by Stan Grant
But the measured tone of the conservatives speaks to their comfort in an Australia that has never excluded them. The urgency and passion and dignity and righteousness of the Indigenous advocates comes from those who know the sting of dispossession and injustice. The first peoples draw from a great well of sadness. It is a history of loss: lives singed by the fires of poverty and bigotry.
At times of great national occasion I confess to often feeling hollow. There is a hole where my country should be. When I held the Australian Constitution I felt a great reverence. When I looked upon the Larrakia Petition I felt belonging. The measure of our country is when these great documents speak equally to us all. But how do we close those thirty steps? Individuals have reached across that divide and have found a sense of shared belonging. Families have been born out of that love between us that defies a history of segregation. Aboriginal people have looked for a place in a country – their country – even as it was denied them.
Treaty, recognition: these are the things that can help complete a nation. Beyond the legalese and the politics, they could form the lyrics of a song of our country. They should speak not to separatism and unending grievance but to the ‘serious business’ of healing the ‘memory of wounds’, resolving the Australian settlement and connecting us all – descendants of the First Peoples or the most recent refugee – to what it is to be an Australian; to fill those thirty steps between us.
THE CUNNING OF RECOGNITION
A nation is a grand lie, a thing of fiction; you could say it is entirely a mirage, something we imagine into being. There is nothing natural about nations, they are not ordained by God or handed down from our ancestors. Secular nations are a modern invention, they were born in blood, emerging from rebellion against a time when we were ruled by monarchies or religious leaders. The world as we know it took root in the seventeenth-century treaty of Westphalia (1648), marking the end of the Thirty Years War – that left at least eight million people dead. A new political order was created, one of sovereignty and independence. States pledged to stay out of each other’s affairs.
Aboriginal people would have had no way of knowing what was happening in Europe, how the people of an entire continent had torn themselves apart to put themselves together again. It is impossible to be sure today, but before the British claimed this land there were thought to be anywhere from 250 to 700 distinct groups here. Today, we call them nations, adopting that European term to describe the tribes and clan groups that lived here bounded by their own borders and linked by trade and ceremony. More than a century after the warring tribes of Europe came together, Captain Cook planted a flag that sowed the seeds for a new nation that would become Australia.
Flags don’t make a nation. Guns and ships don’t make a nation. Politicians can write constitutions but a nation is more than a set of laws. What is it that binds people together, that is stronger than our instinct to turn on each other? In 1983 sociologist Benedict Anderson unlocked this secret. The most powerful unifying force among us was speech, language; our words gave meaning to nation. He called it a ‘consciousness of connectedness’. Before the treaty of Westphalia, a revolution was already underway; a revolution of language that unleashed a fire in the mind. The printing press had already put information into the hands of ordinary people; literacy improved; stories could be shared quickly and widely. This created a potent sense of shared destiny that trumped other affiliations – race, culture, religion – that may have otherwise divided people. As Anderson wrote, ‘. . . one can sleep with anyone, but one can only read some people’s words’.
That’s what a nation is: a story. Stories are how we explain ourselves to each other. It is a story that we imbibe, and a story we so rarely question. What is our story? It is terra nullius. Historian Stuart Macintyre calls it a story of ‘a sleeping land finally brought to life’. It is a British story – a white story. Look at the names we gave our cities: Sydney, Melbourne, Perth, Hobart, all named after British politicians; Adelaide is named after a queen and Brisbane, a governor. But I’ve long thought there is something else lurking in Australia, a trace of a story much older that holds us in its grip even as we have sought to deny it. Look at the names of farms and properties in Australia, think again about our rural towns; so many of them have Aboriginal names. Where I grew up there was Narrandera, Wagga Wagga, Cootamundra, Gundagai; it was as if the settlers were reminding themselves whose land this was even as the local people were being forced off.
A sleeping land, brought to life – empty land – the legal fiction struck down by the High Court in the Mabo decision, but so deeply lodged in the Australian consciousness that for much of this nation’s history it rendered Indigenous people invisible. Terra nullius gave the British licence to write their own story here. In her book Being Australian, sociologist Catriona Elder speaks of the ‘terra nullius narrative’ – a white story written in an empty space. Elder says the ‘terra nullius story meant non-Indigenous peoples could imagine they were telling a story where no other story existed’. It is a story that did not include my black ancestors. Their presence countered the European claim on this land, a reminder of a deeper sense of belonging here. They were depicted as the ‘noble savage’ or the ‘doomed race’ bound for extinction. As Elder says, a people who ‘could not survive the inevitable onslaught of a modern world’.
Australia in many ways has been perplexed by Aboriginal survival. Extinction, segregation and assimilation have all been predicated on disappearance – a people fading away on the margins or ‘absorbed’ into the Commonwealth. Elder says, ‘Indigeneity or blackness is excluded from the nation by Indigenous peoples being made white.’ What remains is an enduring and frustrating question of authenticity. Who are the ‘real Aborigines’?
