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Reportage

Trick or treaty

Will states redress founding flaw?

AS JACQUI WANDIN gazes out over the rolling paddocks and scribbles of bushland, she can visualise the scene a century and a half ago, when the landscape was dotted with timber cottages, workshops, brick-making kilns, milking sheds, a sawmill, butchery, church and schoolhouse.

This was Coranderrk Aboriginal Station, one of half-a-dozen Victorian missions and reserves, founded just outside present-day Healesville, north-east of Melbourne. Situated where the Yarra River meets Badger Creek, the community ran horses and cattle, grew fruit, vegetables and cereal crops, and produced hops that won a string of gold medals at royal agricultural shows.

Those achievements, which made it the envy of white farmers, are not, though, the reason for Coranderrk’s unique place in Victorian – and Australian – Indigenous history. Rather, it is the persistence and courage with which its people fought for their land, pitting themselves against the powerful Aborigines Protection Board. Following a group of Tasmanians headed by Walter George Arthur, who sent a petition to Queen Victoria in 1845, these were Australia’s first Indigenous activists. Theirs is a chronicle of aspirations raised and crushed – a chronicle for our times.

Coranderrk’s leaders were the ngurungaeta (clan chief) Simon Wonga and his cousin, the celebrated artist William Barak, whose nephew, Robert Wandoon (or Wandin), was Jacqui Wandin’s great-grandfather. They were Wurundjeri men, from the Woiwurrung language group, part of the Kulin nation of central Victoria, whose people had occupied land around the Yarra River, including the site of present-day Melbourne. In 1863, after lobbying for years, in vain, for some Wurundjeri land to farm, Wonga and Barak, accompanied by a Scottish preacher, Reverend John Green, led their people to Coranderrk. Claiming the land, they cleared and fenced it, built some bark huts and set about working the country.

Green, who became the station’s first manager, encouraged its hundred and fifty or so residents to ‘rule themselves as much as possible’. When, in 1874, the Protection Board orchestrated his dismissal and threatened to shut Coranderrk down, the community dug in. Wonga and Barak fired off letters and petitions, organised a strike, and, with others, repeatedly walked the sixty kilometres to Melbourne to protest to politicians and the Board. They even secured, in 1881, a parliamentary inquiry, the only one of its kind.

‘They really were ahead of their time,’ says Brooke Wandin, Jacqui’s sister, talking outside the brick homestead that used to be the Coranderrk manager’s residence. ‘While I’m proud of a lot of our history, like the Cummeragunja walk-off [in NSW in 1939], the Wave Hill walk-off and the ’67 referendum, I want to say to people, “Did you know that in 1880 my ancestors were rocking that shit already?”’

 

DESPITE THEIR EFFORTS, Coranderrk – named after a native flowering bush, and sprawling across nearly five thousand acres at its peak – did gradually close, with most of the residents moved to Lake Tyers mission, in Gippsland, and the land parcelled out to white settlers. Yet this early stab at Indigenous self-determination continues to inspire, and it has gained fresh resonance as Victoria prepares for historic treaty negotiations that could result in a recognition of past wrongs and in Coranderrk’s descendants, along with other Aboriginal Victorians, acquiring greater freedom to determine their own destinies.

Beyond Victoria, too, there are signs that treaty – last seriously addressed thirty years ago, when Bob Hawke, presented with a bark petition at the Barunga Festival, pledged a treaty by 1990 – may finally lie within grasp. Not federally, where Malcolm Turnbull’s government has still to act (as of March 2018) on calls for a Makarrata Commission in the 2017 Uluru Statement, but at a state and territory level, where treaty has crept on to the agenda. (Makarrata, a Yolngu word, means reconciliation after conflict.)

South Australia has been talking treaty with its Indigenous nations. Western Australia has reached a treaty-like settlement with the Noongar people, although the agreement is currently mired in objections. The Northern Territory has begun treaty conversations, and Queensland plans to follow suit; NSW could be next off the block, if Labor wins the 2019 election. In the ACT, the government says it is open to discussing a treaty.

This flurry of activity around Australia’s unfinished business is generating optimism and anticipation, but also scepticism and caution. For so long, treaty has seemed like a beguiling mirage, shimmering in the distance yet never quite materialising. Now that it appears tantalisingly near, some have long wish lists and high expectations, while others remember the hopes they invested in native title, only to be, for the most part, disappointed. Then there are the logistical hurdles. Who speaks for whom across the richly diverse Aboriginal landscape? Can the myths and fears about treaty be dispelled? What can a state or territory treaty actually accomplish?

 

‘I WANT MY children to have a treaty! I want my children to have a voice! Stand up, stand up, if you believe in a treaty!’ It’s May 2016, and the writer Richard Frankland is pacing the room at the Melbourne Convention and Exhibition Centre, jabbing his finger at a protester whose angry monologue has halted a forum on treaty and self-determination. A Gunditjmara man from western Victoria, Frankland exhorts the audience to its feet, then leads it in a chant of ‘Trea-ty! Treat-ty!’ Only when senior bureaucrat Jason Mifsud mounts the stage and appeals for a rational debate do tensions finally subside.

The forum over, the treaty caravan moves on to country Victoria, where it will stop at Mildura, Shepparton, Horsham, Bairnsdale, Sale, Swan Hill, Bendigo, Morwell, Ballarat, Echuca, Wodonga and Warrnambool, as well as Frankland’s native Portland, consulting Victoria’s Indigenous communities on how they wish to be represented in a body that will guide treaty negotiations.

By mid-2017, twenty-four of these regional meetings, as well as three state-wide forums, had been held. In November, a specially constituted Community Assembly drafted recommendations on the design of the representative body, to function as an Aboriginal Voice to Parliament. Shortly before Christmas, Daniel Andrews’ Labor government, which committed more than $28.5 million to the treaty process in 2017–18, appointed Jill Gallagher, a Gunditjmara woman, as Victorian Treaty Advancement Commissioner. Gallagher, tasked with overseeing development of the body, previously co-chaired the Victorian Aboriginal Treaty Working Group, another piece of the cluttered treaty landscape. Talks are scheduled, tentatively, for 2019.

