I’m delighted to be here today at the Queensland South Native Title Services Workshop on Nation Building to speak on current and emerging native title issues.
The focus of my address this morning will be on what I see as the most significant emerging development in this space. And that is getting back to the traditional Aboriginal and Torres Strait Islander nations when we talk about rights to land and sea, custodianship of culture, protection or heritage and economic development.
It’s an area I’ve spoken about a number of times over the past 18 months. It’s something I feel passionately about and is the culmination of over 30 years of thinking and research.
Firstly I acknowledge the traditional owners and custodians of the land and sea of the country we are on today, the Quandamooka Peoples.
The country of the Quandamooka Peoples comprises North Stradbroke Island – known in their language as “Minjerribah” – as well as the land and seas of Central and Southern Moreton Bay and the coastal land and streams between the Brisbane to Logan Rivers. The Quandamooka Peoples are grouped into three clans - the Nughi, Nunukul and Gorenpul clans. The word “Quandamooka” is a Jandai word - from the language of the Gorenpul clan – and describes the area and islands of Moreton Bay.
The Quandamooka Peoples have lived in this area for tens of thousands of years. When you’re talking about tens of thousands of years you’re talking about time immemorial. Recently I was reading some of the history of the native peoples of North America. One of the documents I read was a resolution of the Cherokee People declared in 1838 when they were being forced off their lands. In that Resolution, the Cherokee Nation described their relationship with their lands as follows:
“…the title of the Cherokee people to their lands is the most ancient, pure, and absolute, known to man; its date is beyond the reach of human record; its validity confirmed and illustrated by possession and enjoyment, antecedent to all pretense of claim by any other portion of the human race”
The Oxford Dictionary defines a “nation” as “a large body of people united by common descent, history, culture, or language, inhabiting a particular state or territory”. When the British first came to Australia in 1788 there were hundreds of nations here – hundreds of groups of people united by common descent, history, culture or language and inhabiting a particular country. Many people also spoke the languages or dialects of several different neighbouring groups. These groups of people had their own kinship systems, laws and systems of governance, culture and arts. They knew what was their country and what was the country of another group.
To use words of the Cherokee Nation, these groups existed in Australia from beyond the reach of human record, before any claim by any other part of the human race. These groups were the first nations of this continent.
Last week I attended the launch of the 2014 Social Justice and Native Title Report by Mick Gooda, the Aboriginal & Torres Strait Islander Social Justice Commissioner. I was very pleased to hear him call for the recognition of the traditional Aboriginal and Torres Strait Islander nations. The Report calls for nation building as a key way of enhancing the capacities of Indigenous peoples for self-governance and self-determined economic development. It also details research showing that real change is achieved in a more sustainable way if traditional nations have power and control over decision making and resources.
The Report observes:
“In the hearts and minds of Aboriginal and Torres Strait Islander peoples, our ‘nationhood’ has always survived and continues to be acknowledged between us.
Some Nations remain strong, with traditional practice still being undertaken today.
Other Nations have adapted traditional ways to meet modern standards.
Sadly, some other Nations have been fractured or devastated.”
It notes that the concept of nationhood manifests itself in a number of ways - including through self-identification, recognition by legislation and recognition by the judiciary in native title cases. It concludes: “By whichever of these means it is articulated, the concept of Aboriginal and Torres Strait Islander nationhood is alive and growing stronger.”
In preparing the Report the Commission spoke extensively with Indigenous people all over Australia. And what they found was that Indigenous Australians overwhelmingly identify with their traditional nations over identifying as “Aboriginal” or “Indigenous”.
This has certainly been my experience and that of family members and Indigenous friends. My nation is the Bundjalung nation, the nation of my father and the country on which I was born. I have described being Bundjalung as my essence, my flesh and blood.
I am also descended from the Gumbaynggirr, Yuin & Irish nations through my mother and I identify with those nations. I am also a proud Australian.
Nations are not the same as sovereign countries. The Aboriginal & Torres Strait Islander nations are examples of “stateless nations”. All over the world and throughout history, sovereign borders have changed time and time again based on power struggles between rulers, war, conquest, treaties and even land sales between governments. But nations –people united by common descent, history, culture, or language, inhabiting a particular state or territory – can exist independently of these broader power struggles.
