‘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 (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 . 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).

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‘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

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‘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 ’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 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 Nations Assembly). 8To understand concerns read full transcript. Regarding: existing sovereign rights and Madayin law, Northern Land Council consultation practice, Gunyangara 99-year lease, land ownership. Read NT Hansard by Yingiya Mark Guyula MLA on November 23 and 29 November 2017- pp 500-501 here and here

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‘concerned Australians’ cA Submission to: Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, (June 2018)

the achievement of Self-Government in 1978, the Northern Territory legislature remains subordinate to the Commonwealth Parliament.9

Harry Hobbs, PhD candidate Faculty of Law, UNSW also articulated that “Northern Territory powers are subject to limitations imposed by the federal Constitution” and,

A Northern Territory Act giving effect to a treaty must be consistent with all current and future Commonwealth laws. This means that even if a treaty negotiated with the Territory could include expansive self-government powers on Aboriginal land, a future Commonwealth law could overrule it. This would remain the case even if the Northern Territory achieved statehood. The only way to prevent this from occurring would be a referendum to insert a new protection against racial discrimination or a provision protecting “treaty rights” in the Constitution.

… . If First Nations wish to enter into a treaty that includes terms that do relate to Aboringal Land, the Territory needs Commonwealth support… . Otherwise we may find that a treaty in the Territory is overruled be a future federal government”10 (February 2018).

Federal support for State/ Territory treaty/ies is important. National treaty/ies are long overdue as promised by former PM Bob Hawke following the Barunga Statement in 1988.

Recommendation

The Australian State move toward a National treaty/ies. Treaty/ies processes can begin now and are not dependent on Constitutional change.

For the Future: Federal Constitutional change is required,

1) to protect against racial discrimination, this was especially important for NT people who gathered at Uluru in May 2017. As with the expert panel we believe the racist clauses of the Australian Constitution must be removed.

2) to embed “treaty rights” within the Constitution.

3) to recognise that sovereignty was never ceded by the First Peoples of this land.

Recommendation

A Truth Telling commission is a necessary part of the treaty/ies process, perhaps at regional levels. This will help bring Australia to an understanding of our history and why treaty/ies are necessary and long overdue.

Recommendation

A National Treaty and FNP representative body/ies needs to be independent of government and designed and led by TOs, sovereign clans, Elders councils and their regional language groups and representatives, and be inclusive and reflective of the diaspora, i.e. those dispossessed consequent to past and ongoing colonisation.

9 Greg Marks, Two Sides of The Same Coin: Outstations Policy and Land Tenure Reform, (2014-15), p 1. 10 A Territory Treaty, Land Rights News, Northern ed. (February 2018), pp4-5.

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‘concerned Australians’ cA Submission to: Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, (June 2018)

Colonisation is ongoing.

“In a statement made by seven Elders from different areas of the Northern Territory in 2011, the concern is clear: We are the people of the land. The land is our mother. For more than 40,000 years we have been caring for this land. We are its natural farmers.

Now after so many years of dispossession, we find once again we are being thrust towards a new dispossession. Our pain and our fear are real. We are again being shamed.

Under the Intervention we lost our rights as human beings, as Australian citizens, as the First peoples of the Land. We feel very deeply the threats to our language, our culture and our heritage. Through harsh changes we have had taken from us all control over our communities and our lives. Our lands have been compulsorily taken from us. We have been left with nothing.”11 cA position is that any gains made in land [human and Indigenous] rights from the late the 1970s has been continuously dismantled since the 1998 PM Howard-Fischer’s WIK 10-point plan to the Native Title Act. The Australian State later began dismantling other land rights protections.

For Example, in the NT the 2006 changes to the 1976 ALRA (NT) opened the door to dismantling significant Indigenous rights including fragmenting communal land tenure12 and Aboriginal control over Aboriginal and Torres Strait Islander/ FNP lands. It legislated for 99-year whole of Aboriginal township leases which was to be funded out of the Aboriginal Benefit Account (ABA). Control was removed from Aboriginal land trusts and placed into a new statutory authority designed by the Australian State. These 99-year leases were insisted on by the Federal Government but heavily resisted by FNP until the 2007 NT Intervention and 2012 Stronger Futures. Traditional Owners, clans and community leaders were denied consultations in 2007 and later ignored through a series of flawed / show consultations (with pre-determined agendas) of 2009, 201113, 2012 and201314 which also increasingly diminished FNP rights and land control.15 The Intervention made this possible.

