The Quest for Aboriginal Sovereignty

Hugh Morgan

Hugh M. Morgan, AO, is Managing Director of Western Mining Corporation.

The implication of an Aboriginal treaty, this article argues, is an Aboriginal nation.  A key part of the campaign for Aboriginal nationhood is the rejection of the legitimacy of the British settlement of Australia.

I believe the issue of the proposed treaty with the Aborigines to be the most important political issue to confront the Australian people since the federation movement captured the hearts and minds of our grandparents and great grandparents in the 1890s.

This paper does not claim to be a discursive and wide ranging analysis, but rather seeks to emphasise matters which have been overlooked to the detriment of the community's understanding of the issues which are involved.

There is a long historical trail which leads to the Prime Minister's declaration at Barunga on 13 June 1988, a week after the ALP Federal Conference.  That declaration commits the government to a treaty (not a compact or a Makarrata) with the Aborigines.  The first major document in that historical trail is the article, "Draft Program of Struggle against Slavery", published in the official paper of the Communist Party of Australia, the Workers' Weekly of 24 September 1931.

The "Struggle against Slavery" is a long statement.  It was one of the consequences of the massive swing to the left which the Comintern (Communist International) executed, under Stalin's orders, in 1928 and 1929.  As a result of Comintern action the right-wing faction of Jay Lovestone was displaced in the Communist Party of the USA and replaced by the hard-line leftism of Foster and Browder.  In Australia, the right-wing faction of Kavanagh and Ryan was displaced as a result of the visit of a Comintern agent from the US, H.M. Wicks.  The new, hard-left leadership comprised Sharkey, Dixon and Moxon.  (Wicks, interestingly, later became an FBI agent).

In the USA the new CP leadership lost no time in calling for the establishment of a separate negro state, and the new Australian CP leaders were not far behind in demanding a separate state for Australia's Aborigines.

The two key sections of the CPA's "Draft Program of Struggle against Slavery", are as follows:

• Liquidation of all missions and so-called homes for Aborigines, as these are part of the weapons being used to exterminate the Aboriginal race by segregating the sexes and sending the young girls into slavery.
• The handing over to the Aborigines of large tracts of watered and fertile country, with towns, sea ports, railways, roads, etc, to become one or more independent Aboriginal states or republics.  The handing back to the Aborigines of all Central, Northern, and North-West Australia to enable the Aborigines to develop their native pursuits".

Nearly 57 years after the publication of this seminal document, the contemporary Communist Party weekly, Tribune, carried on its first issue for 1988 a cover page with a picture of the First Fleet at anchor in Botany Bay.  Superimposed over the ships was the Aboriginal land rights flag with the banner headline:  "Sovereignty in '88"

A separate sovereign state for the Aborigines, carved out of Australia, has been a settled and constant ambition for the communists, and Bolshevik left generally, in Australia for over 50 years.  If the Prime Minister's promise of a treaty is fulfilled then the patient, unremitting work of 50 years will be within sight of completion.

A treaty implies, and the implication will be constantly and remorselessly driven home, an Aboriginal nation.  But a sovereign nation does not, and cannot, sign a treaty with its own citizens.  A treaty with the Aboriginal people will immediately put Aborigines, however defined, outside the orbit of Australian citizenship, and the issue of passports, and all other appurtenances of citizenship will one by one be brought into question.  Indeed the matter of Aboriginal passports has already been raised by Michael Mansell.

An Aboriginal nation will require a homeland.  The Northern Territory, for constitutional reasons, will be proposed as a sacrifice to placate the incessant and increasingly militant demands for such a homeland.  This sacrifice will be put forward as the final solution to allegedly otherwise insoluble problems of urban violence, international pressure, and unexpiated guilt.

It may even be suggested that a sovereign Aboriginal state will relieve the Australian taxpayers of the continuing need for large expenditures on Aboriginal welfare.  However, demands for continuing subventions have long been built into proposals for Aboriginal sovereignty.  One argument for such transfers is the alleged obligation to "pay the back rent" for 200 years of unauthorised occupancy.

The present territorial integrity of Australia is the consequence of a long chain of legal political decisions and, it should not be forgotten, of military victories.  The most dramatic military engagement, whose outcome clearly and directly affected our sovereignty, was the battle of the Coral Sea in 1942.  The significance of that naval battle was understood by every Australian who lived through it, and by many who know of it only through history books or school lessons.