Nations can even be geographically dispersed. Jewish people are united by common descent, history, culture, language and homelands. Judaism is not just a religion; there are many secular Jews. Traditionally, Judaism is defined primarily by matrilineal descent: a person is Jewish if born to a Jewish mother. Israel's law of return allows any Jewish person to migrate there. Jewish people can - and do - regard themselves as a nation of people, despite being dispossessed of land and sovereignty and dispersed over thousands of years. They are a nation in diaspora.
There are dozens of stateless nations in the world. Some campaign for independence whether through conflict - like the Basques and the Irish have done – or through political means - like the Scots who voted on succession this year.
However, most stateless nations are content to live within other sovereign borders as citizens of those countries as well as celebrate their traditional nation's culture, heritage, language and identity. Nations can co-exist with - and within - each other without conflict.
In the end, the Scots chose to remain part of the United Kingdom. But they are still a nation. During the succession campaign David Cameron observed that the independence vote was not about whether Scotland is a nation; that Scotland is already a nation and will continue to be so whether it’s independent or not.
Aboriginal and Torres Strait Islander nations can and do continue to exist within Australia, and Indigenous peoples, too, should be able to celebrate their traditional nation's culture, heritage, language and identity. As well as Australia’s.
The core foundations of nationhood are country, language and descent. Nationhood is not founded in race. This is a very important distinction. Given the year we have just had - with divisive and often confused debates about s18C of the Racial Discrimination Act and the race power in the Constitution, I feel it is important to spell this out.
The idea that humans can be scientifically classified into biologically distinct races, based on skin colour, facial features and so on, is a legacy of previous centuries. Today race theory is understood as nothing more than a discredited pseudo-science.
I saw a telling illustration of the difference between race and nationhood during the Scottish independence vote. Turning on the news one night, I saw a report on the Scottish referendum which opened with a group of black women singing for independence. They're proud Scots and they’re black. Scotland is not a race. It's a nation.
Categorising Aboriginal and Torres Strait Islander peoples as a “race” made sense to Europeans in the 1700s but it's not how we look at ourselves. I’m not part of an “Aboriginal race” or a “black race”. I’m Bundjalung. The Mabo decision has re-focussed the land rights discussion back on to the traditional nations. Native title is centred around nationhood, not race.
People in Australia have been talking about a treaty between Australia and Indigenous people for some decades now. But when you get beyond the broad concept, when you move past the “thought bubble”, it doesn’t make sense to have treaty between Australia and Aboriginal & Torres Strait Islander people as one amorphous group. There are no individuals who speak for Indigenous people as a whole. That thinking is race-based thinking.
A formal agreement or declaration between Australia and its first peoples would need to be between Australia and each Aboriginal and Torres Strait Islander tribal group, nation to nation. And each traditional nation would have the right to decide whether to sign such a document.
I’ve proposed that the Australian Government formally recognise each Indigenous nation and offer to enter into an agreement and declaration with them that recognises them as a nation and as the traditional owners of a defined area of land and sea. In doing so, that nation’s native title claim should be recognised and concluded. This means that governments should fast-track settlement of native title claims by agreements with each of the traditional owner groups.
Native title claims involve a costly and lengthy legal process that typically take up to 10 or more years involving lawyers, historians and anthropologists. The current process is not good for Indigenous Australians and isn’t good for economic development. It takes too long and it doesn’t deliver certainty.
The experience of the Quandamooka Peoples’ native title claim is a case in point. The Quandamooka Peoples won their native title in 2011, obtaining exclusive rights to over 2000 hectares of land on North Stradbroke Island and non-exclusive rights to over 50,000 hectares of land across the broader area including parts of Moreton Bay. The case took 16 years to conclude. And the Quandamooka Peoples were still going through court processes just this year debating the interaction between the native title decision and the operation of mining licences issued and extended by the Queensland government.
I want governments to dispense with the requirement for traditional nations to establish a continuous connection to land and to simply recognise the native title rights of the groups in the areas we know they occupied before British colonisation. I don’t like the requirement of continuous connection to the land for a number of reasons.
