Constitutional reform

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

~ 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:

  • 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.

“Truthtelling”

~ Jessica Savage ~ Leave a comment

This post I will examine the third step of the Uluru Statement reforms – known interchangeably as Truth or Truthtelling.

  1.  Voice: Give us a consultative body and citizenship in exchange for our Sovereignty
  2. Makarrata: Federal Government and States share our birthright amongst themselves
  3. Truthtelling: Rewriting the history books

They say, history is written by the victor. Australia has not yet secured victory over the original inhabitants. Australia’s history books have until very recently (with the help of Aboriginal activists and “black armband” historians) ignored Aboriginal peoples. The historical narrative and objectives of Australian colonisation have gone through several phases, we are now nearing the conclusion of the final phase (if successful). The best way to explain what is happening now is by comparing to the previous phases.

Phase 1: Hope that we will simply die out

Terra Nullius… they came knowing full well that the land was inhabited, they knew we had law (they used our own laws against us),  but for their own convenience they hoped and thought we would just die off. To speed up the process – they turned a willful blind-eye while “settlers cleared” the land. “Squatters rights” – meant that those “clearing” the land were handsomely rewarded. The most successful land-clearing families became part of the who’s who of colonial Australia, they became very powerful and many of them are still holding the reigns in politics and business today.  They got there via hard work – hard, hands-on work. Slaughter, rape, dispossession, cover-up and genocide of the Aboriginal peoples, as well as building farms and businesses on the land they acquired. If phase 1 were successful in wiping out Aboriginal people, the Terra Nullius narrative would have become retrospectively true in the history books, leaving behind fragments of a story of a mysterious race of people who just as mysteriously disappeared.

Phase 2: Hope that we will assimilate and forget who we are

Time went on. The death of the “last Aborigine in Tasmania” became etched in their history almost like it was a proud milestone. But we are still here fighting. Decent Australians complained about Aboriginal peoples being excluded and destitute, prompting a change in strategy toward assimilation policies. We were taken from our parents, put in boarding schools and missions, were taught how to clean houses and ride horses. Gradually, we gained rights normally granted to citizens, learnt white-man’s ways, and became part of their world. Today schools, universities, identified positions in the public service, and the lure of money are some of the main tools of assimilation. But we always retained our culture, and in some ways it became stronger as we united both in our struggle against oppression, and by our collective feeling of never really belonging.

The Terra Nullius myth has left remnants which can still be seen in the legal system post-Mabo. This lie has become very difficult to sustain when even school kids around the world know that Aboriginal people still live in Australia and still practice their law and culture. Also very problematic is we have not forgotten who we are, and we continue consistently and clearly resist and call for our Sovereignty to be acknowledged and for Treaty. The obviousness of the Terra Nullius lie is a massive problem for the Australian Government that “Truthtelling” will solve.

Phase 3: Act like we allowed the Colonisers here all along

How will “truthtelling” solve this problem of the Terra Nullius lie? There are clues in the Uluru Statement itself. There is a huge omission – the statement says absolutely nothing about the ongoing and active struggle of our peoples against oppression. It lists a few symptoms such as high incarceration, but stops short of explaining why – just blowing it off that it is caused by ‘a structural problem’ that can be solved by constitutional assimilation. It is like all those who fought for our land, our law and our culture never existed.

an excerpt from the Uluru Statement;

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.

By getting mob to sign this – they tricked them to acknowledge and to backdate Crown claims of Sovereignty to 1770. Note the past-tense in the first paragraph – we “were” (not “are”) the first sovereign Nations, we “possessed it” etc. Implying that we are no longer sovereign Nations, nor still in possession of the continent. Yet it also says sovereignty “has never been ceded or extinguished” – so what happened to our Sovereignty?

To paraphrase another part – our “Sovereignty is a spiritual notion” that “co-exists with the Sovereignty of the crown“. Co-existing sovereignty implies a sharing arrangement, which is exactly what the Constitutional Reforms via a Federalism agreement will formalise. The First Nations sovereignty claim will retain the ‘spiritual’ part – while the Crown has gained sovereignty gradually by moving across the land, claiming the land, minerals, flora, fauna, waters, everything they want. But Australia has no interest in acquiring a Spiritual connection, so First Nations present no threat in asserting their spiritual interests in the Uluru Statement.

This is philosophically in line with the Mabo “acquisition of Sovereignty by settlement” and Howard’s Native Title bucketloads of extinguishment. I would say this thinking dates back to at least the mid 90’s, and sharing via Federalism was probably planned since then as a ‘plan B’ if the ‘plan A’ of Recognition + Republic didn’t work.

