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).

This move to open power in the aftermath of the terrorist attack marks a new stage in a process of global extension of its explicit power and of the institutions — overwhelmingly the semi-open market — upon which they are based. The Gulf War was an intervention into a dispute wholly contained within the Arab world for the purposes of guaranteeing a compliant oil producer — that ‘Nintendo’ war, whose casualties John Pilger reminds us of, spawned the Iraq sanctions and the immense sufferings of the Iraqi population. The signing of the GATT and the establishment of the WTO exposed the South to Northern economic power in a way that spawned the Zapatista uprising and the new global movement that sprang from it. Prior to that the Carter government — as former advisor Zbigniew Brzezinski now admits — established and funded the mujhadeen before the Soviet invasion of Afghanistan and was intended to provoke just such a move (Nouvel Observateur 15.01.98). That act not only destroyed what had been a modernising society and launched upon the seas the asylum seekers our Navy is now firing upon, it created much of the extra capacity for the renewed global heroin trade — a crop the US encouraged the muj’ to develop as a funding base. Militant Islam was selectively encouraged by the US, but also served as a conduit for and expression of the rage felt by the Arab world and central Asia at the endless manipulations to which it had been subject by the West. With the Taliban, Osama bin Laden and the attack, it all came together in a double fireball. Such a movement — combining ‘national’ rage with a religious calling out and networks of money and power — has expanded far beyond the root causes which gave it a start. Militant religion has become a mode of production for suicide warriors. Initial grievances about international relations, Palestine and Iraq have given way to the pure desire to land a blow on the enemy, to take revenge for being no more than a target in the Nintendo conflict. As has been noted, the attack on the Twin Towers was a very late skirmish in the Gulf War. That such a movement began as a reaction to the same global racket which also spawned the new global movement (sometimes called anti-globalisation movement) has been used by the Right to portray the opponents of the US as a single entity. The reverse is the case — expanding US power is a single entity which attracts the resistance of groups with totally opposed worldviews.

That the Twin Towers and Pentagon attack was evil and ruthless goes without saying. Yet the political uses to which it has been put are manifold. The Right, both in the US and here, has sought to label the very act of reflecting upon global power as an act of ‘blaming the victim’ and US culture — as Ray Nichols notes — has slipped over into an unabashed triumphalism, endorsed by the President. The attack on civil liberties is occurring on multiple fronts. As Damien Lawson and Nehal Bhuta note, much of it over here was prepared for by the mockery the government made of separation of powers and rights during the Tampa affair. The process of extending executive power into every sphere of life can now continue. Since the overall cultural and political effect of an expanding market is to make executive power into the only type of state power that is real (the strong leader, the no-nonsense government) crises such as war-scares cut with the grain of the age.

Parallel to the attack on such civil liberties as exist is an attempt to conscript the public emotions in the interests of foreign policy. For many, such sympathy as one had for the victims of the attack and their relatives became increasingly tinged by bitterness that the lives of those living in New York came to be valued more highly de facto than the nameless, numberless dead of the South. But as with the death of Princess Diana — which acted as a dress rehearsal for this sort of thing — reason and emotion came to be deemed mutually exclusive, and cleaving to the former an act of disloyalty. The implicit proposition — that the degree of one’s sympathy should be influenced by the spectacular character of the event or the number of cable channels covering it — is truly immoral. Nevertheless, it has become the official attitude. As Douglas McQueen-Thomson notes this is a war as constituted in language as any war that ever occurred, yet to ask the question of what a ‘war on terrorism’ really means is to invite the charge of ‘appeaser’. The idea is meaningless and the fact that various government and military figures talking about it being a ten, thirty or hundred years’ war indicates its true character. It is a blank cheque that the US and its closest allies — our government included — are writing themselves to give US power an unlimited pretext to abuse the sovereignty of other peoples in the name of protecting its own. It is a unilateral abolition of other people’s borders at the same time as one’s own are made into fortress walls. Our government is also dipping its toe in this water with the manufactured refugee ‘crisis’. Fortress Australia is being sandbagged with places such as Nauru whose independence has been de facto abolished using the leverage of their bankruptcy. The US has now abandoned any distinction between private terror organisations and the states within which they are located, yet this too will be selective. Pakistan continues to host Kashmiri terrorists, autonomous Kosovo, Albanian ones. Both may go quiet for a while, but only as a tactical maneouvre. The ruling as to who is in and out of the war will be as capricious and partial as the old freedom fighter–terrorist distinction.

