Dodson, Patrick --- "1999 Vincent Lingiari Memorial Lecture: 'Until the Chains are Broken'" [2000] AUIndigLawRpr 18; (2000) 5(2) Australian Indigenous Law Reporter 73

Indigenous Statements - Australia

1999 Vincent Lingiari Memorial Lecture:

‘Until the Chains are Broken’

Darwin

August 1999

The annual Vincent Lingiari Memorial Lecture was established in 1996 by the Council for Aboriginal Reconciliation. It was named in honour of Vincent Lingiari, a Gurindji stockman who in 1966 led a walk-off of Aboriginal workers and families in protest against low wages and poor living conditions on Wave Hill pastoral station in the Northern Territory. The Wave Hill walk-off received nationwide publicity, and alerted many white Australians for the first time to the appalling conditions in which Australia’s First Peoples were living in their own land. The owner of Wave Hill, Lord Vestey, tried unsuccessfully to lure the Gurindji back to Wave Hill with offers of free beef. However, they held firm under Vincent Lingiari’s leadership, founded the Daguragu (Wattie Creek) settlement nearby, and sent a petition of their grievances to the Governor-General. Vincent Lingiari received a 2500km[2] lease to Wave Hill on behalf of the Gurindji from Prime Minister Gough Whitlam on 16 August 1975. The Wave Hill walk-off is usually seen as the birth of the modern land rights movement.

The 1999 lecture reproduced in full below was delivered at the Northern Territory University in Darwin on August 27, 1999, by Patrick Dodson, who resigned from his position as Chair of the Council for Aboriginal Reconciliation in frustration with official attitudes after the election of John Howard’s Liberal-National Party Federal Government in 1996. Dodson delivered the lecture in the context of widespread dissatisfaction amongst Australian indigenous people over what they saw as a lack of Federal Government commitment to the Reconciliation process, particularly after Prime Minister Howard’s repeated refusals to issue a formal apology to Aboriginal people removed from their parents under earlier assimilation policies: the Stolen Generations. In this lecture, which has attracted widespread attention both in Australia and overseas, Dodson calls for ‘true reconciliation’ and a renewal of relations between Aboriginal and non-Aboriginal peoples. He outlines a process for achieving these objectives, and proposes a comprehensive agenda of issues which need to be clarified and resolved before reconciliation with Australia’s indigenous peoples can take place.[1]

Until the Chains are Broken

Let me acknowledge the Larrakia traditional owners of the land and the sea in the Darwin region. Let me acknowledge their ownership, custodianship and their sharing of the land.

I express my appreciation to all the Larrakia to both those that remain on the country and those that have been taken from the country but retain their rights in it.

I acknowledge the members of the Gurindji people who are also present tonight.

Let me also acknowledge the Northern Territory University and thank them for the invitation to present this Vincent Lingiari Memorial Lecture tonight.

There have been many sunsets since Gough Whitlam trickled a handful of red soil into the hand of the old man whose name and story we remember tonight.

Have we seen consistent progress since that symbolic moment? Have we continued to advance? Have we ‘gone forward together as mates?’ as the old man wished at the time? Or do we still have to learn to follow his road, to learn to stand up for rights, learn to struggle for the achievement of real recognition, learn to go forward and to do it together. Do we still have to learn the meaning of ‘mateship’? Are we still chained to the past?

At that moment in 1974, the Prime Minister of Australia recognised the rights of Gurindji people in their land.

It was also recognition of other efforts, other times, and other people. It was recognition by the Australian Government of the kind of rights that the Pilbara pastoral strikers of 1946 had been seeking during their long, acrimonious battle with the Western Australian Pastoral establishment.

It was also recognition of the 90 per cent of Australians who put up their hands in 1967 to begin the process of recognition for, and reconciliation with, indigenous Australians. It was a recognition by a Prime Minister that the work of healing the relationship between our peoples was under way.

I am sure that the two men in that simple ceremony knew the road ahead for their peoples was not an easy one. They both knew that there were many within the Australian community who felt, out of fear or prejudice, that any recognition of the rights of indigenous people threatened their own superior place in the Australian society.

The old man and his tall whitefella mate both knew that among their fellow Australians were those who believed that the Yellow Peril still sat on our northern doorstep, and that letting Aboriginal people off the reserve would lead to a breakdown in the moral fabric of our country towns and cities. They both knew more was to be done beyond the noble symbol of recognition represented by that simple ceremony. Rights and reconciliation had to be translated into justice, equality and a shared future.

