INDIGENOUS AUSTRALIANS ARE COMING TO OUR MEIJI MOMENT: HOW TO PURSUE DEVELOPMENT AND KEEP OUR CULTURE
Let me acknowledge the indigenous people of Brisbane: I bring greetings from our people in Cape York Peninsula. I also acknowledge Chancellor Forde and Vice Chancellor O’Connor for extending me the honour of delivering this year’s Griffith Lecture. I wish especially to express our gratitude to the university for providing a welcome and supporting home for the Cape York Institute in the seven years since its founding. Over these years I have personally received unstinting encouragement from Ian, Michael Powell and Cairan O’Faircheallaigh and our policy and leadership work for our people in Cape York Peninsula has been generously and long?sufferingly supported by this fine university. I want to thank all of the staff of this university who have assisted our institute.
In the lead up to the 2007 Federal Election I proposed that John Howard commit to recognition of Indigenous Australians in the Constitution of the Commonwealth. This proposition emanated from a well?formed conviction that the profound challenge posed by constitutional reform – requiring “a majority of electors in the majority of states” – meant that Nixon had to go to China. My view was that only a conservative leader convinced of the need for constitutional reform would be able to garner the requisite majority for change. It would have to be John Howard or someone from down his end of the political spectrum.
It was clear to me that the Kevin 07 show was in the ascendant and coming to town. My approach to Howard was based on the belief that constitutional reform had to be championed and owned by the conservatives.
John Howard opened his campaign with a commitment to constitutional recognition. Kevin Rudd immediately matched Howard’s commitment, but at the end of the campaign he told Paul Kelly at The Australian that it would not be a delivered in his first term. I condemned Rudd for this late departure from his original commitment, but the electorate was on the eve of bringing Howard’s long reign to an end.
In the negotiations following last year’s federal election, both major parties, the Greens and the independents put constitutional reform on the agenda for the new parliament. In December Prime Minister Julia Gillard appointed an Expert Panel on Constitutional Recognition of Indigenous Australians.
I sit on this Expert Panel with other Indigenous leaders: with Professor Patrick Dodson, co? chair of the Panel, with Professor Marcia Langton, with constitutional lawyer and Professor Megan Davis, Social Justice Commissioner Mick Gooda, co?chairs of the National Congress of Australia’s First Peoples, Les Malezer and Jody Broun, and Liberal MP Ken Wyatt, among others.
We have before us a great opportunity. It’s an opportunity for Indigenous Australian leaders and it’s an opportunity for Australia’s leadership, and Australians all, to unite behind a good idea, to do something big and good together – for Indigenous Australians and for the nation.
The present reality for Indigenous Australians is depressingly parlous. If there is one thing I am sure of, it is that what the country has been doing to move indigenous affairs forward from its colonial legacy has not worked, and is not working still. We need to do with Indigenous policy what former Prime Minister Paul Keating did with the Australian economy. We need to update it, make it more efficient, more accountable, more dynamic and more fair. We need to subject it to the right principles. We need big and bold change. Or we will continue to fail.
The question of constitutional reform therefore presents us with the chance to drive something big and bold in Indigenous affairs and in the Australian nation. This is our opportunity to fundamentally reform our approach to Indigenous affairs in Australia. It is our opportunity to address the pressing problems confronting Indigenous wellbeing. Our potential is to lead the world in rising to the Indigenous development challenge.
The problems with our current situation are many. Two, however, are of utmost importance. First, Indigenous Australians still suffer disproportionate levels of poverty in Australia. They do not share in Australia’s wealth. Secondly, Indigenous Australian cultures and languages continue to disappear. They are not shared with or enjoyed by all Australians. Indigenous Australian culture is a suppressed part of our Australian identity.
This is the time to confront these problems.
The purpose of a Constitution is to set up a framework that enables the citizens of the nation to live together in a good society and to achieve wellbeing. On this measure, the Australian Constitution works very well for the 97 per cent majority of Australians who enjoy First World standards of wellbeing. But the 3 per cent minority – Indigenous Australians – still suffer dismal un?wellbeing compared to the rest of the nation. If we ask, has the Australian Constitution created the framework within which Indigenous Australians are able to achieve socio?economic parity in this country? And has it allowed for Indigenous Australian cultures and languages to prosper, and to be enjoyed by all Australians? The calamitous and sad answer to both these questions is no. When it comes to Indigenous
wellbeing, the Australian Constitution does not yet provide the framework for the wellbeing of its indigenous citizens.
