2001 - Time for a treaty? Some reflections

Rod Hagen

August 2001

25 years ago

A little more than 25 years ago I began work as the first anthropologist employed by an Aboriginal organisation in Australia. No one else wanted the job at the new Central Land Council in Alice Springs. I was a very young, very naïve, new graduate, brought up to believe in freedom, justice, and equality; and intellectually and emotionally uncertain about how to deal with the contradictions between Marxist dialectical materialism and the power of Bertrand Russell’s perceptions of what was right. I’d toyed with an interest in South American politics before being convinced by a Macquarie Uni academic that what was going on in Australia in Aboriginal communities was at least as important. I’d accordingly written an honours thesis about Australian race relations that , for the sake of academic legitimacy, had focused on phenomenological aspects of black /white relationships on this continent.

After a 12 hour flight on a Focker Friendship I found myself in Alice Springs, in a world where the 1300 to 1400 residents of 17 fringe camps shared 1 water tap, no houses, no toilets and next to no money; a place where kids clambered around the local rubbish dump looking hopefully, but usually forlornly, for a discarded rusty tin of beans; a place where black adolescents were being tarred and feathered by white vigilantes for the slightest misdemeanor; where bricks were being thrown through the windows of any organization that represented "blackfellas" ; where a jilted white husband found it all too easy to pass the blame for the murder of his wife on to a group of "bush" aborigines who happened to be camping close to the place that he dumped her body.

Just before the end of 1975 I had moved out to a settlement called Amoonguna a few miles out of Alice Springs. Here a number of families of white Department of Aboriginal Affairs officers lived in solid 4 bedroom brick houses while the 250 Indigenous members of the community lived in "dwellings" ranging from corrugated iron humpies to "transitional" housing intended, even at that late stage to assist in the "assimilation" of the occupants. The "transitional housing" provided an interesting study into the nonsense implicit in much of the official policy of the day. Families who could "demonstrate" their ability to keep their children clean and the floor swept in a corrugated iron humpy graduated, on the whim of the DAA manager, to the "Kingstrands" . These were professionally built ten foot square corrugated iron boxes set on a larger concrete slab and surrounded by a small verandah - impossibly hot inside in summer and freezing cold in winter. No running water or toilets of course and no possibility of relocating them when necessary for hygienic or climatic reasons.

If you showed you could keep a Kingstrand clean and tidy for a few months, if you were lucky and the appropriate white official liked you, you might make it to the next ‘stage" house. These were essentially a bricked in Kingstrand &emdash; still unbearably hot in summer , but a little warmer in winter. Some even had running water &emdash; cold only of course.

At the top of the scale were the stage three houses. There were only a few of these and they still lacked some of the refinements of the houses provided for Department of Aboriginal Affairs white staff (like built in heating and air-conditioning and an electricity bill paid by the Department!), but they came with bedrooms, electricity, toilets and hot and cold running water. (People found that they could overcome the heating problem to some extent by sitting around in front of the open oven in winter.) These houses were intended as the elite dwellings for the families who had members on the community council &emdash; a body with almost no power but a lot of responsibilities.

By the time I arrived on the scene, in the dying days of the Whitlam government, the rules had been relaxed a bit and the restraints on numbers in the stage 3 houses had been relaxed. In one them lived a man called Wenten Rubuntja. Wenten went on to occupy many significant positions as the years passed &emdash; first as chair of the Central Land Council, then the chairman of the NT Sacred Sites protection authority and finally as member for the National Reconciliation Council. He is also an artist of note, with paintings hung in the Australian Parliament House and even the Vatican . He’s met just about all of the Prime Ministers and Governers General of Australia over the last quarter of a century, not to mention the Pope and the occasional royal dignitary

Back in those days though he was on the staff of Amoonguna as a cook. His 3 bedroom house usually had about 30 or 40 people living in it. As he said, they had nowhere else to go and no money for food or rent or clothes if they did. His wage of around $150 a week before tax was the only one coming in . It was supplemented by payments for child endowment and one old age pension. None of the young men and women were eligible for unemployment benefits, because you had to be able to demonstrate an appropriate work history to receive such things, though , of course the truth didn’t stop the tall tales around the redneck quarters of town and in the local newspaper about Aboriginal people living the life of Reilly on social security benefits any more than it does today.

