Speaking for country, speaking for self

On 20 May 2010, I received an email circulated by Archbishop Philip Frier, Anglican Archbishop of Melbourne. He said:

Last night I attended an event at the Melbourne Law School that focussed on the Federal Intervention in the Northern Territory. The Revd Dr Djiniyini Gondarra, a retired Uniting Church Minister from Galiwinku, and Mrs Rosie Kunoth Monks, an Anglican parishioner at Alice Springs who lives on her homeland at Utopia Station, joined The Honourable Alastair Nicholson, former Chief Justice of the Family Court of Australia, to discuss the effects of the intervention. I heard the view of the Aboriginal elders that the so called consultation before the intervention was a 'one way' conversation and that the elders and traditional land owners from the 73 communities affected by the intervention felt that they had no choice but to agree to firstly five year leases and then forty year leases with the Commonwealth if they were to ensure the continuation of even basic services to their people. The legal principle that was applied in the NT intervention was the Commonwealth's power of compulsory acquisition of property, a power that is generally only used sparingly and with just terms for the acquisition of property for Commonwealth infrastructure — like airports. In the NT this power was applied, not for public works, but as a general policy and could only have occurred because the operation of the Racial Discrimination Act was suspended by the Federal Parliament. No doubt it is difficult for non-Indigenous Australians to imagine themselves in the position of Aborigines who as I heard are 'born into a lineage that carries the law from the most ancient times for the generations to come', and as Rosie Kunoth Monks said 'I am a citizen — just — of Australia but first and foremost I am an Aboriginal woman.' Such confronting concepts of identity are not often in the forefront of our public policy discussions and both elders considered that the NT intervention was hostile to the continuation of identity, language and the connection to country. Djiniyini explained that it was from the basis of confident identity that Aboriginal people were able to see not two people but one in Australia, 'Come and taste the spirituality of this country of ours — feel and touch it ... Aboriginal people say 'you are a friend and neighbour'.'

Having had little to do with the debate about the NT intervention, I was grateful to receive this communication from a churchman long familiar with Aboriginal communities from his days as pastor in Kowanyama and as bishop in the Northern Territory. I was particularly grateful to hear the words of Djiniyini Gondarra and Rosie Monks. I had played little role in the intervention debate, in part because no affected indigenous persons asked me to. I knew from my community meetings the previous year during the National Human Rights Consultation that there was a strong division of opinion on Aboriginal communities about different aspects of the intervention. I was left asking, who speaks for country and who speaks for the people in these situations.

When Kevin Rudd resigned the Prime Ministership on 24 June 2010, he addressed the nation from his favourite podium at the forecourt of Parliament House in Canberra:

I'm proud of the fact that we're behind a commitment to create 50,000 additional jobs for Indigenous Australians with the private sector, and I'm most proud of the fact that about here, we greeted the stolen generations.

As Therese reminded me, that was a big day. What I remember most about it, for those of you who weren't here, was as the stolen generations came in from over there, they were frightened. Our job was to make them welcome.

The Apology was unfinished business for our nation. It is the beginning of new business for our nation.

There was no mistaking Kevin Rudd's sense of solidarity with the stolen generations two weeks ago. He knew there and then what it was to be dispossessed, alienated and outcast. Last week the new Prime Minister Julia Gillard put to political rest a dispute with the major mining companies extracting mineral wealth from our land. Their complaint had been that they had not been consulted, that the government should negotiate with them rather than telling them, that one size does not fit all, and that they were entrusted with other people's money and thus to be respected and spared sovereign risk. This complaint from the top end of Collins Street is not unlike the recurrent complaint of those who have been the traditional owners of this land for millennia: we are not consulted; government is not interested in negotiating with us; we are just told what to do; one size does not fit all; and we are entrusted with the sacred patrimony of this land — a patrimony constantly subject to sovereign risk by our colonisers. Like our ex-prime minister, the miners have had the opportunity to gain further insight into the perspective of the first Australians — those who speak for country, those yet to speak for themselves and be heard.

Having been a student at the United Faculty of Theology, I am delighted to contribute to this centenary conference for the Melbourne College of Divinity. During 25 years of public ministry the length and breadth of this land since graduating from the MCD, I have always counted it a blessing to maintain contact with faculty and students from the Anglican and Uniting Churches with whom we Jesuits studied here on this College Crescent. Having studied together ecumenically, we have worked together ecumenically, and continued to meet up in the most unlikely places in this vast land Australia.

Just last month I spent a few days at the desert poustinia established 160 km west of Kalgoorlie by Anglican priests Anna Killigrew and Peter Harrison. I studied theology with Anna at UFT all those years ago, and came away from the desert experience with a profound consoling sense of the gifts of faith and hope, being part of a cosmos created in love by our God who calls us into relationship through the cycle of life and death — reflected in the saplings, the old trees and the dead trunks of the desert, grounded in the elements of air, water, fire and earth, and glistening in the infinite variety of fauna underfoot in the desert sand and the mysterious depths of the Milky Way opening itself to view as it never does in the city of daily life.

In recent years, our ecumenical efforts have grown a little stale, I daresay. I well recall staying with Bishop Bathersby over 20 years ago when he was Catholic bishop of Cairns. Coming down to breakfast one morning, I asked what was on his agenda for the day. He lamented that he had to attend a meeting of the Ministers Fraternal. I exuded that such ecumenical activity was very worthwhile. He responded, 'But they want me to sign a letter opposing the building of a casino.' I opined that this was a worthy social protest. He scratched his bald pate complaining, 'But it's a bit hard when your old man was an SP bookie.' We need worthy causes that fire our passion to bring us together ecumenically.

