tag:theconversation.com,2011:/au/topics/mabo-3124/articlesMabo – The Conversation2024-02-05T09:44:23Ztag:theconversation.com,2011:article/2227272024-02-05T09:44:23Z2024-02-05T09:44:23ZHow Lowitja O'Donoghue’s activism and leadership changed advocacy on Indigenous affairs in Australia<figure><img src="https://images.theconversation.com/files/573665/original/file-20240206-27-l01akv.jpeg?ixlib=rb-1.1.0&rect=318%2C541%2C3918%2C2274&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Dr Lowitja O'Donoghue. Her name and images have been used with permission.</span> <span class="attribution"><span class="source">Lowitja Institute</span></span></figcaption></figure><p><em>Aboriginal and Torres Strait Islander readers are advised this article contains the name and images of a deceased person.</em></p>
<p>In the many tributes that have flowed since the announcement of Lowitja O’Donoghue’s death on February 4 at age 91, many commentators have noted her leadership and commitment to public life over many years. </p>
<p>Of her many public roles, chairing the Aboriginal and Torres Strait Islander Commission (1990-2005) across the first six years of its life stands out. No other Indigenous leader has occupied a similar position before or since. </p>
<p>What can we learn from her leadership?</p>
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<h2>An activist and trailblazer</h2>
<p>Removed, marginalised and discriminated against from birth, in a country that refused to recognise her identity or aspirations, O'Donoghue’s political maturation came early when she moved to Adelaide to become a trainee nurse in the 1950s. </p>
<p>There she joined the <a href="https://www.naa.gov.au/students-and-teachers/learning-resources/learning-resource-themes/government-and-democracy/activism/aboriginal-activist-and-australian-year-lowitja-odonoghue">Aborigines Advancement League</a> and helped spearhead campaigns for civil rights. </p>
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Read more:
<a href="https://theconversation.com/indigenous-trailblazer-lowitja-odonoghue-dies-aged-91-222724">Indigenous trailblazer Lowitja O'Donoghue dies aged 91</a>
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<p>In 1967 she joined the Commonwealth Department of Aboriginal Affairs, <a href="https://www.reconciliation.org.au/dr-lowitja-odonoghue-ac-cbe-dsg-fearless-determined-nation-builder/#:%7E:text=She%20campaigned%20during%20the%201967,the%20Council%20for%20Aboriginal%20Reconciliation.">rising to become regional director</a> from 1975-79. In 1977, O'Donoghue was appointed the <a href="https://www.reconciliation.org.au/dr-lowitja-odonoghue-ac-cbe-dsg-fearless-determined-nation-builder/#:%7E:text=She%20campaigned%20during%20the%201967,the%20Council%20for%20Aboriginal%20Reconciliation.">inaugural chair</a> of the National Aboriginal Conference (NAC) and subsequently appointed as chair of the Aboriginal Development Commission. </p>
<p>She was also <a href="https://about.unimelb.edu.au/__data/assets/file/0026/15866/odonoghue.pdf">chair of Aboriginal Hostels Ltd</a> from 1982-90 and a founding member of the <a href="https://www.centreofdemocracy.sa.gov.au/milestone/council-of-aboriginal-women-of-south-australia/">Council of Aboriginal Women of South Australia</a>. </p>
<p>In 1984, she was commissioned by Aboriginal Affairs Minister Clyde Holding to consult with Indigenous communities about a new consultative organisation to replace the NAC. A key recommendation of her report was the establishment of regional assemblies across Australia, a model that became central to ATSIC.</p>
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<h2>Inaugural chair of ATSIC</h2>
<p>O'Donoghue was regarded as the logical choice for inaugural chair of ATSIC. A statutory body, combining representative, advisory and administrative functions, ATSIC was unlike all previous representative bodies for Indigenous Australians. </p>
<p>She <a href="https://nla.gov.au/nla.obj-1665754658/view?partId=nla.obj-1676422687#page/n33/mode/1up">steered a board</a> of 17 regional commissioners, along with an extra two commissioners appointed by the minister. There were also between 600 and 800 regional councillors (including chairpersons) in 35 regions across Australia, prosecuting a national position while catering to regional concerns. </p>
<p>She liaised with a chief executive and the minister, and an administrative wing of about 1,000 public servants. She and the board administered 50% of the federal government’s budget in Aboriginal affairs, dispensing <a href="https://nla.gov.au/nla.obj-1463013825/view?partId=nla.obj-1465906441">something in the order of</a> 6,000 grants to about 1,500 incorporated Indigenous organisations by the mid 1990s.</p>
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Read more:
<a href="https://theconversation.com/many-claim-australias-longest-running-indigenous-body-failed-heres-why-thats-wrong-209511">Many claim Australia’s longest-running Indigenous body failed. Here’s why that’s wrong</a>
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<p>O’Donoghue took to the task with gusto and hope. Her first order of business was steering a national Aboriginal response to the 1991 report of the <a href="https://digital-classroom.nma.gov.au/learning-modules/rights-and-freedoms-defining-moments-1945-present/118-1991-royal-commission-aboriginal-deaths-custody#:%7E:text=Its%20final%20report%2C%20tabled%20on,likely%20to%20be%20in%20custody.">Royal Commission into Aboriginal Deaths in Custody</a>, which she described as the “most important social document of the 20th century”. She attended as many regional council meetings as she could and, in an historic cabinet meeting in 1991, was among <a href="https://www.watoday.com.au/national/national-living-treasure-dedicated-to-improving-the-lives-of-aboriginal-and-torres-strait-islander-people-20210512-p57r7q.html?ref=rss&utm_medium=rss&utm_source=rss_feed">a small group that presented a report</a> to Paul Keating on Aboriginal priorities.</p>
<h2>Negotiating Mabo</h2>
<p>Not long after this, O'Donoghue was required to steer ATSIC’s response to the Mabo decision. This was no small task, as it unleashed a torrent of discontent across Australia and resistance in many quarters. </p>
<p>O’Donoghue, ATSIC and other Aboriginal representatives developed a list of bedrock demands. Compromises were made, but under O'Donoghue’s determined steerage, ATSIC hung on to several demands, notably the retention of the threatened Racial Discrimination Act.</p>
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Read more:
<a href="https://theconversation.com/australian-politics-explainer-the-mabo-decision-and-native-title-74147">Australian politics explainer: the Mabo decision and native title</a>
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<p>This was a highlight of her career, not least because it demonstrated that ATSIC was no “toothless tiger” and showcased the acumen of a rising Aboriginal political sector. </p>
<p>Later, ATSIC pushed for the development of a social justice package in order to cater to “the dispossessed” – the majority of Aboriginal people unable to benefit from native title law. </p>
<p>After extensive community consultation in conjunction with the Reconciliation Council, an historic document was produced, <a href="https://www.jstor.org/stable/44655637">Recognition, Rights and Reform</a>, calling for institutional , structural, collaborative and co-operative change. </p>
<p>Social justice was predicated on moving from welfare to rights, from dependency to autonomy and from government assistance to self-determination. A major theme in the report was a desire to redefine Indigenous Australians’ relationship with governments. ATSIC measured all its programs in terms of social justice. With this document, they hoped to achieve it by 2001.</p>
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<a href="https://images.theconversation.com/files/573666/original/file-20240206-19-l01akv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/573666/original/file-20240206-19-l01akv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/573666/original/file-20240206-19-l01akv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=456&fit=crop&dpr=1 600w, https://images.theconversation.com/files/573666/original/file-20240206-19-l01akv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=456&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/573666/original/file-20240206-19-l01akv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=456&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/573666/original/file-20240206-19-l01akv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=573&fit=crop&dpr=1 754w, https://images.theconversation.com/files/573666/original/file-20240206-19-l01akv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=573&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/573666/original/file-20240206-19-l01akv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=573&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Lowitja O'Donoghue was the first Aboriginal person to address the United Nations General Assembly in 1992, in Geneva.</span>
<span class="attribution"><span class="source">Lowitja O'Donoghue Collection</span></span>
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<h2>Taking Indigenous advocacy around the world</h2>
<p>In O'Donoghue’s papers in the National Library of Australia are several large bound volumes of her published speeches during her time at ATSIC, the writing and delivery of which constituted an important part of her advocacy. Particularly impressive is the diverse audiences she pitched to: the Royal Institute of Public Administration, various industry and professional associations, business and economic forums, health professionals, politicians and public servants. </p>
<p>She always impressed on her audience the immense task of ATSIC, reminding them of its political and financial constraints, and arguing that it would take time to turn around 200 years of dispossession.</p>
<p>She regularly spoke at the UN. In 1993, the international year of the world’s Indigenous peoples, she spoke at the World Conference on Human Rights at Vienna. She told her audience not to underestimate the serious nature of human rights abuses in Australia, <a href="https://catalogue.nla.gov.au/catalog/7860643">noting</a> that “as Aboriginal people we ask no more than the basic human right of being given the opportunity to determine our own future”. </p>
<p>In <a href="https://acuresearchbank.acu.edu.au/item/8v2wy/big-gubba-business-the-making-of-the-united-nations-declaration-of-the-rights-of-indigenous-peoples-first-nations-resurgence-and-the-australian-connection">his PhD thesis</a> on Indigenous engagement with the UN, Indigenous scholar Graeme La Macchia shows how in the development of the United Nations Declaration on the Rights of Indigenous Peoples, member states became anxious about words like self-determination. He shows how O'Donoghue held firm, arguing that nothing short of political self-determination and economic empowerment would suffice for the world’s Indigenous people.</p>
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<h2>A profound legacy</h2>
<p>In her <a href="https://catalogue.nla.gov.au/catalog/7860643">farewell address</a>, O'Donoghue described her time at ATSIC as intense, exhilarating and, at times, exhausting.</p>
<p>The final months of her tenure were marred by a hostile relationship to an incoming Coalition government looking to reform ATSIC, and a constant repetition of ATSIC’s alleged accountability crisis in the public domain, what she described as “the myth of the wasted millions”. </p>
<p>This did not detract from the fact that this Yankunytjatjara woman from Central Australia rose to become the longest-serving leader of the longest running Indigenous political organisation of the postwar era. </p>
<p>ATSIC was a pioneering institution, observed across the globe. We should know and remember her considerable contribution to this important part of our political history.</p><img src="https://counter.theconversation.com/content/222727/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alison Holland receives funding from the Australian Research Council (DP230100714 - Policy for Self-Determination: the Case Study of ATSIC) with Distinguished Professor Larissa Behrendt, Associate Professor Daryl Rigney, Dr Kirsten Thorpe and Lindon Coombes.</span></em></p>An activist from a young age, it was in her role as inaugural chair of ATSIC that O'Donoghue changed advocacy on Indigenous issues.Alison Holland, Associate Professor, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2127842023-09-17T20:00:45Z2023-09-17T20:00:45ZNo, the Voice to Parliament would not force people to give up their private land<figure><img src="https://images.theconversation.com/files/547387/original/file-20230911-27-7ildid.jpg?ixlib=rb-1.1.0&rect=85%2C18%2C2836%2C1976&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>In the polarised debate about the Voice to Parliament referendum, some proponents of the “no” vote have <a href="https://www.aap.com.au/factcheck/voice-legislation-does-not-authorise-a-land-grab/">claimed</a> the creation of the new advisory body would lead to the conversion of private land titles in Australia to native title. </p>
<p>The implication is that people will be forced to give up their land. This has sown fear among some Australians. </p>
<p>Last week, a false letter purporting to be from a member of the First Peoples’ Assembly of Victoria was distributed to homes in regional Victoria, saying the body was moving into the “next phase of reacquiring land”. The minister for Indigenous Australians, Linda Burney, <a href="https://www.theage.com.au/national/victoria/fake-letter-scaremongering-about-indigenous-land-claims-sparks-outrage-20230912-p5e43n.html">called</a> it a “another example of the dirty tricks campaign” being waged to sow doubt over the Voice referendum. </p>
<p>Similar concerns were raised following the High Court decision in the <a href="https://aiatsis.gov.au/explore/mabo-case">Mabo case</a> in 1992 and passage of the <a href="https://www.legislation.gov.au/Details/C2017C00178">Native Title Act</a> a year later. </p>
<p>Like the fear-mongering over the Mabo decision, the current alarm over the potential loss of private lands with a Voice to Parliament is unwarranted because this claim is manifestly incorrect. </p>
<p>There are two foundational legal reasons why: </p>
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<li><p>because of the words of the proposed constitutional amendment itself </p></li>
<li><p>and because of the way that native title works.</p></li>
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<h2>Would the proposed Voice have powers related to land?</h2>
<p>The proposed constitutional amendment that would create the Voice is very simple. It seeks to insert one new section into the Constitution, which reads: </p>
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<p>In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:</p>
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<li><p>there shall be a body, to be called the Aboriginal and Torres Strait Islander Voice;</p></li>
<li><p>the Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;</p></li>
<li><p>the Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.</p></li>
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Read more:
<a href="https://theconversation.com/10-questions-about-the-voice-to-parliament-answered-by-the-experts-207014">10 questions about the Voice to Parliament - answered by the experts</a>
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<p>The words clearly provide for only one activity to be undertaken by the Voice. The new body “may make representations” on matters relating to Aboriginal and Torres Strait Islander people. </p>
<p>There is no express or hidden power to either take people’s land or give land to First Nations people. The Voice is a committee that may provide advice to parliament and government on issues relating to First Nations people. That is all. </p>
<p>And this advice is not binding. The parliament of the day is free to ignore it, if it wishes to.</p>
<p>The new provision also gives one sole power to the parliament – it would have the capacity to set up the Voice. It is not possible to understand this provision as creating a special power to take people’s land, or to “convert” land to native title. </p>
<p>Importantly, the power to establish the Voice would not be given to the government – it would belong to parliament. In exercising this power, normal parliamentary processes will apply and the parliament will be accountable to the public. </p>
<p>There are no other changes to the Constitution proposed in this referendum.</p>
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<h2>How native title works</h2>
<p>In the famous Mabo case, the High Court found that the land title of Aboriginal and Torres Strait Islander people, held under their traditional law and custom, survived the introduction of British sovereignty over Australia.</p>
<p>Mabo confirmed native title can only be claimed over land where there is no interest in conflict with the exercise of this right. Native title will always give way to grants of exclusive land use. </p>
<p>Following this decision, the law now states that every grant of freehold land (“private” land) extinguishes native title. Further, in the later case of <a href="https://jade.io/article/68082">Fejo v Northern Territory</a>, the High Court confirmed that once native title has been extinguished, it cannot be revived.</p>
<p>Consequently, even if the constitutional change creating the Voice did (somehow) recognise native title, it is not possible to “convert” freehold land to native title. On private land, native title no longer exists under Australian law.</p>
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Read more:
<a href="https://theconversation.com/australian-politics-explainer-the-mabo-decision-and-native-title-74147">Australian politics explainer: the Mabo decision and native title</a>
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<p>To put these claims of “land conversion” in context, it is helpful to recall the public response to the Mabo decision.</p>
<p>Following the High Court judgement in Mabo, the mining industry ran a national campaign asserting that native title would threaten people’s back yards. The managing director of Western Mining, Hugh Morgan, <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=(Id:library/prspub/raf10);rec=0">said</a> the High Court’s decision </p>
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<p>put at risk the whole legal framework of property rights throughout the whole community. </p>
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<p>This campaign led to significant public fear about the effects of native title. </p>
<p>These claims about native title after Mabo were incorrect. Private landholdings have not been threatened. Indeed, on the ten-year anniversary of the Mabo decision, former Victorian Premier Jeff Kennett even <a href="https://www.theage.com.au/national/i-was-wrong-on-mabo-kennett-20020601-gdu9dt.html">admitted that his initial fears had been unfounded</a>.</p>
<p>In reading or listening to claims about the effect of the Voice, it is prudent to question the source of information. If you have questions, seek a reliable source to read the words of the proposed amendment and understand the objective of the constitutional change. If you hear of a claim that seems extreme, it may well be aimed at diverting the public’s attention from the real issues.</p>
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Read more:
<a href="https://theconversation.com/the-voice-to-parliament-explained-212100">The Voice to Parliament explained</a>
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<p class="fine-print"><em><span>Kate Galloway does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Some Voice opponents are claiming the new advisory body could lead to the conversion of private land title to native title. But this is not how native title law works.Kate Galloway, Associate Professor of Law, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1871102022-07-21T20:23:10Z2022-07-21T20:23:10ZFriday essay: 30 years after Mabo, what do Australia’s battler stories – and their evasions – say about who we are?<figure><img src="https://images.theconversation.com/files/475304/original/file-20220721-18-m6v206.png?ixlib=rb-1.1.0&rect=5%2C5%2C3988%2C1988&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> </figcaption></figure><p>The <a href="https://theconversation.com/australian-politics-explainer-the-mabo-decision-and-native-title-74147">Mabo decision</a> in 1992
was a turning point for Australia. It finally overturned the dishonest doctrine of <em>terra nullius</em> and recognised Indigenous land rights. It was a moment of hope, accompanied by a productive tension.</p>
<p>Mabo followed a decade in which awareness of the need to address Indigenous dispossession had grown. In the preceding years, sectors of the (white) settler population had begun to distance themselves from a triumphalist, uncritical view of the past. They had finally stopped looking away.</p>
<p>They had stopped looking away from shocking dispossession, disregard, and dismissal of the nation’s First Peoples. From the pretences of equality, a <a href="https://theconversation.com/in-australia-land-of-the-fair-go-not-everyone-gets-an-equal-slice-of-the-pie-70480">fair go</a> and <a href="https://theconversation.com/mateship-might-sound-blokey-but-our-research-shows-women-value-it-more-highly-than-men-169154">mateship</a>. From the flattening of intersections of identity such as <a href="https://theconversation.com/should-the-census-ask-about-race-its-not-a-simple-question-and-may-reinforce-racial-thinking-185295">race</a>, cultural backgrounds; and sexualities other than heteronormative. </p>
<p>An important cultural conflict, out in the open, seemed imminent. It would have been healthy.</p>
<p>Paul Keating broached some of that necessary conversation in the December 1992 <a href="https://antar.org.au/sites/default/files/paul_keating_speech_transcript.pdf">Redfern Park Speech</a>. Although that speech has been over-eulogised since, it was the first time that a prime minister used the pronoun “we”, naming settler Australians as the ones who needed to shift their attitudes and behaviour and take responsibility.</p>
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<figcaption><span class="caption">Paul Keating’s Redfern Park Speech was the first time a prime minister used “we”, recognising responsibility for invasion.</span></figcaption>
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<h2>‘Comfortable and relaxed’ evasion</h2>
<p>But the Mabo judgement also sparked a backlash which in 1996 contributed to the election of a new prime minister. John Howard immediately set about <a href="https://pmtranscripts.pmc.gov.au/release/transcript-10217">urging Australians</a> to feel “comfortable and relaxed” about the past. Howard shifted the “We” of Keating to “Us” (and “Them”). </p>
<p>Since then, Howard’s masterful weaponisation of “us and them” as a cornerstone of national identity has influenced debates in literary and artistic circles. He transitioned the Australian psyche from Menzies’ <a href="http://www.liberals.net/theforgottenpeople.htm">forgotten people</a> to Howard’s <a href="https://www.theage.com.au/national/howards-battlers-a-broad-church-20040519-gdxvk8.html">battlers</a> – who eventually became the Morrison <a href="https://en.wikipedia.org/wiki/The_quiet_Australians">quiet Australians</a> of the past four years. </p>
<p>Conservative governments have held office for the lion’s share of the 30 years since 1992. Their politicians have historically pitted those who are interested in advancing conversations (and genuine dialogues) around class, racial, and gendered equity against the “ordinary” Australian – usually still imagined as a white settler. </p>
<p>The robust public discussions around intersectionality, equity and diversity – along with social justice agendas and displays of ethnic identity and pride – that were coming to be considered healthy in a pre-Howard era were repositioned as a divisive “them” discourse. They still are.</p>
