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Aboriginal Communities Continue Treaty Calls Following Referendum Council Report

"You've got to have a rallying point. Aboriginal people don't have a maypole, we are just dancing in the wind."

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The Referendum Council's final report, proposing a "voice to parliament" to oversee the use of discriminatory laws and represent Indigenous interests, has been met with caution by some within communities.

Paul Miller / AAPIMAGE

Chairs of the Indigenous Referendum Council Mark Leibler (left) and Pat Anderson


The 14-member Referendum Council, which is made up of both black and white members, handed its recommendations to the Turnbull government on Monday.

It is the culmination of months of consultations with more than 1,000 Aboriginal and Torres Strait Islander people around the country, and is the latest development in the seven-year road to determine what form of recognition should be put to the Australian public at referendum.

Australia remains the only Commonwealth nation with a sizable Indigenous population to have not signed a treaty with its first peoples. It also contains racist provisions in the constitution, which allows government to make laws both for and against Aboriginal people, a situation that lead to discriminatory laws like the NT intervention in 2007.

While a treaty process and constitutional reform have been seen as binary issues, separated from each other, the Referendum Council has suggested that they could both be achievable, with the proposed "voice" helping facilitate treaty discussions.

Referendum Council member and constitutional law expert Professor Megan Davis told the ABC this was the most comprehensive process yet to determine what Aboriginal and Torres Strait Islander people would support.

"One of the things that distinguishes the work of the Referendum Council from the previous bodies... is that until now we haven't had a very clear indication of what it might be that Aboriginal people themselves want, so this is the first process that really engaged community on the reform options that were on the table," Professor Davis said.

Maritime Union of Australia's Thomas Mayor, a co-chair of the Uluru Statement Work Group, told BuzzFeed News the "voice to parliament" would lead to a real difference in the lives of First Nations people and allow true representation.

"When you think about our leadership as people now, we are fairly disjointed. There should be democratic processes where you know who the people are who are genuinely authorised to speak on your behalf," Mayor said.

"In my view, the council recommendation and what the Uluru statement calls for is a very positive and substantive thing that can make a difference in the lives of Aboriginal and Torres Strait Islander people."

The Uluru Statement From the Heart was released in May following extensive community consultations on what constitutional model Aboriginal and Torres Strait Islander people would support being put to a referendum. The consultations were held in communities all across the country, and ended with a delegation of 250 Indigenous community members across the country.

The Referendum Council's report largely reflects the aspirations put forth in that statement.

But the previous seven years of the recognition debate, which has been heavily focused on inserting a form of acknowledgement of Aboriginal and Torres Strait Islander people in the preamble of the constitution, has led to a feeling of disempowerment within Aboriginal communities.

It has been compounded by the fact there has been no robust nationally representative body since the demise of the Aboriginal and Torres Strait Islander Commission (ATSIC) under the Howard government, leading to a sense of powerlessness across Aboriginal Australia.

Carpentaria Land Council's Murrandoo Yanner told BuzzFeed News he was concerned that no one from his homelands in the Gulf of Carpentaria, northern Queensland, had been consulted on the issue.

Yanner said he was supportive of a treaty process first above a referendum, and that there had to be a focus on how consultation would be driven among individual Aboriginal nations.

"I think we need to get realistic that Aboriginal people want treaties," Yanner told BuzzFeed News.

He believes the proposed body and a potential referendum would need several years to educate the Australian public, and that a proposed body would not go far enough.

"It's worse than ATSIC," he said. "We were able to evolve ATSIC away from handpicked commissioners and chairs to a body elected by our people. By the sounds of this proposal, it would be another backward step."

The Referendum Council's report could not recommend a Makarrata Commission to oversee an agreement-making and a treaty process, as it was outside its terms of reference, but BuzzFeed News understands this is still still a key focus.

Aboriginal lawyer Michael Mansell, who attended the Uluru delegation in May, told BuzzFeed News that the focus should be on a treaty first.

