Indigenous rights and the NT constitution
DARWIN — Following the October 3 defeat of the referendum on statehood for the Northern Territory, public discussion has now resumed on a new constitution for the NT. COL FRIEL presents some of the issues in the following abridged version of a paper tabled at an Aboriginal and Torres Strait Islander Commission conference on the question held in Darwin last week.
The new constitution being proposed by the NT Legislative Assembly ignores the rights of indigenous people. There are no provisions for the protection and preservation of land rights, native title rights or sacred sites. Self-determination for Aboriginal people is not mentioned.
The major question for indigenous people in the NT is how much of the land they once owned can be retained and under what conditions, and how much can be re-acquired.
Ownership of land gives political power. A new constitution must ensure that dispossession of indigenous people of their land and their rights to access that land, stops right now. The Katherine land swap must not be allowed to occur again.
Democratic representation
Another omission from the proposed constitution is any consideration of a free and fair electoral system. One thing that indigenous people need, and that all Territorians need, is a much more democratic electoral system.
In many other countries the number of seats that political groups win is related to the percentage of votes they receive (proportional representation). In parliaments elected on the proportional representation system, one party seldom has a majority of seats, and compromises have to be made to form governments. Despite what the NT political leaders tell us about how unworkable such a system would be, these countries manage quite well.
Currently in the NT, a group that won 25% of the vote would get no seats whatever — something to keep in mind in any discussion about establishing indigenous political parties.
If the indigenous people of the NT want their interests protected, they have to get a share of political power. But they will not get it under the single member electorate system, which is entrenched in the proposed new constitution.
It is essential that it be made clear that any new constitution is unacceptable while it contains the single member electorate system. Indigenous people should not be sidetracked by an offer of a limited number of seats for indigenous people. They will never be offered enough to give them real political power.
Indigenous people represent 25-30% of voters in the NT, but no government will set aside six to eight parliamentary seats for this section of the population.
Other options for representation include the NT being a single electorate (as it is federally) within which we all vote for 25 members under a system of proportional representation.
The quota for election would then be less than 4%, guaranteeing representation for minority groups like indigenous people, environmentalists, trade unionists and others. This would break the stranglehold of the two major parties, which both represent the interests of big business, the developers and the pastoralists.
Providing that the PR system was not perverted by the politicians, as it has been in the Senate, it might then be possible to consider an indigenous people's party. However, I remain very lukewarm about any political party based on race, and about setting aside seats for any racial group.
Two-party monopoly
Such a minority grouping could not even exercise balance of power since most legislation passed by parliament has bipartisan support (including in the Senate, despite neither major party having a majority). When it comes to the crunch, they act like one party with two names. It is the same in the NT Legislative Assembly.
The real advantage of a democratic constitution is that it can curb the powers of the politicians. They may be able to legislate their way around your voting rights, they may be able to manipulate the elections, but if the constitution provides for the preservation of human rights, indigenous rights and environmental rights, and the interpretation of those rights is out of the hands of politicians, there is a better chance of preserving them.
But the proposed constitution is written by politicians for politicians. They have given themselves unfettered power to make any laws they want, and they are accountable to no-one. That affects everyone, including indigenous people.
They say that the politicians should have absolute power to make any law they wish, but the fundamental principle that we have to insist on, that indigenous people have to insist on, is that it is the people who are sovereign, who have the ultimate political power. And that includes all Territorians.
If you want a constitution that protects your rights, you are not going to get it through the elected politicians. You are not going to get it through delegations to these politicians that are not backed up by political power, people's power.
You only have to look at the failure of the National Indigenous Working Group in the matter of the amendments to the Native Title Act to see this.
The people who won were those with political influence, the backing of big money — the pastoralists, farmers, mine owners and exporters. They wanted unrestricted access to the land resources, and to a large extent they got it, "bucket-loads of extinguishment", as Tim Fischer is fond of saying.
Most of the indigenous people in the NT have no economic power and hence they have no political power. A large proportion are dependent on welfare in one form or another. This places them in a very weak position when negotiating with those who control that welfare, because they also control the people's life support system.
Economic independence does not come from selling off all your mineral wealth. When it is all gone, what will be left is holes in the ground, mountains of waste, often toxic, and desecrated sacred sites, desecrated environments and desecrated cultural systems.
Only a very few will benefit, and when the markets fail, as they always do, there will be no money coming in, no economic independence.
People's power
To obtain political independence you must first obtain economic independence. But until then we have another source of political strength, our numbers.
If you think that you would have a political voice with six or eight indigenous members of parliament, how much more strength would you have if 6000 or 8000 people attended every parliamentary sitting with their demands? It is called people's power.
To have any chance of getting a democratic constitution, we must use people's power to get a democratically elected constitutional convention. I urge you to take an active part in demanding that the next constitutional convention is democratically elected, and that decisions of that convention are reached by unanimous decision or they go to referendum.
You have the strength of numbers to have a major influence on the composition of the any future convention, so do not capitulate on any democratic points.