Why hasn’t our Constitution enabled Indigenous socio?economic and cultural prosperity and equality within Australia? Because it was not intended to. The Constitution was drafted deliberately excluding and ignoring Indigenous Australians. It was drafted, as Pat Dodson said plainly, “in the spirit of terra nullius.”1
Australia must now attend to these constitutional deficiencies. It is also an opportunity to resolve and define the position of Indigenous peoples within Australia and to become what we have been trying to be: “a reconciled indivisible nation.”2 This is much more than a question of symbolism, though symbols are important. This is a question of national wellbeing and national identity. It is about coming to terms with who we are as a nation, and deciding who we want to be in the future.
The Poverty Problem
Practically speaking, Australians have come to identify their commitment to fix the gaping socio?economic gulf between indigenous and non?indigenous people with the notion of ‘closing the gap’. I believe Australians are genuine in this respect. Indigenous Australians are still dying too young and suffering too much. We suffer unfair levels of poverty and disempowerment. We suffer lower life expectancy, higher infant mortality, lower education outcomes, higher suicide, self?harm and domestic violence rates, and higher unemployment. More than half of the Indigenous Australian population receives most of their income from government welfare.3
Yet, in 2011, Melbourne was deemed the world’s most liveable city by the Economist Intelligence Unit, with 4 of Australia’s capital cites appearing in the top ten.4 In the latest International Human Development index, Australia ranked as the second most liveable country in the world, only marginally behind Norway and substantially ahead of America in third.5 This was based on mean years of education, life expectancy, poverty, inequality, and so on. While Australia’s standing in nearly all of these areas is admirable, similar findings with respect to the Australian Indigenous community are comparably miserable.
They are also significantly poorer than the Indigenous communities of Canada, New Zealand and the United States.6 Why is Australia lagging so abysmally far behind the rest of the world in terms of closing the socio?economic gap between Indigenous and non?Indigenous people? Is it purely coincidental, for example, that New Zealand, America and Canada are miles ahead of us in terms of formal recognition of their Indigenous peoples, in terms of legal recognition of their distinct cultures and languages, and most obviously, in terms of their general legal protections with respect to equality before the law for all their citizens?
Australia is now the only democratic country in the world not to guarantee equality before the law for all its citizens.7 Most ordinary Australians are shocked when they hear this fact – and they are equally shocked by the existence of discriminatory clauses such as section 25 in our founding document. Recent polling undertaken by the Expert Panel through Newspoll indicated that an overwhelming 90 per cent of Australians support the inclusion of a broad guarantee against racial discrimination in the Constitution.8 Equality is fundamental to democracy. To freedom and individual liberty. For Indigenous Australians, equal treatment before the law, equal rights and equal responsibilities are fundamental principles for the realisation of substantive equality.
While the link between equal treatment before the law and equality in life outcomes may be hard to prove in causation terms, it makes intuitive sense. But if it is proof we are looking for, the practical records of other countries, which are all ahead of us in terms of guaranteeing equality, certainly leave our own statistics with much to be desired.
While Indigenous Australian life expectancy remains relatively static at below 60 years, the life expectancy of Indigenous peoples in Canada, New Zealand and America have been steadily improving over several years, and have now all increased to above 70 years. While the gap between Indigenous and non?Indigenous life expectancy in Australia is an extraordinary 23 years (this is as a minimum – and this gap actually increased by 3 years between 1990 and 2000) in Canada, New Zealand and America, the gap is between 5 and 9 years. And in terms of income, Indigenous Australians are also far worse off than our counterparts overseas.9
The overall solution of course is not to figure out how to keep Indigenous Australians alive longer by handing out more kidneys, or how to funnel more cash into their bank accounts through welfare, so that income indicators improve. These are band?aid solutions. Life expectancy and wellbeing indicators directly correlate with socio?economic status. Low life expectancy is a result of entrenched poverty. Why has Australia, a wealthy country, the second most liveable country in the world, unable to solve or even to significantly improve, the problem of Indigenous poverty? Is it possible our approach has been wrong?
