We don’t need Constitutional recognition

Treaties are a grassroots proposal and can be implemented without a referendum. I’m calling time on 10 years of discussion on Constitutional recognition. We don’t need it.

by Nyunggair Warren Mundine AO, Chair of the Yaabubiin Institute of Disruptive Thinking

Constitutional recognition of Indigenous people all began with John Howard. He proposed it twice. The first in a Constitutional “preamble” included in the failed Republic referendum in 1999. The second was before the 2007 election when he promised a referendum on Constitutional recognition.  The Howard government met its end at that election, but the idea didn’t. It was picked up by the Rudd/Gillard/Rudd Government and the Abbott/Turnbull Government and continues to receive bipartisan support – in principle, that is, because no Referendum question was ever settled and there’ve been all kinds of proposals. Last week over 250 Indigenous delegates, drawn from community dialogues held all across Australia, met at Uluru to bring it all to a head.

When Howard proposed Recognition he almost certainly meant a symbolic and legally meaningless acknowledgement. The five Prime Ministers who followed probably had similar expectations. But a poetic preamble has never held appeal to Indigenous people and was rejected by the Uluru delegates.

The Uluru Statement makes two proposals.

One is there be “a First Nations Voice enshrined in the Constitution”. The Statement doesn’t detail what this means but the idea comes from a model proposed by the Cape York Institute of a representative body enshrined in the Constitution to table advice in Parliament on “matters relating to” Indigenous people and requiring both houses of Parliament to consider the advice in debating those laws.

I’ve always disagreed with this proposal and still do.

Will this representative body table advice on every law before Parliament? What about laws on welfare, the environment, tax, mining or the Budget? Every Australian law impacts Indigenous people. They also impact every other Australian. Why should Indigenous people have a constitutional voice other Australians don’t have on laws that affect everyone? There’s the “No” case right there.

Perhaps the body will be restricted to advising on laws that affect Indigenous people specifically. The Native Title Act is one example. But the Keating Government negotiated extensively with Indigenous people when preparing that legislation, far more than a Constitutionally enshrined body would be entitled to. governments always do. A “First Nations voice” is a solution looking for a problem.

This idea is sold as conservative because Parliament could ignore its advice. So on the one hand it’s needed because Indigenous people don’t have a voice, but on the other it’s conservative because government doesn’t have to listen to it.

I also have zero confidence a High Court, if not now but in 20, 50 or 100 years, would look at this body and say it means nothing. It’s a radical amendment, if not for its intent but for its potential.

The second proposal in the Uluru Statement is for agreements – treaties – between governments and First Nation groups with a “Makaratta Commission” to supervise the agreement making process.

I’ve always supported treaties between governments and Indigenous First Nations. I use the plural deliberately. In Australian politics people talk about a treaty between Indigenous people as a whole and the government. This idea has never got anywhere and never will. No one speaks for Indigenous people as a single group. Even if government offered a treaty and identified someone to sign it, Indigenous people wouldn’t recognise it. We identify with our nation group or our “mob” as we call it. I’m Bundjalung. I’d only recognise a treaty between a government and the Bundjalung nation.

I’ve proposed the government offer each First Nation a treaty recognising them as traditional owners of their land and sea and concluding any native title claims over those areas. There should be an established governing body for each nation group representing it on matters specific to the group: to hold any native title, land and other assets, to be the responsible body for cultural and heritage rights and language. Only members of a nation should be members of its governance body using an objective, transparent test for membership. Having a single, authorised and identified representative body for each First Nation also provides certainty for organisations needing to deal with Indigenous people on projects on traditional lands.

This isn’t about sovereignty or creating ceded areas of Australia. And it shouldn’t be about managing areas of life that affect all Australian people – like health care, municipal services, or welfare. It’s a streamlined, uniform governance system for matters and decisions unique to a First Nation group that are currently managed through various different structures.

Although this seems more radical, it’s actually happening now. Native title groups already enter into agreements with governments which, once registered, bind all members of the group, even those who didn’t personally sign it. These are, in a sense, a form of treaty.

What’s more we don’t need a Constitutional amendment to implement it. governments can do it now.

