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Authors: Larissa Behrendt

Legacy

Larissa Behrendt is Professor of Law and Director of the Jumbunna Indigenous House of Learning at the University of Technology, Sydney. She is a member of the Eualeyai/Kamilaroi nations of north-west New South Wales. Her first novel,
Home,
was the winner of the David Unaipon Award for Indigenous Writers and the Commonwealth Writers' Prize for Best First Book (South-East Asia/ Pacific region).

Other books by Larissa Behrendt

Fiction

Home

Non-fiction

Achieving Social Justice: Indigenous Rights and
Australia's Future
Aboriginal Dispute Resolution: A Step Towards
Self-determination and Community Autonomy

Co-authored

Resolving Indigenous Disputes: Land Conflict and Beyond Indigenous Legal Relations in Australia Treaty

To my father,
Paul Behrendt,
Whom I love.
And whom I miss.
Every day.

CANBERRA, AUSTRALIA, 1972

We put the women at the front line. We thought that the police would not arrest them. Some of us were not so sure, but it was the women who insisted upon it. We had argued about it through the night and by three in the morning, they had persuaded us.

We linked arms - Aborigines and students, black and white, men and women - and surrounded the tent that had our flags flying.

We shouted, ‘Land Rights Now. Land Rights Now'.

We sang ‘We Shall Not Be Moved'.

Hundreds of onlookers - tourists with their cameras, public servants in their pin-striped suits - stood by and watched.

There were about sixty of us and just as many coppers. It was after ten thirty that the police started to move on us. They hit us with fists, putting four of us in the hospital. The newspaper reported that three coppers had to have x-rays.

They moved on us again three days later when we tried to rebuild our Embassy. In the morning about a hundred of us marched from the university to Parliament House. We sat down on the road and listened to speeches. About fifty coppers were watching us. We then tried to erect another tent and we formed a human shield around it. By this time there were about two hundred of us and two hundred and fifty of them. There were more arrests.

The cameras were there and we made news around the world.

A week later we had a peaceful protest and re-established our Embassy.

Above our tents we flew a flag - black for the colour of the people, red for the land and the blood that has been spilt upon it, and yellow for the sun that with its rising brings together the people and the land, always.

There was momentum. We knew that what we were fighting for was right and that we were a part of something that would have a lasting impact.

Even though I couldn't know that one day I would talk about the Tent Embassy with my daughter, tell her what happened and what we hoped for, I knew that I was making history.

Thirty Years Later …

PART I

1

BOSTON, UNITED STATES

Hedonophobia is the fear of pleasure. Acarophobia is the fear of itching or of the insects that cause it. Lallo-phobia describes the fear of speaking. If there's a name for these phobias, somewhere in the lexicon there must be a word for the fear of meetings with a doctoral supervisor. The closest word I have found is ‘rhabdophobia', the fear of being punished or severely criticised.

I have a restless sleep the night before my monthly meeting with Professor Young - the third Thursday of the month. I lie awake and I think through all the questions he will ask me, anticipate his comments and criticisms of my arguments and, to the blue-grey of my streetlamp-lit room, I rehearse my answers. As I say them out loud, I sound confident. I can hear Professor Young saying, ‘Yes, Simone. I had not quite thought about it that way.' And he has a look of beneficence, the same look my father would wear when I brought my school report card home or asked him questions about history or politics as he cooked in the kitchen.

The day seems long as I count down the hours to my meeting at 4 pm. I tidy the kitchen nook and then watch some television before I try to settle in to work. I attempt to read but my concentration is poor. I find myself re-reading the same passage several times, easily distracted by other thoughts - what will Professor Young ask me about? how will I answer? - and in the end I decide to pack my books and head to the cafe.

Many people would find the noise of a coffee shop an unproductive environment for work or study. I like being surrounded by the bustle. I try to read again but the questions in my head seem louder than the chatter around me. I open my notebook and write out some notes, the evolving structure of the whole of my thesis, just in dot points. This exercise helps me to feel in control of this overwhelming project. I find it comforting.

It is cold now but this is my second fall in Boston and I've gotten used to it. The trick to keeping warm is layering - underwear, pantyhose, jeans, socks, boots, t-shirt, sweater, coat, scarf, hat, gloves and earmuffs. When I first moved here, the summer heat was the same sticky humid kind that I was used to in Sydney - the kind that reminds you you're living near a vast body of water even if you can't see it. And then the leaves changed, crunching like fortune cookies under my boots. Soon enough it will be winter and I will be trudging through the snow.

