On native title, saying sorry, and reconciliation.

(another one of the Lost Files following the Great Server Crash)
“Exempting any group of people from criticism is not a blessing but a curse. Thomas Sowell ”
It was reconciliation week once more last week, a good opportunity to debate some of the more thorny issues surrounding indigenous affairs. I apologise in advance for confusing you, because at the end of my mental journey I find myself in favour of native title rights, but leaning against reconciliation week.

The trickiest issue concerns native title rights. This issue is tricky in any country and the perennial question is how far back historical rights reach. Should the English figure out which Kelts were disowned by the invading Angels 1400 years ago? Should the South Africans figure out which Bushmen were disowned by the invading Bantus 500 years ago? Should the Arabs figure out which Berbers they disowned in North Africa in the Middle Ages? The practical answer to these questions is ‘no’ since the period is so long that it by now has become impossible to trace initial ownership and it would only lead to a war to rake up all these old rivalries.
Yet, land ownership does extend through the generations. Sons and daughters inherit from their fathers and if their fathers stole it from someone else, then in Western legal tradition, the surviving kin of the dispossessed do have the right to legal redress. This principle is not extended back into perpetuity, but within the laws we have adopted for ourselves, intergenerational rights do exist. Since we’re all supposed to be equal under the law, the principle applies equally to indigenous land rights.

How far we should go back with intergenerational rights is ultimately, for a utilitarian, a question of whether we can ignore historical claims within the rules we live by. This in turn revolves around our social norms of inherited rights. The best indicator of our social norms concerning inherited rights is the inheritance tax. Some countries, such as New Zealand, have a hefty inheritance tax of about 40%. With that kind of inheritance tax, no more than 20% of initial rights survives 3 generations, and within 6 generations, any initial right is watered down to a mere 4% of the initial stake. With that kind of inheritance tax, it very quickly becomes irrelevant who owned what in the past. Since generations typically come in intervals of 25 years, a 40% inheritance tax makes historical rights going back more than a century an irrelevance.
Fairness and equality of the law make this seem the best approach to indigenous land rights in Australia: we apply our own current social norms about inheritance and apply those equally to all Australians. It would not matter if this means that claims preceding an era of ownership are then brought up, nor if the ownership was group-based rather than individual based: we have to consistently apply our current social norms backwards.
What is our inheritance tax you then ask? Its zero percent. Well, within a zero percent inheritance tax, historical rights never go away and we should in principle honour the oldest claim that can reasonably be made. Whatever claim can be reasonably proven that’s the oldest should be honoured. Within this line of thought, it is actually not important whether continued attachment can be proven. What matters is whether previous occupation and removal can be reasonably demonstrated. Until we hence change our inheritance tax laws, native title should simply be recognised as a logical consequence of the social norms and laws of Australia.

As to saying sorry, I must first confess a strong personal aversion against saying sorry for what others may have done. I often have to say sorry for my words and that’s fair enough, but I hate saying sorry for what other people may have done. When I arrived in Australia 6 years ago, some well-meaning white academics tried to convince me ‘we rich whites’ owed ‘the aborigines’ an apology and compensation. I retorted that I never laid a finger on anyone and that my ancestry is a 500-year long line of Dutch Catholic peasants minding their own business. On what basis can one ask me to say sorry? The answer was sobering: because I am fortunate and because I am white. I responded that it is the very pinnacle of racism to blame me on the basis of a shared visible trait (skin colour) for what others with that same trait may have done in the past. This emotive reaction is still my core objection to ‘sorry day’: the whole notion that some should say sorry to other fellow citizens on the basis of race is anathema to me.

