History and the Uluru Statement from the Heart - speech prepared for the Australian Historical Association Conference 2019 and the plenary on Voice, Treaty and Truth

Uluru Statement from the Heart Plenary, Voice, Treaty and Truth, Australian Historical Association Conference, 9 July 2019, Toowoomba, Queensland  

Below are my prepared remarks on the Uluru Statement from the Heart and the NAIDOC theme of Voice, Treaty and Truth that I presented at the Australian Historical Association Conference, 9 July 2019. The AHA Conference was hosted by the University of Southern Queensland and held in Toowoomba, Queensland. 

History and the Uluru Statement from the Heart

I’d like to begin by acknowledging the Jarowair and Giabal people, elders past and present, and all other Aboriginal and Torres Strait Islander people. 

I’d also like to acknowledge Teela and Thomas, who I’m with today, and thank them for their work on ensuring the reforms called for by the Uluru Statement from the Heart – Voice, Treaty and Truth – become a reality. 

I’d also further like to acknowledge two people that aren’t here today but that are both very much part of the fabric of the Uluru Statement from the Heart and are key to us moving this reform forward – Aunty Pat Anderson and Professor Megan Davis. 

And I’d also like to thank Libby and the association for the invitation to talk about what I believe is the most important legal, and broader social reform, facing us as a community today, a reform that I believe will have positive repercussions beyond the narrowly defined field of Indigenous affairs. 

I, out of the three of us, have the somewhat ‘enviable’ task of talking to a room full of historians about the history behind the Uluru Statement from the Heart and the movement more broadly that has led to the reform sequence of Voice, Treaty and Truth. 

Considering that task, I’d also like to acknowledge the work of many of you on the history of our people and the foundational truth telling that you have all been part of that has further enabled our voices to be heard.

The Uluru Statement from the Heart is a momentous event in our history. I don’t believe there has been a greater consensus or amplification of Indigenous voices with regard to our hopes and desires. This is an authoritative document, premised in the authority of the participants at the regional dialogues across the country, and then at the National Constitutional Convention at Uluru, that continues the long history of advocacy of Indigenous people. The Uluru Statement from the Heart is an Indigenous document presented to all Australians – it represents our voices. 

It is a ‘statement from the heart’, from the ‘first sovereign Nations’ who have occupied the land, and that continue to exist today ‘according to the reckoning of our culture’. Very simply, but poignantly, the Statement asks, ‘How could it be otherwise?’ 

The question is a not so subtle reference to a history and practice that has indeed denied and claimed that the truth of our existence is otherwise. 

We know that history very well. 

It is a lived history of exclusion, denial, and erasure. Of the lack of agreement and recognition of our rights that inhere in us as a people, as Aboriginal and Torres Strait Islander peoples, not just the narrowly defined rights that we have come to be known by about our continually produced low socioeconomic status. 

It’s a history of lamented failures and broken promises; of vague legal principles and instructions that support beguiled hopes of legal claims and protections, whether domestically or internationally, while real, affective, sovereignty and authority is remade every day without us; it’s a history of misguided progressiveness and inclusions, but inclusions that have always been circumscribed or limited, or that have required the high price of the death of our distinctive being. 

It is a history of the contemporary practice of a redemptive liberalism that apologises for its past deeds, extricates the ‘bad’ parts, and smooths its exclusionary edges, while keeping still that strict and circumscribed limit to our recognition and reconciliation. 

It is a history captured by the fabulous retroactive moment of justice in Mabo. The recognition of the great lie that became known as terra nullius, but with the simultaneous legitimation of that same system, that in the words of Justice Brennan, could not recognise our people more than it had due to the risk of fracturing the skeleton of principle that gives Australian land law – and Australia more generally – its shape and internal consistency. 

It is a history where Justice Brennan’s other descriptor of ‘the tides of history’ in Mabo, that had washed away the sins of the past, cleansed the Australian state of that unutterable shame, leaving no other questions to be answered, or none at least the High Court would be willing or able to address, too often rules the day. 

It is this history and practice that I believe many Indigenous people and allies have always understood. It is a history that has always shown where sovereignty and authority lie, despite proclamations and declarations otherwise. It is a history that has always shown that greater political will is needed across the entire community; that limited inclusions without substantive reform have never been enough.  

It is a history also that has shown that what is required is an understanding of, and an appeal to, that greater political will and sense of responsibility that I believe continues to speak loudest through the Uluru Statement from the Heart, one that Indigenous people have always appealed to and based our claims in, however different those claims have been over time. 

We have been held captive – never completely – to these histories. Despite all this however, we have always spoken, our Voice and voices has always been there, present even in the moments of our supposed erasure. 

We have always spoken of our claims and our rights; we have always based those claims in our existence as the first sovereign peoples. We have always spoken of sovereignty and self-determination, not in the abstract and reified ways those terms have too often come to be understood and used, but in the ways that they are instrumental to the meaningful control of our lives and resources to live those lives. Our claims have never been unreasonable. 

These are the voices and understandings drawn out and amplified by the Uluru Statement from the Heart. 

Constitutional reform of course is not a new phenomenon. Since our first exclusion from the Australian Constitution and continued relegation to the whim and authority of the states and territories, Indigenous people have advocated to address the structural power imbalance that exists and the special place of Aboriginal and Torres Strait Islander peoples. 

This notably included specific proposals during the 1930s and 40s that eventually lead into the advocacy that achieved the momentous 1967 referendum. Our people, I believe, have always implicitly understood where authority and power lie in the colonies and succeeding federation, and have always appealed to and attempted reform of our relations within that understanding. This is why the Australian Constitution has remained a target of reform.

