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Article: What I Have Learned on My Reconcilliation Journey

Published: April 25, 2013. Author: Mark Leibler AC. Theme:  Indigenous Land Rights, Indigenous Reconciliation.

About The Author

Mr Mark Leibler AC is one of Australia’s leading tax lawyers and corporate strategists.  As the Senior Partner of Arnold Bloch Leibler and head of its taxation practice, Mark has, for over 35 years, acted in the tax affairs of Australia’s largest businesses and many of Australia’s corporate leaders.  Mark is active in the area of social justice and public affairs.  He is a tireless supporter of Indigenous rights.  Mark was appointed to the board of Reconciliation Australia, when it was established in 2000 and served as Co-Chair from February 2005 to February 2011.  In December 2010, Mark was appointed by the Prime Minister of Australia, the Hon Julia Gillard MP, as Co-Chair of the Expert Panel on Constitutional Recognition of Indigenous Australians. Mark is also deeply involved in Jewish affairs, occupying senior leadership roles in several Australian and international Jewish bodies. In 2005, Mark was appointed a Companion in the General Division of the Order of Australia in recognition of his service to business, to the law, particularly in the areas of taxation and commercial law, to the Jewish community internationally and in Australia, and to reconciliation and the promotion of understanding between Indigenous and non-Indigenous Australians.

What I Have Learned on My Reconcilliation Journey

It is a great honour for me to contribute this, the first essay, to Jewish Aid Australia’s exciting new initiative The Well.

As the senior partner of a commercial law firm that is committed to giving back to the community, with a focus on justice for Indigenous Australians, one of the many privileges I enjoy is the honour of listening to and learning from Indigenous peoples’ oral histories. It is from these fundamental truths that I have learnt to appreciate the intimacy of the connections between Australia’s first peoples and ‘country’.

Like the symbolism of the well – the repository of that which gives and sustains life – oral histories serve much the same purpose. They give and sustain life for many Indigenous people, connecting and re-connecting people to place and nourishing them with an identity.

The Yorta Yorta and Native Title

The partners of my firm first formalised our commitment to Indigenous causes some two decades ago by agreeing to take on the Yorta Yorta native title claim. We committed to the Yorta Yorta at a time when it seemed many others were spooked by the then Premier of Victoria’s claim that Yorta Yorta native title aspirations posed a real threat to ‘ordinary’ Victorians’ back yards. We saw right through the prejudice, the alarm and the deliberate misinformation. We recognised that the Yorta Yorta peoples, like many of our public interest law clients, require long-term and varying kinds of legal support, far beyond ‘solving’ one-off legal ‘problems’. We understood then, as we continue to fully understand now, that the most rewarding lawyer/client relationships are two-way – that we receive from our pro bono clients, like the Yorta Yorta peoples, just as much in return as we give to them through our legal support.

In striking out the Yorta Yorta claim in 2002, the High Court determined that their proud and defiant oral stories were pale imitations of ‘real’ native title, because, so far as the Court was concerned, the Yorta Yorta failed the court’s impossible test – that the traditional laws of their ancestors in 1788 have continued ever since, substantially uninterrupted.

The High Court accepted it was open to the trial judge to privilege and prefer the written historical account of what a European squatter thought he observed of Yorta Yorta life – a usurper of Yorta Yorta lands, who had died a century before – over the rich, vibrant and vital oral testimony of many, many living Yorta Yorta people. In doing so, the High Court agreed with the trial judge that by 1881 Yorta Yorta native title had been “washed away by the tide of history”, to use the judge’s regrettable metaphor.

According to the High Court, the well was dry.

In my view, nothing could be further from the truth. Yorta Yorta people still walk their country, proudly and defiantly, knowing exactly who they are, where they have come from and with an exciting vision for their future.

The High Court decision highlighted how unjustly and harshly the legal system has treated the Yorta Yorta peoples. In the years since the Yorta Yorta High Court decision, justice has slowly begun to be restored, firstly with the Yorta Yorta Cooperative Management Agreement in 2004, and more recently with the Yorta Yorta/Victorian State Government Barmah National Park Joint Management Agreement in late 2010.

The Yorta Yorta have long aspired to take title to that part of their traditional country that is presently Crown land, under hand back/lease back/joint management of national park arrangements. Although they’re not there yet – Barmah National Park is only a relatively small area of lands and waters within Yorta Yorta traditional country – some giant steps have been made towards the achievement of this long held vision, built on the foundation of such success factors as ongoing, proper resourcing, fair and reasonable compromises from both partners and whole of government commitments.

Gone are the bad old days when the Yorta Yorta were forced to battle the State of Victoria in court to have to prove what they already knew to be true in their hearts from what their elders had taught them – that the mid Murray region of Northern Victoria and Southern New South Wales always was and always will be Yorta Yorta land.

