This is the blog of a Gamileraay woman; legal professional, writer, mother, lover, daughter, sister, cousin, political agitator and human rights and social justice advocate. I am an unapologetic advocate for Treaty!
Me? Sit down
I am a Gamileraay woman who wants to leave this world better than it was when I arrived but we are going backwards which makes me angry and the result is I have a lot to say and sometime, the truth makes me unpopular.
I am also a suffering optimist, I try to see positivity in things but find that is generally only my family that provides the positivity in an otherwise politically depressing world.
Stick around and nod your head, join the discussion and give me a piece of your mind.
the Recognise campaign and Noel Pearson’s latest support for a conservative
campaign for Declaration of Recognition, one thing is certain, constitutional
recognition is on the agenda. Despite noted Indigenous support, these campaigns
are looked upon with suspicion mainly because of the fact that the question
remains over whether it would affect the sovereignty of Indigenous people,
especially with respect to land rights.
to effect the changes suggested by the constitutional recognition campaigns, we
would need to have a referendum. This would not be our first referendum.
On 27 May 1967 a referendum was held to seek a determination of two
questions. The first question, referred to as the 'nexus question' was an
attempt to alter the balance of numbers in the Senate and the House of
Representatives. The second question was to determine whether two references in
the Australian Constitution, which discriminated against Aboriginal people,
should be removed.
The Constitution was changed, giving formal effect to the referendum
result, by the Constitution Alteration (Aboriginals) 1967 (Act No 55 of
1967), which received assent on 10 August 1967.
The proposed changes put forth by the Recognise campaign are:
· The removal of section 25
which states that the States can ban people from voting based on their race;
· The removal of section
51(xxxvi) which can be used to pass laws that discriminate against people based
on their race;
· The insertion of a new section
51A to recognise Aboriginal and Torres Strait Islander peoples and to preserve
the Australian Government’s ability to pass laws for the ‘benefit’ of
Aboriginal and Torres Strait Islander peoples;
· The insertion of a new section
127A recognising Aboriginal and Torres Strait Islander languages were this
country’s first tongues, while confirming that English is Australia’s national
proposal for recognising Indigenous Australians drafted by Constitutional
conservatives Damien Freeman and Julian Leeser supports a separate declaration
of recognition as opposed to a symbolic preamble to the Constitution or a new
Section 51A. This approach is supported by Noel Pearson.
Constitutional conservatives are against the Constitution containing any racial discrimination prohibition on the grounds that it
would diminish the power of the Parliament.
constitutional law experts who have expressed their support for constitutional
recognition have also expressed their support for Treaty due to the fact that
they consider that the changes to the Australian Constitution merely redress
the many racist provisions within the nation’s founding document and the issue
of sovereignty must be conveyed in a Treaty.
Megan Davis, an Aboriginal and South Sea Islander
woman who is the Director of the Indigenous Law Centre and a UN expert member of the United Nations
Permanent Forum on Indigenous Issues, has stated “constitutional recognition—whether amendment of the race power or a
non-discrimination clause—does not foreclose on the question of sovereignty.
The Australian legal system is a system that was received from the Imperial
British Crown. Aboriginal people have never consented nor ceded. Sovereignty
did not pass from Aboriginal people to the settlers” following the Expert
Panel on the Recognition of Aboriginal and Torres Strait Islanders in 2012
however, there still seems to be concerns within the community regarding the
threat to land rights.
These concerns are real and relevant and those in positions of power to
effect change, ought to make steps to liaise with community leaders to address
Without seeing the wording of the proposed changes, I cannot form a view
on whether I am for or against but currently, without information - I cannot
support it in good faith.
Further, I am an unapologetic advocate FOR Treaty FIRST.
The discussion surrounding treaty, for me, is inherently frustrating.
There are so many obstacles to treaty; from the lack of awareness of
non-Indigenous Australians as to what a Treaty is and why on earth Indigenous
people would want one; the political factions (Indigenous and non-Indigenous)
competing between Treaty or Constitutional recognition as if it is a one or the
other dilemma; and ultimately, the political machinations of how a treaty would
be put together functionally to ensure maximum support of the Indigenous people
and the government.
Despite many attempts to rewrite and sanitise history, we know that,
under English law at the time of Governor
Philip’s claim, there were three legal regimes under which a colony
could be acquired:
1. Settlement – where territory is uninhabited and the
‘settlers’ brought English law with them;
2. Conquest – where territory was inhabited and the native
laws survived provided they weren’tdiscordant with laws of the crown; or
3. Cession – where the territory was inhabited and the
sovereignty was ceded to the Crown and the applicable law would be determined
by agreement, but in the absence of any agreed changes, local law would
continue to apply.
