Of the 250 recognised language groups in Australia, many do not live on their ancestral Country, with 37 percent living in our urban areas, especially our capital cities where they speak only the English language. The greatest number (34 per cent) of Indigenous Australians live in NSW, but where they comprise only 3.4 percent of the total population.  Meanwhile while only 7.5 percent of Indigenous people live in the Northern Territory, they comprise fully 26.3 percent of its total population, and for whom Indigenous languages remain their first language.

Currently of the total 227 Federal politicians, there are 11 of Indigenous ancestry. Of the 151 members of the House of Representatives, there are 3: the Hon. Linda Burney and Dr Gordon Reid (NSW) and Ms Marion Scrymgour (Northern Territory). Of the 76 members of the Senate there are 8 Senators: Dorinda Cox and Patrick Dodson (WA), Jacqui Lambie (Tas), Kerrynne Liddle (SA), Malarndirri McCarthy and Jacinta Nampijinpa Price (NT), Jana Stewart and Lidia Thorpe (Vic).

Definitions—Who are Aboriginal and Torres Strait Islanders?

Like many of the 96 percent of non-Indigenous Australians, who are being asked to vote on the 2023 Referendum to recognise and enshrine a Voice for Aboriginal and Torres Strait Islander people in the Australian Constitution, as I listen to various voices on national media talking about the issues, I found that I needed to understand who are the Aboriginal and Torres Strait Islanders among us who comprise 3.8 per cent of our population.

For legal and program administration purposes, in Australia it is based on a three-part test, that an Aboriginal or Torres Strait Islander:

1. Is a person of Aboriginal or Torres Strait Islander descent
2. Who identifies as an Aboriginal or Torres Strait Islander, and
3. Is accepted as such by the community in which he [or she] lives (Australian Law Reform Commission).

This issue of definition of who is an Aboriginal and Torres Strait Islander person has long haunted Australian legislators. John McCorquodale, in his ‘The Legal Classification of Race in Australia’, Aboriginal History, vol. 10, no. 1, 1986, pp. 724, analysed over 700 pieces of legislation, and found no less than 67 different definitions of Aboriginal people in Australia’s history.

Although in the first decades of settlement Aboriginal people were grouped by reference to their place of habitation, in subsequent years, as settlement resulted in more dispossession and intermixing, a raft of other definitions came into use.  The most common involved reference to ‘Blood-quotum’. ‘Blood-quotum’ classifications entered the legislation of New South Wales in 1839, South Australia in 1844, Victoria in 1864, Queensland in 1865, Western Australia in 1874 and Tasmania in 1912. Thereafter till the late 1950s States regularly legislated all forms of inclusion and exclusion (to and from benefits, rights, places etc.) by reference to degrees of Aboriginal blood. Such legislation produced capricious and inconsistent results based, in practice, on nothing more than an observation of skin colour.[vc_column_text css=”.vc_custom_1688626326417{margin-top: 1% !important;margin-right: 1% !important;margin-bottom: 1% !important;margin-left: 1% !important;padding-top: 5% !important;padding-right: 5% !important;padding-bottom: 5% !important;padding-left: 5% !important;background-color: #ddb271 !important;}”]

The Conundrum

Historian Peter Read, drawing on documented sources, has shown the conundrum that has often caused people of Indigenous ancestry:

In 1935 a fair-skinned Australian of part-indigenous descent was ejected from a hotel for being an Aboriginal. He returned to his home on the mission station to find himself refused entry because he was not an Aboriginal. He tried to remove his children but was told he could not because they were Aboriginal. He walked to the next town where he was arrested for being an Aboriginal vagrant and placed on the local reserve. During the Second World War he tried to enlist but was told he could not because he was Aboriginal. He went interstate and joined up as a non-Aboriginal. After the war he could not acquire a passport without permission because he was Aboriginal. He received exemption from the Aborigines Protection Act—and was told that he could no longer visit his relations on the reserve because he was not an Aboriginal. He was denied permission to enter the Returned Servicemen’s Club because he was. (Gardiner-Garden, J., Current Issues Brief No.10 2002-03, Parliament Social Policy Group)

Who’s In and Who’s Out

Alternatively, from the viewpoint of Aboriginal and Torres Strait islander people, as Dr Larissa Behrendt, Professor of Law and Indigenous Studies at the University of Technology Sydney, has commented: “If we’re going to talk about treaties and recognition of rights, the question of who’s in and who’s out is going to be the most important issue facing indigenous Australians. If that isn’t resolved, you run the risk of having the parameters stretched to the ludicrous point where someone can say: ‘Seven generations ago there was an Aboriginal person in my family, therefore I am Aboriginal.’

