Welcoming ceremony

By Legal Eagle

I was not brought up in any particular religious context. There’s not much standing on ceremony in my family. Still, if I ever go to someone else’s house, I try to make sure that I follow their traditions, whatever they may be. I just think that it’s the respectful thing to do. Secretly, just between you and I, sometimes ceremonies may seem pointless or boring to me, but if it’s important to someone else, I think I’ve got to sit there and take it on the chin. I think ceremony can actually be a very important binding process. It’s not just symbolism, it’s more than that.

The other day, Tony Abbott slammed Labor’s practice of acknowledging the traditional owners of the land before every speech. He said that it was “tokenism”. Now, there is a part of me that thinks if an acknowledgment becomes something which people do by rote, without really thinking about it, it is token. Sometimes I sigh inwardly when someone trots out the set phrases about traditional ownership without without much feeling, and I feel that they’d have been better off leaving it out if they were going to do it half-heartedly.

But nonetheless, I do think that there is an important symbolism inherent in the practice. It’s about acknowledging that this land was owned by others and that they were systematically dispossessed of that land. Acknowledging that fact is, to my mind, a really important step towards reconciliation. And we should remember it. Token and symbolic gestures bind us together and makes us closer.

The Hoydens have a really nice link round up of responses to Abbott’s statements. They highlight, in particular, an article by Noel Pearson in The Australian. Off-blog, SL and I decided that we think it is simply one of the best and most subtle newspaper opinion pieces we’ve ever read. Here is a large excerpt (emphasis added for the bits I particularly like):

Belatedly, our country will need to work out what place Aboriginal Australians will occupy within the nation-state of Australia.

This process will be complicated. At the heart of our challenge will be the question of how we reconcile the recognition of indigenous people within one nation where all Australians share the same indivisible citizenship, as Australians.

My view is that such a reconciliation is not only possible but necessary. Settlement of recognition will include many things: land issues and connection to land, solutions to economic and social issues, language rights and many other things.

There will be symbolism as well.

In each of these spheres, there is going to be compromise. The things Aboriginal Australians have won, the acknowledgments they have received, the concessions they have extracted from the all-powerful colonisers are few and fragile.

What we have managed to win back are remnants, and this will remain the case when the process of settlement is completed.

It is for this reason that I react instinctively against a debate about welcomes to country and acknowledgment of traditional owners.

Some acknowledgments may have been incorrect or tedious or silly or tokenistic.

But all that is unimportant. There is no problem with acknowledging traditional owners that is so big that anybody needs to make it a big issue, let alone be miserable about it.

We all see and hear things that make us cringe sometimes. The sensible thing is to be gracious and let other people do what they think is proper. You don’t have to do it yourself if you don’t agree.

It is not a bad development in Australian culture that traditional owners are acknowledged and that there is a welcome to country.

If you can’t sit through those few minutes or few seconds it is unlikely that you are only annoyed with the occasional political correctness or silliness of it.

It is legitimate to criticise specific instances of Aboriginal policies or Aboriginal behaviour, but it is highly problematic to make sweeping criticisms of the extent of Aboriginal Australians’ wins in any broad area, even a seemingly peripheral one such as symbolic recognition. If you do that you cross a line.

Acknowledgment of Australia’s indigenous people is only a fraction of what it should be.

This piece is just fabulous. I might think that some acknowledgments of indigenous ownership are silly, or token, but I’d never say that we should back down from that to less recognition. The main thing that worries me about token recognition is that sometimes, it is not followed up by anything more concrete. People think that they can make a token nice-sounding statement, and voila! everything is fixed. Whereas, of course, it is not fixed. Symbolic gestures are all well and good, but as Pearson notes, indigenous people do not have strong property rights in land. Native title is the most pathetic property right that there has ever been. It is so fragile as to be practically non-existent. The Courts and Parliament have watered it down so much that almost anything can extinguish native title. When I teach property law, I draw a scale of strength of property laws, and native title is right at the bottom. At the top is fee simple – the kind of ownership which most landowners have. Unlike indigenous people, we also don’t have to run around proving that we’ve not moved off the land and that we have an unbroken tradition.

