Where did the Uluru Statement come from?
The Uluru Statement builds on the strong history of Indigenous advocacy for a better future based on justice and self-determination. Gathered in Central Australia in May 2017 on the 50th anniversary of the 1967 referendum, First Nations forged a historic consensus on structural reform and constitutional change.
This consensus followed a ground-breaking process First Nations from across Australia through 12 deliberative dialogues. Joining each dialogue were a representative sample of approximately 100 Indigenous people drawn from local traditional owners, Indigenous community-based organisations and Indigenous leaders. These regional dialogues selected their own representatives to attend the First Nations Constitutional Convention at Uluru. At the Convention, and by an overwhelming consensus, more than 250 delegates adopted the Uluru Statement.
The key to achieving that remarkable consensus on such a complex problem was a process that was designed and led by First Nations people, which had no precedent in Australian history. That process was agreed to by government after Aboriginal leaders drew a line in the sand in 2015. At a meeting with the Prime Minister and Leader of the Opposition at Kirribilli House in July 2015, Aboriginal and Torres Strait Islander leaders made two things clear. If Australia was going to successfully deliver constitutional recognition, it would have to involve substantive reform and make a practical difference – inserting merely symbolic words of acknowledgment would not work. Secondly, the leaders at Kirribilli insisted that First Nations people had to have a direct say in what constitutional recognition meant to them, through a dialogue process that had trust and legitimacy in the eyes of the participants.
In December 2015 Prime Minister Malcolm Turnbull announced the establishment of the Referendum Council and that it would oversee a deliberative process designed and led by First Nations people. A lot of thought and consultation went into the design of the Regional Dialogues and it was carefully road-tested and trialled before the first Regional Dialogue in December 2016.
What changes does the Uluru Statement call for?
The Uluru Statement calls for a First Nations Voice to Parliament and a Makarrata Commission to supervise a process of agreement-making and truth-telling. These reforms are: Voice, Treaty, Truth.
The first reform is the constitutional enshrinement of a Voice to Parliament (Voice). A Voice is a common reform adopted around the world by liberal democracies to improve democratic participation for Indigenous populations. In Australia, the Voice will empower First Nations politically. It will be a permanent institution for expressing First Nations’ views to the parliament and government on important issues affecting First Nations.
The second reform is the Makarrata Commission to supervise a process of agreement-making between governments and First Nations (Treaty), and truth-telling (Truth). Voice, Treaty and Truth provide a clear and practical path forward for First Nations’ self-determination in accordance with the United Nations Declaration on the Rights of Indigenous Peoples.
Why is change necessary?
Structural reform is needed to give First Nations greater say and authority over the decisions that impact them. Structural reform means making real changes to the way decisions are made and by who, rather than simply tinkering with existing processes of decision-making and control.
First Nations comprise 3 per cent of the Australian population. This means it is difficult for First Nations’ voices to be heard in elections and in Parliament. First Nations have little say over the laws that impact them and their rights.
This is a problem because the Commonwealth has a particular law-making power based on race. The so-called ‘Races Power’ in the Constitution has never been directed at any other racial group in Australia - it has only ever been used to make laws about Aboriginal and Torres Strait Islander peoples. There is also a ‘Territories Power’ in the Constitution. It allows the Commonwealth to exercise very direct power over people in places such as the Northern Territory, where more than 30% of the population is Aboriginal.These special powers have been used to pass many laws on Indigenous matters from land rights to cultural heritage laws. However the powers have been used to pass laws that negatively impact First Nations without First Nations’ consultation or consent.
This practice ignores First Nations’ right to self-determination set out in the United Nations Declaration on the Rights of Indigenous Peoples. Article 19 of the Declaration recognises that before any new laws or policies affecting Indigenous peoples are adopted, ‘States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent’.
What did the Uluru Statement say about sovereignty?
The Uluru Statement says that First Nations’ sovereignty was never ceded and coexists with the Crown’s sovereignty today. That sovereignty comes from a different source to the sovereignty claimed by the Crown: from the ancestral tie between the land and its people. The Uluru Statement calls for this “ancient sovereignty” of First Nations to be recognised through structural reform including constitutional change. Enshrining a First Nations Voice is recognition of First Nations’ sovereignty and First Nations’ rights based on their unique political and cultural existence. Sovereignty is not undermined nor diminished by Voice, Treaty and Truth.
First Nations in other countries are acknowledged and recognised in national constitutions. This includes in Canada, the United States and Norway. First Nations in those countries have used these constitutional clauses to exercise their self-determination and empower Indigenous peoples.
Is a representative voice a new idea?
First Nations have always called for the protection and recognition of their rights. This includes calling for First Nations representation and empowerment in decision making and control of their own affairs. There is an unbroken line that runs from before federation connecting this early advocacy and the Uluru Statement.
