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1 Indigenous Recognition Or Is It a Doomed Mission?

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Indigenous recognition or is it a doomed mission? Proposals to Constitutionally recognise Aboriginal and Torres Strait Islander peoples and their language are often divided into the symbolic as either amending the preamble or standalone provision(s) which acknowledge Indigenous identity and the more substantive such as a constitutional ban on racial discrimination or a First Nation’s voice to Parliament. While all Australian States have now adopted purely symbolic Indigenous recognition provisions, it has generally fallen out of favour at the national level. Are there any good reasons to adopt purely symbolic forms of Constitutional recognition? One should compare the experience of reforms in the Australian States. I Necessity and broader movements The present state of non-recognition of indigenous culture and language in the national Constitution can inflict harm and act as a form of oppression, As Taylor states, this can imprison individuals and groups in a false, distorted and reduced mode of being.1 Australian First Nation Peoples (FNP) as a minority group experience marginalisation from mainstream social, political and economic discourse.2 A preamble or standalone provision(s) recognising indigenous culture and language may assist in changing societal and legislative measures in favour of substantive equality. With the intended function of redeeming the document, unifying communities and reducing or eliminating barriers to entry in the otherwise marginalized activities. The proposal has national approval in principle by all major political parties, with intentions of furthering national reconciliation and to guard Australia’s reputation internationally through indigenous wellbeing.3 Instilling in the Constitution a restorative justice theory, whereby in the interests of equality indigenous are treated differently4 by their positive inclusion. Persuasively American courts suggest in order avoid racism, we 1 Charles Taylor, ‘The Politics of Recognition’ in Amy Gutmann Multiculturalism: Examining the Politics of Recognition (Princeton University Press, 1994) 25-73. 2 Elia Villasenor, Countering Colonialism in Border Communities: Leadership, Education and the Politics of Multicultural Recognition (ProQuest Dissertations Publishing, 2016) 9. 3 Benjamen Gussen, ‘A Comparative Analysis of Constituttional Recognition of Aboriginal Peoples’ (2017) 40(3) Melbourne University Law Review 867. 4 Regents of University of California v Bakke 438 US 265, 407 (1978) (Blackmun J). Cited in Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92 [202] (Gummow, Hayne, Heydon JJ) 1 must first take account of race.5 Lack of Constitutional recognition means Australia is torn between a ‘fair go’ of allowing FNP the right to engage and feature in Australia’s foundational document or allow everyone to respect their own culture. Criticisms surrounding the positive mention of FNP and it’s direct or indirect6 issue of ‘positive discrimination’7 are ill-founded, given the exclusive entrenchment of British history and contemporary effects of colonization on indigenous culture. Positive changes throughout history may encourage some to think that indigenous Constitutional recognition is unnecessary and breeds ‘identity politics’, which itself is or can create ‘bad policy’.8 While the form of state models of recognition are contested, none of them go far enough or are likely to privilege one race ahead of another, which the federal Constitution can replicate. Constitutional recognition should instead be seen to redress past wrongs of the Constitution and permitted acts, aiming to repair cultural non-recognition and following misrecognition by reconciling the document with indigenous peoples.9 Aiming to encourage the rebuilding of relationships internally and externally.10 Buti admits this is the most dynamic and effective theory of reparation as it is capable of empowering indigenous members and perform important symbolic functions for a society stained with past injustices.11 Aristotle describes humans as ‘political animals’, who are a product of and producer of the social world.12 Whereby the current relationship between indigenous and non-indigenous Australian’s is perhaps it’s greatest social weakness, as reflected by state symbolic recognition, symbols can be an important mechanism to fix this.13 Brooks states recognition does much more in the 5 Regents of University of California v Bakke 438 US 265, 407 (1978) (Blackmun J). 6 May produce hierarchies of status see John Bowen and Will Kymlicka ‘Are Identity Politics Emancipatory or Regressive’, The Conversation (online), 19 April 2018 <https://theconversation.com/are-identity-politics-emancipatory-or-regressive-94434>. 