tag:theconversation.com,2011:/us/topics/uluru-convention-39134/articlesUluru convention – The Conversation2017-07-18T00:18:58Ztag:theconversation.com,2011:article/803152017-07-18T00:18:58Z2017-07-18T00:18:58ZResponse to Referendum Council report suggests a narrow path forward on Indigenous constitutional reform<figure><img src="https://images.theconversation.com/files/178538/original/file-20170717-6078-1uwg98k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Referendum Council's report is the conclusion of 18 months of consultation and discussion, including six months of regional dialogues with Indigenous people.</span> <span class="attribution"><span class="source">AAP/Paul Miller</span></span></figcaption></figure><p>The Referendum Council’s <a href="https://www.referendumcouncil.org.au/final-report">final report</a>, released on Monday, accepts and supports the calls for constitutional reform made by Indigenous delegates at regional dialogues across Australia, and agreed to at the First Nations Constitutional Convention <a href="https://www.theguardian.com/australia-news/2017/may/26/uluru-talks-opt-for-sovereign-treaty-not-symbolic-constitutional-recognition">at Uluru</a> in May. </p>
<p>The report recommends meaningful reform to empower Indigenous people. But initial comments from Australia’s political leaders suggest the path to reform is still narrow. </p>
<h2>Background to the report</h2>
<p>Malcolm Turnbull and Bill Shorten established the <a href="https://www.referendumcouncil.org.au/get-the-facts">Referendum Council</a> in December 2015. Made up of 14 Indigenous and non-Indigenous members, it was <a href="https://www.referendumcouncil.org.au/dialogues">tasked with</a> providing advice on whether, and how best, to “recognise” Indigenous Australians in the Constitution.</p>
<p>Its report is the conclusion of 18 months of consultation and discussion, including six months of regional dialogues with Indigenous people.</p>
<p>The council drew on two previous reports and public submissions from across Australia. Most significantly, it oversaw an innovative process where – for the first time – Indigenous Australians themselves <a href="http://insidestory.org.au/the-long-road-to-recognition">were asked to</a> deliberate collectively and report back on what constitutional recognition meant to them.</p>
<p>This process culminated in the <a href="https://www.referendumcouncil.org.au/sites/default/files/2017-05/Uluru_Statement_From_The_Heart_0.PDF">Uluru Statement from the Heart</a>. At Uluru, Indigenous people from “all points of the southern sky” <a href="https://www.themonthly.com.au/issue/2017/july/1498831200/megan-davis/walk-two-worlds">spoke directly to the Australian people</a>, and demanded constitutional reform on three points: voice, truth, and treaty. </p>
<p>They called for:</p>
<ul>
<li><p>a <a href="http://www.abc.net.au/news/2017-05-26/constitutional-recognition-summit-decision-due-today/8560548">national representative body</a> with the power to advise parliament on laws that affect Indigenous peoples; and </p></li>
<li><p>a <a href="http://www.abc.net.au/news/2017-05-26/constitutional-recognition-rejected-by-indigenous-leaders-uluru/8563928">Makarrata Commission</a> to supervise a process of agreement-making between governments and First Nations and undertake a public truth-telling process about Australia’s history. Makarrata is a Yolngu word meaning “a coming together after a struggle”. </p></li>
</ul>
<p>Only the national representative body would involve a constitutional change. Ordinary legislation could establish the Makarrata Commission.</p>
<h2>What does the Referendum Council report say?</h2>
<p>The Referendum Council’s report largely endorsed the Uluru Statement. </p>
<p>A majority of the council recommended a referendum be held to change the Constitution to establish an Indigenous “voice to parliament”. One council member, former Liberal senator Amanda Vanstone, did not support a referendum at this time. She argued that further community consultations are necessary before a referendum is held.</p>
<p>The report also recommended that all Australian parliaments pass a “Declaration of Recognition”. This declaration should contain:</p>
<blockquote>
<p>… inspiring and unifying words articulating Australia’s shared history, heritage and aspirations. </p>
</blockquote>
<p>The council explained: </p>
<blockquote>
<p>The declaration should bring together the three parts of our Australian story: our ancient First Peoples’ heritage and culture, our British institutions, and our multicultural unity.</p>