There’s a few other points I really like about Pearson’s piece.  He emphasises that it’s really important to note that it is legitimate to criticise Aboriginal organisations, communities and individuals, and that it is legitimate to criticise policies in indigenous affairs and reconciliation. I know that some of my indigenous friends got really frustrated at some indigenous political figures who used to shout “racism!” every time someone criticised them, when, in the opinion of my friends, these people were very much deserving of criticism from blackfellas and whitefellas alike. Shouting “racism!” every time someone criticises you turns you into the boy who cried “wolf!” – the risk is that people tune out to your cries when real racism occurs (and it does occur).

All too often, it should be remembered that the resources thrown at the “indigenous problem” often don’t actually get to the people who need it most. It’s diffused among different levels of government, different bureaucracies at various levels, and tied up in red tape (take this recent story here, about the slow progress of houses being built in Groote Eylandt).

Coming full circle, recognition of indigenous ownership may be token, but at least it’s something. Ritual is important. Such ritual may help bind indigenous and non-indigenous people together. (In passing, I would have thought that a devout Catholic would understand the importance of ceremony and ritual. I’m sure that for some people, reciting Grace before meals is a token gesture, but would Abbott say that it’s worthless as a result? Personally, although I don’t say Grace myself, I think it is a positive thing to remember that we are blessed to have good food on the table.)

If people think regularly about the fact that indigenous people used to own this land, that is a positive thing. People may even become aware of the minuscule nature of the property rights indigenous people possess. It’s just simple manners to sit through an acknowledgment even if you think it’s token or silly. As Pearson says, Abbott doesn’t have to do it himself if he doesn’t want to, but he shouldn’t stop others from doing so if they want to do so. Why take that small symbol away from indigenous people? Rather I’d say let’s move beyond the symbolic and offer more concrete rights. Indeed, why not give indigenous people proper fee simple title, and then they can do as they wish with it, just as the rest of us can?

P.S. One of my bugbears since commencing blogging almost 4 years ago has been educating people properly about the nature of native title – NO – indigenous people can’t take your backyard! Grr.

Update: Interesting post and discussion on Pearson’s parallels between Jews and Aborigines at Larvatus Prodeo. Personally, I don’t think the analogy is far-fetched.

30 Comments

  1. David
    Posted March 21, 2010 at 2:11 pm | Permalink

    Recently, I’ve only been exposed to the tokenistic acknowledgement. Eg where a politician does not even bother to work out what ppls had claim to the land; and rabbits off a mantra referring even less meaningfully to the elders of these unknown ppls. It is more meaningful to name a ppl, name any elders present. The mantra currently in use in Qld simply adds a few words to a speech without educating anyone (least of all the speaker) about the first ppls.

    There have only been 1-2 events I’ve attended where someone has actually spent the time to make an acknowledgement meaningful. I found that quite interesting at the time, as I actually got some useful information.

    Can I move this on to make this personal? On what occasion is it thought some acknowledgement should occur? When I address an event – and I perhaps give about 10 continuing professional educational presentations a year – I do not have the luxury of forcing my political views down the throats of those present. I am there to do something quite different. I am not sure that I can, let alone want, to change what I do.

  2. ken n
    Posted March 21, 2010 at 4:07 pm | Permalink

    Good thoughts.
    I was getting sceptical about routine “welcome” announcements but Pearson has convinced me they are worthwhile.
    Gee, he’s a wise man, isn’t he?

  3. Posted March 21, 2010 at 6:19 pm | Permalink

    Pearson is an immensely valuable addition to Australian political culture. In some respects he is Australia’s Booker T Washington or WEB Dubois. We are lucky to have him.

  4. Michael Fisk
    Posted March 21, 2010 at 8:41 pm | Permalink

    But all that is unimportant. There is no problem with acknowledging traditional owners that is so big that anybody needs to make it a big issue, let alone be miserable about it.

    But there is a problem with these ceremonies. If they aren’t taking place in land that is actually controlled by Aborigines, such as in the far North of Queensland, then they are inherently hypocritical, dishonest and immoral. You cannot “acknowledge” someone as the “traditional owner” of a piece of land without conferring ownership rights, otherwise you have basically admitted that the defacto controller of the land is an interloper who has no right to occupy their property. And if you won’t evict them, then you are firmly on the side of colonial theft and dispossession.