This tortuous process is a legacy of Victoria’s colonial history, which, as a consequence of the lightning speed and spread of European settlement, saw Indigenous society comprehensively dismantled. People were pushed off their land, then pushed off the missions and reserves, as racist laws isolated ‘full-bloods’ and forced ‘half-castes’ to assimilate. In many cases, ancestral lines were broken, families and communities were split, and language, culture and links to country were lost. Of the three hundred clan groups within Victoria’s thirty-eight Indigenous nations, barely one hundred remain. Today’s fragmented community makes up 0.9 per cent of the state’s population, compared with 3.3 per cent Australia-wide.

Paradoxically, it was the reserve system, pioneered by Victoria, that enabled Indigenous society to survive. ‘Every contemporary Aboriginal Victorian person can trace their ancestry only back to those people who were subject to protection policies which began in the 1860s,’ says Tim Rowse, a Western Sydney University historian, and author of Indigenous and Other Australians Since 1901 (NewSouth Publishing, 2017). ‘That protection mechanism, while it was very destructive and manipulative and degrading, was crudely effective… It contains the seeds of contemporary Aboriginal existence.’ Rowse also points to Indigenous Victorians’ active role in selecting the sites of missions and reserves, and to their ‘heritage of political protest’, dating back to Coranderrk. ‘Although they were hit hardest [apart from Tasmania], they also seized the opportunities for recovery and asserted themselves very quickly.’

Victoria has often led the nation in this policy space. It was the first state, in 2004, to recognise Aboriginal people in its constitution, and, following the traumatic failure of a native title claim by the Yorta Yorta people, it legislated the 2010 Traditional Owner Settlement Act, which created an alternative system for resolving native title claims and delivering land justice. Nevertheless, when, in February 2016, Andrews agreed to embark on a state treaty process, it came ‘out of the blue for a lot of us’, recalls Adam Frogley, a Taungurung man born and living in Healesville, and a staunch advocate of treaty through the National Tertiary Education Union, where he is a senior official. (The Taungurung are from Goulburn River Valley country, north-east of Melbourne.)

The move, the first of its kind by a state or territory government, had two key drivers: Indigenous disillusionment with the constitutional reform process, and a 2014 election vow by Labor to advance Indigenous self-determination. With the latter, all options were initially up for discussion, according to Victoria’s energetic Minister for Aboriginal Affairs, Natalie Hutchins. However, when she undertook a listening tour of communities in 2015, ‘there was not a single conversation that didn’t finish with a call for treaty, and it was coming through loud and strong’. A public forum in Melbourne in early 2016 resoundingly rejected constitutional change in favour of a treaty.

Hutchins relates: ‘Our foremost ambition was to try and influence the federal government to have a national treaty. Because that was the Aboriginal community’s desire…[and] quite frankly, that’s the way we should be going, because Aboriginal history and culture doesn’t stop at our borders. But given the current federal government’s attitude, and the huge vacuum at national level…we figured that we needed to take this step on our own.’

In July 2016, consultations began – and, as they did, dissenting voices began to be heard. The process was too rushed; it was controlled by bureaucrats; it was disrespectful to Elders; its Community Assembly was hand-picked; it was dominated by a handful of influential families and the government-funded Indigenous organisations, rather than grassroots voices. And, crucially, it did not have at its heart Victoria’s surviving clans, the basic social and landowning units in the pre-colonial era.

Gary Murray, a respected Elder of the Dja Dja Wurrung people, also part of the Kulin nation, quit the Treaty Working Group (consisting of sixteen Indigenous leaders and traditional owners) in October 2016, in order to ‘fight from outside the tent’. When the consultancy firm Ernst & Young was subsequently contracted to manage the consultations, he was dismayed. ‘They privatised the treaty process!’ he claims, speaking in what he calls his ‘office’, the bar at Browns Corner Hotel, in the Melbourne suburb of Coburg.

Murray – grandson of Sir Doug Nicholls, the revered Australian rules footballer and campaigner for Aboriginal rights, and father of the former Essendon footballer Nathan Lovett-Murray – has spent years meticulously mapping Victoria’s clans. The consultations should have been clan-based, he insists, and, when negotiations start, every clan ought to be at the table. And he warns: ‘If the treaty goes wrong – say, if the state does a deal with Swan Hill, and the people [signing it] don’t come from there, or if it just becomes a big melting-pot of Aboriginal people getting certain rights – then the clans will sue the state. That’s the plan.’

 

AT CAMP COORONG, a Ngarrindjeri cultural education centre outside Meningie, in South Australia’s Coorong region, Ellen Trevorrow is surveying her latest artwork: a three-quarters-completed sculpture of a four-metre-long blue whale calf, occupying most of the centre’s reception area.

A Ngarrindjeri Elder and internationally renowned weaver, Trevorrow grew up outside Tailem Bend, north of Meningie, where she remembers the Murray River being so clear ‘we would drink the water’. Her late husband, Tom, was steeped in knowledge about the land and waterways of Ngarrindjeri country: the Lower Murray, the wetlands of the Coorong, and Lakes Albert and Alexandrina. He liked to quote his people’s traditional management motto: ‘Don’t be greedy. Don’t take any more than you need and respect everything around you.’

An esteemed Ngarrindjeri leader, Tom Trevorrow was also passionate about treaty. In 1999, he and two other Elders, Matt Rigney and Tom’s brother, George, requested a meeting with Shaun Berg, a young Adelaide lawyer. They wanted to talk about South Australia’s founding document, the 1836 Letters Patent, which was signed and sealed by King William IV; in particular, a clause safeguarding ‘the rights of any Aboriginal Natives…to the actual occupation or enjoyment in their own Persons or in the Persons of their Descendants of any Lands…now actually occupied or enjoyed by such Natives’.

As Berg tells it, the Ngarrindjeri men asked him: ‘If the King says something shouldn’t be taken and it has been taken, that’s stealing, isn’t it?’

Berg spent nearly a decade pondering that question. He unearthed other historic documents, including a letter instructing the Resident Commissioner of South Australia, James Hurtle Fisher, to negotiate ‘bargains or treaties with the Aborigines for the cession of lands’. He sought the views of legal scholars in Australia and overseas. The result was a weighty tome, Coming to Terms: Aboriginal Title in South Australia (Wakefield Press, 2010), which concluded that the state’s Indigenous peoples had been illegally dispossessed and were entitled to redress.