But despite all their foresight and foreboding, these two men of courage and vision were prepared to place their trust in one another and, in the words of that old boss — ‘go forward together as mates’. When that bond of mateship was affirmed, all of us as Australians set off together on the road to reconciliation and recognition.

Well it’s been some journey these last 30 odd years. If the big boss from Wattie Creek were alive and sitting with his mate, the former Prime Minister, what would he think about our progress in the time since then? What would those two old leaders say?

Would the old Gurindji leader look with pleasure and pride on the Northern Territory Land Rights Act, but wonder why the National Land Rights was never achieved?

Would he wonder at the motives of those who sought to wind it back, here in the Territory?

Would Gough tell about Fraser who brought the Land Rights Act into being, of Hawke who tried but backed down on making a national act, of Keating who was pushed into the negotiation of native title rights and of Howard, trying to address disadvantage but not seeing the unfinished business — not seeing that addressing the future requires addressing the past, of which an apology with meaning is a part.

Would the old Gurindji man be proud to see the schools of his grandchildren, that for 20 years have taught the languages of his father and mother? And wonder why the same bilingual education program was now being silenced?

Would he watch with pride the young Aboriginal doctors, pilots, grader drivers, businessmen and professional women? And then look over the prison walls of this lucky country and ask his mate why so many of our young people are sitting with the shadows of despair as their only vision for the future?

Would he remember the meagre meat scraps his family had been thrown from the cattle yards, and look with wonder at the cash from wages and welfare payments now in the community?

Would he ask Gough why it is that after millions of health dollars given to government and community agencies, so many of his people were dying young and unnecessarily. Would Whitlam be silent, would Fraser, Hawke, Keating or Howard have answers?

These were things he could ask his mate, and I imagine they could have yarned about, trying to solve the problems of the world while watching the sun set.

But there would be other questions, other dreams that the old boss would hold in his heart and ponder for himself — those that he might see dancing in the embers of his dying campfire.

He would not talk to Gough of the dream of his grandfather walking carefully through the spinifex, his toes curling into the red soil, following the spoor of a wounded kangaroo. He would not be able to teach Gough the songs in his grandfather’s head that came drifting through his own. He would not be able to show him the sacred objects that make intelligible the landscape and the ritual stories of the country — the power emanating from the sacred sites placed so carefully in his own land.

He might hear the songs, see the dancing figures in the fire, hear the screams of terror as the armed horseman rode through the sleeping camp, and not tell Gough of these things, of how the wail of the mother with the stolen child echoed and echoed through the ranges in the small hours of the night. He could not tell of these things.

Gough and the old man might see some things together, but through different eyes.

They both see how difficult it was for the Noonkanbah people to convince the world of the sacredness of Pea Hill to the west.[2] But only the old man would know the strength of those Kimberley leaders, and the determination that drove the young people to set up the Tent Embassy in the land of the Ngunnawal.[3]

Only he will understand the desperation that has led so many of his people to the hopelessness of grog, drugs and petrol sniffing.

He would know, but would not be able to talk to his mate about these things. He would know the pain but nurse it in his heart. His silence would be true, even with his mate. Only those that have seen their traditional lands stolen, seen the desecration of their sacred sites, seen the theft of their fairer-skinned children, been forced to work in virtual slavery for cattle companies and been mocked and demeaned by missionaries as spiritless heathens — only they know, only they understand.

The old man would know the level of destruction that the colonisation of this land has caused for the First Australians. Gough and the Prime Ministers that sat in the big leather chairs after him cannot know of these things. Their own hearts do not echo in anguish at the coming of the night, their children have always been their own to bring up.

The old man would be silent. He would know that it is fruitless to apportion blame for the attempted destruction of our culture, our language and our traditional economy.

And nor will I cast the first stone of condemnation.

But there are many in our country today who, although unable to understand the pain and the passion of our cruel past, have a view that the recent gains, the steps towards mateship, must be turned back. They are gathering stones, apportioning guilt and demanding a return to the past.

In recent weeks they have been prominent in our media condemning the housekeeping practices of the people of Doomadgee, condemning the alcoholic bingeing in our communities. They have bemoaned the waste of their taxpayer monies to prop up wasteful black bureaucracies. And they have condemned the United Nations for suggesting that the Government’s Native Title Amendment Act is permeated with racist thinking.[4]

Be warned that these are not just the ramblings of some second rate social commentators. There is a serious move afoot in this country, by very powerful forces at the highest level of government, business and society to return the position of indigenous Australians to the situation that existed in Australia before the Wave Hill strike in 1966.