<p>I want to unwind the post-Mabo climate, and the continuing evasion legacy of the Howard years in settler writing, through examining some settler texts (the storytelling emerging from settler colonialism) spanning the late 1990s to where we are today, in 2022. </p>
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Read more:
<a href="https://theconversation.com/live-streamed-event-top-thinkers-explore-the-life-and-legacy-of-eddie-mabo-186543">Live-streamed event: Top thinkers explore the life and legacy of Eddie Mabo</a>
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<h2>The Castle, Mabo and Howard’s ‘Us-Australians’</h2>
<p>In 1997, a film hit Australian cinemas that nailed the Howard ethos and represented the “Us-Australians”. It set the blueprint for the largely flatliner, non-intersectional, evasive textual conversation to follow. The film was <a href="https://theconversation.com/straight-to-the-pool-room-a-love-letter-to-the-castle-on-its-25th-anniversary-176361">The Castle</a>. </p>
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<a href="https://images.theconversation.com/files/475083/original/file-20220720-26-kemjmq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="a man stands under a plane, hands on hips, in front of a house" src="https://images.theconversation.com/files/475083/original/file-20220720-26-kemjmq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/475083/original/file-20220720-26-kemjmq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=924&fit=crop&dpr=1 600w, https://images.theconversation.com/files/475083/original/file-20220720-26-kemjmq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=924&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/475083/original/file-20220720-26-kemjmq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=924&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/475083/original/file-20220720-26-kemjmq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1161&fit=crop&dpr=1 754w, https://images.theconversation.com/files/475083/original/file-20220720-26-kemjmq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1161&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/475083/original/file-20220720-26-kemjmq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1161&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The original 1997 film poster for The Castle.</span>
<span class="attribution"><span class="source">IMDB</span></span>
</figcaption>
</figure>
<p>The Castle is the story of the Kerrigan family – portrayed as an ordinary, clean-living, working-class family in western Melbourne. The family live in a ramshackle home they have built themselves, just a few metres from Melbourne Airport in Tullamarine. </p>
<p>When their family home is condemned by a building inspector and plans are revealed, showing that the property is to become part of a government-planned expansion of airspace, the family enter a legal battle to save their family home. The plot of the film revolves around this battle.</p>
<p>25 years on, the timing of this film and its post-Mabo message are worth unwinding.</p>
<p>The film’s narrative verifies gender binaries, heteronormativity, larrikinism, healthy scepticism, surface egalitarianism and manual-hands-on type jobs. It verifies minimal engagement with national/current affairs, mateship, and the great Aussie illusion of luck and chance. It reflects minimum diversity always matched with jibes at difference, masked as humour (e.g. “the wogs next-door”). And it valorises an attachment to the Australian dream of private property, represented through a small corner of Australia – the suburban backyard.</p>
<p>Comic as The Castle may be, its overt ideology can be interpreted critically as enacting a self-reflexivity on the part of the viewer: a <em>how-would-you-feel-if-you-were-the-Kerrigan-family</em> moment. It undermines the disengagement from politics, national and current affairs that was being encouraged from late 1990s Australia, which is still persistent in popular settler texts. But it also enacts a disengagement with “other Australians who don’t have any property to start with”. It’s a story for the propertied only.</p>
<p>Daryl Kerrigan makes a brief and fleeting reference to “knowing how the Aborigines feel”, in having land stolen. It’s poised as a statement spoken to the nation for brief consideration, as if Daryl is saying it for everyone. His wife’s dismissal with “have you been drinking?” and Daryl’s short rejoinder, “people have got to stop stealing other people’s land in this country”, are striking for the way the sentence is allowed to hang – inviting the rest of the “Us-Australians” to whom John Howard was talking to finish the statement. Moreover, the audience can.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/qFr2Gh6yIyQ?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Daryl Kerrigan’s reference to ‘knowing how the Aborigines feel’ in having their land stolen is poised as if for brief consideration.</span></figcaption>
</figure>
<p>I think it is no accident that the moment is poised and framed this way: to allow the viewer time for a quick mental calculation between their “little piece of Australia” and the vast tracts of Australian First Nations land that <a href="https://www.youtube.com/watch?v=GTtlHZxigOY">Howard’s government positioned</a> as “under threat from Native Title” when he used a pendulum to describe Australia’s swing towards recognition of First Nations sovereignty (and the need to address it through the 1996 <a href="https://pmtranscripts.pmc.gov.au/sites/default/files/original/00010323.pdf">Wik Ten-Point Plan</a>).</p>
<p>What doesn’t Daryl Kerrigan say? Where does he not go? Which people and whose land? Which land has got to stop getting stolen? And when it’s got to stop? And what of the intersections of identity, and the entanglements between First Nations peoples, settlers, and many different diasporas to Australia since – left unexplored in this statement, in this text – who have been largely evaded in Australian mainstream literature since?</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/GTtlHZxigOY?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">John Howard claimed on the 7.30 Report, in 1997, that 78% of Australia’s landmass was under threat from Native Title claims.</span></figcaption>
</figure>
<p>Also – how polite is the text? It’s the ultra-genteel working-class backbone of Australia on display. Howard ushered in, and his legacy left, an era of the dangerous politics of settler civility – the language of euphemism and evasion.</p>
<p>There’s nothing about the Kerrigan family that threatens the status quo of the “Australian Dream” and the mythscape of a united nation. </p>
<p>The Kerrigans’ challenge to the system is positioned as a healthy insurgence – the Kerrigans’ quarter acre is inconsequential to the state. Their win is positioned as a concession to a good family by a benevolent system. The film glorifies white crime as Aussie <a href="https://theconversation.com/the-larrikin-lives-on-as-a-conservative-politician-168464">larrikinism</a> – there’s a son in jail, a scene with a firearm, a scene where a truck is used to tear down someone’s front gate. </p>
<p>The film upholds a landmark case, for which and whose land (or property) really is sacred in post-Mabo Australia – and it’s not First Nations land. At a time when right-wing politicians and newspapers were arguing against native title, The Castle sold a story to a nervous nation that was quite reassuring.</p>
<p>Think about the casting. How would these roles fly with a family that’s anything other than white? What sort of appeal would the film have had (and still have) if the family at the centre, fighting for their piece of land, were Aboriginal? Or Lebanese? </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/475078/original/file-20220720-26-cklqel.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/475078/original/file-20220720-26-cklqel.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/475078/original/file-20220720-26-cklqel.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=296&fit=crop&dpr=1 600w, https://images.theconversation.com/files/475078/original/file-20220720-26-cklqel.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=296&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/475078/original/file-20220720-26-cklqel.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=296&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/475078/original/file-20220720-26-cklqel.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=371&fit=crop&dpr=1 754w, https://images.theconversation.com/files/475078/original/file-20220720-26-cklqel.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=371&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/475078/original/file-20220720-26-cklqel.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=371&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">How would the characters of The Castle – and their actions – play with a cast that wasn’t white?</span>
<span class="attribution"><span class="source">IMDB</span></span>
</figcaption>
</figure>
<p>Can you imagine the different reaction if a First Nations protagonist or a protagonist of Islamic heritage had pulled down the gates to someone else’s property in a tow-truck, or pulled a gun on someone? Would it be funny then? </p>
<p>Imagine a First Nations family being as relaxed as the Kerrigans are about their son – or anyone – being incarcerated. An audit of secondary social science and humanities curricula that I undertook in 2020 revealed that The Castle is the most taught text in units relating to identity and culture in Australian high schools. This film is a canonised text for Australian settler identity.</p>
<p>At the end of the Howard era, Australia’s Indigenous population was in a ruinous state. Australia’s extraordinary natural environment was threatened on numerous fronts, and its people were beginning to ask where the wealth had gone. Public schools and public health were in crisis, social welfare was decimated, housing was unaffordable for many, and wages and conditions were being cut under Howard’s industrial reforms.</p>
<p>At the height of the 2001 election, when 400 refugees were rescued from a sinking boat and left stranded in the tropical heat on the deck of the <a href="https://theconversation.com/australian-politics-explainer-the-mv-tampa-and-the-transformation-of-asylum-seeker-policy-74078">Tampa</a>, Howard publicly refused permission to land the refugees in Australia. His immigration and defence ministers claimed that refugees had thrown their children overboard, leading Howard to <a href="https://www.smh.com.au/opinion/a-bit-of-empathy-wouldnt-go-amiss-20040817-gdjkbs.html">declare</a>: “I don’t want people like that in Australia.” Only after the election was it proven that the government had known the claim was false. </p>
<p>Truth became an inconvenient detail from here on. We entered an era of <a href="https://theconversation.com/post-truth-politics-and-why-the-antidote-isnt-simply-fact-checking-and-truth-87364">post-truth</a>. The nation’s already murky relationship with its hidden truths – its <a href="https://theconversation.com/of-course-australia-was-invaded-massacres-happened-here-less-than-90-years-ago-55377">settlement by invasion</a>, massacre and cultural genocide, and the continued <a href="https://theconversation.com/why-australia-wont-recognise-indigenous-customary-law-60370">legal fiction of terra nullius</a> – were relegated to the spectre of irresolution that hangs over of the nation.</p>
<p>At the heart of the legacy of Howard’s 11-year era is an unease, and (dis) ease – something deeper that Australians would perhaps rather not admit. For a decade, Howard’s power had resided in his ability to speak directly and powerfully to the great negativity at the core of the Australian soul. Its timidity, its conformity, its fear of other people and new ideas. Its colonial desire to ape rather than lead – and its shame (which sometimes seems close to a terror) of the uniqueness of its land and people. </p>
<p>The country was frightened: unready for the great changes it must make, and ill-fitted for the robust debates it must have.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/post-truth-politics-and-why-the-antidote-isnt-simply-fact-checking-and-truth-87364">Post-truth politics and why the antidote isn't simply 'fact-checking' and truth</a>
</strong>
</em>
</p>
<hr>
<h2>Alexis Wright’s overtly political, ‘distinctly First Nations’ debut novel</h2>
<p>Released in 1997, the same year as The Castle, paralleling the narrative of “Us”, was <a href="https://www.uqp.com.au/books/plains-of-promise">Plains of Promise</a>, the debut novel by Waanyi writer <a href="https://theconversation.com/alexis-wright-wins-2018-stella-prize-for-tracker-an-epic-feat-of-aboriginal-storytelling-94906">Alexis Wright</a>. </p>
<p>Alexis’s work arrived with much less fanfare – it was neither subtle nor polite, amid its intricate plot and beautifully crafted words in the language of the coloniser. Plains of Promise spoke to the “Them” – those “other Australians” outside of the “Us” that Howard claimed to be governing for. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/475077/original/file-20220720-15-bud0gi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/475077/original/file-20220720-15-bud0gi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/475077/original/file-20220720-15-bud0gi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=896&fit=crop&dpr=1 600w, https://images.theconversation.com/files/475077/original/file-20220720-15-bud0gi.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=896&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/475077/original/file-20220720-15-bud0gi.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=896&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/475077/original/file-20220720-15-bud0gi.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1126&fit=crop&dpr=1 754w, https://images.theconversation.com/files/475077/original/file-20220720-15-bud0gi.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1126&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/475077/original/file-20220720-15-bud0gi.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1126&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
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<p>Plains of Promise is a story of mothers and daughters who endure and survive a series of colonial interventions. A story of the intergenerational trauma of separation, dispossession from land, and repeated sexual assaults of Aboriginal women at the hands of white men and black men who have internalised the worst of settler behaviours. The novel ends with a powerful allegory that alludes to a precarious future for First Nations peoples under conservative governments. </p>
<p>Wright’s narrative is a brutal parody of settler texts like The Castle, and the Howard-Australian mythscape that evoked Russell Ward’s <a href="https://insidestory.org.au/the-legend-turns-fifty/">Australian Legend</a> of egalitarianism, mateship, larrikinism, anti-intellectualism, and healthy, non-threatening anti-authoritarianism. </p>
<p>Plains of Promise posits an overtly political, distinctly First Nations, and determinedly fictional and literary account of Indigenous peoples’ experiences in Australia. It’s a text that writes at the <a href="https://theconversation.com/explainer-what-does-intersectionality-mean-104937">intersectionality</a> of racism, sexism, classism, ableism, chauvinism; and all that hover in the spectre of irresolution and dis-ease above the nation – and the bearing that these intersections and entanglements have on the First Nations, Waanyi protagonists of the novel. </p>
<p>With its particular focus on the way the intersections of sexism, classism, ableism, and racism impact the lives and futures of Waanyi women, Plains of Promise is the total antithesis of: <em>A man’s home is his castle!</em> Alexis achieves this through making First Nations identities visible and complex, and by highlighting ongoing colonial dispossession and struggles for land rights and recognition.</p>
<p>We are now living under the spectre of post-Howard euphemisms that locate truth as divisive. First Nations people are labelled as rude or confrontational if we point out cultural chauvinism in settler language or call out skin privilege or white fragility. Under Howard and his “Us-Australians”, charges of “identity politics” were levelled against “Them-Australians” – and identity politics were positioned as both anti-Australian and anti-art. This remains the case.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/read-listen-understand-why-non-indigenous-australians-should-read-first-nations-writing-78925">Read, listen, understand: why non-Indigenous Australians should read First Nations writing</a>
</strong>
</em>
</p>
<hr>
<h2>All writing is identity politics</h2>
<p>Attacks on <a href="https://theconversation.com/how-conservatives-use-identity-politics-to-shut-down-debate-89026">“identity politics”</a> and the construction of an ideological hard binary between ethnic identity and art and literature are legacies of post-Howardism. Yet the idea that any artwork or piece of literature is free of cultural value is mythical and warrants interrogation.</p>
<p>Some terms are used a lot, but rarely deconstructed – like the slippery charge of “identity politics” in art and literature. So, the scientists have been telling us for some time that <a href="https://sitn.hms.harvard.edu/flash/2017/science-genetics-reshaping-race-debate-21st-century/">the concept of race is dead</a>. I don’t dispute what it all looks like under a microscope, but socially and politically, the term and all its connotations are alive and well – in literature, art, music, policy. And the terms “race” and “culture” are conflated in Australian discourse. </p>
<p>Together, these words drive Australian national policy and historical discourse. The politics of race, the politics of skin privilege and the politics of representation have been cornerstones of Australian policy and practice since invasion. Literature is the handmaiden who tells this tale. White identity politics is the most dominant force of production in Australian settler literary culture. </p>
<p>Charges of identity politics impeding art have only entered the public space since First Nations people and people from culturally and linguistically diverse communities have infiltrated the space, and now use it and some of the “tools” it affords to tell their own tales – or stories. </p>
<p>These presences challenge the unspoken identity of white-settlerism and make identities explicit – and explicitly political, as they have been politicised in public discourse. Charges of “identity politics” come from those who now have to concede space – and see themselves represented, not always to their own liking, in someone else’s picture or story.</p>
<p>All creative pieces are identity politics in some way or other. All writing is identity politics: from a shopping list to a treatise on government and all in-between. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-black-lives-matter-movement-has-provoked-a-cultural-reckoning-about-how-black-stories-are-told-149544">The Black Lives Matter movement has provoked a cultural reckoning about how Black stories are told</a>
</strong>
</em>
</p>
<hr>
<h2>Popular settler texts, post-Mabo</h2>
<p>So, how am I reading the settler landscape of influential writing post-Mabo, and in the aftermath of Howardism? Influence is decided by the literary economy of prizes, and the public visibility of a text.</p>
<p>In the main, settler texts are still repurposed, largely intersectionless battler narratives, where the protagonists battle different obstacles depending on the times. Or, as Sujatha Fernandes put it so well in <a href="https://sydneyreviewofbooks.com/review/cummins-american-dirt-krien-act-of-grace/">her 2019 essay</a> for the Sydney Review of Books, they are “great white social justice narratives”. Though they may read as concern, really the writer should be yielding space for those they are so concerned about to speak, write or tell their own stories.</p>
<p>Popular settler literature in post Mabo-Australia (and literature on the border between literary and popular) still loves to be a “good battler narrative”. The best battler is the battler who succeeds. The one who is aspirational within a recognisable setting. </p>
<p>And the best battler narrative re-enforces a meritocracy and the myth of a classless, raceless, society, where intersectionality is irrelevant. It continues to erase deeper, more complex, and contested histories of place. It’s a place that flattens or erases intersectionality – racial/cultural background, orientation/sexuality (what is your pronoun?), age, ability, religion/spirituality, socio-economic class – and the complex and contested histories of place.</p>
<p>What can we learn about contemporary Australia from its popularly and critically acclaimed novels – and their success? This is a question that critics and reviewers have been reluctant to broach. Critics tend to avoid writing about popular works, as part of an intra-cultural cringe. </p>
<p>But by refusing to engage, they’re in danger of writing into a blinkered, self-informed space that reproduces a very narrow view of Australian national identity and the values it perpetuates in its literature.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-larrikin-lives-on-as-a-conservative-politician-168464">The larrikin lives on — as a conservative politician</a>
</strong>
</em>
</p>
<hr>
<h2>Trent Dalton’s superficial melting pot</h2>
<p>A popular writer is the public’s barometer. The optimistically conservative view of national identity – Australianness if you like – that was aired in The Castle 25 years ago has carried through to the popular literature of the moment. You only need to look at Trent Dalton. </p>
<p>Unlike many popular, big-selling Australian authors, Dalton’s writing has been listed for prestigious awards. His first novel, <a href="https://www.harpercollins.com.au/9781460757765/boy-swallows-universe/">Boy Swallows Universe</a>, was longlisted for the Miles Franklin Award in 2019. At the NSW Premier’s Prizes, it won the Glenda Adams Award for New Writing, and the People’s Choice Award, and was shortlisted for the Christina Stead Prize for Fiction. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/475079/original/file-20220720-12-sgbr12.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/475079/original/file-20220720-12-sgbr12.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/475079/original/file-20220720-12-sgbr12.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=926&fit=crop&dpr=1 600w, https://images.theconversation.com/files/475079/original/file-20220720-12-sgbr12.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=926&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/475079/original/file-20220720-12-sgbr12.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=926&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/475079/original/file-20220720-12-sgbr12.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1163&fit=crop&dpr=1 754w, https://images.theconversation.com/files/475079/original/file-20220720-12-sgbr12.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1163&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/475079/original/file-20220720-12-sgbr12.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1163&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<p>The plot of Boy Swallows Universe revolves around the coming of age of teenager Eli Bell – son of a heroin-addicted mother, an alcoholic father, a drug-dealing stepfather; and brother to Gus, an elective mute since age six. As the story unfolds, Eli overcomes many obstacles and learns much about being ‘street-wise’ from his babysitter Slim, a convicted murderer. The plot is driven by Eli’s largely individualistic quest to determine what a “good man” is.</p>
<p>Boy Swallows Universe <a href="https://sydneyreviewofbooks.com/review/dalton-shimmering-skies-boy-swallows-universe/">is apparently</a> the fastest-selling Australian debut novel ever published. With one exception I’ve found, reviewers have been laudatory. The labels of “literariness” could be because both Dalton’s works are laced with literary allusions, and brief and fleeting references to western classics. For example, an orphaned teenager, Molly, carries The Collected Works of Shakespeare in their duffle bag; Eli is well versed in the 20th-century white male canon, and often bursts into optimistic streams of consciousness, in a way that is meant to evoke <a href="https://theconversation.com/friday-essay-the-wonder-of-joyces-ulysses-79417">James Joyce</a>. </p>
