BY DYLAN LINO
A momentous thing happened on 26 May 2017. Gathered together in the shadow of Uluru for an unprecedented National Constitutional Convention, over 200 Aboriginal and Torres Strait Islander delegates ‘coming from all points of the southern sky’ proclaimed the Uluru Statement from the Heart. Asserting First Nations’ ancient and enduring sovereignty, the Statement calls for a constitutionally enshrined First Nations Voice and a Makarrata Commission to oversee treaty negotiations and truth-telling. The Statement was the culmination of an intensive six-month deliberative process of First Nations Regional Dialogues around the country, themselves coming off almost a decade of mainstream political debate over how to achieve constitutional reform that would meaningfully ‘recognise’ Aboriginal and Torres Strait Islander peoples.
In this post, after explaining a little about what the Uluru Statement is and its significance for the politics of constitutional reform, I will address a particular criticism that has been levelled at the Statement’s vision of collective political autonomy for First Nations. The criticism is well-worn: that the recognition of Aboriginal and Torres Strait Islander peoples’ collective autonomy, in fracturing the unity of the body politic, is fundamentally at odds with Australia’s constitutional traditions.
The inconvenient truth for this line of argument is that our constitutional system is founded upon a fractured body politic, one in which multiple political communities are constitutionally recognised. It is called federalism. And it is one of Australia’s most deeply entrenched constitutional traditions. The Uluru Statement can be understood as a call for a form of federalism between First Nations and the Australian state. To read the Uluru Statement – with Makarrata (or treaty) at its centre – in federal terms is to recall the origins of federalism itself: the word’s Latin root, foedus, means treaty. In proposing forms of collective political empowerment for Australia’s first political communities, the Uluru Statement keeps faith with Australia’s federal constitutional tradition.
The Significance of Uluru: Reasserting Political Power and Principle
The Uluru Convention, and the First Nations Regional Dialogues that preceded it, represented the first opportunity for Aboriginal and Torres Strait Islander people to be meaningfully heard in the debate over constitutional reform. What the Uluru Convention wanted Australia to hear was the same thing Aboriginal and Torres Strait Islander people have been saying for a long time: that constitutional reform, if it is to be worth doing at all, must shift the status quo to restore collective political power and control to Aboriginal and Torres Strait Islander peoples themselves.
Declaring their ancestors ‘the first sovereign Nations of the Australian continent and its adjacent islands’, the Uluru Statement sought constitutional change to enable the ‘ancient sovereignty’ of Aboriginal and Torres Strait Islander peoples to ‘shine through in a fuller expression of Australia’s nationhood’. Such reform would address ‘the torment of our powerlessness’: the structural problem underpinning the terrible yet all-too-familiar statistics on Aboriginal and Torres Strait Islander people’s social and economic wellbeing. To make First Nations sovereignty tangible, the Uluru Statement demanded a First Nations Voice enshrined in the Constitution, as well as a Makarrata Commission to progress the negotiation of agreements or treaties between First Nations and Australian governments and to reveal the truth about Australia’s past.
Uluru was an emphatic rejection of much in the previous national debate over constitutional reform – a debate hitherto dominated not by matters of political power but by questions of political symbolism. According to the loudest voices in that debate, constitutional reform was largely about redeeming a tarnished national symbol, the Australian Constitution, from its discriminatory origins and embarrassing contemporary textual silence on Aboriginal and Torres Strait Islander peoples. By contrast, according to Uluru, constitutional reform is about reordering political power within the Australian state to better respect First Nations as self-determining peoples.
Uluru also reclaimed constitutional reform from the lawyers. Before Uluru, the recognition debate’s inescapable political dimensions had been partly occluded by a technical exercise, beloved of no one but constitutional scholars, that parsed the minutiae of constitutional provisions whose titles – s 25, s 51(xxvi), s 51A, s 116A – brandish their obscurity. Uluru revealed the constitutional recognition debate for what it is: not merely a technical legal exercise but first and foremost an issue of fundamental political principle. At the heart of the Uluru Statement is the principle of ‘a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination’. Uluru’s proposals for a First Nations Voice and a Makarrata Commission rightly start with this political principle rather than constitutional niceties or institutional specifics. Uluru reasserts the primacy of politics over legal technique.