Yet the recent history of constitutional reform, at least since the then Opposition Leader Kevin Rudd promised constitutional recognition in the 2007 election campaign, has been a micro-representation of this greater history where our structural powerlessness has continued to hinder the realisation of greater reform. We had the Expert Panel report in 2012 and multiple Joint Select Committee Reports since. All did important work; all moved this reform forward; but all failed to appropriately reflect the voices of Aboriginal and Torres Strait Islander people. 

Thanks to our strong leadership that remained informed by our communities, however, a large group of our leaders met with then Prime Minister Tony Abbott and Opposition Leader Bill Shorten at Kirribilli House in 2015. Perhaps, not historically, the best place to be seeking agreements, promises or succession plans from politicians, but our leadership were able to present community concerns and the voices of Aboriginal and Torres Strait Islander people. 

The key message delivered was what the message from the Indigenous community has always resoundingly been. That is that substantive structural reform is needed, and that our community would support nothing less; that a new relationship could only be built upon the foundations of that meaningful change and that status quo inclusion would not work.  

The Referendum Council was born out of this process. The Referendum Council’s work wasn’t without its own challenges, but despite all of that, the Referendum Council was able to achieve something remarkable that had been largely missing from the reform process to date. That was an Indigenous led and authored process of deliberation, across the nation in multiple places, to flesh out and discuss what Indigenous priorities were. 

This was not an easy process; and Teela is going to discuss this process in more detail; but it was a successful, deliberative and legitimate process, one that is key to understanding the priority sequence of Voice, Treaty and Truth beyond mere slogans. These are substantive and meaningful reforms connected to and reflective of the priorities of Indigenous communities. 

It is this process that gives the Uluru Statement from the Heart its authority; a process that produced an authoritative representation to take forward to the Australian people and to ask all Australian’s to walk together in a movement for a better future. 

Of course we had former Prime Minister Malcolm Turnbull’s rejection of the Uluru Statement, but we shouldn’t make too much of this. Indeed, the Uluru Statement from the Heart, the specific reform sequence of Voice, Treaty and Truth, has outlived Malcolm Turnbull’s prime ministership and enjoys more support today, support that continues to grow. 

The Uluru Statement from the Heart and Voice, Treaty and Truth will hopefully not just outlive politicians but all of us. 

That question in the Uluru Statement from the Heart that I raised earlier remains key for me – ‘How could it be otherwise?’ 

This question acknowledges and places our histories where it should. It does not ignore them; it is aware of and informed by them; but it also refuses to be bound by past failures and injustices as we walk together in a movement for a better future. Truth telling in this respect remains the important challenge of work of us all to do and maintain as we work together to achieve Voice, Treaty and Truth. 

Why amending the Australian Constitution remains necessary for Indigenous recognition

The need for constitutional change should be clear when you understand that it was these old white men that wrote the Constitution during the late 1800s without care or consideration for Aboriginal and Torres Strait Islander people. Just because white supremacy, erasure and the ‘dispersal’ of Indigenous people was the doctrine of the day, doesn’t mean that it need continue in today’s ‘progresisve’ times…   The Australasian Federation Conference delegates, Melbourne, February 1890. Photographer: Johnstone, O’Shannessy & Co,  National Archives of Australia.

The need for constitutional change should be clear when you understand that it was these old white men that wrote the Constitution during the late 1800s without care or consideration for Aboriginal and Torres Strait Islander people. Just because white supremacy, erasure and the ‘dispersal’ of Indigenous people was the doctrine of the day, doesn’t mean that it need continue in today’s ‘progresisve’ times…

The Australasian Federation Conference delegates, Melbourne, February 1890. Photographer: Johnstone, O’Shannessy & Co, National Archives of Australia.

The final report of the Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples is due by 29 November 2018. This will be the latest in a long history of reports addressing the place of Indigenous people in Australian society. It will also be the first, following the interim report produced in July, that has available to it the Uluru Statement from the Heart.

The Uluru Statement from the Heart was the result of a unique deliberative process whereby the Referendum Council centred the voice of Aboriginal and Torres Strait Islander peoples in the constitutional recognition debate. This process consisted in a series of regional dialogues across the nation, culminating in regional representatives gathering for the National Convention at Uluru in May 2017. Never in Australian history have so many Indigenous peoples been directly involved in shaping their own future and that of the nation.

Uluru affirmed what is important to Aboriginal and Torres Strait Islander peoples: the entrenchment of their Voice, the realisation of a Treaty and the telling of their Truth. Voice, Treaty and Truth question the very core of Australian society.

The Rotten Core of Australia

Australia remains marred by the refusal to address the demand of Voice, Treaty and Truth. At Australia’s foundation is an inability to meaningfully engage with Indigenous peoples as equals, according to their rights as political and cultural sovereigns. This issue differentiates Australia from similar countries, such as New Zealand, Canada and the United States, where more substantial progress has been made, but where that progress is based in the tradition and authority of agreements between peoples.

The Uluru Statement from the Heart marched beyond this restraint by rejecting minimalist and symbolic measures that have failed to affect change and address Indigenous claims. The level and nature of direct Indigenous participation in the dialogue process importantly gave the Uluru Statement from the Heart an unprecedent level of political legitimacy and cultural authority as a legitimate deliberative process and as an expression of Indigenous will.