In recent years, no longer isolated in our confessional ghettos, all of us have had to become more engaged in giving an account of our hope to those who do not share our faith tradition or even our faith. Since September 11, 2001 we are all aware of the need to engage with Muslims. The rising tide of secularism in our pluralistic, democratic Australia demands that we engage in the public square in a way which is comprehensible and appealing to those of all faiths and none. The crisis of child sexual abuse in our society, from which the churches are by no means exempt, has required that our institutional procedures be more transparent and that we learn from the ways of the world in exercising power openly and justly.

25 years ago I was ordained priest in St Stephens Cathedral Brisbane. I was privileged to have the Catholic bishops of Queensland joined on the sanctuary by the Primate of the Anglican Church and the Moderator of the Uniting Church in Queensland. Archbishops John Grindrod and Frank Rush had worked together in the regional diocese of Rockhampton before going to Brisbane. John then became Primate of Anglican Church and Frank was President of the Australian Catholic Bishops conference. I worked with them and Doug Brandon, the Uniting Church moderator, in our joint commitment to improving the lives of Aborigines and Torres Strait Islanders during some testing political times including the Commonwealth Games held in Brisbane in 1982. When it came time for my ordination, it seemed only natural and appropriate that the leaders of the three major Churches in Queensland pray together that the Spirit come upon me in priestly service. It was by doing something co-operative together for the cause of justice that we found our way clear to worship together and that we wanted to pray together in the most formal of liturgical contexts. But for our joint endeavour in the public square for justice, there is no way that we would have all prayed together on that sanctuary that night in Brisbane.

In 1993, I delivered the Charles Strong Lecture here in Melbourne entitled 'Land Rights — the Religious Factor'. In 2002, I co-authored a piece with Miriam Rose Ungunmerr in The Way entitled 'Renewing the Earth in the Australian Dreaming'.  In 2006, I wrote a reflection on Pope John Paul II's visit to Alice Springs 20 years on. I will not repeat much of what is contained in those articles, and I make no pretence to any novel theological insights since those writings. I will take the opportunity to provide a retrospective on the issues of land rights and self-determination — speaking for country and speaking for self.

In the past, remote communities were denied their land rights and self-determination. In the north of Australia, there is now an abundance of Aboriginal land. Generally, relations with mining companies have improved. Miners know they need to negotiate with the local Aboriginal community. Now the issue is the delivery of services to remote communities. Three major items of unfinished business on the road ahead are:

1. 1. The conflict between individual and collective rights
2. Finding the balance between the permissive construction of small, remote outstations and communities and the delivery of basic services to those communities
3. The need to enhance indigenous spirituality so that persons caught between the worlds of the Market and the Dreaming can make sense of the vortex in which they find themselves.

A comment on each of these items.

1. Individual and Collective Rights: Even if a bill of rights were to address the collective right of indigenous communities to self-determination, individuals who are members of these communities will still need to be guaranteed the full panoply of individual rights accorded any citizen regardless of their race. From now on, individual rights will trump collective rights at the instigation of the wronged individual.

2. Over the past two decades the Aboriginal population in remote communities in the Northern Territory has grown by approximately 40 per cent. Over 70 per cent of the Territory's Aboriginal population lives on Aboriginal land outside major towns. Prior to the provision of additional funds through the Northern Territory Emergency Response, there was an horrific shortfall in the delivery of services: eg. 54 per cent of these communities did not have a local health clinic and 94 per cent were without preschools. This is the major problem which has been escalating since land rights were first granted.

No matter what the politicians say at a time of emergency, it is not cost effective to deliver the full panoply of human services to small remote communities. Back at the time of the Aurukun and Mornington Island standoff in 1978-9, Joh Bjelke Petersen told the Queensland Parliament:

My own concept of social alienation can be illustrated by actions of the Uniting Church in establishing 'outstations' many miles from conventional facilities such as hospital, schools, etc, where reversion to the 'tribal' pattern of life was encouraged.

School attendances dropped 40 per cent and we cannot accept or tolerate a situation in this State where the young people of a Community are thrust into an isolated situation where, by denial of fundamental education and health care services, and by an ideological indoctrination of Aboriginal separation and separate development, they would by contrast with all other Queenslanders, be seriously impaired in choosing to pursue broader horizons of life in future should they wish to do so. That Aborigines may be socially and educationally equipped to make such a choice in life is the fundamental aim of our Aboriginal Advancement policy.

People cannot expect to live on outstations or in very small remote communities having the full panoply of government services delivered to them. The acute problem now is that the children in such communities cannot be guaranteed protection from sexual predators by either the State or unaided by their own community members. It is not an option to have community outsiders living in small, unsustainable communities so to protect the children from their own.

There needs to be a negotiated process for determining the viability of outstations and small remote communities which are designed to be more than weekenders or holiday camps. The taxpayers will not stand for delivering the full panoply of services to every community, no matter how small. This is where there will be a need for detailed government co-operation with Aboriginal communities and their representatives. Outside public servants can be sent to remote communities to deliver services; police can be sent to enforce the law; but there will be no long term satisfaction for anyone in commissioning outsiders to live in communities simply to monitor their family and welfare obligations.