<p>Such literary allusions and references reassure readers that these works and their protagonists are literary, despite the grungy realism of the settings; and that the western literary canon endures.</p>
<p>In the <a href="https://sydneyreviewofbooks.com/review/dalton-shimmering-skies-boy-swallows-universe/">one critical review</a> I could find (in the Sydney Review of Books), settler critic Catriona Menzies Pike described Dalton as the “Scott Morrison writer” of the decade. Howard’s “battlers” segues seamlessly into Morrison’s quiet Australians who <em>have a go to get a go</em>.</p>
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<a href="https://images.theconversation.com/files/475080/original/file-20220720-18-opd0m0.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/475080/original/file-20220720-18-opd0m0.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/475080/original/file-20220720-18-opd0m0.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=928&fit=crop&dpr=1 600w, https://images.theconversation.com/files/475080/original/file-20220720-18-opd0m0.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=928&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/475080/original/file-20220720-18-opd0m0.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=928&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/475080/original/file-20220720-18-opd0m0.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1166&fit=crop&dpr=1 754w, https://images.theconversation.com/files/475080/original/file-20220720-18-opd0m0.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1166&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/475080/original/file-20220720-18-opd0m0.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1166&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<p><a href="https://www.harpercollins.com.au/9781460759325/all-our-shimmering-skies/">All Our Shimmering Skies</a> is Dalton’s second novel. Set in Darwin in 1942, it’s about teenager Molly Hook’s quest to remove a curse she believes was cast on her family by an Aboriginal man called Longcoat Bob. To me as an Aboriginal reader, Longcoat Bob, penned in 2020, resonates with an ongoing colonial trope – that of the part-Aboriginal (sic) child, and the black witch-doctor-sorcerer stereotype in settler literature. From Marbuck in Charles Chauvel’s 1955 film <a href="https://www.imdb.com/title/tt0048227/">Jedda the Uncivilised</a> to Bobwirridirridi in Xavier Herbert’s Miles Franklin award-winning work <a href="https://www.harpercollins.com.au/9781460703243/poor-fellow-my-country/">Poor Fellow My Country</a> (published in 1975), through to Craig Silvey’s <a href="https://www.allenandunwin.com/browse/book/Craig-Silvey-Jasper-Jones-9781742372624">Jasper Jones</a>, 2009 – the trope lives on.</p>
<p>In Shimmering Skies, the “our” pronoun, in Dalton’s hands, becomes a conduit for a melting pot. Evoking the language of evasion and euphemism, a group of “diverse” people – whose differences are superficially and stereotypically represented throughout – can put all differences (which aren’t explored anyway) aside and unite under common symbols, traditions, and icons.</p>
<p>We’re given a painless, quick, sentimental version of <a href="https://theconversation.com/the-courage-to-feel-uncomfortable-what-australians-need-to-learn-to-achieve-real-reconciliation-183914">reconciliation</a> that basically involves finding aspects of settlement to celebrate – with no basis whatsoever for land rights or reparative justice. Readers are presented with chess-set characters in starry campfire scenes that bring together Yukio, a Japanese pilot; Greta, a woman of German heritage; Molly, an orphaned teen; and her Aboriginal friend Sam, as they discover their common humanity as bombs explode in the sky. </p>
<p>Catriona Menzies Pike <a href="https://sydneyreviewofbooks.com/review/dalton-shimmering-skies-boy-swallows-universe/">writes</a>:</p>
<blockquote>
<p>Dalton presents a national domain in which no obstacle is too great for an earnest and well-intentioned individual to overcome on their own. There is seemingly no ill in the world that can’t be sentimentalised by Dalton: prison life, addiction, violence, colonialism. There is no insight into contemporary life here, just fantasy built on nostalgia and dishonest nationalism.</p>
</blockquote>
<p>Boy Swallows Universe and All Our Shimmering Skies offer Hollywood endings, where kids haul themselves up and out of poverty and disempowerment, through strength of will and character. </p>
<p>These stories give literary and social value to a narrative that relies on and reinforces pernicious, dangerous, and untrue ideas about poverty and social marginalisation – mainly, that it requires nothing more than effort to get out of it. Socio-economic success and security simply become questions of individual moral fortitude, altruism, and determination. Systemic structural failures are not called into question.</p>
<p>The only role for First Nations and people of colour in Dalton’s national epic is to advance the plot. The people brought together under the shimmering skies are settlers. All Our Shimmering Skies wants a quick and easy, group-hug reconciliation – but the text doesn’t want to recognise the violence of settler colonialism and ongoing dispossession. </p>
<p>In his fiction, Dalton refuses to acknowledge that there’s anything structural about the suffering his characters must endure. There’s no room for state intervention or reform in these worlds. </p>
<p>Both works unequivocally disseminate the same intensely conservative vision of nationhood and identity as The Castle. </p>
<p>Ethnic and gender stereotypes abound – but as Menzies-Pike points out, the difficult questions about representation and cultural appropriation that are recently being asked of literary authors have not been raised in relation to Dalton’s fiction. Such issues are seldom raised in relation to popular fiction because it is too easily dismissed. </p>
<h2>Ignoring the popular makes us ‘part of the problem’</h2>
<p>Different sets of rules apply to popular (or genre) fiction and literary fiction. Definitions tend to centre around literary fiction being more driven by character and theme, while popular commercial fiction is driven by plot and lots of action – and distinguished by higher book sales. </p>
<p>Whether it is clever marketing on the part of publishers, or whether it is driven by intellectual snobbery and elitism, the divide between popular (or genre) and literary fiction leads to a disconnect between what is being read and internalised by the public, and what is being analysed as good literature. </p>
<p>This separation between “literature” and the rest of culture is unhelpful. Popular culture should be held to the same high standards as literary authors – which means that critics, academics and the rest of the self-selected elite need to properly engage with it. If they do, they will unpack what is driving its mass appeal.</p>
<p>Nurturing critical thinking is the responsibility of all of us who read literature and care about issues of representation. All of us who care about exposing and addressing structural inequalities and systematic discrimination. If we only focus on changing the “literary” culture we read, but ignore what mainstream Australia is reading, then we’re part of the problem of Australia’s continuing evasion discourse.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-courage-to-feel-uncomfortable-what-australians-need-to-learn-to-achieve-real-reconciliation-183914">The courage to feel uncomfortable: what Australians need to learn to achieve real reconciliation</a>
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</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/187110/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jeanine Leane receives funding from ARC grants. </span></em></p>What do popular ‘settler’ Australian stories like The Castle and Trent Dalton’s books say about who we are? What do they evade? Jeanine Leane investigates the state of post-Mabo Australian literature.Jeanine Leane, Associate Professor In Creative Writing, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1822182022-06-03T00:30:11Z2022-06-03T00:30:11ZOur business schools have a blindspot that’s hindering a more co-operative culture<figure><img src="https://images.theconversation.com/files/466874/original/file-20220603-19-s8wy6g.png?ixlib=rb-1.1.0&rect=0%2C0%2C3452%2C1848&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p><a href="https://tranby.edu.au/about-us/">Tranby</a> is an Indigenous adult education school in the inner-city Sydney suburb of Glebe. Founded in 1957, its graduates include Eddie Mabo, who went on to win the most significant land rights legal battle in Australian history – overturning the <a href="https://theconversation.com/australian-politics-explainer-the-mabo-decision-and-native-title-74147">fiction of terra nullius</a>. </p>
<p>What makes Tranby special is not just being Australia’s oldest not-for-profit independent Indigenous education provider. It is the type of education it provides – teaching the skills needed to manage organisations and communities democratically.</p>
<p>It teaches co-operation, and the skills to run co-operative organisations. </p>
<p>This makes it a rarity in business education. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/462935/original/file-20220513-16-ie8n95.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/462935/original/file-20220513-16-ie8n95.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/462935/original/file-20220513-16-ie8n95.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/462935/original/file-20220513-16-ie8n95.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/462935/original/file-20220513-16-ie8n95.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/462935/original/file-20220513-16-ie8n95.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/462935/original/file-20220513-16-ie8n95.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Tranby Aboriginal Co-Operative is Australia’s oldest Indigenous adult dducation provider.</span>
<span class="attribution"><a class="source" href="https://tranby.edu.au/">Tranby</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
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<p>Though co-operatives exist throughout Australian society, making a hugely valuable economic contribution, their distinctive nature and management requirements are largely ignored by university business schools. </p>
<p>This neglect is costing us all.</p>
<h2>Part of the social fabric</h2>
<p>Australia has a rich history of communities forming co-operatives to provide services where for-profit businesses or the state have been unwilling or unable. </p>
<p>They run shops and schools, offer banking and mortgage services, and provide housing and health services. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/more-affordable-housing-with-less-homelessness-is-possible-if-only-australia-would-learn-from-nordic-nations-182049">More affordable housing with less homelessness is possible – if only Australia would learn from Nordic nations</a>
</strong>
</em>
</p>
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<p>The first co-operative in Australia is thought to be the Brisbane Co-operative Society, which set up a store <a href="https://fed.coop/co-operatives-in-australia-a-manual/part-one-understanding-co-operatives/a-short-history-of-co-operatives/">in 1859</a>. </p>
<p>Over the next century came many agricultural co-ops. In the 1950s and 1960s, co-workers and communities pooled funds to form building societies and credit unions when banks were <a href="https://trove.nla.gov.au/newspaper/article/248213980?searchTerm=credit%20union">unwilling to lend money</a>.</p>
<p>More recently regional communities have established co-operatives to replace <a href="http://www.kerryanderson.com.au/blog/2019/12/14/royal-reopening">shuttered businesses</a>, to spearhead <a href="https://www.hepburnwind.com.au/about/in%20Victoria">renewable energy</a> and <a href="https://earthworkerenergy.coop/">manufacturing</a> projects, and to provide better conditions for <a href="https://redgumcleaning.coop/">cleaners</a> and <a href="https://lifecoop.com.au/">care workers</a>.</p>
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<img alt="When the northern Victorian town of Sea Lake was left without a pub after one hotel shut and the other burnt down, locals formed a co-operative to reopen and run the Royal Hotel." src="https://images.theconversation.com/files/465628/original/file-20220527-14-clxtv4.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/465628/original/file-20220527-14-clxtv4.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/465628/original/file-20220527-14-clxtv4.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/465628/original/file-20220527-14-clxtv4.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/465628/original/file-20220527-14-clxtv4.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/465628/original/file-20220527-14-clxtv4.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/465628/original/file-20220527-14-clxtv4.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">When the northern Victorian town of Sea Lake was left without a pub after one hotel shut and the other burnt down, locals formed a co-operative to reopen and run the Royal Hotel.</span>
<span class="attribution"><a class="source" href="http://www.kerryanderson.com.au/blog/2019/12/14/royal-reopening">Kerry Anderson</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
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<p>Co-ops range in size from small neighbourhood operations, such the <a href="https://www.gymeapreschool.com.au/">Gymea</a> community preschool in Sydney to major enterprises such as Cooperative Bulk Handling in Western Australia, which reported a <a href="https://www.cbh.com.au/media-releases/2021/12/cbh-group-annual-results-2021">$133 million surplus</a> in 2021. </p>
<p>All up there are more than <a href="https://coops4dev.coop/sites/default/files/2021-01/Australia%20Key%20Figures%20National%20Report.pdf">1,700</a> in Australia. It’s possible you’re a member of one – or a closely aligned “mutual” organisation (such as the NRMA or RACV). About <a href="https://australiainstitute.org.au/report/who-knew-australians-were-so-co-operative-the-size-and-scope-of-mutually-owned-co-ops-in-australia/">eight in ten</a> Australians are, yet fewer than two in ten realise it.</p>
<h2>Improving co-operative education</h2>
<p>This general lack of recognition is reflected by the sector’s almost complete invisibility in educational courses. </p>
<p>In 2016 a <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/Cooperatives/Report">Senate committee inquiry</a> found neglect of co-operative and mutual businesses in high-school and university courses was a clear impediment for the sector. </p>
<p>It could easily be concluded this neglect has also actively damaged the sector – notably through the 1980s and 1990s with “<a href="https://www.rba.gov.au/publications/bulletin/1999/jan/1.html">demutualisation</a>”
of big member-owned organisations such as AMP and the St George Bank. </p>
<p>This effectively involved privatising these organisations for the benefit of existing members, who got windfall profits at the expense of future members. </p>
<p>Demutualisation was pushed by managers and consultants educated in business, but not in the distinctive values of <a href="https://www.cambridge.org/core/journals/business-and-politics/article/abs/resistance-is-not-futile-cooperatives-demutualization-agriculture-and-neoliberalism-in-australia/31CAEE1EC5818C381527CA195082CB96">co-operative business</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-amp-and-ioof-went-rogue-102569">Why AMP and IOOF went rogue</a>
</strong>
</em>
</p>
<hr>
<p>They often regarded the co-operative and mutual structure as less competitive than an investor-shareholder model focused on maximising profits. </p>
<p>Subsequent developments have proven how flawed these assumptions were. <a href="https://theconversation.com/why-amp-and-ioof-went-rogue-102569">AMP</a>, for example, featured heavily among the wrongdoings exposed by the Hayne royal commission into financial services. No co-operative or mutual business did.</p>
<h2>Levelling the playing field</h2>
<p>The Senate inquiry report recommended the federal government look to improve understanding of co-operatives and mutual through secondary school curriculum. It also recommended universities include topics on co-operatives in their business and law programs. </p>
<p>In 2017 the University of Newcastle established Australia’s first postgraduate program in co-operative management and organisation. </p>
<p>But it <a href="https://bccm.coop/wp-content/uploads/2021/07/Developing-a-Pedagogy-for-Co-operative-Education-in-Australia-Report.pdf">axed the program</a> in 2020 due to pandemic-related cutbacks and insufficient student numbers.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-its-time-for-business-schools-to-radically-rethink-the-mba-55722">Why it's time for business schools to radically rethink the MBA</a>
</strong>
</em>
</p>
<hr>
<p>Now, apart from the University of Sydney’s <a href="https://www.sydney.edu.au/business/our-research/research-groups/co-operatives-research-group.html">Co-operatives Research Group</a> and the University of Western Australia’s <a href="https://www.able.uwa.edu.au/centres/ceru">Co-operative Enterprise Research Unit</a>, the landscape is bare.</p>
<p>What’s needed are both specialist courses and recognition within general business or law courses. You’d be hard placed to find a business degree that gives co-operatives more than fleeting attention. </p>
<p>The focus instead is on individual entrepreneurship, investor-owned businesses and vague ideas of social business. </p>
<h2>Economic viability with social responsibility</h2>
<p>The 2016 Senate inquiry report noted co-operatives have an important economic role to play. They increase competition in highly concentrated markets (such as banking). They provide services in areas where investor-owned or state enterprises do not work.</p>
<p>It singled out <a href="https://tranby.edu.au">Tranby College</a> as an excellent example of what can be achieved – both for members and the broader community:</p>
<blockquote>
<p>Evidence suggests the co-operative model is ideal in delivering services in remote areas, such as Indigenous communities, where issues can be complex and service provision through the private sector is often not suitable or available.</p>
</blockquote>
<p>As former United Nations secretary-General Ban Ki-moon <a href="https://social.un.org/coopsyear/">has said</a>, co-operatives show “it is possible to pursue both economic viability and social responsibility”.</p>
<p>It is important students at all levels be aware of what makes co-operative businesses different and valuable. </p>
<p>Hopefully the Albanese government will not neglect them. They have a lot to offer communities and reinforce democratic values.</p><img src="https://counter.theconversation.com/content/182218/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gregory Patmore received funding from the Australian Research Council Discovery Program (DP170100573) for the main research underlying this contribution and has received funding from the Business Council of Co-operatives and Mutuals for a specific project on COVID-19 and co-operatives. </span></em></p>Australia has a rich history of community co-ops – from small neighbourhood preschools, to major enterprises with $100 million-plus profits. So why do our business schools largely ignore them?Gregory Patmore, Emeritus Professor of Business and Labour History, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1713842021-11-10T02:21:42Z2021-11-10T02:21:42ZWhy the Australian government must listen to Torres Strait leaders on climate change<figure><img src="https://images.theconversation.com/files/430960/original/file-20211109-23-1sbwiqv.png?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Paul Kabai and Pabai Pabai.</span> <span class="attribution"><span class="source">Talei Elu</span></span></figcaption></figure><p>Last month, First Nations leaders Pabai Pabai and Paul Kabai <a href="http://climatecasechart.com/climate-change-litigation/non-us-case/pabai-pabai-and-guy-paul-kabai-v-commonwealth-of-australia/">filed a landmark class action</a> against the Australian government to protect communities in the Torres Strait from climate change.</p>
<p>In the Torres Strait, First Nations communities are facing an <a href="https://theconversation.com/torres-strait-islanders-face-more-than-their-fair-share-of-health-impacts-from-climate-change-165388">existential threat</a> as the planet warms. Rising seas are already inundating infrastructure and cultural sites, and some islands may be uninhabitable by the end of the century causing devastating harm to Torres Strait Islander Peoples and Ailan Kastom culture.</p>
<p>Mr. Pabai and Mr. Kabai have seen the impacts first hand. They have filed their class action to protect over 65,000 years of connection to land. Mr. Kabai has <a href="https://www.gratafund.org.au/climate_case_release">described</a> the class action as answering their responsibility to community and culture.</p>
<blockquote>
<p>We have a cultural responsibility to protect our communities, our culture and spirituality from climate change – for our ancestors and future generations.</p>
</blockquote>
<p>Mr. Pabai and Mr. Kabai are part of a proud history of Torres Strait Islander Peoples fighting for their rights through the courts. They draw on the legacy of Eddie Mabo and his co-plaintiffs James Rice and David Passi, who took on the government and established that <a href="https://australianstogether.org.au/discover/australian-history/mabo-native-title/">terra nullius was a lie</a>, paving the way for Native Title recognition as we know it today.</p>
<p>Mr. Kabai and Mr. Pabai are also part of the foundational tradition of First Nation stewardship of land and water. As Traditional Owners, their knowledge and protection of Country is vital to tackling climate change.</p>
<p>Indigenous Peoples have always known this. Our communities have adapted and thrived together by caring for country for countless generations. The scientific community has only recently caught up. </p>
<p>In 2019, the <a href="https://ipccresponse.org/home-en">Intergovernmental Panel on Climate Change</a> recognised Indigenous Peoples, our knowledge and rights to land and water are key to tackling climate change.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1453280288176590859"}"></div></p>
<h2>Pabai and Kabai’s case</h2>
<p>In their class action, Mr. Pabai and Mr. Kabai will argue the Australian government has a duty to protect the people, islands, and culture of the Torres Strait. The duty arises from the common law of negligence, the <a href="http://www.tsirc.qld.gov.au/community-entry-forms/treaty-png-border-movements">Torres Strait Treaty</a> (between Australia and Papua New Guinea, providing protection for the way of life of traditional peoples of the Torres Strait Protected Zone), and the Native Title rights of Torres Strait Islander Peoples.</p>
<p>The legal rights Torres Strait Islander Peoples hold as Traditional Owners of their lands and waters are central to Mr. Kabai and Mr. Pabai’s case. As is their deep spiritual and personal connection to the islands. </p>
<p>Mr. Kabai has further <a href="https://www.sbs.com.au/news/why-these-torres-strait-islanders-are-filing-a-class-action-against-the-australian-government/4d420d1a-2752-4f7c-bb2f-bbb898aae764">detailed</a> that if the government’s climate failure continues they will lose everything. </p>
<blockquote>
<p>Becoming climate refugees means losing everything: our homes, our culture, our stories and our identity […] If you take us away from this island then we’re nothing. It’s like the Stolen Generation, you take people away from their tribal land, they become nobodies. </p>
