Fighting for recognition

Moana Jackson
We're gathered at the 2017 National Constitutional Convention coming from all points of the southern sky. Make the statement from the heart. 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 and memorial 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.

Glyn Davis
That was Dr Moana Jackson reading the Uluru Statement from the Heart.

I'm Glyn Davis and welcome to the Policy Shop, a place where we think about policy choices.

The right to self-determination and recognition feature prominently in debates surrounding Indigenous peoples in Australia and indeed around the world. And in this episode of the Policy Shop we're joined by two experts who will lead us through these ideas, consider questions about treaties versus constitutional recognition and ask how we might move beyond rhetoric on community engagement.

Dr Moana Jackson is an esteemed constitutional lawyer and highly regarded throughout Maoridom and mainstream New Zealand for his measured contributions on Maori people and the Treaty of Waitangi, sovereignty and Indigenous rights.

Moana last night delivered the 2018 Dungala Kaiela Oration in Shepparton, Victoria to an enrapt audience. Moana, welcome to the podcast.

Moana Jackson
Kia ora, thank you Glyn.

Glyn Davis
Shireen Morris is a constitutional lawyer and a McKenzie Postdoctoral Fellow in the Melbourne Law School. Before this she worked as a senior policy advisor and constitutional reform fellow at the Cape York Institute working with Noel Pearson. Welcome Shireen.

Shireen Morris
Thank you, Glyn.

Glyn Davis
Let's start with this core idea of self-determination and its meaning for you both. Moana how do you think about the right of Indigenous people to self-determination?

Moana Jackson
My view is shaped by two things really, the history of our people back in Aotearoa, New Zealand, to maintain their right to determine their own destiny. It's motivated the struggle of Maori people ever since the Treaty of Waitangi was signed in 1840.

It's shaped also by my involvement in the drafting of the United Nations Declaration on The Rights of Indigenous Peoples, where the literally thousands of Indigenous peoples who travelled to Geneva over 20 years to draft the Declaration were clear that if there was not a right of self-determination recognised as vesting in Indigenous peoples then no other human rights would have an effective meaning because they had to flow from that right of self-determination.

There was also a very clear view I think from all of the Indigenous delegates over those years that one effect of colonisation or one of the driving forces of colonisation was to deny the humanity of Indigenous peoples. The aim of the Declaration was to make a symbolic attempt to begin reclaiming the full humanity that had been denied for so long and the right of self-determination was fundamental to that idea of the fullness of our humanity as well.

Glyn Davis
Shireen, your understanding of self-determination?

Shireen Morris
Well at Cape York Institute Noel Pearson puts this in a way that is I think quite unique. Bringing together self-determination is often a concept talked about by progressives and conservatives tend to use the language of responsibility. But key in both the concepts I think is the idea of choice, individual and community choice and empowerment.

So Noel Pearson talks about the right to take responsibility which I think is the key to what we talk about when we talk about self-determination. That when Indigenous peoples are faced with development choices whether it's social and economic development or cultural development the right to have agency, exercise choice and be empowered, active decision makers in those decisions I think is fundamental.

Related to it I think is the long history of discrimination and oppression that Indigenous peoples have faced. As a dispossessed minority group in Australia where successive governments over time have made top down decisions in which Indigenous people aren't empowered to have a say in those decisions. In the past those decisions were often paternalistic and sort of the hard bigotry of racist control.

More recently often those policy decisions are with the best of intentions and yet still so often such decisions are made in a top down manner resulting in policies that aren’t as effective as they could be and are which often still described by Indigenous people as oppressive and unjust.

So how do you counteract that? Well we argue through empowerment, through self-determination, through the right to take responsibility.

Glyn Davis
Speaking on the UN Declaration on the Rights of Indigenous Peoples, Professor Megan Davis wrote and I quote, "for Indigenous peoples the right to self-determination is the cornerstone of the Declaration. Without state's acceptance of the right to self-determination the catalogue of rights protected cannot be effective."

Moana, a position very close to the one you've just articulated. Of course you were a central player through that process of drafting and achieving this Declaration. Could you tell us a little about how it came into being?

Moana Jackson
Well, we like back in Aotearoa - New Zealand - to trace its beginnings to 1923 when a group of our leaders had heard about this new institution at the time called the League of Nations which was based in Geneva. So they decided to travel there to see if that was a place where our grievances could be heard, our voice could be heard and they were denied admission.

Then 50 years later in 1973 the United Nations which had replaced the League of Nations based its human rights division in Geneva. A group of Indigenous peoples mainly from North and South America travelled to Geneva for the same reason that our old people had gone there 50 years earlier, to see if there was a place where our voice could be heard.