Their views are not new. When the Gorton Cabinet met in the year following the 1967 Referendum,[5] there was considerable discussion as to what measures the government should adopt to enhance the status of indigenous Australians. In the end, they decided that the provisions of any rights to our people would only lead to division and therefore the assimilation policy should be sustained for ‘our own good’.

Successive Governments from then on, to varying degrees, have tried to advance the status of indigenous Australians always on the basis that indigenous interests would be subservient to the perceived national good.

That was until 1992, when the High Court had the temerity to acknowledge something that indigenous Australians had known all along that we were and continued to be owners and custodians of the land — not its cousin, brother or sister, but owners and custodians.[6] Not kinship but custodianship.

But now you have the Commonwealth Government appearing before the Federal Court here in Darwin, arguing that the benefits that were bestowed on the Stolen Generations were intended ‘for their own good’, and far outweigh the hurt and loneliness that removal from their families caused.[7]

And when you have the same Federal Government arguing before the High Court for the Commonwealth’s right to legislate, using the race power on behalf of indigenous Australians, to diminish our rights, I am gravely concerned.[8]

Even in Mabo, the constitutional sovereignty and its arrangements were never under attack or threatened. The result of the Court’s ruling was that Aboriginal peoples would still only have whatever rights the Parliaments of Australia chose to bestow on us. But these were rights, not gifts.

Still there were those in our Parliaments that would not accept the truth of the High Court decision nor the spirit of its judgment, and sought to have the Parliament extinguish the whole notion of Native Title, or make it into something that was less than freehold.[9]

Let us be very clear.

It was only those lands that were not exclusive tenure that the Mabo and Wik[10] judgments referred to. In formulating these court rulings into statutory law, the Parliament was clearly not about returning the lands of the many tribes whose languages and laws had been wiped out in the colonial onslaught; nor returning the lands of the coastal tribes, whose resources were seen as critical to the future of the new colonies and appropriated forthwith.

It was not the return of the sacred ceremonial sites that, because of their distinct geological features, often contained the minerals so coveted by miners.

It was not a return of the land and marine resources that had sustained the indigenous economy, an economy so scorned by the colonisers as irrelevant, but which had provided the health, housing, employment and educational needs of our people for thousands of years.

It was not compensation for the acquisition by the colonising forefathers, or generosity by their heirs who benefited from their dexterous use of the law and the parliamentary systems to disinherit the Aboriginal peoples.

What it was, was another law of the Australian Crown that would be subject to modification in the future when whatever gains it may have extended to the Aboriginal peoples were considered troublesome to some vested interest or other. It was another law subject to the National Interest.

In the negotiations that ensued with the Keating Government, the Aboriginal peoples found that all leases that had been issued before 1975 were validated, and we were offered a right to negotiate over various categories of land, but not where native title had been extinguished, or if it was freehold.[11]

Nothing is guaranteed to frighten the daylights out of a people that have ruled unobstructed for 200 years than to have the whole basis of their occupation of what they love above all else, the asset of land, challenged.

But the majority of Australians, once they realised that their backyards were not under threat, realised that the imperative for the indigenous Australians was not to destroy the land-based economy of the nation, but to achieve recognition of their ownership to those lands that had been left over after 200 hundred years of the cudeba taking out his preferences. What we sought was to be given a share in the decision making processes for the land that had been retained by the Crown. Most were accepting of the decision and welcomed the Mabo judgment as a step towards reconciliation.

Not so the Parliament of Australia.

The Parliament passed their ‘Wik Amendments’[12] and withdrew the safety of national standards. The rights provided by the Keating Act were removed or severely modified. The states were enabled to adopt their own schemes, which, after passing the national disallowance test, pretty much put the rights exercisable under the Native Title Amendment Act in the hands of the state governments.

We would not have the right to negotiate our way out of the dependency created by previous policies and regimes. The protection of native title and the right to negotiate provided by the Keating Act were removed or entrusted to the generosity of the state governments who, in the main, had helped Howard craft his Ten Point Plan.[13]

Vincent Lingiari would still be as subject to Government whim today as he was when the big fella poured that red soil into his hand and told him it was his and his peoples’ for time immemorial. And then gave him a lease. It would be some ten years before the freehold under the Northern Territory Land Rights Act would be provided.

For the past nine years or so, we as a Nation have been considering the Reconciliation process. We have had many decent Australians work hard to help a national mind shift. There is still much to do.

In the middle of that, we have had the national Human Rights Commission Inquiry into the practice of removing the children from their mothers, their peoples, their country, their culture, to the extent that the Inquiry described this activity as genocide.[14]

The nation has still not come to terms with this reality. There has not been an official apology from the Parliament despite recent events. The Federal Parliament has expressed its Paddy McGuinness[15] version of regret.

