The Right have been active in asserting the notion of ‘practical reconciliation’ and implying that a rights agenda is the privilege of the elite. This lack of vision for indigenous policy is going to impede the way towards indigenous self-determination.
At the hand-over of the Final Report by the Council for Aboriginal Reconciliation, Prime Minister John Howard announced that his government rejected the recommendation of a treaty with Indigenous peoples, preferring instead to concentrate on the concept of ‘practical reconciliation.’ This ‘practical reconciliation’ described a reactive policy of government funding in targeted areas that relate to socio-economic disadvantage. He stated:
We are determined to design policy and structure administrative arrangements to address these very real issues and ensure standards in education and employment, health and housing improve to a significant degree. … That is why we place a great deal of emphasis on practical reconciliation.
The false promise
The embrace of the ‘practical reconciliation’ policy was predicated in terms that clearly rejected the broader, rights-based recommendations of the Council in its document, National Strategy for the Protection of Aboriginal and Torres Strait Islander Rights, and it also rejected the treaty process recommended in the Council’s draft legislation. Instead, it targets, only through policy, the main areas of socioeconomic disparity. To this end, Howard pointed to the amount he had spent on ‘Indigenous-specific programs’:
A measure of the genuineness of the government’s commitment to practical reconciliation is that the $2.3 billion now annually spent on Indigenous-specific programmes is, in real terms, a record for any government — Coalition or Labor.
While policies for addressing these areas of disadvantage are vital, their importance demands that such policies be effective. For this reason, the notion of ‘practical reconciliation’ needs closer scrutiny. What Howard didn’t detail in his claim of record spending is that his government’s allocation of $2.3 billion included money spent defending the Stolen Generations case brought by Peter Gunner and Lorna Cabillo in the Northern Territory. It also included the money that went into the various areas of the government arm that were actively trying to defeat Native Title claims. That is, counted in with the money allocated for specific policy areas is the money spent preventing the recognition and protection of Indigenous rights.
While money spent on a vision of ‘practical reconciliation’ has actively undermined Indigenous rights through litigation strategies, the proponents of this vision are also employing rhetoric to belittle the rights framework, particularly when it is in the form of a treaty. They claim it has no relevance to the issues facing Indigenous communities and that conversations by elites and intellectuals about big-picture, long-term and structural strategies like treaties, constitutional change and bills of rights, do not provide the answers to the questions facing the Indigenous communities. ‘How will a treaty stop the levels of violence and substance abuse in Indigenous communitie?’ they ask. Phrased that way, it can seem like a powerful argument; but it is a response that simplifies the problems, as well as the solutions to socio-economic disparity.
More ‘benevolent’ governance
Simple solutions to complex problems as an approach to Indigenous policy have a long history. In his inaugural Charles Perkins Memorial Oration given at the University of Sydney on 25 October, 2001, Noel Pearson stated that the civil rights movement was just and right and correct, but noted that it had failed to deliver change. The reason, he asserts, lies in the failure of policy:
Maybe we should confront the possibility that the policy analysis and recommendations that have informed the past thirty years of determination may have been wrong. Our refusal to confront this possibility is a testament to the degree to which we will insist on our ideological indulgences ahead of diminishing social suffering.
Pearson can take much credit for bringing to the attention of mainstream Australia the issues of passive welfare dependency, endemic substance abuse and related violence within the Indigenous community of Cape York. For these key issues, a policy of ‘practical reconciliation’ that only seeks to address areas through benevolent policy making is not going to provide a solution. Instead, policies and programs are only going to respond to problems as they emerge. As such, they will not develop infrastructure and capacity that will reduce the occurrence and perpetuation of social and economic problems. Further, the reactionary policy making that ‘practical reconciliation’ embodies cannot guarantee that its current policies and programs are not creating a breeding ground for further economic, cultural and social problems. Without a long-term vision to work towards and without a reference to measure the limitations of policy, ‘practical reconciliation’ is not going to change systemic welfare dependency or any other structural issue.
The incorrect premise of equal rights
While ineffective policy can be apportioned blame for the continual socio-economic disparity and social issues, we need to also question the assumptions that the ‘civil rights’ era created an equal playing field. The assertion that the 1967 referendum gave citizenship rights is one that continues to create myths about what the constitutional amendment actually achieved. It did give the federal government the power to make laws in relation to Indigenous peoples and included Indigenous people in the census. In relation to the alteration of the races’ power, it is not even clear that the power can only be used for the benefit of Indigenous people. It did not ‘remove the discrimination that our people are suffering in the mainstream economy’.
Perhaps the ground swell of support for Indigenous people in 1967 has led to a romanticising of what we gained by constitutional change at the time. It did not provide Indigenous people with the right to vote; it did not guarantee protection against racial discrimination; and it did not provide any guarantees for the protection of property interests. The repeal of the Racial Discrimination Act 1975 from applying to certain parts of the Native Title Act 1993 through the 1998 amendments illustrates how vulnerable Indigenous rights are and how erroneous the assumption of an equal playing field is.
