Recognition of Aboriginal rights: A contemporary Australian perspective

The Doctrine of Discovery and Papal Documents

Being in Rome marking the 50^th anniversary of diplomatic relations between Australia and the Holy See, it is appropriate that I commence with some observations on the recently released Joint Statement of the Dicasteries for Culture and Education and for Promoting Integral Human Development on the ‘Doctrine of Discovery’. This statement has been warmly welcomed by First Nations peoples in Australia, as elsewhere. The Dicasteries have acknowledged that with the help of Indigenous peoples, ‘the Church has acquired a greater awareness of their sufferings, past and present, due to the expropriation of their lands, which they consider a sacred gift from God and their ancestors, as well as the policies of forced assimilation, promoted by the governmental authorities of the time, intended to eliminate their indigenous cultures.’[1] 

Assimilation and dispossession are the twin evils we must counter if we are adequately to recognise Aboriginal rights in post-colonial societies in the 21st century.

Though some papal bulls of the 15^th century gave support to the so called Doctrine of Discovery, the dicasteries in their recent statement point out that ‘numerous and repeated statements by the Church and the Popes uphold the rights of indigenous peoples’.  The earliest clear example is the 1537 Bull Sublimis Deus in which Pope Paul III wrote, ‘We define and declare [ ... ] that [, .. ] the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they be outside the Christian faith; and that they may and should, freely and legitimately, enjoy their liberty and possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and have no effect.’

This more enlightened thinking of the sixteenth century was informed in part by the three great Dominicans of the Salamanca school: Antonio Montesino (1475 - 1545), Francisco de Vitoria (1486–1546), and Bartolomé De Las Casas (1484-1566).

Like Ignatius Loyola, Francisco de Vitoria was a student at the University of Paris. But by the time Ignatius arrived there, Vitoria was back in Spain ensconced as professor of theology in Salamanca where he wrote in defence of the colonised Indians for over twenty years, becoming one of the founders of international law. Vitoria justified conquest and colonisation but insisted that the Indians were not be deprived of their dominion over their lands (dominium) nor were they to be enslaved. In The Idea of Natural Rights, Brian Tierney traces the thinking of Vitoria. Vitoria thought there were only four reasons which could ‘render the Indians incapable of holding such dominium – that they were sinners, or infidels, or irrational, or insane.’[2] Vitoria concluded that none of these reasons rendered people in general, or the Indians in particular, incapable of being right-holders.  Speaking of the Indians, Vitoria stated:

‘According to the truth of the matter they are not irrational, but they have the use of reason in their own way.  This is clear because they have a certain order in their affairs, ordered cities, separate marriages, magistrates, rulers, laws…Also they do not err in things that are evident to others, which is evidence of the use of reason.’[3]

Speaking of the Spanish conquest of Indian lands, he said:

The conclusions of all that has been said is that the barbarians undoubtedly possessed as true dominion, both public and private, as any Christians.  That is to say, they could not be robbed of their property, either as private citizens or as princes, on the grounds that they were not true masters.  It would be harsh to deny to them, who have never done us any wrong, the rights we concede to Saracens and Jews, who have been continual enemies of the Christian religion.  Yet we do not deny the right of ownership of the latter, unless it be in the case of Christian lands which they have conquered.[4]

Alan Ryan in his comprehensive two volume work On Politics describes Vitoria as ‘an uncompromising defender of absolutism’ who ‘would not bend the dictates of rational jurisprudence to the needs of the powerful.’[5]  Ryan says, ‘As always, there was a gap between the official morality preached in the metropolitan country and the behavior of conquerors and colonizers far from home.’[6]

Ryan describes Las Casas’s heartbreaking 1542 account of the destruction of Caribbean Indians ‘emphasizing the innocence and gentleness of the Indians and the rapacity and savagery of the Spanish conquerors’.  Ryan concludes that Las Casas ‘made little headway; greed is notoriously likely to make us accept bad arguments and reject good ones.’[7] Tierney says ‘Las Casas was not articulating a coherent political theory in the calm of the study; he was engaged in constant battle; his adversaries kept reiterating the same arguments against his position, and Las Casas kept responding from his prepared stock of counter arguments.’[8] Though some nationalist historians have seen Las Casas  as arrogant, unbalanced, and even paranoiac, many scholars nowadays see him as having been the ‘authentic representation of the Spanish conscience’[9].  While his chief protagonist at court Sepulveda saw the Indians as primitives in every sense, Las Casas thought they surpassed even the Greeks and Romans in the use of natural reason. ‘They are our brothers, and Christ gave his life for them.’[10]

