It is generally considered that a major reason why Shane Stone’s statehood referendum failed in 1998 was because of opposition from Aboriginal organisations (especially land councils) and their supporters. That opposition in turn was to a significant extent due to a perception that Aboriginal interests were better protected by remaining under ultimate Commonwealth control.
Given that approximately fifty percent of the NT’s land mass is now Aboriginal land (much of it under Commonwealth Aboriginal Land Rights (Northern Territory) Act (“ALRNTA”) inalienable title), there is no doubt that statehood without patriation to NT control of the ALRNTA would be very unsatisfactory. Moreover, strong land council opposition to any such move remains evident, as shown by immediate adverse land council public comment on the announcement of COAG support for a renewed statehood process in 2015. Finding a way to cut through this Catch 22 is essential to the success of any statehood proposal, and indeed to successful self-government reform irrespective of whether the Territory ever becomes a state.
Entrenching Aboriginal land rights and other rights in a constitutional bill of rights would of course be effective, but is very unlikely to meet with either political favour or success in any referendum. There is quite widespread opposition to constitutional bills of rights on both sides of politics, and inclusion of any such proposal in a referendum would almost certainly doom it to failure. A treaty would also help.
My idea instead builds on a proposal by Tony McAvoy SC, Australia’s first Indigenous senior counsel, for a First Nations Representative Assembly at a national level in conjunction with negotiating a treaty (or series of treaties). At Northern Territory level such an Assembly would be complementary to the negotiation and implementation of a treaty between the Northern Territory government and the Territory’s First Nations, a development to which Labor Chief Minister Michael Gunner has indicated he is receptive. Canada already has an Assembly of First Nations which plays an increasingly prominent part in its governance. Controversial Indigenous leader Noel Pearson has also argued for such a body in the federal context, although he apparently has in mind a purely advisory Aboriginal representative assembly. Pearson argues that such a body would have significant political if not binding legal authority:
A consultative body of Indigenous Australians would offer non-binding advice. At the same time it could wield political authority. The people, through a referendum, would have established the consultative body. It would derive some authority from that fact alone. It could use its position as an institution of the constitution to demand an explanation whenever government seeks to ignore one of its reports.
However, Aboriginal Territorians constitute a significant proportion of the Territory’s population. Because of their legitimate demand that their land rights be securely protected, the sort of First Nations Assembly we need here is not a mere advisory council of elders, but an Assembly forming part of the Territory’s Parliament that would have real determinative and decision-making powers in relation to Territory laws and policies vitally affecting Aboriginal people.
In the Territory context such a body could be established straight away by ordinary legislation. It would be purely advisory in most respects, as Pearson has in mind. However, the First Nations Representative Assembly would have veto rights over any Territory law directly affecting Aboriginal land ownership and management. In other words it would function in that respect as a true Upper House of Parliament. Aboriginal land would be more securely protected under such a system than it is now, because any Territory bill directly affecting rights of ownership or management of Aboriginal land could only become law if passed by the First Nations Representative Assembly sitting as the upper house of the Territory Parliament. The Assembly would fulfil an even more powerful role when or if the Territory achieves statehood and control of the ALRNTA is “patriated” to the new state. Regulations (see Regulation 4(2)(b)) under the Northern Territory (Self-Government) Act 1978 (Cth) already contain restrictions on the ability of the Territory Parliament or Executive to interfere with ALRNTA land rights and management of Aboriginal land. However those restrictions were arguably ignored by the Legislative Assembly when the Martin/Henderson Labor government enacted its “super shires” scheme in 2007-8. A First Nations Representative Assembly sitting as the upper house of the Territory Parliament would ensure that this could not happen in future.
Many Aboriginal Territorians have historically seen the Federal Parliament as the best guarantor of secure land rights. That is understandable given the history since self-government in 1978 of total opposition to all land claims by previous CLP governments at Territory level. However, the Howard federal government more recently stripped away traditional owners’ rights to control their own land as part of the Intervention or “Emergency Response” legislation in 2007, and the Rudd/Gillard Labor government adopted that punitive, paternalistic approach when it achieved government. As a result, it is apparent at least to some Aboriginal Territorians that no political party and no level of government can be trusted to protect Indigenous rights. Only secure legislative and institutional protections, along with a treaty capable of enforcement through the courts, can provide secure rights to self-determination. Indeed that approach is the basis in political philosophy of the system of separation and division of law-making and executive powers and broader democratic checks and balances that underpins western “liberal democratic constitutionalism” of which Australia is a part.
This realisation of the need for secure institutional protections (rather than just relying on whitefella goodwill that may give way to other priorities when it suits the politicians) informs the development in Arnhem Land of the Yolngu Nations Assembly. Recently elected Independent MLA for Nhulunbuy Mark Yingiya Guyula plays a prominent role in that Assembly. Its objectives include a treaty. A First Nations Representative Assembly that is a formal part of the Territory’s structure of government should also be an important part of those institutional protections. It would give a treaty real enforceable “teeth” because the Assembly would also have the legislative veto powers of an upper house of the Territory Parliament in relation to any law directly affecting treaty rights negotiated and agreed between the Northern Territory government and the Territory’s First Nations clans.
While the structure and membership of the Assembly would be determined after careful consultation and consideration, one possible model that may serve as a starting place is that it would meet several times per year, its members being paid sitting fees (not a salary). It would meet either in Parliament House itself (with conversion of the NT Library space to its designed function as a second house of Parliament) or perhaps in the old Chan Building across the square. Membership might initially consist of all current Aboriginal MLAs and an Aboriginal representative of each of the 4 Territory land councils and each of the 3 Aboriginal legal aid organisations. Thus it would have something like 13 or 14 members.
The First Nations Representative Assembly could be implemented immediately by ordinary Territory legislation, but that would be just an advisory council of elders if that approach was adopted. Nevertheless it might be worth creating it in that way initially so that people get used to it and can see that it is a positive development not a threat. The federal Parliament would need to pass amendments to the Territory’s “constitution”, the Northern Territory (Self-Government) Act 1978 (Cth), for the Assembly to be given the partial determinative powers of an upper house of the Territory Parliament. However there is no reason why the federal Parliament would refuse those amendments if there was a bipartisan political will among Territory politicians that it should be done.
Implementing a First Nations Representative Assembly would be visionary, practical and enlightened, not only on a local but a national and international level. It would be a decisive step towards bringing Aboriginal Territorians into the NT mainstream as real and equal participants in Territory growth and development. With Aboriginal people constituting one-third of the population and owning fifty percent of the land, realistically the Territory can never achieve its full economic or social potential without some such dramatic and effective process.