Share This Article
In recognition of NAIDOC Week, Malcolm Ward and Finn Ball produce one of the most challenging reads ever published on Drew’s News, discussing Makarrata and the broader treatment of First Nations peoples in Australia.
This article is presented as a work in progress … just like Makarrata.
We encourage you to form your own opinion and act on your own volition.
New Year’s Eve 2020: Australian Prime Minister Scott Morrison proudly announces that the national anthem Advance Australia Fair is being revamped. This simple change from young to one is an attempt to create a spirit of unity, paying tribute to the long history of Australia’s First Nations peoples [1,2], the oldest continuous cultures in the world .
 Indigenous? Aboriginal? First Nations? Collective terms … what do I want to use/feel comfortable with?
Pick one and stick with it.
 Civilisation? See Bruce Pascoe’s Dark Emu.
March 2021: The Union Jack soaked in the blood of its conquered territories – raising awareness of the massacres of First Nations peoples during colonisation. This piece of artwork titled ‘Union Flag’, proposed by Spanish artist Santiago Sierra for Hobart’s often controversial winter festival Dark Mofo, called for Australia’s First Nations peoples to donate their own blood for the project.
These two events are reflective of the ongoing fight for justice for Australia’s First Nations peoples, calling into question what it truly means to be an Australian. Whilst both the government and Dark Mofo organisers were well-intentioned, these events contradict the Australian ethos of mateship and the ‘fair go’. Scott Morrison neglected to consult First Nations peoples before changing the national anthem. His decision has been criticised as tokenistic and merely placating the growing ‘Change the Date’ movement . Dark Mofo organisers received significant public backlash for glorifying the gore and violence of colonisation and for failing to make any meaningful contribution to aid against the continued plight of First Nations peoples.
 January 26th marks the beginning of hundreds of years of suffering and inequality.
This conflict calls into question what it truly means to be an Australian. Do Australians belong to Australia as a country, or the Australian nation? Country or nation … is there a difference?
A country is defined as a distinct territorial body or a political entity. Australian citizens have Australian birth certificates and passports. A nation is a community of people formed on the basis of a common language, history and culture. Whilst nations are more overtly political than ethnic groups, they are often embedded in shared ethnicity. These two definitions have such substantial overlap that they are used interchangeably when referring to a group of people . However, this is not the case in Australia. Geographically, we are united as a country  but socially, there are significant divides between white Australians and First Nations communities … and therefore, divides between nations .
 Sourced from Wikipedia.
We are the free knowledge generation.
 But what about land rights? native title?!
 European descendants? Caucasian? I don’t know … hard to categorise.
The 2000 Sydney Olympics is an iconic visualisation of this concept. Cathy Freeman celebrated her 400m gold medal with both the Aboriginal and Australian flags, despite it being a violation of the International Olympic Committee rules. Freeman’s pride and sense of belonging to the Aboriginal flag showcases how she wanted to be seen as a representative of not just the Australian country, but also a representative of her Indigenous nations .
 When an athlete wins a gold medal, they are usually representing their country and their nation. But in this case, Freeman felt as if her nationhood was inconsistent with her country – highlighting the divide between our nations???
The divide between the nations of Australia is not a new phenomenon. Horrific events  that have unfolded since the British invasion (“arrival”) of Australia in the 1780’s have been recognised far too late by the Australian public . There has been a struggle to find reconciliation through the painfully slow acknowledgment that Australia has been inhabited by people  for over 60,000 years .
 Some are yet to be recognised! See historian debate Henry Reynolds v Keith Windschuttle.
 Mabo Decision – overturning terra nullius.
 According to the latest Western scientific studies. From the First Nations perspective, they have always been in Australia from time immemorial.
Australia is the only Commonwealth country  that does not have a treaty with its indigenous population . A treaty involves two distinct groups (the Australian government and First Nations peoples) forming a legal agreement. This is important because it would redefine and restructure the relationship between First Nations peoples and wider Australia – a step towards healing the divide between nations. However, the treaty approach has two key problems.
 See CANZUS (Canada, Australia, New Zealand, US) states in particular.
First, it is a politically and socially advantageous stance for Australia to identify as a unified and reconciliated country . Second, there are many First Nations in Australia which means it would be difficult to form any agreement within the bounds of the definition of a treaty. Bob Hawke promised to deliver a treaty by 1990. However, the controversial term “treaty” was soon changed to a ‘document of reconciliation’ or Makarrata (‘resumption of normal relations after a period of hostilities’). This terminology was preferred since ‘treaty’ was too divisive and usually describes agreements between countries rather than between nations [16,17,18].
 Who are you?? Neneh Cherry??
 Midnight Oil.
 Woah the Power and the Passion!