It has not said sorry to the Stolen Generations or offered to deal with the issue of restitution in any other way than to suggest, that the Stolen Generations try their luck in the courts where the same sincerely regretful government will continue to oppose them.

Those individual Aboriginal people, who were taken away, now have to prove that the act of genocide was real, and that they were lucky to have survived.

Perhaps this inability to seize the moment highlights just how entrenched the assimilation mind set is when we are confronted with the realities of how the Aboriginal peoples were treated by governments. We are still chained to our thinking and continue to seek the station manager’s nod of approval.

Reconciliation is a matter that takes place at different levels, if it takes place at all. The quality of our reconciliation will be dependent upon our capacity to embrace all its aspects, however difficult each may seem.

There is the personal level. This is the level of human encounter.

If there is ignorance, hostility, discrimination or racism experienced, then reconciliation will mean very little, but if there is concern, solidarity, inclusiveness and some respect, then reconciliation will have some positive responses. The importance of reconciliation will range up and down over how any of these encounters dominates in the lives of both peoples, Aboriginal and non-Aboriginal.

Then there is the reconciliation at the social level.

These are the social policy matters that have to do with health, housing, education, and employment, welfare and an economic base.

Reconciliation here is about whether the particular government or the Aboriginal people themselves have done enough, or anything, to relieve the concerns that hit Aboriginal people so hard day after day.

It is also about the shared responsibilities and obligations we have in the society.

Then there is the reconciliation of governance.

This is about governments making laws that remove rights, or enhance them. Fundamentally it is about the content of the legislative enactments that effect or impact upon the Aboriginal peoples.

Finally, there is the reconciliation of recognition.

The sovereign position that Aboriginal peoples assert has never been ceded. Recognition starts from the premise that terra nullius and its consequences were imposed upon the Aboriginal peoples, and certainly there was never any choice given to the Aboriginal peoples concerning the Constitution or the rule of law.

To have any substantial reconciliation, we must encompass all these aspects, no matter how challenging that may seem. These foundations of reconciliation cannot be made of concrete that lacks the binding mortar of truth.

The Council for Aboriginal Reconciliation is in the final stages of its current existence. It will soon make recommendations to the Parliament about the future of reconciliation, specifically whether a document or documents of reconciliation will advance the Reconciliation process.

How we could contemplate signing off on any Document of Reconciliation while our Government stands accused of racial discrimination by the UN Committee on the Elimination of Racial Discrimination is absurd to me.[16]

My considered view is that a comprehensive framework agreement is needed, and that it should be legislated into existence.

It is needed for two additional reasons, what I will refer to as the unfinished business. Firstly to deal with the conditions of our existence as Aboriginal Australians within the Australian society and the second is in order for us to survive as Aboriginal peoples in keeping with our own laws and customs within our own traditions and values.

This is our Aboriginal unfinished business, questions concerning the survival of our being as a consequence of having been subjugated and disadvantaged through the necessities of defending our interests and meeting our needs since the arrival of Governor Phillip. ‘To be Gurindji’ in the words of Vincent Lingiari.

Such an agreement should define, and set out a path, to resolve all the matters of unfinished business between the Parliament and the Aboriginal peoples.

It will also need to extend the period of time beyond the current Olympian and millennium sunset clauses and establish an independent body to facilitate and mediate the issues towards resolution.

Vincent Lingiari would not have taken such a cumbersome path. He and his people went on strike not only for the wages and conditions, but also for their right to be Gurindji. To have their land back under their responsibility and the capacity restored to enjoy the benefits flowing from the ancient law and custom of the Gurindji.

The exploitative employment conditions, the sexual abuse, the inhuman living conditions, and the stripping of their dignity provided no other path than to stand up to the cudeba, and to tell him that they would no longer be treated as dogs. It was time to stand for what was rightfully theirs. There was no further deprivation and indignity to be experienced from the cudeba.

He did not stand alone; he had mates and bosses.

In 1966, the Gurindji leader had meetings with the Aboriginal organiser for the North Australian Workers Union, Dexter Daniels in Darwin, while he was there recovering from being kicked by a donkey. They had talked about how best to deal with the conditions on Wave Hill. Dexter talked about the delay in equal wages until December 1968.

Here was a very sobering lesson for the Gurindji.

No Aboriginal stockmen were called to give evidence in the union case beginning in 1965. This enabled the Conciliation and Arbitration Commission to scope their ruling in March 1966 to the government’s policy of assimilation, and to accept the assertions of the pastoralist that the Aboriginal workers had no real appreciation of the meaning of work because of ‘tribal and cultural reasons’ and therefore should not be paid the same wage as the white stockmen.