The Uluru Statement from the Heart has also been lauded by constitutional and public law experts for its development within and suitability to the principles and practices of constitutional liberalism. These facts all make the continuing rejection of the Uluru Statement from the Heart by key members of the Commonwealth Government and other public commentators hard to understand.

FAILED HOPES, DREAMS AND LEGISLATIVE INERTIA

Laureate Emeritus Professor Cheryl Saunders AO has described the Uluru Statement from the Heart as  representing a legitimate and genuine consitutional moment . What better foundation for amending the Australian Constitution, changing the rule of engagement and developing a new and better relationship between Indigenous and non-Indigenous Australian’s could there be? This image juxtaposed to that above of the ‘founding fathers’ of the Constitution and the Australian state speaks volumes.   The  Uluru Statement from the Heart,  resulting from the Uluru National Convention, 23-26 May 2017.

Laureate Emeritus Professor Cheryl Saunders AO has described the Uluru Statement from the Heart as representing a legitimate and genuine consitutional moment. What better foundation for amending the Australian Constitution, changing the rule of engagement and developing a new and better relationship between Indigenous and non-Indigenous Australian’s could there be? This image juxtaposed to that above of the ‘founding fathers’ of the Constitution and the Australian state speaks volumes.

The Uluru Statement from the Heart, resulting from the Uluru National Convention, 23-26 May 2017.

Rather than engage seriously with the invitation from Uluru to move toward substantive reform, key commentators such as former Prime Minister Malcolm Turnbull and current Prime Minister Scott Morrison have rejected the invitation outright.

Citing concerns that have been otherwise addressed by leading constitutional and public law experts, the Commonwealth Government has doubled down on their rejection, arguing that a First Nations Voice would be an unrepresentative third chamber of parliament, could jeopardise parliamentary sovereignty and would be contrary to the principles and practices of constitutional liberalism and individual rights that underpin Australian citizenship.

Others, such as Indigenous Affairs Minister Nigel Scullion, have further repeated discredited arguments that constitutional recognition would do nothing for Indigenous disadvantage, ignoring the obvious and well-established links between Government action and its legislative authority and the direct causational this has on the lives of Indigenous peoples. This position further ignores the incontrovertible fact that the legitimacy of Indigenous claims is based in more than just the alleviation of disadvantage and attempts at ‘closing the gap’.

This disappointing position demonstrates an unwillingness to affect substantial structural reform for Indigenous peoples while continuing to hold stock in failed legislative mechanisms that remain susceptible to the whim of Government and maintain a contemptuous disregard for the moral and political authority of the Uluru Statement from the Heart. Indigenous Australians are well versed in these politics; they have endured time again the generational failures of hopes, dreams and legislative action and inaction that have perpetually decentred Indigenous voices while purporting to include them.

Further concerning however has been the lack of engagement and understanding with the legal scholarship and expert advice about proposals for Voice, Treaty and Truth within the larger constitutional and public law framework. Most notably, the Government and key commentators have been critical of a lack of detail put forward by the Referendum Council and the Uluru Statement, stating that any First Nations Voice would have to be detailed and entered into the Constitution, presenting this as an insurmountable task, and using this disingenuous argument to bolster false claims about the nature of a First Nations Voice.

These claims are wrong. An entire corpus of domestic and international scholarship on constitutional and public law demonstrates this, but continues to be ignored by Australia’s political leadership.

The Australian Constitution does not have to detail or express the terms and conditions of a First Nations Voice. The much lauded 1967 Referendum that enabled the Commonwealth Government the power to legislate for Indigenous peoples did not layout the detail of the Department of Aboriginal Affairs or any other subsequent departmental iteration. It rather addressed the core issue at hand – the authority of the Commonwealth Government as enacted in the Australian Constitution and the status of Australian society as represented by the Australian Constitution.

The Uluru Statement from the Heart and the subsequent report of the Referendum Council were not wrong in demurring on the detail of a First Nations Voice. That is a matter for self-determining peoples to negotiate with the Australian Government once the ability for its realisation is enacted and protected in the Australian Constitution.

This does not mean that important legislatively enacted bodies such as a Makarrata Commission or an Interim First Nations Voice Office should not be established to enable and facilitate this process. This will be a necessary part of the development and implementation of Voice, Treaty and Truth.

But to avoid the Australian Constitution would be to continue the history of failed hopes, dreams and legislative inertia controlled entirely by non-Indigenous Australia that also perpetuates the refusal of Indigenous rights as political and cultural sovereigns.

LEGISLATING THE VOICE FIRST WOULD BE WRONG

These issues make the recent emphasis on the pursuit of a legislatively enacted First Nations Voice – such as that by Opposition Leader Bill Shorten and Father Frank Brennan – as either a trial before further change is attempted, or an alternative to constitutional entrenchment, all the more concerning. Many have been rightly critical of this movement highlighting the failure of this approach to comprehended what the Uluru Statement from the Heart represents, the lived reality of Indigenous peoples in Australian society as relative to the authority of the Commonwealth, State and Territory Governments and the failure to comprehend relevant constitutional and public law principles and practices.

Concerns have also been raised that any inclusion in the Australian Constitution would be a further colonial incorporation of Aboriginal and Torres Strait Islander peoples according to non-Indigenous standards. While these concerns are understandable considering the history of Indigenous affairs in Australia, the Uluru Statement from the Heart and the call for Voice, Treaty and Truth are further unique in this regard in being able to appropriately address this specific concern. This is because while the Australian legal system is a reality that Indigenous peoples must deal with, the call for Voice, Treaty and Truth is fundamentally built on centring Indigenous authority and providing for its entrenchment and protection, something not achieved before.

