Dylan Lino replies to reflections from Dani Larkin and the Hon Robert French AC on his book Constitutional Recognition: First Peoples and the Australian Settler State. To see all posts please click here.

BY DYLAN LINO

Putting a book out into the world is, among many other things, exhilarating and anxiety-inducing. The exhilaration and anxiety come from the prospect of having other people actually read it, especially people with such brilliant minds and careful eyes as Dani Larkin and Robert French. I’m honoured and humbled at the evident brilliance and care with which both Larkin and French have engaged with my book, and hugely grateful to them for the time and thought they’ve put into their comments. My responses below are selective rather than comprehensive, drawing out what I see as some of the most salient points for further discussion.

Starting with Larkin’s comment, it turns out (happily) that my anxiety was unwarranted: we’re in broad agreement in how we understand the nature and significance of the constitutional recognition of Aboriginal and Torres Strait Islander peoples. We both believe that an adequate understanding of contemporary debates over constitutional recognition can only be achieved by putting them in their historical, theoretical and comparative contexts. Understood historically, we can see, first, how the idea of ‘constitutional recognition’ in Australian political debate is a contested and malleable idea, one used by Indigenous and non-Indigenous actors over the past four decades to serve diverse political projects, from radical postcolonial transformation to conservative nation-building. Understood theoretically, constitutional recognition can be comprehended as entailing struggles by Indigenous peoples for a settler constitutional order that better respects their identities. These struggles target the basic distribution of public power, not only within written, ‘big-C’ Constitutions but also within ‘small-c’ constitutional norms and institutions. As Larkin says, understanding and being open to diverse possibilities for recognition is a necessary step on ‘the pathway towards reconciliation and destabilising the colonial project’.

Combining the theoretical, historical and comparative, we can also see how new forms of recognition are limited by the horizons of politics and identity in which they are negotiated, and are subject to an uncertain future in which their implementation can go in different directions. Projects of Indigenous recognition are thus both indispensable and yet always incomplete, part of an ongoing process of contesting the settler constitutional order in the name of a just political relationship between the peoples who have occupied this continent since time immemorial and those who have colonised it over the past two and a half centuries.

I want to say a little more about the role of comparison in understanding Indigenous constitutional recognition since, as Larkin rightly emphasises, the practice of comparison to other jurisdictions has long been fundamental to Indigenous agitation for reform in Australia. In my book, comparison serves two main functions, both of which are aimed at improving our understanding of what constitutional recognition is. One is to help flesh out a theory of constitutional recognition, especially as it relates to the ‘constitutional’ dimension. In Chapter 4, I draw on the New Zealand example of the Treaty of Waitangi to show how accounts of constitutional recognition that focus solely on big-C Constitutions neglect the ways in which Indigenous recognition might be constitutionalised outside a written constitution. The other function that comparison serves in my book is to help us understand how constitutional recognition operates in practice. In the concluding chapter, I look to the Canadian and New Zealand experiences with treaties – as possible future pathways for constitutional recognition in Australia – to show how new forms of constitutional recognition, profound and necessary as they may be, should be understood as always partial, provisional and incomplete.

What Larkin valuably reminds us is that comparison, in addition to advancing our understanding, can also serve the more straightforwardly political project of identifying best – or at least better – practices that might be imported from other places into Australia. The other places we standardly turn to are the other British settler colonies of Canada, New Zealand and the United States. Starting with Australia’s exceptionalism in historically failing to negotiate treaties as a basis for Indigenous–settler coexistence, there’s a pervasive and frequently well-justified sense in Australia that these other British settler states have better, more advanced legal and political frameworks for the recognition of Indigenous rights. Aboriginal and Torres Strait Islander people have long drawn inspiration and rhetorical power from such examples in order to advocate for legal reforms that would better recognise and respect their rights and interests at home. Larkin’s own exciting doctoral research into Indigenous rights to political participation in Australia will undoubtedly demonstrate the enduring power of comparison, both as a vital source of ideas for local projects of law reform and as a demonstration of the political feasibility of such reform.