3. Without a secure economic base and without assured cultural and spiritual identity, Aborigines living in remote communities will continue to suffer acute alienation and despair. The work for land rights and self-determination has been worthwhile because such laws and policies could provide the time and space for Aboriginal Australians to find and make their place in modern Australia, and on terms that are not dictated solely by the descendants of their colonisers. The next part of the task is the far more difficult. It is not political or national in character; it is spiritual and individual. There is a need for a return to the sacred. The secularism, materialism and individualism of Australian society are now more the cause of the problems of identity and well being rather than the wellsprings of any solution. This spiritual challenge is something which is never spoken about publicly by our politicians or the media.

Talk of the spiritual challenge from a token white male cleric like myself has previously upset Noel Pearson who hears me as claiming 'that unless Aboriginal people can find a way other than 'secularism, materialism and individualism' then we are buggered.' In 2004, he had cause to say:

No matter that Frank Brennan's siblings and nephews and nieces are successful and high-earning lawyers and professionals — this is impliedly not the way for our people because it involves materialism etc. This is the social justice lobby's equivalent prescription to that of the unthinking sections of the green movement: indigenous people should not engage in capitalist society unless they have found solutions to all of the dilemmas and problems of materialism, individualism and secularism. But white fellas, including presumably those near and dear to Brennan, should continue to enjoy the privileges in the meantime.

In our work in Cape York Peninsula we have many strategies that superficially resemble the romantic environmental and spiritual notions about the development of Aboriginal society. We are working for environmental goals and we seek a spiritual and cultural revival of our communities. But our fundamental goal is complete and equal social and economic inclusion in the Australian mainstream and in the global economy. We do not see it as our main mission to be an environmental conscience or a custodian of spiritual values in a materialistic world.

It is best to leave my siblings, nephews and nieces out of my public deliberations on the relationship between spirituality and contemporary secularism, materialism and individualism. Without strong spiritual values, Aborigines unable to take up the limited education and work opportunities available to them will continue to find it all but impossible to live in the two worlds of Aboriginal and non-Aboriginal Australia. More recently Noel Pearson has opined, 'Aboriginal law, properly understood, is not the problem, it is the solution. When I say Aboriginal law, I just do not mean the laws that prevailed in our pre-colonial classical culture; I mean our contemporary values and expectations about behaviour.' Those values and expectations which are distinctly Aboriginal will for many Aborigines continue to be informed by the spiritual relationship to land, kin and the Dreaming.

Fifty years ago, the great anthropologist W E H Stanner wrote his essay 'Continuity and Change' theorising about the 'quite marked disinterest the Aborigines have shown and still show in so many kinds of European activity'. He invited his non-indigenous readers to consider a few of the contrasts:

We are deeply interested in futurity. We try to foresee, forestall and control it by every means from astrology and saving to investment and insurance: the Aborigines are scarcely concerned with it at all; it is not a problem for them. Their 'future' differentiates itself only as a kind of extended present, whose principle is to be continuously at one with the past. This is the essence of the set of doctrines I have called the Dreaming. Our society is organised by specialised functions which cut across groups; theirs on a basis of segmentary groups ... Theirs is a self-regulating society knowing nothing of our vast apparatus of state instrumentalities for authority, leadership and justice. Ours is a market civilisation, theirs not. Indeed there is a sense in which The Dreaming and The Market are mutually exclusive. What is the Market? In its most general sense it is a variable locus in space and time at which values — the values of anything — are redetermined as human needs make themselves felt from time to time. The Dreaming is a set of doctrines about values — the values of everything — which were determined once and for all in the past. The things of the Market — money, prices, exchange values, saving, the maintenance and building of capital — which so sharply characterise our civilisation, are precisely those which the Aborigines are least able to grasp and handle. They remain incomprehensible for a long time. And they are among the foremost means of social disintegration and personal demoralisation.

Stanner concluded:

If we tried to invent two styles of life, as unlike each other as could be, while still following the rules which are necessary if people are to live together at all, one might well end up with something like the Aboriginal and the European traditions.

It remains my opinion that it is impossible for most human beings to straddle two such different worlds without a deep, nurtured and nurturing spirituality. Those of us who have never had to straddle two such diverse worlds are not those best placed to advise how to overcome the 'social disintegration and personal demoralisation'. Governments which place a deep faith in the Market and in 'law and order' policies enforced by instrumentalities of the State may be well intentioned, but unless they consult and work collaboratively with local Aboriginal leaders, they will be sure to make big mistakes, wasting precious resources and forfeiting trust. Now that land rights are assured in the north of Australia, it is time for a negotiated arrangement assuring service delivery to sustainable communities, involving all levels of government and indigenous organisations able to strike a balance between living on country and living securely and productively for the future.

Without land rights and self-determination, indigenous peoples in previously colonised societies are treated as the members of one polity without a voice and as people without distinctive rights. With land rights and self-determination they are members of two polities with their own conflicting voices (realist, liberal and idealist), living under two laws which require reconciliation when the indigenous law and the coloniser's law collide or when the indigenous person asserts individual rights against the collective rights of the clan or community. Land rights and self-determination provide the space and the time for these indigenous peoples to live in their two worlds.

Indigenous people without land rights and without a modicum of self-determination are individuals and societies denied the place and opportunity to maintain themselves with their distinctive cultural identity in a post-colonial, globalised world. Indigenous people with land rights and a modicum of self-determination are individuals and societies with an enhanced choice about how to participate in the life of the nation state and of the global economy while being guaranteed the place and opportunity to maintain their cultural and religious identity with some protection from State interference and from involuntary assimilation into the predominant post-colonial society. They need to speak for country and for themselves. In the past, their dispossession was accompanied by a patronising voicelessness. With the best of motives by government and the provision of land rights, voice is still not assured.

