To many such as me, it will be yet another dark chapter of Australia’s history and a classic repetition of the major mistakes that have plagued the relationship of the white community and the first Australians since the arrival of the First Fleet. To others it may have different connotations. What is important is that it be evaluated on the basis of evidence and not assertion, or the pursuit of short term political interests that so often cloud consideration of the issues.

This collection of essays achieves that object. It is true that the contributions do not come from apologists for the Intervention, but at the same time the tone is cool, credit is given where it is due and the arguments of those apologists are to be found within.

Most contributors concede that the objects of the Intervention evolved from a genuine concern to bring about a change in the relationships of Government and the Aboriginal community for the eventual benefit of the latter. While some, including me, may have doubts about that, all agree that the situation of most Aboriginal people in the NT in 2007 was completely unsatisfactory. However with some minor exceptions in relation to particular aspects of the Intervention, the authors say that there is little evidence that the Intervention has improved the situation and there is a considerable body of evidence that in most areas, it has either not improved it or has worsened it. This makes it more difficult to understand the Labor Government’s stubborn persistence in maintaining it.

Those who question why this is so appear to be unanimous in the view that the fault lies in the failure of successive Governments to appreciate that real change cannot be brought about by politicians and bureaucrats in Canberra or the NT, fuelled by polemicists such as Hughes and Johns, or people representing but one strand of Aboriginal opinion. The message that emerges from these essays is that unless and until the Australian and State and Territory Governments stop merely consulting Aboriginal people in the NT and instead bring them and their leaders into the decision making process as equals, any Government initiative will inevitably fail.

The tone of the essays is set by Peter Billings’ introduction and the evocatively titled first article by Tom Calma, “The Northern Territory Intervention-It’s Not Our Dream”. Calma provides a useful historical survey of the events surrounding the Intervention and what has followed and makes the point that one of its worst aspects was the suspension of the Racial Discrimination Act.

In one stroke Parliament, by doing so, converted the Aboriginal citizens of this country into second class citizens and revealed the shallowness of the guarantee of racial equality provided by the RDA. This is something that should not only concern Aboriginal Australians but all of us.

Billings and Cassimatis are similarly critical of both Governments’ behaviour in relation to the RDA and the attempt by the Labor Government to preserve aspects of the Intervention as ‘Special measures’ upon the basis of questionable consultations with the Aboriginal people.

As Crowe points out in the final essay, while the Act does not form part of the Constitution, it is a law that Australians have come to rely upon as a bulwark against arbitrary and excessive Government actions.

Calma makes the point that the three elements of good Indigenous policy making are a human rights approach, Indigenous participation and government accountability to demonstrate the success or otherwise of measures taken. He says that the Howard Government and its successors have failed all three of these tests.

He and other writers point to the almost uniform condemnation of the Australian Government’s policies by UN and human rights bodies and individuals. This seems to be something that does not worry the major Australian political parties other than the Greens, but I for one feel very uncomfortable when my country behaves like an international pariah. The resulting damage to its international standing and capacity to influence human rights issues is immense.

In their chapter Arney et al document the shift in the thrust of the Intervention from preventing child sexual abuse to addressing Aboriginal disadvantage and the issue of neglect of Aboriginal children. As Thalia Anthony points out, statistics for child sexual abuse in the NT have been steady since 2003 with a slight decline in the rate of successful prosecutions

This is not surprising as the spectre of extensive child sexual abuse and paedophile rings so heavily relied upon by the Howard Government has proved to be a myth about as credible as its ‘children overboard’ myth in relation to asylum seekers.

The sad irony of the Intervention as documented by Anthony is that the major effect of additional policing has been  the increase in imprisonment rates of whites and Aboriginals alike for driving offences a number of which carry with them mandatory penalties of imprisonment.

Thus the focus of the Intervention has shifted from child sexual abuse to unlicensed drivers and unregistered vehicles. At the same time the already unacceptable level of imprisonment of Aboriginal people is driven higher in a Territory where imprisonment rates increased by 23% between 2006 and 2009 and where 82% of the prison population are Indigenous. These are shocking figures and the absurdity of how the Intervention has exacerbated this situation is evocative of the apartheid regime in South Africa.

These figures make a mockery of the need for increased police powers and the involvement of the Australian Crime Commission in the Intervention.

Marcelle Burns deals with the issue of Indigenous homelands which raises the troublesome issue of what the Intervention was and as continued by the Labor Government is, really about.

Burns view, which I share, is that successive Government policies towards homelands forms part of a wider neo-liberal agenda intended to destroy the culture of Indigenous people and convert them into typical ordinary dwellers living in an Indigenous version of market driven suburbia.

She argues that what amounts to the forced relocation of residents from homelands into some 20 designated settlements embodies an economic rationalist approach to Indigenous people at the expense of their rights under the Declaration of the Rights of Indigenous Peoples and other international instruments, which Australia purports to support.

She refers to the resemblances between the Labor Government’s Closing the Gap policy and the Howard Government’s approach to Indigenous policy, with its emphasis on statistical equality over protecting and promoting Indigenous peoples’ human rights. This is mirrored by the NT’s Working Future policy of reducing education services in remote areas in order to force Indigenous people into larger communities.

Another example of this broad and sinister design not dealt with in this essay relates to the leasing by Government of Indigenous land by way of long term leases of land held by traditional owners in return for the provision of housing and services, the cost being paid by Indigenous people themselves out of mining royalties.

A number of contributors deal with the vexed question of income management, introduced as part of the Intervention and continued by the Labor Government in modified form. Arney et al refer to the Pearson led ideology behind this scheme. They and others are highly critical of the lack of effective evaluation of the program.

Billings and Cassimatis comment that the law and policy prescription applied in the NT, particularly to income management, has treated people as simply incapable of acting responsibly, irrespective of personal circumstances.

The authors point out that the Labor Government’s ‘consultations’ have been marked by their lack of transparency regarding summary reports and quantitative data and that these have been used to justify its income management scheme. They also suggest that there are instances where income management will actually promote, rather than reduce individuals’ dependence on state control, a point also made by Crowe in the final essay. They are critical of its blanket application to ‘disengaged youth’ and long term adult welfare recipients upon the basis that it is punitive and runs contrary to the universal right to social security. They are also critical of Government approaches that purport to set one set of universal rights against others, in this case the rights of children against that universal right.

Finally, in a broad philosophical discussion of the Intervention, Crowe examines the role of social space in enabling humans to live meaningful lives as applied to the Intervention.

He suggests that the lack of consultation and reliance on Anglo Australian law in response to criminality and socio-economic problems in remote communities has troubling colonialist overtones and that the substitution of the Government’s vision of Indigenous welfare for the views of those affected is a form of ‘epistemological violence’.

He says that Indigenous people must be able to shape their own space if it is to be meaningful and this requires a genuine commitment to self determination that is lacking from the Intervention. He uses income management as a particular example of pushing them into narrower spaces in which to live and controlling their lives thereby reducing their opportunity to live full and meaningful ones.

This contribution is a fitting note to end this series of essays which should give pause to the Federal and NT Government in making plans for the future of Indigenous people in Australia.

Alastair Nicholson was a barrister in 1982-88, Chief of the Supreme Court of Victoria in 1982-88, Chief of the Family Court of Australia in 1988-2004 and is currently a professorial fellow at the University of Melbourne. He has written and spoken widely on human rights issues.

Ten years earlier, in February 1998, former Prime Minister John Howard had visited Galiwinku. He was met there by several tribal political leaders and was given the great honour of having the group’s Dhulmu-mulka Bathi hung around his neck. By doing this the leaders hoped to impress upon him the inherent depth of Yolngu law. Later the same day John Howard travelled with his group to Yirrkala, where he was given a petition by the Yolngu people. It read:

We request that you recognise:

1. the Dhulmu-mulka Bathi (Title Deeds) which establish the legal tenure for each of our traditional clan estates. Your Westminster system calls this ‘Native Title’.

1. the jurisdiction of our Ngärra/Traditional Parliament in the same way as we recognise your Parliament and Westminster system of Government.

1. [and] our Madayin system of law.

Neither of these petitions was ever tabled in Parliament. Rather the 2008 and 1998 petitions, together with the 1988 Barunga Statement requesting a treaty and the 1963 Yirrkala Bark Petition, merely appear on the government website <www.australia.gov.au/about-australia/australian-story/bark-petitions-indigenous-art>. In fact, despite all these petitions, under the leadership of John Howard and Mal Brough the 2007 Intervention has meant the undermining of Yolngu autonomy and authority. As widely reported, Indigenous people across the Northern Territory are subject to blanket welfare quarantining, compulsory acquisition of lands and the removal of Aboriginal customary law from consideration in NT courts.

The Intervention has also seen a large investment in housing in designated communities (denied to those not willing to sign land leases) and more alcohol restricted areas. But unbeknown to most, the Intervention coincided with a raft of NT government actions, including the forced restructuring of local governance away from community-controlled associations to new super-size regional shires, the desertion of bilingual or ‘two-way’ education policies, and the Working Futures policy (aka ‘growth towns’) diverting funding from homelands, as well as an increased police presence in remote communities.

The result has been a huge centralisation of decision-making, with a large power shift from Yolngu governance to that of an outside jurisdiction. Indeed, the Intervention has meant that over five decades of Yolngu requests for recognition of their culture, legal and governance systems from Australian authorities has come to nought, and the very opposite is now occurring: the denial of land and legal rights, as well as culture and language.

The response of Yolngu leadership to the recent federal government announcement of a second round of NT Intervention measures into Aboriginal communities, then, comes as no surprise. In a press release on 27 June 2011, tribal political leader the Rev. Dr Djiniyini Gondarra responded: The Aboriginal people of the Northern Territory will only endorse a new initiative by the Government to improve the lives of Aboriginal people if the Government first establishes a diplomatic and respectful dialogue, negotiation and relationship with the traditional lawmen and lawwomen in the communities to be affected. These are the people that are seen as the true leaders by their communities, who are charged with maintaining ceremony, language, law and order. They must be properly consulted before any new initiative can take place in their communities.

As with previous attempts by Yolngu, Dr Gondarra is asking the federal government to approach Indigenous people government to government, jurisdiction to jurisdiction, leadership to leadership. It is a request for appropriate diplomatic relations between peoples.

The response of recent federal governments notwithstanding, such an outcome is not without precedent in Yolngu relations with the Australian state. But we have to go back to the beginning of last century to understand the Yolngu expectation that respectful diplomatic relations are possible, and even fruitful in bringing about mutual advantages.

Prior to 1906 the Yolngu had uninterrupted dominion of the East Arnhem Land region, complete with international trade with the Maccassans of Sulawesi. They had an ordered life, with political organisation based on clans, tribes and clan-nations, and a common system of law called Madayin.

In 1906 the South Australian government barred the Maccassan trepang-traders of Sulawesi from entering Australian coastal shores, thus beginning an economic decline that could be said to continue to this day. However, twenty-nine years later, it was this embargo that indirectly led to possibly the first and best instance of diplomatic communications between Yolngu and Australian government jurisdictions.

Following the removal of the Maccassans from Australian shores, others took over the northern trepang trade, and some Yolngu collaborated with these new trepangers. Yet such partnerships were often volatile, lacking the protections of the contractual and family ties that had been established with the Maccassans over centuries. This led to trespass on Yolngu land, legal violations of Yolngu law and personal abuses. One such incident culminated in the killing of five Japanese trepangers in 1932, and the 1933 killing of police constable Albert McColl, who was sent by Australian jurisdictions as part of an expedition party to investigate the Japanese deaths.

As a result of a naive missionary gesture of peacemaking, and because of a betrayal by Australian government officials, four Yolngu men (Natjiyalma, Maaw, Narkaya and Dhakiyarr) were jailed for the killings in Darwin. All of these men were considered son (gathu) to the Djapu tribal political leader Wonggu.

In the midst of calls for revenge expeditions from frontier populations in Darwin, the Melbourne-based anthropologist Donald Thompson was able to convince the federal government to help fund an expedition into East Arnhem Land where he might negotiate a solution. Thompson began his expedition in 1935, and through doing so developed a strong mutual friendship with Wonggu. As leader (Djirrikaymirr) of the Djapu tribe, Wonggu gave Thompson a letter stick declaring peace with the outside authorities. It does not seem that this stick was actually delivered to Australian government officials, but instead Thompson gave his sanctioned advocacy and assurances. As a result Wonggu’s three remaining sons were released and personally returned by Thompson to East Arnhem Land.

Unfortunately the son charged with Constable McColl’s death, Dakiyarr, had been released earlier and disappeared under suspicious circumstances. Nonetheless, the communication between Wonggu and Donald Thompson—underpinned by the Yolngu and Australian governing authorities—is the first clear example of diplomatic communications between Yolngu and Australian jurisdictions. In other words, the Australian government had sent an ambassador into East Arnhem Land to negotiate terms of peace, the ambassador found the appropriate authority, and with mutual respect the two were able to come to an agreement.

The question that might be asked in 2011 is why a version of that careful, open and authoritative diplomatic action can’t be undertaken today. Both Labor and Coalition governments seem incapable of understanding this requirement of appropriate cross-cultural decision making. A change of paradigm is needed that honours the voice of the Yolngu people and existing mechanisms of Indigenous government. In East Arnhem Land at least, the parameters for respectful relations across jurisdictions have been consistently defined. Through decades of their own diplomatic engagement Yolngu political authorities have made it clear: a helpful approach requires mainstream recognition of law, land tenure, Yolngu ‘way of life’ and Yolngu jurisdiction where decisions affect the lives and culture of their people. These requirements are the Yolngu basis for mutual dialogue; without them, what can really come next?

Author: Kendall Trudgen works as a community development facilitator and mediator in Galiwinku, Northern Territory.

A central feature of the Basin Plan is the introduction of a practice known as sustainable diversion limits (SDLs). This mechanism is designed to enforce limits on the amount of water that can be taken out of the Basin’s surface and groundwater supplies. Checks and balances designed to manage water quality and salinity levels also feature in the Basin master plan. In the longer-term the plan is designed to return between 27–37 per cent of surface water to the system. At the more specific level this will mean some regions face extensive reductions to current levels of water taken from the rivers.

Release of the long awaited Basin Plan has produced predictable responses generating strongly polarised reaction based on long standing social divisions. Wide-ranging tensions feed into, and are sustained by, an increasingly dysfunctional political framework that is conflictual, divided and parochial and perpetuated by a compromised, biased and corporatised mass media. This article acknowledges the coexistence of a number of narratives from different times, which have now become interwoven into the neo-liberal discourse about the rationalising powers of the marketplace. The analysis highlights the links between the colonial heritage of the production of export materials; the key role of irrigation schemes in the process of ‘nation building’; the nexus between water control and public policy; and, finally, global trade and water use.

Background

The Murray–Darling Basin covers 1,061,469 square kilometres or approximately one-seventh (14 per cent) of the total area of Australia (7,692,024 square kilometres).

It contains over 40 per cent of all Australian farms, which produce wool, cotton, wheat, sheep, cattle, dairy produce, rice, oil-seed, wine, fruit and vegetables for both domestic and overseas markets. As Australia’s most important <http://www.murrayriver.com.au/about-the-murray/murray-darling-basin/#agriculture> agricultural region, the Basin produces one third of Australia’s food supply and supports over a third of Australia’s total gross value of <http://www.murrayriver.com.au/about-the-murray/murray-darling-basin/#agriculture> agricultural production.

Assumptions about land, agricultural production, economic development and security, and water are fused in this statement (sourced from the Murray River tourism website). It is an example of a sustained narrative about social economic and political priorities, a meta-discourse that frames thinking about water flow and use in this large area of the nation.

In only two hundred years the Murray–Darling Basin has become a centrepiece of integrated economic development and cross-sector management practices. Within the post-colonial history of this region there are many examples of trendsetting policy development and technically advanced and large-scale forms of development. A good deal of the political impetus and economic investments of these changes has been the drive towards ‘nation building’. Water management has been a central feature of these processes.

Viewed historically there are three major phases in this narrative of social change. Before sketching each in a little detail a caveat is required. Within the landmass and waterways associated with what is now codified as the Murray–Darling Basin the doctrine of terra nullius cannot apply. The Basin has a long history as a demographic centre of Indigenous life. Australia’s oldest known skeleton was found in this area, at Lake Mungo in southwest New South Wales, and anthropological records show that before colonisation the region contained the highest density of Indigenous groups anywhere on the continent. The rich bio-diversity of the area existing within the confluence of a large number of rivers and streams provided a wide range of food sources. These river systems also acted as meeting places of people from many different groups. Consequently a large number of important cultural sites are located throughout the region. Many Aboriginal people died as a result of diseases brought into the country by colonists; however, a significant number of Indigenous Australians representing many different groups continue to live in the region.

Developments through the 19th Century

Through the 19th century the Murray–Darling Basin was settled and maintained within a field of tension between two opposing forces. The region became a provider of wool for the burgeoning fabric industries of northern England; at the same time large areas of the region were taken up in pastoral leases by settlers intent on forging a new way of life away from direct British influence. This phase of social change was a time of regional settlement that involved establishing maps and territorial boundaries, naming areas and features, including the rivers, and thereby establishing legislative control over the land and an increasing number of socio-economic activities. 

By the end of the century the political leaders of the different colonies, or proto-states, were engaged in prolonged negotiations designed to establish a post-colonial federation. Inside these discussions and political work were also moves to create a modern economy. For this to take place there was an urgent need for stable and reliable water supplies. Such sources were understood to be a fundamental requirement of inland population growth and the development of strong and economically viable agricultural and pastoral industries.

Politicians in Sydney and Melbourne were the most powerful in shaping an early form of regional water policy. This fact is reflected in the development of a number of key government policies which marked the beginning of a post-colonial water reform that would bring major water flow and storage under statutory legislation. The first of these occurred in Victoria when the government introduced the Irrigation Act 1886. In New South Wales similar legislation was passed in the Water Rights Act of 1896.

During this phase, bureaucratic and legislative infrastructure to govern water courses and adjacent public land was put in place. This necessitated breaking the nexus between private property and water ownership. In moving away from the legacy of European riparian thinking there was a shift towards an ethos of public ownership and control of water as a common property.