This includes the advocacy of Tasmanian Aboriginal people at Wybalenna (Flinders Island) in 1847 to Queen Victoria regarding their treatment, the Australian Aborigines’ League organising under the likes of William Cooper and the 1938 gathering at the Day of Mourning, the Yirrkala Bark Petitions of 1963, the campaigning that led to the 1967 referendum, the 1972 Larrakia Petition, the Barunga Statement of 1988, the achievement of native title recognition in the 1992 Mabo decision, the report on the Social Justice Package by ATSIC in 1995, the Kalkaringi Statement of 1998, and the Kirribilli Statement of 2015.
Throughout this history, there have been consistent calls for a representative voice in decision making, the right to self-determination, treaty, and for the truth to be told about First Nations and Australian history.
Is the Voice proposal limited because it will only be able to advise parliament on policy and legislation?
No. The Voice will have powers and functions to support First Nations people across a range of matters, as agreed between First Nations and government. Its strength for First Nations communities, as well as its value to government, will come from the legitimacy of being a genuinely representative, collective Voice. And from the mandate gained from the Australian people at a referendum.
How were the dialogues run?
The dialogues were organised by a secretariat established under the Referendum Council. This secretariat was run by the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS). In each of 12 regions, AIATSIS engaged a local land council or similar representative body to be a partner in hosting a dialogue. The purpose of each regional dialogue was to gain a robust representative sample of First Nations’ views on recognition and reform. The process needed to be more than opinion. It needed to be fully informed decision-making. The dialogue model was also designed to avoid “group think”. The model combined information provision such as civics or legal and political education, plenary discussions, break-out groups and the settling of a communique that was owned and endorsed by the participants as a record of their meeting. This means that every single dialogue participant signed off on and agreed to a record of meeting.
Given that the budget from the Commonwealth was limited, the dialogues were capped at 100 participants per region. The local partner organisation prepared an invitation list according to a formula that was used across all the regions:
60% from traditional owner groups or “Who we are”
20% from local community organisations “What we do”
20% local community members as well as members of the Stolen Generations who might not have otherwise attended.
The formula was important to ensure that the dialogue drew on cultural authority, accurately represented local needs, and was not dominated by particular groups or individuals.
Do other countries have agreements between Indigenous peoples and governments? to Do other countries have a First Nations Voice?
Yes. There are many ways that this can be achieved. Norway, Sweden and Finland all have a First Nations Parliament, with authority over certain matters and a right to be consulted over legislation that affects them. In contrast, the New Zealand Parliament has seven seats reserved for Māori people. Both of these mechanisms allow Indigenous peoples to have a voice in the processes of government.
Other countries adopt different approaches. In Colombia, a constitutional provision requires the government to consult with Indigenous peoples before permitting natural resource exploitation on Indigenous land. In some cases, the Colombian Constitutional Court has determined that particular instances of consultation were not adequate.
These different arrangements follow international standards. Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Australia in 2009, provides that Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision making institutions’.
What is a Makarrata Commission?
Makarrata is a Yolgnu word meaning ‘a coming together after a struggle’. A Makarrata Commission would have two roles: supervising a process of agreement-making, and overseeing a process of truth-telling.
Agreements between Aboriginal and Torres Strait Islander peoples and Australian governments have been negotiated for many years in Australia, for example under native title and land rights legislation. The Makarrata Commission would allow these processes to be struck at a national level and regionally with First Nations, by providing support and momentum and helping the parties reach agreement.
Another function of a Makarrata Commission would be to supervise a process of ‘truth-telling’: a process that allows the full extent of the past injustices experienced by Aboriginal and Torres Strait Islander people to be uncovered and revealed. Such a process would allow all Australians to understand our history and assist in moving towards genuine reconciliation.
So what did the 1967 referendum achieve?
The 1967 referendum is remembered as one of the great successes in the advancement of Aboriginal and Torres Strait Islander peoples. Certainly, gaining more than 90% of voter support constituted an extraordinary electoral success.
There is a widespread belief that the referendum granted Aboriginal people “equality” before the law by way of voting and citizenship rights. However, from a legal perspective, the changes to the Constitution were minor.
The referendum made two technical changes to the Constitution.
The first removed the provision that excluded Aboriginal people from the counting of the people of the Commonwealth.
The second was an amendment to remove an exclusion of Aboriginal people from the power to make special laws for people of any race. Prior to the referendum, the states had sole responsibility for making laws for Aboriginal people.
This was a momentous change, but it fell far short of both providing substantive equality and meeting Indigenous aspirations. Indeed, the Constitution still permits the Parliament to enact laws that discriminate based on a person’s race. This power has only ever been used to discriminate against Aboriginal and Torres Strait Islander peoples.
The referendum was important, but it was only half the story; it did not provide a voice for Aboriginal peoples. As the Uluru Statement explains: ‘In 1967 we were counted, in 2017 we seek to be heard’.