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Through a prism darkly

On the weekend of 11 and 12 June 2005 The Weekend Australian reported that the family of Northern Territory indigenous leader Galarrwuy Yunupingu had been divided by conflict over the proceeds of mining royalties. The central injustice that the paper trumpeted was that fact that ‘many of his own clan ... live in squalid and impoverished conditions while Mr Yunupingu has the use of a helicopter, four houses and a fleet of cars, including a Range Rover’.

The Australian’s ‘exposé’ of inequality highlights the manner in which indigenous issues in Australia are filtered or understood through the prism of crisis. The notion that indigenous Australia is at a crucial point, that the clock stands at five to midnight, and that failure to act to remedy the most basic of social and health inequalities will lead to the irreversible destruction of cultures, has spurred the creation of much government policy in Australia since the abandonment of assimilation in the 1970s. The politics of crisis, however, has frequently succeeded in exacerbating existing power disparities between indigenous and non-indigenous Australians and has often failed to acknowledge the intellectual and ideological complexity associated with recognising the rights of the first Australians.

In the eyes of The Australian’s journalist, Jennifer Sexton, Mr Yunupingu’s wealth was inappropriate and immoral when placed in the context of the difficult living conditions suffered by those of his clan. While little mention is ever made of the obligations of wealthy non-indigenous mining magnates to their less wealthy families, let alone their extended clans or communities, the behaviour of indigenous leaders is scrutinised through the prism of present disadvantage or crisis. Dubious administrative decisions that in the normal course of public life would at most be put down to self-interest or institutional malpractice are, when made by indigenous leaders such as former ATSIC Commissioner Geoff Clark, condemned as a betrayal of an entire people. Federal Indigenous Affairs Minister Amanda Vanstone, for example, condemned ATSIC’s decision to fund a legal challenge opposed to Geoff Clark’s sacking as ‘hav[ing] no benefit whatsoever for disadvantaged indigenous Australians’ and ‘a waste of taxpayers’ money’.

A fundamental contradiction lies at the heart of the treatment by the media and the Government of leaders such as Clark and Yunupingu. While non-indigenous criticism of their actions frequently emphasises their alleged failure to serve their people, the white legal and political system in Australia continues to inadequately recognise collective rights. It is probable that the view taken by Australian courts, from Mabo no. 2 onwards—that demonstrating the continuity of cultural identity or practice is crucial to establishing a common-law right to native title—has contributed to the public political habit of viewing indigenous issues through the prism of culture. An essentialist view of culture that sees tradition as largely incapable of adaptation to the external pressures of colonisation has been adopted by the courts as they have frequently found that native-title rights have been ‘washed away by the tides of history’. The inadequacies of the courts’ views on the common-law notion of native title, recently criticised by Noel Pearson, have been exacerbated by a Government which, through its amendments to the Native Title Act in 1998, has watered down the content of native title to nothing more than a right to negotiate. Notably the 1998 Wik amendments made the requirement of cultural continuance harder for indigenous groups to meet by toughening the requirements for registering a native-title claim and applying standard rules of civil evidence to native-title cases.

The 1998 Wik amendments are symptomatic of the broader failure of the political and legal system in Australia to distinguish between substantive and procedural equality and to recognise the importance of this distinction to the protection of collective indigenous rights. The Commonwealth Racial Discrimination Act 1975, for example, only acknowledges that the development of economic and social equality between indigenous and non-indigenous Australians requires differential treatment, by providing a ‘special measures exemption’. Collective measures—such as alcohol restrictions within indigenous communities—are viewed as an exception to the individual focused rights norm and require the issuing of a certificate by the Racial Discrimination Commissioner. The failure of the Australian legal system to protect the substantive rights of indigenous Australians enshrined in international legal documents was further highlighted by the High Court’s 1998 ruling on the Hindmarsh Island Bridge case in which Justices Gummow and Hayne adopted the view that section 52(xxvi) of the Australian Constitution (the ‘race’ power) could be used to justify legislation that worked to the detriment of indigenous Australians.

The latest manifestation of the politics of crisis in indigenous affairs, the Government’s push for ‘mutual-
obligation’ programs, has continued the trend of focusing on procedural rather than substantive equality. Notably, while claiming that mutual-obligation agreements do not require indigenous Australians to fulfil any greater obligations to enjoy citizenship rights than other Australians, the Government’s current policy obsession has seen the language of crisis deployed in order to justify withholding basic infrastructure features from remote communities until specified obligations have been fulfilled. Communities, for example, have had to organise child-hygiene initiatives before being rewarded with petrol bowsers that other Australian communities take for granted.

While the language of mutual obligation suggests that indigenous Australians are merely having their welfare benefits made conditional like any other Australian welfare recipient, the reality that the delivery of basic services to indigenous Australians is being micro-managed by the Government has been covered up by the political fog of crisis. Minister Vanstone, for example, has spoken of the ‘quiet revolution in indigenous affairs’, boasted that the targeted number of shared responsibility agreements has been exceeded, and talked of the need for struggling communities to get ‘more bang for their buck’. While other Australians fulfil punitive welfare obligations at an individual level, indigenous communities, faced with crisis, are asked to respond with ‘quiet revolution’ by formulating collective goals in order to obtain basic services. This policy is imposed upon indigenous communities despite the fact that the pivotal collective right of native title is not adequately recognised by the Australian political and legal system.

The deployment of the language of mutual obligation, in particular, highlights the extent to which the Government is content to formulate indigenous policy with both eyes on the aspirational classes of the mortgage belt, where political debate infrequently moves beyond the first principle that all monetary payments should be earned through individual effort. Eminent QC and activist Hal Wootten highlights the nexus between current indigenous policy and the politics of lower-middle class aspirational envy when he notes that ‘the developing conservative narrative posits that Aboriginals must simply forget about culture and identity, which are irrelevant in the modern globalised world, and become individual market-driven consumers and entrepreneurs, like all other sensible people’. The Minister’s talk of a ‘new way of doing business’ with indigenous communities certainly supports this observation.

While the political and legal system in Australia continues to inadequately recognise substantive indigenous rights, such as the right to an elected representative voice, the Government has combined the rhetoric of mutual obligation and crisis to justify current policy stances in indigenous affairs. The blending of mutual obligation policies with a broader community and public policy awareness that indigenous communities face significant challenges has enabled the Government to justify the winding back of the rights of indigenous Australians. The drastic step has been taken of abolishing directly elected indigenous representative bodies and making the enjoyment of basic aspects of life (such as access to a community pool) conditional upon the fulfilment of micro-managed obligations. While the politics of crisis and mutual obligation in indigenous affairs is at the root of the national campaigns of criticism against indigenous leaders such as Galarrwuy Yunupingu and Geoff Clark, the confusions and contradictions of this political discourse do provide a source of hope. The way remains open for all concerned and active citizens to highlight that it is illogical to talk of indigenous obligations to community without giving effect to substantive collective rights that, as yet, are only meaningfully acknowledged by the body of international law. Whether the recognition of such collective rights in Australia will entail the development of a more substantial and useful content to native title is one of the many issues that should be placed in the hands of indigenous communities. 

Andrew Thackrah is a fourth-year law student at the University of Western Australia and an employee of Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation, a native title representative body with coverage over the Murchison, Gascoyne and Pilbara regions of WA. The views expressed in this article are not necessarily those of his employer. 


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