Despair at Aboriginal affairs takes different forms. The philanthropist Andrew “Twiggy” Forrest wants to keep money out of Aboriginal hands. Aborigines would still receive welfare, which is what sustains most remote communities, but only as an entitlement to buy certain goods, which would not include grog, drugs and pornography. In A Rightful Place, Noel Pearson has joined other Aboriginal leaders in believing that changes to the constitution are a remedy for Aboriginal woes.

At first glance Forrest’s proposal seems more likely to bring an immediate, beneficial result. If Aboriginal communities are destroying themselves with alcohol and drugs, let’s prohibit access to these substances. Even if this were to succeed – and one can think of many ways the prohibition might be avoided – would it produce what people of goodwill want to see: Aboriginal people living well on their own lands? The ingredient that is missing to make healthy people and communities, and which a hundred programs and billions of dollars have not so far produced, is a sense of responsibility in individuals so that they would care for themselves, their children and their communities. Many years ago, W.E.H. Stanner identified a silent resistance to the invaders, which is still there despite all that has changed in public policy since. It is as if remote Aborigines are ready to risk their own destruction rather than be what we want them to be (which surely is no longer paternalistic: what we want must be what they want too; surely they want to “close the gap?”). 

Noel Pearson was the first Aboriginal leader to set aside all slogans and excuses and identify the missing ingredient. He has created new institutions in Cape York to encourage or even enforce a sense of responsibility. These have required changes to the law and large injections of government money. One of the many puzzling passages in this essay is Pearson’s attempt to show that Aborigines are without influence in this polity.

There are mixed reports coming out of Cape York on the results of Pearson’s initiative. I fear that he himself must have doubts because of his willingness now to reach for explanations and solutions which formerly he would not have countenanced. Previously, in Up from the Mission, he wrote: “why has a social breakdown accompanied this advancement in the formal rights of our people?” And in case you were ready with an answer about exclusion and exploitation, he added: “this social breakdown afflicts with equal vehemence those Aboriginal peoples who have never been dispossessed of their lands and who retain their classical traditions, cultures and languages.” This was the preamble to the insistence that Aborigines had to stop blaming others and assume responsibility for themselves – and get off welfare. Now he argues that Aborigines have never had real liberty, that the collapse into welfare dependency was not an irresponsible choice because it was not a choice of a free people who could choose development over welfare. This overlooks that numerous schemes to run businesses on traditional lands have been tried and mostly failed; that where jobs are available in remote Australia it is often not the local Aborigines who take them; that where Aborigines have been paid royalties for mining on their lands the proceeds have usually not been well spent and everyone remains on welfare; and that Aborigines still control huge swathes of territory and large mineral deposits and can debate among themselves the terms for the development of these areas (another sign, by the way, that Aborigines are not marginal people in this polity). 

Pearson can put very forcibly the case that real choices have been made and by people wanting, as is very human, incompatible things: “I want to maintain my traditional cultures, but I still want to have all the vices of the Europeans”; “I want passive welfare to enable us to maintain our traditional lifestyles.” 

These are Pearson’s formulations, but he urges us to dismiss them in favour of a tortured argument about the amount of liberty and when choices are real choices. Of course choice will always be restricted by opportunity and capacity, but to argue that Aborigines have had no choice but to live on welfare is absurd. Many Aborigines do prefer welfare to what policy-makers want for them and have offered to them: regular work, money-making, kids in school. 

According to Pearson, the diminution of Aboriginal liberty relates to their position in the constitution: both the failure to recognise their claim as indigenous owners and the classification of them as a race. Hence, their rescue will come with constitutional amendment. I admit I find it difficult to give a fuller account of an argument that I find totally unpersuasive. 

