Dangerous Fictions
No one has a monopoly on truth when it comes to the past and present lives of Australia’s Indigenous peoples.
Conservatives tend to deny that Indigenous peoples should have special status in the Constitution. Progressives tend to turn a blind eye to the profound dysfunction that plagues so many Indigenous communities — and refuse to accept that Indigenous people want and deserve all of the benefits of the modern world.
In ‘Dangerous Fictions ’, Marcia Langton challenges the dangerous orthodoxies of a society that seems incapable of making peace with the truth of its own past. Below is the opening address to her FODI Digital discussion. You can watch the full discussion here.
I acknowledge the Wurundjeri traditional owners of Naarm where I live and work and I acknowledge their Elders, past and present and a shout out to their emerging leaders.
I’d like to acknowledge the traditional owners where you are and pay my respects to their Elders, past and present.
What I want to talk about tonight is a very interesting problem that’s puzzled me for a long time and it’s not just the question of racism. People think that racism is just discrimination by one group against another group on the basis of some physical characteristics. So in Australia, what we see is racism expressed most commonly as a kind of white racism against people of colour or against people who appear to be Chinese, we’ve seen a lot of that lately.
But what I’ve discovered in discussing this widely with people is that in fact, there’s something very strange happening in Australia and that the racism towards Aboriginal people is something more than racism and also something very different. So, many years ago, when I was a much younger scholar, I wrote a fair bit about race and I continued to but lately I’ve come to the conclusion that there is something very special and peculiar about the hatred of Aboriginal people. And of course, it is summed up in many Aboriginal slogans, I think most Aboriginal people sense it and sense it from a young age.
Australia has a black history, for instance. And we Aboriginal people have a very peculiar stance towards us that cannot be captured in the concept of racism, there’s something more going on. I’ll come back to that later.
What I want to do first of all is lay out what I thought many years ago was this underpinning racism in Australian civil society. So, for instance, I wrote, concepts of race are fundamental to Australian polity and civic life. It is therefore, a matter of basic civility or now I would say citizenship that we should understand the historical development of ideas about race in Australia in order to avoid the real threat to civil society, which racism has presented in the 20th century.
I wrote this back in the 20th century and the situation hasn’t changed, that statement holds true but there’s more as I will explain. So I went on, the race power is a key concept of the Constitution which has several times been the subject of cases before the High Court of Australia, far right political organisation on the basis of race has become a feature of current political affairs in this nation in the late 1990s.
Yet at the same time, few Australians are aware that there is no reliable evidence that any physical reality conforms to the notion of race, which is assumed in our language and our legal doctrines and texts, including our Constitution.
So, I felt then that it was intrinsically important to consider the concept of race and I applied this analysis at the time to the political circumstances in which the Parliament of Australia was attempting to legislate away our Native Title rights and I went on to explain that much about terra nullius, the Mabo case, what had happened in Queensland leading up to the Mabo case and that very plantation paradigm of colonial relations in Queensland that persists.
But I did say, Indigenous people expect that other relations are possible, relations which will write Indigenous people fully into the modern history of the state. Aboriginal peoples will now appear as groups which might treat with the state on matters such as regional agreements on development, service delivery and even limited self-governance.,
I was such an idealist.
I pointed out that Justice Brennan relied on international standards of justice and human rights in the Mabo (№2) case, particularly as they relate racism in the decision. So I think we’re very familiar now with the idea that terra nullius, a legal fiction had effectively rendered Indigenous people invisible on the basis of assumptions about their supposedly racial inferiority. And then in Mabo with the stroke of a judicial pen, Indigenous people reappeared as persons with law and property or at least possessory rights.
And that decision was understood by legal thinkers as a judicial revolution equivalent to the scientific revolution described by Thomas Kuhn, when reigning paradigms are overthrown by the development of a new principle, such as the impact of the theory of relativity on quantum mechanics.
Unfortunately, I have to say that since then, the magnificent vision that was laid out for us by the High Court in Mabo (№2) has been whittled away by mean-hearted bureaucrats in State Governments and most particularly by mean-hearted politicians. And we saw the result of what industry now is prepared to do with the destruction on the eve of this year’s National Reconciliation Week, when the Rio Tinto drill and blast team from the project of Brockman 4 utterly destroyed the Juukan Gorge Caves.
