No other Western constitution provides for an Indigenous “Voice”. Canada’s Constitution includes a simple statement that “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed”. In New Zealand, Maori peoples are not expressly mentioned in the Constitution but the Treaty of Waitangi Act binds the Crown and gave the Treaty of Waitangi recognition in New Zealand law. Treaties are how indigenous peoples have always engaged with colonising powers.
Whether in legislation or in the Constitution, no national body can represent Aboriginal people as a whole.
Every attempt has failed. Aboriginal people are not one nation, but many. My people are Bundjalung on my father’s side and Gumbaynggirr and Yuin on my mother’s side. Bundjalung, Gumbaynggirr and Yuin peoples are examples of traditional owner groups, or “First Nations”.
What’s intended to come after the Voice is equally important to consider in casting a referendum vote. The Makarrata Commission is intended “to supervise a process of agreement making between governments and First Nations and truth-telling about our history”. The word “Makarrata” is Yolngu Matha which the Uluru Statement from the Heart describes as meaning “the coming together after a struggle”.
I’m all for treaties. Agreements between a government and traditional owner groups provide legal certainty to business and governments as to who the traditional owners are and how to recognise them and who they need to talk to when engaged in consultation or seeking consent. This puts economic potential for traditional owner groups within better reach. A treaty is one such agreement as are native title agreements.
However why do we need a national body like the Makarrata Commission to be involved with these discussions at all? Treaties and native title agreements are primarily a State and Territory matter because those governments have the relevant jurisdiction. The answer may be the reference to “governments”, plural. Is the intention for the Makarrata Commission to assume supervision of discussions between State and Territory governments and traditional owners?
The South West Native Title Settlement between the Noongar people and the WA Government has been described as Australia’s first treaty. It illustrates how treaties can be effective in supporting self-determination and how the native title system already provides the framework to put them in place. Would a Makarrata Commission have “supervised” the negotiations between the Noongar people and the WA Government? What would that have entailed? Would a Makarrata Commission have sought to represent or speak for the Noongar people in those negotiations?
Consider these examples. In 2013, Woodside abandoned plans for a gas hub at James Price Point. The Goolarabooloo Jabirr Jabirr people negotiated a native title agreement with Woodside which was overwhelmingly approved by the traditional owners. The project would have generated about $1.5 billion for local Aboriginal communities through jobs, business opportunities and community development.
Activists relentlessly campaigned against the project, enlisting a minority group of local Aboriginal people opposed to the project. After years of lawfare and resistance, the project became uneconomical and Woodside abandoned it. A few years later the Federal Court ruled the minority group weren’t traditional owners there at all.
Adani negotiated six Indigenous Land Use Agreements with four traditional owner groups, including the Wangan and Jagalingou native title group, to deliver jobs and economic opportunities from the project. The W&J ILUA was approved by a 294-1 vote. A resounding approval that the Federal Court scrutinised and found valid.
A small group of W&J people, with financial support from Green activists partly funded out of the USA, challenged the ILUA. Leveraging that opposition, activists mounted a relentless campaign to crush that project, causing years of delay and uncertainty. Unlike Woodside, Adani did not abandon the project.
Aboriginal people don’t always agree on everything. We’re not the Borg with a single consciousness. Even within traditional owner groups there will be differences of opinion. So when a traditional owner group makes a decision there will invariably be some people who don’t agree. Activists take advantage of this, as if Aboriginal people should be held to a unanimous approval threshold no other organisation or group of humans is held to.
The Voice and Makarrata Commission will give people who aren’t traditional owners a seat at the table on traditional owner decisions. And they will amplify minority opinions above decisions of a group made through its established governance system.
We don’t need a centralised bureaucracy sitting over the top of treaty and native title negotiations across the nation, brokering them like some kind of middleman or telling parliaments and governments what traditional owner groups think about projects. Traditional owners can do that themselves.
Indigenous voices won’t become stronger with a Voice and Makarrata Commission. Very likely they will become weaker.
Nyunggai Warren Mundine AO is director of the Centre for Independent Studies’ Indigenous Forum.