As a result of that visit and subsequent visits the United Nations responded by setting up a working group on the rights of Indigenous peoples. At the first meeting it was decided by a large group of Indigenous peoples from around the world that one of the functions of the working group should be to draft a Declaration which, as I said, would be a minimum set of human rights standards. That began the long process of 20 years to draft the Declaration.

Glyn Davis
Which was pronounced when?

Moana Jackson
It went to the General Assembly which was the next stage in the Declaration process in the United Nations in 2007. There was a huge vote in support of the Declaration. Some states abstained as states tend to do. But only four states voted against the Declaration and those four states were Australia, New Zealand, Canada and the United States.

So that was disappointing for us but in light of the history of those four states during the drafting process, it was not necessarily surprising unfortunately.

Glyn Davis
Shireen as we've just heard some states opposed the Declaration and they argued on grounds basically of state sovereignty and territorial integrity that they were going to oppose it. Can you tell us something about that tension?

Shireen Morris
Well I think it's an ongoing tension and we see it coming up in the debates around the Uluru Statement from the Heart now. But you know eventually Australia signed it. I think it was in 2009 or - but disappointingly, since then hasn't taken practical policy action to implement the principles of the Declaration.

I think that's where what the Uluru Statement offers is such a massive opportunity. When you look through the clauses of the Declaration it's interesting to note how the different levels and the nuances of self-determination sort of come out.

There's one clause talking about the importance of Indigenous participation in political decisions made about their rights and also the importance of consultation. So fair and genuine consultation and then stronger concepts like free prior and informed consent.

But the key thing that the Uluru Statement proposes and the theme inherent in each of those sort of principles is this idea of having a fair say. You know having a fair say when the state makes political decisions about Indigenous rights. So that's infused there in this concept.

Glyn when you talk about the tension between on the one hand the claims of First Nation sovereignty which perhaps the strongest end of the spectrum is encapsulated by the notion of a veto, a strong veto over parliamentary laws made about Indigenous rights. But the softer, more middle ground conceptions are also there in the Declaration. Participation, consultation, you know not as strong as a veto but still very important ways of giving effect to the principles of the Declaration.

That's what the Uluru Statement offers. The Referendum Council makes clear they're not asking for a veto. What's asked for is a voice, constitutionally guaranteed voice, in the political decisions made about Indigenous rights. Australia I think should see this as an opportunity to begin some very concrete implementation of some of the principles of the Declaration.

Glyn Davis
So I'd like to move then on that direction, from the UN Declaration to this idea of constitutional recognition, a way of formalising and promoting Indigenous self-determination within a national constitution. Moana what does constitutional recognition mean to you and particularly in a nation that doesn't have a written constitution?

Moana Jackson
At home we don't talk about constitutional recognition which perhaps goes to the point I mentioned in the oration last night that self-determination by its very nature means that people in one place may exercise their self-determination in a quite different way to people somewhere else.

Six years ago I was asked back home in New Zealand to chair a constitutional working group and the task was not to seek constitutional recognition but to come up with ideas which would frame a new constitution based on the Treaty of Waitangi.

So the brief itself went further than requiring a voice for Maori people in the system which was established through colonisation and asked the country to be daring enough to imagine something different, which gave effect to the relationship that was envisaged in the Treaty of Waitangi in 1840, which the Waitangi Tribunal, which is the prime institutional arbiter of the Treaty at home, defined as recognising distinct constitutional spheres of influence.

That there would be a Crown sphere of influence, a Maori sphere of influence, constitutionally joined if you like by what we in our report called a relational sphere where the Treaty parties would come together to discuss matters of common interest. That is a far-reaching constitutional challenge I think that we set a goal in our report of 2040 which will be 200 years since the signing of the Treaty, where we would hope for some process of treaty based constitutional change.

Glyn Davis
You reminded us in the lecture last night that your clan did not sign the Treaty of Waitangi.

Moana Jackson
Yes, we did not. It's a story I love telling. The person with the mandate for our community to sign the Treaty was a woman whose name was Hanaoka and when she stepped forward to sign the Treaty she was told by the Crown officials that women can't sign treaties. Which our people probably found strange because we knew the Treaty was with a woman called Queen Victoria.

But our community was then faced with a choice, either to be self-determining and say if she can't sign we will go home. Or they could surrender their self-determination and say well give us a minute, we'll find a man to sign and to my everlasting pride really they chose the first option and we we went home and didn't sign.

Glyn Davis
Shireen, what is the status of recognition of Indigenous Australians in Australia's current constitution?

