Questions and answers about the proposed First Nations Voice to Parliament

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Questions and answers about the proposed First Nations Voice to Parliament

5.13.    What is Makarrata?

References

  • Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, Final Report (Canberra: Commonwealth of Australia, November 2018).
  • Jesse Fleay and Barry Judd, ‘The Uluru Statement: A First Nation’s perspective of the implications for social reconstructive race relations in Australia’, International Journal of Critical Indigenous Studies 12,1 (2019).
  • Bronwyn Fredericks and Abraham Bradfield, ‘More than a Thought Bubble … : The Uluru Statement from the Heart and Indigenous Voice to Parliament’, M/C Journal 24,1 (2021).
  • Dani Larkin and Kate Galloway, ‘Uluru Statement from the Heart: Australian Public Law Pluralism’, Bond Law Review 30,2 (2018).

What is Makarrata?

 

Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, Final Report (Canberra: Commonwealth of Australia, November 2018)

https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/Constitutional_Recognition_2018/ConstRecognition/Final_Report

Summary

This document discusses and makes recommendations regarding the establishment of a Voice to Parliament. The report was published in 2018, and advocates for a Voice and for the body to be co-designed with First Nation peoples and the Australian government. Constitutional amendments, the Uluru Statement from the Heart as well as recommendations for and the importance of truth-telling are also discussed.

The purpose of this report is to consider and formulate recommendations regarding the potential amendment of the Australian Constitution, to examine the current involvement of First Nations people in formulating policies they are impacted by and how to make progress in self-determination. It also seeks advice on how to constitutionally enshrine or legislate the powers of the Voice in a way which will be supported by Aboriginal and Torres Strait Islander communities, the Australian public and Parliament.

Specifically, the Joint Select Committee recommends after the co-design process, that the government discuss ‘legislative, executive and constitutional options’ for the instatement of a Voice. The Committee also calls on the government to support a process of truth-telling, and to consider forming a ‘National Resting Place’ for First Nations people who have passed away. The report also includes recommendations to spread knowledge of Aboriginal and Torres Strait Islander history and culture and responds to questions issued in the interim report.

Excerpt

‘… Other issues raised by the
Statement from the Heart: The concept of “Makarrata”

 … 5.

  1. The Statement from the Heart sought a “Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth-telling about our history”. The statement described Makarrata as the “culmination of our agenda: the coming together after a struggle”.
  2. The Referendum Council says Makarrata “is another word for Treaty or agreement-making” while the Prime Minister’s Indigenous Advisory Council calls it “both truth-telling and agreement making”.
  3. Makarrata is a Yolngu word from north-eastern Arnhem Land and is used to describe an agreement-making process that encompasses a “coming to terms with the past as the foundation for a different future”. It enables:

… people to acknowledge the dispute between them, to talk it over and resolve it, and to move forward together.

  1. Uphold & Recognise [upholdandrecognise.com] provided the Committee with four policy documents intended to expand on a range of options regarding the “big ideas” proposed in the Statement from the Heart. The document considering Makarrata suggested five aspects of the concept:
  • recording the history of Indigenous peoples;
  • preserving the culture of Indigenous peoples;
  • empowering Indigenous peoples to take responsibility for their communities;
  • creating commercial opportunities for Indigenous people; and
  • concluding agreements between governments and Indigenous peoples that address the four criteria above.

5.6 However, as it noted in its interim report, the Committee found that some people were concerned regarding the use of the term “Makarrata”. The Committee requested evidence on the cultural context of Makarrata and its potential practical application in the broader Australian democratic context.

5.7 The Prime Minister’s Indigenous Advisory Council provided evidence from a Yolngu leader explaining the cultural context of Makarrata:

Before you can have a Makarrata, you have to organise yourself: make sure you have enough men/team and clan group — before the Makarrata can start.

For the Makarrata, the leaders of the two clans make an agreement: the Makarrata ceremony is where men get speared in the leg, which symbolises that there is no more bad feeling between the two clan groups and no further intention to break the law — provided it is done in the right time, way and with the right outside clan groups as witnesses.

Look at this present time in Australia: we are in a situation—you could say that we are in a Makarrata—where two systems, two cultures are trying to recognise each other. Sometimes the two systems don’t quite come to that Makarrata ground to reach agreement, which makes it very hard.

