Constitutional Recognition vs Treaty: a valuable NAIDOC week discussion

At the heart of the debate around ‘Constitutional recognition vs treaty’ there exists two fundamentally different conceptions of the place of Indigenous people in the nation.

On the one hand, those who propose a treaty with Indigenous Australians often believe that Constitutional recognition and a treaty are mutually exclusive propositions, and that one precludes that other. They also deem the status of First Peoples to be at odds with the Australian nation and ‘Australian-ness’. This is because of the way that history has brutally and, in their view, irreparably excluded us from Australian nationhood.

On the other hand, there are those who accept that despite our history we have no choice but to be a part of the national identity, even though the dominant conception of it represents us as a necessarily oppressed counterpart to ‘true’ Australians.

Many Indigenous people who rally against recognition in favour of a treaty deny the legitimacy of the Australian Constitution. However, it is simply a fact that the document governs the laws and institutions of this country, and therefore influences the lives of all Australian citizens.

What unites the First Peoples in this debate is a drive towards self-determination and self-governance. I believe that for these aims to be achieved, we need both treaties and recognition as the First Peoples in Australia’s highest legal document.

As a young Aboriginal woman, I am forced to come to terms with the ‘tide of history’ piece-by-piece. Many parts of my culture and identity that have been damaged by colonisation have been suppressed and usurped by notions of race that belittle, deride and oppress. For example, Bruce Pascoe’s book Dark Emu (recent joint winner of the Indigenous Writing Prize at the NSW Premier’s Literary Awards) argues that the myth of the First Peoples as nomadic hunter-gatherers has been perpetuated since British invasion to enable dispossession. In fact, he reasons we were sophisticated agriculturalists with national and international trade routes. His evidence is drawn from records that even the most conservative historian couldn’t argue with: the journals and diaries of explorers such as Sir Thomas Mitchell and Charles Sturt.

Many Aboriginal people subscribe to the hunter-gatherer myth. It’s what we were told. Even the very word ‘dreamtime’ is a degraded version of the vast worldview of our ancestors, first coined by ethnographers Spencer and Gillen. The term is an inadequate attempt to describe our deeply held spiritual beliefs, our song-lines and our connection to land. How do I reconcile my own identity knowing our history, and that at every conceivable stage my ancestors were intentionally and systematically excluded from Australian nationhood, and still are today?

In 1901, those who wrote the Australian Constitution aimed to ensure the peaceful creation of our Federation and conceive the new nation. Of course, it reflected their views and as the ultimate embodiment of the ‘colonial project’ the Constitution actively excluded the First People because they saw us as a ‘dying race’. This was changed in the 1967 referendum, but to this day there is still no mention whatsoever of Aboriginal and Torres Strait Islander peoples in the Constitution.

Furthermore, it still entertains outdated notions of race.  Section 51(xxvi) allows the Federal Parliament to create laws based on race. The only group that has been subject to legislation made under this section are Aboriginal people. In Kartinyeri v Commonwealth the High Court ruled that there is no limit to the scope of the race power conferred on the Federal Parliament. It is clear that the Constitution no longer reflects who we are as Australians and it must be amended. Constitutional recognition is an opportunity that will allow us to mature as a Nation, face our true history and acknowledge our shared history. But it is not the only step on the long road to reconciliation.

The national process around Constitutional recognition thus far has seen an Expert Panel, a Joint Select Committee and now the Referendum Council.  There have been hundreds of proposals for reform ranging from ‘minimalist’, which would essentially leave us in the same position we are now in, to a ‘rights-based’ change that would ensure strong legal protection against racial discrimination. Each of these models has received opposition from those who advocate for reform.

There is however, an innovative model that would restore the First People’s rightful place, and deliver a platform for our voices to be heard in the national politic. Noel Pearson, Anne Twomey, Greg Craven, and others proposed the creation of a constitutionally embedded Indigenous parliamentary body to advise and consult on matters relating to our mob. Treaties provide the terms by which external parties negotiate with Aboriginal and Torres Strait Islander groups, and create a framework for much-needed reparation. These instruments would not oppose or weaken one another; rather, working in partnership, Indigenous aspirations would gain in strength and momentum. The key to successful outcomes on both fronts is robust leadership from the First Peoples and the Australian Government.

Ruby Langton-Batty is of Yiman decent (QLD), and has lived in many different places across the country including Darwin and Melbourne. Currently based in Sydney, she is an intern with Corporate Citizenship at KPMG and is completing a Juris Doctor (Law) at UNSW.


4 thoughts on “Constitutional Recognition vs Treaty: a valuable NAIDOC week discussion

  1. Good contribution Ruby and will no doubt help inform the position of readers. One point of clarification before I give my two bobs worth on Recognition … we aren’t the First Peoples – we are the only Peoples of this country. The rest of the population are descendants of the invaders and immigrants.

    Now, I’ve read most of what others have said on this subject and encourage you to do likewise. What I keep coming back to though is the following fundamental truth.

    The Australian Constitution is a construct of racism, of invasion, of contempt for Indigenous Peoples’ rights, and of crimes against humanity that have gone unpunished and unreparated. It legitimises, in the view of the neo-colonial state, the illegal seizure of our lands and the dismissal of Aboriginal law. I appreciate that this may be difficult for some to understand, but the reality is that as long as the Constitution is operative as the “supreme law of the Commonwealth of Australia (neo-colonial Australian state)”, it enables the continued denial of our rights. Tinkering around the edges is not going to change that, i.e., constitutional recognition of us won’t lessen its servility to the continued denial or suppression of our culturally inherent rights.

    For me then, “Recognise” is a distraction from the real issues of the restoration of our culturally inherent rights and the elimination of inequalities that still exist.

  2. What a great insight into your informed perspective Ruby. It is contributions like this that contribute to productive change that we, as a nation, so badly require.

  3. Marjorie Johnston

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    ‘Terra nullius’ and ‘smooth the dying pillow’ were negative colonial ideas and policies – and the thinking and language that went with them still have impacts seen in Australia today.
    It would be great to see the innovative leadership model you describe become a reality to the benefit of all.
    Thank you for this insightful and thought-provoking discussion.

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