The Shield and the Sword: Why The Constitution will stay racist.

May 29, 2020 ~ Jessica Savage ~ 2 Comments

One of the strange things of the Uluru Statement was the abandonment of race power reform and leaving out the prohibition of racial discrimination clause.

Before the Referendum Council (2017), there was an emphasis on the importance of removing racism in the constitution. This was reflected in the 2012 Expert Panel report and the 2015 Joint Select Committee report. Both recommended removing the race power, creating a head of power for “Aboriginal and Torres Strait Islander peoples”, and creating a prohibition on racial discrimination clause.

The narrative went something like this…

The constitution is racist. Race should play no part in a modern constitution. It's embarrassing that Australia still has the word "race" in it's constitution. etc. etc.

Making the constitution “not racist” was the selling point. And should be an easy sell in a referendum, given Australia’s ‘fair go’, egalitarian self-perception.

But these changes are not part of the latest iteration of constitutional recognition. What happened to them?

Both the 2012 and 2015 committees had a criteria that any reform must be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples. Yet at the conclusion of the Yulara dialogue rounds in 2017, the Aboriginal and Torres Strait Islander delegates had dismissed both the non-discrimination clause and race power reform. Did the experts read the wishes of Aboriginal and Torres Strait Islander peoples; for at least half a decade, completely wrong?

The anti racial-discrimination clause (116A(1))

It seems like at the Yulara dialogues have framed a dichotomy. A Voice OR a non-discrimination clause is possible, but not both.

Section 116A as proposed by the Expert Panel was one of two substantive proposals. The other substantive proposal was the Voice to the Parliament.
Delegates to the First Nations Regional Dialogues were conscious that these two substantive proposals were options, each being an alternative to the other. The protection against adverse discrimination provided by section 116A was viewed as a shield dependent upon interpretation by the High Court of Australia, whereas a Voice to the Parliament was viewed as a sword, enabling First Peoples to advocate directly to the Parliament.
Referendum Council Final Report, page 13

“each being an alternative to the other….”

Why not both? It is 100% vanilla to have constitutions that contain both representative advocacy and rights enshrined AT THE SAME TIME. I would guess the majority if not all democratic republic constitutions in the world contain these two elements. Swords and shields are meant to be used together. Why should we fight with only one hand, like Jamie Lannister?

It is not really explained why not both, just that the delegates were conscious that they are alternatives to one another.

Many have used the word “sophisticated” to describe the Yulara deliberations. I don’t believe delegates know why the Voice and the Racial discrimination clause is an either-or choice. Perhaps by “sophisticated” they mean full of “sophistry”.

The report goes on; back-tracking on the anti racial-discrimination clause;

Delegates were well aware, following considerable discussion at the Dialogues, that section 116A was subject to interpretation by the High Court and prohibitive in relation to costs of litigation both in terms of finance and time.
Referendum Council Final Report, page 13

This is an admission that even after reform, First peoples will still be too poor to access the so-called justice system to fight against government discrimination. I don’t see any solutions offered as to how to address this problem of the inaccessibility of the justice system. It is brushed aside as too hard.

This is also an admission that governments do not care enough about the constitution to stop and think twice about what it says before acting. Clauses like this should not have to go to the High Court to have an effect; they should act as an immediate and general deterrent. Which makes you wonder – if putting such a clause in the constitution should be so ineffective, why bother with constitutional reform at all?

The Race power (51(xxvi)/ 51A)

As for reforming the race power, the dialogues decided to keep the race power “as is”.

There was no significant appetite for removing the word ‘race’. Dialogues understood that although the concept of ‘race’ was a social construction, removing the word ‘race’ and inserting ‘Aboriginal and Torres Strait Islander Peoples’ does not alter the adverse discriminatory potential of the race power. Therefore, removing the word ‘race’ was not regarded as an improvement on the status quo of the people affected.
Referendum Council Final Report, page 13

This ignores a fundamental problem with the race power – the equivalent of a “type-mismatch error” that computer programmers will recognise. It is logically incorrect to apply a “race power” to a polity. Race and polity are apples and oranges. To state the bleeding obvious – We are NOT A RACE. This alone is reason to reform the power. The Constitution and it’s interpretation should be clear, concise and unambiguous.

