Blackfellas, whitefella and the hidden injuries of race

Blackfellas, whitefella and the hidden injuries of race


That all of the land now under freehold title in Australia was once Aboriginal land is not a fact many of us would find comfortable to dwell upon. Perhaps this is why Australians reacted with such hysteria to the High Court's Mabo judgement in 1992. Misunderstanding Mabo, we asked the same question Aboriginal people must have asked themselves in the wake of colonisation - could it be true that the land we hold so dearly can now be taken away from us? More than a decade later, we may be relieved to find that Mabo does not threaten our backyards, but how many of us understand the revolution that was Mabo and the native title legislation that followed?

In overturning the doctrine of terra nullius (land of no one) Mabo did not grant native title to Aboriginal people within Australian property law. It did something far more startling. It recognised the existence of entirely separate property laws. Aboriginal native title derived not from European notions of property but from traditional indigenous laws and customs. In other words, Mabo recognised native title in its own right, explicitly acknowledging the fundamental difference of Aboriginal peoples and cultures.


And as both Sandy Toussaint's Crossing Boundaries and Gillian Cowlishaw's Blackfellas Whitefellas show, it is precisely this notion of difference that non-Aboriginal Australia is still struggling to come to terms with today.

While Mabo revised the conventional view of legal history by finding that native title had always enjoyed the protection of the common law, it also reaffirmed the lawful right of Australian governments (past and present) to extinguish native title. Therefore, native title could only exist in places where it had not already been extinguished. Nor did the court's recognition of prior indigenous sovereignty threaten the sovereignty of the Crown. If Mabo was a revolution, the palace gates were safe.

The response of Australian governments to Mabo provided some of the most memorable moments in Australian politics in the 1990s.

There was the passionate, almost naive optimism of the new prime minister Paul Keating. I can recall Keating on ABC TV in 1993, his body darting to and fro like a first-round boxer as he hammered home his message. Mabo, he said, was a "historic opportunity" to re-found the relationship between Aboriginal and non-Aboriginal Australians.

Drawing on the spirit of Mabo, Labor's Native Title Act (1993) set the boundaries within which native title could be claimed. Aboriginal people would need to show an unbroken traditional association with their lands. The Native Title Tribunal would receive all claims and mediate negotiations. Claims that could not be resolved would be determined by the Federal Court, with the High Court serving as the ultimate source of appeal. After one of the most intense debates in Australia's parliamentary history, native title legislation was finally in place. But more memorable moments were to come.

In May 1997, Prime Minister John Howard addressed 2000 angry graziers outside the Stockman's Hall of Fame at Longreach in Queensland. Much to the alarm of rural Australia, the High Court's Wik decision in 1996 found that the granting of a pastoral lease did not necessarily extinguish native title.

Once again, fear outstripped reason. Many land holders seemed incapable of understanding Wik. In cases where the rights of a pastoral leaseholder and those of native title-holders were inconsistent, the court declared that native title rights must yield.

Nonetheless, Howard came to Longreach to reassure the graziers that their land was safe. Expressing his solidarity with their plight he donned an oversized Akubra hat. Then, with no awareness of his talent for historical irony, Howard guaranteed the farmers "certainty" their land could not be taken from them.

In 1998 came "the 10-Point Plan". Explaining the government's position on ABC TV, Deputy Prime Minister Tim Fischer produced a memorable oxymoron. The legislation would, he said, provide "bucket loads of extinguishment and bucket loads of native title". At least one half of Fischer's wish was realised. The Native Title Act was amended in 1998. In the words of Aboriginal leader Noel Pearson, the changes "ripped the heart out" of the original legislation, giving away 80 per cent of Aboriginal people's position.

Casting his eye over the past decade, Democrats Senator Aden Ridgeway recently declared that native title legislation had been a "spectacular failure": 31 successful determinations in 10 years, 590 claims still unresolved and 54 indigenous land-use agreements.

On the surface, this is hardly the stuff of success. But as Crossing Boundaries shows, it is not the full story. Across the country lawyers, historians, anthropologists, linguists and Aboriginal people are continuing to work on native-title cases. Much of this work substantially increases our knowledge of the history of Aboriginal-European relations. It also facilitates cultural exchange and fosters a culture of negotiation. The great disillusionment with native title has seen some Aboriginal communities bypass native title legislation and strike up so called "framework agreements" that result in the handing back of Crown land.