</blockquote>
<p>The report also acknowledged the importance of a Makarrata Commission. It identified that treaties were overwhelmingly supported by delegates at the regional dialogues. In Dubbo, for example, a delegate explained that an “honest relationship with government” could only be achieved via respectful negotiations towards a treaty. </p>
<p>The council did not, however, recommend the establishment of a Makarrata Commission. As a legislative measure, it did not fall within its terms of reference. </p>
<p>In any case, treaties continue to progress slowly but surely <a href="https://theconversation.com/will-treaties-with-indigenous-australians-overtake-constitutional-recognition-70524">at the state level</a>. </p>
<h2>What next?</h2>
<p>In affirming the aspirations recorded in the Uluru Statement, the Referendum Council’s report has shifted the debate on constitutional reform. </p>
<p><a href="https://twitter.com/SkyNewsAust/status/886821998080303104">Turnbull’s remarks</a> on Monday show it is now highly unlikely that either major party will embark on constitutional reform unless the changes “meet the expectations of the First Australians”. This is positive. But whether changes will be proposed is another matter entirely. </p>
<p>Both leaders struck slightly different tones in their initial comments on the report. <a href="http://www.skynews.com.au/news/top-stories/2017/07/17/referendum-council-wants--indigenous-voice-.html">Turnbull</a> was non-committal. He described the recommendation for an Indigenous “voice” as a “very big idea”, but one that was “short on detail”. </p>
<p>In contrast, <a href="https://twitter.com/SkyNewsAust/status/886823372029542400">Shorten acknowledged</a> that a “voice” and a Makarrata Commission were legitimate aspirations that should not be pushed aside. Nonetheless, he too considered the recommendation would be a “big change”. But this is only partly true. </p>
<p>Constitutionally enshrining an Indigenous “voice to parliament” would be a structural change to Australia’s governance framework. Seizing on this fact, some political leaders have attacked the idea. For instance, in the days following the Uluru Statement, Deputy Prime Minister <a href="http://www.abc.net.au/news/2017-05-29/indigenous-chamber-parliament-wont-fly-barnaby-joyce-says/8568068">Barnaby Joyce</a> incorrectly argued the proposal was a third chamber of parliament, and insisted it “wouldn’t fly”. </p>
<p>Similarly, the Institute of Public Affairs’ Simon Breheny argued that an Indigenous “voice” would be “<a href="https://www.theguardian.com/australia-news/2017/jul/17/referendum-council-endorses-uluru-call-indigenous-voice-parliament">undemocratic</a>”.</p>
<p>But rather than being incompatible with democracy, an Indigenous “voice to parliament” would rectify a persistent democratic fault in Australian society. </p>
<p>Although Indigenous Australians today enjoy “<a href="https://core.ac.uk/download/pdf/30680424.pdf">full equality</a>” in the electoral arena, their position as an <a href="http://www.theaustralian.com.au/opinion/noel-pearsons-proposal-for-recognition-is-vindicated-by-history/news-story/e6d3c845458fd6b92f088d3ae3b7cca8">extreme minority</a> makes it difficult for them to be heard by government. As the Uluru Statement articulates, Indigenous Australians feel powerless in their own country. A “voice to parliament” <a href="http://www.abc.net.au/news/2017-07-17/referendum-council-advises-vote-on-indigenous-voice-parliament/8716242">would merely empower</a>:</p>
<blockquote>
<p>… the First Peoples of Australia to speak to the parliament and to the nation about the laws and policies that affect them.</p>
</blockquote>
<p>In this sense, such a body would not challenge Australian democracy. It would instead realise its ideals.</p>
<p>And yet, implicit in Turnbull’s and Shorten’s statements that an Indigenous “voice to parliament” would be a “big change” is the notion that it may be too difficult. It will be, but only if Australians refuse to hear Indigenous people.</p><img src="https://counter.theconversation.com/content/80315/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Harry Hobbs gratefully acknowledges the support of the Lionel Murphy Foundation, the Sir Anthony Mason PhD Award in Public Law, and the Australian Government Research Training Program (RTP) Scholarship for funding this research. Harry assisted the Uluru Party Working Group set up <a href="https://www.1voiceuluru.org/">https://www.1voiceuluru.org/</a>.
