality is a social construct. Can people of, for example, Chinese descent become aboriginals? How do you identify the community which needs to accept you as an aborignal person? There are a lot of questions being begged, and lots of legal smoke and mirrors to obscure the real basis of the law.
So, can you answer any of my questions? I have had a go at yours. I am interested in how you can square a refusal to assimilate with an equivalence in health and wealth, or whether you prefer to accept inequality as the price for non-assimilation. It seems from your responses that you believe that aboriginal communities should not assimilate, but should be enabled to achieve similar e.g. health outcomes through ongoing positive discrimination? I don’t see how it can be done.
I actually think that the better position in NZ is primarily due to better assimilation than has occurred here. There is an adoption of some maori culture by the settlers and vice versa in a way which seems unthinkable here. There are common frames of reference and greater inclusiveness on both sides. And there is a wider world out there. Everyone in the world needs to participate in some sort of global society in order to address global issues. That is the challenge of this century, not whether people within a single nation state can manage to form part of a cohesive society.
F.
Here’s my go at your questions:
• The definition of aboriginality.
Choosing to identify, and having that choice accepted by the community is necessary and sufficient. There have been acrimonious disputes in Tasmania, a sign of the long term viability of this mechanism.
Some examples of explicit NON-descent are: adopted children, children in blended families; Mudrooroo and Bobbi Sykes are two prominent individuals who identified and were accepted, but later became involved in controversies related to their ‘blood’(or lack of it).
Contrary to what some assert, people are not queuing up to identify.
If they were, we’d know we were getting somewhere.
• Assimilation
The word has bad connotations as it was part of explicit government policy of ‘soft’ genocide.
Your idea of ‘refusal to assimilate’ doesn’t fit with the realities of indigenous disadvantage – most aboriginal australians are urban people. Many disadvantaged communities, Palm Island is one example, originated as penal settlements or concentration camps.
What’s missing is recognition of sovereignty, economic independence and self-determination.
But you can’t have a legal definition of race based on whether you, or some “community”, choose it. Conditions for differential treatment under the law, such as insanity or being under-aged, must be imposed, not open to someone just choosing to “opt-out”. This was precisely the issue at stake with the Bolt case, where Bolt claimed the racial identity was a lifestyle choice whereas the plaintiffs argued that it was a matter of descent outside their personal choice. Needless to say with racial thinking embedded in Australia’s jurisprudence, the plaintiffs won. I can’t see how you can avoid the fact that racial categories are imposed in law, as it is in society anyway.
On land rights, I think it is completely misleading, and historically inaccurate, to claim they are a result of “struggle” of indigenous people. As I have set out here, they are largely a result of the state managing the problem of rearranging a system of reserves, designed to restrict the movement of indigenous people, in the face of international pressure to tone down such overtly racially discriminatory practices. As was clear at the time, they tended to draw more on the practices of the apartheid regime in South Africa and Rhodesia than the wishes of people who had negligible political influence. Such a rearrangement required the special race powers granted in the 1967 referendum. I think calling it a result of “struggle” gives it a progressive gloss it does not deserve.
Finally, Jeff is right, this blog is not about solutions. Unlike most political blogs, this one is not a call to political action; I try not to confuse the ether of the internet with real society. All I can do is try to describe how things are as accurately as I can. In this case, what I am trying to describe is a deep structural flaw of the Australian state for which there would be no easy solution. Even when both sides of the political class tried their best to start to dismantle it, armed with a trumped up child abuse charge, they failed. Given their state now, when even a small demo sees Australia’ crack police force panic and drag the Prime Minister barefoot across five metres of concrete, they are clearly in no position to do anything but try to patch up the more awkward racial elements in the Constitution.
Shrike
#REF! Invalid Cell Reference!
If it’s a non-racial definition, then it’s not defining ‘race’.
It defines ethnicity, clan membership.
The point is to get ‘race’ out of it.