Not so well understood, but just as important to Australia's sovereignty, was the outcome of the Great War of 1914-18.  Had the Germans won in 1918 it is certain that Australia would have been forced to yield territory, perhaps a great deal of territory, to the victors.  It was the prospect of such an outcome which caused so many young Australians to volunteer for military service in Europe and the Middle East, where so many of them were killed in action.

Because we have never actually experienced invasion we now tend to take it for granted that we, and our descendants, will always be in unchallenged possession of the great island continent (plus Tasmania) we know as Australia.  The idea that the 1931 Communist Party manifesto might one day be forced upon us, because of our own political apathy and stupidity, still seems totally absurd to most people.

This essay seeks to outline the way in which the partitioning of the country could be forced upon a reluctant community, and how the setting up of an Aboriginal nation state, occupying the area we now know as the Northern Territory, would follow.  The steps involved in such a strategy are as follows:

• First, the legitimacy of the British settlement of Australia has to be undermined and discredited, at home and abroad.
• Second, the idea of a separate Aboriginal nation has to be created and accepted.
• Third, the argument that the easy solution to the problems generated by the idea of separate Aboriginal nationhood, particularly urban violence, is that of partitioning Australia into two separate nations, and establishing an Aboriginal sovereign state, has to be accepted.

LEGITIMACY OF SETTLEMENT

The delegitimising of the British settlement requires wide acceptance of the argument that Cook and Phillip came here illegally, and that the steady flow of immigrants, be they convicts, free settlers, or later on gold seekers, was part of a process of illegal dispossession, by an invading power, of the lawful inhabitants and owners.

This argument has to become accepted, at least in some measure, not only by Australians, but just as importantly, by overseas leaders and opinion-makers.  The importance of overseas opinion is well understood by land rights activists.  A substantial investment of propaganda activity, much of it paid for by the Australian taxpayer, has been made in Western Europe through representations to various UN agencies.

Let us consider in detail the legal background to the British settlement.

On 19 April 1770, Captain James Cook sighted the eastern coast of Australia at Point Hicks.  He then sailed northwards, landing frequently during his progress, until, on 22 August he found himself at the entrance to Torres Strait.  Correctly thinking that he might therefore, and now I quote from his journal:

"land no more upon this eastern coast of New Holland, and on the western side I can make no new discovery the honour of which belongs to the Dutch navigators;  but the eastern coast I am confident was never seen or visited by any European before us, I now once more hoisted English Colours, and in the name of His Majesty King George the Third took possession of the whole eastern coast from the latitude of 38 degrees south down to this place by the name of New South Wales".

Captain Cook's annexation of eastern Australia was the first part of the chain of events leading to the recognition by the rest of the world that Australia was a British possession.

Eighteen years later Captain Arthur Phillip arrived with the First Fleet, reaching Botany Bay on the 18 January and Sydney Cove on the 26th.  On 7 February (which, arguably, is the really significant day in the sequence of events which took place near Sydney two centuries ago) Phillip's authority, as Governor and Captain General of NSW, was legally constituted by proclamation to the assembled officers, men and convicts of the infant colony.

These two dates, 22 August 1770 and 7 February 1788, are the two important dates in the legal processes which turned Australia from a land populated by between a quarter and half a million of primitive nomadic tribes-people, the Aborigines, into a British settlement, recognised by the world community as having been settled in accordance with international law.  James Cook was the first European to discover eastern Australia, and he took possession of it in the name of the British Sovereign.  Settlement by Arthur Phillip was the next and necessary stage in the process of legitimising British possession.  Without settlement, British title would have lapsed.

My description of the Aborigines as primitive nomadic tribes-people will cause apoplexy in some circles.  It is important if the psychology of the guilt industry is to work, that Aborigines should be depicted, and accepted, as Rousseauean "noble savages" living in harmony with nature, free of the faults and failings which afflict ordinary men and women.  But this idea of the Aborigines, of course, is a fantasy.  The Aborigines were, and are, no more or no less noble than us, but they did not have the benefits of centuries of civilising pressures and constraints, expanding knowledge and technological progress.

Much confusion has arisen because of the mistake which people make when they identify cultural power with personal merit and moral virtue.  A person born into a society which has a language which embraces millions of people;  a society with the rule of law, an advanced economy, a sophisticated scientific and technological tradition;  has enormous advantages compared to the person born into a tribe whose language embraces only a few hundred people, with no literature or scientific tradition.  It is an elementary mistake to assume that the former infant is, as he or she grows up, morally superior to the latter child.  What is undeniable is that for better or worse, the former child has much greater choice and therefore must carry a greater burden of responsibility.  Much of the sentimental yearning for the so-called simplicity of primitive life is based on the desire to avoid the responsibilities which modern culture imposes on us.

