Treaty, Sovereignty and Self-Determination

The Road To Treaty - Glenn Loughrey - 2017

There is much discussion in the media about the proposal to recognise first nation peoples in the Australian Constitution. This was a project commenced in 2011 by a government headed by Prime Minister John Howard.  The proposal was to add a suitable clause in the preamble and at other points within the constitution with the stated outcome of removing race from the constitution. Once suitable statements are agreed upon, the suggestions will be put to a referendum and if successful will see the appropriate clauses being changed.

So is recognition in the constitution an appropriate option? Only if it is meaningful and provides not just a nod and a wink but a true devolution of the power of self determination to those recognised. In the suggestions we have at present this seems unlikely.  What is proposed is basically adding recognition to a colonial document with no mechanisms for the proper empowerment of those who have never been included in the colonial project.,

In response to this project there is a groundswell of, primarily, First Nations People calling not for recognition in the constitution but for a treaty or treaties recognising sovereignty and enabling full self-determination. For many FNP recognition continues the colonial project of assimilation and fails to address the question of invasions, land wars and the subsequent trauma and racism that continue today. For these people, these questions must be addressed on equal terms by people who possess sovereignty in their particular areas of governance; the Federal government for the well being of Australia as a while and the various clans and tribes for the governance of their specific country and peoples.

It is correct, to a point, to say State governments cannot by reason of their existence enact and enforce a treaty with anyone, only agreements or contracts. The only seat of power capable of enacting a treaty is the Federal government and only then after it is agreed to by the Queens representative. Once again, as we have seen in the recent American experience, this can and will change depending upon the focus of the government in power.

Yet as Michael Anderson states: "State Governments can negotiate treaties with their First Nations, but can only negotiate on matters that are within their powers to do under their respective State constitutions. On matters that are shared between them, like water, and natural resources the Commonwealth would have to enjoin with the Treaty negotiations to agree on these matters which overlap." He goes on: "As a Peoples, First nations Peoples who negotiate agreements of any kind can under international law have that agreement/Treaty registered with the UN under International law. Moreover, any Treaty that may be negotiated will have to be guided by all the Human Rights and the terms of the Decolonalisation Committee process under the UN.”

In terms of concerns regarding the enforceability of treaty (ies), retired judge of the Family Court, Alastair Nicholson suggests "it is true that the only way that any treaty can be made binding upon a future Parliament is that it is supported by some Constitutional guarantee and even then there are provisions to amend a Constitution, albeit with difficulty in the Australian context.”

He goes on to suggest several possible ways in which a constitutional guarantee could be achieved. 

"One could be that the negotiation of a treaty, enforced by legislation, could be a precursor to an acceptance of the need for constitutional change. This could be strengthened by the inclusion of a fixed time provided in the legislation for the holding of a referendum to introduce such constitutional change.

Another would be if the Constitution was to be amended to authorise the Federal Government to enter into such a treaty, which would be binding on all parties and the States and Territories and could not be changed by legislation without the agreement of all parties and/or by a referendum in accordance with the Constitution. The proposal is not new. It appears to have been first made in the early 1980s, and in 1983 the Senate Standing Committee on Constitutional and Legal Affairs recommended the insertion of such a provision in the Constitution.

It is based upon a model that is already in s105A of the Constitution in relation to State Government debt. This model could constitutionally bind Federal and State and Territory Parliaments to act consistently in accordance with the terms of the treaty."

So what is it that we need to do? It has been suggested cultural respect is the place to meet, a place where people from both camps can applaud the others achievements, in other words, pat each other on the back, grab a stubby and a sausage and watch the footy together? If this is the way forward then I suggest we have trivialised the situation into absurdity.

The answer is indeed hard work but it is the hard work of sovereign respect, the respect due to equals in a process honouring of the history and story of both and their respected places in the fabric of our society. The idea of any form of permanent agreement is impossible while ever one side holds all the aces in the pack and continues to treat the others as losers.

It will involve the hard work of acknowledgement -the acknowledgement of country and the ancestors and the fact that one party stole it and has no intention of returning it any time soon. It is the hard work of sitting in deep silence with one another and discovering what we share and how we share it with equity and justice. The hard work of recognising our own complicity, black and white, in the ongoing injustice indigenous people experience and finding pathways forward. 

