The current conversation about a First Nations’ Voice appears in danger of falling victim to the divisions that were falsely created when we tried to become a republic. Republicans were divided into those that wanted a slight constitutional change and those who wanted a radical, more American styled Presidential reform – and so, when the referendum became about the detail, it was lost as republicans were divided. History is repeating, as we see the main opponents of the Voice pushing false notions as the need and desirability for details so that doubts can be raised. And doubts lead to referendum failure. The point is, the current No case strategy is all about creating doubt and division and the Yes case is trying not to fall into the trap.
So we aren’t really having the conversation we need to have. A conversation that, under its current iteration, began at the foot of Uluru with the Statement from the Heart. A Statement that was directed to the peoples of Australia, rather than its governments.
There are four key principles that underpin the Statement from the Heart:
- That First Nations Sovereignty is spiritual and has not been ceded.
- That there should be a constitutionally recognised Voice to Federal parliament and government.
- That a Makarrata Commission should progress treaty-making and truth telling.
- That action on these elements will enable improvements in the incarceration and child removal rates.
The Voice is the most conservative of these principles. What is being proposed in the referendum amounts to an inclusion of a non-compulsorily principle for First Nations people to have an advisory voice on matters which affect them. The structure of that Voice is ultimately determined by parliament. At the moment the government and the parliament determines what happens to First Nations peoples based on the race powers of the constitution, an anachronism of the white Australia policy which originally excluded First Nations people, but since 1967 includes them. In fact, at the moment, it is only First Nations people who are subject to the race powers. It determines the parameters of native title and cultural heritage. So we already, under law, treat First Nations peoples differently, so why not, as a matter of legal principle, let them have a Voice to advise on that treatment.
Hardly a radical notion.
Leaving First Nations’ rights and aspirations in the paternalistic hands of the inheritors of the invading colonies has clearly failed. Since the dismantling of ATSIC, in most areas – and particularly incarceration and child removal – the gap has widened and not closed. The Northern Territory Emergency Intervention has disempowered First Nation communities and has made matters worse. With no clear rules of engagement between First Nations peoples and governments, the former will lack agency and always be at the mercy (and lack of it) and vagaries of governments’ and bureaucracies’ cross-cultural incompetence.
It is profoundly ironic, given that the successful 1967 referendum which nationalised Indigenous affairs because of the need for reform due to the poor policy of the states, that it is now the states, not the Federal government, who are progressing the critical issues of treaty and truth telling.
Re-establishing the foundations of the nation, particularly in terms of its illegal assumptions of terra nullius and ignorance of First Nations humanity and sovereignty, is something that too often seems beyond the Australian polity. We keep kicking things further and further down the road. A promise of land rights and treaty under Hawke becomes the process of reconciliation, the establishment of ATSIC and, under Keating, native title. The Reconciliation Council process recommended treaty-making, which was ignored by Howard. Gilliard set up the Recognise campaign process, as part of the deal made with the Greens which, after several expert panels and a public campaign fizzled out, to a blunt rejection of the Statement from the Heart, by the so-called progressive Liberal, Turnbull (who now, too late, recants from his previous position).
It is clear that our foundations will only be solid once we have undergone a truth-telling, treaty-making, Voice-ensuring process – whatever order it takes. Until then we are a divided nation – between the inheritors of dispossession and the inheritors of colonial theft – with both sides claiming sovereignty, whether it is unenforceable or immoral and illegitimate.
The Voice can be some grit in the heart of an unjust, outdated constitution – perhaps better termed ‘rule book of the invaders’ – an irritation that creates a pearl from which new, legitimate foundations emerge. These foundations must be national, regional and local treaties, restitution and even a new constitution that is grounded in the 60,000+ years of First Nations civilisation rather than the 235 years of colonial theft and obfuscation.
Time, and serious conversation, will tell if the Voice becomes the grit that makes us a grown-up nation, but it should at least be recognised as a start. And only if we also progress the more substantial work of truth-telling and treaty-making will we ensure that it is not a false start.