The nation needs to change its thinking about Indigenous people

, - June 17, 2015

Harold Ludwick on the panel discussing Constitutional recognition at the National Native Title Conference.

As an Aboriginal person, my perceptions that I was at the bottom were well founded while growing up in the early 70’s, seeing how our elders were treated, when it was all too common to be subjected to racist remarks. Being called: Boong, Coon or Abo.

This was the entrenched racism that kept the inter-generational white superiority, and black inferiority, dominant and strong.

As times changed, it became clear to me that there was actually no difference between the white man and the black man. We are all human beings. We do not need to be afraid of each other. Though we are different, there is also much that we share.

Wantharra. Yurra Ngay ngani yiniil manathi ….. You see this is one of thousands of languages in Australia. This is a real Australian language… An original Australian language. I said “Hello. What are you all afraid of?” You won’t turn black by uttering the word wantharra, as we didn’t turn white by saying the Anglo Saxon word hello!! Imagine if all Australians could share in the rich Indigenous heritage of this land. If saying “wantharra” was as common as saying “hello”: an Australia in which the Aboriginal person is equal to the non-Aboriginal. And the Aboriginal heritage is equally cherished and respected as the British heritage of the nation.

In the late 1890s when a series of conventions on drafting of the Constitution was being held, my Great Grandfather lost the battle against the colonisers. The pioneers took our land to mine and graze their cattle. In 1901,when the Constitution was enacted, my Great Grandmother was sexually abused by the white settlers. In 1909, when my Grandfather was born, massacres of Aboriginal people were still happening. The Canning Stock Route 1906 massacre, the Mistake Creek 1915 massacre, the Bedford Downs 1920 massacre….

This was the environment in which the Constitution came into force. This was the environment the Constitution reflected. We were a “dying race” – or so the whitefellas hoped. The Constitution
had provisions which excluded us from being counted as part of the nation. It mentioned us – but with discriminatory references, ensuring that we were treated detrimentally. It excluded us as non-citizens. The Constitution provided no recourse for us to argue for our rights. There was no protection of our interests. There was no recognition of our humanity or right to be heard
and to participate. We had the opposite: the Constitution promoted discrimination against us. We weren’t counted as citizens of this land.

Some of this was fixed in 1967. The references excluding us were removed. But essentially, we are as vulnerable under the Constitution today as we were in 1901. The Commonwealth still has the power to pass racially discriminatory laws, under the Race Power. And we live in a system in which we could still be banned from voting – section 25 talks about banning citizens from
voting on the basis of race.

We are not recognised as First Peoples in the Constitution. Instead it refers to us incidentally as a ‘race’: the colonial concept of race that is tied up with ideas of inferiority. We were one of the
‘coloured and inferior peoples’: invisible to love…invisible to human respect….The Constitution condemned us for being BLACK!

This has had real consequences for our people, both in past times with massacres and colonial violence, but also in recent times.

The Northern Territory Intervention could not be challenged, because the Constitution says that the Commonwealth is allowed to racially discriminate. The closing of remote communities
cannot be challenged, because the Constitution says that racial discrimination is allowed. The State law might be able to be challenged under the Racial Discrimination Act, but what can we do when the money comes from the Commonwealth?

Those in power have the Constitution empowering them to enact tyranny against us: the most disadvantaged minority in Australia. No matter that we were taken to these remote places in chains; taken there because whites did not want us in the towns. Our communities are so small, we do not get heard. We can be wiped out with the flick of a white bureaucrat’s pen.

This is the problem with the system of government in Australia, set up under the Constitution. It does not give our people a say in our own lives. The majoritarian system of democracy has always
failed to protect our people. We are only 3%, and our voices aren’t heard. Parliaments have never been good at listening to Indigenous people. This is why we are constantly trampled like our lives
don’t matter.

Cape York people know well what this feels like.

In the 1970s, Premier Joh Bjelke-Petersen tried to legislate away Wik land rights through a policy to prevent Indigenous people from purchasing large tracts of land. The Wik people of Cape York had obtained funds to purchase the Archer River cattle station, part of their traditional lands. After years of court battles, the court eventually held in favour of John Koowarta. They found that Bjelke-Petersen’s policy was in breach of the Racial Discrimination Act. It was a great legal and moral victory for Cape York Indigenous people. But the Queensland Parliament acted quickly to get around the court’s decision. It declared the Archer River station a national park, which meant it could not be purchased. Years of legal battling proved ultimately ineffective in preventing discrimination against us. Parliament found another way to strip us of our rights.