The Aborigines were born into a society made up of hundreds of different tribes, with different languages, who spent much of their time warring with each other.  Hobbes's memorable description of primitive and uncivilised life, written in the 17th century before Dampier's descriptions of the Aborigines of the northern coast of Western Australia reached Europe, was a hypothesis concerning European life of pre-civilised times:

"The condition of man ... is a condition of war of everyone against everyone".

"No arts;  no letters;  no society;  and which is worst of all, continual fear and danger of violent death;  and the life of man, solitary, poor, nasty, brutish, and short".

Although these words were written about the Europeans of long ago, they provide a description of life which is very similar to many contemporary accounts of 18th century and 19th century Aboriginal life.

For the guilt industry to succeed in its ambitions, the Rousseauean myth must now be written into our history and Hobbes's description of primitive life written out.

TERRA NULLIUS

A crucial legal step in the process of legal settlement was the conclusion, reached by Cook and Banks, that Australia was, in 18th century legal terms, terra nullius.  This legal term has recently been turned into a political slogan, a term of abuse of our founding fathers.  The former Minister for Aboriginal Affairs, Clyde Holding, bears a heavy responsibility for the way he joined in the campaign against Phillip and Cook, with the all too apparent aim of delegitimising the settlement of this country.

The doctrine of terra nullius did not mean that no one inhabited the country.  It meant that those who did inhabit it were at such a primitive state of development that no treaty with them was possible.  The Aborigines of 1770 were, as Cook and Banks discovered, sparse in number, had no clothes, built only the most primitive of shelters.

The Aborigines had no agriculture nor did they graze animals.  Their few utensils, weapons and ornaments were crude in the extreme.  They had no written language, no sense of time or history, no common spoken language, and no over-arching political institutions.  As far as Cook and Banks could observe, and they were painstaking, accomplished and eminent observers, the Aborigines possessed only the most rudimentary social organisation.

Today we have the advantage of hindsight and anthropological research which has illuminated aspects of Aboriginal life which were not well known to the first generation of European settlers.  Equally, however, it would be foolish to accept all the findings of anthropologists (many of whom are blinded by Rousseauean illusions);  just as it would be both foolish and condescending to dismiss the many astute observations of the first European settlers of this country.

According to 18th century international law and doctrine, because the Aborigines were at such a primitive stage of civilisation, Australia was terra nullius, and that in taking possession of the land by proclamation and settlement, all of the land became Crown land, subject to the British law, and the inhabitants, similarly, came under the protection of the Crown.

Property rights in land in Australia, from 1788 onwards, were only realisable as a result or action by the Crown.

There has been a great deal of agitation over this 18th century body of law.  Arguments have been put that it was an outrageous legal doctrine, with the implication being that Cook and Phillip acted illegally.  There is extraordinary condescension in this late 20th century scorn for the lawyers of the 18th century.  Cook and Phillip had no other law to govern their conduct.  There was no other law.  Their claim on our respect is that they scrupulously adhered to that law.

It was this body of law which governed the exploration and settlement activities of all the European powers.  Because of the economic dominance of the Europeans in the 18th century world, it was their legal doctrines which became the international standard.  Regrets have been expressed that it should have been the Europeans who played this role, and that it would have been preferable if the Chinese, for example, who were arguably more culturally advanced than the Europeans, had imposed their legal system as the international standard.

Whilst all this is arguable it is totally irrelevant.  The facts of the 18th century world are what they are.  We are, and should be, interested in the personal qualities and merits, or lack of them, of the founding fathers of Australia.  But to seek retrospectively to place these men and women within a totally alien, to them, legal structure is absurd.

THE BLACKBURN JUDGMENT

It is only in Australia that we can find such strenuous attempts to turn upside down the legal framework within which Australia was settled and developed.  The definitive exposition of the legal basis of the settlement of Australia, by the British, is set out in the late Sir Richard Blackburn's judgment in the Gove Land Rights Case (Milirrpum v Nabalco Pty Ltd and the Commonwealth of Australia).

A summary of the case is as follows:

Aboriginal natives of Australia, representing native clans, sued a mining company and the Commonwealth, claiming relief in relation to the possession and enjoyment of areas in Arnhem land in the Gove Peninsula over which mineral leases have been granted to the company, which mined for bauxite in the area ... The natives asserted, on behalf of the native clans they represented, that those clans and no others had in their several ways occupied the areas from time immemorial as of right.  The natives contended, as "the doctrine of communal native title", that at common law the rights under native law or custom of native communities to land within territory acquired by the Crown, provided that those rights were intelligible and capable of recognition by the common law, were rights which persisted and must be respected by the Crown itself, and by its colonising subjects, unless and until they were validly terminated.