Maybe it is time to come together and find pathways to resolution.

Makarrata is very significant in Yolngu law and culture — sometimes it is the only pathway to peace …

5.8 … To have a proper Makarrata requires a lot of courage: the leaders have to be brave, the messengers have to brave, the witnesses have to be brave, the warriors have to be brave. They all have to make a decision that puts what is good for their people and their country above their own lives.

5.9 The Prime Minister’s Indigenous Advisory Council therefore interprets Makarrata as “both truth-telling and agreement making” and conceives of it as “a concept that underpins the way we enter into dialogue and agreement in this country”.

5.10 However, the National Congress of Australia’s First Peoples (Congress) noted that the use of the term may not be fitting for a commission that was designed to be “inclusive and cover all Aboriginal and Torres Strait Islander nations”:

… we have received feedback from traditional owners, who have told us that it is not culturally appropriate to use this word for a national Commission.

Makarrata Commission

5.11 One of the issues raised in the Statement from the Heart was the idea of a Makarrata Commission. Although as the report notes in the previous section the idea of Makarrata remains elusive, the Committee did receive submissions on the role and function of a potential Makarrata Commission. Given the tight reporting timeframe and the Committee’s focus on The Voice, the Committee did not have sufficient time to test the propositions raised below in oral evidence.

5.12 The Statement from the Heart proposed that the Makarrata Commission supervise a process of agreement making and truth-telling. This supervisory role of the Commission was endorsed by many submitters. For example, Congress reiterated the supervisory role and identified two ways it could be accomplished:

First, the Commission would address intergenerational trauma, which remains an enormous barrier to Aboriginal and Torres Strait Islander Peoples. Secondly, the Commission would facilitate a greater connection to culture for Aboriginal and Torres Strait Islander Peoples.

5.13 The Prime Minister’s Indigenous Advisory Council also emphasised both the supervisory and facilitation role of the Commission:

The Council reflects on the significance of Makarrata as the foundation of reform, and supports the call to establish a Makarrata Commission to supervise a process of agreement making between Government and First nations. The Commission will facilitate the ongoing process of truth-telling and agreement making.

5.14 An educational role was highlighted by a number of submitters. The Indigenous Peoples Organisation saw the Commission as providing a “process of consultation, education, healing and meaningful reconciliation”. Congress elaborated on the role of enhancing the knowledge of all Australians regarding the history of Aboriginal and Torres Strait Islander peoples.

5.15 The agreement making role was enlarged on by submitters. Mr Thomas Wilkie-Black, an ANU student, submitted that this aspect of the Commission’s role could extend to ongoing responsibility for dispute resolution:

The Commission’s role under this model would be ensuring the parties negotiate in good faith and acting as a neutral arbiter assisting them in working through political disagreements.

5.16 The National Congress of Australia’s First Peoples suggest five tasks for the Commission’s operations:

  • investigating the histories of various Aboriginal and Torres Strait Islander nations using primary and secondary sources;
  • holding Tribunals and following up with local communities after the Tribunal process;
  • recording findings in official reports for each nation;
  • setting up Keeping Places for each nation; and
  • engaging in widespread and culturally appropriate marketing to spread awareness about its processes among Aboriginal and Torres Strait Islander Peoples.

5.17 With regard to the agreement making process, Mr John Burke put forward a list of possible activities. However he emphasised that this is “not for the purpose of fine definition of the Commission’s activities, but rather to anticipate the capacities that it may need”. His list included:

  • clarifying the concept of treaties and agreements;
  • proposing a structure and process for implementing treaties and agreements: to a point of proposing a model;
  • parallel examination of truth-telling processes and building capacity to support: to a point of planning wide-spread implementation; and possibly
  • supporting the implementation of The Voice.’
Jesse Fleay and Barry Judd, ‘The Uluru Statement: A First Nation’s perspective of the implications for social reconstructive race relations in Australia’, International Journal of Critical Indigenous Studies 12,1 (2019)

https://ijcis.qut.edu.au/article/view/532

Summary

In this article, Fleay and Judd argue for the implementation of a Voice to parliament, Makarrata Commission and a treaty through constitutional change. The article explains each of these propositions and frames them as the beginning of a ‘retributive industrial program of equality’. The article contends that past attempts at overcoming inequality in Aboriginal and Torres Strait Islander communities did not solve the most critical problems they faced. It is argued that historical attempts at distributive justice did not effectively consider the history of inequality in Australia and were ineffective in breaking cycles of unemployment and low levels of education. Instead, they served to initiate a ‘reliance on welfare payments’ in the community. In contrast, the Uluru Statement from the Heart offers solutions designed by the Indigenous community which do not have the same drawbacks as previous policies designed by the government. These solutions would promote truth-telling and enable Australians to ‘heal historic grievances’.

