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Treaty

Treaty

I know, I know…it’s been a while since I’ve posted. Usual excuses – have been busy at work and I suppose like the rest of the world grappling with the new reality the coronavirus has sprung upon us. To be frank, my life hasn’t changed a great deal – still working, although it has been quieter and different. I’m accustomed to isolating myself at home when I’m not at work anyway (my preferred way of living) so the whole social distancing thing hasn’t bothered me at all. In fact, I’m kind of not looking forward to things going back to normal. Like everyone, I’m more watchful of my health and safety, and that of my children, paranoid even, but that is probably a good thing.

I’ve been quite productive creatively. Have been doing a fair bit of writing. I have put my novel on ice for a bit as I had the sneaking feeling something was not quite right. I’m still not prepared to slash and burn though which is why I have just turned away from it for now and have been concentrating on a few other projects.

I thought I would post here a feature I wrote a few months ago on the indigenous treaty movement in Australia. It’s possible there have been a few updates since then and I will endeavour to update if that’s the case when I can. Here it is, thanks for reading about this important topic.

Entreaty

The Crusade of the

Uluru Statement from the Heart

The Uluru Statement from the Heart

In May of 2016, 250 First Nations representatives met in Uluru to bring to a hopefully optimistic conclusion a series of regional dialogues about Indigenous reconciliation. The meeting wrapped up after four intense days and was, according to Zenadth Kes (Torres Strait Island) man Thomas Mayor, who was there and led much of the discussion, a “quagmire of low morale”, replete with suspicion of Government interference and doubt in a positive outcome. However, when the meeting drew to a close, it was with a jubilant gift to the Australian people: The Uluru Statement from the Heart. The Statement proposed in simple terms, on behalf of Australia’s First Nations, a roadmap – or stepping-stones – to the achievement of Indigenous reconciliation: Voice. Treaty. Truth. With both Indigenous and non-Indigenous Australians heeding the call, it seems the Statement has banished low morale and launched a crusade.

Uluru Statement at the 2018 Winds of Zenith Festival. Photo courtesy of Thomas Mayor.

This despite that in the immediate aftermath of the Uluru Statement, the Turnbull Government fell at the first stepping-stone, a Constitutionally enshrined Indigenous Voice in Parliament. In July 2019 the rejection was reiterated by the Home Affairs Minister Peter Dutton who said that fulfilling this Uluru Statement’s objective would create a “third chamber” in Parliament.  

But in the face of this Federal Government resistance, the Governments of the Northern Territory, Queensland and Victoria began to pave their own route. In March of 2018, the Northern Territory Government and traditional owners agreed to establish a Treaty Working Group, and a Memorandum of Understanding to advance the treaty process was signed at the Barunga Festival that year.  Subsequently, a Northern Territory Treaty Commission was established to deliver education and awareness of treaty-making across the Territory.

Last July, the Queensland Government implemented a “Tracks to Treaty” policy with the aim of providing the Indigenous peoples of Queensland a voice in the decisions of that State’s Government. On 17 October 2019, the first consultation about genuine recognition and treaty occurred in Cairns as part of the Queensland initiative, with other sessions following across the State, led by an Eminent Panel and Treaty Working Group.

The treaty-initiatives taken by the Governments of the Northern Territory and Queensland drew heavily on the influence of Uluru Statement from the Heart. So too did the subsequent achievements of the Victorian Government in implementing its own treaty process. Gunditjmara woman Jill Gallagher, who had worked for twenty years with Aboriginal people in the fields of domestic violence and health, reflects on how in 2016 the Victorian Government expressed a willingness in to talk to the Aboriginal people about Constitutional reform and self-determination. “When Aboriginal people of the State made it clear to the Government that true self-determination for them was to be able to negotiate their own treaties, the Government didn’t just dismiss it, they said ‘Let’s explore it’”, Gallagher says. A Treaty Working Group was established, with Gallagher as a member and its eventual co-chair, and consisting of 16 Aboriginal people from across Victoria. This working group was instrumental in the enactment of Australia’s first treaty legislation in 2018: the Aboriginal Victorians Act. In the same year, the Victorian Treaty Advancement Commission was formed, with Gallagher at the helm, to maintain treaty momentum. It launched a First Peoples’ Assembly with the purpose of crafting a process by which treaties will be negotiated between the Victorian Government and the indigenous nations of Victoria. Newly-elected co-chair of the Assembly Taungurung man Marcus Stewart says “There has never been another organisation like the Assembly, ever. This is history in the making”.

It seems the Australian voting public too have taken the entreaties of the Uluru Statement to heart. In 2019, research undertaken by Essential Media revealed a clear majority of Australian voters support treaty-making with Indigenous Australians. The proposal of an Indigenous Voice in Parliament also had majority support.

This surge in public opinion and rise in regional treaty resourcefulness may have had the Commonwealth Government scrabbling for traction. In October, the Minister for Indigenous Affairs Ken Wyatt revealed a 12-month plan to establish an “Indigenous Voice to Parliament” and detailed a plan to bring constitutional recognition to referendum within the current parliamentary term.