It also seems that the delegates and facilitators have only thought of themselves, and not considered the possibility that reforming the race power would prevent the government from discriminating against other races. A racist government could have a field day with the races power against any race, not just the aboriginal race in any State (sic). Given our culture, I find it hard to believe that we would not support protecting others against racial discrimination, even if we were still at the mercy of it ourselves.

Why keep all that racist stuff in the Constitution?

Why are the Voice and the non-discrimination clause considered alternatives; why can’t we have both? And why is the races power being left as-is; despite being fundamentally flawed?

If you know what the colony is trying to achieve in accordance with decolonisation General Assembly resolutions 1514 and 1541, it sheds light on the issue. Going from removal of racism, to the Voice was a switch from “integration” to “association” decolonisation pathways.

The non-discrimination clause prepares for Integration

General Assembly Resoultion 1541 outlines the conditions for the “Integration” decolonisation pathway.

Principle VIII
Integration with an independent State should be on the basis of complete equality between the peoples of the erstwhile Non-Self-Governing Territory and those of the independent country with which it is integrated. The peoples of both territories should have equal status and rights of citizenship and equal guarantees of fundamental rights and freedoms without any distinction or discrimination; both should have equal rights and opportunities for representation and effective participation at all levels in the executive, legislative and judicial organs of government.
A/RES/1541(XV)

If you evaluate the Australian constitution and recent events, then Australia fails this.

Firstly – the “races power” is used to discriminate to the detriment of Aboriginal and Torres Strait Islander peoples. That’s textbook State discrimination against the peoples who are under colonial occupation.

Fail.

The Northern Territory Emergency Intervention required the suspension of the Racial Discrimination Act. This shows that racial discrimination is not just constitutional in a theoretical sense, but that deliberate and premeditated racial discrimination occurs.

Another fail.

Aboriginal and Torres Strait Islander peoples are not even in the constitution. The Australian constitutions represent the British Subjects of the colonies, plus those who have immigrated under that body of law, plus the descendants of all those peoples. They later constructed a conceptual Australian citizenship and rolled with jus soli (soil birthrights) for a few generations to fabricate a connection with the land. But the entire constitution is still predicated internationally on the Crown claim of Terra Nullius. There is no Treaty. There can be no proof of equal rights of citizenship when it is not clear how Aboriginal and Torres Strait Islander peoples became Australian citizens.

Fail again.

What fixes these failures is recognition with consent, reforming the races power and adding a non-discrimination clause. These reforms would clear the path and enable Integration under the General Assembly Resolution 1541 criteria. But the colonised peoples weren’t having any of it. No Consent. Time for plan B.

The Voice is a request for Association

The Uluru Statement is a request for asymmetric federalism. Federalism is a form of free association. (see Associated State) Let’s look at the requirements for free association. Note that there is no mention of discrimination;

Principle VII
(a) Free association should be the result of a free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes. It should be one which respects the individuality and the cultural characteristics of the territory and its peoples, and retains for the peoples of the territory which is associated with an independent State the freedom to modify the status of that territory through the expression of their will by democratic means and through constitutional processes.
(b) The associated territory should have the right to determine its internal constitution without outside interference, in accordance with due constitutional processes and the freely expressed wishes of the people. This does not preclude consultations as appropriate or necessary under the terms of the free association agreed upon.
A/RES/1541(XV)

First and main point – unlike the rules for integration, there is nothing here about discrimination.