So how does all of this fit in with Truthtelling? Well I think it’s pretty clear. History will be gradually rewritten and selectively emphasised to give the impression that we passively consented to being slowly assimilated. The long-term goal of “Truth” is to construct a clean and consistent narrative for the consumption of future generations of Australians. The current narrative is a dog’s breakfast of contradictions, it needs repairing and cleaning. Our resistance needs to be brushed off like those who walked out of the Yulara dialogues – you can’t please everyone, right?

How History is being rewritten

The mainstream media has been paying more attention to Aboriginal history in the last decade. Pay attention to what is being revealed and discussed – you may notice it mostly falls into one of two categories;

  1. Big, brutal events they cannot deny because there is already high awareness like documented frontier massacres already uncovered by independent researchers. These events might still not appear just yet in official accounts if it will cause their story to prematurely collapse – eg. you wont see the Frontier Wars in the Australian War Memorial until they have us safely in the Constitution. or;
  2. Relatively tame, trivial, information about culture, or pre-contact stories, that do not involve gross crimes against humanity and don’t show evidence of active resistance.

Here is an example of category 2 from the planned Cooktown 2020 event;

Over the weeks, their courage grew and the Bama instigated meetings with Cook’s crew with relations between them being largely friendly. Over seven separate meetings they spent sufficient time together for Cook, Banks and the Endeavour’s team of naturalists to record more than 130 words of the native language. One of the words recorded was gangurru, which was spelt ‘kangaroo’.

Then relations took a turn for the worse. The Endeavour crew caught some turtle and refused to share them with the local clan. This was a sign of great disrespect for the Guugu Yimithirr. The meat of ngawiya was so highly valued that it would always be given first to the Elders, and only when they had finished would the remainder be eaten by the rest of the clan. Cook’s men, of course, knew nothing of this and thought the turtle was rightfully theirs and needed all the meat for their voygage home to England.

The Guugu Yimithirr were incensed, and the scuffle that followed could easily have led to bloodshed – the Guugu Yimithirr greatly outnumbered the Endeavour crew and there were numerous opportunities to spear them but, perhaps because they were on neutral ground, the dispute was quickly resolved and the Bama allowed Cook and his men to leave unharmed.

Had this not been the case, how different our history would be. The British Admiralty would not have been told of the discovery of a new land and, eighteen years later, the First Fleet would not have arrived at Sydney Cove to begin building the country we now call Australia.

They could have killed every man on the Endeavour – but they didn’t. Does that imply ambivalence to Cooks presence? And until 15-20 years ago, the story emphasis would have been about Cook repairing his ship, the indigenous would have been a footnote.

Outside of these 2 categories there are plenty of stories that would show active resistance, premeditated attacks against Aboriginal Sovereignty, and plenty of ‘smaller’ albeit abhorrent stories. These stories won’t be volunteered, they will only come out if independent researchers first force them out, then they will be downplayed and discredited as much as possible – a good example would be John Pilger’s Utopia documentary. Utopia is not “Truthtelling”.

In another 50 years or even less – the zeitgeist will be “everyone can play the didgeridoo and Australia is officially 60,000 years old.” By reading the Uluru Statement, future generations of Australians will have no hint of our resistance, even though in 2017/18 it is an intrinsic part of our story. Maybe they will look at photos of the Tent Embassy with it’s “Sovereignty” sign and interpret it as a request to join Australia.

“Truthtelling” is not for our benefit

Don’t expect “Truthtelling” to be a path to fair restitution, compensation, justice, cultural protection (beyond that which is commercially valuable), war crime investigations, genocide tribunals or any apologies. Don’t expect it to allow us to share the burden of carrying the horrific stories we have passed down through our families. Don’t expect we can finally go and say ‘hi’ to our non-indigenous cousins who don’t even know we exist, even though we share grandfathers – the fathers of the stolen generations. We will keep carrying the dirty secrets until they are forgotten.  There will be no justice in this “Truthtelling”, it’s sole purpose is to rewrite history to benefit the oppressor.

Makarrata: Sharing the Spoils of Conquest

~ Jessica Savage ~ 1 Comment

For background – please read The Uluru Statement is not what you think first which discusses in detail the danger of the enshrinement of the First Nations Voice to Parliament.

The Yulara Statement has 3 components, Voice, Makarrata, Truth. This post will focus on the second component – Makarrata.

Makarrata is not a Treaty in the sense of the normal, International context of the word – it is a post-treaty negotiation framework. The real “Treaty” happens at step 1, the enshrinement of the Voice to Parliament. This is where First Nations trade a share of their Sovereignty for a consultative voice and Australian Citizenship. And to be clear – when I say ‘a share of their Sovereignty’, it is more like putting the entire cake on the table and offering the Government to ‘help themselves’.