The final issue is that of reconciliation over and above native title rights. For me, this issue boils down to the following question: whose ancestors should be reconciled? Putting it in practical terms: who alive today is most likely to have non-indigenous ancestors that clashed with the preceding indigenous population pre 1780? This is not an easy question to answer because its very hard to figure out the ancestry of the current generations of people. All we can do is make an informed guess.
Here’s my back-of-the-envelope calculation about ancestry: the best estimate (here) of the population of remaining indigenous people around 1900 is about 70,000 people. At present, the ABS reports here that there are nearly 500,000 people registered as indigenous, with a doubling in the last 15 years. These ‘late registrations’ will mainly be from people who were the result of inter-marriage and who have in the intervening years lost some connection with the registered indigenous population (perhaps as part of the stolen generation). Think about these two basic numbers for a second. It requires a very heavy dilution of indigenous ancestry to arrive at 500,000 now from 70,000 in 1900. At reasonable rates of natural population increase (.6% per year), some 2/3 of the ancestry of the currently registered indigenous population must have been non-indigenous. And furthermore, they must to a very large extent be from the non-indigenous population that was around in the 1780-1950 period.
Let’s now look at the non-indigenous population. To what extent did they derive of the stock of non-indigenous people in the 1780-1950 period? We can simply note that migration since 1945 has almost doubled the Australian population (about 0.6% migration per year since 1945). Greeks, Italians, Dutch, Germans, Asians have come in this period. They might also have largely been from European descent, but are not descended from the non-indigenous population in Australia in the 1780-1950 period.

Hence, as an estimated rule-of-thumb, the average currently registered indigenous person for 2/3 derives of the non-indigenous population that may have something to say sorry for. The average non-indigenous person would be for ½ descended from the non-indigenous population that may have something to say sorry for. What’s the conclusion if we seriously want to shame the off-spring of white invaders? The conclusion is that then, the average registered indigenous person has more cause to say sorry than the average non-indigenous person. It’s a matter of reconciliation within indigenous families. It’s about the 3 non-indigenous grandparents who have to be reconciled with the one indigenous grandparent (indeed, maybe they were reconciled, who knows?).

In my back-of-the-envelope calculations I was loading the dice against current non-indigenous people. If we’d say that even the 70,000 indigenous people in 1900 had a large intermixing component, then the proportion of non-indigenous ancestry amongst the registered indigenous population would be higher than 2/3. The ratio would also go up if we go back further in time than 1900, or if weâd take the lower estimates of the indigenous population in 1900. The real figure is more likely to be 4/5 than 2/3. Having said all this, the above is just my best-guess. I’d be very supportive of the ABS collecting the data that would allow us to improve on my best-guess.

Where should we go with reconciliation in this country when the ‘us and them’ is not so much between the indigenous and non-indigenous community but is in reality more within the indigenous community? Should we advocate soul searching within each indigenous family? Are we to perform a yearly ritual whereby recently arrived white people (which includes the Asians) express remorse for things neither they nor their ancestors did? Should those registered as non-indigenous, or the state as the representative of the majority, publicly adopt blame on behalf of everybody’s ancestors? None of this will alter history but worsens the cultural discomfort within indigenous communities since those registered as indigenous cannot undo their own ancestry. Reconciliation week ultimately can only rip the soul out of the currently registered indigenous communities because it will force the majority of the indigenous population into disowning their own ancestors. In the name of reconciliation we are in fact freshening the wounds within indigenous communities. Wouldn’t it be more sensible to take the route of forgetting about racial differences entirely and to unite under the banner being Australians, equal under the law?

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Patrick
Patrick
14 years ago

Even letting you get away with this complete furphy '<i>Since we’re all supposed to be equal under the law, the principle applies equally to indigenous land rights</i>', it seems to me that the second half of your post does a pretty good job of weakening the first half! 

paul frijters
paul frijters
14 years ago

Patrick,how does that follow? Even if a self-identified indigenous person is most likely to have a 2/3 ancestry to non-indigenous forebarers, that person is still the rightful heir to the land held by the forebarers that made up the 1/3.

Geoff Honnor
Geoff Honnor
14 years ago

Patrick raises an interesting point: The overwhelming majority of those who identify as aboriginal are far more  a descendant part of the Australian Settlement – from whom an "Apology" is ostensibly sought – than is anyone who is part of  – or descended from –  postwar migration.