What’s needed is not differential treatment under the law. That’s untenable.
As I keep saying recognition of sovereignty and a treaty is better.
Justice Bromberg ruled on the RDA, on Bolt’s intentions, not any definition of aboriginality. He found:
” that the meaning conveyed by the Newspaper Articles contravened s 18C of the RDA and was unlawful in that it was reasonably likely to offend, insult, humiliate or intimidate Aboriginal persons of mixed descent who have a fairer, rather than darker skin, and who by a combination of descent, self-identification and communal recognition are, and are recognised as Aboriginal persons”.
On land rights, whether the key pressure was domestic or international, it WAS political pressure.
There was no international pressure over Lake Tyers in 1957. Sure, the government was trying to manage a reserve that had been created as an ethnic cleansing concentration camp, but the eventual outcome was completely the result of a political struggle.
Woodward’s failed case against Nabalco at Yirrkala had it’s origins with The Bark Petition.
You can call these histories “progressive gloss” if you like, but there’s no need to rewrite them, they are what they are.
If laws about aboriginal rights are really not about race, then you would not need the carve out in the new section 116A(2. The reason it has been put in is that the framers of the amendments have determined that under Australian jurisprudence, probably the courts would say that stuff that singles out aboriginals (for good or bad) is racially based.
It does get into the interesting point that PS raises about how you tell what is in the carve out and what isn’t (and is therefore prohibited). My suspicion is that the court will be inclined to give parliament the benefit of the doubt, and let things go so long as there is some sort of a nod towards overcoming disadvantage or something.
F., the laws ARE about ‘race’, which was the point of PS’s original post.
They shouldn’t be.
If they’re not, what can replace them?
If you think differential treatment under the law is untenable then you can’t have land rights. However, you want it dealt with, through a treaty or whatever, that’s what it amounts to. The answer to how you make a racial definition non-racial is that you can’t. Your proposal of making it just individual and community choice won’t work.
I can’t understand how you are reading the Bolt case, even the bit you quoted, that conflicts with what I said; that it rested on the definition of “Aborigine”, of which descent was key, and the offence was Bolt’s questioning of it.
I think the minor nature of the example of you gave as a result of domestic “struggle” says it all. It’s not a matter of indifference whether the changes came as a result of keeping in line with the major powers and from pressure from indigenous people – certainly not to land right supporters who are always far more willing to describe it as a result of domestic “struggle” than the reality. But maybe it also might help to explain why after 40 years of the arrangement there has been so little progress.
F, the carve out will be done as whatever is necessary to maintain the status quo, no matter how unsatisfactory it actually is.
Bromberg considered the offence to be the intention to humiliate.
In the 40 years since the establishment of the tent embassy, there’s been a lot of progress. So much that the awkward, racial, constitutional basis is creaking, as you point out.
Take ALL the examples, starting say from the Cummeragunja walk-off, right up to the Yorta Yorta decision. You wish to deride this as something less than a ‘struggle’. What do you call it?
When you say ‘won’t work’, are you predicting the future?
I look at structures within the english speaking world, like in NZ & Canada(treaties) and the UK(devolution) and see things that ‘work’ a lot better than Australia.
Jeff – You are John Pilger and I claim my $5
I shall lay bare my soul. I actually do not care about aboriginal land rights. They have nothing to do with my life. As a recent immigrant, I feel no guilt at all in relation to any past acts by settler Australians. In fact I came ready to condemn the Australian racism that I had heard was responsible for the aboriginal plight (mostly through reading the Guardian). However, I do think that is appalling that people are living in third world conditions in one of the richest nations on earth.
When I arrived here, I came to realise that providing services to people who live hundreds of kilometres away in the desert in small communities is pretty much impossble. I also came to realise that the integration of groups which until pretty recently were effectively living a stone age lifestyle into modern western society is pretty near impossible. I saw the desirability of maintaining a culture which had existed for so long, but also the impossibility of continuing to live in a traditional way alongside white Australia. I also thought more about how convict settlers from the lower strata of British society were likely to interact with the profoundly alien and occasionally hostile people that populated the land they had been shipped to against their wills.
