5.9. Are there global precedents for a Voice?
- Megan Davis, ‘The Uluru Statement, four years on’, The Saturday Paper, May 29, 2021.
- Bronwyn Fredericks, ‘Why I “still” hear it on the radio and I “still” see it on the television: Treaty and the Uluru statement from the heart,’ Journal of Australian Indigenous Issues 25,3 (2022).
- Shireen Morris, ‘The argument for a constitutional procedure for Parliament to consult with Indigenous peoples when making laws for Indigenous affairs’, Public Law Review 26 (2015).
- Lauren Day and Anne Worthington, ‘A voice for the Arctic’, ABC News, October 20, 2022.
Megan Davis, ‘The Uluru Statement, four years on’, The Saturday Paper, May 29, 2021
This article examines the progress made towards implementing proposals outlined in the Uluru Statement from the Heart. Megan Davis advocates for a Voice to Parliament, noting that while treaties and representative governments have been established overseas, Australia has neither. The Uluru Statement from the Heart outlines the kinds of recognition deemed suitable by Aboriginal and Torres Strait Islander communities. The first of these, the Voice to Parliament, would ‘compel the state to listen’ to First Nations communities.
The article continues to explain why a Voice to Parliament is necessary. Davis notes that in a liberal democracy, which conforms to a ‘majority rule’, it is difficult for a small portion of the population to influence political decisions. The Voice to Parliament is ‘the only way’ to improve this inequality and is also consistent with international laws regarding the rights of Indigenous peoples. The article then acknowledges confusion and discontent over the placement of treaty after Voice in the Uluru Statement. Davis notes that having a Voice would help treaty negotiations.
The article then discusses progress made since the Uluru Statement was read, including the co-design process, and debates over whether to legislate or constitutionally enshrine the Voice. It is argued that a legislated model rather than a constitutionally enshrined one would not give the Voice the ‘authority, legitimacy and stability’ the body should have.
‘Most other countries entered into peace treaties at the point of dispossession. This process created a form of legitimacy in public law for Indigenous peoples, meaning their existence and claims on the state are taken seriously by the state — particularly if a manifestation of that peace treaty is recognition of sovereignty of constitutional rights. Australia did not enter into any peace treaties. And this is why recognition has been an ongoing pursuit of Aboriginal and Torres Strait Islander peoples.’
Bronwyn Fredericks, ‘Why I “still” hear it on the radio and I “still” see it on the television: Treaty and the Uluru Statement from the Heart’, Journal of Australian Indigenous Issues 25,3 (2022), pp. 9,10
The title of this article makes reference to the Yothu Yindi band’s song Treaty, the first Australian ‘pop song’ to include the Yolngu Matha language. The paper briefly explores the history of treaty discussions in Australia and considers the implications of the three milestones outlined in the Uluru Statement: Voice, Treaty and Truth. The author joins the growing calls for action and proposes that all Australians need to be involved in pushing for constitutional change, which will enshrine a First Nations Voice to Parliament. Australians cannot stand by and let political inaction stall the process for another 30 years.
‘While treaties have historically been envisioned as the driving force for change for Indigenous peoples, their placement within governing structures makes them deeply complex, fragile, and insecure. Government structures reflect settler ontologies, making them an uneasy home for treaties. Testimony from First Nations Elders and leaders across the world demonstrates how easily treaties can be broken and overlooked. In Canada, for example, most — if not all — treaties with First Nations peoples have been broken, and agreements quickly subside in favour of initiatives that promote “progress” or “nation building” in a way that advantages the settler population (Morin 2020). In New Zealand, recent claims of discrimination and racism at the University of Waikato saw a milestone legal challenge based on a treaty breach (1 News 2020). This prompted an independent inquiry, with the university acknowledging:
because the university is founded on a western university tradition, our university, and our university system will exhibit elements of structural and system discrimination and racism. To address those issues, we will be immediately setting up a taskforce to consider them (University of Waikato 2020).
While New Zealand’s treaty was an effective mechanism for holding the university to account, it proved to be operational only after a breach had occurred and the interested parties had invested much time, effort, and persistence in raising the breach. This shows the treaty as taking a reactionary stance. In contrast, the Uluru Statement from the Heart was developed to include preventative measures and address structural discrimination and racism through the very laws and policies that govern Indigenous people’s lives. Establishing treaties takes time. The process depends on nuanced negotiations, legal challenges and numerous obstacles that can make the final treaty extremely difficult to achieve (Langton 2004). This is not to suggest that treaties should not be pursued (Davis and Williams 2021). But it is important to acknowledge that even a committed treaty process can take decades to finalise. And even when treaties are achieved, international examples remind us they may not be effective (Davis and Williams 2021).’
Shireen Morris, ‘The argument for a constitutional procedure for Parliament to consult with Indigenous peoples when making laws for Indigenous affairs’, Public Law Review 26 (2015), pp. 176-177
This article argues for a constitutionally guaranteed Indigenous body to ensure Indigenous peoples a voice in laws and policies made with respect to Indigenous affairs. It explores issues of constitutional drafting, non-justiciability, and comparisons with the Inter-State Commission and the Aboriginal and Torres Strait Islander Commission (ATSIC).
