Just last week, I posted on the topic of Noel Pearson and native title. Unfortunately, I had to rely on the ABC’s sources for the speech contents. Today I have discovered that the Cape York Institute has published a transcript of the speech online, and can be found here. I will post some clippings below here, but interested individuals are encouraged to download the paper from the CYI.

The first principle of the Mabo case was to confirm white land rights. Challenging the many titles enjoyed by the settlers and their descendants was not made justicible in the courts and the relentless reality in the High Court’s decision was to confirm that colonial dispossession could not now be disturbed. The second principle of Mabo was to say that, of course, the remnant lands under the period advanced by the Court should now be forthwith accorded to its traditional owners. The remnant lands where extinguishment had not occurred and the people had not been annihilated should forthwith be determined in favour of its traditional owners. So the structure of the compromise was that the original peoples were to get what was left over. And the third principle articulated by the High Court in the Wik decision was to say that there are various categories of land such as pastoral leases and national parks where there was a possibility of co-existence, co-existence of the crown grants with the original titles held by the traditional owners. That should have been the structure of the compromise. The colonists keep what’s theirs, the Indigenous keep everything that’s left over and there should be honour in relation to the determinations that should result in the wake of the decision and there are categories of land where titles can co-exist and the formula in the Wik case gave that co-existence, gave superiority in that co-existence to the holder of the crown rights. So wherever there was an inconsistency between the native title and the crown grant, the rights under the crown grants superseded the native title. I felt that given the reality of history and the possibilities for the future and the fact that the ongoing process of dispossession would continue as long as there was not a settlement of remnant rights, I felt that the compromise was one that the country ought to seize upon. It was the only compromise available without resort to anything but the courts of law. It was a compromise proffered by our highest institution as a means of resolving the two centuries’ grievance; and all of our febrile hopes rested on the idea that the country might accept the basis of that compromise, after all, we argued in the wake of the Mabo decision. After all, the basis of this compromise had its foundation in the law of the colonists. It was the law of England which respected Indigenous title to land. It was the law of England that apprehended the Aboriginal peoples as following the acquisition of sovereignty now subjects of the British Crown but then also entitled to the protections offered by British law and that principle protection being that those in occupation of land should be presumed to be in possession. And we thought the people of Australia would draw upon their own legal traditions to say that at this juncture Mabo ought to be a cornerstone for reconciliation and a new relationship between the Aboriginal peoples and the rest of the country. Mabo provided to this country what I described at the time as a once in a lifetimes opportunity for a nation. Nations only get one chance like this to get it right. And we squibbed it. Over the past 18 years we have seen a grudging determination on the part of the Australian people to put to absolute proof every native title claim launched by traditional owners in relation to their remnant lands. There have been court cases that have cost far in excess of the value of the land in the market place. A pastoral lease costing $2 million cost $12 million worth of case law.

[…]

[Mabo revealed that] No peoples, whatever their cultures and social organisation and religions and beliefs and relationships to country, occupy land without possessing it. All peoples are to be accorded respect by the common law in respect of the occupation. There is no justification for a racial discrimination that gave priority in recognition to certain cultures in societies and not to others. But then having made that breakthrough, the Australian law immediately descended into an estimation of discriminatory exercise in relation to the nature of the title that could be enjoyed pursuant to that occupation. So in the Australian law that has accumulated over the last 18 years, there is a bizarre jurisprudence that posits the idea that native title in this country is the sum total of whatever berry picking rights Indigenous claimants must be able to prove by reference to their traditional laws and customs as they existed in 1788. So, in the Australia law, the Indigenous hardly own the economic property on the lands they successfully claim. And they are left in this bizarre historical zoo by virtue of the mistaken idea that native title is to be determined by reference to traditional laws and customs. You see, the key question that has been misunderstood in the academic and judicial discussion of native title in this country is this: even as we have accepted that traditional rights survive the acquisitional sovereignty by the crown, even as we all accept that, that the rights survive the acquisition of sovereignty under what is known in the Canadian law and in some of the Australian discussion as the doctrine of continuity, even as we accept that, the mistake arises in relation to the question of what continues? Is it those rights and interests that are established as a matter of proof by reference to the traditional laws and customs of the group? Or is the right to continue the occupation of the land pursuant to the authority of one’s traditional laws. Is it the occupation that founds the right to possession that survives the acquisition of sovereignty?