Shireen Morris
Well it's interesting. There's I would say no positive recognition. When we think about what the 1967 referendum achieved, prior to that point there were explicit exclusions of Aboriginal people in the constitution. The 1967 referendum removed those exclusions, so it took out the exclusion of Aboriginal people from the race power, thereby conferring on the Commonwealth the power to make laws with respect to Indigenous people and Indigenous rights.

It also removed the clause that prevented Indigenous people from being counted in the census for the purposes of voting. So they were important reforms particularly the reform to give Commonwealth the power to make laws about Indigenous people. Eventually that enabled laws like the Native Title Act and Indigenous Heritage Protection Acts and so on.

Now the problem is what the 1967 referendum didn't implement was any positive recognition or positive rules to ensure fair treatment. So what the Hindmarsh Island Bridge case in the High Court showed was that that power, that's only ever been used with respect to Indigenous affairs, can probably be used for positive or adverse laws. So that was the weakness of the 1967 result was that it didn't guarantee an equal protection or racial non-discrimination clause.

It was funny that at the time in the lead-up to 1967 this Liberal MP Billy Wentworth he actually proposed a racial non-discrimination clause. But the government rejected that idea. They said no we don't want to transfer power to the High Court to strike down parliament's laws. We enjoy our strong parliamentary supremacy; we don't want to give that up. So that clause wasn't included in the referendum proposal at that time.

Now in 2012 when the expert panel proposed its version of a racial non-discrimination clause it was like history was repeating itself because again we got these objections on the basis of parliamentary supremacy. This is a one clause bill of rights.

Glyn Davis
Moana in the book Weeping Waters you're quoted as saying that the Bolivian Constitution which was adopted in 2009 is - and I'm quoting you - the nearest thing in the world to a constitution that has come from Indigenous principles. Can you tell us a bit about why this captured your imagination and attention?

Moana Jackson
Well any Treaty relationship and this is what makes the situation at home quite distinct I think, requires a recognition of the uniqueness of the parties to their Treaty relationship. So you can't have a constitutional relationship then unless those Indigenous or in our case Maori values and principles underpin the constitution itself. So when we were in the process of writing the constitutional report and we held 252 meetings around the countries, met with literally thousands of Maori people, a lot of the conversation wasn't about a constitutional model.

The conversation was about what are the values that we would want to underpin a Treaty based way of governing. Those values came from our history and traditions, recognised the place of those who had come to our land after 1840, recognised the primacy of the land and so on. That has been when you trace back the history of our people's discussions on constitutional issues, that has been the bottom line if you like ever since 1840 that, however the Treaty is interpreted in constitutional terms, it requires that values base.

For us that base is what comes from the land and our stories in the land and even the stories which people who've come since 1840 have placed in the land as well.

Glyn Davis
So we've moved from constitutional recognition to this core question of Treaties. Shireen, Australia is the only Commonwealth country that lacks a Treaty with its Indigenous people. Why is this so?

Shireen Morris
That's such a difficult and big question. People often say to me I don't know if I agree or not that it was partly because of the disparate nature of the country. As we know John Batman tried to negotiate what might have been a Treaty or some kind of agreement. The Crown repudiated that agreement and didn't recognise it as being valid. So I think it's a whole lot of factors probably to do with the fundamental power imbalance.

I think the lack of a Treaty, the lack of agreed founding principles between the parties has really meant that in a lot of ways the Indigenous people in Australia are in an even more vulnerable position than the Maori people in New Zealand. Because there's nothing they can point back to to try and hold the Crown accountable to its past promises. Although I often sort of think about the royal instructions as a moral injunction that can be pointed back to.

You know when Arthur Phillip came and he was required to treat the natives with amity and kindness and Cook before him was required to obtain the consent of the natives and never did. I think those are things we can point back to in terms of a unilateral sort of promise or injunction but not one that's been mutually agreed.

When I worked at Cape York Institute, in 2014 we actually took a trip to New Zealand and were so inspired by the ways Maori people have managed to implement, together with the Crown, institutional mechanisms for their ongoing recognition.

That wasn't only the Treaty of 1840, it was the fact that there are living and breathing processes that continue day in, day out, to ensure Maori people a voice and to ensure there is an active two-way relationship. Including the Maori reserved seats in parliament, including the Maori Council, including the Maori Language Commission and the fact that Maori is an official language of New Zealand. So it's not only I think the Treaty that Australia's missing, we're missing a voice for the first nations, we're missing the proper cultural and language recognition.

So I think we've got a heap to learn from New Zealand in that respect.