The classification of Aborigines as a race in the constitution is very indirect. The constitution allows the Commonwealth to make laws for any race for whom it is deemed necessary to make special laws. Under this provision the Commonwealth gets its ability to pass laws on Aboriginal affairs. If this section is removed, some other provision will have to be made to allow the Commonwealth to legislate. There would not be a hundred Aborigines in the country who know they are classified as a race for this legislative purpose. If Pearson knew of this before, only recently has he become aware of its high significance, about which he writes with the dismay and passion of a convert. Pearson is confident that its removal would be much more than symbolic; it will lead to a psychological transformation in Aborigines, who will no longer be a race and so they will think of themselves and stand before us as a people with a distinct heritage, with their own cultures and languages, which is how they have seen themselves and been seen by others for the last forty years. Part of the case for removing “race” in the constitution is that it is a term that has been comprehensively excluded from all our other talk. 

Pearson begins his essay with a poignant account of Galarrwuy Yunupingu fearing that his Yolngu world will disappear even though his people occupy their traditional lands. After all his pleas to politicians and their courting of him, nothing is any more secure, everything may be swallowed up by the whitefellas. His wish that his culture might continue is very different (as Pearson points out) from what Canberra thinks everyone is agreed on as Aboriginal policy: “closing the gap.” Pearson’s long excursus in this essay on the fate of the Aborigines in Tasmania is designed to remind us of the enormity of what we now face: the final elimination of an ancient culture. 

Some proposals for constitutional recognition include respect for or maintenance of traditional cultures and languages. Yunupingu looks to the constitution to protect “our way of life in all its diversity.” Pearson supports these proposals without offering details. The problems that would ensue from such provisions are immense – what is traditional culture? is all of it to be respected? who is to judge? – but no provision in constitution or law can limit the forces that are threatening the world of the Yolngu. Yunupingu wants whitefellas to conjure up something to stop his young people taking drugs, showing no respect for traditional culture and watching rubbish on screens! He has more chance of doing that than we have. Thinking that all those politicians could help him was a false move. He realises this himself in the essay from which Pearson quotes: he has to take responsibility. 

I am in favour of recognising Aborigines in the constitution. I have suggested a form of words for the preamble in which this could be effectively and safely done:

And whereas the people of the Commonwealth acknowledge that all its lands were owned by the Aboriginal and Torres Strait Islander peoples who retain rights to them as set out by the High Court in its judgements in Mabo and Wik.

Pearson does not accept the significance of Mabo. He writes that there has been no settlement of the original act of aggression. Nothing now proposed in alteration of the constitution will be of more significance than Mabo, which declared that the Aboriginal people were the original owners of the country and were still the owners of so-called Crown land if they could show that their traditional ties to it still existed. Saying that nothing has in essence changed is a necessity for those who think they have at last found the formula that will bring success.

That is the role now cast for constitutional recognition. It has morphed into a new cause that will solve all that hasn’t been solved so far and what in truth may be unsolvable. That will burden the constitution to no one’s benefit except the lawyers. It is antipathetic to the Australian political tradition, which does not look to constitutional provisions to define the people or constrain policy. Aborigines are already part of polity and if they have programs that look like they will bring success, they will be listened to – as Pearson was. That does not await constitutional recognition. If Aboriginal communities are to revitalise themselves, it will not be done by seats in parliament or some national reference group to advise on Aboriginal legislation, other ideas that Pearson floats in this essay. If Galarrwuy Yunupingu asked for the control of social welfare payments and the Aboriginal budget for his territory, I would give it to him. 

In parts of the essay, Noel Pearson shows those qualities that make him a gift not only to Aboriginal people but also to the nation at large. Of the historian Henry Reynolds, whom he does not spare from criticism, he writes: “He has been about finding grace for the nation by breaking the silence on Aboriginal history and all the time being faithful to Australia.” These words could well be said of Pearson himself. But in my view the cause of constitutional recognition has taken him down a cul-de-sac. 

John Hirst was a member of the history department at La Trobe University from 1968 to 2007. His books include Australian History in 7 Questions, Freedom on the Fatal Shore, Sense & Nonsense in Australian History and The Shortest History of Europe.