However, with the rumbles in Government about the “third chamber” in Parliament being a proposal of the Uluru Statement, Gallagher remains indignant, because this, she says, was never and is not the intention.  Gallagher says the Federal Government engaged in “deliberate scaremongering” on this issue. “To create false innuendo in Parliament and to Parliament (about the nature of the proposed Indigenous Voice)”, she says, “was underhand and sneaky”.

Gallagher is also dismissive of the Government’s 12-month plan, calling it “cosmetic”. She says sombrely, “I don’t have any confidence that we will achieve what the Uluru Statement wanted to achieve. Not under this Government.”

When asked what the Federal Government might be afraid of, Gallagher sighs. “I’ve been asked that question many times by Aboriginal people…and I lie awake contemplating it. Are they scared about acknowledging the past? Are they just mean-spirited people? I don’t know, but I do know we need a Government that is courageous, that is willing to explore proper reconciliation of Aboriginal and Torres Strait Islander people in the Constitution.”

Thomas Mayor in Arnhem Land. Photo courtesy of Thomas Mayor.

Not without courage, and a man who Gallagher calls a “warrior” and a “hero”, is Thomas Mayor himself. Mayor is a respected Union leader in Darwin, and has long been active in the Northern Territory in campaigning on Indigenous issues such as the cutting of services to Aboriginal communities and mistreatment of Indigenous youth in detention centres. With this reputation, he was invited to participate in a one of the regional First Nations’ dialogues about Constitutional reform that led ultimately to the meeting in Uluru, where Mayor led discussion and became one of the signatories to the Statement from the Heart. Mayor was also present when the Statement was presented to the then Prime Minister Malcom Turnbull at the Garma Festival in 2017. He writes in his new book Finding the Heart of the Nation that the Prime Minister’s words at the time were “empty” and that he found the politics “depressing”, the Federal Government intentions to reject the Voice evident.  But at the Garma Festival, Mayor had held the Statement canvas for the first time. “I felt the power of the canvas,” he says, “the spiritual and political significance through the sacred art, the many names and the moving words. I wanted others to feel what I felt so they’d accept the invitation to walk with us”. And so, with the canvas rolled into two postal tubes sticky-taped together, Mayor embarked on an eighteen-month journey around Australia bringing the message and entreaties of the Statement to the people. “The endorsement was always strong, “he says. “The people gave me confidence that we got it right in the heart of the country at Uluru”. 

Thomas Mayor and Jill Gallagher with the Uluru Statement. Photo courtesy of the University of Melbourne

Like Gallagher, Mayor is cautiously excited by the treaty focus of some State and Territory Governments. “I think the initiative of the States to commence the treaty process is good,” he says, “though Treaty negotiations need a constitutionally enshrined Voice for treaties to be successful and protected. We are a Federation and therefore the States and Territories cannot fully deliver on commitments because the Federal Government holds important powers over anything we negotiate”.

With this focus on the first two stepping-stones, what about the third, Truth? Since 2008, Reconciliation Australia has published the biennial Australian Reconciliation Barometer which “delves into the heart of our nation to identify the attitudes and perceptions Indigenous and non-Indigenous Australians hold about each other and about reconciliation”. This barometer has shown that most Australians – indigenous and non-indigenous – support a formal truth-telling process. And the Uluru Statement proposed a “Makarrata”, a body which would supervise both the process of agreement-making and truth-telling about Indigenous history. Being guided to knowing the Truth, to understanding Indigenous history, culture and experiences is necessary, Reconciliation Australia CEO Karen Mundine explains, because “it’s only by understanding and acknowledging what has happened in the past to Indigenous Australians can justice and healing occur”.

With Australia navigating – and perhaps teetering on – the stepping-stones presented by the Uluru Statement from the Heart, Mayor agrees the indigenous reconciliation route proposed has been and will continue to be a challenging one. However, he says, “Australians in their droves are heeding our call,” he says. “With the voting public demanding it, we will achieve what we want”. It seems the rally for Indigenous Voice, Treaty and Truth will not be going away.

WHAT IS THIS ABOUT THE CONSTITUTION?

The first stepping-stone

What is the Voice the Uluru Statement pleads for and why is Constitutional reform so important? In his book Finding the Heart of the Nation, Thomas Mayor writes that at the present time we don’t know what the Voice will look – or sound – like. However, what the Voice will do is address the “torment of [indigenous peoples’] powerlessness” by giving the traditional owners of this land an enduring and protected right to be heard on the often-detrimental laws and policies that apply to them. “A Voice is the first reform,” Mayor writes, “because it will start to address this political disempowerment, setting us on the path for the future reforms of Treaty and Truth”.