Firstly there is a gross injustice in denying recognition of native title to people were forcibly removed or driven from their lands.
But also, the requirement of a continuous connection with the land discourages Indigenous Australians from moving away from their traditional lands to obtain work for fear this will prejudice their native title rights.
If Indigenous Australians are going to fully participate in the real economy they need to feel free to move about the country – whether permanently or temporarily – without fear of losing their land. Like everyone else in Australia.
The tribes and language groups of Aboriginal and Torres Strait Islander people have been extensively studied and documented. By and large it’s known which groups occupied which areas before 1788, their social systems, their languages and clan groupings. That should be all that’s required to recognise native title.
Individuals would then be required to establish membership of that group to participate in its native title settlement and governance system.
The framework I have proposed is a significant step and one that I believe makes sense. We need a framework that reflect the way we First Australians look at ourselves, not the way others have chosen to look at us.
And we need a framework based on the fundamental principle that the only people who can speak for country are the traditional owners and custodians of that country.
Quandamooka Peoples speak for Quandamooka country. Bundjalung people speak for Bundjalung country.
In Australia today there are multiple systems of recognition of rights to land, culture, heritage and other traditional rights across Australia and in different states and territories.
And we also have statutory bodies who speak for country who are not aligned to the traditional nations.
I have spoken extensively about the confusion this creates as to who actually represents the traditional owners.
Organisations who want to develop or do business on traditional lands can go “forum shopping” or attempt to bypass representative bodies altogether by putting ads in the paper calling for community members to attend meetings.
Interest groups can find individuals who oppose a development and can claim they represent a particular group. The outcome is that commercial negotiations become protracted or disintegrate with arguments as to who speaks for the nation and who speaks for others. Usually it’s Indigenous people who lose out. Negotiations may become so protracted that the development goes ahead without traditional owners realising any benefits. Or benefits that have been agreed are lost if a competing claim blocks the development.
There will always be differing opinions within any group of people. You will never achieve 100% agreement amongst traditional owners in any community. Therefore you need a clear governance structure that has both legitimacy within a traditional nation and the authority to make final decisions for that nation which provide certainty.
Governments in Australia make decisions every day that some Australian citizens do not agree with.
But Australia has established governance systems based on laws and precedents that all Australians are subject to. This gives those government decisions legitimacy and therefore certainty.
What I have proposed is that traditional nations be formally recognised with clear rules for membership and governance and that the traditional nation be the single governance entity and authority for matters particular to that nation, including land rights, native title and cultural and heritage rights.
Only people from a nation should speak for that nation and be involved in decisions uniquely relevant to that nation, such as the use of traditional lands, native title rights, community assets, culture, heritage and language.
And only members of a nation should be involved in its governance.
Government policies, regulations and legislation in all jurisdictions needs to reflect this.
For example, in my state of New South Wales the Land Councils established under the Land Rights Act do not reflect the traditional nations. There are around twice as many Land Councils as there are traditional nations. And you do not need to be a member of a nation the Local Land Council services to be a member of that Land Council.
This needs to change.
And I will soon be writing to the NSW Premier requesting that the NSW Land Rights Act be amended so that the Land Councils reflect the traditional nations and that only traditional owners can be members of the Land Council for their land, whether they live on country or not.
This doesn’t mean Land Councils can’t hire staff who aren’t traditional owners. The Land Councils can hire whoever they want. But membership itself should be open only to traditional owners, the members of the traditional nation.
Of course, with the framework I have outlined it becomes important how you identify who are the members of a traditional nation.
This is important, not only in the context of rights to land, sea, native title, culture and heritage, but also given the significant policy changes and advancement strategies for Indigenous Australians that have been proposed in the Forrest Review.
For example, a key focus area of the Forrest Report is Aboriginal and Torres Strait Islander (ATSI) business. The Report proposes a definition of an ATSI business and recommends setting targets for government, community and the private sector for contracts with ATSI businesses.
Identification is the key to the Forrest Review recommendations. If the identification method is flawed then the policy implementation will also be flawed.
The Forrest Review proposes concessions, opportunities and benefits for ATSI businesses to help close the gap. These will be vulnerable to abuse if there are not clear and objective means of identifying who is an Aboriginal or Torres Strait Islander person.
