JCJ(W): budyari gumera, good afternoon. My name is Julie. I’m a salt water fresh water woman from the Dharug speaking people. We’ve gathered in our Truth Telling Tent because there’s a lot of confusion around the Voice to Parliament and what it means for First Nations people. I’ve spoken to a lot of First Nations people who feel as though they are not being heard or respected in the process, some people want to vote yes, some people want to vote no, some First Nations people don’t want to vote at all. This is an information session with community so we can better understand what’s happening.

Our panellists will introduce themselves then we will get stuck into it. One of the most confusing things right now is we have the Voice and we have constitutional recognition. It’s been bundled into one thing when a lot of communities feel it should be two separate things. Andrew, over to you.

AS: Good afternoon my name is Andrew Smith, proud Wiradjuri man, central west NSW, Dubbo/Peak Hill mob. I’m also a barrister, I’m also Acting Commissioner of the Land and Environment Court. Everything I say today is my personal opinion, not the opinion of any organisations I’m associated with. My purpose today is to answer questions, not just legal questions, but also perspectives. This is a space for no judgement, for people to express themselves. I won’t disclose where I stand, but I will quote views on both sides. That to me is how people come to their own views, and make a decision that sits best with them.

MW: I’m Miah Wright, yama, I’m a proud Gomeroi Dunghutti woman. I used to be Producer First Nations Programs for City of Parramatta, so it’s nice to come as a spectator this year. I’m a supporter of the Dharug and Western Sydney, thanks for having me.

HD: Hello everyone, I’m Hannah, a Wiradjuri woman on my father’s side. I grew up in north west NSW, Gamilaroi /Kamilaroi country. I’ve been living and working on Dharug country in arts organisations for a number of years. I don’t have a great technical understanding. I also need to say these are my personal opinions. It’s great to have critical conversations, understanding that we are not a monolithic community, there’s a diversity of opinion. Letting those disagreements happen is where we do the best learning. I had to think a lot before this panel. Previously I felt a bit on the fence, but now I’m leaning towards a critical yes. Critical, not cynical.

JCJ(W): A critical yes?

HD: I have questions around membership of the future representative Voice.

JCJ(W): If I’ve talked to First Nations 100 people, I’ve got 100 different opinions of why people are or are not voting yes, or are not voting at all. There’s been a big swing within the people that I’ve talked to, about not wanting to vote at all because they don’t want the responsibility of it not coming through but are very worried about what happens if it gets through. This has divided our community like nothing I’ve seen since the White Australia Policy and colonisation. And we’ve got a tiny voice in how that’s happening.

Andrew, could you give us an overview of the legal framework?

AS: The amendment has three or four core parts. The first is a new section in the Constitution. The preamble begins by recognising the First Peoples of Australia. That is the first time that there will be recognition in the Constitution of Australia that Aboriginal people are the First Peoples of this land. It can now be accepted generally, anthropologically, archeologically, otherwise, as a historical fact.

The next part is to create a body that will be called The Voice, and that is to be constitutionally enshrined. Those who are supportive of The Voice say that that is essential because there have been a number of bodies over the last 50 years in particular, that have been of a similar ilk, that have been legislatively created, and then removed. The intention of the constitutional foundation is to make it very difficult – requiring a referendum – to remove the body’s existence. So that a change of attitude of government can’t change the outcome.

The next part is The Voice can have the right to make representations to the members of Parliament, also to the Executive. There is a lot of argument around that in legal circles. This is an area which comes as a challenge for mob, and for everybody – the request is for a Voice, for a right to speak, not a right to be heard, not a right to be listened to. It is the creation of a body that will have a right to make representations about matters that affect First Nations people. Almost every leading constitutional law expert says, that if, for example the Voice were to make representations to the Department of Defence, about whether or not to join the Americans if there’s an invasion of Taiwan, the Department of Defence has no obligation to do anything more than receive the document. They can then file it, and move on.

