And the federal government is now, tentatively and cautiously, attempting to broker a historic peace deal.
Much of these “delicate, sensitive and complex” negotiations, as a senior public servant described them, have been done behind closed doors to protect the commercial sensitivities.
Any individual can fly the Aboriginal flag without fear, but organisations that use it for profit or put it on uniforms, are liable to pay licence holders WAM Clothing or GiftsMate, which then pay royalties to its designer, Howard Thomas.
A “Free the Flag” movement gained momentum last year when Spark Health, an Aboriginal-owned and led social enterprise, received cease-and-desist letters from WAM for selling clothing with the flag on it. The movement has attracted the support of some of the biggest Indigenous sporting names including Michael Long and Nova Peris.
After receiving a similar threat the AFL, one of the country’s most influential sporting organisations, announced last month it would not paint the flag on its playing arenas nor feature its design on its Indigenous-themed jumpers during its annual Sir Doug Nicholls round.
This week the political storm surrounding the ongoing stoush was laid bare at a public hearing of a Senate committee established to investigate how the flag can be flown more freely and how, potentially, the Commonwealth could acquire the rights.
Federal Indigenous Australians Minister Ken Wyatt has committed to doing everything he can to bring about a resolution that would respect “not only the artist of the flag, but a resolution that respects the rights, enterprise and opportunity of all Australians”.
“We shouldn’t bully our way to a satisfactory outcome,” he warned. “We must display leadership, and do what we can – we must resolve ourselves to deliver an outcome that respects Aboriginal Australians – both as a community and as an individual.”
Sally Scales, the deputy chair of the Anangu Pitjantjatjara Yankunytjatjara Arts Collective, told the committee this week that the ongoing issue reflected the exploitation that many Indigenous artists were afraid of.
“A lot is being said about Harold’s responsibilities in regard to Indigenous business, industry and Indigenous communities,” she said.
“Indigenous artists shouldn’t be put in this position. Indigenous artists should be supported to harness the full economic benefit of their artwork.”
The AFL says its decision to not enter into an agreement with the licensee was one of principle and not because of the financial circumstances arising from the COVID-19 pandemic. Its position remains that it will not enter into a financial deal while other Indigenous Australians and community groups were denied the opportunity because of the commercial terms sought by the licensee.
The league’s first Indigenous executive, Tanya Hosch, says the competition had a responsibility to be “very clear about our respect for first peoples” and the flag was one way it could demonstrate that.
“To cease doing that, I think, could send a very confusing signal to many people who are still starting to understand what the flag stands for,” says Hosch, the general manager of inclusion and social policy.
Thomas, now in his 70s, has kept a low public profile since the largely social media-driven movement gained momentum last year.
Born in Alice Springs to a Luritja woman and a Wombai man, he is credited as the first Aboriginal person to graduate from an Australian art school and holds an honorary degree at the University of Adelaide.
He will not appear in front of the inquiry and instead his lawyers will make a submission while he continues to hold discussions with the Commonwealth about the potential of it acquiring the rights to the flag.
WAM director Semele Moore, who appeared before the hearing, said the discussions were ongoing and Thomas had “specifically requested those discussions remain confidential”.
She said WAM was the exclusive licensee for a range of clothing and apparel, towels, and digital and physical media products featuring the flag, pursuant to licence agreements granted by Thomas, for “an agreed period of time”.
In a rare interview with a Darwin Indigenous radio station last year Thomas revealed he’d been stung personally by the criticism. He issued a statement at the time which asserted as the copyright holder he could choose “who I like to have a licence agreement to manufacture goods which have the Aboriginal flag on it”.
“The Aboriginal Flag is doing its job as it was intended to do, to bring unity and pride to all Aboriginals,” he said. “At times we get the few who snigger and are disenchanted. I can’t satisfy all black people who wish to break up the Aboriginal unification.”
Wyatt was just months into his new job when it emerged WAM Clothing had issued a legal threat against Spark Health. He met with Thomas about the issue in June last year, in what he described at the time as a “warm and friendly” interaction in Darwin. He added the Commonwealth would not be buying the rights.
In 2010 Wyatt became the first Indigenous man elected to the House of Representatives and in the decade since reached milestones such as the first to be appointed to the frontbench and then to cabinet following the Morrison government’s shock election win last year.
Burdened with huge expectations, he has thrown himself in a major overhaul of Closing the Gap, the government’s efforts to bridge the social and economic divide between Indigenous and non-indigenous Australians, as well delivering the government’s response to the Uluru Statement from the Heart.
This week in his home city of Perth, the 68-year-old laid bare some of the challenges he has faced in the role, saying he’d been called a “token Indigenous member”, a “coconut” and an “Uncle Tom” on social media when earlier this year he urged Black Lives Matter protesters to stay home and not risk the health and safety of the people they were marching to protect.
“There is never one right answer; complex situations require the ability to test and question ourselves and the way in which we approach policy making,” he told The West Australian’s Leadership Matters Conference.
NSW Labor MP Linda Burney, herself the first Indigenous woman elected to the House of Representatives, led the push for a Senate inquiry this month when she returned from the recent parliamentary break exercised by the AFL’s recent decision.
Burney, who has the flag tattooed on her left arm, said people had one simple question: how could this happen?
“How could the Aboriginal flag be held hostage?” she said in an impassioned speech in Parliament.
“How could a company engaged in exploitation of the flag for profit be able to stop local Aboriginal organisations using it as they long have? This is an issue of morality in my mind, and the question is: how is this right?
She said WAM should do the right thing and “give the flag back”.
“Just because something might be legal doesn’t always mean that it’s morally right,” she said.
Rob Harris is the National Affairs Editor for The Sydney Morning Herald and The Age, based at Parliament House in Canberra