He said while a national body is sorely needed, the "voice" would be an advisory body with no power to stop discriminatory laws being passed.

"An advisory body can do nothing except give advice. That advice can be accepted, ignored or rejected. It's a nothing body, it never could do anything," he said.

"No one would be able to seriously convince anybody that a constitutionally entrenched body that has a right to comment and no more, which is a duplication of the existing Social Justice Commissioner's responsibility, completely ineffective as we all know, that this body would make a difference," Mansell told BuzzFeed News.

"Structurally it can't, constitutionally it can't, legally it can't."

Mansell said the makeup of the body was very "general", but did not clearly define what Aboriginal people had called for during consultations.

"People were in clear agreement that we need a national body, and secondly that it should be entrenched in the constitution, but there was no resolution about what comes first – the body or the referendum," he added.

"There was no refinement on what powers it would have."

He said that if it were to go ahead, there would be an advantage in setting up a body first, before a referendum, where First Nations people can negotiate the makeup of the body as it goes before parliament.

"We badly need a national body, one that's made up of credible people who we can reasonably get behind. It's not going to be perfect, but that can advocate for the interests of Aboriginal people and have some clout," Mansell said.

"In the meantime, we have to lobby for designated seats or treaty or a treaty commission.

"You've got to have a rallying point. Aboriginal people don't have a maypole, we are just dancing in the wind."

But Mayor said the word "advisory" in describing the proposed "voice" was problematic.

"The only group of people that isn't advisory is parliament in this country," he said. "So what's important for our people to focus on is, what functions do we want the body to have? What resources should it have? How do we ensure it is genuinely representative?"

Darkinjung Land Council CEO Sean Gordan acknowledged there were many First Nations people who felt left out but said the Referendum Council had done a "fantastic job" in broadly representing community.

"It's one of those things – I don't know how you can genuinely get a process where there's a 100% engagement and consultation across the board," Gordan said.

BuzzFeed News understands the community consultations were limited by funding, which restricted the number of consultations in certain regions of the country.

Gordon said the "voice" could be used to help oversee treaty talks within states and territories. Both the South Australian and Victorian governments are currently in the midst of treaty negotiations.

"I think what the Referendum Council came up with and the dialogues really pushed was quite smart in the sense that it gave us a proposal for structural changes within the constitution by way of the voice, and then it reinforced the need to set up a Treaty Commission," Gordon said.

He said a nationally representative body in the form of a "voice" would be the best mechanism to oversee the setting up of those treaty structures. While the "voice" would be constitutionally entrenched, the treaty talks would be subject to the whim of state governments.

Gordon said the "voice" is the best chance yet for Aboriginal people to have a say over legislation.

"We have no say whatsoever in how government rolls out legislation, policy, programmes or funding. We have no say right now. ... I'd like to think in the future we will be in control of those things."

The Referendum Council is a departure from previous recommendations to remove the "race power", allowing governments to make laws for and against Aboriginal people, as well as recommendations around symbolic recognition in the form of a preamble.

The departure was met with disappointment by Aboriginal MP Linda Burney, who told the ABC the council's report was "limiting" because it didn't address the removal of the race powers.

But those recommendations were rejected at the consultations by the Referendum Council, with concerns raised about what would replace the discriminatory provisions in the constitution. There are also concerns about what effect the removal of these race powers would have on legislation like Native Title as well as culture and heritage laws.

Mayor told BuzzFeed News the proposal to remove the race power provisions had been discussed extensively in consultations, but ultimately had been rejected with a "sophisticated response".

He said it was now time for the leadership to begin looking at the way forward using the council's recommendation.

"I think it's a time where our leadership, as varied as we are, need to make a brave decision about how we take a step forward," he said. "I'm frustrated we have such great leadership that can be pulled in so many different directions."

It is now time for a "brave decision" from those in power, Mayor said.

Amy McQuire is an Indigenous Affairs Reporter for BuzzFeed and is based in Queensland, Australia.

Contact Amy McQuire at amy.mcquire@buzzfeed.com.

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