What does democracy and self‐determination mean for Indigenous Australians

It is great to be here at this event at the Whitlam Institute which honours the late Mr E. G. Whitlam AC QC (1916–2014). I grew up in a family of staunch and passionate supporters, and I wasn't quite a teenager when he took office in 1972. His election victory didn't register very highly on the radar of my young self, but I remember exactly where I was when the news of the Dismissal arrived to me and my classmates in 1975. To dismiss the elected representatives before their term expired had been unthinkable and I was deeply shocked. This sense of shock at the actions of the Opposition and the Governor General was only surpassed by the subsequent election result. I was bitterly disappointed at the Australian electorate's response – I couldn't believe that they would not support the re-election of the man I believed had been so unreasonably dismissed. When I consider the question ‘What does democracy and self-determination mean for Indigenous Australians?’ my first response is to note that they are not natural companions, nor is self-determination dependent on democracy. Self-determination has its origins in the processes of imperialism and the development of the nation state. It describes the right of peoples to assert their sovereignty against territorial and political incursions by others. So, while it has been characterised as a right that can be bestowed by government policy, it is essentially the assertion of one's self-defined identity, territory and associated cultural, social and economic ways. Consistent with that construction, we are self-determining in this era of colonisation, whether governments say so or not. We have been self-determining since the impact of imperialism and colonisation; we continue to be self-determining independent of government comings and goings. Having said that, clearly, government policy that recognises our distinct and complex identities. and supports our right as peoples to be self-determining within the comparatively recently established nation state, holds greater potential for thriving individuals and communities than more paternalistic views. My second response to the question ‘What does democracy and self-determination mean for Indigenous Australians?’ is that, despite its weaknesses, I'm personally a big fan of democracy. I completely accept that it has flaws, and when I think about the Dismissal, and the current period of populism and ‘fake news’, it's clear that this imperfect system can bring difficult outcomes. But I am also a fan of the human right to ‘effective participation,’ and in the absence of a better model for governing the modern nation state, democracy has a lot going for it. However, from the perspective of First Peoples, democracy is also one of the institutions brought by the coloniser. It might be one of the better imports though, and is certainly the result of a long, hard fought battle by the English against absolute rule by the Crown and in favour of constitutional monarchy – albeit, and strangely to my mind, without a written Constitution. From the beginning of the process of colonisation of the land of the Gadigal, the process of the reception of English law into the colony commenced, gradually regulating and governing the people, land, waters, animals, vegetation and minerals of this country. The assumption of sovereignty by the Crown, being ‘the ultimate authority to impose law on everyone else in the state and the power to alter any pre-existing law’, was and is contested by many Indigenous people. Mabo v Queensland (No 2) 1992, was not a straightforward process, and for many it remains both unsettled and problematic. Democracy provides rights to eligible voters. We think of it now as an essential characteristic of citizenship but the terms of eligibility have been a work in progress, fought for and won by women and Aboriginal people at different times across the nation. As First Peoples, we occupy a unique and relatively straightforward place in this story. We are the peoples who owned, occupied, regulated and controlled the economy, physical environment and resources. We regulated and controlled the internal and intergroup governance arrangements, as well as the health, education, employment, marriage, cultural and spiritual life of the people. Despite...the fact that this decision was effectively overturned in 1836, R v Ballard is one of the most important judicial statements of the position of indigenous people in Australian legal history. It contains unambiguous support for Aboriginal legal autonomy. (...) [T]his decision was based on a recognition of a plurality of laws on the Australian continent and of the obligation of English law both to recognise and protect those other laws. For many years, both before and after these cases, the incursion into territories continued, the massacres continued, the rounding up and dislocation of people and their families continued, the forced removal of children from their families continued. Martial law was declared in Bathurst as people resisted, land was cleared, habitat for animals and precious medicinal and food plants were destroyed, language and ceremony forbidden and punished, illnesses raged, populations were decimated. I can only imagine the struggle to survive and adapt to this brutal change. We know our stories of resistance and warfare, including warriors like Pemulwuy, Windradyne and Janadamarra. Our stories of negotiators and ambassadors like Bennelong, strong women like Barangaroo and Patyegarang. Our stories of protest: Mr Jimmy Clements and Mr John Noble, two Wiradjuri men who attended the opening of Parliament House in Canberra in 1927 in order to demonstrate what Mr Clements later described in The Argus newspaper as ‘his sovereign rights to the Federal Territory’; the 1938 Day of Mourning; the 1988 bicentennial marches in Redfern and Sydney followed by the corroboree at Kurnell. Our stories also include valiant efforts at political and economic participation – the