Dani Larkin provides the first post in our book forum on Dylan Lino’s Constitutional Recognition: First Peoples and the Australian Settler State. To see all posts, please click here. Click through for a post by the Hon Robert French AC, as well as Dylan Lino’s reply.

BY DANI LARKIN

Dylan Lino’s book ‘Constitutional Recognition: First Peoples and the Australian Settler State’ provides an outstanding historical and theoretical account of ‘constitutional recognition’ and what it means for the first peoples of Australia.

This post will describe and discuss Dylan’s book under three broad headings guided by the structure of the book itself. Accordingly, the post will include discussion of Dylan’s historical overview of Indigenous recognition in Australia, its conceptualisation and constitutionalisation in terms of what it means and represents, and finally, the incompleteness and ongoing nature of Indigenous recognition, including discussion of racial discrimination laws and Indigenous peoplehood.

A Historical Overview of Indigenous Recognition

The first chapter of the book provides a comprehensive, detailed account of Australian legal and political history in context. The account is guided by the advances and advocacy that have, to date, underpinned the content of debates and activism around first peoples’ ‘constitutional recognition’ in Australia.

Dylan highlights the key factors of Indigenous peoplehood politics in Australia which surround sovereignty, self-determination and treaty discussions and advancements from 1979 to 1988. When Dylan speaks of ‘Indigenous peoplehood’ he refers to the demands of Aboriginal and Torres Strait Islander people to be recognised as culturally autonomous peoples. Accordingly, the terminology of peoplehood in that context extends far beyond mere constitutional recognition within a settler state and instead also includes international recognition.

Dylan’s relaying of those historical events, as well as his acknowledgment of precedents established in Canada, New Zealand and the United States, show achievable comparative legal outcomes first peoples of Australia are guided by. The acknowledgment of our shared history and comparative measures that might work in Australia are, from an Indigenous perspective, fundamental. They speak to the longevity of Indigenous cultural identity, and our resilience as first peoples which has been maintained against all odds against our historical and ongoing oppression and invisibility within the Australian Constitution.

Dylan does a fantastic job unpacking key events that have contributed to the progression and regression of contemporary constitutional proposals and debates relating to Indigenous recognition in Australia. The detailed account of constitutional politics surrounding the Expert Panel’s work behind calls for treaty, a Truth-Telling commission and a Voice to Parliament which underpin the Uluru Statement from the Heart provide the reader with an articulation of the present discourse surrounding Indigenous citizenship and recognition in Australia.

Conceptualising Constitutional Recognition and Constitutionalising Indigenous Recognition

When Dylan discusses conceptualising constitutional recognition, he rightly identifies that typically in Australia, consideration of theories that underpin Indigenous constitutional recognition debates has been limited. Although the more pressing need surrounding constitutional reform proposals concerns political persuasion and strategy, in order to better understand the barriers generated by the societal and political climate these reform proposals are reliant on for their success, those theories must be further considered.

Dylan draws on Canadian political theorists, including Charles Taylor on the politics of recognition, and James Tully, to explain what counts as recognition in consideration of historical, political and theoretical contexts. Dylan also considers the Canada-based Indigenous political theorist Glen Coulthard who critiques forms of Indigenous recognition enacted by the settler state and instead favours pathways towards an Indigenous resurgence guided by self-determination and sovereignty. However, Dylan maintains that although Coulthard provides a worthy argument, it does not escape the need for forms of settler recognition – be it constitutional or international. In my opinion the pathway towards reconciliation and destabilising the colonial project involves all forms of recognition. This is truly what a political movement requires for it to be successful in terms of empowering the culturally oppressed. Accordingly, a one size fits all approach to Indigenous recognition issues also does not take into consideration the differing cultural identities and perspectives Aboriginal and Torres Strait Islander people have.

In examining the theoretical perspectives of Canadian political theorists, Dylan shows how the discourse surrounding identity politics of Indigenous Australians can further inform what should and can count as constitutional recognition for Indigenous Australians. Dylan identifies that identity politics calls for reform of institutions, practices and norms to meet the needs of particular groups who, as I have identified before, may also share differing views as to how they wish to be treated and recognised.  He articulates that difference-blind institutions can fail to acknowledge those differences and how diverse, multifaceted and transformative identities can be. Thus, a singular, definitive, final form of constitutional recognition can be challenging if a State is to truly recognise and respect the distinctiveness of those identities and ensure that assimilation to majority or dominant cultural norms is no longer the price of equal respect.

In terms of constitutionalising Indigenous recognition, Dylan begins by making a very important observation of a disjuncture that has emerged within contemporary Australian politics surrounding Indigenous recognition. On one hand, there are calls for constitutional recognition and on the other, there are calls for treaty-making.

From there Dylan rightly identifies previous flaws in interpreting constitutional recognition as purely just recognition that is written and formalised into a ‘big-C’ Constitution. This is a very narrow approach that, as Dylan argues, should be substituted with a broader, more functional approach to include ‘small-c’ constitutional norms and instruments that are also of substantial importance to Indigenous recognition. Dylan suggests that both written constitutions and ‘small-c’ constitutional norms must be considered together when contemplating all matters surrounding distribution of public power and Indigenous recognition. I agree with the overall point Dylan makes which is that recognition within a written constitutional provision is limiting in that it only provides purely formal and symbolic recognition as opposed to substantive recognition.

