Some thoughts on constitutional recognition of the first Australians
Dr Hannah Middleton
Starting in 2007 with former Liberal Prime Minister John Howard, the Australian Government has been pushing for ‘Constitutional recognition of Aboriginal & Torres Strait Islander peoples’.
In 2010, the Gillard government handpicked an “expert panel” to make recommendations in regards to amending the Constitution. The constitutional reform panel handed down its final report in January 2012.
The panel’s recommendations have received wide support in both Aboriginal and non-Aboriginal communities but many Aboriginal political activists and others are questioning the motives behind this multimillion dollar campaign.
Why should we trust a recommendation from the government of a capitalist state interested not in morality, democracy and human rights but in controlling land and resources for profit making?
Leading Aboriginal lawyer Mike Mansell points out that “crafting a constitution that deals with dispossession, and political and cultural rights for Aboriginal people while acknowledging the real purpose for the existence of the constitution requires some intense deliberation …
“For 200 years Aboriginal people have been dominated to an extraordinary degree and the NT Intervention laws are a product of that domination. This is the result of white people making decision about Aborigines.”
We would do well to remember that the US, Canada and New Zealand have recognised Indigenous people in their respective constitutions. However, this has not solved the problems of their Indigenous communities – discrimination, poverty, high levels of crime and drug taking, suicide, incarceration and more.
Many years ago, Charles Perkins called for a treaty written into the Constitution which covered issues of the prior ownership of land, sovereignty, compensation for land lost, and recognition of the customs, laws, languages and sacred sites. The current proposals go nowhere near this.
In 2011, the Gillard Government hand picked a 19-member “expert panel” to hold consultations around recognizing Aboriginal and Torres Strait Islanders in the Constitution, part of an election promise made by former Prime Minister John Howard.
The panel travelled around the country conducting a series of public meetings. It handed down its final report and recommendations on January 19, 2012 at the National Gallery of Australia in Canberra. The panel recommended:
- Repeal of section 25 (which allows Parliament to disqualify any race of people from participating in an Australian election)
- Repeal of section 51 (xxvi) (this is often referred to as the ‘race power’ and gives the Commonwealth the authority to make laws that discriminate against citizens purely on the basis of race).
- Insert a new section 51A which recognises that Australia was first occupied by Aboriginal and Torres Strait Islander peoples; acknowledges the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; respects the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples; and acknowledges the need to secure the advancement of Aboriginal and Torres Strait Islander people. This section also preserves the right of Parliament’s to pass laws “for the benefit” of Aboriginal and Torres Strait Islander peoples – such as the infamous Northern Territory Intervention.
- Insert a new section 116A which prohibits racial discrimination by the Commonwealth, a State or a Territory on the grounds of race, colour or ethnic or national origin”. Subsection (1) allows the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.
- Insert a new section 127A, which says that the national language of the Commonwealth of Australia is English, the Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage, and that the role that languages have in Aboriginal communities must be acknowledged and protected.
These proposals have wide support across the political spectrum and in the Australian community both Indigenous and non-indigenous.
Adam Goodes, Australian of the Year 2014, says: “We want to be recognised. It’s just as simple as that. We’ve never been recognised. We are the first Australians, okay? And it is time we were recognised.”
Renowned indigenous leader Patrick Dodson says: “Recognition of the first peoples in the Constitution sends a message that you are valued, you are important, that we want to respect you, and we want to deal with the things that have caused us division and discord in the past.”
Singer and song writer Archie Roach says: “Until that (constitutional recognition) is addressed, then we truly can’t go forward as a people, as a nation, as Australians, as a whole.”
AFL legend Michael O’Loughlin says: “The long presence of Aboriginal people in this land is part of Australia’s history. I think every fair-minded Australian can understand why recognition will help us to heal old wounds.”
Millie Ingram, Wiradjuri elder, says: “We are the First Australians. It’s up to all of us to come together and acknowledge and recognise this. We have the longest continuing culture in the world. Aboriginal culture doesn’t just belong to Aboriginal Australians. It belongs to all of us.”
While the movement for constitutional recognition has official support, including from the Labor and Liberal parties, and is strong and vocal, not all Aboriginal people support it. Significantly most of the criticisms come from seasoned political activists who have fought decades of broken promises, wasted funding, spin and lies.
The new section 51A recognises that Australia was first occupied by Aboriginal and Torres Strait Islander peoples. There is no constitutional recognition of their prior ownership of the land.
