Truth-Telling: History, Sovereignty and the Uluru Statement

By Henry Reynolds

If we are to take seriously the need for telling the truth about our history, we must start at first principles. What if the sovereignty of the First Nations was recognised by European international law in the eighteenth and nineteenth centuries? What if the audacious British annexation of a whole continent was not seen as acceptable at the time and the colonial office in Britain understood that 'peaceful settlement' was a fiction? If the 1901 parliament did not have control of the whole continent, particularly the North, by what right could the new nation claim it?The historical record shows that the argument of the Uluru Statement from the Heart is stronger than many people imagine and the centuries-long legal position about British claims to the land far less imposing than it appears.In Truth-Telling, influential historian Henry Reynolds pulls the rug from legal and historical assumptions, with his usual sharp eye and rigour, in a book that's about the present as much as the past. His work shows exactly why our national war memorial must acknowledge the frontier wars, why we must change the date of our national day, and why treaties are important. Most of all, it makes urgently clear that the Uluru Statement is no rhetorical flourish but carries the weight of history and law and gives us a map for the future.

• Language: English
• Publisher: Independent Publishers Group
• Release date: May 1, 2021
• ISBN: 9781742245119

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Cover: Truth-Telling: History, sovereignty and the Uluru Statement

TRUTH-TELLING

HENRY REYNOLDS is one of Australia’s most recognised historians. He grew up in Hobart and was educated at Hobart High School and the University of Tasmania. In 1965, he accepted a lectureship at James Cook University in Townsville, which sparked an interest in the history of relations between settlers and Aboriginal people. In 2000, he took up a professorial fellowship at the University of Tasmania. His pioneering work has changed the way we see the intertwining of black and white history in Australia. His books with NewSouth include The Other Side of the Frontier (reissue); What’s Wrong with Anzac? (as co-author); Forgotten War, which won the Victorian Premier’s Literary Prize; Unnecessary Wars; and most recently This Whispering in Our Hearts Revisited.

‘Our goal of an honourable place in the nation for Aboriginal and Torres Strait Islander people owes much to Henry Reynolds. He contributed his profound historical scholarship on the denial of sovereignty to Indigenous people in Australia when we were still trying to get a seat at the table in the United Nations. He has been cited in key documents since and his work informed the outcomes in Koiki Mabo’s challenge to the High Court in Mabo (No 2). His imprint is also evident in the Uluru Statement from the Heart. This book is essential reading for everyone involved in recognising our place in the nation.’

Marcia Langton

‘Henry Reynolds once again exposes some of the horrible truths regarding our shared past. Laying an important foundation for truth-telling and treaty-making, Truth-Telling casts aside the lie of terra nullius that continues to have disastrous and ongoing consequences for Aboriginal peoples, and for the contemporary Australian nation. This book will allow Australians to build a better, more truthful, Australia.’

Mick Dodson

‘With passion, readability, and scrupulous scholarship, Henry Reynolds lays out the big-picture context of the Uluru Statement from the Heart and why it’s fundamental to our future Australia. Essential reading to understand the past and see the path forward.’

Kate Grenville

‘This is the book we’ve been waiting for. The historian who pioneered a revolution in Aboriginal history helps us to understand the full majesty and historical depth of the Uluru Statement from the Heart. In doing so, he exposes the denial at the heart of Australia’s foundation. Henry Reynolds writes with luminous clarity, piercing insight and moral power. Truth-Telling is a gift to his nation from one of our greatest historians, a brilliant encapsulation of a lifetime’s scholarship.’

Tom Griffiths

‘An eloquent and powerful distillation of a lifetime’s work. Ranging across a vast terrain of scholarship as few other historians can – legal and political history, war and memory, and the brutal, chequered history of Australia’s frontier – Henry Reynolds re-examines the traditional doctrine of sovereignty in light of the Uluru Statement from the Heart. How did the sovereignty of First Nations people survive the invasion? Is it possible for First Nations’ sovereignty to coexist with the sovereignty of the Crown? With trademark clarity and intellectual rigour, Reynolds has given us a political call to arms; a book that explains like no other why Truth-Telling is so urgently needed in Australia.’