The settlement documents – and especially the Letters Patent, cited by the reformist Don Dunstan, then state Attorney-General, when he pushed through Australia’s first land rights legislation in 1966 – are unique to South Australia. Says Berg: ‘Across Australia you have the taking of land without consent, but in South Australia you actually have evidence that they weren’t supposed to do it.’ In 2010, then Premier Mike Rann agreed to meet Ngarrindjeri Elders, who had been endorsed to speak for the broader Aboriginal community, to discuss the book’s findings. Rann then delegated the matter to his Attorney-General, John Rau, who, according to Berg, effectively shelved it, concerned about the legal implications.

Within a year, George Trevorrow, the senior Ngarrindjeri Elder, was dead, as was Matt Rigney; Tom Trevorrow died in 2013. However, a new generation of leaders, among them Tom’s son, Luke, and Rigney’s son, Daryle, was ready to take up cudgels, and in August 2016 they approached Kyam Maher, the state’s Minister for Aboriginal Affairs and Reconciliation, to propose treaty negotiations. In December 2016, to the Ngarrindjeri’s surprise, Premier Jay Weatherill consented.

For Maher, who has Tasmanian Aboriginal ancestry, treaty is ‘a massive piece of unfinished business’. He observes: ‘We are the only Commonwealth country where at the time of colonisation there wasn’t any meaningful attempt to come to an agreement with the Indigenous people, and two hundred and thirty years on it’s still something that we haven’t done. We think there’s a role for a federal government in the future to play, but we didn’t want to wait for that.’

Time was tight, with a state election due in March 2018. The government aimed to finalise at least one treaty by the end of 2017; while that proved optimistic, South Australia could expect to leapfrog Victoria because representation was not an obstacle. Thanks to the state’s somewhat less destructive colonial history, Aboriginal nations have, to a greater extent, retained their distinctive regional and cultural identities – not only in the remote north-west, where the traditional people of the Anangu Pitjantjatjara Yankunytjatjara Lands enjoy a high degree of autonomy, but in the densely settled south. They have also, in recent times, created vocal and well-organised representative bodies, including the Ngarrindjeri Regional Authority, set up in 2007 as part of community rebuilding efforts following the devastating Hindmarsh Island Bridge affair of the 1990s. (The state government formally apologised in 2010 for a royal commission’s findings that Ngarrindjeri women fabricated cultural business in an attempt to prevent construction of a bridge between Hindmarsh and the mainland.) Less splintered and more diverse than Victoria’s Indigenous population, South Australia’s is also, proportionally, significantly bigger, at 2.5 per cent of the total state-wide.

The state’s Treaty Commissioner, Roger Thomas, a Kokatha and Mirning man and former University of Adelaide professor, spent four months in early 2017 engaging with communities. What emerged, recounts Thomas, was ‘overwhelming support’ for a state treaty conversation, but also for separate negotiations and treaties for the forty-four language groups. ‘People said, “We want to build it up from the grassroots, nation by nation. Because if all our nations sign off on their agreements, that can then form the basis of us coming together as a united set of nations to form a South Australian agreement. And that would then put us in a good position, if the Commonwealth changes its attitude to the Uluru Statement, to start the conversation at a national level.”’

Three groups – the Ngarrindjeri, the Yorke Peninsula’s Narungga people and the Adnyamathanha of the Flinders Ranges – were chosen to take part in the first treaty discussions. Talks began in September 2017.

 

WITH ITS HIGH-END restaurants and hipster boutiques, inner-city Fitzroy is unrecognisable these days as the crumbling slum neighbourhood of Alma Thorpe’s childhood. Alma’s mother, Edna, arrived in Fitzroy in 1932, from the Framlingham reserve, near Warrnambool. She was fifteen, and the missions and reserves were being emptied of so-called half-castes, following a law passed in 1886, directed mainly at averting another Coranderrk-style rebellion. Many displaced people gravitated to Melbourne, congregating in Fitzroy, in and around Gertrude Street, and re-forming a close-knit community.

The 1940s, recalls Alma, a clear-eyed eighty-three year old, were ‘hard times, particularly for the men… A lot of them became alcoholics and lived in the lanes… There was no work and no welfare.’ Edna married James Brown, who was discovered dead in a park one day – a ‘common occurrence’ in Fitzroy back then, says his daughter.

Alma left school at twelve and worked in a shoe factory. She married Alister Thorpe, a Gunnai man from Lake Tyers, moved to Yallourn, in Gippsland, and had seven children. In the 1960s, after the couple split, she returned to Melbourne, where the Fitzroy community was swollen with new arrivals. Her mother had established a funeral fund in 1962 after witnessing an Aboriginal man being buried as a pauper.

Gunditjmara woman Edna Brown, who smiles down from an enormous photograph on Alma’s living-room wall, was a fighter who begot three generations of like-minded, formidable women. Alma founded the Victorian Aboriginal Health Service (VAHS) in 1973 with Bruce McGuinness, one of a new breed of activists inspired by the Black Panther movement in the US. ‘We wanted our self-determination, our land rights and our sovereignty,’ she declares, at her home in Melbourne’s northern suburbs.

Housed in an old building in Gertrude Street, the VAHS not only addressed the community’s pressing healthcare needs; it was a new voice of Indigenous advocacy. It was also, for members of the stolen generations then converging on Melbourne, such as the singer Archie Roach, who was taken from Framlingham as a young child, ‘a place for people to connect…to find out who their families were’, explains Alma.

One of countless community-run organisations that sprung up around the country in the 1970s as Indigenous Australians took charge of their own health, housing, legal and other interests, the VAHS was driven by a spirit of self-determination that also came to permeate official policy, leading to, among other things, the creation of the Aboriginal and Torres Strait Islander Commission (ATSIC). Now self-determination is in the wind again, invoked as a core objective of treaty – and, just as in the past, it has multiple meanings. For some, it’s about having a say in decisions affecting regional planning, land use and cultural heritage; for others, it means self-government – whether on country, as with some Indigenous groups in the US and Canada, or through dedicated parliamentary seats, as in New Zealand, or by way of a constitutionally entrenched body, as proposed at Uluru and spurned by Malcolm Turnbull. For others still, it’s about controlling the design and delivery of programs and services, with service providers accountable to communities.