Despite such development, the cultural legacy of riverfront ownership lives on. Some properties in strategic locations with direct river access have been handed down through several generations. The history of riparian times remains within the restricted narratives of such groups.

Developments through the 20th Century

By the beginning of the 20th century this early form of water reform set the scene for the next major phase of change: large-scale water storage facilitating major irrigation developments. Three major developments stand out as key exemplars of this phase of change.

The Murrumbidgee Irrigation Scheme is located in the Griffith-Leeton region of south-central New South Wales. While the area was understood to contain fertile soil, the larger and longer-term problem was the marginal and erratic rainfall. Using a variety of advanced engineering techniques, water was channeled into the area via a number of storages, locks and diversion canals.

By the beginning of World War II, the Murrumbidgee Irrigation Area (MIA) was an important source of agriculture for the nation. The MIA developed through the employment of technical expertise, large-scale funding and, eventually, the arrival of skilled farmers. As a result a diversified economy was developed in which new export crops, including rice, became key products of the region. All of this was made possible through the entrapment and diversion of water into an area that did not have a history of consistent water flow.

The Snowy Mountains Scheme is a process involving water storage, re-direction and power generation. Water from the Snowy and Eucumbene rivers is diverted to the west, or inland, across the mountains where it is released into the Murray and Murrumbidgee rivers. This diversion and controlled release of water has provided a wide range of agricultural developments using irrigated water. In what could now be labeled as ‘value adding’ this process of entrapment and storage of water has provided the opportunity for the generation of electricity.

The Menindee Lakes Scheme is situated on the Darling River in the far south-west of NSW. The scheme is a third example of a major development designed to capture and store a significant volume of water. Under normal conditions the Darling River flows unevenly, often running at a very low level via a long chain of waterholes and natural depressions that form lake systems.

In 1949 work commenced on creating a storage system comprised of dams, weirs, canals and flow regulators designed to control the flow of water. In 1968 work was completed leaving an integrated system that allowed water to be captured and stored in four linked lakes. From here water is diverted west to the mining centre of Broken Hill and also released back into the lower Darling River.

Communities including Broken Hill and Griffith have developed and sustain rich narratives about the benefits of water supplies directed into their locations. Such accounts acknowledge that there are many local beneficiaries of the water systems that sustain their communities.

Water Reform through Policy and Market Forces

In the early 1980s, fuelled by monetarist ideology, a politics of increasing economic stringency occurred. However, reformed water policy required an added input. Dating back to the 1960s a global discourse of environmental alarm, or crisis, had developed. Because this trend emerged on many different social, cultural and political fronts it impacted in many forms and a large number of locations. During this time ‘sustainability’ emerged as meta-environmental theme and merged with economic rationalist thinking, appearing in a wide suite of ‘environmentally friendly’ policies. A key example occurred in 1980 with the announcement of the World Conservation Strategy-ICUN 1980 which, in turn, was followed by the UN Brundtland Report of 1987. This document was, in effect, an argument for the need for all nations to undertake ‘sustainable development’ programs. Viewed holistically, it is a classic example of the fusion of economic management/environmental concern emerging ‘naturally’ in a discourse of sustainability.

Policy makers and politicians in Australia responded actively to this call for change through policy development and closer government management. The first change occurred at the governmental level. In 1992 Australia’s political leaders, the prime minister, state premiers and chief ministers constituted the Council of Australian Governments (COAG). COAG’s purpose was to streamline cross institutional communication and produce relevant generic policy. COAG first met in December that year, when it produced a statement called the National Strategy for Ecologically Sustainable Development. This document detailed a number of guidelines that fused economic, environmental and equity issues against a backdrop of global awareness and sensitivities. Ecologically Sustainable Development became the banner for a new approach to water reform.

The most recent suite of policy reforms, as indicated in the following policy directive, includes a national water strategy, which involves the following foci:

The Murray Darling Basin: The Government is working to restore the Murray Darling Basin to a sustainable footing by modernising irrigation and addressing the over allocation of resources. This will put the Murray Darling Basin back on a sustainable track, significantly improve the health of rivers and wetlands and will bring substantial benefits to irrigators and the community; Purchasing water for the environment; Improving water use efficiency in rural Australia; and Urban water security projects <www.pm.gov.au/Policy_Priorities/Future/Priorities#Climate>.

What we find here is an amalgam of the key water policy initiatives of the previous one hundred years. The theme of ‘irrigation’ continues to be central, although it now involves new technologies and more stringent methods of management. In this latter sense this suggests more ‘rational’ measurement and monitoring of water allocation and the employment of more ‘effective’ water trading schemes.

Current Water Use Trends in the Murray–Darling Basin

While agriculture is no longer the major source of national wealth, this sector still accounts for use of approximately 65 per cent of stored water and over 50 per cent of the national land area. Embedded within these figures is the fact that just over 90 per cent of water in agricultural practice is used for irrigation, which includes ‘surface’ irrigation as the main method. Production of cotton, rice and grapevines mainly involves water through irrigation. Moreover, these crops are high water uses, with cotton farming using 16 per cent and rice 11 per cent of total agricultural water. The following information from the Australian Bureau of Statistics reinforces understanding of the tight nexus between overall water use, irrigation practices and the production of rice and cotton:

Approximately 89 per cent of Australia’s cotton growers were located in the Murray–Darling Basin in 2008–09, irrigating 75 thousand hectares more land than in 2007–08 (up 141 per cent). The large increase in volume of irrigation water used was due to improved water allocations in the region. Similarly, Australia’s rice producers, all located in the Basin, used an increased volume of irrigation water in 2008–09.

In 2008–09, cotton accounted for the highest proportion of irrigation water used in the Murray–Darling Basin (23 per cent), followed by cereal crops for grain or seed (20 per cent) and pasture for grazing (15 per cent).

In this latter phase of change of water politics in the Murray–Darling Basin, cotton has emerged as the cash crop for current times. While other parts of the agriculture sector have been struggling, cotton farming has continued to develop for a number of reasons. Within a global context, cotton is grown within a latitude range of 45 degrees north through to 35 degrees south. The Murray–Darling Basin is thus securely located within this growth zone. Cotton is a crop that is planted and grown in an annual cycle. In the Australian growing season the growth cycle begins in September–November (planting) and ends in March–May (harvesting). As a broad-acre crop it is conducive to the use of large-scale/mechanised equipment in the planting, growth management (especially pest control) and harvesting stages. While the average sized farm in Australia is just over 300 hectares, cotton farming is an industry that lends itself to larger scale industrial development, including larger sized properties.

A key element in the production cycle is the availability of water. In this case the water trading policy and long-term irrigation infrastructure in the Murray–Darling Basin have helped encourage cotton production as an annual and broad-acre crop.

Cotton produced in Australia, and therefore in the Murray–Darling Basin, is an export crop. It is produced for the global market where the demand for cotton products is very high and thus the price or return on the commodity remains stable. According to cotton industry sources, 98 per cent of Australia’s cotton is exported. While overall production is low by world standards (only 3 per cent of world production) Australia contributes between 5–10 per cent of the world’s cotton exports. As an export industry this level of production generates a return of around $1.5 billion per annum.

Cotton is a quintessential global product. It has a very long history of use and has evolved to provide a wide range of commodities including clothing, multi-use commercial fibre, and as a food product for humans and animals. Moreover, cotton markets exist all over the globe. The increasing production of cotton in Australia, implying the growing use of water reserves, increasingly ties Australian production resources into the competitive global market. The export of cotton amounts to the export of large quantities of water.

Longer-term and Larger-scale Considerations

Modernist nation-building strategies have put in place large-scale water schemes designed to provide water for wide-ranging industrial and domestic purposes. While promoting demographic and economic growth, these practices have also resulted in over-production issues and helped create serious environmental problems. Current political strategies have been designed to address these concerns and have turned towards the logics of the marketplace. This is an approach designed to rationalise excessive demands for scarce water resources through the forces of competition.

In his essay ‘The Tragedy of the Commons’, Garrett Hardin made a number of observations that remain useful on population growth, resource management and political action. Hardin’s concern was about the tendency for leaders and strategists to turn to technical solutions to the problem of population growth in a finite environment:

An implicit and almost universal assumption of discussions published in professional and semi-popular scientific journals is that the problem under discussion has a technical solution. A technical solution may be defined as one that requires a change only in the techniques of the natural sciences, demanding little or nothing in the way of change in human values or ideas of morality.

It is now over forty years since Hardin’s essay was published; however, the themes he explored remain topical. Inevitably faith in a technical fix has turned general public attention to processes such as desalinisation as a method for tapping into the vast stores of sea water. No doubt as desalinisation plants come on-line they will reinforce the existing belief in technical and instrumental reasoning. In order for such issues to be debated more widely, there will need to be a different discourse about these connections. In particular, there will need to be a changed discourse about water as a vital feature of everyday life. In relatively recent times water has become defined, understood and experienced as commercial commodity; the strong sense in which it is a common cultural good is increasingly lost from view. On this score there is an opening to a very different form of cultural politics, including new forms of public education. Water is a common life element. For this reason it is a material property that exists at the very core of sustaining life. On this basis water as a generic topic has the potential for discussions, debates and dialogues across the ever-increasing range of interdependent sub-populations. In short, a new form of ‘water politics’ is needed as a corrective, or alternative, to the ever increasing forces of cultural commodification that act to separate, create difference and stimulate competition and conflict.

Lindsay Fitzclarence

This essay began in a cobbled street in the Jewish quarter of the Old City of Jerusalem.

As I gaze uncomprehendingly down into an open archaeology dig, roped off and with informative plaques, I become aware of a strident voice proclaiming the meaning of the damaged columns and beams of an earlier structure to an audience of what appear to be American college students. Jews loom large in the guide’s interpretation. He passionately proclaims the meaning of this place as personal and his, and he wants to make it theirs. I see that they are also Jewish, as some of the boys are wearing kippas. I am led to wonder whether tourist guides in Australia link their personal sense of national belonging to accounts of the country’s history. 

That thought remains. I know there are brochures in which the Bluff Rock massacre of Aboriginal people is made into a tourist attraction, but it is not a site of triumphal or righteous assertion. On the contrary, Australians are more likely to be found apologetically, even shamefully, acknowledging Aboriginal history and the injustices therein.

And yet, in a purely formal sense, the Zionist claim that Israel is a Jewish state has much in common with Australia’s assumption, or perhaps acceptance, that it is predominantly the Anglo citizens and traditions that define Australia’s character. In both cases ‘a people’ with a specific cultural persona has established and legitimised its presence in a particular space or country. In each case the newcomers assumed dominion over the people who had resided there before. It took over a century for the English in Australia to establish effective control, often with violence, over the whole land and its Indigenous population, and now virtually no one challenges ‘Western’ or ‘European’ hegemony. It thus appears that the question that Israel is constantly and aggressively engaged in answering—who belongs here—has been settled in Australia by time. Is it simply the passage of the years that legitimises cultural belonging?

The constant and comprehensive, violent and discursive, disputation about Israel’s legitimacy, in particular as a Jewish state, has many manifestations, and the effort to claim the past seems a relatively benign one, and common to many nations. But the intensity and emotion of Israel’s assertions betray their provisional nature. Sporadic, ineffective physical resistance by long-term residents to the Judaising of this land, and the persistent and vigorous attempts to silence, remove and disempower the Arab presence, ensures continuing conflict in many parts of Israel/Palestine. In Australia, by way of contrast, colonisation began and succeeded long ago, so that the cultural self of white Australia is quite comfortable, facing no apparent violent conflict or serious challenge to its presence. I say apparent because I believe the efforts of Indigenous writers and artists to disrupt the complacency of the white presence does create a certain psychic anxiety; more of this below.

Despite emotional and even violent moments of resistance, Israelis’ authority over Israeli territory—that within the 1967 green line—faces no more immediate threat than white Australia’s authority over this continent. Yet Israel’s constant assertion of an exclusive Jewish sovereignty over the land hints at an unadmitted fragility in the nation’s moral claims. The frequent, confident complaint that Israel’s very existence is still rejected by its Arab residents and neighbours becomes a self-fulfilling prophecy, independent of its facticity. However, there may be a long-term threat to the Jewish nature of Israel stemming from the fact that Israel’s population is static and deeply divided along ethno-racial and religious lines, while the Arab population is more unified and growing. Aggressive assertions that Eretz Israel is a Jewish land with a Jewish history and should be a Jewish state, and the Judaisation process that is apparent on even a brief visit to Israel, may indicate a lack of confidence about Israel’s own legitimacy.

The comparison with Australia is not intended to lead to history lessons—there are immense differences between the two situations—but to explore the explanations, justifications and subjective orientations that accompany the sovereignty claims of a particular people when they make their home in a place already occupied by other people with whom the newcomers do not want to identify. There are many examples of course, but I want to pursue these two a little further. Those in Australia who righteously berate and condemn Israelis for trying to make the land they claim into exclusively Jewish land are beneficiaries of an equivalent cultural hegemony. Thus it seems appropriate to ask why the desire of many Jews to have a state of their own, stamped with a religio-cultural identity, seems so unforgivably colonial. Time has allowed Australia to become post-colonial and able to write new history, recognise Native Title, and apologise for past violence without endangering its sovereignty and cultural dominance. The people the Jews are still displacing are alive, present and objecting, whereas by and large Aboriginal people only object to the conditions under which they currently live—which the nation officially regrets.

The other reason Australians can complacently criticise Israel’s Jewish exclusivity is that it flouts modern egalitarian principles that had not taken hold when Australia was claimed by Captain Cook and subsequently colonised. Modern nation-states insist that all citizens have equal rights, irrespective of race, religion or national origin, let alone gender or sexual preference. Rafts of anti-discrimination law and international charters are based on such principles; indeed Australians are scandalised at the suggestion that the selection of immigrants is based on race. Israel’s practice of accepting only and all Jews as entitled to full citizenship is popularly viewed as unacceptably discriminatory. The inferior form of citizenship available to Arabs and other non-Jews is well-documented, though deniable due to the complexity of the legislative and administrative practices. The vigorous denial itself constitutes an admission that such discrimination is wrong. There are peculiar consequences of the entitlement of all Jews, from anywhere in the world, to a place in Israel. For instance, someone whose family has been Australian for generations is entitled to become a citizen of Israel if she or he has female Jewish forebears, whereas a non-Jew whose ancestors have lived in Israel for as long as they remember is not entitled to full and equal citizenship. Perhaps there is a faint echo in the entitlement of family members to enter Australia on the basis of family reunion provisions in the immigration laws—albeit very faint as this is a purely genealogical question, and applies independent of race and religion.

National Belonging

Human beings everywhere probably prefer conditions where the strangeness of the world is muted, where common language and others’ ways of relating present no challenge to an everyday sense of legitimacy. Nationalism can be seen as the attempt to remove the discomfort or insecurity that otherness poses. Yet elements of otherness are also, and always, inside a nation. Some ‘difference’ escapes control and remains a potential threat that nations must be vigilant in defining, containing, domesticating. Indeed it may be that some form of otherness helps, and may even be created as the enemy within, to identify the national self. We must be able to distinguish ‘our’ ways from the ways of some alien ‘others’.

The extent to which Anglo-Australians have established their homeliness here is illustrated in the limited hospitality afforded to non-English speaking immigrants who make up a substantial proportion of the population, and by the fact that Indigenous people find themselves made ‘other’ in their own land. A more interesting contrast with Israel is in the element of discomfort that was inserted into Australians’ consciousness when the injustices of the colonial past were brought to public attention and received extensive recognition in the 1980s. Historians and others now insist that the British heritage of this country includes not only the triumphs but also the destruction and oppression that accompanied white supremacy over the Indigenous population. A sense of shame in relation to the descendents of dispossessed Aboriginal people is now evident; but however deeply felt by some, these responses are, I believe, mainly intellectual ones. That is, while there have been extensive, sometimes extravagant, gestures towards righting the wrongs of the past, there is little evidence that Anglo-Australians’ sense of belonging in their own cultural space has been disturbed. There is certainly no equivalence to the ongoing painful sense of shame that some Israelis and many Jews feel about the continuing attempts to dispossess the Arab inhabitants of Jerusalem and the West Bank. One Israeli friend spoke of ‘our wretched country’. The area left for a potential Palestinian state has been shrinking ever since the occupation began. Before examining some of the current ways Jewishness is being implanted in memories and maps and in the very earth, let us compare the explicit reasoning that the British and the Jews used to assert their rights in these two cases.

Rational Nationalism

The ostensible justification of British settlement in Australia was the popular evolutionary theory of human social development. It was then simply common sense that more advanced peoples were entitled to displace those who were socially and technically, if not biologically, backward. God blesses those who produce from the land, as against those who merely harvest its bounty. Similar arguments surfaced to justify the Jewish claim to the land once known as Palestine, land where some Jews had lived for centuries as one ethno/religious group among other Semitic peoples. But from the earliest Zionist movement to create a Jewish homeland, three other themes keep emerging—biblical authority, historical connection and need. Old Testament words may be disputed by biblical scholars and are ancient superstition to many non-religious Jews, but these proclamations nonetheless carry a cultural weight of some magnitude. The strident enunciation that ‘God gave this land to the Jews’, supplemented by later historical claims, has continually inspired the settlers to take possession of more land, and even secular Jews may find it hard to disown those who claim to be living out the founding myths of the Jewish people. Perhaps an admiration for Australia’s pioneers is not radically different, though we now sharply differentiate the murderous brutes involved in massacres from those who treated the Aborigines they were displacing humanely.

The need of Jews for a homeland is the most widely acknowledged, historically important and internationally accepted justification, and perhaps it has a faint echo in the British need for somewhere to put their criminals in the 1770s, and later the needs of an expanding population. Perhaps ‘desire’ or ‘opportunity’ are more appropriate terms. The Jewish need was of a different order, based originally on their chronically oppressed conditions in many parts of Europe. This need was articulated by the early 19th-century Zionists who systematically bought land and established communities in the then Palestine long before they were offered a recognised place there. When, after World War II, the extent and hideousness of Nazi anti-Semitic genocide became known, European nations accepted some responsibility for the extreme suffering of Jews, and they accepted the need for a Jewish homeland. The British, and later the United Nations, solved the problem by offering them a substantial part of what had become the Mandated Territory of Palestine. There is no doubt that the insult and injury to the Palestinians was recognised by those responsible, but the land was eventually handed over to the Jews for their own state despite vigorous protests from the incumbents and other Arab countries.

