Thursday, 10 November 2016

The 2016 Reconciliation Lecture: lessons for Australia from the Canadian experience.


The annual Reconciliation Lecture, hosted by the National Centre for Indigenous Studies at ANU and Reconciliation Australia was given last night by the Canadian Justice Minister and Kwakwaka’wakw leader from Vancouver Island, Jody Wilson-Raybould PC, QC, MP. There is unlikely to be much media focus given the almost simultaneous results of the US election. Here is the National Indigenous Times story.

The event was of interest for a number of reasons.

A short preliminary speech by the CEO of Reconciliation Australia (RA), Justin Mohamed, summarised the findings of a report, The State of Reconciliation in Australia, recognising the 25th anniversary of the establishment of the Council for Aboriginal Reconciliation, a forerunner of RA. The report was published by RA in February 2016 (media release here), and seeks to assess the state of reconciliation today by considering progress against five interrelated criteria or dimensions: race relations; equality and equity, institutional integrity, historical acceptance, and national unity.

Not surprisingly, the report’s assessment is that the nation faces considerable challenges in its path towards reconciliation. The state of race relations is problematic, interactions between Indigenous and non-Indigenous Australians are low, trust is low, and racial discrimination and prejudice is a lived reality for many indigenous people. Equal access to life opportunities does not exist. Key institutions in Government, business and the community do support the reconciliation process. There is widespread community understanding that past policies led to ongoing Indigenous disadvantage, but the desirability of formally addressing those wrongs is more contentious. Accordingly, unifying the nation is broadly accepted as an aspiration, but leaves much to do in practice.

The report identifies an agenda for change, aimed at sparking ‘a renewed national conversation about how, over the next 25 years, we can move toward becoming a reconciled, just and equitable Australia’. The proposed agenda is set out under seven headings: overcoming racism; renewing the focus on closing the gap by all governments; recognising and respecting Indigenous cultures and collective rights; capitalising on social change generated by RA’s Reconciliation Action Plan program; improving the governance of government; establishing a process to recognise Indigenous Australians; and acknowledging our nation’s past treatment of Indigenous peoples through truth, justice and healing.

In essence, this report makes the argument that Governments have a moral duty to implement just policies. I certainly agree; however the pragmatic reality is that Governments rarely do what it right without the encouragement of organised and sustained political pressure. It is worth re-assessing this report in the light of the core argument in the Canadian Minister’s Lecture summarised below.

The Minister’s Lecture was an incisive overview account of the history and state of play of Indian policy in Canada, and her speech was titled ‘Moving Through the Post-Colonial Door’. I won’t try to summarise the speech and will provide a link once it is published (I understand a text version is likely to be made available in a couple of weeks).

Ms Wilson-Raybould began by providing a succinct yet comprehensive overview of salient events in Canada’s history of Indian policy. As many have observed, including the Minister, there are many parallels between Australia and Canada in the treatment of Indigenous peoples and our shared colonial legacies. The Minister argued that the Indian Act had long been used to assimilate Canadian Indians, and went on to outline the Trudeau Government’s agenda which includes a comprehensive review of the justice system, a process to ‘deconstruct’ the Indian Act and replace it with self-determining communities, a review of litigation approaches by governments aimed at adjusting the default of automatic opposition to every Indigenous claim or application, the implementation of the recommendations from the Truth and Reconciliation Commission modelled on South Africa’s post-apartheid commission to address the outstanding legacy of abuse of women and children in residential schools (the subject of a scathing 4000 page report in 2015), and the exploration of alternative justice strategies such a justice reinvestment.

While it is easy to see the parallels with Australia in the issues and challenges that are being confronted, it is clear that the Trudeau Government is determined to move Indian policy issues to a new level. It is not so clear that the current Australian Government, nor indeed the Australian community generally, are prepared to do likewise. To the extent that Canada makes tangible and substantive progress, it will inevitably increase pressure on Australian Governments to do more.

