Truth, Treaty, Voice. Now!
It’s time to accept the invitation of the Uluru Statement from the Heart
Last Thursday marked the end of National Reconciliation Week 2021. During that week and the days since, I’ve been reflecting on Australia’s journey towards reconciliation and just how much further we have to go. National Reconciliation Week (‘NRW’) runs from 27 May to 3 June each year, commemorating two significant dates in Australia’s post-federation history: the successful 1967 referendum¹ and the High Court’s landmark decision in Mabo v Queensland (No 2) (‘Mabo’). This year’s theme was More than a word. Reconciliation takes action. I often hear politicians, commentators and members of the public suggest that reconciliation is something that must be done by and for First Nations peoples in negotiation with the Government. How can this be true? Obviously, Reconciliation Australia (the organisers of NRW) disagree. Surely reconciliation isn’t only important for First Nations people, but should be an aspiration for all Australians? After all, only with a true and complete reconciliation can we become the one, free land promised by our current national anthem.
Uluru Statement from the Heart
It’s become customary that in the lead up to and during NRW, the call to action is renewed in a meaningful and significant way. In 2017, this occurred with the First Nations National Constitutional Convention (‘Convention’). Held near Uluṟu, the Convention was the culmination of almost a decade of bipartisan efforts to attain constitutional recognition of the First Nations peoples of Australia; it had become clear that being home to the oldest surviving continuous civilisation the world has ever seen is something we all should value, cherish, and celebrate.
The Convention did what many people thought was impossible: it found strong consensus amongst the many First Nations of Australia as to what genuine constitutional recognition should look like and the preferred way forward for reconciliation. The final communique was delivered in the form an address to the nation, conveyed by Professor Megan Davis on the floor of the Convention. Aptly titled the Uluṟu Statement from the Heart (‘Uluṟu Statement’), the address not only set out the recommendations of the Convention but invited all of Australia to join with First Nations peoples in the next steps of reconciliation, by listening to their truth and supporting actions which will heal our land and find the heart of our nation.
We, gathered at the 2017 National Constitutional Convention, coming from all points of the southern sky, make this statement from the heart:
Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago.
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.
How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years?
With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.
Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.
These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.
We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.
We call for the establishment of a First Nations Voice enshrined in the Constitution.
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.
In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.
The importance of the Uluṟu Statement as the driving force for reconciliation was recently confirmed by being awarded the 2021 Sydney Peace Prize:
For bringing together Australia’s First Nations Peoples around a clear and comprehensive agenda; for healing and peace within our Nation and delivering self-determination for Aboriginal and Torres Strait Islander Peoples
The journey to Uluṟu was a long and storied one…
and it’s not over… the Federal Government has so far failed to progress the recommendations of the Convention, we must join our First Nations peoples on this journey and demand a future of Truth, Treaty, Voice.
The original sin
On Wednesday 22 August 1770, Lieutenant James Cook of the Royal Navy, Captain of His Majesty’s Ship Endeavour, “hoisted the English colours” upon what’s now known as Possession Island. He declared he was taking “possession of the whole Eastern cost” of what was then known as New Holland, naming it New South Wales “in the name of His Majesty King George the Third”.² Although Cook’s journal didn’t specify in explicit terms the legal basis on which he claimed the land–nor, I assume, did his oral proclamation–this unilateral declaration commenced a reliance on the legal fiction of terra nullius by the British and colonial governments, followed by Australian governments that has continued for over 200 years. Its effects are still felt by First Nations peoples today.
The European legal systems of the late 1700s were a far cry from what we understand to constitute a fair and just legal system. However, the rule of law did exist. There were international norms recognised by the European powers to protect, at least nominally, the rights of all peoples, including those in the ‘new world’. At that time, international law recognised three valid ways in which a country could extend its territory or otherwise acquire sovereignty (control) over another country:
- conquest–defeating the current inhabitants in war, usually through surrender followed by settlement treaty,
- cession–voluntarily giving up of some or all sovereign rights by the current inhabitants, usually in return for protection or other benefits, with terms formalised in a treaty, or
- occupation of terra nullius (unoccupied land)–actual occupation, care, and improvement of land which has no current inhabitants.