I am interested in any views about how any of these problems can be addressed. The tentative view I have formed is that voluntary assimilation is the way forward, because we have not invented any way to get the substantial benefits of modern society without living in the way that we do, and because I think it is impossible for aboriginal people to live in a traditional way and ignore those benefits. Also because all of the best land now has white settlement on it and the areas which are left for aboriginal rights are marginal at best, and I don’t think mass dispossession of white settlers is the way forward, the traditional ways may not even be sustainable any more.
Jeff – I can’t understand how you regard these problems as being solved by your ideas. Your assertions about treaties and sovereignty are very vague. Your comparison of Aboriginal sovereignty to Scottish and Welsh devolution seems strange and irrelevant. You cite the postion of other settler nations but disregard the historical differences between Australia’s situation and theirs. You assert that aboriginal rights are not about race but culture, but ignore the lack of a common aboriginal and torres strait islander culture. You have not given me any idea how a treaty or soveignty or anything else which settler Australia can bestow upon aboriginal Australia will make anyone’s life any better. Therefore I conclude that you are more interested in struggle and identity than you are in these issues, and it seems unlikely we can agree.
One thing I would disagree is that it is impossible to maintain remote communities. Australia has become quite adept in remote places like Oodnadatta and Coober Pedy of maintaining access to first world amenities and services.
There is no logistical reason why that could not be done in indigenous settlements as well. Nor do they even have to be economically viable. Just as towns are maintained despite high youth unemployment, Australia does have a welfare system, and there’s always been rural pork-barrelling! None of that needs racial or ‘special’ laws to implement.
But the idea of separate development almost sets out an argument against equal access right from the very start.
F.
I reckon you DO care.
Your thoughtful and civil posts show it.
It’s about more than physical welfare.
That’s why land rights are important.
PS is totally right about the logistics of material services.
But rural pork-barrellling, really, that’s NOT special treatment?
So, why aren’t 1st world amenities available in remote indigenous communities?
And why do non-remote, urban aborigines, who are far more numerous and have no access to land rights, have appalling education and incarceration stats.?
I understand PS’s project and eagerly anticipate his instalments.
I don’t understand why he is so shy of the 11th thesis on Feuerbach.
Of course pork-barrelling is “special treatment”. You just don’t need a racial law to do it! It’s quite possible to allocate extra funds to a particular region to deal with disadvantage, just as say apparently happened in Lindsay Tanner’s electorate of Melbourne before the last election. It’s simply a case of identifying an area that is falling behind and, based on the idea that there should be reasonable equality to services, dealing with it. The problem is the idea of separate cultural/racial development immediately raises the barrier to equal access and treatment.
Let’s give an example, the one no one likes talking about, and the one that raises such a doubt over your claim of how much progress has been made in 40 years. Just over four years ago a report came out making the bizarre allegation that indigenous parents in the Northern Territory were either allowing, or even participating, in the sexual abuse of their children on a mass scale. If such an accusation had been made over some suburb in Sydney, no one would believe it, or at least they would demand proof. There was no proof in the report but nevertheless it was almost universally believed and acted upon as though it was true.
Why? Because the idea of cultural difference gave grounds for assuming that different standards apply in these communities for raising children. It was inevitable then that different measures would be taken and we had a racially based response, supported by both parties, the same parties that now support recognition in the Preamble. If the Preamble is so much about respect, how could the major parties also support something that shows they think they are the type of people that sexually abuse children en masse?
You say I deride the ‘struggle’ of indigenous people for equality. Far from it. I admire it, for the same reason it has had so little influence on the shape of indigenous policy: they have done it with so little support from anyone else. Especially the Australian left, who still claim racial/cultural apartheid is somehow progressive, while at the same time, when it came to the allegations of mass child abuse, they not only went along with it, but it was from their side of politics that the charges originally came.