The point about the right to make representations, is where some of the real issues I’ve heard from mob are. Firstly, who are the people who are going to make up The Voice and who are the representatives going to be and how are they going to be elected? The second concern is that by constitutionally enshrining The Voice and recognition of the First Peoples of Australia, that there will somehow be a ceding of sovereignty. The opinion of the majority of lawyers is that can’t happen, but interestingly within the working groups, one of the debates which took up a lot of time at one stage was whether the opening preamble would be recognising the First Peoples or the First Nations of Australia. The use of the words Nations invites a discussion around sovereignty. Peoples is the word going to the referendum.

JCJW: Hannah, there’s still not enough information in community, community members aren’t understanding what it’s all about and what it means for us. For you within the art space, having to think about this in such a political space, has that shifted your thinking?

HD: Yeah. Where I come from decisions are reached collectively and are conversation driven. For this I had to make an individual, values-assessment. It feels weird to be making that individual decision. Within my family we have very different opinions, but for me it comes back to making an informed choice. I tried to read the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum Report. I didn’t get through all of it. I looked at some other more accessible information. That is a very individual thing for me, to have read all that information, processed it and then come out thinking one particular way. Because we are used to making collective decisions in community, and we are going to make an individual value choice, that can lead to misinformation and hard conversations. I still feel confused about the membership of The Voice. I read through the values-approach where it would be grass-roots and regional entities but what are those entities? There is different state and federal legislations that impact how some regional entities have already been formed. We are familiar with land councils and other native title bodies and other community-controlled organisations and we know that sometimes they don’t represent people, particularly in the context of where we sit in Western Sydney. Traditional Owners or Custodians might not be sitting on those regional entities. The membership question is going to continue to be a problem.

JCJW: Miah, like me, comes from a family of activists and our starting point is activism, and looking back at our families, what they’ve fought for and how that’s got us to where we are now. The Voice has imploded within my family. People are saying The Voice is going to give us this opportunity and that opportunity. I have people saying ‘I don’t want to be in the Constitution. I’ve lived my whole life without being in the Constitution.’ Andrew when you talked about legislation, I think what is missing in this conversation is that First Nations people already have our traditional lore. We are respectful of the laws that we have to live under now in this framework, but we’re respectful of that law because of the good grounding we’ve had in traditional lore. The traditional lore is more than legislation and framework. For First Nations people it’s about the conversation, the morals, the culture, the responsibilities and the things we’ve always carried on country that legislation doesn’t recognise.

Miah, did your family feel included in the Uluru Statement from the Heart process or could that have been done better, and has that impacted how you feel about the Voice?

MW: They could have done a lot better. With the Uluru statement from the heart a lot of  my community walked out, a lot of people were not getting the gist of it. Within my family it has been a conversation: ‘what are we doing? Are we voting yes? Are we voting no?’ A lot of our mob still don’t understand what this means. People are still looking at effects of treaties. The conversation hasn’t represented the other side. The yes vote is represented very well but the sovereign mob have a lot to give to this argument. They’re being shut out.  Personally, I’ve got big problems with mining companies on my country. For me The Voice needs to be able to change these things that are happening in our communities. We don’t know what we’re voting for. We don’t feel inclined either. You’re not going to tell us what we’re going to vote for. For a lot of my old fellas up home, it’s not big on the agenda. They have necessities that need to be met.

JCJ(W): That general level is one of the bigger conversations in community: not are we voting yes or no, but is Australia as a nation at a point where we should be having a referendum right now while we have so many First Nations issues we have to deal with? Our Dharug country is hugely affected by past policies. We have mining happening on our country all along the beautiful Hawkesbury River. One of the conversations within my mob has been ‘who is going to be The Voice?’ We sit on our Traditional Country from the mountains to the sea, from the Hawkesbury to the back of Appin, and we have three land councils that sit on our country, that do not recognise Dharug people, that actively work against our custodianship, our rights on country. It’s been a very hard journey for lots of us over decades to even start to be heard now. When we ask ‘who is going to be our voice?’ we’re told ‘we’ll deal with those details later, we’ll sort all that stuff out later. Let’s just get the referendum over the line.’ I’m only speaking for my family, but we are done with giving blanket approval and having nothing come back in return. For us, if local Aboriginal land councils become our Voice, my mob is finished. One of my old uncles said to me ‘Daughter, we’re 3.5 % of the population, we’re 2% of the voting population. Every Aboriginal person could cease to vote and it wouldn’t matter.’