The early settlers of Australia did not need to consciously promote a specifically British state. Establishing ‘facts on the ground’ was taken to be a virtuous, progressive and brave endeavour, and only occasionally was there a need to preach the virtues of our cultural heritage. Aborigines who disputed ‘the white man’s’ right to be here were overwhelmed by the numbers, the guns and the technological power, against which their moral claims only allowed for a rear guard action that continues in a different form today.

Cultural Claims

Putting biblical justifications aside, for who in the modern secular world takes them to have serious political force, how are the cultural claims of each of the dominant groups—Anglo-Australians in the one case and Jewish Israelis on the other—actualised? Australia is saturated with cultural mores that came from Britain in the late 18th and the 19th centuries. The English language, the built environment, the legal system, and so on and on, stem from the colonisers who gradually and unevenly re-formed the whole continent that was named Australia in 1824. The Jewish settlers of the country that became Israel likewise reshaped the land, and sought to conceal evidence of its Palestinian past. After the Nakba of 1948, when over 700,000 Palestinians were driven or fled from their homes and were not allowed to return, their villages and other traces of their existence were systematically destroyed. However, what is startlingly apparent when visiting Israel is that this reshaping is not complete but is being advanced at every turn against imagined and real denials and contestation. Even in areas that are unambiguously and internationally known and accepted as Israel, there is a sense of unfinished identity, and Judaisation is being actively pursued, not least in the attempt to change the character of East Jerusalem. It is evident in museums, in the naming and renaming of villages and settlements in Hebrew, in tourist brochures, in historical accounts of all kinds of events in the past. For instance. in a small local museum in Petach Tikva, the history of an early Jewish settlement is told in graphic and heroic detail with little mention of other, earlier peoples in the district. The erasure of evidence of earlier Palestinian villages, named memoricide by Ilan Pappe, is being protested vigorously by some Jewish groups within Israel. Ted Swedenburg details the way various sites and episodes from the past are memorialised to privilege some events and erase others.

Archaeology and Owning the Past

The moment in the Jewish quarter of the Old City of Jerusalem that started this train of thought was one of a series of observations of the vociferous assertion of the primacy significance of Jews in the region’s history. These narratives position others who built and rebuilt cities and villages and occupied them for generations as temporary interlopers, sometimes helpful but often destructive of Jews. The work of archaeologists makes crucial contributions to this process. Nadia Abu El Haj has shown that there is no simple archaeology in Israel. Rather, Israeli archaeology is inextricably tied to establishing the legitimacy of Israel as a Jewish state.

It is the public face of archaeology in Israel and in Australia that most clearly illustrates the difference between the two forms of national belonging. There is no more secrecy about the efforts being put into Judaising Israel’s past than there was about Australia’s earlier white triumphalist history. The contrast is evident when archaeologists who uncover evidence of an ancient human past in Australia dutifully, even gleefully, name it Aboriginal. There is virtue and redemption attached to acknowledging Aboriginal claims to ancient habitation, ancient spiritual connections, ancient knowledge of the country. Intellectuals readily confess that settler Australians have shallow connections with the land and cling to the edges of the continent as if afraid of its interior power. The lack is even claimed as a feature of Australian identity. Unlike Israel, where Jewish settlers (in the widest sense) are aiming to legitimise the continuity of their ownership over three millennia, we Australian settler descendents are so confident in our ownership that we readily admit the limits of our historical connections. Indeed, our ability to recognise the deep spiritual connections of Aboriginal people with the land confirms our benign intentions and our legitimacy here. Acknowledging the depth and power of Indigenous spiritual connections with the land enhances our virtue while posing no threat to our mundane political and legal ownership.

Thus, all kinds of meetings are regularly opened with a formal acknowledgment of the traditional owners of the land on which the meeting is being held, or a ‘welcome to country’. Human remains dating from before European settlement are routinely named Aboriginal remains and contemporary Aboriginal people are accepted as the descendents with rights over their disposal. Dissenters exist among museologists and archaeologists who argue that remains from the deep past should be considered as simply human, and held in the custody of museums for the sake of science and human knowledge. But such an argument has not carried much weight in the face of our national desire to recognise Aborigines as the spiritual and symbolic, if former, owners of the continent.

Emplaced Nationality

All nations try to build a definitive character, fashioned out of particular historical events that become the national story, often a complex, morally fraught one that changes emphasis over time to fit changing moral and philosophical demands. Nations imagine themselves as one, as unified, as sharing some essential national identity, despite being internally complex and disparate. The process of forming ‘a people’ with a distinctive identity is primarily an imaginative process, but one that can flourish when that people and its leaders command a place or space. This is equally well illustrated in the formation of Australian and Israeli national identity.

The majority of Australians have had little immediate connection with either the early or later stages of the process of Indigenous dispossession, although there were always authors and intellectuals who explained and rationalised the necessity, inevitability—or the tragic injustice—of asserting their exclusive ownership of the country. While Australian innocence has been challenged and modified in recent years from immigrant and Indigenous quarters, and the nation’s culture is far more open and diverse, this is still a predominantly ‘white nation’.

The active Judaisation apparent in the Jewish quarter of Jerusalem’s Old City involves the resident Israelis today. The Jewish quarter has been refurbished. Houses with shining doorknobs and stylish window boxes enhance the attractively clean and well-preserved cobblestone streets. Stalls and old-style shops are overshadowed by expensive boutiques and wonderful displays of old treasures. As in other quarters, places of worship abound. A troupe of school children goes by one day, some boys wearing ringlets and little kippas, charming and innocent of what we are hearing about on the news: the aggressive dispossession of the Arabs of East Jerusalem. It is this news, along with the vast and ugly wall, the IDF soldiers and the armed settlers, that gives a chilling edge to assertions that Jewishness lies deep in the city’s soil.

We Australians plead guilty but feel innocent of the dispossession our forebears perpetrated. When a Jew asks us about oppressed Aborigines today, we are nonplussed; we are building houses for them, not tearing them down! We are expressing admiration and care for ‘our Aborigines’. But the question leads me to wonder, were our white place in our Australia threatened by millions of Aborigines refusing us legitimacy in the land, would ugly emotions arise and overwhelm our desire to recognise their equality and their cultural rights? The answer must be yes, as evident in the secreted seam of fear and hostility that emerged when the High Court of Australia pronounced that Native Title still exists and must be recognised in Australia.

What we cannot abide is the unflinching claims the Jews are making now against the resident Arabs whose houses are regularly demolished. The stories of particular acts of violence—house demolitions, settlers’ attacks on West Bank villages, the walls and electrified fences that constitute the Security Barrier—outrage us. If our grandparents did such gross things in this country they were wrong. Don’t the Jews understand such blatant dispossession by force is now unacceptable, that the legitimacy once attached to colonial dispossession has eroded?

I have not intended a moral, or even a political treatise, although there are both moral and political implications here. My aim has been to set out some parallels and contrasts in Australian and Israeli colonising processes so that we in Australia know from what position we are speaking when we try to understand and solve the problems of the claims of Jews and Arabs to the places we now call Israel and Palestine.

Bibliography

Abu El Haj, N., Facts on the Ground: Archaeological Practice and Territorial Self-Fashioning in Israeli Society, Chicago University Press, Chicago, 2001.

Anderson, B., Imagined Communities, Verso, New York, 1983.

Ben-Porat, G. et al., Israel since 1980, Cambridge University Press, Cambridge, 2008.

Collins, J. et al., (eds) Kebabs, Kids, Cops and Crime, Pluto Press, London, 2000.

Cowlishaw, G., Rednecks, Eggheads and Blackfellas, University of Michigan Press, Ann Arbor, 1999.

Everett, K., ‘Welcome to Country (Not)’, Oceania, vol. 79, no. 1, 2009.

Hage, G., White Nation, Pluto Press, London, 1998.

Lattas, A., ‘Aborigines and Contemporary Australian Nationalism’, in G. Cowlishaw and B. Morris (eds), Race Matters: Indigenous Australians and ‘Our’ Society, Aboriginal Studies Press, Canberra, 1997.

Sand, S., The Invention of the Jewish People, Verso, New York, 2009.

Schlunke, K., Bluff Rock, Fremantle Arts Centre Press, Fremantle, 2005.

Schulman, D., Dark Hope, University of Chicago Press, Chicago, 2007

Swedenburg, T., Memories of Revolt: The 1936–1939 Rebellion and the Palestinian National Past, University of Arkansas Press, Fayetteville, 2003.

Gillian Cowlishaw

Concerning the NT Intervention, my experience in remote, as well as not so remote, Aboriginal social settings is that certain unwelcome conditions are widespread. These include alcohol and substance abuse, and related violence; and their consequences for child and youth welfare. Health conditions are notorious. In many remote communities very few people survive to old age, while younger ones have multiple bypasses, complex operations, ongoing dialysis, and batteries of pills to swallow every day. There are other kinds of problems that do not lend themselves to such clear-cut description, including social involution and disoccupation in the face of what are often overwhelmingly difficult social conditions. None of these problems can be simplistically attributed to Indigenous ‘culture’. But there is a question, once one has had experience of these concentrated forms of neglect, problems and special vulnerabilities, whether one thinks that action should be taken. Many Indigenous people do. And so, in my own way, do I.

While advocating such action, I am fully aware of the limitations and difficulties that always attend such efforts. I can accept that others may regard those as prohibitive, or oppose such efforts in principle. I find it harder to accept that Lattas and Morris should be so intolerant of other views than their own on this question.

In thinking as I do, I am not ‘hiding’ behind any ‘leading Aboriginal intellectual brokers’. Do I refer to Marcia Langton and Noel Pearson, not because they have particular opinions and concerns, but just because they are Indigenous? If that is the suggestion, it seems insulting all round.

Let me also be clear that there are many aspects of the NT Intervention that I do not condone. I am not a supporter of the Intervention as launched, but of the idea that considered long-term intervention is needed. I have in mind something less flamboyant, much longer-term, much less geared to political cycles and impression management, much more collaborative and Indigenously-directed, and more attuned to existing social patterns and dispositions than we have yet had.

Yet, even with its flaws, I have seen evidence of some results of the existing Intervention that seem positive; for example, many Top End Aboriginal women with whom I have discussed the introduction of Basicscards do have positive views of this ‘income management’, while disapproving of the government’s non-consultative launching of the Intervention. Nor do people simply succumb, even with such developments as income management, to being policed into ‘mainstream models’ of family life: they lend Basicscards to their sisters and beyond, so that sometimes it is an interesting question where any particular person’s Basicscard actually is.

But these are variations on the main question: whether one thinks that some action is warranted to try to address social issues and problems, or whether one thinks that this is, and must necessarily always be, an extension and expansion of the ‘carceral state’ with its ‘systems of surveillance, discipline and pastoral care’. Can good come from the state? What terms of evaluation might be applied to state involvement? Lattas and Morris have never been clear about whether they think any explicit steps should be taken about any of the kinds of things I mention above, or how—with what combinations of state, Indigenous, and other agency—they think this might take place.

Aboriginal people had already become increasingly and thoroughly enmeshed in state apparatus even before the current Intervention. Many basic things about the resourcing of their lives—money transfers, health care provision, housing and so on—tie them, like the rest of us, to regulations and provisions of the state. There is, I agree, no call to enmesh them further in it. But anything we can call Indigenous ‘self-determination’ will develop under conditions of inter-relationship of Aboriginal people with other Australian people and institutions, not in complete isolation from them.

I also would agree that many of the Intervention provisions constitute a more thorough-going reach into the innards of domestic life than is true for most of the rest of us. The very school meals program that Lattas and Morris cite as an example from my discussion paper ‘More Than Rights’ (accessible online at <www.inside.org.au/more-than-rights>) represents just such an inroad into domestic organisation. Yet Lattas and Morris defend that program unconditionally, and rebuke me for suggesting that it would best be temporally limited. Why do I say it should be? Consider that such programs were a staple of the assimilation era, in most of the very communities where the meals programs now once again operate under the Intervention. Such programs were then, in the 1960s, conducted with exactly the primary purpose Lattas and Morris attribute to the current Intervention—to instill mainstream cultural dispositions and habits. They appear to have been only partly successful in that, but also to have created conditions which did not foster, and maybe even suppressed, the emergence of domestic regimes involving regular meal preparation.

Finally, Lattas and Morris are ‘scandalised’ by what they see as the use of anthropology’s familiarity with Indigenous cultures to legitimise the ‘legal alterity’ of Indigenous people. This refers to my statement that ‘universalist understandings of rights can be problematic in their application to people whose social lives differ from the mainstream’. I should have gone further and said that the application of universal human rights is often contentious with respect to the mainstream as well—but perhaps particularly contentious with respect to people, like many Indigenous Australians, who do not themselves think in terms of universal human rights, and who may act and propose kinds of solutions to concerns in their lives that do not conform to universalist principles.

This is not to say that we should not have and value human rights; and it is certainly not to advocate relegation of Aboriginal people outside their reach. However, there are often complex questions around the realisation of rights, and the reconciliation of certain rights with others. For example, how, in practice, is equality of right to life, liberty and security of person (as per Article 3 of the Universal Declaration of Human Rights) to be realised? There are regulations in mainstream communities to support and prioritise certain kinds of value and activity over others; so, for example, the rights of children to be tended may have to be prioritised over the rights of parents to do as they want. This is familiar territory: we all recognise obligations to protect the vulnerable. But my point is that ways in which Indigenous people may choose to identify and realise norms may differ from those in wider Australian society.

Francesca Merlan

In Australian history the protection of Indigenous women and children has often provided the humanitarian language that has legitimised extraordinary interventions seeking greater control of Indigenous people’s lives. There is nothing unusual about Indigenous people being governed through exceptional regimes of power that would be difficult or impossible to apply to non-Indigenous citizens. Whether it be the ‘murderous activities of the frontier’ or Indigenous people’s incarceration onto reserves that functioned almost as total institutions, Indigenous Australians have regularly been governed through extraordinary interventions that promise to be temporary until people have been normalised and transformed into self-governing disciplined subjects. As the ex-army officer and government minister who initiated the NT Intervention, Mal Brough, put it: ‘Stabilise, normalise, exit’.

It was Carl Schmitt who noted that sovereignty lies in the legal power to create exemptions to the norm. Developing this point, Giorgio Agamben argues that exceptional measures have been made into a modern-day technique of government. The current Intervention justifies its extraordinary necessity through moral critiques of the welfare state, the pathologies and dysfunctions of Indigenous culture, and the policies and institutions of self-determination. There is a collective pretence that it has not been inadequate funding, high staff turnover, poor planning, constantly changing policies and ineffective management which have led to poor health, education, housing, employment and material living standards for Indigenous people. Instead, Aboriginal culture and self-determination are blamed even though there is good reason to question the token and limited forms of self-management given to Indigenous citizens. Today, many politicians, academics and journalists justify the Intervention as a movement away from the abstract, wishy-washy, idealist, political objectives of Indigenous self-determination and towards realising practical, measurable goals that will truly benefit Indigenous communities.
Conveniently, this discourse shifts mainstream government failures onto Indigenous people—onto their assumed inability to govern themselves both at a collective and personal level.

Helping to legitimise the Intervention as the rational implementation of humanitarian objectives has been the creation of a huge statistical web around remote Indigenous people. Statistics dominates discussions about the Intervention’s legitimacy. Those statistics measure deviations from the norm and promise to adjust and calibrate interventions to produce social and cultural progress. Statistics serve to create for officials and Indigenous people a state of anxiety about the future health, education, employment and safety of loved ones, which allows the Intervention to offer itself as a practical solution. The Intervention could not exist without the production of this heightened sense of risk—without this statistically mediated and managed moral panic which exploits genuine public concern about child neglect and abuse. This rational web of humanitarian surveillance highlights Indigenous people’s collective and personal failures; it measures supposedly their collective preparedness and individual willingness to care for themselves and their children. Statistics have become part of a governmental apparatus that confronts Indigenous people, that interpellates and problematises them by
mirroring them back in ways that reinforce mainstream critiques and judgements that nowadays focus not on race but on poor cultural practices.

Contributing to the rationalisation and normalisation of the Intervention has been a widespread use of ethnographic data and anthropological theory by politicians, public servants, journalists and the wider public. Some anthropologists have actively embraced the public limelight to articulate cultural determinist arguments which criticize both customary and contemporary Indigenous culture as the true, hidden source of Indigenous problems. Whereas culture, especially ‘traditional’ culture, was previously seen as the salvation of Indigenous remote communities, the focus now is on uncovering and eliminating the dysfunctional aspects of Indigenous culture. Under the Intervention, the rise of cultural determinist arguments has operated as a form of psychological reductionism that allows for the internalisation of moral fault. Cultural determinism has worked to relocate the internalised sources of racial dysfunctionality from the realm of inherited biology to the realm of inherited culture. In terms of the history of anthropology, this is paradoxical for cultural analyses were once embraced and used to escape the reductionisms of biology and psychoanalysis, which posited their own internalised forms of dysfunctionality.

In public debate, a certain amount of ventriloquism has been involved on the part of senior anthropologists and other non-Indigenous commentators who invariably quote and hide behind leading Aboriginal intellectual brokers, such as Noel Pearson and his critiques of the welfare state as producing a culture of passivity and dysfunctionality in Indigenous communities. Pearson occupies a prominent place in conservative newspapers like The Australian which present his views as compatible with their own neo-liberal
desires to wind back the welfare state or at least create a more tightly policed version of welfare that will continually monitor and refer subjects back to themselves. There is an ongoing desire to reshape welfare into a system of surveillance and tutelage that can transform subjects and subjectivities. Professors of anthropology Peter Sutton and Francesca Merlan in particular have supported the current attempt to govern Indigenous people through instilling into them mainstream cultural dispositions. They accuse the welfare state of reinforcing aspects of Aboriginal culture which normalise and emphasise dependent states of being that are unsuited and dysfunctional in a modern world. Sutton calls for ‘a deep rather than superficial cultural redevelopment’. In her analysis of the school nutrition program re-introduced and expanded by the Intervention in ‘prescribed’ communities, Merlan warns against continuing it for too long because this might ‘make capacity for independent action a casualty’. Merlan here echoes neoliberal
claims that welfare state interventions do not emancipate individuals, but imprison them in forms of passive dependency. The Intervention’s initiatives ‘must only be temporary’ and deployed for ‘the shaping of human capacity’.

