This paragraph that I read in an article by Megan Davis caught my attention…

The story of Uluru Statement from the Heart is an Australian story and an Aboriginal innovation. The starting point is 1999. At the last referendum to be held in Australia in that year, Prime Minister John Howard put to the Australian people a preamble to the constitution that included recognition of Aboriginal and Torres Strait Islander Peoples. This form of recognition was rejected by all of the cultural authority of Australia in its entirety, from land councils to the elected representatives of the Aboriginal and Torres Strait Islander Commission (ATSIC), to the electorate. Yet Howard proceeded with the agreement of a single Aboriginal champion of the reform.

The long road to Uluru
Walking together – truth before justice
MEGAN DAVIS

But from my own recollection of the late 90’s, I remember ATSIC and many “Aboriginal leaders” promoting it and saying we need to be in the preamble. Did I remember wrong?

I dug a little deeper, and found that Megan Davis is correct here. But only if you take a starting point of 1999. I did remember correctly, the preamble was supported by the “Aboriginal leaders” throughout most of the 90’s. But they backflipped during the ‘final approach’, in 1998/1999.

In the early 1990s, the Aboriginal and Torres Strait Islander Commission, the Council for Aboriginal Reconciliation and the Aboriginal and Torres Strait Islander Social Justice Commissioner all supported constitutional recognition of Indigenous Australians.

The preamble and indigenous recognition, Twomey

Megan Davis chose to frame her essay in a way that gives the impression that “Aboriginal leaders” never supported symbolic recognition. But “Aboriginal leaders” did support it – before and even after 1999, up to the more recent “Recognise” era.

ATSIC sent delegates to the February 1998 Constitutional Convention. They even put forward a proposed preamble; Here is what the chairman of ATSIC, Gatjil Djerrkura put forward as a proposed preamble on behalf of ATSIC at the 1998 constitutional convention;

Australians affirm their Constitution as the foundation of their commitment to, and their aspirations for, constitutional government.
Our nation dedicates itself to a reasonable and representative system of government that is inclusive of all its peoples, upholds fundamental human rights, respects and cherishes diversity and ensures full participation in its social, cultural and economic life.
Australia recognises Aboriginal and Torres Strait Islander peoples as its indigenous peoples with continuing rights by virtue of that status.
We seek a united Australia that respects and protects the land and the environment, including the indigenous heritage and the values and cultures of its people, and provides justice and equity for all people.
We the people of Australia give ourselves this Constitution.

Constitutional Convention Transcript of Proceedings

Many Aboriginal delegates at the convention seemed to support in-principle both the preamble and the republic. There was only one Aboriginal delegate who really spoke against it – that was Neville Bonner in his famous “how dare you” speech.

The final communique from the 1998 convention was “achieved with a remarkable spirit of unanimity“. But the preamble was not committed on until later.

In the final moments of the Convention, Prime Minister Howard committed his Government to holding a referendum on the republic but made no commitment on the preamble. In terms of the federal political agenda, the Convention’s final resolution on the preamble was the last word until February 1999, when the preamble suddenly took centre stage.

With Hope In God, The Prime Minister And The Poet: Lessons From The 1999 Referendum On The Preamble
MARK McKENNA, AMELIA SIMPSON AND GEORGE WILLIAMS

Fast forward to early-mid 1999. The proposal now has more meat on the bones. “Aboriginal leaders” are now complaining about the Howard-Murray draft preamble that John Howard has proposed.

There were objections to the Indigenous reference, in particular its failure to go beyond the recognition of prior occupation and include reference to Aboriginal ‘custodianship’. Indigenous leaders roundly criticised the draft. They had not been consulted.

Ibid.

The preamble was later changed again to the final version, which many “Aboriginal leaders” still did not support.

Why did “Aboriginal leaders” backflip after a decade of hard work trying to get recognition in a preamble – because they don’t like the particular wording? It is to tip the baby out with the bathwater. Furthermore, in the 2000’s the usual suspects were back supporting “Recognition”. There was a mere slither of time during 1999 where complaints of Aboriginal leaders about symbolic recognition were amplified.

