Is Indigenous constitutional recognition salvageable? We have to hope so
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Version 0 of 1. Anyone plugged into conventional or social media over the past week could be forgiven for thinking Australia is on the cusp of settling the matter of appropriately recognising Aboriginal and Torres Strait Islander peoples in the nation’s constitution. In fact, we’re still a long way from that destination – but it’s not unhelpful to check whether we’re on track in this critical chapter in Australian race relations. Any candid appraisal tells us that, so far, things haven’t gone as well as hoped. The road behind us is littered with broken commitments around the timing of a referendum, a lack of discipline and respect for process, interim measures, not wholly robust bipartisanship, and inconsistent political leadership. Related: Indigenous advisory body would have most impact: constitutional expert Is the situation salvageable? At this point, all fair-minded Australians have to hope so. The National Congress of Australia’s First Peoples (congress) continues to support the recommendations made three years ago by an expert panel tasked with advising on a model and process. Those recommendations represented a pragmatic appraisal of what enough Australians might support at a referendum on the issue. They paired removal of existing discriminatory clauses within the constitution with meaningful recognition, preservation of the Australian government’s ability to pass laws for the benefit of Indigenous Australians, and a prohibition on racial discrimination by governments. When we polled congress membership two years ago, we found overwhelming support (close to 90%) for constitutional reform generally, as well as each of the expert panel’s recommendations. We said then that, if the final model differed greatly from the recommendations, we would go back to our members. This we will do. We have also consistently asked the parliament to remain open to other means of achieving reform including legislation, a treaty or treaties, and genuine implementation of the UN Declaration of the Rights of Indigenous Peoples. Since the expert panel reported, two joint select committees have grappled with the best form of words to put to the Australian people in a referendum to amend the constitution – a tough gig. The second of these bipartisan committees, led by Coalition MP and Aboriginal man Ken Wyatt, is due to report by the end of June but may do so sooner. Along the way, the committee has received submissions from many quarters. Recently, there’s been some ruckus about suggestions made by Noel Pearson, which drew on earlier submissions to the committee made by his Cape York Institute. In those, Pearson stepped back from the recommendations of the expert panel, of which he was a member. Instead he backs an alternative bundle of measures: the removal of existing discriminatory clauses, symbolic recognition outside the constitution (in the form of a declaration of recognition) and what he sees as practical recognition within the Constitution, through the enshrinement of an Indigenous advisory and consultative body to the Parliament. Also woven into the fabric of Pearson’s proposal are Indigenous constitutional “conventions”, and legislative backing for his largely untested “empowered communities” model. Over the weekend, Pearson railed against criticism that his proposal was too late or tokenistic, He said he feared the joint select committee would sell the whole process short if it reported earlier than required. There could be some substance to that fear. “My deepest concern is that the committee intends to report early,” Pearson wrote. “I can only conclude this is another attempt to stifle public discussion of inconvenient ideas.” Being such a marked departure from the expert panel’s recommendations, Pearson’s proposal does present challenges. But, like the recommendations and all other advice available to the joint select committee, it should receive proper consideration rather than kneejerk support or rejection. Pearson says he has moved to his current position after venturing into the realm of constitutional conservatives – the “con-cons”, as they’ve been dubbed – and seeing just how fixed they are against, for example, a constitutional prohibition on discrimination. This has left him open to criticism that he has been too concerned with the views of the con-cons and not concerned enough with those of our own, heavily marginalised people. For congress, therein lies the rub. Like any other issue, there is a wide breadth of opinion amongst our people on recognition. Polling by congress and others indicates broad support for constitutional reform, as long as it is meaningful. There’s a smaller proportion that is outright opposed to any inclusion of our peoples in the constitution. In between, there are many who are becoming increasingly disillusioned and cynical about the way things are headed generally in Indigenous affairs. We have seen threats to close down remote Aboriginal communities, poor government engagement with communities, chaotic grant processes, funding cuts to key organisations (including congress), funding insecurity for health, legal, childcare and other services, the continuation of punitive measures such as income management – even those most supportive of constitutional reform ask whether they can trust their hearts with a government that does such things. The constitutional recognition debate is a reminder of another occasion where Australia was left wanting: the formulation of the response to the high court’s decision in the Mabo case, that acknowledged the existence of native title. After an exhausting and traumatic period of negotiation between Indigenous leaders and the then-Keating government – hallmarked by shameful claims by opponents that native title threatened Australian backyards – we ended up with the Native Title Act 1993. Already imperfect, the legislation was further compromised by amendment by the Howard government and, today, few of our people feel it has delivered any reasonable modicum of justice. Since then, Australia has repeatedly put its hand on its heart and pledged to honour the standards enshrined in the UN Declaration of the Rights of Indigenous Peoples, but has done nothing of the sort. Sadly, this is the legacy which Aboriginal and Torres Strait Islander people must engage with when we discuss constitutional reform. It is what has steeled many against being too energetic or optimistic. Nevertheless, many of us remain hopeful. Within months, if not weeks, the joint select committee will deliver its final report. congress is also planning a national Aboriginal and Torres Strait Islander meeting on this and related issues in Canberra before the 2015 Federal Budget is announced. Related: Noel Pearson's proposal could deliver real authority for Indigenous Australia | Fergal Davis This will not take the place of more comprehensive consideration of the issues by our people but will, hopefully, begin to crystallise collective Indigenous thinking on them. Noel Pearson will be among the invitees. The observation by American academic, author and activist Cornel West that “you’ve got to be a thermostat rather than a thermometer. A thermostat shapes the climate of opinion, a thermometer just reflects it” rings true for all of those engaged in this debate. Aboriginal and Torres Strait Islander aspirations should be at the forefront of it. |