Consider the 1919 decision of the Privy Council in In re Southern Rhodesia in which Mr. Rhodes' British South Africa Company was a party. This decision related to land transactions between Cecil Rhodes and the natives of Zimbabwe which contributed to young Australians being able to study at Oxford on Rhodes scholarships, while the indigenous people suffered dispossession and deprivation. The other parties to the proceedings were the Legislative Council of Southern Rhodesia, the Crown and the natives. Lord Sumner in his report of the Privy Council wrote:

By the disinterested liberality of persons in this country their Lordships had the advantage of hearing the case for the natives who were themselves incapable of urging, and perhaps unconscious of possessing, any case at all. Undoubtedly this inquiry has thereby been rendered more complete.

Leslie Scott KC and Stuart Bevan are described as appearing 'for the natives', perhaps the shortest and most generic description of a party ever to appear in the authorised law reports. On the next page of his Report, Lord Sumner writes:

The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them.

Lord Sumner observed that there was 'a wide tract of much ethnological interest' between these tribes and other indigenous peoples 'whose legal conceptions, though differently developed, are hardly less precise than our own'. He thought the natives in question 'approximate rather to the lower than to the higher limit'. According to the Privy Council, the maintenance of native title rights 'was fatally inconsistent with white settlement of the country' which 'was the object of the whole forward movement, pioneered by the Company and controlled by the Crown...with the result that the aboriginal system gave place to another prescribed by the Order in Council'. The Privy Council concluded its consideration of the native title claim, 'Whoever now owns the unalienated lands, the natives do not.' The natives were the people of one new polity without a voice, under one new law without rights.

Turning to the dispute between the company and the Crown, the Privy Council decided that the British South Africa Company was entitled to dispose of any unalienated lands using the proceeds to offset the costs of administration. Should the crown terminate the Company's administration of Southern Rhodesia, the company was entitled to reimbursement from the Crown for previous costs — either from the proceeds of further land sales or from public funds.

At the height of colonial expansion by European empires, those indigenous groups who bore some resemblance to their colonial masters were to enjoy some recognition and protection. Those differing from their new masters who could barely comprehend their social reality were to be denied any semblance of land rights and self-determination. Such Eurocentric notions put blinkers on the law's horizons of justice.

74 years after the Privy Council's decision about the fortunes of the British South Africa Company, the High Court of Australia had, for the first time in the Mabo case, to consider the rights of the Australian 'natives' to the 'unalienated lands'. In 1992, that court decided to discard the distinction between inhabited colonies that were deemed to be terra nullius and those which were not:

If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today's world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.

The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country.

With the removal of the blinkers used by Lord Sumner and most Europeans of his time, indigenous people are not guaranteed a better life, but they can be assured the legal and political preconditions for better participation in the life of the nation state, while maintaining and adapting their traditional places and lifestyle. The contemporary Australian court went on to say:

Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people.

Does this reference to contemporary values imply that the judges thought the majority of Australians, if asked in an opinion poll, 'Do you support aboriginal land rights?', would have answered unequivocally 'Yes'. It cannot mean that. The majority of Australians if asked that question in 1992 would have answered 'No'. The values that underpin the Mabo decision are respect for property, the desire for certainty in the conduct of relations relating to land, predictability in the application of the law by courts for the resolution of conflict, and non-discrimination in the sense that governments should not treat persons differently unless there is a coherent rationale for such different treatment. In particular, governments should not treat more adversely people's property rights simply because they are members of a particular race. These are the enduring values of contemporary Australians.

Indigenous groups with some recognition of their land rights face the dilemma: how to live within the nation state participating in its economy while maintaining distinctive culture and heritage. That ought be their decision, and no one else's, even if that someone else be a government with a fresh political mandate. Those of us who are non-indigenous members of such nation states need to guarantee the minimum requirements for these indigenous groups to make a realistic choice — speaking for country and speaking for themselves. Doing so, we have the opportunity, at some considerable cost, to ground our national identity and project in the depth and complexity of the history of our land and all its peoples.

No matter which country you survey, no matter what that government's policy, no matter what the present strategy of indigenous leaders, and no matter what the public understanding or sympathy about the position of indigenous minorities, land rights for indigenous people are an essential component in providing indigenous citizens with the choice and the potential to live an authentic indigenous life within the realistic confines of nationality and economy. Land rights are also the cornerstone for the settlement of historic post-colonial grievances in:

• Providing a land base for some indigenous persons and communities
• Providing some indigenous communities with economic and political bargaining power, assuring them a place at the table
• Recognising the entitlement of indigenous communities to maintain and sustain their religious beliefs and practices, without threatening the public order of the society after colonisation
• Correcting some historic injustices which can be put right without occasioning injustice to other persons
• Validating the post-colonial legal system, providing a greater coincidence between law and justice
• Providing a necessary forum for the resolution of conflicting claims
• $Assisting all citizens of the nation state to appreciate the place and entitlements of indigenous people
• Assisting all citizens of the nation state reach a better understanding of their history and their place in the world.

As the sun rose over the tip of Cape York on 12 October 1993, the waters of the Torres Strait were exceedingly calm. As the sun glistened on the water, Father David Passi, the Anglican Pastor of the Island of Mer in the Murray Islands group, stood at the back of the speed boat pointing at a small island close to the shore, declaring, 'That's Possession Island.' David smiled broadly as he explained this was the place where James Cook came ashore after his epic voyage up the Australian eastern coastline in 1770, raising his King's flag and claiming possession in His Majesty's name of all he had sailed passed. David chuckled, 'Cook had his back to the Torres Strait when he claimed possession.'

