Notes for talk by Rodney Gibbins entitled “Treaty and Truth-Telling. The next steps for Tasmania” given to the Royal Society of Tasmania at the Sir Stanley Burbury Theatre (University of Tasmania) on 4 December 2022. Content was provided by the speaker.
In this lecture, I will outline the responses of successive governments to Aboriginal issues and consider the needs and ambitions of the Palawa community in the development of a Treaty and Truth-Telling process.
For 60,000-plus years the Palawa people practised our sovereignty across this land of Lutruwita. All of this changed with the arrival of the white man. The invasion radically changed us in a very short amount of time. Our culture was interrupted; our language, freedoms and country were taken from us, by force.
The continuing intolerant, contemptuous views and actions of successive governments rendered us almost voiceless and powerless on our own Country. This meant that Palawa ownership, use and management of Lutruwita lands were usurped through violence, ethnic cleansing, and exile.
During and after the British invasion, the sovereign entitlements of the Palawa over this country were ignored. During the next 200 years of the occupation of Lutruwita, the Palawa have been discriminated against and denied our human rights to exist as a people, to own our own heritage, to live and be treated with dignity in our own country.
The first wins for justice
We began the contemporary fight back in the early 1970s. Growing a political and social movement within the Palawa community that demanded recognition, acceptance, and autonomy. The community began to build its own political knowledge and skills as a people. After launching effective campaigns using the media and influencing public opinion, the views and attitudes of government and its institutions – along with those of the broader community – began to change.
Our newfound political skills and ability to influence attitudinal and social change have had significant outcomes which have evolved over time.
The community have had several great successes over the years such as the return and cremation of Truganini’s remains, the repatriation of the so-called Crowther collection, and the 1995 return of Aboriginal land. These successes were brought about by consistent and purposeful negotiations by the Palawa community. But all were different in the way they were received and dealt with by Government.
Truganini, who witnessed the destruction of her people and her culture, pleaded with government authorities to have her ashes scattered in the D’Entrecasteaux Channel upon her death. This, as we know, did not happen. Her remains were exhumed and displayed in the Tasmanian Museum and Art Gallery (TMAG) for many years. There were protracted attempts to reclaim her remains to fulfill her wishes for burial at sea. These actions coincided with the renewal of the Palawa struggle for recognition and place.
In 1976, on the 100th anniversary of her death, she was finally cremated, and her ashes scattered in the D’Entrecasteaux channel. This was an enormous achievement for the Palawa community at that time. However, regrettably, and certainly inappropriately, it was the government that made most if not all the decisions about the timing and procedure of the ceremony. Only a small number of invited Palawa people and government representatives attended her cremation and the spreading of her ashes. It was a closed service that denied the Palawa community its right to farewell one of our most tragic and abused ancestors.
It was not long before the Palawa community turned its efforts to regaining more of their ancestors and releasing their spirits from their confinement at the TMAG. The TMAG and the government fought the community at every step on the way in returning these ancestors to our people.
It took the intervention of parliament in 1985, responding to ongoing demands from the Palawa people, to force the TMAG to hand over the Crowther collection. The Crowther collection of Palawa remains, consisting of 33 skulls and three skeletons, was released to the Aboriginal community under its own terms and control. We were able to welcome home our old people with our own spiritual and ceremonial practices, to set their spirits free at long last. This led to the largest gathering of Palawa in Lutruwita in over 200 years at Putalina (Oyster Cove) to witness the cremation of our long-suffering ancestors.
During all this time the community continued to lobby and persuade successive governments for the return of land to the Palawa people. This culminated in the Aboriginal Lands Act 1995. Twelve areas of land were returned to the community. This included Mutton Bird and other islands in the Bass Strait, historic sites such as Putalina (Oyster Cove), Piyura Kitina (Risdon Cove) and three sacred cave sites.
The Aboriginal Land Council of Tasmania (ALCT) was also established under the Act to hold title to the lands on behalf of the Palawa community.
It has been our experience that the personal commitment of political leaders has been pivotal in delivering these crucial advances in Aboriginal affairs in Tasmania – as well as the critical reforms we have seen since then.