There were three key points which emerged from the Lecture which resonated with me.
First, Minister Wilson-Raybould argued very persuasively that reconciliation is fundamentally about changing power relations. It is not just about changing selective laws and policies, but requires a fundamental and systemic change to the distribution of political power within society. This is not how we in Australia tend to conceptualise reconciliation; and is not how the RA report discussed above is framed and argued.

We tend to see reconciliation as something which governments will voluntarily promulgate and engender, because it is morally right to do so. We tend to frame reconciliation as improving communication, improving respect, improving trust. The focus is on persuading mainstream society and mainstream governments to do better, to consult more, to acknowledge culture, and so on. In this sense, the Canadian Minister’s speech laid out a much more radical (and challenging) vision for Australia, for our governments, and for RA. Implicit in her argument is that Indigenous peoples need to work to acquire political power (not assume it will be voluntarily given to them) and thereby engender the respect, and substantive recognition that those with power automatically receive.

Second, Minister Wilson-Raybould argued that by reforming the Indian Act, and putting substance back into the treaties which underpin most Indian communities/populations, a pathway based on a ‘new federalism’ would emerge which would provide a decentralised and institutional basis for greater powers to be exercised. She cited the Canadian Supreme Court’s decision in Williams as providing a strengthened basis for self-governing Indian communities. Here is a link to an analysis of the implications of the case. Thus Canada has by virtue of past treaties, the strengthened legal requirements on Governments to respect Indian territoriality, and the Government’s fiduciary duty towards Indian peoples, an institutional basis for Indian communities to take on greater governance responsibilities and concomitantly exercise greater power within the Canadian federation.

Of course, Australia has no history of treaties, the courts and our Constitution have not seen fit to determine that Governments have a fiduciary duty to protect the rights and interests of Indigenous Australians, and native title is conceptualised as a mere property right, and not a right to exercise territorial sovereignty. In these circumstances, Australia’s Indigenous peoples, and particularly their leaders, will need to forge an alternative route to acquiring and retaining greater political power than that outlined by Minister Wilson-Raybould for Canada.

My third reaction to the Lecture was a sense that the Trudeau Government, and Minister Wilson-Raybould may not have given adequate consideration to countering the inevitable push-back from interests who lose influence and power as a result of their proposed reforms. After all, the allocation of power and influence within society is in large measure a zero-sum game. What one group gains, another loses; and this rarely happens without the losers actively defending the status quo. I readily acknowledge that my knowledge of Canada’s policy landscape is too shallow to be certain about this; and it may be that the Trudeau Government has a strategy to lock in its reforms that it is not advertising. Alternatively, it may be that the interplay of Executive action and the Courts in Canada means that gains for Indigenous interests will be more robust than appears on the surface. Nevertheless, the aspirations of the Canadian Government to implement far reaching reform in Indigenous policy will likely be tested, either in the short or medium terms.

The lesson for Indigenous interests and their leadership, both in Canada, but also in Australia, is that they need to establish the organised, coordinated and politically effective advocacy structures and organisations that all other major interest groups within society utilise both to assert and expand their political influence, and to protect their interests from countervailing incursions.

Finally, in researching this post, I came across the Minister’s Mandate letter from the Prime Minster which the Canadian Government makes public. Here is the link; it will be seen that it reflects many of the issues mentioned in Minister Wilson-Raybould’s Lecture.

Australian Prime Ministers have previously issued charter letters to their Ministers. I am not sure if the current Government does so. It would however be an excellent initiative for the Prime Minister to do so, and to publish it, particularly in the Indigenous Affairs portfolio where it is quite difficult to ascertain what the Government’s overarching policy agenda entails. One of the lessons of the US election must be that electorates are losing faith not just in politicians, but in Government itself. An obvious way for Government’s to engender greater trust is to seriously commit to greater transparency (as the Canadian Government has already done), and the release of ministerial charter letters would be an obvious place to start. If Canada can do it, so too can Australia!