At about this time I did a survey of the income of Aboriginal people in various settlements and in the fringe camps around Alice. There were, in all, twelve people employed out of the 250 at Amoonguna (though most of these lost their jobs when the incoming Fraser government cut funding in its first months in office &emdash; Fraser certainly became a significant friend of Aboriginal groups in later days, but during the early months of his government this was far from apparent ). Of the 1400 or so people living in the fringe camps around Alice 4 had permanent jobs and two people received unemployment benefits. The only other income for these people consisted of old age pensions (not all that common in a community where the average expected life span was in the low 50’s &emdash; even less for some sections of the community) , child endowment and money from the sale of art and artifacts (usually at extremely low prices).

This, then was a time of desperate poverty, of extremely poor physical conditions and of overt, often institutionalised, racism. The situation in Alice Springs at that time was not too different from that in many country towns &emdash; not just in the most remote areas, but in much of rural Australia. Some places were worse, some better, but poverty and overt racism were the common experience of indigenous groups just about everywhere.

Yet despite this, it was a time of great hope. The Gurindji strike, the Gove case, the pastoral workers equal wage case, and the 1967 referendum had put Indigenous issues on the map in a manner never before seen. Whitlam’s embracing of Indigenous issues, and in Alice Springs especially, the results of the recently completed Woodward Royal Commission into Land Rights had led to a new level of self- assertion and confidence.

The new legal aid services , which were springing up in many parts of the country and which, at that time, attracted many of Australia’s most able young lawyers, meant that automatic guilty pleas regardless of the fact s of the case were no longer the norm, and that many of the more dubious practices of both police and local magistrates were being questioned for the first time.

New health services were being established too, in some areas, where people could obtain treatment without having to put up with the patronizing sneers and other atrocious treatment that they often met in the mainstream health system. The new centres were also much less likely to pose a threat to families , all too well aware that an over zealous official could sever children from parents forever with a stroke of the pen.

This then was a period of both desperation and hope.


Twenty five years on

I’ve indulged in this fairly lengthy introduction of reminiscences because I want to make sense of where we are today. Twenty five years on it is hard to look back on it without wondering why, though the desperation is less extreme, so many of the hopes have remained unfulfilled .

Through the late 1970’s and the beginning of the 80’s many of the initiatives from the mid 70’s took real form, and had a significant impact on some of the more obvious problems. Houses began to be built, water supplies were provided to the camps around Alice Springs .

Wenten Rubuntja , the former Amoonguna cook, played a huge role in negotiating an agreement that provided appropriate land around Alice Springs for all of the dozen or so different language groups who camped around town. His own move from DAA underling to prominent leader in many ways epitomised the changes that were occurring at the time.

On the land rights front vast changes occurred in the NT with all of the old reserves handed over to the traditional owners and other very extensive areas returned after successful claims under the NT Aboriginal Land Rights Act.

In South Australia the Pitjantjatjara successfully obtained the return of much of traditional territory after a protracted campaign. Towards the end of this period even the Queensland Act, which had placed almost total control over the lives of Queensland Aborigines in the hands of officials , was repealed.


Victoria - the state where the "land rights era" never really began !

Things were moving more slowly in the south east and west though. Nookambah , despite a huge public campaign, was a major loss for Aboriginal people in Western Australia. In NSW a limited land rights act was passed, but in Victoria the only "gains" involved the hand over of the old reserves at Framlingham and Lake Tyers &emdash; places in which there already existed a significant level of Indigenous control and part of the old Lake Condah Mission was also purchased in the aftermath of the Portland Alcoa smelter dispute. The proposed Victorian land rights legislation collapsed in a heap after internal wrangling when it reached the conservatively dominated upper house. Victoria, for all its liberal pretensions, remains the only mainland state without any land claim processes!