Whether Dexter had ever heard of the great strike of the Pilbara Aboriginal people, or had told Vincent about the Aboriginal people at Newcastle Waters who had already gone on strike because of wages and conditions and who were also waiting for justice to come, we do not know. But he explained to Vincent that the strike was the proper way to make the cudeba listen to his concerns. Vincent, when he returned to Wave Hill knew that there was some support from outside the compound on Wave Hill.

But in the context of what that old boss Vincent was trying to achieve, and what the Conciliation and Arbitration Commission and the Vesteys mob were compromising on, Vincent must have been under no illusions about just how hard the search for permanent justice would be. It would be very hard.

The rulers were saying ‘for our natives and their own good, because we best understand what they need’. It had nothing to do with equal justice, even though in the future Aboriginal stockmen would be included in the award.

They said to us ‘you don’t use your land like us, or how we want to, so we will make better use of it’. Then they drove us away from our lands and took away our responsibility under the law to protect and nurture the land.

They said to us ‘your languages make no sense’. So they gave us a new one, but would not give us schools in which to learn this new language.

They said to us ‘you have no work ethic, so you shall work for nothing’ and they indentured us and brought us back in chains when we ran away from their cruelty.

They said to us ‘you have no religion’ and they offered us several versions of their own.

They said to us ‘your mixed race children will not be safe and happy with you, so we will take them and train them to be our servants’ and alienated several generations of us from our birthright.

All these things were imposed upon our people because the governments of the day believed that these things are ‘for your own good’. Why they didn’t think these things would be just as good for their children and themselves I’ll never understand.

Vincent and the other Aboriginal people on the pastoral properties in the Northern Territory were asked to swallow this type of rhetoric for many years, and then live under its mystique for the rest of their existence. The young Aboriginal people of today should not be asked to have their rights treated in this way and their young white mates should not be burdened with this unutterable shame.

Millions of non-indigenous Australians have joined with us in the search for a better relationship based on equity and justice. Australians at every level of our society have put up their hands to be counted as supporters of a nation that holds as its core value a society based on mutual respect, tolerance and justice.

This has been the approach many Aboriginal people have been prepared to adopt in seeking to achieve reconciliation between our peoples.

I have seen at first hand the benefits that the Australian community derives from the achievement of local acts of reconciliation within communities throughout Australia; how local governments can function more cohesively, how small rural communities can join together to obtain infrastructure resources.

How the coordination of health services can be enhanced in a region by working together cooperatively within a spirit of reconciliation.

But more importantly, I have seen what can be achieved among our young Australians when they decide that the values of division and conflict promoted by previous generations are not the values that they seek to carry into the 21st century.

I for one believe that the voters of 1967 and their children are prepared to defend the values of tolerance, acceptance and respect.

But rest assured that the spirit of the 10 per cent that rejected the basic decency of the Yes vote in 1967 has not been swallowed up in the pit of their intolerance. They have taken new guises. They present themselves as moral champions whose only desire is to save indigenous Australians from the iniquity of the welfare system and to provide young indigenous Australians with a future imbued with all the trappings of successful entrepreneurs. Then there will be no need for membership of a unique people whose values are considered outmoded and irrelevant in the modern world. All of this for our own good.

The tools they use to promote their argument are not the coarse arguments of racial intolerance that sufficed in 1967.

They present their arguments in the guise of academia and legal sophistry.

They use the vehicles of institutions created to promote their particular views.

The hard men of Vesteys still walk the corridors of power.

What can we learn from the Wave Hill strike and its entire context?

The very first thing that an Aboriginal person learns is that there has to be something more than just trust in the Government to look after our interest.

There has never been a comprehensive challenge to the ‘for their own good’ approach. Every facet of government policy is premised on this same paternalistic approach.

When Vestey’s boss, Tom Fisher, tried to win Vincent and the Gurindji back to Wave Hill, and to his regime of serfdom with fresh beef. Vincent and his people, even though they were hungry, told Fisher to take his beef back to the station. Vincent was not to be bought off. Neither should the young Aboriginal leaders, being feted as a new breed of pragmatist in tune with the global necessities of the modern world, be lured into vanities of illusionary power and influence.

If a boss in the law can decline two bullocks a week to defend his principles, then we who follow should consider with great care any deals that could diminish the principles of our senior holders of the law.

Neither should our non-indigenous supporters accuse us of an inability to compromise with new governments and its leader. If our bosses thought enough of the law, and their responsibilities to the land to lead their families into exile and uncertainty, then the least we can do is honour their courage and integrity by defending the principles of our law, which runs with the land.

