Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Shannan Murphy *
Cultural recognition is the key to Indigenous policy. And the constitution is the obvious starting point for such recognition.
– Mick Dodson[1]
[Developing a constitution] will make the Northern Territory community confront the reality of its people and the matter of making a place for everybody. That is what the process involves.
– Steve Hatton, Chairman of the Sessional Committee on Constitutional Development[2]
The 1985–1998 statehood process in the Northern Territory (‘NT’) failed to win support from Indigenous voters as it did not adequately consider the identity and interests of Indigenous Territorians. Utilising James Tully’s theory of appropriate constitutionalism for diverse societies,[3] and the anthropological concept of the Aboriginal domain, this paper traces how Indigenous interests and identities were neither acknowledged nor addressed in the constitutional development process. The referendum on statehood, held on 3 October 1998, was then overwhelmingly rejected by Indigenous voters, and ultimately defeated.
Constitutions outline how a society decides to govern itself and thus are both a statement of the identity of a polity and the means by which the special needs of various groups can be addressed. Indigenous peoples pose a particular problem for post-colonial societies because of their history of exclusion from that society; the moral and political questions their existence raises about the legitimacy of that society and its violent origins; and the fact that in many places they continue to live within their own domain as cultures that never willingly consented to change in order to join the new society. Indigenous ethno-politics, moreover, challenge the sole authority of the state over rights to land, political voice and identity.
Indigenous ethno-politics also bring state sovereignty into question by undermining its premise – in Australia’s case, the myth of terra nullius[4] – and by demanding recognition that Indigenous peoples share sovereignty with the Crown.[5] Constitutionalism thus is often advocated as a method of working towards reconciliation with Indigenous peoples.[6] There are numerous examples of constitutionalism being used in this way overseas, including Nunavut, ‘Home Rule’ in Greenland, the modern day treaty process in Canada, and the constitutionalisation of the Treaty of Waitangi in New Zealand.[7]
The result of the 1998 NT statehood referendum, however, suggests that the constitutional development process and the final draft constitution did not address ‘the Indigenous question’.[8] The proposed constitution was not appropriate for either a pluralistic society or for achieving much-needed reconciliation in the Territory.
The final result from the referendum was 48.7% in favour and 51.3% against.[9] More tellingly, a breakdown of these figures demonstrates how the referendum was ‘lost in the bush’. Results from the mobile polling booths, introduced in the electoral reforms of 1980 in order to encourage Indigenous people to vote, demonstrate that Indigenous communities voted overwhelmingly against the referendum. At the mobile polling stations 73.3% of people voted against the referendum, compared with 48.1% against in static polling stations. Examination of the results from each mobile polling station separately confirms that an overwhelming ‘No’ vote was returned in 20 of the 21 stations. Alistair Heatley summed these figures up, saying that ‘there is little doubt that Aboriginal opposition was the strongest factor in producing the negative outcome’.[10]
Despite the strength of Indigenous rejection of the statehood referendum, there has been no academic analysis of the process and results from an Indigenous political perspective.[11] This paper addresses this gap in the literature. I argue that the constitutional development process from 1985–1998 was not culturally appropriate for Indigenous peoples, as it failed to recognise Aboriginal and Torres Strait Islander Territorians as a distinct and special group with resultant rights, and because it did not address their concerns. The constitution that was ultimately put to the referendum was in essence a denial of the Aboriginal domain within the Territory. It also failed to meet any of Tully’s three criteria for culturally appropriate constitutionalism.
Examining the 1985–1998 constitutional development process, and seeking to understand what went wrong, is also timely and necessary if the NT is going to try again. The Martin Labor government put statehood back on the agenda in May 2003, and has recently announced the membership of the newly created NT statehood Steering Committee, which has been given a five-year, flexible timeframe. The committee was specifically created to ensure the statehood process will be community based and not imposed upon the people. Importantly, one of its central principles is respect for, and proper recognition of, the Indigenous peoples of the Territory.
In the first section of this paper, I discuss Tully’s theory of constitutionalism. In the second, I examine why Tully’s theory is an appropriate framework for analysing the NT statehood process. In this second section, I will consider the plural nature of NT society and the Aboriginal domain; how Indigenous issues not only frame the differences between the Territory and the states, but were also the most contentious debates in the statehood process; and how Tully’s three conventions of mutual respect, consent and continuity are representative of what Indigenous Territorians wanted from the statehood process. In the final section, I then examines all three stages of the statehood process to discern the extent to which each stage recognised Indigenous peoples and their concerns.
For the constitutional recognition of Indigenous peoples to be a mechanism for reconciliation, and the basis from which a new relationship can be negotiated, the process of developing that constitution and the constitution itself both need to be culturally appropriate. The concept of a constitution – what it is, what it says, what it is silent about – is culturally defined, expressing the values of its society in a form that society recognises. It is the document that creates governance structures for that society, and is an identity statement. In plural states, however, it is necessary to identify how different cultural groups conceptualise a constitution to ensure that the constitution for that state is relevant and acceptable to all peoples. To this end, James Tully has deconstructed the ‘western’ understanding of the constitution and re-conceptualised constitutionalism in a manner appropriate for the diversity of cultural and social groups that live within modern states.[12]
Tully argues that social contract theory, the traditional foundation of Western understandings of the constitution, is inapplicable to plural societies because it is based on a supposed homogenous founding people who all consent to a governance structure. In Boucher and Kelly’s term,[13] social contract theory is premised on ‘atomised individualism’ – free and equal subjects who agree to give up their sovereignty in return for the protection of the Sovereign. Atomised individuals, moreover, are ‘divorced from their ethnicity, gender or culture’.[14] This position has a number of implications. Citizens in effect have no individual identity, but are conceived of as a singular founding people. The nation-state also assumes this singular identity. Rights are thus located in both the individual and the nation-state, but not in groups within states, such as Indigenous nations. Flowing from this individual conception of rights is the superficially appealing idea that each person within a political community should be treated uniformly, instead of equitably – a position that makes different treatment for different groups within a state problematic and counter-intuitive.[15] Within the traditional Western social contract approach to constitutionalism this liberal emphasis on the individual leaves no room for pluralistic societies to reach an accommodation of their differences.
Through processes such as immigration and colonisation, however, many states are becoming increasingly pluralised societies and are facing challenges from a variety of groups within their polity. Tully identifies six types of such cultural challenges that highlight the problematic nature of the relationship between the nation, the state and the citizens. These are:
1. nationalist movements seeking independence or political autonomy to some extent;
2. supranational associations such as the European Union;
3. linguistic and ethnic minorities within states;
4. multicultural citizens;
5. the feminist movement; and
6. Indigenous peoples.
Indigenous peoples are an excellent example of the challenges that cultural groups pose to the state because they challenge the absolute sovereignty and legitimacy of colonial settler states. Tully reconceptualises constitutionalism to accommodate these cultural challenges by allowing cultural groups to speak ‘their own language’ from within their own framework, rather than forcing them to speak within the limitations of Western institutions and discourse.[16] Tully’s conception also recognises that the constitutionalism process works in the other direction by allowing institutions to adapt to the challenges these groups pose.