At the same time as we recognise the importance of
adequate nutrition, we must also recognise a need just as
urgent, if not more so, that people in
these communities see some reason to
shoulder more effectively the social
responsibilities, and recognise the
implications, of feeding, cooking, and
basic everyday activities.

What is anthropology, here, if not an ideological advocate for new pedagogic disciplinary technologies premised on an assumption that people do not shoulder fully their everyday, moral, domestic responsibilities. The fact that many Indigenous people choose not to cook in overcrowded houses with many visitors is treated as a learnt, dysfunctional, cultural trait rather than a strategic choice made in a situation where people cannot control access to the resources in a refrigerator or pantry. Buying ready-made store food and giving it directly to particular individuals ensures that they, at least, are looked after. Instead of looking for the causes of people’s everyday practices in the specificity of their current living conditions, there is a paternalistic assumption that people need to be taught how to realise their basic social responsibilities. Professor Jon Altman is one of the few anthropologists who has consistently publicly opposed the Intervention. In an important article he documents how anthropologists and public servants have re-contextualised and pathologised different Indigenous obligations to give. Lumping them together, they have homogenised different relations of reciprocity under the pejorative label of ‘demand sharing’. This treatment of Indigenous people as victims of a customary kinship system, which is deemed inappropriate and dysfunctional in a modern world, assumes that they are prisoners of a faulty cultural logic. It is perhaps no accident that two major supporters of the Intervention, Sutton and Merlan, come out of a linguistic tradition, for their model of culture is of a fixed and, in this case, deficient cultural grammar. Both selectively use ethnography to claim that welfare dependency has deep cultural roots in Indigenous people’s ritual, ceremonial and kinship obligations, such as between a mother’s brother and his nephew. It is absurd to assume that Indigenous people do not make distinctions between modern and customary forms of dependency, let alone to assume analytically that they are similar phenomena.

This cultural reductionist argument of an inherent cultural tendency to dependency ignores the different historical periods when Indigenous people were employed in rural areas. It also ignores the scholarly anthropological work on northern Australia that has focused on cultural autonomy and creativity within Indigenous communities. Berndt, Tonkinson, Kolig, Mackinolty and Wainburranga, and Rose have documented the complex world of creative borrowings through which Indigenous people have resisted by reformulating dominant hegemonic structures. Whereas the Intervention posits dysfunctional passivity to be a consequence of welfare, there have been many creative local responses and resistance to welfare policing, including the Intervention.

Current justifications for the Intervention include claims that it protects women, children and families from the demands of relatives by ensuring that half of welfare income is quarantined. We do not question the sincerity of the motives of government or its academic supporters but we do question the selectivity of the forms of governmentality that are being deployed around Indigenous people. What right does the state have to manage people’s gifts to each other or even the persistent demands of certain relatives? Currently, Indigenous people’s quarantined welfare income (that is, half their payments) must be spent at certain approved stores using an electronic card, which monitors and prohibits expenditure on alcohol, tobacco, pornography and gambling. If families wish to purchase larger items, such as whitegoods, then they must submit a quote and a special request to Centrelink, which will directly pay the supplier. A huge, administrative, electronic panopticon has been established to watch over everyday purchases to ensure that they are spent on family-oriented goods. This disciplining of Indigenous forms of consumption seeks to disseminate mainstream models of family life and to internalise ‘more rational’ forms of subjectivity that use a mainstream calculus in allocating scarce resources and affective care. The Australian Council of Social Services estimates that income management in the Northern Territory will affect approximately 20,000 individuals and cost $4100 per person per annum to administer. Revealingly, the government has moved Indigenous people off community development work programs and onto welfare payments so they can become ‘income managed’. When faced with a choice and a conflict between its own moral priorities, today’s state, via its policies and practices, affirms the priority and transformative powers not of work but of keeping people in dependent tutelary states of surveillance.

As a social engineering project, the Intervention uses a massive surveillance system to realise not just health, education, food and welfare goals, for it also seeks to transform the desire and need for these forms of bio-security into mechanisms for reorganising Aboriginal forms of sociality. Diverse institutions for realising everyday needs such as health, education, food and welfare are used to create a carceral state around Indigenous people, where the systems of surveillance, discipline and pastoral care that belong to total institutions are diffused into the social body. It is not just in the Northern Territory that the carceral state is being expanded around Indigenous Australians but also in Western Australia and Queensland. There, schools have become a means of monitoring and disciplining parents, whose welfare payments are reduced if their children fail to attend school regularly. Justified as reducing future forms of welfare dependency by improving children’s education, such measures use Indigenous people’s dependence on government funds and services to create surveillance and disciplinary regimes that also promise to integrate Indigenous people into mainstream society. We are dealing with significant shifts in the political rationality of how to govern. In particular, the rationality of governance ultimately seeks to transfer and implant the management of the social risk of poverty, health and education within individuals and their communities, making both into self-governing moral units.

For its supporters, the Intervention is not repressive but ‘positive’ and ‘productive’ in advancing a distinct way of life. ‘Evidence-based policy’ is the government’s euphemism for its new transformative practices and technologies. Their aim is to incorporate empirical and practical versions of the social sciences into the design of more effective microtechnologies of social governance. In his philosophical analyses of European history, Michel Foucault related the emergence and development of the social sciences to the emergence and development of modern technologies of power. Foucault argued that power never exists independently of knowledge; instead structures of power create and deploy bodies of knowledge around the kinds of subjects they posit and seek to bring into being. As anthropologists, we are interested in why outdated and discredited bodies of anthropological knowledge have been revived in Australia under the Intervention. Concerns with social pathologies and cultural dysfunctions that featured in functionalist approaches in the 1940s were a form of anthropology suited to colonial concerns with the scientific administration of native subjects. In their contemporary teaching, many anthropologists will emphasise the importance of social functions, but they also point to functionalism as a morally laden approach that ignores how wider structures generate the socio-cultural practices labeled as dysfunctional. In Australia, it has not just been politicians, public servants and journalists who have rushed in to revive such problematic social science analyses, which internalise and subjectify the causes of social problems as moral problems, but also leading professors of anthropology, such as Peter Sutton, Francesca Merlan and Marcia Langton.

Currently, we are witnessing the emergence of a new form of compromised, conservative anthropology aligned with Australian government policies. Despite strong public disavowals of having a racial character, these are above all policies that deploy and experiment with new forms of racial governance. This ideological re-alignment of Australian anthropology dealing with Indigenous communities has been facilitated by three factors: 1) the transformation of many academics into part-time or full-time consultants who celebrate and feel morally empowered by their ‘practical’ concerns; 2) the corporatisation of Australian universities and their desire to demonstrate the practical relevance of academic disciplines to government, students and the wider public; and 3) the imposition of national interest agendas on all Australian Research Council grants. Despite their highly lucrative private remunerations, many contemporary consultant anthropologists keep a foothold in the university system which adds academic status to their practical advice. Authorised by government concerns and a popular moral panic, which they have helped to create, these anthropologists have used books, academic journals, newspapers, television and the internet to propagate ideas which until very recently would be regarded as outdated ideological nonsense.

Local Indigenous communities do face real problems and difficulties, but does this legitimate creating coercive governmental structures around them, which it would be highly problematic, if not politically impossible, to apply to non-Indigenous citizens? Both Merlan and Sutton have justified the initial military-like entry into Indigenous communities as a theatre of power necessary to notify paedophiles, bullies, drug addicts and corrupt oligarchs that their time is over. Both use ethnographic familiarity with Indigenous communities to personalise the need for exceptional forms of state power, which lump together diverse social problems and ignore other, more effective solutions.

Merlan and Sutton believe race has been overemphasised in explaining Indigenous people’s social problems and they especially reject seeing the Intervention as having a racial character. As Merlan puts it: ‘we should move away from the centrality of objection to the intervention as “racially discriminatory”’. Continuing a long tradition of conservative Australian anthropology, which often simplifies and marginalises ‘race’ as an analytic category, she argues, ‘Race does not, and never has, offered a full account of the burdens of marginalisation and dependency that these communities have come to face, nor of the social and cultural specificity with which they do so. Other factors, in combination with race, lie behind the plausibility of intervention that the government seized upon’. We do not dispute the existence of other factors but what needs to be noted is how some Australian anthropologists will in a token way acknowledge that race cannot be dismissed from explanations of subordination and marginalisation. However, the other factors that they evoke in their supposedly more complicated picture invariably work to edit out and minimise race and especially cultures of racial resistance.

Highly problematic is Merlan’s use of anthropology to argue that the historical and socio-cultural specificity of Indigenous groups makes it often inappropriate to apply universal human rights. Such arguments prop up the Intervention in the face of international criticism that it breaches international human rights treaties. Like many commentators, Merlan participates in an ideological construction of the practical which is celebrated and juxtaposed against idealist abstract politics. Today, this simplistic dichotomy is frequently used to criticise international attempts to constrain Australian government policy by what Professor Merlan calls ‘rights normativity’. Drawing on the ethnographic specificity of Indigenous communities, Merlan argues that ‘universalist understandings of rights can be problematic in their application to people whose social lives differ from the mainstream’. Yet the whole point of universal human rights was to protect marginal groups from being created by their national governments into a legal state of exception. Reproducing Sutton’s argument, Merlan claims that a political culture emphasising rights and treating them as a form of protection has emerged since World War II and that: ‘This makes us incapable of imagining kinds of arrangements in which rights do not occupy the same position or are not conceived in the way we conceive of them’. Here, it is anthropology’s cultural relativism, its celebration of cultural pluralism, which is mobilised to claim that ‘the universality of equal rights’ does not fit in with the culture of Australia’s Indigenous people. Such sweeping ahistorical cultural claims raise questions about anthropological ventriloquism, which involves anthropologists revoicing their own political position as the cultural voice of informants. It is scandalous to use anthropology’s familiarity with the alterity of Indigenous cultures to legitimise their legal alterity, their transformation into a modern state of exception.

For Merlan, an emphasis on rights is based on a notion of the separate and distinct individual and that Aborigines have alternative ways of thinking about obligations. ‘It is illusory to think of an individualistic and oppositional notion of rights as less coercive than other kinds of possibilities that might be developed.’ Philosophers such as Hannah Arendt are called in to question our commitment to the ‘right to have rights’ and instead what is asserted is the importance of our concern to assist effectively ‘rather than doggedly assume the applicability of a single, allegedly universalist system of rights’. Merlan even claims that Aboriginal customary culture accords rights a secondary status as compared to responsibility. The respected anthropologist Fred Myers is used to provide ethnographic authority to this tricky distinction which is of dubious relevance for discussing the modern relationship of the state to Indigenous people. What is also not questioned is whether Indigenous understandings of responsibility can be equated with how responsibility is formulated within a neo-liberal model of welfare that speaks of mutual obligations and the responsibilities of welfare recipients.

Currently, parts of Australian anthropology have become a means of realigning Indigenous people’s voices and needs with a government position that manufactures the practical as being in opposition to Indigenous political rights. Claiming to be engaged in capacity-building, this new humanitarian ideology rearticulates neo-liberal views that Indigenous people and their culture are harmed by the ‘free’ care and rights that we give them and will be improved by more intrusive, controlling forms of care and conditional rights. While some anthropologists may believe that it is ethnography and social theory that underpin their views, it is possible to see the influence of popular neo-liberal understandings that claim we have been too soft in policing Indigenous communities (even though Aborigines form a disproportionately high percentage of the prison population) and too soft with welfare payments. There is a demand for Aborigines to give something back, despite their economic poverty. But what can they give back except tokens of compliance to mainstream norms? They must display appropriate evidence of a new found self-discipline through being supposedly more caring and diligent about their family’s health, sending their children to school, cooking regular meals, and shopping in a responsible way. These are not just practical measures but disciplinary forms of racial hegemony that demand symbols of Indigenous people’s acquiescence and compliance to the dominant culture’s norms. These micro forms of everyday governance seek to problematise Indigenous people by implying, for example, that if parents do not cook regular meals or cannot ensure their children attend school regularly that these parents do not love or care for their children, that they are morally dysfunctional.

Nikolas Rose argues perceptively that modern ways of assembling risk are intimately related to the valorisation of community as a site of policing. Increasingly replacing the previous space of the ‘social’, ‘community’ emerges as the new space of governance, as the territory for new interventions. Along these lines, the Intervention needs to be seen in the wider context of other government measures introduced throughout Australia where Indigenous communities have been pushed into mutual obligation agreements, which seek to transform them into self-policing and self-disciplining communities.We disagree to some extent with Altman and Hinkson’s argument that the ‘individual’ has replaced the ‘community’ as the focus of neo-liberal welfare concerns.

Both inform contemporary state practices, with technologies of individuation existing alongside a renewed emphasis and demand for communities to be self-policing. In Western Australia, on the edge of the Great Sandy Desert, the small Aboriginal community of Mulan signed up to what has been called a ‘Hygiene Pact’. In return for government financial aid to install a petrol bowser, the community undertook to implement a program to ensure their children showered everyday and washed their faces twice a day, and rubbish bins were emptied twice a week. Such neo-liberal policies are not directly aimed at minimising welfare costs, but more at maximising the welfare system’s transformative efficacy. They are framed as part of a long-term goal to reduce welfare costs though first training people in the disciplinary social habits that will facilitate them joining the workforce. Here hygiene and health join job training and education to create a disciplinary carceral state around remote Indigenous people.

For many years, the welfare system has been progressively tightened up around non-Indigenous citizens, creating a surveillance system of self-reporting around the unemployed that seeks to instill psychological discipline and aspirational capacities. It is the capacity to have ongoing hope for a job which is being monitored through the pastoral reporting regimes of a welfare state. With regard to Indigenous people in the
Northern Territory, the Australian state has gone further in its demands that welfare not be passive and has sought to perfect a system of welfare surveillance which seeks to be pedagogic while also operating as a form of punishment for being dependent. When Indigenous people on welfare gain employment, they become free of welfare quarantining whatever their personal qualities. It is work that confers individual independence, with welfare conferring a contingent form of freedom, a tutelary state of being subject to monitoring by structures which have their own pastoral objectives and techniques for creating subjects.

Merlan and Sutton’s emphasis that it is not poverty but culture that leads Aborigines to seek out dependencies is part of what has been called the Queensland school of anthropology. Apart from playing down race, it has also systematically played down and criticised anthropologists who have focused on contemporary Aboriginal forms of resistance. Other anthropologists, like Jeff Collmann and Barry Morris, who were part of the Department of Anthropology at the University of Adelaide, have documented the opposite, namely, Indigenous people seeking autonomy and seeking to evade capture and control by the welfare state. Today, it is not the essentialisms and determinisms of biology that serve to racialise Indigenous people but certain psycho-cultural essentialisms and determinisms that treat Indigenous people as prisoners of embedded cultural logics or grammars. Culture has replaced race as the new way of producing internalised essentialisms. Social problems are reduced to cultural problems and, indeed, to moral problems, to the inappropriate or dysfunctional use of Indigenous moral schemes.

Australia was founded as a penal colony, as a site for experimenting with the breaking and remaking of selves. Later, after the convicts, Australia’s Indigenous population provided the ultimate subordinate group, which was experimented with through incarceration into various kinds of total institutions run by church and government. Freed from these direct forms of moral supervision and discipline, Indigenous people now exist within the care of a carceral state where the surveillance and pastoral technologies of the prison, mission, government reserve and the asylum have been moved into everyday institutions. The NT Intervention is a huge experiment in tightening up this carceral state through increased forms of surveillance that use not just more police and non-Indigenous administrators but also schools, health, housing, welfare payments and even licensed shops. The aim is to instill a moral watchfulness and discipline in Indigenous people which will normalise and transform them into mainstream citizens who use an alternative calculus in their social relations. It is mainstream forms of the economic which are being disseminated as a way of grounding and forming subjectivity and social life.

The scandal of contemporary Australian anthropology is that it bends its ethnography and twists its theory to legitimise these new forms of racial hegemony, which claim that the securing of modern forms of bio-security requires the suspension of Indigenous people’s civil rights and their hopes for self-determination.

Bibliography
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Altman, J. C., A genealogy of ‘demand sharing’, paper presented at the Ownership and Appropriation Conference, University of Auckland, New Zealand, 8–12 December 2008.
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Altman, J. and M. Hinkson, ‘Very Risky Business’ in Risk, Responsibility and the Welfare State, G. Marston, J. Moss and J. Quiggin (eds), Melbourne University Press, Melbourne, 2010.
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Lattas, A. and B. Morris, ‘The Politics of Suffering and the Politics of Anthropology’ in J. Altman and M. Hinkson (eds), Culture Crisis, UNSW Press, Sydney, 2010.
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Author bios:
Barry Morris (University of Newcastle) and Andrew Lattas (University of Bergen) both received their anthropological training under Professor Bruce Kapferer at the University of Adelaide. In their extensive publications, both use Foucault to analyse changing forms of racial dominance and their appropriation and contestation by Indigenous peoples. Morris is the author of the Domesticating Resistance, a genealogy of different government attempts to manage and transform Australia’s Indigenous people. He has co-authored a number of edited collections including Race Matters and Expert Knowledge: First World Peoples, Consultancy, and Anthropology. Andrew Lattas did his PhD on changes in newspaper discourse in colonial New South Wales and has subsequently published on the changing knowledge/power nexus that informs race relations in Australia. He has two books—Cultures of Secrecy and Dreams, Madness and Fairytales in New Britain—which focus on millenarian movements and local popular attempts to reformulate race and modernity in Melanesia.