[…]

[Regarding social welfare, over-representation in jails, and the ‘gap’], These are problems that are not going to be turned around in short order but what we must first realise before we pursue the policies that have some hope of working is that we have made many efforts in the past. We have come to many similar conclusions about the immorality of this situation in the past. We have come to many sincere junctures where we’ve said things have got to change, things have got to get better and our policies and programs and budgetary commitments have got to be renewed. And yet like groundhog day we come to that juncture again five years later when a whole range of new indicators illuminate a deteriorating situation. We have long argued from our part of the country that we have got to get our thinking straight first and our critique of welfarism has been central to our re- thinking, it was obvious that we needed welfare reform but the problem of relegating the country’s original peoples to a position of mendicancy was not just a symptom of the problem, it was the cause of many of our problems and if it wasn’t causal of many of our problems, it certainly exacerbated any existing problems we had and certainly frustrated and prevented any of the solutions that we proposed so we had to get on top of welfarism, substance abuse and the social breakdown that was occasioned, particularly in the past three to four decades. It was my analysis, and it still is my analysis, that through 200 years of mean history in the teeth of inhumane racism, aboriginal people had as the slogan said they “survived”. They had mustered together some strength that had seen them survive in the teeth of a heartless society. We had some strengths in the ‘50s and the ‘60s and those strengths were largely social and family-based strengths where people would continue to fulfil their responsibilities to their children and had taken responsibility because at the end of the day responsibility was all that they had, even if their rights were not fully accorded to them. I was struck by an analysis by the conservative African American intellectual, Shelby Steele, that struck a chord with me in relation to what might have happened at the moment of our citizenship in 1967. I think a grievous mistake was made when the doors of citizenship finally opened. Instead of holding on to our responsibility and enjoying our newly guaranteed rights we ushered in an era where a combination of white guilt and black victimhood made a bad situation worse and deferred the day when we would take our rightful place in the country because no salvation at the end of the day was to be found in white guilt and black victimhood. We keenly understood that victimhood was ultimately not a posture that would benefit our people, it was not a mentality for continued survival. If our ancestors had adopted a mentality of victim hood we would never have survived colonisation but the tragic deal struck in the argument of Shelby Steele in the wake of the 1965 Civil Rights Act and with a parallel in the wake of the ‘67 referendum in this country was this Faustian pact we made about white people were going to redeem their history through guilt and the aboriginal peoples and black Americans would cultivate an outlook unfortunately that had too many strains of victim hood within it. So we have been pursuing a responsibility agenda.

[…] [The] great dialectical struggle between W.E.D. Debois and Booker T. Washington… that great struggle between those two ideas in the history of African Americans and the United States, [has] consumed my thinking. […] We needed strong recognition of our rights and a strong affirmation of our responsibility and in that struggle, between those two ideas. I suppose I personally fall on the Booker T. Washington side of that, that debate. I fall on that side of the debate because it’s the uncool side. I fall on that side of the debate for this argument, so let me propose this argument: It is because at the end of the day it is taking responsibility for yourself that is your most guaranteed defence, it is your most guaranteed position and if we, and people of our ancestors, can draw upon our history for confirmation that people can survive provided that they have the strength of their own responsibility, even in the teeth of oppression. I think that one of the causes of social unravelling in our communities has been the idea that somehow it was the Australian welfare state that was going to save the indigenes and once we internalise the idea that somebody else was going to save us, we had internalised a fatal conceit.

In its entirety, the speech considers issues with greater complexity than the ABC – and by consequence, SettlerColonialStudies.org – reported.

The coverage that Noel Pearson receives in the media, when he even gets any at all, is consistently brief and to scandalising effect (extracts of this particular speech, for example, were flashed around cyberspace mostly because of the strange and slight parallel drawn in the speech between Aborigines and the world’s Jewish people). This has transformed Pearson into somewhat of a target for intellectuals and commentators, white and black, radical and conservative. See, for example, the most recent example of this, in Arena Magazine: in his short article, Geoff Sharp sees Pearson’s ‘liberal’ concern with individual Aboriginal achievement as one ‘[in]consider[ate] [of] the conditions for continuity of Indigenous social forms’. Pearson’s doctrine, Sharp goes further, ‘contribute[s] to a massive shift in public opinion towards a neo-assimilationist trajectory’.

This blog will not get into either side of the debate: Pearson’s speech is of interest to this blog only because it engages with matters of land rights and the conditions of indigenous suffering – and moreover, it includes comparisons to other settler contexts. This blog will, however, issue a warning to general readers and those in the media: be careful, the picture of Aboriginal Australia we get is so seldom complete, and it is cause for massive concern.