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

Please follow and like us:

Speak Your Mind

*