Pearls and Irritations

“For me, indigenous recognition won’t be changing our constitution so much as completing it.” – Tony Abbot, 2015.

When on the 7^th of February 1788 the British claimed the eastern half of Australia they left us with two abiding problems. They assumed that the First Nations were not in actual possession of their own homelands and that they had neither laws nor customs which could be given formal recognition. As a result they departed from what had been customary practice in North America of respecting what was called Indian title to traditional property and determining that the indigenous tribes held a form of internal sovereignty. They were ‘domestic dependent nations’ with whom many treaties were negotiated. The anomalous situation in New South Wales was noted by Jeremy Bentham, the leading political philosopher of the time. He wrote in 1792 that there had been no negotiations with the Aborigines and no treaties had been drafted and signed. He predicted that this would create enduring problems.’ The flaw’, he wrote,’ is an incurable one.’

It took Australia over two hundred years to begin to remedy this situation. In 1992 the High Court’s decision in Mabo v Queensland, no. 2 recognised native title and overturned one aspect of terra-nullius. But the twin problem of the political and legal status of the First Nations remains where it was in 1788. Not that it seemed to matter. For so long Australians assumed that the Aborigines, like other indigenous and tribal people, would either be assimilated or would ‘die out’ as people were still saying as recently as the 1940’s and 1950’s. But change came rapidly in the next generation driven as much by global as by local developments.

To seek the source of the twin pillars of the Uluru Statement—a voice to parliament and a Makarrata or treaty we need to go back to the Referendum of 1967 and the assumption of federal powers over indigenous policy development. The Holt government decided that it needed a permanent body to advise it in an area where it had little experience and established the Council for Aboriginal Affairs which operated from 1967 to 1976. In parliament, Holt explained that the government wished ’to have continually available to it the best advice on Aboriginal affairs it can get on a national level.’ The Council he added would advise the government on the formulation of national policies and ‘consult with Commonwealth departments and authorities whose activities have a bearing on Aboriginal welfare’. It was also to act as the Commonwealth agency for ensuring co-operation between Commonwealth and State authorities at the official level.

The Voice to Parliament which now meets with both ignorance and misunderstanding has been with us for over fifty years although the bodies in question varied in name, structure and longevity. There was the National Aboriginal Consultative Committee, 1977-1985 (NAC), the Aboriginal and Torres Strait Islander Commission, 1989-2005 (ATSIC), the National Congress of Australia’s First Peoples, 2009-2019, the Prime Minister’s Indigenous Advisory Council,2013- 2019. And then a year after the Uluru Statement 14 Indigenous organisations met with Prime Minister Morrison in December 2018 leading to the National Agreement on Closing the Gap which brought together the Coalition of Peak (Indigenous) Organisations, the Commonwealth, State and Territory Governments and the Australian Local Government Association. It gives the indigenous organisations unprecedented influence enabling it to ‘strengthen and establish partnerships and shared decision-making.’

The call of the delegates at Uluru for a Voice to parliament was, then, modest, unsurprising and with precedents that dated back over fifty years. The only difference was the desire for entrenchment in the constitution. And while that would guarantee continuity it would not necessarily amplify the voice. It would simply add the chosen delegates to the large corpus of professional lobbyists who have always thronged the corridors of parliament. The Official Lobbyists Register last year recorded 884 lobbyists from 279 firms who lobbied on behalf of 3691 clients. Many of them were ex-politicians or staffers, were members of old boy’s networks and would likely be far better funded than First Nation’s representatives.