Today, little has changed. Cape York people recently spent five years fighting the Queensland government’s Wild Rivers environmental legislation, which prevented economic development of Indigenous land. This fight was again led by the Koowartas, the plaintiff being Martha Koowarta, widow of the late John Koowarta. Last year, Mrs Koowarta was finally victorious in the courts. The court held that the Queensland government’s decision to impose strict development prohibitions on Indigenous land was made without the proper consultation of the Indigenous traditional owners. It was a great moral and legal victory.

But yet again, the Queensland government legislated around the court’s legal finding. The government re-enacted the Wild Rivers prohibitions under legislation of a different name.

Cape York people have land rights, but through discrimination we are prevented from exercising our property rights the way other Australians do. We are prevented from using our land as an asset
to participate in the economy. We are prevented from exercising free choice as to how best to manage our natural assets. And so we are kept in poverty. Our people continue to spend decades tied up in expensive court battles, fighting discriminatory legislation. Yet even when we win those court battles, we cannot win the war. We are ultimately powerless before the majority might of Parliament.

Parliament does not listen to our own solutions to our poverty crisis. It’s our land, but we have no say in what goes on. We have no say in the future of our people on our land.

Little has changed in this regard since the 1970s. While the RDA can be useful when a State government passes a blatantly discriminatory law, we have seen that governments can just as easily legislate around court decisions. The RDA too, is just ordinary legislation and can be altered at any time. It can be suspended, as happened initially with the Northern Territory Intervention. We are vulnerable because the Constitution provides no protection for our rights and interests.

Governments are not ever compelled to listen to Indigenous people before passing laws which affect us.

We argue for constitutional reform to address this.

Indigenous people should be guaranteed a say in Parliament’s laws and policies that affect us. We should be guaranteed a fair say in the democratic procedures the outcomes of which affect our lives. The UN Declaration on the Rights of Indigenous Peoples enshrines our right to self-determination as peoples: our right to freely pursue social, economic and cultural development. Part of the right to self-determination is the right of Indigenous people to participate and be properly consulted in the government decisions that affect our rights and interests.

Australian law does not allow for this. There are no systems in place for it to happen in a fair way. There should be an Indigenous body in the Constitution to consult with an advise Parliament on laws and policies that affect Indigenous rights and interests.

The founding fathers of the Constitution guaranteed that the minority States should be recognised, given a say and protected from the tyranny of the majority, despite variations in their population numbers. Even the smallest colonies were recognised and given a voice in the system. But because of the discrimination of the time, we were excluded. This must change.

We too should be recognised.

The Constitution should guarantee Indigenous people a say in Parliament’s decisions which affect us.

This kind of constitutional body is necessary to help ensure that, as Noel Pearson says, the discrimination of the past not be repeated, and that measures be put in place to ensure that things are
done in a better way. Our people occupy a unique place within the Commonwealth that is legally, politically and historically different to other citizens. We are the only group that was dispossessed and displaced by British settlement. We were uniquely discriminated against by the constitutional arrangements of 1901. We are the only group requiring legislative responses and solutions to this unique history (Native Title, Indigenous heritage protection laws etc). It is absolutely sensible and just that we are guaranteed a say in these legislative responses.

If the Constitution ensured that Parliament listened more effectively to Indigenous voices, this would significantly improve the Indigenous situation within the nation. It would improve Indigenous lives in a real and practical way.

I leave you with a quote from Albert Einstein:

“We can’t solve problems by using the same kind of thinking we used when we created them.”

The nation needs to change its thinking about Indigenous people. We are not invisible. We are not inferior. We are equal citizens. We are distinct peoples. We are capable of making free choices and informed decisions. We are capable of having opinions about our lives and futures, and about the laws and policies that affect our futures. We are capable of participating in Australia’s democracy as equal partners with government.

We are capable of taking responsibility and leadership in our affairs. Please, allow us the space in your national arrangements to show you what we can do.