Part Fifteen of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini.
Delegates at the Uluru meetings elected a working group to work with both politicians and the Indigenous community to finalise the reforms proposed in the Uluru Statement.
“People in positions like [Joyce] should be careful not to be speculating that that’s what we want when it has not been finalised,” said Mr Thomas Mayor, Northern Territory delegate and a Badhulgau and Kulkalaig man. “I think that he should invite the working group that has been elected to talk to him about that.”
The Referendum Council co-chair, Mr Mark Leibler, asked people to withhold judgment on the proposal until they have seen the Referendum Council’s full report. He also described the voice to parliament as an “advisory body”.
Mr Ken Wyatt, a Liberal MP, and Ms Linda Burney, a Labor MP, both of whom are Indigenous, said that it was important that any option for reform was given bipartisan support.
Ms Burney also raised questions about the proposals put forward in the Uluru statement, saying a constitutionally enshrined voice to parliament could have implications for the National Congress, and questioned why removing the race power was not listed as a priority out of the delegations.
Ms Burney said it was important that any proposal be pragmatic. “Whatever it’s going to be, looks like it won’t be successful, then you’d have to ask yourself, would you put the question to a referendum?” … “We don’t want this process set back two or three generations. We want it to go forward and I think there is the will, the capacity and the determination to make that happen.” (AM – Bipartisan approach crucial in pathway to Indigenous referendum: Wyatt and Burney, The ABC).
Ms Shireen Morris, the constitutional reform advisor at Cape York Institute, said that the response from politicians to the Uluru Statement showed why an Indigenous voice to Parliament was needed.
“Indigenous people achieve united consensus on the kind of recognition they want, pollies and white experts immediately explain why they’re wrong,” Ms Morris said on Twitter. “This is exactly why Indigenous peoples have asked for a constitutionally enshrined voice: their voice is sidelined in decisions about them.” … “As Australians, we need to back what Indigenous people are seeking here. It’s an achievable, smart consensus position. Let’s get behind it.”
But those who were present said that adding an additional Indigenous chamber of parliament, as Joyce presumes, was not on the table.
Professor Appleby had attended 11 of the 12 regional dialogues held by the Referendum Council, and was also at the Uluru gathering to provide legal advice and help drafting the proposals.
Most delegates who spoke to Guardian Australia about the proposed model at Uluru described it as a representative body that Parliament would listen to when forming legislation which specifically affected Indigenous and Torres Strait Islander Peoples; something more closely resembling the dismantled Aboriginal and Torres Strait Islander Commission than another layer of government.
Despite the Statement, a number of politicians said they still supported a recognition statement.
“I do want to see Aboriginal people represented in the national constitution as they should always have been,” the Western Australian Premier, Mark McGowan, said. “I think we should deal with that first before we move on to other issues.”
Dr Kate Galloway, from Bond University law school, said that the Uluru statement is one of a collection of pronouncements of high pedigree, petitions, statements and declarations, made by Indigenous leaders over centuries. Each has made its own impact, without any one being a direct path to settlement. This Statement, too, offers no quick fix. But it ignites a fuse that cannot be extinguished. It is now not possible to ignore substantive constitutional reform, or treaty.
“The Uluru Statement is entirely consonant with international law – for politicians and commentators to suggest that the proposals are somehow unattainable, or abstract aspirations, is disingenuous.”
Dr Galloway lamented that “[p]olitical response to the statement has been ambivalent at best – where ambivalence sounds a death knell for mainstream engagement by a tentative public. The Prime Minister pointed out, for example, that any claim must be acceptable to the general public to succeed. In the next breath he moved on to discuss the success of the 1967 Referendum.” She was of course referring to the Leader of the Opposition warning that the statement deserves ‘open mind’, while Prime Minister was warning caution against possible challenges. (Shorten says Uluru statement deserves ‘open mind’, but Turnbull cautious of challenges, The ABC).
She must have also had in mind the un-informed utterances by Deputy Prime Minister Joyce (Barnaby Joyce Predicts Uluru Statement ‘Just Won’t Fly’, The Huffington Post).
Dr Galloway was quite explicit in her criticism: “The Prime Minister’s failure to embrace the statement was disingenuous in light of the political reality of , where there was no case presented for a no vote. In other words, based on the experience of , if politicians choose to accept the aspirations voiced by the Uluru Statement, the public will likely be brought along too …
It is too soon to know, of course, the fate of the institutional change proposed in the statement. But our elected politicians already have a long way to go to meet the standards of leadership embodied in the Uluru Statement. The nation deserves better.” (Uluru Statement has lit a fuse that cannot go out, Eureka Street).
Mr John Roskam, the executive director of the Institute of Public Affairs (I.P.A.), a Melbourne conservative think tank which is highly influential in the Coalition, indicated quite firmly that a “constitutionally enshrined Indigenous voice in parliament is unlikely to ever be accepted by the majority in the Liberal party.” He was clearly rejecting the proposal, labelling it an attempt to “enshrine racial division in the constitution.”