Those dark and bloody times of the late 20th century native title ‘frontier wars’ (as the late great Ron Castan described them) are now history, replaced by potentially the very brightest of futures – of Government and traditional owners working together, resourced as equals and as joint managers of country, each learning from the other for the benefit of all Australians.

Jewish Aid has played a pivotal Yorta Yorta community support role in recent times, running school holiday programs for Yorta Yorta children at Cummeragunja Aboriginal settlement, on the banks of the Murray River in NSW, in the heart of Yorta Yorta country. I commend Jewish Aid for this, as I do Engineers Without Borders1 , which is also building a range of productive and practical relationships with the Yorta Yorta peoples. These ‘on the ground’ initiatives are where the real work of reconciliation is always done.

It has been my firm’s privilege to work with the Yorta Yorta peoples – those living and those who have passed on in their struggle for justice, but whose spirits now roam free in Yorta Yorta country. They have taught us to see their lands and their connections to them through their eyes.

Birds over water in Yorta Yorta country

Fierce Determination

As I have also said before, my journey of understanding Indigenous visions for the future, and the part Australian Jews play in assisting to fulfil them, has also progressed through my long and strong relationship with my erstwhile colleague at Arnold Bloch Leibler (ABL), Noel Pearson.

On many occasions Noel has gone on the public record about the symmetries at work between Jewish and Aboriginal peoples. Noel has also spoken about what lessons he learned through his time working with me, Peter Seidel and Steven Skala and with my other partners at ABL during the mid-1990’s.

Of course, at the same time I have learned just as much from Noel. Noel taught me that results in this area come from sheer, dogged determination; that crashing through bureaucracy is sometimes the only option; that Indigenous communities must be intimately involved and prepared to take responsibility right from the outset on any project or proposal and in any and all decisions that affect their future, rather than being consigned to the last box to be ticked.

The very unjust negative publicity that Noel received in some sections of the media in August last year pained me greatly. Of course Noel can be forthright, outspoken and at times blunt. I truly admire him for that.

Although I could not begin, even for a moment, to try walking in Noel’s shoes, I do have a sense that his approach to his work and his demeanour stems from a growing sense that his clear vision for the future of his peoples is being thwarted by too many agendas beyond his and his colleagues’ control; by too much activity and not enough action.

I similarly appreciate the fierce determination that Noel brings to his work – his life’s work no less – and the frustration that comes with trying to achieve his singular vision for his peoples, when he perceives bureaucratic processes are causing unnecessary and time consuming obstacles to matters requiring urgent attention. As such I can also appreciate that sometimes niceties and pleasantries get a little lost in the process.

But Noel doesn’t play games. His sole focus is and has always been the betterment of his peoples. In his seminal publication, “Our Right to Take Responsibility”, Noel issued the following challenge:

“We (Aboriginal people) have to be as forthright and unequivocal about our responsibilities as we are about our rights – otherwise our society will fall apart while we are still fighting for our rights. We do not have a right to passive welfare – indeed, we can no longer accept it. We have a right to a real economy, we have a right to build a real economy”.

Noel’s principal nemesis is the evil of passive welfare. With every ounce of his energy and passion he is seeking to eradicate that poison. For that, and for so much more, he will always have my unwavering support and friendship, as well as my total respect and admiration.

Indigenous Empowerment: ‘Caring For Country’

As with the role of oral histories, ‘caring for country’ is another principal means by which Indigenous peoples connect to country, and in turn sustain and nourish their lives. Empowering Indigenous people through their knowledge of, and intimate connections to, country is very important. Successful strategic collaborations will continue to be the key to addressing social and economic disadvantage and empowering Indigenous Australians through economic development and participation in the real economy.

With humility, I have learned from Noel that Indigenous empowerment, through nurturing and leveraging off the fruits of their lands and waters, will greatly assist Indigenous peoples to reinforce and strengthen their land-based identities. It seems to me then that Australian Jews, with our own unique appreciation of the importance of a land-based identity, have a particular obligation to continue to assist upon request, where we can, to empower Australian Indigenous peoples through their knowledge of and connections to country.

There is an undeniable link between many aspects of Indigenous disadvantage and the inability to legally protect inherent cultural, customary and spiritual rights. Swift, decisive action continues to be needed to overcome the terrible disadvantages suffered by Australia’s first peoples, and to do it, as Noel says, by Indigenous peoples taking responsibility, with support through Indigenous and non-Indigenous collaborations. And, as Noel has also eloquently made clear, moving beyond welfare, by establishing and maintaining financial and social networks and partnerships, is vital to achieving that.


By Anoek De Groot.

Constitutional Recognition: Righting Wrongs

In my work with Indigenous people over the years I have also learnt the importance of acknowledging the truth of Australia’s history and righting the wrongs of the past. This is why, like Noel’s efforts, the work of the Expert Panel for Constitutional Expert Recognition of Indigenous Australians, which I was privileged to co-chair with Patrick Dodson, is so critical to Australia’s future social cohesion.