It is important to note that for Tully, a constitution is a process, not a document or an outcome. He describes its nature as follows:
A constitution should be seen as a form of activity, an intercultural dialogue in which the culturally diverse sovereign citizens of contemporary societies negotiate agreements on their forms of association over time in accordance with the three conventions of mutual recognition, consent and continuity.[17] [My emphasis.]
These three conventions should guide any constitutional work because adherence to them opens up the space in which constitutional negotiations can take place. Adherence to these conventions also makes it possible for a contemporary constitution to adapt as society changes. Despite the resultant flexibility, the rights of various cultural and social groups will always be protected because any and all changes will be based upon these guiding conventions.
The three conventions build upon each other. Mutual recognition involves acknowledging that no one culture should be dominant while acknowledging, equally, that not all cultures should or can be acknowledged in the same way in a constitution and, furthermore, that cultural groups share similarities and differences both within and between themselves. Cultures are thus not homogenous ‘billiard balls’units but are ‘overlapping, interactive and internally negotiated’.[18] The second convention, consent, is best expressed by the Roman principle quod omnes tangit ab omnibus comprobetur or ‘what touches all shall be agreed to by all’. The consent of all parties involved is vital for a constitution to have legitimacy. Finally, the third convention, cultural continuity, ensures that nothing will change unless it is explicitly consented to.[19]
Tully’s theory unlocks the potential of constitutionalism to renegotiate relationships between cultures, and in particular to work towards reconciliation, by reconceptualising it as a process. Constitutionalism is no longer just about lawyers and papers but is instead a continuing re-consideration of how a diverse society functions together and governs itself.[20]
Tully’s theory of constitutionalism provides an appropriate framework for examining the NT statehood process for three reasons. First, the Territory is a pluralistic society – in many ways an Aboriginal space with Anglo-Australian culture huddled along the Stuart Highway. Second, many of the differences between the NT and the Australian states are framed by the need to address the significant Indigenous population in the Territory. Indeed the most contentious issues during the statehood process related to the Indigenous population. Finally, Tully’s conventions are not only prevalent within academic literature but are representative of the stance of Indigenous Territorians during the statehood process.
Indigenous people have been living in what is now the NT for at least 60 000 years.[21] As a result of the harsh climate and dispersed primary economy of mining and pastoralism the NT was not settled according to the urban pattern followed in other parts of Australia. Some 25% of the NT population is Indigenous, constituting a much more substantial proportion of the population than anywhere else in Australia. The Indigenous population of the NT is also permanent, whereas the non-Indigenous population is highly transient and has a conservatively estimated turnover rate of 20% between elections.[22] Moreover, the majority of Indigenous people live in remote areas and small communities,[23] and some 60% still speak Aboriginal languages as their mother tongue. According to the 1994 National Aboriginal and Torres Strait Islander Survey, Indigenous Territorians are more likely than other Indigenous people to identify with a clan, see elders as being important, recognise homelands and attend cultural activities.[24] Through the NT Aboriginal Land Rights Act (1976) (‘ALRA’) they also have significant control over land and, to a lesser extent, development. Almost 50% of the Territory has been granted as inalienable Aboriginal title under the ALRA which creates the interesting political geography of the NT – non-Indigenous Territorians can mainly be found in the major centres along the Stuart Highway, with the interior of the country owned and occupied mainly by Indigenous people.
Much of the NT is thus part of what the anthropologist John von Sturmer termed ‘the Aboriginal domain’:
In parts of remote Australia it is possible to talk of Aboriginal domains, areas in which the dominant social life and culture are Aboriginal, where the major language or languages are Aboriginal, where the dominant religion and world views are Aboriginal, where the system of knowledge is Aboriginal; in short, where the resident Aboriginal population constitutes the public.[25]
The concept of the ‘Aboriginal domain’ has been used by anthropologists to differentiate areas in Australia where the dominant culture’s social relations and worldviews simply do not apply.[26]
Harris describes the two domains – Aboriginal and non-Aboriginal – as inherently incompatible due to their fundamental differences.[27] The effect of this incompatibility is that institutions which do not explicitly protect the Aboriginal domain undermine it by virtue of the values and worldviews on which they are built. Harris points to the idea of ‘hidden curriculum values’ in schooling to illustrate the dominant cultural bias within calls for cultural accommodation. He examines ‘western’ and Aboriginal modes of learning and identifies how, even when the curriculum is ostensibly acultural, the way students are taught – for example, using hypothetical situations or the question and answer technique – teaches values. In other words ‘what rubs off over time onto students during the school experience ... may not be deliberately taught’.[28] While Harris specifically uses this analysis to call for ‘two-way schools’, it is equally applicable to political representation. Unless Aboriginal peoples are able to engage in politics from within their own cultural framework, as Tully suggests, political participation will undermine Aboriginal culture.
The second reason why Tully’s theory is appropriate for examining the statehood process is because Indigenous issues frame the chief political differences between the NT and the other states. It is a Territory and thus, in essence, a creation of the Commonwealth Government. As a result, the NT Legislative Assembly and all of the laws governing life in the Territory could at any time be overturned or altered by the federal government – a power it demonstrated in 1997 with regard to NT euthanasia laws. Though it must be noted this power is more hypothetical than practical. The states, on the other hand, have significant sovereignty recognised by the Australian Constitution.
The practical power the federal government holds over the NT, and not the states, is control of Aboriginal affairs. From this position it also has control over NT uranium mining policy, Kakadu and Uluru-Katatjuta National Parks and the ALRA.[29] The ALRA is unique to the NT and a defining feature of its political landscape. It was passed in 1976 by the Liberal Fraser federal government and allowed Indigenous peoples to claim un-alienated Crown and reserve land.[30] Two land councils, the Northern Land Council and the Central Land Council, were set up to support traditional owners throughout the claims process.[31] Under the ALRA, almost 50% of NT land has been granted to Aboriginal people as inalienable freehold title. The sunset clause for the lodging of new claims expired in 1997. Throughout the 20 year period in which land claims could be made the Country Liberal Party, a pro-development right party, was continuously in Government and opposed every land claim lodged. In just one example, when the Larrakia people lodged the Kenbi land claim for the Cox peninsula outside Darwin, the Country Liberal Party Government unsuccessfully tried to extend the municipal boundaries of the city to 4350 square kilometres, which would have made it the largest city in the world, to render the claim invalid.[32] There is thus a history of considerable animosity between Indigenous Territorians and the NT government.[33] The two large land councils have also become a political force in the NT.
Land rights were one of the most contentious issues of the statehood campaign. The Country Liberal Party Government was adamant that the ALRA should be patriated to the NT for two main reasons: to be fair and equal, as land rights powers are held by the rest of the states of the Commonwealth; and to have control over all of ‘their’ land. Related to the issue of land rights were the issues of access to Aboriginal land for infrastructure, mining or tourism projects, as well as the protection of sacred sites. Indigenous peoples, and especially the Land Councils, opposed the patriation and wanted the ALRA to remain federal legislation because they did not trust the NT government. The concern was that if the ALRA was patriated it would have been possible for the NT government to change it without Aboriginal consent, perhaps negatively impacting on Aboriginal ability to protect sacred sites or control development on their land.
