Northern Land Council CEO Joe Morrison (centre) outside the National Indigenous Constitution Convention
For non-indigenous opponents of the principle of an indigenous voice and a treaty process, as put forward in Friday’s statement from the Uluru conference, the only logically coherent position on indigenous affairs is the racist myth of terra nullius.
That’s not the usual reflexive calling-out, that’s the only possible interpretation of their rejection of the Uluru statement, which called for “the establishment of a First Nations Voice enshrined in the constitution” and a “Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth telling about our history”.
The idea of a First Nations Voice was yesterday wilfully and maliciously mischaracterised by Deputy Prime Minister Barnaby Joyce as “another chamber in politics or something that sits beside or above the Senate”. Why Joyce chose to do this isn’t clear, but even a casual reading of the statement, and its word choice of “voice” and the closing statement — “In 1967 we were counted, in 2017 we seek to be heard” — would make clear even to the antipathetic reader that an additional parliamentary chamber was not what is being proposed. There was no lack of clarity in the statement; those looking for a reason why the Deputy Prime Minister would deliberately misinterpret it should look elsewhere for a reason.
The usual right-wing suspects within conservative ranks also assembled to attack the proposal: George Christensen, Craig Kelly — the kind of names you know will be mentioned in dispatches whenever there’s a culture war to be fought or a minority to be attacked. So, too, did the Liberal Party’s Melbourne branch, the Institute of Public Affairs, which opposes even the idea of indigenous constitutional recognition. All did so based on the same argument, as put by the IPA’s John Roskam, that indigenous Australians are no different to anyone else. An indigenous voice, according to Roskam, was “just as offensive as to give people a special say due to their religion, or gender or anything else”.
And, Roskam believes, a treaty is “radical identity politics”. “A country cannot have a treaty with itself,” he declared, channelling John Howard (who stole the idea from Canadian Prime Minister Pierre Trudeau).
There’s no actual legal basis to the Howard line; it’s simply a rhetorical point. It rests on the peculiar idea of indivisible sovereignty, which, in a country where sovereignty is split via a federation, which is only a matter of decades on from removing British sovereignty from the statutes, and which has shifted from believing in Crown to believing in popular sovereignty, seems eccentric at best. And, as George Williams has noted, other colonial settler societies don’t cling to such convenient fictions. More to the point, as Williams wrote some years ago, “the Constitution can be changed by a referendum of the people … s. 128 of the Constitution ultimately puts the terms of the Australian settlement into the hands of its politicians and people.”
That is, if Australians want a treaty with indigenous Australians, they can have one. To assert otherwise is, bizarrely, to limit the popular sovereignty of Australia.
The argument that Aboriginal and Torres Strait Islander people are just another group of Australians, like Catholics, or red-headed people, or South Australians, is thus a reversioning of the lie of terra nullius. As the Uluru statement notes, Aboriginal and Torres Strait Islanders are our First Nations. They must necessarily occupy what is derided as a “special” place, because they held sovereignty over this land prior to invasion. Catholics, Muslims, redheads, whoever, did not. Australia remains an occupied country, where even the nation’s highest court has ruled that white settlement has not obliterated forms of Aboriginal sovereignty.
In words that must pain and infuriate Roskam and his ilk, even John Howard recognised this. “As a nation, we recognise and celebrate Indigenous people’s special place as the first Australians,” the Howard government explained in 2002 (my emphasis). Tony Abbott went further. “We have to acknowledge that pre-1788 this land was as Aboriginal then as it is Australian now. Until we have acknowledged that we will be an incomplete nation and a torn people. We only have to look across the Tasman to see how it could have been done so much better. Thanks to the Treaty of Waitangi in New Zealand two peoples became one nation.”
Whatever racist, ahistorical or legally eccentric fictions may motivate the “nothing special about indigenous people” crowd, it’s noteworthy that it primarily comes from people who already have substantial power and a platform to spruik their views. The IPA, funded by corporate donations, provides a stream of Liberal politicians and receives extensive media coverage, including on the ABC, out of all proportion to their impact on public debate (it has been on the losing end of debates on superannuation, 18C and the bank levy in the last year alone).
In effect, powerful non-indigenous people who are guaranteed a hearing whenever they open their mouths are agitated by the prospect of indigenous voices being heard. Funny that.