Note the similarities with this Principle VII and what played out in the Referendum Council process. Mark Leibler and the legal team would have had this resolution printed out and at the forefront of their minds in the backrooms of the First Nations National Constitutional Convention. Consent for association was the ultimate goal. These similarities to Principle VII and the Dialogues (going by the “official narrative”) in point form:

The dialogues included an educational component followed by a “consensus decision-making” process. Informed and democratic processes

They wrote a First Nations internal constitution without outside interference (no media or non-indigenous people allowed at the Constitutional Convention).

They had a wide representation geographically, representing the cultural characteristics of the territory. While that doesn’t make the cut under Aboriginal law, it looks plausible to the outside world and ticks the box.

They made an offer to the Australian people to associate by way of federalism. A free and voluntary choice – as the delegates made the offer, it was not imposed on them by the government.

Under association, the Voice retains the freedom to modify the status of the territory. They also retain “Spiritual Sovereignty”, some kind of undefined, nebulous sovereignty. The freedom to modify the status of the territory is to be exercised immediately on federation of the Voice. The delegates endorsed the Declaration of Recognition, or “recognition outside of the constitution”. This endorsement consents to modify the status of the territory to a newly independent democratic federation of which the Voice is a member.

The absence of discrimination is not a requirement under the General Assembly Resolution 1541 criteria for association. This is the real reason why these proposed anti-racism changes were dumped – the colony doesn’t need them anymore. They don’t want any unnecessary limitation on their power.

The ‘sword and shield’ reasoning is smoke and mirrors to avoid the now redundant racial discrimination clause being included. I seriously doubt the delegates were conscious of this.

Reason for optimism

The amazing thing about this, is that Australia seems to be putting an obscene effort towards attempting decolonisation under the UN decolonisation resolutions. And they are doing it with great amount of deception – which shows they don’t want people catching on what’s happening.

This is strong evidence that the options under 1514 are still on the table waiting for the colonised peoples to exercise them. Just because we are outnumbered by settlers 33 to 1, doesn’t foreclose on our right to self-determination under resolution 1514.

To exercise this right together as sovereign peoples, we can emulate the dialogues, but do it proppa. The Yulara dialogues have shown that it must be legally possible under 1514, we simply need to keep the UN resolutions in mind. Have meetings from the ground up with the strength of lore. There needs to be choices made whether to go for Independence, Association or Integration. Every Nation might not necessarily go down the same path. This is rightfully the choice of the sovereign peoples, and all options should be understood, be on the table and discussed.

The options might be hard to visualise because no settler-colonial state has gone down this path before. The options will look very different when exercised under a settler-colonial state vs. under a franchise colonial state. We will be breaking new ground and there will be much to learn and many decisions to be made.

Building strong community decision-making mechanisms is vital. This is where our lore and our connectivity as peoples come in to play. These are our strengths. This is something which everyone can play a part in strengthening. There is always something you can do to help your community, even if it’s just checking in for a yarn.

We are all linked by Songlines, these are a form of international law as they are shared law between nations. Songlines prove we are capable of entering into international agreements, and that we have done so for millenia. The Songlines can be connected – or recognised – by the outside world. This equates to diplomatic recognition in the international sense. It doesn’t mean we have to become members of the UN, that is a choice that can be made later.

Just like Israel will never recognise Palestine, Australia will never recognise our sovereignty as being separate to theirs. But like recognition of Palestine, some countries will see us. We are colonised peoples who have never agreed to ceding, integrating or sharing our sovereignty. The international community has a jus cogens duty under customary international law to recognise us and allow us and assist us to exercise our free choice of self-determination. We just need to leverage our lore to reach out and speak to the world loudly enough so they hear us from under the weight of colonial oppression.

The 1967 Referendum: an alternative perspective

May 26, 2020 ~ Jessica Savage ~ 1 Comment

This week is the anniversary of the 1967 Referendum. I am going to show that giving Aboriginal and Torres Strait Islander peoples “equal rights” was for the benefit of the colony, and not for the benefit of Aborigines as it was sold to the Australian public.