Once the Voice is enshrined and First Nations sovereignty along with it, the irreversible damage has been done. There is no going back. First Nations have advisory-only powers from then on. International doors are closed for good. If you have a problem with the process from here on – please contact your friendly First Nations voice representative and ask they present a stern word via their special mechanism to the Federal Parliament. Yulara Statement campaigners will have you believe the threat of mere words will have Parliament shaking in their boots and motivated to do the right thing.

When Sharing is not Caring

After our sovereign powers are locked up in the Federation, they need to be ‘shared out’, or directed from the previous holder to the appropriate new holder. The purpose of the Makarrata commission is to facilitate this process. See animated gif below;

Makarrata Commission facilitates one-way transfer of powers from First Nations to States and Federal Government
Created with Open Source software by the Author, and with ezgif.com for animation. graphics from the flags are fair-use, clipart is from Apache Open Office Impress. Feel free to share.

This is the reason Victoria is establishing a Treaty process and why Australia-wide they are talking about making treaty commissions for each state, and possibly also for local governments. It is so the state can negotiate (strip) the powers from individual First Nations’ groups that the States require. This process is pending entirely on the Federal enshrinement of the Voice. If you know that “Sovereignty Never Ceded” – then by extension you can deduce the states currently have NO legitimate powers on this continent because the claim of the Crown is still – under jurisdiction of International law – based on Terra nullius. The first priority of the States and the Federal Government will be to get the powers they currently pretend to have. They will do this without compensating First Nations for this unseen, smoke and mirrors power grab.

Initial priority of Makarrata is to ensure States have their powers upheld
Created with Open Source software by the Author, graphics from the flags are fair-use, clipart is from Apache Open Office Impress. Feel free to share.

Currently, First Nations hold all powers. So for First Nations to negotiate in a Treaty, they will by definition lose powers – whether it be via a Vienna Convention on the Law of Treaties International Treaty or by a Federation + Makarrata process. The purpose of negotiating is to make an optimal agreement where each party is treated fairly. Optimally – both parties walk away happy,  but for both parties to walk away from negotiations a little disappointed is also indicative of a good balance being met.  In this case, that would mean Australia securing their legitimacy and First Nations will get something worthwhile in return for giving away part of their powers, like guaranteed rights, cultural protections, royalties or land taxes as compensation for land lost, land with rights to run commercial activity etc.

But under Makarrata – there is no bargaining power when you don’t have the right to say no. First Nations will lose their Dreaming, Australia will enjoy a free-for-all to take whatever they want. This is not a fair negotiation. If this happens it will cement one the biggest ongoing injustices ever committed against an entire race of innocent peoples.  This will then be swallowed down with the 3rd course – “Truth” (in a very Orwellian sense) which will cover-up and sanitize the narrative. This “Truth telling” has already begun, but I will save this for another post.

Comparison with Native Title Act

Overall, this is very similar in pattern to what happened with native title. Native Title Act was a method to kill land rights. Constitutional reform will kill Sovereignty. The same modus operandi is at play – take it all away by stealth, then give a little back pretending to be generous.

Native title: First Nations jump through hoops to prove they have allodial title land rights. Government writes up these allodial rights in their system, grants First Nations a small subset of these rights back, and agrees to stop harassing First Nations on their own land. Government acts like they are doing First Nations a favour.

Constitutional reform: Government absorbs First Nations sovereign powers into the Federation under the guise of giving First Nations a consultative Voice. Government gives First Nations a subset of these powers back – including the Voice itself and Makarrata “negotiation” opportunity, and agree to stop harassing First Nations. Government acts like they are doing First Nations a favour.

Makarrata will last indefinitely

As First Nations hold all powers, they may hold powers that Governments will need later on. These are “residual powers”, the same concept as what the States claim to have today – that is the original colony powers that were not handed to the Federal Government at Federation in 1901. Hypothetical scenario in the future, a new mine is needed on land that is protected with Native Title or under Land Rights. If these rights are held with First Nations people, they will need to be forced into negotiating in order for the mine to proceed. The Makarrata Commission will facilitate this. As long as First Nations hold Sovereign Residual Powers, the Makarrata Commission will exist. In the future, “Traditional Owners” will dread to receive a unexpected phone call from the Makarrata Commission.

Chart explaining why Makarrata will be needed forever
Created with Open Source software by the Author, graphics from the flags are fair-use, clipart is from Apache Open Office Impress. Feel free to share.

This, by the way, is very convenient for mining companies, they will know via the Makarrata Commission exactly which “Traditional Owner” groups they need to deal with and what agreements (vulnerabilities) these groups may be already under. No more running around trying to find an appropriate family group to trick or bribe with Woolworths vouchers, the Makarrata Commission will be their one-stop shop to take care of such pesky details.