</blockquote>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/430981/original/file-20211109-17-yee01y.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A cross in front of ocean." src="https://images.theconversation.com/files/430981/original/file-20211109-17-yee01y.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/430981/original/file-20211109-17-yee01y.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/430981/original/file-20211109-17-yee01y.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/430981/original/file-20211109-17-yee01y.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/430981/original/file-20211109-17-yee01y.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/430981/original/file-20211109-17-yee01y.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/430981/original/file-20211109-17-yee01y.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Boigu, Torres Strait.</span>
<span class="attribution"><span class="source">Talei Elu</span></span>
</figcaption>
</figure>
<p>The Australian government’s responsibility to Torres Strait Islander Peoples comes from the particular vulnerability of their communities to climate harms like sea level rise. <a href="https://www.theguardian.com/world/2021/oct/11/norway-court-rules-two-windfarms-harming-sami-reindeer-herders-turbines-torn-down">Similar arguments</a> have been made and won by the Sami people in Norway to protect their rights as part of climate change mitigation. Although in different legal and political contexts, both Indigenous rights and climate action are entrenched, structural priorities.</p>
<p>Mr. Pabai and Mr. Kabai will argue the government’s failure to reduce emissions will extinguish the Native Title rights of Torres Strait Islander Peoples as their traditional lands are lost beneath rising seas.</p>
<p>In court, they will urge the government to take pre-emptive steps to stop climate change impacts from destroying their islands – and with them, over 65,000 years of custom and culture protected by Native Title.</p>
<p>The government’s responsibility to act is also said to come from legal protections provided by the Torres Strait Treaty. Australia entered into the Treaty with Papua New Guinea in 1978, after grassroots political pressure from Torres Strait Islander leaders like Getano Lui Snr.</p>
<p>The Treaty created a protected zone to acknowledge and protect the traditional way of life of Torres Strait Islander Peoples and requires the Australian government to prevent damage to the marine environment of the Torres Strait.</p>
<p>These protections exist to preserve the deep spiritual connection First Nations communities have to their islands and waters.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/430963/original/file-20211109-17-u0jccz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A concrete seawall." src="https://images.theconversation.com/files/430963/original/file-20211109-17-u0jccz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/430963/original/file-20211109-17-u0jccz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/430963/original/file-20211109-17-u0jccz.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/430963/original/file-20211109-17-u0jccz.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/430963/original/file-20211109-17-u0jccz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/430963/original/file-20211109-17-u0jccz.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/430963/original/file-20211109-17-u0jccz.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A concrete seawall in the Torres Strait protecting against rising sea levels.</span>
<span class="attribution"><span class="source">Talei Elu</span></span>
</figcaption>
</figure>
<p>The importance of this connection to Country has been recognised by the High Court. In 2019, the court found the Northern Territory government was <a href="https://www.hrlc.org.au/human-rights-case-summaries/2019/7/23/high-court-recognises-significance-of-cultural-and-spiritual-loss-in-native-title-decision">responsible for spiritual hurt</a> caused to Ngaliwurru and Nungali native title holders by the building of roads and infrastructure on their traditional lands.</p>
<p>It is this combination of legal rights – unique to Torres Strait Islander Peoples – that Mr. Pabai and Mr. Kabai will rely on to ask the court to create a new duty of care.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-climate-change-activists-can-learn-from-first-nations-campaigns-against-the-fossil-fuel-industry-165869">What climate change activists can learn from First Nations campaigns against the fossil fuel industry</a>
</strong>
</em>
</p>
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<h2>Recent developments</h2>
<p>Earlier this year, the <a href="https://theconversation.com/in-a-landmark-judgment-the-federal-court-found-the-environment-minister-has-a-duty-of-care-to-young-people-161650">Federal Court found</a> a novel duty of care not to cause climate harm to young people. The Court found that the minister for the environment had a responsibility to take reasonable care to avoid harm to children caused by greenhouse gas emissions when exercising her power to approve new coal mining.</p>
<p>Mr. Pabai and Mr. Kabai’s case is the first of its kind because it argues a far broader case: that the Australian government has a duty to protect the Torres Strait from climate harm.</p>
<p>While this may sound ambitious, these kinds of cases have worked before. Most notably, in the Netherlands, where the <a href="https://www.urgenda.nl/en/home-en/">Urgenda Foundation</a> and 886 people took the Dutch government to court for climate inaction – and won.</p>
<p><a href="https://www.urgenda.nl/en/home-en/">The Urgenda Foundation</a> has partnered with Mr. Pabai and Mr. Kabai on their case, and the circumstances are similar. Both communities live on land perilously exposed to rising sea levels and face severe harm from climate change.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/if-governments-fail-to-act-can-the-courts-save-our-planet-170713">If governments fail to act, can the courts save our planet?</a>
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<h2>A legacy of nation shaping</h2>
<p>First Nations communities have a history of bringing legal cases vital to the development of Australian law. Often against the odds.</p>
<p>Mabo’s legal victory placed the Torres Strait at the centre of a transformation in the way the Australian nation places itself in a long history of Indigenous ownership and connection. Mr. Kabai and Mr. Pabai are inspired by that legacy.</p>
<p>As world leaders meet in Glasgow for the COP26 climate summit, billed as a “last chance” for real climate action, Mr. Pabai and Mr. Kabai are asking the Australian government to step up and stop causing harm.</p>
<p>Their class action could prevent extreme climate harm for all Torres Strait Islander Peoples, and all Australians. </p>
<p>It is a vitally important case. It is also an action taken by traditional owners that highlights our continued commitment to country over countless generations, a commitment that is a proven practice of providing for all of existence.</p><img src="https://counter.theconversation.com/content/171384/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eddie Synot does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>First Nations leaders Pabai Pabai and Paul Kabai filed a landmark class action against the Australian government to protect communities in the Torres Strait from climate change.Eddie Synot, Lecturer, Griffith Law School, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1201622019-07-10T20:16:46Z2019-07-10T20:16:46ZThe new Mabo? $190 million stolen wages settlement is unprecedented, but still limited<p>The Queensland government’s in-principle agreement to <a href="https://www.theguardian.com/australia-news/2019/jul/09/indigenous-workers-receive-190m-stolen-wages-settlement-from-queensland-government">pay A$190 million</a> in compensation for the wages withheld from more than 10,000 Indigenous workers is a watershed moment for the stolen wages movement. </p>
<p>Indigenous people across Australia have been fighting for their denied and withheld wages for decades, both on the streets and in the courts. There have been some victories along the way and many setbacks. </p>
<p>The significance of the Queensland settlement (to settle a class action) is that it marks the first recognition these claims have legal as well as moral and political merit. Its ramifications are potentially limited, however, given the full injustice of how Indigenous wages were stolen.</p>
<h2>A significant contribution</h2>
<p>Historically Aboriginal and Torres Strait Islander men and women found work in farming, mining, roadbuilding, irrigation, fencing, gardening, pearling, sealing, fishing and domestic duties. But they were most concentrated in the cattle industry of northern Australia, from Western Australia to Queensland. </p>
<p>Tens of thousands worked on cattle stations from the 1880s to 1970s. The beef industry could not have survived without them. In 1913, the federal government’s Chief Protector of Aborigines, Baldwin Spencer, noted that “under present conditions, the majority of cattle stations <a href="https://aiatsis.gov.au/sites/default/files/docs/digitised_collections/remove/58926.pdf">are largely dependent</a> on the work done by black "boys”. In the 1930s, when the rest of the economy floundered in the Great Depression, Indigenous labour helped keep the industry profitable. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/283466/original/file-20190710-44457-z0sszv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/283466/original/file-20190710-44457-z0sszv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=590&fit=crop&dpr=1 600w, https://images.theconversation.com/files/283466/original/file-20190710-44457-z0sszv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=590&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/283466/original/file-20190710-44457-z0sszv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=590&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/283466/original/file-20190710-44457-z0sszv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=742&fit=crop&dpr=1 754w, https://images.theconversation.com/files/283466/original/file-20190710-44457-z0sszv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=742&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/283466/original/file-20190710-44457-z0sszv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=742&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Cattlemen at Victoria River Downs Station, Northern Territory, in 1953.</span>
<span class="attribution"><span class="source">Frank H. Johnston/National Library of Australia</span></span>
</figcaption>
</figure>
<h2>Systemic stealing</h2>
<p>Indigenous workers were entitled to be paid two-thirds of other workers, but even then employers often paid them less. Sometimes the low value of their wages was disguised by being paid in food and <a href="http://www.austlii.edu.au/au/journals/AUIndigLawRw/2007/3.html">clothing rations</a>. Sometimes workers were provided “store credit”, which could only be used to buy <a href="https://www.smh.com.au/national/unfinished-business-of-wages-at-wave-hill-20071215-gdrt77.html">exorbitantly priced items</a>. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/friday-essay-the-untold-story-behind-the-1966-wave-hill-walk-off-62890">Friday essay: the untold story behind the 1966 Wave Hill Walk-Off</a>
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<p>Station managers may have justified under-payment on the basis they were “caring” for workers through providing scant food, clothing and accommodation. </p>
<p>Governments, meanwhile, “withheld” income – often putting money into trust funds that Indigenous people were <a href="https://www.aph.gov.au/%7E/media/wopapub/senate/committee/legcon_ctte/completed_inquiries/2004_07/stolen_wages/report/c04_pdf.ashx">unable to access</a>. The Queensland government’s $190 million offer is to settle a class action claim for it misappropriating such trust funds.</p>
<p>The fact Indigenous people were vulnerable to such exploitation for decades was made possible by an intricate legislative regime that gave the state expansive powers over their lives. In all states and territories, Aboriginal Protection Acts gave the government officials the power to <a href="https://www.cla.asn.au/Article/2009/ThaliaStolenWages0809.pdfp">control the money</a> earned by Indigenous workers.</p>
<p>In Queensland, historian <a href="https://www.austlii.edu.au/au/journals/AUIndigLawRw/2007/85.pdf">Rosalind Kidd has estimated</a> that 4,500 to 5,500 Indigenous pastoral workers may have lost wage entitlements worth more than $500 million between 1920 and 1968.</p>
<h2>Redress schemes</h2>
<p>There have been redress schemes in Western Australia, Queensland and New South Wales. </p>
<p>The Queensland government set up the first redress scheme in 2002. It set aside $55.6 million to compensate any individuals who could supply documentary evidence their wages or savings were taken by the Queensland government. If they could do so – and there was a deadline of 2006 on claims – the scheme provided an <em>ex gratia</em> payment of $2,000 to $4,000.</p>
<p>These conditions set a high bar, and $21 million went unclaimed. </p>
<p>Western Australia established its scheme in 2012. It also involved a small <em>ex gratia</em> payment ($2,000) with a limited window to make claims. Claimants called the scheme <a href="http://classic.austlii.edu.au/au/journals/PrecedentAULA/2013/70.pdf">insulting and mean-spirited</a>. The ABC <a href="https://www.abc.net.au/radionational/programs/backgroundbriefing/was-stolen-wages-shame/6740068">reported a source</a> that said state treasury officials agreed individuals were owed as much as $78,000, and the government kept the work of its stolen wages taskforce quiet for years, waiting for potential claimants to die. </p>
<p>In distinction to these two schemes, the NSW Trust Funds Repayment Scheme (2006 and 2010) <a href="https://www.aph.gov.au/%7E/media/wopapub/senate/committee/legcon_ctte/completed_inquiries/2004_07/stolen_wages/submissions/sub92_pdf.ashx">matched the wages</a> withheld in trust funds between 1900 and 1969. It paid $3,521 for every $100 owed, or an $11,000 lump sum where the amount could not be established. This was the closest model to a reparations scheme, though also inhibited by bureaucratic requirements and time limitations.</p>
<p>Due to the limitations of all these state redress schemes, in 2006 a Senate Inquiry into Stolen Wages recommended a <a href="https://www.aph.gov.au/%7E/media/wopapub/senate/committee/legcon_ctte/completed_inquiries/2004_07/stolen_wages/report/report_pdf.ashx">national scheme</a>. But no federal government since has acted on this recommendation. </p>
<h2>Legal claims</h2>
<p>Stolen wages claimants have taken their cases to court in Western Australia, New South Wales and Queensland – but it is only in Queensland that they have had some success. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australias-stolen-wages-one-womans-quest-for-compensation-95676">Australia's stolen wages: one woman's quest for compensation</a>
</strong>
</em>
</p>
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<p>One of those is the case of <a href="http://www5.austlii.edu.au/au/journals/BalJlNTLawSoc/2007/40.pdf">James Stanley Baird</a>, who sued the Queensland government for withheld wages on the basis that paying under-award wages to Indigenous workers was in breach of the <a href="https://www.legislation.gov.au/Details/C2016C00089">Racial Discrimination Act 1975</a>. The state government compensated Baird and other plaintiffs the difference owed to them in damages and provided an apology.</p>
<h2>Implications</h2>
<p>The current settlement is based on a legal claim that the Queensland government breached its duty as a trustee and fiduciary in not paying out wages that were held in trust. The outcome is the most significant repayment for stolen wages plaintiffs in Australian history. Yet the benefits may be confined. </p>
<p>First, in Queensland there is a rich archive of documents (substantially unearthed and analysed by historian Rosalind Kidd) to prove the government misappropriated funds. Such a record may not exist elsewhere. </p>
<p>Second, the settlement only applies to wages placed in “trust accounts”. It has no implications for wages denied to Indigenous workers in other ways, such as by private employers who booked down wages or otherwise refused to pay.</p>
<p>For justice for all wronged Indigenous workers, there needs to be broad-based reparations for stolen wages. This requires truth commissions and a commitment by governments and anyone else that profited from that theft to restore what is owed.</p><img src="https://counter.theconversation.com/content/120162/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thalia Anthony receives funding from the Australian Research Council.</span></em></p>Queensland’s payment to settle a stolen wages class action marks the first recognition that these claims have legal as well as moral and political merit.Thalia Anthony, Associate Professor in Law, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/947242018-04-15T20:15:32Z2018-04-15T20:15:32ZWhy our declining biblical literacy matters<figure><img src="https://images.theconversation.com/files/214422/original/file-20180412-592-sy3x6n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Songwriters such as Nick Cave (pictured) and the late Yolngu star Gurrumul have often drawn on the scriptures in their work.</span> <span class="attribution"><span class="source">Paul Bergen/EPA</span></span></figcaption></figure><p>Biblical literacy is likely lower in Australia today than at any point since the convict era. General levels of familiarity with the Christian scriptures are difficult to plot precisely, but studies of Bible reading habits, and data on various forms of Christian socialisation, indicate a significant decline in Australians’ exposure to the Bible over the last half century.</p>
<p>A 1960 study found that nine in ten Australians had a Bible at home. It was rivalled only by a cookery book and a dictionary, and far outstripped works by Shakespeare. Sixty one per cent of Bible-owning Australians picked it up at least once a year. Thirty eight per cent had read it within the previous two weeks. (Mind you, it seems that apart from the most regular churchgoers, most people read the Bible in a cursory manner if at all.)</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/jesus-wasnt-white-he-was-a-brown-skinned-middle-eastern-jew-heres-why-that-matters-91230">Jesus wasn't white: he was a brown-skinned, Middle Eastern Jew. Here's why that matters</a>
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<p>A 2002 survey found that 29% of Australian adults still read the Bible at least once a year, with 8% reading it frequently. In 2010, <a>around 10% of Australian secondary students read the Bible weekly or more,</a> and a further 15 to 20% browsed it occasionally.</p>
<p>Overall, though, since 1960 the proportion of annual Bible readers has dropped by half, and regular readers by three-quarters. In less than two generations, the proportion of Australians who never pick up a Bible for themselves has leapt to seven out of ten. The rising use of online Bibles and Bible apps may modify this picture, but <a href="McCrindle%20Research,%20%E2%80%98Bible%20reading%20not%20dead%20in%20Australia%E2%80%99,%202014,%20<www.mccrindle.com.au/resources/Bible-Reading-in-Australia_McCrindle-Research_Blog.pdf>">2013 data</a> indicates that Australians read less of the Bible online than their counterparts in the UK or the US.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/214410/original/file-20180412-560-vzr2j8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/214410/original/file-20180412-560-vzr2j8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/214410/original/file-20180412-560-vzr2j8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/214410/original/file-20180412-560-vzr2j8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/214410/original/file-20180412-560-vzr2j8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/214410/original/file-20180412-560-vzr2j8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/214410/original/file-20180412-560-vzr2j8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/214410/original/file-20180412-560-vzr2j8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A working knowledge of the Bible, and a critical skill in interpreting it, remain extremely useful in a secular society.</span>
<span class="attribution"><span class="source">shutterstock</span></span>
</figcaption>
</figure>
<p>In parallel with declining Bible reading, fewer Australians identify as Christian at the census. Similarly, the proportion of people attending church at least once a month has fallen from 36% in 1972 to <a href="McCrindle%20Research,%20%E2%80%98A%20Demographic%20Snapshot%20of%20Christianity%20and%20Church%20Attendance%20in%20Australia%E2%80%99,%202014,%20<mccrindle.com.au/the-mccrindle-blog/a-demographic-snapshot-of-christianity-and-church-attenders-in-australia>">15% in 2014</a>. So fewer Australians have been exposed to the public reading and preaching of the Bible, and to <a href="McCrindle%20Research,%20%E2%80%98A%20Demographic%20Snapshot%20of%20Christianity%20and%20Church%20Attendance%20in%20Australia%E2%80%99,%202014,%20<mccrindle.com.au/the-mccrindle-blog/a-demographic-snapshot-of-christianity-and-church-attenders-in-australia>">its inculcation though liturgy and hymnody</a>. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/friday-essay-who-was-mary-magdalene-debunking-the-myth-of-the-penitent-prostitute-92658">Friday essay: who was Mary Magdalene? Debunking the myth of the penitent prostitute</a>
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<hr>
<p>Does it matter if Australians are becoming less familiar with the Christian scriptures? I would argue that, even aside from matters of faith, a working knowledge of the Bible, and a critical skill in interpreting it, remain extremely useful. </p>
<p>Firstly, the world is still an overwhelmingly religious place.</p>
<p>While Christianity has declined in its former European strongholds, and in related societies like New Zealand and Australia, it has spread widely in the global south. In 2018, it remains the <a href="http://www.pewresearch.org/fact-tank/2017/04/05/christians-remain-worlds-largest-religious-group-but-they-are-declining-in-europe/">most practised faith in the world</a>. Effective global citizenship can only benefit from a working knowledge of its key text.</p>
<h2>Shaping our culture</h2>
<p>Secondly, biblical literacy is worthwhile because of the Bible’s dynamic role in creative culture.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/214411/original/file-20180412-584-1tlgz5a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/214411/original/file-20180412-584-1tlgz5a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/214411/original/file-20180412-584-1tlgz5a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=779&fit=crop&dpr=1 600w, https://images.theconversation.com/files/214411/original/file-20180412-584-1tlgz5a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=779&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/214411/original/file-20180412-584-1tlgz5a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=779&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/214411/original/file-20180412-584-1tlgz5a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=979&fit=crop&dpr=1 754w, https://images.theconversation.com/files/214411/original/file-20180412-584-1tlgz5a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=979&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/214411/original/file-20180412-584-1tlgz5a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=979&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Shakespeare’s plays contain many biblical references.</span>
<span class="attribution"><span class="source">First Folio of Shakespeare's works (and used for three subsequent issues). Published in 1623. Wikimedia Commons</span></span>
</figcaption>
</figure>
<p>The foundational role of the Bible in shaping English language and literature is well attested. Common phrases such as “the powers that be”, “from strength to strength”, “in the twinkling of an eye” and “escaped by the skin of my teeth” all come from English translations of the Bible. </p>