Glyn Davis
Yet Moana when you tell the story of that 1923 delegation to Geneva it's triggered by concerns that the Treaty of Waitangi is not being adhered to and its promises are not being fulfilled. There are Aboriginal voices in Australia, Ghillar Michael Anderson for example, arguing that Indigenous Australia should be careful about a Treaty because he points to unhappiness in native Americans, Canadians and Maori about their Treaty processes.

He says that while Treaties contain certain rights the colonising state interprets the Treaty in ways that don't work for Indigenous people. Do you share these reservations?

Moana Jackson
Well I often quote the words of Sitting Bull, the Lakota Sioux leader in the 19th century when he commented that the United States Government and prior to that the British Government had signed hundreds of Treaties with native American nations and the only thing they had in common was that they broke all of them. Treaties depend on the honour of the parties and colonising states have been inherently dishonourable.

So the struggle of our people at home since 1840 has been really as I said earlier just to hold the Crown to account for the solemn promises it made and to find a constitutional framework if you like within which those promises can be given meaning. I like to think that because we have the Treaty, even though we have not yet got to the point where the Crown has agreed to the final honouring and looking at a different constitutional relationship, the Treaty has been able to be used to hold the Crown to account in quite specific cases.

But the Crown is very wary of taking that next step and saying well we will actually recognise the Maori as distinct Treaty parties in constitutional terms. That goes to the heart of the monist sovereign state and so on. Those are difficult issues for a colonising government to address. But for us at home that becomes the ultimate honouring of the Treaty. So I always say we're on a Treaty journey and if we could get near to the end of that journey in 2040 then my grandchildren will inhabit a different country I think.

Glyn Davis
Shireen mentioned along the way the New Zealand institution of designated Maori seats in the parliament and this has been important since 1867. It means there has almost always been at least one Maori voice in the New Zealand cabinet for example.

From your perspective how do you evaluate this experiment or this model of designated seats? Has it made a different for Maori and has it affected the way the New Zealand political entity operates?

Moana Jackson
I think it's important to contextual the creation of the four Maori seats. It's become mythologised or what I call 'myth'taken. It's used as a recognition of how honourable and wonderful the Crown is in giving the natives four seats.

But the franchise in 1867 was based on male property ownership and most property in the country at that time was owned by male Maori men. So if there had been a universal property-based franchise Maori would have been the majority in terms of a vote.

So to limit that possibility, to ensure the hegemony of the colonising state, they limited Maori to those four seats and therefore confined Maori to a minority position constitutionally. However I think that Maori members of parliament many of whom have been wise and good leaders of our people, have within those constraints even sought to protect the constitutional place of Maori.

But often when the crunch comes that is submerged in the greater will of the colonising state. We've seen that most recently with legislation to take the foreshore and sea bed lands off Maori and so on where the wishes of all of the Maori MPs were simply ignored. So I think it's important to understand the context to debunk the myth and then look at the practicalities of it.

Glyn Davis
Shireen, you’ve mentioned also the Uluru Statement from the Heart, the most recent development I think in recognition of Indigenous Australians. Three hundred Aboriginal and Torres Strait Islander people and their supporters and advisors gathered at Uluru in May 2017 to sign the statement proposing constitutional reform. You had an involvement in that and it's discussed in your new book Radical Heart. Could you tell us a bit about the Uluru Statement and your assessment of the arguments it puts forward?

Shireen Morris
Yeah so the Uluru Statement was really the culmination of 13 regional First Nations' dialogues held all around the country run by the Referendum Council last year. Dialogues were made up of Indigenous delegates that included traditional owners, individuals in the community and local organisations. Then those delegates chose from amongst themselves the delegates who then went to the Uluru Constitutional Convention.

It was really I think what they came out with an extraordinary well, firstly, piece of poetry. But in terms of the concrete reform proposals that were put forward the first one as I mentioned a First Nations' voice enshrined in the constitution. The second one is a Makarrata Commission, so a Treaty making commission which could be set up in legislation. But kind of I imagine that as being something akin to a Waitangi Tribunal, an umpire type body that could facilitate and supervise agreement making and Treaty making between the First Nations and the Australian state.

Just going Moana to what you were talking about and you phrased it in a nearly nice way that kind of conceptualised constitutional realisation of this Treaty relationship as being the ultimate goal and a very ambitious goal that's going to take some time. But in a way your characterisation showed I think speaking to Glyn's previous question that Treaties are not the be all and end all answer.

I think the Uluru Statement reforms show this as well, that it's not just about asking for a Treaty because no one solution is going to be the silver bullet that fixes this imbalanced power relationship. As the history around the world shows, Treaty promises do get breached because the Crown is so much more powerful in this constitutional relationship.

