Cook wrote in his journal about the black figures he saw walking on the shore. Yet, contrary to royal instructions, there was no agreement. No negotiation was entered into; there was no treaty. There was no consent.
For Cook and the British Empire he represented, Australia was a new land that he discovered. The true first discoverers, however, the original owners, had arrived on the continent thousands of years prior. To them Cook was a foreign invader. As Torres Strait Islanders Kenny Bedford and Josephine Bourne commented in The Australian after the May 2017 regional dialogue on Indigenous constitutional recognition at Thursday Island:
Cook did not ‘discover’ the Torres Strait Islands. Our ancestors were already here. Our people have been living here for thousands of years, hunting dugongs, fishing and trading. We are a seafaring people. When we saw the foreign ship approaching, we used smoke signals to warn each other.1
My brother once took a selfie in front of Captain Cook’s Cottage in Melbourne. He posted it with the caption: ‘Discovered this cottage!’ I wondered if any other brown people possessed the cultural self-centredness (or military power) to assert ‘discovery’ of land that was already home to white people. Perhaps only on social media.
In the documentary of his book Guns, Germs, and Steel, anthropologist and geographer Jared Diamond provides plausible theories for the success of European societies as conquerors and the failure of others to achieve the same expansion. Environmental circumstances enabled Europeans to successfully pursue agriculture to such an advanced degree that they could cease hunting and gathering and feed themselves with surplus food. These populations could then use their time and energy to develop technology and superior weapons—the means to protect their own lands and conquer others.
Diamond’s explanation demonstrates that Indigenous Australians developed differently to Europeans not because they were innately or genetically inferior, but because they had different natural resources at their disposal. Where the Europeans had access to a variety of plant materials and animals suitable for domestication, which enabled the pursuit of extensive agriculture, the Indigenous peoples of Australia had less manageable species—kangaroos, koalas and possums. So, while Indigenous peoples excelled at adapting to and surviving in their environment, they didn’t become conquerors of inhabited foreign lands.
Conquerors, wielding their power, created rules to govern their own conquering. The discriminatory doctrine of discovery was expediently Eurocentric in its logic, because just as history (it is said) is written by the winners, so too are the laws enshrining their victories. Under international law of the colonial era, usurpation of foreign nations was allowed where those nations were not ruled by a Christian sovereign monarch. Convenient.
As I would discover in Far North Queensland, the difficulty in achieving law reform (and, more so, constitutional reform) to empower those who have been disempowered is convincing those in power to share some with peoples they’ve historically held down. Such reform is contingent on those in power having empathy and rising above pure self-interest. Only an empathetic, moral conqueror would willingly share any power with their conquered—and it’s something of a contradiction in terms. It requires a self-conscious act of reconciliation, against type and training. Other countries have managed to achieve structural change that empowers their First Peoples. Australia has yet to find its way.
I carried no secret instructions when I left cold Melbourne to discover Cape York (albeit through the safe portal of the Cape York Institute, based in Cairns), nor directions to navigate my course. Just my internship handbook and a suitcase full of summer clothes, an inherited moral compass and a curiosity to know better this unexplored corner of my continent.
My perspective was so far narrowly southern and sheltered. I was about to discover Australia’s northern, other side. Its underprivileged side. It would be a discovery, too, of the unexplored in me: the non-actor, the advocate, the lawyer. The who-knows-what. I’d just turned thirty and had almost finished law. Looking back, Cape York was the turning point. The beginning of the discovery of my true nature.
I’d expected more of a corporate environment. Bustling and youthful, with (I’d hoped) handsome lawyers in trendy suits. It wasn’t like that.
The office was cramped and dark. Cape York Institute in 2010 operated out of dingy rooms on Cairns’ Sheridan Street, with chunky old-school computers, broken chairs and fluoro lights that prompted my migraines. The air conditioning was always too cold. I was a nervous intern, goose-pimpled and perpetually popping Nurofen.
Outside the office, Cairns was distantly familiar: it felt like Fiji. All vivid green, with a heavy damp at that time of year, approaching holidays and wet season. Daytimes were sticky with low grey clouds or searing sun, and heat that blackened my face so I had to buy a hat.