In its pursuit of the great southern continent Terra Australis, Great Britain took reasonable steps to ensure it complied with international law in respect to acquiring sovereignty over the land. In their ‘secret instructions’, only to opened after completing his primary mission, the Lords Commissioner of the Admiralty³ ordered Cook, if he ‘discovered’ this continent, to:
- “with the Consent of the Natives … take Possession of Convenient Situations in the Country”–meaning acquire sovereignty by cession, or
- “if you find the Country uninhabited take Possession for his Majesty by setting up Proper Marks and Inscriptions, as first discoverers and possessors”.⁴
As we now know, despite Cook’s numerous encounters with First Nations peoples during his voyage–detailed extensively in his journal–he failed to comply with his orders and the law. Rather than seeking consent to claim this land for Great Britain, he declared possession by placing the Union Jack on Possession Island. This attempt to claim the eastern coast of Australia would only have been lawful if the land was terra nullius–it was not; a fact of which he was not doubt aware.
Cook’s journal entry of 22 August 1770 appears to justify his action by stating his confidence that while Dutch explorers had undoubtedly “discovered” the west coast (Cook’s words, not mine), the east coast “was never seen or Visited by any European before”. Not only was this an invalid argument under the international law at the time, but it was also inconsistent with his orders–the Admiralty rightly did not distinguish as to whether the land was inhabited by its indigenous peoples or Europeans who had arrived before Cook. The only way it could be possessed through terra nullius was if it was truly uninhabited (again, it was very much inhabited, as Cook knew).
Upon Cook’s return to England in July 1771, the British Government and Crown could have undone this egregious and unlawful act, rescinding Cook’s declaration, and taking steps to commission another officer to negotiate a voluntary cession of sovereignty in accordance with international law. This was not done. The lie of terra nullius was accepted with little consideration given to the legality of the Crown’s possession of ‘New South Wales’.
It wasn’t until the High Court’s decision in Mabo, handed down in 1992, that the post-1770 Australian legal system recognised that the occupation of Australia as terra nullius was a lie. The impact of this one lie cannot be underestimated: it commenced the dispossession of the First Nations peoples’ of their land and legal systems, their culture and language, their identity and history, and sadly, for many, their children and family.
Truth
The Uluṟu Statement calls for the establishment of a Makarrata Commission to facilitate a nationwide process of truth-telling.
Makarrata is a Yolŋu word meaning ‘a coming together after a struggle’
Truth-telling features prominently in the United Nations (‘UN’) Declaration on the Rights of Indigenous Peoples (‘UNDRIP’).⁵ More broadly, isn’t it simply common sense that to successfully move forward we need to understand the past? Although I disagree with Winston Churchill’s actions on many things, including his position on the British Crown’s subjects who were not of Anglo-Irish background, he was right in his assessment that “those that fail to learn from history are doomed to repeat it”.
The Australian Government has been slow to recognise the importance of understanding our own history. I grew up in the 90s: I learnt that Captain Cook ‘discovered’ Australia and knew nothing of the Frontier Wars until well into my 20s. After the Bringing them Home Report into the Stolen Generation was handed down in 1997, our then Prime Minister, John Howard, refused to apologise to those impacted by the forcible removal of First Nations children from their families. During the 2007 election campaign, where he not only lost government but became only the second Australian Prime Minister to lose his seat, Howard said:
I have never been willing to embrace a formal national apology, because I do not believe the current generation can accept responsibility for the deeds of earlier generations. And there’s always been a fundamental unwillingness to accept, in this debate, the difference between an expression of sorrow and an assumption of responsibility.
What Howard failed to grasp is that, as the current head of government, that was exactly his role: to accept responsibility for the actions of the deeds of past governments. Fortunately, within three months of taking office, his successor, Kevin Rudd finally apologised to the Stolen Generation as Prime Minister on behalf of the people of Australia and past governments, showing that change can happen quickly.
If we look to other countries, the benefit of truth-telling, particularly on healing scars of the past, is indisputable.
After Apartheid was ended in South Africa, President Nelson Mandela established the Truth and Reconciliation Commission, chaired by Archbishop Desmond Tutu. The Commission allowed victims to share their truth and perpetrators to testify as to their regret and remorse for past actions. Praise for the Commission was not universal, but the necessity of its work was broadly accepted. South Africa has acknowledged that reconciliation is not a race to be finished, rather a path that will continue to wind and evolve over time. In that spirit, as the formal work of the Commission came to end, The Institute for Justice and Reconciliation was born to foster ongoing truth-telling and healing into the future so that past mistakes are never repeated.
Canada took a similar path to South Africa in relation to reconciling its history of forcible removal of indigenous children from their families. In 2008, the Canadian Government established the Truth and Reconciliation Commission to formally investigate and document the impacts of these past actions which it found amounted to cultural genocide. Following the Commission’s final report in 2015, the National Centre for Truth and Reconciliation was established to ensure that this true history is never lost and is embedded in Canada’s education, policy, and governance systems to prevent it ever occurring again.
