‘History is calling’, or so the leaders of the Uluru campaign to enshrine a First Nations Voice in the Constitution tell us. The slogan is calculated to exploit the ignorance of Australian history so diligently cultivated by our schools and universities in recent decades.
Ironically, in drafting the ‘Statement from the Heart’ in 2017, the Uluru delegates fell victim to their own ignorance of history in ways that fatally undermine the document’s moral force.
The Statement quotes or paraphrases four men the Uluru delegates considered to have made a significant contribution to the Aboriginal rights movement: anthropologist Bill Stanner, Gough Whitlam during his days as opposition leader, Yolngu activist Galarrwuy Yunupingu and jurist Fouad Ammoun. The references are not provided in the text, appearing instead in the Final Report of the Referendum Council. Whatever one may think of their politics, all four have or had a certain way with words. The delegates’ original work is a tasteless melange of straw men (‘We are not an innately criminal people’), gift-shop mysticism (‘They will walk in two worlds’) and clunking nonsense (‘These dimensions of our crisis tell plainly the structural nature of our problem’). Understandably, they sought the razzle-dazzle of a few choice phrases from the past.
Three of the quotes are uncontroversial choices. Paragraph 7 adapts Stanner’s powerful 1959 phrase, ‘the torment of powerlessness’. Paragraph 9 borrows Whitlam’s 1972 form of words ‘their rightful place’, though Gough was not talking about Aboriginal rights at that point in his speech. And paragraph 11 contains a dubious translation of makarrata, ‘coming together after a struggle’, which the Final Report wrongly attributes to a 2016 essay by Yunupingu, “Rom watangu: the law of the land”.
Clearly, one can quibble with all of these. Makarrata (or magarada) is a term used in Arnhem Land for a type of ceremony once practiced all over Aboriginal Australia, the ‘juridical fight’. These were highly structured and regulated outlets for retributive group violence that typically ended, or were at least adjourned, once a serious enough injury had been inflicted. The anodyne translation ‘coming together after a struggle’ appears to have emerged around 1979 when the National Aboriginal Conference — the Voice of its day — proposed using the term as an alternative to the politically toxic ‘treaty’. The 2016 essay mentions a last makarrata occurring on a beach in Eastern Arnhem Land some time in the early 1930s:
On the sand at Birany Birany the peace was made, grievances were settled and a better future was created.
One can only imagine how powerful the Uluru Statement might have been had Yunupingu been asked to write it.
Interestingly, Stanner’s essay is also partly concerned with the demise of the juridical fight. He tells the story of a man he first met in the aftermath of such a ceremony on the Daly River in 1932. Durmugam had made every effort to honour his traditional legal obligations throughout his life only to see, in old age, respect for that law evaporate among young Aborigines. By 1958, the reach of Australian law was sufficient to shield Durmugam’s Aboriginal tormentors from customary payback, while affording him no alternative form of redress. The ‘torment’ of any criminal serving a prison sentence today is doubtless acute, but it bears no comparison to that of Durmugam’s generation, whose fate it was to experience 12,000 years of social and technological change in a single lifetime.
For present purposes, however, we can be generous and say the quotations attributed to Stanner, Whitlam and Yunupingu were less about the historical context and more about honouring significant individuals. The same cannot be said of the other quote, which forms most of Uluru’s paragraph 3. It says:
This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty.
It comes from Fouad Ammoun, Vice-President of International Court of Justice (ICJ) from 1970–6. Those words, with a minor modification, are taken from his ‘separate opinion’ in the ICJ’s Western Sahara Case of 1975, though the Referendum Council’s Final Report (again) wrongly attributes them to the full court. In place of the ‘materialistic’ doctrine of terra nullius, Ammoun had commended an alternative ‘spiritual notion’:
…the ancestral tie between the land, or “mother nature”, and the man who was born therefrom, remains attached thereto, and must one day return thither to be united with his ancestors.
Ammoun and his brother judges were not addressing Australia or the status of her indigenous peoples. But within a few years Western Sahara and terra nullius were firmly established within the local discourse on Aboriginal rights. The case offered a tantalising prospect that Aboriginal grievances could some day be ventilated in a sympathetic international forum. It may have inspired the concept of Aboriginal sovereignty that found its first public expression in Paul Coe’s protest at Kurnell in April 1977. More circumspect activists, such as Henry Reynolds and Judith Wright, confined themselves to quoting from the advisory opinion. The angrier ones, such as Kevin Gilbert, preferred Ammoun’s version.
