First Nations people are warned that this essay refers to people now passed to be with our Ancestors, and addresses traumatic events in our history.

One of the most sacred obligations universal to Indigenous people around the planet is knowing we are part of the land; we do not own the land, we belong to the land. Since the beginning of time, this obligation requires First Nations people to protect, preserve and cultivate the land in the present, for a prosperous future. In Wiradjuri language, we say Yindyamarra Winganangha – the wisdom to live with respect in a world worth living in.

As we sit and wonder at the elusiveness of wisdom in the current state of the world, some of us rise to the whisper of birds, yet others wake to the sound of bombs. The beat of both reverberate to this day on Wiradjuri Country, transmitted from a time when peace on our Country was violated. For Wiradjuri people, we know all too well that the passage of time itself does not always heal, but carries with it the heartbeats of our Ancestors.

And heartbeats are powerful, they persist in the land, sky and waterways in immortal ways – pulsating through portals, not just people. It is the energy of a heartbeat when one connects to the heartbeat of another, this is evident when we say we love our Country. As I sit on my Country, Wiradjuri Ngurumbang; where the three rivers meet in western New South Wales, I can feel my Ancestors' heartbeats of the past, present and future in one moment in time. It is a feeling that cannot be described in English terms, but a sensation in knowing that this place always was, always will be Wiradjuri Land. It is a knowing incompatible with colonisers claim to Wiradjuri land. Winhangadilinya, to feel and know oneself on your own Country from which we have risen and returned for millennia. This deep knowing of where we come from and belong, in relationship to Country, is a connection that uniquely binds First Nations people in our quest to honour the sacredness of Country. 

Many people spend their entire lives living on foreign lands. To this day, colonisers continue to live on Aboriginal land, searching for meaning without ever knowing who they truly are in relation to Country. I am not suggesting colonisers cannot have an appreciation for the environment and natural beauty of this place, for which many have inherited intergenerational wealth at the expense of the dispossession of Aboriginal peoples. In fact, some of the most benevolent colonisers exhibit blatant racism under the guise of Blak allyship. 

For instance, in early 2023 I visited the Blue Mountains, as I had done many times before. On this occasion I stopped over at a local community hall for the annual community lunch hosted by ‘locals’ (all of whom were white), on my way to stay with friends who own a home on the mountain. It was a nice sunny autumn day as the leaves started to change colour, everyone was friendly, each family packed a picnic basket of homecooked meals and pitched their tables in the garden of the community hall estate, they were adorned with Country-themed table cloths and freshly picked flowers. Before the formality’s of the infamous community raffle commenced, one of the ‘locals’ of the mountain, gave an Acknowledgment of Country. It was clear this person was comfortable conducting an Acknowledgment of Country and had done it before as it was well-scripted as it was received by the audience.  

The only black faces in sight were my toy cavoodle and I, who is affectionately named Tidda, meaning sister. We sat and claimed space on our friends cosy table, it was a light upbeat vibe as people soaked in the fresh mountain air, the speaker proceeded to acknowledge the group gathered on Indigenous land, which is located on the interection of the Gundungurra and Dharug peoples traditional territories. 

It is sacred Country that features significant sites and important cultural heritage, much of which is hidden from the average eye but was well-traversed by Traditional Owners. One time, my Tiddagirl Kirli Saunders who is a prolific artist and proud Gundungurru woman, took me on a bush walk, she could sense her way through her Country, as though it spoke to her. We shared stories as we tread lightly across the surface, careful not to touch anything we shouldn’t, and followed our instincts to the edge of an escarpment that felt ancient and the view endless, as we looked out across the eucalyptus mountain tops, we could feel the power of the place. We could hear the voices of Ancestors whisper with the gush of the wind sweeping across the canopy and over the ancient rocks- edge beneath our bare feet.

However, the person giving the Acknowledgment of Country was superficial and tokenistic. Immediately following they proceeded to announce to the community that they had ‘defeated the Aboriginal land claim that was over the community hall’ where we had gathered, to which the audience (but for my table) clapped and cheered and raised their drinks in excitement. The disconnect was palpable, to conduct an Acknowledgement of Country and in the same sentence celebrate the denial of Aboriginal interests in land was breathtaking. 