So, I think that incident shows us that the idea of Terra Nullius and the contempt implicit in that doctrine, that is contempt for Aboriginal people, contempt for Aboriginal culture to the extent that where completely disappeared has reappeared in a Native Title setting where there is an Indigenous land use agreement registered in the Federal Court as per the Native Title Act and this incident, so reminiscent of the destruction of the Buddha Statuary at Mosul, magnificent world heritage areas by the Islamic State can occur in our nation, in our country in the 21st century.
So, my idealism is now rather worn down, just like the Native Title Act and our rights.
I hope that sometime tonight or in the coming days, that the Rio Tinto board will reconsider their appalling treatment of the traditional owners of that area and other and all Australians. I think they regard us as a resource colony and that, like themselves, Australians have no regard for our cultural heritage and are prepared to tolerate such wilful acts of vandalism and the trail of deceptive statements, quasi apologies, incredulous, implausible submissions to the Senate inquiry and now a stasis, complete silence from them.
So I think that yes, racism, classical formal racism of the kind that the Terra Nullius concept encompassed still applies but as I keep saying there’s more. So, at the time that we negotiated the Native Title Act, the Racial Discrimination Act was critically important to the outcome and it served as the safety net in a very odd way to the few rights that we were able to extract from those negotiations in accord with the common law that the High Court had handed to us.
Originally, the Racial Discrimination Act was read as protecting the property rights of Indigenous people, just as it does for all other Australians. Now just on that, all these years later, that has come to pass.
In the Griffith’s case, before the High Court last year, the High Court handed down a decision that I wish we’d had back then. So we said to the politicians of the day, the Racial Discrimination Act means that you cannot deprive Indigenous people of their property without first expressing a clear intent and secondly, compensating Indigenous people as per the Constitution in fair market value terms.
And I have to say that most politicians of the day had no idea what we were talking about and still today, I think that would be the case.
But in Griffith, a case in the Northern Territory last year, the High Court found on the evidence in that case, in those particular circumstances, the traditional owners were entitled to compensation for the extinguishment of their Native Title by the Northern Territory government without consent to 50 cents in the dollar compensation as per the Constitution. And so, I think that bolsters the argument that some of us have been making for years that the Mabo decision recognised our property rights, Native Title as property, not merely possessory rights. And I find that a very important, little win, it’s a very important win.
And so there was a long debate after Mabo about coexistence. Could Native Title coexist with Australian titles? Well, of course, what was missing from the argument was the very obvious point was that it in fact had coexisted with Australian titles for a very long time, it’s just that nobody recognised that it did. And I raised in this paper many years ago, the principles of the Australian constitution relating to fair market value for property acquired by the Crown and the special measure provisions which permit the Commonwealth to enact legislation for members of a race.
Now, this is where it gets tricky.
It’s this race power in the constitution that allows the Federal Parliament to pass laws with respect to the people of any race for whom it is deemed necessary to make special laws. A potential protection, no doubt. But these powers also carry the means of fostering reaction against the effects of the Mabo revolution and such reaction has gathered force, I wrote.
And we see now that there have been many attacks on the Racial Discrimination Act and I want to thank all of those Australians who joined us in preventing the Parliament from removing Section 18 and making other changes to the Racial Discrimination Act some years ago and I fear that we’ll all have to gather our strength and fight that battle again. I believe that there are people in the Australian Parliament who will not desist from attacks on the Racial Discrimination Act until they’ve had their royal flush of IPA policy changes.
And of course, at the top of their list is the gutting of the Racial Discrimination Act. So be ready for that.
Of course, what the constitution read prior to the referendum was that the race power allowed the Federal Parliament to pass laws with respect to the people of any race for whom it is deemed necessary to make special laws except Aborigines. And so it was the 1967 Referendum that removed those two words, except Aborigines and then after that, somehow, by sleight of hand, the race power came to mean that that power would only applied to Aboriginal people and one of the politicians we lobbied back in 1992 after the High Court decision in Mabo (№2), actually said to me, “But that only applies to Aborigines because only Aborigines are a race.”
What has happened in Australia historically is that ideas of race have evolved and changed from their highly classical repressive forms in the 18th and 19th century and remember that they really started to kick off only a century before that with German philosophers and, of course, resulted in the 20th century in conflagrations such as The Shoah and other genocides.
But here we had racism in Australia evolving and taking its own path, so we expected that the race powers could and would be used only to benefit citizens which might be subject to its use and would only be used to benefit those citizens. We were wrong. Until the Koowarta*/Kartinyeri* appeal in the High Court, it was inconceivable to many that the power could be used to their detriment. Now, even though the High Court’s decision was inconclusive on this issue and it was a hung court.