The natives contended further, as part of that doctrine, that those rights could only be terminated by the Crown (a) by consent of the native people or by forfeiture after insurrection or, perhaps, (b) by explicit legislation or by an act of State, and that the rights of the native people to use and enjoy the land in the manner in which their own law or custom entitled them to do was a right of property.

The natives contended further that the Minerals (Acquisition) Ordinance 1953 (NT) was invalid, that the bauxite ores and the land in which they existed had never ceased to belong to the natives, that the Mining (Gove Peninsula Nabalco Agreement) Ordinance 1968 (NT) and leases granted in that behalf by the Commonwealth were invalid, and accordingly, that the company's operations were unlawful. ⁽¹⁾

Leading counsel for the plaintiffs was A.E. Woodward, Q.C.  At the conclusion of his lengthy and exhaustive judgment, in which he found for the defendants, Mr Justice Blackburn remarked:

"I cannot help being especially conscious that for the plaintiffs it is a matter in which their personal feelings are involved".

The Blackburn judgment was handed down in April 1971.  Since then a great deal of work has been invested in attempts to construct a new "history" of Australian settlement which subverts that judgment.  Mr Justice Blackburn discussed at length the differences between the settlement of Australia and New Zealand.

"I have already suggested some of the historical explanation of the development in New Zealand of detailed laws relating to native occupancy of land.  Of some significance also was the series of Maori Wars which took place between 1865 and 1870.  I am not competent, nor is it necessary, to examine their effect upon the legislative policies which were adopted:  it is enough to say that one of the reasons for the fact that a system of native land law exists in New Zealand and does not exist in Australia is that in New Zealand the government had several times to wage armed conflict with organised bands of natives, which never occurred in Australia".

Since those words were penned it has been a constant ambition of left-wing historiography to establish, retrospectively, a permanent and organised insurrection, or war of resistance, by the Aborigines against the European settlers.

In the notorious Catholic Commission for Justice and Peace comic book of 1982, Mining!  A pictorial story of mining companies and how they get to mine Aboriginal land in Australia, subsequently withdrawn and pulped by Archbishop Clancy, we find

"Big battles were fought all over Australia for a long time, one in Brisbane lasted for 40 years.  The struggle against the invaders still goes on today ..."

Professor Henry Reynolds, of James Cook University, has been the chief architect of this new historiography.  His 1981 book, The Other Side of the Frontier:  Aboriginal Resistance to the European Invasion of Australia is an early example of the genre.  The blurb tells us:

"Using documents and oral evidence, much of it previously unpublished, Henry Reynolds sets out the Aboriginal reactions to the coming of the white man to Australia.  Contrary to conventional beliefs the Aborigines were not passive;  they resorted to guerilla warfare, sorcery, theft of white men's goods, crops and animals, retribution and revenge sallies, and the adaptation of certain of the newcomers' ways.  In presenting this material, Reynolds challenges us to reconsider not only our interpretation of our history, but also the implications for future relations between the peoples of Australia".

The purpose of all this endeavour only makes sense once the significance of the Blackburn judgment is Understood.

ATROCITY STORIES

As well as attacking the legal foundations of British settlement there has been a constant campaign of moral denigration.  The most extraordinary example was the particular atrocity propaganda piece which originated with Jan Roberts, in the book Massacres to Mining.

"The following story is recalled by Aborigines today.  It comes from the high country in north-east Victoria.  Old Mr Birt would tell it.  He had heard it from his mother who was of the Ya-idthma-dthang Tribe whose land lies from the centre of the high country north of the plains, including Benambra and Mt Buffalo.

My mother would sit and cry and tell me this:  they buried our babies in the ground with only their heads above the ground.  All in a row they were.  They then had a test to see who could kick the babies' heads off the furthest.  One man clubbed a baby's head off from horse-back.  They then spent most of the day raping the women, most of them were tortured to death by sticking sharp things like spears up their vaginas until they died.  They tied the men's hands behind their backs, then cut off their penis and testes and watched them run around screaming until they died.  They killed in other bad ways too.

I live because I was young and pretty and one of the men kept me for himself, but I was always tied up until I escaped into another land to the west".

This alleged quotation from old Mr Birt is footnoted, and the footnote reads:  "Account given anonymously to the author".