‘International examples of Indigenous consultation mechanisms
Nations around the world find unique ways to articulate Indigenous self-determination principles within institutional arrangements and ensure that Indigenous minority voices are heard in democratic processes. This is integral to the task of Indigenous constitutional recognition. In the United States there is the National Congress of the American Indian and the State of Maine has reserved seats for Aboriginal people. In Sweden, Norway and Finland there are Sámi Parliaments that act as advisory bodies to the national Parliaments. In Canada there is the Assembly of First Nations, which acts as a national Aboriginal advocacy organisation.
The duty to consult in Canada
The protection of Aboriginal rights in the Canadian Constitution led courts to develop a Crown duty to consult with Aboriginal people. This has arisen through judicial interpretation of s35 of the Constitution Act 1982 (Can), which protects existing Aboriginal rights and titles. The courts have said that the duty to consult with Aboriginal peoples arises where there is proven Aboriginal title, or where the Crown contemplates that an Aboriginal right may be adversely affected by certain conduct, even if the right has been claimed but not yet proven.
The finding that a duty to consult exists in certain circumstances by implication under the Constitution has resulted in some confusion and uncertainty as to the scope and content of the duty to consult. It is interesting that the Canadian courts had to imply the duty to consult from the Aboriginal rights recognised in the 1982 Charter. In 1994, Canadian Aboriginal advocate James Henderson observed that s35 helped “define a new constitutional context of self-determination for Aboriginal peoples” by recognising property rights and treaty rights as important sources of constitutional law. But: The affirmation of these constitutional acts did not resolve the existing structural, political problems in Canadian federalism or Canadian democracy… no changes in the political order have occurred … the conventional political order continues to deny Aboriginal peoples’ full participation in Canada’s political and economic federalism. Aboriginal peoples have no voice to assert these rights in Parliament or in the legislative assemblies. They are still organised lobbyists or plaintiffs outside the formal structure of government.
Henderson seems to suggest that the recognition of Aboriginal rights in the Canadian Constitution, while a positive step forward, did not formally include Aboriginal peoples as active participants in the “political order”, nor enable the Aboriginal voice in Parliament. The comments help support Lino’s insight that entrenchment of a high-level right to self-determination in a bill of rights might not give Indigenous people the political agency and practical involvement they seek.’
Lauren Day and Anne Worthington, ‘A voice for the Arctic’, ABC News, October 20, 2022
This article details versions of the Voice which exist overseas, specifically in Norway and Sweden. The Indigenous people of the Arctic are known as the Sámi. In Norway, a Sámi Parliament was instituted in 1989 following protests over a government proposal to flood a dam which would have damaged a nearby village. The Parliament consists of 39 members who are elected on a four-year basis and make recommendations to the government regarding ‘policies and matters that affect the Sámi’. Another example, the Swedish Sámi Parliament, differs in that it is ‘not truly independent of the state’ and was not created by the Sámi, but by the government.
In Norway, an important part of Sámi culture involves the protection of the reindeer population, which has been threatened in the past by mining opportunities, and now by measures proposed to mitigate global warming. The Sámi also highly value their connection to water. The potential establishment of a copper mine may damage the water supply and cause difficulties for Sámi people trying to carry out traditional fishing practices. An interview with a Sámi man, Nils Mathis, reveals the Sámi Parliament as a source of hope for the people. Due to the influence of the Sámi Parliament, the government is obligated to pass legislation which will not infringe on the rights of the Sámi people, including legislation which would negatively impact the preservation of their culture.
The article concludes with advice for the establishment of an Australian Voice, urging the government to allow First Nations people to design the body. Members of the Sámi people note that the design of the Norwegian Voice would be suitable to use.
‘A Voice for the Arctic
Norway’s Sámi Parliament has 39 members who are elected by Sámi voters every four years. They meet four times a year and advise the Norwegian government on policies and matters that affect the Sámi. “We have our disagreements but when a decision is made in this hall, the Sámi people has stated their opinion”, says Ms Muotka …
… Scandinavia’s Sámi Parliaments have no legislative power, but Norway’s Sámi Parliament still has some legal teeth. The year after Norway established its Sámi Parliament, it became the first nation to ratify an international convention known as ILO 169, which requires governments who sign up to consult Indigenous people on matters that concern them, with the goal of achieving consent …
… Across the border, the Sámi Parliament in Norway has inspired a similar model in Sweden, but one with fewer powers due to its very design. Unlike its Nordic neighbour, Sweden’s Sámi Parliament is not truly independent of the state. While it’s a voice for the Sámi people, it’s also a government agency.
“It was not established by the Sámi people”, says Stefan Mikaelsson, a member and former president of Sweden’s Sámi Parliament. “It was established by the members of the Swedish parliament”.
The Swedish Sámi Parliament has around half the budget of its Norwegian counterpart. Until recently, the Swedish government has also had no obligation to consult the Sámi Parliament, although that’s set to change with a new law.’