1995 Global Cultural Diversity Conference Proceedings, Sydney
Moving the Debate forward in Australia: Multiculturalism Post-Mabo
Dr Helen Cattalini
Director, Allbrook Cattalini Research Pty Ltd, Australia
Introduction
Multiculturalism can legitimately lay claim to be a most powerful, unifying, fair and just public policy. The dream of a culturally diverse nation in which many peoples live in harmony, mutual respect and socially equality is progressing towards reality. Multiculturalism will, however, be less relevant in the future unless it embraces the reality of Australian heritage and cultural rights, including those espoused by the High Court in the Mabo judgments. By doing so multicultural Australia, post-Mabo, is likely to be a more mature nation.
When multiculturalism was introduced as public policy in Australia in the 1970s it replaced the policy of integration, which in turn had followed that of assimilation. All three policies had one common concept; all three could be said to embrace the concept of "oneness" "one people", "one nation". The significant difference between them was that, unlike multiculturalism, assimilation demanded and integration encouraged a "oneness" which implied "sameness. They were "exclusive policies", as in their time the Anglo-Australian culture was the most valued, and to be a true "Australian" one spoke English and lived an Anglo-Australian way of life. Peoples from outside cultures could only become true Australians by learning English, and leaving behind their own language and cultural heritage, as quickly as possible. "Outside" cultures included that of the indigenous peoples.
Multiculturalism, on the other hand, is a policy of "inclusion", the first such public policy dealing with cultural diversity. "Oneness" takes on a new meaning. It now denotes a "oneness" which has many parts, each of equal importance. Multiculturalism gave formal recognition to the diversity of cultures in Australia, and over the last two decades or so has enshrined the importance of the many languages, traditions, heritages and customs found in the Australian culture of today. This "inclusiveness" is what is being referred to when multiculturalism is put forward as a policy for "all Australians". Multiculturalism has influenced and continues to influence our laws, the political scene and the way the country carries out its civic responsibilities.
Three considerations come to mind when looking at post-Mabo multiculturalism. The first is that even its most vehement supporters must acknowledge that multiculturalism has failed in one area, it has failed to support and to carry forward the aspirations of Australia's indigenous peoples. While cohesiveness between anglo-Australians and Australians of non-English speaking backgrounds and the safeguard of their cultural and social rights have been positively influenced by the Australian Government's commitment to multicultural policy, such due recognition has not been given to the reality of the indigenous Australian heritage or to the enhancements of the rights of indigenous peoples as put forward by them over the last two decades or so.
The second factor is that the precepts on which multiculturalism is based and its goals, if extended to the relationship between indigenous and non-indigenous peoples, can provide the means by which Australia comes to terms with the post-Mabo era.
The third factor in exploring the future of multiculturalism post-Mabo is the acknowledgment that the Mabo High Court judgments are revolutionary. They will have far reaching impact on the political, social and legal arrangements in Australia and will effect all Australians.
Mabo
The term "Mabo" is used, in general terms, to refer to the current movement for land rights by the indigenous peoples of Australia, and more specifically to the judgments of the Australian High Court in relation to native title. The High Court decisions of 1988, 1992 and 1995 are relevant and with the Commonwealth Native Title Act of 1993 establish a form of native title in Australian law.
This was the culmination of action began much earlier. Some twenty years ago in 1976 the Northern Territory Aboriginal Land Rights Act was passed and, later, in 1981 the Pitjantjatjara Land Rights Act; both sought to give indigenous land tenure.
The Mabo judgments, however, went much further. One of the most significant aspects was that it removed, in law, the notion that Australia was "terra nullius" at the time of British colonisation. The political and legal propositions of the "terra nullius" notion were that Australia had neither settled inhabitants or settled law. Later indigenous peoples were purported to be British subjects. Thus in this simple, but draconian, way the colonial authorities were able to resolve all issues of indigenous sovereignty, political arrangements, property and cultural rights.
