The entire land and seascape is named, and the cultural memory of our old people is written there.
Our First Nations are extraordinarily diverse cultures, living in an astounding array of environments, multi-lingual across many hundreds of languages and dialects. The continent was occupied by our people and the footprints of our ancestors traversed the entire landscape. Our songlines covered vast distances, uniting peoples in shared stories and religion. The entire land and seascape is named, and the cultural memory of our old people is written there.
This rich diversity of our origins was eventually ruptured by colonisation. Violent dispossession and the struggle to survive a relentless inhumanity has marked our common history. The First Nations Regional Dialogues on constitutional reform bore witness to our shared stories.
All stories start with our Law.
We have coexisted as First Nations on this land for at least 60,000 years. Our sovereignty pre-existed the Australian state and has survived it. ‘We have never, ever ceded our sovereignty.’ The unfinished business of Australia’s nationhood includes recognising the ancient jurisdictions of First Nations law.
‘The connection between language, the culture, the land and the enduring nature of Aboriginal law is fundamental to any consideration of constitutional recognition.’ ‘Belonging to country and spirituality are central to Aboriginal and Torres Strait Islander identity, and these need to be the basis for far-reaching structural change.’
‘Communities here should be in control of their own affairs. This is not a new concept. People in the Torres Strait did so for thousands of years prior to invasion.’
Every First Nation has its own word for The Law. Tjukurrpa is the Anangu word for The Law. The Meriam people of Mer refer to Malo’s Law. With substantive constitutional change and structural reform, we believe this surviving and underlying First Nation sovereignty can more effectively and powerfully shine through as a fuller expression of Australia’s nationhood.
The Law was violated by the coming of the British to Australia.
This truth needs to be told.
Australia was not a settlement and it was not a discovery. It was an invasion. ‘Cook did not discover us, because we saw him. We were telling each other with smoke, yet in his diary, he said “discovered”.’ ‘Australia must acknowledge its history, its true history. Not Captain Cook. What happened all across Australia: the massacres and the wars. If that were taught in schools, we might have one nation, where we are all together.’
The invasion that started at Botany Bay is the origin of the fundamental grievance between the old and new Australians: that Australia was colonised without the consent of its rightful owners. Now is an opportunity for the First Nations to tell the truth about history in our own voices and from our own point of view.17 And for mainstream Australians to hear those voices and to reconsider what they know and understand about their nation’s history. This will be challenging, but the truth about invasion needs to be told.
‘In order for meaningful change to happen, Australian society generally needs to “work on itself” and to know the truth of its own history.’ ‘People repeatedly emphasised the need for truth and justice, and for non-Aboriginal Australians to take responsibility for that history and this legacy it has created: “Government needs to be told the truth of how people got to there. They need to admit to that and sort it out.”
Invasion was met with resistance.
This is the time of the Frontier Wars, when massacres, disease and poison decimated First Nations, even as they fought a guerrilla war of resistance. The Tasmanian Genocide and the Black War waged by the colonists reveals the truth about this evil time. We acknowledge the resistance of the remaining First Nations people in Tasmania who survived the onslaught.
‘A statement should recognise “the fights of our old people”.’Everywhere across Australia, great warriors like Pemulwuy and Jandamarra led resistance against the British. First Nations refused to acquiesce to dispossession and fought for their sovereign rights and their land. ‘The people who worked as stockmen for no pay, who have survived a history full of massacres and pain. We deserve respect.’ The Crown had made promises when it colonised Australia. In 1768, Captain Cook was instructed to take possession ‘with the consent of the natives’. In 1787, Governor Phillip was instructed to treat the First Nations with ‘amity and kindness’. But there was a lack of good faith. The frontier continued to move outwards and the promises were broken in the refusal to negotiate and the violence of colonisation.
‘We were already recognised through the Letters Patent and the Imperial statutes that should be adhered to under their law. Because it’s their law.’ ‘Participants expressed disgust about a statue of John McDouall Stuart being erected in Alice Springs following the 150th anniversary of his successful attempt to reach the top end. This expedition led to the opening up of the “South Australian frontier” which lead to massacres as the telegraph line was established and white settlers moved into the region. People feel sad whenever they see the statue; its presence and the fact that Stuart is holding a gun is disrespectful to the Aboriginal community who are descendants of the families slaughtered during the massacres throughout central Australia.’
