Part Eleven of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini.
In 2012 the government set up the ‘Recognise’ campaign, overseen by Reconciliation Australia. Recognise partnered with more than 180 organisations, and its distinctive “R” logo was used by sporting teams and companies, but opponents of constitutional recognition quickly reinterpreted it as “refuse”. With opposition to recognition mounting, the campaign was abandoned – it seems – in August 2017. (‘Recognise campaign ends after making ‘significant contribution’‘, A.B.C. News, 11 August /2017).
On 13 February 2013 the federal parliament passed an Act of Recognition which formally recognised the presence of Indigenous and Torres Strait Islander People in Australia before white settlement. (Aboriginal and Torres Strait Islander Peoples Recognition Act 2013, No. 18, 2013, An Act to provide for the recognition of Aboriginal and Torres Strait Islander peoples, and for related purposes, [Assented to 27 March 2013], Aboriginal and Torres Strait Islander Peoples Recognition Act).
Also in 2013 the Australian Government planned a nationwide referendum to recognise Indigenous People in the preamble of the Constitution, but it shelved the plan later, citing low public support. (‘Australian PM vows referendum to recognise Aboriginals’, TheWest.com.au, 10/July 2013) It later slated the referendum for 2017, coinciding with the fiftieth anniversary of the 1967 Referendum, a plan which also did not eventuate.
Why do Indigenous People reject constitutional recognition?
While the movement for constitutional recognition appeared strong and vocal, many Indigenous People reject it. (‘Sovereignty: not a radical concept’, The Tracker, 19 November 2013).
Indigenous People wanted – and still want – a treaty. (‘Indigenous Australians want treaty, not constitutional recognition, says elder’, The Guardian, 12 July 2015)
There is a huge lack of trust towards the government and its campaign. Dr Mary Graham a Kombumerri woman through her father’s heritage and affiliated with Wakka Wakka through her mother’s people, who is also a political scientist, holds the view that “constitutional recognition is a way of promising something, but with no real substance.”
It is a view echoed in many communities throughout Australia. Even politicians know about this. Victorian Aboriginal Affairs Minister Natalie Hutchins, M.P., who is also Minister for Local Government and Minister for Industrial Relations, found that Indigenous communities “consistently” express opposition to constitutional recognition. And a “large and diverse audience” of 500 Indigenous People unanimously rejected recognition in the constitution at a government consultation meeting in February 2016. (‘Recognise Rejected: Historic Meeting Of 500 Black Leaders Unanimously Opposes Constitutional Recognition’, New Matilda, 8 February 2016).
There is also fear in the Indigenous community that the government wants to use recognition as a distraction from the real problems.
Professor Gary Edward Foley, a Gumbainggir activist, academic, writer and actor, best known for his role in establishing the Aboriginal Tent Embassy in Canberra in 1972 and for establishing an Aboriginal Legal Service in Redfern in the 1970s, believes that the government just wants “to divert our attention from the real issues.”
“Who gives a damn about whether we’re mentioned in the Australian Constitution,” Foley says. “What real difference will it make? It’s a grand token gesture and will mean nothing in the long run, so it’s a waste of time for people to be even talking about it.” (‘Constitutional recognition will do nothing for Aborigines’, The Sydney Morning Herald, 25 July 2014).
Mr Robbie Thorpe, from the Krautungalung people of the Gunnai Nation, the traditional owners of Lake Tyers, told The Tracker newspaper that a focus on constitutional reform equates to “taking us onto the back of the White Australia Policy, 100 years later.”The [Australian] government set up the policy in order to create an ‘all-white Australia.’ (Robbie Thorpe, Treaty Republic).
Others believe that constitutional recognition could mean the end of the fight for a treaty.
Mr Michael Anderson, leader of the Euahlayi Peoples, and one of the founders of the Aboriginal Tent Embassy, a semi-permanent assemblage where residing activists claim to represent the political rights of Indigenous People, erected on the lawn opposite Old Parliament House in Canberra, suggests that “the real hidden agenda of the proposed referendum [for constitutional recognition] is to coerce Aboriginal Nations and Peoples to become part of the Australian Constitution and by doing so consent to be governed. The Commonwealth government can then claim that Aboriginal Nations and Peoples have acquiesced. This is the main weapon the Crown has to counter our sovereignty movement.” (‘Anderson: You cannot benefit from murder … Time does not erase murder’, media release, Sovereign Union, 23 May 2014).
The refusal to recognise the sovereignty of the Crown is the fundamental hiatus between the Indigenous Peoples and the Australians.