Firstly: the movement was initially pushed by Lady Jessie Street. She was married into the Street dynasty, her husband was Chief Justice of the Supreme Court of NSW. She started advocating for equal rights for Aboriginal people after returning from a trip to England in 1956. The Aboriginal equal rights campaigns of the 60’s were initiated by the elite of colonial society, and plausibly tied to the mother country itself.

In 1958, a meeting between various Aboriginal Advancement organisations was held in Adelaide. This became the Federal Council for Aboriginal Advancement (FCAA), later renamed to the Federal Council for the Advancement of Aborigines and Torres Strait Islanders (FCAATSI). At the meeting, they discussed the need for “integration” and not assimilation of Aborigines. They spoke of the need for the federal government to have constitutional power over Aborigines and the need of “equal rights”.

In 1960 the United Nations General Assembly passed resolution 1514 The Declaration on the Granting of Independence to Colonial Countries and Peoples. A related resolution; number 1541, contained two alternatives to full independence of the original, colonised peoples – “association” and “integration”. These two alternative options are very convenient for settler-colony states, as they avoid the possibility of settler repatriation – like what happened in Algeria where the settlers had to return to France. Not coincidentally, “integration” is the term that was used throughout the 1960’s domestically in Aboriginal affairs, and had already been emphasised in the inaugural FCAA meeting two years prior.

The qualifying condition attached to decolonisation on the basis of “Integration”, is that the colonised peoples must have equal rights and be free from discrimination. (See A/RES/1541(XV) Principle VIII)

Do you see now? Equal rights for Aborigines was needed for Australia to decolonise itself by the UN “Integration” rules.

In 1961, a House Select Committee on the Voting Rights of Aborigines was held. The report of the Committee makes references to the progress towards “Integration”.

Australia got a seat on the Special Committee in 1961. The Special Committee of the UN was tasked with supervising decolonisation of the world. This is probably why peoples under the subjugation of settler-colony states have never had the opportunity to decolonise – because those benefiting are guiding the UN decolonisation process. The committee itself evaluates and maintains the list of Non-Self-Governing Territories. Australia – despite it’s clear colonial foundations – was never put on the list. Neither were other British settler-colonial states. It seems that settler-colonial states have been trying to decolonise themselves secretly – like a kid scrambling to do their homework under their desk – hoping no one notices they haven’t done it yet.

During the 60’s, Western Australia and Queensland finally allowed state voting for Aborigines.

With the advocacy of the Federal Council for Aboriginal Advancement, tag-along authentic grassroots campaigns, and government action this all eventually led to the successful 1967 referendum.

That should have been the end of the story. Aborigines would have been integrated, then Australia would have declared independence.

But then Land Rights, Sovereignty and other grassroots movements happened. Lack of consent in 1967 (also required under the UN decolonisation resolutions) meant that the colonisation issue continues to drag on in it’s latest iteration in the form of constitutional reform. There was a major change in 1970 in the decolonisation rules (discussed more in this post) that required a new approach. The new thought-weapon is now the so-called “Indigenous Rights” movement. This movement, just like the 1960’s “Aboriginal Rights” movement, is intended to shepherd colonised peoples away from their full range of choices for self-determination in the international sense.

It’s very important that all colonised peoples understand their options under the original UN decolonisation resolutions.

Self-determination – A Roadmap

May 9, 2020 ~ Jessica Savage ~ 2 Comments

“All peoples have the right to self-determination”
International Covenant on Civil and Political Rights (ICCPR)

But some peoples have a more strongly implemented right to self-determination than other peoples. Colonised peoples have the right to self-determination, and indigenous peoples also have the right to self-determination, but this right is implemented very differently in both cases.

So it is important to distinguish the difference between colonised peoples and indigenous peoples, because they have different support structures in exercising their right to self-determination.

A peoples (or a polity, nation, or political community) can be colonised and not indigenous. For example, African slaves from Spanish-run slavery in Jamaica escaped and lived in the Jamaican jungle. But there were already indigenous peoples living on the island – the Arawak and Taino peoples. Later on, a British wave of colonisation came, and the non-indigenous, African Jamaicans were colonised. So these non-indigenous peoples were for a time, colonised.

