Chapters 9.1 (by Tim Rowse and Jennifer Green) and 9.2 (by Daryle Rigney, Denis Rose, Alison Vivian, Miriam Jorgensen, Steve Hemming and Shaun Berg) present case studies of past and present of Indigenous governance. In 9.1 Rowse and Green show that Arrernte jurisdiction has persisted in certain ways in Alice Springs/Mparntwe since the 1870s, notwithstanding the colonists’ expectation – at least until the reforms of ‘welfare colonialism’ in the 1970s – that ‘detribalisation’ was rapidly and inevitably extinguishing customary law. Their chapter outlines some episodes of recognition that have arisen from the overlapping of two systems of law in a space inhabited by both Arrernte and non-Arrernte people. The first example discussed is the acknowledgement and protection of sacred sites, and the second the decreasing accommodation of customary law within the criminal law. In 9.2 Rigney et al explore the experiences of two Aboriginal nations, the Gunditjmara People and the Ngarrindjeri Nation, asserting their status as distinct peoples and, in so doing, demonstrating their capacity to achieve their Indigenous Nation Building goals. While both face significant challenges in establishing Indigenous self-governing systems and accommodating them within the Australian federation, their intention to self-govern according to Gunditjmara and Ngarrindjeri norms is indisputable.

Historian John Hirst has recently suggested that ‘the marrying and partnering of people of all sorts across all boundaries is the greatest unifying force in Australia’ (Hirst 2006: 313). There has been a steady rise in the proportion of couples that identify themselves as ‘Indigenous’ in Australia's Census and that include a non-Indigenous partner, from 46 per cent in 1986 to 69 per cent in 2001 (Peterson & Taylor 2003: 111). Are these couples promoting Indigenous–non-Indigenous unification? Mathematics encourages doubt. Because the Indigenous proportion of Australia's population is small (just over 2 per cent) it does not take many non-Indigenous people marrying Indigenous Australians to give rise to this high proportion of ‘mixed’ couples. Less than 2 percent of the marrying non-Aborigines at any time are needed to choose Indigenous partners to continue the high proportion of mixed couples recorded in 2001. Most Australians could be racially prejudiced against intermarriage without affecting the rising intermarriage rates that the Census has recorded.

Numbers aside, what a poor analogy for the nation is the home! People who want to coexist within the one nation need not be attracted to the idea of sharing domestic space. A national polity is a far more impersonal social space than a kinship network or a household; it is therefore a more robust vehicle for social cohesion.

In the Alligator Rivers region of the Northern Territory – some of it pastoral land, much of it within the Arnhem Land Reserve – uranium had been discovered in the late 1960s. Less than a fortnight before the day (11 November 1975) the Whitlam government lost office, its statutory authority, the Australian Atomic Energy Commission, joined with Peko Mines Ltd and Electrolytic Zinc Company of Australasia to form Ranger Uranium Mines Pty Ltd. Ranger's uranium deposit was one of four in the region. To its south was Koongarra (over which Noranda Australia held an exploration licence), to its north and north-east, Jabiluka (Pancontinental Mining) and Nabarlek (Queensland Mines). Those aspiring to dig up uranium had to compete with two other land use interests. Conservationists thought mining would compromise the region's biological richness, cultural significance and scenic beauty, and they feared the nuclear fuel cycle's many hazards to human health. Aboriginal people assumed their right to remain on their land and to continue using it according to their own customs. The political pressures of this intensely conflicted field soon exposed the fragility of Australian governments' commitment to indigenous land rights. Though concessions were made both to Aborigines and environmentalists, the miners' interests were paramount. By December 1978, Coombs admitted to being ‘profoundly depressed’ about the bullying of the region's traditional owners.

An Act to facilitate mining

That land rights might be compromised in ‘the uranium province’ (as the Alligator Rivers region was sometimes known) occurred to Coombs, Dexter and Stanner in 1975.

Coombs believed that the Whitlam government's policy of indigenous ‘self-determination’ would be realised primarily at local and regional levels of political organisation. Commitment to this view soon exposed him to the policy's practical difficulties. To understand the problems that preoccupied him, as self-determination became the current policy rubric and ‘assimilation’ was consigned to the past, we must first appreciate the continuities and differences between the practices of those two policy ideals. Assimilation and self-determination are variations – significantly different, it could be argued – on an inexorable governmental imperative: the modernisation of indigenous society.

The new acculturation

In advocating the incorporation of locally based indigenous groups, the CAA was influenced by CD. Rowley's commendation of corporate personality as the indispensable ‘carapace’ of indigenous Australians' surviving group traditions. The CAA's March 1968 ‘Outline of Commonwealth Policy’ – a paper effectively suppressed by Wentworth – had advocated incorporation. The Gurindji strike and walk-off soon offered the chance to test the usefulness of incorporation to Aboriginal people who were seeking to represent their interests to government. Though Wentworth and Nixon rejected the CAA's advice, the CAA never let indigenous incorporation drop from their reform agenda.