Next day at Bamaga on the tip of Cape York, David explained the significance of the Mabo decision to a meeting of his fellow Anglican clergy. His people believe that in ancient times a figure named Malo set down the law for relations between islanders regarding their lands and waters. All islanders speak of the myth of Malo-Bomai. Malo and his maternal uncle made a long sea journey from West New Guinea across to Mer in the east. These mythical heroes, Malo resembling an octopus, brought the eight peoples or clans into one, 'strengthening them with the qualities of a diversity of sea creatures, so giving the power to match the sea and make long journeys across Malo, the deep seas, for canoes and for battle.' In this part of Australia, the indigenous people define themselves in relation to land, sea, each other and seasonal time or prevailing wind. Fr Passi, known also as Kebi Bala, explains Malo's law:

For thousands of years we have owned the land and Malo who was the Meriam centre of it made sure that members of the society were given land. They are our laws. We have Malo ra Gelar. It says that Malo keeps to his own place; Malo does not trespass in another man's property. Malo keeps his hands to himself. He does not touch what is not his. He does not permit his feet to carry him towards other men's property. His hands are not grasping. He holds them back. He does not wander from his path. He walks on tip-toe, silent and careful, leaving no signs to tell that this is the way he took'.

Passi explains that since colonisation there have been two laws, 'the white man's law and Malo's law'. Malo's law is respectful of people's history and connection with the land. The white man's law is strong. It believes might is right. Those who believe in Malo's law have to convince those who practise the white man's law that Malo's law is right. Might alone is not right. Speaking about two laws, David Passi was using the discourse of two polities and two religious traditions.

The Mabo decision was basically a judicious realignment of the common law developed by judges to match the historical reality with the historic land grievance which for the first time had come before the highest court in the land. The decision posed no threat to sovereignty nor to the Treasury coffers. The decision was an honest acknowledgement that most Aborigines had been long dispossessed of their lands and any restitution or compensation was a matter for parliaments rather than the courts. The decision provided an historic opportunity to put right those wrongs of the past which could be put right and to acknowledge those wrongs which forever stained the nation's identity. This could be done without any threat to any other person's land rights or legitimate economic interests. The decision provided a unique opportunity for a negotiated settlement of the nation's longstanding land rights question with Aborigines at the government's negotiating table and holding some of their own trump cards.

A country's system of land law and governance is undoubtedly more complex once indigenous land rights are recognised. The cost of this complexity is high when a country like Australia has long delayed the recognition. The benefits to indigenous people are less and patchy when many of the dispossessed have had no option except to live away from their lands for generations. The complexity and patchiness provide no warrant for returning to the terra nullius mindset.

Equality does not mean treating everyone the same. If a law is to treat indigenous people differently from other citizens, indigenous people through their representatives should first give their consent and those indigenous citizens who want to receive the same treatment as other citizens should be able to opt out of the special arrangements for their own people and enjoy the usual benefits of citizenship. Sometimes the different treatment will be an undisputed added benefit to make up for past disadvantage or to accelerate access to the benefits of life in the post colonial society. But there are instances when the treatment is adverse to individuals on the basis of their race or membership of a particular indigenous community. Their individual rights are to be foregone for the common good. The limits of self-determination for a community are now set when an individual claims not only the entitlements of community membership but also the human rights recognised in international instruments.

In 1965, the Commonwealth Conciliation and Arbitration Commission was asked by the Australian Workers' Union to grant equal pay to Aborigines in the pastoral industry. These workers lived and worked on cattle and sheep properties in the remoter parts of Australia. The union called no evidence but simply enunciated the principle of equal pay. The pastoralists called much evidence to demonstrate the problems and expected social effects of paying equal wages. Many Aborigines had lived on pastoral properties which were their traditional lands, receiving minimal pay for what the pastoralists regarded as minimal work. No Aborigines were called to give evidence about the effects. Sir James Gobbo who was counsel for the Commonwealth government revealed thirty years later that when he 'sought some such evidence I was instructed that there was no stockman suitable for the somewhat daunting task of giving evidence and being cross-examined'. Gobbo was deeply troubled but unable to do anything. He was receiving instructions from two government departments. The Department of Labour and Industry was adamant that all workers should be paid the same wage regardless of their race. The Department of Territories 'was very concerned about the impact of equal pay because of the risk to the existing arrangements on the stations. It would result in the abrupt end to the provision of steady employment and accommodation for Aborigines.' In his just published autobiography, Something to Declare, Sir James says: 'I enquired as to whether we could call some Aboriginal evidence, but was advised that there were no Aboriginal stockmen or Aborigines with knowledge of the stations who could do themselves justice in the witness box.'

Back in 1966, the anthropologist WEH Stanner made some observations about the absence of Aboriginal evidence in the case:

[V]ery little emerged in evidence, as far as I as able to follow the proceedings, concerning the true state of Aboriginal feelings. What they thought, what they wanted, what they complained about, remained substantially unknown. They were, of course, well represented, since all three principals — Union, Commonwealth and Cattle Producers' Council — appeared before the Commission in some sense as the Aborigines' 'best friend'. Each had much to say, and said it well, on the subject of their true interest. The case turned, indeed, to an unusual extent on testimony about Aborigines by Europeans. This took the form of highly general propositions that Aborigines had this view or that, did or did not have this or that idea or capacity. In such material as I was able to see there was not even the beginning of a suggestion that the Aborigines might see their interests from another point of view.....There may have been many Aborigines with ideas of their own on what the Commission called 'the implications of moving from a semi-protected situation to an exposed industrial situation whereby they have to care for themselves and their families out of wages.' If so, nothing seems to have been heard from them.