There is compelling evidence, especially from the long-running Harvard Project on American Indian Economic Development, in the US, that self-determination is the most effective lever for alleviating Indigenous disadvantage. Indeed, as the project’s co-founder, Stephen Cornell, told the Indigenous Governance Conference in Canberra in 2002, it is ‘the only federal policy that has had any lasting, positive effect on socio-economic conditions in Indian Country’.

In Canada, where dozens of modern treaties have been signed, Indigenous nations now wield powers similar to those of Australian states, Griffith University’s Ciaran O’Faircheallaigh, one of Australia’s foremost experts on native title agreements, noted in a 2017 lecture. In Australia, although their stories rarely reach the mainstream, many Aboriginal communities are self-determining on the ground, with marked success. Restrictions on alcohol sales, instigated by women in the Kimberley towns of Fitzroy Crossing and Halls Creek, resulted in a decrease of 20 to 40 per cent in alcohol-related crimes and hospital admissions in the first year. Yet, according to O’Faircheallaigh, where autonomy is being exercised, it is mostly ‘despite, rather than with the support of, government policy’.

In Victoria, Alma’s female heirs are walking in her footsteps. One daughter, Glenda, is chief executive of the Lake Tyers Aboriginal Trust, which administers the community on the site of the former mission. Another, Marjorie, has held high-profile public posts, among them Victorian co-commissioner for the stolen generations inquiry. A third, Lisa, founded and runs an Indigenous childcare service in Melbourne, Bubup Wilam. In November 2017, one of Marjorie’s daughters, Lidia, became Victoria’s first female Indigenous MP, seizing the state seat of Northcote for the Greens in a by-election that saw a 10 per cent swing from Labor.

Alma attended a couple of treaty meetings, ‘but I’ve got no faith in it [the process],’ she says, ‘not when the government’s running it… It’s like when they promised us land rights and we got native title.’ Lidia, who resigned from the Treaty Working Group at the same time as Gary Murray, is scathing about the process. ‘At first I thought it could be a real turning point for Aboriginal people in Victoria. But it’s been top-heavy, it’s been bureaucratic, and the bureaucrats don’t get why it’s important to have a clan-based approach, how the clans connect us to country and to our ancestors and Elders.’

 

OUTSIDE RAUKKAN’S GENERAL store, in the Coorong region, stands a memorial stone with two plaques. One honours George Taplin, who established Point McLeay Mission, now Raukkan, on the shores of Lake Alexandrina in 1859; the other, laid a century later, commemorates ‘100 years of education and religious service to the native inhabitants, promoting thereby their advance in civilised living’.

That inscription infuriates Ngarrindjeri man Jordan Sumner, Raukkan Community Council’s young and articulate executive officer: ‘Like we didn’t have our own civilisation that thrived here for thousands of years!’ Sumner has suggested to Raukkan’s chairperson and senior Elder, Clyde Rigney, that they get rid of the plaque. ‘But Clyde says, “No, it’s important for other people to see how we were viewed.”’

Even Raukkan’s most famous son, David Unaipon – the writer, preacher and inventor, who features on the $50 note, along with the town’s neat little church – did not escape discrimination. As Sumner tells it: ‘He spoke at universities in Sydney and Melbourne, but he couldn’t stay in the motels.’ In Sumner’s office are permit books recording the (strictly monitored) arrivals and departures of outsiders visiting family on the mission. In the Raukkan Gallery, formerly Taplin’s house, one large wall is plastered with mugshot-style photographs of Point McLeay residents, each holding a number. ‘Like it was a prison,’ he says.

History is painful territory for Indigenous Australians. And, for many people, truth-telling – about the taking of land, the child removals, the attempts to ‘breed out’ colour, the marginalisation and institutional neglect – is a vital element of treaty. Pleas for the date of Australia Day to be changed arise from the same hunger for acknowledgement of history. Sumner’s uncle, Major, a Ngarrindjeri Elder, thinks the date should stand, ‘but every year the government should get on a boat at Botany Bay and sail outside of Australian waters and ask permission to come in’.

Over a cup of tea at her home in Healesville, one Saturday afternoon, senior Wurundjeri Elder Joy Murphy Wandin recollects the hurt of ‘not being able to learn about our own history, or talk about our own history’ at school. It was, she says, removing her spectacles to dab her eyes, ‘like you were a ghost in the room’. Once, she was called a ‘dirty black coon… I started crying, and I ran home and ran to the bathroom out the back, where there was this grey stone on a little ledge for cleaning your heels. These elbow bones’ – she holds them up – ‘have always been the blackest part of my body, and I just scrubbed them until they bled.’

From the folds of a soft black cloth, Murphy Wandin – aunt of Jacqui and Brooke Wandin, and younger sister of the late St Kilda footballer James ‘Juby’ Wandin – extracts three First World War medals awarded to her father, also James Wandin. On his return from war, Wandin was allowed to visit his mother and brother at Coranderrk for just half an hour; he was barred from drinking with his white mates in the pub, and refused a soldier-settlement block. ‘So he bought land in Healesville for two pounds and sixpence,’ relates his daughter. ‘He said, “My family will never again be told where to live.”’

 

HOW CAN HISTORY – and the denial of that history – be healed? Among Aboriginal people there is little public talk of compensation, but much of the necessity to educate all Australians about their shared past, and undertake truth and reconciliation. ‘Australians know about crimes against humanity around the world, yet they don’t get that it actually happened here,’ remarks Lidia Thorpe, who received death and gang-rape threats after urging that flags be flown at half-mast on Australia Day: an ugly reminder of some non-Indigenous Australians’ resistance to truth-telling.

She adds: ‘We need to stand still for one day every year, to acknowledge past wrongs. We stop for a horse race, we stop for a football match – surely we can stop for that?’

The past overshadows the treaty processes. Few would dispute the primacy of traditional owners in negotiations – in south-eastern Australia, in particular, though, that excludes a sizeable chunk of the Aboriginal population, including stolen generations and interstaters. As Victorian Treaty Advancement Commissioner Jill Gallagher comments about her state: ‘European settlement was very brutal and quick here, so we’re having to unravel its impact, which is still being felt by Aboriginal mobs today.’