The late 80's - small solutions offered for large problems

The ultimate failure of Hawke’s much vaunted national land rights legislation and the gradual dismembering of the proposed national heritage protection legislation was a blow for many people outside of the remote parts of the Northern Territory and northern SA.

The "big picture’ items got pushed into the background. Governments looked for small scale solutions, no doubt in part to stop people asking for more substantial ones. (There were some similarities here with the arguments from conservative politicians today about focusing on "practical" solutions) Instead of substantial gains during this period in Victoria a large number of small local organisations received some measure of government support to deal with a wide range of matters from health to housing to cultural heritage. A similar pattern developed in NSW and Queensland. Though little headway was made with the "big picture" questions, large numbers of small "power bases" were established to deal with the many immediate problems that these communities were facing.

By this time most of the major land gains in the remote areas had already been made. At least 80% of the successful land claims and transfers in the Northern Territory and South Australia (in terms of area) had already been completed by the mid 1980’s. There has been precious little land returned anywhere in Australia since that time.



It was only with the historic victory in Mabo that things seemed to start moving forward again. Mabo initially provided a huge symbolic lift for Indigenous groups in many parts of Australia. Here was something which seemed to provide a real opportunity for action regardless of the state of play in the State or federal parliaments. This was recognition by the highest court in the land of the prior rights of the indigenous community. This didn’t look like something that could be easily taken away.

The reality, to date has proved to be very different. The political brawling over the decision and the complexities and unanswered questions posed by the Mabo decision itself created a period of delay during which little happened. Communities also began to realise that the decision could pose problems for at least some sections of the Indigenous community.


The creation of division - "traditionals" versus "historicals"

In many parts of Australia, particularly the longer white occupied areas, one today meets with tensions between people who are sometimes labeled as "traditionals" and "historicals". "Traditionals" are generally seen as those who can demonstrate that their ancestors lived in the area concerned around the time of white occupation. "Historicals" are those who have arrived in the area more recently.

In some instances one also meets with conflict based on factors such as residence. Those who have been long absent from an area may be seen negatively by those who have lived there for most of their lives, even though the former group may have an ancestral connection with the area. In some cases the two issues may become combined, with long absent "traditionals" and long residing "historicals" at loggerheads.

This conflict has clear historical origins, stemming fundamentally from white occupation.

The occupation of Indigenous territory by whites imposed new demands and resulted in demographic changes. While people sought to maintain their connections to traditional lands, limitations on people’s choice of residence created a situation where some found themselves in "Diaspora’ situations &emdash; forced to live elsewhere but dreaming of home.

Even by the end of the 19th century a picture was beginning to emerge in many areas which was to hold sway for many years:


This pattern continued to develop through much of the 20th Century, as assimilationist policies continued to hold sway. Tensions sometimes simmered for many years, fueled by the differential treatment of groups by white management on missions and reserves. (I am skipping very quickly and simplistically over a long period of time here, but the general proposition holds good).


Sometimes when you start to fix one problem , it makes others more apparent.

When, in the 1970’s, Australian government policy on Indigenous matters began to throw off its primitive 19th century "soothe the dying pillow and take the children" origins, with the election of the Whitlam government and profound changes in the international acceptability of such things, many of the problems which earlier policy had created began to come home to roost. Inevitably Indigenous groups, long nursing grievances about such matters, found themselves having to deal with the problems which had been created.

Land Rights, Mabo and Native Title gave new urgency to the resolution of these problems, changing some of the underlying "ground rules" which official policy had imposed.

The Mabo decision itself emphasised the existence of "traditional laws and customs" in the proof of Native Title. This rapidly flowed on to arguments within some communities about the balance of power within them

"Traditionals" in many areas who had resented their loss of rights and control, and their lack of recognition, saw the legislation as an opportunity to assert their traditional interests and position. "Historicals" and people who had been long term residents felt that a threat was posed to their life long communities. In some cases such groups had been living the area for more than a century and would, in "classical" times, have been fully incorporated into the local group by this time, through processes such as birth affiliations and intermarriage.