The constitution can only be changed by a referendum and these are notoriously difficult to win in Australia. Inclusion of the notion of occupation of the land in the constitution now will effectively mean prolongation of the status quo. Correcting the constitution to reflect the real situation as colonisation (not “settlement”) of ownership of the land will be extremely difficult.
This is hardly surprising. For the owners of capital, land rights are both an immediate threat to their economic interests – and also a dagger aimed at the very heart of capitalism.
Land is a major source of wealth – its use for sheep, cattle and farming, the natural resources in and on it (gold, oil, bauxite, copper, diamonds, timber and so on), as real estate and for tourism. All this and more makes land one of a country’s most valuable assets.
To return some part of this valuable asset to the people as community property sets a dangerous precedent for monopoly corporations who are intent on owning or leasing all the resources of this country in order to make the most profit possible.
Aboriginal land is owned communally, by a whole community. Private ownership for private profit would no longer be the only way things are done – there would be an alternative of collective ownership for the benefit not of an individual but of a group.
It’s not a big step from this to suggesting that all the valuable assets in Australia could become the collective property of all the people and be used not for private profits but to meet the needs of the people.
Dr Gary Foley says Constitutional recognition is a joke and a waste of time. “Government only ever pumps millions of dollars into things that are essentially meaningless, things that are designed to divert our attention from the real issues ... .
“Who gives a damn about whether we’re mentioned in the Australian Constitution? What real difference will it make? It’s a grand token gesture and will mean nothing in the long run, so it’s a waste of time for people to be even talking about it”
Academic Mary Graham warns that the government’s campaign is not to be trusted. “Constitutional recognition is a way of promising something, but with no real substance.”
Ray Jackson, President of the Indigenous Social Justice Association, says “the addition or lack of some ‘secret english’ words adds not one day to our life expectancy, our rights to our self-determination, or one footprint of our ancient lands.”
Noted Aboriginal lawyer Michael Mansell condemns the proposed new section 127a which makes English Australia’s official language and recognises Aboriginal and Torres Strait Islander languages as part of our national heritage.
He says the proposal “stinks of racism” and that First Nations people have “the right to maintain our languages against assimilation”.
He says the proposal to make English the national language is based on notions of “white supremacy” and could have the effect of making Aboriginal languages “subservient” to English.
The proposal compares unfavourably with the recognition in Aotearoa (New Zealand) of Maori as one of the nation’s three official languages, alongside English and sign language.
The thinking behind many of the criticisms is that for many Aboriginal communities, the goal is not constitutional reform. It is sovereignty.
Michael Mansell comments: “Effectively, the expert panel legitimises the invasion of Aboriginal lands, with whites having the right to govern and Aborigines the right to be governed. The bottom line for the panel is to promote assimilation. No mention of sovereignty or self determination, the two most important rights Aborigines are entitled to.”
Veteran activist Robbie Thorpe says “If we do consent to that Constitution, we’re giving up our sovereignty in a sense, and legitimizing what’s happened to us over the last two hundred years in this country.”
Chairman of the Centre of Indigenous Cultural Policy Bob Weatherall comments that “constitutional recognition is yet another paternalistic government policy. Nothing has changed. It’s just a new Act and new provision that’s being imposed on us, keeping our people down. We’ll still have the dominant society over the top of us who make laws and policies that continue to deprive us of our basic human rights and fundamental freedoms.”
Michael Anderson, spokesperson of the Sovereign Tribal Union, says “the real hidden agenda of the proposed referendum is to coerce Aboriginal Nations and Peoples to become part of the Australian Constitution and by doing so consent to be governed. The Commonwealth government can then claim that Aboriginal Nations and Peoples have acquiesced. This is the main weapon the Crown has to counter our sovereignty movement.”
It has been suggested that the Aboriginal demand for sovereignty runs counter to some aspects of the Communist Party of Australia. However, if we look past the different terms used, we can see that the two approaches are in fact similar.
The Communist Party’s program gives priority to winning communal, inalienable land rights for Aborigines based upon traditional ownership, religious association, long occupancy and/or need. These are rights which must be returned; they are not gifts to be bestowed by the dominant society.
Aboriginal land title must include full rights to minerals and other natural resources as well as to all sacred sites, heritage areas and areas of traditional significance.