We must concede that none of these Dominican advocates argued successfully against Spanish colonisation nor against the Pope’s capacity to grant jurisdiction to whomsoever he chose. Each of them hoped and prayed that the Indians would be converted to Christianity.  Las Casas said:

Whenever a free person and, still more, a free people or community is to be obliged to accept some burden or pay some due and generally when it is a question of something prejudicial, especially to many, it is fitting that all whom the matter touches be called and their free consent obtained; otherwise what is done has no validity.[11]

Therefore all, both great and small, the whole people and individual persons, are to be summoned and their consent sought and obtained.[12]

Tragically as Brian Tierney observes: ‘In the end, all the writings on behalf of the Indians did nothing or little to ameliorate their plight.  The battles that were sometimes won in the debating halls of Salamanca and Madrid were nearly always lost among the hard realities of life in Mexico and Peru.’[13] 

Moving back to our own contemporary reality, many Indigenous people have taken heart from the closing observation of the two dicasteries:

More recently, the Church’s solidarity with indigenous peoples has given rise to the Holy See’s strong support for the principles contained in the United Nations Declaration on the Rights of Indigenous Peoples. The implementation of those principles would improve the living conditions and help protect the rights of indigenous peoples as well as facilitate their development in a way that respects their identity, language and culture.

Modern Popes Listening to Indigenous Peoples

When Pope John Paul II came to Australia in 1986, he met with Aboriginal and Torres Strait Islander Australians at Alice Springs in the centre of the country.  He had listened closely to Indigenous accounts of the people’s suffering the effects of dispossession and colonisation.  He alluded to the twin evils of dispossession and assimilation.  He said:

Let it not be said that the fair and equitable recognition of Aboriginal rights to land is discrimination. To call for the acknowledgment of the land rights of people who have never surrendered those rights is not discrimination. Certainly, what has been done cannot be undone. But what can now be done to remedy the deeds of yesterday must not be put off till tomorrow.[14]

He spoke not only about land rights but about the need for negotiated agreements:

The establishment of a new society for Aboriginal people cannot go forward without just and mutually recognized agreements with regard to these human problems, even though their causes lie in the past. The greatest value to be achieved by such agreements, which must be implemented without causing new injustices, is respect for the dignity and growth of the human person. And you, the Aboriginal people of this country and its cities, must show that you are actively working for your own dignity of life. On your part, you must show that you too can walk tall and command the respect which every human being expects to receive from the rest of the human family.[15]

Our present pope, Pope Francis, in his encyclical Laudato Si’ says: ‘It is essential to show special care for indigenous communities and their cultural traditions.  They are not merely one minority among others, but should be the principal dialogue partners, especially when large projects affecting their land are proposed.’[16]   After the Amazon Synod, he wrote:

‘[A] consumerist vision of human beings, encouraged by the mechanisms of today’s globalized economy, has a leveling effect on cultures, diminishing the immense variety which is the heritage of all humanity”.  This especially affects young people, for it has a tendency to “blur what is distinctive about their origins and backgrounds, and turn them into a new line of malleable goods”.  In order to prevent this process of human impoverishment, there is a need to care lovingly for our roots, since they are “a fixed point from which we can grow and meet new challenges”.  I urge the young people of the Amazon region, especially the indigenous peoples, to “take charge of your roots, because from the roots comes the strength that will make you grow, flourish and bear fruit”.’[17]

The Australian Context

1. The 1988 ‘Bicentenary’

Most Australians are committed to governments doing what can be done to relieve the effects of past dispossession and assimilation of First Nations peoples having been denied their lands and the capacity to maintain their culture and traditions.  The ongoing political tension is over the entitlement to self-determination within the life of the nation state.  The tension was nicely highlighted in 1988, the bicentenary of the establishment of the first British colony on the Australian continent.  That year, a new Parliament House was opened in Canberra, the national capital.  The first item of substantive business in the new Parliament was a motion proposed by the leaders of the Australian Christian Churches working in close consultation with Indigenous leaders.  The motion read:

That this House-

 

(I) acknowledges that:

(a) Australia was occupied by Aborigines and Torres Strait Islanders who had settled

for thousands of years before British settlement at Sydney Cove on 26 January 1788;

(b) Aborigines and Torres Strait Islanders suffered dispossession and dispersal upon acquisition of their traditional lands by the British Crown; and

(c) Aborigines and Torres Strait Islanders were denied full citizenship rights of the Commonwealth of Australia prior to the 1967 Referendum;

 

(2) affirms:

(a) the importance of Aboriginal and Torres Strait Islander culture and heritage; and

(b) the entitlement of Aborigines and Torres Strait Islanders to self-management and self-determination subject to the Constitution and the laws of the Commonwealth of Australia; and

 

(3) considers it desirable that the Commonwealth further promote reconciliation with Aboriginal and Torres Strait Islander citizens providing recognition of their special place in the Commonwealth of Australia.[18] 

The conservative side of the Parliament expressed its last minute inability to agree to the motion. They baulked at the clause affirming ‘the entitlement of Aborigines and Torres Strait Islanders to self-management and self-determination subject to the Constitution and the laws of the Commonwealth of Australia’. They proposed that the entitlement to self-management and self-determination be specified to be ‘in common with all other Australians’[19].  This qualification was not acceptable to the Indigenous leaders who thought it was unduly assimilationist, nor was it acceptable to the church leaders who thought the compromise to satisfy the conservative side of politics could not be bought at the cost of Indigenous disappointment.  So a moment for national reconciliation was lost. The fundamental point of philosophical difference has remained in Australian public discourse for the last 35 years. It is playing out again in this year’s campaign for a referendum to recognise Australia’s First Peoples in our Constitution by means of a Voice to Parliament and Executive Government.

2. The 1992 Mabo Decision

After the 1988 bicentenary, the focus moved from self-determination in the Parliament to land rights in the courts.  On this very day, 3 June, 31 years ago, the High Court of Australia ruled that the First Peoples did not lose their rights to land simply by the British assertion of sovereignty over them and their lands.  On 3 June 1992, the High Court delivered its historic judgment in Mabo v Queensland (No.2).[20]

To appreciate the significance of the Mabo case, one needs to understand something of the past British jurisprudence of Indigenous land rights, or more correctly, the lack thereof.  In 1919, the Privy Council decided In re Southern Rhodesia in which Mr. Rhodes’ British South Africa Company was a party.  The decision related to land transactions between Cecil Rhodes and the native peoples of Zimbabwe.  The other parties to the proceedings were the Legislative Council of Southern Rhodesia, the Crown and the native peoples.  Lord Sumner in his report of the Privy Council wrote:[21]

By the disinterested liberality of persons in this country their Lordships had the advantage of hearing the case for the natives who were themselves incapable of urging, and perhaps unconscious of possessing, any case at all.   Undoubtedly this inquiry has thereby been rendered more complete.

Leslie Scott KC and Stuart Bevan are described as appearing ‘for the natives’, perhaps the shortest and most generic description of a party ever to appear in the authorised law reports.  On the next page of his Report, Lord Sumner writes:[22]

The estimation of the rights of aboriginal tribes is always inherently difficult.  Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society.  Such a gulf cannot be bridged.  It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them.

Lord Sumner observed that there was ‘a wide tract of much ethnological interest’ between these tribes and other indigenous peoples ‘whose legal conceptions, though differently developed, are hardly less precise than our own’.   He thought the natives in question ‘approximate rather to the lower than to the higher limit’.[23]  According to the Privy Council, the maintenance of native title rights ‘was fatally inconsistent with white settlement of the country’ which ‘was the object of the whole forward movement, pioneered by the Company and controlled by the Crown with the result that the aboriginal system gave place to another prescribed by the Order in Council’. The Privy Council concluded its consideration of the native title claim, ‘Whoever now owns the unalienated lands, the natives do not.’[24]  The natives were the people of one new polity without a voice, under one new law without rights.

Turning to the dispute between the company and the Crown, the Privy Council decided that the British South Africa Company was entitled to dispose of any unalienated lands using the proceeds to offset the costs of administration.  Should the crown terminate the Company’s administration of Southern Rhodesia, the company was entitled to reimbursement from the Crown for previous costs - either from the proceeds of further land sales or from public funds.