The final Report of the Expert Panel, released in January 2012, proposes ‘how to give effect to constitutional recognition of Aboriginal and Torres Strait Islander peoples’2 and ‘the options for constitutional change’3 which they believe will gain the support of the Australian people necessary for a successful referendum.

The Report’s recommendations were formed through the adoption of four principles by the Expert Panel. These principles were that each proposal must:

  • ‘contribute to a more unified and reconciled nation;
  • be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples;
  • be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums; and
  • be technically and legally sound.’4

As most Australians know, alteration to the Constitution must be made through a referendum (under s1285). History has shown bi-partisan support to be essential for referendum success. Since Federation there have been 42 referenda and only 8 have been successful, all of which had bipartisan support6. Continued multiparty support will be necessary for successful change to the Constitution through referendum. The Report notes that simplicity of proposals and timing of the referendum will also be important to success.7

As the Report notes, a failed referendum, such as the 1999 referendum which sought to include a new statement of values in the preamble to the Constitution to recognise Aborigines and Torres Strait Islanders as ‘the nation’s first people’, ‘would be damaging to the nation.’8 Further, ‘the negative impact on Aboriginal and Torres Strait Islander people would be profound.’9

Aboriginal and Torres Strait Islander people were excluded from the discussions leading to the creation of the Constitution and were substantially absent from its text. In truth, they were all but treated as beneath contempt, a truth revealed by the rationale behind the so-called ‘race power’ in section 51 (xxvi). This power, according to Volume 4 of the Official Record of the Debates of the Australian Federal Convention, published in 1898, was designed by the drafters to enable the Federal Parliament to make laws “to regulate the affairs of the people of coloured or inferior races who are in the Commonwealth”.

It was not until the 1967 referendum that changes to the Constitution (to s 51(26) and s 12710) were made to count Aboriginal and Torres Strait Islander people in the census and to enable the federal parliament to make laws relating to them. As we know, prior to the 1967 referendum, this inferior races power excluded “the aboriginal race”.

In other words, by the Constitution, as originally drafted, the so-called ‘aboriginal race’ did not even qualify as an ‘inferior race’. They were considered unworthy of even that descriptor! They were nothing, devoid of a legal life.
And so, for the majority of the last 100 years Aboriginal people suffered the ultimate degradation: they were to be ignored because they were deemed irrelevant by Australia’s founding document. In the result, they were debased and dehumanised.

It is this 19th and 20th century construct of ‘race’ – superior race; inferior race; master race; dying race – that the Panel, particularly Professor Maria Langton in a powerful speech at last year’s Melbourne Writers’ Festival, titled “Indigenous exceptionalism and the constitution ‘races power’”, has targeted as a poisonous vestige that has no place in Australia’s constitution in the 21st century.

It remains the case that despite the monumental positive societal changes wrought by the 1976 referendum, the ‘races power’, built on a foundation of the ‘racial superiority’ construct, remains in place to this day.

It is in this context that the Expert Panel’s recommendation to repeal the so-called ‘race power’, and recommendation to replace it with a new head of power, take on real importance. So too the Panel’s recommendations to insert a prohibition on racial discrimination and to include a provision on Aboriginal languages.


Mark Leibler co-chaired the expert panel on Constitutional recognition of Indigenous Australians.

‘Shoulder to Shoulder’

What have I learned about reconciliation from my experiences, some of which I have documented here?

To me, an important part of the reconciliation journey involves not only acknowledging the fundamental truth of the oral histories upon which the intimate connections between people and country are bound together, but also using our very best efforts to strike at those historical aspects of the pillars of society that perpetuate racial stereotypes and prejudices.

I sincerely believe that through our own unique experiences, Australian Jews have an important role in continuing to work together with and in support of Indigenous peoples on these matters.

We must continue to go ‘shoulder to shoulder’ with Indigenous peoples, particularly Indigenous leaders, supporting not denigrating them, as we walk the cross-cultural bridge together, learning from each other and drinking from the well along the way, as we journey towards the promised land of true reconciliation.

Footnotes

  1. Danny Almagor, Founder of Engineers Without Borders, is currently Chairperson of Jewish Aid.
  2. Report of the Expert Panel, v.
  3. Report of the Expert Panel, v.
  4. Report of the Expert Panel, xi.
  5. http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/
  6. 1906 ‘Senate Elections’, 1910 ‘State Debts’, 1928 ‘State Debts’, 1946 ‘Social Services’, 1967 ‘New statement of values in the preamble’, 1977 ‘Senate Casual Vacancies’, ‘Referendums’, ‘Retirement of Judges’
  7. Report of the Expert Panel, xvii.
  8. Report of the Expert Panel, v.
  9. Report of the Expert Panel, xvii.
  10. http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/