The shocking nature of the Twin Towers attack has given the exercise of American power a new domestic strength. A peace movement has begun, but many middle of the road liberals who would support, say, an end to sanctions against Iraq, will find themselves lining up with the US government. As Kimberley Serca notes, the most high profile ‘left’ figure to line up with US power has been Christopher Hitchens who has figured the Taliban–bin Laden nexus as ‘Islamic fascists’ in a conscious recall of the popular front of the 1930s, but he is only the most eloquent of many who would have a similar disposition. Nor can one retreat into any easy blanket pacifism on this issue. Mohammed Atta and his cohorts were clearly acting as a self-contained group who had planned the attack over several years. Yet it also seems likely that they were partially funded and mentored by bin Laden’s Al-Qaida group — and it is clear that Al-Qaida is thoroughly intertwined with the Taliban — one of bin Laden’s wives is the daughter of Mullah Omar, the Taliban leader. Now that bin Laden has replied to US actions with the promise of new attacks on the US mainland and a call to the Muslim world to launch war on the US, there is clearly scope for some legitimised US action. One could put it another way — the US now has the sovereign enemy it needed for a war. It may soon have many others.

The moral impossibility of supporting the war as it is being conducted is clear, even for those of us who are not pacifists. The bombing of civilian populations is unacceptable in any circumstances other than as defence against total attack by a whole sovereign power and this has clearly not occurred in the case of desperate Afghanistan. The Taliban’s hosting of bin Laden would have given the US the right to call on a UN force to bring him to an international court of justice — had, as Andy Butfoy notes, the US not embarked on an unprecedented effort to destroy international authority in recent months and years — but it no more sanctions an attack on the whole society than would Cuban exile raids on Havana give Castro an excuse to strike at the United States.

The issues of ‘host’, ‘sponsorship’ and ‘territory’ are far more complex than it would be convenient for the US government to admit. Yet looking at the still smoking hole in Manhattan and a city whose communal life has become dominated by funerals the question comes back at the nascent peace movement: what is to be done about terror?

The question cannot be ducked but that does not mean it needs to be accepted in those terms, either in principle or in practice. Principle first. The current and ongoing role of the US in the global South makes it morally impossible to line up with. Palestine and Iraq are the two causes which serve as the pretext for bin Laden’s activities, yet the more serious crime has been the US government’s active and zealous enforcement of the IMF/World Bank Structural Adjustment Programs and the WTO provisions which allow for the transfer of wealth from South to North. The human cost of this process in unnecessary suffering and cultural destruction over the last twenty years dwarfs anything thrown up by the fascism, Nazism, Stalinism or first-wave colonialism in the rest of the twentieth century. It is done by bankers and bureaucrats who are explicitly aware of its human cost. It is presented as an inevitable consequence of development and globalisation, but there are humane alternatives available, even within the development paradigm — most notably a global protection of labour rights to organise and global support of convivial technology and financing (small-scale banking) — so the moral–political choice is real. The dead are not shot or exploded, they die — as did most of those in the Gulag — through overwork, malnutrition and preventable disease. The universality of the neoliberal market gulag — it will take anyone as raw material — obscures the common roots it has with the more explicit tyrannies. The horror of the Twin Towers attack and the fact that its agents were devoted believers in a premodern form of religion that had nothing to say about this dimension of America’s global role has led many commentators to call criticism of the US hackneyed or irrelevant — as if it were a fashion for less volatile times. The role of the US does not in any way justify the Twin Towers attack or anything like it by any organisation, but that is not at issue. The issue is whether the Left can morally line up with the state, as the British Left could in September 1939. The answer here is that, unequivocally, it cannot.

The dilemma of the American Left in these circumstances is similar to the dilemma of an anti-Nazi German in WW2. In retrospect resistance to one’s own government was the only moral course of action — at ground zero, facing the British, French and Soviets without illusion of their magnanimity would have made this course of action somewhat less shiningly clear. As the US gets deeper into the war and the possibility of uprising in Pakistan or elsewhere, or the use of chemical or biological weapons, or a dozen other scenarios become more plausible, the dilemma for the American peace movement will deepen. But here the practical buttresses the principle. There is no path to security for the US public through the war on terrorism.