It may be a harsh thing to say, but many actions of Australian governments have given Aboriginal people little faith in the promises governments make in relation to protecting and defending the rights of indigenous Australians. That is why we need a formal agreement that recognises and guarantees the rights of indigenous Australians within the Australian Constitution.

An agreement, so that the politically partisan games can be stopped and the real issues between us put on the table.

Such an agreement would be to put the matters of unfinished business that underlies the causes of discord and division that are between us into a framework agreement.

This framework agreement could be made formal by an Act of the Parliament and ultimately matters flowing from it enshrined in our Constitution.

This is needed otherwise it will be no more than that of a gesture, a matter of Government expediency. If there is no agreement to be bound in this manner, then we can be sure that the hard-won gains of the past will be placed at serious risk, if not certain loss. The assimilation process will have won out. Aboriginal peoples can then stop considering themselves as unique to Australia. And for this we will be able to thank those from amongst us that have become so acculturated that the distinctions are no longer meaningful.

It would have been like telling the Gurindji that they were just a class of stockman without any other rights than those that the Arbitration Commission was prepared to give to them. The Gurindji decided in the course of the strike that their relationship to Vestey and the Government must be founded upon their right to determine their own priorities, the directions of their lives and their own affairs.

As a nation we must be prepared to recognise that there is unfinished business between us and that the only way that this can be resolved is through a formalised agreement between our peoples; an agreement that decent Australians have to help to build in a fair, respectful and just manner.

We can do it together if we are willing to have a serious try at achieving something worthwhile for our country. If we are not willing, or decide that it is all too hard, then to our children we will bequeath a nation without pride, or dignity unfulfilled and diminished.

The achievement of an agreement will call for courage and persistence. Because it is about principle and not short-term expediency, there is no room for fear or appeasement in this quest. It does not have to be achieved by 2001.

Too often we are told that constitutional change is very difficult and that the best we can hope for is two lines in a preamble, negotiated by a Prime Minister, a poet and a minor party in the Parliament.[17] Surely as Australians we deserve better. All Australians should reject any preamble to our national Constitution that denies the true status of indigenous Australians as the custodians and owners of the land, and suggests that we are nothing more than gardeners at the station homestead.

The rights of any group in the society, be they women, ethnic groups, returned service people, the terminally ill or young people, should never be treated with such disdain. Vincent Lingiari would rather go hungry than accept the enticements of free beef that were the price for his people giving up their struggle.

It is not about words; it is not about getting into step with the thinking of a new government. It is not about making sure that Australia has a piece of paper to show off at the Olympics. It is purely and simply about recognition of Aboriginal people as a unique people within the nation of Australia with rights and responsibilities.

There is no right more fundamental to Aboriginal peoples than the right to self-determination and the big man Vincent knew if it was not exercised, then it would be taken away by government.

We can take advantage of the remaining months of the formal Reconciliation process of the Council for Aboriginal Reconciliation to make sure that the Council is encouraged to recommend to the Government that there be an agreement with the Aboriginal peoples. There have already been painstaking community consultations and reports written by ATSIC,[18] the Human Rights Social Justice Commissioner, and the Council itself that have addressed many issues, including:[19]

• constitutional reform;
• political representation;
• reparations and compensation;
• regional agreements;
• indigenous self-government;
• a treaty;
• cultural and intellectual property;
• recognition of customary law; and
• economic development.

Moreover, a significant number of the Aboriginal peoples in Australia continue to assert their unextinguished sovereignty. For them, no settlement will be possible until Australian governments are able to grapple with fundamental and difficult questions concerning the basis of the relationship between indigenous and non-indigenous peoples in Australia.

So there is much unfinished business. Vincent Lingiari started us on the road to reconciliation. What is it that we Aboriginal peoples want at the end of this century that will provide the substantial reconciliation that will heal our country? To make clear what some of these matters might be on the reconciliation road let us consider the type of petition we would construct today in keeping with the spirit of Vincent Lingiari’s petition to Lord Casey.

It may read some thing like this:

Equality

Aboriginal peoples have the right to all the common human rights and fundamental freedoms recognised in national and international law, as well as to our distinct rights as indigenous peoples.

Distinct characteristics and identities

Aboriginal peoples have the right to maintain and develop our distinct characteristics and identities, whilst taking part in the life of the country as a whole. This includes the right to identify as indigenous.

We shall not be subject to:

• actions which threaten our distinct cultures and identities;
• the removal of our children from our families and communities;
• taking of our lands and resources; or
• any other measures of assimilation.

