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Talks : Ozanam Lecture
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The Church's Voice and State Powers for Justice and Peace: Seeking
Decency, Harmony and Equality for All
Frank Brennan SJ AO
2004 Ozanam Lecture
St Francis Church
Melbourne
20 May 2004
On Saturday many of you will gather in this church to mark the
150th anniversary of the first meeting of Vincent de
Paul Society to take place in this country, and in the very place
where that first meeting took place. As we gather tonight, let's
honour the people whose traditional land this is. Let's recall
all who have worshipped here before the Blessed Sacrament in the
heart of this city for so long. And let's praise all those who
have gathered here and throughout this land in their small Vincent
de Paul Conferences, faithfully week in and week out, on the coldest
winter nights and on the hottest of outback days.
You can imagine my delight and honour, being a lawyer as well as
a Jesuit priest, in being asked to speak on this occasion. Afterall,
Frederic Ozanam was one of the great, compassionate Catholic lawyers
who dedicated his life to legal scholarship and application together
with good works for his needy fellowman observing, "We see
God with the eyes of faith alone; and our faith is weak. But the
poor we can see with the eyes of flesh. We can put our fingers
and our hands into their wounds." And St Vincent de Paul was
a reforming and inspiring priest whose piety (according to the Catholic
Encyclopedia was "simple, nonmystical, Christocentric and oriented
toward action".
I will not be with you on Saturday for the best of family reasons.
I will be celebrating my father’s 76th birthday in Sydney.
I mention this because even during his many years on the High Court
Bench in Canberra, he retained his membership and involvement in
his local Vincent de Paul chapter. I recall visiting my parents
at home in Canberra just before Christmas one year. Dad returned
from doing his rounds, delivering Christmas hampers to needy facilities.
He came in the front door, still laughing. He had been given a
wrong address. There he was at the door with a box of groceries,
and a very dashingly dressed woman came to the door asking, “What
are you doing, darling? Selling mushrooms?” I told him that he
should have answered, “No I am a High Court judge just completing
his Vincent de Paul round!” It is not only the 150th
anniversary of the establishment of the Vincent de Paul Society
in Australia. We are still within the year marking the 150th
anniversary of the death of Frederic Ozanam. Tonight we well recall
his words:
God gave me the grace to be born in the Faith. Later the confusion
of an unbelieving world surrounded me. I knew all the horror of
the doubts that torment the soul. It was then that the instructions
of a priest and philosopher (Abbé Noirot) saved me. I believed
thenceforth with an assured faith, and touched by so rare a goodness.
I promised God to devote my life to the services of the truth
which had given me peace.
Ozanam would be pleased that on this 150th anniversary
in Australia, I have been asked to address the question of Aboriginal
rights and aspirations in contemporary Australia, pondering the
role of church and state in mitigating the effects of past dispossession
and disadvantage.
I have
just returned from Western Australia where I had cause to reflect
on "The Church's Voice and State Powers for Justice and Peace"
in the matter of Aboriginal rights and aspirations. At times, we
despair and think that little has changed or that we have gone backwards.
But in the far southwest of the continent at Albany I found hope.
There at the place where our ANZACS finally departed these shores
for Gallipoli, and in the heart of Wilson Tuckey's electorate, I
met a community who have extended their welcome to Hazara asylum
seekers from Afghanistan. At the public meeting, an Aboriginal
elder extended the welcome to country to them and all visitors.
She spoke in language and was then presented with a token of appreciation
by the leader of the Afghan community. None of this is now judged
to be out of place even in the presence of the shire councillors
and the state member of parliament, regardless of what political
party might claim their allegiance. All it needs is a big heart
and some imagination. Though of course some old prejudices die
hard. I was struck by the huge statue of Attaturk at the entrance
to the Albany harbour with the inscribed words he uttered to comfort
the parents of those ANZACS who now lay buried in his land. Just
up the hill is another first world monument and etched in the marble
is the reminder to the locals that this monument could have ended
up in Canberra but for the labours of the local Apex Club in building
the road up the hill.