The degree to which the American attack on central Asia will destabilise various Arab regimes is unknowable. At the end of WW2 Orwell argued that a third world war would be preferable to a nuclear stalemate, as the latter would cement a power system that could last indefinitely. The prospect of Arab uprising in a number of states is looked upon by many with a similar uneasy ambivalence, since the alternative is virtually uncontested US power with the tang of easy victory in its nostrils. Yet the record of the sort of groups that could make such an uprising, in Afghanistan and elsewhere, are blood-chilling (as it should be noted is the virulent anti-semitism and Hitler-worship which disfigures some of the Arab press). But such groups will be rubbing their hands with delight as the US pushes increasing numbers of Arab and central Asian peoples to a fundamental solidarity.

For Australians the call to solidarity with the US comes on several grounds — that the states of the world have to defend themselves against free-floating terror; that bin Laden and his organisation want to dominate the world and impose a particular form of shar’ia; that solidarity should be based on cultural and historical connection. The last of these has no validity whatsoever — since there is no sign that the US would come unequivocally to our aid in the face of threats to us from any other powers. One week after the Howard Government signed a blank cheque of support to the US government, Congress signed its own blank cheque — in the form of an unprecedentedly huge amount of subsidies to American farmers. This further example of free trade globally/protect locally is a measure of our special relationship.

Nor has the second of these propositions been established. Bin Laden has expressed a desire to destroy America, but mainly because America is — as he sees it — actively humiliating and oppressing the Muslim world. His concerns are overwhelmingly with the ‘purity’ of that world. Those who align themselves unquestioningly with the US will unnecessarily make themselves a target. Australia’s relative insignificance should, in this respect, be a source of security, not talked away.

But it is the first of these propositions — lining up with the state (or a coalition of states) against free-floating terror — that is the skein from which power and positions are currently unravelling. The ‘war on terror’ has thematised the big T, the twentieth century’s shadow, as its enduring enemy yet it is, as always, unlicensed terror that is subject to eradication. Alluding to some of the themes explored here by Angela Mitropoulos we can say that it is not violence itself but legitimacy, sovereignty that is in question.

Terror — not merely violence — is central to the question of the state and power. Violence is graded and allocated to citizens to varying degrees from sport to self-defence to private security. Civil life is contoured with different degrees of violence. Terror is held to be the preserve of the state alone. Private use of it tears a hole in the fabric of power and the rip can extend indefinitely. Though bound up with warfare from the earliest times, modern terror begins when the wholesale slaughter of civilian populations — the scorched earth policy of Roman, Tartar, Inca and Conquistador alike — shifts to the killing of randomly chosen representatives of a social group. The technique comes to fruition in the European empires (Captain Arthur Phillip’s capture and execution of six Aborigines, rather than an entire group, as punishment for raids for example). Terror installs death and power at the heart of life, rather than simply killing. The terrifying Other is then permanently at home in the psyche of the terrorised, and autonomously polices them. What came to be called terrorism in the nineteenth century — especially as practised by Russian radicals — we now know as assassination, since the principal target was the Tsar. He was targetted not merely as the symbolic personification of the state, but as its actual keystone, whose shattering would cause a collapse of the whole structure.

The intertwining of unlicensed terror and technology pushed the activity into the centre of Western political life and fears — as measured by two classics of turn of the century literature, Conrad’s Secret Agent and Edgar Wallace’s Four Just Men. (The use of dynamite to dispatch one Tsar and US President McKinley so shocked its inventor Alfred Nobel that he invented the peace prize to make amends.) Terror thus haunted the imagination of civil society as the other side of technology — even though the actual risk it presented was vanishingly small. Three innovations transformed it into a weapon of unparalleled effectiveness. In 1916 IRA leader Michael Collins moved from a guerrilla strategy to one of urban terror in which enemy figures targetted were not the leaders — whose identity and sense of self was bound up with enforcing British rule — but the small-fry. British informers, sycophants and camp followers were killed for no reason other than being who they were — for precisely the fact that their particular death would make little real difference. Terror was thus pushed towards a general condition. Anyone pro-British was a combatant. Collins’s strategy was the template for modern terror and of such success that one of the next innovators took the names of the IRA leader as a codename — Michael for Yitzak Shamir. Shamir, with Menachim Begin, developed a strategy of outrage with the Irgun and the Lehi groups during the fight to establish Israel in 1948, employing not only ethnic cleansing (the massacre of the Palestinian village of Dair Yassen) but also excluded middle — the assassination of Folke Bernadotte, UN negotiator for the mandate — the extension of the definition of combatants (the dead in the blown-up King David Hotel included numerous non-military stenographers and office staff) and the pornography of death (the execution/murder of two British sergeants was filmed and the film delivered to Mandate authorities). The tactics outraged the mainstream Zionist armed group the Haganah, and they exterminated most such groups. To little effect — the British quit the mandate before a two-state solution could be negotiated, which had been the Irgun’s aim. Begin’s insight was that terror could live off the horror of its friends as much as its enemies — that it relentlessly and irresistably shifts the ground of politics, that anyone ruthless and desperate enough to use it will be rewarded — in Ireland and Israel’s case with statehood. When George Habash and Wadi Hadid of the PFLP defined all Israelis as combatants by virtue of their nationhood and the Japanese Red Army put this into practice at Lod Airport they effectively completed terror’s universalisation.

