Keely, Annie --- "Aboriginal Rights and the Draft NT Constitution" [1998] IndigLawB 3; (1998) 4(8) Indigenous Law Bulletin 10

Aboriginal Rights and the Draft NT Constitution

By Annie Keely

As part of the push for statehood for the Northern Territory, the Sessional Committee on Constitutional Development has prepared a draft constitution for the NT. While the Territory is in a unique position to develop a modern constitution, to date it has failed to do so. It is imperative that any NT constitution will stand us in good stead in the 21st century and beyond. While there is already recognition of some of the unique rights of indigenous peoples in Australian statutes and in the common law, a modern constitution must recognise certain basic human rights, particularly the special rights of Aboriginal people.

Here I will consider some aspects of that draft NT constitution from the perspective of the rights of Aboriginal people, specifically the Preamble and the protection of Aboriginal land and sacred sites. There are a number of other aspects of the draft NT constitution which raise immense concerns for Aboriginal people. [Note: References in square brackets [ ] are to the relevant section of the draft NT constitution as tabled in the NT Assembly on 22/8/96 and amended on 9/10/96].

The Preamble—acknowledgment of prior Aboriginal ownership of the NT

The first paragraph of the Preamble acknowledges that ‘since time immemorial’ all or most of the NT

‘was occupied by various groups of Aboriginal people under an orderly and mutually recognised system of governance and laws by which they defined their relationships between each other, with the land and with their natural and spiritual environment’.

While accepting that no other Australian constitution contains any such acknowledgment, that of course is a reflection of the time of their drafting. In my view this clause does not go nearly far enough; it fails to acknowledge prior Aboriginal ownership of this land and the facts of Aboriginal dispossession by non–Aboriginals. The recognition of an Aboriginal system of governance is one step but it is not followed through logically by accepting Aboriginal peoples' ongoing right to self–determination and self–government. This proposed acknowledgment only of their occupation, without recognition of the special rights of indigenous people is, in my view, completely unacceptable. Extensive consultations with Aboriginal people on drafting the Preamble are needed.

Protection of Aboriginal land rights [Section 7.1]

The draft Constitution proposes that an Organic Law[1] will be enacted by the NT government called the ‘Aboriginal Land Rights (Northern Territory) Act’. It is based on the Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976 (the ‘Land Rights Act’). It is clear that the Act as proposed in the draft Constitution will be very different from the existing Act in some substantial ways which attack the very basis of Aboriginal land rights. The draft Constitution as proposed would require that the changes to the Act must be in a form agreed to by the Commonwealth. Senator Herron, the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs has recently announced a Review of the Land Rights Act; [see box inset opposite]. I will now look at some of the proposed new provisions as set out in the draft Constitution.

Inalienability of Aboriginal land

The draft Constitution proposes a major change to the form of title of Aboriginal land.[2] It is proposed that Aboriginal land will no longer be inalienable, held on trust and protected for future generations. Inalienable title has been a foundation stone of Aboriginal land rights in the NT since the Woodward[3] reports of the Aboriginal Land Rights Commission in 1973 and 1974. In both reports he recommended that Aboriginal ‘title must be communal and inalienable’.[4] He stressed that land must not be able to be sold or mortgaged, other than by transfer to other Aboriginal communities.[5] He recognised the unique relationship between Aboriginal people and their country and the need for their land ownership to be protected. He also recognised the opposition to Aboriginal land rights in the NT. His recommendations were accepted and are contained in the Land Rights Act. Now, even before the NT government controls the Land Rights Act, it is proposing to remove part of its core. Surely the federal government, with its special responsibilities for Aboriginal people and for all Territorians, cannot permit a constitution for the NT to entrench such a diminution of Aboriginal rights.