However, Professor Larissa Behrendt also has expressed concern about the tendency of the courts to distort the three-part test by focussing unduly on descent, however defined. Professor Behrendt noted that self-identification has been recognised as the international standard for establishing indigenous identity, and she emphasised that, in talking about elections and treaties, indigenous people need to talk among themselves about Aboriginality and what makes their Indigenous identity (consultation with the ALRC).

Dispossession and relocation, along with intermarriage, has meant that many Aboriginal and Torres Strait Islander people have not grown up on their Country, the place associated with their ancestral lineage.  Through intermarriage between different groups of Aboriginal and Torres Strait Island people, and with non-Indigenous people, many have ancestral ties to different language groups (Country), and to settler-colonial ancestry.There are some who carry the deep scars of intergenerational trauma from racist exclusion, marginalisation, separation from family and entrenched poverty, anchored in their Indigeneity. This particularly relates to the children of the ‘stolen generation’ who were forcibly separated from the biological parents due to their skin colour, identifying them of part ‘white’ European ancestry, but yet henceforth also denied membership among ‘white’ Australians with no obvious Indigenous ancestry. Trapped in a no-man’s land of non-belonging.

Furthermore, because of racial exclusion, some people of Aboriginal and Torres Strait Islander descent grew up in families that hid their Indigenous ancestral ties and cultural beliefs, whose children are now seeking to find ways to reconnect with Country as part of their own search for identity and cultural knowledge. As a result of their families hiding their Indigenous ancestry, many had better access to education and employment, but who suffered a sense of cultural loss, and have discovered the ‘healing power’ of recovering their connection to Country and culture. The AFL player, Adam Goodes is one well known example of this story. They include Indigenous people of the East Coast of Australia who suffered the longest and most sustained extinguishment of their culture and languages.

This compares with Indigenous people of more remote central, northern, and the Torres Straits where Indigenous languages, culture and the ceremonial transmission of their knowledge systems have survived settler contact. Yet, statistically speaking, they make up a small percentage of Australia’s overall Indigenous population.

Thus, sociologically speaking, we non-Indigenous Australians who seek to understand our fellow Aboriginal and Torres Strait Islander Australians are faced with a confusing tapestry of claims and counter claims that speaks to our colonial-settler history.

The Problematic

This problematic was vividly portrayed in the conversation between ABC journalist Tony Armstrong and artist and surfing legend, Bill Bain in ‘Changing Tides’ on the ABC Compass Program (2 July, 2023). As Armstrong notes: “I get frustrated sometimes [by] how rarely you see city mob, let alone salt water mob, represented on screen. It’s always desert mob. They’ve got such a rich history on film, TV and radio with so many great storytellers.”  And Billy Bain responds: Where I grew up (Sydney’s northern beaches), people didn’t really allow me to be Indigenous. [When] I would tell my friends, they’d laugh at me and bring up blood quantums and ask, “What are you? 20 per cent [Indigenous]?” Or they’d say, “You just want more dole money.”

In Bain’s answer we see the other source of contestation about valid Indigenous identity being advocated by such political figures as Senator Pauline Hanson: the idea that claims to Indigenous identity are frequently fraudulent ways of claiming benefits; the assertion that Aboriginal and Torres Strait Islander people unfairly get more ‘welfare’ benefits than non-Indigenous Australians, despite all the glaring statistics of continuing Indigenous disadvantage in modern Australia. For example, Sky News recently reported: One Nation leader Pauline Hanson has stood by her assertion some Australians are feigning being Indigenous in order to access additional welfare, arguing there is “no real definition of Aboriginality”.

Hanson and other media commentators who question Aboriginal and Torres Strait Islander identity have conflated issues of Aboriginal identity with poverty, colour, and remoteness as though, in their minds, one could draw a simple chart where the lighter a person’s skin gets the less Aboriginal they are, the less poverty they have experienced, the less trauma their family has experienced, the less culture they have, the less remote they live, and the more Indigenous funding they access.

White colonial-settler culture’s accommodation with our history of physical and epistemic violence and dispossession is difficult for those who identify with Hanson’s plaintive comment in the Senate on 21 March 2023, to justify her No vote on the Referendum:

 Perhaps the most outrageous idea to rise out of racist identity victim politics is that rent should be paid to Aboriginal and Torres Strait Islander people by other Australians. It shouldn’t. The idea that Australians should pay rent for living in their own country is offensive. It’s based on the idea that only Aborigines own Australia. They don’t. Australia belongs to all Australians. I was born here, and no self-identifying Indigenous Australian, including those with a minute amount of Indigenous heritage, has more right or connection to this land than I do. We have all contributed to this country, and we all share in its achievements, failures, resources, disasters, virtues, values and shortcomings.

