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Wednesday, January 15, 2003
 
EQUAL, APART FROM THE LAW?

(Caution: long blog in progress)

We conservatives are focussed on what it takes to build and keep a civilised polity.

Radicals, on the other hand, think that the polity is what is left over when their claims - in a good cause of course - have been met. The present constitution is not worth much until their justice has been served, and bound to be better after it has.

No clearer case of this than the debate over "land rights", "reconciliation" and a "treaty".

Auntie has been repeating a long interview with lawyer Larissa Behrendt.

To put the personal before the political, Larissa Behrendt is a young woman of part Aboriginal descent. She is three generations away from the separation of her grand-mother from her parents, and two generations into an adoptive Aboriginal identity.

After a childhood not remarkably different from yours, she graduated in law in Sydney and was boot-strapped into Harvard's program for ethnic consciousness-raising by Alumna Roberta Sykes. She now drinks coffee with Margaret Throsby on ABC FM, lunches with Maxine McKew for The Bulletin, and is a media tip for leading force in Aboriginal politics.

In a long interview with ABC mouthpiece and Manningian historian, Michael Cathcart, Behrendt ruminates on her own form of reconciliation; how to make a commitment to the rule of law fit in with her commitment to the concepts of "reconciliation" between Aboriginal and non-Aboriginal Australians, and the need for a "treaty" between those same two ill-defined groups. And how to have two kinds of land title co-existing in Australia.

Please note that Uncle is using the quotation marks here not through a post-modern irony, but to indicate that the use of these terms in this debate takes them beyond the country in which they were brought up.

So what is Larissa Behrendt's contribution to these questions, and does she take us forward?


Land?

Michael Cathcart: When I was a student and land rights was on the agenda the view was, among white people who were sympathetic to Aborigines, that land rights was this magical thing that was going to put Aborigines back in touch with their culture, and everything was going to revive. But if you go out to the communities, even where people are living on their own land, you still see people who to my eye are living in squalor and poverty. It doesn’t seem to have worked the transformation that was promised.

Larissa Behrendt: It was a simplistic solution to a complex problem which was never going to work. And I guess the assumption that dispossession has led to these legacies of problems had been equated to the idea that if you give the land back the problems would go away.

Michael Cathcart: Well that was the idea, wasn’t it—that was the formula. Give the land back.

Larissa Behrendt: Clearly too simplistic, because of course when the land’s been taken away there are a whole lot of other things that have happened that complicate that. And I think one of the things we’ve failed to appreciate is that giving land back needs to be coupled to a whole lot of other things. There’s a whole agenda of economic redistribution that goes with the giving of a right like that. The people need to actually have wealth to be able to find the resources and the skills to be able to make the land base work.

So, in those cases where the land brought wealth, say in the form of mineral royalties (not available to holders of whitefella freehold), the social problems have been defeated? And should the funding for social disadvantage among Aboriginal communities now be leveraged on their title to land?

Sovereignty?

Michael Cathcart: Larissa, you’re a Professor of Law; you said before that you were a believer in the rule of law. How would the legal issues work in this era of sovereignty? Would there, for example, be two systems of criminal law; an Aboriginal system and a whitefella system?

Larissa Behrendt: Not necessarily. I think you really have to move away from the idea that when you talk about sovereignty you’re talking about a different jurisdiction. There’s an impoverishment with the English language which means there aren’t that many words to describe the relationship…

Michael Cathcart: Sovereignty’s not the best possible word, is it?

Larissa Behrendt: But the thing is, you say to people, well why do you use the term sovereignty, when people are going to think it’s about division? It’s a really good question. And people will say, well what’s the other word to use? Self-determination as a political word became very unpopular when the government used it to set up ATSIC, because people said, self-determination isn’t ATSIC. So they used this term sovereignty to describe that. Plus a feeling that there is certainly a nation that we all come from that’s separate, that has a distinctive cultural history.

But to get back to your question about if there was a recognition of that self-determination/sovereignty that I’m talking about, what would be the legal things that would need to be in place. It is about delegating powers for things like sentencing circles and conferencing to find alternative ways of navigating people through the criminal justice system.

Michael Cathcart: You just used the phrase sentencing circles.

Larissa Behrendt: Oh, these are initiatives that are being looked at by people like the Aboriginal Justice Advisory Council here in NSW, where instead of putting people through a court system, there’s a community-based forum in which offenders are dealt with by community people who find solutions. There’s usually elders involved


Is that what sovereignty means? Or is this just the beginning of a very long piece of string, and we're expected to take the other 98% sight unseen?

And the treaty?

Michael Cathcart: But you’re in favour of a treaty. Why a treaty? What would it be?

Larissa Behrendt: I should clarify that. I’m actually in favour of the treaty process. The process of talking through what it is that people want, as I’ve said, is what we should be doing at this moment. Mapping out what the claims are.

Michael Cathcart: And when they’re fleshed out, who sits down with whom, and who signs the piece of paper?

Larissa Behrendt: There are two issues that I think are going to be crucial in this process. The mandate issue is one; and the other issue I think Indigenous people really have to focus on—and it has to be an issue that goes parallel with the rights agenda—is the issue of who actually benefits from the treaty. Who are the Indigenous people? And if we don’t actually have that discussion at the same time as we’re talking about rights, at the end of the day, we’re going to have huge divisions about who’s in and who’s out and we’re going to be risking having somebody else decide that issue for us. I think they’re the two challenges in terms of a broader treaty arrangement.

The more I’ve worked on the treaty issue, the more it becomes apparent that the sort of model that would work would be something that had broad principles at a national level. That could do something to redress I guess the underlying claims as to why a treaty is important—that there hasn’t been a moment of inclusive nation-building and that this is about an on-going relationship.

Michael Cathcart: Now without pre-empting the kind of discussions that you say have to take place, let’s create now a kind of discussion paper for a treaty. What are the kind of provisions that would be on a treaty that we might at least discuss? The first provision would say, what?

Larissa Behrendt: I don’t even think we’re at a stage where we can have that conversation yet. The process now is finding whether Indigenous people want one.


So we're not ready to talk about "treaty" yet, but the rest of the community should all agree to it first, while Aborigines sort out the claims they wish to make under it.

Larissa Behrendt now works at the University of Technology, Sydney. Haven't I heard of that institution before?