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Truth for change - Reckoning with our past and transforming our nation

Aboriginal and Torres Strait Islander Social Justice

This was the keynote address at the Australian Institute of Aboriginal and Torres Strait Islander Studies conference, 2021.

Good morning everyone. I acknowledge the Kaurna peoples whose lands we gather on for this conference—I pay my respects to your elders, past, present and emerging. I also acknowledge all our peoples who have come from countries—First Nations—from across this vast continent, carrying many diverse and interconnected languages, cultural practices and laws.  

I would also like to take the opportunity to pay tribute to the memory of Mr Eddie Koiki Mabo whose resting place I had the great privilege of visiting in 2019 and his co claimants Rice and Passi.  I wish to especially acknowledge the courage and the strength of their families in the moments of great personal struggle.

I’m very happy and privileged to be speaking at the opening of day two. Thank you to AIATSIS and the co-convenors of this year’s conference, the South Australian Native Title Services and Kaurna Yerta Aboriginal Corporation for bringing us all together.

Of course, this time last year we were unable to gather at this summit. At the onset of COVID, events like these were cancelled and the world thrown into instability. We all feared for what the future could bring.

Given what we felt then, it is quite incredible that we are reconvening now, to consider, with enthusiasm how to forge our way ahead. In saying that my thoughts are with our friends and families in Victoria—the presence of Covid is always a reality and we must find new ways to be and stay safe in this ever-changing world.

There are moments in history where the sudden confluence of past and present events opens to a future of real possibility. I believe that moment is now.

Over the past 18 months the global upheaval of the COVID-19 pandemic has brought into plain sight truths that for so long have been denied by those in power and authority—the truth of entrenched institutional discrimination, of marginalisation and the rampant growth of inequalities.

The now worldwide Black Lives Matter movement has shown us these truths in sharp relief, exposing to the world the inadequacies of our current systems, built upon a long and living history of racial injustices. In Australia, mass incarceration of our peoples, deaths in custody, the destruction of Juukan Gorge, and the bush fires that have torn through sacred land, are the painful consequences of systems that have failed, and too often refused, to incorporate our rights and lives into the fabric of this nation.

These truths laid bare, witnessed by humanity, cannot be unseen. It is in these moments of history when people everywhere begin to question our current structures and ways of operating, that we simply have no choice but to move forward in a different way. The option to return to what was before is no longer acceptable.

So, the theme of this summit, and of reconciliation week to think beyond a word, is a timely reminder to take stock and ask ourselves: what do we want the future to be and how are we going to get there?

I am a fervent believer that to move forward with conviction we need to know where we have come from. We need to know how the footprints laid before us have brought us to this present, with all the power and potential of a nation reckoning with itself, its past and future identity—a reckoning that has been a long time coming.

Truth of the past can be hard to turn toward, but it can also give us clarity that all our fights—many hard won—have been worth it. That when we turn back without the haze of anger and disappointment, there are pillars in place, that we have laid that can form the structures we need today. 

For all of us who know and are engaged in the native title system, the technical details force us into a singular and restrictive focus. In attempting to make it work within its current requirements we forget the purpose and intention of native title and what it could still achieve.

The Mabo Decision overthrew the lie of terra nullius. It gave us a foundational truth that we had needed to move forward, ever since the first acts of our dispossession in 1788. Ever since colonisation, the truth—that we have occupied these lands and waters since a time immemorial—was urgently needed to halt the perpetuation of grave injustices. We needed it, we thought, to set us on a path to right the wrongs of history through proper compensation, repatriation and reconnection, and the incorporation of Aboriginal and Torres Strait Islander rights and self-determination into the fabric of the Australian nation.

Mabo came at a moment in time when a fundamental reset in our relationship with Australian governments—a time of agreement-making—seemed imminent. In this way, native title was imagined not as an isolated set of rights regarding the use of our lands and waters, but as a key pillar in a broader settlement package.

It had been only five years earlier at Barunga that Prime Minister Hawke had made a political commitment to a compact. Through an intense political debate, a compromise emerged with the passing of the Reconciliation Act, setting out a process to work through what settlement would be, and how a real, meaningful reconciled outcome could be achieved.