In 2015 the I.P.A. campaigned against constitutional recognition, arguing instead that all references to race should be removed from the Constitution to assert the principle of equality.
In 2017 Mr. Roskam told the Guardian Australia that parliament represents all Australians and the suggestion of a separate Indigenous voice was “just as offensive as to give people a special say due to their religion, or gender or anything else.” He added: “In reality, all policy decisions are Indigenous policy decisions, because Indigenous Australians are Australians.”
Mr Roskam said that the “moral force [of the Indigenous body] would be very significant, in effect making it difficult to override it,” describing it as an “effective veto” on matters of policy such as the Northern Territory intervention.
On the proposed treaty, Mr Roskam argued that it was impossible for the crown – representing all Australians – to make an agreement with a subset of Australians, the Indigenous Nations. [Emphasis added] “The idea of a treaty is radical identity politics. In any case a country cannot have a treaty with itself.”
He said that the point of the 1967 referendum, in which Australia resolved to count Indigenous People in the census, was “to make us all the same” but the recognition proposal would do the opposite.
In Mr Rockam’s view; “All parties should focus on what unites Australians and brings us together. These proposals are unlikely to ever be accepted by the majority of the Liberal Party.” (Paul Karp and Katharine Murphy, Liberals won’t accept Indigenous recognition model, Institute of Public Affairs warns, The Guardian).
Conservative Coalition MPs including Craig Kelly and George Christensen have lined up to criticise the proposal, but it was supported by MP Julian Leeser, suggesting the issue would be highly divisive in the party room.
Even at the gathering, however, agreement on the proceedings was by no means total:
On the afternoon of 25 May 2017, seven delegates from New South Wales and Victoria walked out of the debate, saying that the position being developed would result in Indigenous and Torres Strait Islander Peoples “ceding their sovereignty by willingly coming under white man’s law, the Australian Constitution.”
The dissenting delegates were joined by more than 30 supporters in walking away from the gathering.
It was the culmination of simmering tensions expressed by a number of delegates over the previous day and a half of meetings over the structure and process of the meetings and the topic of constitutional recognition itself, which some believe cannot be done without losing sovereignty.
“It’s not a dialogue, it’s a one-way conversation,” complained Ms Jenny Munroe, a Wiradjuri woman and well-known political activist from Redfern, New South Wales. She said: “Every time we try and raise an issue our voices are silenced. They talk about respect inside this room, they don’t show respect … I’ve asked the question in there, how does our sovereignty remain intact when we go into the white man’s constitution?”
She continued: “We have chosen to walk away from this debate and this dialogue today because it is not a debate, they are not looking at any alternatives options other than the Noel Pearson roadmap. And, like native title, that will prove to be an abject failure.”
The protest was swiftly dismissed by the Referendum Council and the majority of delegates but it was supported on social media by Indigenous and Torres Strait Islander Peoples not at the convention, who said it represented a grassroots movement dissatisfied with the process.
Frustration was not confined to the protesters. Many delegates were hurt and frustrated by the way the campaign for constitutional recognition had been conducted until the regional dialogues had begun six months before, with consultation confined to discrete groups of Indigenous leaders.
Holding the convention in the Northern Territory, where the shadow of ‘the Intervention’ showed the damage a federal government could do when using constitutional powers to control Indigenous Peoples, also shaped the discussions.
“There’s a lot of raw wounds among these people … There’s the desperation in the room.” Mr Thomas Mayor, a Torres Strait man of Badhulgau and Kulkalaig heritage, said.
Mayor is the Northern Territory branch secretary of the Maritime Union; he knows how a meeting like this should work. The following day he would be one of the galvanising voices in the room encouraging a unified position.
One of the sources of tension was a series of banners saying; “we oppose recognition” and “vote no to constitutional reform.” They were taken down in response to complaints from Anangu elders, who said the banners were offensive and disrespectful to the good-faith meeting on their land.
“[We are Indigenous] people, we don’t talk with banners, we talk face to face,” said Anangu elder Ms Alison Hunt, whom Darkinjung Aboriginal Land Council chief executive Mr Sean Gordon later – speaking to the Guardian Australia – described as “instilling cultural integrity” into the discussions.
“Aboriginal people, tribal people, are quiet achievers, and they want to get the message to government in their cultural ways to get government to listen and come to the table. So banners is not our custom.”
Ms Hunt said that it was important to present a “united voice”. At the closing ceremony she danced the story of the snake people before taking to the microphone and repeating calls for unity.
She is no stranger to these types of talk, nor to big hopes and promises of treaty fading into dust.
She was at the Barunga festival in 1988 when Prime Minister Bob Hawke was presented with the bark Barunga Statement and stood beside the prime minister to translate his reply, in which he promised to negotiate a treaty within that three-year parliamentary term.
