Indigenous people need a lot more than just symbolism

, - July 4, 2015

Our beach shack at Elim has no walls and the wind blows through it. The buoys on the ceiling depicting an orrery of the solar system swing in the wind. Guugu Yimidhirr people have called this place Yuurrgubarraalbigu since time immemorial.

I have been musing this week how far we have come and how far we have yet to go in respect of the people who crossed the Torres Strait Island land bridge more than 53,000 years ago, travelling down Cape York Peninsula to occupy all corners of this continent.

Last year I said the stars and planets were lining up for constitutional recognition.

If the rule that Nixon must go to China be true then we have an appropriately conservative prime minister. We have the political will: there is bipartisan support for indigenous recognition, with Bill Shorten offering full co-operation with Tony Abbott. Recent polls show significant community support. Those polls can tell us only so much. There are four hurdles that need to be crossed.

First, the Prime Minister. Second, his partyroom. Third, the parliament. And fourth, the Australian people. It is easy to be uplifted by polls. But the people — as hard as they are — are the easiest hurdle. The Prime Minister’s partyroom represents the most significant hurdle.

There is a persisting disjunct about the fundamental purpose of recognition. What does recognition mean? What does it seek to achieve? The answers fall into two camps. One is about symbolism. The other is about solving a practical problem.

For indigenous advocates historically, the answer has always been clear. The objective of constitutional recognition was to solve a practical problem. The reform should help prevent the repetition of past mistakes. It should address the problem of indigenous powerlessness and voicelessness.

It is no accident indigenous leaders such as the great Yorta Yorta leader William Cooper, my boyhood hero pastor Doug Nicholls, and King Burraga called for representation and a voice in parliament. This advocacy echoed down the 20th century. These leaders were not just seeking symbolic recognition in a document that is fundamentally about the distribution of power.

The Constitution gives parliament its powers and places appropriate restraints and conditions on that power. It sets up our national institutions and clarifies important institutional relationships. The constitutional compact of 1901 created a federal, power-sharing structure.

That minority voices should be heard is the fundamental premise on which our federal Constitution is built. Tasmania is constitutionally guaranteed 12 senators, ensuring protection of their minority interests from the unrestrained might of the majority. The former colonies were constitutionally guaranteed a fair level of autonomy in the new federation. Today there are more indigenous people than there are Tasmanians. But as professor Mick Dodson observed, indigenous people were not party to the compact: “We were excluded from that act of nation-building … We were not asked to send representatives to engage in the negotiations of how power would be distributed and order maintained.”

This is what enlivens the need for indigenous constitutional recognition.

The Constitution set up the rules and procedures to limit the arbitrary exercise of power and protect, in theory, the rights of all citizens. But indigenous people were actively excluded. It did not protect our rights. In fact we had the opposite — clauses explicitly excluding us from the benefits of equally applied liberal democracy.

For decades, indigenous peoples have sought to rectify this problem. They have sought inclusion in the compact on a fair basis. They sought rules and rights and guarantees that things will happen in a better way. That we will be treated more fairly. That we will be actively represented. This is what we mean by constitutional recognition.

There has always been a political tag-team that works against us. Conservatives tell us we cannot have a racial non-discrimination clause because of unelected judges and the risks of judicial activism. Liberals tell us we can’t have political representation in our affairs, or any form of constitutional recognition of our interests, because it’s wrong to recognise one group on the basis of race. Indigeneity, however, is not about race. In many northern European countries the indigenous people are white. Indigeneity is about historical connection and political status, and the rights and interests arising therefrom.

This liberal objection to indigenous claims for recognition has a morbid irony to it, and I only hope good heartedness will ultimately prevail. Throughout Australia’s history, application of liberal principles has been conveniently selective when it comes to indigenous people.

Had liberal values been non-discriminatorily applied to begin with, how different might things have been? Arguably we would not be having this discussion today. Had indigenous people been treated as equal citizens, equally entitled to the protection of liberal principles and equally included as negotiating parties to the constitutional compact, we would not be still grappling with this problem in 2015.

If we had been allowed at the negotiating table, as equals, as polities, as peoples, what might have been achieved?

Most certainly, we would have negotiated ourselves representation within the federal compact. Perhaps through reserved seats, as in New Zealand. Perhaps through treaties. Perhaps through some form of representative body, such as the Saami have in Norway, Sweden and Finland, so that the parliament could hear our views, or like the Maori Council in New Zealand. Perhaps a recognition of domestic dependent sovereignty such as in the US. Perhaps, if we had bill of rights lawyers advising us, we would have negotiated the inclusion of judicially adjudicated rights clauses protecting and affirming our distinct indigenous rights.

One thing is certain. We would not have negotiated ourselves three lines in a decorative preamble of no legal effect. We would not have asked for symbolic recognition in what is fundamentally a structural document about power and freedom. We would have negotiated ourselves some power. We would have negotiated ourselves some freedom. We would not have settled for symbolism alone.

