The road to reconciliation: we're in the fog but we're making progress

A new vision of landscape and people is part of a difficult journey we are undertaking in Australia. We are journeying from a past misunderstanding and hostility to a present where we are more understanding of each other and on to a future where we are, however imperfectly, reconciled. The reconciliation is between the settlers and their view of land and landscape and the often dispossessed Aboriginals with their view of land and landscape.

Inga Clendinnen chose a quotation from Milan Kundera to help explain her account of the first steps of that journey after the arrival of Governor Phillip. Drawing from the journals of the time she recounts the early efforts to understand and co-operate with the local people and the general failure of those efforts with an aftermath disastrous for Aboriginals. At the front of the book we are told:

“Man proceeds in a fog. But when he looks back to judge people of the past, he sees no fog on their path. From his present, which was their faraway future, their path looks perfectly clear to him, good visibility all the way. Looking back he sees the path, he sees the people proceeding, he sees their mistakes, but not the fog.”

I acknowledge the fog in which we worked in the past and that in which we work in the present.

Progress is slow, it is painful, with backsliding and disappointments along the way but we are progressing towards reconciliation of two ways of looking at the world, of enriching our shared sense of what is Australia.

The conflict, what needs to be reconciled, is all about two views of the physical world.

One view, the dominant view, is rational, scientific, utilitarian. Yes, even among us there are creationists who see it all as the product of six days work by the Creator. But they too are utilitarian, seeing mankind’s role in the terms of Genesis as an obligation to subdue the Earth and to have dominion over fish, fowl and every living thing on the Earth. In that sense they are a seamless part of the dominant Western view.

The other view, the Aboriginal view, the “Australian” view if you adopt Inga Clendinnen’s parlance in Dancing with Strangers is totally different. Like the creationists, the world for them has not just happened. Every feature of it is the product of the activities of their ancestral spirit beings. Like the creationists, their creators were there before creation and remain there today. But unlike the creationists they do not believe they are there to subdue the Earth and have dominion over fish, fowl and every living thing, instead they are there to work with their spirit ancestors to renew, replenish and make abundant the Earth.

It is this continuing engagement with those ancestors which underlies their law, ceremonies, and sustenance. Past and present are fused.

Land and landscape are not there to be altered for their purposes apart from the cleansing by fire to “tidy it up”. This is where the two world views are in permanent conflict. The developers against the preservationists.

That is what this particular journey is about. The journey from no accommodation of the Australian or Aboriginal view to at least some accommodation between those two ways of looking at land and landscape. In that respect, the two cultures didn’t share Australia. Until the land rights movement the dominant culture demanded all the say in what should happen, how and when. The past 30 years have been about moving to a shared position which reconciles the irreconcilable in the only way possible, by negotiation and agreement between the parties.

The notion of one Australia is beguiling, not just to Pauline Hanson but to Aboriginal and non-Aboriginal alike. This was the conceptual underpinning and political language of the campaign for voting rights for Aboriginals in the early 1960s, that of the subsequent referendum campaign in the later 1960s which led to 90 per cent of Australians voting to, symbolically at least, support full citizenship for Aboriginals. That triumph of enlightenment, in a sense the triumph of post-enlightenment thinking, that endorsement of an equal humanity, coloured and influenced by the great civil rights struggle in the United States and the emergence from colonisation in Africa, was in fact a little step and uncontentious compared with what was to follow.

Hot on the heels of the referendum came the development of demands from Aboriginal people for something more than the same set of rights enjoyed by all other Australians.

This was manifest in the demands for recognition of rights to land based on continuing ownership of traditional lands by those who had occupied them for lengthy periods during the last 40,000 years.

Supported by missionaries, the Aborigines of the Gove Peninsula went to Court to seek recognition of their ownership of their lands, wanted by miners for strip-mining bauxite.

This was, on one view, the pursuit of an equal right to recognition of their property rights but on another it was an assertion of property rights not available to the rest of us who rest our rights to land on interests which are created by governments and primarily State governments.

Aboriginal demands for this recognition were and are courageous, persistent and consistent through to today. But as a minority they had to enlist the majority community. This they have consistently done.

The journey to obtain recognition of special rights, especially with respect to land, is a great relay race and the baton-changing from lawyers to politicians, back to lawyers, back to politicians and back to lawyers is an extraordinary tale. It has included moments of great inspiration: the dust trickling from the hands of Gough Whitlam into the hands of Vincent Lingiari at Wave Hill; the explanation by Ron Castan of how he translated his attachment to Jewish survival to the cause of the Aboriginal people; the setting aside of a series of decisions which the High Court said had been rooted in an age of racial discrimination; the moments of pure elation among Aboriginal people whose rights and status were recognised by grants of native title, many great moments interspersed by years and years of arduous talk, argument and negotiation.

