Omar Bennett
The Australian Constitution, established in 1901, has been amended several times to address Indigenous Australians' rights and recognition. However, despite these changes, the question of how to achieve meaningful constitutional reform remains a topic of debate. There is a growing movement towards treaties with Indigenous Australians as a potential alternative to constitutional recognition. These treaties are formal agreements negotiated between Indigenous peoples and colonizers, acknowledging Indigenous peoples' prior ownership and self-governance rights. While some argue that these treaties could overtake constitutional recognition, others believe that real change can only be achieved at the federal level. The process of constitutional recognition has faced challenges due to government ambivalence and the difficulty of achieving a successful referendum, with the most recent proposal being rejected by Australians in 2023.
| Characteristics | Values |
|---|---|
| Current status of treaties with Indigenous Australians | Discussions have begun between the South Australian government and three Indigenous nations. Treaties are also underway at the state level. |
| Current status of constitutional recognition | Australians have rejected a proposal to recognise Aboriginal people in the country's constitution and establish a body to advise parliament on Indigenous issues. |
| Benefits of treaties | Treaties offer the potential of meaningful reform and can revitalise the constitutional recognition process. They can also mark an important shift in attitude by acknowledging the views of Indigenous Australians. |
| Benefits of constitutional recognition | Constitutional recognition can bring about substantial changes, such as prohibitions on racial discrimination, the protection of languages, and the addition of new institutions. |
| Challenges | Government ambivalence, difficulties in achieving a successful referendum, and a disconnect between the federal government and Indigenous aspirations hinder progress. |
| Indigenous perspectives | Some Indigenous advocates call for more significant reconciliation measures, including treaties, while others reject the proposal, calling for more comprehensive reconciliation. |
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What You'll Learn
The disconnect between the federal government and Indigenous aspirations
The issue of constitutional recognition of Indigenous Australians has been a topic of discussion for many years. In 1995, the Aboriginal and Torres Strait Islander Commission (ATSIC) stated that constitutional reform was a priority, and in 2007, Prime Minister John Howard promised to hold a referendum on the issue. Despite this, there has been a notable disconnect between the federal government and Indigenous aspirations, with the government favouring symbolic acknowledgement and minor constitutional changes, while Indigenous people seek more meaningful reform that will impact their daily lives. This disconnect has resulted in a stalled constitutional recognition process and the exploration of alternative approaches, such as treaties.
The federal government's ambivalence towards a preferred model and the challenges of achieving a successful referendum have contributed to the lack of progress. While there have been several parliamentary and expert reports, no government has committed to a specific model for constitutional recognition. This inaction has led to frustration among Indigenous advocates and a sense that their voices are not being heard or valued in the process.
In contrast, the idea of treaties with Indigenous Australians has gained momentum. Treaties are globally recognised as a means of reaching a settlement between Indigenous peoples and colonisers, acknowledging Indigenous peoples' prior ownership and right to self-government. Discussions have begun between the South Australian government and three Indigenous nations, and there are also treaty negotiations occurring at the state level. These treaties have the potential to deliver meaningful change and revitalise the constitutional recognition process by demonstrating that such change is possible and beneficial.
However, some critics argue that enthusiasm for Indigenous treaties at the state level may be misplaced, as the power to bring about significant change lies primarily at the federal level. Additionally, there are concerns that treaties could compromise action at the national level and reinforce the legitimacy of the government system that dispossessed Indigenous peoples. Nevertheless, supporters of treaties believe that they can mark an important shift in attitude, providing a basis for further treaties and demonstrating that change is possible without upending the current system.
Overall, the disconnect between the federal government and Indigenous aspirations has hindered progress towards constitutional recognition. Treaties offer a potential alternative path forward, but they must be approached with caution and a commitment to addressing the issue of sovereignty and power imbalances to ensure that they are not just symbolic gestures but instead bring about tangible improvements in the lives of Indigenous Australians.
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The potential for meaningful reform
In the Australian context, treaties could represent a break from a system that has long disregarded the views of Indigenous Australians and reinforced their feelings of powerlessness. Negotiating with Indigenous peoples and reaching an agreement based on terms acceptable to both parties, these treaties will mark an important shift in attitude. Treaties can deliver meaningful change to Indigenous Australians and demonstrate that such change is not radical.
In 2017, the Uluru Statement from the Heart was released by Indigenous leaders, which called for the establishment of an Indigenous Voice to Parliament as their preferred form of recognition. This statement recommended deliberate structural reform, setting out three steps to achieve this, in a way that recognises First Nations sovereignty and overcomes their current powerlessness.
However, it is important to note that the power to bring about real change lies at the federal level. While there has been enthusiasm for Indigenous treaties at the state and territory level, some argue that these are meaningless without addressing the issue of sovereignty. Treaties may imply that Indigenous peoples must recognise the legitimacy of the government system that dispossessed them, potentially compromising action at the national level.
Furthermore, the question of how exactly to bring about constitutional change remains a topic of debate among Indigenous leaders. For a national agreement to be achieved, there must be some mutually pressing reason related to security or economic issues for both parties to abide by the terms.
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The revitalisation of the constitutional recognition process
To revitalise the constitutional recognition process, it is essential to address the disconnect between the federal government and Indigenous aspirations. While the government may favour symbolic acknowledgement and minor constitutional changes, Indigenous people seek meaningful reform that impacts their daily lives. Treaties are seen as a potential solution, offering a formal agreement reached through respectful negotiation and recognising Indigenous peoples' prior ownership and right to self-government.
The Uluru Statement from the Heart, proposed by Indigenous leaders in 2017, recommended deliberate structural reform and set out three steps: voice, truth, and treaty. This statement advocated for an Indigenous Voice to Parliament, which was included in the 2023 referendum proposal. However, this proposal was heavily defeated, with only 39.6% of public support, highlighting the ongoing challenges in achieving constitutional recognition.