It is also important to acknowledge the support and actions of a large number of non-Aboriginal individuals and organisations around Lutruwita who supported the Palawa community in its endeavours to gain the return of its ancestors, to protect our cultural heritage, and to secure land rights and correct injustices faced by the community.
There are to many to acknowledge here by name, but to mention a few; I acknowledge the leadership of former premier Ray Groom who introduced the 1995 land rights legislation to parliament after broad consultation around the state. I also acknowledge former Legislative Council member, the late Tony Fletcher, who also championed the 1995 land rights legislation.
The governments of Jim Bacon and Paul Lennon were equally effective in broad community consultations that led to the hand-back of Wybalenna and Truwuna (Cape Barren Island), the parliamentary apology to the stolen generations, and $5 million compensation for the victims. At that time, you could say that engagement with the Palawa community was characterised by respect and understanding.
A loss of traction and respect
However, since 2016, I fear we have gone backwards, that this culture of respect and understanding has been sorely damaged.
In 2016, then premier Will Hodgman delivered his ill-informed Australia Day speech. In his speech, he announced a ‘reset’ of the government’s relationship with the Palawa community. This ‘reset’ and the manner of its announcement and implementation led to exasperation and anger within our community and caused unnecessary and continuing conflict with the government.
I believe this ‘reset’ has been aimed at eroding advances made by the Palawa community. Hodgman’s methods have undermined the collective approach to rights, justice, and advancement of Palawa people in this state. The ‘reset’ agenda identified five priority areas which, according to Hodgman, were informed by the themes of recognition, reconciliation, and real outcomes. These areas were:
- a focus on Tasmanian Aboriginal history and culture in the delivery of the Australian curriculum
- increased efforts to close the gap in disadvantage between Tasmanian Aboriginal people and the wider community
- exploration of joint land management arrangements and review the current land return model
- constitutional recognition of Tasmanian Aboriginal people
- a new approach to Aboriginal eligibility.
The first two, Aboriginal history and culture in the curriculum and increased efforts to close the gap, are important but should be seen as what government should be doing as business as usual. In fact, the Tasmanian government signed onto Closing the Gap of life outcomes between Aboriginal and non-Aboriginal Australians eight years before in 2008.
The third priority, exploration of joint land management arrangements and review of the current land return model. I suspect this is more about breaking down the influence of ALCT and removing the Aboriginality requirements in the Act rather than positive revision of the Act to give benefit to the community.
But it is the last two priorities that I wish to explore more fully today.
Firstly, constitutional recognition. In December 2016, the Constitution Amendment (Constitutional Recognition of Aboriginal People) Act 2016 came into force. The Act inserted a new preamble into Tasmania’s Constitution Act 1934, and I quote:
“And whereas the parliament, on behalf of all the people of Tasmania, acknowledges the Aboriginal people as Tasmania’s First People and the traditional and original owners of Tasmanian lands and waters; recognises the enduring spiritual, social, cultural, and economic importance of traditional lands and waters to Tasmanian Aboriginal people; and recognises the unique and lasting contributions that Tasmanian Aborigines people have made and continue to make to Tasmania.”
These are nice enough words. However, they were drafted and inserted into the Constitution Act with no consultation with the Aboriginal people of Tasmania. The failure to consult with Palawa people – let alone seek and support the leadership of the Palawa people – actively disempowers our community and repeats the mistakes of colonial and 20th-century history. Moreover, a preamble in an Act, however nice, has no legal weight. It does not have separate legislative effect but is used merely for clarification or to give direction or purpose to the Act. It is neither enforceable nor justifiable in a court of law. It may recognise Aboriginal people, but it grants them no rights or legal recognition.
Secondly, the Hodgman government’s new approach to Aboriginal eligibility, its so-called ‘inclusive eligibility policy’. It should be pointed out here that, historically, white society has always exerted its ethnocentric opinion about who or what we are. No other people in Tasmania are defined by government, only the Palawa.
Traditionally, to be eligible to access Tasmanian government Aboriginal and Torres Strait Islander programs and services, you must be an Aboriginal or Torres Strait Islander person. This means you:
- must have Aboriginal and/or Torres Strait Islander ancestry
- must self-identify as an Aboriginal person and/or Torres Strait Islander, and
- must be recognised as an Aboriginal person and/or Torres Strait Islander by the Aboriginal or Torres Strait Islander community in which you live or have lived.
