Keith Windschuttle’s latest contribution to the indigenous affairs policy debate is his new book, The Break-up of Australia. The real agenda behind Aboriginal recognition, published by Quadrant Books.

Just what I wanted for Christmas, the new Keith Windschuttle book,” said nobody ever.

In late October The Australian ran an extract from the book that credited Windschuttle as:

… one of the architects of the “history wars” which dominated public discourse from the 2000s [and who] argues that political leaders and public intellectuals, both indigenous and non-indigenous, have failed to acknowledge the implications of proposed constitutional change.

The following week The Oz ran a well-reasoned response by Shireen Morris, a senior policy advisor at Noel Pearson’s Cape York Institute.

Morris called out Windschuttle as the proponent of unproductive and implausible “irrational fears,” noting that the extract was littered with inaccurate generalisations.

For Morris, Windschuttle’s “tortured” argument asserted:

… that formal indigenous inclusion in Australia’s Constitution somehow equals indigenous exclusion … the leap from constitutional inclusion to constitutional separatism and indigenous international sovereignty is a very big leap.

Windschuttle is unclear about what is meant by “sovereignty” and glosses over the fact that indigenous people use the word in many different ways.

The November issue of Quadrant—of which Windschuttle is the Editor-In-Chief—contains the first of two extracts from his book, titled The Hidden Agenda of Aboriginal Sovereignty.

The back-cover blurb for the book bells the cat on the constitutional recognition movement.

The goal of Aboriginal political activists today is to gain ‘sovereignty’ and create a black state, equivalent to the existing states. Its territory, comprising all land defined as native title, will soon amount to more than 60 per cent of the whole Australian continent.

Earlier this month Windschuttle also appeared in a soft interview with Tom Switzer on ABC Radio National’s Counterpoint program.

Windschuttle’s theory—at its strongest it could be characterised as a conspiracy theory—rests on two limbs. The first is that a group of Aboriginal activists and white sympathisers are plotting the overthrow of Australia as we know it—kicking in the front door with  the constitutional recognition referendum—and then kicking it shut again by establishing a sovereign black state.

The second limb is that this new state will be bounded by those lands granted under the Native Title Act, which Windschuttle says would amount to 60 per cent of the Australian continent.

Windshuttle presents what is—or might in other circumstances be—a reasonable hypothesis, that could be paraphrased as: “Is there is a movement among indigenous and non-indigenous political activists that seeks, through the guise of constitutional recognition, to establish a separate state within Australia by using native title lands as the physical basis for that state?

The weak(est) points in Windschuttle’s argument are the quality of his research, some factual errors and misstatements and his apparent ignorance of and respect for contemporary Aboriginal society and politics.

Windschuttle’s Quadrant extract begins with a quote from Galarrwuy Yunupingu.

The clans of east Arnhem Land join me in acknowledging no king, no queen, no church and no state. Our allegiance is to each other, to our land and to the ceremonies that define us. It is through the ceremonies that our lives are created. These ceremonies record and pass on the laws that give us ownership of the land and of the seas, and the rules by which we live.

Windschuttle doesn’t acknowledge the source of that quote but you can read all of Galarrwuy Yunupingu’s essay—written in anger, sorrow and unrelenting pride in the shadow of the NT Intervention—in The Monthly.

Yunupingu’s essay tells of the on-going centrality of Aboriginal law in the daily lives of his family and the Yolngu clans of north-east Arnhem Land.

Beyond Arnhem Land, Aboriginal law, in all its varieties and iterations, also rules the daily lives of most Aboriginal people living in the homelands and small townships scattered across the Aboriginal lands of the NT.

These are places that Windschuttle condemns as cesspits of alcoholism, drug taking, homicide, suicide, domestic violence and the sexual abuse of children. In his Counterpoint interview he described these homelands—a concept he says was borrowed from north America—as “cultural and political disasters,” citing the work of the late Institute of Public Affairs economist Helen Hughes as proof. The credibility and accuracy of those statements is a matter for another time and place.

For now, back to Windschuttle’s Quadrant excerpt.

The evidence propping up the first limb of Windschuttle’s hypothesis—the claims to original and continuing sovereignty made by “Aboriginal and white Canberra activists”—consists of a threadbare collection of quotes by those “activists” from reports, speeches, articles and books dating from the 1970s to about 2012.

For mine the closest any of these quotes get to a direct assertion of a sovereign state within contemporary Australia is contained in a 1993 extract—and thus made in the heat of the post-Mabo native title debates—by Noel Pearson.

Pearson has always run his own races and almost without exception will argue a differential line to what could be described as the Aboriginal political mainstream. The brief Pearson quote proposes a form of “local indigenous sovereignty” that he says could co-exist within the Australian nation-state.