And when Keating delivered his historic Redfern speech, post-Mabo and the handing down of the Royal Commission into Aboriginal deaths in custody, his words seemed to cement this inevitable future. His government of the day was committing to practical building blocks that would deliver justice and truly compensate the social, cultural, economic and spiritual destruction and generational disadvantage—the consequences of dispossession.  

He said and, I quote, "Mabo is an historic decision - we can make it an historic turning point, the basis of a new relationship between indigenous and non-Aboriginal Australians … there is nothing to fear or to lose in the recognition of historical truth, or the extension of social justice, or the deepening of Australian social democracy to include indigenous Australians. There is everything to gain."

He pointed to the potential that was opening-up through key arrangements being put in place – the formation of the Aboriginal and Torres Strait Islander Commission, the Council of Reconciliation and its mandate. Later he sought and supported ATSIC’s advice to consider the ‘Social Justice Package’ to complement native title and the land fund, as part of a comprehensive suite of measures.

Native title should never have existed alone, it was always meant to be part of this big agenda of restitution and reconciliation that could lead to a real form of structural settlement with the Australian nation-state—one that included us all and absolutely our peoples whose native title rights were found to have been extinguished by the atrocities of colonisation and ongoing discrimination.

And so, in 2000 when the documents of reconciliation were presented, offering us a clear roadmap forward—notwithstanding the Government’s ‘10-Point Plan’ and its undermining of our native title rights from their highpoint in Wik—it was with hope for the future that we met the dawn of a new millennium.

I honestly believe that the Australian public was ready to embrace the truth—momentum was building. When we marched in 2001 in our tens of thousands, I felt a collective unity between our peoples and non-indigenous Australians. We were calling into being, step by step, a future we could all be proud of.

But the gates to the road ahead did not open as they should have at centenary.

Our call for Australia to reconcile was derailed into a so called ‘practical’ agenda. A bold new lie had taken hold and somehow the onus of responsibility was flipped and came to sit with Aboriginal and Torres Strait Islander peoples. We were expected to find a way to fit, without protest, into current structures, as if our grievances were holding back progression.

In the years that followed, the Social Justice Package would never eventuate, ATSIC was disestablished, and the High Court’s decisions in Ward and Wilson v Anderson further relegated our rights to our lands to the bottom of the heap.

I cannot see any other way to reflect on this time than our political system was not ready, not brave enough to state the truth about the structural inequalities perpetuated for generations. It was political fear that blocked the road ahead—a sudden realisation of the structural implications of what the framework of reconciliation demanded: that governments had to do the hard work, not us—that they had to alter structures to guarantee our equal place in decision-making, to deliver just and full compensation, and that by doing this it would be impossible to proceed as we had gone before.

Still, despite the many roadblocks that did eventuate, and a native title system that is wholly inadequate, I cannot applaud our people enough and all our supporters— the so called ‘claimants’, ‘informants’, ‘applicants’, ‘lawyers’ and ‘anthropologists’ and ‘advocates’. Against the odds and arduous court battles we pursued our rights and interests. I am sure many of you saw the recent figures and stark visuals published recently in the Guardian. It shows that native title is now recognised over 40% of the country and, collectively, we now have Indigenous tenure—that is, exclusive possession native title or freehold title—over 26% of Australia’s landmass.

We have proven conclusively our foundational place–our tens of thousands of years of existence, occupation, our undeniable connection.

Through years of litigation and protracted legal processes—we have heralded the post-determination era. However, there remains much to be determined.

We remain constrained by Western legal frameworks and notions of governance that do not reflect who we are, incorporate our worldviews, nor accommodate our diverse cultures and our own systems of governance. Where we can choose to use cultural governance and decision-making to manage our PBCs, and through them our land, it is given as an option in a piece of legislation, written in someone else’s hand, under someone else’s law, captured within the legal mechanisms that drove colonisation. As many in this room would know well, determining our ‘decision-making processes’ within the native title system can be a complicated and fraught exercise and can often bear little resemblance to our relevant traditional decision-making processes.