Geoff Honnor
Geoff Honnor
14 years ago

I meant that Paul raised an interesting point.

pablo
14 years ago

Paul.  The reconciliation process was adopted in lieu of  prime minister Hawke subsequently going cold on the stated view – the Coronation Hill speech of,  I think, 1989 – of  formulating a treaty with indigenous Australians. A treaty would have been a very defining moment in black/white relations and no doubt a very legal document with all that that entails. For Howard the same thing applies to saying sorry in the reconciliation process – lots of legal implications. I think I would have preferred a one-off treaty and maybe a one-off compensation payment rolled into something like a future fund for those who could most directly claim against it. It is difficult seeing any definable end to this reconciliation process even with the Ruddster promising an apology if elected.

Nemanja Antic
Nemanja Antic
14 years ago

Paul makes a good argument for native title, but fails to give a rational reason for why we should not say sorry. By his own admission, he states "This emotive reaction is still my core objection to ’sorry day’: the whole notion that some should say sorry to other fellow citizens on the basis of race is anathema to me. The rest of his post is about justifying his emotionally-driven view. The question I would like to explore is where this self reported anathema to apology comes from. It seems that Paul is saying that he has never made a token apology for something he didn’t do. Maybe, but I'd say that most people make token apologies. I know I certainly do – if it means a lot to the other person, but does not cause me any personal harm, I figure that this is socially the best course of action. Certainly the all-powerful Walrasian social planner would approve. However, people are rarely satisfied by token apologies, so why would anyone want what is ostensibly a token apology? The answer has to be guilt rather than the frequently quoted response of recognition (Why? There are other ways to achieve recognition, which would result in a more cohesive society, rather than a more divided one). While some people have a need to feel guilty, others see guilt as unnecessary and non-desirable (and hence why Australia is divided on the issue). Paul’s anathema could be coming from the fact that he views guilt as bad for social welfare (what would the social planner do in this case?). And hence he tries to play down history through phrases like “saying sorry for what others may have done”. If we buy into my guilt argument, many important questions remain. Why would anyone want others to feel guilty? Is it such a bad thing to feel guilty?

Justin
Justin
14 years ago

Very interesting post, and of course the racial calculus is absurd and repugnant. It just goes to show the confusion introduced by thinking of the moral issues in terms of groups rather than individuals.

In general race-based laws are bad in principle and bad in practice, and should be abolished.

Having said that, there is a need to redress outstanding injustices in specific cases, so far as they reasonably can be addressed, and without committing further injustices.

As to native title, there is a need to redress the injustice caused by the forcible expropriation of the rights to the use of land owned by the people who lived in Australia before European settlement. How far back should one go? As far back as the claimant can bring evidence. This would remove from contention most of the nominally Aboriginal population of Australia, for the same reason that most Europeans could not establish evidence of their ancestral land rights: it is lost in the mists of time. In principle, claims could extend to urban areas, but in practice, it is rather laughable to suggest that descendants of Aborigines have continued to exercise the incidents of their ancestors’ rights to land over suburban Perth etc.

But the important thing, and the key is, that it’s not a race of people who have rights. It’s individuals who have claims to justice, not groups per se. Extending special race-based rights to groups is itself an injustice, and is the reason why racial discrimination is rightly held in such disgrace everywhere. The problem in Australian policy is the constant confusion of seeing race as being a ground of entitlement in itself.

The next major heading of injustice affecting the Aboriginal people that wants redressing is the so-called Stolen Generations. Some of these cases were for reasons of child protection, and the children would have been removed in similar circumstances under current law. But many were not, the whole policy was explicitly race-based, and the results were very destructive for the affected individuals and families. It was a disaster of social engineering which should have, but has not, served as a warning against the current race-based social engineering laws and policies. These wrongs have now run through several generations of people not knowing their families, and many other problems involving identity, fostering, education, skills, criminality, health, and functionality in general.

There is an injustice, but how to remedy it? It may be thought hard to impose the burden of proof on the claimants, since they were children, and the Departments have the documentary evidence. However claimants have race-based legal aid, and there is no reason why their representatives can’t get the documents under FOI.

All claims should then be paid out in cash in a final settlement, and let there be an end on it. No more ‘Aboriginal’ departments, policies, junketing, breast-beating over reconciliation, and toadying politicians apologising ‘on behalf of’ people who are not guilty.