The 2023 Referendum

The Referendum to recognise Aboriginal and Torres Strait Islander people and enshrine their Voice to Parliament and Government in the Australian Constitution is an acknowledgement that Aboriginal and Torres Strait Islander people hold a unique place in our culture and history as Australia’s First People.

There are two aspects to this request:

1. Constitutional recognition of Aboriginal and Torres Strait Islander indigenous cultural sovereignty based on acknowledging they are the world’s oldest living culture in the world—of more than 65,000 years
2. A constitutional right of a representative Voice that will provide Aboriginal and Torres Strait Islander people’s advice to Parliament and Government about policy and laws that affect their wellbeing—in order to make a practical difference ‘on the ground’ in ‘Closing the Gap’ between Indigenous and non-Indigenous peoples on key social wellbeing indicators: health outcomes, educational achievements, access to housing, and the impact of the criminal justice system.

There seems to be three distinct groups of Indigenous people in terms of their attitude to the Referendum:

• YES: Those associated with the Uluru Statement from the Heart, drawn from the 250 Indigenous language groups of Australia, who have asked for the Voice to be enshrined in the Constitution as an advisory body to Parliament and Government, drawing on local representation of Indigenous people.

—This proposition is said to be supported by 80 percent of Indigenous Australians, the majority of civil society, business and sporting organisations, by the majority of members of National Parliament —Labor Party, Greens Party and most Independents and Cross Bench elected members, who argue that it will achieve practical outcomes in improving the lives of Indigenous people by ensuring local experience informs policies and programs that affect Aboriginal and Torres Strait Islander people, especially in Closing the Gap targets for education, health, housing and employment, as well as reducing levels of incarceration.

• NO (Conservative): Those who are arguing against such a development on the grounds that it would racially divide Australians. They support symbolic Constitutional recognition, but not a Voice with the constitutional right to advise Parliament and Government. They argue that enshrining a Voice in the Constitution is dangerous and unwarranted.

—This proposition is led by  two Indigenous Australians: Nyunggai man Warren Mundine, linked to substantial mining interests as a successful businessman, and Shadow Indigenous Australians Minister, Senator Jacinta Nampijinpa Price a vocal member of the conservative Think Tank, the Centre for Independent Studies, is actively supported by the Leaders of the Opposition, Peter Dutton and David Littleproud, as the official position of the Coalition, and most members of the National and Liberal Parties of the National Parliament. Their opposition is based on concerns that a constitutionally enshrined Voice would enable it to appeal to the High Court to contest government policies and legislation and make unreasonable claims for reparation.

• NO (Progressive): Conversely, those who argue that a constitutionally enshrined Voice as an advisory body is too tokenistic and has no real power to achieve the changes required to address issues affecting Indigenous Australians, and instead who seek major reparation for past injustices and dispossession through a Treaty.

—This proposition is led by Independent Senator Lidia Thorpe and is supported by a group of Indigenous human rights advocates who have formed the Blak Sovereign Movement, including Michael Mansell, Chairperson of the Tasmanian Aboriginal Centre, and Indigenous lawyer, Vanessa Turnbull Roberts. However it is difficult to see how a NO vote on the Referendum will advance their cause, and how it would not leave a bitter taste in the mouths of the many Indigenous people who have long campaigned for the Voice.The NO position of the Coalition and Indigenous leader, Jacinata Nampijinpa Price, feeds into well-established tropes in Australian society:

• Claims that Australia is not a racist society with everyone enjoying equality before the law, and enjoying the fruits of our collective British cultural inheritance that has built Australia’s economic wealth and liberal democracy
• Claims that as, since 1967 Aboriginal and Torres Strait Islander people have been granted equal citizenship with non-Indigenous Australians, they should be treated the same as all other Australians, despite the compelling evidence that they are not treated the same, being subject to pervasive racism and over-policing through racial profiling, resulting in extremely high levels of incarceration, often while on remand for minor offences.
• Claims that there are problems in determining the legitimacy of Aboriginal and Torres Strait Islander Identity, which is open to fraud for purposes of access to programs designed to address Indigenous disadvantage and title over customary lands
• Claims that Aboriginal and Torres Strait Islander people experience privileges in terms of welfare support that is not available to other non-Indigenous Australians.

Competing Knowledge Systems and Cultural Sovereignty

In the discussion about the Referendum, what is frequently not understood by the 96 percent of non-Indigenous Australians who are being asked to vote for this change to the Australian Constitution, is how the two issues are intrinsically linked.

The Uluru Statement from the Heart asks us to consider the possibility of Aboriginal and Torres Strait Islander sovereignty co-existing with that of the Crown. It states:

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

From this statement comes the well-known phrase, “always was, always will be, Aboriginal land”.