They made a fuss of me when I arrived here though I suspected they were a little disappointed that the Aborigine who had come all the way from Australia was not darker and couldn't play the didgeridoo. ‘Only men are supposed to play it,' I sniffed indignantly. But eventually I found my own rhythm in this place where I could disappear among everyone else. Where I wasn't simply ‘Tony Harlowe's daughter'.

I liked Professor Young from the first time I took his class - Legal Theory in Modern Society. He was sitting in the classroom before the students arrived. Most Harvard professors wait until everyone is seated so that they can make a grand entrance. Not Professor Young. He sat at the desk at the front of the room furiously writing notes on a small piece of paper that he then folded and placed in his shirt pocket. After watching the clock tick on to five past four he stood up, and without once looking at the piece of paper he had tucked tightly away, lectured for two hours. He was the kind of man who is youthfully handsome but whose greying hair makes him look more distinguished. By the time I had written
simone harlowe
on the attendance sheet, I knew I was infatuated.

The first time I opened the door to his office I had wondered how a mind that possessed the clarity of Professor Young's - a mind that could weave an argument seamlessly for two hours without prompting or diversion - could thrive in an environment of such chaos. Untidy piles of papers were strewn across the opulent oak. The walls were lined with bookshelves; paperbacks and leather-bound texts were pressed together, often doubled up on the shelves, their musty, rotting smell scenting the air. Between the worn leather chair and the large window that cast afternoon light behind him, the grey-flecked carpet was littered with overstuffed manila folders and photocopied pages, piles of seemingly neglected ideas.

‘How do you find anything in here?' I asked in an attempt to sound less nervous.

‘Would you believe me if I told you that I know where everything is?' Professor Young answered in his deep-toned voice. He laid his hands across the thick timber of the desk top, spreading his fingers like a duck's webbed feet. His charcoal eyes gleamed.

‘No,' I smiled.

That day I had sat awkwardly in the same chair that now I so casually sling my handbag over and arrange myself in. Back then I stammered through my self-introduction and the outline of my proposed research topic, my hands sweating and twisting. Today I am more able to ease into conversation - but not completely.

When I graduated with my law degree I had worked for a while at the Legal Aid Commission - mostly family law and social security appeals - and once absorbed in the day-to-day paperwork and local court appearances of legal practice, I had longed to work on the ideas that underpin law reform. So I began to think about returning to university and doing post-graduate studies.

When I first told my father about being accepted onto the doctoral program, his palpable, unashamed excitement increased my pride. After his initial euphoria had waned a little he wanted to know more about Professor Young. ‘What does he know about Aboriginal issues, about our history and culture?' He had asked the same things of all of my school teachers.

‘Not much,' I had replied, ready to defend Professor Young but also to appease my father. ‘Dad, I couldn't learn more about that side of it than I have from you. But Professor Young will be able to give me something different. He understands a way of thinking beyond the black letters of the law, like the links between “law” and “justice”, and the power imbalance. The situation of Aboriginal people in Australia is an interesting example of the kind of things he writes about.'

This had been enough consolation for Dad, especially when weighed against the prestige of the school. And it had been a pretty accurate guess at what I would learn from Professor Young. He had taught me how to relate the abstracts of legal arguments back to the practical impacts of law. He had drummed into me how it was important to not just argue for law reform but show why it is important by looking at its impact on people's lives.

After an exchange of pleasantries, Professor Young starts the meeting with the same question as always: ‘So, Simone, what is your central argument?'

It's all there in the brief I prepared for him that was delivered to his secretary on the Monday before the meeting but he makes me say it as well.

Today I shift in my seat to get comfortable, take a deep breath. ‘The doctrine of discovery was a key part of international law at the time that the British claimed Australia. International law allowed for the claiming of territory if it was empty of people or had no sovereign. This was used as a justification for the settlement of Australia, even though there were clearly Aboriginal people living there who had systems of governance and sets of laws.'

‘So your argument is that Aboriginal people were sovereign at the time that the British claimed Australia,' Professor Young observes.

I nod and continue. ‘They did. Despite the evidence that Aboriginal people clearly had a system of laws and governance, the legal fiction of
terra nullius
eventually became part of Australian law.'

‘So the whole legal system had been predicated on it,' Professor Young is looking intently at my paper. His focus is reassuring.

‘That's right. And the doctrine continued until the
Mabo
case in 1992 when the High Court overturned it. But they didn't make any determination on the issue of Aboriginal sovereignty other than to say that the question of whether Australia was lawfully acquired by the British was a matter to be decided by international law, not Australian courts.'

‘So they left the matter undecided?'

‘Well, I argue that they replaced the legal fiction of
terra nullius
with a legal fiction of “settlement”. But on the facts, Australia was conquered, not settled.'