Federalism as Treaty
As is to be expected in debates over fundamental political questions, the principle underpinning the Uluru Statement – Indigenous self-determination – and the Statement’s prescriptions for collective Indigenous autonomy have not gone uncontested. One of the most prominent lines of attack is that the proposals are incompatible with Australia’s liberal–democratic political and constitutional traditions.
This critique has long been issued, predominantly from the conservative side of politics, against proposals for collective Indigenous autonomy. For some, the whole project of constitutionally recognising Indigenous difference, even in a purely symbolic form, is impossible to reconcile with the ‘colour-blind’ ideology on which liberal citizenship must apparently be based. For others, while some public acknowledgement and accommodation of Indigenous difference may be warranted, Australian constitutional tradition cannot countenance reforms that would fracture the unity of the Australian body politic.
A major target on this front is the idea of a treaty between First Nations and the Australian state – an idea captured in the Uluru Statement’s call for a Makarrata Commission. This critique of treaty is succinctly captured in the words of former Prime Minister John Howard: ‘a united undivided nation does not make a treaty with itself’.
But these arguments from constitutional tradition against Indigenous collective autonomy are unduly narrow and selective: they ignore the reality that Australia’s constitutional arrangements are founded upon – and indeed celebrate – the fracturing of political unity through federalism. Broadly speaking, federalism involves combining self-rule for distinct political communities with shared rule across a common association of those political communities. Australia’s States and self-governing Territories are distinct political communities each of which enjoys forms of self-rule while also participating in the shared rule practised by Australia’s national institutions.
The idea of treaty – the target of so much conservative ire in the constitutional recognition debate – is actually foundational to federalism – the target of so much conservative admiration generally. The very etymological roots of federalism are to be found in the Latin word foedus, meaning treaty or agreement.
In its federal character, the Australian Constitution is a treaty between different political communities who agreed to unite in a single overarching association while maintaining their own autonomy and distinctness. Contrary to John Howard’s claim, Australia did in fact make a treaty with itself: it’s called the Australian Constitution. Treaty-making is precisely the task undertaken in the 1890s by the six Australian colonies in constructing a constitution for a new federal nation. In the process, those colonies, now States, were constitutionally recognised as self-determining political communities through arrangements that remain in place over a century later.
The Uluru Statement and Federalism
The Uluru Statement’s demands – for First Nations to be constitutionally recognised as self-determining peoples through an institutionalised voice and treaty-making – are federal in nature, and are fundamentally consistent with Australia’s constitutional traditions.
A First Nations Voice would provide Aboriginal and Torres Strait Islander peoples a greater say in the shared rule that governs Australia nationally. It would work on the same principle that affords the States and Territories a say in the Australian Senate, although (Barnaby Joyce will be relieved) it would not operate in the same way.
As for treaties, while their nature and content can vary, these might likewise set out terms of shared rule between First Nations and the Australian state – for instance, high-level principles governing the Indigenous–settler relationship – while also recognising forms of jurisdiction to advance self-rule for First Nations at the local level.
Just as the States were constitutionally recognised as self-governing communities under the original Constitution, the Uluru Statement makes clear that today Aboriginal and Torres Strait Islander peoples – the continent’s first political communities, whose age is in counted in millennia rather than decades – are seeking to be afforded proper recognition within Australia’s federal association. To be sure, the forms of recognition sought by First Nations are not identical to those enjoyed by the States and self-governing Territories. But they undoubtedly share the federal spirit that underpins the Australian constitutional order. The idea of treaty, at the heart of the Uluru Statement, is likewise foundational to federalism. Indigenous claims for constitutional recognition of their peoplehood are not alien demands. They are fundamentally aligned with Australia’s federal constitutional tradition.
Dylan Lino is a Lecturer at the University of Western Australia Law School and a Centre Associate of the Indigenous Law Centre (UNSW). He worked as a pro bono constitutional adviser at a number of the First Nations Regional Dialogues and the Uluru First Nations Convention.
Suggested citation: Dylan Lino ‘The Uluru Statement: Towards Federalism with First Nations‘ on AUSPUBLAW (13 June 2017) <https://auspublaw.org/2017/06/towards-federalism-with-first-nations/>