Windschuttle traces Pearson’s proposal back to the “white Canberra activists” that gathered around W. C. ‘Nugget’ Coombs in the late 1970s and early 1980s to form the Aboriginal Treaty Committee. From that obscure and largely ineffective group came what Windschuttle describes as a vision of a “day when Aboriginal regional government, or governments, could stand alongside state and Territory governments before the Commonwealth Grants Commission (now COAG) in their own right.”

The closest realisation of a national Aboriginal representative body in Australia was the Aboriginal and Torres Strait Islander Commission (ATSIC), a statutory commission established in 1989 and finally killed off by John Howard and his indigenous affairs Minister Amanda Vanstone in 2004.

It is passing strange that ATSIC—arguably the most representative and effective voice for Australian Aboriginal self-determination—receives only one mention by Windschuttle in the Quadrant piece.

Another issue that Windschuttle overlooks is that from, say, the early 1990s through to the current day, the Aboriginal and non-Aboriginal activists he quotes—Nugget Coombs (who passed away in 1997), Patrick and Mick Dodson, Galarrwuy Yunupingu, Marcia Langton, Warren Mundine. Michael Mansell and others—would have between them given hundreds of speeches, lectures, interviews and conference presentations and written numerous articles, books and book chapters.

Considering the limited lexicon of recent Australian indigenous affairs—sovereignty, treaty, self-determination, terra nullius, invasion, reconciliation, land-rights etc—it is unsurprising that each of those named by Windschuttle might have referenced “sovereignty” from time to time.

For mine, all Windschuttle has done in his Quadrant extract—and presumably in his book—is gather a few selected quotes from across the years and stitch them together as threadbare evidence of a conspiracy that exists perhaps only in his mind. It stretches credulity to suggest that a conspiracy exists when the supposed conspirators cannot agree amongst themselves.

Most curious perhaps in Windschuttle’s argument is his elevation during the Counterpoint interview with Tom Switzer of the Warriors of the Aboriginal Resistance—“young people out of the university”—as credible proponents and prosecutors of the sovereignty movement.

WAR’s Manifesto (WAR, get it?) is replete with the usual slogans of righteous indignation and undergraduate political angst. The warriors of WAR—all four of them—say they: “have been in talks for almost a year about forming a national grassroots alliance of young Aboriginal people committed to the cause of decolonization and Aboriginal Nationalism.”


Windschuttle appears to regard WAR as the foot-soldiers in the front-line of the Aboriginal sovereignty movement and as a credible separatist threat. WAR’s Facebook page shows that their efforts are focused less on the violent overthrow of the Australian state as on small-time fundraising—a few bucks to get one of their number to Brisbane for a demo and money for “Uncle Larry” to fix an old truck—and a few fond looks back at the glory days of the Aboriginal Tent Embassy.

WAR perhaps in name but certainly not in nature.

The second limb of Windschuttle’s claims for a sovereignty takeover is that it would be based on lands granted following successful native title claims.

Here Windschuttle takes the total of land over which native title has been granted—and is currently being claimed—as land that could form the basis of an Aboriginal sovereign state, whether of a localised, non-contiguous form—which Windschuttle says Pearson and Mundine support—or a coast-to-coast contiguous landmass including all Aboriginal land—attributed to Michael Mansell from Tasmania.

The notion that native title could form the basis for an Aboriginal sovereign nation—whichever model is applied—is a wholly unrealistic proposition.

Windschuttle says that as of late March this year native title “exists in an exclusive sense over a total of 851,654 square kilometres … native title exists in a non-exclusive sense over another 1,488,237 square kilometres.” All up a total of 2,339,890 square kilometres, or almost 30.5 per cent of the Australian mainland. Windschuttle adds to that figure the 31.7 per cent of the country that is currently under native title claim, which claims are yet to be finalised by the National Native Title Tribunal, a body he says “only accepts claims that are almost certain to be determined”—presumably in Windschuttle’s view in favour of the applicants. Windschuttle says the land area the target of the sovereignty activists would total 60 per cent of the continent.

As Tom Switzer reacted when Windschuttle rattled this number off during his Counterpoint interview, “60 PER CENT!”

It is unsurprising that Windschuttle—as most of us do—struggles with the complexity of the Native Title Act but the least we can expect is that if he is going to throw up ideas based on the application of the Native Title Act it is not unreasonable that he exhibit at least a working comprehension of the operation of the Act and it’s basic concepts.

As this handy—and very basic—explainer from the National Native Title Tribunal sets out, native title:

… may include the right to possess and occupy an area to the exclusion of all others (often called a right of exclusive possession). Exclusive possession can only be recognised over limited parts of Australia, such as unallocated or vacant Crown land and certain areas already held by, or for, Indigenous Australians.

