Noel Pearson's Keynote Address at National Native Title Conference 2015

Transcript: 

Noel Pearson

I’m very pleased to be here with indigenous representatives from all over the country.  I bring you greetings from my Kuku Yalanji people.  This is my mother’s country, our particular clan of state is to the north at Buru, China camp.  My mother’s father’s father’s country.  And to the north of the Kuku Yalanji is my adopted home of Hope Vale, the Guugu Yimithirr nation.  At the far northern edge of which is our estate called  [0:00:51.6].  Francis and I call [0:00:56.5].  Our father’s, my father’s father’s father.  One of the great hold outs from a determined attempt by the authorities in the first half of the 20th Century to remove into Palm Island.  So I’m very pleased finally to have an opportunity to speak with you from our Cape York Peninsula perspective, and I bring greetings from our people in the Cape to all of you.  And I really humbly accept this opportunity to share some ideas with you about where we’ve come from and where we might be at, and where we might be going. 

My address here is on the topic of moving towards a comprehensive framework for the recognition, empowerment, and settlement of domestic treaties with the first nations of Cape York Peninsula. 

I’ve got little time so I’m necessarily going to talk as swiftly as I can over the many diverse topics here.  I would like to further talk with people at lunch time in relation to the issue that we all share on constitutional recognition.

So I want to talk about this first principle very briefly.  I then want to talk about the 25 years of work we’ve been doing in pursuit of justice in our region, really since 1990 to 2015.  I then want to talk about this notion of a constitutional body to represent the voice of indigenous first nations to the National Parliament and Government, with the Native Title PBCs as the base unit of representation.  I then want to talk about where we are at with constitutional recognition and where we might be headed. 

So let me first move to this question of the first principle: the whole question of the sovereignty of our people.  Now we could, and should, have a much more dilated conversation about the question of sovereignty.  I have my own thinking about it.  The pre‑existing and underlying sovereignty of our peoples prior to the coming of Europeans.  The annexation according to their law of the country, and the super imposition of the radical title of the crown and the radical claim of the crown to the continent, and the question about what happened to the original sovereignty of this continent’s first nations.  As I say, I cannot long deal with this in my presentation this morning, but if you ask me what I mean by this question of sovereignty, this excerpt from Judge Ammoun’s opinion in the Western Sahara case in 1975 before the International Court of Justice, most aptly captures what I understand to be the basis of sovereignty and which sovereignty we are seeking.  So I’ll just read that extract there: “Mr 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 motion.  The ancestral tie between the land or mother nature, and the man who was born there from, 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”. 

That to me is the ultimate expression of the indigenous claim.  Any indigenous peoples across the planet claim this as the foundation of their right, in my view.  In my respectful view our rights emanate from this link.  The link between ourselves and the land from which we were born, and the land to which we remain attached, and we must inevitably one day return to be united with our ancestors.  That is what makes us different from non‑indigenous Australians.  Because we have 53,000 years plus of that link.  The bones and dust of our ancestors make the foundation of that linkage so much more deeper than anyone else’s claim to this continent.  That’s the first principle in my view. 

Our work in Cape York Peninsula over 25 years of pursuing justice: we can’t go over every detail of our journey.  It is a journey very similar to your own.  Everybody’s been doing something around all of these issues that we’ve been trying to tackle: land, heritage, language, economy, children, education, health, closing the gap, whatever words you use, we’ve all been about this business: social justice.  It’s just that our journey’s quite short compared to everywhere else.  We’re the last region in the country, in my reckoning, that got on to getting organised on land rights.  We were inspired by the North Queensland Land Council, Gum Clary, Terry, McMiller, all of those people who fought the fight in the dark years inspired my cousin here, Francis, and I to work with a group of elders to form the Cape York Land Council.  And we’ve not just worked in land, we formed up Apunipima our health organisation, and young Cleveland Fagan has been driving our health agenda over the last ten years.  We’ve had Balkanu driving our economic development, and home lands and environment and cultural heritage issues in the region. 

We’ve had an institute, Cape York Institute, trying to influence policy and engage government in a better direction for our people.  And Cape York Partnership working with families and communities in the whole challenge of social and economic empowerment.  We’re at the very early stages of really going to the radical root of education.  We want our own schools.  We have our own schools, three of them.  We’re very excited how we’re going.  We have big ambitions for our children. 