Anthropologist Elizabeth Povinelli says Indigenous Australians are forced ‘to identify with the impossible object of an authentic identity’. It is still true that most Australians have never met an Indigenous person and may be utterly unaware if they had. People like me – urban, mixed race, middle class – appear like any other Australian; another face on our multi-ethnic streets. Povinelli says Australia is unnerved by the claims of people who are so familiar, yet so strange; people ‘hauntingly similar to themselves’, who ‘dress, act and sound like the suburban neighbours they are’.
In her book The Cunning of Recognition, Povinelli explores that space where race and Indigenous rights meets political liberalism. When it comes to recognition, she asks just what or who is the nation in fact recognising? She questions if Australia is serious about the rights and place of Aboriginal people in our nation, or if recognition is a shortcut to whitewashing our history? Is it in truth less about justice than easing Australia’s national conscience? Povinelli takes aim at the holy grail of Australian legal history, the Mabo High Court judgment overturning terra nullius and ushering in native title. This is rightly regarded as a high point of Australian liberalism, a milestone of reconciliation. The judges themselves made it clear that the case was an opportunity to cleanse the nation’s collective sin. But Povinelli, who worked among Indigenous communities for almost two decades, wonders exactly where Aboriginal people fit into this new story ‘of national identity, of history, and consciousness’.
Amid the celebrations of the Mabo decision, Povinelli says we missed what was really happening; this was always more about rehabilitating the Australian nation than recognising the rights of the First Peoples. What was at stake, she said, ‘was not simply a nation’s shame at its past as a coloniser. At stake was its future.’ There was a trade-off, Australian law would recognise the limited rights of Aboriginal people and in return those same Aboriginal people would release Australia from its guilt. Povinelli calls it a ‘liberal imaginary’ where Indigenous Australians would ‘slough off their traumatic histories, ambivalences, incoherencies, and angst like so much outgrown skin’.
Recognition has always appeared to me to ask more of black people than white, Aboriginal people feel strongly the expec
tations that they will forgive their fellow Australians. Recognition is linked to the desire for reconciliation – one can’t exist without the other. Yet reconciliation has always been a flawed project, it emerged in the 1990s out of political failure, the decision by the Hawke Labor government to backtrack on a promised treaty. Questions of sovereignty and legal and political rights for First Peoples would instead be replaced by gestures of national healing, and closing the socioeconomic gap.
Fast forward two decades and Indigenous people have grown impatient with progress, it is what fuels the anger we see on our streets each Australia Day. Reconciliation and recognition have become bywords for assimilation, the political equivalent of beads and trinkets. In a public lecture in 2018, Yawuru leader, Peter Yu – a long-time champion of Aboriginal rights and a pragmatic and thoughtful man – was reduced to despair. Reconciliation, he said, with a commitment to a full political settlement ‘no longer exists’, it has ‘lost its moral and political gravitas’. As a nation, we have traded substance for symbolism. This was a devastating appraisal of the abject failure of Australia to heal its deepest wound, while Indigenous people continued to fill our prisons and cemeteries. In spite of it all, like me, Peter Yu maintains a faith in the goodness of Australian people ‘far better than the political system which represents us’. What is at stake is Australia’s ‘moral and ethical national character’.
Our national story: a sleeping land brought to life; a restless land; a nation unfinished. There is a deep unease here: uncanny – a place familiar but strange. As I have written in this book, our art and literature and film probe that question of being at home. All that we have built; all of our laws; 200 years and we can’t quite shake it – that thing that dwells in us: we don’t really belong. It’s there in the surge in popularity of outback crime novels; Chris Hammer’s Scrublands and Jane Harper’s The Dry take us again to that vanishing place; the dark foreboding bush that swallows us up. We cannot separate the land from murder. But when we put down our books we return to our daily lives of family, work, school and sport, and push aside those dark thoughts. It is a privilege that other Australians enjoy. I wonder what it must be like to know contentment. It eludes me. Modern Australia was not built for Aboriginal people, my black ancestors were expected not even to survive. Australia is a British invention, conceived by Britain initially for British – white – people: a far-flung outpost of empire. I was talking to a prominent Aboriginal leader once and he turned to me with a look of loss; a moment of feeling defeated and deflated. ‘It is their country now,’ he said.
I am caught in the crosshairs of Australian freedom; as an individual I have been able to pursue my dreams yet there are those in my family for whom freedom itself remains a dream.
In a multicultural society Indigenous people feel the strains of belonging on the one hand, and on the other clinging to culture and identity; not a blended part of Australia but a people distinct and unique. The state has historically determined who is or is not Aboriginal, and now, to prove native title, they must prove who they are all over again. It is the state that decides which customs and laws of Indigenous society it finds worthy or acceptable, and Indigenous people must conform, as Povinelli says, to ‘gain access to public sympathy and state resources’. This is what she calls the ‘cunning of recognition’, an act of acknowledgment that may be more about protecting and enhancing the honour of the wider society – Australia – than in truly seeing the very people it is meant to be recognising – Indigenous people.
