Written by Keith Windschuttle
In recent months, The Australian has been running a fairly sustained campaign in favour of the demand for a “voice” to the Commonwealth parliament on policy issues that affect Aboriginal people. The newspaper has published a series of stories and opinion pieces in support of the Uluru Statement of the Heart made at a national convention of Aboriginal representatives in May 2017. Most of its stories have been by its indigenous affairs correspondent, Paige Taylor, who has been reporting on the progress and response to the Morrison government’s report last October on proposals to establish the Voice by either legislation or constitutional change, or both.
However, The Australian has not published any serious views that dissent from the proposal or point out the political and constitutional problems inherent in it. Instead, it has presented the Voice as a desirable reform to give Aboriginal people a special place in Australia’s political system and self-determination in policies that affect them.
On January 25, The Australian reported a very different story on Aboriginal affairs. It was about the endorsement by the ABC of the term “Invasion Day” in reference to Australia Day on January 26 and the political activities planned for it. This quickly became the most discussed topic ever recorded on The Australian’s website, receiving more than 3300 reader comments. The ABC initially dismissed all criticisms and defended the report concerned. However, by 3pm, recognising how the numbers in this and other news media were so strongly against it, the ABC capitulated and deleted the term from the offending item. Anyone who reads even a part of the readers’ comments in The Australian will see that they were running about 99 per cent against both the ABC and the Aboriginal political activists planning massive street demonstrations to denounce Australia Day celebrations today.
The members of the urban Aboriginal political class are well aware of the bi-polar nature of this topic, as UNSW academic Megan Davis has acknowledged in a paper titled “Toxicity swirls around January 26 but we can change the nation with a Voice to Parliament”. She writes:
Each year the tensions spill over rendering Australia Day, Invasion Day, Survival Day a protest as much as a celebration. But there is a quiet process underway, aimed at achieving substantive recognition of the First Nations that has so far eluded Australia.
Davis says all Australians want to find a way through the annual debates about Captain Cook, the First Fleet and national identity, “to a more inclusive and nuanced narrative of who we are”. However, as long as Aboriginal activists persist with a political theatre in their street protests that portray Australian descendants of British people as a greedy enemy who stole Aboriginal lands while committing genocide against the original inhabitants, they will always come up against the response the ABC received when it redefined Australia Day as Invasion Day. Ordinary Australian voters can only be pushed so far. There is a limit to their tolerance of the kind of historical interpretation that the Aboriginal political class demands be accepted.
Davis’s solution to this remains no different to what it was in 2017, when the Uluru Statement demanded the Voice. She wants a radical proposal to change the Australian Constitution to give individual Aboriginal communities complete autonomy to dictate to the Australian government and parliament what they want.
As the Referendum Council’s response to the Uluru Statement in June 2017 asserted, there were some non-negotiable conditions they demanded be adhered to:
Any Voice to Parliament should be designed so that it could support and promote a treaty-making process. Any body must have authority from, be representative of, and have legitimacy in Aboriginal and Torres Strait Islander communities across Australia. It must represent communities in remote, rural and urban areas, and not be comprised of handpicked leaders. The body must be structured in a way that respects culture. Any body must also be supported by a sufficient and guaranteed budget, with access to its own independent secretariat, experts and lawyers. It was also suggested that the body could represent Aboriginal and Torres Strait Islander Peoples internationally. A number of Dialogues said the body’s representation could be drawn from an Assembly of First Nations, which could be established through a series of treaties among nations.
In other words, the eventual goal of the Voice would be to make treaties between the Commonwealth and what it calls the First Nations. The Council’s report notes that the demand for a treaty or treaties was a priority demand of the indigenous conventions leading up to the Uluru Statement of May 2017:
The pursuit of treaty and treaties was strongly supported across the Dialogues. Treaty was seen as a pathway to recognition of sovereignty and for achieving future meaningful reform for Aboriginal and Torres Strait Islander Peoples. Treaty would be the vehicle to achieve self-determination, autonomy and self-government.
So, rather than one “black state” as envisaged in 2001 by Geoff Clark of ATSIC, the current proposal is for each individual clan or language group to be recognised as a First Nation and for the Commonwealth to make a treaty with each one, as if it were a separate state. As I record in The Break-up of Australia (Quadrant Books, 2016), this is a political outcome advocated by both Noel Pearson and Warren Mundine. They want statehood, self-government and an independent legal system for each self-identifying Aboriginal clan that gains native title. And they want the Australian taxpayer to fund it all.
This is obviously a program for a radical revision of the Australian federation—all of it in the interests of Aboriginal people, but with no thought about how it could possibly be in the interests of the rest of us.
If Davis thinks that the Australian public will respond to a program of this kind from the goodness of their hearts, or from the brain-washing of the mainstream media, let me remind readers of the version of Australian history they will all be required to accept. The Uluru Statement makes a series of assertions advocating the following:
We have coexisted as First Nations on this land for at least 60,000 years. Our sovereignty pre-existed the Australian state and has survived it. We have never, ever ceded our sovereignty. The unfinished business of Australia’s nationhood includes recognising the ancient jurisdictions of First Nations law. The Law was violated by the coming of the British to Australia. This truth needs to be told.
Australia was not a settlement and it was not a discovery. It was an invasion. Invasion was met with resistance. This is the time of the Frontier Wars, when massacres, disease and poison decimated First Nations, even as they fought a guerrilla war of resistance. Everywhere across Australia, great warriors like Pemulwuy and Jandamarra led resistance against the British. First Nations refused to acquiesce to dispossession and fought for their sovereign rights and their land.