Excerpt

‘Calls to institute a Makarrata Commission echo the politics of the 1970s when a group of prominent Australians that included H. C. “Nugget” Coombes, William (Bill) E. H. Stanner, Charles Dunford Rowley and Judith Wright formed the Aboriginal Treaty Committee (ATC; Fenley, 2010; Robbins, 2010). Between 1979 and 1982 the ATC advocated for a Makarrata, a political process that has its origins in the Yolngu people of East Arnhem Land. A Makarrata is a traditional form of political compact that was concluded with ceremony and used to end disputes between previously hostile parties. In 2017, delegates have returned to this device as a means to heal the wounds of history that have been inflicted upon Aboriginal peoples and Torres Strait Islanders since the arrival of settler-colonialism in Australia, and which has been the result of years of work by academics such as Megan Davis and Marcia Langton (Davis & Langton, 2016; Referendum Council, 2017; Schultz, 2018).

Although Australia adopted a process of national reconciliation in the 1990s in an attempt to address the historical divisions between Indigenous and non-Indigenous Australians, unlike similar processes in South Africa and more recently Canada, no truth commission was part of this process. The consequences of this have been felt in the sporting world, which has always reflected on identity and race in postcolonial nations (Burn, 2011; Young, Hallinan, & Judd, 2013). This occurred along with the culture wars of the 1990s (Deane, 2017) and the infamous cultural cringe alluded to by Prime Minister Paul Keating (Parliament of Australia, 1992).

The Makarrata Commission advocated by the Uluru Convention will be a preliminary body to advise the Prime Minister. The Commission will seek to right wrongs and heal the nation of its colonial past and its postcolonial actions through the establishment of a national process that enables people to tell their stories. It will seek to reconcile the nation through this formal process of truth-telling, calling each individual and organisation in Australia to enact reconciliatory actions as Australian law. This includes placing the historic abuses of church and state, the economic and health sectors, crime and justice, and most importantly, education, on the national record as truth and fact that require public acknowledgement, in order to create a reconstituted Australian state in which Aboriginal peoples and Torres Strait Islanders are an integral part of the national polity.’

Bronwyn Fredericks and Abraham Bradfield, ‘More than a Thought Bubble … : The Uluru Statement from the Heart and Indigenous Voice to Parliament’, M/C Journal 24,1 (2021)

https://journal.media-culture.org.au/index.php/mcjournal/article/view/2738

Summary

This article discusses political reactions to the Voice, the way the media portrays the referendum, the need for a Voice and further reforms in the form of a treaty and truth-telling commissions. According to Fredericks and Bradfield, the Uluru Statement from the Heart was originally treated as a ‘thought-bubble’ by the government, but should be considered a ‘gift to the nation’. The article denounces misinformation spread by the media and claims from Scott Morrison and Barnaby Joyce that the Uluru Statement is not a viable proposal. The article emphasises the ‘decades of work’ (Fredericks & Bradfield, 2021) that has gone into the formation of the Statement, and explains the potential effectiveness of the Voice, despite its inability to veto legislation. The authors also describe parliament as existing within a ‘self-referential bubble’, where discourse revolves around non-Indigenous members. For this reason, they argue, parliamentary structure must be altered; the inclusion of a Voice would mean greater and more informed discussion of the views of and issues facing Indigenous peoples. Despite ongoing debates about the structure and details of the Voice, the establishment of a Voice to parliament is still a popular proposal among Indigenous communities.  

