My work as a public lawyer and constitutional lawyer has always been informed and driven by an inherent sense of truth and justice. And my own family’s experiences. During the protection era their lives were administered by the state, impinging on freedom of assembly, on freedom of movement, on freedom of speech including prohibiting language, prohibitions or regulation of marriage, on holding money from earned wages to prohibitions on intergenerational wealth and passing money down to family through inheritance. The protection acts also insidiously authorised the removal of children from their families, the Stolen Generations.
Many reserves and missions were sites of cheap labour for many early businesses and the governments. Like dispossession and the massacres, this was the political economy of a growing state. If the State of Queensland does not have reparation for this on the table for their ‘treaty’ process, it is no treaty. No more truth telling for no justice. The little money that was earned by aboriginal people was not given to them but held in trust by the state. The state spent the money. This is known as “stolen wages”. This money was not returned to Aboriginal people. My Grandfather’s file shows his money was never paid to him. The arrangements for compensation over the past decades are regarded by most as unsatisfactory.
I remember my time at the University of Queensland. Six years of my life. I was studying Law and Australian History in an Arts degree. The most influential experiences were Aidee Watego who taught me Aboriginal literature and Australian literature in the UQ English Department. And Aunty Jackie Huggins, a scholar, a historian and an academic. You cannot be what you cannot see.
I remember Aunty Jackie asking me at the Aboriginal Torres Strait Islander Unit whether I was interested in some casual work. She sent me to meet Les Malezer at FAIRA − the Foundation for Aboriginal Islander Research Action − in Woolloongabba. Les is one of the world’s leading Indigenous human rights defenders having shepherded the United Nations Declaration on the Rights of Indigenous Peoples through the United Nations General Assembly. He is tireless and one of the most prescient thinkers I have worked with. FAIRA was a hive of activist activity. People would gather before big protests. We would host community workshops on repatriation of human remains and many other things. I would make cuppas for my Uncle Merv Riley Snr. It was the first time I met the formidable poet of our people, Lionel Fogarty.
I had read his work growing up, my mum had been an English teacher. His poetry uplifts us all. It was a native title representative body at the time and Les started me on legal research on newly developing Indigenous norms in public international law to writing legal analysis for Land Rights Queensland. One of my first articles was on the Croker Island decision found that native title exists over the sea and sea-bed adjoining Croker Island.
FAIRA encouraged me to apply for a United Nations Fellowship. This was the generis of my two decades with the United Nations on Indigenous peoples’ rights. The skills you can garner from working for a community organisation on community activism are invaluable. They shape you for life. Being around our people teaches you respect. They teach you to be humble. I remember my first Secret Santa at FAIRA was a packet of junket; in reference to my trip to the UN. Everyone laughed and laughed. I never spoke for a decade at community meetings. They always took me along. I sat and watched and listened. It wasn’t until I was thirty that I felt I had anything to say or at least felt fully informed to speak. One of the most formative experiences was working on stolen wages litigation and sorting through hundreds of files at FAIRA from the protection era. In the 90s on NAIDOC day at Musgrave park the Queensland government Community and Personal Histories team had a stand with forms to fill out if you wanted access to your family files. It is indescribable what it does to a young person to read such files. Centuries of people working for a wage and never receiving that wage but writing letters to request the small comforts and the basics. To do this day, I carry the memory of reading the many letters to the protector, requesting a lamp, requesting a blanket, requesting permission to receive property, a horse and a buggy, requests to visit family. Some denied, some granted.
FAIRA was a community organisation owned and managed by Aboriginal and Torres Strait Islander people and its mission was the human rights of our people in Australia and the human rights of Indigenous peoples everywhere. Its website proudly stated “FAIRA endeavours to promote the practical use of studies and research under the control of Indigenous Peoples to pursue rights and equality, rejecting the tendency to study Indigenous Peoples from academic or pretentious perspectives”. The protection era and stolen wages and growing up in the Joh-era are the things that motivate me as an academic. My work is pragmatic. It is not theoretical. It is about change in the here and now for our people.
This is why the Uluru Statement from the Heart is so important. I have been a constitutional lawyer for twenty years. Before that I was a junior counsel at the Aboriginal and Torres Strait Islander Commission (ATSIC) and lived through major cases such as the Kartinyeri, Cubillo and Gunner and Mabo and Wik. I participated in the town hall meetings during the statutory reconciliation years like others in mapping our aspirations. I have lived long enough to know our people have been talking about constitutional power for a long time.
Our people have always been active participants in change and reform. And in 1967 we had the highest ‘Yes’ vote for a referendum in Australia’s history: that was us. We are always adapting to the environment around us. Constitutional reform is difficult because it is the highest law of the Australian legal system. And it is informed by Australians lack of trust in public institutions and our peoples’ lack of faith in the rule of law. And it is complicated by big theoretical agendas. I recall a conversation with Linda Tuhiwai Smith, my colleague on the Ngā Pae o te Māramatanga advisory board, New Zealand’s Māori Centre of Research Excellence. Linda had attended the Australian National University’s major conference on the Uluru Statement from the Heart in 2018. I asked her about some people struggling to situate the constitutionally enshrined Voice to Parliament and the Uluru Statement with notions of decolonisation. Her response was we can do both and we should do both. And it is true, and we need to learn how to work together bolstering each other’s work and voices.
The experience of the regional constitutional dialogues that led to the Uluru Statement was a part of that. It was designed to absorb the tensions, agreements and disagreement of our many voices to arrive at a consensus. And the national constitutional convention was unequivocally a consensus on a voice. Why waste the opportunity of reform? From Hawke to Howard to today there is zero appetite for a Commonwealth treaty. State based treaties are vulnerable to Commonwealth override. The Commonwealth has a power that can overturn any state law that is inconsistent and for the territories, anything. The territories are the most vulnerable of all. The Commonwealth can ignore or overturn anything set out in a treaty framework.
The greatest lesson I learned from the dialogues is the generosity of spirit of our old people and their pragmatism. They turned up to the meetings with energy and they brought the cultural protocol and the allegories and the leadership, and they led with the language of peace and friendship. These people have been caring for our country and our people for a lifetime. They have seen more representative bodies than me come and go. But they were so generous to the Australian people in their approach to this reform, to those who have done us wrong. And they are so insistent that at the heart of every solution to grievance is yarning. Our voice. Some have argued that a Voice to Parliament is toothless. How can we ever say that the First Nations peoples’ voice is powerless? Together our Voices are the most powerful of all.
Your support will ensure IndigenousX is able to stay independent and keep making original content.