Lavery, Daniel --- "The Council for Aboriginal Reconciliation: when the CAR Stops on Reconciliation Day, will Indigenous Australians have Gone Anywhere?" [1992] AboriginalLawB 43; (1992) 1(58) Aboriginal Law Bulletin 7

• The Council For Aboriginal Reconciliation: When The Car Stops On Reconciliation Day, Will Indigenous Australians Have Gone Anywhere?

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The Council for Aboriginal Reconciliation: when the CAR Stops on Reconciliation Day, will Indigenous Australians have Gone Anywhere?

by Daniel Lavery

There has been a somewhat uncertain response to the establishment, in late 1991, of the Council for Aboriginal Reconciliation (CAR). Any criticism of the initiative to date has been muted and, apart from governmental sources, any praise guarded. There is, however, an aura of cautious hope surrounding the CAR and it seems that many observers, indigenous and otherwise, are waiting to see how the Council shapes up before handing out warm praise or cold criticism. It is of concern that there has been so little healthy debate of the issue, particularly as this initiative is seen as charting the path for Aboriginal/non-Aboriginal relations in Australia.

The primary object of the CAR, as stated in s.5 of the Council for Aboriginal Reconciliation Act 1991 (Cth) ('the Act'), is:

"to promote a process of reconciliation between Aborigines and Torres Strait

Islanders and the wider community..."

The functions of the Council, by which the primary object of the Council is to be achieved, are set out in s.6. At first glance, the functions of the Council are most praiseworthy. One, in particular, is long overdue. This is the educative endeavour outlined in s.6(b), and stated to be:

"to promote, by leadership, education and discussion, a deeper understanding by all Australians of the history, cultures, past dispossession and continuing disadvantage of Aborigines and Torres Strait Islanders and the need to redress that disadvantage."

No argument can be forwarded that this is not a most important and very necessary initiative directed to the amelioration of Aboriginal/non-Aboriginal relations in Australia. Our two histories must meet and be reconciled and this is by no means an easy feat. The distinguished members of the Council, headed by Chairperson Mr Pat Dodson, are individually and collectively well-qualified to direct, and assist in, such an education program.

However, with the primary object of the CAR in mind, when the other functions in s.6 are scoured for the means by which this object is to be achieved, the glossy rhetoric surrounding the setting up of the CAR does not appear to approximate the aspirations of indigenous Australians as expressed in the Barunga, and other important statements. Among other things, the CAR is, under s.6:

"(g) to consult Aborigines and Torres Strait Islanders and the wider Australian community on whether reconciliation would be advanced by a formal document or formal documents of reconciliation; and

(h) after that consultation to report to the Minister on the views of Aborigines and Torres Strait Islanders and of the wider Australian community as to whether such a document or documents would benefit the Australian community as a whole, and if the Council considers there would be such a benefit, to make recommendations to the Minister on the nature and content of, and the manner of giving effect to, such a document or documents..."

There are a number of concerns about these legislative statements. The first observation, and certainly the foremost, is that the CAR is merely a process to find a process. The primary object is merely to promote a process of reconciliation. There is great flexibility (a less circumspect observer might speak of an absence of direction), yet it appears that the process is directed to the promulgation of a formal document or documents. The function outlined under s.6(g) is primarily directed to asking whether a 'formal document' is necessary. Function (h) requires the CAR to assess whether this document would 'benefit the Australian community as a whole.'

Given the prolonged treaty debate - now over a generation old - it appears that a great deal of ground will need to be unnecessarily retraced. It appears that the plethora of questions which ground the treaty debate to a stand-still, is to be re-hashed. No good purpose will be served if the CAR re-visits this debate; it will grind to a fruitless halt as it has in the past. If this occurs, a treaty (or 'compact' or whatever term finds favour), will not affect the desires of the indigenous peoples of Australia in so far as the Barunga Statement expresses these goals. My criticism is this: the ends to which the CAR is directed are apparently exhausted and the means are somewhat nebulous. Yet the membership of the CAR is expected to be guided by these uncertain legislative directions and to arrive at a destination.