Under the proposal it will be possible for Aboriginal land to be ‘sold, assigned, mortgaged, charged, surrendered, extinguished or otherwise disposed of’ if a court or body established by an Organic Law:

‘(a) is first satisfied that all Aborigines having an estate or interest in that land...have been adequately informed of, and a majority of them have voluntarily consented to, the proposed transaction; and

(b) the proposed transaction is otherwise in the interests of all Aborigines having an estate or interest in, or residing on, that land’.[6]

It is not clear how the judge will satisfy himself or herself about who should be consulted, the nature of the consultations and decision–making processes to be used in considering the proposal. Similarly, no criteria are provided as to how ‘the interests of all Aborigines having an interest in, or residing on, that land’ are to be determined. There are many unresolved issues about the proposed method of implementing this proposal and there has been no attempt to consult Aboriginal people about this fundamental change.

In my work here in the Northern Territory, since 1988, I have been privileged enough to work on several land claims and have gained some insight into the price Aboriginal people pay to go through the process demanded by our non–Aboriginal legal system to prove that they are indeed the traditional owners of the country. Especially in the first fifteen years of land rights, most claimants not only had to convince the Aboriginal Land Commissioner of their traditional ownership, but then survive legal challenges brought by the NT government opposing the grant of the land. The government now proposes removing the foundation of that Aboriginal title: its inalienability. To go through this process and receive inalienable title only to subsequently have that inalienablility removed is outrageous.

Presumably one reason given for making the land alienable is to enable secured financing of economic development on the land. Rural land in the NT has such a limited economic value that most pastoralists use their stock as a security rather than their lease. Surely other ways of securing these interests can be found without requiring the land as security. For Aboriginal people the loss of land in a failed business venture is not just the distressing story of a business–person who mortgaged their family home for their business and lost it to the bank.

From a government which strenuously objects to Aboriginal people owning 42% of the Northern Territory, this appears to be a slightly more sophisticated form of dispossession than some used in the past.

Compulsory Acquisition of Aboriginal Land

Under the draft Constitution an Organic Law will be able to provide for the compulsory acquisition of an estate or interest in all or any part of Aboriginal land, which is less than freehold title,

‘providing that the acquisition is on just terms and for or in furtherance of any purpose which is for the benefit of the public (other than as a park) and whether or not that purpose is to be effected by the Northern Territory or by any other person or body, and otherwise on terms and conditions not less favourable than for the compulsory acquisition of other land under a law of the Northern Territory’[7].

Currently, s67 of the Land Rights Act prevents compulsory acquisition of Aboriginal land by a law of the NT. The proposed provision would give the NT government very wide powers to compulsorily acquire Aboriginal land, not only for itself but for other people or companies for any purpose which is ‘for the benefit of the public’. This is considerably wider than the provisions of the Commonwealth Lands Acquisition Act which currently controls compulsory acquisition of Aboriginal land. Moreover just terms compensation for Aboriginal owners of land must require compensation for an attachment/relationship to that land which is substantially different from non–Aboriginal land ownership.

This proposed Organic Law, the ‘Aboriginal Land Rights (Northern Territory) Act’ will be able to be amended by a majority of either two–thirds or three–quarters of the NT parliament. The proportion is to be determined by the NT Constitutional Convention.[8] The constitutional entrenchment of both of these provisions will lead to further dispossession of Aboriginal people and constitutionally entrenching them would mean that it would be very difficult for them to be altered at some stage in the future. Constitutional entrenchment should only apply to the recognition of rights and not to the removal or diminution of important indigenous peoples' rights.

Protection of Aboriginal sacred sites [Section 7.2]

Under s7.2 of the draft Constitution an Organic Law is to provide for the protection of and prevention of desecration of Aboriginal sacred sites on and off Aboriginal land and will regulate entry onto those sites. The right of Aboriginal people to have access to sacred sites would continue and the wishes of Aboriginal people in relation to the protection of those sites shall be taken into account. However this proposed Organic Law raises the possibility of some person or body other than traditional Aboriginal owners or Land Councils providing access to sacred sites on Aboriginal land: a severe erosion of current Aboriginal rights to control access to their country. Of particular concern would be access by exploration and mining companies and other developers.