The most active, tolerated and vocal racists in Australia today are government officials – all for the greater good of course. Australia’s race-based laws are a disgrace both in their ethics and in their effects. They most promote the divisiveness they claim to heal. They commit further injustices because of their racist rationale. The worst thing that could be done is to perpetuate a (growing) special race-based class of welfare dependants, which is exactly what current policy does.

Paul Frijters
Paul Frijters
14 years ago

Justin, I use the word native land title as a summary concept to mean the sum total of the individual claims on land, so we dont really differ on that score. I do bare in mind though that whole groups would have claims to particular pieces of land since there was no such thing as individual property right before the Europeans came and hence one would have to have an euqal division rule over all claimants.  I think the burden of proof you put on land claims is a little high since it is unreasonable to expect people to have documentation stretching back 200 years. 'Reasonable claim' would have to be enough.Nemanja, if it were really just about token apologies, then why ask a group of people to sefl-identify as indigenous, and ask everyone else to apologise to them? Why not call 10 random people on the street Mongolian and ask them to apologise for Dhengiz Khan? Why not go to the nearest bar, call everyone inside an Inca, and ask them to apologise to you for the attrocities the Incas inflicted on their neighbours? The whole point of sorry day is to false create divisions of identity that dont really exist and them to assign blame to people on the basis of which group they belong to. It is an affront to ones self-respect to allow oneself to be racially classified and then burdened with having to say sorry for something one didnt do. Its basically a form of oppression.But yes, the issue of guilt is a fascinating one and it has long perplexed me that so many people are so eager to take on guilt that's not theirs. I'm sure someone more versed in religion would have something wise to say along the lines of original sin and that repentence is good for its own sake.

observa
observa
14 years ago

And further muddying the waters is how much , specific race based welfare has to date cancelled the ledger for individual compensation, whether or not it was wasted by indigenous bodies like ATSIC. The flip side is to say sorry, feeling  guilty as individually appropriate,  pay individual compensation and then disband any more special treatment based on race. Is that what the 'indigenous' community really want? Is it OK to just get a majority verdict on their behalf? That's where it gets messy as Paul points out. eg does Ryan Griffin of the Crows get to vote here?

Patrick
Patrick
14 years ago

The reason it is a furphy is that the only way your argument re native title holds is either by redefining native title to suit your ends (in comments) or by equating it to some kind of common law titles. Equality under the law makes no argument in favour of native title as such.The problem with native title is that the point of recognition tends to be (although there are exceptions) the creation of common law titles. Which is not bad as compensation, but slightly incoherent when the key criteria for native title claims is ongoing maintenance of non-western custom and affiliation. Ie, native title is recognised, on the basis of continuity, so as to be interrupted. I think reconciliation should be protecting and preserving sites of particular cultural significance to them, and otherwise recognising the legitimate need to spend public money faciliting their integration, to whatever degree they want, into western society. There should be, as part of that, some 'protection' for them as well, in the form of perhaps more resources for teaching, etc.

paul frijters
paul frijters
14 years ago

Patrick, I can find little in your reply to disagree with, apart from making the rather obvious point that nothing of what you classify as 'reconcilliation week' has anything to do with reconcilliation but more to do with positive discrimination (which, as a temporary measure with explicit faze-out elements to it, I am usually in favour of). The one serious disagreement we'd have is in your phrase "their integration, to whatever degree they want" is unconstitutional because it implies some subsection of Australians can choose which of the laws that do hold for others would not hold for them. That's undemocratic and elitist.

Patrick
Patrick
14 years ago

You are assuming that our Constitution applies to them – why should it? Was it intended to? To the extent that they want to interact with us, then I think it should be on our own (Constitutional) terms. To the extent that they want to remain 'aborigines', I am not sure we should, or need to, object. In a short enough time, of course, I suspect that there will be no more 'aborigine culture' except as a remembered artefact. Under any policy save forced quarantining.

