(Cairns... Far North Queensland)
The Catholic Church
'The Author of this document is a priest and lawyer based at the Sacred Heart Monastery, in Kensington, Sydney. He is originally from Gooloogong in the New South Wales Central West and is a member of the Society of the Missionaries of the Sacred Heart (MSC). He worked with aboriginal people at Port Keats in the Northern Territory for four years and until recently managed the MSC Justice and Welfare Office. Contact details are available at the conclusion of this document.'
The paper, Beyond Wik (Nov 1997), was issued by the Australian Catholic Social Welfare Commission so presumably it has the blessing of the Hierarchy of the Catholic Church. The title given to it would indicate that the document purports to offer some predictions in respect of the decision in that case. Whilst the deliberations of the author, Libby Cooney, may well take us beyond Wik, in my view, much of it also goes well Beyond Mabo No 2. Not only that but, it is arguable, the involvement by the Catholic Church has gone well beyond the gospels.
The purpose of my paper is first, to present a point of view based on what I believe to be the assumptions arising out of the decision of the High Court in Mabo No 2, and second, to apply traditional Christian values to assess the involvement by the Catholic Church in aboriginal politics. I will also add a few general comments.
The High Court states in Mabo No 2 that native title will be recognised according to their law and custom. A parallel for the purposes of clarification can be made thus: common law title is a system of title to land the holder of which title is determined according to our common law. Native title is a system of native land title, or communal ownership, the holder (s)) of which title is determined according to their native law and custom. Native law and custom, as it applies to tribal land, does not apply to people of mixed aboriginal descent, thus, that group does not have native title rights according to tribal law. The stumbling block to native title rights for mixed race aborigines is their non-aboriginal heritage. Tribal law does not permit them to ignore it.
Native title rights to land must be confined to those indigenous people who are the subjects of tribal law. The Canadian Supreme Court in R v. Van der Peet (1996) 2 S.C.R. made the following comment on the Mabo judgment:
To base aboriginal title in traditional laws and customs, as was done in Mabo, is, therefore, to base that title in the pre-existing societies of aboriginal peoples. This is the same basis as that asserted here for aboriginal rights.
With this in mind, I take the view that it is unjust to the indigenous people of mixed descent to lead them to believe that they have native title rights to land. That their hopes of owning large tracts of land are raised unrealistically is nothing short of an act of cruelty. Surely these people have suffered enough without being told a pack of lies by people who are supposed to be helping them and who ought to know better. It is common knowledge that the Native Title Act is not a faithful reflection of the decision of the High Court in Mabo No 2 and that in recognising people of mixed aboriginal descent as native title claimants, the Act goes well beyond the limits of native title as determined in Mabo No2.
One of the requirements for establishing native title under the Act is the identification of a spiritual connection to the land. Indigenous tribal aborigines do not come into this world with a spiritual connection to the land; nobody does. The spiritual connection results from years of living in a tribal cultural environment. An indigenous person who has no physical connection to the land and thus has no experience of tribal culture, and all that entails, can never truthfully claim a spiritual connection to the land. A spiritual connection to the land, by definition, presupposes living the traditional law and culture on tribal land.
The much-disputed right to negotiate warrants some comment. This right does not appear in Mabo No 2 nor is it known to the common law. It is a creation of the Federal Parliament. The difficulty with the right to negotiate is that it arises as soon as a native title claim is registered. Thus, even before the bona fides of the claimant are established the claimant is given the right to negotiate in respect of certain activities on the land under claim. The usual ploy is to demand payment in return for the possible extinguishment of native title. These payments are often made in the interests of getting on with the job. It is not good to have the law arranged in such a way as to facilitate corrupt behaviour.