ways we found to engage with this new order. Examples include the political, social and economic self-determination by members of the Kulin nation at Coranderrk until it was smashed by the Victorian government. We have a long history of ‘setting our own course’ despite the rejection, confinement, and cruelty of colonisation. Individuals and communities have set their own course for social inclusion, economic participation and practice of culture in this new environment. From early days we have understood the need to engage with representative democratic institutions and their officers – both the elected representatives and the bureaucracies that support them. From the early days we have also understood the value of the option of last resort – the withdrawal of our participation and labour when it is the only avenue left. We have a long history of campaigns, petitions, strikes – oral and written representations to parliamentarians and bureaucrats. From the petitions and strikes of Barak and his people as they were forced from their successful farming settlement to the Gurindji walk off at Wave Hill culminating in the return of land by the Whitlam government at Dargaragu. The 1957 strike by Palm Islanders protesting the terrible work conditions, slavery really as no wages were paid for compulsory work. The 1963 Yirrkala Bark petitions written in both Yolgnu Matha and English protesting the excision of a part of their land for bauxite mining leases, granted with no consultation or permission. When the Whitlam Labor Commonwealth government adopted self-determination as the key term of Australian Indigenous affairs policy in late 1972 it was, at the time, a quite radical political act. Not only did self-determination replace a very different concept—assimilation—as the key rhetorical term of Indigenous affairs policy, but it also quite clearly alluded to recent developments in international law. One of those international developments was the adoption by the United Nations of the International Covenant on Civil and Political Rights which articulates self-determination as: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. In 2007 the General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)i1 The Australian Government announced its support for the UNDRIP in 2009. which states: Returning to the domestic landscape, we have been advocating and engaging with all three tiers of government from the earliest days of colonisation. Strongly linked to engagement with government, and perhaps the platform for it in recent times, is the development of community-controlled organisations – housing services, legal services, medical services, children's services and women's services. As the names suggest – it is service delivery by Aboriginal people for Aboriginal people. Our organisations are an adaptation, utilising corporate governance systems, to assert our roles as Indigenous people, taking care of Indigenous people. And while service provision is an important role of these organisations, advocacy also remains a fundamental activity of these corporations. How could it not be so, given the statistical evidence of inequality across most social indicators? Central to this service delivery and advocacy is identity – across the broader Australian community these organisations have been the vehicle for saying ‘we have and assert our identity’, ‘we're not the same’, ‘we will not be absorbed or assimilated into a new and imposed system’, ‘we have our own ways of being’ and: ‘we are still here’. While Indigenous peoples have governed ourselves since time immemorial in accordance with our traditional laws and customs, when we speak of Indigenous governance we are not referring to the pre-colonial state. Rather, we are referring to contemporary Indigenous governance: the more recent melding of our traditional governance with the requirement to effectively respond to the wider governance environment. Interestingly, Indigenous peoples bring democratic principles into the local level – majority rule for members on some issues, election of directors. Aboriginal people have been incredibly innovative, working out ways to incorporate these rules into old ways of doing things – language group representation on boards, holding meetings across country. The Indigenous Governance Awards, presented by a partnership between BHP and Reconciliation Australia provide an excellent snapshot of the work of our organisations and the way they combine local ways and corporate governance. I don't think we can talk about Mr Whitlam and Indigenous self-determination without mentioning the arts. I'm going to ask you to stretch your imagination here – I know that strictly speaking the right of self-determination attaches to Peoples – the collective – but our artists are such incredible agents of self-determination. Our film makers like Rachel Perkins, Warwick Thornton, Ivan Sen, Tracey Moffatt tell our stories on the big screen, our dancers and choreographers tell our stories in movement - Stephen Page's responses to Bennelong, Patygerang, Jasmin Shepherd's Maq about Governor Macquarie – the list is endless – artists telling us our stories – sharing it with the broader community. Playwrights like Kevin Gilbert, Gerry Bostock, Wesley Enoch, Jada Alberts, H Lawrence Sumner and Leah Purcell make such a strong contribution – they support us as First Peoples in affirming culture and identity and play an enormous role in explaining us and our experiences to the broader community. The establishment of the Australia Council for the Arts by the Whitlam government has been such a strong vehicle for keeping culture and artistic expression strong with extraordinary leadership over the years by women like Cathy Craigie, Dr Richard Walley OAM, and Lydia Miller to name a few. With all these options to understand our shared history, I am often astounded by the resistance to embrace an accurate version of colonisation. And, more and more I am convinced of the importance of the narrative, both the way we tell the stories and the way it