This post is part of some work I am working on in raising awareness for the UN Declaration on the Granting of Independence to Colonial Countries and Peoples (A/RES/1514/XV) made in 1960. The Declaration will be 60 years old on 14 December 2020.
1990’s “Reconciliation” was a project to lead to the decolonisation of Australia in a technical sense according to resolution (A/RES/1514/XV).
Australia’s first attempt at decolonisation was in the 60’s with the 1967 referendum. But in 1970, UN General Assembly resolution 2625(XXV) had a further development on the technical side of decolonisation – which retrospectively meant that the 1967 referendum didn’t meet it’s decolonisation goal. Resolution 2625 says (in quote below) that the native peoples of the territory retain their special status as people under alien subjugation (in accordance with the purposes and principles of the UN Charter) until they exercise their right to self-determination.
The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles.
Exercising the right to self-determination in the context of decolonisation means to assert a political status on the international stage of nation states.
So all up this means – for a territory to decolonise – the descendant communities of the pre-colonial communities (or polities) must explicitly assert their political status in an international sense. This is what “self-determination” means in the context of decolonisation. It is not to do with autonomy or “having a say in their affairs”. It simply means to assert a status.
(Don’t confuse the right of self-determination for colonised peoples (A/RES/1514/XV) with the right of self-determination for indigenous peoples (UNDRIP) – they are completely different things.)
During the 90’s, this was what Australia was trying to achieve. The goal was to form a republic, with inclusion of an assertion of a status from the pre-colonial peoples.ATSIC was intended to be the vehicle for this exercise of assertion of political status.
Who did ATSIC represent?
The ATSIC Act was (at least in part) a special law for a race – it was established using the federal races power. The Aboriginal and Torres Strait Islander Commission Act 1989 defines:
* “Aboriginal person” means a person of the Aboriginal race of Australia.
* “Torres Strait Islander” means a descendant of an indigenous inhabitant of the Torres Strait Islands
One of these terms is clearly race based, and the other based on an individual holding indigenous descent. Note that there is no legal definition of “indigenous” in international or in Australian law.
A major change in who ATSIC represents
In the late 1990’s, there was a change in who – conceptually – ATSIC represents. The original terms relating to persons of a race, and persons with indigenous descent (Aboriginal persons, Torres Strait Islanders) morphed into a new political term: “Aboriginal and Torres Strait Islander peoples”.
The colony changed from using race/descent terms to using a single term representing a distinct polity through manipulation via the courts. The main case this occurred was in Shaw v Wolf.
In Shaw vs Wolf, eleven people tried to become ATSIC representatives and had their eligibility challenged in the courts. One of the persons, Ms Oakford, could not demonstrate Aboriginal descent; although she had self-identification and community acceptance. The court determined her to be ineligible to run in the ATSIC election because she couldn’t demonstrate Aboriginal ancestry. Judge Merkel’s decision redefined “Aboriginal person” from being a race-based term as per the constitutional foundation of the ATSIC Act into a political definition.
The courts established the three part definition. The three parts are descent, self-identification and community recognition. The latter two criteria plus the fact that ATSIC’s function is to control resources for the community form a textbook definition of a polity.
Including descent as the first of the three criteria allowed some semblance of continuity in using the races power against pre-colonial polities.
However there was a problem. Most political communities and nations in the world enjoy the prerogative to decide whether or not to confer membership on outsiders; regardless of bloodline. In deciding to exclude Ms Oakford from the Australian legal definition of Aboriginal community, the courts took that prerogative away from the Aboriginal community themselves. This undermining of the community’s prerogative may have been a technical blunder that put the whole republic project at risk.
The Shaw vs Wood court case occurred in April 1998, not long before the 1999 referendum. The court case was perfect timing to get the ducks in line before forming a republic. ATSIC was retrospectively defined by the court into a body that represents the descendant pre-colonial political communities. Compare this with UN resolution 2625. The three part definition (*almost) corresponds to the peoples who retain a “separate and distinct status” from the colonial occupation in resolution 2625. In the international law on decolonisation – a race cannot exercise the right to self-determination and decolonise. A political community can. ATSIC must represent the correct political community in order to fulfill it’s job of consenting to forming a republic.
