WHAT DOES 65,000 YEARS COUNT FOR IN THE AUSTRALIAN COMMONWEALTH AFTER A MERE 250?
Address to the Law Council of Australia Annual Gala Dinner
Cape York Institute
Thursday 28 November 2019
National Gallery of Australia
Let me acknowledge the Ngunnawal People of Canberra. I bring warm greetings from Cape York Peninsula.
Distinguished guests and our host, Law Council President Arthur Moses and your Council, I thank you for this opportunity to speak here tonight.
The question that ultimately underlies the constitutional recognition of the Indigenous peoples who pre-dated European colonisation of Australia is whether 65,000 years of presence on this continent should count for anything in the modern Australian Commonwealth and its future.
Or should the most recent 250 years of British dominion over this land be all that really counts?
Next year will be the 250th anniversary of Lieutenant James Cook’s fateful journey up the East Coast of Australia.
James Cook harboured secret instructions from the Crown to only take possession with “the consent of the natives”. Notwithstanding his encounters with native peoples Cook purportedly claimed possession at Possession Island contrary to his instructions. We are on the verge of revisiting this history and its meaning for the modern Australia that it conjured, with all of the terrible implications for the people.
For our purposes the salient point is Cook never reckoned with the original possessers and occupiers he found. Cook failed to come to terms with extant and well-known principles of English law: namely that peoples in occupation of land are to be presumed to be in possession.
What Cook failed to reckon with then, fell upon each and every subsequent generation of Australians to reckon with as unfinished business.
The pre-existence of Indigenous people was again denied at the time of Federation in 1901. The polities that made up the new Commonwealth comprised the original colonial states. The pre-existing indigenous polity was ignored and though its numbers were equal if not more than that of the smaller states, the federal convenience was to ignore the native polity, to not count the natives in the reckoning of the new Commonwealth, and deny the new parliament law-making power in relation to them.
Federation not only ignored the presence of the original peoples but actively discounted their membership of the new Commonwealth. It is of course notorious that the 1967 referendum corrected that exclusion and both remedied the counting in the national census and provided concurrent legislative power over Aboriginal people as a race under section 51(26).
The 1967 reform did not effect a constitutional neutrality. After all, the race power became one exclusively directed at Indigenous peoples in the ensuing years. It has not escaped commentators that the basis for indigenous law making in the Australian Constitution is founded on the concept of race. Contemporary reflections on the terrible history of the racial idea in colonial history – has nevertheless been unable to abandon its accumulated legal meaning.
I have moved myself from a conviction that race should be removed from the Constitution to one of resignation. This is because whilst race is an illegitimate construct, racial discrimination is real, and will always need to be proscribed.
My point about 1967 not effecting a complete neutrality is simply based on truth that no other Australians are the subject of the Commonwealth’s exercise of the section 51(26) race power. That power is exclusively exercised in respect of Aboriginal and Torres Strait Islander peoples and their affairs.
Turning to the contemporary question of constitutional recognition, this recognition is directed at the fact that there is no positive inclusion of those polities that pre-existed European colonisation, and the Australian Commonwealth. We are asked by this imperative for recognition to move from a certain neutrality to positive recognition and inclusion.
Is it possible for a Commonwealth to move to such a positive recognition and inclusion without fragmenting the Commonwealth that has been created? Those of us who believe in recognition say that it is possible, while others disagree.
We say the Australian Constitution can be upheld and its Indigenous peoples can be recognised. Uphold and Recognise.
Let me briefly rehearse the main grounds for objection to positive recognition, through the proposition of the Indigenous Voice, enshrined in the Constitution.
The first objection concerns the question of race. It is allegeed the Voice would be a racial insertion into the Constitution. This is the standard argument of Andrew Bolt and the Institute of Public Affairs.
This objection is only possible through a dishonest conflation of indignity with race. The IPA maintain recognition is racial recognition rather than a recognition of the fact that Aboriginal and Islander peoples are indigenous to this nation. If our people were blonde and blue eyed like the Sámi of the Arctic Circle it would be readily apparent recognition has nothing to do with race. But Bolt and the IPA will maintain this dishonest conflation regardless of the truth.
The second objection concerns equality under the Constitution and was best disposed of by former Chief Justice Murray Gleeson – which stands as the indispensable and the best case for indigenous constitutional recognition. In this Australian history of refusal to come to terms with the truth, of course Terra Nullius took so long for the country to come to terms with, to confront and to dispose of its horrific lie.
This happened with Mabo’s case whose distinction was singular throughout the common law world: we were the last British outpost to embrace the truth of native title and dispose of the lie of Terra Nullius.
Mabo and the Native Title Act were crucial moments in the history of this belated and begrudging recognition. The High Court’s decision in the Timber Creek case has come to terms with the existence and valuation of what is owed for the historical derogation from native title effected by governments since 1975. Expectations that governments owe indigenous groups compensation for the loss of property since the Racial Discrimination Act in 1975 were well known at the time of the passage of the 1993 Act and Timber Creek merely represented the delayed process of compensation.
This very day the Gumatj of Arnhem Land have taken to the Federal Court a claim in respect of compensation for the establishment of the infamous Nabalco Bauxite Mine, under the circumstances that led to Justice Blackburn’s fateful decision in 1971, precipitating the Land Rights Act and eventually being overturned by the High Court in Mabo.
The Gumatj premise their claim of entitlement under section 51(31) of the Constitution, namely upon the Commonwealth’s obligation to provide just terms for imposing that mine upon their traditional homeslands without their consent. The Gumatj claim is but another implication flowing from Mabo’s case and the entitlement to compensation and anticipated by the Native Title Act.
Uluru’s represented the coming together of Indigenous groups through a process of dialogue to consider what proposition would best reflect the inclusion of Aboriginal and Torres Strait Islander peoples within the Australian Commonwealth and its constitution. If the right to self-determination exists not just for individuals and tribes, but as a national Indigenous polity –then the Uluru process represents the highest benchmark in terms of process, dialogue and consensus.
Uluru represents the highest form of self-determination and a template for the future when it comes to matters of collective consensus and issues of national reckoning. I detect some incomplete comprehension of the self-determination point when it comes to reflecting on the outcome of the Uluru. Uluru called for three things: for a voice in the Constitution, for treaty in the form of a Makarrata supervised by a Makarrata Commission, and the telling of truth: to bring Australians together in a shared understanding of their past and a conviction that we can only envision a shared future for ourselves.
I look forward to the Law Council’s continued support for the Uluru consensus and I urge hope, belief, I urge that this is not the time for pessimism, we have real prospects, we can make this a positive moment for Australia. Thank you.