Mr Fred Hooper, chair of the People’s Council of the Murrawarri Republic, concurs with this view. The Murrawarri Republic is a micro-nation which declared its independence from Australia in 2013, claiming territory straddling the border between New South Wales and Queensland. According to Mr Hooper, “Being recognised in the constitution, we feel, will wipe out our identity. There will no longer be separate Indigenous nations within the continent of Australia. We will all be labelled Australian Aborigines. We won’t have identity back to country. A lot of the services that are helping people that are recognised in the constitution will dry up.” (‘Always Independent: An Interview with Murrawarri Republic Chair Fred Hooper’, Sydney Criminal Lawyers, 22 April 2017).
The thinking behind these statements is that, for many Indigenous communities, the goal is not constitutional reform. The goal is sovereignty and a treaty.
According to Mr Tauto Sansbury, a Narungga man from the Yorke Peninsula of South Australia, who was born and reared on an Indigenous reserve and has dedicated his life to advocacy for his people, “60 per cent to 70 per cent of Indigenous people are interested in treaties rather than constitutional change.” (‘Indigenous Australians want treaty, not constitutional recognition, says elder’, The Guardian, 12 July 2015). Mr Sansbury was the recipient of the National Aboriginal and Islander Day Observance Committee at the 2015 N.A.I.D.O.C. Week celebrations of the history, culture and achievements of Indigenous and Torres Strait Islander Peoples.
And should self-determination be included in the Constitution?
Mr Geoff Clark, former chairman between 1999 and 2004 of the disbanded Aboriginal and Torres Strait Islander Commission, believes that there is no need to include self-determination in the Constitution’s preamble.
He said: “Aborigines probably already have the right of self-determination quite independent of the Australian Constitution.” He believed that any such inclusion would be “read down” by judges as has been done in the past with native title.
Instead Clark suggested to include a simple clause in the body of the Constitution “that the consent of the Aboriginal people is required for the application [of] laws and policies that may have an effect on Aboriginal people.” In his view, such a clause might have stopped the Northern Territory ‘Intervention’. (‘This debate must be on just terms’, readers’ letter, Koori Mail No. 489 at 23).
There are, of course, more uncompromising, radical views such as that of Mr Michael Alexander Mansell, an Indigenous lawyer and activist from north-eastern Tasmania, who is of Palawa descent from the Trawlwoolway group on his mother’s side and from the Pinterrairer group on his father’s side.
Mr Mansell attended the Uluru gathering in May 2017 (it had actually been elevated, by the government manipulators, to the rank of a Constitutional Convention!) and is committed to seeing the outcomes of Uluru become official policy, although remaining highly critical of its final declaration the ‘Statement from the heart’.
Mansell plainly stated that an “Aboriginal body must have the power to direct, not advise.” … The recent Uluru Summit endorsed a national ‘Voice’ to be secured in the constitution. … Hence the call for a referendum.
That proposal looks dead in the water.
In the meantime, somehow, this ‘Voice’ came to be defined as an advisory body.
A ‘Voice’ can be an indigenous decision maker, or one that advises non-indigenous decision makers. A decision-making Aboriginal body requires legislation to establish it and lay down what it can do. On the other hand, advisory bodies can be set up by the stroke of a minister’s pen. There are many indigenous advisory bodies around the country. The federal hand-picked Indigenous Advisory Council is an example.
Advocates for a constitutionally entrenched advisory body believe that ‘constitutionalising’ the body elevates its standing and guarantees its potency. They ignore the reality that it is an advisory body, no matter how it is set up. Even then, a successful referendum does not establish the advisory body – it merely authorises the parliament or government to establish it.
Some believe that getting the right words in the constitution will force governments to establish, fund and listen to an advisory body. Precedent says otherwise.”
Mansell referred to section 101 of the Constitution which explicitly provides ‘There shall be an Inter-State Commission…’ and commented: “The words could not be plainer. They seemingly impose on governments and parliaments an obligation to ensure the Commission operates. Yet no such commission exists. Parliament cannot be forced to use a constitutional power it has been given. Nor can a government be coerced, in the absence of legislation forcing its hand, to fund an advisory body or take any notice of it.
A lot of time and energy is wasted trying to protect Aboriginal bodies against government abuse of power. The task is hopeless. Look at the [Northern Territory] intervention.
Parliamentary supremacy means the whole of Australia’s political decision-making vests in State and Federal parliaments. The constitution divides up powers between these parliaments.
The constitution is no human rights document. No single constitutional change for an Aboriginal voice will alter the power arrangements. Nor could it prevent governments from supporting or dumping Aboriginal entities. So why not just accept the limits and get on with the business?
If it is better to have a Voice that decides policy instead of advising on policy, what decisions might it make? A national indigenous decision-making Voice can feasibly take charge of Aboriginal affairs. By agreement, government can be eased out of policy and funding decisions.