<p>Classic texts from Shakespeare’s plays to T. S. Eliot’s poems to the speeches of Martin Luther King assume some knowledge of biblical stories, images and ideas. </p>
<p>Among Australian creatives, too, literary lights such as Patrick White, Elizabeth Jolley, Tim Winton, Helen Garner and Christos Tsiolkas all make powerful use of biblical narratives and imagery. Songwriters from Nick Cave to the late Yolngu star Gurrumul have drawn on the scriptures in their lyrics. </p>
<p>Biblical stories and symbols have also inspired visual artists such as Grace Cossington Smith, Arthur Boyd and Margaret Preston. Reg Mombassa’s popular creation, “Australian Jesus”, offers a subversive take on the gospels. </p>
<p>Each of these Australians has found the Bible an enlarging influence on the imagination. Audiences can easily miss key elements of their work without a degree of biblical literacy. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/214218/original/file-20180411-566-ed58aj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/214218/original/file-20180411-566-ed58aj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/214218/original/file-20180411-566-ed58aj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/214218/original/file-20180411-566-ed58aj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/214218/original/file-20180411-566-ed58aj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/214218/original/file-20180411-566-ed58aj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/214218/original/file-20180411-566-ed58aj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/214218/original/file-20180411-566-ed58aj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Reg Mombassa’s popular creation, ‘Australian Jesus’, offers a subversive take on the gospels.</span>
<span class="attribution"><span class="source">Paul Miller/AAP</span></span>
</figcaption>
</figure>
<h2>A colonial legacy</h2>
<p>Thirdly, the Bible is a substantial - and unresolved - part of Australia’s European cultural baggage.</p>
<p>It loomed especially large in the process of colonising Aboriginal land and forging settler societies. The legal fiction of terra nullius, for example, drew on a particular interpretation of Genesis 1:28 - “replenish the earth, and subdue it”.</p>
<p>Most British colonists assumed that European agriculture was the proper means of fulfilling this divine command. Failing to recognise Indigenous forms of land use, they deemed the land “waste”, belonging to no one, and ripe for the taking.</p>
<p>At the same time, a minority of colonists drew on verses like Acts 17:26 - “[God] hath made of one blood all nations of men for to dwell on all the face of the earth” – to affirm the common humanity of Aboriginal people, and to denounce settler greed and violence. </p>
<p>Crucially, as Indigenous Australians interpreted the Bible for themselves, they used it to demand just treatment and to assert their unique relationship to country. As the Mabo case made its way through the courts, for instance, plaintiff Dave Passi liked to quote from the Old Testament: “Do not move an everlasting boundary stone, set up by your ancestors” (Proverbs 22:28).</p>
<p>In all these ways, the Bible has been bound up with the Australian experience of colonialism. As such, a robust biblical literacy can aid understanding of the past and contribute to present day reconciliation.</p><img src="https://counter.theconversation.com/content/94724/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Meredith Lake has previously undertaken paid work as an historian for Bible Society Australia. </span></em></p>In less than two generations, the proportion of Australians who never pick up a Bible has leapt to seven out of ten. But a robust biblical literacy can help us decode creative works and understand the past.Meredith Lake, Honorary Associate, Department of History, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/905402018-01-27T22:32:54Z2018-01-27T22:32:54ZFactCheck: can native title ‘only exist if Australia was settled, not invaded’?<blockquote>
<p>… there is a fundamental point which goes to the heart of this debate that literally no one, to date, seems to have picked up on … </p>
<p>Native title can only exist if Australia was settled, not invaded.</p>
<p><strong>– Excerpt from an <a href="http://www.watoday.com.au/wa-news/inconvenient-fact-native-title-can-only-exist-if-australia-was-settled-not-invaded-20180119-h0l9hb.html">opinion piece</a> written by Sherry Sufi, chairman of the WA Liberal Party policy committee, published by Fairfax Media, January 20, 2018</strong></p>
</blockquote>
<p>Every January, the debate about the date of Australia’s national day intensifies. </p>
<p>The current date of Australia Day – January 26 – marks the anniversary of the 1788 arrival of Europeans in Australia. To some Australians, this date is known as <a href="https://www.sbs.com.au/nitv/explainer/australia-day-invasion-day-survival-day-whats-name">Invasion Day, or Survival Day</a>. </p>
<p>The Australian Greens party has <a href="http://www.smh.com.au/federal-politics/political-news/greens-plan-major-new-australia-day-date-change-campaign-20180113-h0hzto.html">renewed its campaign</a> to change the date of Australia Day. Greens leader Richard di Natale has <a href="https://www.facebook.com/senatordinatale/videos/1220755918016000/?hc_ref=ARRqu7WHY_cHrNkb0NkrxROZPiuHnVQvgpR42uowhJ7wk1MnMD4DbCFXklNm1aZf7l0">lent his voice</a> to the argument that January 26 marks “the beginning of an invasion”. </p>
<p>In an <a href="http://www.watoday.com.au/wa-news/inconvenient-fact-native-title-can-only-exist-if-australia-was-settled-not-invaded-20180119-h0l9hb.html">opinion piece</a>, WA Liberal Party policy committee chairman Sherry Sufi said Di Natale was “attempting to undermine native title by implying that Australia was invaded and conquered”.</p>
<p>Sufi argued that “native title can only exist if Australia was settled, not invaded”.</p>
<p>Let’s look at the law. </p>
<h2>Checking the source</h2>
<p>When asked for sources and comment to support his statement, Sherry Sufi provided this response:</p>
<blockquote>
<p>Disclaimer: My article in Fairfax Media and the correspondence with The Conversation are <strong>not</strong> statements on behalf of the WA Liberal Party or any of its constituent bodies. The views expressed are my own. </p>
<p>As one of the 193 member states of the United Nations, Australia exists as part of a rules-based world order. Land conquests through war of aggression were only criminalised after World War II. </p>
<p>This prohibition does not apply retroactively. Doing so would throw the entire world map into turmoil. </p>
<p>It applies on future attempts to conquer. The status quo of international borders at the time was deemed ‘frozen’. Lands conquered before the <a href="http://avalon.law.yale.edu/20th_century/kbpact.asp">Kellogg-Briand Pact (1928)</a> are deemed lawful conquests.</p>
<p>So it follows that if Australia was invaded, then it has been conquered. This would technically negate claims to separate land rights for descendants of native populations.</p>
<p>Yet the Mabo decision rested on the presumption that Australia was settled, not invaded. Therefore, native title is safe.</p>
</blockquote>
<p>You can read Sufi’s full response and references cited <a href="https://theconversation.com/full-response-from-sherry-sufi-for-a-factcheck-on-native-title-90781">here</a>.</p>
<hr>
<h2>Verdict</h2>
<p>Sherry Sufi’s claim that “native title can only exist if Australia was settled, not invaded” is incorrect.</p>
<p>Native title is the legal recognition of Aboriginal and Torres Strait Islander peoples’ property rights to Australian land that existed when the English took possession of the territory in 1788. Native title was recognised by the Australian High Court in the 1992 Mabo case.</p>
<p>Had Australia originally been deemed to be conquered – or “invaded” – rather than settled, native title would indeed have existed.</p>
<p>Under English law, if Aboriginal and Torres Strait Islander peoples were conquered, they would have retained their interests in land – or native title – under their own laws, until those laws were overturned by the English. </p>
<hr>
<h2>Responding to Sufi’s argument</h2>
<p>As to whether the law deems Australia to have been settled, not invaded, the sources Sufi has cited in his <a href="https://theconversation.com/full-response-from-sherry-sufi-for-a-factcheck-on-native-title-90781">full response</a> to The Conversation are correct. </p>
<p>However, Sufi’s response contains the reason that his claim that “native title can only exist if Australia was settled not invaded” is incorrect. </p>
<p>As Sufi has cited from the <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1992/23.html">1992 Mabo decision</a>, “the acquisition of property [native title] is chiefly the province of the common law”. Following this, Sufi does not examine the common law rules about land ownership that would apply if Australia had been deemed conquered.</p>
<p>This is the missing link in his original argument, and why the claim is incorrect.</p>
<p>In his article, Sufi justified his claim, in part, on the grounds that “international law recognises all territories acquired through invasion and annexation by force, prior to World War II, as lawful conquests”.</p>
<p>Whether or not that statement <em>in itself</em> is accurate is a matter for an international law expert to determine. </p>
<p>Because even <em>if</em> this is <em>now</em> the status of international law, it concerns the basis of sovereignty in modern times. To the extent that the means of acquiring sovereignty is relevant to native title law, it is sovereignty in 1788 that is relevant. </p>
<p>The High Court of Australia in the <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1992/23.html">1992 Mabo decision</a> found that an Australian court does not have the power to challenge the basis on which the English claimed sovereignty in 1788. </p>
<p>The status of Australian land law, including native title, is a different matter: it is determined under domestic law, not international law. Australian courts do have the power to alter domestic law, which is what the Court did in Mabo.</p>
<p>So Sufi’s statement about international law, whether correct or incorrect in itself, is not relevant to native title in Australia. The justification does not stand.</p>
<p>Let’s look at the relevant law. </p>
<h2>Conquest or settlement?</h2>
<p>To assess Sufi’s primary claim, we need to look at what happened when Europeans arrived in Australia in 1788, and at the 1992 Mabo case heard in the Australian High Court, which formed the basis of native title in Australia.</p>
<p>The <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/high_ct/175clr1.html?stem=0&synonyms=0&query=%7Emabo">Mabo case decision</a> is the primary source document for this FactCheck.</p>
<p>In 1788, England sought to establish itself as sovereign – or the governing body – over Australian territory.</p>
<p>There are a number of ways to become sovereign under international law. In considering what happened in Australia in 1788, Justice Brennan – who wrote the leading judgment in Mabo – focused on the three most relevant. They were:</p>
<ul>
<li>conquest – the acquisition of a territory by force, </li>
<li>cession – an existing state transfers sovereignty over its territory to another state, or </li>
<li>occupation – taking possession of a territory not under the control of an existing sovereign. </li>
</ul>
<p>In his article, Sufi talks about the consequences of “invasion”. The international law described in Mabo refers to “conquest” rather than invasion. So that’s the term I’ll use in this FactCheck.</p>
<h2>Fact or legal fiction?</h2>
<p>Of those pathways to becoming sovereign over Australia, the English considered themselves to be 'occupiers’.</p>
<p>The concept of ‘occupation’ relies on the land being ‘terra nullius’ – or belonging to no one. In its literal sense, this means there were no prior inhabitants in the territory.</p>
<p>Of course, that was not the case in Australia – Aboriginal and Torres Strait Islander peoples had been living in the country for at least <a href="https://www.researchgate.net/profile/Ben_Marwick2/publication/318562213_Human_occupation_of_northern_Australia_by_65000_years_ago/links/59d14e230f7e9b4fd7fa2697/Human-occupation-of-northern-Australia-by-65-000-years-ago.pdf">65,000 years</a> before the First Fleet arrived.</p>
<p>But the arriving Europeans took the approach that Australia’s Indigenous peoples were “too low in the scale of social organisation to be acknowledged as possessing rights and interests in land”, and were deemed not to have laws, or to be sovereign over Australia. </p>
<p>This allowed for the application of what Justice Brennan described as an “enlarged notion of terra nullius”, and for the English to deem that they had <em>occupied</em> the land.</p>
<p>It’s important to note that in this case, terra nullius, and therefore occupation, is a ‘legal fiction’: an assertion of a state of affairs deemed by the law to be valid, even though it may not be factual.</p>
<h2>Who owns the land?</h2>
<p>Having established sovereignty, England needed to determine what law applied in the new colony – and in particular, what law applied to the ownership of land. </p>
<p>This was a question for <em>English</em> law, rather than international law.</p>
<p>Under English law, in territories that were conquered or ceded, the <a href="https://www.alrc.gov.au/publications/5.%20Recognition%20of%20Aboriginal%20Customary%20Laws%20at%20Common%20Law%3A%20The%20Settled%20Colony%20Debate/se">existing laws of the original inhabitants would continue to apply</a> until they were overturned by the English. </p>
<p>Therefore, if Australia <em>had</em> been deemed to be conquered, or “invaded”, the existing laws of Aboriginal and Torres Strait Islander peoples, including laws about land ownership, would have continued to apply until the English repealed them.</p>
<p>However, for territory that had been occupied or settled – as was declared to be the case in Australia – English law would be imported, including English land law. Under that law, the Crown owned all land. </p>
<h2>The Mabo decision</h2>
<p>These concepts were challenged in the Mabo case in the Australian High Court in 1992.</p>
<p>In the Mabo decision, Justice Brennan stated that the concept of terra nullius ignored the reality of the existing inhabitants of the territory.</p>
<p>The Mabo decision found that the legal fiction that Australia was uninhabited could no longer stand. It acknowledged that Aboriginal and Torres Strait Islander peoples <em>did</em> have a recognised system of laws.</p>
<p>The Mabo decision did not change the international law position that Australia had been occupied. What the Court did do was create a new English law category for working out what law applied: the territory was settled, but inhabited. </p>
<p>Based on this new category, sovereignty and land ownership were separated. The Crown was no longer automatically the owner of all the land.</p>
<p>Instead, the original occupants of Australia – the Aboriginal and Torres Strait Islander peoples – remained the owners until the Crown extinguished their interests, or they were otherwise lost. This is native title.</p>
<h2>Conclusion</h2>
<p>So, what does that all mean for Sufi’s claim?</p>
<p>Sufi said “native title can only exist if Australia was settled, not invaded”.</p>
<p>In 1788 Australia was, under English law, deemed to be settled. In 1992, the Australian High Court deemed Australia to have been settled, but inhabited. Because of that decision, native title as we know it today does exist. Land law stopped being English land law, and became Australian land law. </p>
<p>Had Australia been deemed to be conquered (or “invaded”), the interests in the land – the native title – would also have existed. Aboriginal and Torres Strait Islander peoples would have continued to own the land until the Crown extinguished those interests.</p>
<p>Either way, whether Australia was deemed to be “invaded” or settled, Australian land law would recognise Indigenous interests in land – that is, it would recognise native title. <strong>– Kate Galloway</strong></p>
<h2>Blind review</h2>
<p>The verdict is clearly correct.</p>
<p>It is not the case that “native title can only exist if Australia was settled, not invaded”. </p>
<p>As this FactCheck points out, it is to the contrary. It has long been a rule of English law that in a colony acquired by conquest the former laws continue to apply until altered by the conqueror, and rights to land continue until they are extinguished. </p>
<p>Some elements of the Mabo decision have been contested by scholars. This is not one of them. It is very clear that native title could exist if Australia were characterised as conquered. <strong>– Leon Terrill</strong></p>
<hr>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/162128/original/image-20170323-13486-72k52f.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/162128/original/image-20170323-13486-72k52f.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/162128/original/image-20170323-13486-72k52f.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/162128/original/image-20170323-13486-72k52f.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/162128/original/image-20170323-13486-72k52f.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/162128/original/image-20170323-13486-72k52f.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/162128/original/image-20170323-13486-72k52f.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/162128/original/image-20170323-13486-72k52f.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Conversation FactCheck is accredited by the International Fact-Checking Network.</span>
</figcaption>
</figure>
<p><em>The Conversation’s FactCheck unit is the first fact-checking team in Australia and one of the first worldwide to be accredited by the International Fact-Checking Network, an alliance of fact-checkers hosted at the Poynter Institute in the US. <a href="https://theconversation.com/the-conversations-factcheck-granted-accreditation-by-international-fact-checking-network-at-poynter-74363">Read more here</a>.</em></p>
<p><em>Have you seen a “fact” worth checking? The Conversation’s FactCheck asks academic experts to test claims and see how true they are. We then ask a second academic to review an anonymous copy of the article. You can request a check at <a href="mailto:checkit@theconversation.edu.au">checkit@theconversation.edu.au</a>. Please include the statement you would like us to check, the date it was made, and a link if possible.</em></p><img src="https://counter.theconversation.com/content/90540/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In an article published in the lead up to Australia Day, WA Liberal Party policy committee chairman Sherry Sufi said “native title can only exist if Australia was settled, not invaded”. Is that right?Kate Galloway, Associate Professor of Law, Bond UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/741472017-04-26T20:13:35Z2017-04-26T20:13:35ZAustralian politics explainer: the Mabo decision and native title<p><em>The Conversation is running a <a href="https://theconversation.com/au/topics/australian-politics-explainer-37192">series of explainers</a> on key moments in Australian political history, looking at what happened, its impact then, and its relevance to politics today.</em></p>
<hr>
<p>On June 3 1992, the High Court of Australia handed down its decision in the <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1992/23.html">long-running case of Eddie Koiki Mabo</a> and his compatriots from the Torres Strait island of Mer. Together they challenged the authority of the Queensland government to claim not just sovereignty but also ownership of the land comprising their ancestral home.</p>
<h2>What happened?</h2>
<p>Queensland annexed the Murray Islands through the <a href="https://www.legislation.qld.gov.au/LEGISLTN/CURRENT/Q/QldCoastIsA1879.pdf">Queensland Coast Islands Act</a> of 1879. The court had to determine the effect of this annexation on the rights of the Meriam people to their land.</p>
<p>In its argument, the state claimed that on becoming sovereign over this territory, it derived ownership of all the land comprised in it – including the island of Mer. </p>
<p>This concept, known as universal and absolute beneficial crown ownership, was derived from the idea that Australia was “terra nullius”. According to international law, this implied that a territory was uninhabited. Consequently, England could lawfully claim sovereignty over that territory.</p>
<p>Similarly, under English law, Australia was deemed to be “settled and uninhabited”, and therefore English law was fully imported into the new territory. </p>
<p>A feature of this law was that the Crown was the absolute owner of all land — a relic of English feudalism. If, by law, the Crown was the absolute owner of all land, there was simply no possibility of recognising any other type of landholding, including that of Eddie Mabo.</p>
<p>By contrast, Mabo argued that, despite the state’s claim to sovereignty, he and his people retained ownership over the land. The basis of this argument is the well-known reality that Australia was not uninhabited at the time of colonisation. To maintain a law based on this outdated fiction would be unjust. </p>
<p>The court agreed. Although it could not upset sovereignty, the fact of sovereignty could no longer support the state’s claim for absolute ownership of all land. It recognised a new category of territory – one that was “settled but inhabited”. </p>
<p>As an inhabited territory, the original inhabitants – including Mabo and his community – retained ownership of land. </p>
<p>However, the state did have the power as sovereign to extinguish pre-existing ownership rights. But the Anglo-Australian legal system would continue to recognise those rights until they were extinguished. This is known as native title.</p>
<h2>What was its impact?</h2>
<p>Although in the early days the Mabo decision generally seemed welcome, it was not long before it became increasingly divisive. </p>
<p>Many celebrated a huge victory for justice for Indigenous Australians. Some of this enthusiasm foresaw a new age of reconciliation, perhaps even a new republican constitution. </p>
<p>But, increasingly, in the months after the decision, many opposed what they saw as the decision’s support for the “<a href="http://www.abc.net.au/news/2012-06-07/green-reflections-on-the-mabo-debate/4056156">white guilt industry</a>”. Mining companies asserted that a “flood” of land claims would inhibit mining in Australia contrary to the national interest. The Australian Mining Industry Council (now the Minerals Council of Australia) took out full-page advertisements to that effect. </p>
<p>Adding to the panic, Victorian Premier Jeff Kennett claimed that Australian backyards were under threat from Aboriginal land claims – he has <a href="http://www.theage.com.au/articles/2002/05/31/1022569833000.html">since admitted he was wrong</a>.</p>
<p>The decision has remained important to Indigenous communities throughout Australia, notably because Anglo-Australian law now officially recognises the prior existence of Indigenous peoples. No longer is Australia “terra nullius”. </p>
<p>However, there have also been Indigenous voices expressing criticism of the decision. Noted scholar Irene Watson <a href="http://kirra.austlii.edu.au/au/journals/IndigLawB/2005/6.html">observes</a>:</p>
<blockquote>
<p>Post-Mabo most people believe we have gained justice. We are still working for the same goal, land rights and self-determination, but we are also working harder than ever before, for now we are also working on unmasking the illusion; the illusion that “the blacks have got it all”.</p>
</blockquote>
<h2>What are its contemporary implications?</h2>
<p>The decision had a huge impact on Australian life. However, regardless of which side of the debate you might be on, it is clear that our institutions and society can cope with such apparently enormous shifts. </p>
<p>Some suggest the Mabo decision did not go far enough to achieve real justice. This indicates that, despite the perhaps inevitable argument that follows profound change, we can afford to be aspirational in embarking on reform efforts. </p>