In South Australia, the existing Indigenous representative bodies were the obvious treaty negotiating partners. But what about people who lost, and never regained, a strong connection to country? In Adelaide, a woman whose family endured successive generations being removed to institutions told me: ‘When they started the treaty conversations here, one of the first questions I asked was, “How does stolen gen fit into this?”

‘Because so many people were taken, and they’ve grown up here, and although some have made their way home, you’re never fully going to be part of that community. I understand that communities are very guarded and protective of culture. But my feeling is, my family will never fit into those treaty discussions. And for me personally, I just don’t feel it’s our place.’

 

SCRAMBLE DOWN A steep, grassy bank where Cunningham Street hits a dead end near the railway line in suburban Northcote, in Lidia Thorpe’s electorate, and you will reach the fast-flowing waters of Merri Creek, thought to be the spot where the only treaty ever extended to Australia’s Indigenous people was signed.

John Batman, Melbourne’s founder, arrived in Victoria in 1835, and, surveying the countryside around the Yarra River for a group of Van Diemen’s Land entrepreneurs, pronounced it the ‘most beautiful sheep pastorage I ever saw in my life’. Meeting with Kulin clan chiefs, including Simon Wonga’s father, Billibellary, he offered them blankets, tomahawks, knives, scissors, mirrors, handkerchiefs, flour and an annual ‘tribute or rent’, in exchange for about six hundred thousand acres of land. On 6 June, observed by William Barak, then a boy of twelve, eight Elders inscribed their tribal marks on what became known as Batman’s treaty.

While the deal was dubious, to say the least, Batman at least recognised the Kulin as custodians of their country, some Aboriginal Victorians argue. Others note, sourly, that the agreement was swiftly revoked by the Governor of New South Wales, Richard Bourke. (The colony of Victoria had not yet been established.) ‘I’m pretty plain about treaty: it’s a waste of time,’ declares Allan Wandin, father of Jacqui and Brooke. ‘Look at that so-called treaty they did when the lovely white ships pulled into the bay. Treaty: you’ll get nothing out of it, not one cent.’

Nonetheless, his family has thrived. In 1998, the two-hundred-acre rump of Coranderrk was bought by the Indigenous Land Corporation; the Wandins manage the estate, with Allan (and, of late, Jacqui) living in the homestead, the only original building still standing. They are not, however, the only Wurundjeri family with Coranderrk ancestry, and others feel excluded from the historic site, as does the wider Aboriginal community in Healesville and beyond. ‘This one family seems to think they own the place, and I believe that’s wrong,’ proclaims Healesville Elder Dorothy Peters, whose maternal grandparents were among Coranderrk’s last residents. The Wandins organised a Coranderrk Festival in 2013 and 2014; their prime concern lately, they say, has been introducing sustainable land management practices.

After Merri Creek, there was little talk of treaty in Australia until the 1970s, when it appeared, along with land rights, on the placards of newly radicalised Indigenous people. The National Aboriginal Conference, an elected advisory body set up under Malcolm Fraser, called for a treaty, adopting the term Makarrata. Bob Hawke’s treaty pledge was abandoned for a ten-year process of reconciliation; in the 2000s, reconciliation morphed into constitutional recognition, which at first had widespread backing, but – especially after the Recognise campaign got under way – split opinion, with opponents branding it minimalist and based on an imposed government agenda.

Indigenous Australians once more turned to treaty; and, with a national pact as elusive as ever, hopes fixed on the states and territories. Precisely what those hopes consist of, naturally, varies. The aspirations of Arnhem Land’s Yolngu people, with their bountiful land base, look very different from those of Adelaide’s Kaurna people. Even within, say, South Australia, the Kaurna’s priorities bear little similarity to the Adnyamathanha’s. Around Australia, it is clear that multiple local or regional treaties (the norm in Canada and the US) make more sense than a single, Waitangi-style, state- or territory-wide agreement – also, crucially, because each Australian clan or language group considers itself a separate, sovereign entity. (New Zealand’s Treaty of Waitangi was struck with Maori chiefs in 1840.)

There are, though, some fundamental common goals. Along with self-determination and truth-telling, they include: recognition of prior occupation and unceded sovereignty; a parliamentary voice; land rights and access; protection of language, culture and cultural heritage; and economic self-sufficiency. Financial reparations are also seen as key, if treaty is to be substantial and meaningful – and, with Western Australia’s Noongar settlement worth $1.3 billion, the scale of those reparations is becoming apparent.

In Victoria, where the Indigenous population can feel invisible, some crave, simply, affirmation that they exist. ‘Most important to me,’ reflects 21-year-old Taungurung man Corey Harding, whose father, Mick, co-chairs the Treaty Working Group, ‘is acknowledgement that we’re still here. We’re not in the past; we’re not just a thought in history.’ Corey’s elder brother, 24-year-old Mitchil, would like ‘our language and culture taught in the school curriculum, from kindergarten up to high school… That kind of thing could really change the landscape of the nation.’

Can the states and territories even make treaties? Yes, provided they limit themselves to matters within their constitutional powers – and those powers encompass health, housing, juvenile justice, land management and development, education, policing and employment: ‘all the practical stuff that makes a difference to people’s lives’, as Darren Godwell, of the Queensland Indigenous Labor Network, a Labor policy forum which has generated momentum for treaty in that state, puts it.

Constitutional law scholar George Williams, from the University of New South Wales, says: ‘A treaty is just an agreement at heart, and overseas it’s accepted and even expected that it would be negotiated at the state level. In many ways, the Australian states are in a better position to do a treaty than the federal government.’ But ideally, in his opinion, a treaty would embrace every tier of government, since each would have input – local councils, for instance, would handle community-level matters, such as renaming streets – and also because ‘you want as broad a settlement as possible’.

