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Still not sorry!?

By Barbara Hocking - posted Thursday, 22 November 2007

Two hundred years after the "change of sovereignty" of 1788, the "law of the land" in the whole area of reconciliation between the new dominant "settled" society and the old immemorial system of communal land ownership of the indigenous peoples of Australia was legally laid down by the High Court in the Mabo case (1992).

The Mabo reforms were trenchantly opposed then and are still being opposed now. The opponents of the reforms mistakenly claim that they unjustifiably arose from guilt and shame over our colonial history.

Indeed we are sorry for the mistaken application of the common law in the past and the policies of "shame" in our colonial history. However, those of us involved were motivated by a sense of the rule of law and of justice. We are not the ones who see black armbands all around us. We saw Australia’s first people at last legally empowered to become visible, respected and equal citizens with legal recognition of their laws and customs, the gradual re-establishment of self-government and legal recognition of their communal ownership of traditional lands whereever these communities still existed and their native title had not been extinguished. Since the Mabo case, this is the position upheld by the common law and by statutes of every government in the nation.


But it is necessary to be vigilant to ensure that the law laid down in 1992 in the Mabo case is entrenched in Australia. This political policy is still openly rejected by the Howard federal government in favour of the enforced application of the discredited past policy of assimilation. This is the old colonial policy of genocide writ in modern form and known to the United Nations nowadays as ethnocide.

We must remember that the past can happen again since those who either do not know or are not sorry for their history are wont to repeat it - as is now illustrated by the federal government’s colonial style take-over of Aboriginal land in the Northern Territory. An early Tasmanian Judge, referring to the fate of Aboriginal peoples being forcibly removed from their lands and way of life to a Mission Island, said "They will all die from broken hearts". And indeed they did. On August 21 this year, Irene Fisher, chief executive of Sunrise Health, referring to the increase of deaths in NT indigenous communities since the federal take-over, said "To me it is almost like some are dying of broken hearts". Quite so …

This is a medical syndrome not often seen and identified today, as it is the result of enforced social denial and destruction - it has happened to indigenous and other displaced peoples throughout the world. It is happening here again because of the Howard government’s renewed denial of the local law of the land and its refusal to uphold human rights and international law in this area.

Last September, Australia and the other former British-settled colonies of Canada, New Zealand, and the United States of America refused to accept the United Nations Declaration on the Rights of the Indigenous Peoples; a statement opposed by no other country, but voted against by these four nations. This decision was publicly justified by the Howard government because of a spurious legal furphy concerning "sovereignty".

A return to colonial practices

Australia is now returning to forcible dispossession; denial of rights to control entry onto one’s own land; removal of the rights to negotiate with resource developers concerning terms and conditions both of explorations and of proposed developments on one’s own lands; the threat of the removal of victimised children instead of the alleged criminals and other abandoned and discredited policies of the colonial era.


That history lingered so long that those who claim they are not sorry because they did not do these things need to be reminded of just how recent the struggles were, to have repealed and changed the laws that still made possible, up to the 1980’s, the practices leading to "the stolen children" generations. Reform was opposed both then and now by many of the same people who still adamantly remain opposed to a national declaration of reconciliation that includes being sorry for the mistakes of our past history.

Australia’s rejection of the internationally recognised human rights of indigenous peoples is consistent with the policies of the Howard government, but it was done in all our names and on our behalf. Surely a majority of Australians no longer support the long history of by-gone colonial policies that led either to outright genocide or to ethnical oblivion through assimilation into the dominant society. Nowadays, the guiding principle of international policy is to preserve the way of life of the indigenous and nomadic peoples of the earth as long as they wish.

Do not mistake my purpose here. I am of course in favour of all the knowledgeable assistance that can be provided to endangered indigenous communities. I am pointing out that the methods enforced here are based on lack of understanding of the nature of native title in Australia - and so they are inappropriate and unlikely to succeed. Moreover, it seems that there may be a further purpose for there is no apparent justifiable reason to weaken or take-over native title as has been done.

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About the Author

Barbara Hocking BA,LLB; LLM; MA(prelim.). MIArb.A. was the first barrister briefed in the Mabo case. She was placed on the Victorian Honour Roll of Women 2006, was a Rockefeller Foundation Visiting Resident Fellow, Bellagio Study and Conference Center, Bellagio, Italy, 2002-03. She won the Distinguished Alumni Monash University Inaugural Award in 1993.
Barbara won the Australian Human Rights Medal 1992.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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