The Mabo Decision overthrew the lie of terra nullius. It gave us a foundational truth that we had needed to move forward, ever since the first acts of our dispossession in 1788.
If reconciliation is to happen and have true meaning, we must – as a nation united – come to grips with and tell the truth about our past.
“There are moments in history where the sudden confluence of past and present events opens to a future of real possibility. I believe that moment is now.
Over the past 18 months, the global upheaval of the COVID-19 pandemic has brought into plain sight truths that for so long have been denied by those in power and authority – the truth of entrenched institutional discrimination, of marginalisation and the rampant growth of inequalities.
The now worldwide Black Lives Matter movement has shown us these truths in sharp relief, exposing to the world the inadequacies of our current systems, built upon a long and living history of racial injustices. In Australia, mass incarceration of our peoples, deaths in custody, the destruction of Juukan Gorge, and the bush fires that have torn through sacred land, are the painful consequences of systems that have failed, and too often refused, to incorporate our rights and lives into the fabric of this nation.
These truths laid bare, witnessed by humanity, cannot be unseen. It is in these moments of history when people everywhere begin to question our current structures and ways of operating, that we simply have no choice but to move forward in a different way. The option to return to what was before is no longer acceptable.
What do we want the future to be and how are we going to get there?
I am a fervent believer that to move forward with conviction we need to know where we have come from. We need to know how the footprints laid before us have brought us to this present, with all the power and potential of a nation reckoning with itself, its past and future identity – a reckoning that has been a long time coming.
Truth of the past can be hard to turn toward, but it can also give us clarity that all our fights – many hard won – have been worth it. That when we turn back without the haze of anger and disappointment, there are pillars in place that we have laid that can form the structures we need today.
For all of us who know and are engaged in the native title system, the technical details force us into a singular and restrictive focus. In attempting to make it work within its current requirements we forget the purpose and intention of native title and what it could still achieve.
The Mabo decision overthrew the lie of terra nullius. It gave us a foundational truth that we had needed to move forward, ever since the first acts of our dispossession in 1788. Ever since colonisation, the truth – that we have occupied these lands and waters since a time immemorial – was urgently needed to halt the perpetuation of grave injustices. We needed it, we thought, to set us on a path to right the wrongs of history through proper compensation, repatriation and reconnection, and the incorporation of Aboriginal and Torres Strait Islander rights and self-determination into the fabric of the Australian nation.
Mabo came at a moment in time when a fundamental reset in our relationship with Australian governments – a time of agreement-making – seemed imminent. In this way, native title was imagined not as an isolated set of rights regarding the use of our lands and waters, but as a key pillar in a broader settlement package.
Through an intense political debate, a compromise emerged with the passing of the Reconciliation Act, setting out a process to work through what settlement would be, and how a real, meaningful reconciled outcome could be achieved.
And when Paul Keating delivered his historic Redfern speech, post-Mabo and the handing down of the Royal Commission into Aboriginal Deaths in Custody, his words seemed to cement this inevitable future. His government of the day was committing to practical building blocks that would deliver justice and truly compensate the social, cultural, economic and spiritual destruction and generational disadvantage – the consequences of dispossession.
He said: “Mabo is an historic decision – we can make it an historic turning point, the basis of a new relationship between indigenous and non-Aboriginal Australians … there is nothing to fear or to lose in the recognition of historical truth, or the extension of social justice, or the deepening of Australian social democracy to include indigenous Australians. There is everything to gain.”
Native title should never have existed alone. It was always meant to be part of this big agenda of restitution and reconciliation that could lead to a real form of structural settlement with the Australian nation-state – one that included us all and absolutely our peoples whose native title rights were found to have been extinguished by the atrocities of colonisation and ongoing discrimination.
And so, in 2000 when the documents of reconciliation were presented, offering us a clear roadmap forward – notwithstanding the Government’s ‘10-Point Plan’ and its undermining of our native title rights from their highpoint in Wik – it was with hope for the future that we met the dawn of a new millennium.
I honestly believe that the Australian public was ready to embrace the truth – momentum was building. When we marched in 2001 in our tens of thousands, I felt a collective unity between our peoples and non-indigenous Australians. We were calling into being, step by step, a future we could all be proud of.
But the gates to the road ahead did not open as they should have at centenary.
Our call for Australia to reconcile was derailed into a so called ‘practical’ agenda. A bold new lie had taken hold and somehow the onus of responsibility was flipped and came to sit with Aboriginal and Torres Strait Islander peoples. We were expected to find a way to fit, without protest, into current structures, as if our grievances were holding back progression.
I cannot see any other way to reflect on this time than our political system was not ready, not brave enough to state the truth about the structural inequalities perpetuated for generations. It was political fear that blocked the road ahead – a sudden realisation of the structural implications of what the framework of reconciliation demanded: that governments had to do the hard work, not us – that they had to alter structures to guarantee our equal place in decision-making, to deliver just and full compensation, and that by doing this it would be impossible to proceed as we had gone before.
Still, despite the many roadblocks that did eventuate, and a native title system that is wholly inadequate, I cannot applaud our people enough and all our supporters – the so called ‘claimants’, ‘informants’, ‘applicants’, ‘lawyers’, ‘anthropologists’ and ‘advocates’. Against the odds and arduous court battles we pursued our rights and interests. Native title is now recognised over 40 per cent of the country and, collectively, we now have Indigenous tenure – that is, exclusive possession native title or freehold title – over 26 per cent of Australia’s landmass.
We have proven conclusively our foundational place – our tens of thousands of years of existence, occupation, our undeniable connection.
Through years of litigation and protracted legal processes we have heralded the post-determination era. However, there remains much to be determined.