The word “Constitutional” – can mean one of two things.

1. The Commonwealth of Australian Constitution Act 1901 – the document itself. In academic literature this is often called the “Big C” constitution.

2. The word ‘constitution’ also means the composition of something. So the ‘little c’ constitution of Australia means the composition of Australia. Australia is composed of a federation of colonies, including the parts of those colonies; the structural parts such as the executive, judiciary, legislative branches and the Australian people. That is the ‘little c’ constitution of Australia.

Which one of the meanings of “constitutional” applies to the Uluru Statement?

If you look at the Referendum Council report, you will see that the “recognition” is to happen in an extra-constitutional Declaration of Recognition. “Extra-constitutional” – means outside of the constitution (like extra-terrestrial means from outside of earth).

Also in the Referendum Council final report (p11) it explicitly says that the delegates outright reject a “statement of recognition or acknowledgment in the Constitution”.

“Recognition in the constitution” that is outside the Australian Constitution Act, must therefore mean that the Uluru Statement asks to recognise Aboriginal and Torres Strait Islander peoples as belonging in the composition of Australia.

“Constitutional Recognition” possibly does not involve the Commonwealth of Australian Constitution Act at all.

Revisiting Recognition

The word “Recognition” can also mean different things. If we consider that Aboriginal and Torres Strait Islander peoples are possibly not part of the explicit composition of Australia – the context of recognition must be looked at from an international political point of view.

In international politics and law – recognition means something very specific. This is also called “diplomatic recognition” or “State recognition”. This is when a nation State recognises the sovereignty of another State by establishing diplomatic relations with them. The consequences of diplomatic recognition are significant. This video is a good primer on recognition and how it happens.

Australia (or one of it’s many “Crowns”) needs to diplomatically recognise Aboriginal and Torres Strait Islander peoples as being separate to Australia in order to conduct a Treaty with them to legitimise Australia’s own claims over the territory. This presents a problem – because to recognise Aboriginal people as being separate of Australia, is to admit that Australia’s own claim is sketchy.

The colonial solution is – to diplomatically recognise Aboriginal and Torres Islander peoples as being part of the composition of Australia. Or in other words – ‘little c’ constitutional recognition. All up – “constitutional recognition” – is to diplomatically recognise the sovereignty of Aboriginal and Torres Strait Islander peoples as being an integral part of Australian sovereignty.

This is substantive recognition. One of the meanings of substantive is ‘belonging to the substance of a thing’. Contrary to common understanding – constitutional recognition in the context of the Uluru Statement is not to get a mention in the text of the Constitution Act.

I suspect the Voice itself will also be ‘enshrined’ in the composition of Australia and not in the Constitution Act itself. The Referendum Council appear to have carefully structured the proposal to allow this by separating out certain parts of the proposal from the Final Report into their Joint Select Committee submission (No.479), which deceivingly makes these parts look like an integral part of the non-negotiable offer when they are not.

How to bypass this

Instead of politically assimilating into the Australian state – Aboriginal people can establish diplomatic relations with States other than Australia. This means declaring their own statehood like the Sovereign Union advocates (through UDI’s) and start building their own international relations. Building relations can be done gradually – it does not mean that immediate recognition by the entire UN is needed. This process can start as simply as sending a delegation to meet with another countries leadership, there are pacific island nations who I think will be receptive. Having a single foreign state recognise an Aboriginal nation would be a good start and may set off a chain of more recognitions.

This avoids being recognised as being part of Australia and legitimising the ongoing genocide and occupation. This will in turn force the Crown’s hand, and will either lead to the negotiated, internationally-binding sovereign Treaty that Aboriginal people expect (unlike domestic ‘agreement-making’), or could possibly lead to outright Aboriginal independence or to a new basis for rebuilding a modern Australia with the guidance and leadership of the ancient peoples of the land.

Image by anncapictures from Pixabay