The referendum – a (secret) backflip
ATSIC supported the preamble and the republic referendum right through the 90’s. The official position of the ATSIC delegation to the 1998 constitutional convention was of support. However something went wrong. I think the plug was pulled behind the scenes on the entire exercise. John Howard made unexplainable dumb decisions in 1999 which made the referendum very unappealing to the public. He effectively sabotaged it. “Aboriginal leaders” later backflipped on their support in 1999, they stated the reason was because Howard’s personal poet drafted the preamble. I don’t buy it ATSIC leaders… I smell a rat. Why drop support because of a poet, when it includes the recognition you spent a whole decade supporting?
One of the criteria of constitutional reform proposals since the 1999 failure was that reform must be technically and legally sound. The inclusion of this criteria is a bit strange – duh, it’s a given that any change to the constitution should be legally sound. Is this criteria stated, perhaps because the 1999 proposal was NOT technically and legally sound? Perhaps due to the courts denying the Aboriginal community’s choice to include Ms Oakford as an election candidate? Or another reason?
A second possible reason for Howard’s sabotage and eventual failure of the 1999 referendum is this – ATSIC was not able to demonstrate their position of support as being reflective of their constituency. The assertion of consent from the pre-colonial community is needed under UN General Assembly Resolution 2625 to decolonise. And it needs to be strong enough to demonstrate in an international court if challenged. ATSIC failed in it’s main job – the community did not consent. So early in 1999, Howard put forward an unviable republic proposal to ensure that Aboriginal and Torres Strait Islander peoples remain unaware of their own power, to give backflipping ATSIC leaders an excuse to back away, and to attempt to at least get the preamble change through (which was polling better than the republic question at that time). If Aboriginal and Torres Strait Islander peoples were to be tipped off that they have the right of veto on any republic proposal, they might be able to leverage that for land rights, reparations, a degree of self-governance, or to carve out their own fully separate nation state. Howard’s strategic sabotage kept that cat in the bag.
This theory sheds a new perspective on the Buckingham palace meeting. ATSIC leaders met with the Queen in Buckingham Palace in October, less than a month before the referendum in November. Members of the delegation reported that they did not discuss the referendum, but were talking about “Reconciliation”. I suppose they there to plan the next decade – Reconcilliation 2.0.
Rewriting History
I wanted to add a recent, and odd quote from a piece Megan Davis wrote.
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.
Megan Davis – The long road to Uluru
She sets the scene at 1999 – thus brushing away the support of ATSIC and “Aboriginal leaders” during the entire 90’s, including at the 1998 Constitutional Convention where ATSIC leaders had a supportive delegation. This is dishonest.
Right up into late 1999, at least some prominent “Aboriginal leaders” still supported the referendum. After the Buckingham Palace meeting in October 1999 – Lowitja O’Donoghue stated
But I ought to say, that personally my position hasn’t changed as a result of having come to see the Queen, the Queen of Australia. I will still be advocating and voting ‘yes’ for a republic.
Lowitja O’Donoghue
When someone is being dishonest, they often try too hard and over explain themselves, and divert attention. The cheating husband has a big, elaborate, detailed story ready when he stumbles home late. I wondered why Megan Davis often writes these long articles going through history – going all the way back to 1967, into details which I don’t expect people to be interested in.
Why doesn’t she focus instead on the current reforms, and perhaps spend some of her word count and expertise to give us a better explanation beyond buzzwords and three-word slogans? Maybe she could explain what federalism of a First Nations entity would mean. Perhaps she could explain for us mere mortals how the reforms are “sophisticated” and “substantive”.
Megan Davis is being dishonest about the intention of every single attempt of these reforms, all the way back to 1967. They are – to decolonise Australia under UN/RES/1514/XV, for the benefit of Australians and the detriment of Aboriginal and Torres Strait Islander people.