Dodson, Pat --- "Statehood for Northern Territory" [1989] AboriginalLawB 41; (1989) 1(39) Aboriginal Law Bulletin 16

• Statehood For Northern Territory
• The Current Campaign
• The Threat
• The Territory's Clients
• A Scenario For The Immediate Future Of The Northern Territory

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Statehood for Northern Territory

by Pat Dodson

Aborigines have never said that they want a new state in the Northern Territory. For that matter, they have never even said that they wanted a Northern Territory. Like with most things to do with the Northern Territory Government, they were not asked. The Northern Territory was imposed on Aborigines last century, and its administration has generally been reluctant to look after Aboriginal interests. Frequently it has opposed them. What limited rights that have been recognised, like land rights or the right to refuse mining, have come from the Commonwealth Government. They have been resented by the Territory Government and a good number of its constituents. With statehood, the present Northern Territory Government would abolish such rights.

The terms of the public discussion or debate about statehood have generally been set by the small minority of influential non-Aborigines who are pushing the idea. The information that has been distributed has been biased in favour of statehood and in favour of the small minority. It is time Aboriginal people had a say - about whether or not they want statehood, and about how their interests would have to be looked after in any new state. Because of the anti-Aboriginal approach of the CLP - led Government in the Northern Territory, it is almost certain that creation of a state would disadvantage Aborigines, even more than at the present. It is important, therefore, that a more appropriate form of government be considered. It is also important that the fundamental rights of Aboriginal people to self-determination is considered - a matter confronting indigenous people around the world.

The Northern Territory Government does not have power over several things that are very important to Aboriginal people. It does not control land rights because the Aboriginal Land Rights (NT) Act (1976) is still Commonwealth legislation. It does not have control of Uluru and Kakadu National Parks, and it does not legally own uranium. The Northern Territory Government does not have control of industrial relations, and, it does not provide all services to Aborigines. Support for small communities and the ADC (Aboriginal Development Commission) are still the responsibility of the Commonwealth. The Territory Government wants to get its hands on such things. These moves are not even supported by all conservatives. The Confederation of Industry and Commerce, for example, opposes the Northern Territory Government getting its own industrial relations system, preferring the status quo.[1]

The Northern Territory Government, however, does have many powers in relation to Aboriginal affairs. As we have recently seen, it can legislate on sacred sites. It can regulate entry to Aboriginal land and to seas adjoining Aboriginal land. It can manage conservation of wildlife on Aboriginal land, and it can control Aboriginal access to pastoral land.

In 1988 the Territory made amendments to the Interpretation Act , rendering some Aboriginal land public land for the purpose of the operation of other legislation. Amendments to other Territory legislation in 1988 had a similar effect.- For example, the Aboriginal Land Act, the Summary Offences Act and the Fences Act were altered to make access to Aboriginal land by non-Aborigines easier.

The Northern Territory Government has used its powers to amend the Crown Lands Act to restrict foraging and residence of Aborigines on pastoral leases which occupy their traditional lands. These restrictions were introduced contrary to judicial recommendations (from Justices Woodward and Toohey) that provisions for the protection of Aboriginal access to their traditional country be strengthened.[2] None of these changes involved consultation with Aborigines.

The Commonwealth Government can disallow Territory legislation, but it has generally refrained from doing so. Despite lack of use of this power, the fact that the Commonwealth can intervene over Territory legislation has a tempering effect.

The Current Campaign

The Northern Territory Government wants more powers, and to get them it is now calling for "full self government". The Chief Minister, Marshall Perron, says that his government wants the equivalent authority of the states to be transferred from Canberra by 1st July 1990.[3] Mr. Perron has specifically sought removal of the Commonwealth's right to disallow Territory legislation and more say in the appointment and instruction of the Administrator.

The call for the transfer of the powers of statehood to the Northern Territory Government, before becoming a state proper, and the current drafting of a constitution, are in keeping with what the Chief Minister has called the "softly, softly approach".[4] This backdoor strategy has been found to be necessary because of most people's lack of enthusiasm for a state based on Darwin.