Reflecting on the outcome of the case 46 years later, Gobbo says, 'It was unfortunate timing, for if in 1964 there had been any of the challenges made in later decades, it is hard to believe that the tie of Aborigines to the lands on which they worked and lived would not have assumed critical importance. It would perhaps have averted some of the harm which followed the case: Aborigines left, or were forced to leave, their traditional lands to live in settlements or on town fringes.'

In the case, Sir James for the Commonwealth submitted:

We are living in a vital period in the history of this ancient people. We are living in a period where they are embracing the rights, benefits and obligations of the white community. It is a time when they are being welcomed back into their own country; when goodwill and planning and energy and wisdom have come together to bring about a quickening and dramatic development of the policy of assimilation.....All the chapters in the first part of the history of assimilation in the Northern Territory have been written — save for that of employment. All the gateways have been opened save that one. We have therefore come to the final and critical chapter. There is a great deal of work in the field still to be done — a great deal — but here we have it in our power — simply by applying the law of the land — to throw open this last gateway ... Let us not discriminate for or against them; let us simply give them the rights of all Australians.

Gobbo later developed 'a healthy distrust of assimilation'. Though the Commonwealth's submission for equal wages was accepted by the tribunal, Sir James confesses in his autobiography: 'I have since felt a real sense of dissatisfaction about the ultimate result.' Sir John Kerr was counsel for the pastoralists. He submitted:

It seems to the pastoralists to be nonsense to say that men are better off, unemployed in thousands, but maintained in settlements in growing degrees of comfort when they could work in the real world with growing degrees of efficiency and growing economic reward.

The Commission acknowledged that massive disemployment was the likely result of granting equal wages. Once a stockman was unemployed, it was likely that he and his extended clan group would be moved off a pastoral lease which was on their traditional country. The effects of disemployment would be catastrophic for these small communities who had never known life in the economic mainstream. In its decision the Commission noted:

(If) aborigines are to be paid the same as whites, then employers would prefer to employ whites because they could employ far fewer with the same results. We accept the employers' evidence that as at present advised many of them expect to change over to white labour if aborigines are to be paid at award rates'. We do not flinch from the results of this decision which we consider is the only proper one to be made at this point in Australia's history. There must be one industrial law, similarly applied to all Australians, aboriginal or not. If any problems of native welfare whether of employees or their dependants, arise as a result of this decision, the Commonwealth Government has made clear its intention to deal with them.

Employers were given 20 months leeway to arrange for those Aborigines who were union members to be employed under award conditions. As predicted, many Aborigines were turned off pastoral properties, living in fringe camps on the outskirts of country towns and becoming long term recipients of social welfare.

Government initiatives including the purchase of pastoral properties for Aboriginal communities, the purchase of excisions on other pastoral properties, and preferential employment and education programs on remote Aboriginal communities have ameliorated some of the problems. But the payment of sit down money is now judged by government and many indigenous leaders to be no solution at all. Forty years on, people of good will are trying to reverse the effects of passive welfare. Forty years on, the moral complexities of the case highlight the problems when Aborigines are denied the opportunity to speak for country and to speak for themselves. Had they been heard in the legal proceedings, there would have been a greater prospect that all could own the compromise without the need forty years later for persons of high repute like Sir James Gobbo to express 'a real sense of dissatisfaction about the ultimate result'.

Andrew Robb, previously the Chief Executive of National Farmers Federation and National Director of the Liberal Party, when first elected to the Australian Parliament, recalled his many visits to pastoral properties in Northern Australia after the granting of award wages and land rights. In his opinion, 'The land rights legislation was a totally inadequate response to the real issue-namely, the collapse of personal dignity and self-esteem among many Aboriginals, particularly the young.' He compared the living circumstances of Aborigines on pastoral properties before and after land rights, before and after equal wages:

On many occasions, I would be taken to a bend in a river on a cattle station and shown where 100, 200 or 300 Aboriginals had lived for decades, with the men employed on the stations as stockmen and drovers, the older men as gardeners, and the women in the homestead. In many cases, schools were provided for the children. Aboriginal people were disadvantaged, but they had work and self-esteem, reasonable quality of life, strong mentoring from their elders, schooling and strict controls on alcohol.

Of course, all that ceased in the early 1970s following the understandable granting of equal wages in the pastoral industry, along with the misplaced provision of unfettered and generous welfare handouts. The related exodus of these people from their ancestral lands saw them living in settlements and on the fringes of towns.

....

As I was driven around vast cattle stations, I witnessed cattlemen come across an Aboriginal elder known to them. The mutual respect was palpable. On the same day I saw the same cattlemen come across young Aboriginal men seriously affected by years of alcohol and aimlessness, young men stripped of any personal dignity or self-esteem. The cattlemen's contempt was palpable. The chilling fact is that the very fabric of a proud and fascinating culture, many thousands of years in the making, has been brought to its knees in less than 30 years by well-intentioned but seriously misguided policy.

For me the lesson is clear. People are very, very responsive to incentives, for good or bad. The wrong incentives, no matter how well meaning, can debilitate a community in no time. In this case, unconditional handouts have provided the seeds of destruction in a breathtakingly short period of time.

Forty years ago, no indigenous person participated in the decision or was even heard about the inevitable effects of granting equal wages. The members of one polity made decisions about those of the other polity without consulting them.

