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Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, (June 2018)

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Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, (June 2018) ‘concerned Australians’ cA Submission to: Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, (June 2018) June 22nd, 2018 Committee Secretary Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples Parliament House Canberra ACT 2600 Dear Secretary and Members of the Committee 'concerned Australians’ (cA), formed at the time of the Northern Territory (NT) Intervention. We are an independent, human rights advocacy body which creates opportunities for Aboriginal voices to be heard, especially those of the NT. The Constitutional Recognition (CR) process began with a pre-election commitment of PM John Howard in October 2007 just a few months after he commenced the Howard- Brough’s Northern Territory National Emergency Response / NT Intervention, purportedly in response to the NT Board of Inquiry’s 2007 Ampe Akelyernemane Meke Mekarle- Little Children are Sacred report. The Howard-Brough response was completely opposite to the 97 recommendations of that report. Since, there has been profound disempowerment and destruction of Aboriginal and Torres Strait Islander / First Nations Peoples’ (FNP) communities of the NT 1. The Intervention is arguably intentional cultural genocide, Professor Jon Altman, November 2017.2 Throughout this time, the Australian State also imposed land tenure changes over especially FNP lands of the NT3. We believe the CR process has distracted from profound core human rights issues of the NT Intervention. In 2011 FNP from the NT informed us that treaty/ies were desired first. We have heard calls to treaty increasingly from across Australia. Later, an independent FNP community driven survey questioned the government funded Recognise campaign and its claims. In June 2014 ‘concerned Australians’ stated, Constitutional change will be dominated by the votes of non-Aboriginal people. Yet the major impact of these changes will be felt directly by Aboriginal people. For this reason, our responsibility is to reflect what they are seeking. From our contacts with Aboriginal people, RECOGNITION is simply NOT anywhere near enough! Aboriginal people want much, much more and rely on ALL of us to support them in achieving their goals. There are two main areas of demand: 1. Inclusion in the constitution of an entrenched right to self-determination. (In the NT this is currently denied to them by the [ongoing Federal] Intervention [and Stronger Futures] and the removal of powers by the NT Government). Self –determination was promised 1 The Gaps are mostly widening in remote Australia and FNP poverty and Indigenous incarceration rates especially in NT has increased under centrally driven polices from Canberra over the past decade. The Intervention is widely acknowledged to have failed and be failing. Outcomes do not match rhetoric. Read also GAP NOT CLOSING ON INDIGENOUS DISADVANTAGE (MARCH – APRIL 2018). 2 In addition, Damien Short’s article ‘Australia: a continuing genocide?’ contended that current government policies [like the NT Intervention] regarding Indigenous people constitute a “sinister attack on indigenous land rights, autonomy and cultural integrity that has led some indigenous peoples to describe their present day lived experiences as tantamount to genocide.” The Northern Territory Intervention: An evaluation Dr Stephen Gray (2015). 3 For an understanding of land tenure changes in under PM Howard’s era on read, Greg Marks, Two Sides Of The Same Coin: Outstations Policy And Land Tenure Reform,(2014-2015) , and Leon Terrill, Beyond Communal and Individual Ownership: Demystifying Aboriginal Land Reform in the Northern Territory (2016). 1 ‘concerned Australians’ cA Submission to: Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, (June 2018) by the Australian Government in 1975 when it ratified the International Covenant on Economic, Social and Cultural Rights. 2. Inclusion in the constitution of a framework for incorporating treaties as they are (eventually) negotiated. Since 2014 (and before) we have seen a plethora of consultations and reports around CR. There have been lengthy periods of silence, and recommendations by consecutive CR committees dismissed by the Australian State.4 Last year’s rejection of the Statement from the Heart (SFH) and its proposals is symptomatic of the ongoing disregard shown to our Nation’s First Peoples in this. Nineteen FNP from across the country were elected at Uluru to continue with its mandate yet the group was not funded. Note the name Uluru, regarding the SFH, is not to be mentioned as requested by Anangu Tribal Elders/ Traditional Owners (TOs) of Uluru. Since