I’d pant alongside the other interns, who were slim vegetarian types. We’d drag our thonged toes from our share house through the dew, arriving at the office with dirty feet and filmed in sweat. There were no trams, no traffic, no suits. Rather, shorts and singlets. Cairns was walkable and whimsical, tropical and a bit wild, with an earthy hum and buzz different to the temperate urbanity of Melbourne.
In Cairns, there are lush green hills on one side and sea on another. You see pelicans at the Esplanade or a stingray in the shallows on a lucky day. Signs warn of saltwater crocodiles; I imagined them making bubbles in the brown water. No beach swimming: an artificial lagoon and, further north, beaches netted due to stingers.
Cairns has aggressive willie wagtails and green ants that sting (with honey-flavoured bums you can lick, if you’re game, with a small tongue-zap—an ancient Aboriginal discovery, one of the intern girls told me). There are screeching bats that migrate in the early evenings to find their roosts above stinky, shit-stained pavements. I wondered how they pooed while hanging upside down—still a mystery. I learned the word for accumulated bat crap: guano.
The Far North Queensland coastline is bedecked with forest and mangrove against secluded beach, with boardwalks to explore the underworld of roots and crabs and sludge, and boats out to the reef and its islands. We interns would spend weekends seeking out crystal waterfalls and freshwater creeks, venturing inland where the crocs were friendlier. We’d swim in the ice-cold Mossman Gorge and explore further north where the Daintree sprawled, where tree frogs croaked on ferns and palms and massive cassowaries roamed the bush.
Cairns itself was a party town of dazed travellers and transient professionals, where relaxers lazed and barbecues buzzed and black kids leaped into water, screaming and glistening. I’d never seen so many Indigenous Australians.
In my theatre days I’d worked with some Aboriginal actors—Kylie Farmer, a gorgeous Juliet, and Kamahi Djordon King (aka the fabulous drag queen Constantina Bush) who played Tybalt to my Lady Capulet—but that was mostly it. Up north, non-white faces seemed in greater abundance. And not just Indigenous people. There were Papua New Guineans, Islanders, Japanese, Koreans. This Far North felt further from Australia’s hub but closer, somehow, to the rest of the world.
I moved into a share house of foreigners and the intern girls who arrived one-by-one: Raquel, the kooky Mexican; Alice, the nature-loving hippie from the Hawkesbury; Jess, the delicate, pale-faced Tasmanian. All in their early twenties, enthusiastic greenies and lefties, from anthropology or social science faculties. Me the only lawyer, and older. And a meat-eater. More academic. Less inclined to hug trees (Raquel and Alice would occasionally embrace an attractive trunk, pausing to absorb its spirit, as Jess and I looked on, giggling).
I was also more single—the only one without a boyfriend, having left my latest romantic disaster behind down south. Cairns was an emotional escape, perhaps, as much as the start of an intellectual exploration. A sea change from theatre, study and disappointing men.
The last failed relationship had been a few years prior: a would-be musician who had fashioned himself as a kind of middle-aged Australian Kurt Cobain, complete with acoustic gu
itar and tremulous vocals. He had the tortured artist’s alluring vulnerability—but turned out more jealous tyrant. He joined me on my first and only trip to India, a holiday punctuated by his tantrums, inflicted with dramatic, red-faced flair on me and passers-by each time an Indian man looked my way, which was relatively often. ‘These people are animals!’ he seethed on a train full of brown faces, all marvelling at the Western/Indian woman with the furious white guy on her arm. He couldn’t stand their curious eyes. I prayed my countrymen didn’t understand English.
Patience was my great strength and weakness. A terminal geek, I probably harboured a high-school fantasy of being accepted by the cool kid—a fantasy that adulthood was yet to expunge—and so adopted a Zen-like tolerance of male bad behaviour. Perhaps I feared their idiocy was actually my fault: my imagined unfaithfulness was a recurring theme with these guys. Whether it was the wannabe muso with his hissy fits, or the insecure Indian in Sydney whose sobbing (complete with dripping snot) made me wonder if I had actually cheated, or the gorgeous-but-utterly-insane illegal immigrant from Albania (my first ill-chosen boyfriend in London), each of them obsessed about my (allegedly deliberate) courting of the male gaze, and made me pay for it. Each was an unmitigated disaster.
