On 26 May 2017 delegates representing First Nations from all over Australia concluded and published the Uluru Statement from the Heart.
The Statement was the outcome of deliberations of more than 250 delegates at the First Nations Constitutional Convention at Uluru in the Northern Territory.
The making of this Statement is a powerful and historic moment in the relationship of indigenous and non-indigenous Australians. The Statement represents an opportunity, offered by First Nations, in the rebuilding of this relationship, by which we, together, can continue on a journey beyond the premises of the colonial and settler state. This is a journey that can be traced through the 20th century at least back to the Mabo decision, the Tent Embassy, the 1967 referendum, the Wave Hill strike, the Cumeragunga walk-off, and Mourning Day of 1938. It is not only a moment on which justice can turn; it is a moment on which the nation – above all, the non-indigenous nation – can tell the truth to itself and reflect that truth in changes to law and institutions.
Environmental Justice Australia makes this response from the opportunity provided by the delegates of the First Nations National Constitutional Convention. We honour the rigour, hard work, skill and experience of those delegates and the communities who sent them.
We have decided to prepare this response to the Uluru Statement from the Heart because we are committed to using the law to protect the environment within a commitment to communities and justice. Resolution of the defining national injustice of the treatment of Australia’s First Nations, especially in relation to land, waters and culture, is inseparable from these commitments.
EJA views this response to the Statement as essential to its overall work:
• because of our continued work with and respect for First Nations communities, organisations and colleagues;
• because of the need for the nation to continue the journey toward justice and reconciliation;
• because of the implications for law, policy and constitutional settlement contained in the Statement;
• because Australia’s constitutional and legal framework needs at least to meet standards of just settlement – including treaty-making – now commonplace in comparable overseas jurisdictions and in international law;
• because failure to meet this opportunity provided by First Nations does discredit and dishonour to Australia as a whole;
• because it is an historic opportunity.
The Uluru Statement from the Heart is brief but authoritative. It contains implications for far-reaching legal and constitutional change. These include:
• a First Nations Voice (body) to be established under the Constitution – it appears this is included to be an advisory or deliberative body with a remit to scrutinise law-making
• a Makarrata Commission to supervise agreement-making and truth-telling – this would be a body established to facilitate treaty-making and also have a ‘truth and reconciliation’ function
There are several important legal and constitutional questions inferred in the Uluru Statement or lying outside of it, which nonetheless need to be contended with and need to inform change.
The first of these is the concept and issue of sovereignty. The concept of sovereignty underpins much of the text of the Uluru Statement from the Heart. The Statement reads:
This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.
Sovereignty here is not simply a form of supreme political authority, as our inherited western (Westphalian) law tends to see it. It is an authority, set of norms, and connection of people and Country that has and continues to co-exist with Australian law. It should be recognised fully as a source of governance of land, water and places, including as a precondition of treaty- or agreement-making.
The second issue is power. Constitutional and law reform must bring with it real change to power dynamics that concertedly minimise, ignore or co-opt the voice of First Nations. Constitutionally, this includes near-total silence. Nothing will substantively change if reform does not bring with it acts on the part of national institutions and forces genuinely acceding to First Nations voices and contributing to the tasks of healing and building strength within and across communities. Social and spiritual power needs to inform social, economic and political power. This will contribute to the overcoming of ‘disadvantage’. ‘Crisis…’, as the Statement says, ‘is the torment of our powerlessness.’
Third, constitutional reform needs to contend with racist provisions still in the commonwealth’s founding document. This includes section 25 of the Constitution that still permits a State to disqualify persons of any race from voting and thereby requiring that they not be counted for the purpose of determining the number of members in the Commonwealth House of Representatives. That situation continued up to the 1960s. The so-called ‘races power’ under section 51(xxvi) allows the Commonwealth to make special laws for the ‘people of any race’ including Aboriginal people and including to their detriment. Given that Australia has had laws prohibiting racial discrimination since 1975, the question may well be asked not only why racist provisions in the Constitution cannot be removed but why principles of non-discrimination on these grounds cannot be inserted into the Constitution.
A fourth question is how the process of Makarrata should work, which may be a process of treaty-making, dispute resolution, acknowledgement and reparation. It would build on extensive, if confined, agreement-making that has occurred around Australia over a number of years. Makarrata (a Yolngu term) has the potential to build a new, national and powerful institution for justice and settlement. The Statement says:
Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination. We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history. Makarrata has the potential to establish a new ambition and model of settlement and acknowledgement. Its incorporation and adaptation into the mainstream of Australian law and policy can be a moment of deference to First Nations’ institutions, a genuine synthesis of Australian and Aboriginal law.
EJA will continue to work our First Nations colleagues and partners to advance the cause of Aboriginal justice through our skills and experience in environmental and natural resources law. We see this as a major opportunity for us to be part, even if a small part, of change and history, to the making of new outcomes and settlement which may not be easy, comfortable or straightforward. The task is nevertheless essential. Taking it on strengthens ourselves.
Additional important resources published by the Referendum Council are available here: www.referendumcouncil.org.au/resource.
Pic of Uluru by Diogo Melo