These are the things that community is talking about, on a level that politicians are not hearing because the conversations have all been high level and nothing has reached down here. My people have been damaged badly and our voice has been damaged badly by Native Title and land rights legislation. We are heavily impacted by colonisation. We’ve had five generations of half-caste kids and rape and genocide before colonisation spread across the rest of the country. Our mob is very concerned about who those voices might be. Andrew is there anything in place to decide who those voices are going to be? We have in Western Sydney the highest percentage of First Nations people in the country, and not all of them are Traditional Custodians. Where is the protection for Traditional Custodians that didn’t get a voice at the table and aren’t getting a voice on country?

AS: Auntie Julie makes a good point. I’m Wiradjuri living in Penrith. It’s not my country, its Dharug country. My mob’s country is Dubbo in the central west. Should I be allowed to vote who my representative is? I’m not a voice for the Dharug, I’m a voice for the Wiradjuri, albeit I’m in a different place. That’s a difficult question, and that’s part of the reason they’re avoiding answering it. In reference to grass roots, there are lots of different roots, all mean well, and have their own point of view about the contribution they can make but whether that’s consistent with the Traditional Owners is another thing. But it all ties to a great challenge around all this, and I embody it. I work in the justice system, which has fundamentally done great harm to my people, to my own family, but I deal with that existential crisis by reminding myself if I’m not there, things may be worse. That is part of the challenge: I know the current regime is not working. There needs to be self-determination, but what Auntie Julie’s getting at is whose self-determination? Who’s determining what for who? That’s a real challenge for mob. It’s deep conflict.

JCJ(W): Our people don’t take on the notion that we are elected or we have a right to speak for others. Hannah, you talked about it being a very personal choice and Miah you talked about it being collective, so we’re coming from a completely different place from the politicians. Do you think that constitutional recognition, The Voice and everything it’s supposed to stand for is being drowned out by the political push? Has it become more about a political legacy than about genuinely giving First Nations people a place and a voice?

HD: I think so. As Miah said, we need to allow for the conversations of the mob that are No, to allow for that dialogue and understand that as meaningful learning, and not as conflict. There are two No schools of thought: the racist No, and the No that comes from the many cultural, familial and country considerations in this decision. The thing that makes me feel less cynical and more critical, is that once something is constitutionally enshrined, then the coalition can’t come and tear it apart. There’s been a number of regional decision-making representative bodies that have been dismantled by the coalition. Is this the only moment in my lifetime to move towards constitutionally enshrining something that the coalition once they’re in can’t come and tear apart? Yes, its messy and it’s going to be hard to figure out that membership, if there was a successful referendum. I’m more positive because maybe we can have those hard conversations around who’s speaking for what country and the right people for country in a more powerful way than ever before, if we take the moment to have those hard conversations with each other. A lot of people are very aware of those problems of non-Traditional Owners and Custodians speaking for other people’s country. Can we all say we are going to hold them accountable through this process?

JKCJ(W): That is an interesting concept. Miah, we have the Deaths in Custody Report with multiple recommendations that haven’t been implemented, we’ve had an intervention that we still haven’t got our heads around, we’ve had institutional abuse of children, and the Bringing Them Home Report, and we’re still waiting for its recommendations to be acted on. Do you think that this Voice, however it comes to be, will see some of those things improved for our people or do you think it will be just more of the same? Do you think that there’s an avenue for us to use this constitutional recognition to push for those things to be enacted?

MW: I hope so. Our mob are sick of people speaking for us. We’re still seeking justice in our communities. The horrid things that have been done to our people are still being done to our people. I don’t know if this is going to bring them to the table. We have more kids getting taken than we ever did in the Stolen Generation before. It’s higher and I’m sick of politicians and people making decisions for us, and land councils and all these people speaking for us. I’m trying to see that this could potentially make some changes that really need to be dealt. I’m also sceptical cause I know our government is great at making promises and never delivering them. I want us to be able to make decisions for our people and not have an advisory panel doing that for us.