There are two basic ways of framing a resolution of relationships between Indigenous and non-Indigenous Australians. I will call them the ‘sacramental’ and the ‘pietistic’. In religious talk, sacramental paths to spiritual grace require a collective and ceremonial act. Pietistic ones are those of the individual in quiet communion with the divine.
Pietists stress a one-to-one relationship with the deity, unmediated by priestcraft or the collective witnessing of a symbolic sacrifice. Pietism is in some ways much more at home in an age of individualism than in ages of greater corporatism and communalism. The sacramental-sacrificial approach represents the reverse. It also goes back deep into Old World prehistory, to a time when animals and humans, not symbols, were sacrificed in human rituals.

That is about it, except for a few passing comments that do not add to this basic description. For Sutton, ‘sacramental’ is really a code for government-sponsored public programs paid for out of tax dollars, endless reports and posturing by politicians, all of which have failed dismally. In the second quotation above he has deviously added ‘sacrificial’, which is another category altogether and largely left alone. By contrast, ‘pietism’ acts as a catchword for private and personal ways of working in the world, outside the programs that seem to have failed. Why choose the terms sacramental and pietistic when collective and individual would have done perfectly well? Are they merely camouflage for criticisms of social democratic approaches and a championing of liberalism? Why do his criticisms of collective, government-sponsored projects sound like commentary by Miranda Devine or Andrew Bolt? Is not the ideology of the individual one of the worse aspects of colonialism itself? And what is the role of theology in debates over reconciliation?

In what follows I will try to answer these questions, although in the end I argue that Sutton has confused matters. What really is at issue is at best obscures by these terms: agency. Sacramentalism acts as a cover for one-directional agency, coming from the non-Indigenous and directed towards Indigenous people. By contrast, pietism conceals a pattern of mutual agency, consultation and joint decision-making. Yet Sutton has unwittingly raised another issue: the implicitly theological nature of many of the key ideas used in debates over reconciliation. Before I get to those matters, a few words on sacramentalism and pietism are in order.

Sacramentalism
First, the evil term: sacramentalism, which is a deeply Roman Catholic term. As one might expect in theology, fine distinctions bedevil any simple overview. But some patience is needed, since Sutton uses the term loosely, so much so that he badly misrepresents theology and confuses his own analysis (and his readers). Sutton claims that sacramentalism is collective and ceremonial, sacrificial and pre-historic.

He is mostly mistaken, for the word actually has two senses, neither of which suits his purpose. First, the word may refer to a ‘sacrament’, such as baptism or communion. The problem is that—strange as it may sound—the church has nothing to do with the effectiveness of a sacrament. Technically, a sacrament works through the act itself (ex opera operato). God transfers grace through the act and does not rely on any person, institution, state of mind or whatever. The act is sufficient; it is an objective act on God’s part. It is a little like the story of the Danish physicist, Niels Bohr, and the horseshoe. Bohr lay ill out on his farm; a friend called and noticed the horseshoe above the door to his room. ‘I thought you didn’t believe horseshoes made you well’, said the friend. Bohr replied, ‘I’m told it works even if you don’t believe in it’. Clearly Sutton does not mean this sense of sacramentalism, since that would mean the objective, disinterested act of, say, adequate healthcare, an apology or a treaty, would be enough. Out of the four ways Sutton describes sacramentalism—ceremonial, collective, sacrificial and pre-historical. Is the sacrament ceremonial? Yes. Is it collective, sacrificial and pre-historic? No.

Perhaps Sutton means the ‘sacramentals’ (to be distinguished from the ‘sacrament’). These are acts that convey God’s grace only through the intercession of the church (ex opere operantis ecclesiae). What kind of acts? Grace at meals, a blessing, a ring at marriage, a simply act of kindness and so on. There is no definitive list, for a sacramental is the process through which human activities are made holy, mediated by the church. Now we have a collective dimension, since a sacramental relies on the church. But it is not necessarily ceremonial (it may be, but is not necessarily so), sacrificial or pre-historic.

So the theological terms don’t actually fit Sutton’s definition of ‘sacramentalism’. Or rather, they have a partial fit, depending upon what element one chooses. What is really going on with Sutton’s use of the term? I would suggest that sacramentalism for Sutton is quite bad camouflage for social-democratic, hand-wringing, lefty approaches to Indigenous and non-Indigenous reconciliation. But then he includes in this collective mix state-sponsored programs, reports and legislation. All of which comes under the umbrella of a theological term that is less than useful.

Two final observations: Sutton plays into an old Protestant polemic with his use of sacramentalism, for the word is usually connected with Roman Catholic theology. A strange move this, since it harks back to the major issue of religious conflict in Australia back in the 1950s and earlier, namely the Protestant–Roman Catholic divide. Riots, debates, political allegiances, mutual suspicions, bans on marrying across the divide—these were part of the social and religious scenery at the time. It is hardly useful to resort to those differences once again.

Further, a pernicious subtext also appears with Sutton’s description of sacramentalism as sacrificial and pre-historic. He hints that it is pre-Christian, but there is a dangerous slippage to an image of Indigenous life before Europeans arrived. Does he want to suggest that before the arrival of Christianity and its theological terms, Indigenous people too were prehistoric, given to animal and human sacrifice? On the surface, of course not, but beneath the text the hint is there.

Pietism
The favoured term is pietism, which Sutton describes as a one-to-one relation with God, one undertaken by an individual in quiet communion, more suited to an age of individualism (our own?). No mediators here, no priests or church or state, just individuals doing the best they can. For Sutton this is the way forward for reconciliation, although he does need to replace God with another human being. All that is needed is a ‘personal moral adjustment’ (p. 203) to interpersonal and collaborative reconciliation between two persons. Sutton uses the examples of individual acts of private reconciliation, in which people get on in their day-to-day lives, and in which the non-Indigenous person becomes a vocal critic of racist state policies: Lancelot Threlkeld and Biraban in the 1820s–1840s, Ursula McConnel and Billy Mammus in the 1920–1930s, and Lloyd Warner and Mahkarolla in the 1920s.

Is pietism up to task? At one level it is. Pietism has a distinct history with complex threads, but it is clearly a very Germanic, Protestant (especially Lutheran) and relatively recent development dating from the late 17th century. Its central concern was a life of deep religious commitment, rooted in inner experience and manifested in outward acts or the ‘practice of piety’.

So far, so good, at least for Sutton’s purposes. The catch is that pietism was ultimately a collective movement with strong political overtones. It sought to revive the church from within rather than break away from it. Indeed, the main stream of pietism was warmly welcomed by pastors and theologians in the German Lutheran Church in the 18th and 19th centuries and quickly became seen as a way to renew religious life. It soon spread to other parts of the world whether Lutheran Protestantism was strong, especially Scandinavia, Greenland and North America.

For Sutton’s argument pietism is useful in some senses but not in others. Inner experience, the place of God in one’s heart, lives lived in quiet faithfulness, and the impetus for individual philanthropic activity—all these elements work quite well for Sutton’s purposes. But he ignores the other elements of pietism, such as the collective and institutional nature of mainstream pietism, its desire for reform within the institution and its tendency towards conservatism.

Once again, I suggest that Sutton’s dip into theology is less useful than he might think. Pietism doesn’t simply mean individual relations, for it is also a deeply collective theological practice. In this respect, the word becomes in Sutton’s hands a cover for the sort of liberalism championed by Friedrich von Hayek and Milton Friedman, or their lesser followers in Australia like Andrew Bolt or Miranda Devine. Individual enterprise is the key, not collective approaches (which become totalitarian) or state intervention (the evil of ‘big government’).

Agency and Theology
Sutton’s use of the opposition between sacramentalism and pietism is in the end a caricature. By picking certain features and making them definitions of the whole, he has distorted both traditions, using them as poor camouflage for state-sponsored and individual solutions. However, I suggest that what lies behind Sutton’s argument is really the issue of agency. With sacramentalism he seems to mean agency from one quarter and moving in one direction: from non-Indigenous governments to Indigenous people. The former decides what is appropriate, depending more on the vagaries of electoral cycles, ideological positions, the power of lobby groups, and individual political careers. And then it acts, assuming it can fix all the problems with the latest program—the NT Intervention is the obvious recent example of this one-sided approach.

However, by pietism Sutton is pointing towards mutual agency, one that involves two or more people (I would add groups) who realise their own needs, shortcomings and limits, but above all the need to come to an understanding of one another and the need to act on that understanding. It takes little imagination to determine which approach is more desirable. The catch is that Sutton seems to think that this process is primarily an individual one, an argument that is ideological (in the bad sense) and hardly progressive.

My final question picks up another issue: the theological tenor of the reconciliation debate as a whole. Of course, a good of discussion has taken place on these matters within the progressive wings of the Christian churches, where debates and resolutions concerning reconciliation have been cast in explicitly theological senses. However Sutton, as a leading anthropologist, has done what the churches have not been able to do, since they so often remain closed circles: somewhat unwittingly, he has brought out and made public the underlying theological nature of the debate by invoking explicitly theological terms, even if he misses the mark in the specific terms he has chosen. In short, I would suggest that much of the terminology and mindset of reconciliation uses what may be called secularised theological ideas. Emptied of their theological content and refilled with political and social content, they still trail many theological assumptions behind them. For example, reconciliation itself is one such term (between God and human beings), as is the idea of guilt (collective or individual—an issue in the Howard years), and even covenant or treaty.

However, before we rush in to claim theological ideas for resolving the relations of Indigenous and non-Indigenous people, we need to investigate those terms carefully, especially since Christian theology came with European invasion, embodied in the person of Samuel Marsden who filled the role in the early colony of both clergyman and judge. The problem is that all of these key terms assume an unequal relationship, God on the one side and human beings on the other. Guilt is what one feels towards God for having disobeyed and sinned; reconciliation is for human beings alone, since we need to be reconciled to God; a covenant is made between unequal partners, one more powerful and the other less so. This imbalance often carries through to the secular uses of such terms.

So I would suggest that in the current debates we would do well to investigate the implicit theological assumptions of the key terms. Who is the more powerful one in the process of negotiating a treaty? Who is the guilty party? The NT Intervention shifts the guilt squarely onto Indigenous people, who then need to be ‘punished’ for their ‘sins’. But then those who oppose the intervention argue for the guilt of the colonisers, who then need to make amends. And is it possible to produce a process of reconciliation that either recognises the thereby seeks to negate the imbalance of power, or is it possible to come up with a reconciliation that removes such imbalance?

Apart from taking voyages by ship and cycling as far and as often as he can, Roland Boer is a writer and a critic based at the University of Newcastle. His intellectual background is in theology, political philosophy and Marxism and he is finishing a five volume series called The Criticism of Heaven and Earth (Brill and Haymarket).

Pearson’s support — even given his reservations about the military intervention into Indigenous ways of living — was of crucial importance for John Howard’s last throw: the Intervention as a final desperate effort to gain yet another term in office. In that context Pearson repeated the ‘little children are sacred’ theme in the manner of a mantra. On that quite basic moral issue he was so clearly on protected ground that few were prepared to argue that concentrating on the wellbeing of children too exclusively was diverting attention from the overall situation.

In fact a major policy shift was underway. Any attempt to link back the way it was presented to the previous election when ‘they were throwing children overboard’ tended to fall upon deaf ears. Most people accepted that ‘something had to be done’ and, if a military type of intervention was ‘over-the-top’, any opposition to such extreme measures faced difficulties in proposing alternatives.

Justifiably and profoundly disturbed as they were by the evidence of violence and alcohol abuse in many communities, most people were in no position to pursue the issue of why evidence, which had so long been available, had been persistently brushed aside by the Coalition. They were in no position to demand answers as to why other forms of intervention into these disastrous circumstances had been so long deferred. The shock effect of military intervention and the focus on the wellbeing of children effectively diverted attention from the Coalition’s accompanying agenda of forcing Indigenous people towards ‘real jobs’ (as defined by the mainstream labour market), the winding down of outstations and linking of welfare payments to meeting particular standards of child care and education.

Even if the Coalition’s account of the sources of the breakdown should turn out to be both shallow and excessively concerned with the limitations of an approach that Peter Sutton, Professor of Anthropology at the University of Adelaide, has stereotyped ‘the liberal consensus’, a marked change in policy is already being set in place. A turn towards a new wave of assimilation advocacy is underway and support from Indigenous and academic figures will ensure that it makes a significant impact; it will surely take in a re-evaluation of recent policies and some of their assumptions. Some people are certain to conclude that the ‘good intentions’ of the liberal consensus have led to a vast overestimate of the capacity of Indigenous people to use welfare support in maintaining any integrity for their own cultures. From a distinctly different standpoint, others may suggest that Noel Pearson, perhaps understandably, and Peter Sutton, far less justifiably, demonstrate an almost total failure to inquire into whether other policies might have better contributed to Indigenous continuity. Beyond that, their failure to probe the issue of whether ‘real jobs’ within the mainstream of Australian life can actually offer better long-term prospects for Indigenous people is a striking omission. It leads one to ask whether the neo-assimilationist answer may not also be affected by major blind spots.

The mainstream politics of most settler-colonial nations are affected now by deep-seated divisions as to the policies which could steer a way into the future for Indigenous peoples. Peter Sutton acknowledges ‘that the kind of deep cultural changes that may assist a real move out of profound disadvantage are not well understood’. Good point, and scholars themselves may have a special responsibility to stand apart for a spell, and to look before they leap. Within the mainstream, the issue of climate change as a consequence of ‘the way we live now’ presses home the relatively short-term prospect of fundamental change. Surely that prospect alone calls for searching consideration of just what assimilation has to offer as an answer to ‘disadvantage’.

Unintended Consequences

Before returning to such questions I should first acknowledge — as a long standing, even if relatively passive, mainstream supporter of the liberal consensus — that Noel Pearson, and especially Peter Sutton, do present undeniable evidence of a downward spiral in the conditions of Indigenous life in a number of locations. Those who might have been inclined to deny the need for far-reaching policy change in the past are scarcely in a position to do so now.

Given insufficient attention at times as to how policy changes might have led to different outcomes, what conclusions do Pearson and Sutton draw from that? Few indeed, it would seem, which might contribute to a measure of continuity for Indigenous ways of living. Neither Pearson nor Sutton considers the conditions for continuity of Indigenous social forms. While Pearson does have hopes for the continuity of Indigenous values, Sutton has hopes for the prospects of soft and individually personalised assimilation, achieved by way of one-to-one contact, ‘atomically, not en masse’ and, one might add, entailing the further dissolution of Indigenous institutions. Nothing is said in Sutton’s book about the prospects for the actual economic and social arrangements of the mainstream. The hopes and the values of the hyper-individualised mode of life are at the forefront and nothing emerges concerning the modes of social interchange which might sustain some continuity for Indigenous ways. Can one still detect the footprint in Sutton’s approach of that same ‘liberal consensus’, as it adapts once again to changing circumstances?

Assimilation: An Unintended Consequence?

‘Where goes the money there goes the man’ (Pearson, Up from the Mission)

For Noel Pearson the military intervention created a brilliant context for the publication of his book Up from the Mission (Black Inc, 2009). It is a forceful and eloquent record of his changing hopes in response to changing circumstances. The book is marked by two main features in the way it frames the author’s unrelenting struggle to further the interests of his people. The first is the thesis that the reciprocal norms of Indigenous culture actually contribute to a spiral of communal degeneration. The welfare incomes, Pearson argues, that became available after the granting of citizenship, both installed the dispiriting effects of dependency and provided the means for the purchase of alcohol. Three key conditions — the cultural obligations of sharing, the dispiriting effects of dependency and the availability of alcohol — combined to feed a cycle of social breakdown.

Noel Pearson had first set out this thesis in 1986. For ten years, until the defeat of the Keating government, it remained in the shadow of his commitments to what Peter Sutton, in his just released book The Politics of Suffering, now disparages as the liberal consensus.

With the election of the Coalition, Pearson sought other means to advance the wellbeing of those with whom he passionately identifies. Gradually the radical centre, as the second feature of the way he frames his endeavours, emerged. He took it to provide new possibilities for advancing Indigenous interests within the existing democratic structure, and outlining its emergence is the major theoretical undertaking of his book.

Pearson presents it in a long essay entitled ‘White Guilt, Victimhood and the Quest for a Radical Centre’. In more everyday terms, the author is speaking of wedge politics, and along with that the need to intervene to restore a proper sense of an order in many Indigenous settings. One particular theme — ‘little children are sacred’ — provided a strikingly fertile point of entry into the field of political wedging.

Wedging occurs when any political party cuts into what had been taken to be the more or less solid constituency of its opposition, by urging action upon and appealing to values that its opponent cannot oppose. The appeal to ‘the battlers’ of the Labor constituency as a Coalition ‘wedge’ is one familiar example. Border protection supplemented by child protection also springs to mind. There, two wedges contributing to the same campaign operate: the child protection issue widened the split opened by border crossing in the case of the Tampa issue in 2001.

Noel Pearson’s search for a ‘radical centre’ had probably first been stirred in the early 1990s by Ron Castan (leading counsel in the Mabo case). As the Coalition moved into government Pearson felt forced to the conclusion ‘that Indigenous people couldn’t rely on one side of politics alone’. He actively sought out circumstances where, for instance as in land claims, the interests of different parties might be reconciled sufficiently to achieve a working agreement. In the new circumstances of Coalition government, especially after the winding back of access to native title following the Coalition’s passage of the Native Title Amendment Act, Pearson’s political orientation turned away from the Left, and indeed from the whole liberal consensus. Citizenship, native title: these rights had been achieved and for Noel Pearson the abiding concerns associated with that fatal cluster — alcohol, dependency and reciprocal obligations — again came to the fore. In the blazing statement ‘Our Right to take Responsibility’, he reasserted in 2000 his denunciation of ‘welfare poison’ as the source of dependency and sought the answer in ‘real jobs’ in the real economy of the mainstream. A passionate sense of loyalty to his people remained as a constant but, seemingly unaware of the hazards of his new course, the earlier meaning of ‘the radical centre’ had apparently drained away. It now entailed accommodations with the mining corporations. If these were a bridge it was no longer one of drawing on the common ground shared by the mainstream parties but upon the prospect of ‘real jobs’ for Indigenous people by seeking common ground with the big miners.