The final reason that Tully’s theory of constitutionalism is an appropriate framework for examining the NT statehood process is because it speaks to and about Indigenous concerns regarding statehood. Indigenous Territorians were consistently involved in constitutional work throughout the period under study, with no less than four constitutional conventions in this time. At these conventions, and through as many other avenues as possible, Indigenous people repeatedly stressed the concerns they had and the issues they wanted addressed. At a 1997 conference discussing a draft NT constitution, Gatjil Djerrkura, then Chairman of the Aboriginal and Torres Strait Islander Commission (‘ATSIC’), echoed Tully’s theory of constitutionalism when he argued that the various groups within the NT needed to communicate with each other from a position of ‘appropriate recognition of each other’s rights and aspirations and mutual respect’ in order to develop a constitution for the twenty-first century.[34]
The often adversarial relationship between the NT government and Aboriginal organisations resulted in palpable mistrust of the statehood campaign, evidenced in various statements on statehood. Aboriginal opposition to statehood, as it was then conceived, was based on this lack of trust and an intense desire to ensure the NT government was not given any further control over Indigenous affairs. In a submission to the Sessional Committee on Constitutional Development (‘SCCD’), the Julalikari Council – an Aboriginal Council responsible for the town camps around Tennant Creek – stated that the NT government could not be trusted because it had weakened sacred sites protection, opposed land rights and land claims, opposed independent Aboriginal services such as Yipirinya School[35] opposed the Land Councils, and attempted on numerous occasions to mainstream Aboriginal services and deny Aboriginal self-management – for example, it opposed ATSIC.[36] In turn, this mistrust created a list of Aboriginal concerns, most fully articulated in the statements from the Kalkaringi[37] and Batchelor conventions which were explicitly organised to discuss and respond to the later stages of the statehood process.[38] The Batchelor Convention endorsed the ‘Kalkaringi Statement’ and produced supplementary resolutions entitle ‘Resolutions of the Northern Territory Aboriginal Nations on Standards for Constitutional Development’.
Read together, the statements from the Kalkaringi and Batchelor conventions represent the Indigenous position on how the statehood process should have been conducted.[39] These documents called for recognition of the Indigenous nations of the NT and of the co-existence of their governance structures. The documents also wanted informed consent from Indigenous Territorians before any changes were made to their rights or to the constitution. The statements invoked Tully’s convention of mutual recognition, calling for recognition and protection of: their right to self-determination; Aboriginal customary law; Aboriginal land rights; and Aboriginal peoples’ right to establish their own educational institutes which provide education in their own languages and cultures. The statements also made reference to the convention of continuity in asking for the ALRA to remain Commonwealth legislation and not be patriated to the NT. Finally, these demands invoked Tully’s convention of consent, calling for changes to the NT constitution that concerned Indigenous people to only be approved when they were accepted not only by a majority of all voters in a referendum, but also by a majority of Indigenous Territorians; and calling for a guarantee for the continuance of Indigenous control over Indigenous land and sacred sites.[40]
Since 1985 successive NT governments have been publicly committed to gaining statehood. The federal government has indicated that it will only consider granting statehood if the proposal and impetus comes from the NT.[41] In 1985 the NT Government adopted a three-stage process consisting of:
1. The establishment of a Standing Committee on Constitutional Development that was charged with inquiring into, reporting on and making recommendations regarding all pertinent statehood issues and promoting greater awareness of constitutional issues within the NT community.[42] The Committee’s most important task was developing a draft constitution. In 1989 the committee was changed to the Sessional Committee on Constitutional Development.
2. The Committee’s draft constitution would be discussed, debated and modified as needed at a constitutional convention.
3. The constitution would then be put to a referendum.
This process was followed in the statehood campaign between 1985 and 1998. The Committee’s draft constitution was presented to the NT Legislative Assembly in November 1996. A constitutional convention was held for eight days between 26 March and 9 April 1998. The referendum was subsequently held on 3 October 1998, asking the question: ‘Now that a constitution for a state of the Northern Territory has been recommended by the Statehood Convention and endorsed by the Northern Territory Parliament: Do you agree that we should become a State?’
The Sessional Committee on Constitutional Development was created on 28 August 1985 and was central to the statehood process until it submitted its draft constitution and final report in November 1996. A bipartisan committee, it comprised three Country Liberal Party Members of the Legislative Assembly (‘MLAs’) and three Labor MLAs. As mentioned above it had a twofold purpose: to facilitate the development of a constitution and to promote the issue of NT constitutional development within the NT and Australian communities. The committee’s activities included research, publishing discussion papers, holding community consultations, taking public submissions, participating in national constitutional fora and developing a draft constitution.
The SCCD realised how central Indigenous issues were to the process of constitutional development. In a discussion paper issued regarding Aboriginal Customary Law it declared:
The Committee concludes that there are in the NT a sizeable number of Aboriginal people to who [sic] Aboriginal history and heritage are proud facts of life and provide a frame of reference for their daily activities. Any successful resolution of future constitutional arrangements must take this into account. The Territory is a multi-cultural community, and Aboriginal societies and cultures contribute a most valuable element of diversity to that community. Such pluralism is not inconsistent with the existence and unity of the Australian nation as a whole or with that of the Self-governing Northern Territory. Emerging conventions and practices suggest that Aboriginal cultures, as the Indigenous cultures of Australia, have a particular status that demands some consideration. This view of the Committee accords with basic principles of human rights.[43]
This statement not only recognises the unique status of Indigenous Territorians and the existence of an Aboriginal domain within the NT, but that a new constitution must include Aboriginal concerns and perspectives. This recognition was reiterated in its final report, which said, ‘the new constitution should provide a legal framework for a form of Aboriginal and non-Aboriginal reconciliation and partnership within the one NT political entity’.[44]
The SCCD sought to address ‘the Indigenous question’ in two main ways. The first was by researching and preparing public discussion papers on Indigenous issues.[45] Although limited to listing possibilities and sketching arguments around various issues, these documents were official recognition of Indigenous issues and they generated a significant amount of useful research. For example, the paper considering the recognition of Aboriginal customary law discussed precedents in Australia, including how, since self-government in 1978, many NT magistrates had invited elders to help them devise suitable sentences. This paper also discussed the position of Indigenous customary law in Canada, the United States of America, New Zealand, Papua New Guinea, Malaysia, Singapore, Indonesia and South Africa.[46] The discussion papers thus had the potential to be a tool for public education.
The second way the SCCD sought to address Indigenous concerns, and the issue of cross-cultural understanding, was through a series of community consultations. Although some public hearings were held in the large centres prior to 1989, the majority of the SCCD community consultations took place in that year. The Committee visited a total of 54 communities, about 41 of which were wholly or primarily Indigenous. The larger centres of Alice Springs, Darwin, Tennant Creek and Katherine, were visited a number of times. Indigenous issues such as land rights, sacred sites, customary law and special rights were raised at 56 of the 64 meetings. The purpose of the meetings was not to receive feedback from the communities regarding the development of the constitution, but rather to encourage them to think about constitutional issues. The SCCD left a simple booklet entitled, ‘Proposals for a new state constitution for the Northern Territory: Have your say!’ with the communities and promised to come back within the year to have a real discussion on the aforementioned issues.