The fundamental rules of engagement must be changed for the institutional structures of the Australian state to affect Indigenous peoples being heard and to result in the much-needed reconfiguration of the relationship between Indigenous and non-Indigenous peoples. Constitutional amendment must address the issues at the core of the nation and the inequality in relations that have plagued relations and previous legislative actions. Without need for a detailed body or First Nations Voice, the Australian Constitution should: 

(1)   Recognise the status and history of Indigenous peoples;

(2)   Enable the Commonwealth to negotiate and make agreements with Indigenous people according to their rights and interests; and 

(3)   Entrench those rights and the right to be heard on those rights and interests. 

The Australian Constitution can be whatever the Australian people decide it to be; we should not be limited by incontrovertible legal doctrines and convenient fictions. The realty of Indigenous sovereignty, history and the right to self-determination makes a mockery of claims otherwise and demands the relationship be reset. The Australian Constitution remains the best place to begin that structural change, and the Uluru Statement from the Heart is our clearest statement of intent and importance to this affect.

Consorting With Half-Castes

First things first - I missed my February blog! Oh well, I had thought I might do a longer one to make up for it, but I am going to try and keep this one short and on point. 

I want to share an idea/direction with my research that I have been playing with lately, and the title that I am basically using for my PhD now - that is 'Consorting With Half-Castes' - and if my supervisors are reading - don't panic - it's all good!

'Alleged Idle and Disorderly Person' from the  Narandera Argus and Reverina Advertiser,  NSW, Friday 17 August 1934.  'charged with being an  idle and disorderly  person having  insufficient visible means of support .'

'Alleged Idle and Disorderly Person' from the Narandera Argus and Reverina Advertiser, NSW, Friday 17 August 1934.

'charged with being an idle and disorderly person having insufficient visible means of support.'

DEGENERATE HALF-CASTES 

Anyone familiar with Australian history will know about the fears and anxieties around miscegenation and the different and broad socio-legal practices that were used to deter/prohibit the mixing of Indigenous and non-Indigenous peoples - especially those around what many termed the 'degenerate half-castes'.

'cautioned defendant  about mixing with aborigines and convicted men .'

'cautioned defendant about mixing with aborigines and convicted men.'

Similar to other colonial and racial histories (such as the US) the history and practice of miscegenation laws in Australia make for quite a confronting realisation of the affects and realities of the pursuit of the biological and sociological racism that informed public/private attitudes and policies toward Indigenous peoples. Searching the phrase 'Consorting With Half-Castes' or similar phrases such as 'Consorting With Natives/Gins/Blacks' on Trove alone reveals thousands of news paper articles reporting on the crime and punishment of miscegenation, especially during the early 1900s but right up until the 1960s. 

LAWS OF ACCEPTABILITY 

'brought a  white woman to the district and left her destitute with some aborigines .'   The worst possible thing to do to a white woman...

'brought a white woman to the district and left her destitute with some aborigines.'

The worst possible thing to do to a white woman...

The lived reality and experience of these laws is something that doesn't necessarily align with 'intent' nor the retrospective expectation/reading when looking back. I am interested in these histories however for their heuristic quality in understanding the law and its application in the everyday lives of those affected, contrasted with the explicit/implicit intent/desire to extend sovereignty, law and authority over peoples and communities.

'married to a  half-caste woman.  They had no means of support.'

'married to a half-caste woman. They had no means of support.'

Something like Foucault's emphasis on the regulative regimes that discipline, punish and produce subjects and non-subjects through exclusion and violence, such as the similar history with laws related to vagrancy, being idle and disorderly, using indecent language, but also the contingent and ineffable realities of those affected by those laws, but those that aren't necessarily visible, heard or understood.

Something like how miscegenation - buried deep in settler colonial preoccupations, fears and anxieties with sex, gender and power/authority - affects and fails to affect those it is aimed at, the failure of law to be law, somehting beyond 'laws' control and affect, but also the institutions - people, actors, values, ideals, police, courts, judgement, welfare and so on - that support these successes and failures, ensuring their everyday experience and reproduction.

THE EVERYDAY EXPERIENCE

'associated with convicted men rendered a man  liable to arrest... To live an knock about with half castes was an offence .'

'associated with convicted men rendered a man liable to arrest... To live an knock about with half castes was an offence.'

Much more can be said about these issues, but I am especially interested in the how these laws become woven with the experience of their enforcement - by all involved - and the affects of this weaving; how the prohibition, not necessarily always written into the black letter law but practiced in its assumption and implication through enforcement, affects and fails to affect; how Indigenous peoples survived and lived day-to-day despite prohibitions against their love, life, survival and being.

'Consorting With Half-Castes' also has value to me through a developing reading as a heuristic tool to not only understand sovereign authority and law, but especially to understand the constitutional recognition of Indigenous Australians. Because, without going too much into it - even though I need to - isn't 'Consorting With Half-Castes' what 'we' actually do, but what 'we' deny and fail to do in our failure and refusal to address the structural inequality and implications of the current constitutional regime?  I know, what? It needs a lot more unpacking to communicate what I am actually getting at here - and some pretty abstract discussion on 'recognition' which makes most peoples eyes roll into the back of the heads - but hey, I'll do that later. 

'It was not the practice of police to give relief [work] to men convicted of drunkenness... gave him the relief is they considered that by  doing so they would help him to be a decent citizen... The reason for refusing him work was to break him away from his associates [aborigines].'

