Recognise what governments have not
“We are here and you have to deal with us.” As recounted by Fred Chaney in his foreword to It’s Our Country, so said the Yorta Yorta native title claimants in 2002 when the full bench of the High Court dismissed 5-2 their appeal against the judgment of the full bench of the Federal Court, which had upheld Justice Howard Olney’s ruling that the “tide of history” had “washed away” their traditional observances and way of life.
It’s Our Country contains essays by Aboriginal and Torres Strait Islander legal specialists, academics and business and community leaders. Each sets out their view on meaningful constitutional recognition, and “their visions for reform”. The book is edited by Megan Davis, director of the University of NSW law school, and Marcia Langton, foundation chair of Australian indigenous studies at the University of Melbourne. It’s closely argued, well written and often graphic (“the airtight cage of poverty”), as befits “polities” (nations) of poetic storytellers.
Importantly, the contributors did not have to think only about what might be considered “achievable”, the editors say. “We asked authors not to be constrained by the ideological minefield of deeply held views from both the left and the right … regarding matters such as ‘rights’ in the constitution.”
Upfront it’s made clear that the word country in the title does not mean the whole of Australia (though some argue it does) but the indigenous sense of “landscapes defined and bound by custom and hereditary rights, shaped by a priori spiritual forces and imbued with spiritual power”.
This book will shock some Australians. But the editors write: “It is our wish that you hear what successive governments have failed to hear and develop a better understanding of why many communities will not settle for the approaches that have already been tried and failed: symbolism, gradualism, minimalist approaches.”
The essays here catalogue bad faith, letdowns, broken promises, appalling statistics of indigenous morbidity, mortality, incarceration: wall-to-wall disadvantage. Almost worse is how not just indigenous affairs but indigenous people are political footballs in the main game of politics, especially federally in recent years: now is the lowest ebb of commonwealth policy and programs for 40 years.
A case in point is the National Congress of Australia’s First Peoples, devised by Tom Calma for Labor, sidelined by a hand-picked indigenous advisory council when the Coalition gained office, now to be defunded. In her essay Kirstie Parker is outraged by the government’s “lack of respect”.
It is telling that the most experienced administrators among the essayists, in mainstream bureaucracy and at the indigenous coalface, are the most trenchant critics of government and its processes.
It is notoriously difficult to pass a referendum to change the Australian Constitution, harder than anywhere on earth. And it would seem that any minimalist referendum, certainly by May 27 next year, to coincide with the 50th anniversary of the 1967 referendum, is dead in the water before the process even starts, whenever that might be. Five years and four processes, and still no question to put to voters; the hard truth is that certain of the expert panel’s proposals are likely to be unacceptable to some politicians, and very likely to many voters, though repeated polling shows a healthy majority of Australians favour recognition.
There is concern the Recognise campaign seems to be heading for a symbolic, minimalist or gradualist (not now, later) formulation. Perhaps unfairly: the Recognise campaign is directed by Reconciliation Australia and based on the proposals of the expert panel and the select committee of the commonwealth parliament. And surely someone like rugby league star Greg