The Policy Shop: an Indigenous right to self-determination and recognition

By Harley Dennett

Tuesday September 4, 2018

What is the right of Indigenous people to self-determination? Can Australia learn from other nations’ Indigenous policy initiatives, like designated seats and the Whānau Ora? Professor Glyn Davis went beyond the politics with two highly regarded constitutional scholars.

Dr Moana Jackson (pictured above), a New Zealand constitutional reformer and director of the Māori Legal Service, was visiting Victoria in July this year to deliver the 2018 Dungala Kaiela Oration (video below). While in the neighbourhood he joined the The Policy Shop podcast hosted by the University of Melbourne’s vice chancellor, Glyn Davis, to talk Indigneous self-determination.

Also joining the discussion was Dr Shireen Morris, author of Radical Heart and a McKenzie Postdoctoral Fellow at the University of Melbourne Law School, who has also worked as a senior policy advisor and constitutional reform fellow at the Cape York Institute working with Noel Pearson.

A positive example of Indigenous policy self-determination?

Jackson describes Whānau Ora — a New Zealand family health initiative, famous for being the exception to the litany of disappointment usually witnessed in Indigenous policy — as born from the strife families would face when hit by “the Toyota syndrome”:

“That is, five Toyotas from five different government departments would drive up to solve their problems,” Jackson said.

“The motivation if you like behind Whānau Ora was to take the Toyotas out of the drive-way and empower the communities to work together to solve the problems. The Crown in a sense would be the support actor rather than the driver.

“So as a result of Whānau Ora there are now a number of different initiatives crafted differently by people say in the north to people in the south because the needs are different. But shaped by common problems of poverty and dispossession and so on. What is happening I think is what our people who proposed the idea hoped would happen.”

When people are given the responsibility to determine their own destiny, to find solutions to problems that beset them, then people find the solutions and they’re not imposed by someone else, both guests noted.

“It’s a tenuous policy position because the funding is still held by the Crown,” Jackson continued, “and that’s the next step in the debate I think, is how the necessary resourcing can be transferred to similar independent bodies. That will be a difficult and fraught debate I think. But I think Whānau Ora represents an important break-through.”

That’s not to say things are all great. Jackson is doing research on Maori incarceration rates — which as noted in last week’s quintet meeting of Attorneys-General communique — continue to reflect the over-representation of Indigenous peoples in the criminal justice system. Jackson explained the ongoing frustration of the Māori, despite the Treaty of Waitangi:

“At one of the meetings we had one of our elders sat there through three hours of discussion and then at the end just stood up and said the solution is really simple. Give our people back and in a sense that’s what Whānau Ora is about.

“Let us take our people back, let us care for our people and most importantly trust us to do that.”

Watch the 2018 Dungala Kaiela Oration below:

Recognition and Treaty

In Australia, it’s not just Indigenous policy efficacy that remains a cause for concern. Morris notes Australia following the 1967 referendum still lacks any positive recognition of its Indigenous people, or positive rules to ensure fair treatment:

“It was funny that at the time in the lead-up to 1967 this Liberal MP Billy Wentworth he actually proposed a racial non-discrimination clause. But the government rejected that idea. They said no we don’t want to transfer power to the High Court to strike down parliament’s laws. We enjoy our strong parliamentary supremacy; we don’t want to give that up. So that clause wasn’t included in the referendum proposal at that time.

“Now in 2012 when the expert panel proposed its version of a racial non-discrimination clause it was like history was repeating itself because again we got these objections on the basis of parliamentary supremacy. This is a one clause bill of rights.”

A Treaty was once on the cards, as early as John Batman’s time — but was repudiated by the Crown. Fundamental power imbalance is among many factors for the continued lack of formal Treaty in Australia, Morris says.

“I think the lack of a Treaty, the lack of agreed founding principles between the parties has really meant that in a lot of ways the Indigenous people in Australia are in an even more vulnerable position than the Maori people in New Zealand. Because there’s nothing they can point back to to try and hold the Crown accountable to its past promises. Although I often sort of think about the royal instructions as a moral injunction that can be pointed back to.

“You know when Arthur Phillip came and he was required to treat the natives with amity and kindness and Cook before him was required to obtain the consent of the natives and never did. I think those are things we can point back to in terms of a unilateral sort of promise or injunction but not one that’s been mutually agreed.

“When I worked at Cape York Institute, in 2014 we actually took a trip to New Zealand and were so inspired by the ways Maori people have managed to implement, together with the Crown, institutional mechanisms for their ongoing recognition.

“That wasn’t only the Treaty of 1840, it was the fact that there are living and breathing processes that continue day in, day out, to ensure Maori people a voice and to ensure there is an active two-way relationship. Including the Maori reserved seats in parliament, including the Maori Council, including the Maori Language Commission and the fact that Maori is an official language of New Zealand. So it’s not only I think the Treaty that Australia’s missing, we’re missing a voice for the first nations, we’re missing the proper cultural and language recognition.

“So I think we’ve got a heap to learn from New Zealand in that respect.”

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