This is the same three-point legal test developed by Australian courts over a number of years and used across all Commonwealth agencies.
Changes to Aboriginal identity and eligibility in Tasmania have undermined this sound approach, one accepted by Aboriginal communities across Australia. Tasmanian government agencies only require you to complete a form consisting of a statutory declaration and a confirmation statement completed by a registered Aboriginal organisation whose primary purpose is to support Aboriginal people, to determine eligibility. This requirement for organisational confirmation of Aboriginality resulted in such a sharp increase in requests that many organisations stopped providing the service unless they were paid to do so. Ironically, the service was previously provided free of charge by the Office of Aboriginal Affairs (OAA) supported by the Tasmanian Archives & Heritage Office, but this was discontinued after 2016.
It seems, however, that the three-point legal test has not been fully applied. In most cases, either confirmation by an organisation or self-identification are sufficient to satisfy Tasmanian government agencies that a person is an Aboriginal person. If a person or government agency has concerns that a person may not meet the three-point requirement, what happens? I can’t find any requirements that evidence be produced to confirm a person is an Aborigine.
This raises serious questions about due diligence when assessing claims to taxpayer-funded programs and resources. More importantly, it places in risks the transfer of Palawa lands to non-Aboriginal people who are claiming to be Palawa. And it calls into question who the government is speaking with when it claims it is consulting with Palawa people.
These serious issues have arisen because the critical stages of confirming Aboriginal identity have been ignored – including recognition by the Aboriginal community itself. Why? I can only conclude it is because the government continues to hold the ethnocentric view that it decides who we are, and we cannot be trusted to do this ourselves.
The Uluru Statement from the Heart
I now turn to a burning national issue that affects all Aboriginal Australians, the Uluru Statement from the Heart, and the impending referendum on a First Nations Voice to parliament.
Five years ago, the Uluru Statement from the Heart was proclaimed by representatives of Aboriginal peoples from across the nation. The statement asserts the sovereignty of Aboriginal people over the Australian continent and its adjacent lands. It affirms that this sovereignty has never been ceded or extinguished and that it co-exists with the sovereignty of the Crown.
The statement seeks three reforms to empower Aboriginal people to take our rightful place in our own Country and to have power over our own destiny.
First, the statement calls for a First Nations Voice enshrined in the Australian constitution.
Second, it calls for a Makarrata Commission to supervise the process of agreement-making between governments and First Nations.
And third, the statement endorses processes to ensure truth-telling about our history.
The federal Minister for Aboriginal Affairs Linda Burney has stated that the Uluru Statement will be enacted in full by the Albanese government. In June, the government committed to a referendum on the First Nations Voice in this term of federal parliament. In July, Aboriginal Senator Pat Dodson was appointed Special Envoy for Reconciliation and the Implementation of the Uluru Statement to deliver on this promise.
The voice is the element of the Uluru Statement that has gained significant momentum over the last few years. Truth-telling has some small traction in the broader community, whereas the Makarrata Commission or treaty development is largely unknown.
I am a supporter of the voice, but I believe there are critical questions to ask: What is a voice? What is it meant to do? What powers will it have? How will delegates be selected and how do we guarantee community authority over the people who will be representing us?
We need to answer these questions before we go to the Australian people and seek their support. Since federation, there have been 44 proposals for constitutional change. Only eight of these have been successful. One of these was the 1967 referendum to allow the Commonwealth to enact laws for Aboriginal people and to include Aboriginal people in population counts. That referendum received an historic 90.77 per cent of the vote and was supported by all states and territories. I would hope for a similar success for the voice, but right now I do not think this is possible.
The Reconciliation bridge walks of 2000/2001 demonstrated that many in the Australian community are committed to reconciliation and justice for Aboriginal people, but this is by no means universal. When the referendum is announced, the forces of racism will be loud and divisive. If the voice is to succeed, it must be clearly defined and communicated to the Australian people so that any campaign of fear or – perhaps more invidious – apathy cannot prevail.
