Aborigine Decision Looks To America’s Bill Of Rights For Leadership

In a way very similar to the way the US views the Civil Rights period in the 60s, the movement for aboriginal rights has been to Australia in the 1980’s and 90’s. Some historical background is in order. Ever since Governor Phillip landed at Sidney Cove in 1788 and claimed what is now known as the eastern state of Queensland for the British Crown, Australia’s Aborigines have been a dispossessed people in their own land. Unlike Native Americans, Aborigines have no treaties to go on; no Crown Government ever respected them enough to make one with them. They were invisible non-persons, legal “nobodies.” As recently as 1971, Sir Richard Blackburn, a Supreme Court judge of the Northern Territory where mining and ranching interests have always dominated, could nullify all aboriginal claims to land title by serenely asserting that, prior to the colonial period, Australia was a terra nullius – “a land of nobody.”

The Blackburn decision, however, turned out to be the last gasp of an old, unquestioned order that was already giving way under the pressure of an emergent Green party and new activism on the part of indigenous groups. In 1975 the Australian Federal Parliament passed a strong anti-racial discrimination act. By 1987 polls showed that 58 percent of the Australian population supported the idea of a treaty with Aborigines. (The latest poll puts that support at 65 percent.) But the decisive turn came with the celebrated Mabo case in 1992, in which the Federal High Court exploded the myth of terra nullius and ruled that, despite Crown sovereignty, aboriginal land title survived and was legally enforceable under the Commonwealth common law tradition.

The shock waves of the Mabo decision, whose majority opinion was written by Justice Brennan (now Chief Justice, and, incidentally. Frank Brennan’s father), have yet to subside in Australian society. For a while, industry panicked, fearing that all its property titles stood in jeopardy. Not so. In December 1993, after much heated controversy, the Federal Parliament passed a Native Titles Bill that sets down procedures for adjudicating aboriginal claims to land. But as the nation anticipates the centenary (and possible revisions) of its Constitution in the year 2001, weighty questions remain unresolved.

What does the Aborigine majority want? Some Aborigines proudly see themselves as part of an Australian nation and seek to negotiate a “fair go.” Others, asserting a sovereignty never voluntarily ceded, refuse to be party to any process that presumes them to be Australian citizens. Does the nation owe Aborigines a treaty? Given the tragic history, what is morally called for here? The term “treaty” is anathema to many Australians and, in fact, implies a uniformity in Aborigine situations and culture that does not exist. A compact or “instrument of reconciliation” setting forth Aborigine rights and entitlements is clearly in order.

But what is politically achievable? After closely studying die snares and trials surrounding the U.S. Bill of Rights, Father Brennan returns home believing that, at least for Australians, there is another way to go – by appealing to his country’s sense of fairness and to international law.

On his visit to Australia in 1986, Pope John Paul II issued a challenge to all Australians when he told Aborigines gathered at Alice Springs, “The church herself in Australia will not be fully the church that Jesus wants her to be until you have made your contribution to her life and until that contribution has been joyfully received by others.” In 1990, the Australian Catholic bishops, whom Frank Brennan advises on these matters, spoke out strongly, calling for “a secure land base for dispossessed Aboriginal communities… a just process for the resolution of conflicting claims to the land and its use,” “an assured place for powerless Aborigines in our political processes” and “a guaranteed future for Aboriginal culture and tradition.”

In brief. in the eyes of God – if not in those of big landowners – Aborigines are somebodies.

Until 1975, Australian indigenous people had few if any rights or legal standing. Activists such as Fr. Frank Brennan advocate a final compact between the federal government and Aboriginal communities, to resolve land rights, rather than an American-style new Bill of Rights.

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