The SCCD’s process of community consultation did not offer Indigenous communities and people the chance to either engage with constitutional issues or to voice their opinions. Ultimately, the Committee’s funding was cut and it never returned to consult with the communities. Although the simple booklet was translated into Vietnamese, Cantonese, Tagalog, Portuguese, and Italian, it was never translated into any Aboriginal language. Similar plans for a cassette tape in Aboriginal languages outlining issues related to the constitution, interspersed with country songs to keep the listeners interested, never eventuated due to a lack of funds and political support. The Committee was willing and able, however, to take submissions and questions in Aboriginal languages, which is to be commended. But for people living in remote communities, who may or may not be literate or have access to a tape recorder or a regular postal service, being involved was not such a simple matter.
Similarly, the SCCD often told communities to phone their toll-free line to request materials or ask questions, but in many communities there were no telephones. While there were translators present at about a quarter of the meetings, it is hard to discern from the transcripts if any real communication or understanding of the Committee’s work took place. In many cases, the communities wanted to talk about ‘real’ political issues affecting them at the time, such as education or a proposed airstrip. Many of the transcripts of the consultations are just five pages of the Committee members talking about the constitutional development process with nothing more than a courteous thank you from the community leaders.[47] Indicative of the SCCD’s apparent lack of understanding of Aboriginal reality, in the simple booklet the Committee distributed, the Aboriginal flag was upside down.
The chief flaw in the community consultations was the lack of actual cross-cultural understanding. As some 60% of Indigenous Territorians do not speak English as their first language, and many do not speak it at all, directing the process solely in English was completely insufficient. Mr Munyal, a local Aboriginal man from Ramingining, expressed this sentiment at the SCCD meeting on 4 May 1989, stating that white people are ‘too fast in their thinking and ideas for us’. Author Richard Trudgen,[48] who has spent years in Arnhem Land and speaks Yolgnu Matha, quotes a community council Chairman who told him:
We Yolgnu sit in meetings all the time, listening to English, but we just don’t understand it. Sometime we can hear most of the words but the whole sentence just doesn’t make sense. We are too ashamed to say we don’t understand what the Balanda [white people] are talking about, so we sit there saying nothing and asking no questions...When we can’t understand what the Balanda are talking about we think maybe they’re talking about nothing, so it doesn’t matter if we don’t understand it anyway. [My emphasis.]
This unilingual process is clearly incompatible with respect to Tully’s convention of mutual recognition.
Moreover, there was no wholehearted attempt to explain the constitutional process within an Indigenous cultural frame of reference. Although the Committee often likened a constitution to Aboriginal law, in that both Aboriginal law and the Australian constitution are largely unchanging and guide their societies, this alone was insufficient. Even when people can speak English, constitutional concepts are quite complex and derive their meaning from within Anglo-Australian culture. In reference to community government schemes, Downing asserts that ‘Aboriginal communities have to deal with foreign and complex concepts, and foreign values, in a foreign language. It seems that no-one has taught the people to understand what constitutions are’.[49] Downing thus argues that ‘both linguistic and cultural’ interpreters are necessary for effective communication.[50] At a SCCD consultation meeting in Yuendumu,[51] another local Aboriginal, Mr Paddy Japalajani Sims, said:
They are happy for us to write in Warlpiri language, even when we write in language we don’t know what to say and don’t really understand what they are saying and they get the better of us. White people have water that’s easy to get.[52] [My emphasis.]
This epigraph underlines how the SCCD process did not engage with the Aboriginal cultural framework, as Tully calls for, and thus disenfranchised Indigenous people from participating. Genuine recognition of Indigenous peoples would have made this approach unthinkable.
While the SCCD draft constitution did attempt to address Indigenous issues, its proposals were, for the most part, insufficient. The final version of the draft constitution was tabled on 22 August 1996, although an exposure draft had been circulated in 1995 and public comments invited. The purpose of the final draft was to give the constitutional convention an informed base from which to work. Each clause, where only a single option was provided, was agreed to unanimously by the six-member, bipartisan committee. Where the committee could not reach unanimity, options were laid out for the constitutional convention to consider and decide upon. Indigenous issues were addressed in the preamble; in Chapter 2, regarding the sources of law in the NT and Aboriginal Customary Law; in Chapter 7, entitled ‘Aboriginal Rights’; and in Chapter 8, regarding language, social, cultural and religious rights.[53]
The proposed preamble was the first in Australian history to recognise Indigenous people,[54] beginning with:
Before the proclamation of the Colony of New South Wales in 1788 and since time immemorial all or most of the geographical areas of Australia that now constitutes the Northern Territory of Australia [the NT] was occupied by various groups of Aboriginal people under an orderly and mutually recognised system of governance and laws by which they lived and defined their relationship between each other, with the land and with their natural and spiritual environment. [My emphasis.]
The footnote attached to this clause clearly states that its purpose was to give ‘some constitutional recognition’ to Aboriginal people. The historical significance of this recognition should not be underestimated. But note the past tense of the verb ‘was’, as emphasised above. Aboriginal people appear in this preamble mainly as historical figures. There is neither an elucidation of their role in the NT today, nor of the continuing existence of what clause one describes – the Aboriginal domain. Moreover, while a preamble can act as a guide to judges interpreting a constitution, it does not confer rights or constitutional protection. The issues and rights it mentions must still be addressed within the body of the constitution.
The other most significant achievement for Indigenous peoples was s 2.1.1 of the draft constitution, which offered two options for the recognition of Aboriginal customary law as a source of law in the NT. The first option merely recognised customary law without explicating the extent of its legal effect. The second option, on the other hand, clearly stated that it was enforceable between Aboriginal people who felt themselves to be bound by it, thus clarifying that it would be an enforceable system of law. The recognition of Aboriginal customary law as a source of law in the NT was, again, an Australian first and an important success.
The future of the ALRA, and the related issue of the protection of sacred sites, was one of the most important and contentious issues in the statehood campaign. The SCCD had to find a tough balance between the Country Liberal Party government, who wanted the ALRA patriated, and Indigenous Territorians, who were opposed to patriation. The Committee ultimately adopted the concept of ‘organic laws’ from the Papua New Guinean constitution as a potential compromise. Sensitive legislation, such as the ALRA and the Sacred Sites Act, would be patriated to NT and changed into ‘special’ or organic laws.
Such laws could only have been altered by a super-majority of parliament (either two-thirds or three-quarters of all MLAs), thus affording a higher level of protection to Indigenous people while maintaining the flexibility needed to adapt the legislation to changing circumstances.[55] Indigenous delegates and representatives were dissatisfied with this solution, however, as it did not in truth guarantee protection. In the past the Country Liberal Party had won more than three-quarters of the NT parliamentary seats. Furthermore, s 2.4(7) of the constitution would have allowed organic laws to be altered by referendum. Thus 50% plus one of the NT general public could have changed or deleted laws that relate to Indigenous concerns – even if every Indigenous Territorian voted against the change. Therefore, while the concept of organic laws is interesting and potentially applicable elsewhere, it was insufficient in this context insofar as it inevitably denied Tully’s convention of consent.