<p>It is also clear that divisive language, such as that of the debate that followed the Mabo decision (and since), is unnecessary. Knowing that our institutions can withstand the “shock” of change surely means we can engage in a well-modulated and respectful public discussion to achieve it.</p>
<p>Finally, we clearly cannot be complacent following even apparently significant advances in the law’s approach to Indigenous Australians’ claims for justice. There remains work to be done; any single advance will not be sufficient.</p>
<p>To fulfil the promise of Mabo, to advance justice for Indigenous Australians, we need a suite of reforms embracing law, policy and the economy.</p><img src="https://counter.theconversation.com/content/74147/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kate Galloway does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Mabo decision changed Australia’s concept of land ownership. It was a divisive yet important step toward recognising Indigenous rights and establishing native title.Kate Galloway, Assistant Professor of Law, Bond UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/700592016-12-31T20:33:37Z2016-12-31T20:33:37ZCabinet papers 1992-93: Keating government fights for Indigenous rights on multiple fronts<figure><img src="https://images.theconversation.com/files/151218/original/image-20161221-14208-a2bfgq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Paul Keating recognised the significant opportunities – and political risks – the High Court's Mabo decision presented.</span> <span class="attribution"><span class="source">National Archives of Australia</span></span></figcaption></figure><p>Paul Keating’s first term as prime minister is often remembered for divisive debates over Indigenous affairs. He sought to pursue his vision of reconciliation between Aboriginal and non-Aboriginal Australians, negotiated passage of the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/nta1993147/">Native Title Act</a> and acknowledged the injustices and cruelties of Australia’s colonial history in his famous <a href="https://antar.org.au/sites/default/files/paul_keating_speech_transcript.pdf">Redfern Speech</a>. </p>
<p>However, economic priorities often overshadowed these events. Australia was <a href="http://www.abc.net.au/radionational/programs/boyerlectures/lecture-4-the-recession-of-1990-and-its-legacy/3353124">emerging from recession</a> with high unemployment and a growing budget deficit.</p>
<p>Cabinet documents from 1992 and 1993, released today by the National Archives of Australia, reveal the extent to which the government was torn between concern for fiscal responsibility and a desire to tackle Indigenous disadvantage and pursue meaningful reconciliation. </p>
<p>This tension was clear in the two major issues the government responded to in this period: the <a href="http://www.austlii.edu.au/au/other/IndigLRes/rciadic/">Royal Commission into Aboriginal Deaths in Custody</a> report, and the High Court’s <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/high_ct/175clr1.html?">Mabo decision</a>.</p>
<h2>Deaths in custody</h2>
<p>The response of the minister for Aboriginal and Torres Strait Islander affairs, Robert Tickner, to the royal commission unusually ranged across all aspects of Indigenous disadvantage. It recognised the commissioners’ strong argument that incarceration was a symptom of a long history of social, cultural and economic exclusion – one that demanded a more committed policy response. </p>
<p>Tickner had negotiated and co-signed policy measures with counterparts in the portfolios of employment, education and training, health, housing and community services, attorney-general, primary industries and energy, and others.</p>
<p>He proposed an expansion of the Community Development Employment Projects to provide both services and employment, particularly for Indigenous youth and women.</p>
<p>The package also proposed the appointment of an Aboriginal and Torres Strait Islander Commissioner in the Human Rights and Equal Opportunity Commission who would <a href="https://www.humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/about-aboriginal-and-torres-strait">report annually</a> on social justice and human rights.</p>
<p>The policy package was slashed, however, from A$540 million to A$150 million over five years. This was in response to the demands of Treasury and Finance, which insisted that only the policies most obviously related to criminal justice be funded. The rest were to be reconsidered later if offsets could be found elsewhere.</p>
<p>This short-sighted response to the commission’s 339 recommendations is <a href="http://www.smh.com.au/federal-politics/political-news/patrick-dodsons-takedown-of-appalling-demonstration-of-ignorance-by-nigel-scullion-20161021-gs7vzu.html">still criticised today</a>. This is especially the case as Indigenous incarceration rates <a href="http://www.abs.gov.au/ausstats/abs@.nsf/mf/4517.0">continue to spiral</a> in response to profound and complex disadvantage.</p>
<h2>Mabo and native title</h2>
<p>The government’s response to Mabo was similarly contested. This time the enemies were outside cabinet.</p>
<p>Keating understood the significant opportunity the decision presented. However, it placed the government in an almost impossible position. It was caught between Indigenous expectations, mining industry demands, fiscal constraints and state government recalcitrance – in addition to heightened international scrutiny.</p>
<p>The Mabo decision was complex. The media and most MPs understood the issues poorly. It was also clear that legislative recognition of native title was more likely to lose the government electoral support than win it more votes. As Keating’s speechwriter, Don Watson, <a href="https://www.australianbookreview.com.au/about/61-november-2011/618-don-watson-recollections-of-a-bleeding-heart-second-edition">noted</a>:</p>
<blockquote>
<p>Designing a legislative response to Mabo was a moral imperative and a political death trap … [with] all the elements of political horror.</p>
</blockquote>
<p>Cabinet nominated a Mabo committee, which consisted of Keating and Tickner along with the attorney-general, Michael Duffy. At its meeting on October 27, 1992, cabinet noted the dangers of “uncertainty” for the mining industry and observed:</p>
<blockquote>
<p>… the importance of the threshold across which the High Court has taken the nation and the ultimate need for government decision.</p>
</blockquote>
<p>At the same time, cabinet prepared itself for potential political disaster. It was aware it could not satisfy all the competing interests, and that there was little chance of support from the Liberal opposition. </p>
<p>Negotiations extended through 1993, following the federal election in March. </p>
<p>Cabinet adopted Keating’s “principles for a response” to the Mabo decision on June 1, 1993, in anticipation of a <a href="http://webarchive.nla.gov.au/gov/20040709211354/http://www.coag.gov.au/meetings/080693/index.htm">very tense Council of Australian Governments meeting</a>. State premiers were keen to demonstrate their objections to Commonwealth intervention in their management of land and Indigenous affairs. </p>
<p>The states would test the Commonwealth’s patience throughout 1993. Queensland demanded the Commonwealth pay compensation for any invalidated mining leases. Western Australia passed its own pre-emptive legislation attempting to extinguish native title altogether.</p>
<p>When Keating presented a draft native title bill on September 1, the cabinet minutes hinted at nervousness about the potential political fallout. Ministers were encouraged to “be ready to discuss the proposals with interest groups”. Keating was exhorted to “take whatever action was necessary to advance and protect the Commonwealth’s interests”. </p>
<p>Cabinet saw fit to afford Keating “latitude” in his negotiations. This prime ministerial prerogative would prove critical to the legislation’s ultimate success. Its passage was based on delicate compromises made with state premiers, Greens and Democrats senators, the National Farmers Federation and Aboriginal leaders.</p>
<h2>ATSIC’s role</h2>
<p>Throughout the year, the Aboriginal and Torres Strait Islander Commission (ATSIC) repeatedly insisted in cabinet submissions that alternative forms of redress be provided for the majority of Indigenous people who no longer enjoyed an unbroken connection with traditional lands. </p>
<p>The government prepared a “social justice and economic development package” within the constraints of the ever-present “fiscal realities” the government faced. Both ATSIC and the Council for Aboriginal Reconciliation requested more time for consultation. The package was thus delayed and disconnected from the Native Title Act, which received royal assent on December 24, 1993.</p>
<p>One notable feature of this period is the role of ATSIC, which the Hawke government created in 1990 as a practical expression of self-determination. As an elected body with administrative responsibility for much of the portfolio of Aboriginal affairs, ATSIC fulfilled both <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/CIB/Current_Issues_Briefs_2004_-_2005/05cib04">representative and executive functions</a>. </p>
<p>Cabinet documents reveal ATSIC was assertive in advising its junior minister. It commented on all relevant cabinet submissions and made additional submissions on key issues. This ensured the senior ministry took Aboriginal perspectives into account. </p>
<p>The Howard government abolished ATSIC in 2004, amid controversy. The bureaucrats were folded into mainstream departments, and the government abandoned the representative function entirely.</p>
<h2>How much has changed?</h2>
<p>Cabinet records from this period reveal some constants in Indigenous politics. Indigenous interests confront many powerful adversaries – including state and territory governments, and industries with interests in Aboriginal land. </p>
<p>Proposed expenditure tackling Indigenous social and economic disadvantage remains subject to the hard-headed decision-makers inside cabinet representing Finance and Treasury. </p>
<p>Finally, the task of tackling Indigenous priorities is even more challenging today, given the absence of ATSIC or some other representative body engaging in cabinet-level co-ordination and negotiation.</p><img src="https://counter.theconversation.com/content/70059/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Diana Perche does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Cabinet papers reveal the extent to which the Keating government was torn between concern for fiscal responsibility and a desire to tackle Indigenous disadvantage and pursue meaningful reconciliation.Diana Perche, Lecturer in Politics and Public Policy, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/667032016-10-13T19:12:14Z2016-10-13T19:12:14ZHow astronomy paved the way for terra nullius, and helped to get rid of it too<figure><img src="https://images.theconversation.com/files/141573/original/image-20161013-31306-1a8b37i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australians have gazed in wonder at the Milky Way since long before Captain Cook's time.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File%3AMilky_Way_panorama_and_Venus_-_New_South_Wales_-_Australia_-_26_Oct._2013.jpg">Christian Reusch/Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>If you take a walk in <a href="http://www.nationalparks.nsw.gov.au/visit-a-park/parks/kuringgai-chase-national-park">Ku-ring-gai Chase National Park</a>, about 50km from central Sydney, you will come across an <a href="http://www.atnf.csiro.au/research/AboriginalAstronomy/Examples/emu.htm">engraving</a> of a large emu in the tessellated sandstone overlooking the surrounding countryside. On a clear night, this site gives a panoramic view of the heavens with its twinkling stars and the bright streak of our home galaxy, the Milky Way.</p>
<p>Most people pass by the engraving without taking much notice of it. Sadly, they miss the essence of what the unknown Aboriginal artist was saying. Engraved on the ground is a reflection of the <a href="http://www.atnf.csiro.au/research/AboriginalAstronomy/Examples/emu.htm">shape of an emu visible in the dark patches of the Milky Way</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/141574/original/image-20161013-31306-17b5q6z.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/141574/original/image-20161013-31306-17b5q6z.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/141574/original/image-20161013-31306-17b5q6z.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=305&fit=crop&dpr=1 600w, https://images.theconversation.com/files/141574/original/image-20161013-31306-17b5q6z.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=305&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/141574/original/image-20161013-31306-17b5q6z.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=305&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/141574/original/image-20161013-31306-17b5q6z.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=384&fit=crop&dpr=1 754w, https://images.theconversation.com/files/141574/original/image-20161013-31306-17b5q6z.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=384&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/141574/original/image-20161013-31306-17b5q6z.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=384&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The heavenly emu’s earthly counterpart.</span>
<span class="attribution"><span class="source">Ragbir Bhathal</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>It was much more clearly visible hundreds or thousands of years ago, in a pristine night sky with no nearby city lights. What the artist has done is give us the underlying philosophy of the social and cultural life and beliefs of the region’s people – and one of the most profound statements in the history of human ideas. </p>
<p>The idea was clearly articulated by Mowalijarlai, a Ngarinyin tribal elder, in his book <a href="https://www.magabala.com/body-mind-and-spirit/yorro-yorro.html">Yorro Yorro</a>, which says: </p>
<blockquote>
<p>Everything under Creation is represented in the soil and in the stars. Everything has two witnesses, one on Earth and one in the sky.</p>
</blockquote>
<p>This view of how the universe works – that things happen on Earth in the same way as they do in the heavens – has parallels in the theory set out by the great English physicist Isaac Newton in the 17th century. </p>
<p>His mathematical formulation is well known to first-year university physics and engineering students as the <a href="https://en.wikipedia.org/wiki/Newton%27s_law_of_universal_gravitation">law of universal gravitation</a>, which solved the problem of planetary motion that had plagued the minds of Chinese, Indian, Muslim and Mediterranean intellectuals since the 4th century. </p>
<p>What Newton was also saying was that the physical laws that govern our world are universal – truly, the heavens do mirror the Earth because they are part of the same picture. The 1957 Nobel Prize winner, Tsung-Dao Lee, <a href="https://www.amazon.com/Particle-Physics-Introduction-Contemporary-Concepts/dp/3718600331">wrote</a>:</p>
<blockquote>
<p>Since the beginning of physics, symmetry considerations have provided us with an extremely powerful and useful tool in our effort to understand nature.</p>
</blockquote>
<h2>Cook’s solar odyssey</h2>
<p>Many Australians might not realise it, but astronomy and physics have had a profound influence on the history of Australia and its Aboriginal and Torres Strait Islander peoples. When Captain James Cook first set out on his monumental journey to the South Seas, he was aiming to help solve one of the <a href="https://archive.org/details/popularhistoryof00clerrich">crucial scientific questions of the age</a>: the distance from Earth to the Sun, which he sought to measure by timing the transit of Venus across the face of the Sun, from a position as far as possible from other observers in the northern hemisphere. </p>
<p>It was a scientific venture supported by King George III, the Royal Society of London, and the Admiralty. Cook gave the scientific establishment its prize. His figure was not very far off from today’s <a href="https://en.wikipedia.org/wiki/Astronomical_unit">accepted distance</a> of 1.496x10⁸km.</p>
<p>The mission turned political when Cook opened a letter which gave him <a href="http://www.abebooks.com/servlet/BookDetailsPL?bi=5834592296&searchurl=tn%3Dhistory%2Baustralia%2Bearliest%2Btimes%2Bage%2Bmacquarie%26sortby%3D17">further instructions to find a continent in the South Seas</a>. That was the beginning of the disaster that was waiting to befall the Aboriginal and Torres Strait Islanders. </p>
<p>Their continent and the islands were to be stolen from under their feet without their realising it. To cut a long story short, despite Cook having shot and wounded a “native” when he landed at Botany Bay in 1770, Australia was proclaimed by Britain to be <em>terra nullius</em> (“nobody’s land”). <a href="http://www.abebooks.com/servlet/BookDetailsPL?bi=5834592296&searchurl=tn%3Dhistory%2Baustralia%2Bearliest%2Btimes%2Bage%2Bmacquarie%26sortby%3D17">According to Manning Clark</a>:</p>
<blockquote>
<p>On 12 August 1770 at Possession Island … Cook hoisted the English colours and in the name of His Majesty King George III took possession of the whole eastern coast … and fired three volleys of small arms which were answered by a like number from the ship. </p>
</blockquote>
<p>The deed was done.</p>
<h2>Mabo’s astronomical fight</h2>
<p>More than 200 years later the concept of <em>terra nullius</em> was challenged by Eddie Mabo, a gardener at James Cook University, in the High Court of Australia. Here, Torres Strait Islanders used the grand idea that the laws of physics are the same on land and in the heavens to help overturn the pronouncement. </p>
<p>The manner in which it was done makes fascinating reading. In the process two laws came into prominence: Malo’s law (the law of the land) and the law of the Stars of the Tagai (the law of the heavens). </p>
<p>The Stars of the Tagai and its associated stars (the Pleiades and Orion) were <a href="https://archive.org/details/reportsofcambrid02hadd">first studied by Cambridge scholars</a> (see also <a href="http://aiatsis.gov.au/publications/products/stars-tagai-torres-strait-islanders/paperback">here</a>) on an expedition to the Torres Strait Islands in 1898. For the islanders themselves, the stars of the Tagai are a representation of their ancestral sky hero.</p>
<p>But crucially, besides this symbolism the islanders also used these stars to foretell the seasons, providing them with a way to organise their fishing, agricultural, ritual and social life. The stars told them when it was time to go fishing, when to plant crops, and when to harvest them. </p>
<p>In court, the stars provided tangible evidence that they had been tilling their lands and using them productively – that they were not nomads but rather had a firm connection to the land. </p>
<p>The law of the heavens was intimately related to Malo’s law, the law of the land, which gave them ownership of the land which passed from one generation to another. Just as the stars had to follow a law and a path in the heavens, so did the traditional owners have to follow Malo’s law, as they <a href="http://bit.ly/2ehN9K0">explained to the court</a>: </p>
<blockquote>
<p><em>Malo tag mauki mauki</em> (Malo keeps his hands to himself; he does not touch what is not his);</p>
<p><em>Teter mauki mauki</em> (He does not permit his feet to carry him towards another’s property). </p>
</blockquote>
<p>In their submission to the High Court they talked about following the laws of the land and the heavens which were embedded in their cultural and social life.</p>
<p>On June 3, 1992, exactly 223 years to the day since Captain Cook had observed the transit of Venus, the High Court judges ruled in the Torres Strait Islanders’ favour. They <a href="http://monash.edu/research/explore/en/publications/mabo-in-the-courts-islander-tradition-to-native-title-a-memoir(19a6cffd-b83a-4267-b1c2-f6a9b94707df).html">noted</a> that the Meriam people “are entitled as against the whole world to possession, occupation, use, and enjoyment of the island of Mir”. </p>
<p>So ended the false claim that Australia and the Torres Strait Islands were <em>terra nullius</em>. But despite this win, the Aboriginal and Torres Strait Islander peoples have forever lost sovereignty over their lands. </p>
<p>A continent and islands were stolen by a stargazing captain at the behest of a king. But it was a unified view of the heavens and the Earth that helped to win back an acknowledgement that this was not an empty land. </p>
<hr>
<p><em>This article was amended on October 14, 2016, to clarify that Captain Cook did not himself author the doctrine of “terra nullius”.</em></p><img src="https://counter.theconversation.com/content/66703/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ragbir Bhathal does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>What did Isaac Newton, Captain Cook and Eddie Mabo all have in common? Each, in their own way, looked to the heavens to make sense of the world, and the importance of their place in it.Ragbir Bhathal, Distinguished Teaching Fellow, Western Sydney UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/603702016-06-09T20:09:30Z2016-06-09T20:09:30ZWhy Australia won’t recognise Indigenous customary law<figure><img src="https://images.theconversation.com/files/125814/original/image-20160609-3488-qso5a5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Most people against recognising Aboriginal customary law think there’s only one law in Australia.</span> <span class="attribution"><span class="source">AAP/Joe Castro</span></span></figcaption></figure><p>While the Australian Law Reform Commissions’s <a href="http://www.alrc.gov.au/inquiries/aboriginal-customary-laws">1986 report</a> on the use of customary law for Aboriginal people was a great initiative, it was, in hindsight, a notion well before its time. Although 30 years have elapsed since the report was published, its recommendations have, by and large, been ignored.</p>
<p>Few in Australia understand the context and true meaning of customary law. Denials of its validity are often based on ignorance or on specific examples devoid of context; the severity of “spearing” for example, as being contrary to human rights norms. </p>
<p>This is akin to rejecting the common law based solely on, say, the use of lethal injections to execute prisoners in the United States. </p>
<h2>Terra what?</h2>
<p>Most people against recognising Aboriginal customary law think there’s only one law in Australia. This is clearly wrong both conceptually and in practice. As Australia is a federation made up of multiple jurisdictions, it necessarily has a multiplicity of laws. </p>
<p>What they are really saying is that Australia should exclude Aboriginal and Torres Strait Islander customary law (and arguably all non-Anglocentric laws). Consciously or otherwise, their rejection is based on first contact between settler and Indigenous Australians.</p>
<p>International law of the 1700s required that, for settlement, a tract of land be “substantially uninhabited”. Herein lies the genesis of Indigenous invisibility in Australia. </p>
<p>In practice, “substantially uninhabited” meant it was inhabited by a people who would not cultivate the proverbial yard of land, and who were not governed by laws. This notion of <a href="http://www.austlii.edu.au/au/orgs/car/docrec/policy/brief/terran.htm"><em>terra nullius</em></a> is clearly a legal fiction, devoid of both truth and ethics. </p>
<p>The ultimate source of the prevailing prejudice and ignorance in Australia, <em>terra nullius</em> is utterly unconnected to the reality of the presence on this continent of the longest continually living human cultures. But the notion is firmly ensconced and entrenched in the Australian Constitution nonetheless.</p>
<p>Aboriginal and Torres Strait Islander societies could not have survived if they were lawless. In fact, the word law is so prevalent in Indigenous parlance and imagination that one must plug one’s ears to not notice Aboriginal and Torres Strait Islander love for law. </p>