At the height of colonial expansion by European empires, those indigenous groups who bore some resemblance to their colonial masters were to enjoy some recognition and protection. Those differing from their new masters who could barely comprehend their social reality were to be denied any semblance of land rights and self-determination. Such Eurocentric notions put blinkers on the law’s horizons of justice. 

74 years after the Privy Council’s decision about the fortunes of the British South Africa Company, the High Court of Australia had, for the first time in the Mabo case, to consider the rights of the Australian ‘natives’ to the ‘unalienated lands’.  In 1992, that court decided to discard the distinction between inhabited colonies that were deemed to be terra nullius and those which were not:[25]

‘If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today’s world that the common law should neither be nor be seen to be frozen in an age of racial discrimination. The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country.’

With the removal of the blinkers used by Lord Sumner and most Europeans of his time, indigenous people are not guaranteed a better life, but they can be assured the legal and political preconditions for better participation in the life of the nation state, while maintaining and adapting their traditional places and lifestyle.

The contemporary Australian court went on to say:[26]

‘Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people.’

Does this reference to contemporary values imply that the judges thought the majority of Australians, if asked in an opinion poll, ‘Do you support aboriginal land rights?’, would have answered unequivocally ‘Yes’.  I do not think it can mean that.  I am prepared to accept that the majority of Australians if asked that question in 1992 would have answered ‘No’.  The values that underpin the Mabo decision are respect for property, the desire for certainty in the conduct of relations relating to land, predictability in the application of the law by courts for the resolution of conflict, and non-discrimination in the sense that governments should not treat persons differently unless there is a coherent rationale for such different treatment.  In particular, governments should not treat more adversely people’s property rights simply because they are members of a particular race.  These are the enduring values of contemporary Australians.

After the Mabo decision, I met with the senior partners of one of Australia’s largest legal firms. They were agnostic about the decision’s effect, doubting that it had really changed anything. I pointed out that my line of work had not changed but that prior to Mabo it was called politics; post Mabo it was called law. It was unimaginable prior to Mabo that a Jesuit working for Aboriginal rights would have been invited to the annual retreat of a leading law firm.  Something had changed. 

At the end of the session, one of the lawyers, a Mr. Murphy pointing out that his ancestors were Irish, asked: ‘If there are special rights for the Aborigines, why don’t you have special rights for the Irish?’  Being a Brennan and my mother an O’Hara, I have some sympathy for the rights of the Irish in Ireland.  I take some consolation and pride in the fact that there is somewhere on earth that the Irish can be as Irish as they like, with minimal interference by other persons. The more relevant comparison is not with the rights of the Irish in Australia but with the rights of the Irish in the Republic of Ireland.  There is only one place on earth where Australian Aboriginal people have any prospect of living out the fullness of their community life. That is on the Australian continent, though as part of a nation state where as an indigenous minority, they will be far more circumscribed in their distinctive cultural choices.  But there are possibilities for them, and those possibilities are enhanced by recognition of their land rights and their ongoing entitlement to self-determination within the life of the nation.

3. The 2017 Uluru Statement from the Heart

Since the Mabo decision, the Australian Parliament has enacted the Native Title Act.  Progressively there has been recognition of the native title rights still existing and compensation paid for the extinguishment of native title.  And since 2007, the focus has moved to resolving how best to recognise our First Peoples in the Australian Constitution.  Back in 1967, the Constitution was amended to delete the two adverse references there were to Aboriginal people.  Since 1967, the Constitution has been silent on the place of Aboriginal and Torres Strait Islander peoples.

On the 50^th anniversary of the 1967 referendum, a gathering of First Peoples at Uluru published the Uluru Statement from the Heart in which they called for ‘the establishment of a First Nations Voice enshrined in the Constitution’[27].  Last week, our Parliament began debating the bill for the proposed referendum on the Voice.  Reminiscent of the 1988 debate on parliamentary recognition of the First Peoples, the conservative side of the parliament has opposed any provision other than what would be enjoyed ‘in common with all other Australians’.  Both the Liberal and National Parties are opposing the referendum proposal.  One Liberal member who has sweated blood on the issue is Julian Leeser who resigned from the Opposition front bench so that he could campaign for a Yes vote even though he has serious, reasoned reservations about the proposed wording of the change to the Constitution.  He told Parliament:[28] 

‘Over thousands of years, Australia’s Indigenous people have made their peace with this land, and it’s become part of their soul.  Lives infused by the land, the seasons and the stories of their ancestors.  The 2021 Senior Australian of the Year, Dr Miriam-Rose Ungunmerr Baumann, calls the contemplation of this land “deep listening”, “dadirri”—the ability to stop, contemplate and listen.  To listen to the deep waters of our country, to the present as well as times past; to listen and to hear the beckoning of change.  This is such a moment for our country and for the home we share, Indigenous and immigrant, drawn from every creed and from every corner of the world.’

