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Opinion And World View: An Epoch-Making Event

Australia has moved closer to constitutional recognition of Aboriginal and Torres Strait Islander peoples.'' writes columnist Paul W Newbury.

On 13 February 2013, Australia moved closer to constitutional recognition of Aboriginal and Torres Strait Islander peoples when parliamentarians on all sides of Australian politics passed the Act of Recognition in the House of Representatives.

In the House, Aboriginal and Torres Strait Islander community leaders joined Julia Gillard to mark this significant step to a referendum on the issue. The bill of recognition acknowledges the unique place of Aboriginal and Torres Strait Islander peoples in the Australian nation.

This is an epoch-making event to go with the Rudd Apology to the Stolen Generations of 2008, the High Court decision on native title in 1992, the Stolen Generations Inquiry of 1996 that led to the Bringing Them Home report and the Referendum of 1967 that empowered the Federal Government to make laws regarding Indigenous peoples.

However, all these were achieved through the activism of Indigenous Australians rather than non-Indigenous awareness and generosity.

Nonetheless given our history, the apology to the Stolen Generations for past wrongs and to Indigenous Australians generally for the pain, suffering and hurt that successive governments have inflicted on them over two centuries represented an essential step toward a reconciled Australia marked by relationships of respect and understanding.

The recognition of Aboriginal and Torres Strait Islander Peoples in the Constitution is an essential part of this journey. It is a sign that Australian Governments are committed to meaningful constitutional reform that reflects the aspirations of Aboriginal and Torres Strait Islander peoples, as well as the aspirations of many non-Indigenous Australians for our Indigenous peoples.

The Bill includes a sunset clause of two years to allow the campaign for change to continue to build momentum and ensure the focus remains on the ultimate goal. A bipartisan approach is essential and so far, it is holding. I believe a stand-alone referendum is preferred to give the issue the mark it deserves and to separate it from political point-scoring that occurs in federal elections.

A review will be carried out in twelve months to consider levels of community support for amending the Constitution and proposals for constitutional change. The Gillard Government has committed $10 million towards a campaign led by Reconciliation Australia to build community support for constitutional change.

The government agrees with the findings of its expert panel and it believes a referendum should be held at a time when it has the best chance of success. Australians are invited to get involved in building support for change by visiting www.recognise.org.au to sign in and receive a regular newsletter where the issue is discussed.

We should consider that a constitution that does not recognise Aboriginal and Torres Strait Islander peoples as First Peoples is deeply flawed and begs change. It is in fact a grievous
insult to Indigenous Australians.

An important issue is whether constitutional recognition will affect the pursuit of sovereignty by Aboriginal and Torres Strait Islander peoples. The British violently wrested sovereignty from Aboriginal peoples in the Frontier Wars that began in 1788 when Bidgigal warrior Pemulwuy speared and killed Captain Arthur Phillip’s gamekeeper because of his wanton slaughter of animals.

Torres Strait Islanders lost their sovereignty when the State of Queensland annexed the inner islands of Torres Strait in 1872 and in 1879, it annexed the remainder.

The British declared the Australian continent terra nullius or ‘land belonging to no one’. In other colonies, the British did not apply terra nullius and they entered into treaties with sovereign first peoples in North America and New Zealand. In the Mabo decision of the High Court of Australia in 1992, the Justices described terra nullius as having no more credibility than ‘bare assertion’.

A hot topic in some communities around the country is whether constitutional recognition will affect the pursuit of Aboriginal and Torres Strait Islander sovereignty. Last year the Sydney Opera House hosted an event on this subject - “Does Constitutional recognition negate Aboriginal Sovereignty?”

The line-up of panelists included Professor Megan Davis, Director of the Indigenous Law Centre, Faculty of Law UNSW; Professor George Williams, Australian Research Council Laureate Fellow, Faculty of Law, UNSW; Nicole Watson, Senior Researcher, Jumbunna Indigenous House of Learning, UTS and Les Malezer, Co-Chair of National Congress of Australia’s First Peoples.

Les Malezer spoke of his concerns about the divisiveness of sovereignty. He believes we should look closely at its meaning, as it is defined in many ways by different people. He feels that sovereignty is a political issue and should not be tied in with constitutional recognition. The panel noted that the vast majority of Aboriginal and Torres Strait Islander peoples were solidly in favour of constitutional reform.

Throughout Australia, Indigenous peoples can be described as practising sovereignty through making decisions about land according to their cultural traditions. Many of these are peoples who have regained their lands under native title like the Kowanyama People of Cape York. For Torres Strait Islanders, the return of the islands to their ownership under native title and the exclusive fishing zone amount to regional sovereignty.


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