A grisly history, yet mild compared with the history of state terror — whether Red or White in 1917, the Nazis at Guernica, or the bombing of Cambodia. Non-state terror looms large on the social psychological horizon because it is purely rogue — not only is it unattached to any form of other power, it is resorted to when that power seems most absent, when the enemy seems all powerful. The attack on the Twin Towers took terror further into the territory of everyday life by its use of spectacle and icons. The venerable avant-guardist Karl-Heinze Stockhausen called it the ultimate piece of performance art. He was saying honestly what media outlets were acknowledging through their acts. Three days after the event, the US government had to ask the networks to stop playing the multiply angled footage of the event.

People can’t look at terror, but they can’t look away from it. It achieves the total presence in an enemy society, that the enemy assumes in the society of the terrorist. It turns everyday life against itself and reminds people that they are, at the bottom of it all, pure carbon to be blown apart at the will of the Other. The state’s great propaganda victory of this century has been to convince people that terror in uniform is not terror at all.

For the most part, this judgement has hinged upon the bombing of civilian populations. Prior to the 1930s this act was seen as the ultimate barbarity of the burgeoning doctrine of ‘total war’. Hitler’s use of it in Spain and Mussolini’s in Ethiopia deepened that identification, but it was also used by the British in Afghanistan, of all places. Churchill, who had been an enthusiastic proponent of both civilian bombing and the use of gas was the prime mover behind Britain’s WW2 practice of carpet bombing whole cities. At the time it was a major moral issue, with many Americans arguing that the practice rendered the UK morally equivalent to the Nazis, and obliged people of conscience to become conscientious objectors. Dozens of war movies have normalised the strategy as part of a general reinterpretation of the war as a crusade against the Holocaust —falsely of course. About the only part of the Nazi empire the Allies didn’t bomb was the rail lines to the camps. The WW2 model has served as the ground for the moral division between state and non-state terror ever since. The victims of terror fade to invisibility beneath the shadow of the bombers. I suspect I am not the only one who has had dismaying conversations with good-hearted friends willing to see ordinary Afghan people blown to pieces in their name — in order to make the world a place where civilians are not exposed to random airborne death.

The terror unleashed on 11 September has been as effective as any in history because of the unprecedented degree to which people’s lives are dependent on the technologies which have been turned against them. Whatever governments may say people know that hypermodernity is inherently indefensible. The current anthrax scare in the US is an indication of the widespread awareness that a further attack may produce casualties of five rather than four figures. Echoing a theme picked up by Paul James, it is the new willingness of people to achieve such destruction with their own bodies that makes most vulnerable the uniquely disembodied power structures of contemporary globalisation. And any attempt to lock down global society in the manner in which Israel is locked down would slow the velocity of global capitalism to a degree disastrous to its smooth working. As John Hinkson notes, the current set up is balanced precariously on hitherto unimaginable systemic risk, as expressed in contemporary insurance and banking funds. Confidence is as much a target as buildings.

The people of the United States wonder if life will ever be normal again. Yet for many across the world the presence of sudden death — albeit in a less spectacular form — is normality, and it was surely a part of the terrorists’ intention to bring this fact home to the American people.