Sutton and Pearson: Unquestioned Assumptions

Indigenous culture, any culture, if it is to maintain a measure of continuity must hold firm to certain conditions of viability. The basic flaw in Pearson’s argument is that in seeking an accommodation now with the big miners he does not ask whether ‘real jobs’, in the mining industry especially, can provide the continuity that he has so ardently pursued. Within a far wider perspective than Noel Pearson presents in Up From the Mission, Peter Sutton actually throws doubt on that approach in The Politics of Suffering.

These two books both lend legitimacy to the military intervention; they both contribute to a massive shift in public opinion towards a neo-assimilationist trajectory. In the broadest terms both of them do so by far too readily jumping to conclusions about the policy failures of recent decades. Their reasons for moving towards the same assimilationist outcome differ, but both could find themselves alighting on the same platform. The immediate circumstance that steers them towards the same destination is that neither asks questions about the way the social forms of the mainstream society might affect the prospects for their markedly different expectations for cultural continuity. This omission stretches credulity in Sutton’s case. One imagines that as an anthropologist he will at least touch first base by way of an analysis of the mainstream society.

As I shall note later, this staring lacuna in his work and his reflections is not to be tied to any question of good faith. Rather, it would seem that unquestioned and individually centred assumptions about the relation of ideals to outcomes have eventually led to a profound disenchantment. He turns to assimilationist conclusions that he would have fervently rejected at an earlier time. Even given his rejection of the outcomes of the ‘fantasies’ of the ‘liberal consensus’, Sutton has a second coming within the terms of an even more individually centred commitment to humanist idealism. That is, to yet another twist in the history of a colonising process directed by ‘liberal’ practices, in the broadest sense of that word.

A general philosophical predisposition both blinds these authors to the limited prospects for any form of assimilation to the mainstream and appears to limit their grasp of Indigenous culture as well. Understandably in Pearson’s case, as one who grew up under conditions where threads of continuity of Indigenous ways were still present at Hope Vale Mission, he simply appears to take for granted that ‘identifications’ with those ways is sufficient guarantee of their continuity. For him ‘welfare poison’, as a source of income support for alcohol abuse and dependency, is the disastrously negative aspect of that same ‘liberal consensus’ which also combined with rising Indigenous activism to install citizenship and native title.

Sutton, however, works within a more searching and wider perspective. Shocked to the core by what he takes to be the eventual consequences of the liberal consensus in community breakdown, he far more explicitly endorses assimilation to the mainstream society than does Noel Pearson. Certainly there are ‘provisos’: citizens of Indigenous background will be able to look back to their heritage, just as others may look back to the roots of Western-style civilisations in Rome and Greece or in the Judaeo-Christian tradition.

Despite these secondary differences, Pearson and Sutton nevertheless contribute to the same broad shift towards assimilation evident in contemporary opinion. For each of them the negative aspects of the liberal consensus feed directly into community breakdown. For each of them, land rights was the high water mark. It was as if the two writers assume an essence of Aboriginality so that the social circumstances of the formation of values can be bypassed. For Pearson the ideal hope of the practical continuity of his people’s distinctive values persists. For Sutton that hope has turned into the blindness of fantasy: the last gasp of a discredited liberal consensus. The only ideal hope that remains is to look back to a lost heritage and perhaps even to cherish it within the limits of an assimilated mode of being.

Right at the centre of a methodological blindness shared by these authors is the failure to relate the central forms of interchange of both classical Indigenous culture and the new, rapidly changing mainstream to the values they would like to sustain. That is, sustain in practice for Pearson, in memory alone for Sutton. One might anticipate that both Noel Pearson and Peter Sutton could endorse the proposition of an integral association of values with circumstance, yet in practice each of them brushes it aside. Values, it would seem, can derive from ‘roots’ which are wholly subjective, grounded in individual choice.

Pearson’s political and cultural outlook is quite explicitly cast within mainstream identity theory. He identifies a range of groupings with which he identifies: his people, his Lutheran heritage and, a little more ambiguously, with his sense of belonging to all of the Australian people. In short the identifications of Noel Pearson as active agent are far more prominent in his account of his formation than are the distinctly fuzzy references to the institutional framework of his Indigenous heritage. He is quite forthright on the issue of identity. ‘I, and the members of my community, possess layers of identity, some of which are shared with each other, some of which are distinct.’ And he is equally plain spoken as to its derivation. ‘Amartya Sen has supplied us with a theory of what I have called layered identities in his most recent book, Identity and Violence.’ In sum it is to Noel Pearson’s aspirations as an individual that one should look for an understanding of his journey ‘up from the mission’.

It is vitally important to be clear about this. I am not saying that we do not have identifications. The issue is how we ground them in the practical relations of our daily lives. Pearson bypasses that question. He gives the impression of being confused by the way the expression of the values of sharing, integral with reciprocity, feed into a fatal combination with dependency and alcohol. He finds his answer by identifying with Indigenous values, making no more than fleeting reference to the forms of social interchange of classical Indigenous culture. It is an idealism that allows him to seek practical solutions to his dilemmas within the social relations and values of the mainstream without any full recognition that these same practical engagements increasingly dispense with the institutional structures of kinship and reciprocity. Like Peter Sutton, he encounters a structural problem through his total failure to consider the social forms of the mainstream; his identifications blind him to its presence.

Real Questions and Blind Responses

This of course is to touch upon the radical expansion within the mainstream of the market economy. As it quite directly permeates institutions of community and kinship, which once stood at arms length from it, a sense of enhanced individuation increasingly bears in to exaggerate every citizen’s sense of agency.

Even while expressing strong reservations concerning the way Noel Pearson’s approach diverts attention from the classical mooring points of his own culture, even while stressing how that approach blinds him to the dead ends into which embracing the mainstream might lead him, it is important to re-emphasise the often disastrous situation to which he is responding.

Pearson has played a major role in bringing to public notice the way the fatal association of welfare dependence has fed into one particular and tragically flawed track of the liberal consensus. As Peter Sutton notes, ‘it was Noel Pearson who did the most to break the log jam … about dysfunctional Indigenous communities’. The military intervention in the Northern Territory carried consequences for mainstream perceptions of all Indigenous people. Its undifferentiated engagement, across the board as it were, with the diverse circumstances in the north tends to damp down the need to revise the policy expressions of that same liberal consensus in other places.

Few now question Indigenous citizenship, land rights are again becoming more ambiguous, but if a spiral of breakdown affected many Indigenous communities did it affect them all? If it is conceded that some are stable, even developing, what makes the difference? Why does Sutton suggest that the revenues from taxation should no longer be directed towards Indigenous outstations? It would be reasonable to anticipate that he might enquire into these issues as a scholar and anthropologist, as distinct from his despairing turn, across the board, to assimilationist propaganda.

In The Politics of Suffering Sutton mounts a powerful argument for the widespread breakdown in Indigenous modes of life. He records his own disillusionment with the self-serving ‘fantasy’ that the liberal consensus could any longer contribute to positive outcomes. Moreover he convincingly cites evidence of a far greater level of violence in the classical period in the lives of Indigenous people than is commonly acknowledged. The implication is that the roots of the current downward spiral are very complex, not solely to be ascribed to policy failures of the liberal consensus.

Beyond that Sutton notes that Indigenous people are marrying out, as it were, at a rate that in recent years has skyrocketed to above 70 per cent. In effect they are walking away from more community-related ways of living and diluting Indigenous practices by joining the mainstream: assimilation in fact, whatever the intention.

Sutton and Pearson, along with Wild and Anderson, the authors of the Little Children are Sacred report, join with those many others before them (even Peter Howson who back in the Howard years was Minister for Indigenous Affairs) who all acknowledged that a serious breakdown had emerged in the course of the prosecution of policies grounded in the liberal consensus. Those policies were themselves an expression of a different and more humane liberal intervention in Indigenous affairs. It was the continuing expression in terms of policy of that turn towards a more liberal consensus that espoused citizenship in 1967. If, forty years on, those policies were leading to negative outcomes, what might have been the possible responses?

One answer, as we have already seen, was given: assimilation. The shock of a military intervention can deflect attention from longstanding failure to respond to situations well-known in circles of government. An intervention in that mode can declare people to be incompetent by action without consultation (except for a word with Noel Pearson fifteen minutes before the hour struck). Moreover, even with manifest despair among many long-time supporters of Indigenous causes, it can turn back onto the path of wholesale assimilation by way of policy changes, changes half-displaced from public discussion by the shock of the intervention and the bipartisan wedge of the protection of children.

Another approach might have been to look to the blind spots in the neo-liberal perspective. What assumptions does it make about human nature and the way it is profoundly constrained — even constituted — by the institutional arrangements in which human nature finds expression? And, above all perhaps, if the liberal consensus was half blind to the later consequences of its policies, does an ongoing myopia now carry over to affect the policy agenda of a neo-liberal assimilation?

Inside and Outside: Ruling Assumptions

These are difficult questions. For those who wish to question the present turn towards assimilation, a first response might be to ask whether it might not be more appropriate to first pay attention to the vast diversity of Indigenous circumstances. That would question any blanket approach whether in the mode of military intervention or otherwise. For many of those who, as Indigenous people, have taken or who may wish to pursue what I am terming an assimilationist trajectory — including many who as Peter Sutton notes are marrying out — what policy, what practical steps could assist them? Would those steps include helping them to renew their Indigenous roots if they so wished? For those who sought to further develop community-related ways of living very different policies to those prevailing now might well be essential. The question of a quite fundamental blindness within the liberal consensus, as well as within any neo-liberal turn, is crucial. The integrity of future policies depends upon this issue being addressed.

In his book, Peter Sutton gestures towards one of these blind spots. He records a Hawaiian’s perhaps only half serious response to an anthropologist who had been chatting about cultural matters: ‘Hey, we didn’t know we had a culture until the White Man came and told us!’ There is no way of knowing whether this particular Hawaiian was fully serious or not, but it is both astonishing and significant that, as an anthropologist, Peter Sutton should refer to this issue just in passing.

It has been well known, for at least the best part of a century, that while, prior to colonisation, the members of Indigenous cultures may readily recount their beliefs they seldom find a place to stand outside them. Their institutional framework does not include more abstracted social combinations of scholars, or disciplines like anthropology, which are ‘lifted out’, as it were, from the society with which they are integral. Eighty years ago, when speaking of the Melanesian cultures, Marcel Mauss noted ‘an incapacity to abstract and analyse concepts’. This way of putting the issue would be controversial now but what Mauss was getting at in the circumstances to which he was referring was that a self-conscious capacity to stand apart is often unnecessary. In effect a course of action is directed in ways that are profoundly taken for granted rather than consciously abstracted and evaluated. Mauss was not suggesting that these capacities could not immediately be taken on board. He presents evidence that they could. The basic point is that the rationality of the cultures he was representing is more directly embedded, or typically attached to more immediately apprehended environmental points. If it is more likely to operate in a taken-for-granted mode than is ours, that does not exclude recognition of the reality that when, at one level, a whole way of life becomes more abstracted, the way a course of action is governed may also be ‘taken for granted’.*

At least at the level of empirical observation, as Peter Sutton is likely to recognise, to be radically ‘lifted out’ of the limits of one’s familiar and routinised mode of life in our culture, one must enter into a sphere of social interchange which is separated, differentiated from that setting, while also being integral with it. Along with Noel Pearson, he stresses education and points to the way the boarding school was the abstracted setting which ‘lifted’ Pearson, the Dodsons and others out of the immediacy of an Indigenous setting (which was already far removed from classical Indigenous ways). Within a very different realm of social interchange, the foundations were laid for them becoming Indigenous intellectuals. In becoming such they were drawn into the social forms of the settler-colonial culture, including an exposure to the liberal consensus. In Sutton’s case especially one might anticipate that he was able to recognise that abstract forms of intellectual interchange provide the conditions of possibility for the emergence of any particular scheme of policy proposals. Those of which he speaks as the liberal consensus are one such outcome. If that scheme now calls for basic revision, the liberal consensus as such must be interrogated. Peter Sutton backs away from that profound challenge. He ends his book in mystical vein with the mainstream culture as the taken-for-granted context.

To speak of the more abstracted ideas of intellectuals as integral with their forms says nothing about actual insight into that conjunction. Even as an anthropologist, the person inducted into such abstracted schemes may be as little aware of their integral connection with a distinctive form of interchange as typically prevails within the pre-colonial Indigenous settings of reciprocal interchange to which I have briefly referred. Within the ways we constitute abstracted modes of interchange it is typically their scholarly expression that can promote that insight. The unfortunate feature of Sutton’s work is that he leaves aside the consideration of the various ways abstracted schemes of interchange may be related to the process of bridging between two cultures.

That bridging is typically fraught with the misunderstandings associated with different frames of integrity, as Inga Clendinnen so vividly portrays when she depicts the culture gap that led to the ‘just/unjust’ spearing of Governor Arthur in her Dancing with Strangers. Where distance between cultures is great and members of one are profoundly gripped by the certitudes of economic growth, they may readily conclude, with Noel Pearson, that ‘To secure Aboriginal economic development, it might be necessary for us to make far reaching concessions to the dominant culture’. Those concessions might include sending the children away to the boarding schools of the dominant culture, where English is first language, and distantly located jobs in big mining as the means of escape from the ravages of welfare dependency. As one might anticipate for Noel Pearson, all of that would stop far short of seeking a treaty as a framework for interchange between cultures.

What might be a different way? A first step would be to find a productive place to stand within the diverse forms of contemporary social interchange to look back upon the way the dominant values of the culture are integral with its dominant mode of social interchange. If there are structured possibilities for transformation inherent within the social forms through which the peoples of a culture carry on their lives, could a focus upon them lead to policy guidelines? That is, policies that do not lead either to Pearson’s apparently unintended consequence of de facto assimilation or to Sutton’s endorsement of personalised recruitment towards the same result.

Neither of these routes, as they converge towards the same precipice that mainstream culture is building, examines their own assumptions. While both Pearson and Sutton are ‘lifted out’ of, abstracted from, full immersion in the practicalities of the daily lives of their fellow citizens, they do not critically examine the assumptions and values they share with most mainstream people. In short, while they do enter into an intellectual form of interchange, which allows them to make explicit and to generalise about dominant values, they do not critically examine the way they are driven by them.

Were they to do so the conclusions they might reach about the mainstream culture might coincide with those reached by a growing minority who question its current trajectory. Its dominant value of growth, while integral with the practicalities of the expanding market, may well be incompatible with the survival of the human species. Why blindly induct others? In some contrast to that, as long as values of reciprocity and sharing are paid only lip service within Indigenous culture — by their being ‘valued’, as a distinct form enacted — they are open to co-option.

Erosion by exposure to the ‘welfare poison’ supplied courtesy of the welfare consensus is not necessarily the end for intentionalist planning. Before jumping to that conclusion an analysis of the assumptions of the liberal consensus and the prospects for their revision is a necessary condition of any serious approach to policy formation.

For the present the ideas, the intentionality of many Indigenous people, who have yet to break out of essentialist ideas about their nature as supplied by the liberal consensus, still maintain the hope that cultural values may be sustained without on the ground practical arrangements compatible with them. The suggestion here is they cannot, that support must be limited to just that. Pearson is right to insist that when it replaces a self-active mode of subsistence ‘support’ turns into its opposite. Yet to be right about recognising a problem and selecting a dead end as its solution clearly presents a basic dilemma.

If the first intervention was colonialist settlement and the destruction of Indigenous cultures its widespread result, it is important to acknowledge that colonialism had another side. It expressed moral as distinct from acquisitive imperatives. Mainly Christian at first, then more actively humanist as well, these imperatives found early expression in the missions. They were soon followed by a second stage in colonisation, an ‘intervention’, under the aegis of the liberal consensus. Now as land rights are eroded and reciprocal values are defined as part of the problem a third stage of colonisation, launched by military intervention, has begun. This time around it is driven by the assumption that mainstream culture can provide the answers to ‘disadvantage’ — by assimilation. So go back to GO.

The underlying problem is the deep-set incapacity within mainstream culture to examine how ‘growthmania’ is now driving it blindly towards the precipice. If the liberal consensus is now in crisis it is important to remember that, as a creation of the better intentions of the mainstream, it built up a powerful momentum in the course of the best part of half a century. Any capacity to adequately conceive and follow a different course will call for persistent and drawn out effort. But it is certainly possible to begin to suggest what some of its foci might be.

For some people it may seem presumptuous for a relative outsider, as I fully acknowledge that I am, to enter that field at all. After all, Indigenous people have special rights while those who presume to speak for the mainstream have varying degrees of on-the-ground knowledge that far exceeds mine. Nevertheless there are mainstream policies, they are in crisis, and every citizen should seek to respond.

The first question I would raise relates to the outstations, which, Sutton asserts, are typically disaster sites no longer deserving taxpayers’ support. For my part, while recognising the vitality of many outstations, I would like to see far greater public reporting of whether, with adequate water and power supplied to them, outstations could approach a far higher level of internal sustainability. That is, production of the means of life that are integrally connected with social processes of exchange. I would like to know whether a transition from the specific obligation of kinship to the looser bonds of family naming (see chapter 8 of Sutton, Native Title in Australia) is compatible with the renewal of values of reciprocity.

I do not imagine that this process of renewal could be set in place ‘just like that’, and that it would not entail significant shifts from classical prescriptions of obligations and rights. If it were to be stable at all — and quite apart from its external linkages — it presumably would include figures who could stand outside often profoundly taken for granted values. That is, individuals able to recognise the integral connection of values with the practicalities of the maintenance of a quasi-autonomous process of daily life.

That process itself could scarcely emerge without a relatively autonomous community of reflective individuals able to bridge between outposts. In other words, a reflective community able to value their own ways of living while recognising that other ways might be equally viable. The emergence of an Indigenous mode of reflective interchange of that order is of course a big ask. It would be in the mainstream interest to see if it could be developed. If its reciprocal co-existing roots could be revitalised, we might learn from, rather than simply intervene in, the lives of Indigenous people.

Is it not possible that we have simply forgotten one main root of the institutional basis of our own morality in reciprocity? Didn’t Marcel Mauss assert a basic truth when he observed for his time that ‘Much of our everyday morality is concerned with obligation and spontaneously in the gift. It is our good fortune that all is not yet couched in terms of purchase and sale’?