Crossing Boundaries gives leading thinkers and practitioners working in native title the chance to reflect on their experience (the book includes several case studies including positive role models) and calls for better communication between them, especially between lawyers working on native-title cases and their Aboriginal clients. In his essay on native title histories, historian Neville Green reveals that in one native title case on which he worked, he was dismayed to find that one Aboriginal client had not received copies of his historical report.

Reading these essays, I was struck by the extent to which the native-title process is stacked in favour of non-Aboriginal power structures. There is the cruel irony that the most fundamental test of native title - unbroken association with land through the practice of traditional indigenous laws and customs - directly contradicts the history of dispossession. It is difficult to imagine how the process of submitting native-title claims can be empowering for Aboriginal people.

As many of the essays in the book make abundantly clear, the native-title process confronts Aboriginal people with the following dilemma. We have dispossessed you of much of your lands. Now please demonstrate your unbroken traditional association with these lands. And please do so in our language, within the parameters set by our law and our method of reasoning. Above all, render your history knowable to us - make it fit the requirements of our legal system - and present us with an unbroken time line.

In one of the strongest essays, David Ritter and Frances Flanagan explain why the law is such an imperfect instrument for justice. "The purpose of the native-title process is not to determine what is fair" or to distribute social justice. Nor does it witness a negotiation between equals. They point out native-title rights are "limited, contingent and vulnerable".

No better proof of this can be found than the text of Justice Olney's judgement in the Federal Court's rejection of the Yorta Yorta claim for native title (upheld by the High Court in 2002). Olney stated that "the law of native title (exists) in a present absolved from any responsibility for that which has been washed away". Here, it is possible to appreciate how the law can be interpreted to conveniently sanction colonisation and dispossession, obscuring the way in which the land was won. The use of the phrase "washed away" suggests that Australian history is little more than the gentle and benign passage of time, denying the fact that Aboriginal land was taken unlawfully, often by force.

Institutionalised bias aside, the native-title process carries two great dangers. First, it constantly pushes the "proof" or essence of Aboriginality towards traditional culture and away from the reality of much contemporary Aboriginal culture. Second, it encourages us to fall into the trap of thinking that a court of law is the sole arbiter of the validity of Aboriginal relationships to land and the best means of understanding them. These same issues arise in Gillian Cowlishaw's Blackfellas Whitefellas , an anthropological study of racial conflict in the town of Bourke in north-western NSW.

In light of the recent "riot" in the inner-city suburb of Redfern in Sydney, Cowlishaw's book helps us to understand the frequently denied racial differences that are at work in Australian communities. She begins with the "riot" that took place in Bourke in December 1997, when Aboriginal people clashed with police. By examining race relations in Bourke, Cowlishaw peels back "the facade of goodwill" that non-Aboriginal Australia holds up to Aboriginal people.

She shows how "the twin stereotypes of Aborigines as depressed, distressed, or depraved, and of whites as racist rednecks pervade the understanding of rural and remote Australia with malevolent power". The great virtue of Blackfellas Whitefellas is the way it allows indigenous voices to shine through. Some Aboriginal people in Bourke reject the history of dispossession and oppression being taught to their children in school because they see it as helping to fuel their hatred of whites, allowing some to use "racism" as an excuse not to be responsible for their own behaviour.

The Aboriginal voices in Bourke reflect the true diversity of Aboriginal identity in Australia. They also reveal the ingrained lack of trust and suspicion in race relations. Many Aboriginal people feel "picked on" by police and singled out. In the town's media, theft is seen as an "Aboriginal domain" and while Aboriginal violence is emphasised, white violence is located in the past.

As Cowlishaw writes, "historical injury is attributed to Aboriginal people but not present pain". They are also weighed down by "the national attention to the indigenous population as an ever-present national problem".

Both books point to the absence of concrete constitutional reform in Australia. Reform that would finally give Aboriginal people their rightful place in the fundamental law of the land. No panacea but a powerful symbolic statement nonetheless.

Mark McKenna's book This Country: A Reconciled Republic will be published next month by UNSW Press.

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