In many areas the development of a large number of comparatively uncoordinated organisations responsible for different aspects of life (housing, health, heritage protection, legal assistance, political action, land rights etc.) allowed for the emergence of a variety of power bases, some seen to have been dominated by those with "historical" connections and others by those with "traditional" connections.

Divisions of the type which we see here are fundamentally the result of the colonial and post colonial pressures imposed on indigenous communities as a result of occupation of traditional lands. Unfortunately, once created they are hard to set aside, though many communities are seeking effective ways of putting them to rest. Engaging in the legal processes associated with Native Title claims however inevitably brings them to a head.

Courts, governments and other bodies charged with responsibilities in such areas need to be acutely aware that problems which have been a hundred and fifty years in the making are likely to take some time to resolve. Patience in the face of the inevitable delays and difficulties is clearly required. The time involved pales into insignificance when compared to the matters which provided the genesis of the problems. Courts should also be realistic enough to realise that perfect harmony is not a common state of human existence.

All too often those opposed to Native Title in the broader community began to make use of any divisions. Local newspapers, politicians and some mining companies began to actively support one side or the other in public disputes, adding greatly to their intensity. Lawyers acting for parties opposed to claims have made great play of such matters whenever they have had the opportunity.

When the Howard Government came to power its "10 point plan" amendments to the Native Title Act created yet another set of processes which delayed and confused resolution of such matters. By introducing new registration requirements, not directly tied to the definition of Native Title, it produced fertile ground for further disputes. Far from introducing greater "certainty" the new claim registration procedures have resulted in the dramatic prolongation of claim processes.

The Indigenous representative bodies with the initial responsibility for assisting in the resolution of such matters found themselves tied up attempting to satisfy the new registration test requirements in order to obtain the "right to negotiate" with mining companies. The real process of developing claims has slowed to a point where, nearly a decade after Mabo, most representative bodies have yet to actually mount a case in court aimed at establishing native title. The courts, now facing a huge backlog of cases initiated by mining applications, are placing increasing pressure on the representative bodies to proceed to trial in situations where only minimal research has been undertaken and where, in some cases, disputes are far from resolved. The staff of the representative bodies , overwhelmed by the processes involved, in many cases have little hope of genuinely achieving their aims.


Mabo's failure to deliver

Perhaps the largest single factor in the growth in internal factionalism and dispute since Mabo and the passage of Native Title Act in 1993 has been the failure of Native Title to actually deliver anything of lasting importance. The major mainland "test cases" have all resulted in equivocal situations, where the final results still depend on further hearings or High Court appeals. Instead of perceiving real possibilities for some genuine degree of ‘land justice" Indigenous groups have been left with little to gain other than short term agreements relating to payment for mining or exploration activity.

The loss of the Yorta Yorta case, in the Federal Court at least, sent shock-waves through many communities. The Yorta Yorta are seen by many Indigenous people in south eastern Australia, quite rightly in my view, as one of the strongest and most coherent communities in the region with an indisputable connection to the claimed lands. They remain so today, despite the immense difficulties which they have faced, but many members of other groups felt after the initial Yorta Yorta loss that there was little point left in putting up with the stress and pain involved in mounting a Native Title claim.

For many of those in the longer settled areas, the Yorta Yorta High Court appeal is the last throw of the dice. If they lose, it will cease to be seen as a relevant solution, and communities are likely to seek more direct political solutions, or other legal avenues, for the recognition of traditional rights.

The lack of real opportunities for fundamental change , the lack of real progress in areas such as land rights, and a consequent lack of real focus, coupled with the preexisting problems derived from assimilationist era , has exacerbated internal conflict within indigenous groups. It has often become easier to fight each other rather than to take on the very powerful forces opposed to indigenous interests.