The comparison Dylan makes with New Zealand provides a great example of how a functional approach can be taken in Australia in place of current symbolic recognition efforts involving recognising Aboriginal and Torres Strait Islander people as first people within State and Territory constitutions. For instance, most State and Territory constitutions within Australia have Indigenous recognition sections (bar the recent Western Australian and Tasmanian provisions) that have disclaimers to deny those provisions any legal effect. As Dylan notes, the words are merely ceremonial and offer no substantive effect in terms of protecting Indigenous cultural identity and their decision-making power as first peoples. However, if we look to the New Zealand experience, it is significantly different. Māori cultural identity and decision-making powers are recognised within the Treaty of Waitangi 1840 (the Treaty) which is widely regarded as a founding document for the New Zealand polity.

The broad wording within each of the three articles of the Treaty seeks to protect Māori peoplehood and citizenship rights. In turn, the substantive effect of the Treaty, which Dylan identifies, is that it reconciles the Crown’s exercise of its paramount constitutional authority to pass legislation with recognition and respect to the citizenship rights and cultural identity of its Treaty partners. ‘Constitutional recognition’ of Māori, in that respect, is in the overall effect of the wording contained within the Treaty that forms the constitutional behaviour and partnership relationship the New Zealand government has with Māori on behalf of the Crown.

The Incompleteness of Indigenous Recognition, Racial Discrimination and Indigenous Peoplehood

I agree with Dylan when he states that constitutional recognition of Indigenous Australians should not be viewed as a once and for all endpoint. This perception is limiting and has been previously taken by a number of politicians and scholars, who are highly critical of the imperfections of the 1967 referendum amendments.

However, there is still much to learn from the 1967 referendum in contemporary constitutional recognition discussions. Dylan highlights key factors that contributed to the success of the 1967 referendum including its grassroots campaign, how the discussion surrounding constitutional reform and Indigenous rights was kept alive over many years, and the cross-party support that was given to it which in turn negated a ‘no’ campaign against it. He also notes the increasing calls to end racial discrimination from the international community.

All those factors are integral and must be considered post-Uluru given they provide us with real practical examples and lessons to be learned from and implemented in current campaigning efforts with this era’s advocacy for Indigenous constitutional recognition. I agree with Dylan when he argues that although there remains a sense of ‘incompleteness’ when it comes to Indigenous constitutional recognition since the 1967 referendum, the ‘incompleteness’ is almost unavoidable when one understands that identity can be multiple and distinct and our political climate is ever changing.

Further, Dylan identifies how the enactment of the Racial Discrimination Act 1975 (the RDA), like the 1967 Referendum, constitutionally recognised Aboriginal and Torres Strait Islander peoples’ citizenship. Dylan explains how the RDA redistributes public power by placing constraints on the Australian government’s capacity to enact racially discriminatory laws (RDA, section 10). He also explains how the RDA’s enactment broadly and symbolically recognises Indigenous peoplehood based on a common historical experience of oppression and its objective to prevent the past from repeating itself.

Conclusion

Ultimately, Dylan has provided readers and legal professionals alike with a very useful and educational book that better informs current issues surrounding Indigenous constitutional recognition. His comparative analysis has been most beneficial to my PhD research in helping me understand and provide greater detail in my historical account of Indigenous recognition developments and advocacy in Australia. That has been crucial for me to develop my understanding as to where the areas of reform lie in Australia, and how existing legal and political frameworks have neither adequately interpreted, nor provided protection and full access to Indigenous self-determination rights.

Furthermore, my thesis adopts a comparative analysis between Australia, Canada and New Zealand. I identify where substantial barriers lie to Indigenous political participation rights in Australia and look abroad for answers in similar Commonwealth jurisdictions like Canada and New Zealand, where measures have been implemented to overcome similar barriers to Indigenous political participation. Dylan’s comparison, consideration and discussion of Canada and New Zealand further justify why those countries provide useful practical examples that Australia should and could be guided by when it comes to politically and legally recognising the rights of Indigenous Australians. Dylan sets out the frameworks, institutions, guiding theories, legal developments and overall historical backdrops for each of those countries, which has made it easy for me as a reader and researcher in this field to identify the similarities and differences shared between Australia, Canada and New Zealand.

In my opinion, Dylan has done a great job in articulating a legal, theoretical and historical truth-telling narrative that draws upon comparative approaches on all matters concerning Indigenous recognition, peoplehood, sovereignty and self-determination and for this, I highly commend Dylan’s efforts and recommend this book to all Australians.

Dani Larkin is a Bundjalung woman from the Baryulgil/Grafton communities of northern New South Wales. She is also a PhD Candidate and Semester Teaching Fellow in the Faculty of Law at Bond University.

Suggested citation:  Dani Larkin, ‘Book Forum on Dylan Lino’s Constitutional Recognition: First Peoples and the Australian Settler State on AUSPUBLAW (14 August 2019) <https://auspublaw.org/2019/08/book-forum:-dani-larkin/>