Deportations prevented, but dispossession sidestepped by High Court of Australia

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On February 11, in a split ruling and with clear reluctance, the High Court of Australia decided that First Nations people on this continent cannot be considered “aliens,” despite the fact that they were born in other places. Now, this seems to be so obvious that it’s beyond debate. The fact that the issue ended up in front of the court shows that it is not. The reason for this has an ugly name: “genocide.”

Yet the justices of the court simply continued half a century of dancing around the inconvenient truth that the Settler State called Australia has no real legitimacy, according to legal-political principles and practices established in the era of the Roman Empire. The people living on country — any country — have a right to be there, right to be recognised, and must be heard.

Racism has been the weapon for 250 years to justify invasion, land theft and plunder of this continent. From early colonialism to global imperialist rule, capitalist powers have been complicit in their use of white supremacy. The 1% exploited the lands, resources and cheap labour of the First Nations to became prosperous players in the global economy.

The facts of the case are not in contention. Two men, convicted of relatively petty offences in a notoriously racist legal regime, happened to be born in, respectively, Papua New Guinea and Aotearoa/New Zealand. Each had an Aboriginal or Torres Strait Islander parent. Both are recognised as being from country, indeed one is recognised as a Native Title Holder. Yet, under the xenophobic, racist regime of Home Affairs Minister Peter Dutton, both were “deemed” to be citizens of those respective countries and imprisoned, pending exile. Removed from country against their will.

Exile defines the ongoing race wars on this continent. Murder, of course, is the ultimate exile — dead people can’t lay claim to territory. And there was much of that in the history of conquest. Heard of places like Dead Man’s Flat? Haunted Hills? Skeleton Creek? Massacre sites, usually hidden in plain view. The English colonisers knew what they were doing. In fits of drunken triumph, some would boast of it.

But generally, it was the consensus that it was all best kept quiet, perhaps referenced in decaying parchments in the depths of State archives. How inconvenient is it that all sorts of people — some Aboriginal — are now delving into those archives?

How inconvenient that some were standing up and protesting — like William Cooper, who led a protest against Australia Day in 1938; the heroic men and women who escaped Cummeragunja Mission, which was run like a concentration camp; the Gurindji people, who went on strike at Wave Hill Station. Or Eddie Mabo and the fighters who won legal recognition that people were here at the time of colonisation, and that they had rights to country.

Despite itself, the High Court has, since 1992, been compelled to affirm that Aboriginal and Torres Strait people, who have lived in this place for at least 75,000 years, had to be recognised in the Common Law.

Colonialism and imperialism are synonymous with White Supremacism. Europeans carried with them the notion that they were superior, and that merchant capitalism was the way to run the world. Later supplanted by industrial and finance capital, nevertheless, the assumption was that capitalism was superior. Europeans were, collectively, a “Master Race,” and every other society was “inferior.” This ideology drove the European invasion of the rest of the planet. And the English colonisers were the most brutal in enforcing this worldview. Colonialism did not reflect the views of the poor of the British Isles, but the arrogance and brutality of their rich masters. 

A brutality that plays out on this continent every day. Aboriginal deaths in custody occur nearly every week. Children are still removed from their First Nations families. Gurindji now suffer and protest “Cashless Welfare” and the brutality of the Northern Territory “Intervention,” which is simply another wave in the imperialist war of expropriation.

And people whose ancestors lived here well before the past several centuries of habitation in Europe, the Americas and most of Asia, can be arrested and imprisoned and threatened with exile, because the State wants to exterminate them and their people — and most important, their matriarchal pre-private property legacy.

This is genocide under another disguise and would not be unintentional on the part of those seeking a “final solution” to the “Native Problem.” This solution was first decided in Canberra in 1937, following a meeting of state and federal leaders the previous year. It makes chilling reading.

The so-called “protectors” set up concentration camps, provided for the removal of children and the control of Aboriginal peoples. It was the precursor of what came to be called Apartheid.

For the white ruling class, there can be no more perfect form of Apartheid than removal from country. Their police and officials have been doing it for more than 230 years. By any means necessary. Such as the genocidal means sought by the Morrison government. For now, at least, the High Court has stopped that tactic.

There is a reason for the numerous legal manoeuvres, some aiding Aboriginal struggles and (many) others impeding them. The land was stolen.

The annexation of the South Pacific continent, later called Australia, was never legitimate, not even by the standards of the time. Was it conquest? Well, no one declared open war. But there were wars. Was it settlement by consent? Land was never ceded. It was by occupation, based on the lie that no one was here, or, more usually, that the “beings” who were here were non-human and certainly inferior to their capitalist oppressors. Part of the fauna of the place, at least until the white voters decided that they should be counted as citizens in the 1967 referendum. Citizenship was not granted in practice, in most cases, until 1986. Hence, even in the 21st century, we see the High Court being petitioned to declare First Nations people “inalienable” from their own country.

There has been a call from some Aboriginal people for recognition under the Constitution of Australia. This has been welcomed by liberal whites and others as a way to bypass the genocidal suppression upon which the colony was founded.

The proposal ignores two fundamental political, economic and legal issues: the illegitimacy of the constitution itself, precisely because it disappeared the people who lived here, and following on from that, the clear abrogation by force of the sovereignty of those people. Those are the key questions avoided, once again, by the Settler State’s highest court.

So, the February ruling by the High Court is another partial victory handed out by the State. A red-faced, embarrassed recognition of the racist undergarments of the colony, exposed once again.

The clear solution to this legal glass-half-empty approach is this, just as happened in the late 1800s, when the colonial capitalists were drawing up their own treaty, the Australian Constitution: there needs to be a process to negotiate a treaty that includes the people who were always here. How hard can it be if the genocide is admitted, the land theft compensated, the children returned, and the fundamental right of human beings to exist in harmony with their country recognised?  And the racist and disgraceful practice of exiling people from their own country swept into the rubbish bin of history!

Always was, always will be, Aboriginal Land.

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