Compensation for loss of Rights

I have a serious concern about the Yulara Statement claiming that “Sovereignty is a Spiritual Notion”. If First Nations claim that their connection to the land is merely Spiritual and nothing else, then logically they cannot claim compensation for loss of livelihood, loss of physical land/waters, loss of the right to use their own land to improve their lot through commercial activity that they choose to undertake. It could obstruct their claim to be able to build homes and infrastructure on their own land in order to support their community.  Sovereignty is not merely “a Spiritual notion”, I think these are very dangerous words that will limit First Nations from building themselves a future of true self-determination in a world vastly different to that pre-1788. It could make it so only claims for “pain and suffering” for loss of spiritual connection will be eligible for compensation.

It is ridiculous to claim that First Nations, pre-1788 interest in their land was merely Spiritual. Just like every other inhabitant on this earth, they depended on their land for their physical sustenance, food, water, their shelter, the forming of their contextual relationships in time-space, their sense of belonging and identity etc. These elements may have a spiritual aspect, but they are not exclusively spiritual notions. These interests exist universally wherever there are humans living in a society, regardless of the societies religious/spiritual beliefs or lack thereof.

Makarrata: Coming Together after a Struggle

Coming together for a cup of tea, damper and a respectful yarn?

Or coming together like a pack of lions to feast on the fresh carcass of First Nations Sovereignty?

To summarise;

  • Makarrata is based on a gross power imbalance
  • First Nations have only the right to advise when asked
  • First Nations will have no right to say “no”
  • Overall transfer of rights will be by definition one-way
  • It is deceitful and it’s true intentions are grossly misrepresented
  • It will end in misery for First Nations.

 

Current events: Aboriginal leaders want referendum delayed

~ Jessica Savage ~ Leave a comment

18 October 2018 (yes it is two weeks old, I am playing catch-up)

From abc.net.au;

Key points:

  • Aboriginal leaders support constitutional recognition, urge politicians to drive public support
  • The group said the vote would be guaranteed to fail without generating more support among Australians
  • The comments have disappointed some Indigenous Australians who endorsed the Uluru Statement in May

If you are paying attention, you will notice things that are falling into place at the moment. There’s been more op-eds being churned out, a week of action announced and a new branded social media campaign to build interest. And they are all related to the upcoming release of the final report of the Joint Parliamentary Select Committee report due on 29 November. This Committee has been running since March.

The support for the Yulara Statement amongst the Australian public is not doing well. Someone is paying for the Voice Treaty Truth campaign, and whoever that is would be conducting regular polling to measure campaign effectiveness. To do otherwise would be foolish in this day and age. So far, they have only released a handful of polling results to the public, the best polling at about 60%. To run a successful campaign, you have to present an air of confidence and success, so you don’t want to release all the bad polling.  Meanwhile, various politicians and insiders make public statements to the lines of  “It will fail for sure”. They are saying this not because they don’t support the measures, but because they have seen the unreleased polling – and it is not strong enough for them to volunteer to be the first to stick their neck out to say “it’s referendum time”.

Since the conference at Yulara, the flame has been carried by the low-key Voice Treaty Truth campaign, but they clearly need help. The low-key, “grassroots” approach is not working – they need a funding injection.

Cue the “Aboriginal leaders”, who are now pleading with the Government-run Joint Select Committee to say “We are not ready, there is no support!”. And of course, the Committee will swoop in to save the day when they release their report later in November, with the pleas from the “leaders” still fresh in everyones mind. Predictably the report will come with a recommendation along the lines of “The committee recommends the Government injects funding into publicising the proposals, as public awareness is low”. Boom – government has just engineered giving itself the green light to drop another few million flogging their re-branded “Recognise”.

Make no mistake – this is purely a Government driven agenda. They support it 100%, but they need a referendum to get the job done. The last piece of the puzzle is to get the Australian public to support it.

History – The 90’s: Mabo, Cathy Freeman and the failed 1999 Republic Referendum

~ Jessica Savage ~ 1 Comment

In 1994, I was a regular at my local little athletics club. We were all really excited about Cathy Freeman running in the Commonwealth games, but it was extra special for us Aboriginal kids.  It was the first time I really noticed the mainstream celebrate an Aboriginal person.

I was watching the race, standing in front of the telly, clenched in suspense, then jumping up and down in excitement. She won! But then she started her victory lap. She was smiling, draped with the Australian and Aboriginal flags. It jarred me, I was in shock. For me, the Aboriginal flag was a flag of grievance. Why is she protesting? Why else do you fly that flag besides protesting against something? Why is she smiling? Is she protesting the Commonwealth Games? Deaths in Custody? What the heck is she doing! Excitement turned into confusion.