‘And if that is the case, what are the legal implications of Australia being “conquered” rather than “settled”?'

‘Well, that would mean that the laws of Aboriginal people, including land ownership, should have been recognised. Recognition that Australia was conquered could give rise to the recognition of Aboriginal customs and property interests. It would give Aboriginal people leverage in asserting their rights in modern Australian society.'

Professor Young places my written brief on the desk in front of him and turns his attention to me. ‘A very pretty legal argument, Simone.' He swivels his chair sideways so he can look at me but also out the window behind him when he chooses to. ‘But what do you think the chances of getting this recognition of “conquest” rather than “settlement” are in practical terms? Isn't the more important question the extent to which sovereignty remains today? No matter how strong their claims to sovereignty were at the time of invasion, could Aboriginal people still meet the criteria of a sovereign nation now? Could they show things such as a defined territory, a government structure and the capacity to enter into relations with other states?'

I think about the many times I've heard my father stand to speak about all this - community forums, Land Council meetings, rallies. Since before I could walk, I had been hearing it. ‘This is our land,' he'd say. ‘We never gave our consent for these whitefellas to take our land, to take our children and make paternalistic laws for us. We need to make decisions ourselves, exercise our sovereignty as the Aboriginal nations of this land.'

With a lifetime of Dad's words echoing in my ears I answer Professor Young. ‘I don't think Aboriginal people want to be a separate country. When we talk about “sovereignty”, we are seeking recognition of our ability to speak as a nation of peoples and for recognition of our laws in Australia.'

Professor Young asks if by the term ‘sovereignty' I mean the way it is understood under international law.

‘Well, yes and no.' I have to think before I go further because my answer was intuitive. When Dad would talk about the “Aboriginal nation” and “Aboriginal sovereignty”, he would mean the ability to make decisions for ourselves or the recognition of customary laws. But sovereignty under international law also gives the ability to make laws, impose taxes, to make war and peace and make treaties with other nations. Dad would talk of making a treaty with the Australian state and collecting a percentage of the land tax but not about having our own currency and stamps. And there is also the aspect of having territorial integrity and in all the years I've heard his speeches - the speeches of Tony Harlowe - I've never heard him mention a separate Aboriginal country. Professor Young stares out his window. The lowering sun is streaming light across his face and on to his desk. He squints slightly. ‘I don't think so,' I say to him finally.

‘I think you're approaching the question the wrong way around.' He picks up my brief and looks at the front page. ‘Your question, Simone, as you've told me at almost every meeting we've had is “how do we recognise Aboriginal sovereignty in Australia?” And in asking that question you are defining sovereignty by using international law but the more interesting approach to the question is to define “sovereignty” in the way that Aboriginal people would.'

He is right. And I see it clearly as soon as he says it. It's so obvious but it has taken this white man in Boston to make me see that I've not been asking the question from an Aboriginal point of view. How could this happen to the daughter of Tony Harlowe who had heard nothing but the Aboriginal point of view all her life? Have I become so captured by legal arguments that I've forgotten why I began studying law in the first place?

Professor Young saves me from having to speak. ‘Well, perhaps that's the issue we should focus on at our next meeting.' He places my brief into a tray marked ‘Filing'. ‘Develop that idea further,' he adds. ‘What is it that Aboriginal people mean when they use the term “sovereignty”? That is the question.'

I write notes as he speaks and at the bottom of the page I scrawl: Asking the wrong question. I underline it.

I still feel unintelligent and inarticulate - awkward - when I talk through my ideas with Professor Young. Nothing he says or does causes this; he constantly encourages me with attentiveness and reflection. The self-doubts grow from deep within me, sparked by my own insecurities. My father had been at the original Tent Embassy in Canberra and a well-known voice in the Aboriginal rights movement ever since. A lot was expected of Tony Harlowe's daughter.

Professor Young breaks the lull in our conversation. ‘And what are you reading for fun, Simone?'

He asks me this question each time we meet so I've prepared my answer.
‘Lolita.'

‘Ah, Nabokov. And how should we deal with his arch-villain, the urbane Humbert Humbert?'

‘Well, Nabokov doesn't make it easy for us. He tells the whole story from Humbert Humbert's point of view so we are fed all his lies and excuses.'

Professor Young nods. ‘That's Nabokov's genius. He makes us feel sympathy for a man whom we objectively would never like, someone whom we should find repugnant.'

‘I know,' I agree enthusiastically. ‘Throughout the novel, up until the point where he has intercourse with Lolita, Humbert has committed no crime. Lust is not a crime. It's not a crime to love someone we can't have. His lechery is
morally
repugnant but it's not illegal. The law won't interfere until a crime has been committed.'

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