The failure of the equal wages policy identified by Pearson was undermined by the failure to protect Indigenous rights. It was introduced into a context where Indigenous rights to land were not recognised, respected or enforced. It was a failure to protect inherent and fundamental rights in the first place that has led to many of the problems that we face today. There was no attempt to capacity build in Indigenous communities through education and employment opportunities. This context, one of lack of rights recognition and protection, can assist us with hindsight to see why the results of the equal wages policy were as devastating as they were. As Pearson points out in his Charles Perkins lecture: ‘Our dispossession is the ultimate cause of our passive welfare dependency.’
This does not mean that the recognition of these rights was not ‘heroic and correct’. What the failure of these policies shows is that there is not one quick fix to systemic legacies of colonisation. Recognising this does not mean being fatalistic about welfare policy. Rather, it means ensuring that the responses are holistic and attempt structural change.
Linking policy to vision
One reason why past policies have failed is that they have not made a connection with a broader vision of self-determination. By overlooking the broader rights issues, ‘practical reconciliation’ does not attack the systemic and institutionalised aspects of the impediments to socio-economic development. It fails to understand that the rights framework can — in the long term — deliver outcomes and the protection of rights that short-term policy measures can only alleviate. It fails to admit that the strategy to recognise and protect the rights of Indigenous peoples includes economic rights and property rights. The recognition and protection of those rights puts land under people’s feet and can allow access to natural and other economic resources. For example, the recognition of native title interests can return land to Indigenous communities, and the protection of Indigenous intellectual property rights can lead to protection of income and the protection of cultural heritage. These allow the basis for income generation, enterprise and self-sufficiency in Indigenous communities that have the ability to take advantage of those assets. So, despite being a long-term strategy, the rights agenda does have real outcomes that go to the heart of the socio-economic problems that policy can only react to. That is, protection of rights could work towards ensuring that Indigenous communities are economically self-sufficient.
Failure of policy is also a failure of institutional imagination. It is usually a replication and imposition of non-Indigenous policy, programs or structures onto Indigenous people without thought of cultural conflict or impact on social, cultural and kin relationships. Indigenous people have, however, already encapsulated a vision and have done so by the use of rights to describe political aspirations. The key is the concept of ‘self-determination’. In this context, ‘self-determination’ is not policy defined by the government policy but describes an Indigenous political vision. Despite these cultural and geographical differences, there is much common ground in responses to the questions that seek aspirational answers: What do you want? When you say ‘Aboriginal sovereignty’ what do you mean? What do you want in a treaty?
There is already evidence as to what that vision of self-determination may look like. If we look at the contents of the Barunga statement, the Eva Valley statement and Patrick Dodson’s Fourth Vincent Lingiari Memorial Lecture, ‘Until the Chains are Broken’, we can see the parameters of the claims in a spectrum of rights. The rights enmeshed in the concept of ‘self-determination’ include, I would argue, everything from the right not to be discriminated against, to the rights to enjoy language, culture and heritage, our rights to land, seas, waters and natural resources, the right to be educated and to work, the right to be economically self sufficient, the right to be involved in decision-making processes that impact upon our lives and the right to govern and manage our own affairs and our own communities. These rights that can be unpacked from the concept of ‘self-determination’ point to a vision that has been described as ‘internal self-determination’. It is a vision of increased Indigenous autonomy within the structures of the Australian state.
The right to self-determination is recognised under international law in Article 1 of both of the canonical human rights documents, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Although the right is clearly recognised in these two instruments, there is much debate about the application of the content of self-determination as it applies to Indigenous people. I would argue, in light of what I have already said, that we, as Indigenous peoples, do not need to feel confined by the semantic debates under international law. Rather, the key to the way forward is in the concepts and rights that we have implied into the terms ‘self-determination’ and ‘sovereignty’ when we use those words to describe a vision of how we would like our communities to be and the way we want to live our lives as Indigenous peoples.
This is an approach that takes the starting point for self-determination from the way in which it is expressed by Indigenous peoples at a grass-roots level, rather than by imposing concepts as they have been developed in international forums on to Indigenous communities. It is a bottom-up, rather than top-down approach.
The Pearson thesis
A danger of the Pearson thesis is that his experience in Cape York will be interpreted as being reflective of all Indigenous communities. Not all Indigenous communities are incapacitated or dysfunctional. Many have been able to establish community initiatives — medical services, legal services, drying out areas. Some have made their communities dry. To assume that we are all in the miserable state is to overlook the agency and achievements of Indigenous peoples and their communities across Australia. We need to ensure that the crisis in some communities does not stop the progression of others. We cannot deny self-determination where there is the clear capacity for it and we must move from a merely reactive response that focusses only on worst case scenarios rather than also fostering aspirational and best practices in communities where it can be achieved.