Over other areas, the native title bundle is most likely to be a set of non-exclusive rights (which means there is no right to control access to, and use of, the area). Examples may include the right to live on the area, hunt, fish, gather food or teach law and custom on country. (emphasis added)

The important take-away point here is that there are two very different kinds of native title. Non-exclusive native title only applies on land owned by others—governments, pastoralists, freehold landowners and native title holders can only get usufructuary rights over that land.

Exclusive native title is a very different matter and is as near to a form of freehold title as is possible in this country.

It is useful at this point to break down Windschuttle’s broad statements against the reality that this September 2016 map produced by the National Native Title Tribunal reveals.


Yes, 94 per cent of exclusive native title land is in Western Australia but as the map reveals, most of that land is in the vastnesses of the Great Sandy, Gibson, Little Sandy and Great Victoria deserts—places where few people—Aboriginal or not—choose to or could live.

Neither are those deserts centres of mining, pastoral or other economic activity of any moment. That the exclusive native title lands of Western Australia could form the basis of Windschuttle’s imagined pan-Aboriginal sovereign state is fanciful at best. There is no exclusive native title land in the ACT, Tasmania and Victoria and only 5 square kilometres in New South Wales.

A similar picture emerges on analysis of non-exclusive native title land won back through claims and negotiation. Again, the populous south-eastern states have the lowest totals of non-exclusive native title lands, with none in the ACT and Tasmania, a risible 2,748 square kilometres in New South Wales and 14,900 in Victoria. It is unsurprising that the largest areas of non-exclusive native title lands are found in outback Queensland, the vast pastoral estates of the Northern Territory and the deserts of north-eastern South Australia.

Again, it stretches imagination, possibility and the law to see these non-exclusive native title lands—all of which are subject to primary ownership or control by pastoralists, governments or other agencies—as the basis for a separate sovereign state.

Space and time prevent analysis here of the final two parts of the Quadrant excerpt—Aboriginal economics and the deficit blow-out and Legal and political roads to a black state—but both appear as flawed as the rest of Windschuttle’s piece.

Finally, another element of the Aboriginal sovereignty puzzle that Windschuttle ignores altogether—or has just plain missed—is the disparate sovereignty movement typified by groups like the Sovereign Union of First Nations and Peoples, the Tribal Sovereign Parliament of Gondwana Land, the Original Sovereign Tribal Federation (OSTF), and the Original Sovereign Confederation among numerous others.

These groups are frequently short-lived, sometimes exist only in the fevered imaginations of an individual or small group and are often as much at war with each other as the Australian state they claim to want to overthrow or replace.

I’ve looked at the quirks of some of these groups in a piece at The Northern Myth in 2014 around the same time that Ramon Glazov, in this excellent piece in The Saturday Paper examined the curious links between the fringe-dwellers in the local Aboriginal sovereignty groups and the international “sovereign citizen” movement.

A cynic—and I count myself among their number—might suggest that governments like the indigenous space to be messy and for its denizens to be arguing more among themselves than with their Departments and Ministers through representative bodies like ATSIC. While it cannot be counted as anywhere near as effective or representative as ATSIC was in its prime, the slow death of the National Congress for Australia’s First Peoples provides a useful case study.

Another example might be that Gramscian “symbolic exercises in legitimation”—the government-funded and flailing Recognise “campaign” is a good current example—are effective and relatively cheap (politically and economically) devices to foster under-the-radar division and distraction within Aboriginal political spaces.

Laura Tingle briefly examined the institutional failure in indigenous policy and service delivery in her 2015 Quarterly Essay Political Amnesia: How we forgot to govern. Tingle there described indigenous affairs as “the most complex and difficult area of government policy” that has suffered from a lack of public service experience “exacerbated by decisions taken over the past couple of decades.”

Tingle charts much of this decline in institutional capacity and failures in service delivery back to the demise of ATSIC in 2004, noting that since then “there hasn’t been a model—or even an organising principle—for the delivery of indigenous services.”

In a piece in the Australian Financial Review in late July this year that looked more closely at the “national unity ticket of despair” that was indigenous affairs in this country, Tingle noted that since ATSIC was dismantled (along with many other indigenous bodies) that:

… Indigenous policy feels like it has become defined by its lack of clear purpose and cohesion as anything else … [ATSIC] at least represented an idea for a coherent philosophical base for policy.

I want look more closely at the emergence and conduct of these disparate Aboriginal sovereignty groups that have flowed into the vacant political and philosophical spaces left behind by the absence of ATSIC or any other like agencies in the indigenous service and advocacy sector. I’m particularly interested in the notion that they have gained legitimacy through their (occasionally) affective use of social media and also at how, with the absence of well-resourced and representative institutions and peak bodies such as ATSIC, that they are able to exploit these gaps to become, in some respects, the loudest voices in a very big room.

That will be the subject of my next piece in this open-ended series.


Bob Gosford is a lawyer employed by the Central Land Council and is based in Alice Springs, NT.