The only way I can make sense of the issue of reconciliation is to regard it as a political device designed to extract further compensation by pointing the finger of blame at the current generation of Australian taxpayers. I have no difficulty with the proposition that one ought to make up for what one has done wrong. I think some manner of restitution is fundamental to all sound spiritualities. But I have no obligation to make up for what somebody else has done wrong. In any case the alleged wrong wasn't done to the current generation of Australian aborigines so what gives rise to their claims.
The Aboriginal Land Fund is a typical example of a Legislative imposition of a penalty on the current generation in respect of the alleged sins of a former generation. If that Land Fund was set up to buy land for mixed-race aboriginal people on the grounds that they have been dispossessed, then I disagree with it. People of mixed aboriginal descent have never had any entitlement to land whether legally, morally, under native law or any other way, so how could they have been dispossessed
But, in my view, a much more damaging aspect of the reconciliation campaign (and indeed the rest of the aboriginal political agenda for that matter) is the effect it is having on the indigenous community. It keeps them firmly entrenched in a victim mode and it generates hatred against the wider community. In other words it robs them of their spiritual freedom. It is not healthy to be a victim and it is not healthy to be filled with hatred. All we do in these circumstances is give our power away. I had the privilege of living with aborigines in the Northern Territory for four years. To be a victim is foreign to their culture and to be filled with hatred is anathema to their spirituality.
At the same time, it is not healthy to be filled with guilt especially when it relates to the actions of somebody else. The so-called stolen generation campaign is a good example of an attempt to generate guilt in the innocent to achieve a desired end. It is a mystery to me how the Catholic Church could accept, and indeed promote, such a simplistic view of an otherwise complex issue.
Perhaps the most mystifying aspect of all is that the Catholic Church, by promoting the aboriginal political agenda, has become an obstacle to the spiritual health of Indigenous Australians. It is arguable that the Catholic Church is acting in a manner, which is diametrically opposed, to the reason for its own existence. The last words Jesus spoke summarises his work in reconciling Mankind to God: "Father forgive them for they know not what they do".
Are any of the Bishops of the Catholic Church suggesting to Indigenous Australians that reconciliation might require forgiveness and some measure of common sense. After all, the people aborigines are directing their anger and demands towards have done nothing to aboriginal people. Where is the justice in that? What ever happened to that commandment to love one's neighbour or, indeed, one's enemy? I have never heard any Bishop speak in true gospel terms to the aborigines. I fear for the spiritual welfare of the Indigenous Community of Australia. If you think about it, not only has the Catholic Church betrayed the pastoralists, it has also betrayed the aborigines. Mother Teresa would say it is the aborigines, by being spiritually impoverished, who have suffered the most; but isn't that always the way.
So what does the Catholic Church have to do to fulfil its obligations in respect of the indigenous people of this country? Answer: Preach the gospel to them. What the aborigines are hearing from the Catholic Church is not the gospel of Jesus Christ. It is a gospel, which seeks restitution from the innocent and declares guilty those who were of good faith or those who were never there. It is a gospel, which uses the rhetoric of political agitation. It is a gospel driven by emotion-based prejudice which appears to be ignorant of the dignity of love and the holiness of sacrifice. It is the same gospel which, a long time ago, had a man called Jesus, crucified. In the immortal words of Ned Kelly as he resigned himself to his fate: "So its come to this then. Such is life."
It has become increasingly clear that the involvement of the Catholic Church, in aboriginal politics is a matter of serious discontent, not only in the Catholic community, but also in the wider community. Anyone with a native title claim over their property has obvious concerns. But there are many others with no personal interest in native title who are also disaffected with the role adopted by the Catholic Church. Their reaction ranges from mild irritation to outright anger. What is happening in some places is that people have ceased making financial contributions to the Church. There is no doubt that the involvement of the Catholic Church in the aboriginal political agenda (and of course the child abuse scandals) has changed forever the place of the Catholic Church in Australian society.
Brenden T. Walters (MSC)
PO Box 13, Kensington. NSW. 2033
Written and Authorised by Selwyn Johnston, Cairns FNQ 4870