2001: A RACE ODYSSEY - A TARGET DATE FOR RECONCILIATION
The decision by the High Court this week to recognise pre-
colonial Aboriginal land title gives urgency to calls for national
reconciliation writes FRANK BRENNAN.
Talk of an Aboriginal treaty has been around for years, often
highlighting the anger of Aborigines and the fear of other
Australians. Yet no-one quite knows what such a legal document
would look like.
In 1987, 58 percent of Australian polled supported the idea of a
treaty; the latest poll shows support at 65 percent, with the
figures much higher among younger people.
During the Bicentenary, the Prime Minister, Mr Hawke, signed the
Barunga Statement with two Aboriginal leaders, committing his
government to the negotiation of a treaty. One of those leaders,
Mr Wenten Rubuntja, said at the time: "We have to work out a way
of sharing this country, but there has to be an understanding of
and respect of our culture, our law. Hopefully, that's what this
treaty will mean."
The Federal Opposition pledged to tear up any document on the
basis that a treaty, being technically an agreement between two
sovereign nation states, would be inappropriate. Though the
Fraser Government had been prepared to negotiate an agreement with
Aborigines, the Coalition in opposition has claimed to be more
concerned with substantive contribution to Aboriginal welfare
rather than symbolism acknowledging the place of Aborigines in
contemporary Australia. There is a need for both.
The first centenary of the Australian constitution, January 1,
2001, is an appropriate target date for finalising arrangements
recognising Aboriginal entitlements. Being responsible for
shaping a new future under the rule of law, we have to own our
past as a nation and make up for the shortfall, dispossession and
disadvantage suffered by Aborigines for eight generations.
In this week's historic Mabo decision, the High Court has exploded
the myth of terra nullius. Justice Brennan (with Chief Justice
Mason and Justice McHugh agreeing) said:"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."
Justices Deane and Gaudron admitted the need for "unusually
emotive" language in their judgment, speaking of the oppression
and near obliteration of Aborigines as "the inevitable
consequences of their being dispossessed of their traditional
lands".
As a matter of legal theory, Aborigines, having been dispossessed,
were then included among the people who, "relying on the blessing
of Almighty God", agreed to unite in an indissoluble Commonwealth
of Australia. There never was such an agreement. We have just
celebrated the 25th anniversary of the 1967 referendum which
removed the two adverse references to Aborigines from the
Constitution.
Our Constitution now does not mention Aborigines. It does not
protect their rights as the indigenous people of the continent.
Neither does our legal system guarantee Aborigines the right of
self-determination within the nation. Now is the time to
negotiate such an agreement. The High Court having set right the
law of the land, we still need to set right the law for living
together, respecting each other's law and culture.
The Commonwealth Parliament has now unanimously voted for
legislation setting up the Council for Aboriginal Reconciliation,
which has a decade to investigate the desirability of an
"instrument of reconciliation". Many Aborigines are
understandably dubious, in light of the Hawke Government's
abandonment of national land rights and its word games about
treaties, compacts and instruments of reconciliation.
The council's chairman, Mr Patrick Dodson, is right when he
claims: "The question that must be directed to critics of the
process is 'what is the practical alternative to reconciliation?'
I think the only alternative is to do nothing. I believe we have
reached a stage in our evolution as a nation where neither
Aboriginal nor non-Aboriginal Australians can afford for that to
happen." The trouble is, there are some Aboriginal groups which
think they will be better off with nothing.
Some Aborigines are so mistrustful of Australian political
processes that they see no gain in negotiating concessions within
parameters set by non-Aboriginal moral argumentation and domestic
political realism. They see no point in getting things settled so
the line can be drawn. They would prefer sporadic gains and the
assurance after each encounter that the last word has not been
spoken on Aboriginal rights. Some, including Mr Michael Mansell
and his Aboriginal provisional government, claim separate nation
status and will not be party to any domestic Australian
agreement.
Expecting Mansell and Dodson to agree on an instrument of
reconciliation is as unreal as expecting Keating and Hewson to
agree on the flag. In each case, there has at some appropriate
time to be a determination of what the majority of those affected
are seeking. Even in the absence of unanimous support, the
justifiability and achievability of those goals must then be
assessed.
Even if the day were approaching when social indicators revealed
that Aborigines as a group were no longer poor, disadvantaged and
dispossessed, we would still need to consider the issue of
indigenous rights. Aborigines should not be forced to be migrants
in their own land. They should be able to preserve their own
culture, laws and social organisation, provided they do not
interfere with the rights and liberties of others and provided
their communities guarantee individuals a freedom to opt for the
benefits and disadvantages of mainstream Australian life.
On October 12, 1992, we will mark the 500th anniversary of
Columbus's discovery of the Americas. Indigenous peoples will
remind us that Columbus discovered nothing which had not already
been discovered, inhabited, and reflected upon for centuries by
societies about to suffer the downside of colonisation.
That day marks the opening of the International Year for the
World's Indigenous Peoples, with the theme "Indigenous Peoples
- A New Partnership". Australia has welcomed the UN initiative as
"an opportunity to reflect further on what the right to
self-determination means for indigenous peoples".
In the decade ahead, those Aborigines opposed to a treaty
negotiation process aimed at entrenching domestic self-
determination for Aboriginal and Islander communities and groups
will be joined by miners and pastoralists motivated by their own
self interest.
Those Aborigines seeking incremental gains at home will add local
self-determination to land rights, local community government, and
Aboriginal participation in the administration of government
service programs, thus maximising their hopes of doing their own
thing and maintaining their culture.
They will face many obstacles. They will not get there alone.
But they have some strong allies, including the recently formed
Constitutional Centenary Foundation chaired by Sir Ninian
Stephen.
Father FRANK BRENNAN, a Jesuit priest and lawyer, is the author of
"Sharing the Country" (Penguin, $14.95) published this week.