JCJ(W): For me, traveling around NAIDOC this week, wanting to celebrate our elders, I’ve been hit in the face with people turning NAIDOC openings into a Vote Yes campaign. I’m starting to get a bit angry at the political influence around our voice.

MW: It’s a distraction. As I said, I need to deal with getting Santos out of my country. There’s a climate summit next week and Noel Pearson’s going to speak and he’s going to talk about The Voice. That’s not the right platform. We’re there to talk about climate change and what’s happening in our country.

JCJ(W):  We’re facing mining with one of the local Aboriginal land councils, on our country as well, who is sand mining all along the Hawkesbury River. We’ve seen what’s happened to this river here in Burramatta. She’s not the entity she used to be. She’s sick. She’s unhealthy. That’s starting to happen to the Deerubbin as well. Hannah, for a lot of First Nations people,  is The Voice beginning to be seen as another box ticking exercise because it’s not changing anything on the ground?

HD: Yes, daily lives, existence and survival is a thing. As I said, trying to go through the information so I could make an informed decision, was really hard and I didn’t have time to do that. But I made time. This is a really important conversation and there’s a tight deadline. How many months have we got once it’s gone through the house?

AS: Talk is they’ll hold the vote in October.

HD: Yes, but with a lot of our conversations, we take years to make a decision. But they have to hold the referendum in that timeline. That’s the legal Western framework. And we are still trying to figure out these deep and complex things. And we’re not going to figure it out by December!

JCJ(W): Andrew, has there been any discussion around those tables in the sense, that there’s lore and law, and, and where is our lore going to fit into this law, and the time thing? Has there been any sense that this is rushed, and we need more time?

AS:  I don’t think there’s been a determination in terms of ‘rushed’. The point, and the challenge, is that it is by its nature, an amendment of the Constitution is a Western thing. It’s not my culture, it’s not First Nations work, it’s not LORE, it’s not Elders, it’s not our way of doing things, but it’s the system that we work within and a lot of the solutions, and regulations, be it mining, access to justice, come down to the Western way.

As I understand it, for those who’ve worked heavily on it, or supported it, this is the modest request, with the intentions of working within the compromise that is being part of the two worlds, and trying to work within those two worlds. But I respect and understand Hannah’s attitude. You have prescribed Body Corporates or Native Title Bodies and, you’ve got Elders. Elders who know their country and know stories. I’ve had the pleasure of going to places with Elders in all parts of the country, seeing things that are thousands of years old, hearing stories and learning a lot. Their knowledge is not adequately respected. But, when you design something around Western concepts, the Native Title Act is the thing that prescribed body corporates. Aboriginal Land Councils were created by the Aboriginal Land Rights Act. They’re not First Nations products. The people that are more likely to have the skills and the knowledge or the experience to make the most of those things or to be able to work with those environments are the younger mob, because they’ve gone to university. Like me, they get to stand on the shoulders of the activists that came before them. And that’s a great challenge.

When it comes to things like The Voice and organizations that are walking the hallways of Canberra, it’s going to be those that have got tertiary education that are listened to. Vincent Lingiari demonstrated that sometimes elders can walk those hallowed hallways and bring about change. But the sad fact is from my humble experience of 40 odd years, they are an exception to the rules. That’s why we’re pushing for this particular pathway. Again, I respect the fact that others feel like ‘where does this leave me?’

My lore is I listen to my old people. When my old people meet and they talk, they come to a conciliatory group decision, not an individual decision. So how is this going to work for me? To some extent it’s about staying in one’s own lane. Unfortunately, my life experience is that people often find themselves desiring to change lanes.

JSCJ(W): Well, we’ve had a conversation that’s been guided by First Nations people in a room with a microphone having a voice. That’s so important no matter what country we’re sitting on. I would like to thank the non-First Nations community for your good spirit and goodwill. My only hope is that politicians stop playing on your goodwill and start to have conversations on the ground that mean something more than patting themselves on the back for a legacy. Thank you for all being here. Think everything over and vote with your conscience. But remember, talk to your First Nations people because it’s about our voice, not yours.