On the weekend of 24-25 September Whitley College hosted a conference called Constitutions and Treaties: Law, Justice, Spirituality – these are notes from session 1 of 9. We acknowledge that this gathering, listening and learning occurred of the land of the Wurundjeri People of the Kulin Nations and offer our respects to their elders past and present, and all visiting Aboriginal and Torres Strait Island visitors present.
Purpose: How to get somewhere
Constitutions: Tell us what to do and how to get there
Why?: Need to ask, where are these taking us to? What are we going to do with it?
The German word grundnorm (basic norm) combines big + what is normal.
American Constitution says: “We hold these truths to be self-evident: that all men are created equal…” this is a basic norm of their constitution and yet there was slavery at the time. What is constitutional for one group is not for others.
Is constitutional recognition worth fighting for in the Australian context?
If you are given a legal personality this gives you a legal identity/makes you an entity (you can transact). Constitutional recognition would give Aboriginal people legal personality.
Here we use a Westminster/Western model of constitution – a link back to the UK. White men put the document together – it represented their idea of society then and for the future. Section 128 allows for the constitution to be changed (function for change provided for in its creation).
What are the founding values and guiding principles?
Cooper vs. Stuart Crown gave 40 acres then wanted to take 7 acres back – appealed to the Privy Council in the UK. Land that was not “cultivated” was considered not claimed.
Aboriginal people are currently mentioned in only 2 sections of the Constitution. For the purposes of counting in the Census they will have a value of “0” (zero) and in the Exclusion Clause which allows for Parliament to make laws specific to race (applying to anyone not white). This is legalised discrimination. The law makers had the view that Aboriginal people would disappear – either by dying off or being bred out… we are still here!
Following WW2 there was a movement to say collectively we cannot allow for the extermination of an entire people. Some human values are UNIVERSAL regardless of what some countries and governments might do. UN developed International law which includes a convention against racial discrimination “No legal or moral authority for laws based on race”. Australian law has vetoed land purchase in Queensland, High COurt MABO decision recognised Native title in 1992 > Aboriginal people exist. There is a fundamental clash between the constitution and the law – it is at odds with itself and it needs to be synchronised.
How are we getting there? What will we do when we get there?
I want to see… language, law, culture, spirituality, kindness, interconnectedness to land and animals, respect for neighbours, storytelling and learning… survive.
Recognising is the first step. We can’t have a conversation if you can’t see me.
The State of Victoria is looking into making a treaty.Section 109 of the Constitution allows for laws that are inconsistent but if it comes to a ruling Federal law would prevail. If the vehicle we take is a treaty – what is in it? protecting/including what?
When applying law there is a sense that we should be able to go back to the original ‘intent’ of the law (read it in context) – it is a legal fiction that we can know or that we do know what that is. “Democracy” when it arrived was for landed white men, then all white men, white men and white women, now voters (excluding prisoners)… what democracy means has changed over time.
Te Tiriti O Waitangi and Pakeha-Maori Conversations: What Hope for Change? – Maria Bargh
Strong Spirit in Community Development – Grant Paulson
Repentance and Treaty? – Ray Minniecon
Primal Faith and Ancient Treaty: Precedents on the Abraham Trail – Norm Habel
A Paradoxical Hospitality – Robert Hoskin and Naomi Wolfe
Aboriginal sources and Aboriginal sovereignty – Joanna Cruickshank
Pulling together the threads – Mark Brett
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