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Pritchard, Sarah --- "Recent Constitutional Developments in the Northern Territory: the Kalkaringi Convention" [1998] IndigLawB 72; (1998) 4(15) Indigenous Law Bulletin 12

Recent Constitutional Developments in the Northern Territory:

The Kalkaringi Convention

‘It is an opportunity to participate in the making of history. The creation of a new State has no precedent in the history of the Australian Federation.’

Chief Minister Shane Stone
Northern Territory Parliament, Darwin

4 December 1997

On 3 October Northern Territorians will vote in a ‘Statehood Referendum’ on the question:

Now that a Constitution for the 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?

Issues relating to Statehood for the Northern Territory have been on the political agenda since 1985. In that year, the NT Legislative Assembly’s Sessional Committee on Constitutional Development was established to consider the question of a Constitution for the Northern Territory. A discussion paper was released in 1987, and first public hearings were held in 1988. Drafting began in 1990, with a discussion paper on a Bill of Rights circulated in 1993. In 1995 a proposed Constitution was released for public comment, and a draft Constitution was finalised by the Sessional Committee on Constitutional Development in 1996. From 27 March to 9 April of this year, a Northern Territory Statehood Convention was held in Darwin. The Convention used the Sessional Committee’s draft as a basis for discussion, and adopted a series of resolutions and a Revised Draft Constitution.

Aboriginal organisations in the Territory have been highly critical of the processes surrounding the Constitutional Convention. They maintain that the event was inadequately publicised and that all delegates were hand-picked by the NT Government. They refer to inadequate levels of indigenous representation: Of fifty-three delegates, only nine (or 17%) were Aboriginal, even though Aboriginal people constitute one quarter of the Territory’s population. Aboriginal organisations have also trenchantly criticised the substantive outcomes of the Convention. They note with concern the Revised Draft Constitution’s weak preambular acknowledgment of the prior occupation of Aboriginal people, its provision anticipating codification of Aboriginal customary law, and its elimination of some of the more interesting provisions contained in the Sessional Committee’s draft. These included provisions conferring upon the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALRA) the status of an organic law with particular amendment procedures, a constitutional regime for the protection of land rights and sacred sites, and an act to entrench Aboriginal self-determination. The Convention also rejected the following proposals: that the ALRA remain within the federal jurisdiction; the inclusion of a bill of rights; the codification of the powers of Premier and Cabinet in order to temper executive power; mechanisms to ensure free and fair elections.

Aboriginal delegates from those organisations which did not boycott the Convention walked out before the final vote on resolutions. This was a response to the Convention’s rejection of proposals concerning the protection of Aboriginal rights, as well as frustration at the exclusion of Aboriginal voices and perspectives from the debate. As a result, the resolutions adopted by the Convention cannot be said to represent the views of indigenous people in the Territory. On 13 August, the Legislative Assembly adopted the Convention’s Revised Draft Constitution. The Prime Minister subsequently announced that the NT is to become a State by 1 January 2001. According to Chief Minister Shane Stone, this is the first time that there has been a clear commitment from the Australian Government concerning Statehood for the Territory.

From 17-20 August, the Constitutional Convention of the Combined Aboriginal Nations of Central Australia was held at Kalkaringi to discuss concerns and aspirations in relation to issues of Statehood, Constitutional development and governance in the Northern Territory. About 700 delegates unanimously rejected the establishment of a new State on the terms set out in the Draft Constitution adopted by the Legislative Assembly. They expressed concern about the implications of Statehood for the rights of Aboriginal people, especially the loss of Federal control of the ALRA. Many delegates criticised the Government’s failure to consult with Aboriginal representatives in relation to Statehood, as well as the inadequate acknowledgment of Aboriginal law and Aboriginal rights in the Draft Constitution. There were calls for a Constitution based upon equality, co-existence and mutual respect, providing for the human rights of Territorians generally and the good governance of the Territory.

The final day of the Convention saw the adoption and presentation to Senators Bolkus and Harradine of the Kalkaringi Statement. This document calls for constitutional recognition of: Aboriginal rights to self-determination and self-government, Aboriginal law and Aboriginal structures of law and governance, Aboriginal common law and statutory rights in relation to land, Aboriginal control in relation to Aboriginal sacred sites and significant areas and human rights, including a specific prohibition of discrimination. Delegates also resolved that any Constitution should provide procedures to ensure effective levels of Aboriginal representation in Parliament, as well as mechanisms to ensure accountability in government. The Convention concluded with the election of a Constitutional Assembly to work towards implementation of the Kalkaringi Statement.

As the Chief Minister said on 4 December 1997, the creation of a new State has no precedent in the history of the Australian Federation. It is for this reason that there must be sufficient time for full study and discussion of possibilities and options. In many countries, indigenous peoples are (re)establishing new constitutional and legal relationships within the limits of existing nation-States.[1] These developments show that there are many ways to accommodate different cultures and resolve long-standing grievances. Whilst there is no simple or uniform solution, there is a wealth of comparative experience to draw upon. This experience suggests that processes are as important as substance, and that these processes - which often involve restructuring colonial relationships and reallocating power - can be long and painful, and require good-will, patience and diplomacy. The move to Statehood should provide an opportunity to renew relations between indigenous and non-indigenous people in the Territory, and create a basis for future relations based upon principles of partnership and respect. Without the inclusion of Aboriginal people, it is difficult to imagine how there can be any legitimate or authentic Statehood for the Northern Territory.

Dr Sarah Pritchard is senior lecturer in law at the University of New South Wales. She assisted in the drafting of the Kalkaringi statement.

[1] See generally P Jull, Reconciliation and Renewal in Australia and the World, A Background Paper prepared for the Indigenous Law Centre, University of New South Wales, Sydney, 11 August 1998.

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