Eventually the Frontier Wars came to an end. As the violence subsided, governments employed new policies of control and discrimination.We were herded to missions and reserves. ‘A number of delegates expressed the importance of remembering and honouring First Nations people who had fought in wars, including frontier wars, but had not been recognised.’
‘[We] recall the Coniston massacre, and the many other massacres throughout the region. [We] remember the Aboriginal people involved in fighting in the frontier wars…If the government wants to speak about ‘recognition’ they need to recognise the true history, recognise the frontier wars.’
‘People spoke of the mass slaughter of Aboriginal people during colonisation and how genocide had been committed on over 180 clans in Victoria.’ Torres Strait ROM, p1: The meeting ‘remembered the massacres of the Kaurareg nation, and that the hurt and pain this had continues to this day, unresolved.’ ‘Under non-Aboriginal law there have been killings, massacres, genocide, the stealing of land, the introduction of disease, and the taking of children.’
Our Stolen Generations were taken from their families. ‘The Stolen Generations represented an example of the many and continued attempts to assimilate people and breed Aboriginality out of people, after the era of frontier killing was over.’
But First Nations also re-gathered themselves. We remember the early heroes of our movement such as William Cooper, Fred Maynard, Margaret Tucker, Pearl Gibbs, Jack Patten and Doug Nicholls, who organised to deal with new realities. The Annual Day of Mourning was declared on 26 January 1938. It reflected on the pain and injustice of colonisation, and the necessity of continued resistance in defence of First Nations. There is much to mourn: the loss of land, the loss of culture and language, the loss of leaders who led our struggle in generations past. ‘Delegates spoke of the spiritual and cultural things that have been stolen. Delegates spoke of the destruction of boundaries because of the forced movement of people, the loss of First Peoples and Sovereign First Nations spirituality, and the destruction of language.’
‘The burning of Mapoon in 1963 was remembered: “Mapoon people have remained strong, we are still living at Mapoon. Mapoon still exists in western Cape York but a lot of our grandfathers have died at New Mapoon. That isn’t where their spirits need to be.”’But as we mourn, we can also celebrate those who have gone before us.31 In a hostile Australia, with discrimination and persecution, out of their mourning they started a movement – the modern movement for rights, equality and self-determination.
‘We have learnt through the leaders of the Pilbara Strike, we have learnt from the stories of our big sisters, our mothers, how to be proud of who we are.’ ‘The old men and women were carrying fire. … Let’s get that fire up and running again.’
The movement for political change continued to grow through the 20th Century. Confronted by discrimination and the oppressive actions of government, First Nations showed tenacity, courage and perseverance.
‘Some of us can’t speak our language. Some of us went to school and it was bashed out of us. There are psychological reasons why we can’t speak our language.’ ‘There’s a lot of sad stories from the Stolen Generations: genocide, abuse. And none of the people will be brought before the justice system for the abuse of those children.’
‘[We] want the history of Aboriginal people taught in schools, including the truth about murders and the theft of land, Maralinga, and the Stolen Generations, as well the the story of all the Aboriginal fighters for reform. Healing can only begin when this true history is taught.’
‘The government will always try to find a way to break you or beat you down. That doesn’t mean that we’re any weaker as Indigenous people because we lost. We’ve only lost in their eyes, they don’t know what we have underneath.‘
‘Those who came before us marched and died for us and now it’s time to achieve what we’ve been fighting for since invasion: self-determination.’ ‘Torres Strait Islanders have a long history of self-government. The civic local government was established in the late 1800s, and in the 1930s after the maritime strikes, local councils were created, and in the 1990s, the TSRA. The Torres Strait Islander peoples also have rights under the Torres Strait Treaty.’
Our leaders knew that empowerment and positive change would only come from activism. Right across Australia, First Nations took their fight to the government, the people and the international community. From Yorta Yorta country, Yirrkala and many other places, people sent petitions urging the King, the Prime Minister and the Australian Parliament to heed their calls for justice. There were strikes for autonomy, equality and land in the Torres Strait, the Pilbara and Palm Island. ‘The history of petitions reminded people about the nationally significant Palm Island Strike. So many people from this region had been removed from Country to the “penal settlement” of Palm Island since its establishment in 1916. The Strike was also sparked by a petition, this time from seven Aboriginal men demanding improved wages, health, housing and working conditions, being ignored by the superintendent. We commemorate 60 years of the Strike in June 2017.’
