As Australia moves toward January 26 this year, I do so with a heavier heart than usual. There are a few reasons for this. The history of January 26 is indelibly inked, yet what comes next remains a challenge. The result of the 2023 Indigenous Voice referendum, where Australia decided Aboriginal people should not be recognized in the Constitution, nor have a say in matters that affect us, has hit many of us hard.
The ongoing promotion of January 26 as a day to “celebrate all the things we love about Australia” serves to minimize the challenges that this moment represents for Aboriginal people and for our non-Indigenous allies.
Everyone can agree January 26 marks the moment that Captain Arthur Phillip set foot on the soil of Sydney Cove and claimed the land of this continent for the British. He did so through an assumption of terra nullius. This was in keeping with 18th century European practices of colonization whereby they justified sovereignty through means of occupation (assumption of terra nullius), cession (treaty), or conquest (military force). Terra nullius was found much later to be nothing more than a legal fiction. It failed to recognize Aboriginal peoples’ society and relationships with the lands, waters, and skies for what it was: pre-existing sovereignty of Aboriginal and Torres Strait Islander peoples. We have always known, and the laws of Australia have recognized since 1993, that Australia was not terra nullius. This crucial detail underpins the ongoing challenges of national identity when it comes to January 26.
Many people believe January 26 is the day Australia came into being. It’s not. Australia was not Australia until the ratification of the 1901 Constitution, which had followed a series of constitutional conventions, the first in 1891. This heralded a new phase in the colonizers’ history, creating a Commonwealth of six colonies under one federal system, based on the British Westminster System. Aboriginal peoples were not included in the constitutional conventions, nor were any represented in any early Australian Parliament. Despite this, the new constitution contained two specific clauses pertaining to Aboriginal peoples: Section 51(xxvi) around not being able to make specific laws regarding Aboriginal people; and, notably in this context, Section 127 which excluded Aboriginal people from being counted a part of the Australian population in the national census.
On the same day, a historic meeting of the Australian Aborigines League and the Aboriginal Progressive Association was held in Sydney at Australia Hall declaring January 26 a “Day of Mourning” and seeking citizenship rights and freedom for all Aboriginal peoples. January 26 has only been a national public holiday since 1994. Before then, the date was variously acknowledged as First Landing Day, Anniversary Day, Foundation Day, Survival Day, and the Day of Mourning. Despite the fact that Aboriginal people were not reported as “amongst the people” in the census, it is known that the Aboriginal population had dropped dramatically from that of 1788. By 1901, an estimated 150,000 Aboriginal people accounted for 4 percent of the total population, estimated to be around 3,788,120.
Since the Apology to Australia’s Indigenous Peoples offered by then-Prime Minister Kevin Rudd on February 13, 2008, the history of this nation is no longer in dispute. The effects of the original act of Arthur Philip and the Crown are still seen today in health outcomes, incarceration rates, out of home care, criminalization of the effects of intergenerational grief, among others. The Annual Close the Gap reports and commentary still show life disparities across health, employment, home ownership, and educational attainment. The Indigenous Voice referendum was a step toward completing the unfinished business of this land. The ensuing debate saw most agree on the profound disadvantage Aboriginal people and the many injustices faced by people since 1788.