Terra nullius lie recycled by Uluru statement opponents

Northern Land Council CEO Joe Morrison (centre) outside the National Indigenous Constitution Convention

For non-indigenous opponents of the principle of an indigenous voice and a treaty process, as put forward in Friday’s statement from the Uluru conference, the only logically coherent position on indigenous affairs is the racist myth of terra nullius. 

That’s not the usual reflexive calling-out, that’s the only possible interpretation of their rejection of the Uluru statement, which called for “the establishment of a First Nations Voice enshrined in the constitution” and a “Makarrata Commission to supervise a process of agreement-making between governments and First Nations and truth telling about our history”.

The idea of a First Nations Voice was yesterday wilfully and maliciously mischaracterised by Deputy Prime Minister Barnaby Joyce as “another chamber in politics or something that sits beside or above the Senate”. Why Joyce chose to do this isn’t clear, but even a casual reading of the statement, and its word choice of “voice” and the closing statement — “In 1967 we were counted, in 2017 we seek to be heard” — would make clear even to the antipathetic reader that an additional parliamentary chamber was not what is being proposed. There was no lack of clarity in the statement; those looking for a reason why the Deputy Prime Minister would deliberately misinterpret it should look elsewhere for a reason.

The usual right-wing suspects within conservative ranks also assembled to attack the proposal: George Christensen, Craig Kelly — the kind of names you know will be mentioned in dispatches whenever there’s a culture war to be fought or a minority to be attacked. So, too, did the Liberal Party’s Melbourne branch, the Institute of Public Affairs, which opposes even the idea of indigenous constitutional recognition. All did so based on the same argument, as put by the IPA’s John Roskam, that indigenous Australians are no different to anyone else. An indigenous voice, according to Roskam, was “just as offensive as to give people a special say due to their religion, or gender or anything else”.

And, Roskam believes, a treaty is “radical identity politics”. “A country cannot have a treaty with itself,” he declared, channelling John Howard (who stole the idea from Canadian Prime Minister Pierre Trudeau).

There’s no actual legal basis to the Howard line; it’s simply a rhetorical point. It rests on the peculiar idea of indivisible sovereignty, which, in a country where sovereignty is split via a federation, which is only a matter of decades on from removing British sovereignty from the statutes, and which has shifted from believing in Crown to believing in popular sovereignty, seems eccentric at best. And, as George Williams has noted, other colonial settler societies don’t cling to such convenient fictions. More to the point, as Williams wrote some years ago, “the Constitution can be changed by a referendum of the people … s. 128 of the Constitution ultimately puts the terms of the Australian settlement into the hands of its politicians and people.”

That is, if Australians want a treaty with indigenous Australians, they can have one. To assert otherwise is, bizarrely, to limit the popular sovereignty of Australia.

The argument that Aboriginal and Torres Strait Islander people are just another group of Australians, like Catholics, or red-headed people, or South Australians, is thus a reversioning of the lie of terra nullius. As the Uluru statement notes, Aboriginal and Torres Strait Islanders are our First Nations. They must necessarily occupy what is derided as a “special” place, because they held sovereignty over this land prior to invasion. Catholics, Muslims, redheads, whoever, did not. Australia remains an occupied country, where even the nation’s highest court has ruled that white settlement has not obliterated forms of Aboriginal sovereignty.

In words that must pain and infuriate Roskam and his ilk, even John Howard recognised this. “As a nation, we recognise and celebrate Indigenous people’s special place as the first Australians,” the Howard government explained in 2002 (my emphasis). Tony Abbott went further. “We have to acknowledge that pre-1788 this land was as Aboriginal then as it is Australian now. Until we have acknowledged that we will be an incomplete nation and a torn people. We only have to look across the Tasman to see how it could have been done so much better. Thanks to the Treaty of Waitangi in New Zealand two peoples became one nation.”

Whatever racist, ahistorical or legally eccentric fictions may motivate the “nothing special about indigenous people” crowd, it’s noteworthy that it primarily comes from people who already have substantial power and a platform to spruik their views. The IPA, funded by corporate donations, provides a stream of Liberal politicians and receives extensive media coverage, including on the ABC, out of all proportion to their impact on public debate (it has been on the losing end of debates on superannuation, 18C and the bank levy in the last year alone).

In effect, powerful non-indigenous people who are guaranteed a hearing whenever they open their mouths are agitated by the prospect of indigenous voices being heard. Funny that.