Self-determination

Aboriginal peoples have the right to self-determination, a right to negotiate our political status and to pursue economic, social and cultural development.

Law

Aboriginal peoples have the right to our own law, customs and traditions, and equality before the national law.

Culture

Aboriginal peoples have the right to our unique cultural traditions and customs. This includes aspects of our cultures such as designs, ceremonies, performances and technologies.

We have the right to own and control our cultural and intellectual property, including our sciences, technologies, medicines, and knowledge of flora and fauna, arts and performances. Our cultural property taken without consent shall be returned to us.

Spiritual and Religious Traditions

Aboriginal peoples have the right to our spiritual and religious traditions. This includes the right to preserve and protect our sacred sites, ceremonial objects and the remains of our ancestors.

Language

Aboriginal peoples have the right to our languages, histories, stories, oral traditions and names for people and places. This includes the right to be heard and to receive information in our own languages.

In courts, other proceedings and in the criminal justice system, we shall have the right to understand and be understood, through interpreters and other appropriate ways.

Participation and partnerships

Aboriginal peoples have the right to participate in law and policy-making and in decisions that affect us. This includes the right to choose our own representatives. Governments shall obtain our consent before adopting these laws and policies.

Governments shall negotiate partnerships with Aboriginal peoples’ representative bodies at local, regional, state and national levels.

Economic and social development

Aboriginal peoples have the right to determine priorities and strategies for economic and social development. This includes the right to determine health, housing, and infrastructure, and other economic and social programs and, to the extent possible, to deliver these through our own organisations.

There shall be recognition of the importance of empowerment for decision-making and development at regional and community levels.

There shall be indigenous participation in all regional-planning processes.

Aboriginal peoples shall have full access to, and equitable outcomes from participation in relevant mainstream programmes.

Special measures

Aboriginal peoples have the right to special measures to improve our economic and social conditions. This includes the areas of employment, education and training, housing and infrastructure, and health.

Education and training

Aboriginal peoples have the right to all forms and levels of public education and training.

We also have the right to our own schools and to provide education in our own languages.

Aboriginal children living outside communities shall be able to learn their own cultures and languages.

Land and resources

Aboriginal peoples have the right to own and control the use of our land, waters and other resources.

This includes the right to return of land and resources taken without our consent. Where this is not possible, we shall receive just compensation.

Governments shall obtain our consent before giving approval to activities affecting our land and resources, including the development of mineral resources. We shall receive just compensation for any such activities.

Self-government

As a form of self-determination, Aboriginal peoples have the right to self-government and autonomy in relation to our own affairs. This includes the right to determine the structure and membership of our self-governing institutions.

Governments shall facilitate the negotiation of self-government and regional agreements.

Constitutional recognition

The Federal Parliament shall initiate processes leading to concrete constitutional change to recognise and protect the special place and rights of the Aboriginal peoples in the Australian polity.

Treaties and agreements

The Federal Parliament shall enact legislation establishing a framework for the negotiation of agreements with the Aboriginal peoples.

Governments shall respect treaties and agreements entered into with Aboriginal peoples.

Ongoing processes

The Federal Parliament shall establish a discussion, research, information and negotiation forum to promote public awareness and to draft national legislation enacting principles of recognition, guidelines for public policy, and the framework for negotiation of agreements referred to above.

All of these matters have to do with the various levels of the way the Reconciliation process is capable of operating and the complexity of the challenge of its totality.

This has to do with the two broad dimensions that I outlined earlier, the Aboriginal Australian dimension and the Aboriginal dimension.

It recognises that Governments are elected for periods of three years, which, more often than not end up being less. It recognises the vagaries of human nature that cause politicians to focus on how they can get elected next time around.

It recognises that politicians focus on the short, rather than the longer term. It recognises that the short term is not necessarily compatible with the long-term.

It recognises that ministers are often rotated among portfolios every few years, and, it recognises that it is not possible for those people to become fully acquainted with the challenge of Aboriginal Affairs within such a short time frame, however desirable their motives or loyalty to our cause.

We need now to develop long-term solutions for our future.

To paraphrase the Governor-General, Sir William Deane, from his inaugural Vincent Lingiari lecture: I am convinced that true reconciliation that is not based upon truth will leave us as a diminished nation. And I, like the Governor-General, am convinced that such reconciliation is possible.

Despite the words of his whitefella mate:

Vincent Lingiari, I solemnly hand to you these deeds as proof, in Australian law, that these lands belong to the Gurindji people and I put into your hands part of the earth itself as a sign that this land will be the possession of you, and your children forever.

