Constitutional Recognition? Treaty First!

Between 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.

 

In order 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 language.

 

A new 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.

 

The Constitutional conservatives are against the Constitution containing any racial discrimination prohibition on the grounds that it would diminish the power of the Parliament.

Most 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 concerns.

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’t  discordant 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 18^th 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.

 

This is 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 overcome.

 

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 pervasive  mindset 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 socio-economic pyramid.

 

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 go!

 

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:

 

We have the benefit of hindsight and know that constitutional recognition, will not change the mortality or incarceration rates of our people. It will not stop the removal of children or turn the water back on in remote communities.

 

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 yearn for.

 

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.

 

Treaty is 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.