As Indigenous Peoples in Australia we manoeuvre between two worlds of governance and decision-making. But there is no framework in place to assist us in doing this. The truth is in the moments when we do reclaim our rights to land, language and culture, we are constantly having to negotiate within the conditions and expectations of Western society. Being subsumed into Western legal structures like this, without any real structural change, is driving the perpetuation of injustices, inequalities and intergenerational trauma.

I am not just saying this based on conjecture. Report after report has documented this truth of the inability of the Australian nation to come to terms with the past and its failure to reform systems in light of its history. Instead, the same forms of structural inequalities are reproduced, further marginalising and excluding our peoples causing more loss, hurt and conflict. It is a vicious cycle, with its origins in the institutional arrangements laid down at colonisation. 

I heard the evidence of this myself directly from First Nations women and girls right across this nation.

As many of you will know, in December last year I released the landmark Wiyi Yani U Thangani, Women’s Voices Report. It was the first time since 1986 that Aboriginal and Torres Strait Islander women and girls have been heard as a collective—and their rights, solutions and aspirations were elevated to the Australian Parliament. The process of engagement to produce this report was extremely comprehensive—it was driven by women and girls on their own terms, without an imposed agenda.  

As a result, Wiyi Yani U Thangani is a whole of life report that looks at every aspect of women and girls’ existences. Access to our traditional lands, the importance of living and belonging on our country to manage our lands, to gain economic benefit and continue our cultural practices and traditions has a dedicated chapter. But importantly, common themes about the issues of western structures that reflect what we know to be inadequate about the native title system, appear across every chapter from health to justice, housing, education and economic opportunities.

Women and girls consistently spoke of the impact of imposed structures, about being rendered invisible by processes that act as if they can be divided into parts. They have spoken about being problematised and seen in the deficit, and they have shared how siloed official responses not only fail to meet their needs but, in seeking to bend our people to the prevailing systems, have caused ongoing harm and trauma.

It is an important reminder that we cannot reduce native title to a singular focus on land. Native title is a fundamental part of social justice—it must sit within a whole of systems reform. That was the purpose of ensuring it happened alongside the delivery of the social justice package.

Native title does need fundamental reform so it can be interconnected into the delivery of real social and economic justice for our peoples. Because Wiyi Yani U Thangani did not focus exclusively on native title but presented important insights from our women that needed further exploration, I decided to do a dedicated report on our women’s experiences of the native title system, which is currently underway. This report, due to be released at the end of 2021, will provide meaningful perspectives from our women who have a lived experience of the native title system, the issues they have and continue to confront and their ideas for the way ahead.

In the discussions we’ve had already common themes are emerging. Women have told us about the complexity of the system and the confusion it creates, about the burden of unpaid work involved, and about the lack of funding for the operation and capacity-building of PBCs. They have spoken about the absence of supports with many feeling they don’t have anywhere to go to get independent advice, especially if their representative body also represents groups with whom they are in disagreement, and they have said that available supports are too often under-resourced, difficult to navigate, narrow in scope or culturally unsafe.

Some women have also reported that the system feels male dominated with gender balance on boards doing little to address deeper power dynamics. And perhaps saddest of all women have spoken about the neglect and destruction of women’s sacred sites brought about because of a lack of culturally safe structures set up to inform and hear from women knowledge-holders and to ensure that they are included and supported to participate in decision-making.

There is so much that is needed to overhaul the native title system and rectify these issues. Many a former social justice commissioner, and now including me—is delivering a very clear message that the system must change.

But in what many of us are now calling the post-determination era—and I do acknowledge that there are ongoing claim processes—I have hope that we are entering a period of substantial change.

A case study that will be presented in my up-and-coming native title report will focus on a process of cultural mapping and family reconnection that my Bunuba people are currently embarking on. Through an ILUA process with the state government to form and come to agreement on the conditions of a joint management approach of national parks on Bunuba country, we have negotiated further funding and support for our rangers, excision of land for family outstations and areas where we can develop our own culture and country-based economies, the establishment of a culture and conservation institute of excellence, and I believe most significantly funding for cultural mapping for all our moiety groups.