The current Northern Territory Aboriginal Sacred Sites Act 1989 is heralded by some as the best sacred sites legislation in the country. The fact is that it was introduced without proper consultations with Aboriginal people and in the face of significant Aboriginal objection with protest camps in Alice Springs, Tennant Creek, Katherine and Darwin. The primary objection of Aboriginal people is the Minister's power to override the decision of the Aboriginal Areas Protection Authority and to deliberately authorise the desecration or destruction of Aboriginal sacred sites.[9] Also the Authority is not sufficiently independent of government and is subject to Ministerial direction on a range of issues.

Considerable work has been done by Aboriginal organisations on effective sacred site protection legislation and by the Hon. Elizabeth Evatt in her recent review and recommendations on the federal Aboriginal heritage protection legislation.[10] Yet here again these important matters have not yet been the subject of effective consultations with Aboriginal people.

Modern constitutional development—the need for community education and community consultations

In the NT, indigenous people also have special rights as owners of almost 50% of the NT and most of the coastline and also as permanent residents of the NT which otherwise has a very transient population.[11] Their unique position requires negotiations by both the Territory and federal governments in developing an NT constitution. This has not yet even been proposed.

A well resourced community education program needs to be developed and implemented which must include constructively educating the whole community about the unique rights of indigenous peoples. This must then be followed by well resourced, effective and culturally appropriate community consultations seeking the real and considered input of all Territorians. There is still much work to be done before a real working draft constitution can be developed for consideration and discussion within the

NT community.

[This article is based on a paper for the NT Constitutional Foundations conference held in Darwin, 4–6 September 1997. The conference paper also raised problems with the draft constitution's handling of Aboriginal customary law and the rights to Aboriginal self–determination and self–government.]

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[1] In s2.3 of the draft constitution, an Organic Law is either declared by the constitution to be one or is an Act of Parliament which expressly states that it is one. To become an Organic Law, an Act must be supported by more than a simple majority of members of Parliament and comply with certain extra procedures, which the Speaker must certify to the Governor. It can only be amended by amendment to the constitution itself or by complying with various provisions as if it were a new Organic Law and must have been considered by the Standing Committee on the Constitution and Organic Laws (see ss 2.3, 2.4 and 2.5 of the draft Constitution).

Despite the recommendations of the NT Sessional Committee on Constitutional Development, the NT Chief Minister, Shane Stone, recently stated on radio (17/10/97 ABC Radio: The Morning Show) that he does not believe in the entrenchment of the rights of any group in the community to the exclusion of others. This interview indicated that he does not think the Land Rights Act should be entrenched in an NT constitution; it would be a piece of legislation in the Territory like any other.

[2] ‘Aboriginal land’ is defined in s2 of the Land Rights Act as including freehold land held by an Aboriginal land trust.

[3] Sir A. Edward Woodward QC (as he now is). A.E. Woodward, Aboriginal Land Rights Commission, First Report, 19/7/73, para 296 and Second Report, April 1974, paras 71 and 74.

[4] Ibid.

[5] Ibid, Second Report, para 740.

[6] Section 7.1 (3) of the draft Constitution.

[7] Section 7.1 (6) of the draft Constitution.

[8] Section 7.1 (2) of the draft Constitution.

[9] One example of the failure of this Act to protect Aboriginal sacred sites was in 1991–2 when the relevant NT Minister authorised the destruction of several major women's sacred sites to allow construction of a ‘flood mitigation’ dam north of Alice Springs. Fortunately the then Federal Minister for Aboriginal and Torres Strait Islander Affairs, Robert Tickner, used his powers under the Aboriginal and Torres Strait Islander Heritage Protection Act (Cth) 1984 (the ‘Heritage Act’) to issue a declaration preventing the construction and protecting the sacred sites for twenty years. In its current form the Federal Heritage Act may not enable the making of such a declaration today.

[10] The Hon. Elizabeth Evatt AC, ‘Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984’, Report to the Minister for Aboriginal and Torres Strait Islander Affairs, August 1996.

[11] Peter Jull, Constitution–making in Northern Territories: Legitimacy and Governance in Australia, Central Land Council, 1996, p 2.