It’s fitting that this book should start with the Uluru Statement from the Heart, written out in full. I wonder if in decades to come, this statement will be as well known to Australians as the Gettysburg Address or John of Gaunt’s ‘This Sceptred Isle’ speech. I’d like to think that it will be.
In his foreword, Reynolds notes that there was not universal Indigenous support for the statement, but that it was undoubtedly the most widely canvassed document addressed to the wider community by First Nations representatives, drawn from over 1000 participants, meeting at 12 locations around the country.
It was also a masterpiece of forensic advocacy – succinct, with scarcely a wasted word, utilitarian where necessary, elegant, even poetic in places. It is a document that will endure. But its lasting political impact is yet to be determined.p. 2
He points out that most of the political discussion so far has been about the Voice to Parliament, which reflects the strategic choice of the Referendum Council to go for Voice- Treaty – Truth. The response by the Australian government was quick and dismissive. (I wonder how Malcolm Turnbull feels about that now?) In this book, however, Reynolds concentrates on the starting premise of the Statement: the issue of sovereignty.
Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs… This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain unattached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.
How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years? With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.The Uluru Statement from the Heart, reprinted p. viii and ix
Now, I admit that sovereignty is not exactly the most gripping topic. It is mired in the 17th and 18th century international jurisprudence that was triggered by Spanish, Portuguese and British colonization in the Americas, Africa and Asia. Even the names are offputting: Grotius, von Pufendorf, Heineccius, de Vattel. This international law formed the basis of American court cases in the 1820s and ’30s when settlers were moving across the American continent. It’s a pretty specialized area, and doesn’t lend itself easily to the much-vaunted and Americanized ‘water cooler conversation’. But in essence, Reynolds argues here that Britain stuffed up colonization in Australia from the very start, acting in ways that were inconsistent with received international law at the time. Despite some hand-wringing from the Colonial Office as a result of humanitarian pressure-politics, the error was perpetuated and entrenched when the Australian colonies achieved self-government. It is was inconsistent then, and it is inconsistent now with the United Nations Declaration on the Rights of Indigenous People, adopted by the General Assembly in September 2007 and ratified by Australia in 2009. If blame has to be apportioned, it can be directed at the British government up until 1856 but from then on, it lies at Australia’s feet.
In the introduction Reynolds explains his own ignorance of the fraught relations between White Australians and the Aboriginal and Torres Strait Islander people until he went to teach at James Cook University in Townsville, where his students were living this history. From there, the book is divided into 2 parts.
Part 1 ‘The First Sovereign Nations’ explores different aspects of sovereignty. Chapter 1 ‘Taking Possession’ looks at Captain Cook’s ceremony on Possession Island off the NW coast of Cape York in August 1770 where he took possession of the country in His Majesty’s name, together with all the bays, harbours, rivers and islands situated on the coast. Right here we have a glitch: according to his secret instructions of 30 July 1768 he was instructed to ‘with the consent of the natives take possession of convenient situations’ or if he found it uninhabited, ‘take possession by setting up proper marks and inscriptions, as first discoverers and possessors’. He did not find it uninhabited, nor did he seek or gain consent. When the First Fleet landed in 1788, Arthur Phillip’s commissions on 12 October 1786 and 2 April 1787 made no mention of consent. Immediately on arrival, Phillip wrote back that there were far more Aboriginal people than Sir Joseph Banks and James Matra, who had advised the Colonial Office, had suggested. Nor was inland Australia uninhabited.
Chapter 2 ‘This Ancient Sovereignty’ explores the dawning realization that Aboriginal people lived in tribal groups, in specific districts with known boundaries, and that there were no ‘unpeopled’ lands. Each First Nation contested the encroachment on their traditional lands, and fought for their own country and nowhere else. By the time Ralph Darling was appointed as governor to NSW in 1825, his instructions were to treat Aboriginal nations no longer as British subjects but ‘as if they proceeded from subjects of any accredited State’.(p. 41) This stance was reversed in 1837 when they were again ‘considered as Subjects of the Queen’ (p. 72).
Chapter 3 ‘Whose Land?’ looks at the concept of terra nullius and the acceptance within Australia that, even if this was a mistaken characterization, it was an understandable and even appropriate decision on the part of the British government as a consequence of the failure of Aboriginal society to reach a designated level of ‘civilization’. However, this flew in the face of late 18th and early 19th century international law and the recognition of Native American property rights elsewhere in the Empire, especially in the American Supreme Court led by Chief Justice John Marshall between 1801 and 1835 and in New Zealand courts in 1847. By the mid 1830s, humanitarian reformers, previously involved in the slave trade, turned their attention to the fate of Indigenous peoples in British colonies, especially through James Stephen, the permanent under-secretary. Aboriginal protectors, governors (particularly George Arthur in Tasmania, to whom Reynolds gives credit) and eventually the Secretary of State argued that pastoral leases should not allow the driving off of the ‘Natives’ who “have every right to the protection of the law from such aggressions”. (p. 68) Once the colonies gained self-government, this stance was largely ignored.