Effectively, a new Aboriginal body could replace the government’s Office of Indigenous Policy Co-ordination. This Voice could lobby for designated seats in parliament, and a makarrata.
Although governments would retain their power of veto over things the body might do, left to its own devices, the body could decide its own composition, establish its own priorities in health, housing, employment and increase indigenous land ownership.
It could resolve native title disputes and broker relations with governments on indigenous issues. It could argue for a guaranteed revenue base to support its priorities (3% of GDP would currently amount to about $60 billion, nearly twice the size of the existing allocation).
Of course, none of this would stop a government in the future from dumping the whole arrangement.”
Mansell’s solution? “Short of Aborigines establishing an independent nation, over which Australia would have no authority, or an Aboriginal 7th State, the latter of which the constitution protects against State or Federal interference, we have to make the best of what is available.
Ironically, the bigger picture possibilities of an independent nation or a 7th State do not require a referendum. They are established by simple legislation.” (‘Uluru ‘Statement From The Heart’ Lacks Real Teeth And Reality’, New Matilda, 9 August 2017).
Mansell has recently published a book titled Treaty and statehood: Aboriginal self-determination, Federation Press, Sydney 2016. In the book Michael examines the options for empowering Indigenous and Torres Strait Islanders which, quite timely, include a treaty.
To this kaleidoscopic parade of the problems affecting Indigenous Peoples one should add the relative recent Declaration on the Rights of Indigenous Peoples. It is worth examining several aspects of it because the same difficulties arising at the national level seem to have appeared in the international stage.
There the issues presented themselves in the usual, often rhetorical terms, of discovery doctrine, ‘civilising mission’ and lands inhabited by Indigenous Peoples, along with the highfaluting notions of manifest destiny and Indigenism.
The United Nations Declaration on the Rights of Indigenous Peoples, U.N.D.R.I.P. was adopted by the General Assembly on 13 September 2007, by a majority of 144 states in favour, and with 11 abstentions. There were four votes against, interestingly enough from Australia, Canada, New Zealand and the United States.
The Declaration was over 25 years in the making. The idea originated in 1982 when the U.N. Economic and Social Council set up its Working Group on Indigenous Populations, W.G.I.P., established as a result of a study by Special Rapporteur José Ricardo Martínez Cobo on the problem of discrimination faced by Indigenous Peoples. Charged with developing human rights standards which would protect Indigenous Peoples, in 1985 the Working Group began working on drafting the Declaration. The draft was ready in 1993 and was submitted to the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, which gave its approval the following year. During this the International Labour Organisation adopted the Indigenous and Tribal Peoples Convention, 1989 (No. 169).
The Draft Declaration was then referred to the Commission on Human Rights, which established another Working Group to examine its terms. Over the following years this Working Group met on 11 occasions to examine and fine-tune the Draft Declaration and its provisions. Progress was slow because of certain states’ concerns regarding some key provisions of the Declaration, such as Indigenous Peoples’ right to self-determination and the control over natural resources existing on Indigenous Peoples’ traditional lands. The final version of the Declaration was adopted on 29 June 2006 by the 47-member Human Rights Council – the successor body to the Commission on Human Rights, with 30 member states in favour, 2 against, 12 abstentions, and 3 absentees.
While as a General Assembly Declaration it is not a legally binding instrument under international law, in the view of the United Nations it does “represent the dynamic development of international legal norms and it reflects the commitment of the UN’s member states to move in certain directions.” (https://www.un.org/esa/socdev/unpfii/documents/FAQsindigenousdeclaration.pdf).
As far the United Nations is concerned, the Declaration sets “an important standard for the treatment of indigenous peoples that will undoubtedly be a significant tool towards eliminating human rights violations against the planet’s 370 million indigenous people and assisting them in combating discrimination and marginalisation.” The Declaration codifies “Indigenous historical grievances, contemporary challenges and socio-economic, political and cultural aspirations” and is the “culmination of generations-long efforts by Indigenous organizations to get international attention, to secure recognition for their aspirations, and to generate support for their political agendas.” (Coates, Ken (18 September 2013), Ken Coates; Terry Mitchell, eds., From aspiration to inspiration: UNDRIP finding deep traction in Indigenous communities, The Rise of the Fourth World, The Centre for International Governance Innovation (CIGI)).
The opening and Article 2 of the Declaration provide that “indigenous peoples are equal to all other peoples,” guaranteeing them the right of existence, of living free of discrimination, and entitling them as peoples to self-determination under international law.