It’s completely off topic, but ‘offensive’? It’s got me thinking again how illogical English spelling is. Americans (bless them) spell our defence, licence, offence as defense, license, offense.
And then we turn around and use offensive as the correct spelling. To be consistent it ought to be offencive.
I hate to say it, but the Americans have the right idea regarding correct spelling.
Please don’t single out the IPA, Joyce and co. The exercise on the Insiders on Sunday was just as excruciatingly revolting, except it was pretend liberals patting the heads of the foolish natives for thinking they may have the beginnings of a solution. The IPA and Joyce can say what they want because the so called liberal media will give them intellectual cover. Racists one and all.
Beautifully and clearly put Mr Keane. Thank you.
I am a old white guy and by initial response to watching Q&A last night was that I don’t think it goes far enough. Its going to be a battle against the ‘powers that be’ just to have a voice. A voice that can then be ignored anyway.
I have a suggestion that gives real power to that voice. Perhaps it has problems I cannot perceive but here it is for your consideration: “The First Nations State”
Currently each state gets 12 senators voted for by the people of that state and 2 for each territory (76 total). I suggest that we add a ‘virtual state’, we increase the senate by 12 people and these are then voted for by the people of the first nations.
They get a real voice and real power, 12 in 88.
Bernard -good article I see why you are the politics editor. The Commonwealth constitution is a document as to the how the various States could function as a nation, essentially it is a commercial and economic document- it is not a document as to how people that make up the nation relate to each other .
The aboriginals anthropologically were hunters and gatherers in tribal groups each had their territorial ranges and their tribal battles . Tribal groups were made up of groups measured in maximum of nearly thousand, if that, for mobility in living off the land. Tribal groups do not a nation make. Modern mythology, has introduced the term nation to small groups.
The Mabo case confirmed that the individual Murray islander had property rights in their society on their islands.Which they did. There was no such concept on the Australian mainland.
Terra nullius was a legal concept and that legal concept as it applies to Australian mainland has been abolished by subsequent laws. Nothing wrong with that that is how the legal process works.
That leaves us in the present – the descendants direct and indirect are now part of the Australian population. Do we make a treaty with each tribe ? or do we create a mythical nation.
A considered comment in the preamble of the constitution would be appropriate – anything else would merely create a new strand of litigation about this or that – We should be increasing manufacturing goods not legal cases that consumes society.
It is no good looking across the Tasman – to NZ the same people colonised Australia and NZ – they recognised the different types of societies they were dealing with and made considered decisions on that basis at that time.
There is something special about indigenous people – as there is something special about the squatters and country people that developed the land and there is something special about the Europeans that developed the country after work war ll – there is something special about the Chinese of the 1800’s and their descendants. all of us have our voices heard only at voting time -its in our Constitution already.
Desmond, respectfully, that’s bollocks. You could split indigenous groups up, as you have, on any land that was colonised in the last 1000 years. To then say that they didn’t own the land because they weren’t one tribe is just fanciful. Anyone could come and occupy us today and use the same specious reasoning to say that modern Australia is not one tribe, therefore we didn’t own the land.
This goes back to the original idea that the land was uninhabited, in spite of recorded sightings on Cook’s first sail through Sydney Harbour. It’s specious reasoning, and it’s bollocks.
His thinking is olde timey anthropology, a deterministic view of history that only works inside videogames. Where humanity starts at nomads and moves ever onward to the modern world via ancient imperialism and theocracy. Desmond thinks we live in a 4x game or Age of Empires.
The justification for Terra Nullius was the technical definition of property. It was reasoned that without agriculture there was no idea of property. We have since found out that collective property is older than private property. And when you think about it, defining a collective like a nation on if individuals own property is absurd. You can have private property without it falling within a nation.
But there’s an even simpler way to think about it: How would you feel about losing a house you own to other people? There’s a movie about this, you might have heard of it, Des. The Castle. In case you haven’t watched it, spoilers: it’s bullshit and you should do everything you can to prevent that.
The kinship groups, plural, had a system of borders, which took a long armed struggle for us to dismantle. If that doesn’t imply collective property belonging to each tribe to you, your idea of property is messed up.