</span></em></p>Implicit in Malcolm Turnbull’s and Bill Shorten’s arguments that an Indigenous ‘voice to parliament’ would be a big change is the notion that it may be too difficult.Harry Hobbs, PhD Candidate, Constitutional Law and Indigenous Rights, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/786742017-06-01T05:10:28Z2017-06-01T05:10:28ZPolitics podcast: Matt Canavan on Adani<figure><img src="https://images.theconversation.com/files/171758/original/file-20170601-25676-9i6npp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Mick Tsikas/AAP</span></span></figcaption></figure><p>The Coalition has backed the Adani Carmichael coal mine but there’s debate about assistance for the project, and argument about the jobs it would create in the region. </p>
<p>Resources Minister Matt Canavan argues there’s a role for the government to invest in large-scale infrastructure. He tells The Conversation this mine is only one part of a plan for “opening up the Galilee Basin” to provide investment opportunities, exports, and employment. “This coal is not for Australia, it’s for our region.”</p>
<p>On last week’s Uluru statement calling for an Indigenous body to be enshrined in the Constitution, Canavan says he’s concerned about creating another organisation, especially if it were to be based on different racial definitions. </p>
<p>He says options should be explored for greater recognition of Indigenous people in the political process without “necessarily making changes to the Constitution”.</p>
<p>On the coming Queensland election – with polling close – he says either side’s for the taking. “The Queensland Labor government has had a pretty rough time in the last week but I pick up a lot of frustration in North Quensland and I think they’ve got a lot of work to do to pick up trust.”</p><img src="https://counter.theconversation.com/content/78674/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Matt Canavan tells The Conversation this mine is only one part of a plan for 'opening up the Galilee Basin' to provide investment opportunities, exports, and employment.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/784742017-05-31T03:53:02Z2017-05-31T03:53:02ZAfter Uluru, we must focus on a treaty ahead of constitutional recognition<figure><img src="https://images.theconversation.com/files/171412/original/file-20170530-16303-1ieiq5q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A treaty would be an agreement that is rather like that of host and guest, with rights and responsibilities for each party.</span> <span class="attribution"><span class="source">AAP/Joel Carrett</span></span></figcaption></figure><p>The Indigenous National Constitutional Convention concluded with the <a href="http://www.referendumcouncil.org.au/sites/default/files/2017-05/Uluru_Statement_From_The_Heart_0.PDF">Uluru Statement</a>. In contrast to the political expectation that it would simply support symbolic recognition of Indigenous people in the Australian Constitution, the convention went much further, asserting Indigenous sovereignty and making two demands.</p>
<p>First, for a First Nations “voice” to be ensured in the parliament and enshrined in the constitution. Second, for the establishment of a Makarrata Commission “to supervise a process of agreement-making between governments and First Nations and truth-telling about our history”.</p>
<p>The first demand is understandable. Parliamentary representation does not require constitutional change. But it has been Indigenous experience that national bodies established to represent them have been at the mercy of governments. That was the case with ATSIC, disbanded in 2005.</p>
<p>A more significant demand is the Makarrata/treaty process. The whole nation has much to gain from the treaty route. However, if delegates prioritise the less politically controversial constitutional change, they risk derailing the more urgent need for treaties. </p>
<h2>Why a treaty is essential</h2>
<p>A treaty is an agreement – with guarantees, promises, responsibilities and obligations – between two sovereign peoples about how one party (the settlers) may come onto and share in the resources of the land over which the other party (Indigenous owners) holds sovereignty. A simple analogy: a treaty turns the relationship between settler-coloniser and colonised, based on force, into a more respectful relationship of host and guest.</p>
<p>Under a treaty, hosts and guests have rights, responsibilities and obligations, based on their standing as equals. What is honoured in the relationship stems from conventions, protocols and laws that protect both parties. This includes sanctions for dishonouring obligations.</p>
<p>Indigenous commitment to a treaty process has been expressed nationwide, over many decades. But it has been hard for those supporting treaties to gain a respected voice in the media or be taken seriously by politicians. They are represented as extremists. This was even the case at Uluru. This fear-mongering is preventing the wider Australian public from engaging in the conversations it needs to have. </p>
<p>One of the <a href="https://www.theguardian.com/australia-news/2017/may/28/we-want-referendum-intensive-uluru-talks-call-for-an-end-to-the-fighting">so-called dissenters</a> from the Uluru convention, Wiradjuri woman Jenny Munro, asked an important question that remains unanswered: “How does our sovereignty remain intact when we go into the white man’s constitution?”</p>