'It was not the practice of police to give relief [work] to men convicted of drunkenness... gave him the relief is they considered that by doing so they would help him to be a decent citizen... The reason for refusing him work was to break him away from his associates [aborigines].'

BEING BEFORE THE LAW: IDLE, DISORDERLY AND CONSORTING 

So to finish, I draw your attention to the snippets down the right hand side of this blog from an article titled 'Alleged Idle and Disorderly Person' from the Narandera Argus and Reverina Advertiser, NSW, Friday 17 August 1934.

For the most part, this article is about my non-Indigenous relatives, specifically my great-grandfather's brother Victor Thomas. Yet it is Victor and Ernest's (my great-grandfather) relationship with Indigenous people - 'half-castes' - and their breaching of not only miscegenation laws, but the broader socio-legal expectations and determinants of Australian society - those acceptability laws - that hammer through.

In this article it is clear that not only were sociological and biological determinants used to classify the race and societal position of Indigenous people, but also those non-Indigenous peoples that were involved with them to varying degrees of intimacy.

The insights read from these snippets for me are those symptomatic themselves of the settler colonial obsession, fear and anxiety with power, land, authority, race, gender and sex where Indigeneity and femininity are always read as lacking and degenerate, and can be created and produced as such if needed, while white is literally right, erected all too well upon that phallic explicit/implicit intent and desire inherent in settler colonialism.

 

'Fuck celebrating days made of misery (fuck that)'

A.B.Original - 'January 26'

‘I said celebrate the heretic anytime outside Jan 26 (anytime), That’s the date for them suckers doing that sucker shit (that’s true!), That’s that land-taking flag-waving attitude’

 ‘Fuck celebrating days made of misery (fuck that), White Aus still got the black history (that’s true), And that shirt will get you banned from the Parliament, You ain’t having a conversation, well then we starting it’


When I started my blog I promised myself I would post at least once a month. So it’s now 31 January and I haven’t posted since December 2017 – I am also madly completing last minute preparation for a PhD milestone next week.

 

QUICK THOUGHTS THEN

January 26 is impossible to escape – because it’s not just about a day, it’s always been about more. I turned my phone off for about four days and tried to stay away from all forms of media, I mean really I am just so sick of the shit. How hard can it really be? What is gained in further denial?

The most disingenuous waffling of it all is the call to focus on the big issues; the old chestnut of practical issues as though they are some how separate from the symbolic, the ‘important issues’ and don’t forget the ‘gap’. There is no difference! They know it, which makes their denial the even more insidious, spiteful and hateful – to what end? For what purpose?

The denial of a conversation and a change around January 26 speaks and is generative from the same denial of the Uluru Statement and illustrative of the fundamental need for structural reform to interrupt the operation of sovereign authority in Australia for Aboriginal and Torres Strait Islander People.

But hey we know all too well, it’s more of that ‘land-taking flag-waving attitude’. So Tarneen is right, let it burn. ‘Fuck celebrating days made of misery (fuck that)’ – fuck celebrating countries, laws, institutions and societies made of misery.

 

Gordon Bennett,  Untitled (dismay, displace, disperse, dispirit, display, dismiss)  1989

Gordon Bennett, Untitled (dismay, displace, disperse, dispirit, display, dismiss) 1989

 

Something I want to finish – January 26, Sovereignty and the Law

January 26 is officially celebrated as Australia Day, the commemoration of the 1788 landing of the First Fleet and the settlement of New South Wales by the British.

The date, its celebration and all that it has come to symbolise have however always been about much more than just the arrival of eleven ships. The day is refined through its repetition as another ritual re-inscription and production of settler colonial sovereignty.

That claim to sovereign authority; that same legitimating force of the cry of terra nullius. The repetitive celebration, once historically commemorated through the murderous bravado of the bushwhack, then later through such staged spectacles as subdued Aboriginals welcoming the British, is now subconsciously woven into the fabric of the national psyche through a carefully reproduced enjoyment of inclusive multiculturalism where the ecstatic intoxication of the forgotten frontier is now transformed into the rivers of grog that flow on a public holiday.

 

That time in 1938 when they deceived an Aboriginal community into reenacting the landing of Arthur Phillip, (Mitchell Library, State Library of NSW – Home and Away 17955), read more  here.

That time in 1938 when they deceived an Aboriginal community into reenacting the landing of Arthur Phillip, (Mitchell Library, State Library of NSW – Home and Away 17955), read more here.

Freedom, one of those apparent Australian values, means that all can now celebrate a coming together of the reconciled Australian community – one that has forgone its exclusive and violent past, washing itself clean in the tides of history, embracing its welcoming and inclusive present.

Yet question that freedom and inclusion, exist as other to that carefully policed inclusion, and the productive and protective force of such ritualised being, necessitated always by settler colonialism itself, lurch forward from the chasms of yesteryear, throwing off their cleansed veils of the tidal swells of progressive liberalism by marking anew those that would question or claim otherwise.

Commonly now referred to as Invasion Day, January 26 has become a symbol around which a contested and anxious national narrative grapples with a continued Indigenous presence that refuses to be confined and held captive to invasion, not just as a counter-narrative, but as affirmation of self.

This has always been the case. An anxious existence, predicated on that which it excluded, has always betrayed itself by its violent outbursts toward an Indigenous being that existed both for itself and as a perennial threat to the presumed totality of settler colonial claims.