    The politicians who make these gestures should immediately hand over the deeds to the designated “traditional owner”, and boot the interlopers off the land that they are clearly occupying. Or are Aborigines the only race in this country who can be legally dispossessed and stripped of their right to control and earn income from (and to buy and sell) what is rightfully theirs, so long as we say “nice things” from time to time?

    I think the politicians who spout this “recognition” line willy-nilly should actually stop and think about what they are saying, and what it really implies.

  5. conrad
    Posted March 22, 2010 at 4:02 am | Permalink

    “I think the politicians who spout this “recognition” line willy-nilly should actually stop and think about what they are saying, and what it really implies.”

    Mecurius had a funny list of many of the tokenistic things we say and do on LP some time ago as the first comment here which might provide some more perspective on the things people and politicians say and do for tokenistic reasons.

  6. Posted March 22, 2010 at 4:34 pm | Permalink

    There’s a pretty strong case to be made that, psychologically, the most useful aspect of religion is actually the ritual. It’s pretty clear that we have developed quite attractive moral codes and social policies without religion (which actually seems to lag behind on that score), but that if you deprive humans of ritual (and Mercurius’s list is a good one, because it includes quite a few secular/military rituals), we are not happy campers.

  7. Posted March 22, 2010 at 4:42 pm | Permalink

    While I agree that ritual is important and Pearson makes good points, I suspect Michael Fisk is closer to the truth. My understanding of the Mabo and Wik cases is that Aboriginals have (as Aboriginals) few and very limited rights to land. More importantly where you’re more likely to hear the ‘welcome to country’ ritual Aboriginals have no ownership (as Aboriginals). Of course, Aboriginals can, like any other Australian, purchase property and so on, but that isn’t the point here. I find the whole exercise very insincere and suspect that the people doing it are signalling a moral stance and don’t really care about Aboriginal property rights at all.

    David Marr had a great comment in one of the weekend papers in 2001.

    Governments only intervene to oppose. … [G]overnments only come to court to argue against native title. This policy is bipartisan. Canberra in particular has never – neither under Labor nor the Coalition – intervened to give formal assistance to Aborigines in such test cases. The stock response of all governments is hostility.

  8. Posted March 22, 2010 at 4:49 pm | Permalink

    I’d agree with that, Sinclair, and I think Robert Nozick’s concept of ‘justice in acquisition’ has a great deal to teach politicians on all sides of the fence about indigenous property rights. I remember a fellow lawyer pointing out that by denying Aborigines the ability to alienate their land or use it as collateral, it meant that at least they wouldn’t do what the American Indians did and sell off their ‘country’.

    I then pointed out that the majority of American Indians had not done this, and that many had used their fee simple land ownership to make themselves very rich and do innovative things (like the casinos). They now exhibit a wealth profile similar to whites (some rich, some poor, the majority in the middle), which is exactly what you want in a developed country.

    By denying Aborigines the ability to make their land work for them, we have excluded them from the wider Australian economy, and have done so for deeply paternalistic reasons.

  9. John H.
    Posted March 22, 2010 at 7:58 pm | Permalink

    I find the whole exercise very insincere and suspect that the people doing it are signalling a moral stance and don’t really care about Aboriginal property rights at all.

    Correct. There are people here who know much more about history than I do so please correct me if I’m wrong but my impression is that symbols are best used to illustrate something done, not something proposed or some sentiment. Symbols are easy and sometimes I wonder if symbols are a cop out for actually doing something constructive.

  10. John H.
    Posted March 22, 2010 at 8:36 pm | Permalink

    LE,

    I don’t have a problem with the ceremonies but I wouldn’t be surprised if the participants were paid for the performance. That is OK but somewhat contradictory from the stated intentions of the ceremony.

    It is mostly unrealistic to return full ownership to aborigines. However, what about the possibility that occupiers of recognised native title land be required to pay a small amount or “rent” to the relevant aborigines? Now that would be a meaningful symbol and no I”m not joking.

  11. Peter Patton
    Posted March 23, 2010 at 7:34 am | Permalink

    From Michael Fisk’s argument, I too wonder about the relative appropriateness of either a ‘welcome to country’ ceremony or a politician’s ‘thanking or paying respects to the traditional owners’ when addressing a school assembly in say St. Kilda, Newtown, or Fortitude Valley’ compared to an announcement of new government policy at say Wave Hill Cattle Station in the NT.