Must be legally sound

Every proposal since 1999 has the criteria that it “must be legally and technically sound”. Well duh, that goes without saying. Why would they spell this out? Could it be, in fact, because 1999 was – for some reason – not legally and technically sound?

If 1999 were legally unsound – you can bet that any known problems will be addressed before future attempts. So just watching what’s going on might shed light on what the legal problem was. I’m going to explore some possible problems below.

Lack of Mandate

I think Megan Davis’s assertion (about 1999 being widely rejected by Aboriginal people/leadership) hints at one possible reason why 1999 was not legally sound.

As I have written about on this blog previously, these constitutional reforms are all about achieving decolonisation. For decolonisation to happen as per UN resolutions and the C24 committee’s standard – they must be able to demonstrate broad Aboriginal consent, or the consent of “the peoples of the colony”. Otherwise there may be a future situation like what is happening now in West Papua – where the consent is challenged. ATSIC was the vehicle to get this consent for decolonisation. But there were a few problems. A major problem was the poor ATSIC election turn out

(In 1996) 49,500 out of a population of about 400,000 voted, whilst in 1999 voter turnout was 48,000. This means that in its ten years of existence ATSIC has had the active endorsement of, at most, 13% of the national indigenous populace

ATSIC Flaws in the Machine, Gary Foley

Without a great turn-out in the October 1999 elections, ATSIC had no mandate to consent for decolonisation and to sign a reconciliation instrument. Perhaps this is the real reason why the “Aboriginal leaders” backflipped mid-1999 on the preamble. They predicted that they would not be able to build a mandate in time to act of our behalf and to finish the job of signing off on the reconciliation instruments.

Another thing of note: the October 1999 ATSIC elections were the very first that there were no government-appointed commissioners. Conveniently – just in time for making the body for consent 100% Aboriginal-controlled for the November republic referendum!

Definition of Aboriginality

Had there been a healthy turn-out to ATSIC elections, it may still not have been enough. There is another possible problem that affected the legality of ATSIC being able to give consent in 1999. And perhaps the colony was not aware of this problem it during the lead-up, but are aware of it now.

The problem is with the three-part definition of Aboriginality.

Some time around the birth of ATSIC, the colony created a conceptual definition of Aboriginality that encompasses a racial criteria so they can continue using the constitutional races power in section 51(xxvi). The ATSIC act itself was underpinned by this constitutional head of power. The descent requirement is effectively a one-drop racial criteria.

But the colony also requires a political definition, because you cant do a political settlement with a race. More specifically, the colony needs a political settlement with the peoples under colonial subjugation (see my post Self-determination Roadmap for the difference between “colonised” and “indigenous”).

The result of combining concepts of race and polity is the 3-part definition. This concept was tossed around from the early 80’s, and was eventually solidified after some non-Aboriginal people in Tasmania were challenged in court for their eligibility to run as ATSIC candidates.

As a side-note: the point that these ATSIC eligibility cases were tested in Tasmania might be an important factor – because Aboriginal people in Tasmania will probably never meet the up-coming, post-reconciliation strict cultural continuity requirement to be “indigenous”. By testing this case on people who are under colonial subjugation, yet not indigenous – logically separates the two concepts. There is also no Native Title in Tasmania for the same reason, they cannot prove cultural continuity.

But the problem with the 3-part definition – which may mean the 1999 referendum was not legally sound – is this… By unilaterally imposing the one-drop race criteria on us, they are denying us the prerogative to freely decide the make-up of our polity. You cannot treaty with just “some” people, you need to treaty with a polity acting under their own self-determined definition and acting using their own representative structures. It may be that if we had the choice, that we would include people without ancestry in our communities.

Other settler colonial states have tribal registration systems where each tribes have criteria for membership. This is sometimes based on blood quantum. These registration systems are a administrative necessity to uphold the treaties themselves. They are, at least in theory, based on self-determined criteria.

But as Australia has no treaties, and have tried assimilation and breeding us out for so long – they now have this unique problem that they lack a definitive way to determine exactly which political communities or community they need to do treaties with, and also and which persons are members of these communities. And those communities need to be able to fully determine and define who they are – criteria cannot be imposed.