The promise of justice in a reconciled Australia, heightened again due to the more recent questions of constitutional recognition, continues to betray itself through a repetition of these same practices. Rather than delivering on the promise of reconciliation, the justice offered is that of limited inclusion repeated again in settler colonialism's ritual reproduction of legitimated authority through the naming and demarcation of acceptability.

 

Gordon Bennett,  Ask a Policeman,  1993 - Just remember when they say you have nothing to fear, they did the best they could, it's your own fault. This one hits pretty hard of late following further contact between family and the Queensland Police.

Gordon Bennett, Ask a Policeman, 1993 - Just remember when they say you have nothing to fear, they did the best they could, it's your own fault. This one hits pretty hard of late following further contact between family and the Queensland Police.

Lyrical devices, illustrated by examples such as A.B Original’s ’26 January’, highlight the often unseen or ignored fissures in both the promise of justice and the operation of sovereignty and law in settler colonialism.

Through these affirmations of not just counter-narrative but Indigenous being, a sense and understanding of the experienced but often ineffable existence of Indigeneity can be heard and understood. Rather than limiting ourselves to what the law or the promise of justice permits, A.B. Original reminds us that ‘you can call it what you want, but it just don’t mean a thing’.


2017: Indigenous Recognition, Settler Colonials, Paris and the Law

The following are thoughts on my PhD research. Something of a process to collect where I am at for the end of the year.  

Most of these ideas are a development of issues I have been trying to think through following the blatant dismissal of the Uluru Statement and the Referendum Council's report by the Commonwealth Government. 

I have been trying to think through the disappointment and raw anger of what for many has felt like another kick in the guts. The seeming disdain and absolute disregard for an Indigenous voice - both actual and in the proposed constitutional body - has a long, violent and real presence and affect, despite many claims otherwise. This has only been further confirmed following PM Malcolm Turnbull's multiple enunciations of indifference toward the issue. Indifference really is too kind of a description. 

Speaking and being heard

My research has always been uncomfortably teased out from a sense of anxiety I had about the 'Recognise' program not providing for our voice and voices to be heard, and for me what I have seen as an important problematisation of the issue of speaking and being heard - the law of speaking and being heard and the constitution of this both in the literal sense of the written document but more broadly about the constitution of Australian society and the place of Indigenous peoples, cultures, laws, traditions and sovereignties. I often use this entry point of 'speaking and being heard' in my teaching and writing. The below image is of a protest banner by Bill Onus that dates somewhere between the 1930s and 1950s.

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This is what it is about right? This is what the Governments and the Australian people have always failed to understand. The importance of speaking takes on many aspects but it also means a sovereignty - a voice - an ability to speak and, a responsibility to be heard, to hear. To speak as self - not as a parrot. For too long Indigenous people were characterised has being unable even to speak, and then later had corporeal restrictions on the ability to do so - but even now, after all of the change and development, after all of our 'rights', we seemingly still can't speak and be heard. The truth is of course we do speak, and we always have, its the hearing that's been the issue, and that comes with violent consequences. 

I was never fully supportive of the Referendum Council and the Uluru Statement - I have some reservations and still do with the broader program that in fairness are actually better described as issues with the former 'Recognise' campaign and proposed minimalist approaches to reform - but I wanted to support the outcome as I saw it for what it was: an affirmation of a sovereign Indigenous voice and a demand for more than just tokenism - a demand for structural reform in the actual power relationships that govern and are generative and reproductive of the many issues Indigenous peoples face. Critical scholars, public intellectuals, everyday people - across divergent opinions and thoughts - have all been calling for fundamental structural reform forever against the threat of the feckless and violent incorporations and assimilations of past and present. Aileen Moreton-Robinson's Talkin' Up to the White Woman: Indigenous Women and Feminism is an excellent telling of this history and the indifference toward the experience of our speaking and being.  

Recognition then? 

So - the Constitution, sovereignty, rights, speaking and being heard - recognising Indigenous peoples. I find it almost impossible - cognitively, practically, ethically - to address this issue through what are considered traditional legal paths. The law; the Constitution; our rights; the common law; native title - what does it all mean if when we speak we get kicked. It can be all so boring, but so violent in its institutional exclusions and constrictions - suffocations - of possibilities for different and better, for responsible relationships. It's cold, it's like concrete and steel bars, it's like a straight jacket or a prison cell - minimalist recognition and no change. Because it is true that while what we are saying is actually heard, the more important point is that we are ignored, we are treated with disdain and contempt; the fact that we are actually heard, but that the status quo continues as though 'they' know better, makes the failure all the more reprehensible. Ignorance and naivety perhaps could, but shouldn't be forgiven, what about blatant disregard? 

Just like the common narrative tale of 'Recognition', the hearing analogy runs along too where that once society was ignorant and racist they no longer are; they now hear; they now recognise. Redemptive liberalism and the promise of homogenous similitude - no thanks. It's a con because they always heard and always recognised just the same way they do now because nothing about the fundamental structural relations of power have changed, because the assumptions and values that inform the institutions - the 'constitution' of Australian society - remain the same. Terra nullius didn't disappear, neither was it overturned despite the common tale; the common law was simply corrected to what it should have been and was given the modern liberal gloss of a redeemed and inclusive society that enshrined in law the fundamental principles and practices of dispossession and extinguishment that were supposed to have been overturned by moving away from terra nullius. Sure there aren't anymore murderous bushwhacks, but do we really have to keep screaming about everything else? More Royal Commissions and reports to be commissioned and ignored; more people being paid and making a living out of Indigenous misery. 