Moreover, and this concern is philosophical in nature, this process-within-a-process is one of consultation, not of negotiation. The very gist of the concept of reconciliation is that an issue is to be settled to the mutual satisfaction of parties by a process of negotiation. There is also imported into the concept some notion that the parties come to the bargaining table with a semblance of equality of bargaining power.

Herein lies a major problem. Miss Lois O'Donoghue, Chairperson of ATSIC, probably struck close to the heart of my concern when she stated, in her 1991 Garran Oration, that indigenous Australians "have, to a large extent,, been swept aside by the immensely powerful forces that have occupied our country."[1] She went on to state that

"[w]e [indigenous Australians] must reconcile ourselves to this fact and to our weakness, our 1.5 per cent [of the population], and work towards a realistic accommodation with modern Australia."[2]

Most persons would agree with her first statement, yet I am sure that many would be uneasy with her latter statement if viewed in isolation. There is a world of difference between 'reconciliation', on the one hand, and a 'realistic accommodation', on the other. However, she goes on, correctly, to say that the reconciliation must be a two-way process, but her statements serve to highlight the incongruity of this reconciliation process. Powerless indigenous minorities with very few cognizable legal or political rights do not negotiate on an equal footing with the might of a powerful non-indigenous government. What have Aboriginal Australians to offer when they come to the bargaining table? What has indigenous Australia to bargain with? She speaks of 'our country', referring, I believe, to prior indigenous possession, but this factual occupation has only this year been legally recognised by the newcomers. Because of this lack of recognized legal and political rights, in reality, the indigenous peoples of Australia come to governments cap-in-hand as they have nearly always done. This situation does not lend itself to negotiation. This cannot, in truth, be stated to be a process of reconciliation.

There are additional reasons for concern. The time frame for the CAR is near on a decade - Reconciliation Day is to be on 1 January 2001, the day that the Act ceases to have effect. This would seem to be a reasonable amount of time for most purposes. However, for the reconciliation of Aboriginal and non-Aboriginal peoples, an issue unaddressed in any substance in over eight generations of non-Aboriginal presence in Australia, less than a decade does seem a trifle rushed. The experience of indigenous peoples the world over flies in the face of this time frame. The Saami of northern Europe have fought since the 12th century for autonomy and recognition and only in the post-World War II period has that substantive recognition been given. Indigenous people of North America have fought some 500 years and their former rights are still not reinstated. This reconciliation will continue as long as indigenous peoples remain dispossessed of rights which they possessed prior to the coming of the newer peoples. Rights to ancestral territories, to self-governance, to language and culture; these rights and other subsidiary matters will need to be thrashed out in the Aboriginal/non-Aboriginal debate in Australia. Yet, already a year has passed since the Act was passed and the voices of substantive debate have yet to be heard. However, to my suspicious mind, the real danger which the indigenous peoples of Australia face is that, if they throw their wholehearted energies into pushing this CAR, this may distract them, wholly or partially, from continuing their efforts to achieve constitutional recognition of their desired position in Australian society. (This article, presumptuously, assumes that the Aboriginal and Islander peoples would remain within the umbrella of the Australian nation but this is by no means set in concrete.) The importance of constitutional recognition of indigenous rights is lost on indigenous peoples and their organisations in Australia because of their relative isolation from the dominant legal and political processes and the international discourse. Yet those who are aware of, say, the Saami and Canadian examples fully understand just how important this goal is.

Henry Reynolds touched on this subject most recently when he wrote that, in the context of the constitutional discussions aimed at the revitalization of our parched Constitution, non-Aboriginal Australia is more than willing to recognize the indigenous peoples as such. At the same time, they certainly do not wish this recognition to be other than nominal or to have any substantive consequences.

This form of legal sophistry seems to have captured the imagination of the delegates to the first modem Constitutional Convention held in Sydney in May 1991. The talk was for the renewed Australian Constitution to have a preambular statement similar to the formula given in the CAR legislation, but the delegates shied at the substantive issue of prior rights. Professor Reynolds wrote of this:

"The general view was that a new preamble to the Constitution should embody some statement about the unique position of the Aborigines and Islanders. But it was impossible to be more specific because there was sharp disagreement as to the wording of the new preamble."[3]

Discussion both before the full convention and in small working groups made it clear that the draft motion would only be accepted if it skirted aft reference to prior ownership.