On Tuesday, I was in Roebourne the town etched on the national
consciousness by the death of John Pat which led to the royal commission
into Aboriginal deaths in custody. Half an hour's drive away is
the thriving town of Karratha, home to the miners and families from
the Pilbara. Just up the road from there is the vast natural gas
plant on the Burrup Peninsula producing LNG from the North West
Shelf, turning out 3% of our foreign earnings each year. On a Saturday
night shift, that entire plant can be manned by only 11 persons.
Meanwhile in Roebourne there are the usual endemic problems with
Aboriginal unemployment and the despair and frustration of those
providing education and training for persons with little job prospects.
But now all major companies are on board, co-operating with TAFE
and looking for answers in co-operation with the local Aboriginal
community.
Just yesterday, I was with the monks at New Norcia. The previous
Abbott Bernard has recently completed his doctorate on the culture
and language of the Yoat people. His research could not have proceeded
except with the assistance of a local Aboriginal reference committee.
The monks now provide an Aboriginal educational centre. At the
centenary celebration of the girls orphanage, an Aboriginal woman
who had been a girl at the orphanage insisted on paying the fares
of six of the Spanish sisters who had worked at the orphanage.
They were able to return to New Norcia from Spain and reconnect
with those who were grateful that their lives had been given hope
and purpose by the labours of missionaries who had ventured so far
from home. The museum at New Norcia is now testimony to the many
complexities of those times. But together, Aborigines and missionaries
have been able to own the past and to look forward together in hope.
I have returned east confident that we can find new imagination,
energy and focus in seeking decency, harmony and equality for all.
1. Dare I speak on Indigenous
Issues Again?
Last November I was very honoured to have Lowitja O'Donoghue launch
my book Tampering with Asylum. On that occasion she said:
It gives me very great pleasure to launch this latest book by
Father Frank Brennan - because Frank and I go back a long way
– to the days of the Keating Government and the introduction of
the Native Title legislation, and then later the Wik debates during
the Howard government. I have many fond memories of those
heady days and late nights of plotting and lobbying. Many memories
of success and some of frustration too! One thing I particularly
remember about Frank was Paul Keating calling him the “meddling
priest” I suspect (this was a compliment) delivered, of course,
as only Paul could! I suspect too that Frank is rather proud
of his meddling. And I say “long may he continue to meddle!”
Keating was of course referring to Frank’s interventions in the
Wik debates. Maybe he saw Frank crossing a few lines drawn in
the sands of Lake Burley Griffin, treading on a few sensitive
political toes.
Of course,
I was flattered by Lowitja's remarks. But they were a signal to
me that it might be time after six years of silence to offer a few
comments about the contemporary state of indigenous affairs in Australia.
The Redfern riots and the scrapping of ATSIC provide all of us,
and not just Aboriginal Australians, with fresh challenges in the
search for harmony, decency and equality. In this search, each
of us has to decide where we put our energies. Since my return
from East Timor just over two years ago, I have been mainly focused
on our treatment of asylum seekers. I am always edified to see
Lowitja's involvement in any Adelaide based initiative for asylum
seekers. But the two of us have often pondered how it is that people
are now so involved in refugees rather than reconciliation. It
is wonderful and humbling to see indigenous leaders involved in
advocacy for those most recent arrivals in Australia, wronged by
the government of the day, while there is still so much that needs
to be done to accord justice to indigenous Australians.
It is for others to judge whether I have transgressed the limits
in the past, having earned Paul Keating's description as the "meddling
priest". In politics as it is played in Australia, there has
been a presumption that it is only the stakeholders such as Aborigines,
miners and pastoralists who should be heard in the fray of political
debate. There is a place for the person who is not a stakeholder,
who represents no constituency, who pushes no partisan barrow, who
is professionally disinterested in which party is in power, and
who is committed to finding a just resolution of conflicting claims
holding in right balance the conflicting claims of the stakeholders
and finessing the balance between individual rights and the common
good or public interest. I am especially grateful to the pastoralist
who urged me during the Wik debate to return to my church
and say prayers. He clarified my thinking. An issue as complex
as Wik could not be left only to the stakeholders. It could
not be resolved by prayer alone. There is a place for honest brokers.
