The Council for Aboriginal Reconciliation delivered its final report in December of 2000. It came at the end of a year made remarkable by its popular commitment to reconciliation between Indigenous peoples and the wider Australian community. Looking back, those events seem a long time ago. Yet it has been less than three years since Cathy Freeman lit the Olympic torch and hundreds of thousands of people took part in the Bridge Walks for Reconciliation in capital cities and towns across Australia.

Despite a strong and continuing grass roots commitment, reconciliation has gone off the boil as a federal political issue. In part this is due to the Howard Government pursuing ‘practical reconciliation’ to the exclusion of any ‘rights agenda’ for Indigenous peoples. It has done so despite the Council for Aboriginal Reconciliation emphasising that reconciliation means addressing both practical measures to tackle disadvantage as well as legal steps to recognise Indigenous rights.

Practical reconciliation and the rights agenda are not mutually exclusive. Steps to improve service delivery and government performance are necessary and important, but there is no reason why legal and constitutional reform should not proceed at the same time. Indigenous people have been excluded from our Constitution for more than a century. They should not have to wait another generation or more for the socio-economic statistics to improve before they find a place in our fundamental national document.

In fact, the two agendas are inextricably linked. More than 200 years of history, a roomful of reports and inquiries and the everyday comments of Indigenous people all send this message. As the influential Harvard Project on American Indian Economic Development has stated, shifting power from government to Indigenous communities is a necessary (though not sufficient) condition of sustained development. The Harvard Project has ‘yet to find a single case in the United States of sustained economic activity on indigenous lands in which some governmental body other than the indigenous Nation itself is making the decisions’ about matters such as governmental structure and natural resource use.

Reconciliation must start with acknowledgement. Our Constitution is silent on the history and rights of Indigenous peoples. This was not the case in 1901. The races power in section 51 provided that the Commonwealth Parliament could legislate with respect to ‘the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws’, while section 127 stated that when taking the census ‘aboriginal natives shall not be counted’. In 1901 we cast Indigenous peoples as outsiders to the nation. In 1967 these discriminatory references were deleted from the Constitution by referendum. However, the change left the Constitution, including its preamble, devoid of any reference to Indigenous peoples. The system moved from explicit discrimination to silence, rather than to inclusion and acknowledgement.

Acknowledgement involves change to our Constitution. However, we must learn the lessons of the failed 1999 referendum on the republic. The drafting process of a new preamble should involve consultation and negotiation with Aboriginal people and the community more broadly. There should be no rush to a final draft. Parliament could ask the people what they think a new preamble should say. Entries in a national competition could be encouraged from across the nation, including from school groups and Indigenous communities. This might capture the public imagination and unite government and people in an act of national reconciliation.

Work should also begin on drafting changes to the Constitution to delete the races power that might still be used to pass racially discriminatory laws. The Constitution should instead contain a power to pass laws for the advancement of Aboriginal peoples as well as a general freedom from racial discrimination. Parliament should also investigate the options for enacting a Bill of Rights. It should look to models such as the United Kingdom’s new Bill of Rights. This will be an important part of a reconciliation process that recognises and affirms the rights of all Australians.

The Government should also establish a process to negotiate with Indigenous peoples on the possibilities for treaties or other models for acknowledging Indigenous rights and interests. This could lay a platform for the recognition of specific Indigenous rights and for the building of economic and other partnerships through a national instrument that brings a formal close to the reconciliation process.

Much of the symbolic and rights aspects of the reconciliation process is being undertaken at the state, local and community level. However, the commitment of federal governments is vital. Without it, the reconciliation process will not encompass the national acknowledgment of Indigenous peoples and we as a nation will be diminished.