I think perhaps the learned Professor hit the nail on the head when he later stated: "We [non-Aboriginal Australians] would like to recognise the Aborigines as the indigenous people [sic] of Australia but we don't want that recognition to have any consequences that matter."[4]

Yet, from the Aboriginal and Islander perspective, to have preambular statements of historical fact is of little assistance. For ethno-political empowerment to be started in Australia, a statement of indigenous rights must find its way into the body, not merely the preamble, of the renewed Australian Constitution. Without these entrenched rights, the Aboriginal and Torres Strait Islander peoples will remain a powerless section of the Australian community. No amount of rhetoric to the contrary will change this. If the CAR, and indeed indigenous Australia, allow this paltry preambular concession to be the substantive result of the centenary constitutional review, then nothing of substance will have occurred and an opportunity of enormous breadth and depth will have been lost for generations.

One Aboriginal commentator said something in late 1981 of continuing relevance to this reconciliation issue:

"I think the basic problem that whites fail to come to grips with, fail to understand, is that prior to the arrival of the First Fleet in this country Aboriginal [and Islander] people owned this country. We had institutions set up. We had rights of property. We had rules that governed their use. That proposition, in my view, has not been accepted by whites [a]nd until they accept that proposition there is no way we can negotiate or discuss on equal terms [...] a treaty or Makarrata."[5]

Bearing in mind that this was said just over a decade ago, one can perhaps ask: what steps, if any, have been taken in these past ten years to recognize indigenous laws, indigenous property rights, or indigenous forms of government in Australia?

There has been no acceptance of the basic proposition of which the commentator spoke. In the Mabo Case[6], the High Court of Australia recognized the fact of indigenous habitation of this continent, thereby scotching the fallacious application of the ancient legal doctrine of terra nullius to Australia, but the parameters and application of this decision are yet to be realized. It does not appear that the decision will act as a catalyst for a broad national response as did the Calder[7] decision in Canada in the early 1970's.

The bottom line is that the Government is driving the CAR and this vehicle will not go where the Government does not want it to go. The fine print in s.6(h) of the Act, quoted above, spells this out. The members of the CAR, however eminent and good-willed, have

a monumental task ahead of them. Their legislative map is an old one; others who travelled that dusty track have comeback with nothing to show for it.

And it is not to be forgotten that the CAR is recommendatory only. A change of Government in Canberra may see this process-within-a-process falter and the whole thing come to nought despite the bipartisanship which currently pervades the initiative. So, indigenous goals need to be firmly in mind at the outset. If the membership of the CAR seize the wheel and impose upon it an agenda approximating the demands that the indigenous peoples of Australia are making of the non-indigenous Australian society, then it could be the vehicle for achieving something like the stated primary object of the empowering legislation. The Strategic Plans of the CAR, which are to be drawn up pursuant to s.8 of the Act, will want to include plans for substantive recognition of some, if not all, of these neglected legal, political and cultural indigenous rights. Otherwise the CAR will, after a decade on the road, have gone nowhere.

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[1] The 1991 Sir Robert Canon Oration (delivered to the Royal Australian Institute of Public Administration National Conference in Darwin on 11-9-91), ATSIC,1991, p.14.

[2] Ibid.

[3] Reynolds, H., "The Aboriginal Treaty Dilemma", The Australian, Special Supplement on the Constitution, 14-92, p.4.

[4] Ibid.

[5] Comment on the Makarrata by Michael Dodson in Nettheim, G., (ed), Human Rights for Aboriginal People in the 80's, Legal Books Pty, Ltd., Sydney, 1983, p.114.

[6] Eddie Mabo & Ors v The State of Queensland [1992] HCA 23; (1992) 66 ALJR 408.

[7] Calder v Attorney-General of British Columbia (1973) 107 DLR (3rd) 59