Scant Recognition: Have Aboriginal and Torres Strait Islander Peoples any Reason to Hope? | Law

Scant Recognition: Have Aboriginal and Torres Strait Islander Peoples any Reason to Hope?

OPINION: Professor Megan Davis, ABC, 11 August 2016.

Despite the clear and powerful impetus motivating the Indigenous polity for strong reform, there is simultaneously huge pressure on our mob to accept minimalism. That is to say, given the poor referendum outcomes over the years, Indigenous peoples should not argue for substantive change but accept what is referred to as "conservative," "gradualism" or "symbolism."

This is where the debate flounders. Political elites stifling reform in favour of a minimalist approach. We regularly hear that race relations could be damaged if a referendum failed, or race relations could be damaged if the process was abandoned. This is the unfair pressure on Aboriginal and Torres Strait Islander people to which I am alluding.

We must be careful to acknowledge that while symbolism - if that is what it is - is nice and may have some salutary benefits, as Dylan Lino argues, "the pursuit of wholly symbolic recognition in written constitutions often neglects valid grievances about how power is wielded by the state over the group in question." This is a perspective that very few are considering in the current debate.

In many ways it is hugely irresponsible to suggest minimalist "recognition" will close the gap and fix race relations - the kind of hyperbole I am hearing around the country - without elaborating, up front, on how a minor textual legal amendment or symbolism can achieve those things or oblige government to act.

This is why so many Aboriginal and Torres Strait Islander peoples view minimalism/symbolism/gradualism, at least without a pre-negotiated political agreement on a package of reform, as either neutral or no change.

Further, the suggestion constitutional recognition will improve "race relations" is never accompanied by an assessment of race relations now. If the model were symbolic - a description of who Indigenous peoples were and are - to suggest an improvement in race relations because of this is speculative not evidence based; especially if such a referendum ignores what Dylan Lino argues is the legitimate grievances of the polity being recognised "about how power is wielded by the state."

There is a great chasm between what the Australian state wants for Indigenous peoples and what Indigenous peoples seek. This is apparent from the Hansard transcripts of the Joint Select Parliamentary Committee on the Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, which had the task of consulting Aboriginal and Torres Strait Islander peoples on constitutional recognition: the people consulted did not want to talk about "recognition." It is there in black and white and it makes for stark reading. The Aboriginal people consulted spoke about voicelessness, powerlessness and hopelessness.

It is despairing reading. It made me reflect at the historic Kirribilli meeting of Aboriginal leaders in 2015 with Prime Minister Tony Abbott and Opposition Leader Bill Shorten, sitting there as a lawyer among all of these heavy lifters in the Aboriginal health, legal and land sector; what must it be like for a Prime Minister to be sitting around the table with a most profoundly unhappy polity?

Australia's reconciliation process is unlike any other in the world. Eschewing the twin pillars of truth and justice - the foundation of reconciliation movements globally - post-2001 the debate has almost singularly focused on citizenship rights. Reconciliation Action Plans (RAPs) developed by Reconciliation Australia (the post-reconciliation-era entity created to continue the work of reconciliation) are targeted at improving the disparity in employment outcomes in the private and public sector.

However, this approach has ostensibly replaced the "unfinished business" between the state and Aboriginal and Torres Strait Islander peoples, as the core business of reconciliation.

The focus on citizenship rights and statistical equality - particularly evident in the post-Howard era - as opposed to Indigenous rights, has permitted the nation to delay and avoid the uncomfortable conversations required to address the anguished disengagement of the first peoples. The proliferation of RAPs to the exclusion of the bread and butter of reconciliation movements - truth and justice - is uniquely Australian. It continues despite the displeasure of many with the current reconciliation agenda and RAPs supplanting the aspirations of Aboriginal and Torres Strait Islander peoples which are the genesis of the reconciliation movement.

How is it that the Indigenous polity, in a Western liberal democracy like Australia, can be so marginalised and its opinions have so little traction in the national conversation? How did it come to this? There is no simple explanation. In part, to understand requires a forensic knowledge of Aboriginal history that few have the time or the inclination to master.

What interests me here in the hyper-optimism of the philanthrocapitalism that is at the heart of the current Indigenous reconciliation milieu, and the exceptionalism that is bestowed upon Indigenous success stories; the constant thirst for upbeat, optimistic stories that give white Australia hope, what Ta-Nehisi Coates calls "reveling in a specious hope."

The Old Testament scholar Walter Brueggemann reflects on society today that is "strong on self-congratulation," that knows about "initiative and self-actualisation and countless other things," but has nearly lost "the capacity to lament the death of the old world." Brueggemann says that there is mourning to be done with those who know pain and suffering and lack the power or freedom to bring it to speech. He argues that this mourning is a precondition to joy and that "those who have not cared enough to grieve will not know joy."

This resonates with me when reflecting on the current recognition process. There has been no formal reckoning of Australia's history from the political economy of killing to the lengthy period of compulsory racial segregation but for the occasional symbolic acknowledgement, such as the Apology to the Stolen Generations.

I cannot speak for all Aboriginal and Torres Strait Islander peoples, but it often seems as if Australia would like to skip the difficult part of reconciliation - listening and hearing the testimony of those who have suffered and how they think amends should be made - and move immediately to recovery and a peaceful co-existence. This is what Jill Stauffer labels "ethical loneliness" and why the reconciliation process is flailing; the failure to hear "haunt sites where the goal is political transition, reconciliation or forgiveness." This is the case with Australia. The failure to hear what Aboriginal and Torres Strait Islander peoples say haunts reconciliation. It is why it has failed to date.

And yet, on an optimistic note, it seems to me that the recognition project is inadvertently providing the Indigenous polity with renewed confidence to argue for a politically negotiated settlement that allows them to settle these grievances and to design a peaceful path forward. This renewed vigour for a settlement with the Australian nation neatly aligns with Bruggemann's version of hope, which I believe best reflects the current mood of the Aboriginal and Torres Strait Islander community in its ambivalence about state-willed symbolism in favour of something more meaningful and durable:

"Hope, on the one hand, is an absurdity too embarrassing to speak about, for it flies in the face of all those claims we have been told are facts. Hope is the refusal to accept the reading of reality which is the majority opinion; and one does that only at great political and existential risk. On the other hand, hope is subversive, for it limits the grandiose pretension of the present, daring to announce that the present to which we have all made commitments is now called into question."

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