Another essential feature is the establishment of autonomous areas for communities on the basis of their communally owned land where they can develop their own economic, social and cultural life.
Regional Communal Autonomous Areas would have various levels of autonomous self-governing councils, free of any interference from the existing political structure.
These Autonomous Areas would enjoy similar status to the States, thus having an equivalent type of representation in the Australian Federal Parliament, the Council of Australian Governments (CoAG) and other intra-Federal bodies.
On 16 July 1990 the Aboriginal Provisional Government (APG) was formed. It described an Aboriginal view of sovereignty in a statement which said in part:
We can anticipate the white reaction to any challenge from the Aboriginal community to over 200 years of white supremacy and domination. What is seen by Aborigines as freedom and independence is for whites a form of apartheid; what has been put forward as the right of Aboriginal people to control themselves has drawn the comment of “separatism”; what the APG sees as self-determination for Aborigines is viewed generally by the white powers-that-be as a dividing up of the country ... .
Let it be clearly understood: the Aboriginal Provisional Government wants an Aboriginal state to be established, with all of the essential control being vested back into Aboriginal communities. The land involved would essentially be crown land but in addition there would be some land which would be needed by the Aboriginal community other than crown land.
The test for which lands come under the Aboriginal Provisional government would be the land needed by Aboriginal communities to survive on. No longer would Aborigines need to beg governments or judicial bodies for land to be returned to Aboriginal people.
At the end of the day, enough land would need to be returned to Aboriginal communities throughout Australia to enable them to survive as a nation of people and the remaining land would be kept by whites and their governments as a basis for them to continue their nation ... .
Nor would Aboriginal people have to live in a particular small area on Aboriginal lands. The areas would be scattered far and wide around Australia and would be the land needed by local Aboriginal communities.
While some have scoffed at the peculiar boundaries such a division of land would create, it is not unusual in international circles. For example, the United States is a nation yet is separated completely from its territory in Alaska. Its territory in Hawaii is halfway around the other side of the world. This has not been seen as a reason to laugh at the jurisdiction of the United States ... .
The political control of each local Aboriginal community would be vested in the community themselves. There would be no point in transferring white power to an Aboriginal Provisional Government which simply imposed the same policies from above.
The local communities must have absolute control over their day-to-day activities and the direction in which the local Aboriginal communities are to move ... .
The way forward
Mike Mansell says the focus has to be on national land rights legislation, ending the NT Intervention, Aboriginal self-determination and Aboriginal representation in Parliament.
The key to the recognition of the rights of the Aboriginal people remains land rights. The Communist Party insists that the special position and inherent rights of the Aborigines and Torres Strait Islanders as dispossessed, Indigenous minorities in Australia must be recognised and that this recognition must be based above all on the return of Aboriginal and Islander lands.
The Socialist (now Communist) Party of Australia’s 1978 program calls for unity in action to be built between black and white Australians, stressing that:
The working class movement must realise that part of their movement is made up of Aboriginal and Islander workers and that the national liberation and working class movements are allied. The revolutionary and anti-monopoly content of the land rights campaign is as important for the white workers as it is for the Aborigines and Islanders.
The working people of Australia suffer at the hands of the same rapacious transnationals and monopolies, the same political forces which have inflicted so much injustice on the Aboriginal and Islander people. We have a common struggle.
Aborigines battling for land and mineral rights, white workers fighting to save their jobs – two sides of the one coin, two groups fighting the same battle against the same enemy. It’s not a question of “helping” or “supporting” Aborigines. It’s a matter of solidarity in the common struggle.
The policies of Australian Communists have been guided by an understanding that in our historical conditions the class struggle of the working people merges with the struggle against national oppression and the struggle for socialism with the anti-imperialist national liberation movements.
National liberation movements are part of the mass struggle against monopoly capitalism and imperialism. The actions of oppressed nations and nationalities in themselves do not destroy capitalism but they do, as Lenin pointed out, “help the real anti-imperialist force, the socialist proletariat, to make its appearance on the scene”.
The CPA’s aim is to build a united revolutionary front of the working people of all nations and national minorities. Applied to Australia this means unity in action between the Aboriginal/Islander liberation movement and the working class movement. Any weakening of this unity can only serve the interests of imperialism and thereby hold back the emancipation of both black and white Australians.
As Karl Marx wrote:
Labour in the white skin can never be free while labour in the black skin is in chains.