The fact is that there is no issue like indigenous policy that shows how bankrupt is the political spectrum in Australia from the right to as far left as you like to go. At least now, as we see in Canberra, that what has been a long-running dissatisfaction with the political class in the electorate is now becoming so apparent, that even those most caught up in it are getting it.
Yes.
But the ‘struggle’ is about more than just ‘equality’.
Of course, who doesn’t want more than just that? But it’s always a nice start.
Well.
Pushing toward 50 comments has to be a record on TPS.
But your constant padding up and leaving, that is what you’re doing isn’t it?, is unsatisfying.
Its all rubbish – the real problem is the endless Aboriginal complaint industry. I knew when they made the apology it wouldn’t be enough , and sure enough it isn’t.
Even if this idiotic referendum is passed, nothing will change, nobody has the guts to confront Aboriginies about the self imposed nature of their problems. Its typical white guilt rubbish, pass a symbolic referendum to avoid making any hard criticisms.
None of it was rubbish ’til you turned up Hector.
Time to go and get dragged by your heels in the dust.
Ok Jeff, so the aboriginies problems aren’t self imposed? All the nasty racists are holding them back? Really?
Well, we’ve found ONE nasty racist.
I’ve missed much of the post, but how is Mabo and the ‘connection’ to the land any different from common law title?
The judges said as much.
If someone like Dr Tad says “Yes, but that’s feudal” I’d have to say “Yes, and?”
The common law of land was very much based on mystical connections through ancestors and you had to have one of those ancestors to be able to claim that connection. Of course if an ancestor waived their rights, through contract involving consideration, or failed in some other way to maintain the right by neglect, forgetting, treachery or some other means, then the right disappeared.
And you needed some sort of evidence, either through continuity of occupation, or a record.
So Mabo was not ‘discriminatory’ in that sense, only in that most of Australia was already Torrens registered.
Mabo was based on the mediaeval law of Europe (eg the constant fighting of English Monarchs on french territory) plus case law from Hong Kong, Zimbabwe, India and so on.
It’s white man’s law, but it is law.
The REACTION to Mabo, well, that’s where the racism came out. The left were looking for better entitlements to land than those that existed, based on race, and the right were looking to extinguish entitlements also for race reasons.
Riccardo
I agree with you on the nature of the ruling.
Its problem is ‘evidence, either through continuity of occupation, or a record’.
Most can’t establish this under current precedent.
Claims have stopped, for if they fail, they are extinguished.
http://tinyurl.com/yortayorta
If you were trying to be ‘non-racist’ about Mabo you would have to frame it as Tribunal for Resolving Lapsed Land Claims Where Insufficient Evidence Exists for Common Law Claim or something longwinded like that.
It would just so happen that most such claims would relate to pre-1788 matters.
But a few might not be, such as non-Aboriginal people claiming some right of use of land that is not documented by title or lease or some other instrument, but which they can convince a tribunal, acting under legislative authority. It would be ‘colour blind’ in this way.
t would be like arguing that William I conquered England and expropriated the land he chose to, but where he failed to expropriate the land to himself and his allies, the land tenure remained as it did pre 1066.
Mabo was very clear that the sovereign can invade and occupy other lands, and can expropriate the land of conquered people. But unless the sovereign actually uses some legal instrument to make the expropriation real, then it didn’t happen, and the original land owner keeps their land.
The law is only one construct for looking at how people solve grief and conflict. The reason we are looking at law is because we are debating the constitution – a legal document.
The law often codifies ‘reason’ but as often it codifies ‘myth’ so it is very much a double edged sword for those looking for justice.
Australia is the land of original sin. It was an invaded land with no declared invasion. It was built up as an idea of equity and justice and opportunity when none of those things could apply by definition as they were missing at the start. The snake was already in the garden and the ‘fall’ was predestined.