before the NT Intervention there has also been an increasing disregard for TO voices, their communities (especially remote), and their cultural protocols and structures in relation to policy and land matters, restricting their decision making. As Greg Marks argued about land tenure changes [which commenced during PM Howard’s era], The key point to be taken from the [1998] Reeves Report was that the role of traditional owners in the scheme of the Act [NT ALRA] had been identified by Reeves as in error, counter- productive and needing radical change. This was the agenda that was to re-emerge [from 2006 changes to the ALRA (NT)] in the [Federal Government led] land tenure reform project. Various rationalisations for the land reform agenda, including individualising titles and home ownership, secure tenure for government assets, and protecting the position of non- traditional residents in communities, were, it is argued here, subsidiary to the prime objective: that is the radical transformation of the scheme of the ALRA with the intent of removing or restricting the role of the traditional owners in decision-making.5(2014-2015) TOs were totally ignored in 2007 and did not give consent to ongoing Intervention laws (SF) in 2012.6 cA position remains that of June 2014. Additionally, 1. All dialogue regarding treaty/ies needs to be with sovereign/ Traditional Owners (TOs) through Elders’ councils and / local community appointed leaders with authority within their groups, and not be dominated by Government appointees, Government intermediaries, or mediated by Government or other powerful Individuals or interest groups. 2. Regarding Treaty/ies process- we call for an independent process monitored by the United Nations. … 4 Last year’s rejection of Statement from the Heart is symptomatic of this. Not the name Uluru is not to be mentioned as requested by TOs. 5 Greg Marks, Two Sides of The Same Coin: Outstations Policy and Land Tenure Reform 6 See video of Maningrida Stronger Futures Senate hearing of 22 February 2012, 13-minute compilation here or full hearing and transcripts at www.concernedaustralians.com.au 2 ‘concerned Australians’ cA Submission to: Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, (June 2018) Sate/ Territory Treaty & National Treaty In the last few years treaty/ies processes have commenced in various states across Australia and recently a MOU was signed at Barunga 2018, between Chief Minister Michael Gunner’s Government and four NT land councils with a commitment to move the Northern Territory towards treaty/ies. However, TOs, sovereign clans and their structures and leaders have been sidelined (to date) and their traditional worldviews and structures misunderstood. This is fraught with issues.7 TOs, sovereign authority/ies are necessary in any treaty /ies processes and all TO must be consulted in land matters to prevent community division and profound injustice, as seen with e.g. the contested 99 year township lease at Gunyangara. In 2016 Yingiya Mark Guyula MLA stated, We are now left to clean up the mess of the recent 99-year lease deal. The whole Gunyangara Island and the mainland sites of Wartjaba, Gorrkpuy, Galupa and Ngarrariyal will now be held under a 99-year lease to a corporation currently without a constitution. This is not satisfactory. The agreement sees the handover of land by people who do not own it. It sees the demolition of other people’s rights, refined over thousands of years and then earned again with many decades of struggle under colonial government. This agreement sees the exchange of fair Madayin law for weak corporate law. The NLC needs to stop and to start listening. …. “Despite the media proclaiming this deal as some kind of success, it is in fact a case of top to bottom lawlessness.” 8 Recommendation: Pre-existing and continuing FNP sovereignty of all TOs and their structures must be recognised in the Australian Constitution. Concerns regarding State/Territory Treaty State or Territory laws can be subordinate to the Australian State. As Greg Marks, Canberra-based international lawyer and policy analyst, specialising in Indigenous rights and Convener of the Indigenous Rights Committee of the International Law Association (Australian Branch), stated regarding the NT, Whilst the role of the Northern Territory Government in Indigenous affairs is very important, ultimately the Commonwealth has power and, as in the Northern Territory Emergency Response of 2007 (‘NTER’) has demonstrated, a willingness to exercise it unilaterally. Despite 7 For an insight of the concerns read brief 2018 submission to proposed Native Title Act changes by Yingiya Mark Guyula MLA Nhulunbuy (Senior Elder and elected Spokesperson for the Yolngu Nations Assembly). 8To understand
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