    Is David Marr really correct re governments, courts, and native title? After all, wasn’t it government that created/recognized/legally-enshrined native title via the Native Title Act?

  12. Peter Patton
    Posted March 23, 2010 at 7:46 am | Permalink

    LE

    I suspect the symbolism might have a more sinister motivation. That by these symbols ,the state is saying that in fact, ‘see, the State HAS done something, and therefore, the matter is settled.’

  13. Jason Soon
    Posted March 23, 2010 at 7:58 am | Permalink

    MichaelF et al should calm down and get off their high horse.

    So what if it’s a meaningless gesture (and I agree it is)? If we can get away scot free with words over money go for it.

  14. Jason Soon
    Posted March 23, 2010 at 8:25 am | Permalink

    People are free to pursue native title claims, some will be successful and some will not.

    The argument being put by Michael F that all this is a little insincere and we really cared we should compensate them all seems a little disingenuous and reeking of utopianism. It’s not either/or. We only care enough to mouth a few words. But we already recognise native title.

  15. Peter Patton
    Posted March 23, 2010 at 8:28 am | Permalink

    LE

    But wasn’t the Mabo court’s definition of ‘native title’ explicitly to distinguish it from proprietary title, such as fee simple? Didn’t the judges conceive native title in more spiritual terms of the tribe/clan/group/nation ‘belonging to the land’ and so no individual could ever alienate bits and pieces of that land?

    I don’t understand all the arcane property law, but from my admittedly very distant view, the best land rights ever recognized was the Whitlam/Fraser legislative Land Rights Acts in the NT, which do recognize at least some property rights (much more so than Mabo ‘native’ title) that give those groups an economic asset. Or is that is a misunderstanding?

  16. Posted March 23, 2010 at 8:41 am | Permalink

    The best land rights ever recognized was the Whitlam/Fraser legislative Land Rights Acts in the NT, which do recognize at least some property rights (much more so than Mabo ‘native’ title) that give those groups an economic asset.

    The statutory regimes are often better, as they allow for (more extensive) mining developments and resorts. The Aborigines are still prevented from alienating their land however, with the concomitant that they can’t use it as collateral.

    I’d agree that fully Nozickian ‘justice in acquisition’ is probably utopian when it comes to Native Title, but that isn’t to say that we can’t do a damn sight better, especially when it comes to actual property rights — so people can actually, you know, do something with the land.

  17. AJ
    Posted March 23, 2010 at 9:08 am | Permalink

    “But wasn’t the Mabo court’s definition of ‘native title’ explicitly to distinguish it from proprietary title, such as fee simple? Didn’t the judges conceive native title in more spiritual terms of the tribe/clan/group/nation ‘belonging to the land’ and so no individual could ever alienate bits and pieces of that land?”

    Unless a government goes about showing otherwise, existing property rights and legal systems survive acquisition of radical title. So native title is, at least the HCA’s vision, of what traditional aboriginal property customs are, within the context of a western legal system. A good Native Title Act would have been a good way to expand/alter those rights.

    On the original topic, correct me if I am wrong, but isn’t Abbott a monarchist? Jesus, talk about bucket loads of pointless symbolism.

  18. Posted March 23, 2010 at 10:39 am | Permalink

    Sometimes I sigh inwardly when someone trots out the set phrases about traditional ownership without without much feeling, and I feel that they’d have been better off leaving it out if they were going to do it half-heartedly.

    I’ve actually begun to hate the obligatory acknowledgement of traditional ownership preamble. It doesn’t sound half-hearted so much as smug. A mode of self-congratulation.

    I’m not suggesting kabosjing it. Better than nothing. But pretty close to nothing.

  19. Patrick
    Posted March 23, 2010 at 11:02 am | Permalink

    The only part I don’t like is the frequent reference to ‘sacred’ lands. That is probably just pure linguistic parochialism though.

  20. Posted March 23, 2010 at 12:16 pm | Permalink

    I don’t know anything about Aborigines or Aboriginal people, but what I think they should do is

    Shame on you. Where’s your pride in bein’ ‘Strayan? That’s our national indigenous policy. 🙂

    Maybe if instead of the usual ‘we recogonize that this is the traditional land of the Eora people or wherever ‘we actually incorporated something from their culture appropriate to the event. A bit of the language maybe.