A number of surveys have indicated not only a lack of any broad support for the idea, but deep division over whether or not statehood for the Territory is desirable.[5] As former Senator Kilgariff admits - "for most Territorians statehood is a non issue".[6]

The views of Aboriginal people are critical in the Northern Territory Government's bid for statehood. It is extremely difficult to think of the Northern Territory getting statehood without Aboriginal support. This has been acknowledged by Chief Minister Perron, who admitted that " we won't get statehood without a high degree of Aboriginal support - the Federal Government will not allow statehood without this."[7]

The Northern Territory Government has, therefore, recently made efforts to win over Aboriginal people to the idea of statehood. Earlier this year the Legislative Assembly's `Select Committee on Constitutional Development' conducted a series of promotional consultations in Aboriginal communities. This exercise followed circulation of an illustrated public relations booklet ("Proposals for a new State Constitution for the Northern Territory") which will be best remembered for its repeated illustration of the Aboriginal flag the wrong way up. The consultations seem to have been equally farcical.

The Threat

The Northern Territory Government opposes the idea of inalienable Aboriginal title to land. The former Chief Minister, and Chairman of the Committee on Constitutional Development, Steve Hatton, has stated his belief that inalienable title as it now stands "is not good for the Aboriginal people"[8] By this Hatton appears to mean that Aboriginal people should be able to trade on their land in the same way as ordinary freeholders. Such trading might come about as a result of legal and financial pressures created by reduced funding, as well as various sharp business practices. At worst, mortgages and subsequent sell-offs could result in dispossession and loss of land forever. This, in fact, is what is happening in Alaska with the effect of the Alaska Native Claims Settlement Act of 1971.[9]

Since land claims have been possible under the Aboriginal Land Rights (NT) Act the Northern Territory Government has used every legal and administrative device possible to frustrate land being granted. In an effort to defeat the Kenbi Land Claim on the Cox Peninsula, for example, the Northern Territory Government expanded Darwin's town boundaries to 4350 square kilometers, making it the world's largest city![10]

To frustrate the Chilla Well Land Claim of the Warlpiri people, the Northern Territory Government initiated legal action on the basis of its allegation that an obscure, terminating, bush track which was constructed only to provide access for a water drilling rig, was really a public road. A typical Territory Government excuse for challenging land claims is that it has a duty to test the validity of claims to traditional ownership.[11]

The Territory's Clients

The Northern Territory Government sees pastoralists, rather than Aborigines, as its clients. A senior officer of the Department of Lands and Housing told the Central and Northern Land Councils that the Northern Territory Government did not see resumption of land for community living areas as an option at all. The Northern Territory Government, he explained, "sees leases as private ownership". He said that the Northern Territory Government would act in accordance with what the pastoralists want. He added, "this, after all, is what the Land Councils do with their clients."[12]

Northern Territory Government ministers have a comparatively hands-on role in the administration of the government - they are more powerful than their counterparts in the states.[13] The ministers are very responsive to personal contacts from their supporters. Intervention in the day to day business of their departments is not infrequent. The mining, pastoral and tourist industries have great influence on the Northern Territory Government. Northern Territory Government politicians, with a total electorate less than several Sydney shire councils[14], and 2,500 voter electorates[15], are quite prepared to exploit the extreme levels of prejudice against Aborigines. It is to their advantage to run on anti-Aboriginal issues, such as assaults on land rights and sacred sites. For their part, ALP politicians in the Legislative Assembly are all too aware of the electoral liability in espousing Aboriginal interests. As a result, they are extremely timid in defending Aboriginal interests.

In the final analysis, however, the fact is that a new Northern Territory constitution and state will cut across the question of Aboriginal sovereignty. This is an issue between Aboriginal people and the Commonwealth Government that is yet to be resolved. By what rights then should the Northern Territory Government obtain sovereignty over the Aboriginal people of Northern Territory or their land?

This paper will conclude with a glimpse of what is likely to happen should the intent of the Northern Territory Government and its supporters over statehood prevail.