is told by mainstream media. I listened recently to the 2017 CBC Massey Lectures, In Search of a Better World: A Human Rights Odyssey, by Iranian human rights lawyer Payam Akhavan. In a powerful account of the genocide in Rwanda he described the role of the local radio station. He makes a strong case for the proposition that, as the United Nations considered whether to withdraw troops, leaving the Hutus to what was to become their terrible fate, the decision could well have focused on shutting down the radio station that spread the propaganda creating hatred and division, and justifying the violence. The narrative matters. The truth matters. The most consistent call from Indigenous Australia since the abandonment of self-determination policy is – ‘listen to us’. Consistent with the fact that we continue to be self-determining despite government policy, we say ‘Listen to us’, ‘work with us so that we can set our own course’. We have seen many policy directives over the years, we know their strengths and weaknesses. Engage with us, collaborate with us, co-design with us. Stop deciding our destiny based on election cycles, stop the patronising views of our capability, stop the discomfort with our poverty and ill health, and stop the disapproval of our disengagement where there are so few options for participation. Hear us when we tell our story, our truth, and stop the bucket-loads of misinformation for public consumption about our ‘special treatment’ – where the benefits we supposedly get help to justify opposition to positive initiatives. We have recently witnessed one of the most essential democratic processes – deliberative democratic processes for deciding the question of constitutional recognition. The Uluru Statement – whether you agree with the outcome or not – it is the result of a national deliberative process of dialogues held across the country. This is unique and enormously important. The response from government could not be less enthusiastic. Talk of a third chamber, threats of making this an election issue are a long way from respectful, constructive dialogue in the spirit of bipartisanship. The campaign to get to the Dialogues culminating in the meeting at Alice Sprigs and the Uluru Statement was a bruising process. One of the first stages of the process was the establishment of an Expert Panel which provided a thorough, legally well-considered report on options for constitutional amendment including amendment of section 51 (xxvi), a prohibition against racial discrimination and recognition of languages as the original languages and as an important part of our heritage. Potential opportunities and risks were anticipated with these proposals: for example, could 51(26) be amended so as to prevent legislation like the Northern Territory Emergency Response laws which provided for the Intervention? Would a prohibition against racial discrimination enliven the old opposition to a Bill of Rights? In the process of consulting with Indigenous people and communities about constitutional recognition, there was a campaign to raise awareness about the idea of constitutional recognition. It was staffed by passionate, dedicated people, many of them young and enthusiastic, whose work was met with interest on the part of many, but also great suspicion, and, in some cases open hostility. Fundamental to this opposition was the concern that the founding document of the coloniser cannot provide real recognition. While it is self-evident that constitutional recognition cannot deliver urgently needed change like a reduction in incarceration rates or increase life expectancy, could it deliver more than symbolic recognition – could it provide meaningful change? The answer it seems is: ‘not necessarily’. It all depends on just exactly what changes to the constitution are made, as indicated above. How can such complexity be explained to a voting public to achieve the most difficult of things a successful referendum? We saw an example of how a clear narrative for change can be derailed or confused in the national postal vote last year. All sorts of unrelated issues were woven into the question of marriage equality – somehow the narrative came to include inappropriate – the of which still In any the public was into and – at and at Our democratic system us a for and but it was a for the community. The recognition were held strong to the racial provisions of the by the Whitlam which make it to or of their or as a battle between rights these the public of racial as part of it for the nation to have a about the rights of First Peoples to to to be It in and I think it might be to with the of the Uluru the Australian state was to To own the way in which it own the and of the the the from the means of the removal of and brutal of officers who are to the and policy the state was to up to the that might – to off the radio in the example – to the shock and to the truth to be And not just the history of there were a the truth would also include stories of and any nation would have to a different to the one we The Whitlam government policy of self-determination, like the Whitlam government an of in a of One what our might like the government had been given more time and self-determination had national of the has to economic development Indigenous and corporate In many the work of government on and like the local processes and community which are scale, local of self-determination. However, there is an for and a of the national identity that could from and also from the of the provisions of international law by the Australian that recognise the status of First Peoples, the principles of and and that participation and the self-determination of First We saw a of this the Whitlam years, while Indigenous people continue to set our own the of and enormous and

Democracy · Dismissal · Indigenous · Opposition (politics · Political economy · Political science · Politics · Sociology · Sovereignty · Victory · Indigenous Health, Education, and Rights · Law

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