<p>This highlights a contradiction in the Uluru Statement: how to avoid the risk that any form of constitutional recognition will be made to stand in lieu of treaties, because it privileges a constitution that Indigenous peoples have not signed up for.</p>
<p>Treaties have to be the foundation for constitutional recognition, not the reverse. The recognition of Indigenous peoples within the Australian Constitution is not a right that the Australian settler 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 is, by implication, to concede that treaties will be unnecessary.</p>
<p>The advantages of treaties are little understood. Australian governments have opposed them since <a href="http://www.australiangeographic.com.au/blogs/on-this-day/2012/08/on-this-day-annulment-of-the-batman-treaty/">Batman’s crude attempt</a> to subvert the colonial government’s land restrictions in 1835. But it is only through treaties that the right of the settler to be here, and thus to write a constitution in the first place, can be legitimised. Without them, there is no legal or moral foundation for Australian nationhood, nor guarantee of protection for Indigenous peoples’ sovereign rights.</p>
<h2>A history of treaties in Australia</h2>
<p>The British did not enter into treaties with Indigenous people across Australia, as they did in <a href="https://theconversation.com/indigenous-reconciliation-in-the-us-shows-how-sovereignty-and-constitutional-recognition-work-together-54554">North America</a> and <a href="http://www.teara.govt.nz/en/treaty-of-waitangi">New Zealand</a>. </p>
<p>For 200 years, Australia denied that Indigenous sovereignty existed, based on the idea 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 settler majority population, who hold power and continue to deny Indigenous sovereignty. (The <a href="https://aiatsis.gov.au/explore/articles/mabo-case">Mabo High Court decision</a> recognised it only until 1788, after which most of it was assumed to be extinguished.)</p>
<p>Indigenous peoples have consistently protested this denial and, just as consistently, sought to meet settlers halfway. But they have been trampled over, disrespected, exploited and subjected to many forms of violence to silence their demands. This does not change the host-guest relationship – it just makes the guests obnoxious.</p>
<p>Treaties are the only way to put this nation on the legal and moral footing that it requires to have legitimacy and integrity. That this is not the case is demonstrated in the ambivalence over Australia Day. There is no day that settler and Indigenous Australians celebrate together, because we are unable to point to the equitable and respectful meeting of two peoples.</p>
<p>A treaty is therefore the only way to establish what the Uluru meeting seeks: a basis for dual and complementary sovereignty. The hosts will have two forms of citizenship: Indigenous and settler. The settler guests will have one, legitimised by treaty. </p>
<p>Seen this way, the treaty process is an agreement between Indigenous nations and the settler nation to form a commonwealth: a settler nation within a confederacy of Indigenous nations. A treaty does not cede the sovereignty of the host, but it does accord rights to the guest, protects both parties, and invites a form of dual sovereignty.</p>
<h2>The Canadian example</h2>
<p>There are <a href="http://www.aadnc-aandc.gc.ca/eng/1314977704533/1314977734895">precedents in Canada</a>. There, the treaty-making process includes revisiting original treaties to better honour them, as well as making new treaties with those previously ignored. </p>
<p>The <a href="http://www.utppublishing.com/On-Being-Here-to-Stay-Treaties-and-Aboriginal-Rights-in-Canada.html">insightful study</a> by settler Canadian and anthropologist Michael Asch should be mandatory reading for those fearful of a treaty path in Australia. In conjunction with the <a href="http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Exec_Summary_2015_05_31_web_o.pdf">final report</a> of the Truth and Reconciliation Commission of Canada, it is evident even to the cynical that Canada is well in advance of Australia in terms of integrity and goodwill.</p>
<p>Conservatively minded politicians and Indigenous people who are interested in maintaining the status quo like to be alarmist, depicting those committed to treaties as radicals. On the contrary, the treaty path is a generous invitation to settlers to enter into the legal, moral and binding agreements that should have been the foundation act of settlement.</p>
<p>The treaty route is an invitation to all of us, Indigenous and settler, to decolonise so as to create a just and equitable nation. This will not happen without treaties, and it will not happen through constitutional recognition. </p>
<p>Those who push for treaties deserve to be listened to. It is they who imagine a stronger future for Australia, not those who seek limited constitutional recognition.</p><img src="https://counter.theconversation.com/content/78474/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gaynor Macdonald does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Treaties have to be the foundation for constitutional recognition, not the reverse.Gaynor Macdonald, Senior Lecturer in Anthropology, University of SydneyLicensed as Creative Commons – attribution, no derivatives.