It is tempting to dismiss this story as pornographic fantasy, beneath contempt.  Nonetheless part of it was repeated by John Pilger on British television, and The Age television critic repeated it as accepted historical fact in her review of the program when it went to air here in Australia.  There can be no doubt that constant, un-rebutted repetition can turn fantasy into fact.  Many Australians, both of Aboriginal and European descent, accept this fantasy as fact, and very important international figures such as President Mitterand, and Prime Minister Lee Kuan Yew, have used alleged atrocities against the Aborigines as a means of diminishing Australia's reputation abroad.

Nations, as well as individuals, should be jealous of their reputation.  The Commonwealth Government should have raised a storm when John Pilger broadcast this nonsense on British television.  Failing that, the Opposition should have raised the roof in the Parliament.  Given the guilt problems underlying the Government's commitment to this treaty with the "Aboriginal people", the Government's silence on the Pilger scandal is part of a pattern.  The Opposition's silence is beyond understanding.

AN ABORIGINAL NATION

The most difficult part of the left's program for Aboriginal sovereignty, and the consequent partitioning of Australia, is to create, retrospectively, an Aboriginal "nation" which can claim sovereignty.  The Aboriginal flag, now adorning the Department of Aboriginal Affairs in Canberra (as if it were a foreign embassy) is a conscious and deliberate means of promoting a crucial symbol of nationhood.  The rewriting of history so as to call forth, at least on paper, an Aboriginal version of the Maori wars in New Zealand, is an attempt to create a national Aboriginal history.

The Aboriginal and Torres Strait Islanders Commission Bill, likewise, is an attempt to meld into one organisation, complete with elected representatives, all of the totally disparate tribal and mixed race Aborigines, together with the hostile and resentful Torres Strait Islanders.  (The Torres Strait Islanders called for their own independence on Australia Day this Bicentennial year).

This body, ATSIC, will presumably provide some "representatives" with whom the Government can sign a "treaty".  The preamble to the Bill, ⁽²⁾ the high point of Australia's guilt industry output, provides the rationale for a treaty.  Once the Parliament agrees to the words in that preamble, it will be extremely difficult for subsequent governments, unless prepared to display unusual and sustained resolve and political will over a considerable time, to reverse the momentum, and to wind down the expectations which that preamble creates.

Once the tragic implications of the ATSIC Bill, and the preamble to it, become more widely understood, and as the Senate's investigation into the administration of Aboriginal affairs develops, the Government may well decide to retreat from putting the Bill to the Senate, where the Democrats, at this stage, have promised support for its passage.  Every citizen who values the territorial integrity of this country, should strive to prevent the passage of the legislation.

What is at stake in all of this is the territorial integrity of Australia.  This is a priceless asset.  An Aboriginal sovereign state occupying the NT could hold Australia to ransom.  That is why the Bolshevik left (who for some inexplicable reason hate their own country) have nurtured this project for half a century.

ROLE OF THE CHURCHES

I have concentrated in this essay on referring to what I believe are the seminal sources of the ideas which have come together in the last 15 years or so as a demand for an Aboriginal treaty and a sovereign Aboriginal state.  As well as the hard left the role of the churches has been substantial.  However, this role has been a very recent one.  Sir Alan Walker, who 30 years ago was a noted Methodist evangelist and preacher of what he called "the social gospel", recently wrote an article in Church and Nation, from his perspective in retirement, in which he savagely attacked Australia's treatment and policies towards the Aborigines.

For such a noted churchman to discover in retirement, after a lifetime of preaching and exhortation, a new and dreadful social evil, suggests that we have, as a society, been captured by new and very curious ideas.

The great strength of Christianity is surely its enormous reservoir of theological and social understanding.  Every problem of human existence has been considered intensively by the greatest minds in our civilisation, of whom Augustine, Aquinas and Luther are but three.  The churches were at the forefront in Australia in missionary work with the Aborigines;  in demanding of the authorities that their conduct towards the Aborigines should be, whatever the difficulties, humane and civilised.  The churches' goal was that of a Christian Australia which included, in full citizenship, every Aborigine.

Christianity has, from St Paul on, been a missionary religion.  If it had not been so we in Australia would not be here, we would not be heir to Christianity, we would not enjoy the choices and freedoms and responsibilities we have been born into.  Given all this we can well ask why is it that the churches, Protestant and Catholic, should have taken up so enthusiastically and fervently the causes which the left pioneered over 50 years ago.  There is, to my knowledge, no satisfactory answer to this question.  Until an answer emerges it can only be regarded as a great cultural and religious mystery.

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NOTES

1.  Federal Law Reports [197117FLR].

2.  Printed in this booklet as Appendix 2 (Ed.).