It’s no wonder William Lane wanted to go elsewhere as the ideals were already lost.
Thanks Riccardo
I’m unconvinced on the founding ideals, but all this just reinforces the need for a treaty as a way forward.
Riccardo,
If pre-1788 Aboriginal society had been feudal (or some other form of class society), then the land-as-property argument would make sense. But it wasn’t; it was a hunter-gatherer society where the concept of “property” would have made no sense because there were no antagonistic class relations of any significance.
Thus, the alienation of the land didn’t have to proceed in terms of property rights in the same way that we might expect if the colonists had come face to face with a class society with established property forms.
This is why “common law” doesn’t apply, except as something imposed in retrospect by the Australian state. The management of the Indigenous question has always rested on the state’s stance towards this group of people and their ancestors, not some preexisting group-bound property right that was unfairly supplanted or destroyed post-1788 (and therefore potentially rectified by a Mabo-style decision).
I agree with TPS that the white Left (for want of a better descriptor) has mostly failed to either provide a useful analysis or practice that could more seriously challenge Indigenous oppression. I suspect part of that is a result of the way that the state and ruling class have consciously stamped on any signs of serious integration of Aboriginal people into the working class.
This was the sick irony of “assimilation”; it demanded conformity with the dominant ideologies and cultural practices while simultaneously excluding Blacks from central aspects of formal equality within society as workers. That is, telling them to stop being a racial group while at the same time ensuring that in practice they were discriminated against as a racial group, thereby materially reinforcing their “difference”.
Anyhow, that’s my take.
To me, any decision that requires the re-writing of the events of 200 years ago, raises the question of descent and race when looking at the implications for those living today – and there the problems start.
Shrike
Aboriginal identity is not defined by ‘descent’ or ‘race’.
And the problem started 224 years ago.
The problems of today, which is all I am concerned about, starts by slapping on what happened 224 years ago to explain the inequality of today.
I think we have covered this “non-racial” definition of Aboriginal, and it’s just word games.
Can you please show how it’s just ‘word games’?
You seem wedded to the idea of ‘race’, or am I misreading you?
And really, ‘the problems of today’ … from you, who so carefully share with us the historical roots of things. How else do you explain the ‘inequality of today’? It didn’t spring fully formed from the head of Zeus.
Because obviously someone of full European descent is not legally, politically or socially described as Aborigine. I don’t know what more I can say above the 1 Feb. Clearly you support land rights and you are trying to find a non-racial definition of Aborigine to maintain it. Good luck.
Finally there is a world of difference between showing the way we got here (and the intention behind them) and saying the past determines what happens now. Funnily enough, while acknowledging the importance of history, the fact that the land rights system came out of modifying a reserve system designed to oppress indigenous people and with close associations to apartheid, as I have described, is ignored. I understand why.
The fact is that we could do away with the racial provisions in the Constitution in a flash, there is certainly support for it. But we won’t because it suits the left and the right to maintain the land rights system. The wriggling around by the Constitution committee to do so without the racial bit is just word games.
I’m not trying to find a non-racial definition, there’s a usable one available but you’re evading speaking to it. That would give you something more to say.
You decry the existing system of land rights as somehow unworthy because it arises from previous oppressive practices … ought the clans who have established claims renounce them on principle?
I don’t know what suits the ‘left’ or the ‘right’, but I reckon aboriginal australians don’t favour abandoning land rights.
Land rights have never been about what aboriginies want.
You’re saying Aboriginal identity is not defined by ‘descent’ or ‘race’ and now you’re saying you’re not trying to find a non-racial definition. I can’t follow this.
” Land rights have never been about what aboriginies want.”
… if you say so.
That doesn’t mean they don’t want land rights.
” I can’t follow this.” … clearly.
Race is not a scientifically sustainable idea, it ought be abandoned.