Mark McKenna

TRUTH-TELLING

HISTORY, SOVEREIGNTY

AND THE ULURU STATEMENT

HENRY REYNOLDS

Warning: Aboriginal and Torres Strait Islander people should be aware that this book contains words and descriptions written by non-Indigenous people in the past that may be confronting and would be considered inappropriate today. It also contains the names of deceased Indigenous people and graphic descriptions of historical events that may be disturbing to some readers.

A NewSouth book

Published by

NewSouth Publishing

University of New South Wales Press Ltd

University of New South Wales

Sydney NSW 2052

AUSTRALIA

newsouthpublishing.com

© Henry Reynolds 2021

First published 2021

This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part of this book may be reproduced by any process without written permission. Inquiries should be addressed to the publisher.

ISBN:9781742236940 (paperback)

9781742245119 (ebook)

9781742249636 (ePDF)

Design Josephine Pajor-Markus

Cover design Peter Long

Cover image The Landing of Captain Cook at Botany Bay 1770, Australia, 1930 / Copyright Percy Trompf Artistic Trust, courtesy Josef Lebovic Gallery, Sydney

All reasonable efforts were taken to obtain permission to use copyright material reproduced in this book, but in some cases copyright could not be traced. The author welcomes information in this regard.

This book is printed on paper using fibre supplied from plantation or sustainably managed forests.

CONTENTS

The Uluru Statement from the Heart

Introduction: Hearing the Statement from the Heart

PART I: THE FIRST SOVEREIGN NATIONS

1Taking possession

2This ancient sovereignty

3Whose land?

4Effective control?

5Australia and the law of nations

6‘Treaty yeh, treaty now’

PART II: SEARCHING FOR TRUTH-TELLING

7The truth about 26 January

8Settlement, conquest or something else?

9The cost of conquest

10Queensland was different

11Remembering the dead

12The consequences of truth-telling

13Inescapable iconoclasm

Conclusion: The resurgent north

Notes

Index

THE ULURU STATEMENT FROM THE HEART

We, gathered at the 2017 National Constitutional Convention, coming from all points of the southern sky, make this statement from the heart:

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago.

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and coexists with the sovereignty of the Crown.

How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years?

With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.

These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.

We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.

We call for the establishment of a First Nations Voice enshrined in the Constitution.

Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.

We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.

In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.¹

INTRODUCTION: HEARING THE STATEMENT FROM THE HEART

I first became involved in the politics of race over fifty years ago. It was in 1967, at the time of the referendum to amend the Constitution. Two small changes were being proposed. One made it possible for the first time to count Indigenous Australians in the national census. The other gave the federal government power to become engaged in Aboriginal affairs, hitherto a state government preserve. But for the electorate at large it represented a chance to welcome Indigenous Australians into the political community. And perhaps, even more significantly, it permitted the federal government to take the leading role in both developing and funding new Indigenous policies. It was one of the milestones on the long road that slowly wound its way away from white Australia’s colonial and racist past. There have been other milestones on the journey. There was the bark petition sent by the Yirrkala people of Arnhem Land’s Gove Peninsula in 1963 attempting to overturn the decision to excise land from the Aboriginal Reserve to facilitate bauxite mining. In 1988, then prime minister Bob Hawke signed the Barunga Statement foreshadowing negotiations to precede the signing of a treaty. His successor, Paul Keating, delivered his Redfern Speech in December 1992 calling for recognition that indeed white Australia had a black history, declaring ‘that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the diseases. The alcohol. We committed the murders. We took the children from their mothers.’¹ In 2008 the newly elected prime minister Kevin Rudd delivered a formal apology to the Stolen Generations.

In May 2017 the nation was presented with what has come to be known as the Statement from the Heart, drawn up after a meeting at Uluru of 250 delegates ‘coming from all points of the southern sky’. The statement was the culmination of a process that followed the appointment of a sixteen-member Referendum Council in December 2015. Council members gathered evidence from over a thousand participants meeting at twelve locations around the country. There was not universal Indigenous support for the statement, but it was undoubtedly the most widely canvassed document that has ever been addressed to the wider community by representatives of the First Nations. It was also a masterpiece of forensic advocacy – succinct, with scarcely a wasted word, utilitarian where necessary, elegant, even poetic in places. It is a document that will endure. But its lasting political impact is yet to be determined.