Being neither a native titleholder, miner nor pastoralist, I was
very privileged to participate in that debate.
If we political actors are to act in the name of a church or to
act in such a way that we are likely to be perceived as acting in
the name of a church, we need to transcend party politics and the
self-interest of the politicians. We need to take seriously our
role in the political processes of a free, pluralistic democratic
society. We need to put ourselves forward not just as Australians
but also as citizens of the world who have a practical, informed
concern for our neighbour.
There is often insufficient consideration by those of us speaking
and acting in the name of churches about matters of political morality.
Brian Howe recently warned of "the danger for any political
commentator (e.g. Tim Costello, Frank Brennan)":
[1]
While they often speak on behalf of Christians and the church
they are not facing the church when they do so. The danger is
that they may speak in the name of principles or attitudes which
are not subject to any theological rigour, which may not be owned
by the same churches which they claim to represent.
Of course there will always be Christians who seek elected office
as members of political parties; other Christians will act as public
advocates for a particular just cause. But those of us publicly
identified as Church people active in the political process of the
State have to be principled pragmatists who are always prepared
to articulate the moral principles on which our preferred outcome
is premised, professionally disinterested in which party is in power,
consistent in our articulation of the parameters on power to be
exercised by the various cogs in the machinery of State, calculating
in our assessment of what is achievable, and unstinting and impartial
in our efforts to achieve the outcome. If social conscience is
an expression of the believer’s right to participate fully in society,
the believer must be prepared to have dialogue with anyone and to
welcome any intervention made in good faith.
2. Aboriginal Australia
Post-ATSIC and Post-Redfern Riot
It has been six years since I offered any substantive comment on
Aboriginal issues in Australia. In part, my silence followed the
request of some Aboriginal leaders that I butt out during the latter
part of the 1998 Wik debate; in part, because there has not been
any significant Aboriginal issue on the national law reform agenda;
in part because I have been otherwise engaged on refugee and human
rights issues here and in East Timor; and in part because most indigenous
leaders see little role for the churches in addressing their problems.
For example, even Noel Pearson who sees a greater role presently
for the right than for the left observes, "What we seem to
need is assistance by people from 'hard schools' like the financial
sector. The public institutions that have been created in order
to find solutions to our problems seem to have little to offer."
[2] That may be so, but I dare to suggest that it will be
some time before Westpac and AMP are in the position to deliver
as did the Lutheran Church in the case of Noel's upbringing and
private schooling or the Catholic Church as in the case of the education
of the Dodson brothers. The Redfern riots and the Howard government's
decision to abolish ATSIC, having labeled it an experiment and having
compared it with apartheid, have prompted me to return to some consideration
of indigenous issues on the urging of some of my Aboriginal friends.
For this reason, I was delighted to received the request from the
Vincent de Paul Society to speak about indigenous issues tonight,
and in company with Lowitja O'Donoghue, the nation's most distinguished
indigenous leaders who has taken such resolute action against the
Howard government's refugee policy. We are all disappointed by
Lowitja's absence tonight but delighted that Libby Rogerson IBVM
has stepped into the breach.
On 3 May 2004, some of us in Sydney were able to respond to the
invitation from Aboriginal Church members who were convening an
ecumenical service at the Block in Eveleigh Street, Redfern, commemorating
the death of young TJ and praying for justice and pace. One of
the local Aboriginal pastors recalled the verse chosen by the Reverend
Johnstone for the first church service in Australia back in 1788:
"What shall I render to the Lord for all his benefits to me?"
(Psalm 116:12). He thought it more appropriate that the nation
reflect on Psalm 12:6: "Because they rob the afflicted, and
the needy sigh, now will I arise," says the Lord; "I
will grant safety to him who longs for it." We all gathered
to reaffirm our support for Indigenous Australia and especially
those in the area of Redfern by joining with the community in prayer.