A non-racial definition of aboriginally exists in australian law. And it’s a good one. I’m pasting from back up the thread:
” The first of Justice Brennan’s 3 criteria, ‘biological descent’, was found in WA v Ward (2000) to not imply strict patrilineal descent, and the administrative definition, ‘Aboriginal descent’, was found by Justice Merkel in Shaw v Wolf (1998) to not need to be proved ‘according to any strict legal standard’, it being;
” a technical rather than a real criterion for identity, which after all in this day and age, is accepted as a social, rather than a genetic, construct.”
I’ve previously mentioned two prominent examples, Mudrooroo and Roberta Sykes.
I think many of you are asking an imported political and legal system to deliver something its not capable of. The high court in Mabo pointed out the courts are unable to find against Australian sovereignty. Maybe an international court could, if a plaintiff party could be found.
Any concept of Land Rights has to be invented, and remember if, as Dr tad mistakenly says, they were hunter gatherers (not correct in Mabo, where the islanders grow food and possess plots of land)’ then any such right is about keeping people (non hunter gatherers) out of a piece of land.
I think this is all silly. You can have a colour blind constitution if you want, but your constitution is the problem, not the colour issue. Because it is a constitution for an entity called Australia, which is fundamentally a racist construct and cant ever be otherwise. History matters, which is why Balkan people fight over it. The story reinforces the myth. It reinforcee the law, which becomes the right to exclude others.
Aotearoa is a useful comparator because the history worked out different, the dialogue is different and the results different, although Maori still got the rough end of the stick, because notwithstanding their resistance wnd treaty, they were invaded in an undeclared war, and lost their self determination, their lands and cultute, and only the sovereign conceding the need to follow the treaty ha this come back in part.
Jeff, I think the problem is this:
Property rights pass by hereditary descent. Existing land rights start from this principle also, precisely because they seek to ameliorate the post-1788 alienation of land then lived on by Indigenous people. Thus, no matter how offensive and unscientific we find race as a category, how else can Aboriginal land rights be treated?
One presumes that ethnic “identity”, now popular for making other claims, might be sufficient for making bourgeois property claims (but most also stop white people like me claiming to be Indigenous & demanding land on the same basis as people who are Indigenous by biology, i.e. by a classically racial definition).
However, even apparently non-biological identity claims (of the sort argued over in the Bolt case) are really derived from a racial biological underpinning. Those legal definitions you quote, while trying to modernize the definition of race, really just give it a non-biological gloss. Both types of definition remain essentialist and, most importantly, adjudicated on and imposed by the state.
Riccardo,
I withdraw “hunter-gatherer” but don’t withdraw the characterization of pre-1788 society as pre-class society.
But my point is only to say that you can’t make restitution for land alienation post 1788 through retrospective imposition of a property form. Many people think you can, through a mechanism such as found in Mabo.
Dr Tad, Riccardo
Thank you.
The salient point from both of you for me is Riccardo’s reminder that balkan people are still fighting over this stuff.
This is why analogies to devolution in GB are also relevant.
The issue will not go away.
It’s not about property. It’s about identity and self determination.
I find it on indigenous issues that I most disagree with commenters – which is fine since it’s the point of the blog (and the comments section).
I find this reference to 1788 and the past as missing the point. History does not bear down on the current situation as some metaphysical presence. Rather it is used by social forces to mystify what is going on now. Just as the power plays of a disintegrating Communist bureaucracy in Yugoslavia (and unhelpful interventions by western powers) were mystified by explaining them through supposedly ancient rivalries that mysteriously had little bearing in the prior decades of a united Yugoslavia, so the wrongs of 1788 and the appeals to the spiritual nature of indigenous culture are used to mystify what is a current political problem of the Australian state.
I know land rights supporters like Jeff think it irrelevant, but the land rights arrangement was never designed with the spiritual needs, or indeed any needs of the aborigines in mind. Rather it was an accommodation made by both sides of the political class to a discriminatory arrangement that was becoming increasingly out of step with international needs for reason I have described. That arrangement has now been unravelling because the political order that made it is now also unravelling.