Moreover, s 7.1 of the draft constitution allowed for changes to be made to the ALRA. Section 7.1(1) would have allowed the ALRA to have been changed during patriation, provided the Federal Government approved the alterations. Section 7.1(3) was simply revolutionary – proposing that the title to Aboriginal land be ‘fee simple’ which could be sold, assigned, mortgaged, charged, surrendered, extinguished or otherwise disposed of if a court decided that:
1. all Aboriginal people having an estate or interest in the land had been fully informed of the proposed transaction;
2. a majority of said people had voluntarily consented to it; and
3. the proposed transaction was in the best interests of said people.
This proposal undermined the fundamental strength of the ALRA, which lies in the grant of inalienable freehold title to Aboriginal owners. The importance of this form of title was recognised by both the Reeves Review[56] and the subsequent Senate inquiry into the Reeves Review.[57] The SCCD considered making these changes without Aboriginal consent which only served to further undermine the potential legitimacy of the draft constitution and deny recognition to Indigenous peoples.
Finally, Chapter 8 of the draft constitution discussed ‘Rights in respect of language, social, cultural and religious matters’. This chapter granted that, provided it was not against the public interest or ‘repugnant to the general principles of humanity’, Territorians would have the right to speak their own language with others who share that language,[58] to observe and practice their own culture and traditions with others who share that background,[59] and to express their own religious beliefs.[60] Chapter 8 failed, however, to guarantee people the right to an interpreter when facing court, or the right to communicate with the government in a language other than English. It thus evaded the issue of the Aboriginal domain by neglecting to establish structures and mechanisms to deal with it appropriately.
Ultimately, while the SCCD draft constitution recognised and attempted to come to terms with indigenous issues, it failed to go far enough in its provisions to address these. The protection mechanisms for the ALRA and sacred sites were weak and did not win over an Aboriginal constituency whose major emotion in relation to the NT government was mistrust. There was nothing to ensure Aboriginal consent was a necessary pre-requisite to any changes that would affect their interests, thus undermining the principle emphasised by Tully, that ‘what touches all shall be agreed to by all’. The proposed changes to the ALRA itself were also unacceptable. The preamble to the constitution was historically significant but offered no real protection. The recommendation for recognition of Aboriginal customary law was an important breakthrough, although it is difficult to separate Aboriginal customary law from issues of land rights and sacred sites, making such a neat demarcation of issues impossible. At a conference in 1997 discussing the draft constitution, Mick Dodson asked whether it was sufficient that:
we be approaching modern constitution making with a nineteenth century colonial identity? ... Because if the NT constitutes itself on a document which ignores the legitimate rights and claims of the Indigenous peoples of these lands [as the SCCD draft does], that is exactly what we will be doing.[61]
Stage two of the statehood process involved a constitutional convention to debate the SCCD draft constitution, choose options where the committee had been unable or unwilling to do so, and finalise the constitution that would then be put to a referendum. It thus represented a second chance to ensure indigenous identities and concerns were fully addressed.
The Convention was widely criticised as undemocratic and not a ‘true people’s convention’. The SCCD recommended that Territorians should directly elect at least 75% of the delegates, with the remaining 25% nominated by the government. Instead, then Chief Minister Shane Stone announced that the government would appoint approximately half of the Convention delegates and ‘special groups’ would elect the other half. The Trade and Labor Council were offered a seat, ethnic communities were offered four seats, and so on. In the end 26 delegates were elected and 27 were appointed from the total 53, although one elected delegate, Mr Ted Dunstan, was unable to attend the convention due to illness. The Aboriginal and Torres Strait Islander Commission (‘ATSIC’) was given four positions. The two smaller land councils, the Tiwi Land Council and the Anindilyakawa Land Council, were offered one seat between them, as were the Northern Land Council and the Central Land Council. The two larger Land Councils boycotted the Convention, stating that they did not recognise the convention’s ‘validity or legitimacy’ because no delegates were directly elected.[62]
The make-up of the Convention was also widely criticised by the Labor Opposition, the NT Bar Association and the media.[63] Opposition Leader Maggie Hickey estimated that only 11% of Territorians would be eligible to vote for a delegate to the Convention.[64] The truth of this was demonstrated in a letter by John Karama to the NT News. Although his workmates received ballot papers to elect Convention delegates, he did not. When he rang the electoral commission to ask why, he was told it was because he was ‘an ordinary citizen’, that is, not a member of a special group who had representatives at the Convention.[65] There was a widespread perception that the end result of the Convention was ‘cut and dried’.[66]
The Convention was also criticised for the short amount of time delegates were given both to prepare for the Convention and finalise the draft constitution. When statehood was originally proposed by then Chief Minister Ian Tuxworth, he undertook a research trip to Alaska and Hawaii to learn more about their statehood processes. Both American states held people’s conventions which sat for 75 and 60 days, respectively, to develop draft constitutions.[67] The SCCD recognised both the need for the Statehood process to be owned by Territorians, and the multiplicity of contentious and involved issues it faced (not least indigenous issues), and thus did not prescribe how long the convention should sit. It also recommended that the Convention be able to extend its term if necessary.[68] Shane Stone gave the Convention eight days over three weeks to achieve all of its objectives,[69] saying:
Some commentators claim that the task before you is very complicated and may require more time and deliberation. There are those who would have you believe that the task before you is, in fact, more complicated than it really is. It is not. This is an exercise in common sense and pragmatism.[70]
This limited timeframe severely constrained the ability of the Convention to either listen to Indigenous delegates or to fully debate their many contentious issues.
Delegates themselves indicated in their speeches that they felt there was too much work and too little time, and that the hectic schedule did not give them a chance to consult with the Territorians they were supposed to be representing. Delegates received their large briefing packs just days before the convention began.[71] Mr Ah Toy, representing pastoral interests, said:
I would have liked more time to attempt to absorb the huge mass of information provided at a late stage. It has also been my personal practice to consult with industry members and my colleagues to enable me to come to such a forum as this with a meaningful and considered view, but that has not been possible up to this point because of the shortness of time available to us.[72]
This was especially devastating for Indigenous representatives, given that Aboriginal decision-making is traditionally based on consensus. Eileen Cummings summed this up when she said:
In my way of working, I have always been able to consult with my own people. That takes time and I do not think we have been given enough time ... I think we should look at a better way to involve all Indigenous people because this forum is not involving the whole spectrum of Aboriginal people.[73]
Here again Aboriginal people were not able to participate fully in the statehood process from within their own cultural framework, as Tully’s guiding convention of mutual recognition requires, because they were not given the time or resources to undertake traditional consultation processes.
Despite all its procedural flaws, the Convention provided an opportunity for Indigenous concerns to be heard and addressed. While the SCCD’s draft constitution was far from ideal, it attempted compromise, recognised indigenous needs and aspirations, and realised that if the constitution was to be a success it would have to deal with the indigenous community on an equal level. However, mutual recognition and willingness to negotiate were far from prevalent at the Convention.