The well known song was adapted for the celebration:
All over Redfern/The Spirit is moving/All over Redfern/As the
prophet said it would be/ All over Redfern/There's a mighty revelation/Of
the glory of the Lord/As the waters cover the sea.
In this year's Jessie Street lecture, Sir William Deane spoke of
the need for a renewed "quest for national decency and harmony
and real equality". Some commentators immediately interpreted
this as a thinly disguised attack on the Howard government when
it was nothing of the sort. This is the problem in contemporary
Australia. Any contribution to the quest for decency, harmony and
equality is interpreted as being first and foremost either pro-
or anti- Howard. Decency, harmony and equality are ideals which
are to be espoused by civil society no matter who the Prime Minister
of the day, and no matter what the present government's policies.
The dumbing down of public debate has been achieved by a parodying
of the "twilight of the elites" when it has now been made
clear that there is indeed a very privileged elite who pride themselves
on their exclusive access to the prime minister and who are united
in their condemnation of those they regard as the intellectual elites.
An elite of John Laws, Alan Jones, David Flint et al is still an
elite even if they purport to trade in the populist will of the
people and the personal favour of the prime minister.
In Australia today, we need more open, informed and robust debate,
apart from the contingencies of the electoral cycle, about the morality
of war, the equitable distribution of resources for the health,
education and well being of all citizens, the rights of asylum seekers
and the aspirations of indigenous Australians. Whenever the poor
are affected, we hope to hear the voice of Vincent de Paul and to
see the helping hand of Vincent de Paul.
We are in a situation of great flux, and we need to take stock
of first principles. On 25 March 2004, I was sitting in Parliament
listening to Question Time and I had a sense that an historic moment
was playing out in front of me. There was a Labor Leader of the
Opposition in a popular way wanting to demonstrate that he was ahead
of the government's play in putting an end to the leadership of
ATSIC. Mind you Gerry Hand as minister had done the same thing
with Shirley McPherson when she headed the ADC and when Hand was
anxious to set up ATSIC. Just as leaders like the Dodson brothers
have enjoyed some preferment by the Labor Party, those like Shirley
McPherson have enjoyed preferment by the Liberal Party. McPherson
is once more in the ascendancy, being Chair of the Indigenous Land
Corporation and the government’s chosen indigenous representative
at last week’s United Nations Permanent Forum in New York. At
2.25pm on 25 March 2004, Latham asked:
My question is to the Prime Minister. I refer him to my
public statements declaring no confidence in Geoff Clark’s
leadership of ATSIC. Why has it taken the government so long
to sack Mr Clark and enable Indigenous Australians to have
the leadership they need for a better future?
The Prime Minister rightly answered:
[3]
The proper legal processes will be followed, and I am not
going to make statements that might undermine the efficacy
of those procedures.
The Prime
Minister waited another three weeks before deciding to use the abuses
of Geoff Clark and his fellow commissioners as the Trojan Horse
to dump ATSIC and any prospect of an ongoing elected Aboriginal
body charged with service delivery and representation to government
of indigenous perspectives. NSW Premier Bob Carr suggested this
was simply the latest example of the Prime Minister playing catch
up with Mark Latham.
Meanwhile Bill Jonas, the indigenous social justice commissioner
with the Human Rights and Equal Opportunity Commission, had released
his last Social Justice Report a month before. He pointed out that
there has been a lot going on at government level, as well as the
review of ATSIC. He said:
There is not sufficient commitment by governments at any level
to do whatever it takes to progressively improve the life chances
and opportunities for Indigenous people, in terms of both absolute
improvement in socio-economic conditions and in terms of reducing
the level of inequality that exists compared to the life chances
and opportunities for non-Indigenous Australians.