We are running several camps each one over the course of a week to support our peoples to re-own genealogical information gathered through native title, and rediscover, with one another, who is connected to what parts of country, who holds responsibility for what and how we can bring about a resurgence in our cultural responsibilities and roles, to guarantee that we all feel that we belong and can transfer knowledge to our children for generations to come. I was at one of these camps last week. We had stolen generation families there, who told me they finally felt a sense of peace and that this process was the beginning of their healing journey to mend generations of exclusion and conflict, which in many ways they felt native title had built upon.

Similarly, to this camp, women who we have been interviewed in other parts of Australia have talked about the need to fulfil their own cultural and ceremonial knowledge and responsibilities and to ensure that the needs of their families and communities who draw their identity, wellness and prosperity from their relationship with the land, are met. In these ways, native title is of critical significance to women and their role in healing and growing healthy and flourishing communities.

To return to our discussion of the bigger picture—to business left unfinished—we may not have been ready 20 years ago for what our peoples were proposing, but I know Australia is ready now.

We stand at a pivotal moment in history—a point of reckoning when the gravity of truth is lifting the immense weight of an entrenched and institutionalised misrepresentation of our past and our present, irrevocably shifting the balance in how we understand our nation, ourselves, and our relationships with one another.

The moral weight of history, of the past, is catching up, and—like the key developments that emerged within the decade of Reconciliation—a new set of guideposts are lighting the way ahead for political settlement:

  • the Uluru statement has reawakened everyone to the need for a fundamental re-set in the relationship between First Nations peoples and all Australian governments;
  • through an historic Partnership Agreement between the Coalition of Peaks and National Cabinet, Aboriginal and Torres Strait Islander people, through their peak body representatives, will share decision making with Australian governments on Closing the Gap;
  • agreement-making and treaty processes are taking hold across every state and territory; 
  • most recently, in May this year, the Yoo-rrook Justice Commission was formally established in Victoria. It is the first truth-telling body established in Australia and to me, it signifies a momentum that can’t be stopped; and
  • we have the Griffith Native Title case in Timber Creek – the first time the High Court assessed compensation for the extinguishment of native title rights and interests under the Native Title Act. Timber Creek is a development that many have called the most important native title decision since Mabo. At long last, recognition that the cultural loss and spiritual effects of dispossession are significant and valuable, in monetary terms.

In parallel to the gathering moral imperative for political settlement, in the post-Griffith reality a financial imperative is also taking shape as state and territory governments begin to tally the potential extent of their liability – and that’s just the costs associated with post-1975 extinguishing acts. It seems as though the moral and financial weights are converging, and when they do, the impetus for change will reach a critical point, driving a renewed focus on strategic partnerships between Australian governments and First Nations people across the continent.

It is my hope that in this emerging era, meaningful reform of the native title system will be put back on the agenda; and that, among other reforms, it will become the new norm in the institutional fabric of settlement for native title determinations (and existing holdings) to be accompanied by the means for restorative processes: processes such as the cultural mapping that I have spoken to as critical to truth-telling and healing.

Let me finish by saying, I am under no illusion of how hard the path ahead will be—What we must reconcile is immense. In my own life I have seen how the history of this nation has ripped families apart, destroyed lives, and trapped women, children and families in endless cycles of poverty. But I have, perhaps, seen something even more powerful—when Indigenous and non-indigenous family members come together to heal from pain, to accept truth, believing that unity, love and care is greater than the energy generated by the anger of division and difference. It is those moments that I have been a part of—when we cry, hurt, laugh and share—which can only be described as the spirit of reconciliation.

It is time that we reflect this humanity, all of who we are, in the structures and potential of the Australian nation. As Keating said in the Redfern speech, we cannot imagine that we fail in the task ahead. We did not get to where we needed then, but let us grasp this current moment and be confident that we will succeed in the years ahead.

Thank you.

Ms June Oscar AO, Aboriginal and Torres Strait Islander Social Justice Commissioner