Resolving the internal problems caused by white occupation

The problems that I have been speaking about here ultimately stem from the consequences of white occupation and from the manner in which government policy aimed at assimilation, integration and, more recently, matters such as native title have been played out.

Such issues will take time, patience, goodwill and compromise on all sides to resolve Unfortunately the time frameworks provided in the Native Title legislation, coupled with the substantial stress on the demonstration of a tightly defined "community" and "law and custom" by those seeking to make claims, puts immense pressure on indigenous communities to resolve such matters more rapidly, and perhaps more artificially, than they otherwise might.

If there is any single external factor that could aid their resolution it would be a substantial win. It is a long time since the real victories of the 1970’s and 80’s. It is a long time since "victories" have produced any tangible results. Even the Mabo High Court decision is nearly a decade old. Precious little has happened since then.

Where are we?

Twenty five years on, the desperate poverty that characterised so many Indigenous communities when I began working in this area is no longer quite so evident. There is no doubt that Indigenous Australians remain this country’s poorest minority, and for many families and individuals poverty creates hideous problems. Nevertheless unemployment rates of 40 and 50 % (outrageous as they may be by general community standards), quoted for remote areas today are better than the levels around 90% that were commonplace in the same areas in the late 70's.

The most aggressive and extreme forms of racism have also been driven underground to some extent, though they still rear their ugly head from time to time in many areas. Tarring and feathering and other such practices are hopefully a thing of the past and its upwards of twenty years since I've been threatened with a shot gun simply because I worked for an indigenous organisation, or had a crazed local white run at the vehicle I was trying to refuel waving a tyre lever and yelling "get those f****** rock apes out of here."

The expenditure , education and legal reform over the last quarter of a century have achieved some real results. Its simply because the starting point was so appalling that things remain far from acceptable compared to general community standards.

But despite such gains I see much less of the hope, much less fire, much less cohesion, much less enthusiasm to tackle the big issues than I found in Alice Springs in 1975. Instead of people working towards common goals , despite their problems , so many groups have been reduced to fighting each other over trifles by the disappointments of the last decade, or become consumed by the grind of administrative loads.

Indigenous Australia desperately needs an opportunity for the emergence of new leaders of the calibre of my old friend Wenten Rubuntja. It is only when the hope of real victories is restored that they will be willing and able to take on the huge challenges involved in pulling together communities which we have been doing our best to fracture since 1788, rather than focusing primarily on the immense difficulties still involved in keeping body and soul together within one's own family . Sadly , it is very hard to see where such victories may come from. Neither the courts nor our current political leaders have demonstrated much in the way of leadership within our community on such matters either.


A treaty?

Amongst most Indigenous Australians that I have had dealings with recently intense scepticism about "treaties" reigns supreme. What, they ask, are the likely returns from the expenditure of substantial personal effort. They are concerned that the desire for a treaty may have more to do with salving white consciences, rather than redressing ongoing wrongs. They fear that any agreement may subsequently be dishonoured by later administrations. They are concerned that time devoted to a treaty will detract from fundamental issues such as land justice, health, economic well-being and redress for the administrative obscenities epitomised by the issues of the stolen generations and deaths in custody.

Such things come first. They provide the basis for a real "treaty" at the end of the process. Non-indigenous Australia needs to prove its credentials.

The road to a treaty remains a long one. By dealing with the fundamental questions of land, in their own right, whether it be through negotiated agreements under Mabo or by means of national or state by state legislative action, we move closer to a resolution of the issues necessary for a genuine "treaty". By addressing the problems of health and economic well-being we move closer again. By overcoming the legacy of .a hundred and fifty years of maladministration; the hundreds of thousands of cases of human desperation and despair which we have managed to create; we move closer again.

But for the moment a treaty, in most Indigenous eyes, remains a dream for the future. Before the non-Indigenous Australian community reaches the point where something of this kind can be entered into between equals - between people operating honestly and openly , between people whose offerings can be treated with serious respect, we have a great deal of work to do, and some very concrete goals to achieve.


Rod Hagen