On the day he released the report, he said:
Time and time again the government has emphasised that the key
focus of reconciliation should be on practical and effective measures
which address the legacy of profound economic and social disadvantage
that is experienced by many Indigenous Australians. While I have
problems with how reductive and limited this approach to reconciliation
is, it is crystal clear that the government is failing on its
own measures of success. The absence of government accountability
for service delivery against mutually agreed targets is the most
serious failing of practical reconciliation.
It is in the light of this undoubted failure of government that
we must consider the politics surrounding the abolition of ATSIC.
On 15 April 2004, John Howard announced the end of ATSIC in these
terms:
We believe very strongly that the experiment in separate representation,
elected representation, for indigenous people has been a failure.
We will not replace ATSIC with an alternative body. We will appoint
a group of distinguished indigenous people to advise the Government
on a purely advisory basis in relation to aboriginal affairs.
After this
announcement I rang Bob Collins to commiserate with him. Bob, an
ex Labor federal minister with an Aboriginal family had been prevailed
upon by the Howard government to head a three member review panel
on ATSIC. That panel which included prominent Aboriginal leader
Jackie Huggins spent months putting together a very detailed report.
In good faith they responded to government's request to review the
novel ATSIC structure which had been in place for 13 years. The
misdeeds of Aboriginal leaders such as Geoff Clark and Sugar Ray
Robinson were to serve as a smokescreen and Trojan horse for the
complete abolition of representative Aboriginal participation in
service delivery and national policy development. Bob Collins,
Jackie Huggins and Hannaford suggested in November 2003:
• Control of ATSIC will be put directly into the hands of the
existing 35 regional councils. • The national body
will comprise the 35 regional council chairs.
Let's not forget that John Howard was always implacably opposed
to the establishment of ATSIC. As Opposition Leader, he led the
charge against what he regarded as the " sheer national idiocy
of creating one nation, separate and apart from the rest of the
Australian nation". On 11 April 1989, Howard told Parliament:
I also say to the Government and to the Minister that they will
never improve the lot of Aborigines in 1989 and beyond by empty
symbolic gestures such as treaties. I take the opportunity of
saying again that if the Government wants to divide Australian
against Australian, if it wants to create a black nation within
the Australian nation, it should go ahead with its Aboriginal
and Torres Strait Islander Commission (ATSIC) legislation and
its treaty. In the process it will be doing a monumental disservice
to the Australian community. The Government always gets
into a lather of moral outrage in an endeavour to intimidate anybody
who disagrees with it. But the concern about the sheer national
idiocy of creating one nation, separate and apart from the rest
of the Australian nation, is not a concern confined to the Opposition
parties in this Parliament.
Fifteen years later, almost to the day, John Howard got his way
and scrapped the ATSIC experiment. Senator Vanstone followed up
the next day with the claim that ATSIC was like a system of apartheid.
While she acknowledged apartheid was a "more separate"
regime than ATSIC's role in managing programs, she maintained it
put indigenous Australians "into a different category".
"And they're not," she said. "They're first Australians,
they're ours and they deserve to get the same treatment that everybody
else gets." It is not only the federal Howard government that
has set about abolishing elected Aboriginal advisory bodies, preferring
nominated advisers to assist with mainstream service delivery.
Four days after Mr Howard's announcement, Peter Guivarra, the chairman
of the Queensland Aboriginal Co-ordinating Council issued a statement
noting: "By early next year the government has told the ACC
relevant sections of the Community Services (Aborigines) Act 1984
will be repealed and the ACC will be finished."
As well as efficient service delivery and the minimisaiton of substance
abuse, indigenous communities are entitled to the building blocks
for the rejuvenation of their spirituality, the protection of their
culture and the preservation of their indigenous identity. Sir
William Deane in the Jessie Street Lecture said:
Even in the aftermath of all the wrongs and mistakes of the
past including the unjustifiable taking of children, the search
for reconciliation does not and cannot absolve governments of
the responsibility to advance the education and welfare of all
Australian children, be they indigenous or non-indigenous, and
to protect them from exposure to alcohol and drug abuse, truancy
and domestic violence.