The overseas experiences are being closely studied, with Canada’s British Columbia province, where modern treaties have been signed with the Nisga’a and other Indigenous nations, regarded as a promising model. In Australia, the non-Aboriginal community has yet to be persuaded that treaty will not be damaging or divisive, as its critics claim. That task, suggests Roy Ah-See, chairperson of the NSW Aboriginal Land Council, will take ‘political goodwill and mature leadership from all sides’. ‘The word “treaty” scares whitefellas shitless,’ says Gary Murray, ‘but it’s just an agreement to work together.’ Healesville union man Adam Frogley insists that ‘we’re not going to wage war, or set up our own separate Australia’.

‘When you look at Victoria, and particularly Melbourne,’ observes Jill Gallagher, ‘if it wasn’t for the Aboriginal organisations, there would be no Aboriginal cultural footprint on the landscape. The first time I went to New Zealand and got off at Auckland airport, I was just slapped in the face with Maori culture. You get off at Tullamarine and there’s nothing. A treaty can change all that.’

The danger is treaty may be viewed as a panacea. Wayne Muir, chief executive of the Victorian Aboriginal Legal Service and a member of the Working Group, warns: ‘I hope we can manage expectations, because there’s a lot of deep-seated grief and trauma in the community. People hoped the Royal Commission into Aboriginal Deaths in Custody would help resolve that, then they hoped the Bringing Them Home report [on the stolen generations] would help resolve it. Now this is the next thing that I think some people are pinning their hopes on.’

 

THE WESTERN AUSTRALIAN deal, which the government finalised with the state’s thirty thousand Noongar people in 2015, settled land claims over two hundred thousand square kilometres in the Perth metropolitan area and thickly populated south-west. Australia’s biggest native title settlement, it incorporated the creation of six regional Noongar corporations; the handover of more than three hundred thousand hectares of land to Noongar hands; joint management of national parks; access to Crown lands and waters for customary purposes; protection of heritage sites; economic development initiatives; and a perpetual trust, to receive $50 million annually over twelve years.

Five years in negotiation with Colin Barnett’s Liberal government, and comprising six Indigenous Land Use Agreements, the South West Native Title Settlement is inching its way through the National Native Title Tribunal registration process, having survived a 2017 Federal Court ruling in favour of dissenting Noongar. Although four of the agreements remain stalled by objections, each is supported by a majority of traditional owners; the settlement, which is regarded as a treaty by both sides, is expected to come into force in late 2018. (The federal government amended the Native Title Act to override the Federal Court’s judgement requiring land use agreements to be unanimously signed off; scores of such deals, including those struck by Adani in relation to its $16.5 billion Queensland coal mine, would otherwise have been in jeopardy.) Meanwhile, Mark McGowan’s Labor government has started settlement discussions with other Indigenous groups in WA.

Nearly one-third of the Australian continent is now covered by local or regional land use agreements, concluded between native title groups and other land users, such as farmers, shire councils and resource companies. (In some, but not all, native title has been determined.) There are academics who argue that these voluntary pacts – nearly twelve hundred of them in total – permitting mining and development in exchange for compensation, protection of cultural sites, and economic and employment opportunities, amount to de facto treaty-making. In fact, Peter Sutton, a University of Adelaide anthropologist who has advised on scores of land claims, contends that ‘they look very much like a treaty in the American or Canadian sense’.

Others have categorised them as more akin to commercial transactions, without the politics of treaty. And Ciaran O’Faircheallaigh points out that ‘overwhelmingly the state is absent from native title negotiations, so the negotiations can’t deal with governance or autonomy issues’. The Noongar settlement is one obvious exception.

 

BEYOND WESTERN AUSTRALIA, too, there is movement on treaty, with the story unfolding differently in each state and territory, depending on their history, geography and contemporary circumstances. In some, the impetus has arisen from land rights and native title, with treaty seeming a logical next step; in others, especially the southern ‘settled’ states, from the realisation that, for many people, native title is unattainable or of little concrete benefit. The Ngarrindjeri won a native title claim in December 2017; of the forty-three thousand land titles in their area, native title has been extinguished on all but five hundred. ‘Perversely, it almost looks like it’s situations in which native title rights are weak, and people therefore go into a treaty negotiating process, that positive outcomes may eventuate,’ suggests O’Faircheallaigh.

That theory does not hold, as yet, for the Liberal-ruled states of NSW and Tasmania – while Labor has historically been more active in this policy area, Liberal Premier Barnett initiated the WA settlement talks, and David Tonkin’s Liberal government shepherded South Australia’s 1981 Pitjantjatjara Land Rights Act into law. In NSW, which has Australia’s largest Indigenous population (nearly 266,000), Premier Gladys Berejiklian has still to respond, as of March 2018, to an appeal by the state’s Aboriginal Land Council for both sides of politics to open treaty discussions. The Opposition leader, Luke Foley, has committed Labor to talking treaty if elected.

The Land Council’s Roy Ah-See, a Wiradjuri man, says bipartisan support is critical, and only when that is achieved will community consultations begin. ‘We don’t want the carpet pulled out from under the mob; it’s happened too many times.’ Ah-See envisages treaty as ‘addressing all the social indicators, and giving us a fair share of the economy… We also have more than thirty thousand outstanding land claims in New South Wales.’

In Tasmania, Premier Will Hodgman – who won a second term of majority government in March 2018 – is lukewarm about treaty, preferring, as he stated two years earlier, ‘to reach agreement in outstanding areas, such as land hand-backs, joint land management, and Aboriginal heritage and relics, before considering a treaty’. State Labor, on the other hand, has promised ‘a state-wide [treaty] conversation’. Clyde Mansell, who chairs the Aboriginal Land Council of Tasmania, believes treaty would have to grapple with the vexed issue of recognition of Aboriginal identity.

Also bucking the theory of treaty in lieu of native title rights is the Northern Territory, where Michael Gunner’s Labor government has held preliminary talks with the NT’s four Land Councils (Northern, Central, Tiwi Islands and Groote Eylandt); a further, joint round is scheduled for the Territory’s Barunga Festival in June 2018, marking the thirtieth anniversary of Hawke’s treaty pledge. A cabinet subcommittee – composed of the Chief Minister, the Minister for Housing and Community Development, and all Indigenous and remote-area MPs, and advised by nine representatives from the land councils and other Aboriginal bodies – is steering the treaty process.