Our people fought for and won the 1967 Referendum, the most successful Yes vote in Australian history. In front of the world, we set up an embassy on the lawns of Parliament House and we marched in the streets of Brisbane during the Commonwealth Games.39 In the west, grassroots leaders like the late Rob Riley took the fight on sacred sites, deaths in custody and justice for the Stolen Generations to the highest levels of government.
At the heart of our activism has been the long struggle for land rights and recognition of native title. This struggle goes back to the beginning. The taking of our land without consent represents our fundamental grievance against the British Crown. The struggle for land rights has united First Nations across the country, for example Tent Embassy activists down south supported Traditional Owners in the Territory, who fought for decades to retain control over their country. The Yolngu people’s fight against mining leases at Yirrkala and the ‘Several delegates said that it was important to learn from the work of those who have gone before, for example from the demands that were contained in the three Yolngu petitions, including the Barunga statement, the Makaratta, Coe vs the Commonwealth, the Mabo decision, the 1938 10-point plan, as well as the Rights, Recognition and Reform Report compiled by ATSIC as a social justice package.’
‘[We] remember marching in the past despite knowing that we’d be met with police brutality and unwarranted arrests.’ ‘The dialogue emphasised the unique political activism in Queensland, in particular the South East region. This history reflects the indelible relationship between Aboriginal and Torres Strait Islander Peoples in the struggle, with and for each other. It is important that this special relationship, based on our old people’s leadership, is recognized and continued.’ ‘We don’t have access to our own land … We can’t access special places for women’s and men’s business. Without our spirituality and identity we are nothing … There needs to be a mechanism to allow these things to take place. … We don’t have access to our own sea as well.’
Gurindji walk-off from Wave Hill station were at the centre of that battle. Their activism led to the Commonwealth legislating for land rights in the Northern Territory. The epic struggle of Eddie Mabo and the Meriam people resulted in an historic victory in 1992, when the High Court finally rejected the legal fallacy of terra nullius and recognised that the land rights of First Nations peoples survived the arrival of the British.
The invasion of our land was met by resistance. But colonisation and dispossession cut deeply into our societies, and we have mourned the ancestors who died in the resistance, and the loss of land, language and culture. Through the activism of our leaders we have achieved some hard-won gains and recovered control over some of our lands. After the Mabo case, the Australian legal system can no longer hide behind the legal fiction of terra nullius. But there is Unfinished Business to resolve.
And the way to address these differences is through agreement-making. ‘Treaty was seen as the best form of establishing an honest relationship with government.’ Makarrata is another word for Treaty or agreement-making. It is the culmination of our agenda. It captures our aspirations for a fair and honest relationship with government and a better future for our children based on justice and self-determination. ‘If the community can’t self-determine and make decisions for our own community regarding economic and social development, then we can’t be confident about the future for our children.’
Through negotiated settlement, First Nations can build their cultural strength, reclaim control and make practical changes over the things that matter in their daily life. By making agreements at the highest level, the negotiation process with the Australian government allows First Nations to express our sovereignty – the sovereignty that we know comes from The Law.
‘The group felt strongly that the Constitution needed to recognise the traditional way of life for Aboriginal people. … It would have to acknowledge the “Tjukurrpa” – “our own Constitution”, which is what connects Aboriginal people to their creation and gives them authority.’
‘There is a potential for two sovereignties to co-exist in which both western and Indigenous values and identities are protected and given voice in policies and laws.’ ‘We have to fight for black and white. Mabo said to his son – let’s fight for black and white. His son asked, but why are we fighting for whitefellas? And Mabo said, because they are blindfolded, we need to open their eyes and let them recognise that we were in this country before them.’
‘There is a potential for two sovereignties to co-exist in which both western and Indigenous values and identities are protected and given voice in policies and laws.’
‘We want Australia to take a giant leap in humanity. This is about truth-telling. Whether it is constitutional change or Treaty. It is not about colour. It is about truth-telling and justice.’
‘[A] treaty process will only be worth the effort if its effects and benefits can filter down to the grassroots and make a difference to people in their daily lives.’