In his considered attack on the left entitled "Land Rights
and Progressive Wrongs", Noel Pearson welcomes the decision
by a community such as Aurukun to limit access to grog, observing
that "the reduction in the violence alone is in itself precious."
It is, but then again I remember when Aurukun was dry back in the
1980s. I have no reason to be any more optimistic about regional
Aboriginal alliances with the private sector than about the previous
local alliances with church communities and public servants who
actually resided in the Aboriginal communities. Without a secure
economic base and without assured cultural and spiritual identity,
Aborigines living in remote communities will continue to suffer
acute alienation and despair. I had always thought that the work
for land rights and self-determination was worthwhile because such
laws and policies could provide the time and space for Aboriginal
Australians to find and make their place in modern Australia, and
on terms that were not dictated solely by the descendants of their
colonisers. I have always regarded the next part of the task as
the far more difficult. It is not political or national in character;
it is spiritual and individual. The secularism, materialism and
individualism of Australian society are now more the cause of the
problems of identity and well being rather than the wellsprings
of any solution.
Peter Shergold who had been CEO of ATSIC and who is now head of
the Prime Minister's Department followed up John Howard's announcement
scrapping ATSIC, giving the first indication of what was really
to take its place. He said:
‘Mainstreaming’, as it is now envisaged, may involve a step
backwards – but it equally represents a bold step forward.
(Much) can be achieved through collegiate leadership, collaborative
government and community partnerships. This collaboration
will be reflected in a framework of cooperative structures that
stretch from top to bottom. Over time the object is to
build a single shop front, Australian government indigenous coordination
centres, in which all the services delivered by key departments
– employment, education, community services, legal aid and health
– will be represented.
In Queensland, Aborigines had the one stop shop for many years,
even up to the early 1980's. The shop was called the Department
of Aboriginal and Islander Advancement, and the shopkeeper was the
manager of the Aboriginal reserve. Fortunately Mr Shergold tells
us that "the intention is to work with regional networks of
elected and representative indigenous organisations in planning
the delivery of government support to community endeavour."
It should be high time in Australia that we admitted that government
is incapable of delivering services to indigenous communities and
of alleviating historic disadvantage without first forging a partnership
with elected indigenous leaders who are the nation’s most
precious resource in putting right the wrongs of the past, in working
with government for the delivery of basic services, and in shaping
a credible national identity for the future, based on the fullness
of human history in this land.
3. The Quagmire of Statutory
Land Rights
In August 2002, ten years after Mabo, the High Court of
Australia gave judgment in Ward v Commonwealth, the
case dealing with the claim by the Miriuwung and Gajerrong People
to lands in the Kimberly including part of the Ord River scheme.
Justice McHugh who is the only judge who decided the Mabo
case still sitting on the High Court had cause to look back over
the history of native title litigation as it has unfolded since
Wik in 1996. He upset Aboriginal leaders like Noel Pearson
when he said:
Wik is one of the most controversial decisions given by
this Court. It subjected the Court to unprecedented criticism
and abuse, though the criticism and abuse were mild compared to
that directed to the United States Supreme Court after its two
decisions in Brown v Board of Education of Topeka.
The current state of the law of native title "can hardly
be described as satisfactory". The present case took 83 days
to hear at first instance and 15 days on appeal to the Full Court
of the Federal Court. The orders of the majority Justices in these
appeals now send the case back to the Federal Court for further
hearing. Further evidence may be taken, and further litigation
in this Court is a possibility. The Yorta Yorta case took
even longer to hear at first instance - 114 days. The
dispossession of the Aboriginal peoples from their lands was a
great wrong. Many people believe that those of us who are the
beneficiaries of that wrong have a moral responsibility to redress
it to the extent that it can be redressed. But it is becoming
increasingly clear - to me, at all events - that redress can not
be achieved by a system that depends on evaluating the competing
legal rights of landholders and native-title holders. The deck
is stacked against the native-title holders whose fragile rights
must give way to the superior rights of the landholders whenever
the two classes of rights conflict. And it is a system that is
costly and time-consuming. At present the chief beneficiaries
of the system are the legal representatives of the parties. It
may be that the time has come to think of abandoning the present
system, a system that simply seeks to declare and enforce the
legal rights of the parties, irrespective of their merits. A better
system may be an arbitral system that declares what the rights
of the parties ought to be according to the justice and
circumstances of the individual case.