Prime Minister Albanese has stated that the referendum to enshrine the voice should be “simple and clear”, that the question put to the Australian people requires a simple ‘yes or no’ answer. He has suggested a question like ‘Do you support an alteration to the constitution that establishes an Aboriginal and Torres Strait Islander voice?’.
It is hard to believe that the Australian people will vote for a voice when they do not know what it is. The people need to know why it should be pursued through constitutional amendment and what it will actually achieve.
The Commonwealth government already has the power to establish a voice. It does not need a referendum to give it a power it already has. Apparently, the thinking, which has not been expressed publicly, is that endorsement of a voice via a referendum approach cements the entity forever after. That is naïve.
Referendum outcomes can circumscribe government actions, but they do not necessarily commit governments to action. They merely give parliament a power to do something IF the parliament wants to. Not unlike the current situation, it will be the parliament that will have the power to pass laws with respect to the composition, functions, powers, and procedures of the voice. So, it would be fair to say this voice will operate and function at the will of government.
Additionally, there is nothing permanent about the voice that is established by referendum. Let me give you an example. Section 101 of the constitution provides ‘there shall be an Interstate Commission’ but none exists and has not existed since 1950. A referendum for voice does not guarantee a voice will survive. What will happen when the voice is drowned out or reduced to a whimper, what good will that voice be then?
On the matter of what a voice will achieve, this is so far unclear. It appears that the voice model cannot return land, cannot make laws, cannot protect heritage, cannot deliver services, cannot administer revenue.
To date, there have been no nationwide discussions on what a voice will look like, what will be its power to make and enforce decisions. There does not seem to be any ongoing conversation with the Aboriginal community now that we have settled down and have had time to think about the voice.
Without a transparent nationwide debate and without clear communication and education, the referendum may not succeed – and the outcomes may not meet the aspirations of Aboriginal people.
Truth-telling and treaty
A positive outcome from the Uluru Statement is its entreaty to states and territories to take steps of their own to develop policies on treaty and truth-telling. Here in Tasmania, we must progress both matters, led by Palawa and fully and appropriately resourced by government.
In November 2021, the Gutwein government published the report Pathway to Truth-telling and Treaty. The report has had a mixed reception. My own view is that it shows bias towards a select few opinions, lacks a strong positive outlook and fails to suggest ways forward that can truly ignite discussion and engagement with the Palawa and the broader Tasmanian community. Despite these objections, the report could make possible what has never before been possible in Tasmania – a treaty and the truth.
Along with the Palawa community, I support some of the report’s recommendations that deliver positive next steps. These are:
- a working group of leading Palawa representatives to begin negotiations for the establishment of truth-telling and treaty commissions, leading to:
- a truth-telling commission whose makeup should be all Palawa, and
- framework legislation establishing a treaty commission comprised predominantly of Palawa.
In his last State of the State report Premier Gutwein provided an update following the release of the Pathway to Truth-telling and Treaty report.
He advised the parliament that, while there were a variety of views, the feedback he had received indicated broad support to develop processes to establish truth-telling and treaty. He said the feedback was clear that both must be Aboriginal-led and have Aboriginal ownership. He explained that these would not be easy tasks and it would require goodwill from all sides to take these matters forward.
Consequently, he decided that the next step would be to establish an Aboriginal advisory body, representative of the Tasmanian Aboriginal community, which would work with the government through a co-design approach to establish both processes. He went on to say the body would also provide advice on the other recommendations in the report and on matters that affect Tasmanian Aboriginal people.
This advisory body, in my view, must in no way pre-empt any recommendations or decisions that arise from the proposed treaty and truth-telling commissions. Should it do so it would completely de-value and undercut the work of these commissions.
Premier Gutwein also stated that the government was firm in its view that the truth-telling commission, when established, would not be tasked with determining Aboriginality or eligibility, and that the government remained committed to its current (and what it calls) inclusive eligibility policy.
Taking Aboriginal identity off the table is to again deny Palawa leadership and to impose a white people’s agenda on our people. Importantly, our identity, who we are, is a crucial part of truth-telling. It goes to the heart of our history, before and after the arrival of white colonists, and is key to how we direct our own future. If we cannot say who we are, we cannot in any way speak the truth.