But all of this work I can see all over Australia and many groups are doing better than us.  Some groups have got exciting things that we have never even contemplated.  There’s people doing better than us in economic development.  There’s people doing better than us in terms of cultural heritage management.  So we’re seeking to learn from other first nations around the country so that our pursuit of justice can be of the highest standard and extremely and utterly comprehensive. 

Our first part of our work: land rights.  That was the starting place inspired by the NQLC.  I actually had the great privilege of getting to know Murandoo’s father.  Frankie introduced me to him.  The Carpentaria Land Council started way before us, and he was an inspiration in particular with the Waldens at Doomadgee and others.  They inspired us to start our own land council.  When you think about it, 1990 was very late in the day for us to get organised. 

We started in Lockhart River in 1990.  And I want to just reflect on how we’ve gone since then.  So here is the state of play just before we started the Land Council in relation to our land rights.  And now today in 2015 we have progressively, through land claims processes, ILC purchases, Native Title, and indigenous freehold title, settlement, that is the story of Cape York and indigenous title in 15, what is it, 25 years later.  And we’ve settled a whole range of Native Title claims to build that story.  And the remaining agenda I think there’s a session on it later today, is about how we intend to complete the land claims process through our one claim.  We don’t actually want a repeat another 25 years of land claims and we have now lodged a claim for the remainder.  And the Cape York Land Council has done an outstanding job in getting consent and understanding across our region for us to move to obtain Native Title under the remainder of Cape York.  I don’t know precisely what the percentage will be but it will be 98% or 99% of Cape York under some form of Native Title.  Not all exclusive.  A lot of co‑existing titles.  But the intention of the one claim is to end up with proper recognition of our native title across the whole region. 

The second part of our work has been about cultural and natural resource management rights and Balkanu and the Cape York Land Council have been at the forefront of that.  A lot of Cape York is national park, indigenous owned.  And the whole question of joint management or sole management of the natural and cultural estate in this region is something that we’re still in the middle of rumbling with government about.  I think it’s similar all over the country.  We don’t have a kind of happy resolution yet of how we might take back proper control over our traditional country and in conservation estates. 

I just urge one thing in my short comment about this part of our work: we got to stop talking about rights.  I think LMRM without the R at the end endangers our people’s position.  We got to talk about our rights to management and control.  And I have a long critique that I will not outline here this morning, about how LMRM can tend to undermine LR.  If we don’t anchor LMRM in LR it floats away from us, and we lose the fact that LMRM is just a function that sits on top of land rights, and if it’s not absolutely anchored in land rights we’re kind of led away by governments and other NGOs into a wishy washy kind of approach to what rights our people should have in relation to the custody of our traditional country in conservation estates. 

Like other regions around the country, particularly northern Australia, the Kimberley and the Northern Territory and other places, environmental groups have big ambitions for world heritage and national estate listing and so on.  Cape York is a hotly contested region, and there is a form of green colonialism at work.  Just as we win the land from governments it may be that we lose them to greenies.  You know I have been at the forefront of that resistance.  I don’t automatically equate green aspirations with black aspirations. 

It is not that we disagree that our region has world values, and national values.  But do they expect us to accede to those regimes for a pittance?  This is the great danger of doing case by case arrangements for a six pack of rangers.  We’re going to be selling our birth right for a [0:16:38.3] if we continue down the road of accepting a six pack of rangers in return for perpetual regimes over our land.  Rather there’s got to be a comprehensive settlement.  If the world and the Australian nation wants to protect Cape York Peninsula sit down with the first nations and do a deal.  Do a comprehensive deal, so that the custody and management of that region can be ensured perpetually.  We can’t just have a deal about the next three years of the funding cycle.  It’s got to be a done about perpetuity.  Because the regime’s going to be there in perpetuity.  Guarantee for our first nations to manage the country has got to also be in perpetuity, and we would be fools if we gave away Cape York to environmental regimes for in perpetuity without getting a guarantee of ecosystem services funding and cultural and natural resource management functions properly funded in perpetuity as well.  So that’s an agenda Balkanu and the Cape York Land Council are pursuing. 