Now Justice McHugh was one of the majority in the original Mabo
decision in which the court by 6 to 1 recognised native title.
Since then a newly constituted court and governments of both political
persuasions have had the opportunity to rule and legislate on native
title.
It may be
just too convenient to be able to dismiss McHugh’s remarks as if
he were a disillusioned judge growing more conservative. Similar
sentiments are expressed by Hal Wootten who enjoys the finest reputation
amongst the nation’s indigenous leaders. He has surveyed the way
that land rights and stolen generation questions were left for determination
in the courts and concludes:
To leave the consequences of these policies to litigation in
private actions based on existing rights, in courts designed to
settle legal rights by an adversary system within a relatively
homogeneous community, is at once an insult to the indigenous
people and a prostitution of the courts. It is an insult to indigenous
people because what is at stake is not the vindication of rights
that they possessed, but redress for what happened to them when
they were accorded no rights. (Litigation such as Mabo
and Wik) developed as a result of a failure of political
nerve, which left what should have been a legislative policy issue
to resolution in the courts as an issue of existing rights. In
Mabo the High Court eloquently and bravely confronted the
fiction of terra nullius and its consequences, but could only
rule on legal rights, and then only in a way that did not fracture
the skeletal structure of the invader’s law. Instead of rising
to the challenge of creating a new indigenous policy that could
deliver more just outcomes in contemporary conditions, parliament
simply cemented the crippled structure of existing rights into
the Native Title Act 1993. It left an avenue of escape
from the strait jacket in the mediation process. However, instead
of accepting the opportunity that mediation offers to go beyond
existing rights to seek a mutually beneficial solution, governments
refused to negotiate except about whether claimants could establish
the existing rights they were forced to claim, and went to the
courts to exploit every argument to defeat those rights. The
shards of the Mabo aspiration lie around us in new case names
that threaten to usurp its household status, at least in some
Aboriginal communities – Yorta Yorta, de Rose, Ward, Wilson,
Yarmirr.”
There have
now been more than enough test cases in the courts, determining
the extinguishment of native title on Western lands leases in Western
New South Wales, but leaving open the possibility of native title
on pastoral leases in Queensland, Northern Territory, Western Australia
and South Australia; upholding the possibility of sea rights but
rejecting all exclusive rights to sea and ensuring that the sea
rights of all other persons are unaffected; and requiring an ongoing
connection with the land despite the effects of dispossession and
colonization. How many more test cases do there need to be before
state and Commonwealth governments are prepared to sit down and
negotiate sensible arrangements with traditional owners. It is
good that there has finally been a settlement of the Yorta Yorta
claim here in Victoria, despite the trauma and cost of the fruitless
litigation. More than 25% of the Kimberly is now recognized as
native title. But isn’t it time there, and in Cape York, as in
the Northern Territory to sit down with the traditional owners and
negotiate more useful arrangements for employment, training and
survival in these remote parts of the country?
It is timely to recall that the Keating response to Mabo
was to be a threefold full-blooded recognition of continuing native
title rights, establishment of a perpetual land fund for the purchase
and management of properties for the benefit of those who had lost
their native title rights prior to the passage of the Racial Discrimination
Act 1975, and the negotiation of a social justice package. The
third item has never materialized. But this year the Indigenous
Land Fund will receive its final payment form Consolidated Revenue.
It is now a self-sustaining fund able to expend up to $45m per annum.
As of July last year, the Indigenous Land Corporation has purchased
162 properties involving 5.1 million hectares at a cost of $136
million, of which 110 have been divested to Indigenous corporations.