That's why other measures are required and particularly constitutional measures. This is an important point to understand because only the constitution legally and politically holds the parliament to account. Only the constitution. And where Treaty promises can get breached by the much more powerful Crown, if a promise is embedded in the constitution then the Crown is sort of held to account in its power.

So that's why it makes so much sense to me that Moana you talk about the constitutional entrenchment being the ultimate goal. That's where I think what Uluru asked for was so strategically clever because it asked for a constitutional enshrined voice because they don't want the voice to get struck down like ATSIC has been struck down in the past. Secondly because as a matter of practicality, as the Victorian situation now shows, you need an institutional voice, a representative structure of some sort, that can then go and negotiate the Treaty.

So in Victoria currently they've passed legislation to progress the Treaty issue, but the first thing they've done is implement a First Nations' voice for Victoria. So then that institutional structure can then go ahead engage with the parliament and negotiate Treaties.

Glyn Davis
Given though that the Uluru proposal for a constitutionally enshrined Indigenous voice has been rejected by the Prime Minister, what do you see as the future for the Uluru Statement.

Shireen Morris
That was a heartbreaking moment in October last year for so many Australians, Indigenous and non-Indigenous I think. But I really think there's still hope and there's currently a joint select committee and the Uluru Statement is part of its terms of reference. Which means the Prime Minister's rejection was not the last word and, interestingly, the two co-chairs of the committee are Patrick Dodson, the father of reconciliation who's so experienced in these issues. But the other co-chair is Julian Leeser in the Liberal Party.

A staunch constitutional conservative who is one of the co-designers of the constitutional voice proposal, who worked with Cape York Institute back in 2014. So he's an on the record supporter. So I think there's a huge opportunity if and only if Australians stand up and support what the First Nations have asked for and hold the Turnbull Government to account on this.

Glyn Davis
I'd just like to move briefly from constitutional questions to public policy questions. Certainly for a successive Australian Government and in many other nations Indigenous policy can be a litany of disappointment, a place where big plans are announced but rarely achieved in practice. Moana you've pointed to some examples of interesting policy developments where this isn't necessarily the case. An example you gave is the Family Health Initiative. I'm going to have to get your advice on how to pronounce it. Whānau Ora?

Moana Jackson
Whānau Ora.

Glyn Davis
Can you tell us a bit about this program and how it draws on self-determination?

Moana Jackson
One of the best descriptions I've heard of the need for what became Whānau Ora was that often when a Maori family or group of families was in strife they would be hit by what was called the Toyota syndrome. That is five Toyotas from five different government departments would drive up to solve their problems.

The motivation if you like behind Whānau Ora was to take the Toyotas out of the drive-way and empower the communities to work together to solve the problems. The Crown in a sense would be the support actor rather than the driver.

So as a result of Whānau Ora there are now a number of different initiatives crafted differently by people say in the north to people in the south because the needs are different. But shaped by common problems of poverty and dispossession and so on. What is happening I think is what our people who proposed the idea hoped would happen.

That in the end it's a bit like what Shireen was saying about responsibility, that when people are given the responsibility to determine their own destiny, to find solutions to problems that beset them, then people find the solutions and they're not imposed by someone else. It's a tenuous policy position because the funding is still held by the Crown and that's the next step in the debate I think, is how the necessary resourcing can be transferred to similar independent bodies.

That will be a difficult and fraught debate I think. But I think Whānau Ora represents an important break-through.

If I can just mention briefly the current research I'm doing on why so many Maori people are incarcerated a problem which I know is pressing and vexing here in Australia as well. At one of the meetings we had one of our elders sat there through three hours of discussion and then at the end just stood up and said the solution is really simple. Give our people back and in a sense that's what Whānau Ora is about.

Let us take our people back, let us care for our people and most importantly trust us to do that.

Glyn Davis
So it's a great pleasure to thank my guests today. Moana Jackson, constitutional reformer, legal philosopher who delivered this year's Dungala Kaiela Oration. Thank you, Moana, for joining as on the podcast.

Moana Jackson
Kia ora Glyn.

Glyn Davis
And Shireen Morris who's the author of Radical Heart and a McKenzie Postdoctoral Fellow at the University of Melbourne Law School. Shireen thank you.

Shireen Morris
Thank you Glyn.

Glyn Davis
Thank you for listening to The Policy Shop.

Voiceover
This episode of The Policy Shop was produced by Ruby Schwartz with audio engineering by Gavin Nebauer at the Horwood Recording Studio at the University of Melbourne.

The Policy Shop is produced under Creative Commons, copyright the University of Melbourne, 2018.