Chapter 4 ‘Effective control?’ highlights the concern that the Australian government had over the ’empty’ north. The question of ‘effective control’ was important in international law and applied by the British government elsewhere in the world. Britain refused a Portuguese claim to territory in central Africa between Angola and Mozambique because there was no sign of Portuguese jurisdiction or authority and no real occupation. The same issue arose in Nicuargua, when claims of being a successor state to the Spanish Empire were rejected. If the standards of international law as they were understood at the time of Australian federation were applied, neither the states nor the federal government exercised effective control over large areas of Australia.
Ch. 5 ‘Australia and the Law of Nations’ returns to international law. There is, Reynolds claims “clearly more support in international law for the Uluru Statement than many Australians likely imagine.” (p. 90) He turns to the Australian cases of R. v Murrell in 1836 (and I’m surprised that Reynolds did not reference ‘my’ Justice John Walpole Willis here at all) and Cooper v Stuart (1889), both of which cast long legal shadows. He then jumps ahead to the Mabo case of 1992.
Ch. 6 ‘Treaty yeh, Treaty now’ looks at George Augustus Robinson’s ‘peace treaty in all but name’ that brought the Black Wars in Tasmania to an end. Reynolds is dismissive of John Batman’s attempt at a treaty in Port Phillip, pointing out that treaties can only be negotiated by the Crown. The British government, however, abandoned the policy of treaty-making in Australia, even though it ratified treaties in North America, thus condemning hundreds to violent deaths (p. 122). This did not mean that there were not informal ‘treaties’.
There seems to have been some common characteristics of successful negotiations, including understandings about access to water, and about hunting parties avoiding sheep and cattle. In exchange, animals were regularly slaughtered and given to the local band in return for a promise not to spear them out on the range…But an even more significant factor was the provision of young men, who quickly acquired the new skills that, when added to traditional bushcraft, made them valuable additions to any station’s workforce. Young women were provided to be trained in domestic work and to provide sexual comfort. It was often done with reluctance but with an understanding that if not mutually arranged the women would be taken by force. But a frequent underlying consideration was that with a negotiated settlement the station in question became a relatively secure haven away from ambient violence. The ‘white boss’ became a defender of ‘his’ blacks, even able at times to protect them from violent neighbours and marauding police patrols.p.116
But if we are to move beyond the informal, ad-hoc and contingent, as the Uluru Statement urges us to do, a treaty is needed. To a certain extent, some state governments are picking up the baton after Bob Hawke promised to negotiate a treaty at Barunga in the NT thirty years ago. But, despite state-level treaties, there will still need to be a treaty between the national government and First Nations.
Only then will the vexed problem of how to deal with what in the Statement from the Heart was called ‘this ancient sovereignty’ be resolvedp.125
Part II of the book is titled ‘Searching for Truth-Telling’ takes the reader into the politics within which the Uluru Statement from the Heart has been launched.
Chapter 7 ‘The Truth about 26 January’ deals with the almost-annual controversy that emerges every January, and points out that the date has been problematic for some time. It was clearly on display in 1938 (150th anniversary) when the Sydney re-enactments were accompanied by a Day of Mourning in Victoria and New South Wales. Claims that 1788 brought the rule of law are inconsistent with the subversion of existing international law represented by Phillip’s instructions and later actions.
Chapter 8 ‘Settlement, Conquest or something else?’ points out that although the term ‘settlement’ suggests coming to rest, or establishing tranquility, it is a term far removed from the “gritty, turbulent and often bloody business of colonisation.” (p. 143) Although within a generation, observers in NSW and Tasmania recognized that the distinct First Nations had their own forms of law and government, a conceptual dissonance developed between the way the law was understood on the frontiers, and the way it was dissseminated in books, newspapers, speeches and sermons. This chapter describes this conceptual dissonance, which has bubbled along quietly for the past 150 years.
Chapter 9 ‘The Cost of Conquest’ highlights the widespread knowledge of the violence of the frontier, contrasted against the ‘great forgetting’ described by WEH Stanner in the 1960s and 1970s. Here he returns to his own ignorance of the violence, and his attempts to enumerate the deaths on the frontier. His first attempt was in a Meanjin article in December 1972 (perhaps 10,000-12,000 as a guess), followed by The Other Side of the Frontier in 1981 where he hazarded 20,000 deaths for the country as a whole, a number which remained unchallenged until the ‘history wars’ between 1996-2002. Of course, in 2002 Keith Windschuttle’s The Fabrication of Aboriginal History whipped up a storm of controversy.