Mining Indigenous Hope

Noel Pearson positions a despairing article he wrote as late as 2006, which appears quite early in his book, at the opening of a group of chapters entitled ‘Challenging Old Friends’. It is called ‘Hope Vale Lost’. He grew up there; his mother still lives there. Earlier, way back before citizenship, the people earned their own means of subsistence and were also abstracted from, yet lifted out of, the daily practicalities of work by their engagement in a superordinate social body, one which, understandably, they took to exist primarily as a Lutheran community of common faith. They achieved a certain stability by the superimposition of what they took to be ‘ideas’ alone that lent a period of viability to their daily lives. At least these ideas were taken to do so until another set of policy prescriptions worked their way through the bodies and minds of the participants.

By 2006 a second invasion at Hope Vale, this time of ‘welfare poison’, has consolidated its hold, and in a final paragraph Pearson sums up. As he drives away to a different place he reflects on the same symbol of a community that has lost hope that presented itself on his arrival:

As I drove through my hometown on the Sunday evening on my way back to Cairns, I saw the dead puppy still in the street. I thought about the distance between being inured to the fate of a puppy that didn’t see a car coming, and being inured to the fate of our own children.

Yet hope is resilient and by 2008, for Pearson, it has found its reward:

Enter Andrew Forrest. One of the country’s most successful industrialists, Forrest has initiated an idea without parallel. The extraordinary feature of the Australian Employment Covenant is that Forrest and his private sector colleagues are setting the goal of guaranteeing jobs for 50,000 Indigenous Australians. It cannot be overstated how fundamentally this opportunity changes the landscape.

Early in 2008 Forrest was still the richest man in Australia ($9.4 billion). After the meltdown his investments in Fortescue Mining had lost more than 70 per cent of that value. Forrest appears to be an individual of genuine philanthropic intent but he cannot operate without lasting agreements on land rights, nor can Rio Tinto or BHP Billerton, both of which are just next door. For the big miners access to land rights becomes the condition for ‘real jobs’.

One way into the future could be Peter Sutton’s. Aboriginal culture could find a mode of continuity at least in the short term in the process of its dissolution into the ‘remembrance of things past’. But for the longer term? Perhaps first turn back to ‘Reflections on the Current Condition’ in Arena Magazine no. 100 before going on to ask more searching questions of the present limits of reflective scholarship. Such an inquiry might allow Sutton and Pearson, along with a host of others, to more actively consider whether reciprocity might be seen again as being at the root of our humanity. That could be one key aspect of a way into the future for both Indigenous and mainstream institutions and modes of individual formation with which these institutions are integral.

Endnote:

* While this issue is of fundamental importance I cannot pursue it here. Clearly, as for instance Bill Stanner recognised, a capacity to stand apart is present within Indigenous culture; that is, the ability to transcend oneself, to make acts of imagination so that one can stand ‘outside’ or ‘away from’ oneself and turn the universe, oneself and one’s fellows into objects of contemplation (W. E. H. Stanner, The Dreaming and Other Essays, R. Manne (ed.), Black Inc, 2009). For what Sutton might conceivably recognise as a ‘half-way house’ between relativism and realism, see Geoff Sharp, ‘The Idea of the Intellectual and After’, in S. Cooper, J. Hinkson and G. Sharp (eds), Scholars and Entrepreneurs, 2002.

Geoff Sharp is General Editor of Arena Publications.

That it was a political achievement is undeniable, and the event has been useful as a point at which to uncover the buried history of national debates, especially around issues of free trade and protection. But it wasn’t an achievement of the political imagination in the same way as the American or French revolutions were, or any occasion of independence in which nationhood was wrested from an oppressor, or brought together by a fusion of demands and possibilities, of the real and the ideal. To unite six colonies founded by the same imperial power on a single continent does not begin to compete with the Bastille or the Long March, and people are well aware of the fact.

The event itself was the least disruptive sort of independence possible — the declaration of limited dominion status, with continued domination by Westminster on matters of trade policy and foreign affairs, and the persistence of the Privy Council as a final court of appeal. Even the timing of the event — the first day of a new century — makes it look more like an exercise in book-keeping rather than nation-making. What was widely understood at the time to be an act of continuity with the British Empire is being retroactively redefined as the first in a chain of events whose logical conclusion is the declaration of a republic.

The ‘Federalists’ are trying to revive a sense of nationhood in the political dimension, by reminding people that part of their identity is a politically constituted one. As global neoliberalism proceeds apace — to the point where it has taken on the neutralised term of ‘globalisation’ — and party politics flows towards a unitary centre, the realm of nationhood has been driven back into the purely symbolic, and attached primarily to sport. The double whammy — the retreat of national political and economic independence, and the expansion of purely symbolic nationalism to fill the vacuum — is far from uniform. The success of One Nation — and its potential rebirth — is indicative that there are social groups for whom a sense of national identity exists in the old style, as a concrete myth fusing political history and symbols in a continuous narrative. Yet their appeal has been largely confined to a rural white population, and they have had little success in gaining a base in the industrial working class (though this will change if there is an economic downturn of any seriousness later in the year).

The ‘branding’ of Australia began in earnest in the 1970s, as a correlate to multiculturalism and the dissolution of an anglo-Celtic hegemonic culture. As other commentators here and elsewhere have noted, the ‘branding’ form of nationalism drew on a number of alleged national traits — an easygoing character, an enthusiasm for the ‘fair go’, a familiarity with striking nature — rather than on an internalised and widely shared national story. In the last decade or so it has been fused with the tourism industry for the sake of international ad campaigns, and played up as a contrast to the revived nationalisms and ethnic myths of the post-Cold war era.

Australia is, in this account, the post-national nation, a respite from the world, a place where people can relate to each other with total transparency, having rid themselves of the baggage of their ethnicity, retaining only that which is pleasantly different, such as cuisine and customs. This sense of the place as a new world destination which — unlike the US — does not impose a history of its own was behind the giddy suggestion that Sydney become the permanent venue for the Olympics, Australia as a place where the world comes to get away from itself. It was an image that was achieved only by a marginalisation of the most concrete and tragic narrative of all, that of Indigenous Australians — the masterstroke of which was the faux-naif ‘wonderland’ style of the opening ceremony.

The world as Alice, fallen into the South, where everything is upside-down and nations mock and satirise their own history at triumphal occasions — it is this sort of thing that Don Watson dubbed the ‘post-modern republic’ during his tenure as eminence brune for Paul Keating. Watson called for an ‘aleatoric, bebop’ republic, an improvised and open-ended form of national self-understanding. Such a nation would go beyond the US in identifying its character with a liberal polity — unlike the US it would not seek to impose a specific type of liberalism on individual citizens, but would foreground pluralism and respect for diverse and divergent cultural ways. The ‘Federalists’ have added a political theme to that vision which, at its most exuberant, amounts to the identification of an ‘Australian genius’ for peaceful nation-making.

Alas, Minerva’s wombat forages at night. The achievement of a post-modern nationalism occurs by the grace of a historical process which dismantles the foundations of the Nation — and the best and worst it can offer — in a fashion more comprehensive than the new nationalists realise. The global neoliberal order and its flows of capital, labour and images intersects with the self in a way that makes possible the post-modern national citizen, someone who understands their particular culture as no more than one way of being human, the equivalent of a preference for strawberry over chocolate. Yet at the same time it creates a different form of relationship between person, society, culture and nation, one in which groundedness plays less of a role.

By ‘groundedness’ of course we mean the material nature of community, not the ideal myths of Nation or Race. Social interdependence, limits to mobility and the particular nature of the locality have historically been key sources of cultural meaning and social being. Crude myths of Nation have always been ‘reverse engineered’ — a unified community invented to legitimise an existing polity. The attempt to create a non-National nation from a fusion of actually existing cultural attributes and pluralist liberal hopes is a worthier project, but one more likely to be defeated by its own paradoxes.

The cultural space within which the new nationalists seek to build can no longer be seen as a ‘wedding-cake’ structure in which a local cultural ground is overlaid with external mediated influences, be they British or American. Many core elements of social and cultural development — mass culture, curriculum, consumption — are now oriented to the development of the person as pre-globalised. Particular national identity comes as a mediated form — one’s flavour — but the core psychological structures are general and universal, the necessary hardware for global mobility and flexible work patterns. Real access to global options may vary, but the principle itself dominates aspirations, meanings and values. In fact those who gain the greatest class mobility from the process — working class children who gain a professional education — are the least likely to have any attachment to particular origins, at least in the first part of their adulthood.

This process of social development yields many paradoxical results. Those most likely to politically sympathise with the aspirations of indigenous people are those least likely to have a real and incommutable relationship to country. Those most opposed to indigenous struggles are more likely to have a — comparatively vestigial — sense of place. The desire for a grounded culture throws up absurdities, such as the search for an ‘Australian’ cuisine, in the absence of bounded cultural practices which bring cuisines into being.

On the ground, the downside of such a process is becoming increasingly visible — the combination of social-economic redundancy and cultural-psychological dysfunction. Politically, it presents us with multiple possibilities and few probabilities. As many have observed, our federal system is a fluid and open-ended form, which could be conducive to the most imaginative political developments. Currently much attention is focused on union with New Zealand — a clear mark that the relationship between culture and politics remains little understood. But there is no reason why other possibilities — the creation of new states to promote a renewed focus on regional and local economies, for example — could not come into play.

Yet there is little chance that they will. The Australian political framework resembles a cicada. The popular enthusiasm that made a constitution have now died away, leaving a constitution resistant to change, ruling a population whose identity is by and large not defined within politics. Thus Australians will stir themselves to reject an elitist model of a republic, but no subsequent positive campaign for an independently elected president takes root.

The hopes that the centenary of Federation would provide a springboard for political renewal are overwhelmingly the hopes of those who still work and think within a mindset that sees politics and history as occupying the same space. That does not mean that campaigns to re-extend the reduced scope of democracy within Australian life will not have some successes. But the causes that will move a mass of people to politics will not only be different to those of a hundred years ago — they will be of a fundamentally different form.

Australian judicial decisions on issues of Aboriginal status make interesting reading. Even the High Court’s judgement in Mabo and Others v. The State of Queensland unanimously confirmed that the validity of the acquisition of sovereignty by the Crown can not be challenged in municipal courts. In other words, the acquisition of sovereignty is an Act of State that cannot be reviewed. No challenges to the validity of Australian state sovereignty will be entertained before an Australian court.

In the end, it must be concluded that the denial of the existence of Aboriginal nations in Australia by this case law accords our nations the status of an anomaly among the settler colonial states. Unlike in Canada and New Zealand, as I will show in this article, no treaties or agreements were concluded with Aboriginal people. The monstrous injustice of the seizure and dominion involved, and the lack of consent and treaties, remains a stain on Australian history. It is the chief obstacle to constructing an honourable place for indigenous Australians in the modern nation-state. That place now must be found through and beyond the limits of a legal discursive framework that dehumanises and dehistorizes Aboriginal people, rendering us as the mere wandering brutes of Hobbesian and Rousseauian mythology.

‘Practical reconciliation’?

In a protracted public debate during the year 2000, following national consultations over a ten-year period, the Council of Aboriginal Reconciliation presented to the Prime Minister the Rt Hon. John Howard the Draft Document of Reconciliation. His rejection of this document on the spurious grounds that only ‘practical reconciliation’ can ameliorate the ‘problems of the Aborigines’ has been interpreted as his rigid refusal to recognise Indigenous societies as pre-existing entities with rights and entitlements. His rejection of this innocuous document was followed by a counterproposal from Aboriginal leaders for a renewed treaty commitment. The idea of a treaty between our nations thus requires explanation.

In Australia, there has been an almost comprehensive rejection of the idea that Aboriginal peoples might be self-governing within the limits of Australian law. The exceptions are minor such as the right to practise narrowly interpreted ‘traditions and customs’ on Aboriginal land in some demarcated areas, some limited rights under local governance statutes, and the narrow recognition of native title as pertaining only to the internal incidents of native title in the Native Title Act of 1994. In a limited way, the judiciary has adopted its advice on the relevance of customary law in evidence and sentencing. The Australian Law Reform Commission recommended a limited means of recognition by amending some statutes, but the recommendations have largely been ignored.

So, how can it be explained that indigenous relations to land that pre-existed sovereignty and survived it, as the High Court of Australia has explained, has been legally recognised, and yet the full body of ancestral indigenous Australian laws and jurisdiction are deemed by a narrow, historically distorted notion of sovereignty to be incapable of legal recognition.

In this article, it is possible only to touch on some of these issues. In setting out some of the evidence here, I provide an interpretation that shows that it was the failure of colonial governments to make treaties with our ancestors and the subsequent body of justification for that failure, both judicial and political, that deprive Australian indigenous peoples today of the dignity of exercising fully the body of ancestral law in coexistence with the sovereign state. The idea of sovereignty on which this exclusion lies is a fictive account of settlement, a fictive account of dominion and a distortion of more than four centuries of the exercise of sovereignty by the British Crown in the New World.

Of the terra nullius proposition, it was said in Mabo (No. 2: 469) that:

The facts as we know them today do not fit the ‘absence of law’ or ‘barbarian’ theory underpinning the colonial reception of the common law of England. That being so, there is no warrant for applying in these times rules of the English common law which were the product of that theory. It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty’s indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands.

Thus I argue that, just as British sovereignty did not wipe away Aboriginal title, neither did it wipe away Aboriginal jurisdiction. Aboriginal government under the full body of Aboriginal customary laws, must by the same logic as the discovery of native title at common law, survive annexation of Australia by the Crown, even if in some qualified way.

The plain denial of justice in the suppression of Aboriginal customary laws and jurisdiction results from the one-dimensional notion of sovereignty that has developed as a defence of the indefensible. Let me explain what I see as the relevance of treaties to this continuing dispute in Australian society about indigenous people. I will first consider the historical uses and characteristics of treaties; secondly, the history of agreement-making between indigenous and non-indigenous Australians, and finally, the debates about a treaty in Australia.

Treaties in historical perspective

According to the records, the British have used treaties for the settlement of disputes since the thirteenth century. They have been common practice between nations and states, either in the form we now know them at international law or in different forms which stem from past customary law practices. In the entry on ‘treaty’ in the Oxford Historical Dictionary, we find the claim that the first formal and written treaty made in England was made in 1217 between Henry III and the Dauphin of France. The Treaty Rolls preserved in the Public Record Office in London commence in 1235 during the reign of Henry III. The catalogue of the British Library lists boxes of material relating to treaties dating from 1131 in the case of Papal Bulls.

When the British and other European imperial powers entered the New World, treaties and agreements with indigenous people ensued. Following the War of Independence in the colonies of America, Chief Justice Marshall of the United States Supreme Court explored the dilemma of the conflicting rights of settlers and indigenous people and adopted the compromise known as native title at common law. The Chief Justice reviewed the practice of Europe which developed after the 1537 Papal Bull, and declared that the ‘rights of the original inhabitants were, in no instance entirely disregarded … They were admitted to be the rightful occupants of the soil, with legal as well as just claims to retain possession of it.’

The fundamental rationale was equality as a principle of the rule of law, as Richard Bartlett has noted. This is a celebrated but not unusual instance of the recognition of indigenous peoples as the rightful occupants of the soil. The history of treaty-making in the New World extended over four-hundred years for the British and French and over five-hundred years for the Spanish, Dutch and Portuguese with divergent outcomes throughout the colonies. Imperial powers found it necessary in various situations to justify acts of domination for juridical purposes.

The starting point for European expansion in the fifteenth century was the near total absence of relations with extra-European peoples. Thus, after initial contact had been established, the potential approaches of the imperial entities to regulate relations included all of those from unilateralism to reciprocity. Between these two extremes it was possible to find variants that expressed relations of ambiguous equality and inequality.

In 1823, in the United States of America, a decision recognising the ‘rightful occupants of the soil’ and ‘domestic dependent nations’ was delivered by Chief Justice Marshall in Johnson v. McIntosh (1823). Richard Bartlett, writing about the case, says that ‘the equality declared by Chief Justice Marshall was tempered by a regard for pragmatic considerations’. The Supreme Court upheld United States’ claims of private purchase from Indian tribes of those same lands. ‘The court declared that the circumstances required “resort to some new and different rule, better adapted to the actual state of things”. The Indians were recognised as the “rightful occupants of the soil”, but their title was “necessarily, to considerable extent, impaired”.’

Such general justifications played a crucial role in European overseas expansion. They had inherent universal applicability and included such well-known terms as ‘the right of conquest’, and ‘humanitarian’ or ‘civilizing intervention’. Significantly, moreover, such justifications referred to rights that were specifically claimed by the European powers, such as the right to propagate the faith unhindered. Formally established juridical relations coexisted alongside claims to rights which the European powers never succeeded in securing in practice or which could only be secured at a much later stage. During the era of European expansion, international law was taken to be universal and its norms were considered applicable to the whole world. The point of contention was determining who were subjects of such a universal system of norms.

Thus, despite the findings at law as to indigenous nations being the ‘rightful occupants of the soil’, the doctrine of discovery was interpreted as an exercise of dominion that impaired the standing of these indigenous nations. Nevertheless, the formal recognition of indigenous peoples having the status of indigenous nations had considerable advantages over the situation in Australia.

North America

In North America from the time of first settlement, in the years 1533 to 1789, that is, prior to independence and the Marshall cases, the administrators of British colonies treated with Indian nations as equal sovereigns. They were relationships ‘between sovereign nations’ that ‘accorded tribes an equivalent status to that of the colonial governments’. Dorsett and Godden describe the situation as follows:

… in many cases the British Imperial Government instructed colonial administrators that land could only be acquired by purchase from the Indians. This policy was formalised, and applied uniformly to all the North American colonies in the Royal Proclamation of 1763. The Royal Proclamation prohibited all private purchases of lands covered by the Proclamation. This gave the Crown the sole right to purchase Indian lands.

After independence, up until 1871, the United States government assumed the role of the British and Spanish governments and continued the earlier British policy of treating with the Indians as members of sovereign nations. These treaties were made under the authority of the federal treaty-making power enshrined in the United States’ constitution.

