Statehood for the Northern Territory is in the air again, with COAG having recently voted to support a statehood process (albeit with no assurances as to the outcome). Whether it was any more than a distraction tactic for both then PM Tony Abbott and the equally beleaguered NT Chief Minister Adam Giles is another question, but I at least hope that it was a serious offer/invitation to treat on the part of the Commonwealth and States.
Statehood predictably produces almost universal guffaws whenever anyone mentions it, not only in the rest of Australia but among Territorians too. However I have long believed that a statehood process will at the very least serve as a trigger for prolonged reflection about appropriate governance structures for a polity covering 20% of Australia’s land mass but with just 250,000 people, one-third of whom are Aboriginal. It might even result over time in badly needed political maturation, in place of the endless three ring circus that current NT politics has become.
I have privately peddled the following idea to politicians in both major parties in recent weeks, and been met with what can best be described as polite disinterest. Despite that, in my not so humble opinion it’s not only a truly brilliant idea but quite possibly the only way statehood for the NT can actually be achieved in the foreseeable future.
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 (where any changes, especially to the Aboriginal Land Rights (Northern Territory) Act 1976, would need to get through the Senate which neither major party usually controls). The then CLP government had staunchly opposed every single Aboriginal land claim and made several attempts to get the Act watered down, so Aboriginal fears were hardly surprising.
The fears, concerns and aspirations of Aboriginal Territorians are still the elephant in the room for NT statehood. Given that approximately 50% of the NT’s land mass is now Aboriginal land (much of it under ALRNTA inalienable title), it seems to me that statehood without patriation to NT control of the ALRNTA would be very unsatisfactory. On the other hand, 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. Finding a way to cut through this Catch 22 is in my view essential to the success of any statehood proposal.
Entrenching Aboriginal land rights and other rights in a constitutional bill of rights would of course certainly 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 in my view doom it to failure.
My idea/proposal instead builds on a proposal by Noel Pearson in the federal context for creation of a purely advisory Aboriginal constituent assembly (quote from newspaper article):
Such a proposal would not offend constitutional conservatives, increasing the prospect that a referendum in May 2017 could succeed.
Australian legal and political culture places a firm emphasis on parliamentary supremacy. A legally enforceable bill of rights has met resistance for this reason. Under Pearson’s proposal, parliament would remain supreme, free to disagree with the proposals of the consultative body.
A non-binding consultative body would defer to parliament but it would not necessarily be irrelevant. Internationally, there is precedent for such consultative bodies.
Other countries have bodies that lack binding authority but do not suffer a lack of influence. …
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.
In the Territory context such a body could be established immediately by ordinary legislation. It would be purely advisory in most respects. However, when/if statehood comes about (including patriation of the ALRNTA) it could be on the basis that the new NT State Constitution provided that the Aboriginal Constituent Assembly would have veto rights over any changes to that Act. In other words it would function only in that respect as a true Upper House of Parliament. Aboriginal land tenure would be MORE securely protected under such a system than it is now.
My concept of this Assembly 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 would consist of all current Aboriginal MLAs and an Aboriginal representative of each of the 4 land councils, each of the 3 Aboriginal legal aid organisations, and each of the regional local government councils. Thus it would have something like 20 members.
I hope both major parties and Independents might yet consider this step as a real and immediate policy option, not only as part of a statehood process but in any event. 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 50% of the land, realistically the Northern Territory can never achieve its full economic or social potential without some such dramatic and effective process.