Those of us who are not indigenous may be able to spare our consciences the moral quandary choosing between conflicting goods — formal equality under the law, and government prescriptions which are race-based and race-targeted — by leaving the matter to discussion between government and indigenous leaders chosen and responsible through self-determining indigenous procedures. But then we are troubled by the voice in the wilderness of other indigenous leaders who proclaim that their indigenous opponents have no option than to do the government's bidding if they are to breathe the scarce political oxygen available for indigenous leaders in a society which has grown weary and doubtful about even medium term solutions for the plight of marginalised indigenous community members. It is even more troubling when government and/or the media decide which indigenous leaders will be given airplay regardless of their mode of selection as leaders or spokespersons. Indigenous leaders need credibility in both polities — the indigenous community and the mainstream society.

The Northern Territory Emergency Response was first instituted without any meaningful consultation with the Aboriginal people affected. Various aspects of that response were racially discriminatory. The Australian Parliament has now passed amendments to that response — in part minimising the discriminatory effect of the law by applying compulsory provisions about income management of welfare payments to non-indigenous recipients as well as indigenous recipients living on the targeted communities.

The Australian Council of Social Services says:

The primary and proper role of the social security system is to reduce poverty by providing adequate payments and supporting people into work. Appropriate activity requirements to assist people into employment are consistent with this objective. Compulsory income management which does not increase payment levels and removes individual autonomy does not further this objective. Rather, it locks people into long-term dependence on others to make financial decisions for them without enabling them to manage their finances independently.

Catholic Social Services also agree. They believe that: 'Adequate income support is an entitlement. It should not be a tool for governments or public sector managers to grant, withhold or modify in an effort to achieve 'outcomes'. Increasingly, it seems policy makers regard the right to income support as itself a cause of disadvantage and as an impediment to the efficient and effective pursuit of policy goals.'

The government provided this rationale to Parliament, claiming to have conducted adequate consultation with those affected by these measures:

The Northern Territory Emergency Response Redesign consultations identified that income management had delivered discernable benefits. While there was a divergence of views, the majority of comments said that income management should continue. In the tier two meetings, people frequently said that income management should apply to all welfare recipients across Australia.

Critics of the legislation have been very wary of government assurances about consultation. One of the recommendations made by the National Human Rights Consultation in 2009 was:

[T]hat a 'statement of impact on Aboriginal and Torres Strait Islander peoples' be provided to the Federal Parliament when the intent is to legislate exclusively for those peoples, to suspend the Racial Discrimination Act 1975 (Cth) or to institute a special measure. The statement should explain the object, purpose and proportionality of the legislation and detail the processes of consultation and the attempts made to obtain informed consent from those concerned.

The government not only failed to adopt this recommendation. It saw no need to provide a public explanation for its failure to adopt it. Introducing the recent legislation to Parliament extending the Northern Territory intervention, the government explained:

Apart from the income management scheme, which is designed to apply in a non-discriminatory fashion to any citizen in the Northern Territory within the specified categories, the Government has redesigned a number of the other measures dealt with by this bill so they are more sustainable and more clearly special measures under the Racial Discrimination Act.

This is how the government attempted to justify to Parliament the compulsory beneficial effect of five year leases on Aboriginal lands:

The Government currently holds five-year leases over 64 Northern Territory communities. All leases expire by the end of August 2012. This bill confirms the beneficial intent of the five-year leases to improve the delivery of services and promote economic and social development. The bill ensures that the leases are permitted to be used for these purposes and not for other uses such as mining. It also ensures that administration of the leases must also follow guidelines on the use of land and be conducted in a manner which respects Aboriginal people and culture. The Government is committed to the progressive transition of the five-year leases to voluntary leases and the bill obliges the Commonwealth, at the request of land owners, to negotiate voluntary leases in good faith. The leases have already been improved by a substantial reduction in lease boundaries and the payment of rent has commenced, based on independent valuations undertaken by the Northern Territory Valuer-General.

Imagine if government had tried this approach with miners. Yet again, indigenous Australians have been denied the opportunity to speak for country and for themselves. In the High Court decision in Gerhardy v Brown30 Justice Brennan set down a test for stipulating when a law applying only to people of a particular race (as authorised by s. 51(xxvi) of the Constitution) could be classed as a special measure. He stressed that the primary purpose of the special measure must be the advancement of the beneficiaries:

The purpose of securing advancement for a racial group is not established by showing that the branch of government or the person who takes the measure does so for the purpose of conferring what it or he regards as a benefit for the group if the group does not seek or wish to have the benefit. The wishes of the beneficiaries for the measure are of great importance (perhaps essential) in determining whether a measure is taken for the purpose of securing their advancement.

The National Human Rights Consultation Committee which I chaired made the following observation:

This test is problematic in that it raises practical difficulties in connection with degrees of consent. In the case of the Intervention, the Committee heard compelling but conflicting opinions from Indigenous people who are directly affected by the legislation. Professor Helen Irving noted that the Intervention 'may have adverse effects for some and beneficial effects for others. It may be adverse in the immediate term and beneficial in the long term (or vice versa)'.

How do we determine when consent is deemed to have been given if the beneficiaries have valid and opposing views? It would be an unfair expectation if a people, such as Indigenous Australians, were expected to reach consensus every time a controversial policy decision or controversial legislation was being contemplated. And to do so could cause unreasonable delay at a time when government action is most required. This challenge illustrates the tension that exists, in many areas of human rights protection, when seeking to achieve an equitable balance between rights and responsibilities.