A Scenario for the Immediate Future of the Northern Territory

• We can expect attainment of state powers to be a major plank in the CLP platform for the next Territory and Federal elections. The issue, and a draft Constitution, might conceivably be put to the electors as a whole at the time of the next Territory election.
• The election of a conservative (Liberal-National Party) Federal government in Canberra could provide the basis for a final lunge towards statehood and all that would involve.
• After the elapse of a little time, and there then being no justification for withholding it, statehood would be awarded to the Northern Territory. Aborigines, as a people, will not be asked. There might well be certain limitations, such as in respect of the number of senators that would represent the Territory.
• With statehood, the Commonwealth Government would no longer have the power to disallow Territory legislation, so that the Territory would be in the same position as the original states.
• The Aboriginal Land Rights (NT) Act would be transferred to the Northern Territory. It could then be changed according to the wishes of the Northern Territory Government.
• Aboriginal land could then be voluntarily alienated through sale by its owners. It could also be resumed by the Territory Government against the wishes of the owners. Ownership of Uluru and Kakadu, for example, would again be taken from Aborigines and given to the Territory Government. The parks could easily be put under private control.
• Full authority to allow mining on Aboriginal land would be transferred to a special bureau in the Northern Territory Government.
• Payment of royalty equivalents, and possibly the Aboriginals Benefit Trust Account itself, would be abolished. Funds for Aborigines would be mainstreamed. The concept of compensation for loss and disturbance would be buried.
• Mainstreaming of finance for Aboriginal communities would be partly achieved through the Northern Territory Local Government Act. Communities would be forced to incorporate as community government councils.
• The existing land councils would be abolished and replaced by smaller ones or by community government councils. the municipal service functions of Town Camp Organisations would be transferred to municipalities under non Aboriginal control, such as Alice Springs and Tennant Creek Town Councils.[16]
• There could be negative effects of statehood on the economy and civil liberties, and not only for Aboriginal people. At present, the Territory gets much more financial assistance from the Commonwealth than any of the states. If this advantage was lost, the Northern Territory Government would have to cut services and increase taxes and fees. The Territory would also be more likely to introduce a harsher criminal code, as it has tried to do in the past.

This possible scenario is a very dismal one, but it is realistic. This fact makes it vital for Aboriginal people to take the initiative and insist that they be heard. We have to find a way to ensure that Aboriginal culture and Aboriginal interests are looked after. We also need to look to ways in which the unique contribution that Aboriginal people have to make to broader society can be attained. Something better can be achieved in the Northern Territory, but only if the rights of Aboriginal people are guaranteed. This is a requirement that can only be attained from a firm position of strength and mutual respect.

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[1] ABC TV News. 15 2.89

[2] Neil Andrews. "A new constitutional cake: the Territory recipe", Legal Service Bulletin, 11(3), June 1986, 98-103:102

[3] Media Release, 12.2.89; and "Statement on the Further Transfer of Powers" in the Legislative Assembly.

[4] ABC Radio, 17.10.89

[5] Roger Gibbins, Federalism in the Northern Territory: Statehood and Aboriginal Political Development, Australian National University North Australia Research Unit, Darwin. 1988: 53-54. Peter Loveday and Peter McNab (eds), Australia's Seventh State, Law Society of the Northern Territory and the North Australia Research Unit, Australian National University, Darwin, 1988: 68, 78

[6] Loveday and McNab, 1988: 67, 234.

[7] ABC Radio, 17.10.88

[8] Steve Hatton, "Statehood: The Territory Perspective" in Loveday and McNab, 1988, 29-37: 34

[9] See, Thomas R Berger, Village Journey: The Report of the Alaska Native Review Commission, New York. Hill and Wang, 1986.

[10] See [1988] AboriginalLB 10; 2(36)pg16.

[11] For example. ABC Radio News, 20 & 21.10.88, statements by the Chief Minister and the Attorney-General.

[12] Meeting of the Working Party on Stock Routes, Darwin, I I July 1988.

[13] Patrick Weller and Will Sanders, The Team at the Top: Ministers in the Northern Territory. Australian National University North Australia Research Unit, Darwin, 1982: 42.

[14] One per cent of Australia.

[15] In electorates of this size, a 2 per cent swing can be caused by only 25 voters changing their minds.

[16] The present Minister for Local Government wants to bring Aboriginal town camps under the control of municipal councils. While this is a strategy for co-opting the power base of the Tangentyere and Julalikari councils. something keenly felt by the government and bureaucracy, it is also a means for bringing town camps in Alice Springs and Tennant Creek more within the ambit of the Northern Territory government and allied organisations