Divergent paths branch off from road to Indigenous recognition

In the absence of any visible progress, more radical ideas are filling the void.

Galarrwuy Yunupingu: ‘Let us be who we are — Aboriginal people in a modern world — and be proud of us’. Picture: Amos Aikman

Wind whipped across the plateau, rattling the stringybark, as Galarrwuy Yunupingu sat deep in Arnhem Land staring into the fire. It was mid-2007 and the post-Northern Territory Emergency Response paranoia was at its peak: he feared losing his land rights, the greater part of what he had fought for to prevent his family “drifting off with the tide”.

Yet in a subsequent meeting with then indigenous affairs minister Mal Brough, in which Yunupingu unexpectedly supported the Howard government’s controversial suite of “intervention” programs, he asked for constitutional recognition to “bring my people in from the cold, bring us into the nation”.

Howard promised soon after that, if returned at the 2007 election, the Coalition would begin a process of constitutional reform and reconciliation “based on a new paradigm of positive affirmation, of unified Australian citizenship, and of balance — a balance of rights and responsibilities; a balance of practical and symbolic progress”.

Through half a century of ­activism, Yunupingu has consistently sought a form of reconciliation that draws a line in the sand, prevents backsliding, so Yolngu people can “breathe” and join the modern world at a pace they can manage. In an interview with The Australian last year, his only face-to-face public remarks on the topic in half a decade, he made clear he thought constitutional recognition and a treaty were two different things, and the former was the right one to pursue now.

“Let us be who we are — Aboriginal people in a modern world — and be proud of us,” Yunupingu wrote in The Monthly recently. “Acknowledge that we have survived the worst that the past had thrown at us, and we are here with our songs, our ceremonies, our land, our language and our people — our full identity. What a gift this is that we can give you, if you choose to accept us in a meaningful way.”

It is a simple vision of a united future that does not appear to ask too much; in return it offers a share in the rich and ancient culture of Arnhem Land. All that is lacking is a legal framework.

In the years since Howard reactivated plans to recognise indigenous people in the Constitution, nationwide consensus about what in practice that should mean has proved hard to pin down. Today’s recognition push is a broadbased attempt to remedy the fact indigenous people were inadequately consulted at the time the Constitution was written. That counterfactual is hard to resolve.

Test this by asking how Australia would need to be different for recognition to be viewed as a success in hindsight. Myriad complaints about funding and service delivery soon merge with calls for protection of culture, ambitions for a treaty, a mosaic of treaties, a patchwork of indigenous micro-states. Three debates whose boundaries were already blurred have become further entwined: Do people of indigenous heritage deserve special status because their ancestors inhabited this continent before Europeans? Do they deserve compensation? Should they and their children be treated differently henceforth?

Even a year ago constitutional reform seemed the agreed tool for reconciliation, and a set of modest proposals, honed through several reports, stood to be whittled down. But then progress faltered and frustration boiled to a point where any residual opportunity looks at dire risk of being lost.

The gamut of problems in the sorry-seeming world of indigenous affairs has merged with historical grievances and suspicion of government to brand the publicly funded propaganda outfit Recognise a Trojan horse in many indigenous eyes. Support for the entire government-backed recognition process is now viewed by some as a betrayal of the Aboriginal cause.

According to Recognise polling, about three-quarters of Australians support the generic concept of inserting some acknowledgment of indigenous people into the nation’s founding document. But the surveys were done without a clear idea of what in practice that might mean.

Another way of looking at Recognise’s numbers might be to say that about a quarter of Australians are presently either indifferent or opposed to recognising indigenous people in the Constitution on principle.

Introducing It’s Our Country: Indigenous Arguments for Meaningful Constitutional Recognition and Reform, a collection of essays laying out how far debate about recognition has wandered from simple constitutional change, indigenous academics Megan Davis and Marcia Langton blame poor leadership and fears Recognise is pushing a type of reform-lite for “animating suspicion and anxiety” and “unwittingly inspiring ­resistance” in the indigenous community.

Non-indigenous people tend to assume the word “recognition” implies acceptance of a symbolic claim, like prior inhabitancy, whereas indigenous people typically mean to use it in the way one nation state formally acknowledges another. This simple concept illuminates a gaping divide.

In 2012 the Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples rejected that in favour of several possible alterations to the main body of the Constitution, including a prohibition on racial discrimination later derided by sceptics as a “one-clause bill of rights”. Cape York indigenous leader Noel Pearson sought compromise with his plan for a constitutionally mandated indigenous representative body. But attempts are now under way to sideline the greater part of those ideas by people with echoes of the Yothu Yindi song Treaty ringing in their ears.

In a recent essay, Tony Mc­Avoy, Australia’s first indigenous silk, argues for “reframing” the recognition process as either a commission of inquiry to attack the notion Australia was “legitimately settled” — a crucial legal point in Aboriginal sovereignty arguments — or a political outcome involving treaties and compensation. “In the north of Australia, in those places where the majority of the population are first peoples, the natural consequence of dismantling the myth of settlement would be regional self-government,” he writes.

Malcolm Turnbull chided Bill Shorten for breaking bipartisanship by countenancing a treaty during the election campaign, but the genie was already out. Indigenous broadcaster and Referendum Council member Stan Grant, heckled for supporting constitutional recognition at an indigenous forum in Alice Springs in May, pushed for a treaty in July.