Likewise, a peoples can be indigenous, but not colonised. There’s plenty of examples of this in the world. Some peoples have already decolonised, and others that were never colonised at all. Many indigenous peoples don’t need special “indigenous rights” despite being technically indigenous, because they are not in a position of subjugation.

We just happen to be both indigenous and colonised. So we have two very distinct pathways of self-determination available to us.

The Right to self-determination for colonised peoples

Self-determination for colonised peoples is: colonised peoples have a right to freely decide for themselves their international political status.

There are 3 basic self-determination pathways to decolonisation. They are independence, association and integration. I talked about this more in the “UN Decolonisation” video (see Thinking Sovereignty page on Facebook), but this post is to show how it fits in a bigger picture of self-determination.

Independence is the complete removal of all colonial control and the birth of a new system, or rebirth of the pre-colonial system.

Association is a consensual arrangement where the colonised peoples retain the freedom to modify the international status of their territory, and also retain the right to determine their own internal constitution without outside interference; yet in some ways are still administered by a seperate, independent government.

Integration is where the colonised peoples surrender their right to determining their own constitution and territorial status, and agree to become part of another independent state.

There is another option. This is what ever the colonised peoples decide for themselves. The peoples can choose another option, or a combination of these three options. The important thing is that the peoples themselves freely decide their political status as part of an international State. To assert a personality on the stage of international states.

These 3 paths under UN resolutions going back to the 50’s. Decolonisation is an established peremptory norm in international law, that means there are no “if’s or but’s” allowed; no excuses, and the international community has a binding obligation to assist peoples under colonial control in choosing and realising that choice.

Now given those options – put yourself in settler-colonial shoes. These options, especially the option of independence would amount to a internationally mandated revolution against the settler state. It would be a disaster if it were freely chosen by the colonised peoples. The international community has; under their own customary laws, an obligation to support the colonised peoples in their choice. The Montevideo Convention, and other international law also supports the colonised peoples. The only real solution for a settler colonial state is to funnel peoples under colonial subjugation towards choosing more favourable options, ones that benefit the settler state.

These days, you can’t use force to gain consent; at least not openly. So you have to persuade my other means. Carefully present those peoples under alien subjugation with limited options, and hope they say “yes” and don’t ask too many questions.

Another thing you can do as a settler state, is keep off the UN decolonisation target list. The UN maintains a list of Non-Self-Governing Territories. A special committee maintains the list and supervises the decolonisation process. The problem is that on the committee itself sits member states who directly benefit from settler colonialism. The police are policing themselves. Nevertheless, this political interference does not change the resolutions made or the established peremptory norms. As long as settler-colonial countries can keep off the list, and the colonised peoples are not aware of their options – then all is good for the settler state. But in the meantime the settler colonial state will try to funnel those subjugated peoples down the path the colony has chosen.

The Right to self-determination for indigenous peoples

The right to self-determination for “indigenous peoples” is a very different concept to the right to self-determination for colonised peoples. Indigenous peoples rights are written up in the United Nations Declaration on the Rights of Indigenous Peoples.

This declaration; once adopted, is a non-binding obligation to States to protect indigenous minority rights. The language used in the declaration makes it clear that it is mainly about indigenous peoples who are a minority within the larger nation state. The declaration writes about the relationship between “indigenous peoples” and “States”. It is not a State-to-State or a Nation to Nation relationship, it immediately implies a majority/minority dynamic.

This relationship dynamic is not applicable to colonised peoples who have not yet exercised their right to self-determination in the international sense. Colonised peoples; who also happen to be indigenous, still have the opportunity to negotiate (or re-negotiate) internationally-binding treaty terms as part of an association arrangement. This would allow them to prioritise and secure terms that are most important to them, and secure those terms under international law. This is far more secure than aspiring, non-binding declarations. UNDRIP is unnecessary for colonised peoples.