What the fuck is wrong with me? I inevitably wondered. I was still wondering when I arrived in Cairns. I felt rather foolish next to the self-assured, comfortably partnered twenty-something interns who never put up with idiot boyfriends, knew what they were looking for, and seemed more certain of their place in the world than me.
Alcohol flowed more freely in Cairns, in the holiday spirit. The revelry helped. Backpackers danced drunk on nightclub tables and occasionally we interns would join in. On these nights out, or in the early mornings after, I’d see glimpses of Cairns’ dark side. I could party then go home to a nice bed, but others less lucky would retire drunk to the grass. The black drunkenness on display in the street or the town square seemed less revelry and more despair. Prolonged intoxication mixed with hopeless poverty, which is misery.
I saw Aboriginal people swigging bottles in brown paper bags in the town centre, or in the park during the day with kids playing beside them. They seemed angry, not happy. A skinny black man would come past the office, swaying weakly, to ask for change or a bottle of water. His ankles were so thin I thought they might snap. A Cairns Base Hospital doctor told me of the disorientated Aboriginal woman who’d woken up, naked, on the pavement near the Esplanade. ‘Who been in me …?’ she growled sullenly, touching her crotch while tourists out to breakfast averted their eyes. Mike Winer, our internship supervisor, described an Aboriginal man unconscious on the concrete outside the hospital, with people stepping over him. As though he was ‘part of the furniture’.
On my first night in Cairns, I remember listening to the noises of nature. Crickets and rain. The bats with their primordial screaming. Two Aborigines, fighting on the footpath downstairs. ‘You fucking cunt! I hate you, you black cunt …’ Their voices seemed to elicit a roll of thunder in the distant hills, like the country moaning in the night. I sweated under the fan.
Beneath Cairns’ tropical gleam and shine, I caught glimpses of unlucky Australia. I never saw it growing up in Melbourne’s leafy outer-eastern suburbs of Park Orchards and North Ringwood, and it was rare around my inner-city Richmond flat. Up here, however, parts of it were uncovered: the ancient, unhealed wound. Black, left-behind Australia. The human despair upon which this nation’s great prosperity is founded. Which persists and worsens, while Australians avert our eyes.
I’d signed up for six weeks of voluntary policy work at Cape York Institute (CYI). My constitutional law lecturer, Melissa Castan, daughter of the late Ron Castan QC (counsel for Eddie Mabo in the historic Mabo decision) and a human rights guru at Monash, taught me Indigenous rights and encouraged me to apply for an Aurora internship. The first time I applied I didn’t get it. Second time, I did.
I opted for CYI because I found Noel Pearson’s writing on the Indigenous ‘right to take responsibility’ challenging and instinctively correct. I’d read the Little Children Are Sacred report on sexual abuse in the Northern Territory for a uni project and shed unexpected tears at the harrowing stories of child suffering, outraged at my own ignorance of the problem. How could this happen in Australia, the lucky country?
My research led me to Pearson, then to anthropologist Peter Sutton’s The Politics of Suffering. Their analysis was enlightening. I saw how a purely leftist rights-based approach, unbalanced by the importance of the responsibilities usually championed by conservatives, might risk the wellbeing of children and other vulnerable people in Indigenous communities—though, properly understood, a right or freedom entails a responsibility to respect others’ rights and freedoms, particularly the rights of the vulnerable. Problem was, in Indigenous affairs it seemed the responsibilities inherent in rights had sometimes been underemphasised.
I could also see, however, that the Northern Territory Intervention of 2007 didn’t get it right. It sought to curtail child abuse and neglect by applying welfare quarantining and restrictions on alcohol and pornography, but with its imposed and hasty implementation and suspension of the Racial Discrimination Act, it was missing key ingredients: Indigenous empowerment and equality before the law.