So, where do things now stand in relation to truth-telling and treaty?
The Minister for Aboriginal Affairs, Roger Jaensch, arranged a meeting on Friday 29 July 2022 for organisations registered with the Office of the Registrar of Indigenous Corporations (ORIC) and invited them to send two members from each organisation to attend this meeting. The minister then invited attending organisations to nominate two people each from whom the Minister would choose to sit on his Aboriginal advisory body to develop a way forward for treaty and truth-telling processes.
Those names were forwarded to the government and considered by the minister under a set of criteria only known to him. The Minister announced an organisational based committee of 6 people selected by government on Friday 2 December. This committee does not have the support or respect of the palawa community as it has been government chosen and not community elected. And there are no guarantees that all these people are indeed Palawa. Jaensch’s group can be considered as nothing more than a government prop, manipulated to undermine or bypass the Palawa people’s voice.
How then does this Government led process fulfill the Governments promise for this process to have Aboriginal ownership and be Aboriginal led by representatives of the Tasmanian Aboriginal Community. This announced committee does not have the authority, respect, or cultural license to speak on behalf of the Palawa people.
A community meeting arranged by the Tasmanian Aboriginal Centre (TAC) was held on the very same day as the minister’s Friday 29 July meeting. The meeting was chaired from Launceston with Palawa community members joining online from Burnie, Hobart, and Cape Barren. Around 150 people took part in the meeting. They echoed concerns that Indigenous community voices and perspectives were not being heard and not being sought out. The community felt it was being ignored with the results that, once again, Palawa were being removed from power and pathways to justice.
To overcome this, at that meeting the community encouraged Premier Rockliff to take over the Aboriginal Affairs portfolio and chose 11 delegates to form a group to represent them and to negotiate a plan for treaty and truth-telling in Lutruwita. The delegates were chosen from across Lutruwita, including the islands. They have adopted the Palawa name tuylupa tunapri – ‘to light the fire of understanding’. It is important to note that tuylupa tunapri are community representatives of the whole Palawa community. They represent the genuine voice of the community and are not constrained or directed by the views or interests of individual organisations.
The tuylupa tunapri delegates are keen to work with the government and other groups to legislate for a treaty and to establish a truth-telling commission, which tells the truth of our history, people, culture, and country. The group has also have invited the premier to meet with them on several occasions, which he has failed to do so far.
It is my strongly held belief that a treaty informed by community input will change the political landscape for Palawa, giving them more power and control over their own Country and their own destiny. A treaty informed by community input and a truth-telling process will help identify and eliminate the barriers that have prevented Palawa from achieving social, economic, and cultural equity.
The symbol of a treaty has value, but it is the content of the treaty that must be carefully crafted if it is to build justice and equity. This treaty, to have real and enduring impact, would include confirming and acting on those statements in the preamble of the Constitution that acknowledges the Palawa people as Tasmania’s first people and the traditional and original owners of Tasmanian lands and waters. Including recognition and acceptance of the enduring spiritual, social, cultural, and economic importance of traditional lands and waters to Palawa people.
Further areas that should be discussed for inclusion in a treaty would include sovereignty, power sharing, ownership of Aboriginal heritage and culture, meaningful land returns, and reparation.
Sovereignty is the foundation stone for the implementation of Treaty and that sovereignty would be expressed through sharing land, power, and wealth in Tasmania. It would also confirm the sovereignty of Palawa as a people. Hopefully the result would be empowerment and self-determination for the Palawa community.
The treaty would of course support meaningful land returns. This could include all crown Lands being returned under Aboriginal title. It may also include land brought on the open market for cultural protection or economic development. There would also need to be agreed financial means to protect, repair and develop returned land.
Any treaty would include Palawa ownership of Aboriginal Heritage and Culture in this state. This would incorporate cultural authority over all returned lands including over national parks and other public lands not yet returned. This would also include the right to undertake cultural practices such as fishing, hunting and other social practices on lands and waters in this state.
Reparations would include a guaranteed permanent financial resource, as a starting point let’s say 3% of GDP. This would be in part compensation for loss of land and destruction of a vibrant society.