There have been many definitions of what is an Aboriginal or Torres Strait Islander person by governments since 1788.
Since the 1980s, the definition most commonly referred to is the three-part definition which defines an Aboriginal or Torres Strait Islander person as:
1. a person of Aboriginal or Torres Strait Islander descent
2. who identifies as an Aboriginal or Torres Strait Islander and
3. is accepted as such by the community in which they live.
This was a reasonable definition for the time. However, it has had its problems.
The third part of the definition, being accepted by the community, is subjective. It can - and does in fact - lead to manipulation and is vulnerable to community politics, grudges and personalities.
The other problem is that it links back to the community in which person lives - not the traditional nation that the person is a member of. For example, I live in Sydney but I am from the Bundjalung nation of Northern NSW. If the Sydney Aboriginal community or the Metropolitan Local Aboriginal Land Council, for example, refused to accept me as Aboriginal then I would not meet the test. Yet whether they accept me is irrelevant to whether I an Aboriginal or not and it's certainly not up to the Sydney Aboriginal community to decide if I am Bundjalung.
You can imagine – and many of us are well aware - how this type of scenario plays out in local land council politics when personalities, politics and rivalries are involved.
Identity – whether for the purposes of ATSI business incentives or for membership of a traditional nation – needs to be determined by a means that is simple, transparent, able to be confirmed through objective data, arms-length from government and statutory bodies (including Land Councils) and as non-controversial as possible.
It’s time to move away from the requirement of community acceptance. This too is “race-based” thinking. We need to get back to the traditional nations. Nationhood is simple, transparent and objective because it is based on descent.
This approach has precedent. For example, Article 66 of the Constitution of Turkey states that "The child of a Turkish father or a Turkish mother is a Turk." It also has precedent for stateless nations. Under Jewish law, a person is Jewish if they have a Jewish mother. There may be other ways to become Jewish or Turkish but descent provides that identity by way of right.
And let’s go back to the Cherokee Nation which I spoke about at the beginning of this speech. The Cherokee Nation also has membership criteria based on descent. For the Cherokee, identification is complicated by their history and the fact that the Cherokee were forcibly removed from their homelands to new territory in the 1800s in an episode of history known as the “Trail of Tears”. The lands they have today are not their traditional lands.
Between 1899 and 1906 a census roll was taken of people living the new Indian Territory. This was known as the Dawes Final Roll. To be placed on the Dawes Roll at the time people had to meet certain requirements including being listed on previous Cherokee rolls and proven residency in the Cherokee Nation.
To obtain Cherokee Nation citizenship today, a person must have one direct Cherokee ancestor listed on the Dawes Final Rolls.
The Cherokee Nation has adopted this approach as the most reliable way to establish who are members of the Cherokee Nation, given the disrupted history of the Cherokee people and the severing of their connection to their homeland. But, ultimately, this approach reflects the fact that the Cherokee are a nation, not a race.
Blood quantum and appearance have no bearing on Cherokee membership. Nor does community acceptance or residency.
In Australia there has been an enormous amount of research of Indigenous genealogy, history and heritage, particularly in the last 20 years following the recognition of native title and the need for claimants to demonstrate descent from a particular language group. Even children of the Stolen Generations are able to trace their descent through this method. When I was the CEO of NTSCorp we regularly assisted people to trace and document their ancestry.
Descent is the most fair and rigorous way of identifying who are members of the first nations of this continent and therefore who are Aboriginal and Torres Strait Islander people. If a person can't trace their ancestry to a first nation then there is no basis for them to regard themselves as a member of a traditional nation or as an Aboriginal or Torres Strait Islander person.
The continent on which we live has a rich and ancient history. It hosts one of the youngest nations of the world – Australia - and also the oldest nations of the world – the first nations of Australia. All Australian people can be proud of this and embrace this shared and unique history.
Nationhood is about the continuation and evolution of culture through a group of people. And there's no other country where the traditional nations of this continent will continue and evolve.
Recognising the traditional Aboriginal & Torres Strait Islander nations is not just about nation building for Indigenous Australians. It’s also about nation building for Australia as a whole.