A passion for equality became my first intellectual obsession.
Mike Winer was one of the CYI stalwarts, an ally since the land rights struggles of the 1990s. A tall hippie and environmentalist, Mike was excitable and a bit frazzled, with an eager laugh and a larrikin’s manner. After initially working as an advocate for the Wilderness Society and setting up a branch in Cairns, he forged an alliance with the Cape York Land Council and later began working for CYI. Mike’s perspective was shifted when a little Aboriginal kid covered in scabies sat on his knee, he told us once. He witnessed the child’s excruciating disadvantage and realised that black lives in Cape York were in more urgent need of assistance than the environment. Trees were important, but human beings were more important. And with the right approach, both should prosper. I agreed.
Mike had us investigating environmental and economic development opportunities in Cape York. Because I was the soon-to-be lawyer, I worked on the Wild Rivers controversy. Cape York Institute, led by Pearson, had been battling the Queensland Labor government, which had teamed up with the Greens to push through legislation that would subject Cape York land to strict environmental protections, particularly around the Cape’s pristine rivers. The legislation diminished the already-scarce economic development opportunities for impoverished black communities. Aboriginal people had won back much of their land, but now government was burdening it with layers of unwieldy regulation, making economic development almost impossible.
It seemed distinctly unfair. Non-Indigenous Australians had developed much of Australia’s landmass to build their prosperity, leaving only its furthest reaches untouched. Previously without land rights, restricted through discrimination and disadvantage, and naturally protective of their country in any case, the Indigenous people up north had not developed their land, and had missed out on the progress boom that other Australians had enjoyed. While Indigenous people were stuck in poverty, the unspoiled beauty of Cape York gave the greenies, ravenous for their Kyoto targets, hope. Cape York Indigenous people were expected to pay for white people’s damage to Australia’s environment. After decades of white colonisation and dispossession, this was the green version.
One week we explored the Cape with Mike. We went to Kowanyama, Coen and Starcke, where traditional owners took us around their country. We saw vast green lagoons, hectares of ghostly tea-tree, and hills covered in unspoilt forest. We had picnics by secluded creeks, and breathed the air that Indigenous people had kept clean for thousands of years without rigid environmental restrictions.
Within a few weeks I produced a research paper setting out arguments against the imposition of Wild Rivers. The paper identified that the root cause of the vulnerability of Aboriginal
property rights was the legal logic underpinning them. The Native Title Act and Aboriginal Land Act set Indigenous people up with weaker forms of property rights than non-Indigenous Australians. I struggled to understand why. The arguments about a sui generis right didn’t seem convincing. Why weren’t they equal?
I was naive and inexperienced in native title law but this, in retrospect, allowed me to look at the issue with fresh and idealistic eyes. To go back to first principles and ask why. Mike let me run with it.
I produced a second paper analysing the Mabo decision. I read the High Court judgements and constructed an offbeat, slightly audacious argument. The judges had got it wrong, I suggested. Not that they were wrong to recognise Indigenous rights in land—this was correct and just. They were wrong to accord an inferior form of title. It shouldn’t have been rights under ‘traditional laws and customs’. This, I argued, imposed a culturally relativist and limited conception of Indigenous property rights, which was discriminatory in effect and unhelpfully restrictive on Indigenous peoples’ freedom of choice and control over their land. Culture and tradition, while important, should have been legally irrelevant. My argument revolved around the idea that possession and inherited ownership were the true sources of Indigenous rights to land. The judges should have accorded full fee-simple ownership to Aboriginal people, where possession and inherited ownership had not been displaced by the Crown. As Pearson has asked: why has the English law of possession been upheld for ‘the Crown’s subjects generally’ but not for the ‘benefit of native citizens’?2 There was much on which he and I seemed to agree.
I’ll never forget the first day I met Noel Pearson. Mike took us into his office at the end of volunteering to present our work. The other women went first, while I sat, scared. Pearson was a domineering presence, silent and glowering.
Radical Heart Page 4