So the myth? Recognition exists where it once didn't and the current practices of inclusion and incorporation aren't assimilationist or exclusionary where they once were. Something closer to the truth however is that these practices - these operations, ideas, values, assumptions - of the law, of sovereignty, of a sovereign authority, of the Australian 'constitution' have always been experienced by Indigenous peoples in this way. Yes context and tools have changed; affect and practice remains: the extension of control and sovereignty over Indigenous peoples with violent consequences. 

There is a lot in this that I am not explaining and needs to be unpacked, and has been in other work yet to be published, but this is my major issue. There has always been recognition; there has always been hearing; there has always been the law; to pretend otherwise as the liberal rights and recognition narrative does is to abrogate responsibility for this past and for our present, for the failure to actually hear; and perhaps most perniciously according this redemptive narrative, the benevolent recogniser can always blame the recognised, the provider of progress and the closer of gaps can always blame the Aborigine again for failing to take responsibility for billions spent and opportunities wasted while masking and erasing their own presence and responsibility, their own failure. 

Recognition then and now

Another entry point for me to make this point and critique is through the further representations - visual aids - of these recognitions of Indigenous peoples. The first, just below, is the tympanum of Brisbane City Hall completed by sculptor Daphne Mayo in 1930. The sculpture is called 'The Progress of Civilisation in the State of Queensland' - the title pretty much says it all. 

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And here is a close up of what is left in civilisation's wake. 

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Perhaps of its time; perhaps not relevant nor reflective of contemporary attitudes, perhaps, probably not. But the sculpture is so much more. It memorialises in stone the myth of terra tullius and the dispossession, dispersal and murder of Indigenous peoples. It's a permanent reminder of the pervasiveness settler colonial faith in progress, of a particular kind of progress. It's also an instrument of the law - of sovereignty. It's an extension of authority, productive of governing space, claiming that space, creating that space through inclusion and exclusion.  

The juxtaposition of this sculpture with Dibirdibi Country by Sally Gabori on the back wall of the Banco Court, Supreme Court of Queensland - just down the road from the town hall - is further illustrative of these points. 

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Separated by almost 100 years, the two artworks - not necessarily by the intention of the artists - represent two recognitions of Indigenous peoples. One is the settler colonial belief and production of the dying race - something like a bed time story told by settlers to comfort themselves in the mythical realisation that they had nothing to be responsible for in the demise of Indigenous peoples, this was rather a natural occurrence when a higher civilisation comes into contact with a lower. The second, in its placement, is supposed to represent the reconciled Aborigine and different ways of seeing. The curator statement reads: 

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It's also that 'knowledge and perspective' that is denied time again; that vision and knowledge, that sovereignty, which is ritually disavowed in every subsequent proceeding legal decision in this court room that intimates as the only sovereignty, that includes by excluding in its reproduction and affirmation of its sovereign self, the protection of that skeleton of principle Brennan J was so concerned to protect in Mabo via the denial of Indigenous sovereignty and the possibility to assert otherwise. 

No obscure legal document, instrument or instructions otherwise, no letters patent that state Indigenous rights exist or should, will change this or give standing in the High Court - this is the mythical power of law and sovereignty as it stands and is practiced in the Australian state. More broadly, it's that sovereignty that is denied, dismissed, ignored, demeaned and suffocated - never totally though - by the refusal of the Commonwealth Government to engage with the Uluru Statement and the Referendum Council's report. Anything short of fundamental structural reform in the power relationships between different peoples will result in another memorialisation of the dispossession of Indigenous people - just like the sculpture, just like the use of the artwork: the Constitution would be another stone carving, another court room appropriating Indigenous bodies and agency, another straight jacket, another mission, another training home, another island, another prison cell, another chain gang.

Paris and the Musee du quai Branly  

These recognitions of course don't just end there. They are everywhere. Another I wanted to include with these, which touches on Indigenous bodies and the corporeal nature of recognition, was one that I experienced in Paris at the Musee due Quai Branly.

I was in Paris in June/July 2017 for the University of Kent's Critical Theory Summer School. I participated in a two week seminar run by Professor Patrica Williams which was fantastic. But the many anxieties about my research project were intensified in Paris. The city, the country, maintains an ambivalent place in my own interests and research. Not just for the French settler colonial history, instances such as the history of Sydney's La Perouse, more global ideas such as Emmanuel Macron's blatant imperialism, self-styling himself as the new Sun King while telling Algerian youth to 'get over' colonialism and Africans' that their poverty problems are due to an inability to stop procreating, and then the broader issues of where does all of this fit - or how can I reconcile the at times seemingly disconnected world of academia with the lived realities of the trauma that often informs our/my work. The French presence is also strong in my research being heavily influenced by Jacques Derrida and Frantz Fanon and other debates about the usefulness or appropriateness of 'theory' and thinkers such as Derrida for Indigenous peoples. I expected most of these issues and feelings and dealt with them as I could. What I wasn't entirely sure about however was what I would encounter at the Musee du quai Branly. 

I am not sure, in retrospect, what I was expecting - perhaps it was more of a masochist's movement to expose myself - but the museum was another example of the recognition of Indigenous peoples and the currents of sovereign authority that inform and organise these relationships between different peoples in decidedly settler colonial terms. Much can be, and I am sure has been, written about the museum and its collection in conjunction with French settler colonial and imperial history. There was one exhibit in particular however that captured my attention. Below are sketches I made of this exhibition followed by photos that I took. 