The proposal that attracted most discussion was the call for the establishment of an institution to provide for a permanent Indigenous ‘voice to parliament’. It was dismissed with peremptory expedition by then prime minister Malcolm Turnbull, who declared that it would become an unacceptable third chamber of parliament. Other suggestions in the document have so far escaped critical attention, but their long-term significance is likely to be considerable, presenting a feisty challenge to both Australian jurisprudence and the nation’s perception of its history.

The delegates at Uluru called for the establishment of a Makarrata Commission to supervise a process of both agreement-making and truth-telling in our history. Makarrata is a Yolngu word describing a process of conflict resolution, peacemaking and justice. It would represent the first official and adequately funded body to examine the fraught history of relations between the First Nations and the European invaders. It would have to tackle questions that have been deeply controversial and much contested during the last two generations, ones that have been central to the culture wars still being fought out in parliaments, the media and the nation’s school rooms. On the other hand, it would bring Australia into line with the many countries that, while dealing with troubled histories, have over the last thirty years or so established truth commissions. The South African Truth and Reconciliation Commission is probably the best known of these, but they were also established in South and Central America and in Eastern Europe. They provided venues for victims to be heard, and for atrocities to be documented in such a way that they will never be forgotten.

So while the Statement from the Heart urges Australia to come to terms with a radical new version of the nation’s history, it throws up an even more challenging interpretation of the law and in particular our understanding of the imposing question of sovereignty. A passage of great eloquence declares that the Aboriginal and Torres Strait Islander peoples were the first sovereign nations of the Australian continent and possessed it under their own laws and customs:

It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.

How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years?

… we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.²

We have here a series of assertions that have the rhetorical power of compacted common sense. But common sense is not the same thing as the common law. The idea that First Nations’ sovereignty survived the invasion collides with the fundamental premises on which law in Australia was based from the first hours of colonisation. For good or ill, they remain undisturbed, buried deep in the legal foundations of the state.

The Statement, then, contains a challenge to legal doctrine more unsettling than the jurisprudential revolution ushered in by the High Court’s Mabo judgment in 1992 and the Wik judgment four years later. Our first task in this book then is to re-examine the traditional doctrine of sovereignty, from the appearance of James Cook on the east coast of Australia in 1770 and the arrival of the First Fleet in Sydney Harbour eighteen years later, and bring it forward until 1992, when despite themselves the High Court judges in the Mabo case changed property law forever and intimated that the traditional doctrine relating to sovereignty might eventually have to change as well. Is it possible that the sovereignty of the First Nations has survived? Was it ever extinguished? Can it coexist with the sovereignty of the Crown? And what of truth-telling? Is there an appetite for it in contemporary Australia? Or is the need for comforting national stories too compelling? Are home truths just too difficult to accept?

These questions have interested me ever since I arrived in Townsville from Tasmania in 1965 to begin a teaching career at the new university college, which became James Cook University in 1970. I was asked to teach Australian history, which I knew very little about. I knew even less of the fraught relations between white Australians and the Aboriginal and Torres Strait Islander peoples. And it was a time of rapid change. Torres Strait Islanders had only been allowed to live on the Australian mainland for a few years, after having worked on rebuilding the Townsville–Mount Isa railway line. By 1966, many young men had brought wives and family members to live in Townsville and Cairns. At the same time there was what can only be called a reurbanisation of Aboriginal communities. Families were being allowed for the first time to leave hitherto closed reserves and missions. Others were being encouraged to walk away from pastoral stations in the vast hinterland as demands for equal pay grew louder.

The 1967 referendum marked the beginning of a new era in community relations. In Townsville the tensions accompanying rapid and radical social change were apparent every day and were, as a result, inescapable. And much of what one could see and hear was shocking. Old white Australia was resisting loudly and often violently. It was all totally new to me and in many ways unexpected. I was seeing aspects of Australia that I had known nothing about.