“That was the last we heard,” Ms Hunt said. “And that’s why people like my people on the lands are a bit sort of, you know, asking questions, is this another talk-fest, is this another promise? They don’t want promises, they want action. And that’s why my people are sort of watching and listening. Is this going to be the last thing for the truth, action? Or is this another talk?”
Ms Hunt said that she was speaking not just for herself, but for senior elders at Mutitjulu and for her ancestors. It was a sentiment echoed throughout the gathering.
“I am sitting here as one person but I am coming here with all of the spirits of my people and my ancestors,” Ms Shereene Currie, a Badtjala woman from K’Gari or Fraser Island, told the Guardian Australia.
Most of those who walked out on 25 May did not return to join in the standing ovation for the final statement the following day, with the result that the unanimous support does not include them.
Mr Fred Hooper, a Murrawarri man and delegate from Dubbo, New South Wales, joined the walkout but returned to the talks that afternoon, saying he owed it to the people that he was there to represent to listen and keep talking.
On the last day he said that the Uluru Statement was a “good document” and had his support. His continued support would be dependent on whether the new working group, formed to continue developing the preferred model, maintains a high level of community engagement.
“Listening to the statement today I think there is a roadmap to the future.” he said. “What that roadmap will look like is up to us. We need to own this process, we need to take this process forward, and a good thing I like about this is that the document says that we’ve never ceded our sovereignty.” (Calla Wahlquist, We want referendum’: intensive Uluru talks call for an end to the fighting, The Guardian).
The dilemma presented by Ms Munroe, how could the Indigenous People retain their sovereignty and “go into the white man’s Constitution” was highlighting the contradiction in the Uluru Statement: how to avoid the risk that any form of constitutional recognition could be regarded as to stand in lieu of treaties, because it privileges a Constitution to which Indigenous Peoples have not agreed.
A treaty must be the foundation for constitutional recognition, not the reverse. Furthermore, the recognition of Indigenous Peoples within the Constitution is not a right that the Australian Government legitimately holds, because it does not have a right to constitute itself as a sovereign power. This right could only come from a treaty process. To accept the status of the Constitution was, by implication and the view of the objectors, to concede that treaties will be unnecessary.
The advantages of treaties are little understood. “Australian governments have opposed them since Batman’s crude attempt to subvert the colonial government’s land restrictions in 1835. But it is only through treaties that the right of the invaders, for instance the right to write a constitution, could be legitimised. Without them, there is no legal or moral foundation for Australian nationhood, nor guarantee of protection for Indigenous Peoples’ sovereign rights. Abandoning Batman’s attempt to legitimacy did have a cascading effect for the law’s interface with Indigenous People: it explained the Australian government’s prevailing interest in Crown title and its dismissal of competing claims.” (J. Jantos, On this day: Batman treaty annulled, Australian Geographic).
For 204 years Australia denied that Indigenous sovereignty existed, based on the false – and quite convenient – premise that Indigenous Peoples were too primitive or incompetent to warrant recognition. The sovereignty of the Crown was established by force and is maintained through the institutions set up by the invaders and the indifference of an ignorant majority population, who hold power and continue to deny Indigenous sovereignty. The Mabo decision recognised it only until 1788, after which most of it was assumed to be extinguished.
Indigenous peoples have consistently protested this denial and, just as consistently, sought to meet Australian governments halfway. But they have been trampled over, subjected, exploited and disrespected in many forms of violence to silence their demands.
Treaties are the only way to put Australia on the legal and moral footing which it requires to have legitimacy and integrity. That this is not the case is demonstrated in the ambivalence over what the invaders’ institutions call Australia Day and the Indigenous People call Invasion Day. There is no day in which those two groups can celebrate together, because those who hold the power are unable/unwilling to offer a peace-making encounter of the two peoples.
Whether, as it seems to be proposed by the Uluru Statement, it will be possible to establish a dual and complementary sovereignty, so that the Indigenous and Torres Strait Islander Peoples will have a dual and complementary sovereignty, while the former invaders will have one, legitimised by treaty, is a very difficult passage, requiring good will, reciprocal respect and good faith.
‘Conservatively minded’ politicians, some Indigenous representatives, but above all those who are interested in maintaining things-as-they-are use alarmist language and call those committed to treaties as radicals. But it is not so: a treaty is a generous conclusion – a Makarrata, a process of conflict resolution, peacemaking and justice, expressed into legal, moral and binding agreements.
A treaty seems the only way ‘to decolonise’ so as to setting up a just and self-respecting country. And those who call for a treaty deserve to be listened to with well-meaning consideration. (G. Macdonald, After Uluru, we must focus on a treaty ahead of constitutional recognition, The Conversation).
Continued Monday with: Renewed hope at Garma Festival
Previous instalment: The Uluru gathering (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.