The Committee sees merit in parliament enacting a law or at least a Standing Order providing that, if a Bill or a provision contained in a Bill relates to Aboriginal and Torres Strait Islander peoples and is inconsistent with the Racial Discrimination Act 1975 or can be classed as a special measure, there must be tabled in parliament a statement of impact stipulating the reasons for the suspension of the Act or the institution of the special measure. The statement of impact would need to discuss the following:

• the purpose or object of the measure
• the reasonableness and proportionality of the purpose or object to the proposed act or omission
• the amount of time until the purpose or object is achieved
• whether there has been consent or at least adequate consultation with interested parties and potential beneficiaries in relation to the proposed measure.

Such a provision or Standing Order could ensure a 'proper, sophisticated human rights analysis ... of competing rights and considerations'. Although the procedure would not affect the validity of a law and would not prevent future discriminatory laws being passed, it would arguably 'deter scandalously abbreviated parliamentary processes, or inadequate policy development, or shoddy implementation that lacks basic respect for human dignity'. The cost of implementing this option would be low when one considers the benefits it could have for the rights of Aboriginal and Torres Strait Islander peoples.

The Government has not seen a need to explain to the public why this recommendation has been judged unworkable, unnecessary or undesirable. My committee thought it would assist Aborigines speaking for country and speaking for themselves in those difficult matters canvassed by the Northern Territory intervention.

While Australia's indigenous leaders are seeking a way forward for their people in the short and long terms, the academic historians have been at war interpreting and re-interpreting the conflict and meeting between Aborigines and the colonisers. Following the publication of Keith Windschuttle's The Fabrication of Aboriginal History, Stuart McIntyre published The History Wars and then edited a collection entitled The Historian's Conscience: Australian Historians on the Ethics of History. Greg Dening wrote an essay in that collection entitled 'Living with and in deep time'. He recalled the celebration at the National Library in Canberra when two items of Australian heritage were placed on the Memory of the World Register. Those items, joining documents from other countries such as the Magna Carta and the US Declaration of Independence, were not the Australian Constitution or even the batting records of Donald Bradman, but rather Captain James Cook's journal from the Endeavour voyage of 1768-1771 culminating in his hoisting the flag on Possession Island, and the papers relating to Eddie Mabo's case in the High Court. Dening described the reverence with which he donned the cotton gloves to peruse these documents in the Manuscript Reading Room of the library. He took up Eddie Mabo's drawings of his land and his people. This file 'needs a slow, slow read'. Dening said this file is Mabo's 'expression of how deep time has left its mark on the present.' Here is Dening's evocative description of his reading of these papers:

He (Eddie Mabo) taps a truth the way we all tap truths from living, but in ways which need to be tolerated by those whose notion of law and evidence is blinkered by legal tradition and constitution and who need to find some entry into Eddie Mabo's otherness. The other papers in the Mabo Papers — of judges, lawyers, anthropologists, historians, witnesses of first people telling their stories — belong to the Memory of the World because the whole world faces the issue of how it lives with the Deep Time of all its first peoples, overrun and dispossessed as they are. It belongs to World Memory because the papers are we, the Australian people, struggling to do justice and to live with the Deep Time all around us. And we are in this instance the world.

Though land rights and self-determination provide no utopia for the contemporary indigenous Australian community, they have belatedly put right an ancient wrong allowing traditional owners to speak for country and for themselves. The cost and inconvenience are unavoidable. Terra nullius is no longer an option. The Australian novelist Tim Winton reminds us, 'The past is in us, and not behind us. Things are never over.' The words of Chief Justice Marshall in Johnson v McIntosh still ring out today:

[H]umanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connections, and united by force to strangers.

We Australians belatedly have come to the right starting point on an endless search for justice between indigenous and non-indigenous citizens. There is no getting away from Prime Minister Keating's insight that we white Australians must start with an act of recognition:

Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the disasters. The alcohol. We committed the murders. We took the children from their mothers. We practised discrimination and exclusion.

It was our ignorance and our prejudice. And our failure to imagine these things being done to us. With some noble exceptions, we failed to make the most basic human response and enter into their hearts and minds. We failed to ask — how would I feel if this were done to me?

As a consequence, we failed to see that what we were doing degraded all of us.

These sentiments should rightly continue to haunt all citizens of post-colonial societies where indigenous people 'united by force to strangers', still live on the fringes. With a confident identity and secure sense of belonging in both worlds, indigenous people might 'gradually banish the painful sense of being separated from their ancient connections'. Those citizens who are recent migrants are joined with the descendants of the colonisers, accepting the national responsibility of correcting past wrongs so that the descendants of the land's traditional owners might belong to their land, their kin and their Dreaming in the society built upon their dispossession. While we continue to blame the victims, we are haunted by Andrew Robb's observation from the opposite side of the parliamentary chamber echoing the Keating declaration. In his maiden speech to the Australian parliament, Robb said, 'We have basically poisoned recent generations; poisoned their bodies with alcohol and other substances and poisoned their spirit and self-belief with handouts and welfare dependency.' Land rights and self-determination are necessary but insufficient antidotes for indigenous minorities wanting to belong in post-colonial societies coming to terms with their history. Just because the indigenous people amongst us also need work and education, that is no reason to deny them their land rights and self-determination. The challenge as with the Northern Territory intervention is to heed the voice of those speaking for country and for themselves as we decide together how best to provide work and education. Otherwise we will be back here in another 40 years lamenting the unintended consequences of us making decisions for them across a racial divide.