To successfully revitalise the process, it is crucial to address the issue of sovereignty and recognise Indigenous peoples' prior ownership and rights. This includes acknowledging the unequal position of Indigenous peoples in negotiations and addressing economic disparities. Additionally, there is a need for political leadership to commit to a model that genuinely embraces and includes Indigenous peoples in the nation, rather than symbolic gestures that do not bring about real change.
While some argue that the power to enact meaningful change lies at the federal level, others suggest that state-level treaties can provide a foundation for further progress. By delivering meaningful reform and marking a shift in attitude towards Indigenous Australians, these treaties can revitalise the constitutional recognition process and demonstrate that such change is achievable and necessary.
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The shift in attitude towards Indigenous Australians
The relationship between Indigenous Australians and the Australian government has been fraught since colonisation. The Australian Constitution, established in 1901, included sections that referred to Aboriginal and Torres Strait Islander peoples. Section 51 (xxvi) gave the Commonwealth the power to make laws with respect to 'people of any race, other than the Aboriginal race in any state'. Section 127 stated that 'in reckoning the numbers of the people of the Commonwealth, or of a State ... Aboriginal natives shall not be counted'. Amendments were made in 1967 to remove these racist clauses, but this did not grant Aboriginal and Torres Strait Islander peoples the right to vote in elections or recognise them as the First Peoples of Australia.
In 1995, the Aboriginal and Torres Strait Islander Commission (ATSIC) stated that constitutional reform was a priority, and this was followed by bipartisan support for a referendum on constitutional recognition in 2007 and 2010. In 2013, the federal parliament passed the Aboriginal and Torres Strait Islander Peoples Recognition Act, which required the establishment of a committee to advise on a suitable date for a referendum on these proposals. However, the process was stalled, and the referendum did not occur before 2018.
In 2017, the Uluru Statement from the Heart was released by Indigenous leaders, calling for an Indigenous Voice to Parliament and recommending deliberate structural reform. This proposal was heavily defeated in a referendum in 2023, with only 39.6% of the public supporting the alteration.
The failure of this referendum has led to a shift in attitude, with a growing recognition that treaties may be necessary to achieve meaningful reform. Treaties are formal agreements reached through respectful negotiation, acknowledging Indigenous peoples' prior ownership and occupation of the land and their right to self-government. While some argue that enthusiasm for Indigenous treaties at the state and territory level is misplaced, as real change can only come from the federal level, others see these developments as a way to revitalise the constitutional recognition process.
Negotiations are currently underway between the South Australian government and three Indigenous nations to finalise a treaty, and these moves are encouraging. Treaties offer the potential for meaningful reform, which has been lacking in the stalled constitutional recognition process. This shift in attitude is significant, and it remains to be seen whether these developments will lead to tangible outcomes for Indigenous Australians.
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The symbolic recognition of sovereignty
The Australian Constitution, established in 1901, included sections that referenced Aboriginal and Torres Strait Islander peoples, but these sections did not recognise them as the First Peoples of Australia or acknowledge their prior ownership of the land. In 1967, the Constitution was altered through a referendum to remove racist clauses and allow Indigenous people to be counted as part of the national population. However, this did not introduce new wording that explicitly recognised Indigenous Australians as the First Peoples.
However, attempts to bring about constitutional change have faced challenges and opposition. The process has been stalled due to federal government ambivalence and the difficulties involved in achieving a successful referendum. Despite the efforts of various committees, expert panels, and reports, no concrete steps have been taken to implement a model for constitutional recognition. The rejection of the proposal to recognise Aboriginal and Torres Strait Islander peoples in the Constitution in the 2023 referendum highlights the ongoing struggle for reconciliation and recognition in modern Australia.
In contrast, the potential for treaties with Indigenous Australians has gained momentum. Treaties are globally accepted as a means of reaching a settlement between Indigenous peoples and colonisers. They are formal agreements reached through respectful negotiation, acknowledging Indigenous peoples' prior ownership and right to self-government. The negotiations between the South Australian government and three Indigenous nations are significant steps toward finalising treaties. These treaty processes at the state level can provide the basis for further treaties and revitalise the constitutional recognition process by delivering meaningful change.
While the symbolic recognition of sovereignty is an important aspect of constitutional recognition, it is important to note that some critics argue that symbolic recognition alone is insufficient without addressing the issue of sovereignty through meaningful reform and the implementation of treaties.
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Frequently asked questions
Constitutional recognition of Indigenous Australians refers to various proposals for changes to the Australian Constitution to recognise Indigenous Australians in the document.
The Australian Human Rights Commission supports recognition of Aboriginal and Torres Strait Islander peoples in a preamble to the Constitution. There is also massive support for recognising Indigenous Australians in the Constitution.
The idea to include Aboriginal and Torres Strait Islander peoples in the Constitution was put on the national political agenda in 2010 by then Labor Party leader Julia Gillard. In 2017, the Uluru Statement from the Heart was released by Indigenous leaders, which called for the establishment of an Indigenous Voice to Parliament as their preferred form of recognition. When submitted to a national referendum in 2023 by the Albanese government, the proposal was heavily defeated.
Australians have rejected a proposal to recognise Aboriginal people in the country’s constitution and establish a body to advise parliament on Indigenous issues. The referendum failed to gain support from the Australian public with only 39.6% of the public supporting the alteration.
Treaties are formal agreements, reached via respectful negotiation in which both sides accept a series of responsibilities. Treaties acknowledge Indigenous peoples as prior owners and occupiers of the land and, as such, retain a right to self-government. Treaties offer the potential of meaningful reform, overtaking a stalled constitutional recognition process.
