July 2017


To walk in two worlds

By Megan Davis
To walk in two worlds
The Uluru Statement is a clear and urgent call for reform

In March, two months before the national constitutional convention at Uluru, the Nobel Prize–winning Saint Lucian writer Derek Walcott passed away. The singular poet’s work defined my adolescent search for identity as I clumsily navigated the privileges and anguish of walking between “two worlds”. Walcott’s epic poem ‘Omeros’ provided me with a luminous and challenging account of this antecedent struggle. His poetry made me feel not so alone in that dawning realisation of the dilemmas facing cultures like mine. In those exhausting weeks leading to Uluru, Walcott’s prose about the colonial experience was often in my mind, and the themes of ‘Omeros’ – displacement, coexistence and redemption – resonate in the Uluru Statement from the Heart.

The Uluru Statement, delivered at the heart of the nation, at the base of the Rock, at Mutitjulu, the home of the children of Uluru, was the culmination of a Referendum Council–led process of deliberative dialogues across Aboriginal and Torres Strait Islander communities over six months. It was a dramatic departure from the conventional wisdom on “recognition”. Indigenous people called instead for “voice, treaty, truth”: a single alteration to the text of the Constitution enshrining a voice, and extra-constitutional reforms in legislation enabling a Makarrata and, consequently, truth-telling. The winds of discontent in the Indigenous community about the recognition project had been swirling for half a decade, as had the irony of displacement in a national campaign to be “recognised”. Uluru brought clarity and coherence to a discursive process that has rambled on for ten years. Even so, I found it jarring to hear the outcome described as “unexpected”. The reform proposals are not new, just newly urgent. The Uluru Statement sits in a continuum of Aboriginal advocacy for structural reform: the Yirrkala Bark Petitions of 1963, the Barunga Statement of 1988, the Eva Valley Statement of 1993, the Kalkaringi Statement of 1998, the report on the Social Justice Package by ATSIC in 1995 and the Kirribilli Statement of 2015.

“Island after island passing. Still we ain’t home.”

The Uluru convention disrupted the recognition project: it was decisive and left no doubt about what people wanted. It talked directly to the people, avoiding the very Australian ritual of prime ministerial ceremonies where statements that Aboriginal people have toiled over, with hope and purpose, have been reduced to the unedifying status of Parliament House relic. The haughty condescension of the political elite about “overreach” was to be expected, given that it is they and their predecessors who have presided over this state of affairs. It’s unsurprising that their preferred form of recognition was a mere acknowledgement, a statement of fact in the Constitution, a proposal that had already been rejected by the Australian people, including the majority of Aboriginal and Torres Strait Islander peoples at the time, at referendum 18 years ago. This is the tin ear of the Australian state: How can it be otherwise?

The one thing my people have never given up on, despite forensically documenting in our collective memory the capacity of law to oppress, is the capacity of law to redeem. These reforms have been a long time in the making. The dialogues built upon the constitutional apprenticeship of a 2011 expert panel and a 2015 parliamentary committee that focused primarily on non-discrimination. But six years is a long time in Aboriginal years: four prime ministers, four constitutional recognition processes and a rapidly depleting Aboriginal domain. 2017 is another country. Time does not stand still. Aboriginal communities are not the same as they were in 2011.

The word “recognition” and its minimalist form were overwhelmingly rejected by the dialogues. Nor did the dialogues find persuasive the idea that inserting the word “benefit” into one of the Constitution’s heads of power could incontrovertibly bind the federal parliament to pass only beneficial laws. The Australian polity does not want to surrender parliamentary sovereignty. Aboriginal peoples don’t want to cede sovereignty. The dialogues negotiated a way through these two points. In the absence of an ironclad guarantee that any reform of the race power or the multiple variations of replacement power could ban the federal parliament from passing discriminatory laws or another Northern Territory intervention, the dialogues threw up a novel idea that not a single constitutional lawyer had contemplated: that a “voice” to the parliament could monitor the use of the race power and the territories power. And, more practically, the voice could have multiple functions, the most important being direct input into decisions that are made about law and policy that affect Aboriginal and Torres Strait Islander peoples.

The need for this structural reform was voiced at the regional dialogues, which also provided a contemporaneous confirmation that public servants are in the driver’s seat on Indigenous affairs. As in the protection era, we are rendered childlike figures, sidelined players in our own lives, in a era of new protectionism where our disadvantage sustains a billion-dollar industry of which very little hits the ground or changes the direction of the indicators known as Closing the Gap. The Commonwealth’s Indigenous Advancement Strategy gutted an already vulnerable sector. We are going backwards.

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.

These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.

The passage of time, the passing of old people and the pressure of forced assimilation preyed on the minds of many at the dialogues and at Uluru. We frequently heard that this was the “last throw of the dice”. The urgency of the situation is why the Uluru Statement was issued directly to the Australian people. Our fellow Australians share our people’s cynicism about the capacity of our liberal democratic state to effect reform. If our democratically elected representatives won’t listen to us, then maybe the people who elected them will.

The surprising, or perhaps unsurprising, quiet contemplation in the regional dialogues was about “truth”.

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.

Region after region, this word “truth” came to the fore. The dialogues spoke of the wound caused by the silencing of the Aboriginal experience after the arrival. In North Queensland they spoke about how their ancestors saw Cook, telling one another with smoke, yet the history books still say he “discovered” us. Frontier wars, massacres and forced racial segregation on reserves and missions are not commonly known by fellow Australians. Some spoke of statues being erected to honour early Australian explorers, one in north Australia holding a gun to commemorate the opening up of the frontier for the telegraph line, while the descendants of the massacred families suffer only sadness and hurt at having to see it. They spoke of the sensitivity of these “one way” commemorations of Australian history.

Anangu elders did not lightly give us permission to use the name “Uluru” in the Statement from the Heart. Yolngu elders did not lightly give us permission to use the word “Makarrata”.

Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.

We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.

As my Referendum Council colleague Galarrwuy Yunupingu wrote last year in his powerful Monthly essay ‘Rom Watangu’, Makarrata is a peacemaking event, it is a process to bring about reconciliation, it is a quest for peace and harmony. Our people are getting old. Too many bark petitions, too many statements. This is bad faith. The reconciliation process has stalled because it failed to do what reconciliation should do: talk about the truth. As Galarrwuy explained, Makarrata is about the aggrieved party calling out another party for an alleged wrong. On 26 May 2017, a day before the 50th anniversary of the 1967 referendum, an aggrieved party assembled at Uluru and called upon the Australian people to meet with them. The Uluru Statement provides a framework for these grievances to be resolved peacefully, but they must be worked through. Then we can have peace. The exigency of Uluru was for Aboriginal people to have a voice in the land of its ancient jurisdictions.

We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.

Megan Davis

Megan Davis is a Cobble Cobble woman from Queensland, a pro vice-chancellor and professor of law at UNSW, and a member of the Referendum Council.

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