What is a First Nations Voice?
The details of the First Nations Voice are not set out in the Statement, and will be the subject of further deliberation and negotiation. It is likely that it would be an elected First Nations national representative body, and that it would be empowered to give Aboriginal and Torres Strait Islander people a voice in laws that affect them.
The Statement calls for a constitutionally entrenched First Nations Voice. It would be a voice that cannot be removed unless by a future constitutional referendum.
Do other countries have a First Nations Voice?
Yes. There are many ways that this can be achieved. Norway, Sweden and Finland all have a First Nations Parliament, with authority over certain matters and a right to be consulted over legislation that affects them. In contrast, the New Zealand Parliament has seven seats reserved for Māori people. Both of these mechanisms allow Indigenous peoples to have a voice in the processes of government.
Other countries adopt different approaches. In Colombia, a constitutional provision requires the government to consult with Indigenous peoples before permitting natural resource exploitation on Indigenous land. In some cases, the Colombian Constitutional Court has determined that particular instances of consultation were not adequate.
These different arrangements follow international standards. Article 18 of the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Australia in 2009, provides that Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision making institutions’.
What is a Makarrata Commission?
Makarrata is a Yolgnu word meaning ‘a coming together after a struggle’. A Makarrata Commission would have two roles: supervising a process of agreement-making, and overseeing a process of truth-telling.
Agreements between Aboriginal and Torres Strait Islander peoples and Australian governments have been negotiated for many years in Australia, for example under native title and land rights legislation. The Makarrata Commission would allow these processes to be struck at a national level and regionally with First Nations, by providing support and momentum and helping the parties reach agreement.
Another function of a Makarrata Commission would be to supervise a process of ‘truth-telling’: a process that allows the full extent of the past injustices experienced by Aboriginal and Torres Strait Islander people to be uncovered and revealed. Such a process would allow all Australians to understand our history and assist in moving towards genuine reconciliation.
This process may be similar in form to inquiry that led to the Bringing Them Home report, which revealed the truth surrounding the Stolen Generations. The inquiry involved an extensive program of hearings in every capital city and in many regional centres. In 2008, Prime Minister Kevin Rudd apologised in Parliament for government law and policies that resulted in the Stolen Generations.
Do other countries have agreements between Indigenous peoples and governments?
Yes. Agreements have been reached in the US and New Zealand, and are still being negotiated in Canada through a Treaty Commission today.
Why is change necessary?
Reform is needed to give Aboriginal and Torres Strait Islander peoples greater say in and authority over decisions that affect them.
Aboriginal and Torres Strait Islander peoples only comprise 3 per cent of the Australian population. This means that it is difficult for Aboriginal and Torres Strait Islander voices to be heard in elections and in Parliament. They have little say over the laws that impact on them.
This is particularly problematic, because the federal Parliament has two main sources power to make laws with respect to Aboriginal and Torres Strait Islander peoples: an express power for the Parliament to pass laws on the basis of race and the power to make laws in the territories. These powers have been used to pass laws that have been disadvantageous to Aboriginal people without any consultation or consent from them. This is in breach of the right to self-determination that is set out in the United Nations Declaration on the Rights of Indigenous Peoples. Article 3 of the Declaration recognises that before any new laws or policies affecting Indigenous peoples are adopted, ‘States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent’.
So what did the 1967 referendum achieve?
The 1967 referendum is remembered as one of the great successes in the advancement of Aboriginal and Torres Strait Islander peoples. Certainly, gaining more than 90% of voter support constituted an extraordinary electoral success.
There is a widespread belief that the referendum granted Aboriginal people “equality” before the law by way of voting and citizenship rights. However, from a legal perspective, the changes to the Constitution were minor.
The referendum made two technical changes to the Constitution.
• The first removed the provision that excluded Aboriginal people from the counting of the people of the Commonwealth.
• The second was an amendment to remove an exclusion of Aboriginal people from the power to make special laws for people of any race. Prior to the referendum, the states had sole responsibility for making laws for Aboriginal people.
This was a momentous change, but it fell far short of both providing substantive equality and meeting Indigenous aspirations. Indeed, the Constitution still permits the Parliament to enact laws that discriminate based on a person’s race. This power has only ever been used to discriminate against Aboriginal and Torres Strait Islander peoples.
The referendum was important, but it was only half the story; it did not provide a voice for Aboriginal peoples. As the Uluru Statement explains: ‘In 1967 we were counted, in 2017 we seek to be heard’.