Truth-telling is important for those belonging to groups who are victims of past government policies and actions; it’s also important for everyone else. It can’t be affected by one side, everyone must be involved for the country to truly heal.
In recent times I’ve discovered that my great-x3-grandmother, who with her family were some of the first Europeans to live in the Wide Bay area, committed acts of violence against the First Nations peoples on whose land she was living. This was a shock to me. It was ‘easy’ to abstractly understand that potentially my Anglo-Irish ancestors may have contributed to the dispossession of First Nations peoples from which I am undoubtedly a beneficiary in ‘some’ way. Knowing that to be a fact is another thing altogether. I now feel a personal responsibility to participate in reconciliation.
Not all Australians will have personal stories such as mine, but we all need to understand the truth of the past to ensure it doesn’t become our future. It will not be easy, but it is necessary.
Treaty
The Makarrata Commission, will also be called upon to oversee a process of agreement-making between Australian governments, as successors to the British Crown, and the First Nations peoples.
In determining the Mabo case, the High Court attempted to remedy the lie of terra nullius without dismantling the now entrenched legal system inherited from Great Britain upon the unlawful declaration by Cook on 22 August 1770. While I admire those High Court Justices for making a decision which was well overdue, it was an imperfect solution. It couldn’t be anything other than that; it wasn’t the court’s role to dismantle centuries of dispossession and injustice. That responsibility lays solely with the executive branch of government as to the successor to the British Crown. Unfortunately, the Keating Government’s response was limited to introducing the Native Title Act 1993; although beneficial, this law did little more than legislate the principles articulated by the High Court in Mabo.
Since Mabo, it can’t be disputed that sovereignty was ever ceded. The only way forward is through treaty. In the Uluṟu Statement, the First Nations peoples demand it. Experience demonstrates it works.
New Zealand’s Treaty of Waitangi (‘Waitangi’), signed on 6 February 1840 between representatives of the British Crown and Māori chiefs, is a prime example of a treaty between indigenous inhabitants and the European power who has claimed, legally or otherwise, sovereignty over their land. Waitangi is recognised as a founding document of New Zealand; it is integral to New Zealand’s sovereign identity and continues to guide relations between the government and Māori peoples. Further, New Zealand’s national day, Waitangi Day, celebrates the anniversary of its the initial signing. Notwithstanding the indisputable problems with its history and early implementation, and the ongoing disputes as the extent to which it should be incorporated into law, Waitangi serves as New Zealand’s guideposts for ongoing path towards reconciliation and ensuring that the Māori peoples retain their seat at the table in governing their lands.⁶
Australia’s federation means that the Federal Government’s inaction doesn’t lead me to as much despair as it could. Several states and territories have taken significant steps towards Treaty with their First Nations peoples:
- Northern Territory has established a Treaty Commission to consult with First Nations peoples to develop a framework for future Treaty negotiations.
- Victoria has established a Treaty Advancement Commission to implement the treaty framework legislated in Australia’s first treaty law.⁷
- The Government of Western Australia and the South West Aboriginal Land and Sea Council negotiated what is considered to be Australia’s first Treaty, the South West Native Title Settlement which included recognition of Noongar sovereignty in legislation.⁸
- In 2019, the Queensland Government signed a Statement of Commitment as part of Tracks to Treaty. The Treaty Advancement Committee has now been established to develop the framework for future Treaty negotiations based on previous work undertaken by an Eminent Panel and Treaty Working Group.
Progress at the state and territory level should be celebrated. However, without treaty processes in train across the country, we can’t stand on our laurels.
Voice
The outcomes sought by the Uluṟu Statement won’t be possible without a genuine Voice for First Nations peoples. That is why Voice is the first reform called for in the Statement. First Nations peoples make up approximately 3% of the Australian population; without a dedicated mechanism, they cannot ensure their needs are heard. As the sovereign inhabitants of these lands, their voice must be heard.⁹
Countries around the world have adopted a variety of options for allowing their indigenous peoples to be heard and involved in genuine consultation in policy and law-making processes. For example:
- New Zealand has specific Māori electorates for parliamentary elections. Māori electors can choose whether to enrol on the Māori or the general electoral rolls (but not both).
- The Sámi people in Finland, Norway and Sweden have obtained significant recognition and rights to involvement in direct governance of affairs affecting their lands and rights, including the establishment of Sámi Parliaments in each of these countries.
- In Colombia, the constitution requires that indigenous territories are governed in accordance with councils formed and regulated in accordance with the customs of the specific community.