Now it is not hard to show that this declaration is a caricature of Australian history. It falsely portrays people of Aboriginal and British descent as long-standing enemies, and it misrepresents British, Australian and international law. Here are some of the more obvious objections to its assumptions:
Aboriginal people are the First Nations. The term “First Nations” derives from twentieth-century American politics and has been transported to Australia, where it does not fit. Aboriginal clans, hordes and tribes, which in most cases were no more than extended families, never attained nationhood either before 1788 or any time after. This was confirmed in 1836 in the seminal judgment of William Burton in the New South Wales Supreme Court and has been repeated several times since by Australian judges, including the High Court’s Harry Gibbs in 1979:
…it is not possible to say … that the aboriginal people of Australia are organised as a “distinct political society separated from others”, or that they have been uniformly treated as a state … They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the law of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible in law to maintain.
Aboriginal people never ceded their sovereignty. Before the colonisation of Australia Aboriginal people never had any sovereignty to surrender. “Sovereignty” is a term from international law, or what was called in the eighteenth century “the law of nations”. The two leading European authorities on international law at that time, Christian Wolff and Emmerich de Vattel, both argued that for a society to be a genuine nation it must have civil sovereignty over a territory and its people and, as a corollary, only nations could have genuine sovereignty. Aboriginal activists and their academic supporters have argued that, because the High Court’s Mabo judgment recognised that Aboriginal clans had their own laws that made them owners of their land, they therefore also had sovereignty over their territories. However, this wrongly assumes small tracts of land ownership entails national sovereignty. Burton’s 1836 judgment found the Aborigines did not have anything that amounted to what the British and other nations could regard as statehood or nationhood. He said they:
…had not attained at the first settlement to such a position in point of numbers and civilisation, and to such a form of government and laws, as to be entitled to be recognised as so many sovereign states governed by laws of their own.
Australia was invaded, not settled, and the British colonisation was illegal. These claims are partly a matter of international law but also an issue within Australian frontier history. In eighteenth-century international law a “settled colony” was one which, at the time of its occupation by a European power, was either uninhabited or else inhabited by people whose political system and laws did not amount to those of a nation-state. In a colony of the latter kind, the laws that applied were not those of the local inhabitants but those of the new power. In early colonial New South Wales, the absence of any political structure among the Aborigines that the English explorers or members of the First Fleet could recognise as a nation or state meant they annexed it as a colony of settlement. This meant English law came into force, the British Crown became the sovereign of all the land it claimed and, in legal theory, the indigenous people automatically became subjects of the Crown, living under the protection of its laws. The legal judgment that eventually confirmed the settled colony principle was given in 1889 in Cooper v Stuart by the Privy Council. Yet the Referendum Council report wants us to go back and rewrite Australian legal history in order to accommodate today’s political demands.
For the first 150 years of their practice in Australia, historians and anthropologists agreed with the legal fraternity on the question of invasion or settlement. There was no warfare waged by Aborigines against the British arrivals and no sustained resistance to the British presence. The most common violence in any of the new colonial settlements was simple retribution, or “payback” by Aborigines against individual settlers or convicts who had stolen or destroyed their canoes or weapons, or abused their women. On some occasions, Aborigines used violence, or more commonly threats of violence, to purloin game taken from the bush by settlers and convicts or fish they took from the rivers and estuaries.
But Australian history never resembled the real warfare waged by other indigenous groups in the Pacific region, especially that of the Maoris in New Zealand. In the Maori Wars of the early 1860s, about 4000 Maori warriors battled 1800 British imperial troops and local volunteers. In one confrontation, at Paterangi in January 1864, some 3000 Maori warriors from twenty tribes met in battle an imperial army of more than 2000 men supported by artillery and cavalry.
Nothing on this scale ever happened in Australia. According to Governor Arthur Phillip of New South Wales: “The natives … always retire at the sight of two or three people who are armed”. And according to Lieutenant-Governor George Arthur of Van Diemen’s Land, there was no “systematic warfare exhibited by any of them as need excite the least apprehension in the Government, for the blacks, however large their number, have never yet ventured to attack a party consisting of even three armed men.”
Although Australian academic history is dominated by supporters of the resistance thesis, the more convincing accounts of the early settlement of Sydney by Keith Vincent Smith, of Melbourne by Beverley Nance, and of Perth by Bob Reece, reveal the most common response by Aboriginal people to the British colonists was that of “coming in” or “accommodation”. Reece writes of the 1830s in Western Australia:
Far from retreating from white settlement, Aborigines were attracted to it, although their movements were still very much conditioned by [tribal] territorial boundaries and punishment for “trespassing”. Those groups closest to the main centre of settlement adjusted their traditional pattern of seasonal movement in response to the relatively easy availability of European food … Although the Aborigines knew they were being dispossessed, there does not seem to have been any continued resistance to this process. The Aborigines were ready to make pragmatic arrangements with the whites to compensate for the loss of their land and the livelihood which it represented, and this readiness was acknowledged by the white authorities. Aboriginal “attacks” on livestock and “thefts” of flour and other property on the edge of the settlement seem to have been a response to the whites’ refusal to share their resources rather than any “guerilla” effort to drive the whites away.
In other words, when Megan Davis advocates popular acceptance of what she calls a “a more inclusive and nuanced narrative” about Australian history, she is kidding herself. The historical grievance expressed by the Uluru Statement of the Heart could never contribute to reconciliation or a more unified nation. It is bound to have the opposite effect.