Next time around, at the 2000 Olympics, she did the same thing. This time I understood it to be an assertion of her identity, something which didn’t enter my mind in 1994. I think that by that time, I had also adopted the flag as an assertion of my identity. Somehow the flag morphed from being a flag of resistance to a flag of Aboriginal identity. Was it just me, or was it a major change in the zeitgeist? If a change in the zeitgeist, how did it happen?

Timeline 1991-1995

1991 – April Royal Commission into Deaths in Custody, final report published. First use of the term “Reconciliation”.

1991 – 28-31 May Mabo (No 2) Hearings

1991 – 2 September Council for Aboriginal Reconciliation (CAR) Act. “Because it would be most desirable that there would be such a reconciliation by the 2001 Centenary.”

1992 – May Torres Strait Islander flag designed in a competition.

1992 – 3 June Mabo (No 2) decision handed down

1993 – September Sydney wins 2000 Olympic bid

         – December Native Title Act 1993

1994 – Commonwealth games in Victoria, B.C. Canada. Cathy Freeman parades flag x2.

1995 – 14 July. Flags Act Aboriginal and Islander flags become official Flags of Australia. But they are due to expire in 2008 because of an ‘administrative error’.

Looking back, it is amazing how quickly these things happened. In just 5 years after Mabo showed First Nations sovereignty as an existential threat to Australia, the Aboriginal resistance flag (which was already 20 years old), morphed into an Aboriginal identity flag, now officially named the “Australian Aboriginal Flag”. A competition was held to design a flag to represent Torres Strait Islander peoples. Note… designed in a competition – not a spontaneous grass-roots action out of practical necessity. Both became official flags of Australia, signed off by the Queens representative, the Governor-General. Note that an administrative error meant this decree would expire in 2008. An honest mistake – or did someone think the flags would only need temporary enacted, pending a successful republic referendum perhaps?

From the Proclamation Explanatory Statement (emphasis added);

A proclamation was made by the Governor-General on 14 July 1995 recognising the flag described in the Schedule as the flag of the Aboriginal peoples of Australia and a flag of significance to the Australian nation generally, and appointing the flag under section 5 of the Flags Act 1953 as the flag of the Aboriginal peoples of Australia and to be known as the Australian Aboriginal Flag.

Read carefully – the flag of the Aboriginal peoples. That was not what the flag represented just a few year earlier. Before Cathy Freeman draped herself in it at the Commonwealth games it was more like the Eureka Stockade flag, a flag of resistance. Also the name, “Australian Aboriginal Flag” – Aboriginal peoples as a group are still not Australian, we are foreign to the Australian system, something which I will write about more later.

Cathy Freeman didn’t get into trouble for her actions, she sparked discussion and controversy but that was about it. In the 1994 Commonwealth games she carried the Aboriginal flag TWICE. Once after winning the 400m. She was warned not to do it again, yet despite her clear future ambitions to win an Olympic medal at the already announced Sydney Olympics – she ignored the warning and carried the flag again after winning the 200m. Why did she put her Olympic future in jeopardy from disobeying instructions by carrying the flag the second time? Later during the Sydney 2000 Olympics, she was the final torch-bearer and lit the cauldron. Do you think someone who is a threat to the establishment would be granted such privileges? It was a set-up. I am not saying Cathy Freeman herself was “in on it”, she may have come up with the idea herself, but I am saying it is very doubtful that they didn’t want her to do it. She was permitted – if not behind the scenes encouraged to do this to re-brand our flag of resistance in order to diffuse negativity against the occupying government in time for the Sydney Olympics. But – if the only purpose was merely to diffuse negativity of the flag for the upcoming Olympics, then the Torres Strait Islander flag would not also have been designed and put in the act – there is a greater agenda at play.  The greater agenda is to push “Reconciliation” and  assimilation to prepare for the 1999 referendum.

I won’t discuss Native Title here as it is a huge topic, but if you are aware how problematic the Native Title Act has been for land rights, for context keep in mind that post-Mabo era was where Native Title started.

Road-map to 1999 referendum

If you have ever worked with or for Government, you know they love their multi-year plans and road-maps. Another thing they love, is setting the finish-line of these plans on significant anniversary dates.

The 2001 Centenary (100 years since Federation) was one such significant anniversary. The big goal was to pass the 1999 republic referendum, hold the Sydney Olympics, and become a republic 100 years after federation.

Sovereign First Nations dodged a major bullet when the 1999 referendum failed. The referendum plan was likely initiated in the chaos of Mabo, a plan to reconcile (“reconciliation”) the legal ramifications from the (illegal under International law) occupation that goes back to first contact. The plan of making the Aboriginal flag and Torres Strait Islander flag as identity flags and putting them in the flags act, the “Reconciliation” public education campaign run by CAR, as well as adding a Aboriginal recognition constitutional preamble was to assimilate us in their system as much as possible, make us seem like we are legally Australian.  It is a continuation of 1967 when Aboriginal peoples got the vote.