Yet, this is not an uncommon experience for many First Nations people who infiltrate and navigate white spaces. The demonstration of toxic benevolence of white allyship, is particularly apparent when it comes to claiming interests and ownership to land must be done on their terms. That goodwill is only given to the degree within which colonisers can continue to remain in control of land, despite knowing the Traditional Owners that belong to it. Colonisers never fail to remind us of the fact that when we sit at their table, we are only entitled to receive the breadcrumbs. What was most jarring about the conduct of the Acknowledgment of Country I witnessed that day wasn’t the routine script, it was their insistence that their white Ancestors discovered the mountain which proudly positioned them to be a vocal defender of the mountain against an Aboriginal land claim. 

It is incumbent upon us to challenge colonial narratives that attempt to diminish Aboriginal interests in land. As Professor Harris writes in the Harvard Law Review, ‘Whiteness as property has taken on more subtle forms, but retains it’s core characteristic – the legal legitimation of expectations of power and control that enshrine the status quo as a neutral baseline, while masking the maintenance of white privilege and domination’. Similarly, Distinguished Professor Aileen Moreton-Robinson writes in her book, ‘The White Possessive: property, power and Indigenous sovereignty’, that ‘Indigenous ontological relations to land are incommensurate with those that developed through capitalism, and they continue to unsettle white Australia’s sense of belonging.’ And white people know capitalism functions on a racial hierarchy because they created it, so when Aboriginal people dare to challenge the legitimacy of their claims in our land, white interests in land demand to be placed at the pinnacle. 

On the 14^th August 1824, the then Governor Thomas Brisbane ordered Martial Law, effective across Wiradjuri Country by declaration:

NOW THEREFORE, by Virtue of the Authority in me vested by His Majesty's Royal Commission, I do declare, in Order to restore Tranquillity, MARTIAL LAW TO BE IN ALL THE COUNTRY WESTWARD OF MOUNT YORK; And all Soldiers are hereby ordered to assist and obey their lawful Superiors in suppressing the Violences aforesaid; and all His Majesty's Subjects are also called upon to assist the MAGISTRATES in executing such Measures, as any one or more of the said Magistrates shall direct to be taken for the same purpose, by such Ways and Means as are expedient, so long as Martial Law shall last.

The year 2024 marks the 200^th Anniversary of the Wiradjuri War also known as the Bathurst War. The bedrock of the declaration of Martial Law was to expand the colony of New South Wales without consequence for the escalating violence, including the massacres of Wiradjuri people, that had been simmering. In early March 1824, a colonist farmer sought revenge by killing Wiradjuri people, including women and children, who had harvested potatoes under the unfortunate assumption they were for collective use from his private property. One of the victims was Watamara (or Worima) the wife of Wiradjuri Warrior Windradyne, and one of their sons.

It is well-documented in Wiradjuri oral testimony that Windradyne the Warrior led the resistance against colonial expansion. He organised, strategised and negotiated to defend Wiradjuri Country. According to the Sydney Gazette, he was ‘without doubt, the most manly black native we have ever beheld… a good model for the figure of Apollo’. And he had become known to colonisers as ‘Saturday’ because he was regularly seen on Saturday. To this day Windradyne is a hero to Wiradjuri people in his quest to defend our Country.  

But how do we reconcile with the colonial empire when there has been no resolution to the war on Wiradjuri peoples? And how do we rationalise the irony that the rule of law itself could ‘restore tranquillity’, as though we were the ones that initiated the violence. It is worth noting that this rhetoric persists to this day like a constant of gaslight that if we fail to behave in the way colonisers demand, the rule of law can be deployed to guise state violence. Today, one example of this is the State's surveillance, policing, removal and imprisonment of Aboriginal children, which has continued to increase in New South Wales.

We must never forget how the rule of law has been used to justify atrocities such as the massacres of Wiradjuri people. The systemic denial and dislocation of First Nations people's obligations to our traditional territories was intentionally designed to effectively lock Indigenous peoples out of the western economy. The truth is what flowed from the Wiradjuri War was a wave of land grants to colonisers, enabling white generational wealth for two and a half centuries. 