I have had the good fortune to be here in Rome with Miriam-Rose this week as part of the Australian Embassy’s celebration of 50 years diplomatic relations between Australia and the Holy See.[29]  Her message of ‘deep listening’, ‘dadirri’, has been heard by people of diverse languages and cultures.  On Monday, she told the Australian media gathered here in Rome:

‘There’s not enough information going to everyone.  I’m in a remote community, and there are others that are in that situation.  There should be more people coming in and explaining what it is, and how it’s going to affect us… in a good way or a bad way.  I don’t mind the Voice, that’s not the issue. It’s just, there’s not enough engagement with us.’[30]

Last week, Mr Peter Dutton, the Leader of the Opposition in the Australian Parliament, made it abundantly clear that the Liberal Party will not support the Voice referendum in any shape or form, and will not propose any amendments to the proposed Bill.  The Opposition’s stance is a clear ‘No’.  That being the case, you would have to wonder why he ever appointed Julian Leeser as his Shadow Minister for Indigenous Australians, as well as Shadow Attorney General.  Dutton told Parliament:[31]

‘Changing our Constitution to enshrine a Voice will take our country backwards, not forwards. The Voice is regressive, not progressive, and it should be very clear to Australians by now that the Prime Minister is dividing our country, not uniting us.’

‘But this referendum on the Voice will undermine our equality of citizenship. It’s an overcorrection.  The Voice will embed new procedural rights in our Constitution— rights which are conferred only on the Aboriginal and Torres Strait Islander Voice.  It will have an Orwellian effect, where all Australians are equal but some Australians are more equal than others.’

 

Later in the week, the Prime Minister, Mr Anthony Albanese, responded forcefully making it just as clear that the Government will not accept any amendments to the proposed wording. From here on, it is ‘crash or crash through’.  He told Parliament:[32]

 

‘[T]he Liberal Party frontbench had already locked themselves into saying no before the committee process that they called for and they said was important had even commenced its work.  And the National Party decided to say no before the draft question had even been finalised.  From the outset, instead of seeking ways to agree they have looked for excuses to disagree.’

The Prime Minister said that when he first put forward a suggested set of words in July last year, ‘it was a draft and we were open to debate, and I encouraged members to come forward—and, indeed, the public to come forward as well.’  In fairness to the Opposition, it should be admitted that no parliamentary process for receiving suggestions was set up until April this year, and the process was very truncated, with the government having already decided that no changes would be made. The words were already set in concrete before the parliamentary committee even met.

Legal experts are divided over whether the proposed wording could be improved to avoid legal doubt and administrative complexity.  The Opposition’s key member on the parliamentary committee reviewing the proposed wording made this valid observation:

‘When we talk of risk it must be assessed with one eye on severity and the other on likelihood, because both matter. It is why we treat risk for aircraft maintenance more seriously than we do for fixing a pushbike. Small risks that might have catastrophic consequences should not be ignored. We should be just as careful when considering a change to our Constitution, our founding and permanent democratic document. The committee heard evidence from the government's own legal experts that, if the proposed amendments are made and if the twin duties to consult and consider are found, this will make governance unworkable. Even those experts who sought to downplay the likelihood of this happening cannot be sure of whether that would occur, so even a low risk is a risk that we should take seriously.’[33]

The government considers the risk so minimal as to not warrant any rewording which would eliminate the risk.  The government and their legal advisers are satisfied that Parliament will be able to legislate to overcome any unforeseen problems. They are also satisfied, despite a difference of competent legal opinion, that a future High Court is unlikely to infer or imply a duty for public servants to consult the Voice or to receive representations from the Voice before making decisions. They are also satisfied that the Voice will have better things to do with its limited time and resources than to be making representations to public servants about routine administrative decisions.  The Attorney General has gone so far as to assure the Parliament that ‘the parliament will have the power to legislate about whether representations by the Voice need to be considered by the executive government and, if so, in what circumstances’[34]. 