It’s envisioned the Voice will accomplish its objectives by being enshrined in our Constitution. This is necessary, Mayor says, because “we must protect what we build. All past national First Nations representative bodies have been replaced, repealed or defunded, subject to whim of the ideology of parliament.” Constitutional reform to provide that protection is therefore of utmost urgency.

But to have a Voice is one thing. The Voice must be also heard. Professor Megan Davis, a Cobble Cobble woman, Constitutional law expert and also one of the signatories to the Uluru Statement, believes the capacity or willingness to hear and to listen to Indigenous views and stories has been absent in this country. This, she says, has contributed to the Aboriginal and Torres Strait Islander peoples suffering from “ethical loneliness”. Ethical loneliness, she noted in her address to think-tank CEDA in 2018, “is a condition undergone by people who have been unjustly treated, dehumanised by political structures, who emerge from that injustice only to find that the surrounding world will not listen, or cannot properly hear their testimony of what they have suffered”. Ethical loneliness arises from “a failure of just-minded people to hear well”, she says. How then do you compel the state to listen? How do you compel the state to hear an indigenous Voice? “You go to the big law,” Professor Davis says simply. “You go to the Constitution”.

The Problem with our Constitution

And so, it seems the Constitution could solve both problems: the absence of an effective Indigenous Voice, and our nation’s ‘deafness’. But we are relying here on a document that, since it was enacted at the time of Federation in 1901, excluded and discriminated against the nations that had been here for sixty thousand years before the British arrived. Because we may not be aware of the Constitution as we go about our daily lives, this defect may have many shrug in confusion or disinterest. However, it’s perhaps not putting too fine a point on it to say that the Australian Constitution is to our government and law what the Magna Carta is to democracy or the Ten Commandments is to Christian and Jewish morality, or – for the more literary amongst us – what the One Ring is to Middle Earth: it binds us all. Or it should. It has not “bound” Indigenous Australians, except in a discriminatory manner.

Indeed, in his 2012 paper “Constitutional Law and Indigenous Australians: Challenge for a Parched Continent”, former High Court justice the Hon. Michael Kirby baldly reinforced that the Constitution is “frankly racist” and “carries nineteenth century notions that Chinamen in the goldfields and Aboriginals in the remote outback might, by reference to their race, be disqualified from voting”.  Elsewhere the Constitution asserts a white racial superiority by giving power to national parliament to enact laws depriving Indigenous Australians of rights enjoyed by non-indigenous Australians. That power as Michael Kirby says, “is a shocking thing in this day and age”. 

Changing the rulebook

However, it’s not all shameful news.  The just-minded people mentioned by Professor Davis have sought since 1901 to reform the Constitution, even though doing so is not a simple process. Changing Australia’s eminent and revered rulebook requires the support of the majority of voters in the majority of states, and the approval of Parliament. As former Prime Minister Robert Menzies complained in 1951 in an address to Parliament following one such referendum to impose civil burdens on Communists, changing the Constitution “is one of the labours of Hercules”.

Only eight of the forty-four proposals to amend the Constitution have been passed. Relevantly, however, on 27 May 1967, a resounding 90.77% of the people of the Commonwealth voted at referendum for Constitutional change to include Aboriginal people in the census and to allow the Commonwealth to make laws for them. This was a culmination of a protracted process over many years. It’s easy to think though that the success was tarnished at times by the preceding debate, which showed Australia may have been more concerned about its reputation abroad should the reform not be implemented. Elsewhere, the Constitution was defended in tones of racial superiority. On 21 May 1961, the “Commentator” of the Sydney Morning Herald wrote that “trailing after the primitive tribesmen for purposes of enumeration would have been more difficult than rounding up a mob of wild brumbies”.

The road less-travelled

Nevertheless, the voting public held sway at the time and the Constitution was changed. But the road travelled thereafter continued to be a rocky one. No other Indigenous recognition in the Constitution was achieved, however detours were carved. In 1992 by the celebrated Mabo case, the High Court overthrew the doctrine which had decreed that this land was empty and belonged to no one before the British arrived. In 1997 at the Barunga Festival in the Northern Territory, the then Prime Minister Bob Hawke promised a treaty between the Federal Government and the Indigenous peoples. In 2010, another Prime Minister Julia Gillard established an expert panel to lead a national discussion on constitutional recognition of indigenous peoples. Finally, an intensive country-wide consultation process about constitutional recognition reached its zenith at Uluru, and with the pleas enacted in the Statement from the Heart.

Along this road, Professor Davis admits of having to “settle people down”. First Nations peoples felt any past progress paid lip-service and was paternalistic. At Uluru, confronted with low morale and frustration, the job fell to Professor Davis, Thomas Mayor and their colleagues to instil faith that things could change. “Law reform is about imagination,” Professor Davis urged. “There’s a problem, you have to fix it, you have to suspend disbelief that the system can’t change…you have to imagine that Australia can be a better place.”

The Governments of the Northern Territory, Queensland and Victoria, and the Australian people themselves, now seem to be imagining a better place.

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