The people they purport to avenge — the Palestinians and Iraqis — face a more mundane but no less lethal annihilation. When a globalising power has the capacity to visit such annihilation on people, such totalitarian destruction, it produces total opposition — those who believe they have no choice but to die fighting in order to live. Thirty years ago Arab resistance was expressed through the movements of nationalism and Marxism. Both these have been supplanted by a militant form of Islam which offers a transcendental, a spiritual, grounding for struggle that those other movements could only partially achieve. Thirty years ago suicide bombers were a rarity — now there are hundreds. Push hard enough and there will be suicide societies whose resistance is total. A form of Islam may steel such people for certain death, but that is not so different from the many people who have faced virtually certain death because they felt that they had no alternative that would still allow them to be a human being. The Vietcong are one example; the British crews of WW2 bomber command — the first suicide bombers, with virtually no chance of surviving a tour of duty — are another. Refusing to endorse someone’s ruthless disdain for the innocent is one thing; to believe, as many conservative pundits believe, that analysing the motives and contexts from which such people work is tantamount to dishonouring the dead is foolishness distilled. As Geoff Sharp notes, the fundamentalism of the terrorists has been called out by a fundamentalism inherent in the US version of globalisation itself — the relentless manner in which it seeks to make over all existing ways of life in its own image under the brand of ‘choice’.

The need to guard the security of hi-tech globalisation has made it inevitable that the liberal political sphere would come under pressure sooner or later. Attempts to extinguish it altogether will be a feature of the years to come, especially if the conflicts now occurring slide towards a more comprehensive global war. The peace movement that has now begun across the world has sprung in part from the global social movement that has rocked the cities of the world from Seattle to Melbourne to Genoa. In Australia it has also had confluence from the refugee action movement, to create a broad campaign based on expanding the principle that recent events have been only the most visible aspect of a rising global conflict. Such a conflict will only be resolved through genuine global justice, which will only come from a global movement above and beyond the official national and international bodies. Whatever is to come will be determined in part by our resolute actions, and anything is possible. We cannot know whether the best or the worst, reconciliation or destruction, will occur, but we can say for certain that whatever it is, it will be mutual.

Guy Rundle is co-editor of Arena Magazine.

In the US capital a national cathedral, technically Episcopalian, sits close by the heart of the secular state. In the immediate aftermath of the fall of the twin towers it was the site of a cultural mobilisation.

Everyone was there. In the very early morning, Australian time, the service was relayed by the BBC. It commenced by those present joining in a deeply resonant hymn:

O God our help in ages past
Our hope for years to come
Our shelter from the stormy blast
And our eternal home.

In the first half of the service there were readings by Jewish, Muslim and Christian figures. The cultural diversity of the United States was being actively recognised as mourning was grafted to combative resolution. All that was set within the generous spirit of the universal ideals which those great religions can invoke.

In this context these human ideals spoke to self-recognition. That is, to the self-understanding of a people who, believing that they live by these values, were now reaching out for a sense of common purpose which could sustain them in a protracted struggle. They were people who, taking for granted that this was a simple matter of the violation of their way of life, cried out for justice.

As the service ended and religious devotion receded before a return to the mundane world, those present joined again, this time in a hymn whose role was predominantly secular. With the same fervour as they appealed to the God of their ‘eternal home’, they now intoned ‘The Battle Hymn of the Republic’. It was penned in 1861, during the American civil war, its author being inspired by the sight of soldiers at drill.

So much for a certain fusion of religious commitment, cultural diversity and state policies directed towards the mobilisation of the will and conscience of the nation.

In the more mundane world of imperial power, its complement is the rhetoric of freedom. This rhetoric taps back into the notion of freedom of conscience, which is so central to a universalising ethic. But in the Bush version, freedom of choice is the main accent. The choices, moreover, are material ones: choices in the market, consumption choices, all set within a crudely materialist vision of life and ratified by the rhetoric of democracy. But about that, there is no real choice on offer. The issue of how we are to be governed, to what ends, and with what consequences for the other peoples of the world, is yet to move to the centre of public conscience. Ideal values sanctify a wider culture of crude materialism and self-gratification which ignores its consequences in the wider world.

After the break-up of colonialism, after fifty years of Cold War, the nations which see themselves as developed, along with transnational corporations and global networks of high-tech and financial personnel, have consolidated a new inequality. More significantly, that inequality carries with it a deeper impoverishment of ways of living among both rich and poor.

It calls us to an order of life which has nothing in common with the framing values of the great religions or the generous humanism of certain secular currents in modernity. It proclaims their values, yet via the freedom of conscience, free choice in the market place and thimble illusion, it actually undermines them.

In the developed heartlands, masses of people are deeply confused and increasingly desperate. Many turn to the needle, a few to the bomb. Among the ‘less developed’ societies the situation is more urgently tragic. It is not merely that many millions are in dire want or ravaged by epidemics for which the only remedies are at ruling market prices. Whole economies, with their traditional ways of life, are being sucked dry by the exploitative ravages of one particular version of globalisation. That is to say, this present version of globalisation is structured to the advantage of the new rich, set within the new economy.