All this begs the questions: Why doesn’t parliament simply tweak the words to ensure that public servants performing their routine administrative tasks are not required by the Constitution to consider representations by the Voice?  Why not enact a constitutional provision which simply permits the parliament to stipulate by legislation when, if ever, public servants making routine administrative decisions will be required to consider representations by the Voice?[35] 

Neither side of the parliamentary chamber has done what was needed to bring the country together, to bring reconciliation in our land, to bring the country to ‘Yes’. Whichever way the referendum goes, we will be left with a country divided, and that is a tragedy.

Following the lead of Miriam Rose Ungunmerr, let’s hope that all Australians, whichever way they will eventually vote, will recommit themselves to a deep inner listening to each other and to our land.

For an international audience gathered here at the Gregorian University, it is worth reflecting on the haunting words from the Uluru Statement from the Heart:[36]

‘[The] ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty.’ 

I can assure you that not many 21st century Aboriginal Australians use terms like ‘therefrom’, ‘thereto’ and ‘thither’. This statement is an adapted quote from the submission put by Mr Bayona-Ba-Meya, Senior President of the Supreme Court of Zaire, who appeared on behalf of the Republic of Zaire in the International Court of Justice in 1975 dismissing ‘the materialistic concept of terra nullius’ substituting ‘a spiritual notion’.  Bayona-Ba-Meya was a Congolese lawyer who commenced his studies in a Catholic minor seminary before going on to study law at a Catholic university in the Congo.  Judge Fouad Ammoun, a Maronite Catholic and the Lebanese Vice-President of the International Court, quoted the submission in his judgment in the Advisory Opinion on Western Sahara.[37]  This part of Judge Ammoun’s opinion was then quoted by a couple of the judges in the High Court Mabo decision.[38] 

How extraordinary that the inheritors of the longest living culture on earth would quote a Lebanese judge quoting a lawyer from Zaire to express the depths of their spiritual relationship with the land. This is a profound lesson for those of us seeking an inclusive Australia. We are able to share our diverse cultural and religious modes of expression to communicate the deepest yearnings of our hearts. No doubt this is what Miriam Rose will do in Rome this week.

Judge Ammoun observed in his judgment that the ‘spirituality of the thinking of the representative of Zaire echoes the spirituality of the African Bantu revealed to us by Father Placide Tempels, a Belgian Franciscan, in his work Philosophie bantoue. The author sees therein a “striking analogy” with “that intense spiritual doctrine which quickens and nourishes souls within the Catholic Church”.’[39] How extraordinary it is too, that remarks by lawyers from Zaire and Lebanon echoing African Bantu and Belgian Catholic notions of spirituality would come to express Australian Indigenous spiritual aspirations to land in such a foundational document as the Uluru Statement from the Heart.

Last week, NATSICC (the National Aboriginal and Torres Strait Islander Catholic Council) which is the formally recognised Voice in the Australian Catholic Church published its statement supportive of a constitutionally enshrined Voice to Parliament, saying:[40]

‘We acknowledge that people of goodwill who care for First Nations Peoples can come to different conclusions and form differing opinions from the same information. We must accept these opinions and respect each other’s rights to express them.

‘However, we offer these comments to encourage Australians to consider the benefits of the Voice to Parliament for helping to achieve reconciliation with Aboriginal and Torres Strait Islander Australians.

‘We urge all Australians, including our Members of Parliament, to engage in respectful and constructive dialogue on this issue.  By working together in a spirit of solidarity, we can create a more just and equitable society for all.’

Let’s hope the reconciling Spirit blows through the chambers of our Parliament during the next three weeks while our elected leaders lay the groundwork for the three month campaign when we the people must decide how we are to be reconciled in our land, deeply listening to each other’s concerns for those who are the First Peoples of our land and for all those who come to Australia to find a home where they can live in peace and security, equal under the law.

Given the reluctance of all major political parties to consider any amendments to the proposed change to the Constitution, the wording of the change to the Australian Constitution might not be perfect.  But we the people will have a clear choice in October this year. We can vote ‘No’ to a constitutionally enshrined Voice either because we continue to think that all constitutional entitlements should be held ‘in common with all other Australians’ or because we are not convinced that the Voice will work effectively; or we can vote Yes because, whatever the imperfections of the wording and the risk of future complications, we think it is high time that Australia’s First Peoples were recognised in the Constitution in a manner sought and approved by a broad cross-section of Indigenous leaders. Regardless of the shortcomings of our Parliament, I will be voting ‘Yes’, and I say that unequivocally.