Those such as Alan Tudge, Frank Brennan, Warren Mundine — people who should be the allies of indigenous people — urge us to accept mere symbolism. They seek a re-run of John Howard’s and Aden Ridgeway’s symbolism of 1999, which was rejected by the Australian people. The minimalists call for the removal of the race clauses, a replacement indigenous power and a preambular statement recognising that we were the first occupants. Cosmetic surgery: a symbolic shot of Botox, ignoring the broken foot.

Such an outcome would be feel-good symbolism and maintenance of the operational status quo. White guilt might be somewhat appeased. For the moment at least. Until we need another national symbolism rush.

How many symbolic moments, devoid of practical effect, does a nation need?

Those such as Mundine laud the symbolic achievement of 1967. But the more sober fact is that we are at risk of repeating the mistakes of 1967. Indeed, the whole reason we are still talking about constitutional recognition today is because 1967 did not properly resolve the problem.

There were competing propositions back then too. Billy Wentworth wanted a constitutional clause to say: “Neither the commonwealth nor any state shall make or maintain any law which subjects any person who has been born or naturalised within the Commonwealth of Australia to any discrimination or disability within the commonwealth by reason of his racial origin.”

Wentworth wanted a racial non-discrimination clause to protect all Australians equally, which was the obvious liberal solution. Others called for a narrow protection that applied only to indigenous people (the more politically pragmatic but less intellectually appealing solution), perhaps by qualifying the indigenous power with a word such as advancement. Others wanted simple removal of discrimination and transfer of indigenous affairs to being a federal matter, a minimalist solution without any kind of constitutional guarantee of fair treatment.

Does all this sound familiar?

The government opted for minimalism. What else would you expect? It rejected the racial non-discrimination clause: “Although such a guarantee would provide evidence of the Australian people’s desire to outlaw discrimination it would also provide a fertile source of attack on the constitutional validity of legislation …” That was almost 50 years ago. History is repeating itself.

In 2012, the expert panel proposed a racial non-discrimination clause. Now, the joint select committee is pushing the same thing along with a qualified power — again. The committee is grappling with the same parliamentary supremacy objections the nation faced 50 years ago. The great risk is that because of a lack of bipartisan support for a non-discrimination protection, we will yet again end up with a poor outcome. Had 1967 achieved rightful constitutional recognition and protection of indigenous interests, in a form acceptable by both Left and Right, we would not still be seeking a meaningful solution.

The greatest disappointment in all this is that the committee failed to grapple with the fundamental historical, and contemporary, political problem. A racial non-discrimination clause, or versions of it, does not have the support of the Right. It is liable to get whittled away in forthcoming political wrangling, as happened in 1967, before it even gets to the stage of a referendum. And so, there is a risk the whole thing will degenerate into yet another ineffectual symbolic moment.

The committee has wasted an opportunity to make real intellectual progress on a vexing political problem.

My half century turned up last week. I went to Binirrigu where the Cape Bedford mission once stood. I told my children stories of the ancient history written in the country where my father’s father’s fathers walked the country. I look at the Guugu Yimidhirr children playing on the beach and hunting in the mangroves and wonder where they will be in another half century.

I’ve watched the planets turn in a 50-year depressing cycle. Symbolic moment after ineffectual symbolic moment. The gap widening all the while. Appallingly, the committee’s final report resigns itself with the weak admission in Wyatt’s foreword, that its proposals for constitutional recognition will not provide a “solution to the serious problems faced by Aboriginal and Torres Strait Islander peoples”.

Is it really beyond the nation’s wit to devise a constitutional, structural solution that can make an actual difference to the problems indigenous people face?

Those problems are real. Communities get closed without consultation. Interventions imposed without input. While malign discrimination is mostly a thing of the past, we are still afflicted by the soft bigotry of low expectations that is rife in indigenous policy. How do we get our voices heard? The government has no efficient mechanisms for seeking our advice in laws and policies made for our supposed benefit. Our people have no formal guarantee of genuine consultation when political decisions about our affairs are made.

The nation risks not learning from its past and, accordingly, failing to progress to a better future. If we are to kickstart ourselves out of this rut, we need to bridge the massive political and intellectual gulf that has held back progress for so many decades. A synthesis needs to be found. We must find a way to maintain the integrity and structure of the Constitution and to give effect to indigenous aspirations for practical recognition of our interests. To, as my conservative friends say, Uphold and Recognise.

Today I feel that our people stand ready to assess the competing models. People are ready to understand their technical and practical operation and to make informed choices about which model they prefer. We are ready to negotiate ourselves a rightful place, finally, in Australia’s constitutional compact.

Indigenous people have not yet been afforded a fair opportunity to understand and assess the models. There should be indigenous conferences around Australia so our people can form our own views and assess our options. It could culminate in an all-in indigenous convention at Uluru. And certainly, the committee’s proposals should not be the only ones up for discussion. This process is what should be decided at our meeting with the Prime Minister on Monday. It would be foolish and unjust to try to decide on a model in a room of 40 selected indigenous leaders.

But we do need to resolve to do better than we have done in the past. We need to resolve to include our people in the constitutional compact from which we were illiberally excluded in 1901.

This week Jupiter and Venus aligned close in the evening sky, and hope springs anew.