For the Anindilyakwa people of Groote Eylandt, treaty means ‘getting more rights over our sea-country around the land we own’, explains Mark Hewitt, chief executive of the Anindilyakwa Land Council. Groote Eylandt intends to switch its economy’s focus to seafood exports once manganese mining, which has sustained it for decades, ends. ‘But at the moment it’s open slather. Boats come in and fish out the waters around us, and traditional owners have got no particular rights.’

In Queensland, home of the landmark High Court Mabo and Wik rulings on native title, the 221,000-strong Indigenous community (second only to NSW’s) is looking to Annastacia Palaszczuk’s re-elected Labor government to fulfil an election promise on treaty. The government’s plan is to establish a working group and a permanent representative body, and to stage regional forums; treaties would then be negotiated with the hundred-plus traditional owner groups, acknowledging not only their authority to speak for country, but also the diversity of an Indigenous population spanning the islands of the Torres Strait, the isolated communities of Cape York and the outback, and the suburbs of Brisbane and other cities. Darren Godwell, the Queensland Indigenous Labor Network’s acting chairperson, and chief executive of the state’s Stronger Smarter Institute (for Indigenous education), says that ‘probably the best part of twenty traditional owner groups are ready to go’.

In a novel approach, the ACT – where a new representative body, the Aboriginal and Torres Strait Islander Elected Body, was set up after ATSIC was abolished in 2005 – signed an agreement in 2015 outlining measures to secure practical outcomes, such as improving Year 12 completion rates and reducing reoffending through post-prison support. With the deal up for renewal in late 2018, Andrew Barr’s Labor government is ‘more than ready to talk to the community about whether it evolves into a broader, treaty-like agreement, or a treaty’, according to a spokesperson.

 

‘I WAS IN Berlin recently. Well, the Berlin Wall came down, and I believe we’ll knock this down, too. Some time, not too far off, Australia Day on January 26th will no longer be.’ It’s Australia Day 2018, and families carrying eskys and Australian flags are making their way along North Terrace, in central Adelaide, to the festivities in Elder Park. Some pause as they pass Parliament House, where Tauto Sansbury, a dapper figure in black baseball cap and Aboriginal flag ear stud, is addressing protesters gathered on the steps.

The Survival Day crowd greets Sansbury with whoops and applause; within his own Narungga community on the Yorke Peninsula, the veteran Aboriginal leader is less popular. For several months, he headed a team negotiating treaty with the South Australian government. In November 2017, treaty mutated into something far less ground-breaking and glamorous: a services agreement.

In a pre-election interview, Minister Kyam Maher maintained that the Buthera Agreement – named after a figure in a Narungga ancestral story, and ratified by cabinet on the eve of Jay Weatherill’s government entering caretaker mode – was merely ‘a first step towards treaty’, with Labor ‘committed to…[continuing] the treaty process’ if re-elected. Maher also said it was the Narungga, worried about the looming election, who had requested the switch.

A lifelong campaigner on deaths in custody, child protection and the repatriation of Indigenous remains, Sansbury – awarded the national NAIDOC Lifetime Achievement Award in 2015 – tells it differently. The two teams met about nine times, he thinks, before government negotiators abruptly announced that Crown solicitors had informed ministers that ‘they didn’t have the authority or legislative power to discuss or implement treaty’.

The Narungga had hoped, through treaty, to earn royalties from mining and wind generation, as recompense for the loss of their land, and to start up tourism and fishing businesses, says Sansbury, who chairs the Narungga Aboriginal Corporation Regional Authority (NACRA). ‘I knew a lot of the states and territories around Australia were watching us,’ he recounts. ‘As a negotiator, I’d advised my group, and the other side, too, that I’d walk away if it wasn’t a real treaty. I wouldn’t sign off on something that set us up to be the laughing-stock of Australia.’

Technically, he kept his word. The Buthera Agreement was signed by another group, the Narungga Nation Aboriginal Corporation, until recently also chaired by Sansbury. Indigenous South Australians, on the Yorke Peninsula and beyond, are unimpressed, although the deal had been approved at a community meeting at Point Pearce, the former Narungga mission. ‘People are calling it “trick or treaty”, and they’re not fooled,’ a public servant in the state’s Aboriginal Affairs department told me. Three women took NACRA to court in January 2018, claiming the community had not been adequately consulted. Narungga man Owen Karpany complains: ‘It was rushed through, and I believe we’re selling ourselves short. It was like blackmail: “If you don’t take this, you’ll get nothing.”’

In late 2017, at about the time Sansbury says the government disclosed its new legal advice (Maher says there was no such advice), the Ngarrindjeri talks also ran into trouble. ‘It appeared that they [the state] were trying to enter into a services agreement and put the stamp of treaty on it,’ relates Shaun Berg, the Ngarrindjeri’s lead negotiator. That was unacceptable to the Ngarrindjeri, who had been seeking something far more radical: a redefining of their relationship with the state. They had drawn up a draft treaty, which, according to Berg, the government had rejected.

‘It’s not like we’re going to bring in a P&O cruise liner and ship them [non-Aboriginal Australians] off. We’re all going to be here into the future,’ remarks Daryle Rigney, the Ngarrindjeri’s spokesperson, and Dean of Indigenous Strategy and Engagement at Flinders University. ‘It’s about reframing the relationship so that it’s respectful and recognises that colonial processes have been negative for the Ngarrindjeri, but also about thinking creatively about how you go forward.’

Negotiations remained stalled when the caretaker period began. Berg wonders if the government was spooked by the possibility of ‘exposure to the risk of unlimited damages’, despite the Ngarrindjeri making clear financial compensation was not a priority, because ‘that’s not going to change people’s lives’. (The government had, anyway, explicitly stated that it was not prepared to pay compensation.) Berg adds: ‘George Trevorrow said before he passed that he dies not knowing justice. So that’s really our goal: to create a relationship whereby there’s equity and the ability for people to know justice during their lifetime.’

Maher was cagey about the Ngarrindjeri situation. ‘I think it’s fair to say that it’s not been an easy process, and it hasn’t been attempted in Australia before. There are obviously views that different people might have about what may or may not be contained [in a treaty], but we are committed to ongoing discussions and to the treaty process.’ He also played down the significance of the Letters Patent. ‘Clearly, we haven’t lived up to the lofty ideals that the colony was founded on… We can’t undo what’s happened in the past, but we can look at where we are now and what we can do in the future.’