Only 8 out of 44 referendums have succeeded in Australia since federation. I hope this one will be the 9^th. The ruling Labor Party has attempted to amend the Australian Constitution 25 times and succeeded only once. This time, I hope Labor can double its success rate.

One of Australia’s finest Aboriginal leaders is Lowitja O’Donoghue. In 2017, Lowitja paid me the great honour of asking me to deliver the Lowitja Oration for the 50^th anniversary of the 1967 referendum. I concluded my oration with these words:

‘Lowitja, bring us together behind a proposal for constitutional recognition that is both achievable and principled, providing constitutional recognition of a First Nations Voice on distinctively Aboriginal policy issues, while leaving open the future extra-constitutional question of a makarrata (treaty) following upon a makarrata commission.  ….[L]et’s join hands and sing together the Freedom Songs, committing ourselves to the unfinished business of the 1967 referendum, recalling (the) Uluru Statement from the Heart that “in 1967 we were counted, in 2017 we seek to be heard”.’[41]

This week, our Prime Minister Anthony Albanese delivered the Lowitja Oration and he concluded with these words:

‘[L]et us not content ourselves with modest change. Let us not fill our hearts with the empty warmth of the merely symbolic.  Let us write the beginning of a better chapter, a chapter in which we turn hope into reality. A reality driven by the removal, as the Uluru Statement says, of the “torment of powerlessness”.  A reality in which the Uluru Statement’s invitation to “walk with us in a movement of the Australian people for a better future” is, at last, accepted.  Together we can do just that. And together we will.’[42]

Being attentive to that deep inner listening of which Miriam Rose Ungunmerr has been speaking this week in the Eternal City, may the Australian people bring the country to ‘Yes’ recognising the rights of our First Peoples who have occupied the Great South Land of the Holy Spirit for tens of thousands of years.

ULURU STATEMENT FROM THE HEART

We, gathered at the 2017 National Constitutional Convention, coming from all points of the southern sky, make this statement from the heart:

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago.

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.

How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years?

With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood.

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.

These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.

We seek constitutional reforms to empower our people and take a rightful place in our own country. When we have power over our destiny our children will flourish. They will walk in two worlds and their culture will be a gift to their country.

We call for the establishment of a First Nations Voice enshrined in the Constitution.

Makarrata is the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination.

We seek a Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history.

In 1967 we were counted, in 2017 we seek to be heard. We leave base camp and start our trek across this vast country. We invite you to walk with us in a movement of the Australian people for a better future.

Originally delivered by Fr Frank Brennan SJ at the Pontifical Gregorian University Rome, on 3 June 2023. Watch the full address here: https://www.youtube.com/watch?v=ZwVExT04RGo Listen here: https://soundcloud.com/frank-brennan-6/gregorian-address

Fr Frank Brennan SJ is the Rector of Newman College, Melbourne, the Distinguished Fellow of the P M Glynn Institute, Australian Catholic University, and the former CEO of Catholic Social Services Australia (CSSA). He is a peritus at the Fifth Plenary Council of the Australian Catholic Church. He was a member of the Morrison Government’s Senior Advisory Panel on the Indigenous Voice Co-design Process.

Main image: Campaigning ahead of the 1967 referendum. (National Gallery of Australia)

[1] Joint Statement of the Dicasteries for Culture and Education and for Promoting Integral Human Development on the “Doctrine of Discovery”, 30 March 2023, available at https://press.vatican.va/content/salastampa/en/bollettino/pubblico/2023/03/30/230330b.html.

[2] Brian Tierney, The Idea of Natural Rights, Eerdmans, 1997, p. 266.

[3] Ibid, 269.

[4] Quoted by Roger Ruston, ‘Justice, Peace and Dominicans 1216-1999 - Francisco Vitoria:  The Rights of Enemies and Strangers’, New Blackfriars, 1999, Vol.80(935), pp.4-18, at p.10.

[5] Alan Ryan, On Politics, Liveright Publishing Corporation, New York, 2012, p. 851.

[6] Ibid, 850.

[7] Ibid, 852.

[8] Tierney, 276.

[9] Tierney, 272.

[10] Tierney, 273.

[11] Quoted by Tierney, 274.

