OPINION: Delegates at the First Nations Constitutional Convention at Uluru have rejected symbolic constitutional recognition with some justification.

In 1999 Australians rejected (55-45) a proposal to insert a preamble in the Constitution which included the words “honouring Aborigines and Torres Strait Islanders, the nation's first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country”.

It is a moot point whether it was rejected BECAUSE of those words or DESPITE those words, because the preamble included a lot of other clauses, such as, “never forgetting the sacrifices of all who defended our country and our liberty in time of war”.

It is a moot point whether it was rejected because it went too far or not far enough in dealing with the Indigenous question.

But the view at Uluru was that mere symbolic recognition does nothing to address the practical disadvantage of Indigenous people and their substantial exclusion from decision-making in Australia.

The other difficulty with symbolic recognition in a preamble is that it has no legal force. Only the substantive clauses in the Constitution are subject to judicial interpretation.

The Uluru statement came after three days of meetings at Uluru, which followed six months of regional dialogues held across Australia. The Uluru convention was organised by the Referendum Council, a body set up by Prime Minister Malcolm Turnbull and Opposition Leader Bill Shorten to advise on the steps towards a referendum on Indigenous recognition. But it seems the process came up with something the proponents neither expected nor welcomed.

What now? Do we have an impasse that says any process and referendum that does not come from Indigenous people themselves will be unsatisfactory, but the outcome they want frightens the two major parties because they feel the referendum question will not be accepted by a majority of Australians?

Yes we probably have that impasse. But the first point to stress is: there is no hurry. The 1999 process was hurried and was botched. After all, the dispossession began 239 years ago.

The difference between Aboriginal occupation of Australia and the British occupation is that the Aboriginal occupation was of terra nullius, at least on the human level. Too bad for the megafauna and fire-susceptible plants which were rendered extinct by the first human occupation of the continent. But that is of no constitutional moment now.

The British occupation, on the other hand, was one of dispossession of other humans. So that is the occupation and dispossession, and the Constitution that was spawned by it, that we must now address.

Indigenous Australians as descendants of the dispossessed obviously feel that dispossession and the disadvantage that goes with it. It does not get washed away with time. It gets passed on from generation to generation and the insertion of white genes is irrelevant if people are brought up Aboriginal and identify as Aboriginal.

On the other hand, most people who do not identify as Aboriginal generally do not see themselves as dispossessors and occupiers. Hence the impasse.

To overcome that impasse, perhaps we should deal with the British occupation and Indigenous dispossession together, but not necessarily by a treaty which presupposes two sides, one side of which feels little or no responsibility for the occupation 239 years ago. There are not two sides. We are all Australians. Moreover it would be difficult to make a treaty part of the Constitution.

That said, the two main parts of the Uluru statement have a lot of force. The first part calls for the establishment of a “First Nations Voice” enshrined in the Australian Constitution. The second calls for a “Makarrata Commission”.

In the statement, the “Makarrata Commission” is to push for treaty-making between governments and Indigenous people and to undertake a truth-telling process. Makarrata is a Yolngu word meaning “a coming together after a struggle”. Well, perhaps that coming together can be done without an us-and-them treaty, particularly if the “First Nations Voice” and truth-telling process are established and the Constitution contains an anti-discrimination clause and a guarantee of native land and sea title which would ensure there could be no winding back of the present Native Title Act system.

What is wrong with a “First Nations Voice” to advise the Parliament? Canberra is riddled with well-heeled lobbyists pushing sectional interests. Why not have the equivalent of an Indigenous lobby. The dispossession justifies its constitutional recognition and government funding. Deputy Prime Minister Barnaby Joyce clearly does not understand the proposition when he asserts that the “First Nations Voice” amounts to a third house of Parliament. The voice is an advisory one only. The two-House Parliament can ignore that voice. But they at least have to listen, so that Indigenous people can at least feel heard.

“Coming together after a struggle”, on the other hand, might take quite a lot of time.

At present, Indigenous people have a right to regard non-Indigenous people as “them”. Non-Indigenous legal and constitutional arrangements have a continuous legacy from George III’s colony of New South Wales, to the other colonies, to the states and the Commonwealth of Australia which was created by the British Parliament. The present Queen is a direct descendant of the dispossessing George III.

A good way to avoid the need for an us-and-them treaty would be to end that continuous legacy with new constitutional arrangements removing the British monarchy at the same time as creating a First Nations Voice. That would be a major “coming together after a struggle”.

At the same time we could stop the clap trap and misplaced pride over ethereal “Australian values” and give them some spine and meaning by inserting them into the Constitution. They would prohibit racial and other discrimination; guarantee freedom and speech and assembly (which would thereby provide freedom of religion and respect for Indigenous culture); and guarantee a range of other rights.

This stuff should not be too scary or difficult. Other nations have done it without difficulty. They do not have foreign monarchs or an absence of guaranteed rights. Are they better than us?

Ask why we should do it, not why not.

So far, the major-party leaders’ response to the Uluru Statement has been so defensive as to make one think they are scared of their people rather than leaders of them.

www.crispinhull.com.au

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