What can we learn from Latin America about an Indigenous Voice?

This week, Australians will have their say in a historic referendum on an Aboriginal and Torres Strait Islander Voice to Parliament. But Australia isn’t the only nation to seek constitutional change to recognise its Indigenous peoples.

There are an estimated 45 million Indigenous people in Latin America, representing more than 50 different ethnic and linguistic groups and making up 8.3 per cent of the continent’s total population.

Over the last 35 years, Ecuador, Brazil and Chile have all attempted constitutional change to include different kinds of recognition, and their experiences can offer lessons for campaigners in Australia today.

In Ecuador, 25 per cent of the population identify as Indigenous, and successful constitutional reform in 2008 resulted in a fundamental shift in the political paradigm. Approved in a 1998 referendum with 63.93 per cent of the vote, the reforms transformed a centralised unitary state into one that expressly recognises and protects Indigenous communities, peoples and nations. The country has seen a reduction in income inequality, as well as increased access to education and social security services.

The experience of Brazil is particularly relevant to Australia, given commonalities in terms of its geographic size, the negative effects of European colonialism on their Indigenous peoples and, more recently, the impact of large-scale agricultural and mining activities on the land and livelihoods of those peoples.

In 1988, following a comprehensive two-year drafting process, an elected Constituent Assembly adopted Brazil’s seventh constitution since declaring independence in 1822. The chapter on Indigenous peoples recognises their social organisation, customs, languages and traditions. It also confirms their original rights to the lands they traditionally occupy, the right to be consulted on the use of water and exploitation of mineral wealth on Indigenous lands and the right to sue to defend their rights and interests in the courts.

However, implementation, particularly in the context of demarcation of traditional lands, has been painfully slow. Indeed, under the administration of former President Jair Bolsonaro, it virtually came to a halt.

In Chile, change has been less successful – at least so far – 13 per cent of the population identify as Indigenous but, as in Australia, they played no formal role in the negotiation of the country’s first constitution. Tensions and intermittent violence, particularly among the Mapuche people, has festered for decades in relation to demands for greater autonomy, improved social services and restitution of ancestral land.

In 2022, the incoming government of Gabriel Boric endorsed constitutional reform as a path to solving a raft of social grievances that had come to a head in a wave of violent protests in October 2019.

A constitutional convention, where left-leaning members held a majority, conveyed a draft to the president on 4 July 2022. The draft expressly acknowledged Indigenous rights, including the right to self-government, the right to be consulted prior to the adoption of measures that may affect them, reserved seats for Indigenous people in representative bodies, rights to lands, territories and resources, and recognition of Indigenous legal systems.

The draft constitution was put to a referendum on 4 September 2022, but only 38 per cent of voters supported it. Its failure was not exclusively because of the language on Indigenous rights – although in hindsight those articles certainly caused concerns among voters, as they were perceived as too ambitious, too detailed and insufficiently explained. Surveys undertaken since the referendum have found a proportion of the population were uneasy with the proposed level of Indigenous autonomy.

A new constitutional review process is currently underway. A Constitutional Council with a more limited mandate is considering a text. However, the Council is dominated by the conservative Partido Republicano and its allies, which have made clear their intention to narrow the language on social issues, including Indigenous rights.

Moreover, the appetite of the public to support Indigenous rights has waned. Even in the absence of final text, current polling suggests the second draft will also struggle to be endorsed in the referendum scheduled for 17 December 2023.

So, what lessons can be learned about the Voice from Latin America?

Ecuador and (to a certain extent) Brazil, show that it is possible to achieve constitutional guarantees for Indigenous people. However, the implementation of any reforms depends on political will and the availability of adequate resources.

The case of Chile suggests that proposals that appear overly ambitious and that go beyond commitments of principle can risk alienating voters, but also that it is essential to adequately explain to voters what they are being asked to approve.