The Voice to Parliament proposed in the Uluṟu Statement is, in many respects, seeking less power than the mechanisms I’ve just described. It is to be a representative body responsible for advising the Federal Parliament on relevant matters (being matters affecting First Nations peoples). In the days after the Convention, our then Prime Minister, Malcolm Turnbull, and his Government, either knowingly or recklessly misrepresented the proposal; it’s not intended to be a third chamber of parliament. While it is intended that the Parliament will be required to obtain the advice of the Voice on legislation within its defined scope, it will have no veto power, nor will it be required to pass bills before they become law. The Convention was explicit in this regard–parliamentary sovereignty will remain unchanged.
While the Government has since come to terms with the need for a Voice to Parliament, they remain opposed to the need for it the be constitutionally enshrined. There are many arguments for constitutionally enshrining the Voice. In my view, only one is needed: history. Despite what those superannuation ads might tell us, past behaviour remains one of the best predictors of future conduct.
In 1990, the Hawke Government established the Aboriginal and Torres Strait Islander Commission (ATSIC) as a representative body to advise the Government on matters relating to First Nations peoples. After 15 years, the Howard Government dissolved ATSIC and replaced it by various committees and public service units which were not representative or transparent in any way. Howard used accusations of maladministration made against certain executives in ATSIC as an excuse to shut it down. Rather than resolving these (real) issues, Howard removed any genuine opportunity for First Nations peoples–other than those the Government determined acceptable–to be directly engaged in policy and law-making processes. Although Labor took a policy of reforming a representative body to the election following Howard’s announcement he intended to abolish ATSIC, they failed to do so during their time in government (one can guess they may have had other things on their mind, like who should have the keys to the Lodge).
Constitutionally enshrining the Voice to Parliament will protect its existence from the whim of future governments and ensure that First Nations peoples are never again excluded from charting their own destiny. I was very happy to learn that an overwhelming majority of Australians agree with me.
What can we do?
Truth, Treaty, Voice. Sounds pretty daunting, doesn’t it? While the major reforms of a constitutionally enshrined Voice and Makarrata Commission proposed by the Uluṟu Statement are ‘big stuff’ which require implementation by governments, there are many things that ordinary Australians can do–to pressurs governments to deliver these reforms and more generally to walk the path of reconciliation.
To support this year’s National Reconciliation Week theme, Reconciliation Australia has compiled 20 actions for reconciliation. Some are big, some are small. There are actions which require community engagements and others that are about challenging and changing your own perspective. All are about moving your reconciliation journey from safe to brave. I’d like to challenge you to pick one or two you could do over the coming year–reach out and let me know how you go! I’ll be doing the same and writing about my experience in future.
Most importantly, speak up and speak out. Take every opportunity you can to call for action. Contact your local councillors and members of parliament–ask them where they stand on these issues. If you don’t like their answers, tell them you’ll work against them because reconciliation is critical to our future. We must all accept the invitation of First Nations peoples to walk with them in a movement of the Australian people for a better future for us all.
¹ The 1967 referendum amended the Australian Constitution so that First Nations peoples would be counted as part of the Australian population and to allow the Commonwealth parliament to legislative in respect of First Nations peoples.
² Cook’s journal from this journey can be viewed in the National Library of Australia’s digital collection.
³ The official head of the Royal Navy was the Lord High Admiral. However, to avoid the issues that come with a single officer occupying such a powerful role, the British Crown invariable opted to install a Board of Admiralty made up of several Commissioners to undertake this role. When acting together, the Board was referred to as the ‘Lords Commissioner of the Admiralty’.
⁴ A copy of the secret instructions is held by the National Library of Australia, with a portion made available on the Museum of Australian Democracy’s website containing the founding documents of Australia.
⁵ The UN General Assembly adopted the UNDRIP on 13 September 2007 (A/RES/61/295). The importance of truth-telling is specifically highlighted in preambular paragraphs 3, 4 8 and 15, and provided for in articles 5, 15, 37 and 40. Australia was one of four countries which voted against its adoption (in the dying days of the Howard Government). Fortunately, within two years of taking office, the Government of Prime Minister Kevin Rudd reversed Australia’s position and formally endorsed the UNDRIP. Further information on its impact within Australia can be found on the website of the Australian Human Rights Commission.
⁶ You can read more about the Treaty of Waitangi on the New Zealand Government’s history website.
⁷ Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic)
⁸ Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA). This Act was also the first law to use Noongar language in its provisions.
⁹ The UNDRIP, which as noted above has been endorsed by Australia, requires that indigenous peoples provide free, prior and informed consent in relation to a number of policy and law-making processes which directly affect them. See articles 10, 11, 19, 28, 29 and 32.
