Dynamics of Difference in Australia. Francesca Merlan

The Present Moment: “Recognise”?

      As I write this Introduction, Australia continues to contemplate, hesitantly, a referendum that would write into the constitution the recognition of indigenous Australians.⁵ The Australian constitution does not mention indigenous Australians, and the Australian government has not yet proposed the terms in which the constitution could refer to and thus recognize them. “Recognise” (as the initiative is called) is being debated and urged by supporters as an appropriate and necessary step in repairing and renewing relations between indigenous and nonindigenous people at the national level. Opinions on it differ. Some argue it should happen; others oppose it as marking out a special place for indigenous people in a way that is divisive. Still others argue that this move is a distraction—“useless”—and that other measures to adjust this relationship would be of far greater value. Increasingly, the latter are indigenous spokespeople, who seek something they can see as realizing their demand for a meaningful and rightful indigenous place in Australia today.

      The Recognise initiative reveals Australia as attempting, and wanting to be seen to attempt, to engage with its indigenous population in a new way and accord it some kind of official commendation at a new institutional level. Collective acknowledgment is now sometimes said by people of varying political and social persuasions to be necessary to Australia’s national “completion.” This is phrased on the Recognise website in various registers. An indigenous man from Cape York, Harold Ludwick, is quoted as saying: “If the Constitution was the birth certificate of Australia, we’re missing half the family.” This places the “birth” of “Australia” at the time of federation, 1901, occluding the temporal dimension of what is often acknowledged as thousands of years of indigenous presence on the continent. Another part of the website urges: once we write in “this missing first chapter of our national story, it will formally become part of the shared story of every Australian.” In other words, the indigenous story will no longer be a thing apart but will be included on the terms of the nation-state as a whole.⁶

      At the same time, Recognise marks out the fact that the “indigenous” is felt by many nonindigenous Australians to represent “difference” that remains problematically unassimilated. Indigenous people and presence, though valued in some ways, remain to be reconciled with national being or more fully included. With one exception—a finding of native title in a High Court case discussed below—indigenous Australians are, however, not attributed legal forms of recognition deriving from their having been the original people of the continent. Would the present initiative amount to this kind of recognition or not? That is the underlying tension, the elephant in the room, of Recognise, a seemingly celebratory proposal. If it were to be originary status that is recognized, what would be the consequences? And if not, what then?

      Not far below the surface of the Recognise initiative is a question about the terms of Australian sovereignty that was raised but not resolved to everyone’s satisfaction in the famous Mabo case (1992). In judgment of a claim to possessory title of the island of Mer in the Torres Strait by virtue of longstanding possession, advanced by Eddie Mabo and other islanders, the High Court found that native title exists, and it may survive colonization. On the other hand, the High Court made clear that native title may not survive if it is deemed to have been lawfully extinguished by governmental action. That is, despite its foundational-sounding name, native title is residual and relative, a bundle of rights that remains and is recognizable at common law only insofar as these rights do not conflict with other forms of legal title to the land in question. Thus the court confirmed received doctrine on sovereignty, putting that matter beyond the reach of review in domestic Australian courts.⁷ The Mabo judgment thus upholds a conventional view of sovereignty as completed and unassailable, resulting from originary colonization. But there are many lurking legal and other potential issues. For example, if native title may in principle persist at common law and does persist in particular cases, does sovereignty (in some meaning of the term) persist with it (Patton 1996; Reynolds 1996)? Is the finding of persistence of native title consistent with a notion of Australia as a colony of settlement, as is usually assumed, or of invasion? And what, in broader terms presupposed by these questions, if sovereignty were regarded not as a juridico-political absolute but as what many take it to have been, a practice of colonial domination and governance (Muldoon 2008:63; Biolsi 2005)?

      These issues suggest the likely limitations of the Recognise initiative. Maintenance of a discourse of finished sovereignty limits and frames those uncertainties; but refusal to address the issue may appear to many to be, as Ari Kelman (2013:5) puts it regarding a North American indigenous context of commemoration, a “hollow offer of painless healing.”

      In two senses, Australia has never decolonized. It grew out of British colonies that federated as a constitutional monarchy in 1901. Still today the queen remains the head of state and is technically designated queen of Australia (though in practice, an appointed governor general carries out all the functions usually performed by a head of state, without reference to the queen).⁸ Second, no treaties or other negotiations were ever held with indigenous people/s that might be considered a moment of formal recognition. Despite a lengthy history of governmental management of indigenous affairs, there has never been a formal moment of decolonization: colonization was not marked by formality, so how can a moment of decolonization be marked? Yet that is what is clearly being sought in Recognise: an act of recognition that will make a decisive difference. There has been, in theory at least, such a moment in many other former colonies. In the extractive colony of South Africa, where colonists were always a minority and went about seeking resources and subordinating local people as labor, decolonization took place and Nelson Mandela became president.

       Terra Australis: The Great, Late, Southern Liberal Settler Continent

      Australia was a late settler colony in comparative global terms. While Columbus’s first voyages led to lasting European contact with the Americas from 1492, the Dutch navigator Willem Janszoon only made the first recorded European landfall on the Australian continent, on the western shore of Cape York in present north Queensland, in February 1606. Though there were a few brief contacts in between, the next portentous European arrival came a full 164 years after Janszoon in 1770, when English navigator Captain James Cook sailed into what is now Botany Bay at Sydney, naming eastern Australia “New South Wales” on 22 August 1770 at what has been henceforth most widely known as Possession Island, a small island in the Torres Strait Islands group off the coast of far north Queensland (which includes Mer, the subject of the Mabo case referred to above).⁹ Cook’s favorable reports on the prospects led to British settlement from 1788, beginning with the arrival of the “First Fleet” of eleven ships. Commodore Arthur Phillip, transporting on this first trip of settlement 759 convicts, their marine guards and families, and a few civil officers, came with instructions authorizing him to make regulations and land grants in the colony.

      British colonization proceeded apace; competition with the French, who had also launched expeditions of exploration, ebbed in the early nineteenth century. British colonists came to settle, explore, expand their reach, and develop the continent economically as they might find possible. Officially they were instructed to conciliate the natives to the extent necessary to form penal settlements, replacing the American colonies as a convict destination. However, New South Wales soon also became a colony of free settlement: the first immigrant free settlers arrived in 1793. Notables of the colony began to argue for abolition of convict transportation and for the establishment of representative government. The colony began to grow rapidly as free settlers arrived and pressed on, well ahead of government regulation, into new lands to farm and, soon after, establish sheep and cattle pastoralism. Despite the long and arduous sea voyage, settlers were attracted by the prospect of making a new life on virtually free Crown land.¹⁰ This was accomplished by widespread indigenous dispossession and little conciliation.

      Mobility was an expression and an instance of emergent power.¹¹ Colonists had crossed the ocean and meant to establish a social order, the character of which changed but the intended longevity of which was not in doubt. The nature and implications of settler colonialism have been more fully shaped in a relatively recent literature (Wolfe 1999, 2016; Veracini 2007a, b, 2010), as has the ongoing historical entwinement of settler colonialism and forms