Turning to French’s comment, it’s incredibly heartening to see one of Australia’s most prominent and respected legal minds engaging with – and defending from objections – the Uluru Statement’s call for a First Nations Voice enshrined in the Constitution. Despite facing resistance from successive Coalition Governments, the simple yet powerful idea of a First Nations Voice continues to widen and deepen its community support, building on the striking consensus forged by hundreds of Aboriginal and Torres Strait Islander delegates in 2017. French provides some valuable and novel institutional ideas for how the Voice’s authority might be guaranteed, including through a legislated requirement that Indigenous consultation would have to be sought before Parliament attempted to alter the legislation underpinning the Voice.

While French canvasses possibilities for establishing the Voice without constitutional amendment, it’s vital to remember that enshrinement of the Voice in the Constitution was a baseline demand of the Uluru Statement. The delegates to the Regional Dialogues and Uluru came to the convincing conclusion that constitutional enshrinement was necessary to ensure the Voice’s longevity and political authority. Certainly, as a general matter, we should be willing to think outside of the ‘big-C’ Constitution when it comes to constitutional recognition, and, indeed, much of my book is devoted to showing how such ‘small-c’ constitutional recognition has occurred in the past and might occur in the future. The Uluru Statement’s other demands for institutional change – a process of Makarrata involving treaty-making and truth-telling – can be understood as forms of small-c constitutional recognition. But the compelling rationale for constitutional enshrinement of the Voice, as well as the unprecedented First Nations consensus underpinning it, oblige us to respect the Uluru Statement’s demand.

Reflecting his deep and longstanding expertise in native title, French deftly explores the relationship between Indigenous constitutional recognition and native title. He makes the persuasive point that native title itself can be understood as an important pre-existing form of small-c constitutional recognition of Aboriginal and Torres Strait Islander peoples. The establishment of native title involved, as French has said before, a significant ‘constitutional shift’, one that reorganised Australia’s basic distribution of public power in a way that paid greater respect to the claims of Aboriginal and Torres Strait Islander peoples as peoples. I touched on this point all too briefly in my book, and it’s a matter that, as French’s engagement suggests, deserves fuller treatment. On this score, it’s worth noting the unrealised potential – so far foreclosed by the courts – of native title to move beyond the property paradigm and ground rights of self-government for holders of native title, in recognition of their peoplehood.

As French also helpfully reminds us, the example of native title can provide rhetorical support to contemporary campaigns for the constitutional recognition of Indigenous peoplehood. One of the key demands of those campaigns is for the constitutional recognition of collective Indigenous political authority, often described as sovereignty by Aboriginal and Torres Strait Islander people. Against conservative fears that the constitutional recognition of Indigenous sovereignty would unduly threaten the stability and integrity of the settler body politic, advocates can point to native title as a pre-existing form of constitutional recognition that in effect (though not in name) recognises a kind of Indigenous sovereignty through its affirmation of traditional laws and customs. That such recognition has become a widely accepted and smoothly functioning part of the Indigenous–settler legal relationship in Australia can help to counteract the conservative catastrophising that routinely attends First Nations’ demands for the recognition of their sovereignty.

To French’s example of native title, I would add that Australia’s traditions and practices of federalism, historically venerated by conservatives, also put the lie to claims that sovereignty is indivisible and unshareable. At the heart of Australia’s constitutional structure is a system that recognises the existence and authority of multiple political communities operating side by side in the same territory and sharing sovereignty. It’s a system of governance that can and should be extended to First Nations, the continent’s original political communities. The Uluru Statement can be understood as a call for federal-like arrangements between Aboriginal and Torres Strait Islander peoples and the settler state. Federalism, after all, comes from the Latin word for ‘treaty’.

There is so much more to be said on these and many other matters when it comes to creating a just basis for the political relationship between Indigenous peoples and the settler state. As that struggle moves forward, it’s crucial that dialogues like this one continue. For non-Indigenous people like me, our first duty in these dialogues, as the Uluru Statement makes so powerfully clear, is to create space for Indigenous voices and to actually listen to what they have to say. Our second obligation, especially for the lawyers among us, is to take responsibility for our own law. We have to take responsibility for the fact that, from the moment of invasion through to the present, our law has been the basis for Indigenous dispossession and disempowerment. And it’s only by taking responsibility for contesting and transforming our law, in accordance with the demands of First Nations, that we can imagine transcending that past for a future based on truth and justice.

Dylan Lino is a Lecturer at the University of Western Australia Law School

Suggested citation: Dylan Lino, ‘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:-dylan-lino/>