Foxy,

"Would a First Nations voice in the Constitution
divide our nation by "race" and undermine the
principle of equality?"

If this "voice" has any legal influence on legislation then it does divide our nation by race and undermine equality. And your "inclusion" is actually creating exclusion of other races from having an equal voice.

Either a non indigenous Australian is equal with an equal say in parliament or he is not. It is as simple as that.

.

Dear Loudmouth,

.

The High Court judges carried out a very thorough analysis of the legal aspects of British colonisation of Australia in the Mabo case decision. They found that the British Crown and government had acted on the legal fiction (so far as the colonisation of Australia is concerned) of "the enlarged notion of terra nullius" :

« 36. When British colonists went out to other inhabited parts of the world, including New South Wales, and settled there under the protection of the forces of the Crown, so that the Crown acquired sovereignty recognized by the European family of nations under the enlarged notion of terra nullius, it was necessary for the common law to prescribe a doctrine relating to the law to be applied in such colonies, for sovereignty imports supreme internal legal authority. The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of the municipal law that territory (though inhabited) could be treated as a "desert uninhabited" country. The hypothesis being that there was no local law already in existence in the territory, the law of England became the law of the territory (and not merely the personal law of the colonists). Colonies of this kind were called "settled colonies". Ex hypothesi, the indigenous inhabitants of a settled colony had no recognized sovereign, else the territory could have been acquired only by conquest or cession. The indigenous people of a settled colony were thus taken to be without laws, without a sovereign and primitive in their social organization. Lord Kingsdown used the term "barbarous" to describe the native state of a settled colony »

.

(Continued ...)

.

.

(Continued ...)

.

And to conclude :

« 63 …The common law of this country would perpetuate injustice if it were to continue to embrace the enlarged notion of terra nullius and to persist in characterizing the indigenous inhabitants of the Australian colonies as people too low in the scale of social organization to be acknowledged as possessing rights and interests in land. Moreover, to reject the theory that the Crown acquired absolute beneficial ownership of land is to bring the law into conformity with Australian history. The dispossession of the indigenous inhabitants of Australia was not worked by a transfer of beneficial ownership when sovereignty was acquired by the Crown, but by the recurrent exercise of a paramount power to exclude the indigenous inhabitants from their traditional lands as colonial settlement expanded and land was granted to the colonists. Dispossession is attributable not to a failure of native title to survive the acquisition of sovereignty, but to its subsequent extinction by a paramount power »

Here is the link :

http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1992/23.html

.

SM,

That Australians should be equal and our
Constitution should unify, not divide, are
uncontroversial propositions. However our
Constitution has not ensured fairness and
equality for Indigenous Australians.

The Constitution confers upon parliament
a special power to racially discriminate.
The Race Power was inserted, according to
the constitutional convention debates,
to control and exclude the "inferior"and
"coloured" peoples.

Before 1967, the power was never used. After 1967,
it has only been used in relation to Indigenous
Australians.

These clauses and the constitutional history
informing them demonstrates that equality is not
even a logical implication. The High Court has
confirmed this.

The resulting constitutional problem for
Indigenous Australians is demonstrated by the fact
that the Racial Discrimination Act 1975 has been
suspended three times in recent decades - each
time only in relation to them.

I understand your objections - your ancestors have never
been denied equality on the basis of "race"under
Australian law, so your empathy for discrimination
against Indigenous Australians is lacking. You're not
alone in this, obviously.

The Uluru Statement
takes on board objections to a racial
non-discrimination clause, and calls instead for a
First Nations voice in laws and policies made about
them as a way of preventing repetition of past
discriminatory policies.

The proposal has a long history - Indigenous advocates
have argued for decades for fairer representation in their
affairs.

A First Nations voice in the Constitution would guarantee
Indigenous people a say, without transferring power to the
High Court or undermining parliamentary supremacy.

It presents a way of improving Indigenous policy
through early Indigenous engagement, rather than
subsequent litigation.

A First Nations voice in the Constitution would not divide
us by "race." There are already race clauses in the
Constitution that divide Australians. Ensuring First
Nations have a voice in their affairs would create a
fairer relationship. It would help prevent discrimination.
It would unify, not divide.

Hi Banjo,

Thank you, that's what I was after: possibly no reference anywhere to "terra nullius" - in those words - before the Mabo decision by our High Court judges ?

Heckle&Jeckle,

Given the rather fractious nature of traditional Aboriginal 'clan sovereignty' (if you want to use that word), even now in remote communities, I'm sceptical about the existence of pre-contact Aboriginal cities, presumably bringing together dozens or hundreds of clans living harmoniously. Anybody who claims that, and without actual evidence of a city, is either a fool or a charlatan.

Currently, fires are raging through grain crops ready to harvest in Syria. One farmer lamented his 125-acre crop. Presumably he is using basic mechanical equipment. If he cultivated his fields using a stick, perhaps his acreage would be only a fraction of that. Yet simpletons airily agree that someone saw a field nine miles long, of maybe five thousand acres, i.e an area that would take up all the time of forty modern-day farmers with tractors. Or perhaps four thousand Aboriginal farmers with sticks. And their families during harvest. Carried to invisible storage pits by the women and kids ?

And growing what ? Nobody seems to dare to write of that. Kangaroo-grass ? And what's out beyond the fences ? Kangaroo-grass ? Then .... [should I even have to write this ?] why bother ?

Okay, go ahead, believe any crap you like. Deny that Aboriginal people were foragers, hunters and gatherers, that they had a wide range of farming tools but comparatively little in the way of hunting and gathering tools. Really ? So what's in museums now ? Been to one lately ? So Aboriginal people have comparatively few Dreaming stories about hunting but plenty about farming ? Really ? As collected and published by ..... ?

And all for what ? So that you can avoid the simple question: did/do foragers own the land they forage over ? Did/does land-use rights confer proprietary rights ?

No ? Therefore try this other BS tack ? Win at all costs ?

What a bunch of opportunists.

Joe

Joe,

You're beginning to sound a bit unhinged.

Perhaps you need to talk to someone?