Vincent and the Gurindji had to struggle for a further ten years against being put back into the chains of welfare, the threats of the pastoralist and the government’s opportunism before his people were given freehold title under the Aboriginal Land Rights Act 1976. Maybe the security of this form of title itself is now at risk. Who will then stand with the Gurindji and Vincent Lingiari?

It is soon, the Ingarliwa (blue bonefish) time in Yawuru country with the calming of the east winds that come from the deserts, the dry cool winds of winter. With the new moon will come the offshore ocean winds that will bring the rains to the desert later in the year. A sharing of the gifts of the land and sea. This has been the way for millennia. The passing of the year 2000 and the Olympic Games in Sydney will not change the cycle of the seasons. Nor will our responsibilities to defend and secure our rights in the land and sea, or our responsibilities to defend our law and culture diminish.

Vincent Lingiari would never have compromised his responsibilities in the land, even to accommodate the political needs of his mate. He would never have relinquished his responsibilities in the law or his responsibilities in the leadership of his people for the sake of free meat from Lord Vestey.

Then neither should we be prepared to relinquish our responsibilities to defend and secure the legitimate rights of future generations of young indigenous Australians, by moving from one compromise to another, because of the intransigence of a Government that declines to recognise us as the first Australians with our own unique rights and responsibilities.

Finally, I would just like to quote to you from the last paragraph of Frank Hardy’s 1972 book The Unlucky Australians. I offer it to you as a challenge: should we be content to allow the house of recognition and reconciliation for which the Gurindji and others have laid the foundations, be left half finished by builders not committed to the job.

In the words of the Unlucky Australians:

Will I, having written it, be free to turn to other books and obsessions, will you, having read it, be free to turn to the pursuit of happiness, will the lucky country remain free while the unlucky Australians are in chains?

Kulia![20]

[1] The text of the judgement is also available at <www.austlii.edu.au/cgi-bin/disp.pl/au/special/rsjproject/rsjlibrary/car/lingiari/ 4dodson.html>.

[2] Despite objections from local Aboriginal traditional owners, CRA mining company carried out oil exploration and drilling work near a sacred site on Noonkanbah station in the Pilbara region of Western Australia in 1980, resulting in nationwide protests.

[3] The Aboriginal Tent Embassy set up by Aboriginal activists on the lawns in front of Parliament house in Canberra in 1972.

[4] Native Title Amendment Act 1998 (Cth);

[5] An overwhelming majority of Australians voted in the 1967 Referendum for constitutional amendments to allow firstly, the Federal Government to pass laws with respect to Aboriginal people in the States, and secondly, to allow Aboriginal people to be included in the national census for the first time.

[6] Mabo [No 2] [1992] HCA 23; (1992) 175 CLR 1.

[7] Cubillo v Commonwealth of Australia [1999] FCA 518.

[8] Kartinyeri v Commonwealth [1998] HCA 22.

[9] Above n 3.

[10] Wik (1996) 187 CLR 1.

[11] Native Title Act 1993 (Cth)

[12] Above n 3.

[13] (1997) 2 (2) AILR 284.

[14] Bringing Them Home: The Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Canberra AGPS 1997.

[15] A conservative newspaper columnist.

[16] The CERD Committee considered the Australian situation at its 54th session in March 1999 and found on 18 March 1999 that the 1998 amendments to the Native Title Act 1993 (Cth) breach Australia’s obligations under the CERD Convention. (1999) 4 (2) AILR 140.

[17] The Federal Government proposed in a referendum in October 1999 that a preamble be inserted into the Constitution recognising among other things Aboriginal kinship with the land. The draft, which was the result of collaboration between Prime Minister John Howard, the poet Les Murray and members of the Australian Democrats, was rejected.

[18] Aboriginal and Torres Strait Islander Commission.

[19] The three reports published in March and April 1995 were, in sequence, Going Forward: Social Justice for the First Australians, A Submission to the Commonwealth Government from the Council for Aboriginal Reconciliation, Canberra [(1996) 1(1) AILR 67]; Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures, Aboriginal and Torres Strait Islander Commission (ATSIC), Canberra [(1996) 1(1) AILR 76]; and Indigenous Social Justice, Vol 1, Strategies and Recommendations, Submission to the Parliament of the Commonwealth of Australia on the Social Justice Package by Michael Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity Commission, Canberra [(1999) 4(3) AILR 39]. See also P Jull, ‘An Aboriginal policy for the millennium: the three social justice reports’ (1996) 1(1) AILR 1.

[20] Kulia is a Yawura word meaning ‘things are finished’.