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The entrance to this exhibit was at the back of one of the main floors in a very dark area. The doorway was small and dark but illuminated from within. For me it was like walking into a cave, but through a narrow corridor into almost a coffin. Lighting became brighter as you entered and I couldn't help but think of the binaries of light and dark, the idea of the light of science, of collection and display illuminating knowledge made out on and out of the violence committed on and against Indigenous bodies. 

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When you enter, the room tapers down the sides toward the end as the sketch shows above. I am tall, but it felt like a coffin to me, let alone being surrounded by skulls. Their were images of artefacts of peoples from all around the world but the skulls were all from Tasmania and dated mostly in the 1820s. Arranged, ordered, sterile - no explanation as to how the skulls were originally collected or any reference whatsoever to that fever pitch of grave robbery, murder and body dealing - nor of Indigenous perspectives. 

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Walls covered in our people. 

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Many of the photographs were of children. 

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The side walls consisted of other peoples and artefacts, the back wall of skulls demands immediate attention however as you enter into an almost suffocating space. 

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The only explanation of the exhibit: about the power and tools of photography. The explanation intimates toward the past but that is it, as though it remains as it is in reality the hidden known secret. How were the skulls collected? What of the violence involved? What of these peoples. My simplest description of this exhibit was that it was fucked. Yet it wasn't until I read 'Launceston Australie' on the photos of the skulls that the enormity of the violence toward and silencing of Indigenous peoples hit me again. It was probably too that visitors were laughing and taking selfies of one another in front of the photos - but there was something that I believe I felt as an Indigenous person in that confined, suffocating space that was the same raw emotion, pain and anger that I felt watching the response to Uluru unfold. 

The exhibit itself also repeated the supposed failed attempts of science to classify the different types of humans that the explanation made slight reference to. While proclaiming 'photographs of the past are a reminder of that every person alive today belongs to the same "body" of humanity' the exhibit simply represents and recommits without responsibility that same violence effaced in the proclamation to equality in humanity. Just because they say it is so, doesn't mean that it is so. The same patterns of imperial and settler colonial sovereign authority persist and reaffirm self as they do in the sculpture and the painting; while they, the current curators, didn't steal the bodies, they've reaffirmed the violence and imperial order of settler colonial terms by their representation and recognition where the skulls are now a useful lesson in the 'aesthetic of photography' just as Indigenous bodies, sovereignty 'knowledge and vision' are now useful tools for completing the reconciled nation and reconfirming settler sovereignty. 

So what next then? 

As I stated earlier, I find the law boring, but also exclusionary violent even when it tries to be inclusive. Mainly, this is because there is still a commitment fundamentally to one law, to one sovereignty, to a particular being projected as universal and the expense of others. And for all of our change we are very much the same, committing the same violences and sacrificing the bodies of others again for the reaffirmation of self. 

The law is not an innocent tool or institution, nor is it simply something affected by others; legal rationalities and practices have developed in their own right and institutions and in-turn also affect the different developments of a relationship between different peoples and the options available for reform.

The law, the Constitution, should also not be considered as something rigidly positivistic - a position of which has been directed toward proposals for reform where they are either characterised as being a step too far or outside of the law. The law should be and is more tactile, more relational, more flexible - but the foundations and structures upon which it - I guess what I mean here is the Australian state legal system/s but also the philosophy and jurisprudence of this - is built must change. The values and principles that inform, regulate and affect legal decision making must change. At the heart of this for me is a fundamental responsibility within a relational being between different peoples that must be respected and acted upon, not abrogated, ignored and erased - not be simply masked by proclamations of what the law is and isn't. 

For these reasons, and for a number of others I haven't really developed in this post, this is also why traditional political and legal approaches toward inclusion and recognition won't or don't work for me. They repeat the redemptive liberal promise without any substantive reform; they include by excluding, the price of which is paid inordinately by Indigenous peoples. This is also why I find it easier to enter into these debates from other places - places not normally considered part of the law, but places I understand as being central to the law, as being 'real' examples of the law, of where the law is felt and lived. 

I have been exploring this through Indigenous hip hop and rap of late: an Indigenous voice that is a sovereign affirmation of being, a refusal to be bound, suffocated and controlled, and a reminder always of the responsibility to others. This isn't a new process - literature, music, art and so on have been and are used as legal critique. But Indigenous hip hop and rap for me is about saying something ineffable, something I can't quite get onto paper or out through my research at the moment, but something that I live and experience everyday that the law can't capture, but should be and is in relation to and with the law - an expression of that emotion, pain, anger, but of pride and of sovereignty, of my indigeneity. 

The personal is political. Indigenous peoples, and others, have long been derided especially in the academic sphere for this approach. I am asked if sovereignty and similar themes or questions or terms aren't overdetermined and perhaps inappropriate - but that's the game which for Indigenous peoples just happens to be life. Sometimes you have to tow the line, be professional, be collegial, be respectful; but then other times you realise what you felt all along, that all of that is part of the problem, part of the masking of the continued violence and exclusion, part of erasure, and you realise that sometimes some people, some institutions just need to be told, so sometimes I think we just need to say: 'fuck the law!' 

I have a number of tracks on repeat as I research and write - but in going with the theme of affirmation and a refusal to be silenced; an affirmation of our sovereign being; I thought I would sign off with these few lines and the music video below: 

When the timing's right are you ready to take it? I been honing my components, waiting for my moment, And now I'm gonna own it, just feed me my opponents. 
Anything worth having ain't never coming easy, It's the hunt that we're on that bring another meal, Anything worth having ain't never coming easy, It's to the hunt we belong, man, that's just how I feel.