Equally important is the way in which life is conducted within newly ascendant social forms; these, by lending a distant and abstract quality to the fate of others, reinforce the certitudes that bind the new elites to their own primarily secular version of fundamentalism.

George Bush is probably only half right. A ‘war’ could go on for many years. But what kind of war will this be? When the small numbers he seeks to exterminate merge with whole populations, just where is the enemy? What will be the target? If a high-tech onslaught is directed against a whole population which cannot hit back in the same mode, would that be an act of war? Wouldn’t massacre be a more apt description? And would others, fearing the same fate, be likely to hit back by every possible means?

The problem with descriptions like ‘war’ and ‘terrorism’ is that they focus attention only on the surface phenomena of world politics and global change. They obscure the vast transition taking place in the ways of life of peoples all over the world. The world of intellectually grounded high tech, and of image-mediated sociality at a distance is reaching out to absorb and undermine an older world of labour, community and mutual presence. Within this epochal transformation the forms of conflict also change. War begins to transmute into massacre; the sense of outraged oppression can readily move on towards cataclysmic acts of terror against civilian populations.

The crucial issue is to begin to clarify and act within a perspective which challenges both fundamentalisms. We need an approach that challenges the dominance of the universal market as it now reaches out to transform every sphere of life. Similarly, it is an approach which challenges its counterpart: the bitterly outraged way of understanding which, because it invests itself in a just God, can act with a total self-righteousness which excludes any deeper reflection. It is this response which feeds the epithets ‘terrorist’ and ‘fanactic’, so that the labels help to obscure the underlying social transformation and the new roots of ignorance and oppression.

This transformation cannot be reduced to the interplay of economic interests. These interests should be seen as secondary, in spite of their enormous pull and pressure, both in the reconstruction of work and in extending the reach of the global market.

While this whole process of the re-ordering of social life is widely understood as the triumph of capitalism, it is also a shift in the priority of different forms of social life: of different ways of being present to and absent from others. It is a shift in the social bond, mediated in the first instance by the given powers of our species — to touch, to see and to speak with others in the flesh; in the second instance, as mediated by abstract technologies, the remaking of our very being, whether by the chip, the gene or the technological reconstruction of life more generally, we pass over into a world of mere interconnection.

These are issues which go far beyond conventional notions of class, status and power as the elements of social structures. They point to the ways in which the power of the intellect, expressed in abstract ways of addressing both the material and social world, are displacing the work of the hand and our immediate presence to each other, in the flesh.

In the short run this accelerating shift in the mode of human existence is often outside the realm of the public imagination. Within the corporate world, among the intellectually trained personnel, and within the realm of government, it is as if the basic arrangements of modernity have remained unchanged. They appear merely to have been supercharged so that the world of capital has now directly encompassed the work of the intellect. It is even as if a universalised mode of being is in prospect. The promise is that limitations of consumption, of gender, even of mortality can be overcome, if not quite today then by way of a treadmill of tomorrows.

This basic transition could not proceed without a radical shift in the social role of intellectual work. The predominance of the technosciences and their direct incorporation by commodity exchange is the central feature in the universalising outreach market. Throughout the modern period it expanded within and was limited to a degree by encompassing values. At first by Christian values; later they were joined by the humanist currents which branched out from Christian orthodoxies. Yet now, as the market reframes every sphere of life, previous boundaries are erased. Embedded as life is in the assumptions of a universal market, there is no ready place for a different perspective to stand.

Instead, perhaps for a whole generation to come, a new fetishism is set in place. It is a fundamentalism that carries a transcendental attitude and practice both secular and radically imperative. It presents itself to its carriers everywhere as inevitable, yet increasingly it stirs an inarticulate malaise. Just what does the future hold for our children and for us?

This sense of foreboding arises from the new reality in which, far more than ever before, life is carried on at two levels. On the one hand there is the world of the intellectually related practice, carried on at a distance. It is a world which celebrates its own ascendancy and has only the most limited insight into that other ‘less developed’ world with which it co-exists and from which it seeks to take its departure.

How long will it take to bring these issues into the realm of active public discussion? Is it conceivable that one generation will be sufficient time for the public conscience to respond to the challenge which now faces us as a species? The United States may have been the specific target of this attack, but the whole way of living that the market spawns is at issue.

