A prominent Aboriginal lawyer says there has never been a “damaging split” in the contentious debate to recognise Aboriginal and Torres Strait Islanders in the constitution, and says the campaign is “dead anyway and won’t get up”.
This week Cape York lawyer Noel Pearson again threw his considerable political weight behind a proposal for a “Declaration of Recognition”, a 300-word statement that would be voted on by the public. It will not be in the preamble of the constitution, instead sitting above it, in addition to substantial reform to remove discriminatory provisions from the nation’s founding document.
The move has the support of people like Aboriginal academic Marcia Langton and Aboriginal constitutional lawyer Megan Davis.
The proposal was devised by executive director of the Menzies Research Centre’s Julian Leeser and lawyer Damien Freeman, and was backed by Mr Pearson last year following his Quarterly Essay which called on a “radical” shift in the constitutional reform debate.
Mr Pearson says there is a need to get constitutional conservatives on board, or a referendum on the issue will be poised for failure.
But Aboriginal lawyer Michael Mansell, from Tasmania, says appealing to constitutional conservatives sends a message that “the lowest common denominator is going to determine Aboriginal policy”.
It has been nearly a decade since John Howard first promised a referendum to amend the preamble of the constitution to recognise the First Peoples. Since then there has been a report conducted by an expert panel of non-Indigenous and Indigenous leaders based on hundreds of community consultations and thousands of submissions. That was handed down under the Gillard Government.
There has also been an Act of Recognition committing Parliament to a timeframe, and a joint parliamentary inquiry is currently underway headed by the two Aboriginal members of Parliament –Hasluck MP Ken Wyatt and NT Senator Nova Peris.
There is political bipartisanship on the issue across all major parties, including the Greens.
But while Prime Minister Tony Abbott has publicly backed the idea of 2017 referendum date, there has never been a model put forward or any indication of what question will be taken to referendum. There has been government silence over what recommendations of the expert panel it backs.
Mr Pearson’s comments this week reportedly caused a “damaging split” in the debate, according to the Australian newspaper. The Prime Minister’s Chief Aboriginal advisor Warren Mundine said it was “confusing”.
“I think you can kiss (the referendum) goodbye,” Mr Mundine told the Australian.
“It is starting to turn into a dog’s breakfast now”.
Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda said yesterday there must be a “national meeting of Indigenous leaders” who agree to the next steps, including considering Mr Pearson’s proposal.
But he said it was one which had already been considered by the expert panel.
“Without wanting to address the specifics of Mr Pearson’s proposal, I will say that during my time on the Expert Panel there were many discussions about the need to have any statement of recognition in the body of the constitution rather than in a preamble,” Mr Gooda said.
“I therefore think to have any statement of recognition outside the constitution altogether would present some challenges to those people to whom the Expert Panel spoke.”
The Recognise movement, the government-backed campaign tasked with increasing awareness around constitutional reform released a statement yesterday but did not publicly back Mr Pearson’s model.
It has called on an urgent meeting of Aboriginal leaders, the Prime Minister and the Opposition Leader as a priority.
“We understand that in order to settle on a referendum model there will be many options canvassed before the Parliament finally settles on a Referendum Bill. We note that any model must be capable of building a very broad coalition of support,” Recognise co-director Tim Gartrell said.
But Mr Mansell says there is another split between the growing number of Aboriginal people who are rejecting the constitutional reform campaign and those who publicly back it. He says the campaign is dead and is distracting from what is truly needed – legislative reform in the form of national land rights legislation.
“We don’t need constitutional reform or constitutional change if we want to do justice for Aboriginal people,” Mr Mansell told New Matilda.
“If we want to do justice for Aboriginal people, let them legislate uniform national land rights that was abandoned 30 years ago under Hawke. That way all Aboriginal people will get their land back.”
He says that constitutional reform is a pipe dream for “Aborigines who are in a privileged position”.
“They are in a position where they can sit back and talk about these peripheral changes and symbolic gestures,” he says.
Mr Mansell says that even debate around removing the race power is “just peripheral”.
“What they’re saying is as long the race power remains in place, we leave it to white politicians to decide the fate of Aboriginal people. What we should be saying is the race power should be given back to the people from whom it was taken from in the first place.
“We should have a veto over any legislation, for example in the Northern Territory. We should have a veto to give consent. As long as you muck around with the race power you are implicitly endorsing the right of white people to decide our fate (in the form of a referendum). And we’ve had 220 odd years to rethink that strategy.”
He says the idea of a referendum puts the power back in the hands of the majority.
“I don’t see why we should have to ask the majority who are in control of our country and our daily lives whether we are entitled to justice. We should be saying there’s a bottom line – and that’s the right of Aboriginal people to self-determination, and how that pans out in practice is a matter for us to decide, and then we negotiate with the majority.”