    That would do three things. 1. Take effort, 2. Make a bit of Australian culture Aboriginal and 3. Give me another reason to laugh at the ABC Classic FM DJ who hosts the Myer Free Summer Conert series.

    I really love it when she introduces Bizet’s Carmen: She makes these really pretentious prounciations of Bizz-Ay and Carrr-MEN and then calls Don José Don Joe-say.

    N’uk!

  21. John H.
    Posted March 23, 2010 at 2:10 pm | Permalink

    Thanks LE,

    The question then is: what went wrong? Surely they are entitled to some rent. However I was being a little devious. In the back of my mind was the idea that if aborigines are receiving this income then it would reduce their dependence on the State. This in turn would make aborigines more responsible for their own welfare. One thing that I am sick and tired of hearing is about the dreadful state of aboriginal health and how it is our fault. Yet health is really about personal behavior so I am at a loss to understand why we are being blamed because we have very little control over the causes of aboriginal health problems.

    It strikes me as somewhat paradoxical that on the one hand the aborigines blame us for their problems then expect us to fix those problems. If aborigines had their own means of income, if they were then wealthy enough to attend to their own needs, then just perhaps aborigines en masse may realise that at the end of the day one is better determining one’s life and fate rather than always calling on the State for more money or fixes.

    Yeah I’m dreaming but I do think that since Mabo and all the hand waving about aboriginal problems the approach to aboriginal problems has made matters worse. It is as if those events have made aboriginals more dependent on the State when Mabo should have given them much more independence and self-determination. Hmmm, not sure, don’t read him that much, but perhaps I’m echoing Pearson?

  22. Peter Patton
    Posted March 24, 2010 at 6:22 am | Permalink

    It is silly to think that symbolic gestures and ‘practical reconciliation’ are part of some zero sum game. In fact, there are potentially huge synergies.

    The big worry though is that all these very public, costless, and effortless symbolic gestures, such as welcomes to country at inner city school assemblies, will subconsciously relieve the citizenry of any sense of urgency in other areas. They will relax, thinking, ‘ah well, that’s great, we’ve ticked that box.’

  23. Posted March 25, 2010 at 4:33 pm | Permalink

    Having read all the High Court judgments on native title and published a book on it (one launched by Sir Harry Gibbs, who had some very kind things to say about my efforts) this one hits me where I live.

    (1) Noel Pearson is a national treasure.

    (2) The ritual acknowledgments set my teeth on edge. Partly due to the smugness and partly because, as a historian, I am aware of the fluid and contested nature of boundaries of “country”. Some of these acknowledgments are really giving a ritual tick to successful dispossession of one Aboriginal group by another. Oral cultures are particularly good at living in “eternal nows” where “memory” gets re-written to conform to current (or at least fairly recent) patterns.

    (3) Native title property rights are tenuous because they should be. Without denying for a moment the points Geoffrey Blainey makes so well in The Triumph of the Nomads about Aboriginal groups managing the land, land just did not have the scarcity value sufficient to develop strong property rights in it.

    (4) The issue of property rights is another manifestation of the central problem for matters indigenous. Aboriginal Australians have been expected to travel the cultural distance in 100 years or less than our ancestors took at least 10,000 years to travel: in other words, at a rate over a 100 times faster. There are few things more irritating that people who rabbit on about “indigenous culture” but exclude the possibility that such cultures might have negative features for success in an dynamic industrial society: this is without even considering the effects of profound social dislocation and disruption.

    (5) Much popular sentiment on such issues are a reaction against violations of the strong Oz norm of “same set of rules for everyone”.

    (6)There are strong similarities in anti-Jewish and anti-Aboriginal thinking (as there is with anti-queer thinking) since they involve effortless virtue and justifying certain convenient exclusions.

    (7) We are still working through how to integrate indigenous Australians into a common Oz identity. This is connected to (4) but extends beyond it.

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  1. […] was the main thing. Basically I’m a deeply practical person. Symbolism can be important (as Noel Pearson has argued) but if it’s not followed by real practical change I get irritated. Big symbolic gestures are […]

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