The Uluru Statement made two proposals. One is a “top-down” lawyers’ proposal that will certainly fail. The other is a grassroots proposal with overwhelming Indigenous support that could be implemented without the need for any referendum.

I’m calling time on 10 years of discussion on Constitutional recognition. We don’t need it.


This article was first published in the Australian Financial Review on 31 May 2017

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  1. This pale-face “Noriginal” idea seems to me like a 2nd invasion by white “TRANS-RACIAL” frauds not too unlike the American girl that had succeeded in palming herself off as a BLACK, until the parents stepped in. I’m sure you heard of it.

    Trans sexual, trans-race and apparently someone ADULT is claiming trans-baby status in USA and looking for parents on line! You just can’t make this stuff up…

    It is a sad historical fact that many Aboriginal people got a rough deal 200 plus years ago, but that can’t be undone just as many atrocities in England and in the world of yesteryear’s. The treatment of English White convicts (for stealing a piece of bread…) on their long way to Botany Bay in primitive square-riggers is beyond description. Unlike the precious West-African slaves travelling a mere 6-8 week trip across the Atlantic, the convicts had no “commercial value” for the ship-owners during the 6-7 MONTHS sail-trip “Down Under”. Maybe people with a convict past have the worst treated ancestors in Australia, if not the world! It is a miracle that so many did survive all that time and did not become fish-food along the way. Why are the Aboriginal so obsessed about their alleged black past, and at the same time so totally ignorant about history?

    I have worked as a volunteer dentist in a few isolated Aboriginal Communities around the Kimberly region. A few years ago I was part of the Rotary Kimberly Dental Team that offered free “bush-dentistry” to the real black Aboriginals living in the outback. I have also done free & gratis dentistry in the Mekong delta, but that is another story, but it gave me a reference towards the Aboriginal “dental tour”. The Real Aboriginals (the ones that look like one and/or speak “Language”) turned out to be great patients, very friendly, happy and dignified out in the rural communities. We were told this is partly because 30% of the young males are away in jail… and yes, we did not see many young males for sure…

    NEVER, not once did I see such a fake “Trans-Aboriginal that you so often see on Q and A and about daily on ABC out in those settlements. Some places were a tad dangerous “after dark” so we had only day-time in/out visits with lots of driving. The self-proclaimed (plus a small fee, I bet…) “Aboriginal” urban white people masquerading as trans-Aboriginals have no other purpose other then their own fame and riches, Honourable Doctorates etc. I can assure you that they are non-existent as far as I could see out in the true black Aboriginal outback…

    This is what I think: Sadly the white settlers stole the land in past “Terra Nullius” because they could, and it is nothing we can do about this, except say a “sorry”, but surely not by all of us. – ONCE THE LAND.WAS TAKEN.
    However, we must challenge this new wave of white people masquerading as Aboriginals trying to steal and falsify aboriginal culture to what they think will suits them, the white trans-racials. – NOW THE CULTURE IS STOLEN!.

    The demands from the Ayers Rock talk fest are simply staggering! Nothing like: “Don’t ask what Whites can do for Aboriginals”. Ask what Aboriginals can do for fellow Aboriginals. And it is a lot Aboriginals can do for Aboriginals.

    They can start with ORGANIZING an Aboriginal “parliament” that can articulate what Aboriginals think and need. This pathetic and bizarre Ayers Rock talk fest has zero credibility. God only know what these crazy blond white “cry-baby” people came from? How could they become “representatives” for all Aboriginals in Australia? They should dip their heads in shame and go away and organise elections of a real “bona fide” Aboriginal representative assembly. Then and ONLY then can they do an Ayers Rock talk-fest mk ll with some healthy credibility.

    DRIP EAR – After doing dental work in Aboriginal communities I can’t help noticing the various health problems with real Aboriginals. This is far more a significant concern for real Aboriginals then the crap and outrageous nonsense that came out of the recent Ayers Rock greed-fest! How can they be so astronomically disconnected from the real problems of real Aboriginals? Truth is I don’t think Black people care for anything from the Ayers Rock bloat-fest.

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