The students in my small classes knew that race was a question of pressing importance. Many of them had come from small towns, from pastoral stations or from Aboriginal missions where their parents taught. So how was I to bring these themes into my teaching? It was still in the era of what the anthropologist Bill Stanner called, in his 1968 Boyer Lectures, ‘the great Australian silence’.³ The textbook set for my course scarcely mentioned Aboriginal people. They did not even have an entry in the index. There were very few relevant books in the small university library. So I began, tentatively at first, to research Queensland history and then widen out my exploration to embrace the whole country. And at the same time I started some rudimentary exploration of oral history among the Aboriginal and Torres Strait Islander community, working with my friends Eddie Mabo and Noel Loos. For the first time I had the chance to see, vicariously, Australian history from the other side of the frontier. And having done so I could never again see our national story as one of triumphant progress and peaceful pioneering. It was not heroic, I came to realise, but tragic. I began to write a different sort of history, which was controversial and, for many people, deeply challenging. I became a leading practitioner of what was to be given the pejorative title ‘black-armband’ history.

My original focus was on the history of the shifting frontier where resident bands confronted the intruding white men. The accompanying violence was ubiquitous and therefore inescapable. But other themes emerged. The land rights crusade thrust legal questions to the front of both the political and the historical stages. It was a subject I knew little about, an ignorance remedied by many weeks of intense study in the practitioners’ Library in the High Court in Canberra. And examination of land law led on to the related question of sovereignty. It became progressively clear that to bring the First Nations back into Australian history meant to challenge the hitherto imposing edifice of both the nation and the state. They could not be housed in a lean-to at the back of the building. The whole floor plan had to be redesigned.

Research, politics and law came together in a series of fateful meetings with Eddie Mabo and Noel Loos in my office in James Cook University. We told Eddie that his ancestors’ land had been expropriated a hundred years before when, in 1879, the Queensland colonial government had annexed the Murray Islands. He was astonished, horrified and outraged. There was the extraordinary injustice to begin with, but also the grotesque imperial overreach permitted and sanctioned by the law. So, as far as Eddie was concerned, Queensland’s claim of sovereignty was as dubious as the expropriation of his land. Had he lived he would have pursued that question with equal vigour and would likely have been one of the signatories of the Uluru Statement from the Heart.

I learnt so much from conversations with First Nations’ friends and acquaintances all over Australia, but particularly in and around Townsville. But of equal importance have been the innumerable discussions I have had over many years in many parts of Australia with students, audiences in halls and churches, and attendees of conferences and literary festivals. I have had many conversations with perfect strangers and have listened in to relevant discussions in which others were engaged. People were frequently supportive of my project, but not always so. I have been accused of disloyalty, of irresponsible troublemaking and of hating my country. During the Cold War, I was often denounced as a communist. More commonly I was called a ratbag. I quickly came to realise how difficult these questions were, particularly for older Australians who had grown up when a much more benign version of Australian history was taught in schools and was woven through our cultural life. Despite what many people thought, I was aware that ‘black-armband’ history was deeply disturbing, and I understood those many people who took the view that a troubled history was best forgotten, that it was preferable to look to the future and not to dwell on the past. But it was always hard to equate those sentiments with that most revered phrase in Australian history, ‘Lest We Forget’.

Australians are sensitive about their past and most people have strong views about First Nations people. It is a subject about which almost everyone is willing to express an opinion, no matter how poorly informed. Certainly, the last twenty or so years have seen a remarkable growth of historical awareness and a far more realistic understanding of the whole process of colonisation. There is now a better chance than at any time in the recent past to initiate a process of truth-telling. But not everyone will be happy with the process, and opposition may make it hard to establish bipartisan support for the Makarrata as proposed by those many delegates at Uluru who had come ‘from all points of the southern sky’.

My own individual contribution to our national truth-telling will begin with the arrival of the British when, in 1770, James Cook’s Endeavour sailed along the east coast and then in January 1788, when the First Fleet arrived at Botany Bay before moving a few days later to the more promising site on Sydney Harbour.

PART I

THE FIRST

SOVEREIGN

NATIONS

1

TAKING POSSESSION

The Endeavour arrived on the south coast of Australia at Point Hicks, in Gippsland Victoria, on 20 April 1770, having earlier circumnavigated New Zealand. Cook turned north and anchored for a week in Botany Bay in late April and early May. He then resumed his run up the east coast, naming over a hundred prominent features and drawing up charts along the way. After taking forced refuge in the Endeavour River for seven weeks, the voyage continued, and by the third week in August the repaired ship was anchored beside