The prevailing legal doctrine is that Australia was acquired
through settlement despite the presence of an Indigenous population because the
English common law contained a definition of ‘uninhabited lands’ which
considered lands uninhabited if they contained peoples ‘uncivilised’ by the 18th
century English norms.
Ultimately, through the doctrine of terra
nullius – Indigenous people were subverted as savages and this was
integrated into the Australian Constitution which was drafted on the
premise of Indigenous people being so inferior as to not garner a mention and
considered to be a fading race in any event.
Terra nullius was a deliberate social construction designed to enable
settlement, parcel of land at a time to enable expansion of colonial
settlements and to do so without any compensation to the lawful owners.
The illegality of the actions of the Crown was clear even as far back as
1832 where the Chief Protector of Aborigines at Port Philip, George Robinson wrote;
I am at a
loss to conceive by what tenure we hold this country, for it does not appear to
be that we either hold it by conquest or by right of purchase.
not new to Indigenous people, we know that this country was not ‘settled.’ We
know that sovereignty was not ceded. It is this disparity of understanding
between what we know and what white Australia is told happened that we need to
This is a
critical point to the success or failure of any cause – the truth and the wide
acceptance of truth as fact. The average Australian simply does not know about
the fight for equality and rights that the Indigenous people have been waging
for 227 years.
The don’t know that Indigenous people were the subjects of forced and
violent dispersals from their cultural lands; they were the victims of
massacres and murders; rapes and retributory attacks to any resistance; there
were genocidal policies based on pseudoscience of Indigenous inferiority; there
were sinister attempts to murder countless Indigenous people when the
introduced diseases weren’t killing enough Indigenous people to the white man’s
liking and there was a pervasivemindset
of the Indigenous people being sub-human.
Some Australians may recall the 1967 Referendum and all of the hope and
positivity surrounding the concept of equality in the lead up to the vote and
think that following this purportedly momentous event in Australian history
that the Aboriginal people then had the equality they fought for.
We know that is not the case, however, there are many generations -
especially the younger generations, that are simply not taught about the
history of this nation, that are not taught about the Indigenous culture beyond
boomerangs and spears, they do not know that statistically we have the highest
Indigenous incarceration rate compared to non-Indigenous people in the world,
they do not know of our appalling mortality rates, they do not know about the
welfare indicators that demonstrate Indigenous people are the lowest on the
This is not an indictment on the Australians that do not know, this is
an indictment on the education system and those that draft the curriculum that
perpetuates the ignorance that pervades our country and it is an indictment on
main stream media for failing to report on the real issues, on the brave men
and women agitating for the very thing that Australia hangs its hat on: A fair
A fair go cannot be achieved without a Treaty.
A Treaty would be the basis upon which the sovereign Indigenous people
of Australia and the Government could negotiate the terms of rights to land,
minerals and resources and the self-governing of communities. It would be a
binding agreement that would have sanctions that would deter breaches of the
terms of the treaty.
Whilst I advocate for treaty, I am not flippant in thinking that getting
a treaty is going to be easy because it is the least palatable option for
Governments because it holds them to a set of obligations that they ordinarily
would not live up to.
Treaty is essential because 227 years after colonisation we remain at
the bottom of the socio-economic pyramid; because after 227 years children are
still being removed arbitrarily from Aboriginal families; because after 227
years racism remains rife in society and none more so against Aboriginal
people; because after 227 years we are still being subjected to cruel
punishments including water being switched off, communities being closed and
being forced into work programs that provide less than the minimum wage and
then having to buy groceries in government run shops that charge $6 for a kilo of flour.
To arbitrarily decide the fate of our people without our consultation
and agreement will always be met with resistance.
And for those who champion the Recognise campaign and its intent to change the
constitution to recognise Indigenous people, I say:
Constitutional change is symbolic, it is not a cure all.
A treaty is vital to the future of this nation, of this I am certain.
But again, I do know that it is not a cure all.
A Treaty is the first meaningful step in ensuring that there is
engagement of all in the success of its outcomes. It will leave Indigenous
people empowered and part of something positive in history as opposed to
disillusioned and disappointed at the millions of broken promises and setbacks
we have suffered over the last 227 years.
The two critical elements to bridging the cultural divide, in my mind,
are empathy and education.
In my mind, one cannot achieve true empathy without an education that
sets the context for empathy. Education is critical and the education of this
nation’s black history will provide the major shift in consciousness that we
People need to learn about Indigenous history and culture and do so with
an open mind and pure heart. Once they know and truly understand and consider
the impact such devastation would have on their lives, their well-being, their
resolve to fight another day – only then will we really be able to have a
meaningful discussion about what it is going to take to heal hurts and have
hope for a future our ancestors would be proud of.
the insurance policy we need that we can hold the government accountable for
their actions so real gains can be made for the Indigenous people of Australia.