It is the hard work of a long time as there is no easy or quick fix to the hurt and tragedy, the mistakes and missteps and the communal failure to face the truth about our shared past. It will take a level of honesty and openness hitherto unseen in this struggle but it must occur if we are to find a lasting solution, be it recognition, treaty or a third way no one has thought of yet.

As one who comes from an area where tribal people where all but exterminated by mid 1800's the remainder moved out in 1900, I understand this issue is emotive, painful and embedded in the indigenous psyche and can not be resolved according to a western timetable or legal framework.

It can only be resolved by time, deep listening and a willingness to stay with the process for as long as it needs. Then and only then can a treaty be possible.

The way of the heart - one with the heavens and the earth

Paper given at the Carmelite Symposium, May 2017

·      Acknowledgement of Country.

I would like to acknowledge the traditional owners of the land on which we meet, the Werrundjuri people of the Kulin nation, and the elders past, present and future.

I would also like to acknowledge that this land was stolen and those who stole it have no intention of giving it back anytime soon.

TALK

When I was asked to prepare a paper for this conference, I made great plans to develop a deep theological paper that would have something significant to say about the future of the church. I had plans to invite my friends Thomas Merton Czesław Milosz to join me with me to provide a deep and meaningful insight to where the future for the church lies in this seemingly anti-church environment.

Then I met Jemma and my focus changed. Jemma is a rescue English Springer Spaniel with PTSD. She is classically beautiful, gorgeously gentle and overly obedient until the madness sets in, then she is carnage on four legs.  After one particular episode when she was on her own in the house for 3 hours and we returned to canine destruction of the maximum sort, we visited the vet, got the diagnosis and some anti-anxiety pills. Now we have moments of normality in its various forms and life goes as normal as possible with a nine -month old pup.

Prior to the medication she was living at a heightened degree of perception. She saw, heard and imagined the very worst at all times. Whatever had been her early life experience dominated her worldview and she was unable to respond sensibly and rationally to any kind of stimulus and input that came her way. After the medication, her irrationality has been tempered and she is beginning to see the world differently, not as a place of many threats, something to be feared and the humans around as those who hurt her but as a place of safety, enjoyment and love.  The world itself hasn’t changed. Her mindset has and that has changed the world.

Now Jemma shares this experience with me. A childhood of family violence, bullying because of my race, being shot at and held hostage for several hours in the mid ‘70’s drug culture that was Wollongong, the loss of children due to doctors errors, workplace bullying as well as the intergenerational trauma that visits many indigenous people has left me with PTSD. This is especially the case for me because of my connections to Jimmy and Joey Governor the protagonists in The Chant of Jimmy Blacksmith and the subsequent denial of true identity in order to simply survive in a whites only society of the 40’s,50’s and 60’s in Australia. This is an example of the generational trauma affecting many indigenous Australians as they battle to find a place for themselves in this country and which has lodged in me.

What has this got to do with our topic – 'The way of the heart - one with the heavens and the earth'?

The church in the 21^st century is reeling from the attack of new atheists, the hangover of evolutionary science, the destruction of its previous clearly defined cosmology and the many scandals that have left its reputation in tatters. To say it has PTSD may sound trivial but it is not. With the many stressors compounded in its recent experience it seems to me it would be better to say it is suffering from Compound PTSD and that is something both Jemma and I know something about.

It is a diagnosis we both share and, like Jemma, I need medication to deal with the anxiety events such as standing up in front of an eminent group of people such as yourselves or a visit to Chadstone or the dentist brings up.  The church shares a super vigilant, highly tuned sense of being in a world which is sceptical at least of meta-narratives and hostile due to the misdemeanours committed in it’s name. The ills that have assailed it in the past and, particularly in the recent past, leave it anxious and self-destructive. We tend to over react to the criticisms of others, to the failings of our own people and the seemingly glaring embarrassments in tradition, liturgy and scripture.

Where we are now is not unlike the world Thomas Merton was commenting on from his viewpoint in the monastery.  In Peace in the Post-Christian Era "He writes, ‘We …live in an irreligious post-Christian world in which the Christian message has been repeated over and over until it has come to seem empty of all intelligible content to those whose ears close to the word of God even before it is uttered. In their minds Christian is no longer identified with newness and change, but only with the static preservation of outworn structures."