So, where are we? Australia has been framed by terra nullius, and Indigenous people locked in the imagination of a nation that has throughout its history, too often found the black presence uncomfortable or offensive. Now those same Indigenous people must prove their authenticity. Australian society sets the boundaries. I often feel torn between belonging to Australia and being an Indigenous person. I live with that tension. It is the curse of the outsider.
What remains, for me, is the hope of liberalism. Scholars like Elizabeth Povinelli are right to wonder if Australian liberal democracy, its rule of law, can ever truly speak equally to Indigenous people, but it is not something I am ready to give up on. Liberalism is a fighting faith and right now it needs its defenders. Around our world the liberal order is being challenged in new ways by rising authoritarianism, poor leadership and a loss of trust in the institutions of democracy. In Australia we face our own battles: our own reckoning with the ‘End of History’.
WE ARE NOW ONE PEOPLE
The words we use to hide our shame, think about them: dispossessed instead of stolen; settled not invaded; explorers who were really intruders. We have crafted a new language to tell the story of Australia because we are damned by the truth. We can’t yet bring ourselves to say massacre or war let alone genocide. Why do we refer to a people who had lived here longer than human memory as custodians of the land? Because owners have rights.
Here is the question that for two centuries has haunted Australia: whose country is this? Sixty-five thousand years cannot be so easily erased. There was no treaty, no deed of title, no conveyancing; there was just a flag claiming for Britain ownership of an empty land. Surely this is done; this is settled; but not for Indigenous people. This is Australia’s unfinished business.
Australia exists on a skeleton of law, the bare bones of legal judgments that refuse to accept the First Peoples of this continent as sovereign people. Terra nullius has been struck down, the High Court accepts the obvious that when Captain Cook arrived there were people here. But the judges in the historic Mabo case would not disturb the grounds of Australian settlement. They would not entertain the idea that the Crown’s possession of this land is illegal. But Mabo was just the latest in a string of legal challenges to British sovereignty stretching back two centuries. Most Australians would be utterly unaware of this history, and we are poorer because of it. I came to this thinking I would be buried in opaque legalese, bogged down in mind numbing technical points of law. How wrong I was. Here are cases of murder, political power struggles and rebel judges prepared to speak against the law of their own land. What is revealed is another Australia entirely, a shadowland where all the things we believe to be true, shatter.
We have to go back to 1836, when Aboriginal man Jack Murrell was charged with murder. His lawyers decided to turn it into a test case: here was an opening to overturn the very foundation of the colony. They argued that Murrell was not a British subject, and British law did not apply to him. They said he could be judged only under his customary tribal law. The Chief Justice of the New South Wales Supreme Court was interested enough to describe the argument as an ‘ingenious defence’, but he rejected it. As far as he was concerned everyone – Aborigines included – was subject to the Crown. This ruling set a precedent that continues today; in Australian law, Aboriginal sovereignty was extinguished.
Yet back in Britain, the matter was far from finished. Politicians of the day debated just what right the Crown had to take the land of Indigenous people. In 1837, the Select Committee of the House of Commons on Aborigines produced a remarkable statement that held: ‘The land has been taken from them without the assertion of any title than that of a superior force . . .’
By 1841, the issue was back in the Supreme Court of New South Wales. Justice John Walpole Willis said ‘in Australia it is the colonists not the Aborigines who are the foreigners’. Justice Willis was presiding on a case that threatened to upend all the assumptions of British ownership of this land. The case, still taught in law schools today, is known as R v Bonjon (1841), it involved a young Aboriginal man accused of murdering another Aboriginal man over a customary law tribal marriage dispute. It quickly promised to become more than a murder trial: the colony itself was in the dock.
Justice Willis’s opening address ran to 8000 words and took over three hours to read out, describing the British, as ‘uninvited intruders’. He said that the ‘Aborigines must be considered and dealt with . . . as distinct, though dependent tribes go
verned by themselves’. Aboriginal people, he said, should be seen ‘either as the sovereigns or proprietors of the soil’. The settlers, he said, knew that ‘every part of this territory was the undisputed property of the aborigines’.
Justice Willis even lamented the lack of a treaty and that there were ‘no terms defined for their internal government, civilisation and protection’. The judge argued that British settlement was an unlawful act that did not extinguish Aboriginal sovereignty and that sovereignty remained intact. It was a remarkable statement from the bench, which claimed Aboriginal peoples were domestic dependent nations and that disputes among Aboriginal people should be governed by ‘their own rude laws and customs’. Justice Willis questioned whether he could even exercise jurisdiction, the case was ultimately abandoned and R v Bonjon, has never received the attention it could have. The defendant, Bonjon, was released but within a few years was dead, killed in a tribal revenge attack. Justice Willis ultimately fell foul of the political powers that be and was dismissed as a judge. Governor Sir George Gipps cited the Bonjon case among others as reasons for dismissing Willis, characterised as ‘errors in law, or of what I can only designate as his attempts to produce mischief’.
The question of Aboriginal rights and sovereignty was fiercely contested in the nineteenth century. In 1841 the British Privy Council ruled that New South Wales had been regarded as ‘a tract of territory, practically unoccupied, without settled inhabitants or settled land, at the time when it was peacefully annexed to the British dominions’.
