Flying the flag for reignited Indigenous debate

Harold Thomas

Toni Hassan Canberra Times 8th July 2011

It will be 40 years on Tuesday since the National Aboriginal and Islanders Day Observance Committee first flew the distinctive black, red and yellow Aboriginal flag.

Six months later in January 1972 the flag gained a more official status when it was hoisted above the newly established Aboriginal tent embassy in Canberra. The flag's designer, Harold Thomas, says he wanted the flag to symbolise "the struggle". It was primarily about the struggle for Aboriginal land rights but has become about much more.

So, what's left of the struggle four decades later?

I can't and won't speak for Indigenous Australians, but from my perspective, as a non-Indigenous Australian, it seems the struggle has gone quiet and that we are yet to reach moral clarity to achieve real justice.

On our behalf the Australian Parliament said "sorry" to Stolen Generations in 2008 and offered to "reset" black and white relations with a welcomed package of measures to reduce disadvantage. But these actions have not made right a wrong. We are yet to even acknowledge a little word most Australians find hard to utter: genocide.

The British, an imperial power, occupied the land we now call Australia. The locals resisted. Both sides believed they had rights to the land. There was an invasion. Blood was shed. In 1998 the ACT Supreme Court's Justice Kenneth Crispin said in a test case brought by tent embassy members, "There is ample evidence to satisfy me that acts of genocide were committed during the colonisation of Australia." Crispin's comments have slipped under the radar.

Australia was the second nation in the world to ratify the United Nations genocide convention, defining genocide as: "Killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group".

But although Australia legislated to give effect to part of the convention in 1949, the Bill it passed did not make genocide a crime under domestic law, making Australia "a grim black hole in the aspirational universe of protection", according to an expert who has reviewed the parliamentary debate and the law that resulted.

The Aboriginal embassy plaintiffs lost their case on appeal to the Federal Court. The 1997 stolen children inquiry's report Bringing Them Home recommended the government implement the Genocide Convention, that is that it criminalise genocide in Australia.

More than a decade on we are no closer to criminalising genocide or to signing a treaty with the people who occupied this land before us. Native title may be delivering gains to communities that can prove continuous connection to country, but what about generations of people who were forcibly displaced from their country? An Indigenous Land Corporation was set up to acquire land for the most marginalised and dispossessed Aboriginal Australians, but the general onus is on them to prove that they once occupied the land, rather than on government to prove sovereignty.

Last week, West Australian Premier Colin Barnett said a gas deal with Woodside (worth $1billion of $30billion for Indigenous people in the Kimberley) was the most significant act of self-determination by an Aboriginal group in Australian history. Really? The Goolarabooloo and Jabbir people were forced to vote on the project. There was no free, informed and prior consent. Only 60 per cent voted yes, leaving a lot of local opposition.

We hear many "warm and fuzzy"statements. When the Rudd government endorsed the Declaration on the Rights of Indigenous People, Minister Jenny Macklin went to great pains to point out that it was non-binding. It would bestow no additional rights on Aboriginal Australians and would "not affect Australian laws". We'll endorse rights but don't expect it to cost us.

A new national organisation to advocate for Indigenous people has just got off the ground. National Congress of Australia's First Peoples has just held its first meeting in Sydney. Indigenous academic Marcia Langton called it an unrepresentative "club". Former Labor Party president Warren Mundine called it a waste of time. Lowitja O'Donoghue wants "naysayers" to give it go.

The new national congress is funded by government. So it may always be beholden to external powers. The Aboriginal movement that emerged in the late 1960s was genuinely grassroots. They saw their struggle linked to struggles of people of colour overseas. That struggle has dissipated as Native Title has taken communities, based on geography, into themselves.

Many lament this development. As an Aboriginal elder based in Dubbo told me recently, "What's needed is a revival." I hear again and again that native title is not justice and that reconciliation is only the start of a process to help remedy. Fittingly, this year's NAIDOC week is themed "Change: the next step is ours".

Prime Minister Julia Gillard has promised a referendum next year on the question of Indigenous recognition in the constitution. It would be great if it sparked a genuine, honest and challenging debate about acknowledging our past and real ways of making things right. There will be no true reconciliation until that happens.

Toni Hassan is a freelance writer based in Canberra.