AMMOUN enters Uluru by way of the judgments in Mabo v. Queensland (No. 2), where he is quoted twice. Why Eddie Mabo’s lawyers, let alone justices Brennan and Toohey, sought to draw attention to Western Sahara is a mystery. That colony was acquired by treaty, not occupation. And it is now widely — if quietly– accepted in academic circles that Their Honours blundered in bringing terra nullius into the case at all. Not only was the term unknown to the men who led the colonisation of Australia in the 18th and 19th centuries, Mabo himself was not challenging the Crown’s sovereignty over Murray Island/Mer. It’s also unclear why Ammoun’s commentary was given such prominence relative to the actual opinion of the ICJ. (All questions, perhaps, for the threatened ‘Truth’ Commission to consider at a future date.)
But however unhelpful they are as guides to the law as it relates to indigenous sovereignty, it is clear both terra nullius and Mabo have taken on a totemic significance for the Aboriginal rights movement. Perhaps the drafting committee at Uluru had been told to quote from Mabo, and naturally lit upon one of the judgment’s most poetic passages? If this was the case, it’s unsurprising that an obscure Lebanese diplomat ended up getting 48 words into the Statement when local big guns like Stanner, Whitlam and Yunupingu had to make do with just 14 between them (with the latter apparently misquoted). But it does not appear to have occurred to anyone—not Justices Brennan and Toohey, nor the Uluru delegates—to ask themselves what Ammoun was actually trying to say.
In 1974, Spain was already preparing to exit her Saharan province, under pressure from the international community and the Frente Polisario, putative liberation army of the indigenous Sahrawi. Applying the usual template, the UN expected that a referendum would be held at which the Sahrawi would choose between independence, free association with another state, or incorporation into a neighbour. The Kingdom of Morocco saw her chance to seize the province’s lucrative phosphate deposits and fisheries. At Moroccan urging, the General Assembly cancelled the referendum and asked the ICJ to issue an ‘advisory opinion’ on the Kingdom’s claims to the land. The Court concluded that despite historical links between Sahrawi tribesmen and the Sultan of Morocco, these did not establish Moroccan sovereignty over the province and could not now be used as a basis to deny the Sahrawi self-determination.
But unlike his brother judges, Ammoun wanted to back Morocco’s colonial ambitions and forestall the possibility of indigenous self-determination in Western Sahara. Though he signed the advisory opinion of the Court, he published his own ‘additional opinion’ in which he argued (among other things) that there could be no legitimate Spanish title to the province because Spaniards were the wrong race. It is this line of argument, stripped of Ammoun’s own anti-indigenous intent, that was to later enthuse so many Aboriginal rights activists. Drawing on the ‘penetrating views which compel our attention’ from ‘Mr Bayona-Ba-Meya, Senior President of the Supreme Court of Zaire’, Ammoun wrote:
Anyone familiar with the philosophy of Zeno of Sidon or Citium and his Stoic school cannot but be struck by the similarity between the ideas of that philosopher and the views of Mr Bayona-Ba-Meya as to the links between human beings and nature, between man and the cosmos.
Further, the spirituality of the thinking of the representative of Zaire echoes the spirituality of the African Bantu revealed to us by Father Placide Tempels, a Belgian Franciscan, in his work Philosophie bantoue. The author sees therein a “striking analogy” with “that intense spiritual doctrine which quickens and nourishes souls within the Catholic Church”.
Mr Bayona-Ba-Meya goes on to dismiss the materialistic concept of terra nullius, which led to this dismemberment of Africa following the Berlin Conference of 1885. Mr Bayona-Ba-Meya substitutes for this a spiritual notion: the ancestral tie between the land, or “mother nature”, and the man who was born therefrom, remains attached thereto, and must one day return thither to be united with his ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. This amounts to a denial of the very concept of terra nullius in the sense of a land which is capable of being appropriated by someone who is not born therefrom. It is a condemnation of the modern concept, as defined by Pasquale Fiore, which regards as terrae nullius territories inhabited by populations whose civilization, in the sense of the public law of Europe, is backward, and whose political organization is not conceived according to Western norms.
One might go still further in analysing the statement of the representative of Zaire so as to say that he would exclude from the concept of terra nullius any inhabited territory. His view thus agrees with that of Vattel, who defined terra nullius as a land empty of inhabitants.
Ammoun recognised that much European colonisation and seizure of land occurred on the basis that, in some parts of the world, indigenous political and land tenure systems had been rudimentary or non-existent. In the passage above, rather than try to exaggerate the political sophistication of pre-contact peoples, he instead argued that there is some kind of unbreakable supernatural connection between a man and the land of his ancestors. Though supernatural, this connection finds concrete expression in both Western-style property rights and Western-style political sovereignty. Not only were indigenous Africans intimately connected to the land, the ‘spiritual’ nature of this connection precluded any non-indigenous person from acquiring title to it by any process.