On the roadmap image I have illustrated this in yellow on the right side of the map. Decolonisation in blue has to happen first for UNDRIP to be relevant.

Note the capitalisation of some terms used throughout the UNDRIP. States is a proper noun with a big “S”, but indigenous peoples is used as an adjective/noun with a small “i”. This is not being disrespectful, it means that States is clearly defined, whereas indigenous peoples is a more general, non-specific term. One big problem with UNDRIP; at least for colonised indigenous peoples who still retain a distinct status from the colonial nation state, is that there is no hard definition of “indigenous”. There is a UN working definition from 1986 (scroll pdf to point 379) which is roughly based on cultural continuity.

Ultimately it is up to States to implement in their own legislation and definitions of whom; amongst their own state’s population, are the “indigenous peoples”.

Some countries such as Bangladesh and Indonesia have denied having any indigenous peoples at all. In Africa, only small tribal minorities are officially considered to be “indigenous”, even though most African people in Africa are indigenous to Africa. There is a cultural distinction and cultural continuity aspect to the term. I think the term will one day be seen as a “social construct” in the same way race is seen as outdated today. The term is a mixture of a peoples origin, their connection with the land, their subjugation and miraculous survival under waves of human migration crashing on top of them, and a Disney-like perception from outsiders of their cultural “uniqueness”. It is a narrow term, and there is not much scope for change and adaption in the fast-changing world. Neither is there much appreciation for more subtle aspects of identity and practices, aspects which may continue in the “non-continuous” “non-authentic” cultures that doesn’t quite make the official definition.

Implications in Australia

One of the assessment principles of the Uluru Statement is that it

Advances self-determination and the standards established under the United Nations Declaration on the Rights of Indigenous Peoples.
Final Report of the Referendum Council

This is not self-determination for colonised peoples as in General Assembly resolutions 1514, 1541 etc., It is self-determination for indigenous peoples which is a very different thing.

In Australia, the term “Aboriginal and Torres Strait Islander peoples” is a properly defined legal term, and by the criteria is determined by the Aboriginal and Torres Strait Islander community itself. “Indigenous Australian” is at this point in time used interchangeably with “Aboriginal and Torres Strait Islander peoples”. BUT… that is only at this current point in time. Ultimately, the definition of the term “Indigenous Australians” is the prerogative of the Australian people, not of Aboriginal and Torres Strait Islander peoples. There is a danger that one day you may wake up to realise, yes you are still Aboriginal, your community still accepts you, you have technically decolonised, but your community cannot show a strong enough cultural continuity to be “Indigenous Australians”. Or it could backfire in the other direction – when Pauline Hanson reckons she is an “Indigenous Australian” – she might be right depending on how Australians define the term. UNDRIP will only help those who are officially “indigenous”.

I suspect that the criteria will be tightened rather than loosened; and “Indigenous Australian” will eventually mean a Native Title holder. I doubt it is a mere coincidence that Native title holders are the only Aboriginal and Torres Strait Islander peoples who have proven themselves to comply with the absolutely most restrictive interpretation possible of the UN 1986 working definition (refer to section 380). Logically, if Australia wants to restrict the definition of “Indigenous Australian” as much as possible to reduce their obligations under UNDRIP while still being technically compliant, then the Native Title holder criteria adapted as a new “Indigenous Australian” definition fits this perfectly.

Conclusion

UNDRIP is; for colonised peoples, a big carrot leading them up a mine-ridden path. There are better options already existing from the UN decolonisation framework, there is no reason why these options should not be available to peoples under the “settler” brand of colonial subjugation. There are ways to bring better options for self-determination up and make them available, ways both for peoples who have no treaties (eg. in Australia and British Colombia) and those that already have treaties but never ceded sovereignty over their territory. One important thing is that there is wider awareness of these options. I will write/talk about more in my next post or video about how to make these paths available.

Here is the full roadmap image:

See also the Facebook page “Thinking Sovereignty” for the UN Decolonisation video for more detail.