In Chapter 10 ‘Queensland was Different’ he points out that there were two distinct phases in the conquest of Australia. The first unfolded over the first 70 years, the second played out in the second half of the 19th century as colonists pushed into the top third of the continent north of the Tropic of Capricorn. Although Queensland had been settled in the first phase, the conquest of the second phase took place as an Australian project, not a British one. The squatters of this second phase took with them the attitudes shaped by violent conquest in NSW. They rejected the idea that Aboriginal people were British subjects, and that killing an Aboriginal person left one open to a charge of murder (p.179). The most egregious departure from the rule of law was the deployment of the Native Police force from NSW, with the purpose “to kill Aboriginal people in sufficient numbers to terrorize them into submission” (p. 184). Raymond Evans and Robert Orsted-Jensen have sampled the remnant records that ended up in other government documents and came up with a figure of 40,000 Aboriginal men women and children killed by the Native Police, and another 20,000 violent deaths at private hands. It is true that this is Aboriginal people killing other Aboriginal people, and Reynolds points out that the truth-telling called for in the Uluru Statement will need to deal with this as well (p. 198)
Governors and settlers had long characterized this conflict as ‘warfare’ and in Chapter 11 ‘Remembering the Dead’, Reynolds contrasts this silence about frontier violence, and unwillingness to recognize Aboriginal warriors as patriots (in the truest sense of the word) with Australia’s remembering and commemorating of Australian citizens who have died in overseas wars. This is exemplified by the expense lavished on the Australian War Memorial, and its steadfast refusal to include frontier wars under its aegis. He suggests that a formal ceremony of placing a tomb for the unknown warrior in the heart of the War Memorial next the the grave of the unknown soldier would have been an event of “immense national importance, a symbol of respect, inclusion and reconciliation”. (p.207) He acknowledges that there is little chance now that this will ever happen.
Chapter 12 ‘The Consequences of Truth-Telling’ looks at the removal and replacement of statues in South America, the southern states of the United States, the University of Cape Town in South Africa, Georgetown University and in Britain. He looks at the daubing of statues in Sydney’s Hyde Park in 2017, and a new statue of Lachlan Macquarie erected in 2013 which received similar attention. This chapter includes a potted summary of the rest of the book from p. 215 – 219 which seems rather oddly placed so late in the narrative. He points out that Australians have been ready to call the early governors – Phillip, Macquarie, Brisbane, Arthur and Stirling – to account, but less likely to pay attention to Sir John Forrest (WA), Sir John Downer (SA) and Sir Samuel Griffith (Qld), who as premiers and attorney-generals in the late 19th century and early 20th century oversaw the violent suppression of Indigenous resistance. They have suburbs and universities named after them; in some cases their families are still prominent in political and legal circles.
He continues this train of thought in Chapter 13 ‘Inescapable Iconoclasm’ where he particularly looks at Sir Samuel Griffith. Reynolds has read the foreword that appears in every volume of the well-regarded Griffith Review, praising Sir Samuel Griffith as ‘one of Australia’s early great achievers” and claiming that their publication emulates Griffith’s ‘sceptical eye and a pragmatically reforming heart and a commitment to public discussion”. (p. 226) What about Griffith University? The Australian Electoral Commission removed the names of Batman and McMillan as Victorian electorates on the basis of their involvement in frontier warfare – what then about the Brisbane seat of Griffith?
[Griffith] oversaw far more bloodshed than the two frontiersmen. But is it a case of it being much easier to take symbolic action against the foot soldiers than against the high command and knights of the realm?p.231
I think he’s right: it’s easy to attack ‘early’ perpetrators, especially when they are clothed in British imperialism, but less easy for more recent, ‘home-grown’ public figures, whose names are attached to institutions and intellectual endeavours that we value.
His final chapter ‘Conclusion: The Resurgent North’ returns to the Uluru Statement. It will always be associated, he suggests, with “its peremptory rejection by Prime Minister Malcolm Turnbull”, a rejection that was unexpected and “profoundly disrespectful”. (p. 237) The claim in the Statement that sovereignty had “never been ceded or extinguished, and co-exists with the sovereignty of the Crown” was more than a rhetorical flourish, and “it sits there unanswered in the inboxes of the nation’s leaders in both our parliaments and our courts.” (p.245)
This is a timely book, given the insistence of the Referendum Council in pushing the Uluru Statement forward, despite the wish by many politicians to sweep it away. In many ways, the book encapsulates many of the ideas that Reynolds has been putting forward over many years in his other publications, including The Other Side of the Frontier, Why Weren’t We Told? and This Whispering in our Hearts (which I see has been recently republished). Like his other books, it is quietly and doggedly argued. Reynolds is a historian, not a legal scholar, but by necessity this book has had to deal with a great deal of legal argument in order to underscore the illegality, in international law terms, of what we have long taken for granted. It is quietly but passionately argued, from a deep conviction. It raises important questions that, if we are to tell the truth, we will need to face eventually. The questions can be forced upon us by international bodies and treaties, or we can stand up ourselves with First Nations people who, through the Uluru Statement, have invited Australians “to walk with us in a movement of the Australian people for a better future”. I know which I’d prefer.
Sourced from: Yarra Plenty Regional Library
My rating: 8/10 (It feels a bit odd even giving it a rating).