The third part of our work is social and economic empowerment.  It’s been a big focus of my own personal focus over the last 15 years at least: empowering our families, empowering our communities, to get their act together and to really take control over our own destiny.  Because the root of my determination here is not dissimilar to Kevin Gilbert’s book: because the white man will never do it.  That was the title of his book: “Because the white man will never do it”.  We’ve got to do it.  And I want our children, even if we don’t succeed in all of our endeavours, I want our children to be healthy, strong, educated, powerful, so they can continue the fight.  I’d rather a well educated Cape York kid gone through high school, gone through university, to take up the the cudgels in the event that we fail to reach the promised land.  That’s why I’m so determined that we got to stop mucking around.  We got to get our families back together, get the drugs out of our community.  Stop bewailing alcohol.  Because that makes us weak.  We need strong people to fight the fight in the future.  That’s why I’m so absolutely unyielding in relation to this question of social and economic empowerment.  Because everything else I hear is a prescription about weakening us.  We need good soldiers for the rights fight.  And those good soldiers are the kids whose parents are presenting them to school every day, sending them off to boarding school, attending university, and then coming out with the fire. 

We have a range of supports for families, a whole lot of hard thinking and work being done by our people, our young leaders, our next generation of Cape York leaders, they’re all working in this space to support our families, our individuals, and our communities. 

We work with seven other regions across the country who are as like minded as we are.  We know that none of the stuff we do in Cape York is unique.  We know that a lot of the work we do is not as good as what some other people are doing.  When we look around the country we see “Oh gee, these people are doing much better work than we are.  They got a better idea.  Can we talk to them about borrowing that idea?”  And that’s what’s so powerful about our empowered communities approach: Shepparton, Redfern, La Perouse, Central Coast, North East Arnhem Land, West Kimberley, East Kimberley, and the NPY Lands.  We’re working with those eight regions and any other region that might care to join us, to spread ideas and thinking and models for social and economic empowerment.  And our approach to this, we’ve developed a proposal to the Federal and State and Territory Governments, but our whole approach is this: we want remote and urban.  We don’t think there should be a division.  The issues in La Perouse are very similar to the issues we face in Cape York Peninsula, in our dealings with government.  North/South, symbolic/practical, rights/responsibilities.  Our empowered communities agenda is centred dead in the middle of all of those things, and embraces and transcends those apparent divisions. 

Let me turn to the fourth part of our work, which is our culture and language rights. 

[Aboriginal language]. 

Now I want to talk about our culture and languages. 

[Aboriginal language]

Frankie Deemal

Foreigners in ships invaded Cape York. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

White people and Chinese people came for the gold in our land. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

We fought them.

Noel Pearson

[Aboriginal language] 

Frankie Deemal

We call those places Hell’s Gate and Battle Camp.

Noel Pearson

[Aboriginal language] 

Frankie Deemal

But we survived, we are still here. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

During the War they took our people from Hope Vale down to Woorabinda. 

Noel Pearson

[Aboriginal language]

Frankie Deemal

The Government didn’t take care of our people down there. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

Many of our people died there. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

Many of our elders and our children. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

But we are still here. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

Now we are getting our land back. 

Noel Pearson

[Aboriginal language]

Frankie Deemal

White people are putting all kinds of obstacles in our way. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

But we want to return to the land. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

We want to continue our hunting. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

We want to maintain our language. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

So much has been denied us. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

Invaders took land, took our children. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

We mustn’t lose our language too. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

But now our language is dying. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

Perhaps our language will only exist in books. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

Then language will become like something else. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

Unlike how we should hold it firmly, our stories will be devoid of meaning without our language. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

Non‑indigenous people must say that language is only our responsibility.  We respond to them “Why have you always been oppressing our language?” 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

We want non‑indigenous people and government to recognise our languages. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

You want our children to be taught our languages in school, and become literate in language. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

We want government to fund us properly. 

[Aboriginal language] 

Frankie Deemal

And that many aboriginal people can then speak language. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

I have seen it clearly that if you recognise language and teach children language, Aboriginal people return to the language. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

In my home town of Hope Vale the children are learning Guugu Yimidhirr in school.  They speak to their parents and now parents who don’t know their language so well come and want to be taught correct language. 

Noel Pearson

[Aboriginal language] 

Frankie Deemal

In the future we want government to give a hand up and sufficient funding. 

Noel Pearson

The fifth part of our work is constitutional recognition.  And everybody’s familiar with the work of the expert panel in 2011/2012 appointed by former Prime Minister Gillard. 

