First Nations National Constitutional Convention
Convened by the bipartisan-appointed Referendum Council, the First Nations National Constitutional Convention met over four days from 23 to 26 May 2017 to discuss and agree on an approach to constitutional reform to recognise Aboriginal and Torres Strait Islander peoples. Delegates were selected from participants in regional Dialogues held around the country.
Discussions at the Convention built upon a discussion paper produced by the Council (and published in more than ten traditional languages) and reflected the diversity of views raised by Aboriginal and Torres Strait Islander communities in consultative Dialogues with the Referendum Council over the last six months. As participation in the Dialogues and Convention was by invitation, there has been some criticism about the representatives of the Dialogues, and, by implication, the Uluru Meeting. Amnesty International wrote a submission to the Referendum Council stating:
We understand that participants at the regional dialogue meetings were invited in what was perceived as an exclusive process. We also understand that some people who attended those meetings then have an opportunity to attend the Uluru meeting, whereas those not included do not.
Acknowledging that participation in the Dialogues was by invitation, the Referendum Council stated on its website:
This ensured each Dialogue was deliberative and reached consensus on the relevant issues. Meetings were capped at 100 participants: 60% of places were reserved for First Nations/traditional owner groups, 20% for community organisations and 20% for key individuals. The Council worked in partnership with a host organisation at each location, to ensure the local community was appropriately represented in the process.
The Convention also drew upon work done over the past few years by the Expert Panel on Constitutional Recognition of Indigenous Australians and the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. There has been some distancing from the Recognise campaign, an earlier government-funded initiative to broaden the appeal for inserting a statement of recognition in the Constitution.
While the majority of delegates at the Convention backed the Uluru Statement, a small number walked out in opposition before the final consensus resolution was passed.
Uluru Statement from the Heart
Uluru Statement from the Heart We, gathered at the 2017 National Constitutional Convention, coming from all points of the southern sky, make this statement from the heart:
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.
This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.
How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years?
With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood. 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.
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.
We call for the establishment of a First Nations Voice enshrined in the Constitution.
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.
In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.
What is the Uluru Statement?
The Uluru Statement from the Heart was a national Indigenous consensus position on Indigenous constitutional recognition, which came out of a constitutional convention of 250 Aboriginal and Torres Strait Islander delegates. Held at the foot of Uluru in Central Australia on the lands of the Anangu people, the statement called for the establishment of a ‘First Nations Voice’ enshrined in the Australia Constitution and the establishment of a ‘Makarrata Commission’ to supervise agreement-making and truth-telling between governments and Aboriginal and Torres Strait Islander peoples. The Uluru Statement was the culmination of 13 Regional Dialogues held around the country. It comes after many decades of Indigenous struggles for recognition and calls for a stronger voice in their affairs.
The build up to the convention
The Uluru convention built on nation-wide First Nations Dialogues run by the Referendum Council, at which Aboriginal and Torres Strait Islander delegates considered five options for constitutional change. Dialogues were held in Hobart, Broome, Dubbo, Darwin, Perth, Sydney, Melbourne, Cairns, Ross River, Adelaide, Brisbane, Thursday Island, and Canberra. The convention In May 2017 the ‘First Nations National Constitutional Convention’ convened to discuss and agree upon an approach to constitutional recognition. The Uluru Statement from the Heart asked for two reforms: 1) a First Nations Voice enshrined in the Constitution; 2) a Makarrata Commission, which could be set up by legislation. The concluding words of the Statement express its aspiration:
n 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.
First Nations Voice to Parliament
What is a First Nations Voice to Parliament? The Uluru Statement called for a First Nations constitutional voice, as a way of addressing their “torment of powerlessness”. For many decades Indigenous advocates have asked to be heard in political decisions made about their rights and interests. The Uluru Statement reiterates this longstanding call: it asks for a constitutionally guaranteed voice. The constitutional guarantee is important. The Indigenous bodies of the past that have been set up only in legislation have been easily struck down as soon as political priorities change. The constitutional guarantee provides stability and longevity.
The Referendum Council’s report supported the call for a First Nations constitutional voice, which was also the most popular reform in submissions from the wider public. It said the Constitution should be amended to require Parliament to establish a First Nations Voice to Parliament – an Indigenous advisory body to have input into laws and policies made in Indigenous affairs.
The Constitution would guarantee the First Nations a voice in their affairs, and legislation would set up details, functions, powers and processes. The Referendum Council suggested a function of the body could be to advise on the exercise of s 51(xxvi), the race power (which has only ever been used to make laws for Indigenous people: Native Title, heritage protection etc) and s 122, the territories power (which disproportionately affects Indigenous people: the Northern Territory invention was an exercise of s 122).
It was suggested the First Nations voice have members who are not hand-picked by governments, but chosen by the First Nations themselves, representing grassroots local communities. The Referendum Council made clear the First Nations voice would have no veto and would be non-justiciable, operating through the political process, not the courts. It would be designed to respect parliamentary supremacy. What constitutional change is proposed?
Guaranteeing the voices of the First Nations are heard in their affairs would require a referendum. The words of the amendment are still open for discussion.
What is Makarrata? Makarrata is a word from the language of the Yolngu people in Arnhem Land. It means two parties coming together after a struggle, to heal the wounds of the past, and to live again in peace. The word’s core message is to acknowledge that something wrong has been done and to seek to make things right. The word captures the aspirations for a fair, truthful and reconciled relationship between First Nations and the people of Australia, and for a better future for First Nations’ children based on justice and self-determination.
What is proposed?
The Uluru Statement seeks to establish a Makarrata Commission to oversee agreement-making between the First Nations and Federal and State Governments. A Makarrata Commission would operate like a non-binding tribunal. It would have two goals. The first goal is an agreement-making process, for First Nations to negotiate agreements with Federal Government and State governments. An agreement making process would enable both parties to meet and share stories of the past and decide on how they will work together in the future in a stronger partnership. Similar agreement-making processes are currently underway in South Australia and Victoria.
The second goal is truth-telling about history. This commission would provide an avenue for experiences to be articulated and heard, to create a path for
reconciliation between the First Nations and Australians. Similar commissions are common throughout the world and have been established in countries such as Canada, New Zealand and South Africa.
Does the Constitution need to be changed?
A Makarrata Commission would not require any constitutional change. It can be set up under legislation. An alternative, although unlikely, route to establish a Makarrata Commission would be by letters patent granted by the prerogative powers of the Governor-General on the advice of the Prime Minister
Can I have a say? Yes.
The Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples 2018 is currently meeting to inquire into and report on matters relating to constitutional change. Part of the Committee’s remit includes consideration of the recommendations of the Referendum Council and the Uluru Statement. You can write in and have your say about a First Nations voice in the Constitution, a Makarrata Commission, and a Declaration. The Committee is currently accepting submissions on these matters.
Please visit ecognition_2018/ConstRecognition.