The first guest speaker, Mr Frank Alcorta, began the Convention by declaring Aboriginality a thing of the past, effectively denying recognition of Aboriginal peoples. Some delegates were openly interested in Indigenous concerns and recognised the constitution needed to address the issue of reconciliation in the NT, and the majority did not make broad insulting statements like Mr Alcorta. But most delegates seemed to be unaware of how their interests are shaped by their background, and therefore emerge from a distinctly different context to those advocated by Indigenous participants. Ms Kay Rose’s divisive opening statement was echoed in many of the speeches,
I do not believe that there are Chinese Territorians, Aboriginal Territorians, Queensland Territorians. There is just one kind - a Territorian. I would hate to see any form of writing in the constitution that attempted to differentiate between people.[74]
There was also the ever-popular sentiment that ‘the present system is discrimination and segregation based on race, and the name of that is Apartheid’.[75] Of the 47 opening speeches by delegates, 19 were neutral on Indigenous issues, that is, did not mention them; 14 were what could be classified as ‘pro-Aboriginal’, that is, expressed a willingness or desire to listen to the Indigenous delegates and address their concerns (bearing in mind that seven of these delegates were Indigenous themselves); and 14 could be classified as ‘anti-Aboriginal’, that is, they expressed sentiments that Indigenous people did not deserve special recognition nor did their concerns have a place either in the constitution or, sometimes, in the NT at all.
Such sentiments demonstrate how an ‘Anglo’ understanding of the NT and the constitution was accepted as the norm and Aboriginal positions on these issues were perceived as radical and different. Moreover, this language reveals an inability to comprehend the special position of Aboriginal people in the NT, or the well-established legal difference between people who choose to migrate to a new country and those who are subsumed within a new state. These statements amounted to a denial of Aboriginal people and meant that a settlement agreeable to both groups was highly unlikely.
A lack of recognition of Indigenous issues was also evident in the Country Liberal Party Government’s approach. After the SCCD had spent six years developing the draft constitution, the Country Liberal Party Minister for Health, Mr Denis Burke, brought his own draft constitution to the convention. This minimalist model made no mention of the issues Indigenous peoples consistently flagged they were interested in, particularly land rights and sacred sites, Aboriginal customary law and more structures to ensure accountable government. Denis Burke repeatedly stressed his belief that Aboriginal land rights, customary law and sacred sites did not belong in the constitution.[76] In the letter to convention delegates which accompanied his draft constitution, he plainly stated that there should be ‘no reference to partisan causes or particular groups’ in the document.[77] But as Gatjil Djerrkura pointed out, ‘[w]hen you talk about a simple constitution, really you are talking about a document that keeps us invisible’.[78] The ‘great Australian silence’ that Stanner referred to in his 1968 Boyer lecture was a feature of the NT Government’s position at this time. This meant that not only were Indigenous concerns not even considered, but an important role of the government – that of leadership and public education – was neglected. There was much discussion about educating Aboriginal people on matters relating to a constitution,[79] but no attempt to go the other way and educate the broader public about Aboriginal issues.
Indigenous concerns were addressed only briefly within the Convention itself. There were two sessions where Indigenous issues were considered. In what could be described as the coup of the Convention, Aboriginal customary law was recognised as a source of law in the NT. Many delegates stressed that Aboriginal law and land were central to identity and culture and thus could not be separated. No delegate rose to speak against the provision and on the voting day the resolution was passed with only two dissenting votes.[80] In contrast, the other areas of Indigenous concern were either dismissed or not mentioned. For example, while Indigenous people did not accept the organic law provisions as protection for the ALRA or sacred sites, they were at least an attempt by the SCCD to find a workable compromise. The Convention delegates, however, removed the organic law provisions and did not implement a new protection strategy. Indeed, the ALRA and sacred sites were not mentioned in the final draft constitution. Other issues, including the right of self-determination, provisions for a Bill of Rights or stipulations to ensure a more representative and accountable parliament, were similarly dismissed without addressing Aboriginal concerns.
The debate regarding a Bill of Rights and provisions for a more accountable government was framed in the language of ‘trust’. Delegates argued that ‘limiting the government is sending a message of we don’t trust you’ and ‘we have accountability through the ballot box’.[81] This approach marginalised the experiences of Indigenous peoples and the many abuses of personal rights and liberties that are not only within living memory but are a daily experience. Moreover, for people who knew what the state was capable of doing, statements such as ‘silence in a constitution is simply a statement that the existing rights we enjoy continue’,[82] must have been tremendously difficult to hear. Within this discourse the NT is imagined as a liberal democracy and no mention is made of its violent and racist history, which, in effect, ceases to exist. Indigenous identities and experiences were thus not recognised, in a clear denial of Tully’s convention of mutual recognition.
Significantly, on day seven of the Convention, as the plenary sessions were being concluded and preparations to start voting on resolutions were being finalised, Gatjil Djerrkura declared that he and the rest of the ATSIC delegates were walking out.[83] Announcing the decision, he spoke of how the Indigenous delegates had come to the Convention in good faith and had survived stereotypes and negative attitudes to try to reach a just accommodation for all Territorians. It was an unsurprising end to Indigenous participation in a convention that had either ignored or dismissed their rights and concerns.
In summary, stage two of the statehood process, the constitutional Convention, was flawed in both design and execution. Indigenous peoples were not recognised as a special group with distinct rights, failing in Tully’s first convention and inhibiting the possibility of good-faith negotiations. There were no guarantees that current rights, especially land rights, would be protected in the future. There was neither adequate time nor education to allow delegates to understand the process they were meant to be engaged in, again undermining the ability of the constitutional development process to further extend the groups’ recognition of each other. While the SCCD consultation process had its flaws and would not have been sufficient on its own, it at least recognised Indigenous peoples and was willing to compromise. The constitutional Convention, on the other hand, redirected the statehood process in line with the Government’s concerns, and ruled out the possibility of meaningful Indigenous participation.
Between April and October the NT Government and Legislative Assembly prepared the way for stage three of the statehood process, the referendum. The government disregarded the advice of both the SCCD and the constitutional Convention and rolled all three issues – whether the NT should become a state, what the new state’s name should be, and whether the draft constitution should be accepted – into one referendum question. There was no attempt to talk to Indigenous leaders about the constitution or other matters after the walkout. Since statehood had bipartisan support, all the material sent out by the Chief Electoral Officer was for the ‘Yes’ case. The ‘Yes’ campaign basically rested on the premise that the current state of things ‘wasn’t fair’, and that the NT should have the same rights and powers as the other states. Ultimately, however, the referendum was defeated by Indigenous voters who felt that it ‘wasn’t fair’ that their voices and concerns had been ignored and dismissed, especially in the latter part of the statehood campaign.
Throughout the statehood process, Indigenous Territorians had been clear on what they wanted – recognition of their unique status as the Indigenous peoples of the NT and their consent to any changes to their rights or legislation affecting them, especially the ALRA. In essence they were calling for the NT Government to respect Tully’s three conventions of mutual respect, consent and continuity. The process, however, did not follow these guiding conventions. Nor did it allow Indigenous peoples to participate from within their own cultural framework. Galarrwuy Yunupingu, Chairman of the Northern Land Council, summed this up when he said, ‘[i]n many ways, the 1998 plebiscite was an example of what not to do’.[84]
While the Sessional Committee attempted to involve Indigenous communities in their initial consultation program, cross-cultural communication issues meant that Aboriginal Territorians were, for the most part, uninformed about the process and were therefore excluded from it. Moreover, while there was recognition of Aboriginal interests, Aboriginal people were not able to participate in the statehood process from within their own cultural framework. As Tully emphasises, this is a vital element of the conventions of recognition and consent. Additionally, the fact that the Committee’s funding was cut and that they were unable to return to the communities undermined both the purpose of the consultations and the legitimacy of the process. The SCCD draft constitution recognised Indigenous issues, but failed to offer protection of the ALRA and sacred sites, or to develop a framework to secure other Indigenous rights. The conventions of continuity and consent were not respected as there was no guarantee that Aboriginal peoples’ consent would be a necessary pre-requisite to changes to the constitution.
