In Principio August 2017

SMALL STEPS TOWARDS RECONCILIATION The recent Constitutional Recognition Summit at Uluru put the spotlight back on Aboriginal and Indigenous rights. The summit concluded with a ‘statement from the heart’, a call for the establishment of a First Nations Voice enshrined in the Constitution of Australia which is the only Commonwealth country that does not have a treaty with its Indigenous people. In this article, Dean of the School of Law, Fremantle Campus, Professor Doug Hodgson discusses how the argument for constitutional recognition can be viewed through the lens of Indigenous rights. It is widely recognised that Australian Aboriginal and Torres Strait Islander peoples are the oldest surviving culture in the world today. Yet, the Australian Constitution was drafted on an implicit principle of terra nullius (vacant land), to be divided and governed. While the 1967 referendum removed explicit systemic constitutional exclusion of Aboriginal and Torres Strait Islander peoples it did not recognise their unique and special position as the continent’s first people. Fifty years on, the call for further amendments continues to be a sticking point in the political arena. The debate around enshrining a First Nations Voice in the constitution can be examined through the lens of Indigenous human rights. For the last half decade the United Nations international human rights framework has featured an increasing recognition of Indigenous peoples and their rights as special subjects of concern and importance. This is largely due to the fact that Indigenous populations continue to be over-represented as a percentage of the world’s poor. Consistent with recognising the inherent worth and dignity of every human being there is a need to uplift the most disadvantaged and marginalised sections of the Australian family. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which was formally endorsed by the Australian Government in 2009, lays out a framework for the preservation of culture, customary legal systems and landownership, alongwithadvancement in the areas of health, education, and the ownership of cultural knowledge. The UNDRIP provides significant political and strategic leverage for Aboriginal and Torres Strait Islander peoples in advocating their case for law and policy reforms within Australia to redress historical disadvantage. What the United Nations still lacks is an instrument to bind Member States including Australia to implement UNDRIP ’s aspirational principles into law. On the one hand, it can be argued that constitutional recognition of the First Nations Voice would predominantly be a symbolic gesture. On the other hand, it couldprovidethelong-termconstitutional entrenchment that is needed to move advancement of Indigenous rights in Australia from well-meaning intention to meaningful realisation. P R O F E S S O R D OUG H O D G S ON I N P R I N C I P I O | 1 6