INDIGENOUS RIGHTS: RECOGNITION OR RABBLE?

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BY MARIANNE MCDADE

 

An estimated 10,000 gathered outside Flinders St Station in Melbourne’s CBD in May this year, with an aim to “shut down” the city in protest against the government’s proposed closure of 150 rural indigenous communities.

The proposal has garnered criticism nationally and abroad, with fears the displacement could mean a further loss of language and culture, and instability to already fragile communities.

Although the primary focus was on condemning the closures, it was clear that the rally was about a wider issue; outrage at the government’s continued method to implement policies on behalf of the indigenous population.

“We don’t want to be consulted. We demand genuine dialogue.” Said one young speaker.

The mood was an undeniably different to other rallies, attributable to a new presence on the political scene – a proud, angry, young and politically aware indigenous population that are behind a fresh wave of initiatives.

 

A change needed in ‘change initiatives’

Aboriginal Australians are calling for their community to come up with their own agendas rather than relying on government-run initiatives.

“Get rid of the whole notion of reconciliation. We don’t need another government agenda. Get rid of Close the Gap as a brand. It is tired and it’s boring. Let the people speak and lead instead. We don’t need government top down influences. We need the ground up and that is what we are seeing here tonight.” Sam Cook from the Niginah Nation in WA told The Northsider. Sam helped set up the #SOSBLAKAUSTRALIA campaign that has since gone viral and garnered international support.

 

 Get rid of the whole notion of reconciliation. We don’t need another government agenda. Get rid of Close the Gap as a brand. It is tired and it’s boring.”

 

Another active voice that has popped up recently is Warriors of the Aboriginal Resistance (WAR). The initiative, led by young indigenous youths, adopts a more aggressive approach, aiming to “facilitate a culture of resistance”, to “protect and defend” aboriginal nationality, and to fight against the “imbalance of power”. They reject government initiatives such as Reconciliation Week and the Recognition campaign, labelling them as a “distractions” that do “nothing to address the fundamental power imbalance”.

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How does Australia’s indigenous policy measure up?

Australia, New Zealand, Canada, and the United States, have a comparable narrative in their colonial history. Dr. Kirsty Gover, lawyer and Associate Professor and Programme Director of the Comparative Tribal Constitutionalism Research Programme at Melbourne University, is an expert in the field of indigenous policy and governmental relations, and has specialised in comparing the four nations’ progress. She explained that Australia’s indigenous policy is unique in comparison, leaving the odds stacked against those communities who hope to negotiate a say in their future. Such key points include: absence of treaties, a lack of a legal obligation to consult indigenous communities, no policy on self-determination or self-governance, and the lack of land claim settlement processes.

Unlike the other three colonised countries, Australia has not developed the systems and policies that would facilitate diplomatic communication and negotiation between the government and aboriginal peoples.

“For whatever reasons all three branches of government – whether the executers, legislature, and the courts – have not picked up the slack. They have not advanced the obligations in the way that they might.” Said Dr. Gover.

 

Absence of treaties and the concept of recognition

In New Zealand, the US, and Canada, there have been historical efforts to form treaties – albeit sometimes for the purpose of land acquisition – between colonisers and the indigenous inhabitants. Such treaties legally secure the indigenous communities as polities that are historically continuous. This recognition, amongst other things, legitimises claims to land rights and facilitates relationships between government and indigenous institutions.

“Those processes are designed to repair the relationship, bolster indigenous institutions and provide them with an economic base.” Dr Kirsty Gover said.

 

 It actively discourages state governments from trying to develop relationships with aboriginal communities. It effectively says that if you apply a measure to indigenous groups that you don’t apply to non-indigenous groups, you will be completely able to do that within the Racial Discrimination Act…”

 

As with their colonial equivalents, Australia requires indigenous to prove continuity and political coherence if they are to make native title claims or negotiate other reparative measures. However, Australia uniquely requires native title claims to be litigated meaning indigenous must provide strict evidence of continuity to the courts, and without a history of treaty making, this is near impossible.

“Despite what had happened to those peoples in Victoria when they had lost their lands and waters – for what ever reason – colonisation, dispossession, massacre… The reasons why they lost connection didn’t matter they still had to show continuity of their observance of traditional laws and customs dating back to when colonisation first occurred… that is an almost impossible standard to meet.” Explained Dr. Gover.

Without the recognition of indigenous polities and institutions, indigenous identity is simplified to a racial paradigm making land rights claims or other reparative measures extremely difficult to negotiate.

By Jaime Dale

By Jaime Dale

 

Obligation to consult

All three other countries have specific systems in place to protect the indigenous population when laws are made that might affect their interests. These policies and doctrines, such as The Trust Responsibility and the Honour of the Crown, legally oblige federal government to not only act in the best interest of the indigenous population, but also require a certain degree of consultation so that they can make informed decisions.

In comparison, Australia applies the Racial Discrimination Act, and under the act’s ‘special measure’ exception, the Australian government is able to enforce decisions that exclusively apply to the indigenous population whether consultation takes place or not, provided these are for the “advancement of the community”. This precedent was established in a 2013 High Court decision, Maloney v R.

“That is a terrible precedent because [it] means that it is up to the government to decide what is good for [them]… It actively discourages state governments from trying to develop relationships with aboriginal communities. It effectively says that if you apply a measure to indigenous groups that you don’t apply to non-indigenous groups, you will be completely able to do that within the Racial Discrimination Act if you plausibly show that it is for their benefit. Even if they don’t want it.” Said Dr Gover.

Australia’s approach is significantly backward when you consider self-determination has been a continual point of direction for the other three countries.

 

What is the solution?

Of course, there is no easy answer to address the issues and concerns of both parties, but until Australia catches up with its colonial counterparts and advances their indigenous policy, real progress will be impeded and history doomed to repeat.

Whether such rallies might be considered by some as “selfish rabble” or not, the fact remains that in the absence of effective government policy, there is no other system in place for Australians, indigenous or otherwise, to influence direct action on behalf of the indigenous population.

Tom Mosby, CEO of the Koorie Heritage Trust, suggests that a lack of desire for engagement on the part of non-indigenous Australians is a key issue for the reconciliation movement.

 

 However, we must not forget that ours is a surrogate culture with a difficult and painful beginning. We can no longer cling to an awkward adolescent idea of identity that lacks the maturity to see the bigger picture.”

 

“We can educate non-indigenous people and promote an agenda that supports indigenous people, but we can’t force people to engage. We’re living in the 21st century in a more urban, more educated society, yet racial vilification continues. The likes of Reclaim Australia coming to prominence is pretty disappointing.” Said Mr Mosby.

Australia is unique in that its current culture was seeded from an immigrant and penal past, of which the various multicultural populaces struggled – and some still do – to develop a sense of belonging and cultural ownership. It’s far easier to feel proud and protective of our now rich and vibrant identity rather than to commiserate with the issues of a population to which one feels no ancestral ties.

However, we must not forget that ours is a surrogate culture with a difficult and painful beginning. We can no longer cling to an awkward adolescent idea of identity that lacks the maturity to see the bigger picture. We are not the sum of our colonial birth. It is time to identify with our history, and recognise our responsibility.

It is up to the entire population — indigenous and otherwise — to decide what we want as a part of our national heritage: connection to a rich and complex culture that dates back thousands of years, or the knowledge that we allowed it to disappear?

 

Marianne is Managing Editor for The Northsider and a freelance writer. She lives in Abbotsford and can’t wait to get her braces off. @marianne_mcdade 

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