After modernity the role of religion is a far more residual aspect of such a way of life. While it speaks with the voice of a universal ethic, it does not actively address the root cause, in our times, of the violation of that ethic — the greed, the individualism, the proclivity to treat our fellow beings as objects integral with the structure and mode of operation of a market. The recent gathering at the national cathedral in Washington was a case in point. Its essence was to join the precepts of a universal ethic to the battle hymn of the republic of greed. Yet the citizens of the United States, even some of its leaders, are far from seeing or intending this conjunction. Within their immediate circles of life they are insulated from the broader consequences of their way of life. They have yet to pause and ask themselves whether, in some way, they may have contributed to the onslaught which has wounded them so deeply. When that time comes, recognition of the harsh reality of the republic of greed will be the real test of their deeper values.

The over-riding impulse to now wage war should not, however, obscure the fact that for millennia,the great religions have been a primary source of efforts to interpret our being and to generalise ethical norms which might guide common life. Although compromised through history by their conjunction with the powers, in general terms they signify the need for institutions which can stand back from the pressures of everyday life and call people to an interpretive overview.

They are an expression of the role of the interpretive, as distinct from the technoscientific intellectual in his or her relation to the pulse of everyday life. For the present the latter is captive to a market-driven fundamentalism.

The humanities, meanwhile, are both under intense pressure within their institutions and characteristically driven by the narrowing impulse of the career, rather than by ‘the calling’ to contribute to an overview.

Yet the resources to call for a different way forward than the strike and counter-strike of fundamentalism, remain strong. Given a build-up of demand from an insistent public, yes, a ‘peace movement’ in the immediate circumstances is an urgent first step. But more than that is required. The United Nations as currently corralled by the United States will not do. What is needed is a movement with roots in every country among the many millions of people ready to stand up and act for truth and reconciliation. This will require exceptional dedication and prolonged endeavour. The interchange which embraced the elementally opposed groupings in post-apartheid South Africa is something of a model. Any passage to a shared truth, then on to reconciliation and even to justice as well would be long and difficult. Yet the minimum demand must be that the two fundamentalisms sit down among the growing number of responsible people. That is to say, citizens of every country who see that for the common good, the wider understanding of the roots of the new inequality is the urgent problem.

The world of extended interchange and interconnection has been an indispensable feature of every civilisation, just as the parochial worlds of direct presence in which people conduct much of their daily lives have been. When the relation between these forms of life is undergoing a basic change, public awareness is slow to respond to the need for radically new perspectives. Now, when the tragedy and the suddenness of the twin towers has awakened people to what could become their common fate, the time remains to think and to act differently.

Geoff Sharp is Arena Publications General Editor.

Concluding In Denial: The Stolen Generations and the Right, Robert Manne situates the ‘debate’ over the stolen generations as part of what he calls ‘a larger culture war — over the meaning of Aboriginal dispossession’. His incisive analytical work in the essay is bound together by military metaphor: the ‘campaign’ to undermine Bringing Them Home; the ‘troops’ drawn from the Institute of Public Affairs and Quadrant; and at the core, ‘General’ P.P. McGuinness. Manne points to the way this Right-company pictured its key battle as that for ‘the moral balance of power’ in Australia.

As they see it, a ‘sorry industry’ set up by white intellectuals lives off indigenous suffering, exploits guilt and deprives the bulk of non-elite white Australia of their own national history. Aside from sniping at those ‘black arm-band intellectuals’, the lines were drawn for the public denigration of the stolen generations, specious denial of frontier massacres and racist circumscriptions of Aboriginal culture in general. This tilt at the moral balance pushed toward the kind of arrogance of the ‘civilising mission’ — something we heard echoed by the Minister for Reconciliation in his comments about the invention of the wheel. It seems that when Australia federated it did not supersede all its colonial ways. It is from exactly this colonial mode of thinking that some have been attempting, for the last thirty years, to extricate Australia.

In his account of the stolen generations and its deniers, Manne has targetted two strands of Australian colonialism. One is the history of a state-practised assimilation and the other is its current ideological defence. If the transformation of government activity in Aboriginal communities came in the 1970s with policies of self-determination, then the broader social shift was certainly not complete. Today, persistent assimilationism re-emerges and presents itself as the answer to social problems in Aboriginal communities. The continuing suffering of those who were separated from their families and land is not the only colonial manifestation in the present. There is a broader cultural attack going on against every aspect of Aboriginal life, and we can find it in the daily papers.