Growing up Wiradjuri, on Wiradjuri Country, we hear stories of how our Ancestors were hounded onto missionaries, fenced into exile and forced to live like refugees on their own Country, to enable colonisation and legitimise land grabs. By the time our Ancestors liberated themselves off missionaries, colonisers had already built intergenerational wealth on Wiradjuri Country. 

This was a sophisticated and intentional colonial land grab scheme that started on 25 April 1787, when Governor Phillip was empowered by the Draught Instructions to grant land to emancipists. This was a year prior to the first fleet arriving in 1788 and 18 years after Lieutenant Cook was first discovered by the Gwaegal people at Kamay Bay in 1770. The British occupation swept from Sydney Cove across the continent, and despite the initial peaceful approach of many First Nations who thought they may one day depart. What has become clear is that colonisers failed to seek the consent of First Nations people of this continent. 

This was a distinctly different colonisation approach than similar Indigenous territories of North America. For instance, the United States signed it’s first Treaty with the Delaware Tribe in 1778 and continued to negotiate with others until 1820, when the American colonies declared Independence and war with Britain began. Arguably, this may be one reason why the British avoided entering a formal settlement process in what is now known as Australia. Despite this, the Treaty of Waitangi was signed in 1840. 

For whatever reasons, this failure to negotiate and seek the consent of Indigenous peoples forms the foundation of the colonies that make up the Federation of Australia. This omission is an historical fact; it is not just a gaping moral or social justice issue. It has now manifested into an economic crisis that is rapidly dividing Indigenous and non-Indigenous people. Even where there has been some progress in Land Rights legislation such as the New South Wales Aboriginal Land Rights Act (1983) and the Commonwealth Native Title Act (1993), which are imperfect land schemes to exercise Indigenous interests, they impose further barriers for First Nations communities seeking to unlock economic benefits within their own Countries. 

Nowadays, even where First Nations interests in land have been increasingly recognised, the capacity to participate in the economy is complex, expensive and arduous. As the Law Council of Australia recently submitted to the Federal Inquiry into the economic self-determination and opportunities for First Nations Australians, ‘the Commonwealth Government should focus on streamlining the interaction between the Native Title Act 1993 (Cth) and state and territory native title legislation. This [sic] regulatory framework for native title holders is complicated and difficult to navigate.’

Regardless, the Australian Government is currently appealing the successful $700 million compensation claim by the Gumatj Clan (of the Northern Territory) to the High Court, which is critical to the question of the acquisition of land ‘on just terms’. The Commonwealth’s principle submissions are that (i) laws made under section 122 do not attract the ‘on just terms’ and (ii) Native Title rights are ‘inherently defeasible’ and therefore do not attract the ‘on just terms’ requirement. Or, in other words, is not ‘property’. This case has potentially enormous consequences for First Nations people seeking compensation for their land. The High Court will explore, implicitly, whether white possession and occupation of land is required to validate as a basis for property rights. 

Reckoning, unlike reconciliation, is the need to confront this historic power imbalance implanted by the inception of the western rule of law, particularly in the context of land interests, that enabled the conceptualisation of whiteness as property and thus denying Indigenous peoples the same rights in perpetuity. 

Unless, of course, Indigenous people are willing to participate in capitalism which inevitably comes with its ethical implications for those who seek justice on our terms, not the colonisers. I am not saying this approach is wrong or cannot create space for justice on our terms, but that it is a real dilemma faced by First Nations people who in their plight to dismantle colonial structures inexorably arrive at the impasse of examining if their approach is upholding the very structures that waged war on their Ancestors. 

Would Windradyne, the Wiradjuri Warrior who led the resistance against the colonial empire be content with how we care and continue to fight for Country? That guwayu, even after all this time we have been here on our Country, so much has changed in a mere 200 years since the invasion of our lands, justified in the declaration of Martial Law. Reckoning with the rule of law requires a proper analysis of how western law is weaponised to delegitimise First Nations peoples claims to their Country. 

It is not only an honour to sit on Wiradjuri Country, it is perhaps the bravest thing I can do – to live my life with Yindyamarra Winanganha.

Winhangadilinya.