Nevertheless, the Australian Government has taken the position that the race power can be used to the detriment of Australian citizens and of course, most particularly Indigenous people.
And this is one of the reasons why it is so important to the far right to abolish the Racial Discrimination Act and remove the only safety net or the Native Title Act and for many of our rights as a special minority.
So what makes us a special minority? Well, in the first place as Rio Tinto might figure out soon, our ancestors have been here for 65,000 years on present evidence and there’s a group of scientists who are trying to prove that our ancestors have been here for 120,000 years so it is now beyond refute that Aboriginal people are the oldest, continuous living culture in the world but there’s a kicker.
I’m not sure how many there are today but there are somewhere between 400 and 500 Aboriginal deaths in custody that can be counted from a survey done by The Guardian newspaper, using coronial inquiry reports since 2008. The cases before 2008 except for those considered by the Royal Commission into Aboriginal deaths in custody can’t be identified. So if we count the 100 or 99 in the Royal Commission into Aboriginal deaths in custody and allow for two or 300 for the next two decades, we may today find that we have between six and 700 or 700 and 800 Aboriginal deaths in custody, just in our recent history since the beginning of the appointment of the Royal Commission into Aboriginal deaths in custody.
And I have looked at the data and of course, you’ll know that there’s quite a large majority of the cases have died from medical conditions that remained untreated. And that category of people who died in custody and a couple of others means that people are dying unnecessarily in custody because of the failure of custodial officers to get them medical treatment.
It’s a tragic situation but I felt the need to say it here. But the other thing that struck me was that if you look at the cases one by one and also related cases, such as the children detained in the Don Dale Detention Centre.
So I’m sure you know that all of the children in the juvenile justice detention system in the Northern Territory are Aboriginal. And then if you look at photos of those children, especially those historical photos from that period prior to the appointment of the Royal Commission into the Don Dale Juvenile Centre, you’ll see that many of them are white-skinned, very fair and yet they are Aboriginal.
We know who their families are and they’ve come out of that system of torture and abuse that they suffered and some of them have become young activists now and they’re well regarded now in the Aboriginal community.
I’ve tried to explain to people from other countries and Australians who do not understand these problems that the Black Lives Matter movement also includes our concern for all those Aboriginal people who are fair skinned, who’ve died in custody. And it led me to thinking so what is the racism against fair-skinned Aboriginal people about? What is going on? So it’s very clear then that and I really despise the terminology and I really don’t like the theory and thinking behind this kind of terminology but it is the available terminology and it’s Aborigines and settlers, it’s not simply racism.
And it led me to thinking so what is the racism against fair-skinned Aboriginal people about?
It’s a settler population that cannot come to terms with its Indigenous population, its autochthonous population, its native population. The people descended from the pre-existing population. Utterly incapable of coming to terms with living alongside people who are descended from humans who arrived here 65,000 years ago, possibly 120,000 years ago, regarded by many archaeologists as the dawn of modern humanity.
And so when our old people say, “We came from this place and only here.” You can see what they mean, it’s impossible to imagine the time scale and to make sense of it. And so I think the peculiar hatred that led to the shocking torture of children in the Don Dale Centre, children of many colours, some of them very fair, is that expression of settler rage against the people with whom they will not treat.
There’s so much more to say about this topic but I think now we need to really think about these matters very carefully as several jurisdictions move to negotiate treaties and as, I believe, a government in the future will do, allow for a referendum so that Australians can vote to recognise Aboriginal and Torres Strait Islander people in the Constitution.
And that will truly change the nature of racism and I hope that the peculiar racism inflicted on Aboriginal and Torres Strait Islander people will evolve and will change and will disappear and that we as the descendants of the original occupants will be recognised as people to be contended with as citizens with a special claim on the nation because just as they found in the Griffith’s case, it is unconstitutional to extinguish our property and our rights without consent — and compensation is owed. And if that compensation takes the form of recognition, I for one would find that to be a very good outcome for all Australians.
* Koowarta/Kartinyeri High court case citation to be confirmed.
Prof Dr Marcia Langton AO is a descendant of the Yiman people of Queensland. She is anthropologist and geographer, and since 2000 has held the Foundation Chair of Australian Indigenous Studies at the University of Melbourne, and is the Associate Provost. She has published in the fields of political and legal anthropology, Indigenous agreements and engagement with the minerals industry, and Indigenous culture and art.
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