In one of their first substantial policy papers for the McMahon government's Ministerial Committee, in July 1971, the CAA called for a ‘shift in emphasis’ from programs ‘narrowing the social gaps which handicap Aborigines’ to programs that enabled them to ‘find ways to organise themselves for effective social action’.

In 1973, a young historian applied for permission to consult records of the Department of Postwar Reconstruction. The officer handling this request contacted Coombs, who thought it a worthy topic, replying:

The 1940s and the Coombs approach

As director-general of Postwar Reconstruction from 1943 to the end of 1948 Coombs had developed a modus operandi. His favoured administrative niche and style were a way to link his work as a senior bureaucratic intellectual to the popular thirst for changes in society and government. In the introduction to this book I suggested that it consisted of three related elements, and that Coombs reproduced them in his work as a policy intellectual in indigenous affairs.

First, he created a senior ‘college’ of policy intellectuals. In the early years of Coombs' activism, at least up to 1976, this college comprised chiefly Dexter and Stanner and, beyond them, Rowley and Long.

The Aboriginal Treaty Committee had been a research project as well as a popular movement, for academic innovation was an ingredient of policy change. International law, the nature of national sovereignty, the rights of indigenous peoples – these had been topics of legal scholarship and of public policy in nations such as Canada, the United States and New Zealand, but in Australia they were still, in the late 1970s, esoteric matters. Legal scholars were aware that the Blackburn judgement of 1971 had revealed Australian law to be distinctly unyielding to any notion of customary rights of indigenous property and sovereignty, but Blackburn had scarcely exhausted the possibilities of colonial law.

If national legal traditions could not be insulated from international jurisprudence, then Australian exceptionalism was open to question. In 1979 the High Court ruled in ‘Coe v the Commonwealth’ that it had no jurisdiction over the question of indigenous sovereignty, but some lawyers remained optimistic that other issues of indigenous rights were domestically justiciable. Barrister Barbara Hocking, speaking at a conference on ‘Land rights and the future of Australian race relations’ held at James Cook University Townsville in August 1981, suggested that a test case be brought before the High Court by Queensland Aboriginal people still living on their tribal land. She inferred from the judgements in ‘Coe’ that ‘the High Court is interested in a test case’ on the existence of ‘native title’.

A few months before I started work on this book, I got an angry phone call from a prominent indigenous Australian. It was about my recently published review of Geoffrey Partington's Hasluck vs Coombs: white politics and Australia's Aborigines. In attempting to place that book in the context of current politics, I had written of the Howard government's ‘bewilderment at inheriting the Hawke and Keating governments' corporatist legacy’:

My caller disputed this reading of political events, particularly the verb ‘give’: ‘They didn't give us anything, we fucking took it!’

That conversation – which was not much prolonged by my fumbling efforts to find other senses of ‘give’ – taught me how easily a political analysis can slip into alignment with the very state apparatus it criticises. I believe that I have not avoided that alignment in this book, and my caller may conclude that I am, after all, incorrigibly state-centric.

Though disappointed by the early performance of the Northern Land Council, Coombs did not write off the Northern Territory land councils. Rather, he saw that they were indispensable to the implementation of land rights policies and that getting back the land was a continuing stimulus to the political inventiveness of Aboriginal people. Political innovation was proceeding on two levels: the territorial and the institutional. Land was the traditional basis of Aboriginal political life, and so the outstation movement was the context for renewing Aboriginal political traditions. People were returning to their own portions of country, rather than living in missions and settlements on other people's country, and they were managing their day to day existence in small groups of familiars, rather than in large strife-torn aggregations. In their engagement with government, new political structures, including land councils and ‘communities’, were essential to regaining land and to managing the services of a more sedentary, cash-based way of life.

What was the cultural basis of these new structures? In November 1981, Stanley Scrutton offered Coombs an opportunity to consider this question at length and in detail. Scrutton had been elected chair of the Central Land Council in December 1980; now he formally requested the ANU to let the CLC have Coombs conduct a management review.

The Central Land Council had first been convened in June 1974, on the recommendation of Justice Woodward's first report on land rights. At its beginnings, the CLC had been serviced by staff of the DAA's Alice Springs office.

