1.1 The Uluru Statement from the Heart and the Origins of the Colonial State
In 2015, the Australian Prime Minister Malcolm Turnbull and Leader of the Opposition Bill Shorten, appointed a Referendum Council to consider how the national Constitution should be amended to recognise Indigenous Australians (2020). The Constitution may be amended only by referendum, and the Councilâs task was to break a long-standing impasse on recognitionâs form and purpose. The Councilâs two substantive proposals were more far-reaching than had been expected and reflected a much deeper understanding of the concept of recognition than governments had previously discussed.
The Councilâs recommendations were published, in 2017, as the Uluru Statement from the Heart (Referendum Council 2017). The first recommendation was to hold a referendum to amend the Commonwealth Constitution, not to provide symbolic recognition of the kinds previously proposed and introduced below, but to enshrine a representative Indigenous body with the power to scrutinise legislation and speak directly to the parliament. Through the parliament, it would also speak to the Australian people (Referendum Council 2017). It would be, as a parliamentary select committee would later style it, a Voice (Parliament of Australia 2018). The second and also potentially far-reaching recommendation was to establish a Makarrata or truth-telling Commission that would oversee reconciliatory agreements between Indigenous nations and governments. These agreements could include treaties.
However, the Councilâs nationwide consultation process was not universally accepted. Nor was the recommendationsâ order of priority. Seven of the 250 delegates, including the Victorian Green party Member of Parliament Lidia Thorpe âwalked outâ of the Uluru deliberations arguing that treaties, which the makarrata process implies but does not stipulate, should have been given singular priority. Their argument was that treaties were prior to the constitutional amendment to allow the Voice, because treaties recognise enduring sovereignty. Ahead of her election to the Australian Senate in 2020, Thorpe told the Sydney Morning Herald that in the absence of a treaty she could not feel part of âTeam Australiaâ (Without treaty, incoming senator canât feel party of âTeam Australiaâ, para. 2). Her argument is:
Letâs deal with the crux of the problem that we have in this country. That is that we have never had an agreement with the First People to be here. Letâs stop trying to divert to all these other things like changing the date [of the national day which commemorates the arrival of the British First Fleet in 1788] and constitutional recognition and all these fluffy things that do nothing. Letâs deal with the hard issue. (Sydney Morning Herald, 25 June 2020, Without treaty, incoming senator canât feel party of âTeam Australiaâ, paras. 29â30)
Recognition was not a new concept but, in the Councilâs recommendations, distinctive meanings and pathways were proposed to give it effect. They are neither easy nor âfluffyâ because even if not to the extent that some people think are just, they do contest the colonial characteristics of the contemporary state, and are significant statements of Indigenous self-recognition.
Although the Council was established by the state, it was clear that its members did not see the state as the âsole recognizing partyâ (Elliott 2018, p. 66). This assertion of Indigenous political agency was significant because if it is only the state that recognises, it is only the state that determines what is just and what is unjust. As Coulthard (2014) explained, if the state has the final word on what is just, what is to be recognised and what is not, then the colonial order is maintained. Recognition on these terms allows the state to determine the limits to what it means to be Indigenous and what it means, for example, to be an Indigenous deliberator in relation to land, language, culture, economic security and participation in public affairs; domains in which Indigenous peoples make particular claims on the state and which treaties might be expected to address. As it is, internationally, there is a ârighteous resentmentâ to be recognised (Coulthard 2014, p. 126), and the stateâs capacity to singularly determine the bounds of Indigenous aspiration is diminished only if the state and Indigenous peoples recognise one another as equal participants in a deliberative process set up to establish just terms of political association. In this sense, recognition responds to the politics of whiteness (Lake and Reynolds 2008) which prevailed at the inception of the Commonwealth of Australia in 1901 and, indeed, continues to influence Australiaâs political culture well into the twenty first century.