It is useful perhaps to examine the ways in which our approach has differed from the approaches of Canada, New Zealand and America.
New Zealand’s Treaty of Waitangi enshrined Indigenous rights and measures ensuring Indigenous participation in political processes: they have had designated seats in Parliament since the 1860’s.10 The New Zealand national culture reflects the respectful relationship that this has created. Their national anthem, “God Defend New Zealand” has five verses, each in English and Maori. And New Zealand has a Human Rights Act which ensures equality before the law and protects citizens from adverse discrimination on the basis of race, ethnicity and colour.
Canada enshrines the rights of Indigenous people in its Constitution,11 and constitutionally commits itself to regular constitutional conferences actively engaging Indigenous people.12It also has an entrenched guarantee of equality before the law, ensuring that no law can adversely discriminate on the basis of race.13 Section 15 of the Canadian Constitution reads:
“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour…” etc.
In America, of course, individual liberty and equality are central tenets of their system. America’s 15th Amendment to its Constitution provides that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Australia provides no such democratic guarantee for its citizens. In fact our Constitution contains the opposite – our section 25 explicitly contemplates barring races from voting. Australia also lacks the equivalent of America’s Declaration of Independence, which begins:
“We hold these truths to be self?evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness…”
Indeed, in Australia, this truth is not self?evident in our legal system. In fact, we have a Constitution that makes self?evident the very opposite – under our Constitution human beings are explicitly not equal. The Race Power (section 51(26)) and Section 25 ensure that racial discrimination, including adverse discrimination, is allowed by our legal system.14 Our Constitution – the very basis of our legal system, creates the preconditions for inequality.
Let’s return now to our problem. We have the seemingly unending issue of Indigenous poverty. We also have the problem of the allowance of discrimination on the basis of ‘race’ in our Constitution. This discriminatory focus on race is problematic, symbolically. It sends out a divisive message, when we do not aim to be a divided Australia. But the focus on ‘race’ is also wrong in principle. It has created a presumption of formal and legal inequality which has in turn, arguably, led to and perpetuated substantive inequalities – and a mindset which expects Indigenous failure.
The current race?based approach to Indigenous policy development and elimination of Indigenous poverty is flawed. It was born from a colonial system and has perpetuated colonial myths of Indigenous Australian inferiority, dependency and incapability. It expects little of Indigenous Australians. And low expectations are disempowering.
Past approaches have perpetuated poverty, welfare dependency and passivity among Indigenous Australians, despite (in more recent times) our best intentions. Initial discriminatory protectionist approaches created inequalities and disadvantage. More recent ‘special treatment’ approaches, informed by ideas of cultural relativism, have sometimes inadvertently further entrenched exclusion and poverty, and in some cases exacerbated dysfunction.
The problem is that Australia has never yet put in place mechanisms or guarantees to ensure the realisation of equal rights and responsibilities for Indigenous Australians. Indigenous Australians have, as Patrick Dodson has correctly observed, for too long been the ‘playthings’ of politics and political trends.15 This is why real progress in Indigenous wellbeing has not thus far been achieved.
We turn now to the problem of cultural loss – the existential problem. There is a significant risk that Indigenous Australians will become as culturally impoverished as they are socio? economically. Australia is losing its Indigenous Australian cultures and languages. As Western market forces bear down on traditional Indigenous ways of life, cultural assimilation is often the result.
Before colonisation there were 250 distinct Indigenous Australian languages, and 600 dialects.16 Most of these are no longer spoken.17 Indigenous Australia has been described as “a linguistic graveyard”.18 While approximately 100 Indigenous languages still exist in some form,19 90% are near extinction.20 Only 18 remaining languages are still spoken amongst all generations within a community.21 The 2009 Social Justice Report predicts that “without intervention the language knowledge will cease to exist in the next 10 to 30 years.”22 There is little action to slow this terrible decline.