In 1871 treaty making with the Indian tribes was discontinued as it was seen as an impediment to the assimilation of Indians into white society. In that year, in a rider to the Appropriations Act, Congress declared that no more treaties could be made with the Indian nations. Thereafter, ‘agreements’ rather than ‘treaties’ were made with Indian peoples. Between 1911 and the 1970s, Congressional practice was to obtain some kind of consent from the Indians for any action it was considering which might affect them. Current practice is to use negotiated settlements as a means of dealing with complex issues.

Treaties in Canada proceeded from a different basis from those in the USA. Prior to Confederation, almost forty treaties, the majority being peace treaties, were negotiated between First Nations and the British Crown during the period 1693 to 1862. In Canada, however, Indian peoples were not considered sovereign powers. Later treaties tended to follow a pattern of surrender of lands in return for particular rights — for example, continued hunting and fishing rights, or supplies of monetary payments.

A new section, Section 35, was inserted into the Constitution Act in 1982 at the time of the patriation of the Constitution. It stands outside the Canadian Charter of Rights and Freedoms, and provides that ‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed’. Further, at subsection 3, it includes land agreements as ‘treaty rights’ in order to achieve ‘greater certainty’. In addition, Section 35 provides that ‘The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights of freedoms that pertain to the aboriginal peoples of Canada’.

New Zealand

The Treaty of Waitangi, signed in 1840, between the Maori and the British colonial government, is recognised as the founding document of New Zealand and ‘resides in the constitutional field’ of its system of government. The treaty is in two versions: English and Maori. Because they vary in meaning quite substantially, there were problems of interpretation such that the English version had been privileged over the Maori. Only recently, legislation has been enacted providing that the Maori version is to be used when dealing with interpretation.

The Treaty established the right of the Crown to govern in New Zealand and the terms of a peaceful settlement. In exchange, Maori rights to their lands, resources and taonga were affirmed and Maori were granted the rights and privileges of British citizenship. When New Zealand became constitutionally independent from Britain, the treaty obligations of the British Crown were transferred to the Crown in New Zealand. Unlike Australia, New Zealand has a unitary rather than federal structure of government, and while it is a constitutional monarchy it does not have a written constitution. The government’s power to deal with Maori affairs derives not from a nominated head of power as under the Australian Commonwealth Constitution, but from the inherent plenary power arising from sovereignty itself.

The Treaty provided that the Crown’s right to govern was dependent upon it meeting its obligations to Maori people under Articles of the Treaty. Recently the Treaty has been considered in a number of landmark cases dealing with Maori rights. In interpreting the Treaty, the courts historically held the Treaty to be of no legal force, in itself, without incorporation into domestic New Zealand law. Dorsett and Godden explain that over the last ten years there has developed a significant body of case law which has clarified the treaty obligation of the Crown. Of particular importance in marking a change in the attitude of the Court was the Maori Land Council Case where the Court found that the Treaty should be interpreted in a broad manner and as an evolving instrument taking account of international human rights norms. A number of treaty principles were elucidated in the course of that decision. Sovereignty was exchanged for the protection of Rangatiratanga; the treaty established a partnership imposing on the partners a duty to act reasonably and in good faith; and Maori are to retain Rangatiratanga over their resources and taonga.

The idea of a treaty in Australia

Throughout Australian history, entrepreneurial, evangelical, and other humanitarian figures in our history have attempted by various means, including attempts at treaties, to resolve the hostile relationship between the indigenous and settler Australians. However, unlike in other settler societies, no treaty documents or treaty proposals were officially recognised. Judicial decisions declared Australia uninhabited wasteland. Consequently, the large body of law centred upon developments in the USA and in Canada, has not developed in Australia. This is despite numerous attempts at settlement and offers of settlement.

Henry Reynolds examines the evidence of treaty-making in Tasmania in his book, Fate of a Free People. In the early years of the first colonial settlement in Tasmania a treaty with the ‘Chiefs’ of the Aboriginal ‘tribes’ had often been discussed and considered. It was suggested that a treaty should have been entered into in order to restrain and prevent the extermination of the Aborigines by settlers. In Governor Arthur’s correspondence, Reynolds finds explicit discussion of the need for treaties. This is not so surprising given the international context of treaty making that we have just discussed. As Reynolds argues, Arthur was concerned enough to communicate his desire that the Colonial office deal with negotiating a treaty of some kind with the Aborigines:

His proclamation of April 1828 contained references to an ‘intended negotiation’; to his plan for a ‘negotiation with certain chiefs of aboriginal tribes’. But how to conduct such a negotiation was another matter altogether. Neither side seemed to offer scope for conciliation. The Aborigines fled at the sight of Europeans, who in turn feared the silent spear. Enquiries made by Arthur through the magistrates in December 1827 failed to produce any one at all ‘willing to incur the hazard of attempting to open a conciliatory communication with the Aborigines’. Arthur wrote to Governor Darling six months later, expressing his lack of success in the attempt to ‘induce them to listen to any specific terms of accommodation’.

Yet the idea of a treaty still preoccupied the mind of Arthur and later, George Augustus Robinson who was commissioned by Arthur to negotiate with the Aborigines.

Reynolds’ evidence shows that treaty making was well understood among the Tasmanian tribes. He concedes that we may never know with any certainty whether or not Robinson negotiated a treaty on behalf of the government. The conditions were not written down. However, he does conclude that the evidence suggests that he did reach an agreement similar to the treaties with tribes in North America, although the terms of the agreement were not honoured.

The well-known but ill-fated Batman treaty concerning an area of land now encompassing Melbourne met a similar fate. It was firmly rejected by Governor Bourke in 1835. The entrepreneurial Batman negotiated and signed a Treaty with the Koori of Victoria June 6, 1835. Billot notes of the settler parties to these documents — Batman, Wedge and Gellibrand — that they ‘believed in the value of the treaties: at least, always gave strong indications of their faith in them’, even though ‘it was not, of course, expected that the treaty would be considered binding on the English government, but on previous experience, such action was considered to be proof of bona fides, and would justify approaching the home government for authorisation of settlement, thus over-riding the local Sydney authorities’.

Australian history has many gaps and work remains to be done. Whether agreements were sought in the following decades as the frontier violence raged across the continent, I do not know. Accounts by anthropologists Donald Thomson, R.M. and C.H. Berndt, and Ian McIntosh tell of a series of events in Arnhem Land in the Northern Territory from the 1940s. Thomson was commissioned by the Australian government to investigate the situation of Aboriginal people in the north-eastern part of that region after the killing of several Japanese fishermen and a police constable by Aboriginal people. Thomson trekked with Riawulla north along the coastline from the Roper River to find Wonggu, whose three sons had been imprisoned in Darwin. He was carrying the maak, or carved message sticks that the young men had carved as a message to their father, which Thomson passed to Wonggu when he finally made contact. Thomson negotiated a peace agreement with Wonggu. Wonggu promising to desist from killing and Thomson, committing himself to pursuing his case for land, peace and protection with the Australian government. The Yolngu then became engaged in various types of negotiation with the many strangers who came to their lands.

Ronald Berndt documented what he called the Arnhem Land adjustment movement that came into being late in 1957. In 1962, the clan leaders at Elcho Island prepared a demonstration in full view of all the residents of the mission, Aboriginal and mission staff alike, of sacred poles to protest to the missionaries the existence of their own religion. Such public revelation was unprecedented in Aboriginal life. He describes the events as follows:

… a memorial was set up near the old mission church at Elcho Island. A small, open enclosure held a display of formerly secret-sacred religious emblems that were being made public for the first time: the central traditional post had a Christian cross at its apex.

This was followed in 1962 by the creation of two panels of clan emblems by each of the clan leaders of northeast Arnhem Land at the mission at Yirrkala, Dhuwa and Yirritja. These were placed on either side of the altar, and again represented the most sacred and secret of the clan wangarr, or ancestral origins and meanings, never before revealed in public. These events involved months of negotiation between the clan leaders at their respective mission settlements and represented a turning point in the relationship between Aboriginal people and the missionaries at Yirrkala. In protest at the excision of their lands for bauxite mining by the federal government, the Yolngu clan leaders prepared the famous Bark Petition in 1963, prepared in ritual fashion and signed in English fashion, and submitted to the Parliament in Canberra. The meetings of elders to prepare the petition was the precursor to their subsequent litigation in Milirrpum v Nabalco.

In March 1972, the Larrakia people whose traditional territories covered the coastal area in which the city of Darwin is located in the Northern Territory, sent a petition to the Prime Minister, Billy McMahon, requesting a treaty process be established. The petition was signed by five men of the Larrakia tribe, and a report on it was published in the Northern Territory News on 30 March 1972. As Judith Wright tells the story:

Little was heard of this petition in the troubled days of 1972 which followed, and it was not until June that Mr McMahon replied. It was not appropriate, he said, to negotiate with British subjects as though they were foreign powers; and the reason that treaties had never been negotiated with Aborigines was partly that of the difficulty of identifying the people and groups with whom negotiations could be conducted.

A proposal for a treaty was raised by the late Kevin Gilbert in correspondence with Prime Minister Malcolm Fraser in 1979, at which time Gilbert had established a second Aboriginal Tent Embassy in an encampment at the site of present Parliament House. Gilbert’s impassioned arguments, published in several editions from 1987, set out his ideas on an Aboriginal Sovereign Position and were accompanied by a various versions of a Draft Treaty. His approach had little effect on the formulations of the problem as it was perceived by the Aboriginal Treaty Committee and The Makarrata proposal by the National Aboriginal Conference

In April 1979, the Aboriginal Treaty Committee held its first meeting. Its inaugural members were Dr Coombs, the first chairman, Dr Judith Wright-McKinney, Stewart Harris, Professor Charles Rowley and Professor W.E.H. Stanner. There was agreement to the content of the Committee’s first document sent out in November 1978, which canvassed issues such as a treaty as providing a kind of constitutional basis for the relationship of Aboriginal Australians to the Commonwealth and Australian society generally. Wright’s account noted that the difficulty for the Committee lay, not in convincing Aborigines of the worth of these proposals — Aborigines had been demanding the same for some forty years at that stage — but, in Wright’s own words, ‘with the attitudes and prejudices — and apathy — of the dominant Australian community’.

For five years this Committee tried to educate and persuade non-Aboriginal Australians to the idea of a national treaty to be negotiated between Aborigines and governments with the objective of settling wide-ranging historical, political, economic, social and ‘land-rights’ grievances, while charting a new course for the future. Judith Wright sets out her belief in a treaty between indigenous and non-indigenous Australians in the introduction to We Call for A Treaty, the publication that formed a report to the public on the work of the Committee:

Ultimately, therefore, there must be some instrument such as a treaty which will confirm for all time equal and just treatment for Aboriginal Australians wherever they live, putting their land and their rights beyond the reach of sovereign parliaments. There is no security for Aboriginal people in Acts of Parliament, which can be repealed or amended.

In June 1979, the National Aboriginal Conference called for a treaty between the Commonwealth and Aborigines. The Prime Minister’s reply to the Conference proposal for a Makarrata did not refer to the question of overriding the states. Wright noted that, ‘in his letter, he stated that he “would be pleased to discuss the concept of a treaty with the National Aboriginal Conference at a mutually convenient time, if they wish to do so”’. In November 1979, Senator Chaney, the then Minister for Aboriginal Affairs, welcomed the initiative and the Government funded the NAC to consult Aboriginals around Australia on the idea, not of a treaty, but of a ‘Makarrata’. This is a Yolngu word signifying an end of a dispute between communities and the resumption of normal relations, made known in W.E.H. Stanner’s ABC Boyer Lectures in 1969, Whither The Dreaming? Stanner’s description of the duelling ordeal undertaken by disputant parties in the Makarrata ceremony used phrases such as ‘blow for blow’, ‘the drawing of blood’, and it was clear that a public servant who had listened to the lectures had passed on a sanitised version of the term to his ministerial masters.

Asked for an opinion on the legal possibilities inherent in a treaty in 1980, the Attorney-General relied on the decision in Coe v. The Commonwealth of Australia, which denied that the Aboriginal people of Australia could be considered as a domestic dependent nation organised as a ‘distinct political society separate from others which had been uniformly treated as a state’. It also denied that they had legislative, executive or judicial organisations by which sovereignty might be exercised. If such organisations did exist, they would have no powers unless these were conferred by Commonwealth, State of Territory legislation. As to the claim to land, it was, said the majority judgment, ‘fundamental to our legal system’ that the Australian colonies became British possessions by settlement and not by conquest’. This was clearly a reference to the terra nullius doctrine rejected by the High Court twelve years later.

For many Aboriginal leaders, the proposal for a ‘Makarrata’ was already a dead letter. And, yet despite the Attorney-General’s opinion, following the influential advocacy of the Aboriginal Treaty Committee for a national treaty, the National Aboriginal Conference supported the proposal. The National Aboriginal Conference sought to negotiate solely with the Federal Government, first for ‘Agreement in Principle’, possibly to be entrenched in the reformed Constitution, and second, the negotiation of more detailed agreements for various regions. The proposed deadline for constitutional reform was 1988.

In the end, The Aboriginal Treaty Committee considered the divided opinion among government circles and organised Aboriginal groups, and wound up after proposing a parliamentary resolution, by asking the Commonwealth Government to negotiate a Treaty with Aboriginal Australians.

Dr Coombs, wrote to the Prime Minister on 21 February 1984, announcing the end of the Aboriginal Treaty Committee, putting a range of matters as to how the idea of a treaty with Aboriginal people would be advanced. The National Aboriginal Conference was wound up in June 1985.

Through 1990 and 1991, cross-party support developed for a formal process of reconciliation to be led by a council of prominent Australians, and the Council for Aboriginal Reconciliation was formally established on 2 September 1991. The ten years of educative and consultative work of the three terms of the Council, two under the Chairmanship of Patrick Dodson, and the last under Evelyn Scott, have caused a fundamental change in the terms of the debate. ‘Reconciliation’ is a key word in Australian political and social life, and a significant proportion of Australians support the idea, if the various polls and the estimated 400,000 people who walked across Sydney Harbour Bridge during the final public plenary of the Council at Corroboree 2000 in May this year are any indication. In September, Prime Minister John Howard, made it clear that any kind of agreement that his government would consider would be a reiteration of the policy of assimilation and make no mention of an apology to the ‘stolen generations’, a continuing right of occupancy, or any special rights or measures.

The frustration and anger of many Aboriginal people at the relentless efforts of governments to dispossess Aboriginal people were heard clearly in Patrick Dodson’s summary of the outcome of the recognition of common-law native title. In his lecture, Patrick Dodson set out the idea of a Framework Agreement as a process for the settlement of the outstanding inequalities in the relationship between the first peoples and the settler state. This proposal was communicated by a delegation of Aboriginal leaders, including Dodson, to Prime Minister John Howard following his rejection of the Draft Document of Reconciliation at Corroboree 2000. The Prime Minister likewise rejected the idea of the Framework Agreement.

His rejection of yet another offer from Aboriginal people for resolution of our outstanding grievances is only of minor historical importance, however. History will record and future generations will know that Aboriginal people have continued to assert the right to negotiate just terms and conditions of the seizure of their territories and resources and the proscription of customary laws, governance and ancestral jurisdiction.

Agreement-making and the potential for the settlement of disputes between indigenous and other Australians

Despite the formal rejection of a document of reconciliation by the Prime Minister, the outcome of the reconciliation process pursued in the last ten years necessitates an audit of agreement-making with Aboriginal people in recent times. Since the first agreements signed under the provisions of the Aboriginal Land Rights Act in the Northern Territory more than twenty years ago, there has been an astonishing proliferation of agreements between Australian indigenous people and resource extraction companies, railway, pipeline and other major infrastructure project proponents, local governments, state governments, farming and grazing representative bodies, universities, and many other institutions and agencies. Some are registered under the terms of the Native Title Act. Others are simple contractual agreements that set out the framework for future developments, such as the Cape York Heads of Agreement between the Cape York Land Council, the Australian Conservation Foundation and the Cape York Graziers’ Association.

There is a growing confidence in the process of agreement-making with indigenous people, and, at the same time, there is an increasing understanding of the flaws in the process that arise from the intransigence of state and federal governments in recognising these agreements. This intransigence prevents the formalisation of critically important aspects of these agreements such as their ability to run with the land. Such uncertainty is precisely the outcome desired by federal and state governments in order to discourage agreement-making with Aboriginal people.

These developments in relations between indigenous and non-indigenous Australians are evidence of creative thinking by those involved in grappling with the legacy of the Australian frontier. While the many attempts at treating with Aborigines in colonial times and in the early twentieth century were not translated into enduring outcomes it is clear that the need for agreements is both desirable and appropriate for several reasons, although there is formidable resistance to agreement-making with Aboriginal people. The agreements negotiated since the 1970s are evidence of a willingness to do what the ‘colonial settlers’ were unable to countenance, and that is acknowledge that another group of people were the owners and custodians of the lands and waters of Australia, and that, their descendants have a right to the possession, use and enjoyment of those lands and waters and to govern, within the limits of Australian law, their use and access by others, and to benefit from that use and access by others, as would any other group of people in rightful possession of a place.

The current treaty processes in Canada and the Canadian constitutional entrenchment of treaties and agreements provide a model favoured by many Aboriginal people in these circumstances. There is no evidence that there has been any detriment caused either to Canadian sovereignty or to the polity by these arrangements. That many recent agreements are affirmed by the Canadian Constitution is evidence that there are alternatives to the limited framework of the legal canon in Australia.

Adopting such a process, I argue, would open up the possibility for alternative arrangements in a post-frontier Australia that would accord a status of full equality to the traditional laws of indigenous peoples by mutual agreement. Such a polity would thereby include indigenous people within the civitas on a voluntary basis, rather than by coercion as a result of historical events. In any case, it is clear that the anomaly of Aboriginal status remains one that confounds agreement-making, and contributes to the insecurity.

We can only hope that future governments will take seriously the possibilities for legislation supported by constitutional amendment. Constitutional entrenchment of Aboriginal rights is the minimum requirement for overcoming the monstrous injustice involved in the seizure and dominion of Aboriginal territory.

Marcia Langton is the inaugural Chair of Australian Indigenous Studies at the University Of Melbourne. This article is an edited version of her Inaugural Professorial Lecture delivered in October 2000