The first Australian Prime Minister Edmund Barton, and the second Alfred Deakin who held office on three occasions between 1903 and 1910, were influenced by the supposed failures of multi-racial ideas in the United States (Lake 2004). Multi-racialismâs rejection contributed to a âtransnational circulation of emotions and ideas, people and publications, racial knowledge and technologies that animated white menâs countries and their strategies of exclusionâ (Lake and Reynolds 2008, p. 4). The politics and scholarship of whiteness presumed white âownership of the earth forever and ever, Amenâ (Du Bois, cited in Lake and Reynolds 2008, p. 2). Otherness was a threat to this aspiration, and was demonstrated not just in colonial antipathy towards Indigenous peoples, but also in the White Australia policy which restricted non-white immigration to Australia from the Commonwealthâs foundation until it was officially abandoned in the 1970s. Whiteness was differently played out in New Zealand; conditioned by the different expressions of MÄori resistance and resurgence, and as this book explains contextualised by the Treaty of Waitangi, from 1840, and also by guaranteed MÄori seats in Parliament from 1867. In the contemporary politics of both Australia and New Zealand recognition provides coherent responses to colonial superiority. But on the other hand, as Coulthard (2014) explains in a Canadian context, there are strongly held arguments that recognition is capable only of serving colonial objectives because it necessarily assimilates people into a state that they did not construct and which cannot secure their substantive political voice.
However, from this bookâs perspective there is value in identifying, explaining and analysing a transformative potential that both treaties, and the Voice, could have as instruments of recognition. The bookâs analysis is informed by the New Zealand experience; a modern state constituted by treaty between the British Crown and MÄori chiefs on behalf of their hapu [sub-tribes] in 1840, and since 1867 also distinguished by guaranteed MÄori representation in the national parliament. Where it is instructive to the Australian case, the book also makes comparative reference to Canadian treaty-making and First Nationsâ public policy.
Australiaâs human occupation is at least 50,000 yearsâ duration. British settlement commenced in 1788. Its sovereignty was asserted on the grounds that the continent, and the island of Tasmania, were terra nullius, or unoccupied. This was, in Reynoldsâ (1996) view a âEurocentric jurisprudence of convenienceâ (p. xii), though it was consistent with Lockeâs (1887) theory of labour which held that land ownership could only be claimed on land to which one applied agricultural labour. Sovereignty also requires structured political organisation, and from the British perspective, neither of these criteria were met (Reynolds 1996), even though later scholarship depicts pre-contact Indigenous societies as highly organised political communities with developed geo-political and cultural associations with the land from which material and spiritual sustenance was derived (OâSullivan 2005).
Settlement was often violent with terra nullius accepted as the basis of colonial government until 1992 when the High Court of Australia found that in 1788: âThe lands of this continent were not⌠practically unoccupiedâ (High Court of Australia The High Court of Australia 1992). By this time, the five British colonies on the Australian continent and Tasmania, had federated (in 1901) to form the Commonwealth of Australia. Indigenous people were explicitly excluded from the negotiations to establish the Commonwealth, though in 1967 its Constitution was amended to allow their inclusion in the national population census and to allow the Commonwealth to make laws relating to the first inhabitants, which had until this time been a reserve power of the states. There was not, however, any requirement for such laws to be made in Indigenous peopleâs favour. The referendum did not provide any kind of distinctive recognition, but took on the âmantleâ of providing Indigenous persons with citizenship of the Commonwealth (Chesterman and Galligan 1997, p. 184). While Indigenous people had not, in fact, been formally excluded from citizenship, they were in most meaningful terms âcitizens without rightsâ, which was significant because as Chesterman and Galligan (1997) explained it:
[I]n order to be citizens without rights⌠citizenship had to be an empty category, and it was. The Australian founders eschewed putting any core positive notion of citizenship in the Constitution precisely to allow the States to perpetuate their discriminatory regimes and to enable the new Commonwealth Parliament to implement a national regime of discrimination. (p. 184)
Indigenous people in Queensland and Western Australia, ...