On St Patrick's Day 1972, when Prime Minister McMahon asked ‘Nugget’ Coombs to comment on six weeks of public reactions to his Australia Day speech, Coombs responded that he had anticipated that: ‘urban Aborigines would be hostile since their support for land claims was essentially political and concerned with recognition of Aboriginal identity’. He contrasted them with ‘Aborigines in the areas concerned [who] would not in the early stages understand the proposals … their attitude would emerge as they were given an opportunity to study the implications of the proposals …’

The distinctions he made in this reply must be noted. One group of Aborigines (urban) could be expected to understand and react more quickly than another (remote). However, Coombs' words imply an additional distinction. The reactions of Aboriginal people ‘in the areas concerned’ – the Northern Territory reserve lands – could not be inferred from urban Aboriginal responses, because these two kinds of indigenous Australian had different concerns. Those of the urban Aborigines were political, to do with their identity. Coombs' dichotomisation of the Aboriginal constituency contrasted political worries about identity with less articulate concerns about the land itself.

This contrast was reinforced by a common distinction, in the language of academics, politicians and policy intellectuals, between ‘Aborigines’ and ‘part-Aborigines’, between ‘full-blood’ and ‘half-caste’, between those retaining Aboriginal culture and those who had lost it. In the CAA's thinking about its representation of indigenous interests, such distinctions were never far away, even if they sometimes made Coombs, Dexter and Stanner uneasy.

Since the demise of the Council for Aboriginal Affairs in November 1976, Coombs had been a research fellow in the Centre for Resource and Environmental Studies, one of the few inter-disciplinary and policyoriented research sites within the ANU. This change in his formal position – from government servant to academic – enabled him to comment freely on what the Fraser government was doing in the uranium province, and it had licensed Viner to upbraid him for his affinities with ‘outside agitators.’

In this new public estrangement from the government, Coombs revised his conception of his public duty. According to his close friend, Judith Wright, when the Fraser government rejected Coombs' criticisms of the Ranger process, he felt that his obligation to Holt's 1967 commission had been acquitted. Although Coombs' ‘view of his own role as a servant of the public and therefore of its elected government [was] almost too scrupulous’, his horror at the Ranger process justified his ‘stepping outside his former role as a public servant and adviser, into unofficial action’.

Coombs' step into ‘unofficial action’ was soon to alter more than his relationship with the government. As this chapter will show, Coombs' position within an emerging debate among indigenous Australians was also becoming more delicate.

The treaty

In re-fashioning himself as a more outspokenly critical public intellectual, Coombs led a debate on a treaty with indigenous Australians.

The second half of the 1960s was a boom time for minerals exploration and investment in northern Australia. Some of the prospective and mineralised land was within the Arnhem Land Aboriginal Reserve. In pursuing a policy of modernisation and development in the Northern Territory, the Department of Territories (renamed Interior in 1969) had a ready made and simple definition of the reserve inhabitants' interest: commercial resource-based industries should be encouraged, so that Aboriginal people would get jobs, an essential step in their assimilation.

The CAA was not opposed to advancing Aborigines' welfare by involving them in economic development. Coombs' February 1968 proposal for a statement of Commonwealth policy urged Prime Minister John Gorton to declare that, initially, the Commonwealth's one distinct contribution to national policy reform would be to emphasise the economic advancement of Aboriginal people. Gorton should tell the States that he was ‘satisfied that the most immediate aspirations of the Aboriginal peoples are towards jobs, homes and incomes at higher levels than they have now, or have ever had.’ Aboriginal people, Gorton should say, wished to break the ‘vicious circle’ of ‘pauperism, dependence and paternalism, which has become self-reinforcing and self-renewing.’

To stimulate indigenous entrepreneurs the Commonwealth would set up a capital fund with a technical advisory service. The Aboriginal Benefits Trust Fund – established by Minister for Territories Paul Hasluck in 1952 to receive royalties from mining on Aboriginal reserves – would be combined with other public money to purchase equity in enterprises on Aboriginal reserves.

When Gough Whitlam's ALP government came to power in December 1972, Coombs, Dexter and Stanner at last found themselves working with a sympathetic Cabinet. Yet Labor ministers could also be refractory, as was soon to be found out. The CAA and the new Minister for Aboriginal Affairs, Gordon Bryant, held rather different views about the machinery of government and, by implication, about the formation of an indigenous intelligentsia.

The CAA and the indigenous constituency

It was ‘crucial’, said Coombs, Dexter and Stanner, in their last policy statement before the election of the Whitlam government, that there be ‘programs designed to develop and strengthen the capacity of Aboriginal people to manage their own affairs.’ Though it was not long before others began to call this ‘self-determination’, Coombs and his colleagues still eschewed any tag, because they considered it ‘generally presumptuous and futile to fix long-term goals in areas of social policy like this’. They were concerned ‘less [with] ultimate aims than [with] methods’. Their quest was not so much to discredit the word assimilation as to contest the administrative authority which ‘assimilation’ rhetoric had legitimated. The failures of the US ‘War on Poverty’ had taught them that program expertise was insufficient if ‘client communities of the poor were not actively involved in developing the plans and carrying out the programs.’ Government policy should be about process, and good process required programs ‘to develop Aboriginal independence’.

Aboriginal independence had been thwarted by missions and settlements.