In 2007 the Federal Government compulsorily acquired and imposed 5-year leases over 69 - 73 Aboriginal ‘prescribed areas’ under the NT Intervention. The FNP land permit system was also removed. The Intervention was racially discriminatory and vilified FNP 16, and suspended the Racial Discrimination Act in the NT. We repeat these policies had nothing to do with any of the 97 recommendations of the Little Children are Sacred report.

Lengthier leases over these ‘prescribed areas’ were demanded in 2012 as Intervention Mark 1 came to a close. In addition, intense pressure continued to be applied by the Federal Government for communities to take out longer leases of 15/ 40 years, and the unnecessary17 99 -year whole of township leases.

11 In The Absence of Treaty, p 7. 12 See footnote 2. 13 Read also NT Consultations Report 2011 By Quotations 14 Regarding Community Living Areas read In the Absence of Treaty (ITAT), pp 16-21 (and beyond regarding consultations, process and requirement for free, independent legal advice). 15 Read a series of cA books, publications or reports at www.concernedaustralians.com.au 16“These measures overtly discriminate against aboriginal peoples, infringe their right of self-determination and stigmatize already stigmatized communities.” Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Professor James Anaya. August 2009. here 17 View videos at: 1) A Discussion on 99-Year Township Leases (December 2014). 2) The Hon. Alastair Nicholson AO RFD QC, answers Questions on 99-Year Leases. Video here (December 2013).

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‘concerned Australians’ cA Submission to: Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, (June 2018)

The 2013 changes to Aboriginal Community Living Areas (CLA) Stronger Future in The Northern Territory regulation18 arose from the 2012 SF legislation, (which also extended and strengthened the NT Intervention for another 10 years). SF removed further Aboriginal control from over another 100 Aboriginal communities in the NT (and potentially over Aboriginal Town camps). Changes to CLA regulations ensured Aboriginal consent is no longer required over CLA, consultations must be requested over proposed land changes from TOs or Aboriginal occupiers, and in any case, if consulted, the Minister in Canberra has final say over CLA. 19 What happened to the rights of Independent, Free, Prior and Informed consent?20

Further proposed changes to pastoral leases -throughout Australia-are now proposed denying Aboriginal occupiers/TOs any say.

More recently the passage of the Native Title Amendment (Indigenous Land use agreement) Bill 2017 demonstrates complete disregard by the Australian State of Native Title rights.

There remains a Terra Nullius mindset within the Australian State. Extinguishment of Native title is always at threat. And, alienation of inalienable lands rights in the NT is threatened.

In 2013 Chair of the Northern Land Council, the late Mr W. Wunungmurra,

expressed a desire to protect land rights. He said, I think we need to go further and I know some people may disagree with me, but I’d like to see the Land Rights Act itself becoming inserted into the Constitution of Australia; to protect it from people watering it down and tearing it apart. I personally think that that would be a safe place (for it).21

Recommendation

1) Self-determination (inherent within UNDHR, ICECSR, ICCPR, UNDRIP) 2) National treaty/ies and 3) Land rights protections be entrenched within the Australian Constitution

A National Treaty body and framework needs to reflect the diversity of the sovereign peoples of the land which only a little over 200 years ago came to be called Australia. The Australian Government in 1975 ratified the International Covenant on Civil and Political Rights. In 2009 Australia gave support to the 2007 UNDRIP, but continually fails its aspirations. Respect for Indigenous rights which allows for self-determination, cultural Integrity and mutual respect is paramount in any way forward.

To reiterate cA position: The process to design treaty/ies, framework and body/ies needs to be led and designed by TOs, sovereign clans and FNP as stated and be independent of interference by the Australian State as noted in points 1 and 2 on page 2 of this submission.

Thank you

‘concerned Australians’

18 In The Absence of Treaty,p30-31. 19 Ibid, The reforms relied on the Land Reform section of the Stronger Futures legislation - Subsections 35(4) and 35(5), and are set out pp 19-20. 20 Ibid, p31- 21 ibid, pp11-12. Note p 13 contains photo of person who has passed into the Spirit world.

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