7 positive measures are non-discriminatory Wojciech Sadurski, ‘Gerhardy v Brown v The Concept of Discrimination: Reflections on the Landmark Case That Wasn’t’ (1986) 11 Sydney Law Review 5, 8. 8 Gary Johns in Keith Windschuttle et al, ‘Quadrant Constitutional Convention: For and Against the Constitutional Recognition of Indigenous Peoples’ (2017) 61(7/8) Quadrant 26, 29. 9 Law as a therapeutic agent David Wexler and Bruce Winick, Law in a Therapeutic Key: Development in Therapeutic jurisprudence (Durham: Carolina Academic Press, 1996). Cited in Antonio Buti, ‘Reparations, Justice Theories and Stolen Generations’ (2008) 34(1) University of Western Australia Law Review 168, 170. 10 Ibid 171. 11 Buti above n 9, 171. 12 CEO of St Vincent de Paul Society National Council, The Record (2009). 13 Ben Wyatt ‘The Constitution Amendment (Recognition of Aboriginal People Bill) 2015 (WA) its Passage, its Significance and its Implications’ online, 6 September 2016 2 areas of reconciliation,14 redemption and moral reparations.15 Whose awareness can benefit from foundational speeches.16 While questions of degree may impact the extent of restoration, in this writer’s view, it does not question the movement’s utility, as any extent of incorporation is symbolically beneficial and can lead to substantive changes. Constitutional recognition may be considered universally beneficial, as it can sponsor a sense of individualism bounded by a common sense of national unity and patriotism.17 Perhaps demonstrated in the historically conservative state of Queensland and their Constitution, which included the support of the people of Queensland who pay tribute to indigenous values and culture, which deepen and enrich the life of our community.18 Although Windschuttle opposes the movement as fostering indigenous sovereignty, which he sees as supporting or causing FNP to not regard Australia as their true country.19 It is important to not stereotype all indigenous groups under this banner and some groups may view it as unifying and construe symbolic recognition as a meaningful compromise.20 Some question the necessity of Constitutionally entrenching recognition as claims for indigenous recognition have been notably reflected in rights to land,21 culture22 and anti-discrimination23 legislation. Which have been realized to some degree socially with welcome to country addresses, ordinary legislation24 and court decisions.25 <https://www.benwyatt.com.au/constitution-amendment-recognition-aboriginal-people-bill-2015-wa- passage-significance-implications/>. 14 Axel Honneth, The Struggle for Recognition: The Moral Grammar of Social Conflicts (Joel Anderson translation, Polity Press, 1995). 15 Roy Brooks, ‘Getting Reparations for Slavery Right: a response to Posner and Vermeule’ (2005) 80 Notre Dame Law Review 251, 254-5. 16 Through state and federal Parliamentarians see Wyatt above n 13. 17 Noel Pearson, ‘A Rightful Place: Race, Recognition and a More Complete Commonwealth’ (2014) 55 Quarterly Essay 1, 64. 18 Constitution of Queensland 2001 Preamble. 19 Criticising ‘It’s our Country’ Megan Davis and Marcia Langton see Windschuttle above n 8, 32-33. 20 Noel Pearson in Patricia Karvelas, ‘Recognition for Indigenous Australians in Constitution Remains Elusive’, The Australian (online), 18 April 2015 <https://www.theaustralian.com.au/national- affairs/indigenous/recognition-for-indigenous-australians-in-constitution-remains- elusive/newsstory/13e249ccdfe4b0e0b1f566f9c37b15b5>. 21 Mabo v Queensland (No 2) (1992) 175 CLR 1; Native Title Act 1993 (Cth). Various statutory land rights regimes at the State and Territory level, for example, the Aboriginal Land Rights Act 1983 (NSW). Compare ‘superficial recognition’ Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge 2015) 1, 3. 22 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). 23 Racial Discrimination Act 1975 (Cth); Common law neither be or seen to be frozen in age of racial discrimination Mabo v Queensland (No 2) (1992) 175 CLR 1 [41] (Brennan J). 24 Consider state acts such as Noongar (Koorah, Nitja, Boordahwan)(Past, Present, Future) Recognition Act 2016 (WA). 3 However legislation can be repealed or amended and in the example of land right cases, public recognition has dwindled as more cases are resolved outside of litigation.26 The aspiration of reconciliation27 cannot solely depend on written rules but rather it’s application. The lack of Native Title claims reflect the economic,28 legal29 and psychological burdens of proving identity30 and inhibits public recognition. As reflected by courts, declarations of recognition have immense symbolic and psychological importance.31 As mentioned later, without federal Constitutional recognition and for those prohibited to Native Title Determinations,
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