That’s why it’s no coincidence that the biggest attempt to shake-up that arrangement, the NT intervention and the apology, was made at the time the broader post-war political order was also being rearranged by Howard and Rudd. The problem was that the political class could attack it, because obviously it was deeply flawed, but they can’t replace it. So instead we have a committee to disguise a racial arrangement through word games what they can’t get rid of in reality.
This has pretty well nothing to do with indigenous self-determination. They have little impact on the political process, which is not surprising given their “progressive friends” are not only indifferent to what the land right arrangement is about, but the utterly miserable result it has produced after four decades. This is all about the ”identity and self-determination” of the Australian state and the Australian political class, not indigenous people. They are just collateral damage from the whole tortuous process.
But TPS, why do you then identify Australia itself as legitimate?
It’s as if you see the political class as lost and unwinding, but the Australian nation-state entity as in fine fiddle.
I don’t. It was built on quicksand.
1788 or not, you don’t set up a ‘country’ with all the legal chicanery and hope for the best.
Nation states have fundamentals that must be adhered to:
sovereignty and control exercised and recognised, common bonds of language, history and myth, defined borders, effective institutions of government and power sharing.
The institutional stuff is holding but the socio-cultural stuff is changing quickly on the back of the economic changes and the whole concept of Australia is starting to look silly, which is why the Left keep trying to bury it and the Right look like a circus parody of it.
No nation state has yet been founded that didn’t trample on someone’s rights because there is no other way.
The concept is racist, exclusivist in a range of dimensions from religion to language to social order.
If anything, as you have pointed out, the UK and USA have their very deep taproots into monarchy, war, religion, landedness, that cover as a figleaf for why one group of people are able to boss another.
We don’t have that in Australia, which is why we’ve relied on other mechanisms to bind a nation state and these are now failing. Our attempts at myth are pathetic, kitsch things about Gallipoli or convicts and rubbish like that. And flying thousands of little flags on car aerials doesn’t make a nation.
It’s very refreshing when you are in HK, as I am fairly often:
-no concept of nation state, only “right of abode” which is really just “permission to work” which is only a legal concept
-a mongrel system of non-democracy that no-one regards as legitimate.
-half the population hold passports of other (non-Chinese) countries and many of them allow votes to be cast at their consulates
-the actual sovereign (the People’s Republic of China) is widely discredited within the territory
-the only airport is international, so people are really conscious that there is their city, and the rest of the world, and going elsewhere in China is somewhat indifferent to going to any other place.
No Hong Kong person would confuse the concepts of Government and Nation, nor confuse the concepts of residency and belonging, nor the concepts of citizenship and participation.
Shrike
You are whistling in the dark about ‘decades of united Yugoslavia’ and the ethnic components of its disintegration.
You do all the commenters on here a disservice if you include us as mystifying anything. History does shape the current situation, as you like to point out.
The current land rights arrangement is not something set 40 years ago. It started before then, has changed since and continues to change. It can’t be said to have produced a result, miserable or otherwise.
Yes, it is about the identity of the Australian state. Indigenous people are not going away. They’re a constant reminder of the fragility and falsehoods of that identity. So of course it’s about them as well.
Also noone seriously believes in Yugoslavia. Yugoslavia was Tito. Personified and made manifest in one man. Then in Milosevic. Milosevic carried out the threats that Tito implied, be unified or else.
Yugoslavia didnt fall apart into random configurations, but int pre-existing nation states. Europe has a habit of that, of itself being a layer ontop of nation states, but these nation statesa themselves being layers on top of other nation states and so it goes. Identify is very real.
Australia stuggles to impose identiy, and looks very clumsy when it does. Hence the rock bands playing at Anzac Cove. Hard to imagine Milosevic or Tito or one of them turning up to one of their solemn grievance engendering ceremonies for a war 500 years ago with rock bands playing.