Designing a Voice to Parliament to strengthen First Nations sovereignty
06.05.2021
Four years ago, the Uluru Statement from the Heart changed my mind on constitutional recognition. Like many, I saw the Recognise campaign and its push for a symbolic recognition of First Peoples in the Constitution as a distraction. A government and corporate-sponsored campaign that would do little to alter the systemic injustice and racism that harms First Peoples across Australia, while giving the appearance of a grand gesture of change. The Uluru Statement from the Heart rejects Recognise’s symbolism. It represents the generosity of those Aboriginal and Torres Strait Islander people involved in the Referendum Council’s dialogue processes to consider the proposals for change and offer a new way forward, to demand more.
In my recent article in the Alternative Law Journal I emphasised the important role of First Nations voices in politics and policymaking as advocates for justice. At a time of increasing environmental destruction and economic inequality, First Nations people continue to advocate for a caring, compassionate society that respects Country. A Voice has the potential to amplify and centre these arguments. It also has the potential to encourage and support First Peoples’ right to self-determination and the sovereignty of First Nations, if it is designed to operate in a way that respects and defers to the Country-based authority of First Peoples.
The Morrison Government’s Indigenous Voice Co-design process has demonstrated a shift away from the spirit of the constitutionally enshrined First Nations Voice to Parliament envisaged by the Uluru Statement. The Interim Report proposes a legislated body, comprised of a national Voice of 16-18 members, and up to 35 local/regional Voices. The strong emphasis on ensuring that the Voice fits neatly into existing structures at the state/territory level, alongside the rushed nature of the consultation process so far, raises significant concerns.
In this blog, I will briefly highlight some of the possibilities and challenges I see for a Voice to Parliament that is designed with First Nations as the starting point.
Designing a Voice that builds First Nations sovereignty
Many First Peoples are pursuing nationhood as an expression of their distinctive political and cultural authority. Designing a Voice to Parliament that defers to the authority of First Nations and is comprised wholly or in part by representatives of those nations, would further encourage First Peoples to organise as collectives and strengthen their cultural authority and systems of governance.
The Indigenous Voice Co-design Interim Report emphasises a National Voice with ‘representation of particular groups, such as gender, youth, people with disability and traditional owners’ (page 36). While it is important that these groups are all represented, to reflect the diversity of Indigenous experiences of colonisation and its impacts, there is a concerning equivalency of Country-based cultural authority (represented by ‘traditional owners’) with demographic representation and inclusion.
There is an inherent tension between a First Nations Voice comprised of elected/appointed Aboriginal and Torres Strait Islander individuals, and the cultural authority of First Peoples to speak for Country and exercise autonomy over Indigenous affairs. Designing the ‘Indigenous Voice’ to be a representative of the diversity of all Aboriginal and Torres Strait Islander people, and inclusive of pre-existing service delivery organisations, has the potential to further dilute the authority of First Nations as nations. This is especially true if governments come to see consulting the national/local/regional Voice as equivalent to engaging with the First Nations on whose Country they operate.
This strikes at the heart of the question: who is the ‘self’ in Indigenous self-determination?
For the Voice to attract significant buy-in from all First Peoples and strengthen the authority and capacity of First Nations, it should defer to that same authority. A First Nations Voice comprised of representatives of all nations that choose to participate would not only recognise the authority of each nation to speak for themselves, but it could also provide a catalyst for more First Peoples to rebuild their internal cultural and political authority. This is important work that needs to be done before there can ever be widespread, successful treaties between First Nations and settler governments.
Colonisation has, by design, disrupted First Peoples’ kinship networks, connections to Country, and continuation of law and custom. These issues, and the scale and diversity of First Nations across Australia places such a Nation-centred design into the ‘too hard’ basket for government. However, it is not for government to do this work. These are largely internal matters, part of the resurgence of First Nations. And while it is the responsibility of First Peoples to continue this healing and re-constituting, it is the responsibility of settler governments not to further disrupt or unnecessarily rush the outcome of this work.
Part of the reform necessary for success in ‘Indigenous Affairs’ in Australia, is the ability for governments to look beyond the time pressures of the electoral cycle. First Peoples need time and space to do this work, and the freedom to make mistakes. In instances where First Nations cultural authority may come into play - such as a treaty process, or establishment of the Voice - governments need to allocate resources and time to support these matters without obligations or expectations as to the outcome. Three months to reflect on proposals tied up in a complex 230+ page report will not do.
Some consideration of this is apparent in the Interim Report’s discussion of the establishment of local/regional Voices. The Local & Regional Co-design group ‘agreed it is essential that Local and Regional Voice arrangements do not disrupt or encroach on the ongoing role of these systems based in traditional law/lore and custom’ (page 67). While the Interim Report does recommend community control and input into the design of Local/Regional Voices, with as much connection to cultural authority as deemed appropriate, the speed with which the co-design process has been implemented, and the repeated emphasis on incorporating existing arrangements suggests that First Peoples will not be afforded the time and space necessary to effectively strengthen and incorporate First Nations authority in the Indigenous Voice process.
The proposed ‘Indigenous Voice’ has not been envisioned as an Assembly of First Nations. Its proposed membership has been limited to only 18 to avoid a Voice that is ‘too large and impractical’. However, there are clear benefits in designing the Voice to recognise and draw on the Country-based authority of First Nations as traditional owners. Nation-based representatives need not be the sole basis for the ‘National Voice’. But they should be a significant consideration in designing an effective Voice. Otherwise, it could further complicate and dilute the relationship between First Peoples, as distinct political and cultural collectives, and the governments that operate on their Country.
The Voice is not a replacement for government-Nation relationships
Further to this, The Voice, even if it is comprised only of representatives of First Nations, is only a representation of the collective viewpoints of its members. It will not have the authority to speak for Country, or to consent to something on others’ behalf.
No proposed model for the Voice can replace the authority and expertise of First Peoples. Governments will have the same obligation to develop genuine relationships with the First Peoples on whose Country they operate. The role of the Voice should be to amplify First Nations’ Voices, and advocate for governments to defer to the expertise of First Peoples in designing and implementing relevant law and policy.
Conclusion
The constitutional recognition movement was transformed through Indigenous advocacy, from a government and corporate-sponsored campaign for symbolic recognition of First Peoples, into a demand for Voice, Treaty and Truth. There is substantial potential in a First Nations Voice that recognises and draws on First Nations sovereignty. The design of such a Voice could play an important role in fostering First Nations autonomy and preparing First Peoples to exercise their sovereignty and negotiate treaties with governments from a more level playing field.
The ‘Indigenous Voice Co-design’ process has so far been far removed from this potential. A legislative ‘Indigenous Voice’ established within the bounds of the Interim Report’s proposals would be little more than a focus group for policymakers, further entrenching the status quo. It would also be plagued by the same uncertainties faced by other representative bodies: not knowing if the next change of government would be its last.
To be effective, a First Nations Voice must be enshrined in the Constitution. To be legitimate, it should strengthen and support First Nations sovereignty in the journey towards a national treaty-making process led by the Makarrata Commission.
This post draws from arguments first made in Jason O’Neil, ‘Designing an Indigenous Voice that empowers: How constitutional recognition could strengthen First Nations sovereignty’, Alternative Law Journal. DOI: 10.1177/1037969X211009628.
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Jason O’Neil is a Wiradjuri man and Scientia PhD Candidate at Nura Gili, University of New South Wales.