Neither the design of the constitutional Convention nor the way in which it was conducted accorded with Tully’s theory of appropriate constitutionalism. There was widespread ignorance and opposition to Indigenous issues and the Indigenous delegates were not given the time or resources to engage the rest of the delegates in a sustained debate. Although Aboriginal customary law was still recognised, Indigenous peoples were invisible in the rest of the document. There was thus no recognition of Indigenous identities and concerns. Nor was there a sustained effort to follow the Roman maxim of ‘whatever touches all shall be agreed to by all’. After eight days of participation in a convention where the plural nature of the Territory, especially the reality of the Aboriginal domain, was denied and Indigenous concerns on the whole were overlooked, Gatjil Djerrkura and the other three ATSIC delegates walked out. This signalled the end of Indigenous participation in a statehood process which had failed to recognise Aboriginal Territorians and which was not based on Tully’s constitutional framework.
The NT is known for its geographical space. Drive the Stuart Highway from Alice Springs to Darwin and for hours you will pass nothing but open country. But the NT also possesses political space. It is not yet a state, so it is not saddled with an outdated and difficult-to-change constitution. It has the ability to forge new relations and new ways of relating between Indigenous and non-Indigenous Territorians. A consistent message from Aboriginal Territorians, through all stages of the statehood process, was their mistrust of the Country Liberal Party government. In the end, the process itself gave them no reason to begin to trust. The current Martin Labour government in the NT is also committed to statehood. If this objective is to be attained, the process needs to engage with the first peoples of the land in a way that respects Tully’s three conventions of constitutionalism.
* Shannan Murphy is a post-graduate political science student with a particular interest in Indigenous politics in Australia and Canada. The research for this article was completed through the Political Science Department at the University of Queensland and involved travel to the Territory. The author can be contacted via email at xshiawase@hotmail.com.
[1] Mick Dodson, ‘Indigenous Rights and Parliamentary Legitimacy: The Case for Constitutional Recognition and Protection’ in Rick Gray (ed) Constitutional Foundations: Reconciling a Diversity of Interests in a new Northern Territory Constitution for the 21st Century (1997), 99.
[2] Sessional Committee on Constitutional Development (‘SCCD’), Community Consultation Transcripts 16 March 1989.
[3] James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (1995).
[4] This was the legal basis on which Australia was colonised. The British Crown did not recognise the Aboriginal peoples of Australia as owning the land. Thus it claimed the land for Britain without negotiating with Aboriginal Australians.
[5] Augie Fleras, ‘Politicising Indigeneity: Ethno-politics in White Settler Domains’ in P Havemann (ed) Indigenous Peoples’ Rights in Australia, Canada and New Zealand (1999).
[6] See, eg, Peter Jull, The Politics of Northern Frontiers: in Australia, Canada and other First World Countries (1991); Peter Jull, Nations with Whom we Are Connected (2001); C Fletcher, ‘Living Together but not Neighbours: Cultural Imperialism in Australia’ in P Havemann (ed) Indigenous’ Peoples’ Rights in Australia, Canada and New Zealand (1999); Tully, above n 3; Aaron Senkpiel, ‘North to North: The New Discourse’ (2000) 21 The Northern Review 11–18; Mark McKenna, This Country: A Reconciled Republic? (2004).
[7] On New Zealand, see above n 5, 205.
[8] This term is not intended to problematise Indigenous peoples, but rather to emphasise the open nature of Indigenous and non-Indigenous affairs in Australia and the fact that, as yet, there is no real framework for reconciliation in this country.
[9] Northern Territory Electoral Commission (‘NTEC’), Statehood Referendum Results (1998).
[10] Alistair Heatley, ‘The Rise and Fall of Statehood in the Northern Territory’ in Xavier Pons (ed) How Australia Reinvents Itself (2002), 96.
[11] Murray and Rock’s cursory examination attributes the failure to the lack of legitimacy of both the incumbent government and an electoral system that continuously returned the Country Liberal Party for 27 years. It does not discuss Indigenous issues. See Murray and Rock, ‘The Northern Territory: In What State Now’ (1998) Journal of Contemporary Analysis 43–47. While Heatley and McNab identify the explanation offered by Indigenous groups and the Territory Labor party – that it was a failure of the Statehood process, rather than a rejection of Statehood itself – they are not convinced by this explanation, and dismiss it without a proper examination. Neither do they discuss the process before 1998: Alistair Heatley and Peter McNab, ‘The Northern Territory Statehood Referendum 1998’ (1999) 9 Public Law Review 155–160; Heatley, above n 10.
[12] Tully, above n 3.
[13] David Boucher and Paul Kelly, ‘The Social Contract and its Critics: An Overview’, in David Boucher and Paul Kelly (eds) The Social Contract From Hobbes to Rawls (1994), 26.
[14] Roger Gibbins and Muxlow, ‘Federalism of the Northern Frontier: Accommodation of Diversity in the Australian and Canadian Norths’ in Rick Gray (ed) Constitutional Foundations: Reconciling a Diversity of Interests in a new Northern Territory Constitution for the 21st Century (1997), 247.
[15] For a discussion on the tension between ‘special’ Aboriginal rights and the common position within rights discourse that everyone should be equal, see Michael Ignatieff, The Rights Revolution (2000).
[16] Tully, above n 3, 24.
[17] Ibid 30.
[18] Ibid 7–14, quote 10.
[19] Ibid 124–125.
[20] This approach is echoed in many other works. See, eg, Peter Jull, The Politics of Northern Frontiers: in Australia, Canada and Other First World Countries (1991); Peter Russell, ‘Colonisation of Indigenous Peoples: The Movement Toward New Relationships’ in MacMillan and McKenzie (eds) Parties Long Estranged: Canada and Australia in the Twentieth Century (2003), 62; Will Kymlicka, Finding Our Way: Rethinking Ethnocultural Relations in Canada (1998); Nicholson, ‘Reconciling Diversity: A Personal View’ in Rick Gray, Lea and Roberts (eds) Constitutional Change in the 1990s: Proceedings of the 1992 Constitutional Conference held in Darwin (1994); Harhoff, ‘Regions and Peoples: Some Trends in International Constitutional Practice’ in Rick Gray, Lea and Roberts (eds) Constitutional Change in the 1990s: Proceedings of the 1992 Constitutional Convention held in Darwin (1994); Michael Ignatieff, The Rights Revolution (2000).
[21] McConnochie, ‘Desert Departures: Isolation, Innovation and Introversion in Ice-Age Australia’ in Xavier Pons (ed) How Australia Reinvents Itself (2002).
[22] Peter Jull, ‘Reconciliation Constitutions: Canadian and Australian Northern Territories’ (2003) 21 Indigenous Issues 5–6.
[23] In 1996, 60% of Indigenous Territorians lived in rural areas and 40% in urban. By comparison, 85% of the non-Indigenous population were living in urban areas. See, John Reeves, Building on Land Rights for the Next Generation: The Review of the Aboriginal Land Rights (Northern Territory) Act 1976 (1998), 86.