[12] Quoted by Tierney, 275.

[13] Tierney, 256.

[14] Pope John Paul II, ‘Address to Aborigines and Torres Strait Islanders’, Alice Springs, 29 November 1986, #10, available at https://www.vatican.va/content/john-paul-ii/en/speeches/1986/november/documents/hf_jp-ii_spe_19861129_aborigeni-alice-springs-australia.html.

[15] Ibid, #11.

[16] Pope Francis, Laudato Si’, 2015, #146

[17] Pope Francis, Post-Synodal Apostolic Exhortation, Querida Amazonia, 2020, #33

[18] House of Representatives, Hansard, 23 August 1988, p. 137.

[19] Ibid, 140.

[20] (1992) 175 Commonwealth Law Reports 1

[21] In re Southern Rhodesia [1919] AC 211 at 232

[22] Ibid, 233-4.

[23] Ibid, 234.

[24] Ibid, 235.

[25] Justice Brennan (Mason CJ and McHugh J concurring) in Mabo v Queensland (No. 2) (1992) 175 CLR 1 at 41-2.

[26] Ibid, 42.

[27] See https://ulurustatement.org/the-statement/view-the-statement/.  The statement is attached as an appendix to this lecture.

[28] House of Representatives, Hansard, 24 May 2023, p. 84.

[29] See https://www.vaticannews.va/en/vatican-city/news/2023-05/ungunmerr-bauman-indigenous-aboriginal-vatican-pope-church.html.

[30] https://www.smh.com.au/national/not-enough-information-elder-sounds-warning-on-voice-ahead-of-pope-meeting-20230530-p5dcaz.html.

[31] House of Representatives, Hansard, 22 May 2023, p. 57.

[32] House of Representatives, Hansard, 25 May 2023, p. 20.

[33] Keith Wolahan, House of Representatives, Hansard, 22 May 2023, p.54.

[34] House of Representatives, Hansard, 30 May 2023, p. 72.

[35] These questions remain unanswered. When rejecting the Leeser amendment which would have omitted all representations to Executive Government, the Attorney General told the House of Representatives: ‘It is the executive government that makes policies and develops proposed laws about Aboriginal and Torres Strait Islander peoples. To improve the laws and policies that affect Aboriginal and Torres Strait Islander peoples and to improve outcomes, the Voice must be able to make representations to the executive government.’ (House of Representatives, Hansard, 31 May 2023, p. 4)  He did not mention the need for the Voice to have a constitutional entitlement to make representations to public servants making routine administrative decisions. If ‘Executive Government’ in cl 129(ii) were replaced with ‘Ministers of State’, the Attorney-General’s stated concern would be satisfied while, at the same time, representations to public servants making routine administrative decisions could be governed solely by statute without a constitutional guarantee which could occasion future High Court intervention causing unnecessary and fruitless delays and costs in routine government administration.

Nor did the Attorney-General address the ambiguity of the term ‘Executive Government’.  Does it include, as claimed by Professors Megan Davis and Gabrielle Appleby, ‘independent statutory offices and agencies – such as the Reserve Bank, as well as a wide array of other agencies including, to name a few, Centrelink, the Great Barrier Marine Park Authority and the Ombudsman’? (see https://www.theaustralian.com.au/inquirer/indigenous-voice-to-parliament-only-works-if-its-free-to-choose-what-to-talk-about/news-story/8361479386a83d8f569640a25622e4fd). Why not dispel the ambiguity once and for all?

[36] https://ulurustatement.org/the-statement/view-the-statement/.

[37] [1975] ICJR, at pp. 85-86.

[38] See Brennan J at p.41 and Toohey J at pp.181-182 (Mabo v Queensland (1975)175 CLR 1).

[39] [1975] ICJR at pp. 77-8.

[40] See https://mailchi.mp/natsicc/the-voice-a-step-forward-on-the-journey-of-reconciliation

[41] Frank Brennan, ‘On Aboriginal Land: Seeking a Place at the Table; Recognising 50 years since the 1967

Referendum’, 2017 Lowitja Oration, available at https://www.dunstan.org.au/wp-content/uploads/2018/11/DDF_LODO_2017_Brennan.pdf.

[42] Anthony Albanese, ‘A Moment to Unite’, 2023 Lowitja Oration, available at https://www.pm.gov.au/media/moment-unite-lowitja-odonoghue-oration.