<p>The early settlers’ lust for land provided an effective such plug, one which stilled their consciences and humanity as they attempted to destroy a civilised, law-abiding people. Despite these efforts, customary law always was, and still is, observed on the Australian continent.</p>
<p>What, then, constitutes customary law? With several peoples, languages and cultures sharing the continent, there are clearly many different laws. For our purpose here, we can recognise that law is an abstract concept: that it is essentially about the regulation of people, their societies, and relations with their neighbours (broadly defined). </p>
<p>Specifics may vary, but there’s a large variety of laws nonetheless. Consider speed limits in the Australian Capital Territory and New South Wales, for instance. The notion of regulating speed through law is common to both jurisdictions, even if maximum speeds are different. </p>
<h2>Then, Mabo</h2>
<p>Despite the fact that it’s an obvious untruth, the notion <em>terra nullius</em> is entrenched in the Constitution and, until 1992, was firmly a part of Anglo-Australian law. But among the custodians of the common law are judges who set about doing what they could to recognise Indigenous custom, rights and interests.</p>
<p>In 1971, Chief Justice Blackburn of the Northern Territory Supreme Court <a href="http://www.atns.net.au/agreement.asp?EntityID=1611">recognised that the Gove Peninsula</a> in the northeastern corner of Arnhem Land was occupied by a people truly given to the rule of law, a civilised law that was not the common law. </p>
<p>But the NT Court was bound by Privy Council precedent in the NSW case <a href="http://www.bailii.org/uk/cases/UKPC/1889/1889_16.html">Cooper v Stuart</a>. That case had established the notion of <em>terra nullius</em> in law and covering the whole continent. The NT Supreme Court decision was frustrated. </p>
<p>Still, the Supreme Court’s recognition arguably allowed federal Attorney-General Bob Ellicott to examine the possibility of a broader recognition of Indigenous customary law, prompting the ALRC report. But the consequences of <em>terra nullius</em> appear to have prevailed and the report was, for the most part, shelved.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=871&fit=crop&dpr=1 600w, https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=871&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=871&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1094&fit=crop&dpr=1 754w, https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1094&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1094&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The High Court’s Mabo decision recognised Indigenous Australians as the continent’s first inhabitants.</span>
<span class="attribution"><span class="source">AAP/Crystal Ja</span></span>
</figcaption>
</figure>
<p>Legislative changes in the 1980s allowed the High Court in 1992 to recognise Indigenous Australians as the first people of the continent in the landmark <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1992/23.html">Mabo case</a>. Parliament followed suit by establishing a legislative framework for native title claims.</p>
<p>Since 1992, common law has admitted the existence of Indigenous customary laws, which inhered in another normative system. But, to date, the use of Indigenous custom in matters such as sentencing, including through in circle courts, remains sparse, patchy and inadequate. </p>
<p>Formal recognition of Aboriginal and Torres Strait Islander people in the Constitution will pave way for negotiations and a sustained dialogue between the civilisations, including for significant levels of self-determination. </p>
<p>Self-determined communities, within some contemporary constraints, can determine the laws they will use. When these discussions result in the use by Aboriginal and Torres Strait Islander people of their customary law, we can proudly say that we are truly reconciled.</p>
<hr>
<p><em>This article is part of a <a href="https://theconversation.com/au/topics/indigenous-customary-law">special package marking the 30th anniversary</a> of the Australian Law Reform Commission’s report on Aboriginal customary law.</em></p><img src="https://counter.theconversation.com/content/60370/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>AJ Wood does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Few in Australia understand the context and true meaning of customary law. Denials of its validity are often based on ignorance or on specific examples devoid of context.AJ Wood, Senior Lecturer in Law, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/601932016-06-09T20:09:21Z2016-06-09T20:09:21ZFrom little things: the role of the Aboriginal customary law report in Mabo<p>The <a href="https://www.alrc.gov.au/publications/2.%20The%20Commission%E2%80%99s%20Work%20on%20the%20Reference/special-needs-consultation-and-discussion">Recognition of Aboriginal Customary Laws</a> report was released by the Australian Law Reform Commission (ALRC) in June 1986, after an intensive, nine-year inquiry. </p>
<p>The report examined the interaction between two legal systems – one based in British law “received” at colonisation and the other in the customary laws of the Aboriginal peoples of Australia. </p>
<p>In a post-Mabo Australia, the significance of the core question about “recognition” of Aboriginal customary law no longer seems so world-defining. It’s difficult to re-enter the view that admitted little challenge to the centrality of <a href="http://www.alrc.gov.au/publications/report-31">one law for Australia</a> – or for the <a href="https://www.alrc.gov.au/publications/Recognition%20of%20Aboriginal%20Customary%20Laws%20%28ALRC%20Report%2031%29/5-recognition-aboriginal-cust">foundational legal position</a> that Australia was a settled colony and uninhabited (<em>terra nullius</em>).</p>
<h2>What the report did</h2>
<p>The ALRC investigated whether:</p>
<blockquote>
<p>… it would be desirable to apply, either in whole or in part, Aboriginal customary law to Aborigines — generally or in particular areas or to those living in tribal communities only. </p>
</blockquote>
<p><a href="https://www.alrc.gov.au/publications/Recognition%20of%20Aboriginal%20Customary%20Laws%20%28ALRC%20Report%2031%29/terms-reference">Its report</a> was wide-ranging: considering Aboriginal customary law in the pre-European period, and in the aftermath of colonisation. </p>
<p>It probed why there was a failure to recognise Aboriginal customary law within Australian law. It canvassed ways in which the legal system might recognise Aboriginal customary law in areas such as criminal law and sentencing, marriage laws and customary adoption, and in Aboriginal property distribution. </p>
<p>The report resonated with a concern for human rights, and reflects the equality and anti-discrimination <a href="https://www.alrc.gov.au/publications/12-promoting-claims-resolution">principles</a> incorporated into Australian law in the previous decade.</p>
<p>It analysed whether Aboriginal customary laws could be applied in criminal cases and whether Aboriginal communities should be able to <a href="https://www.alrc.gov.au/publications/Recognition%20of%20Aboriginal%20Customary%20Laws%20%28ALRC%20Report%2031%29/17-aboriginal-customary-laws-">apply their laws</a> in the punishment and rehabilitation of community members. </p>
<p>The application of customary law in criminal proceedings (including proof and evidence), and the development of indigenous community courts have progressed since then. We have experimented with customary law in sentencing, and with Indigenous community courts (Koori Courts in Victoria). Still, reforms have not been as extensive as it has in countries like Canada.</p>
<h2>The report’s recommendations</h2>
<p>No recommendations were made regarding the recognition of customary laws as the basis for Aboriginal land rights. The ALRC report followed the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/alrta1976444/">Aboriginal Land Rights (Northern Territory) Act</a>, and land rights legislation in some states. </p>
<p>The broader legal position remained that Australia was “uninhabited” at settlement. That view was not displaced until <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1992/23.html?stem=0&synonyms=0&query=title%28Mabo%20%29">the Mabo decision</a> in 1992.</p>
<p>But the <a href="http://www.alrc.gov.au/inquiries/aboriginal-customary-laws">Recognition of Aboriginal Customary Law</a> report was vital to developing concepts around the recognition of Aboriginal traditional law and custom that played a role in that legal change.</p>
<p>Now, 30 years after its publication, the report remains the most-accessed ALRC publication, which indicates its pervasive influence in Australia’s legal system and society. Yet few of its recommendations have become actual law. </p>
<p>Further, there are still many different perspectives on the concept of “recognition” of customary law. Even the term customary law has origins in the British Empire. While for some it signifies a respectful identification of laws and customs grounded in another culture, for others it reinforces the power of the Australian legal system to set the terms on which the “customary system” is acknowledged. </p>
<h2>Connection to country</h2>
<p>Recognising Indigenous law remains controversial – as shown by debates about constitutional recognition of Aboriginal and Torres Strait Islander peoples. And, it has modern, practical implications – for example, for the use of traditional knowledge in the co-management of lands and waters.</p>
<p>Importantly, recognition of traditional law and custom giving rise to “connection” to land and waters is the central legal test for determining native title claims under the Native Title Act. </p>
<p>The ALRC <a href="https://www.alrc.gov.au/publications/alrc126">reviewed</a> that legislation from 2013 to 2015. It recommended reforms to the connection test, which requires Aboriginal and Torres Strait Islander peoples to show evidence they have remained a society that has continued to acknowledge (practice) their traditional law and customs, without substantial interruption, since before colonisation. </p>
<p>This is a demanding test. While some allowance is made for change to law and custom over time, difficult legal questions remain about how much change is possible for laws and customs to still be “<a href="https://www.alrc.gov.au/publications/5-traditional-laws-and-customs-0">traditional</a>”.</p>
<p>The ALRC’s <a href="https://www.alrc.gov.au/publications/alrc126">2015 report</a> recommended <a href="https://www.alrc.gov.au/publications/recommendations-3">changes</a> to the definition of native title to recognise that traditional laws and customs may adapt, evolve or otherwise develop. The earlier report had also emphasised the dynamic nature of Aboriginal customary law. </p>
<p>The 2015 report tackled the difficulties around showing evidence of Aboriginal and Torres Strait Islander peoples’ <a href="https://www.alrc.gov.au/publications/7-proof-and-evidence">traditional law and custom</a>, and recommended that native title rights for commercial purposes <a href="https://www.alrc.gov.au/publications/8-nature-and-content-native-title-0">be recognised</a>. It suggested reforms to strengthen the internal governance capacity of native title groups, while allowing for <a href="https://www.alrc.gov.au/publications/10-authorisation-0">traditional authority</a> to be exercised. </p>
<p>The Connection to Country report hasn’t receive the attention of the earlier inquiry, but if the Native Title Act is to help achieve a sustainable cultural and economic future for Aboriginal and Torres Strait Islander peoples, then recognition of the evolution of traditional law and custom is vital and further legal reform is needed.</p>
<p>The customary law report provided the basis for longer-term social change. It remains a rich source of knowledge of Aboriginal customary law and traditions, and set strong grounds for law reform.</p>
<hr>
<p><em>This article is part of a <a href="https://theconversation.com/au/topics/indigenous-customary-law">special package marking the 30th anniversary</a> of the Australian Law Reform Commission’s report on Aboriginal customary law.</em></p><img src="https://counter.theconversation.com/content/60193/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lee Godden has received past funding from the Australian Research Council (Linkage grants) related to the Agreements, Treaties and Negotiated Settlements project at The University of Melbourne. From 2013-15, she was the Commissioner leading an Inquiry into the Native Title Act 1993 for the Australian Law Reform Commission.</span></em></p>The Recognition of Aboriginal Customary Laws examined the interaction between two legal systems – one based in British law and the other in the customary laws of the Aboriginal peoples of Australia.Lee Godden, Professor, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/601872016-06-09T20:09:11Z2016-06-09T20:09:11ZLaw reports push piecemeal changes to native title, but still fall short<figure><img src="https://images.theconversation.com/files/125818/original/image-20160609-3513-t5h7l8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Country provides a site where Aboriginal and mainstream forms of law can come together and have dialogue – an outcome made possible by Eddie Mabo (L).</span> <span class="attribution"><span class="source">AAP/NAA</span></span></figcaption></figure><p>June 2016 marks two significant anniversaries for the relationship between Australia’s Indigenous and settler populations. June 12 is the 30th anniversary of the Australian Law Reform Commission’s (ALRC) publication of its report on <a href="http://www.alrc.gov.au/inquiries/aboriginal-customary-laws">Aboriginal Customary Laws</a>; and June 3 marked 24 years since the Mabo ruling.</p>
<p>The <a href="http://www.alrc.gov.au/inquiries/aboriginal-customary-laws">ALRC report</a> uncovered a wealth of information on Aboriginal and Torres Strait Islander cultural practices. Its aim was to determine the desirability of applying – on the whole or in part – customary law to Indigenous Australians.</p>
<p>And the 1992 High Court ruling in the <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1992/23.html">Mabo case</a> was a game-changer; it consigned the legal fiction of <em>terra nullius</em> (the idea that Australia was uninhabited at the time of British colonisation) to the dustbin of history. </p>
<p>The ALRC report was an earnest attempt at acknowledging the existence and relevance of Aboriginal law and culture to Indigenous Australians. It stopped short of recommending special legislation recognising Aboriginal law, but it did make some useful recommendations about how settler law could deal more fairly with Aboriginal people by taking their traditions and customs into account.</p>
<h2>What did the reports call for?</h2>
<p>The political classes received the report with polite indifference. This fate befell another landmark inquiry, the Law Reform Commission of Western Australia’s (LRCWA) <a href="http://www.lrc.justice.wa.gov.au/P/project_94.aspx">1996 report</a> into Aboriginal customary laws, in which I was involved.</p>
<p>The WA inquiry, like the ALRC’s, examined the status of Aboriginal law. Less energy was spent deciding whether Aboriginal law still held force than on asking how settler and Indigenous law could be harmonised. </p>
<p>The LRCWA found Aboriginal law was a fact of life for Indigenous Australians. It governed social relations on a daily basis – whether other Australians condescended to “recognise” the fact or not.</p>
<p>The report suggested it was insulting to Aboriginal people for their law’s existence to be constantly doubted, or make them prove they had law whenever it piqued settler Australians’ curiosity. </p>
<p>This was also the finding of a 1994 <a href="https://www.nt.gov.au/justice/law/towards-mutual-benefit-an-inquiry-into-aboriginal-customary-law-in-the-northern-territory">Northern Territory Law Reform Committee inquiry</a>. It concluded Aboriginal law was a significant and positive force in daily life – not just for Indigenous people in remote areas, but also in rural and urban communities. </p>
<p>Elders and cultural bosses told the LRCWA they did not want their law codified and written down like white man’s law, because that would allow white law (or worse, white lawyers) to “own” Aboriginal law. This confirmed the ALRC’s view that codification was not an appropriate way of recognising customary laws. </p>
<p>Aboriginal people are consistent in saying they want their own laws, rituals and ceremonies left alone: to be passed down orally, not written down. They are convinced, despite all the damage inflicted by white colonisation to the fabric of Indigenous social and spiritual life, that Aboriginal law will endure. For them, white-fella law is just a tablecloth; black-fella law is the sturdy table beneath. </p>
<p>Aboriginal people were interested in discussing why they were discriminated against by the settler law and justice systems; why the rates of Aboriginal people, particularly youth, in jail were so catastrophically high; and why their own law and culture were denied jurisdiction. </p>
<p>Many of the LRCWA report’s recommendations concentrated on what it called “community justice mechanisms”, such as setting up Aboriginal courts (where elders sit with magistrates); community justice groups (where elders sit with police and other agencies to develop local diversionary strategies); and what it called “community-owned” programs run and managed by Aboriginal communities. </p>
<p>Ideas in the ALRC’s spirit also called for investment in what it called local justice mechanisms. </p>
<h2>How did Mabo change the game?</h2>
<p>If the ALRC inquiry was a kind of gentlemen’s duel conducted within the accepted rules of the game, then Mabo was pure shock and awe.</p>
<p>The legislative response to the Mabo decision led to the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/nta1993147/">Native Title Act</a>. This delivered “<a href="http://www.theage.com.au/articles/2004/04/16/1082055637245.html">bucket loads of extinguishment</a>”, in the words of Tim Fischer, as well as granting native title. </p>
<p>The demands the act places on claimants to demonstrate continuity work to undermine the very purpose and spirit of the legislation (and the Mabo judgment) by making native title tortuously difficult to determine. Nonetheless, Australia is reaching a post-determination era; significant parts of its land mass are subject to a determination. </p>
<p>But the problems for title-holders do not cease there. The Native Title Act denies holders the right to leverage their land title to develop economic activity. This stymies their capacity to build “on-country” enterprises that sustain culture while generating capital (such as native fruits and medicines), or create partnerships with businesses such as resource industries, on favourable terms. </p>
<p>The act also denies them a veto over development activities they deem inappropriate. </p>
<p>The recommendations of the ALRC’s 2015 <a href="https://www.alrc.gov.au/publications/alrc126">review of the Native Title Act</a> go some way to rectifying some anomalies. It focuses on <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/nta1993147/s223.html">Section 223</a> of the Native Title Act, which says native title rights and interests include, but are not limited to, hunting, gathering, or fishing, rights and interests. </p>
<p>The ALRC recommended inclusion of a “right to trade”. This may allow title-holders to make better commercial use of their lands. It also throws some weight behind the view that law and custom are not static but evolve over time. </p>
<p>Connection to country may offer some Aboriginal communities a stake in their economic future. Country also provides a place to heal the traumas of colonisation, and a site where Aboriginal and settler forms of law can come together and have dialogue – an outcome favoured by the ALRC and LRCWA, and made possible by Eddie Mabo.</p>
<hr>
<p><em>This article is part of a <a href="https://theconversation.com/au/topics/indigenous-customary-law">special package marking the 30th anniversary</a> of the Australian Law Reform Commission’s report on Aboriginal customary law.</em></p><img src="https://counter.theconversation.com/content/60187/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Harry Blagg does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The ALRC report made some useful recommendations about how settler law could deal more fairly with Aboriginal people by taking their traditions and customs into account.Harry Blagg, Professor of Criminology, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/562112016-05-09T02:40:51Z2016-05-09T02:40:51ZBlack Velvet: redefining and celebrating Indigenous Australian women in art<figure><img src="https://images.theconversation.com/files/120914/original/image-20160502-19554-1dqoj1v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A picture of strength: lifelong activist Bonita Mabo OA in front of her portrait as a young woman, which features in her granddaughter Boneta-Marie Mabo's first solo exhibition.</span> <span class="attribution"><span class="source">Josef Ruckli, courtesy of the State Library of Queensland</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p><em>* Warning: This article contains graphic language that may upset some readers, while Aboriginal and Torres Strait Islander readers should be aware that it may contain images, voices or names of deceased people.</em></p>
<p>With her first solo exhibition, artist Boneta-Marie Mabo has been inspired by the State Library of Queensland’s collections to create new works that speak back to colonial representations of Indigenous womanhood.</p>
<p>She found portraits of Indigenous women without any name, or with labels such as “black velvet” or “gin”; objects, rather than women. Men on the frontier sought to control Aboriginal lands as well as women’s bodies – with or without consent. </p>
<p>The 2005 documentary <a href="http://aso.gov.au/titles/documentaries/pioneers-love/">Pioneers of Love</a> discusses the colonial fetish for Indigenous women. </p>
<blockquote>
<p>Revered author Henry Lawson was one of the first to popularise the phrase ‘black velvet’. It described the soft, smooth skin of Aboriginal women – or ‘gins’, as they were referred to then. The men who associated with Aboriginal women were known as ‘gin jockeys’. And their children were often referred to as ‘burnt corks’. – Watch from 1:52 of <a href="http://aso.gov.au/titles/documentaries/pioneers-love/clip2/">this clip</a> of the documentary.</p>
</blockquote>
<p>But Boneta-Marie’s exhibition, <a href="http://www.slq.qld.gov.au/whats-on/calevents/kd/black-velvet-your-label">Black Velvet: your label</a>, is more than a response to the past. It’s also about the struggle not to let others define our identity. And it’s a celebration of Indigenous women today, including Boneta-Marie’s grandmother, activist and Order of Australia winner <a href="http://www.indigenous.gov.au/20799">Bonita Mabo</a>.</p>
<h2>Past and present inspiration</h2>
<p>In 2015, Boneta-Marie Mabo was named as the inaugural artist-in-residence for the State Library of Queensland’s <a href="http://www.slq.qld.gov.au/services/library-spaces/kuril-dhagun">kuril dhagun Indigenous centre</a>. </p>
<p>The year before, she won the <a href="http://www.magnt.net.au/#!telstra-natsiaa-2014/c250a">People’s Choice</a> award at the National Aboriginal and Torres Strait Islander Art Award for her street art-inspired works celebrating the life of her activist grandfather, the late <a href="http://aiatsis.gov.au/explore/articles/eddie-koiki-mabo">Eddie Koiki Mabo</a>.</p>
<p>Looking through the state library’s collections during her residency, Boneta-Marie says she felt “sad and really bothered” by the colonial portraits of Aboriginal women she discovered. Many had labels. But rarely were those ancestors referred to with any respect. </p>
<p><audio preload="metadata" controls="controls" data-duration="19" data-image="" data-title="Colonial labels for Indigenous women" data-size="230632" data-source="" data-source-url="" data-license="CC BY" data-license-url="http://creativecommons.org/licenses/by/4.0/">
<source src="https://cdn.theconversation.com/audio/396/boneta-marie-mabo-labels.mp3" type="audio/mpeg">
</audio>
<div class="audio-player-caption">
Colonial labels for Indigenous women.