In a keynote address delivered to the National Native Title Conference in Darwin in June, Canadian professor Gerald Taiaiake Alfred spoke of “decolonisation”, indigenous resurgence and armed resistance. Outside the meeting Indigenous Affairs Minister Nigel Scullion was accosted by disgraced former Aboriginal and Torres Strait Islander Commission head Geoff Clark and National Congress of Australia’s First Peoples co-chairwoman Jackie Huggins claiming the government wanted to dismantle land rights and recognition could “shut the gate on rights”.

If opponents of indigenous recognition have picked the zeitgeist then they have remained strategically silent, allowing their activist rivals to drive moderates into ever more extreme postures. Most recognition backers who will make their views known are privately gloomy about its prospects. The pertinent question now seems not who deserves what or which proposal is right, but what can realistically be accomplished from here?

Will the in-principle goodwill of those three quarters of Australians be allowed to crystallise? “The leader of the nation should accept his or her commission and simply say what he or she thinks is right, and put that forward for the nation to correct, or to accept, or to reject,” Yunupingu writes. “Let us have an honest answer from the Australian people to an honest question.”

It would be a brave prime minister who, faced with a restive backbench and slender majority, opted for treaties, despite JWS Research polling revealed this week suggesting about 55 per cent in-principle public support.

During his week-long visit to Arnhem Land as prime minister in 2014, Tony Abbott was urged by Yolngu leaders to speed up the constitutional change process by defining the boundaries of what was possible. If reform required a strong conservative figurehead to reassure the conservative base, what would that figurehead advocate for?

In December 2014, Abbott promised to “sweat blood” for a successful referendum, but then in mid-2015, with a draft proposal still not forthcoming, recanted his own judgment, saying that refining competing proposals through an “indigenous first” consultation process could scuttle the entire recognition push by generating “something akin to a log of claims that is unlikely to receive general support”. Indigenous leaders used the spotlight of Garma Festival to launch a fearsome rhetorical attack. Abbott backed down.

The Referendum Council was established in December, tasked with managing a fourth round of national debate aimed at narrowing the scope of competing proposals. The council’s then co-chairmen, Patrick Dodson and Mark Leibler, took a view the process should involve defining the minimum change acceptable to indigenous people and then selling that to the rest of the populace.

Their perspective effectively shaded the exercise as a clawback of minority rights rather than nation building, and put frustrated regional indigenous leaders and activists in control of the next steps. The council missed several of its own deadlines. With the original due date for its final report already passed, consultations are only now getting going. It was in those intervening months of delay that more radical views began to emerge publicly.

Beneath the recognition banner now hang ideas ranging from tokenism to sovereignty. Most constitute legal and political instruments designed to give indigenous people more power in dealings with the majority. Advocates argue these are justified because indigenous people need a guarantee things will be “done better” in the future — a proposition somewhat different to the sort of compensation deals and transfers of wealth, influence and resources potentially at the ends of paths treaties could lead down.

A patchwork of indigenous micro-states would be a major upheaval for the federation. Would it not then be fairer to drop the terminology of symbolism and poll the masses about whether they would countenance a significant handover of rights and riches to the 600,000 or so Australians who identify as indigenous?

Let’s see how far this more ambitious form of reconciliation has to go, and by how much that indifferent or hostile quarter of respondents grows.

The trouble here is that those three debates around constitutional representation, redress and status are too large to tackle within the boundaries of plausible constitutional change and in time to hold a vote next May. Moreover, the combination hooks the nerve that always riled Howard: the idea those alive today must apologise for historical injustice. Perhaps take responsibility for the present is a better formulation?

Any formal recognition of a special status would be a win for Aboriginal exceptionalism, and likely opposed on that basis by conservatives fearful of creating categories of Australians. Repeated claims that preambular change constitutes mere “embroidery” are difficult to square with the expert panel’s finding, that a new preamble could affect the way the entire Constitution is read by the courts.

Any alteration sends a signal to the High Court that the nation wants to change its approach to policy in a particular manner. One of the expert panel’s key ideas was to revisit the so-called “race power” to complete work begun in 1967, when just eight words removed from Section 51 (xxvi) transferred supreme authority to make laws for indigenous people to the commonwealth from the states. On that foundation were built native title and various pieces of advancement and heritage protection legislation. If these are substantial constitutional problems then surely changing them would be a substantial fix — unless constitutional change is no longer the main goal.

The Cape York proposal for an indigenous representative body has been attacked by commentators including Gary Johns for incentivising complaint, and by activists including Michael Mansell for being weak. However, it has won support for not undermining the sovereignty of parliament. That democracy’s levers and buttons are not as readily accessed by the disadvantaged is hard to dispute, but whether this is a capacity or a structural problem and whether it would be aided or augmented by mandating something akin to a fourth tier of government is open for debate.

Another collection of essays, The Forgotten People: Liberal and Conservative Approaches to Recognising Indigenous Peoples, strongly supportive of Pearson’s model, offers cause for broader hope. In it lawyer and philosopher Damien Freeman describes engaging face-to-face with indigenous people about recognition — the sort of interaction arguably missing from the nationwide consultation process just now.

“We had not thought hard about why indigenous people want recognition,” he writes. “We had in our minds a journey that began with Howard’s wholly symbolic proposal. … I have now come to see that indigenous experiences give rise to a number of legitimate apprehensions about how this country has been governed for more than two centuries … indigenous people want a guarantee of fairer treatment. It’s not an unreasonable request. So how do we best effect that guarantee?”