So we’re at the stage in Cape York Peninsula 25 years later where various streams of hard work on the part of our leaders in the region, our organisations in the region, our people on the ground, the first nations, all these threads of work are really leading to one kind of destination.  So our work in many ways around: empowered communities and relating to land rights in the one claim; in relation to our culture and language rights agenda; in relation to constitutional recognition and natural and cultural heritage rights, the whole streams of work that are underway, some more advanced than others, is heading towards in the next decade a Cape York framework for first nations domestic treaty settlements.  Where the first nations of our region enter into comprehensive agreements with governments in relation to all of these matters.  That is the logic of the work we have been doing over the part quarter century.  And we feel that all of those threads are coming together.  We actually see good precedents already in different parts of the country.  Where first nations have done native title deals we see that as obviously, and you can call it a settlement or you can call it a domestic treaty, but they represent one limb of a comprehensive agreement.  Does not include all of the subjects that first nations will be interested in, but we are at least securing through native title agreements, land rights settlements, under statute, and [0:31:11.1], negotiated with governments, we are kind of securing one part of a comprehensive agreement.  And of course the recent agreement in the south west of our country has really taken the show to another level.  The former Liberal Minister, Fred Chaney, said in any other parlance that would be called a treaty.  Well I say that well it deals with a lot of the subject matter.  There may be other elements, other layers that need to be negotiated.  But some very good foundations are there for first nations to make agreements with government on the full range of issues that affect their people in their future. 

In relation to constitutional recognition I just want to say that I’m really keen to continue the conversation, as Lisa said, in the lunch hour, and have more conversations about this.  But essentially this is the way I analyse the current state of play:  there’s a window of opportunity.  It’s very hard to change our constitution in Australia.  Too far to the left it fails, too far to the right it fails.  If it’s really bad it fails.  If it’s really ambitious it fails.  You got to try and land it in the window.  And in my analysis, position number one is where the expert panel located an outcome, a possible way through.  It’s kind of sitting on the edge of the window on the left, half in/half out.  And there’s a lot of objection to half of it.  There’s acceptance of half of it, but there’s a lot of objection to some of the strongest provisions in the expert panel’s number one position. 

Might I say that the provision that I really pushed in the group, in the expert panel group, to recognise our languages as the original languages of Australia, enjoys really depressing support.  It was not really a hot issue amongst my expert panel members.  I was kind of banging the table in relation to that one.  It got included in the recommendations but the Joint Parliamentary Committee chaired by Ken White has rejected it.  You would think that recognising our languages as the first languages of Australia is an obvious first form of recognition.  But the Parliamentary Committee has abjured that recommendation.  And it remains one of those things that make the expert panel sit outside the window.  But of course the number one objection is to the racial non‑discrimination guarantee.  That is why the expert panel’s proposal is kind of on the edge of the window of opportunity.  Because of the steadfast opposition of the right to including a protection against racial discrimination in the constitution.  My fear has been for the last two years particularly, when it became apparent that we weren’t going to convince the right, the ideological right, in relation to number one, my concern was that Ken and other people were going to try to identify position number two.  Pull the thing into the middle and see if you can retain the integrity of the expert panel’s recommendations but make it more acceptable to the right.  And so that’s what I see the Joint Parliamentary Committee led by Ken White is attempting to do: pull it into position number two.  But there’s no political or philosophical logic.  It’s just base kind of compromise.  It’s just a low compromise.  It’s not anchored in anything.  And as a result what we’ve found is that everybody that tries to find two ends up in three.  And there’s a big constituency for a whole lot of ideas around the two and three in different parts.  Everybody’s got a kind of pin the tail on the donkey idea.  And it ends up in the two and three region.  Frank Brennan, Recognise - Recognise are hunting down a two and three- Tim Gartrell, Alan Tudge, Nigel Scullion.  A lot of the people are expressing models that are trying to pull number one over into the centre, but end up degenerating the model.  And my great view, it’s not even an anxiety, it’s an absolute view, that recognise the hunting down in the lower centre of the window.  A compromise but a low compromise. 

My attempts over the last 18 months, as much as there may be resistance to that and objections to it and so on, I’ve been trying to search for a step right and step up position.  How do we say to the right “Well we’ll account for your objections, but you’ve got to support us on something decent, and something proper and something really substantial”.  And I think of all of the three models here ours is the one up against it.  The Cape York Institute’s idea is the one that’s up against it.  I think there’s a strong anchor in number one.  People say we’ve signed up to the expert panel.  But there’s a strong weight and a whole lot of political convergence now coming around two and three.  And that would be a very, very thin soup.  [Aboriginal language 0:38:44.1], tasteless, without taste.  And I see that the big question for the coming period, and I’ll return to this question, is about well in the attempt to try and shift from the expert panel’s position and find a proposal that can work through the parliament, Frank Brennan and others are, as if on cue, George Williams, Frank Brennan recognise, a whole lot of other people and they’ve got a chorus of people coming over the top, Warren, Tom, everybody’s kind of packing in, on a possible two to three outcome.  They think they’ll get two but it’ll end up in three: Just some kind of return to 1999 preamble of John Howard.  A rerun of the republican referendum indigenous preamble. 