The Declaration sets out the individual and collective rights of Indigenous Peoples, as well as their rights to culture, identity, language, employment, health, education and other issues. It also “emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations.” It “prohibits discrimination against indigenous peoples”, and it “promotes their full and effective participation in all matters that concern them and their right to remain distinct and to pursue their own visions of economic and social development.” The goal of the Declaration is to encourage countries to work alongside Indigenous Peoples to solve global issues, like development, multicultural democracy and decentralisation. According to Article 31, there is a major emphasis that the Indigenous Peoples will be able to protect their cultural heritage and other aspects of their culture and tradition, which is extremely important in preserving their heritage.
All four member states – Australia, Canada, New Zealand and the United States – which voted against have their origins as colonies of the United Kingdom, and have large non-Indigenous immigrant majorities and thriving Indigenous populations. Since then, all four countries have moved to endorse the Declaration in some more or less equivocal and informal way in which it is quite clear that it would not actually become binding law capable of being pleaded in a court.
Prior to the adoption of the Declaration, and throughout the 62nd session of the General Assembly, a number of countries – and among them Australia – expressed concern about some key issues, such as self-determination, access to lands, territories and resources and the lack of a clear definition of the term “Indigenous.” Ultimately, after agreeing on some adjustments to the Draft Declaration, a vast majority of states recognised that these issues could be addressed by each country at the national level.
The four countries which voted against continued to express serious reservations about the final text of the Declaration as placed before the General Assembly.
The Australian Government opposed the Declaration in the General Assembly vote of 2007, but has since endorsed the Declaration. Australia’s Mal Brough, Minister for Families, Community Services and Indigenous Affairs in the Howard Government in 2007, referring to the provision regarding the upholding of Indigenous Peoples’ customary legal systems, said that “There should only be one law for all Australians and we should not enshrine in law practices that are not acceptable in the modern world.”
Senator Marise Payne, now Minister for Defence in the Turnbull Government, elaborated on the Australian Government’s objections to the Declaration in a speech to the Australian Senate, expressing concerns:
– about references to self-determination and their potential to be misconstrued.
– about ignorance of contemporary realities with reference to land and resources. “They seem, to many readers, to require the recognition of Indigenous rights to lands which are now lawfully owned by other citizens, both Indigenous and non-Indigenous, and therefore to have some quite significant potential to impact on the rights of third parties.”
– over the extension of Indigenous intellectual property rights under the declaration as unnecessary under current international and Australian law.
– the potential abuse of the right under the Declaration for Indigenous Peoples to unqualified consent on matters affecting them, “which implies to some readers that they may then be able to exercise a right of veto over all matters of state, which would include national laws and other administrative measures.”
– the exclusivity of indigenous rights over intellectual, real and cultural property, which “does not acknowledge the rights of third parties – in particular, their rights to access Indigenous land and heritage and cultural objects where appropriate under national law.”
Furthermore, the Senator expressed her concern that the Declaration “fails to consider the different types of ownership and use that can be accorded to Indigenous people and the rights of third parties to property in that regard,” and that the Declaration places Indigenous customary law in a superior position to national law, and that this may “permit the exercise of practices which would not be acceptable across the board,” such as customary corporal and capital punishments.
On 11 October 2007 a desperate Prime Minister Howard pledged to hold a referendum on changing the Constitution to recognise Indigenous Peoples if re-elected. He said that the distinctiveness of people’s identity and their rights to preserve their heritage should be acknowledged.
On 3 April 2009 the Rudd government formally endorsed the Declaration.
Nevertheless, the Declaration which codifies “Indigenous historical grievances, contemporary challenges and socio-economic, political and cultural aspirations” has remained a piece of typical government fluff. (‘Constitutional recognition of Aboriginal people‘, Creative Spirits).
Reference is often made to countries in which parliaments Indigenous People are present. Comparison often does not go beyond New Zealand, Canada and the United States, if for no reason other than the assumption that there is an element for such comparison in the Anglophone nature of the language spoken in those countries.
Of course, this is rather simplistic – probably more the product of laziness than real interest in the search.
To put it simply: in the United States, under the electoral college system, each state has a number of votes which is linked to its number of members of Congress, and reflects its population. During the November 2016 election the person chosen by the college had received 62,984,825 votes equal to 46.4 per cent. The adversary had obtained 65,853,516 votes equal to 48.5 per cent. Mr Trump received 306 of the necessary 270 college votes against Ms Clinton with 232.
Only Canada and New Zealand would refer themselves as ‘parliamentary democracy’. So would Australia – and there is a big problem, for Australian electoral system is – as already seen – hardly democratic if by that one would intend ‘one person, one vote, one value’.
Continued Monday with: ‘The Westminster System’ at work
Previous instalment: A belated ‘Recognition’ and a ‘new policy’ (Part 2)
Dr. Venturino Giorgio (George) Venturini, formerly an avvocato at the Court of Appeal of Bologna, devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. He may be reach at George.Venturini@bigpond.com.au.
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