Telling the Truth about History
The first mission for the new multicultural era is to come to terms with and denounce the historical lies which have been and are still being told about Australia's heritage. This will require more than a political statement, such as the Prime Minister's famous Redfern speech. That public apology is a significant point in the growth of our nation. But telling the historical truth will require firstly, white Australia coming to terms with it, and then the allocation of resources for community education and the development and application of appropriate school curricula.
Land Tenure
The nation must acknowledge that at the time of British colonisation of Australia, indigenous peoples' society was culturally diverse, possibly made up of over 250 cultural groups, and was based on territorial regions held by each of these cultures.
Today the diversity of indigenous cultures continues and often the territorial arrangements maintained. They have not, however, been formally recognised in Australian law.
In this regard, the 1993 Native Title Act is most critical because it recognises that native title is determined by the laws and customs practised by indigenous peoples, and it makes specific provisions to negotiate in relation to native title land. That is a giant step towards advancing the aspirations of indigenous peoples, but there has been some resistance. Most notable has been the Western Australian Government's attempt to extinguish native title in Western Australia through the Land (Titles and Traditional) Usage Act of 1993. A successful challenge to that Act was launched by the Kimberley Land Council and the Aboriginal Legal Service. An earlier, similar attempt by the Queensland Government to extinguish title in 1988 to counter the impending proceedings of the High Court native title case also failed. The impact of the Racial Discrimination Act (1975) was significant as the Queensland move was found to be in contravention of this Act. Likewise the High Court decision of March 1995 ruled that the Western Australian attempt to extinguish native title was also in contravention of this Act and the 1993 Native Title Act.
Within a truly multicultural society, such actions will not find a legal or political haven. Negotiations over native title must progress in a spirit of cooperation and goodwill on both sides.
Laws and Customs
What about the rest of the body of indigenous custom and law referred to by the High Court?
This issue was raised in 1986 in the Law Reform Commission report on the Recognition of Aboriginal Customary Law in Australia, but has not been resolved. The report argues that from the time of colonisation the customary laws and practices of Aboriginal people were denied any formal recognition by the general law as it applies to Australia. It goes on to argue also that one way that Aboriginal custom can be recognised is through the application, or reapplication, of common law rules for the recognition of custom. This, the Commission states, must first involve a reexamination of the methods by which sovereignty was acquired over Australia and a recognition that it was conquered not settled. Had Australia been treated as a "conquered' colony, Aboriginal customary laws, to the extent that they had not been expressly abrogated, would presumably have been recognised, at least in their application to Aborigines. (Australian Law reform Commission report, 1986, vol 1, para. 58, 60, 63, 64.)
The debate around issues of customary law must continue to be progressed if indigenous peoples' right to their cultural practices are to advanced.
Patriotism
The issue of whether Australia was settled or conquered is pertinent to the relationship which exists between indigenous and non-indigenous Australians in the post-Mabo era. The requirement by the colonist authorities of "consent by the natives" for the settlement of Australia was never achieved. There is now overwhelming evidence to show that a devastating warfare was waged across the continent, as the indigenous people were gradually dispossessed firstly of their land and then stripped of their customary law and traditions.
Acceptance of the fact that indigenous peoples were engaged in warfare and fought for their country, often to their death, raises another significant issue for the multicultural Australia of the future. The warfare at the time of, and following, colonisation, makes the indigenous peoples the first patriots, the first to fight to save this continent from invaders. It may seem too controversial a proposition that post-Mabo Australia, in the true "ANZAC tradition", would give due recognition to these first patriots in the nation's war memorials. It is nonetheless a reasonable proposition that due recognition to its earliest patriots be given. War memorials would provide a most tangible demonstration of this recognition.
The issue of patriotism raises questions about national identity, national icons such as the flag, and national celebrations such as Australia Day. Innumerable times indigenous peoples' representatives have called for formal recognition of indigenous flags. There has been no serious movement to replace the national flag, whatever its form in the future, with an indigenous flag. Rather the call has been for the formal recognition of the indigenous flags much like that given to the national flags of the countries from which non-indigenous peoples in Australia have come. Post-Mabo multicultural Australia based on more informed and just principles should have no problems in advancing these aspirations.