[24] Ibid 79.
[25] John von Sturmer, ‘The Social Impact of Mining’ in Colin Tatz (ed) Aborigines and Uranium: Consolidated Report on the Social Impact of Uranium Mining on the Aborigines of the Northern Territory (1984), 219.
[26] See, eg, ibid; Trigger, ‘Blackfellas and Whitefellas: The Concepts of Domain and Social Closure in the Analysis of Race-Relations’ (1986) 16 Mankind; Tim Rowse, Remote Possibilities: The Aboriginal Domain and the Administrative Imagination (1992); Stephen Harris, Two-Way Aboriginal Schooling: Education and Cultural Survival (1990).
[27] Harris, above n 26.
[28] Ibid 8.
[29] The federal government also has substantial control over industrial relations.
[30] To do so they had to be the traditional owners of the land and be able to prove continuous ties with it.
[31] Two breakaway land councils were formed after the ALRA was passed – the Tiwi Land Council, covering the Tiwi Islands, formed in 1978 and the Anindilyakawa Land Council, covering Groote Eyelandt, formed in 1990.
[32] Dodson, ‘Statehood for the Northern Territory’ (1989) 2 Aboriginal Law Bulletin 15.
[33] It should be noted that any reference to the NT Government within this paper refers to the various Country Liberal Party Governments continuously in power in the period under study. Many authors have noted how the Country Liberal Party have played the race card, or ‘populist antipathy to Aboriginal people and their interests’ to win elections. See, Garth Nettheim, ‘Aboriginal Constitutional Conventions in the Northern Territory’ (1999) 10 Public Law Review 8; Murray and Rock, ‘The Northern Territory: In What State Now?’ (1998) Nov–Dec Journal of Contemporary Analysis; Christopher Sheil, ‘Statehood or Falsehood? The State of the Northern Territory’ in Christopher Sheil (ed) Turning Point: The State of Australia and New Zealand (1997); Goldflam, ‘Cowboys v Suits’ (1997) 22 Alternative Law Journal.
[34] Gatjil Djerrkura, ‘Respect and Recognition First: Reconciling a Diversity of Interests in a new Northern Territory Constitution for the 21st Century’ in Rick Gray (ed) Constitutional Foundations: Reconciling Diversity of Interests in a new Northern Territory Constitution for the 21st Century (1997), 45.
[35] The school was set up to provide culturally appropriate education to Aboriginal children from around Alice Springs in 1978 but the NT Government refused to support it, stating that it ‘did not fund schools it could not totally control’ (ABC, 2003).
[36] Julalikari Council, ‘Statement on Proposed Northern Territory Statehood from the Julalikari Council’ in Public Submissions on Statehood (1989).
[37] The Combined Aboriginal Nations of Central Australia held the Kalkaringi convention from 17–20 August 1998 with some 700 delegates attending.
[38] The Batchelor convention was a Territory-wide gathering held in December 1998 with 120 delegates from all the major communities, ATSIC Regional Councils and the Land Councils.
[39] ATSIC News, Include Us In, ICOM Tells NT June (1999), 13.
[40] Northern Territory Indigenous Constitutional Convention (NTICC), Standards for Constitutional Development (1999).
[41] Alistair Heatley, Almost Australians: The Politics of Northern Territory Self-Government (1990), 132.
[42] SCCD, Terms of Reference (1989).
[43] SCCD, Recognition of Aboriginal Customary Law (Discussion Paper No 4), (1992), 8 (emphasis added).
[44] Constitutional Convention, Statehood Convention Day Three (1998), 30.
[45] These were Recognition of Aboriginal Customary Law (1992) and Aboriginal Rights and Issues: Options for Entrenchment (1993). The discussion paper on constitutional recognition of local government also raised numerous issues pertinent to Aboriginal community governments and the possibility for local self-determination. See, SCCD, Constitutional Recognition of Local Government (Discussion Paper No 9) (1995). Other papers were also released on a range of issues.
[46] SCCD, above n 45.
[47] See for example SCCD, above n 2.
[48] Richard Trudgen, Why Warriors Lay Down and Die (2000), 68.
[49] Jim Downing, Country of My Spirit (1988), 49.
[50] Ibid 148–9.
[51] SCCD, above n 2.
[52] An Aboriginal expression meaning that life is easy for white people.
[53] SCCD, Final Draft Constitution for the Northern Territory (1996).
[54] This was in 1995–96 before the republic debate and proposed preamble.
[55] The ALRA has been amended some 40 times since its inception in 1976.
[56] Reeves, above n 23.
[57] Senate Committee on Aboriginal Affairs, Parliament of the Northern Territory, Unlocking the Future: The Report of the Inquiry into the Reeves Review of the Aboriginal Land Rights (Northern Territory) Act 1976 (1999).
[58] Section 8.1(1)(a).
[59] Section 8.1(1)(b).
[60] Section 8.1(1)(c).
[61] Dodson, above n 1, 98.
[62] Walkden, ‘Aboriginal Boycott for NT Convention’, Northern Territory News (Darwin), 2 March 1998, 6.
[63] ‘The Mark of Stone’, Northern Territory News (Darwin), 3 March 1998, 10.
[64] ‘Forum Flawed: Hickey’, Northern Territory News (Darwin), 9 March 1998, 7.
[65] John Karama, ‘A Smelly Convention’, Northern Territory News (Darwin), 9 March 1998, 10.
[66] Walkden, above n 52.
[67] Rick Gray, ‘The Transition to Statehood: A Question of Legitimacy and the Public Process’ in Rick Gray (ed) Constitutional Foundations: Reconciling a Diversity of Interests in a new Northern Territory Constitution for the 21st Century (1997), 171.
[68] SCCD, Interim Report Number One: A Northern Territory Constitutional Convention (1995), 14.
[69] Sitting days were Thursday 26 March, Friday 27 March, Tuesday 31 March, Wednesday 1 April, Thursday 2 April, Tuesday 7 April, Wednesday 8 April and Thursday 9 April, 1998.
[70] Constitutional Convention, Statehood Convention Day 1 (1998), 3.
[71] Heatley and McNab, above n 11, 156.
[72] Constitutional Convention, Statehood Convention Day 2 (1998), 23.
[73] Ibid 25.
[74] Ibid 33.
[75] See Ed Ferrier’s speech, ibid 21.
[76] Zaroni, ‘No Place for Land Rights in the Constitution’ Northern Territory News March 24 (1998), 6.
[77] Burke, Northern Territory of Australia – Draft Constitution (1998), 10.
[78] Constitutional Convention, above n 40, 20.
[79] Gray, above n 67.
[80] Constitutional Convention, The Statehood Convention: Report Volume One (1998), 115.
[81] See, for example, Osbourne in Constitutional Convention, Statehood Convention Day Five (1998), 5–9.
[82] Denis Burke in Constitutional Convention, Statehood Convention Day Seven (1998), 11.
[83] Constitutional Convention, above n 80, 36.
[84] Yunupingu, ‘Northern Territory Statehood and Constitutional Protections: Issues and Implications for Future Aboriginal Governance’ Indigenous Governance Conference, Jabiru, 4–7 November (2003).
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