Tony
14 years ago

Sorry: a word of multiple connotations:On the one hand 'sorry' could lead to positive action leading to reconciliation, the re-initiation of friendships and ongoing respect for others, maybe even loyalty to our family, friends, our community, our nation.On the other hand 'sorry' could be used as a token to abrogate responsibility. "I'm sorry" ( unspoken: now go away)Let us not resort to tokenism; what is important is that we Australians share our COMMONWEALTH with the less fortunate in our community. Let's get on with helping all communities in need; after all, the word 'sorry' means that we are willing to 'to provide for'. http://dictionary.oed.com.ezp01.library.qut.edu.au/cgi/entry/50231252?query_type=word&queryword=sorry&first=1&max_to_show=10&sort_type=alpha&result_place=3&search_id=qdHA-8xQXcn-27251&hilite=50231252 

paul frijters
paul frijters
14 years ago

Patrick,"You are assuming that our Constitution applies to them – why should it? "because we all are Australian citizens independent of our ethnic self-identification so the constitution does apply. We can of course as a nation choose to change our constitution and make some part of the population exempt from it or even to have different laws apply to different parts. That would effectively be a form of break-up of Australia. Its a separate discussion, but I am sceptical that anything constructive would come from the break-up of Australia, nor do I approve of the principle that a small minority would have the right to cesede from the whole. If you're going to allow that, every small group in Australia should then have the right to form their own country. Call me a fervent democrat but I adhere to the one-person-one-vote principle and thus wouldnt want additional powers given to any self-identified racial group.

Justin
Justin
14 years ago

‘You are assuming that our Constitution applies to them – why should it? Was it intended to?’

Good point – but when it comes to that, why should it apply to us either? I didn’t get to vote on it. Why should I be bound by the votes of people a hundred years ago? This problem underlies all constitutional law.

Patrick you can’t have it both ways. Aborigines already have all the same entitlements in law that other Australians have – and then the additional entitlements that people like you think ‘they’ should have in their capacity as Aborigines. Even ignoring the factual problem that most of the official ‘Aborigines’ are no more Aboriginal than I am a highland Scot, still what you are positing is a racially-defined group with full membership rights to two mutually exclusive regimes of rights. According to this logic, I should be able to sue for discrimination for not being permitted to participate in traditional corroborees.

It is of course true that the legality of ‘the Crown’ appropriating the property rights of the Aboriginal people is somewhat dubious in the first place, for two reasons. Firstly, Cook’s written instructions did not include authority to appropriate the entire landmass. And Philip’s instructions included a prerogative to grant rights to land which, if they were not based on the validity of Cook’s appropriation, which they weren’t, were based on …. what? How can you sail up the side of an island and by that fact purport to transfer to yourself somebody else’s rights to land?

However, I for one am not about to evacuate the continent, and I guess the other 20 million people who came on the strength of British Crown’s prerogative aren’t either. I can’t see that it is any solution to make a provision for ‘them’ to opt out of Australian law when they don’t want it, while simultaneously claiming the benefits of a *double* dispensation of rights. But if that’s okay, can I have that too?

Patrick
Patrick
14 years ago

I was being a little tongue in cheek. I think we have arrived at a point where there is no doubt that Aborigines are legally bound (and protected) by our Constitution. But I do think there is a non-trivial question about whether it was ever intended that they be so bound or protected, possibly except to the extent that they interacted with 'us', by eg working on farms, as trackers, stealing from 'whites', or being attacked by them.I don't think that posits 'a racially-defined group with full membership rights to two mutually exclusive regimes of rights', since to the extent they 'belonged' or were whacked into ours, they forfeited theirs. Not that any such analysis is not slightly anachronistic ;) I think it is far from giving them any extra powers, superiority or anything of the like – merely a deferred right of acquiesence, really. I also don't think it raises any of those first-year arts student questions like 'why am I who only arrived yesterday bound'.

Justin
Justin
14 years ago

It's not just Aborigines who were whacked into our regime of rights. The proportion of the voting population who voted 'no' was probably greater than the entire Aboriginal population at the time. Why can't anyone who doesn't agree with it have an exemption? Let's have self-determination for everyone! But if not, then I suppose the equal protection of the laws, regardless of race, will have to do .