It may also be misinterpreted as implying that women and children are only victims in Indigenous communities when in fact we have been the biggest crusaders. In this area, Marcia Langton, Judy Atkinson, Boni Robertson, Winsome Matthews, Brownwyn Fredericks and many, many others have been quantifying, recording, offering suggestions and finding solutions to endemic levels of violence in Indigenous communities. These same women and their colleagues are often the ones who set up the community-based initiatives and institutions, the dry-out shelters, the medical centres, the community buses, when government policy fails. We can thank Pearson for gaining coverage that Indigenous women have been unable to gain. It is not an indictment of Pearson but of media and policy makers that Indigenous women cannot attract national media attention for these issues themselves.
Dismissing the rights agenda and shutting down dialogues about broad picture solutions truncates and silences debates about rights. It also fails to understand the way we rank rights every day. Every day, courts and policy makers rank rights, the rights of directors against shareholders, the rights of a custodial parent against the rights of a non-custodial parent, the rights of an employer against the rights of a worker, doctor against patient, landlord against tenant. In every moral decision we make we are valuing and prioritising rights.
It can sometimes be difficult to value those rights and choose one or the other but we do it and we ask judges to do it. And sometimes it is not hard to place one right over another. Pearson, and I agree with him, makes value judgements about rights in his thesis. Valuing rights of children to parents and freedom from violence against the asserted right to drink is stating that the rights of one are more important than the rights of another. When a policy decision is made to implement curfews or allow rights to drink we are making value judgements about rights. Policy makers who see their actions as separate to the rights agenda fail to appreciate the impact their decision-making has on the lives of those touched by their policies. Those who deny that policy making should take precedence over a consideration of the rights analysis exhibit an inability to understand the very real connection between the two.
A rejection of the rights agenda is also a rejection of the vision of Indigenous peoples for self-determination. It is patronising to assert that Indigenous people who claim rights and express self-determination in the language of rights have no idea about the issues that affect our community and that we do not understand the solutions to problems faced by our own families. It is usually our personal experience with rights violations that have led us to work relentlessly on those issues and we would not be pursuing an agenda that we thought was a waste of our time. In many cases, our solutions are responses to things that have affected our lives and it is a pity that articulate, educated and vocal Indigenous people can be dismissed as having very little to do with their own communities.
As Pearson points out, the reasons for socio-economic problems are complex. Addressing the underlying issues will not help erradicate every problem. On the other hand, failure to deal with systemic issues will also not prevent other issues from continuing to plague our communities: passive welfare dependency, the breakdown of social ties, increased access to alcohol, legacies of past discrimination and colonisation. These are complex problems and they will need multifaceted solutions that will have to match short-term with long-term strategies. That is, they will have to match reactive policy to systemic and institutional change.
Although targeting of policy in specific socioeconomic areas is a vital aim in terms of the short-term solutions, ‘practical reconciliation’ is not the tool by which to achieve this. Its targetting of problems is dubious since government money is also spent on extinguishing and truncating Indigenous rights. In addition, without an overall vision of where Indigenous communities should be going, the application of policy is going to be reactive and will not target structural and systemic change. Without a rights framework that seeks to protect the recognised rights of Indigenous peoples, there is no ability to create and protect the rights to economic self-sufficiency and Indigenous peoples, families and communities will only be dependant on welfare.
Practical reconciliation asks us to trust the government and rely on their benevolence. This is a big ask from the government that attempted to bring in the 10 point plan, trivialised the experiences of the stolen generations, refused to say ‘sorry’ and has sought to distance itself from the United Nations monitoring mechanisms that have been critical of its human rights record towards Indigenous people.
Although it is sometimes conceptualised that rights protections slowly improve over time, the recent experience of Aboriginal and Torres Strait Islander peoples in Australia proves this is not the case. As can be seen by the contents of the Native Title Amendment Act 1998 (Cth), the days of governments actively truncating and extinguishing Indigenous rights are far from over.
What the rights agenda allows us to do is to debate standards so that the next time there is a sympathetic era in Australian politics, the vision to which we are working towards will be clearer. Only a strong rights framework will prevent the further extinguishment of these rights. We can see this in Canada where the implementation of s35(1) of the Constitution Act 1982 placed the following provision into the Canadian Constitution: ‘Aboriginal and treaty rights are hereby recognised and affirmed’. Native title in that jurisdiction cannot be extinguished by legislative whim. These reasons give some indications as to why the rights framework remains an attractive pathway towards breaking the legacies of colonisation.
It needs to be remembered that, whatever the feeling in 1967, there was little effective structural change as a result of that collective sympathy. The next time there is such a ground swell of support, the agenda for structural change should be more ambitious to ensure that the achievements of that moment leave a longer, more positive legacy.
Larissa Behrendt is Professor of Law and Indigenous Studies and the Director of the Jumbunna Indigenous House of Learning at the University of Technology, Sydney. Her book on Aboriginal rights protection will be published by The Federation Press later this year.