Then there is the question of recognition itself. How will constitutional reform alter the national psyche? How will it affect the psychologies of Indigenous individuals? Consultations with Indigenous people have indicated that Indigenous Australians feel excluded from the Australian nation. They feel that they do not belong. We have also heard Indigenous Australians confide that they feel as though white Australians hate them. These findings should be a cause of great sadness for the nation.
Our challenge now is to move from exclusion to inclusion. The Australian nation must extend this positive message to Indigenous Australians. We need hope, we need bold reform, and we need leadership if this problem is to be solved.
The Indigenous Poverty Problem is a Development Problem
The Indigenous poverty problem is, at its core, a development problem. At the Cape York Institute, we contend that closing the gap will require Indigenous Australians to become active agents in our own development pathways. Indigenous poverty is a development problem that can only be solved by reversing the disenfranchisement of Indigenous responsibility and empowerment.
As Indigenous Canadian author Calvin Helin asserts, “The responsibility for getting out of the welfare trap rests, first and foremost, squarely on the shoulders of indigenous people themselves.”23 Until we allow Indigenous Australians to take responsibility for our own lives, development and equality will not be achieved.
This is a fundamental shift from all Indigenous policies of the past. Indigenous policies to date have been premised upon exclusionary and hierarchical conceptions of ‘race’. They proceed from historical assumptions of Indigenous inferiority and incapability. These assumptions have convinced governments that Indigenous Australians are incapable, and in many cases, convinced Indigenous Australians themselves.
Pre?colonial development history
We have thankfully moved beyond the colonial assumption that the Indigenous development predicament is a result of innate biological or genetic inadequacies peculiar to Indigenous people or the darker?skinned ‘races’. The Darwinian approach which characterises blacks inferior has been discredited as a racist colonial device used to justify domination and enslavement.24
The belief in the sub?humanity of Indigenous people underpinned the colonial idea of terra nullius. Terra nullius worked to justify the denial that Indigenous people existed, and the denial of Indigenous people as human beings entitled to human rights. These ideas have since been rejected.
The Indigenous development challenge now, therefore, must proceed from an honest analysis of the historical, cultural, social and legal factors that impede Indigenous development. These factors do not include the facile assumption that Indigenous people are stupid, inferior or incapable. There are no ‘fundamental deficiencies’ in Indigenous people themselves.25 Such assumptions are self?defeating, condescending and untrue.26 They have led to ineffective policies that still inhibit Indigenous responsibility and empowerment today.
When the British colonised Australia, the resident Indigenous people were predominantly hunter?gatherers. As writers such as Diamond and Blaut have shown, the disparities in Indigenous development as compared to European were, at that moment in time, the result of a mixture of circumstances including geography and environment.27 The nomadic hunter? gatherer lifestyle was, it is now understood, a ‘sensible adaptation’ to the given conditions of the Australian landscape.28 It had nothing to do with Indigenous inferiority, as was the predominant colonial view.
Equally, Europeans did not create the wealth and development Australia enjoys today out of the raw materials native to Australia, driven by some superior talent or penchant for productivity. Rather, as Diamond explains, English colonists imported into Australia from
Europe and other parts of the world, all the elements of a “literate, food producing, industrial democracy.”29
Blaut argues that the fact of colonisation was also an integral factor in European development. Wealth was generated from resources and riches taken from the colonies and free or cheap labour provided by the people in conquered countries.30 By the time they reached Australia, the British had accumulated wealth from America, India, the Caribbean and Africa. The British arrived as a mighty force, and irreversibly altered the lives of Indigenous Australians.
The British brought new weapons, technology, new clothes, new food, alcohol, and disease. They brought new domestic animals, new crops and agricultural methods. They brought with them the English language and Christianity, English law, with its notions of parliamentary sovereignty, the rule of law and representative democracy. Indigenous Australians were suddenly confronted with Western modernity. The new economic opportunity that Australia offered, realised through introduced processes of Western liberalism, went on to attract immigrants from all over the world.
Initial contact with the more developed British world irrevocably changed the environment in which Indigenous Australians had to survive. Indigenous people, previously accustomed to working hard for minimal food sources, having to hunt for meat, travel, and gather to collect plant food, were gradually bombarded with the surplus and comparative decadence of British culture. Colonising governments and missionaries began to use food hand?outs to befriend and entice Indigenous groups into learning about Christianity, or in humanitarian gestures. The invisible cost of accepting hand?outs could not have been foreseen by Indigenous people themselves, nor perhaps by those delivering the rations. But this was the beginning of welfare dependency.
