Moving towards a treaty
Senator Patrick Dodson delivered the 2017 ANU Mabo Commemoration Oration, held to recognise the 25th anniversary of the historic High Court ruling.
Here is an edited extract of his address.
In the future a treaty will be a strong step for a mature and harmonious nation.
The Mabo decision led to an eruption of controversy and alarm in much of mainstream Australia.
Mabo was an affront to the security provided by the lie of terra nullius.
The Commonwealth Parliament in 1993, under the Labor Government of Paul Keating, enacted the Native Title Act. The Act sought to build on the common law as defined in the Mabo case. The integrity around this today raises serious questions.
Another major milestone took place in 1996. The High Court in the Wik case found that native title and pastoral leases could co exist. The Wik case was a simple matter of concurrent and coexisting rights but with the native title rights yielding to the leaseholder if there was a conflict. The public reaction by some sectors was ill-informed and disgraceful.
So the generosity of the court already had begun to harden somewhat in the qualification they put on the notion of ‘concurrent and coexistent’ rights.
The Government of Prime Minister John Howard could have used this decision as a positive step, as an opportunity for advancing reconciliation. The Howard ‘Ten-Point Plan’ led to the 1996 amendments to the Native Title Act and, in the words of his Deputy Tim Fischer, delivered ‘bucket loads of extinguishment’.
That legislation was in my view intended to reinstate terra nullius or to remove what Justice Brennan called the ‘burden on the radical title of the Crown’. As a sweetener they also delivered opportunity previously denied except under a statutory land rights Act.
They opened the opportunity for agreement making which unfortunately is too often structurally tied to extinguishment.
Restore fundamental purpose
The Native Title Act can be refashioned to shift the point of balance towards the ongoing rights, interests, needs and concerns of Indigenous Australians. Doing so would restore the Act to its fundamental purpose: to recognise and protect native title, in the interests of Indigenous Australians, and our shared national future.
This year at Uluru, in the spirit of constitutional conventions from which we had previously been excluded, many Aboriginal and Torres Strait Islander people gathered.
Their one-page document, Uluru Statement from the Heart, issues a series of challenges to the Parliament and the people of Australia.
To formulate a successful referendum outcome, especially in the next year, a bipartisan, indeed cross-party, consensus will need to be carefully shaped.
In my personal view, constitutional reform, a treaty and a strong Indigenous voice have never been mutually exclusive – one does not come at the expense of the others.
A treaty or agreement, whether one or many, would be an acknowledgment flowing from the Mabo decision that terra nullius is a discredited, outmoded legal fiction and that this land was taken from Aboriginal people.
There was no treaty when this land was colonised. In the future a treaty will be a strong step for a mature and harmonious nation. The work of Labor Governments in our states of Victoria and South Australia show it can be done.
For too long Aboriginal and Torres Strait Islander people have been denied a voice, excluded from decision-making processes about their own lives. Indigenous people want to reset our relationship with government. We want to be heard. We have been calling for this for a long time.
We need to address the systemic racism that exists in our nation’s founding document, Australia’s Constitution.
We want our past to be acknowledged and we want to be involved in decisions about our future.
The stubborn stains in our racist Constitution must be erased.
The question we need to work through is not about choosing between a treaty, a voice or constitutional recognition.
The question is whether Australia is able to move forward towards reconciliation – be that in the form of a treaty, or an Indigenous voice enshrined in the constitution – while the nation’s foundation document remains, in its DNA, a flawed and racist document.
I understand this because I was a member of the Expert Panel on Constitutional Recognition of Indigenous Australians which was tasked to report to the government on possible options for constitutional change to give effect to Indigenous constitutional recognition and to assess any legal consequence that might flow.
In 2012 the Expert Panel delivered our report which made a series of recommendations that recognise the government has the power to make laws about Indigenous people, but the laws must be beneficial and give the Parliament guidance.
It would be a mistake to consider this constitutional reform as merely ‘symbolic’.
Nothing about our Constitution is symbolic. There is not even a preamble that could point us to something symbolic.
Changing powers in the Constitution and giving clarification around how such powers can be used is not mere symbolism, 'pretty words'.
Having an Indigenous voice enshrined in the Constitution, without amending the Constitution to remove racially entrenched ideologies, is puzzling. It seems to assume that an Indigenous voice in the Constitution could be strong enough to challenge the entrenched structural racism which shapes the policies and laws that affect the lives of Aboriginal people without removing the racist elements of the Constitution.
We know these policies and laws. They are the policies of assimilation, of forced social and cultural change. These are the policies that continue to remove Aboriginal people from their families, country and culture.
These are the policies that have caused Aboriginal and Torres Strait Islander people to make up approximately one-quarter of Australia’s prison population, despite making up just three per cent of the total population. These are the policies which have led to Indigenous Australians dying a decade earlier than non-Indigenous Australians.
It is no coincidence that these policies exist alongside a Constitution that is the legacy of a colonial settler narrative, a narrative that saw Aboriginal and Torres Strait Islander people as lesser beings and Australia as a land belonging to nobody.
If we are going to clean up the mess that racism has made in Australia, in the hope that we might one day achieve reconciliation, we have to do it properly and honourably.
It requires a question that can be put to the Australian people that will pass the high bar of a referendum.
Aboriginal and Torres Strait Islander people will continue to call for a treaty and a strong Indigenous voice if nothing is done. These calls only highlight the need for constitutional reform.
Australia cannot move forward while our founding document, our birth certificate, embodies our racist past. The stubborn stains in our racist Constitution must be erased.
We can find the Mabo spirit within each of us, and work together to build a great Australia, free from racism, honourable and just.