The ILC estimates that 60,000 indigenous Australians derive some
benefit from these purchases. However only about one thousand persons
are receiving a direct tangible benefit such as residence (474),
full time employment (157) or part time CDEP type employment (383).
While 68% of properties were occupied, only 30% of them were providing
any employment. The issue now is not the legitimacy of land rights
but matching the land rights with the real, rather than the imagined,
Aboriginal aspirations.
4. Conclusion
Let's remember the simplest message of social justice: Where you
stand depends on where you sit. Many years ago now, I attended
a meeting of Aborigines living in a fringe camp at Mantaka on the
outskirts of Kuranda by the Barron River in North Queensland. The
Aborigines had lived on a reserve which was run by a church and
which had since closed. Some of the people moved to government
housing in Cairns but they did not like it much and the neighbours
liked it even less. Eventually they ended up as fringe dwellers
on land they regarded as their traditional country. They were seeking
land title and money for houses from governments in Brisbane and
Canberra. At the end of the meeting, the convenor pointed across
the river and said, “See that house that is Mr X’s weekender. They
don’t come very often but when they do they come by helicopter.
See that helipad on the roof. It cost $3/4 million.” That was
almost twice the amount they were seeking for basic permanent housing.
I have often told this story in schools. Especially in the better
off schools, there are many questions: Why don’t the Aborigines
build their own houses if they want them? What are they complaining
about? If the white man didn’t come, they wouldn’t even have a
water supply. If it weren’t for Mr X paying his taxes, there would
be no money to pay these people welfare. After many years, I gave
up trying to answer these questions or to refute these comments.
In response, I ask only one question: Which side of the river are
you standing on as you ask your questions? Ozanam had the capacity
to be present on both sides of the river.
There is never any doubt about which side of the river people are
standing on. Can you see that there are just as many questions
that can be asked from the other side of the river? They are just
as unanswerable. They are likely to make you just as upset and
powerless and confused. On which side of the river does Jesus prefer
to stand? Where would we choose to stand, all things being equal,
if our concern was fearless Christian leadership? Crossing the
river, we cross between faith and fear. Take a stand and be prepared
to give an account of your hope thereby entering that sacred domain
between fear and faith, the most grounded covenanting space in our
hearts and in our land.
In February this year, the New Zealand Anglican and Catholic Bishops
in February 2004 issued a statement on the Treaty of Waitangi:
The recent debates reveal the volatile state of popular feeling
about race and ethnicity. We believe the Treaty covenant provides
the best way of addressing that volatility. We call for a Treaty
debate rather than a race debate. The Treaty can't be ignored
or made to disappear, enshrined as it is in the law, very clearly
since the 1975 Act and in at least 32 subsequent pieces of legislation.
Equally important for us, the document forms a spiritual covenant
through promises made by our forebears and never forgotten by
Maori. To break those long standing promises is to erode the moral
foundation of the nation and undermine the ethical basis of Pakeha
settlement in New Zealand, along with all sorts of other agreements,
covenants and contracts. The Treaty properly honoured provides
us all with a cornerstone that is the envy of other nations.
It will be a long time before we hear any such statement from the
Australian bishops. Maybe our attempts to enunciate gospel imperatives
are too confined by the political wisdom and constraints of the
day. As the Vincent de Paul Society prepares for another 150 years
of service in Australia, one of the most secular materialistic societies
on earth, let’s take heart from the Blessed Frederic Ozanam’s observation:
Those who wish no religion introduced into a scientific work
accuse me of a lack of independence. But I pride myself on such
an accusation. . . I do not aspire to an independence, the result
of which is to love and to believe nothing.
Loving and believing as much as we do, let us leave this church
of St Francis tonight committed to decency, harmony and equality
for all in our land, especially for those who have named this place
home for tens of thousands of years. Let's emulate the exchange
of gifts between the Aboriginal elder and the Afghan meatworker
in Albany where Attaturk looks over the last Australian landfall
seen by those fallen ANZACS.
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