I just want to explain one aspect of the politics here: the four hurdles.  The Australian people are just one hurdle, and they’re the last hurdle in a referendum.  There are three more significant hurdles ahead of them.  The first hurdle is Tony Abbott himself.  We’ve got to lift his position.  And a part of the challenge here is that his strong political capital that he had on the morning of January the 26th this year, he spent later in the day.  And we’re going to the bank account of his political capital and saying “What have you got left to spend on us?”  We’re going to his bank account of political capital and saying “What have you got left for us?”  And the answer is that the ATM has been raided.  Prince Phillip has been given the bank balance, and we’re wondering how he’s going to accumulate enough capital to bring his ambition upwards. 

Because the second challenge is the thing that he faces, which is the party room.  The second hurdle, and is the most profound hurdle in this whole debate, is his party room.  What can he get past his party room and how diminished is he in the wake of Prince Phillip’s knighthood.  And the party room of course using the whole leadership and political capital question and manoeuvrings and everything else, they are using recognition as a pawn in those manoeuvrings.  So that’s the second hurdle we face: the party room. 

The third hurdle is the parliament.  In my view, if you can get Abbott to get something past the party room the ALP will do the right thing and the Greens will do the right thing, and we will have something that can go through parliament.  But I sincerely doubt that the Greens and the Labour Party will let a miserable deal go through, because you need parliament to pass the referendum question first. 

And the third hurdle then is the Australian people, and I think that’s the easiest hurdle.  If we get past the first three, the Australian people are actually more progressive than the parliamentary parties.  They’re already very highly encouraging of recognition.  That’s what the polling says.  The problem is if those hurdles, particularly the party room and so on, cause enough trouble they will influence the people, but in my view as hard as the people will be in a referendum, they still represent the easiest of the hurdles for us to get over. 

Finally: a package of reforms.  I think the presentation that my colleagues gave yesterday or the day before explains all this, and I can go over it in the lunch time.  The idea of this chapter in the constitution; the idea that it might precipitate a set of reforms, legislative, not just constitutional but a set of legislative structures to giving expression to the national body, I just want to make this as my final argument.  This is what, to the question: What are we trying to recognise here?  Let’s ask that question: What are we trying to recognise?  And my answer to that is we’re trying to recognise that.  That is what we’re trying to recognise.  And that recognition of ancien Australia is now being formalised legally, following MABO and through other mechanisms.  We are formalising that.  And we’re a good way down the road of formalising that.  Native Title determinations aren’t the only means by which we give expression to that.  But Native Title determinations are a key part, the recognition of the first nations is now happening through that process there.  And of course with the continuing and further settlement of claims we have the basic footprint of recognition. 

And so I see all of this, it is the first nations that are recognised in the national body.  The legs or the footprint of the national body are the first nations of the country.  That’s my idea of the national body.  We’ve got to have a system for the first nations to have a voice to parliament and have a voice to government.  That is my answer to the question of what are we recognising here.  And of course the whole complicated politics: centre, left, Greens. 

The key proposition I want to put to everyone here is that I don’t expect people not to be sceptical about any of the ideas that are before, that are going around in public debate.  It’s completely correct to be sceptical about it all.  But you got to move from scepticism into active engagement in the debate.  And I say that the outcome out of the July 6 meeting that the Prime Minister and the Leader of Opposition are hosting, the outcome must be this: not an agreement on a model, but agreement on a process of indigenous conferences.  North, south, east, west, north west, north west, south west, south east, south, south east, and the centre, and the Torres, we need a comprehensive set of conferences to take place over the next six to eight months.  And we need to come to these conferences with great scepticism but active debate and engagement.  And if that’s the outcome that comes out of July the 6th I think that would be a good one.  If we can agree that there’s no, we don’t want a model to be cooked up on July the 6th.  We want to start a process of indigenous conferences around the country that eventually leads to an indigenous convention, and all in.  If we have our regional conferences converging in on an indigenous convention then I think that that is a process that needs to be undertaken. 

Thank you for indulging me with the time, Joseph.  I’ve gone well over, and I thank you all for your…

[Applause]