Take recent reports in the Australian on social problems such as domestic violence in Aboriginal society. Nicolas Rothwell has proudly announced that a series of articles heralds ‘the demise of a generation’s worth of presuppositions and certainties’ in regard to the relations between indigenous and settler Australia. The project was initiated with a pair of articles in the Weekend Australian (14–15 April, 2001). One, by Paul Toohey, was about violence against Aboriginal women in the Northern Territory; the other, by Rothwell himself, outlined a new book by Roger Sandall, The Culture Cult: Designer Tribalism and Other Essays. Rothwell, in a manoeuvre perfected by those commentators who complain of being stifled by ‘political correctness’ (usually from within their column in some major daily paper), declares: ‘Once, almost nothing in this area could be easily discussed; suddenly almost everything seems to be on the table’. This new dawn and its sudden freedom of expression, sadly, revealed some quite old ideas. In regard to Toohey’s article, Marcia Langton’s critique is probably sufficient. Langton points to the limitations of narrowly racialised representations, indicating that there are a variety of ways of being an Aboriginal woman. She provides the example of herself, or Cathy Freeman, or any number of others. Without denying the existence of problems within communities, Langton points to the way Toohey, under the guise of an unflinching reportage, calls up images from as long ago as the frontier days: Aboriginal society is bound within victimhood and violence. But there does seem to be a new camouflage spread over this ageing position. Toohey writes: ‘Genuine culture is doing battle with a culture of convenience, whereby tribal law and alcohol have become ugly friends’. There is no parallel analysis of white communities with similar levels of alcohol problems or unemployment. Such an investigation might have established the degree to which these problems visit all communities of the excluded, regardless of colour. Instead, there is a jump to the unsubstantiated conclusion that attempts to preserve aspects of traditional life are to blame. Race becomes the only explanatory category, prior to gender or class or even history. This suggests a philosophical debt to, among others, Roger Sandall.

Sandall’s book appears to be an intellectual supply-line for assimilation’s rear-guard action. The main point is Sandall’s critique of what he has termed the ‘culture cult’. This is what he sees as the valorisation of indigenous cultural authenticity and autonomy at the cost of material infrastructural development. This debilitating delusion is apparently the prevailing legacy of Nugget Coombs and the cause of all social problems in Aboriginal communities. This blinkered glorification of tribal life is a convenient straw-target for Sandall — a product of his imagination, rather than Coombs’. But with it in place, Sandall is able to offer his own solution: policy makers and the general public should shake off this bad case of noble savage fixation and settle back into a pre-1970s assimilationism governed by the ‘law of historical advance’ or ‘creative destruction’.

The envisaged disappearance of Aboriginal people, or at least of their culture, is another story as old as Australia. It was wished into being with the legal fiction of terra nullius. Now a version of this strand of thinking is again being rehearsed in Sandall’s claims about the rigidity of Aboriginal culture and its likely surrender to ‘historical advance’. Happily, colonial dreams don’t always come true, even if they do continue to weigh on the brain of the nation.

There is a need to dismantle Sandall’s argument piece-by-piece, to resist this new claim on ‘the moral balance of power’. One key point can be addressed here: the false dichotomy between ‘the tribal world’ and ‘modernity’. Sandall maintains that there is a ‘Big Ditch’ between these two social categories — a gulf that the tradition-fetish obscures. He claims that this ‘romantic primitivism’ leaves Aboriginality stranded on the wrong side of the development gap. For Sandall, Aboriginal communities are fixed in a passive pre-modernity any way you look at it. They are either artificially preserved by being locked into ‘ethnographic zoos’ or they are swallowed by the modernising tide.What presents itself as a critique of the policy of self-determination is, in fact, a position that strips Aboriginal people of any individual agency, any cultural resources, any political will. Sandall’s vision allows no negotiation across the ‘ditch’ from the Aboriginal side, only volleys of ‘creative destruction’ launched from the citadel of a white modernity. Is this Australia today? What of the massed movement of Reconciliation? What of examples of co-operation in land usage within Native Title? If his critique of self-determination targets its perceived romanticism, Sandall’s alternative is no way out, it is in the thrall of his own illusory picture of the docile native.

This version of Australian modernity seems more intimately and necessarily linked to its pre-modern Other than Sandall is prepared, or perhaps able, to admit. It might well be time to debate what self-determination actually means. However, a way through to a nation that is truly beyond its colonial past will only be cleared when ‘the meaning of Aboriginal dispossession’ is no longer a terrain for the continued re-enactment of an old culture war.

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