Global Affairs and Indigenous Affairs Analyst, Australian Broadcasting Corporation
Australia is a country best seen from above. It is in the air that this land truly speaks to me. I was reminded again on a flight to the remote mining town of Broken Hill. Looking down from a plane, the country comes alive as a tapestry of brown, red, grey and green. It is dotted with spinifex, wild bush, jagged outcrops and bare, stark dead trees. Occasionally there are water run offs and windy creek beds, sometimes rivers or dams and lakes, but mostly it is dry, bone dry. The landscape truly resembles an Indigenous dot painting, and it reminds me again of how the First People of this land, a people who have lived here for at least sixty thousand years, truly see this place. They dream this place. This land has formed them: what is considered the oldest continuous civilisation on the planet.
I draw my ancestry from ancient footprints on this land. Away back in time, people made the first open-sea journey in the history of humanity to find a new home here. By the time the British claimed this continent for their own, there were believed to be more than two hundred distinct groups – tribes, or nations – each with their own languages and ceremonies. To modern eyes it would be akin to Europe; separate peoples with their own borders and political structures, trading and negotiating with each other.
Yet, when then Lieutenant (later Captain) James Cook, planted the British flag in this soil in 1770, it was as if these people did not exist. The rights of Indigenous people were extinguished. Under British law, this was terra nullius – empty land. It was how business was done in the 18th Century, this was the doctrine of discovery – land not ruled by a Christian monarch was free for the taking. Terra nullius is the defining story of Australia; it is the myth that gave rise to the great injustice – what Indigenous people call the invasion and theft of their lands – from which all other injustice flows.
Terra nullius is Australia’s unfinished business.
Terra nullius haunts Australia. There’s a feeling in our souls that we don’t quite belong, what has been called ‘the whispering in our hearts’. We live squeezed into the cities, clinging to the coast. We love the outback, but we don’t trust it. Sociologist Elspeth Tilley, calls it the ‘disruptive, disturbing, chaotic, space’: a place of ‘white vanishing’.
From childhood we imbibe the myths of the outback, something lodged in our psyche from the old frontier: Beyond here be monsters; if the animals don’t get you the blacks will. Out here you die of thirst. Out here you walk for days and go nowhere.
Australians are fixated on the darkness of this place: explorers perished; tourists murdered; children lost. They are written into our folklore. No crime rattles Australians more than those who simply disappear. The Beaumont children who half a century ago went to an Adelaide beach and never returned; Harold Holt, Australia’s Prime Minister, who dived into the ocean and was never seen again; or Azaria Chamberlain, the baby who died in the wilderness at Uluru and sparked one of Australia’s longest running and most notorious criminal investigations. I am drawn to something the writer Beth Spencer once said, that all those somehow swallowed up by this place ‘inhabit this other space in the Australian memory’, as though they strayed too far ‘off the cultural map and disappeared into thin air’.
Our poets, our writers, our film makers all grapple with that question of belonging. The land is the central character in this national drama: Picnic at Hanging Rock, The Chant of Jimmie Blacksmith, Wake in Fright, Sweet Country – all films that emerge from the vanishing place.
In her epic novel of the 1940s, The Timeless Land, Eleanor Dark imagines the first Governor, Arthur Phillip, wondering if this harsh country would ever accept the foreigners: ‘As aliens they had come to it, and as aliens they would die in it’.
Tim Winton, his writing inseparable from his landscape, says this country ‘leans in on you. It weighs down hard’.
Our writers know that the European presence here is disturbed, unable to break free of the act of invasion and dispossession. It is rattled by the myth of terra nullius. Australian scholar David Tacey sees Australia as immature, inauthentic. The land is ancient and powerful, he says. The spirit of place is ‘social and geopolitical’.
Ken Gelder and Jane Jacobs have called this ‘Uncanny Australia’. Home is turned upside down, into ‘something else, something less familiar and less settled’. Australians, they say, inhabit some Freudian space, being ‘at the same time in place and out of place’.
This need to be ‘at home’, is deeply personal, it is political and social and legal. It is the space between white and black in Australia. Aboriginal people have never relinquished their sovereignty; never ceded their country or surrendered it in battle. There are no treaties or deeds of sale.
From the mid-19th Century, one legal case after another challenged British sovereignty. It is a paper trail that leads us into a shadowland – a hidden country – still utterly unknown to most Australians.
In 1836, lawyers for Aboriginal man Jack Murrell, charged with murdering another Aborigine, argued that he could be judged only under his own customary tribal law. The Chief Justice described it as an ‘ingenious defence’, but rejected it saying everyone in the colony was considered a British subject. The ruling extinguished Aboriginal rights.
Yet, a year later in 1837, the Select Committee of the House of Commons on Aborigines, stated that: ‘The land has been taken from them without the assertion of any other title than that of superior force …’
In 1841, in the New South Wales Supreme Court, Justice John Walpole Willis, sitting on another Aboriginal murder trial, wondered whether he even had jurisdiction in this case. He described the British as ‘unwanted intruders’: the ‘Aborigines must be considered and dealt with … as distinct, though dependent tribes governed by themselves by their own rude laws and customs’. The settlers, he said, knew that ‘every part of this territory was the undisputed property of aborigines (sic)’.
But in the same year the British Privy Council sought to settle the matter of sovereignty once and for all. Aboriginal people had no rights to land. The Law Lords ruled that this country had been regarded as ‘a tract of territory, practically unoccupied, without settled inhabitants or settled land, at the time when it was peacefully annexed to the British dominions’. It’s a ruling that has formed the skeleton of Australian law. No court has dared rule against it.
In 1979, Wiradjuri man and law student Paul Coe had his case challenging Australian sovereignty dismissed by the High Court. But Justice Lionel Murphy rattled the bones of the Australian settlement.
‘… the aborigines did not give up their lands peacefully; they were killed or removed forcibly from the lands by United Kingdom forces or the European colonists in what amounted to attempted (and in Tasmania almost complete) genocide’.
In 1992 the High Court finally struck down terra nullius, in the historic Mabo case. Torres Strait Islander man Eddie
Mabo fought his way through defeat after defeat in lower courts to prove his birth-right to his ancestors’ country, until he took his case to the highest court in the land. The justices saw this as a chance to erase the nation’s great shame and acknowledge what is now known as Native Title. But the principle that Australia was ‘peacefully annexed’ remained; the court would not ‘fracture the skeleton’ of our law.
This is the story of Australia: the unresolved question of who truly owns this land. The historian Stuart Macintyre says our story is the story of ‘a sleeping land finally brought to life’. To the British of the 18th and 19th Centuries it was a white story. They named the great cities of this new country – Sydney, Melbourne, Perth, Hobart – after British politicians. Adelaide is named after a queen and Brisbane after a governor.
But I have long thought there is something else lurking in Australia, a trace of a story much older and etched more deeply into this land. It is a story that holds Australia in its grip even as Australians have sought to deny it. Look at the farms and properties in outback Australia, think again about our rural towns: so many of them carry Aboriginal names. It was as if the settlers were reminding themselves whose land this was even as the First People were being forced off.
Each Australia Day – January 26 – commemorates the arrival of the First Fleet from Britain. The day the foreigners came to stay. I feel the bones of my ancestors – black and white – buried in this land, and wonder if they can ever truly be at peace. Our history lives in me. My Irish ancestor came on one of the convict ships, and my Indigenous ancestors stood on the shore. I am born between the ship and the shore: it is the space where I become an Australian even though we are still not sure what being an Australian truly means.
More than two centuries after the British boats came there exists here still the pulse of an old heartbeat. It is what I hear when I look down from on high at my home below.