The authors of the Uluru statement declared that a Makarrata or treaty was the ‘culmination of our agenda’ a proposal likely to be far more controversial than the Voice to parliament. But it too is an idea that has been seriously considered for over forty years. The Aboriginal Treaty Committee was founded in April 1979 and led by a group of prominent figures including Dr. H.C. Coombs, Judith Wright and Charles Rowley. It carried out a vigorous campaign of advocacy all over the country until 1983. It was launched by Coombs in an address broadcast on ABC radio in June 1979 in which he called for compensation for the loss of traditional land and disruption of traditional ways of life and the right of Aborigines to ‘control their own affairs and to establish their own associations for this purpose. ’At much the same time the NAC called on the government to begin the process of negotiating a treaty, adopting for the first time the Yolngu term Makarrata, at a meeting in November 1979. The Minister for Aboriginal Affairs Senator F. Chaney engaged in serious negotiations with the NAC and in September 1981 the Senate Committee on Constitutional and Legal Affairs began an examination of the feasibility of securing a compact or Makarrata between the Commonwealth and Aboriginal Australians. After two years of thorough investigations the final report was released and published in booklet form entitled Two Hundred Years Later. Now forty years old it is highly relevant to the current contentious debate leading up to the referendum. The key recommendation was that the Government should give consideration as to the preferred method of legal implementation of a compact with the Aboriginal people to be inserted within the constitution. The Committee concluded that there were several advantages to be had by proceeding with a referendum. The first ‘and by no means insignificant’ was the symbolic value of the process whereby the non-Aboriginal community would be given ‘the opportunity to recognise the failings of the past 200 years and to acknowledge their commitment to a new beginning in relations between themselves and the descendants on the nation’s original inhabitants.’

By the time Two Hundred Years Later was published the Hawke government had come to power. In 1987 Hawke indicated that he wished to take action on the matter of a treaty during the bi-centenary year 1988. His chance came when he attended the Barunga Festival in Arnhem Land where he was presented with two paintings and text which called for the Commonwealth Parliament to negotiate a treaty ‘recognising our prior ownership, continued occupation and sovereignty and affirming our human rights and freedom.’ It was a more radical declaration than the Uluru Statement of nearly thirty years later. In response Hawke declared that he would have a treaty created between Aboriginal people and the Australian government by 1990. It never eventuated. In its place the government established the Reconciliation Council which was charged with establishing a decade long process of community engagement and education to conclude with the drafting of a treaty. But by 2001 the Howard government was firmly entrenched and the whole purpose of reconciliation had been subverted. Legal and political rights which had already been under active consideration for over twenty years were replaced by what Howard called ‘practical reconciliation.’

Which brings us to the provenance of the Uluru Statement. We can pin it down to both time and place. The process was initiated in July 2015 by Tony Abbott who at the time was both Prime Minister and Minister for Aboriginal Affairs. He invited a select group of 40 First Nations’ leaders to a meeting at Kirribilli House to discuss ways in which their communities could be recognised in the constitution. The Leader of the Opposition also attended. Abbott told his select audience that:

This is a very important national crusade, it’s very important to me, It’s very important to the indigenous people of our country and it should be very important to all of us who want to see our country whole. And for me, indigenous recognition won’t be changing our constitution so much as completing it.

Much of the discussion was about a declaration recognising the First Nation in the constitution but there was also reference to what turned out to be the more controversial matter, ‘a proposed Aboriginal and Torres Strait Islander advisory body.’

Following the Kirribilli meeting the new Prime Minister Malcolm Turnbull and Bill Shorten jointly appointed a Referendum Council in December 2015 to initiate a campaign to solicit the views of the First Nations communities all over the country which would culminate in a final meeting at Uluru in May 2017.The extensive survey of opinion all over the continent is by now well known. The leaders of the process observed that it was ‘unprecedented in our nation’s history and is the first time a constitutional convention has been convened with and for First Peoples.’ What was more it was the ‘most proportionately significant consultation process that has ever been undertaken with First Peoples.’

The 250 delegates finalised the Uluru Statement in May 2017 with a strong sense of achievement. It was the culmination of an extraordinary venture. They had accepted a bi-partisan commission from Australia’s political leadership to travel to ‘all points of the southern sky’ and sound out the political aspirations of the First Nations. They were able to bring all that information together and synthesise it in a few short paragraphs. Their ambitions were modest and embodied nothing that hadn’t been talked and thought about for the preceding forty years. The final paragraph of the Statement from the Heart was as eloquent as the rest of the document:

In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.

The Uluru delegates had thought they could depend on the integrity of our political leaders and the good will of the Australian people. If, as seems likely, the referendum is defeated it will be a shattering blow to a whole generation of leaders. They have been treated with profound disrespect. Like children they have been told that they don’t know what is good for them. As Noel Pearson said, they offered their hand to the Australian people, and if it is refused it will be a collective insult both devastating and unforgettable.

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