The celebration of Australia Day has become an increasingly meaningless notion for indigenous peoples. Finding a separate day to celebrate the totality of Australia's heritage would provide a means for the indigenous and non-indigenous peoples of Australia to celebrate together. Celebrating the nation's heritage together would be an expression of a more mature multicultural nation.
Overcoming Disadvantage
The achievement of equality is also a task for the future multicultural Australia. A recent Australian Bureau of Statistics survey of indigenous people once again demonstrates the seriousness of their impoverished position and once again confirms their status as the most disadvantaged peoples in Australia. We must be careful that "equality" does not come to mean "sameness". The progress towards equality is about social justice, that is doing what is necessary to overcome disadvantage. Indigenous people have been saying, for the past two decades at least, that disadvantage will not be overcome until two things happen: until the recognition of cultural and land rights are given due recognition; and until decisions about their lives are being made by indigenous peoples. Social programs to improve Aboriginal health, housing and general well being have largely failed. A new way must be found.
The authors of the Report of the Royal Commission into Aboriginal Deaths in Custody argue that the new way is to give indigenous peoples more control over their lives.
Aboriginal people have for two hundred years been dominated to an extraordinary degree by the non-Aboriginal society and (their) disadvantage is the product of that domination ... the elimination of disadvantage requires an end to domination and an empowerment of Aboriginal people; that control of their lives, of their communities must be returned to Aboriginal hands (RCIADIC Report, Vol 1, p.l5)
Indigenous peoples have been calling for this self determination for many years, as part of a call for general rights. As part of its commitment to this process, the Federal Government has made a commitment to the development of a Social Justice Package. Each of the three agencies coordinating the consultations on the development of the package, the Aboriginal and Torres Strait Islander Commission (ATSIC), the Human Rights and Equal Opportunity Commission and the Council for Aboriginal Reconciliation all made specific recommendations for constitutional recognition of the rights of indigenous self determination.
This is in line with the draft Declaration on the Rights of Indigenous Peoples currently being considered by the United Nations Commission on Human Rights. The draft states: Indigenous Peoples have the right of self determination, in accordance with international law, subject to the same criteria and limitations as apply to other peoples in accordance with the Charter of the United Nations. By virtue of this they have the right, 'inter alia', to negotiate and agree upon their role in the conduct of public affairs, their distinct responsibilities and the means by which they manage their own interests. ... Indigenous peoples have the right to participate fully in the political, economic, social and cultural life of the State, while maintaining their distinct political, economic, social and cultural characteristics. (Operative paras 3 and 4).
Reconciliation
All of this leads to what must arguably be the main feature of the post-Mabo multicultural Australia, a reconciliation between indigenous and non-indigenous people.
This is a matter which must be resolved by negotiation in a spirit of goodwill and respect on both sides. This aspect of mutual agreement has been put forward in many of the recent documents of the Reconciliation Council and others.
The Council's Paper Agreeing on a Document proposes that ... Self determination, subject to the Constitution and laws of the Commonwealth of Australia, ought now to be seen as a non-controversial statement of the legitimate and recognisable aspirations of Indigenous Australians seeking maximum community independence while remaining part of the nation-state. (Agreeing on a Document, Key Issue Paper No 7, p 27).
The main issues for reconciliation are to recognise the effect of colonisation on the relationship between indigenous peoples and the land, and that there was no acquiescence to the system of governance imposed on them. (CAR Report "Going forward. Social justice for the First Australians", introductory letter.)
The matter of the "consent of the natives" is a primary issue that still remains to be resolved. How to attain the consent is one of the fundamental tasks with which Australia is faced.
There is a growing acceptance in Australia that reconciliation is timely that it is in the best national interests as it will avoid prolonged legal or other adversarial actions.
The process of arriving at "consent" has the potential to provide the framework for the building of our nationhood and national identity. When the process is complete Australia will be a pluralist all "inclusive" multicultural nation, and its national identify will have been forged.
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