The hunter?gatherer lifestyle was dramatically and conclusively interrupted. Colonial contact, as occurred all over the world, changed what survival meant for Indigenous people. This remains true today.
Having disallowed traditional modes of Indigenous survival through a history of appropriation of land and forcible removal, how are Indigenous people today to survive? Must they assimilate, and lose their tradition, culture and identity altogether? Should they be cut off from the modern world to pursue a frozen?in?time hunter?gather lifestyle on homelands recovered through Native Title? Or is there some appropriate middle road? What is the best way for Indigenous people to prosper independently in this predominantly white?man’s world, without becoming overwhelmed by Western vices, and without losing treasured Indigenous cultures, languages and identities?
We have come to a point in history where the right approach must be decided.
Despite the many political phases that have seen dramatic shifts in Australia’s approach to Indigenous policy and development, none of these approaches have achieved the correct balance – a balance that respects unique Indigenous culture and identity, while allowing for full and equal participation in the opportunities and benefits of Australia’s Western liberal economy.
Assimilation versus separatism
Past policies have gone from one extreme to another. In the assimilation era, success in developing Australia meant denial of Indigenous practice, conversion to Christianity, and adoption of Western culture.31 But such assimilationist policies were not successful in ensuring Indigenous wellbeing. They proceeded from a denial of Indigenous identity.
Wellbeing means more than socio?economic stability and prosperity. And admittedly, in the mission days of unequal and stolen wages, socio?economic prosperity was also far from achieved. In Queensland in particular, under the guise of ‘development’ and ‘protection’, Indigenous people were severely discriminated against by the state government. The result was widespread impoverishment and even starvation.32 Mistreatment and removal significantly harmed the lives and culture of many Indigenous Australians. 33
The colonised, assimilated person, as Memmi describes, wears a mask. He lives a lie and is oppressed. In Australia, an Indigenous person who must supress his culture in order to realise socio?economic prosperity, is not free.34 He is subjugated in his own land and in his own skin, denied by the nation that should rightly be his home. True freedom means not only freedom from poverty. It means the freedom to express and maintain your cultural identity without discrimination. It means freedom to be yourself.
The onset of the 60’s and 70’s, the rights?driven era, saw new respect for cultural difference. 1967 removed the explicit exclusion of Indigenous people from Australia’s Constitution. But the land rights era post?Mabo arguably swung too far in the opposite direction – the direction of cultural relativism and collectivism at the expense of individual rights and individual equality, driven by a misguided interpretation of ‘self?determination’ as mere separatism and collective treatment of Indigenous Australians – what Peter Sutton describes as “racially defined political autonomy” taking precedence over vulnerable individuals’ rights to “wellbeing and safety”.35
The Indigenous policies of our current era can be construed in some ways as a reaction to this relativism of the past. The current movement seems to be one of ‘practical reconciliation’, ‘closing the gap’, and more recently, ‘Indigenous responsibility’ and ‘welfare reform’.
All these political trends can be said to have been successful in certain aspects and ineffective in others.
Assimilation and protectionism implemented integration at the expense of Indigenous culture, identity, families and Indigenous equal rights. The self?government era was effective in securing separate identities and land, but ineffective in addressing poverty, respecting individual rights, allowing economic participation, and maintaining social norms, law and order and community safety. All the while, alcohol abuse and welfare dependency began to infect all corners of Indigenous experience, generation to generation. These destructive influences still stand in the way of Indigenous wellbeing at all levels.
While welfare reform, our most recent innovation, has been successful in taking the small steps towards reinstating social norms, promoting education and championing Indigenous responsibility, it has arguably not done enough to prevent cultural loss and extinction of Indigenous languages.
And still, the question of equal rights and equality before the law remains unanswered. How can we expect equality in life outcomes for Indigenous people, if we do not ensure they are treated equally before the law? How can we expect Indigenous people to behave with responsibility, when we deny them equal rights? Indigenous Australians still do not have equal opportunities in Australia. Until equality before the law is the over?riding presumption, Indigenous Australians will still not truly be given a ‘fair go’.