Sharing of power should also be up for discussion. One suggestion is to have a number of designated Aboriginal parliamentary seats at the commonwealth and State governments level.
Certainly, a treaty between the state of Tasmania and the Palawa is supported by Palawa people, and I think many Tasmanians. We would expect that the content of a treaty would dignify, honour, and do justice to the Palawa.
The process for a treaty should also be collaborative and respectful. It should provide equal resources to the state and to the Palawa to research, consult, negotiate, and seek expert opinion. State-wide engagement with the Palawa community is vital – and should be fully resourced to be undertaken by the community itself.
While truth-telling and treaty are linked, the commissions for each should be totally separate.
Truth-telling is long overdue. The need for truth-telling has been a consistent and strongly expressed view of the Palawa community in Tasmania. It will provide a better understanding of the injustice and intergenerational trauma suffered by the Palawa. This is not the ‘black armband of history’. It is truth we wish to speak and that all Tasmanians must hear. As a society we must demonstrate the courage to speak and the humility to listen.
The truth-telling commission, appropriately led, structured and resourced – will create a permanent and official historical record of the past. It will clarify and amend the current historical record, firmly rejecting the myth that with the death of Truganini on 8 May 1876, that 60,000-plus years of Palawa society and culture was removed from the face of the earth. It will shine a light on the genocide and rape of our people, but also on the extraordinary acts of Palawa resistance, resilience, and survival. It will reveal the true actions of successive Tasmanian governments and the complicity, silence or ignorance of the broader community. As a result, it will help form our collective story from colonisation and dispossession to, it is my strong hope, a future that is characterised by mutual understanding and healing.
In the context of this truth, the commission should be empowered to make recommendations on redress and reforms between Palawa, government and the broader Tasmanian community. It should make recommendations for healing, including legislative, education and systemic reform and on other specific matters that may be included in treaty negotiations. Importantly, the story laid bare by the commission should compel the state of Tasmania to offer its deepest apologies to the Palawa for past and ongoing injustices, abuse, and discrimination.
However, the success of the commission will depend on how it is structured, resourced, and empowered. The commission should have the leadership of Palawa people who have the respect and recognition of our community. It should be resourced to fully engage with the community, provide a safe place for those speaking out, providing appropriate support for those experiencing trauma, and acquiring the expertise it needs. It must be able to compel government bodies and officials including politicians to give evidence – and to provide documentation – on the 200 years of oppression of the Palawa in Tasmania.
There should be no doubt in anybody’s mind that the Palawa people have been subjected to invasion, genocidal practices and oppression perpetrated by or sanctioned by the invader – both colonial governments and the modern state.
Moves in Tasmania to put in place truth-telling and a treaty suggest that Palawa and non-Palawa Tasmanians have finally agreed that it is time to address these issues. It has been a long time coming and it is a matter of urgency.
The way forward, in my mind, is clear.
Pursue treaty and truth-telling led by Palawa, informed by Palawa and with the heart of Palawa at the very centre. These will allow for our own statement from the heart.
The government needs to demonstrate goodwill as we embrace this historic moment. They should desist from imposing on Palawa people white definitions of who we are.
Put into abeyance any proposed legislative changes to the Aboriginal Lands Act particularly those around Aboriginal eligibility requirements.
Proceed as quickly as possible with a new Aboriginal Heritage Act to halt the continued destruction of Aboriginal heritage and culture.
Recognise and resource the community-elected representatives within tuylup tunapri.
It is time for Tasmania to stop living an historical lie. The very notion that the British could simply come and take our land and resources is now understood by many Tasmanians to be a breach of the fundamental principles of human equality and international law.
The moral wellbeing of Tasmania is poorer for its failure to come to terms with its true past and the persistence of racism and denial in the present. The ongoing failure to respect the humanity of the Palawa purely and simply diminishes us all as people and a society.
It is time for our state to understand the true history of colonisation: a history of genocides, massacres, dispossession, and discrimination.
To know the story of the Palawa will allow us all, as Tasmanians, to craft new story, a more complete, open, and honest story. On this story we can build a new story of mutual respect and a hopeful future in which all of us are equal and equally valued.
Tasmania has never reached a just and honourable position with the Palawa community. Perhaps, now is the time.