Merton recognised and stated clearly that we were and are living in a post-Christian era, if in fact we ever had lived in a Christian era. He spent much time commenting on the failure of the church to catch up with society and to stand with it and at the same time separate from it. He wrote passionately about challenging the politics of the time and those who advocated violence and destruction of the ordinary people. He wrote against the hierarchy of the church and those who said they were believers and who supported the destructive policies of nuclear war, the denial of race equality and more.

His discussions with Milosz in terms of those who are living in exile are of value. Read these letters. Both men felt the pressure of exile, both had very different experiences. But both recognised the importance of exile as an impetus to change and revolution. Both argued that only those who find themselves exiled from the centre of controlling power have the right to speak into the future, to act as prophets. And it is in exile we, the church find ourselves today and it is indeed a place of prophetic power.

Indigenous Australians know this place. We have lived there for 200+ years. And the church has been responsible for some of this, as it has used it connection to the dominant powers in society to maintain a certain white European hegemony. We will be there for many more but now we find ourselves sharing this place with the very people who helped to put and keep us there – the church. Thomas Berry comments that this is the way of those whose life are committed to power and control. Sooner or later those who took the land will have the land taken from them by those more powerful than them, and this will go on and on and on.

Part of the issue for the church, and part of the solution, is found in how we read the Jesus story and in particular how we read the Easter story. It is important to consider what Easter story we engage with and what is consistent with a progressive and modern reading of the Gospel stories and the context of the world we now inhabit This is important for one of the solutions to our future involves a move away from a popular reading of the cross as Jesus being the sacrifice to atone for original sin and whose death was planned by God to occur. Accompanying this is the need to have all people converted to this world view regardless of how inappropriate such a demand may be. Such a reading (penal substitution) often sits underneath our presentation and interpretation the cross and the subsequent resurrection despite our many protestations to the contrary. Our liturgies and our interpretations of scripture reinforce this worldview. Our approaches to the failings of each other often involve a crucifixion, generally not of Jesus.

Is there an alternative reading? I suggest there is and we will return to it in just a moment.

Now many modern or post-modern progressive Christians would say that this no longer the case. Scholars such as Greg Jenks have clearly shown that scripture has many different readings and a literal interpretation is not one of them. The Christian myth touches on meaning making and speaks into the psyche or the mystical imagination of human beings, not the intellect alone. As Elizabeth Johnson comments, “The word acts.” And how we interpret and speak the word influences how we see ourselves as and how we see the others we share this world with. As Jemma shows, the word can create a monster on any given day.

This reminds us that the church is not just about the institutional body nor is it just concerned with human beings. The church is about all creation – every created thing in its own place and with its own sense of being. It is the millennia of life in progress before human beings began to walk upon the earth and it is the millions of species living and going extinct around us now and in the future.  Our worldview has to be broader and deeper and higher than the average human being. This world is not designed only for us and we were not designed to be the primary reason for its existence. As Haught, Johnson, Berry and others suggest all that has gone before us, all the varieties of creatures who began to exist at the beginning of creation, have culminated in who we are today and we are to look forward to what is yet to come for we are part of its interconnected birthing, however mysterious the outcome maybe.

From my point of view a reading of the Jesus story as simply a solution to original sin leaves out the long history of creatures (flora and fauna for example) and restricts the actions of Jesus to human beings who are only recent additions to God’s creation. It also fails to address the evidence of science as to the violence and brutal survival of the fittest that sits underneath the concept of evolution and an ever-expanding universe. It also fails to understand that there was no paradise to lose only a paradise to gain somewhere in the future and that Jesus, as the ultimate example of creation’s consciousness leads us forward, not backward.

The question is: if God’s creation is unfinished is the cross a response to a paradise lost or a paradise yet to come into fulfilment? If the latter, as I believe it to be, is Jesus death on the cross a sacrifice for sins or the complete and fulfilling response to a forward moving feast of possibility we are to embrace and to live in in conjunction with the Holy Spirit? In other words Jesus wasn’t sent to die to put right something that was and has been lost through original sin, but to model the possibilities to be found in the future glory of a creation in continual becoming. What we perceive as original sin is the by-product of creations surge for wholeness and its fulfilment in Christ. Merton and Milosz had an interesting exchange on this very point. Milosz suggested that Merton was able to speak philosophically about the violence in nature such as when a hawk takes down small prey bird but that he speaks less philosophically and without any excuse about human violence. Merton struggles to answer this to Milosz’ satisfaction but appeals to the consciousness of human beings as requiring a more appropriate solution to issues than reverting to unnecessary violence.