For First Nations peoples, culture encompasses knowledges held, shared and continually adapted, including language, music, dance, stories, songlines and songspirals, and visual art. These knowledges inform and shape Aboriginal relationship with school-based education, housing, kinship obligations, and employment, sitting alongside cultural obligations and connection to Country. For this reason culture and connection to Country, which is is governed by sophisticated systems of knowledge under the custodianship of Elders, is central to the health, wellbeing and the identity of First Nations peoples.The reasons WHY past Closing the Gap strategies and their programs have not been effective is not only because of the impact of the colonial-settler history of dispossession and racial exclusion, including substantial intergenerational trauma. It is also because the knowledge systems that inform modern Australia, which constitutes our inheritance from British culture, differ in fundamental ways from those that inform Aboriginal and Torres Strait Islander culture. These differences are most visible in attitudes towards nature and spiritual beliefs, and our responsibilities within extended family systems.

The Differences

For most non-Indigenous Australians, the natural world is a resource to be managed for:

• Exploitation through mining, agriculture, aquaculture or tourism and recreation
• Protection through reservation of certain areas as protected national parks, legislation to protect the environment (water resources, biodiversity, logging of native forests, land clearing, prevention and punishment of animal cruelty, biological controls and biosecurity over pests that might affect agriculture, invasive plants and diseases impacting animals and plants).

For Aboriginal and Torres Strait Islander people, the natural world is an intrinsic part of their kinship system.  As Gundungurra Elder, Aunty Sharyn Hall, explains:

Ngurra (Country) takes in everything within the cultural and spiritual landscape—landforms, trees, rocks, plants, animals foods, medicine, minerals, stories and significant places.  It includes Cultural practices, knowledge, songs, stories and art as well as Spiritual Beings and people, present and future.  Ngurra has a deep meaning of belonging.

 

This understanding of the human relationship with the natural world informs the existence of sacred sites in the physical landscape that have a higher value than any exploitable resources such as minerals, water and recreational resources that might be contained therein. Aboriginal and Torres Strait Islander culture recognises that we live in a thoroughly animated world where each aspect has its own ‘voice’ and spiritual agency, which requires respect.  Where literacy and cultural leadership is not based on mastery of the written word encoded in grammatical language, but on deep knowledge that enables one to ‘read’ the land-seascape across the seasons and across deep time: knowledge that is acquired through the ceremonial transmission of knowledge via song, dance, storytelling encoded in the Songlines. And whose innermost meanings are held as sacred-secret by the Elders (Cultural Custodians) and are not shared with those without proper cultural education and demeanour.

Australia’s National Cultural Policy 2023—Revive

Australia’s arts and culture are grounded in the material heritage, practices and knowledges of First Nations peoples, who possess the world’s longest surviving cultures. In the Uluru Statement from the Heart, First Nations peoples call for a future where their children ‘will walk in two worlds, and their culture will be a gift to their country’ (First Nations National Constitutional Convention 2017).

What makes Australia’s contribution to world art and cultural production is its anchoring in this unique ancient culture, and the continuing inspiration this provides through the visual arts, music, the performing arts and film, which has attracted a global audience.

Why?  Because it links ancient wisdom and truth to a growing interest in how to transform our relationship with the natural world, as the Earth speaks to us via climate change, that we humans must transform our story of continual Progress and Economic Growth via our exploitation of the natural world. We must find a new way to live sustainably within our bio-regional limits, or we are doomed.

The Albanese Government’s national cultural policy for the Arts builds on principles already developed under the previous Coalition Government. Both recognise that for First Nations peoples, culture is more than just visual and performing arts; it includes language, stories, songlines, sacred sites and traditional knowledge.

Culture is the sum of all things, the essence of our being. Connection to culture is integral for the health and wellbeing of First Nations peoples, to our sense of identity, and to maintaining the vitality and strength of our communities.

Revive states: First Nations arts and culture is the voice to the people and a tool for truth-telling. In the same way that the Voice to Parliament will be a centrally organised voice to government, the new National Cultural Policy must support First Nations stories to be told and truth to be told.

For this reason, the 2023 National Cultural Policy has committed to working with First Nations peoples to establish stand‑alone legislation to recognise and protect First Nations traditional knowledge and cultural expressions, including addressing the harm caused by fake art, merchandise and souvenirs. This work will include consideration of protections for communally-held knowledge and all forms of First Nations cultural expressions handed down between generations. In particular the Cultural Policy is working to improve the capacity of Indigenous creatives to lead and guide projects that draw on their important ancestral knowledge systems.

The Protocols

It will be founded on the following ten principles for respecting Indigenous Cultural and Intellectual Property: respect, self-determination, consent and consultation, interpretation, cultural integrity, secrecy and privacy, attribution, benefit sharing, maintaining First Nations culture, and recognition and protection.