The High Court’s Mabo decision of 1992 necessitated fundamental change. The Indigenous vision no longer had to rely on the sense of generosity of the majority, on whether it was prepared to grant some recognition to the other view. Instead Aborigines and Torres Strait Islanders could, in limited circumstances and without detriment to other government-granted titles, assert interests in land as a right, held under their own laws and customs and recognised by our law.

The Mabo case was itself a great journey led by a determined gardener from James Cook University, the late Eddie Mabo, and pursued for ten years by a team of Torres Strait Islanders, lawyers, anthropologists and historians. The great Jewish Australian lawyer, the late Ron Castan QC, of revered memory, gave ten years to the pursuit of justice in this case.

What did the Mabo decision decide? That the people of Murray Island were entitled against the whole world to possession, occupation, use and enjoyment of the Island of Mer, and that the fiction by which the rights and interests of Indigenous inhabitants in land were treated as non-existent was justified by a policy that has no place in the contemporary law of this country. The facts as we know them today do not fit the “absence of law” or “barbarian” theory underpinning the colonial reception of the common law of England.

For all the limitations, restrictions and difficulties that stand in the way of recognition of native title, despite it leaving Aborigines to fight over the left overs, what is left after all our government-granted titles are secured, native title provides the new dynamic that drives the evolving accommodation of Indigenous interests. It makes it not just a virtue but a necessity to deal with the other vision, the other view of land and landscape.

We don’t live in a gentler or more caring society today. If anything, the hegemony of market economics means even more that the race is won by the swift and even more by the powerful. But the legal recognition of the other subtle, intricate and shifting body of Aboriginal law has necessarily widened our vision and forced us into accommodation rather than complete domination of our system over the other.

There is no comparison between the pre and post-Mabo world in this sense. For some of us at least, mutual understanding and respect become a necessary reality in our operations on the land.

Think about history, pre Mabo, even our recent history of Noonkanbah and the political overpowering of land rights and compare it with the preamble of the Native Title Act which codifies – for the benefit of the majority society – the way and how the system deals with native title. Note that the Act carefully validates every government title, even if invalidly issued without regard to Aboriginal interests. Note that it provides for the creation of new titles over Aboriginal land which may diminish or extinguish native title and that the Aborigines have no right of veto over this, although necessarily they have right to compensation. But because native title is a legal right, the Constitutional protection against expropriation of property without compensation applies so Aboriginal people have to be in the system as stake holders, not as supplicants.

Mabo and the Native Title Act have brought about a new era of negotiation between the two visions. It is still imperfect and Aboriginal participants in the process complain about the deficiencies as loudly as some elements in the dominant society and economy. But, led by Federal governments through the establishment of the underlying principles of seeking negotiated outcomes in the Native Title Act, and in a practical sense by the mining industry for which land access is a critical issue, negotiation and accommodation are the new order. Every major mining company in Australia now has as an important part of its operations a capacity to engage with Aboriginal people and their cultural concerns. This in turn has led to an emphasis on Aboriginal employment and training that responds to Aboriginal demands for access to the real economy. The Chamber of Mines provided me with the information that confirms widespread engagement and employment, training and agreement making.

Of course the accommodations can never be perfect. Each party has a legitimate interest of social and economic importance. Those interests happen to be fundamentally inconsistent in development versus preservation terms but now the goal is some agreed accommodation rather than winner-take-all.

The Warburton community captured the dilemma for them, the Aborigines, in an art exhibition and book entitled Trust. It includes a series of extraordinarily beautiful images of land and mining. But for me, a person of words, the essays in the book, the oral expressions of viewpoint by the Aboriginal land owners, conveyed at best the ongoing loss Aboriginal people feel at the desecration of country and their contemporaneous understanding of the need for the economic engagement that their future as well as ours demands.

On the other side of the frontier, the side from which I come, the possibilities of the new order were captured for me by the words of a leader of the great Rio Tinto mining house, who said that this new accommodation was a great opportunity to do what was morally right and commercially advantageous. This, I believe, is the voice of the future and I think it is better than the old way and I think it indicates that we are making progress.

The new post-Mabo order, and even post-Mabo disorder, contains the seeds for a more moral and more successful country. At the time of Nookanbah, Ian Viner (my predecessor in Aboriginal Affairs) and I argued for an accommodation of interests, for a greater taking into account of the Aboriginal vision. We are still in a fog over many aspects of that new process of accommodation. Great Aboriginal leaders like Noel Pearson draw our attention to the faults and difficulties in what we are doing. But when I see respectful interactions between the rich and the powerful and the people of alternative vision until recently ignored but who have refused to give up their vision, I have hope. I do in fact believe that we are in this particular way moving in the direction of true reconciliation, we are undertaking that journey.