It might sound a bit silly – to think that these little things matter – but perspective does matter. Think about what it looks like from an outsiders perspective. Aboriginal people are voting, have their flag in Australian law, participating in society, sending their kids to Public schools, traveling on Australian passports, using public hospitals/medicare, paying taxes – even though many simultaneously keep their cultural ties, customs and laws. We are acquiring citizenship by Australia by a process of “fake it until you make it”. What is not obvious to an outsider is that Aboriginal people don’t have a choice – it is assimilate or die/live in poverty. There is a carrot/stick approach at play.

Should the 1999 referendum have passed, when the Crown hands back the reigns she hands it to a seemingly happily united democratic country. A new independent country that inherits it’s Sovereignty through the Aboriginal peoples, who would in turn gain full Australian citizenship through statute buried in the Republic fine-print during Crown hand-back. Hopefully, the Aboriginal peoples wouldn’t catch on to what happened to their Sovereignty, they all move to the city and are accepted by the mainstream who have been educated by “Reconciliation” to play nice and not be racist.

But the referendum failed. The Australian public rightly sensed it as being pushed from the Government onto them, they saw it as a power grab from politicians, and the public didn’t see much in it for them.

When a referendum fails, a government can’t just keep holding the same referendum over and over again until they get the answer they want (although some try!). They have to wait another 10-20 years for things to settle down, and to give time to enact “awareness” campaigns. After the failure in 1999, a new planning phase began for a retry. They didn’t waste any time.

The Uluru Statement is not what you think

~ Jessica Savage ~ 19 Comments

Before I get to the guts of the matter, I want to point out a few, seemingly unrelated points, but they are important background. If you are really pressed for time, or want some convincing first that this is worth reading, just scroll down to the 3rd and 4th diagrams.

I recommend you read carefully, scratch your head in confusion, don’t push yourself too hard trying to understand, but instead consider saving or bookmarking this text and coming back in a week and reading it again.  There has been a systematic 20-year campaign constructing a house of mirrors and deception, nothing is what it seems. It takes time for the brain to untangle, one read is not enough for this information to sink in.

Importance of the Flag

The Aboriginal Flag has been proudly adopted by mob, has been used as a symbol of our united struggle, and has flown in protests and also from the Aboriginal Sovereign Embassy. It is our flag, the people have adopted it wholeheartedly.

The Torres Strait Islander flag is newer, and has been treated the same way by the Australian Govt. There are a few differences, but for simplicity I will restrict discussion mostly to the Aboriginal flag only (no disrespect intended for Torres Strait Islanders).

Keep in mind here, a flag is a symbol of a Nation. By Aboriginal peoples adopting the flag, it could be construed that they are identifying themselves as one Nation, under one law – as opposed to being many, separate, self-determining Nations. Our adoption of the Aboriginal flag (which is a symbol of our unity in our fight) is being exploited which I will discuss later.

The Aboriginal Flag and the Torres Strait Islander flag were entered into the Flags Act by proclamation in 1995. They are commonly flown alongside the State flags and the Australian flag on Government buildings.

Why does the Government fly these flags, while simultaneously denying recognition of Aboriginal Sovereignty?

I believe it is because they are preparing for the Aboriginal Nation and the Torres Strait Islander Nation to join their Federation of Australia.

What is Federalism

Federalism is a form of Treaty, and can involve Sovereign parties.

From wikipedia…

The terms ‘federalism’ and ‘confederalism’ both have a root in the Latin word foedus, meaning “treaty, pact or covenant.” 

I was not at the Constitutional reform dialogs, but I am guessing they would have played a video about the history of the Constitution, and how Australia is a Federation. And delegates would have been sitting there like bored school kids, wondering when they going to get on with it and start talking Treaty business, probably not realising the significance of the video content.

The Referendum Council put this information about Federalism in a video so that later, they can prove prior and informed consent, because they explained to everyone what Federalism is. The video will be used as evidence later on when we realise we have been duped.

Federalism is a power sharing agreement. It has a central (federal) government and a number of regional governments. The regional governments are subordinate to the federal government (eg. Australia the federal govt can override the member States). These subordinate ‘regional’ governments do not necessarily need a land base, (side note I think the federal govt might need a land base, might be why they made the A.C.T.?).

federation

In contrast, a confederation is similar, except the federal government is subordinate to the regional governments (eg. the European Union, the member States have Sovereignty. Canada is also a Confederation).

confederation

The important things to note are;

  • that a Federation is a power-sharing pool;
  • the powers sharing details are set out in the Constitution/s;
  • and that in a Federation, the states are subordinate to the Federal Government.