Australia needs to step back, and allow us the free opportunity to determine who we are – as a technical legal necessity.

Finetuning the definition, and backing off policing of Aboriginal identity

That is exactly what is happening right now, a stepping back. See;

• The Love High Court Case in which Australia removed the imposed exclusion of non-Australian citizens from being part of the Aboriginal community, and also recognised the Aboriginal community as not being alien.
• The way that the AFP dropped Cashman’s complaint challenging Pascoe’s identity, feds stepping back from policing Aboriginal identity.
• I remember also hearing that there were non-Aboriginal people voting in the Victorian Aboriginal assembly – if that’s true I would bet that no non-Aboriginal governmental authority will challenge that.
• The recent recognition of Torres Strait Islander adoption practices in Queensland, removing a possible blood-line exclusion on adopted individuals and their children – given their cultural relationship with Papua New Guinea.

While these cases all deal with very small numbers of people, it is important that all imposed barriers are removed for the peoples under colonial subjugation to freely determine their own criteria for community membership .

Australia is stepping back from imposing any identity criteria because they are preparing for a treaty.

Other reasons for not being legally sound…

Maybe there are other reasons that 1999 referendum and proposed instruments of reconciliation were not legally sound. I can’t think of any right now.

Why the backflip in 1999?

What I am suggesting is that “Aboriginal leaders” backflipped on symbolic recognition, and John Howard provided them with a face-saving excuse to do so, both because some eagle-eyed lawyer realised in 1998 or 1999 that the reforms were not legally and technically sound. The fatal flaw was set in place way back when ATSIC was first legislated using the races power. You can’t treaty with a race!

They tried to save a decade of work by taking a gamble on separating out the republic question from the preamble question. If the preamble question got through alone, it would have been a step in the right direction. And the preamble was polling better than the republic at one point. If the republic question went through without the preamble, it would have been impossible to implement, as without the preamble there would be no authoritative basis and no autochthony of the new republic. In the end, the republic question did better than the preamble, and officially both failed. It was a complete cock-up.

The meeting between the Queen and Aboriginal leaders at Buckingham Palace makes sense in this context. The meeting was a month before the referendum but just a few days after the ATSIC election. It was probably scheduled long in advance to be a kind-of “State visit” form of diplomatic recognition ahead of signing a reconciliation instrument. The timing makes perfect sense – you want a recent successful ATSIC election to give the leaders a fresh mandate, and it should happen shortly before the referendum. But due to the technical problems, it instead became a meeting about Plan B.

We dodged a bullet in 1999!

Predictions

If I am right about this, I would expect the following;

In the realm of Native Title law, there may be a loosening of rules, or not policing where official Native Title Holders can allow wider family branches (i.e. not having strict apical ancestry, but part of the nation) to have traditional access to their Native Title land or becoming members of PBC’s without the government complaining. Maybe this is already happening, but I have not been following closely enough. I think this will happen because Native Title PBC’s are one type of vehicle which will be used for agreement making. Loosening the rules means the agreements will cover more people in total. The loosening of the rules will be temporary until the constitutional reform is over, after which they will become strict with tribal membership ID cards based on proven apical ancestry.

Another thing I would expect, is a novel solution to a potential problem with the constitutional power to legislate a Voice to Parliament. The races power cannot be used in the same was it was used to underpin ATSIC. Perhaps an external foreign affairs power will be used as well, or used instead of the races power. Or maybe they will not use any Australian constitutional power at all, and it will be somehow underpinned by the Uluru Statement (which asserts constitutional spiritual power) itself. If the Voice is legislated, watch carefully how it happens – because it may break new ground in the way it is passed.

I would also expect a small number of non-Aboriginal people participating in a legislated Voice from the very beginning. Awareness of this will be made in the Aboriginal community to prompt them to complain. Aboriginal leaders will complain, and the government will initially do nothing about it. But by the time the referendum comes (which may actually look like a republic referendum), there will be real Aboriginal-led solutions put in place to weed out fakes from the legislated Voice to a point where the Aboriginal community are satisfied.

Image by Steve Buissinne from Pixabay