The Uluru delegates, if they read Ammoun’s opinion, were wise to exclude this, and not just because the Statement was already threatening to go over their single A4 page limit. The implication that non-indigenous Australians are not entitled to own land here would have been electoral poison, enough to get Uluru memory-holed even by Nine Entertainment and the ABC.
Though the delegates had little interest in probing the origins of their own paragraph 3, there is no reason for us to stop at Ammoun. Who was Nicolas Bayona-Ba-Meya? From the date, it is obvious he must have been a key henchman of Zaire’s then dictator, Mobutu Sese Seko. What was that regime’s interest in the Maghreb, more than 4,000 kilometres away? And what made the former’s views so compelling to Ammoun? In a sense it is a pity the poetry-hungry Uluru delegates did not seek out the source of Ammoun’s words. Whatever his crimes before or after, on one spring morning in the Hague in 1975, Bayona-Ba-Meya beautifully articulated what Aborigines call ‘connection to country’. It is this passage that would ultimately inspire Uluru paragraph 3:
The African shares the profound conviction that man is never born by chance in one or other part of the universe. The birth of a being in a given territory on Earth constitutes a peremptory directive from Nature which requires man to forge his destiny from the elements of his environment; hence the vital obligation for man to seek to situate himself in relation to this environment; and also the ever-urgent need to establish contact with his environment and particularly with the soil. Authenticité is nothing more than this. It is also simple and natural; it is a fundamental law of the universe that applies to all beings.
Given the influence of these words in Australia—they may yet bring about constitutional change—we should also understand what Bayona-Ba-Meya was trying to do.
After six years in power and anxious to shed his regional reputation as a Franco-American stooge, Mobutu had embarked on a series of ever-more audacious campaigns against the legacy of colonialism. Indigenous Authenticité, the cornerstone of his ideology, was launched in 1971, targeting inauthentic phenomena such as Catholic schools, business suits, French prénoms, the Christmas public holiday and even the names of Congo and her principal cities. Then came the economic programme of ‘Zairianisation’, under which rural land was seized and parcelled out to connected officials.
In 1974, state visits to China and North Korea and a collapse in rural production convinced Mobutu of the need for ‘a revolution within the revolution’, including a massive expansion in the landholdings of state enterprises. Individuals’ spiritual connection to land was of no consequence. When the General Assembly referred the decolonisation of Western Sahara to the ICJ in December of that year, the dictator presumably grasped the potential for Authenticité to gain a wider audience. Ironically, by the time Ammoun handed down his Mobutu-inspired opinion in 1975, the dictator’s global influence had suffered an abrupt reverse, sundered by a halving of the copper price, the venality of state economic management and his new status as a supplicant to Western lenders.
I WAS was surprised to learn I am not the first to look into the roles of Bayona-Ba-Meya and Ammoun in the Uluru Statement. Andrew Bolt wrote a somewhat muddled article on the subject in 2019, incorrectly describing Ammoun as Algerian. Uluru supporter Frank Brennan has referred directly to both Bayona-Ba-Meya and Ammoun on occasion, though without showing any interest in their background or motivations. In 2017 he remarked:
How extraordinary that the inheritors of the longest living culture on earth would quote a Lebanese judge quoting a lawyer from Zaire to express the depths of their spiritual relationship with the land. This is a profound lesson for those of us seeking an inclusive Australia.
Last year, Brennan told an Australian Catholic University audience that ‘great changes’ had been ‘wrought by the imaginations, dreams, hard thinking, and basic decency of a line of individuals’ that included both men. Brennan’s lack of intellectual curiosity is all the more galling considering Mobutu’s persecution of Zaire’s Catholics.
Stripped of its flummery, the text of the Uluru Statement offers no serious case for constitutional change. It observes that a lot of indigenous people are in prison, out-of-home care or juvenile detention. It promises that an advisory committee of the type that has existed in various forms since 1968 will shortly discover a hitherto-unimagined means to reduce these numbers. (Never mind that criminal justice and child protection are the domain of the states and territories, and fewer than one per cent of indigenous prisoners are serving time for federal offences.) There is only one catch: the sinecures associated with this new committee require the security of constitutional entrenchment.
All Uluru has going for it is a dash of poetry in paragraph 3. And if that poetry is merely the echo of a dead dictator justifying a ruinous policy of expropriation and repression, what response can we offer but ‘No’?
Joe Stella is a PhD candidate at Griffith University’s School of Government and International Relations. For reasons unrelated to this article, the university recently opened a preliminary investigation into whether or not he is a racist