Also note that Australia is a constitutional monarchy, the authority from the federal government and each state comes from the Crown. That’s why there are titles of Queen of Australia, Queen of New South Wales, Queen of Queensland etc., and corresponding  Governor-General and Governors of each state who represent the Crown.

federationBefore

Uluru Statement is a request to become a new State

It is a request to join in, to “take our rightful place”. A request to have a Voice. Sometimes they go bold – Kevin Rudd in a tweet called it “a request for shared Sovereignty”.  Is it just really just another toothless advisory board as some say?

 

federationAfter

No, it is far more dangerous. Remember – a Federation is a power-sharing pool. The Uluru Statement is a request for Federation membership. It is a request to share whatever powers we have (Sovereign powers!) with the Federation. In this power sharing agreement, we accept a consultative voice and Australian citizenship in exchange for our Sovereignty!

The Voice will be a seventh state, not a third chamber.

Enshrinement of the voice is also a Treaty,  it is comparable to the reunification of West Germany with East Germany.  Makarrata is not a Treaty,  it is a post-Treaty negotiation framework.

And worse, they may have already stitched up a case that we already said ‘yes’ to this skulduggery.

Earlier I pointed out that because we are under one Aboriginal flag, that it could be construed that we are under one law (and also a second law and flag for Torres Strait Islanders). One nation, one Aboriginal State that can become a member of the Federation. If we are under one law, then Australia can argue that does not need to consult with each of our original sovereign nations, but merely with the “Aboriginal Nation”. Also, (as far as I know) we don’t have a written constitution that goes with the flag, so they could say we have not made it clear where our power lies. This can be manipulated by them going to their own hand-picked leaders, Government funded bodies, Land Councils etc. They will argue they didn’t have to choose representatives for every Sovereign Nation at the Yulara Convention, because we are under one Aboriginal flag.

The Government have been flying our flag on their buildings next to the other flags of the Federation, and we never objected. Flying the flags in such a manner is a declaration of intent. We never objected to this declaration. They can use this to later argue that we consented to our flag being used in this manner, and perhaps that we consent to become a State of the Federation.

At the Referendum Council dialogues they showed a video explaining the federal structure of Australia. So consider yourself informed.

The Uluru Statement itself was a document of request to join the Federation, or consent.

It’s time to educate about this grave danger, consider getting our flags off their buildings, get together to write an Emergency Continental Aboriginal Confederate Constitution based on the Continental law to pair with the flag, to preempt the Voice proposal and to protect each Sovereign nations inherent right to choose their own path, assert our individual Nations’ identities to deny them a case of consent. Say no to flying the flag on the Harbour Bridge next to the Australian flag – it sends the wrong message.

They refuse to release draft wording of the Voice, because we would catch on immediately merely by knowing which section the changes would fall under.

Also, note this on Page 37 of Referendum council report 2017…

“The Council recommends an extra-constitutional statement of recognition. “

I believe this “extra-constitutional statement” is actually the Constitution of the new Aboriginal Torres Strait Islander State. It needs to be written first before joining the Federation.

 

Was Recognise designed to fail?

Consider the possibility that Recognise was a psyop (psychological operation) to make everyone think so much about recognition, that they are blinded as to the true goal that has always been Federalism.  In Psychology and sales negotiation this is called Anchoring. You think of Uluru Statement as being different from Recognise, a “substantive recognition” because they keep repeating that phrase, and you hear this on the back of the huge multi-year “Recognise” campaign. You are anchored; that is you are framing post-Yulara proposals in comparison to recognise/recognition campaigns and committees and such.

recognition… recognise… recognition… substantive recognition… constitutional recognition… etc.

5 years of brainwashing. The Australian public are being brainwashed by repetition. It struck me as odd that even today they keep referencing “recognition”, when they supposedly have so many problems with that particular word.

It is to distract you from seeing the truth.

Some noted the lack of Aboriginal Flags at Recognise rallies. It was openly supported by banks and mining companies. It looked too flashy and expensive to be grassroots. The “bad look” was no failure, they are not stupid. It was by design. They don’t spend millions of dollars on consultants to make campaigns so transparently flawed.

Now you are anchored with the overtly fake Recognise campaign, along comes post-Yulara “Voice Treaty Truth”. Low-key, trying hard to emulate a grassroots movement, yet campaigners have no problem flying all around the country and getting spots on Q&A. Seems an improvement over Recognise.

The Recognise campaign’s real purpose was to make the Voice proposal look good, and to disorient and anchor certain preconceptions that will make it difficult to see the Voice for what it really is – a seventh state.