<span class="attribution"><a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a><span class="download"><span>225 KB</span> <a target="_blank" href="https://cdn.theconversation.com/audio/396/boneta-marie-mabo-labels.mp3">(download)</a></span></span>
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<p><em>Black Velvet: your label</em> responds to that history with nine life-sized works: five soft sculptures and four oil portraits with micro-story labels.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/120913/original/image-20160502-19549-1mw92w0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/120913/original/image-20160502-19549-1mw92w0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/120913/original/image-20160502-19549-1mw92w0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=905&fit=crop&dpr=1 600w, https://images.theconversation.com/files/120913/original/image-20160502-19549-1mw92w0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=905&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/120913/original/image-20160502-19549-1mw92w0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=905&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/120913/original/image-20160502-19549-1mw92w0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1137&fit=crop&dpr=1 754w, https://images.theconversation.com/files/120913/original/image-20160502-19549-1mw92w0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1137&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/120913/original/image-20160502-19549-1mw92w0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1137&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Two of the works in soft black velvet and Boneta-Marie’s self-portrait.</span>
<span class="attribution"><span class="source">Josef Ruckli/image courtesy of State Library of Queensland</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Boneta-Marie says her soft sculptures in black velvet were a way to “acknowledge all the women that are passed who didn’t have the ability to have control of their image or of their identity”.</p>
<p>The five black velvet soft sculptures encourage their viewers to contemplate the entrapment of being labelled by outsiders. Unseen hands push from behind the black velvet, never quite breaking through. These sculptures afford us a view of the resistance to labels. </p>
<p>Soft black velvet is used to resist the harsh label “black velvet”, which retains negative connotations for those who resist treating Indigenous women as sexual objects. </p>
<h2>Portraits of women defining themselves</h2>
<p>In contrast, Boneta-Marie’s oil portraits present four women of today as full and unique human beings. </p>
<p>They celebrate women at different stages of their lives, who chose their own poses and were labelled exactly as they wanted to be seen, including the youngster immersed in selfie culture, as well as a young mother feeding her baby.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/120881/original/image-20160502-19538-cblrf7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/120881/original/image-20160502-19538-cblrf7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/120881/original/image-20160502-19538-cblrf7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=774&fit=crop&dpr=1 600w, https://images.theconversation.com/files/120881/original/image-20160502-19538-cblrf7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=774&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/120881/original/image-20160502-19538-cblrf7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=774&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/120881/original/image-20160502-19538-cblrf7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=973&fit=crop&dpr=1 754w, https://images.theconversation.com/files/120881/original/image-20160502-19538-cblrf7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=973&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/120881/original/image-20160502-19538-cblrf7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=973&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A proud Bonita Mabo embraces her artist granddaughter Boneta-Marie Mabo.</span>
<span class="attribution"><span class="source">Liz Minchin</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Boneta-Marie’s smiling self-portrait sums up the sense of humour as well as history in this exhibition. The label beside it reads: “Boneta-Marie J Mabo (Neta-Rie), Piadram, Munbarra, Sugar slave descendant, an angry black woman and a lover of fashion and art.”</p>
<p>Boneta-Marie’s grandmother proved to be the most challenging portrait of all.</p>
<p>Now in her 70s, <a href="http://www.theaustralian.com.au/archive/in-depth/bonita-mabos-battle-as-vital-as-eddies/story-fnh2874a-1226562123983">Bonita Mabo</a> has lived an extraordinary life as an <a href="https://www.kanopystreaming.com/product/who-i-am-bonita-mabo-everyday-brave">educator</a>, mother of 10, and a tireless activist like her late husband. </p>
<p>But it took a while before old stories led them to the right moment in time to paint her: young, hard at work, and powerful.</p>
<p><audio preload="metadata" controls="controls" data-duration="79" data-image="" data-title="The story behind Bonita Mabo's portrait" data-size="927352" data-source="" data-source-url="" data-license="CC BY" data-license-url="http://creativecommons.org/licenses/by/4.0/">
<source src="https://cdn.theconversation.com/audio/395/boneta-marie-mabo-1.mp3" type="audio/mpeg">
</audio>
<div class="audio-player-caption">
The story behind Bonita Mabo’s portrait.
<span class="attribution"><a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a><span class="download"><span>906 KB</span> <a target="_blank" href="https://cdn.theconversation.com/audio/395/boneta-marie-mabo-1.mp3">(download)</a></span></span>
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<p><em>* Black Velvet: your label is <a href="http://www.slq.qld.gov.au/whats-on/calevents/kd/black-velvet-your-label">open to the public</a> at the State Library of Queensland until May 29, 2016.</em></p><img src="https://counter.theconversation.com/content/56211/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sandra Phillips does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Boneta-Marie Mabo’s art responds to a colonial past in which Aboriginal women were fetishised as “black velvet”. But it also celebrates strong women, including her activist grandmother Bonita Mabo.Sandra Phillips, Lecturer, Creative Writing and Literary Studies, School of Media, Entertainment and Creative Arts, Creative Industries Faculty, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/280992014-06-20T02:15:25Z2014-06-20T02:15:25ZFighting for their country: inside the battle for Cape York<p>This week’s <a href="http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2014/2014fca0627">Federal Court ruling</a> that the Wild Rivers declarations introduced by the former Queensland Labor Government <a href="http://www.abc.net.au/lateline/content/2014/s4027405.htm">were rushed and invalid</a> was the long-awaited result many Cape York Indigenous groups had been hoping for.</p>
<p>Justice Andrew Greenwood concluded that in 2009, the Bligh Government made procedural errors in declaring the Archer Basin, Lockhart Basin and Stewart Basin as <a href="http://australia.gov.au/about-australia/australian-story/australias-wild-rivers">“Wild Rivers”</a>, banning development within a kilometre of the banks of the rivers under the Wild Rivers Act 2005. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/51693/original/wx444md8-1403223453.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/51693/original/wx444md8-1403223453.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/51693/original/wx444md8-1403223453.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=423&fit=crop&dpr=1 600w, https://images.theconversation.com/files/51693/original/wx444md8-1403223453.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=423&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/51693/original/wx444md8-1403223453.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=423&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/51693/original/wx444md8-1403223453.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=531&fit=crop&dpr=1 754w, https://images.theconversation.com/files/51693/original/wx444md8-1403223453.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=531&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/51693/original/wx444md8-1403223453.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=531&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A map of the Archer, Lockhart and Stewart basins in far north Queensland.</span>
<span class="attribution"><a class="source" href="http://archive.nwc.gov.au/library/topic/planning/report-card/queensland/planning-areas/archer-lockhart-stewart-wild-river-declaration">National Water Commission</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Within hours of the ruling, the current <a href="http://www.abc.net.au/news/2014-06-17/queensland-government-wild-rivers-declarations-declared-invalid/5529148">Queensland government announced that it would repeal</a> all of the state’s Wild Rivers declarations when parliament returns in August. That was not necessary for the rivers affected by the Federal Court’s decision, but it will effectively mean it’s back to the drawing board for development rules over north and western Queensland river regions.</p>
<p>The Queensland government already has a <a href="https://theconversation.com/the-battle-for-cape-york-whose-vision-will-win-out-18410">Cape York Regional Plan</a> consultation process underway, which was due to be finalised by the middle of 2014. That process – being less rushed than the Wild Rivers Declarations – has some prospect of being a result that takes into account the concerns of Cape York residents, and provides a better balance between conservation and reasonable opportunities for economic activity for Aboriginal communities on Cape York.</p>
<p>So what was the Federal Court challenge all about? And how will it affect future development in Cape York?</p>
<h2>The story behind the case</h2>
<p>This court challenge was led by Martha Koowarta on behalf of the Wik people of Aurukun, the Umpila of Lockhart River and the Lama Lama People of the Stewart River.</p>
<p>I first became involved in advising on this issue in 2009-2010, after meeting Martha at James Cook University in Cairns. In recent years I have continued to provide commentary on the issue to Parliamentary inquiries and the media, and in conference presentations and debates, including one with the Wilderness Society.</p>
<p>I had represented her late husband John Koowarta – sometimes called <a href="http://connection.ebscohost.com/c/articles/24230136/john-koowarta-mabo-mainland">“the Mabo of the mainland”</a> – in the case of <a href="http://en.wikipedia.org/wiki/Koowarta_v_Bjelke-Petersen">Koowarta v Bjelke-Petersen</a>, in which he fought Joh Bjelke-Petersen’s Queensland government for more than 10 years in a battle for Indigenous land rights and to have the Wik claim recognised.</p>
<p>The case was decided in the High Court of Australia in 1982, and concerned the constitutional validity of parts of the Racial Discrimination Act 1975, and the discriminatory acts of the Queensland government in blocking Koowarta and other local Aboriginal people from buying land in their own traditional country in northern Queensland.</p>
<p>It became a test case for federal anti-discrimination laws, without which there could have been no landmark <a href="http://www.theaustralian.com.au/50th-birthday/the-landscape-diversifies/story-fnlk0fie-1226908882074">Mabo ruling in 1992</a>, which extinguished the notion of <a href="http://en.wikipedia.org/wiki/Terra_nullius"><em>terra nullius</em></a>: that Australia was unoccupied before British colonisation. </p>
<h2>Grounds to challenge</h2>
<p>Having fought alongside her late husband against the Bjelke-Petersen government’s discriminatory policies – which eventually led to <a href="http://www.abc.net.au/7.30/content/2012/s3508700.htm">an historic land hand-back</a> in 2012 – Martha and other Wik residents of Aurukun challenged the Wild Rivers Declaration out of concern that it would limit their capacity to exercise their hard-won native title rights over the Archer Bend area. </p>
<p>In particular, a number of Cape York Aboriginal communities were concerned that:</p>
<ul>
<li>the Wild River declarations were made without adequate consultation with local people;</li>
<li>they covered enormous flood plains of entire river basins; and </li>
<li>they imposed on those areas a highly complex raft of legislative procedures that had to be complied with.</li>
</ul>
<p>The effect of a declaration under the Wild Rivers Act was to take away the native title right of the Wik People to control access to their land and waters. It was a “future act” under the Native Title Act, and had not gone through the “right to negotiate” procedures under that Act. The Federal Court in this week’s ruling did not need consider that issue, instead deciding it on a preliminary issue of improper procedures.</p>
<h2>Rushing through big changes</h2>
<p>This decision is part of a much broader campaign challenging the declaration of Wild Rivers on Cape York. </p>
<p>In the lead up to the 2009 state election, an environment group <a href="http://www.wilderness.org.au/articles/queenslands-wild-rivers-need-your-help">The Wilderness Society mounted a campaign</a> to have Wild Rivers declared in Queensland. The Bligh government embraced the Wilderness Society campaign, promising to declare wild rivers if elected. </p>
<p>The government identified 22 river basins, which included 50 rivers as wild rivers. The Lockhart River declaration alone included 5 rivers. </p>
<p>The community consultation required under the Wild Rivers Act was effectively managed by the Wilderness Society on behalf of the Bligh government.</p>
<p>Aboriginal groups on Cape York protested to the government that inadequate time had been allowed to effectively consult with remote communities.</p>
<h2>The ruling</h2>
<p>This week, Justice Greenwood was able to reach his conclusion on the basis of procedural errors.</p>
<p>The Minister had a statutory obligation to personally consider the results of community consultation and all submissions.</p>
<p>The court found that the Natural Resources Minister at the time, Stephen Robertson, was told by then Premier Anna Bligh that she wanted the decisions progressed with urgency, following the government’s re-election on 21 March 2009.</p>
<p>Robertson decided to approve the Declarations on 31 March 2009. However, the decision was made without the minister having considered the submissions made to him, and so contrary to the requirements of the Wild Rivers Act.</p>
<p>The Wilderness Society campaign and actions of the former Queensland government <a href="http://www.abc.net.au/news/2009-04-20/divisions-run-deep-in-qld-wild-rivers-debate/1656948#name2">caused a rift between Aboriginal groups</a> on Cape York and groups around the Gulf of Carpentaria. </p>
<p>While Cape York groups led by Noel Pearson were critical of Wild Rivers declarations as stifling economic development for Aboriginal groups on the Cape, Murrandoo Yanner, speaking for Gulf communities, backed the declarations as a way of maintaining healthy rivers that had fed and sustained people for thousands of years.</p>
<h2>A case with long-term lessons</h2>
<p>Embraced by her granddaughter Christine outside the Federal Court in Brisbane on Tuesday, a <a href="http://www.cairnspost.com.au/news/cairns/indigenous-leaders-hail-federal-court-victory-on-wild-rivers-laws-a-win-over-economic-apartheid/story-fnjpusyw-1226958230180">delighted Martha Koowarta declared</a>: </p>
<blockquote>
<p>They stole our voice. But this now is a great victory for our people.</p>
</blockquote>
<p>Hope Vale-based campaigner <a href="http://www.cairnspost.com.au/news/cairns/indigenous-leaders-hail-federal-court-victory-on-wild-rivers-laws-a-win-over-economic-apartheid/story-fnjpusyw-1226958230180">Tracey Ludwick said</a> she hoped to see new development go ahead for her people, including “a lot more of eco-tourism and different types of things like that up in Cape York”.</p>
<p>But as <a href="http://www.theaustralian.com.au/national-affairs/opinion/short-cuts-will-leave-you-lost-in-the-wild/story-e6frgd0x-1226957985727">The Australian’s Graham Lloyd commented</a> after the judgement, <a href="https://www.ehp.qld.gov.au/wildrivers/pdf/archer-wild-river-declaration-2009.pdf">eco-tourism projects were never ruled</a> out by Wild Rivers declarations. In his view: </p>
<blockquote>
<p>Rather than guesthouses, it is more likely dam builders and miners will be beating a path to the once wild and protected areas.
… The decision sends an ominous warning for current governments, and industry, that taking short cuts on process can lead to tears. Environment groups have already signalled a new era of litigation in response to the federal government’s decision to hand environmental powers to the states.</p>
</blockquote>
<p>Clearly, this court decision <a href="http://www.abc.net.au/news/2014-06-18/revoking-wild-rivers-essential-for-ag-development/5533408">will have a major impact</a> on what happens in years to come across north and western Queensland.</p>
<p>We can only hope that governments, industry and environmental groups all learn the lessons of this case: not to ignore and override the wishes of traditional owners, who shouldn’t have to spend years of their lives in and out of court, fighting to have their basic legal rights respected.</p><img src="https://counter.theconversation.com/content/28099/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gregory McIntyre has advised the Wik people on this and other issues in the past, but not since 2010. In recent years, he has continued to provide commentary on the issue to Parliamentary inquiries and the media, and in conference presentations and debates, including one with the Wilderness Society.</span></em></p>This week’s Federal Court ruling that the Wild Rivers declarations introduced by the former Queensland Labor Government were rushed and invalid was the long-awaited result many Cape York Indigenous groups…Gregory McIntyre, Adjunct Professor, University of Notre Dame AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/74432012-06-04T20:34:36Z2012-06-04T20:34:36ZAdvocates or activists: what can lawyers learn from Mabo?<figure><img src="https://images.theconversation.com/files/11359/original/tr7x3jcv-1338792457.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Eddie Koiki Mabo (left) and Jack Wailu on the Torres Strait Island of Mer during the High Court challenge.</span> <span class="attribution"><span class="source">AAP/National Archives of Australia</span></span></figcaption></figure><p>Australians have just celebrated <a href="http://maboday.com.au/">Mabo Day</a> – this year marking the 20th anniversary of the landmark <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1992/23.html">High Court decision</a> that changed the course of land rights in Australia</p>
<p>The case has special resonance for us here at <a href="http://www-public.jcu.edu.au/news/JCU_103363">James Cook University</a>. </p>
<p>It is here, on our Townsville campus that Eddie Koiki Mabo worked and shared the story of his people and his land with historians <a href="http://www-public.jcu.edu.au/events/JCU_103474">Henry Reynolds</a> and Noel Loos. At a conference at James Cook in 1981 the seeds were planted to challenge the dispossession of the Meriam people.</p>
<p>Against this backdrop, I have been reflecting on the Mabo decision and what it represents for me: a non-Indigenous Australian lawyer. To me, this story is about the possibilities of the law as a means of progressive change and importantly, about reconciliation itself.</p>
<h2>The possibilities of common law</h2>
<p>One of the things I love about the Mabo decision is that it shows how the existing legal system can be used constructively against itself.</p>
<p>The Meriam people in Mabo used the common law to reinvent the law’s own (English) conceptual framework of land ownership that had previously applied in Australia. There was no suggestion that in using the common law the applicants had accepted or internalised these (English) values and culture. In legal argument, the applicants did not seek to challenge the sovereignty of the dominant group, but sought to stand alongside this introduced culture within its own broad framework.</p>
<p>Importantly also, the court did not seek to absorb the traditional law and custom of the Meriam people: it did not usurp their “native title” but recognised it as a separate system. As a result of their action, the Meriam people became a group whose own laws were recognised by the common law.</p>
<p>This is the possibility implicit in the common law: the possibility to accept people and culture on their own terms.</p>
<h2>Identity and the law</h2>
<p>The Mabo decision highlights the law’s capacity to create cultural identity. For Aboriginal and Torres Strait Islander Australians, the law has embodied a fiction that literally renders them invisible, as a means of justifying sovereignty. This translates to a domestic law principle that pre-Mabo justified Crown ownership of land to the exclusion of traditional owners.</p>
<p>These doctrines and principles embody a European view of culture that negates the capacity of traditional cultures to support connection to land. The power of the Mabo decision lies partly in its recognition that Aboriginal and Torres Strait Islander cultures <em>do</em> have capacity to support connection to land in a way that is recognisable at (Anglo-Australian) law.</p>
<p>The power we invest in the law to validate cultural expression of land connection is a double-edged sword however, and we celebrate Mabo as the positive side of this. But the law continues to tell Aboriginal and Torres Strait Islander Australians that it will not recognise their connection to land, impliedly thus rejecting their culture. </p>
<p>The <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2002/58.html">Yorta Yorta</a> decision is an example of this in which the Court found that “the tide of history has indeed washed away any real acknowledgement of their traditional laws and any real observance of their traditional customs.” The law thereby purported to construct the culture of the Yorta Yorta people.</p>
<p>It is important to celebrate the victory of Mabo, but also to be wary of leaving ourselves vulnerable to the power of the law to render us invisible.</p>
<h2>Creative legal thinking</h2>
<p>Finally, for lawyers, the Mabo decision represents a high water mark in legal thinking: thinking outside what might seem possible. The elegance of the argument in Mabo cannot be disputed.</p>
<p>As <a href="http://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_castan.htm">Michael Kirby</a> said of Ron Castan QC, one of the counsels in Mabo:</p>
<p>“It is advocates, as much as judges, who shape the destiny of the common law. By their imagination, learning, courage and forensic skills, advocates create the agenda and map the course of the greatest legal developments.”</p>
<p>Ron Castan was “<a href="http://home.vicnet.net.au/%7Eliberty/homepages/november99.html">widely credited</a> with shaping the High Court’s decision in that case.” “<a href="http://www.blogger.com/%20http://www.law.monash.edu.au/castancentre/about/roncastan.html">Without [his] vital contribution</a> [along with Eddie Mabo] … the Mabo cases would never have survived their ten-year torturous course - let alone succeeded.” </p>
<p>This capacity for creative thinking, however, was inspired by something more. For lawyers, it is necessary to be intelligent and skilled - but it is not sufficient. Kirby points out that for Ron Castan QC, “his was a spiritual journey of love unbounded.” It is this quality that will enhance the capacity for lawyers’ creative engagement in the law, and their capacity for embodying justice - and in the Mabo case, of living reconciliation.</p>
<p>The Mabo decision represents a powerful dignity. Dignity of those who persisted to bring this case, as well as dignity in the common law - a system with the capacity for imagination and flexibility and justice.</p><img src="https://counter.theconversation.com/content/7443/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kate Galloway does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Australians have just celebrated Mabo Day – this year marking the 20th anniversary of the landmark High Court decision that changed the course of land rights in Australia The case has special resonance…Kate Galloway, Senior Lecturer in Law, James Cook UniversityLicensed as Creative Commons – attribution, no derivatives.