Excerpt

‘Coming together after a struggle does not mean that conflict and disagreement between and amongst Indigenous and non-Indigenous communities will cease. In fact, in alignment with political theories such as agonism and pluralism, coming together within a democratic system necessitates a constructive and responsive embrace of different, competing, and in some cases incommensurable views. A Voice to Parliament will operate in a manner where Indigenous perspectives and truths, as well as disagreements, may be included within negotiations and debates (Larkin & Galloway). Governments and non-Indigenous representatives will no longer speak for or on behalf of Indigenous peoples, for an Indigenous body will enact its own autonomous voice. Indigenous input therefore will not be reduced to reactionary responses and calls for reforms after the damage of mismanagement and policy failure has been caused. Indigenous voices will be permanently documented within parliamentary records and governments forced to respond to the agendas that Indigenous peoples set. Collectively, this amounts to greater participation within the democratic process and facilitates a space where “salt water” and the “bubbling springs” of fresh water may meet, mitigating the risk of harm, and bringing forth new possibilities.’                               

Dani Larkin and Kate Galloway, ‘Uluru Statement from the Heart: Australian Public Law Pluralism’, Bond Law Review 30,2 (2018), p. 340

https://blr.scholasticahq.com/article/6796-uluru-statement-from-the-heart-australian-public-law-pluralism

Summary

This article explains the importance of the Uluru Statement from the Heart and its potential to generate change from a legal perspective. The article begins with the history of sovereignty in Australia and links this to continuous ‘entreaties’ to the state for the constitutional recognition of Aboriginal and Torres Strait Islander communities.

Despite repeated attempts to have their voices heard, proposals and recommendations from Indigenous communities have historically been rejected by Government, and colonial forms of law remain dominant. However, the Uluru Statement from the Heart is different to past proposals. The statement ‘walks in two worlds’, adhering to both the wishes of First Nations peoples and to the principles of representative democracy. The Uluru Statement can therefore be interpreted as a combination of two different legal systems, which would recognise the sovereignty of the Indigenous population whilst adhering to the Australian legal system. The article discusses the recommendations of the Uluru Statement and the government’s original rejection of ‘the proposal of its own body’(The Referendum Council). This response has been interpreted as a governmental failure to understand the significance of the Uluru Statement for Indigenous Australians.

While the Voice has been criticised for giving greater representation to a select number of the Australian population, the proposal for a Voice only exists to remedy the ‘unequal representation’ which already exists in Australian politics. Larkin and Galloway observe that Indigenous voting participation is significantly lower than in other communities. This can be traced to a ‘confluence of factors’ including disproportionately high incarceration rates.

Initial rejections of a proposal written by and for the benefit of Aboriginal and Torres Strait Islander people indicate a repetition of past mistakes in regard to legislation impacting Indigenous peoples. The Uluru Statement from the Heart is an ‘elegant and legally viable’ proposal, which should be seriously considered by government.

Excerpt

‘III The Government’s Response

The [then Turnbull Coalition] government rejected outright the proposal of its own body, the Referendum Council, instead criticising the Makarrata proposal as undermining principles of democracy and creating a “third chamber of Parliament”. As such, and given that it would be tailored exclusively for Indigenous Australians, the former Prime Minister argued that the establishment of the Makarrata Commission would undermine equality in civic rights. Following this reasoning, and ostensibly invoking the democratic principles he sees as being offended, the former Prime Minister also asserted that all citizens of Australia should have an equal opportunity to vote for, stand for and serve in either of the two chambers of our national Parliament.

The Minister for Indigenous Affairs, Nigel Scullion, accused the Referendum Council of being “irresponsible” in proposing the Voice to Parliament. Confusingly, though, he has since suggested that his portfolio of Indigenous Affairs should be taken over by an Indigenous body, with power to allocate funds and to create policy. In Minister Scullion’s own words: “Now if you don’t have that you’re just fluffing around the edges. You don’t want a voice to parliament, you don’t want a third chamber … it is nothing next to the decision-making, the policymaking, that comes with my office”. While Minister Scullion’s proposal takes a Voice away from Parliament, it suggests instead the replacement of part of executive government — surely a greater challenge to established processes and institutions of governance.

In short, the government response purports to deny the Uluru Statement’s close adherence to foundational public law principles. It is undoubtedly a political response, described by Noel Pearson as a “betrayal”.  Yet as a question of legal principle the government’s response cannot be let stand. The government’s account of the Makarrata Commission proposal misrepresents its true nature. Its response thus fails to engage with the real issues facing Aboriginal and Torres Strait Islander Australians. In doing so, the government demonstrates that it does not apprehend what is at stake in terms of the legitimacy afforded to Australian structures of governance.’

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