“Recognise” was also not what it seems

There was a lot of concern during the Recognise campaign amongst the grassroots Aboriginal community. But I think much of this was based on deliberate misinformation.

One of the biggest concerns about Recognise was that the amendments to the race power could have immediate adverse affects on Aboriginal Sovereignty. This argument is presented in the following table which was doing rounds on social media at the time;

recogniseTable.png

But changing the race power is inconsequential, because the Crown does not have the authority to pass laws for Aboriginal peoples. The Crown can only get this authority via consent in the form of an International agreement/Treaty.

Consider this: Australia can change it’s constitution to claim it has a power to pass laws for Mexican citizens, but this would have no effect because the Crown – the source of authority – has no authority over Mexican citizens*.  The claim of power would conflict with international law.  Whomever currently has the power to make laws for Mexican citizens (presumably the Mexican Government) would still need to make a formal agreement to transfer that authority,  a Treaty.

* As long as the Mexican citizen is in Mexican Territory doing their thing under Mexican law. Mexican tourists in Australia would be under a visa.

The exact same applies for Aboriginal citizens of their respective nations as it would for Mexican citizens. Treaty is still required. There is no getting around this.

Planting this false information during Recognise was a deliberate tactic, so that in the next, post-Yulara iteration, they can propose leaving the race power unchanged. This is intended to disarm the Indigenous community who think “oh look it must be ok now, because they are not making a head of power that directly targets us and can override our consent”.

Section 51 xxxii is merely an itemisation of a power. Source of authority, “in the name of”, is what matters. The Crown simply has no power to pass laws for citizens of Aboriginal Nations, itemising a power without authority to back it up makes a dead letter.

The 1967 referendum also changed nothing for “the Aboriginal race”, it merely modified a itemisation of a dead power, dead because it still has no authority behind it. It only ‘works’ because Australia denies Aboriginal Sovereignty.

What was the real danger of “Recognise”?

The true danger of “recognition” was the modification to the preamble.

They often say something along the lines of “adding or modifying a Constitutional preamble has no legislative effect”, which is true. But that doesn’t mean changing it is inconsequential. What they don’t tell you is that it would change what happens on separation from the monarchy to form a republic.

On the formation of a republic, the Crown will have to hand-back to the rightful Sovereigns.  If Aboriginal and Torres Strait Islanders are mentioned in the Australian Constitution preamble and have not written their own Aboriginal Constitution, the Australian Constitution is where the hand-back will go. If Aboriginal and Torres Strait Islanders have joined into the Federation via the Voice to Parliament – the “Aboriginal Constitution” has been written for them by stealth and locked in as a new, Aboriginal, landless State of the Federation.

The preamble matters. It declares the basis of power and ideals that the whole Constitution hangs on. Just look at preambles of different Constitutions around the world and you will see what I mean. Eg. the most famous, the USA – “We the People” is a declaration that the basis of authority lies in the People.

This is the reason why the states have quietly added recognition in their constitution preambles. They have to recognise the authority, the source of power to be able to receive and wield it later when it is ‘activated’.

Special Words and phrases that probably don’t mean what you think they mean

“Reconciliation”

Dictionary definitions of Reconciliation.

https://en.oxforddictionaries.com/definition/reconciliation

Reconciliation

NOUN

1. The restoration of friendly relations.

2. The action of making one view or belief compatible with another.

3. The action of making financial accounts consistent; harmonization.

Everyone thinks it’s definition 1, but it can’t be because there was never friendly relations to begin with. They could have called it “Conciliation” but they didn’t.

Definition 3 is a derivative of 2.

2, in other words, is to get the story straight. Australia is built on a tower of lies and they want to get their story consistent. This is the true meaning!

Referendum Council 2017 Weasel words

The Referendum Council formulated “Guiding Principles” against which they can evaluate various options. When you can see the grand scheme they are running, you can see these are formulated in order to push their own pre-chosen objective. One in particular deserves a special mention.

1. Does not diminish Aboriginal sovereignty and Torres Strait Islander sovereignty.

Diminish just means “to make less”. They are correct – Federalism, taking Aboriginal Sovereignty and sharing it with the Federation does not make it less. It doesn’t cede it either, which is another term they like to throw around when they say that the proposal wont cede Sovereignty. It is not ceding Sovereignty because Aboriginal people will still hold it through sharing.  To say “does not diminish” is technically correct but grossly and deliberately misleading.

contribute to a more unified and reconciled nation

This was not in the guiding principals, but from another section. This word sounds nice, but cynically, it just means they want us all unified so they can dominate us in our unity.

The past leads to the present…

If you trace back events to Mabo 2, you can see how they have been busily putting all the pieces in place ready for Aboriginal federation. Might talk about that in my next post.