The Adnyamathanha’s talks were still at an early stage ahead of the state election. However, they appeared to be following a similar pattern, reports Vince Coulthard, chief executive of the Adnyamathanha Traditional Lands Association. ‘The government is happy to talk services, but they haven’t really talked treaty. Although they call it a treaty process and a treaty discussion, when you start getting to the heavy stuff, they just back off…stuff like land titles, compensation, like having a real say when it comes to doing business in our area, making decisions rather than just being consulted…having governance of our own area.’

In the event of a Liberal election victory, the Adnyamathanha’s wishes, and everyone else’s, would almost certainly be put on ice. In 2017, the Liberal leader, Steven Marshall, dismissed treaties as ‘a cruel hoax, because they promise hope but don’t deliver practical outcomes’. Treaty did not feature in the election platform of potential ‘kingmaker’ Nick Xenophon’s SA-BEST party.

Victorians go to the polls in November 2018; keen to preserve progress, the Andrews government was poised to introduce legislation in mid-2018 enshrining the state’s commitment to work with the representative body to further the treaty process. The body will require the establishment of an Indigenous electoral roll – certain to be a fraught procedure – and a vote for probably thirty representatives from six regions, with candidates to stand either where they live or are traditional owners. The elected representatives and the government will then thrash out a treaty-negotiating framework, setting out state-wide principles: effectively, the rules of engagement for treaty talks.

Minister Natalie Hutchins is amenable to multiple, locally negotiated treaties. Jill Gallagher says that, based on community consultations, her own views and those of the Working Group and Community Assembly, ‘it has to be clan-based treaties’. That may blunt some of the criticism, but it leaves open the question of who will represent the stolen generations and interstaters – one which the negotiating framework will have to address. The process, stresses Hutchins, must ‘capture all the voices of the different communities, because that’s part of the difficulty and complexity here’.

 

EVERY YEAR, MAJOR ‘Uncle Moogy’ Sumner dances the river.

Starting at Murra Murra, in southern Queensland (or, sometimes, Walgett, in northern NSW), he leads his Tal-Kin-Jeri troupe all the way down the Murray-Darling river system, stopping off at a dozen locations and finishing on the riverbank at Goolwa, in South Australia, where the Murray empties into the Southern Ocean. ‘It’s to dance the spirit back into the river, back into the earth, but also to keep that spirit within ourselves,’ he explains. ‘Because, like everything else, we’re losing that spirit, our children are losing it. Our Western society is getting us to follow another road.’

Ringbalin, as the ceremony is known, connects Indigenous communities the length of the Murray-Darling. Inaugurated in 2010, during the drought that ravaged the Murray’s lower reaches, it is also a journey of cultural healing – aimed at promoting the river’s health, and encouraging more Aboriginal participation in managing it sustainably. Part of the Ngarrindjeri negotiating team, Sumner would like to see treaty formalise his people’s traditional role in caring for their land and waters.

The sixty-nine year old, who grew up at Raukkan and in fringe camps outside Meningie, inhabits two worlds. For a weekday meeting over raisin toast and a flat white in suburban Adelaide, he wears ‘nine-to-five’ gear: casual pants, checked shirt, T-shirt and beanie. But he is equally at ease in his red loincloth, body paint and bone nose piercing, performing at corroborees in the Coorong, or sharing Ngarrindjeri customs: collecting swan eggs, picking native berries, and catching mulloway as they travel back out to sea.

Culture, says Sumner, whose hands appear in a photograph on the cover of Shaun Berg’s book, holding the Letters Patent, ‘keeps children safe and makes them strong’. And, for a treaty to be worthwhile, for it to ‘carry us into the next forty or fifty thousand years’, he emphasises, it must have culture embedded in it ‘from start to finish’.

While the Ngarrindjeri have had ‘continuous contact with our country, continuous telling of the stories about our creator, our land, our river’, as Sumner describes it, Victoria’s Taungurung people are slowly, painstakingly reclaiming culture. On a rainy October weekend, they gather at Camp Jungai, deep in the Yarra Ranges, north-east of Healesville, to practise their language, song and dance on traditional country. Clutching their Taungurung dictionaries, and amid much banter and teasing, they hesitantly pronounce some new words: bubup (baby), warriin (wombat), goorbil (koala) and yaan (cockatoo). Corey Harding then guides them, line by line, through a Taungurung-language song about their ancestor spirit, Bunjil, the wedge-tailed eagle.

For the Taungurung, and for others in the Kulin nation, the cultural revival owes much to Tanderrum, the opening ceremony of the Melbourne Festival at Federation Square, where the five Kulin language groups have, since 2013, performed traditional song and dance to welcome artists and audiences. Sharing culture, believes Corey’s father, Mick, the Treaty Working Group co-chairperson, ‘is what treaty’s all about… It’s about creating empathy and understanding. It’s about education, educating our mob as well as non-Aboriginal people. That’s where the magic is, in this beautiful cultural stuff.’

At Camp Coorong, Ellen Trevorrow is slowly circling her whale calf, calculating which section to tackle with a school group visiting later that week. ‘Weaving is my healing,’ she confides. During the drought, the freshwater rushes that she harvests on a farmer’s property no longer grew. ‘They’re just starting to come back really good now. I’ve got six-foot-tall rushes that I’m weaving with, and that we haven’t had in a long time. When I go out on that land and I find those good rushes, everything’s looking good for me.’

There will be treaties, eventually, in South Australia and Victoria, and across the country. And there will be a national treaty, perhaps combining those state and territory pacts into a wide-ranging agreement that forms the basis for future co-existence. It might take years, decades even – it took the Nisga’a of British Columbia twenty years to finalise their treaty. In the meantime, Major Sumner will continue dancing the river, and Ellen Trevorrow will continue weaving her sculptures, and the Taungurung and Wurundjeri people will become fluent in their ancestors’ languages. ‘We can only do our best,’ says Trevorrow.

 

5 March 2018


From Griffith Review Edition 60: First Things First © Copyright Griffith University & the author.

Griffith Review