God has not finished and neither have we. The work of Christ’s redemptive consciousness calls us forward into a wonder we have no possibility of seeing or understanding from where we stand. It challenges us to reinvent or reimagine language, liturgy, posture and presence and to engage as if this is just the beginning. We are to stand where the characters in the Resurrection myth stood, on the cusp of great possibility in the midst of terrible chaos. All that they knew and trusted in had collapsed. Jesus was dead. They were scattered. Their story had all but been demolished. Yet, Jesus came and pointed, not back but forward, and called Mary with the caution not to hang on to what she had known but to go tell others of the hope she now had oh so briefly glimpsed.

Like Mary, the church stands on the cusp of an ever expanding-universe God is continuing to create in the midst of the rubble of our collective failings and is called to go and tell of the hope we have seen. Karl Rahner suggested that unless we become mystics or contemplatives as Christians, we would cease to be both Christian and present in the world. Unless we step out of the dubious comfort of past traditions, rituals and language and engage in the deep unknown then we are doomed to report the mistakes of the past. The sins of the fathers (pardon the pun) will be visited on the sons.

In Matthew we read “Suddenly Jesus met them and said, “Greetings!” And they came to him, took hold of his feet, and worshiped him. ¹Then Jesus said to them, “Do not be afraid; go and tell my brothers to go to Galilee; there they will see me.”

What strikes me about this little dialogue is the direction Jesus gives to the disciples to return to where it all began - in Galilee. It does seem a little odd that the resurrected Jesus would want to go back to the beginning and not to move forward into new places and new territories. A worldly leader would have used this amazing return as the opportunity for an assault on power and control. No politician worth their salt would take a step backward when he or she held the element of surprise.

They are to go to Galilee and begin again without a leader to grab the limelight and give them the upper hand. The campaign begins again, this time it is not about an incarnate Christ but a Christ incarnate in the disciples. The emphasis shifts from the Son of God to those empowered by the Cosmic Christ, the spirit of the Son of God. The disciples are to be themselves by being empowered by the spirit of God and to live out Christ in their own lives.

This is a powerful message. This is no longer about the physical presence of God changing lives and challenging authority, this will be about the ordinary men and women from Galilee standing up and taking responsibility. They return to Galilee for the transition of authority and responsibility, for Jesus to hand over the reins of the kingdom to ordinary men wand women now empowered by the resurrection Spirit.

We all have to return to the beginning at some point in our lives, be it our faith lives or ordinary lives, to go back to where we first commenced our journey and take the time to recalibrate our compass to ensure we are in touch with the Source of all being. Galilee was the place where they first encountered the Source of Life and it is where Jesus takes them as they begin the second half of their journey.

And this is exactly where the church is – reclaiming the future through a return to its beginnings in the form of a human shaped God walking boldly and courageously into a problematic future. Like the disciples who have to go back to the place where they first made that connection, the church is being challenged to leave aside the accretions of the centuries, undo the violence of law and guilt, to let go have of well worn doctrines and decrees and pulled down the fences of exclusion. It is time for the church to return to the uncertainty of an incarnated life and to reclaim the future as a humble, fallible and vulnerable presence, not unlike that of the Christ of Galilee.

A future reclaiming church will:

• Will be smaller numerically as the uncertainty of the unknown will leave people who are seeking certainty behind.
•  Will take seriously the task of making amends for its past failings and fully embrace the process of embracing all it has destroyed, and excluded as away to begin again.
•  Will be looking to see a Creator at work in all of history, not just that of human beings.
•  Will be engaged in the evolutionary project of the urge for wholeness in and for all of life and, therefore, will see it committed to all people and creatures, not just those within its sacred walls.
•  Will not be chained by traditions stifling its capacity to move intellectually, technologically or spiritually. For example, it will be challenged to include such as Artificial Intelligence within its moral and spiritual brief as it becomes technology becomes more communicative and conscious.
•  Will let go of tribalism and embrace the full gamut of spiritual form and philosophy, looking not for what excludes but what includes.
•  A forward-looking church will not be about itself but about a universe driven by the dynamism of a creator who is the master of unfinished business.  

Returning to Jemma and we find we have a decision to make. Do we continue to defend our place in the world; the place we feel is under threat and in some cases already gone? Or do we recalibrate our worldview and return from Galilee to take a vital role in the surge for wholeness driven by the Spirit of God within the ever-becoming world? It’s up to us. Today.