We contend that cultural recognition and equality are wholly compatible. Indeed, we contend that they are two sides of the same coin, tied together just as rights are tied to responsibilities. Colonisation has almost wiped out Indigenous cultures and languages. Indigenous Australians have historically been denied the equal opportunities to practice their cultures freely. Remedying this is part of remedying the effects of past discrimination – part of ensuring equal opportunities.
CYI’s constitutional reform policy
At Cape York Institute, our policy on constitutional reform is largely informed by our on?the? ground knowledge of the challenges faced by Indigenous communities in Cape York. These include the ways in which structural and legal barriers, still often informed by out?dated and self?defeating attitudes towards Indigenous people, continue to inhibit Indigenous development, participation in the real economy, and fulfilment of substantive equality and Indigenous wellbeing at all levels.
The Institute’s welfare reform initiatives focus on Indigenous responsibility and rebuilding social and behavioural norms in Indigenous communities. Indigenous responsibility is of utmost importance in achieving wellbeing. However wellbeing will not be achieved unless Indigenous Australians enjoy equal before the law. If Indigenous people, and all Australians, are not guaranteed equality before the law, we feel certain that substantive equality in Australia will not be achieved.
Rights and responsibilities are two complementary and essential components of Indigenous empowerment. Indigenous Australians are still fighting for their “right to take responsibility”36 in all aspects of their lives – most notably in their use and management of their land, and in their pathways towards development and wellbeing. Indigenous voices are still not being heard in matters concerning their own affairs. Indigenous Australian empowerment is still obstructed by the challenges of being a powerless, voiceless minority before governments and bureaucracies unaccustomed and uncompelled to listen to what blackfellas have to say.
Constitutional reform needs to address the need for equality before the law while acknowledging the importance of cultural distinctness and enrichment for Indigenous Australians and Australia as a whole, and importantly, giving Indigenous Australians a voice in our legal system in matters directly affecting them.
The reform package that we advocate are reforms that we think would offer the best chance for the realisation of equality, and socio?economic and cultural prosperity for Indigenous Australians. The reforms should include a guarantee of equal treatment before the law, but also recognition of unique Indigenous culture and language.
Equality on the one hand and cultural distinctness on the other, at first blush may appear to be contradictions. But they are not. Equality before the law is wholly compatible with recognition of distinct Indigenous identity, and indeed with a constitutional power to address the unique needs of Indigenous Australians, who occupy a distinctive political place in this country that no other group can occupy – the unique place of a colonised and dispossessed people.
I acknowledge that an argument for reform that at once advocates for equality and Indigenous recognition, at first appear full of internal contradictions. Properly construed however, that these are not contradictions, but complementary and necessary principles required to facilitate national and Indigenous wellbeing within a fair post?colonial democracy.
I have long advocated the quest for what I call the “radical centre”: the “dialectical synthesis” that is the correct policy position in between competing philosophical ideals, or for example, between the political left and the political right.37 These proposals, equality before the law and cultural recognition, are, we believe, the radical centre in terms of constitutional reform for Australia.
The desired future
I have discussed our two most pressing problems in Indigenous affairs. First, Indigenous Australians still suffer unfair levels of poverty in Australia. Second, Indigenous Australian cultures and languages are disappearing. A subsidiary point is that there is no mention of Indigenous existence in the Constitution at all. This is akin an institutionalised assertion ofterra nullius, and a false representation of our national history and the circumstances in which our federation was created. These are the problems we need to address. I move now to our vision. What is our desired future?
Our vision is this.
We want the gap to be closed. We want Indigenous Australians to achieve wellbeing. Wellbeing means social, economic and cultural prosperity. We want Australia as a country to achieve wellbeing. Australia should be socially, economically and culturally prosperous.
We want Indigenous Australian cultures and languages to be enjoyed by all Australians, and the entire world. We want them to live and develop as modern cultures and languages.
We want all Australians to enjoy equality before the law, equal rights and equal responsibilities. We want to truly be able to say that Australia is a nation that denounces and guards against racism. We want a reconciled indivisible Australia that will ensure st