Since Hawke, advocacy to heal the divide has shifted focus to Constitutional recognition. The Uluru Statement from the Heart was produced in a summit meeting through consultation with First Nations Elders. It outlines the need for Constitutional reform, how the First Nations tribes were the first sovereign nations of the Australian continent and that their sovereignty has never been “ceded or extinguished”.
Reconciliation through either a treaty or Constitutional recognition would affirm the idea that Australia is ‘one country, many nations’. Opponents to these reforms argue that we are stronger as one and that, to the greatest extent possible, the idea of our ‘country’ and our ‘nation’ should essentially mean the same thing. What would full representation of nationhood look like in modern Australian [19,20]?
 Perhaps similar to China’s ‘one country, two systems’ model? Governance of Northern Territory?
This is a complicated question that requires analysis of all facets of society and relevant stakeholders. For example, to what extent should the criminal justice system formally recognise First Nations customary laws ? If a First Nations defendant will suffer a customary punishment for breaking the law (such as spear wounds to the thigh) , should the severity of their sentence in a criminal court be reduced? Sentence reductions and alternatives to custody can prevent cycles of disadvantage and perpetual marginalisation. However, express statutory recognition of customary punishment might create inconsistencies that undermine the rule of law . Further, since each First Nation has its own form of customary punishment, the legal system would become difficult to regulate.
 Law Reform (start page 85). Overview of criminal cases that have recognised customary law during sentencing.
 R v Wilson Jagamara Walker  NTSC 79 (see above).
 Everyone is equal in the eye of the law. Everyone in Australia should be subject to the same laws, regardless of their ethnicity or race … right?
Yet, First Nations peoples are proportionately the most incarcerated peoples in the world . First Nations defendants often find themselves arrested for offences they might not have been aware of (for example, the offensive language provision in the Summary Offences Act 1988 (NSW) s 4A) . This problem raises further questions such as whether Aboriginality should be used to show cause in bail applications or as a mitigating factor in sentencing.
 NB: police discretion and First Nations defendants.
Full representation of nationhood through an official recognition of ‘one country, many nations’ may be too complicated and impossible to implement. However, partial representation (embedded within the current system of government) may offer practical approaches to heal the divides between nations. The Statement from the Heart reads;
These dimensions of our crisis tell plainly the structural nature of our problem . This is the torment of our powerlessness … When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.
 Sovereignty never ceded, land rights, over-incarceration, stolen generation.
This is a vision of powerful and collaborative entities that make the land of the ‘fair go’ accessible to all. This ideal would be substantiated by a Voice in Parliament . Although First Nations peoples comprise just 3.3% of Australia’s population , they should be included in the Parliamentary decision-making process [29,30].
 Statement from the Heart argues this should be enshrined in the Constitution.
 2016 Census (includes other relevant demographic data).
 First Nations peoples have been failed by the government multiple times.
Ultimately, these visions must be realised through capacity building models that facilitate self-determination and substantive equality. First Nations peoples in Australia must have the choice to determine what their Voice in Parliament should look like, now and into the future. This represents the culmination of our agenda … the coming together after a struggle … Makarrata.
This piece was entered in the St Andrew’s College Collaborative Writing Competition 2021.
Editor’s Note: I usually avoid writing long editor’s notes. However, I feel that this piece requires some degree of explanation. First and most importantly, the authors and I would like to acknowledge the extensive contribution of our Artist-in-Residence Ms Amala Groom to this work. This piece was originally presented in the Collaborative Writing Competition as one of the entries. She commended the authors on their bravery to tackle such a complex issue and suggested that she work with them on editing the piece so that it may be published. Amala told me that the first edit contained numerous historical inaccuracies and errors written in first and then third person that together with the authors, she extensively track changed.
After 4-5 hours giving the authors background and context to the topics, Amala suggested that the authors include the track changes in the actual published piece presenting it as a ‘work in progress’, not just because Makarrata is also a work in progress, but because even experts in this area do not have all of the answers. We are incredibly lucky to have someone of Amala’s expertise to assist the authors with this project and I would like to once again offer Amala my personal sincere thanks for her assistance with the piece and her judging role in the Collaborative Writing Competition.
As indicated in the standfirst, this is one of the most challenging reads that I have published on Drew’s News, if not the most challenging. But this is deliberately so. The issues raised in this article are not intended to be easy or digestible. The article is designed to challenge, to investigate and to interrogate the structures that underpin our society. This is not meant to be ‘nice’ or ‘pretty’ to read.
To this effect, you may notice that the piece sometimes strays from the Drew’s News Style Guide and/or typical journalistic conventions. Again, this is deliberate. The ‘footnotes’ aren’t at the end of sentences; they correspond to exact moments in the narrative. This is very important. Further, Malcolm is a proud Palawa man from Lutruwita (Tasmania) and this is his and Finn’s piece. I did not feel it was my place to make significant edits. What you see here reflects the intention of the authors. Take the time to read it carefully, to follow the arguments made and understand the critiques. I promise that it is well worth your time.