by ray jackson
herewith some further contributions re the constitution and whatever proposed changes may arise from that.
our esteemed s.a. elder from the kaurna nation, ms. lynette crocker, has based her suggested changes on the 1982 inclusion of the first nations peoples into the new canadian constitution and charter of rights.
lynette believes that her suggestion, if adopted, will place our people firmly on the right path to a negotiated treaty(ies).
what is required is an inclusion to clause 9 of chapter ix a charter of aboriginal rights.
i believe that the terms 'land rights', 'land claim agreements' and 'proclaimed rights' need to be better described as to their true legal meaning.
i agree that a constitutional conference must be held as stated by lynette but with one very important change. the aboriginal and torres strait islanders will be responsible for the election of their representatives, viz. three from each state and territory.
lynette then raises the absolute unique position of the s.a. nations under the letters patent of 19 february, 1836, proclaimed by the then-king of england, that placed an all-important condition or caveat upon the settlement of south australia.
the proclamation reads thus:
provided always that nothing to our letters patent contained shall affect or be construed to affect the rights of any aboriginal natives of the said province to the actual occupation or enjoyment in their own persons or in the persons of their descendants of any land therein now actually occupied or enjoyed by such natives.
for the king then and his colonial office in 1836 there was to be no doubt. the s.a. company and all who settled there must acknowledge and respect aboriginal land rights. coming to terms,aboriginal title in south australia. wakefield press 2010. i highly commend the book to you.
this however was not the letters patent for any other part of the invasion, and the outcome was the same everywhere in australia anyway. the proclamation was ignored and the s.a. genocide began.
we are then given a 7 point national aboriginal political party compact that goes further into our combined wants and needs as the traditional owners of the lands and nations of pre-invasion australia.
my thanks go to lynette for her thoughtful contributions and to patrick byrt for forwarding it to me to allow for further discussion.
fkj
Kaurna Elder Lynette Crocker's proposal for amendments to the Australian
Constitution to have a formal and legal inclusion of all Aboriginal people
within the Australian Constitution.
Fw: Kaurna Elder's proposal for amendments to the Australian Constitution
...
The following proposal for amendments to the Australian Constitution may
meet with the "perceived" necessity to have a formal and legal inclusion
of all Aboriginal people within the Australian Constitution. It is based
on the terms of the inclusion of the First Nation peoples of Canada in the
1982 new Canadian Constitution and Charter of Rights. The advantage that
this proposal raises is that it enables the recognition of Aboriginal
rights in the context of enacting a Charter of Rights to secure the legal
and equal recognition of formal Aboriginal rights alongside every other
constitutional right set out in the constitution and Charter. It also
lays the ground for the representatives of the Aboriginal people to be
given a legal identity with a constitutional foundation.
On this basis Aboriginal representatives would have a position from which
to call for and to negotiate the settlement of a treaty to finalise all
unfinished business.
I commend the proposal for your attention.
____________________________________
PROPOSED amendment to the Commonwealth of Australia Constitution Act
(1901) by the insertion in Clause 9 of Chapter IX--Charter Enacting
Aboriginal Rights to provide for the insertion in the Constitution of
placita 129 and 130 to institute provisions recognizing and enforcing the
Rights of the Aboriginal Peoples of Australia:
Clause 9 of the Commonwealth of Australia Constitution (1901) is hereby
amended to provide for the addition of Chapter IX--Charter Enacting
Aboriginal Rights in Clause 9 and the Schedule is amended by the insertion
of placita 129 and 130 as follows [see in red italics]:
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - CLAUSE 9
Constitution [see Note 1]
The Constitution of the Commonwealth shall be as
follows:
The Constitution
This Constitution is divided as follows:
Chapter I--The Parliament
Part I--General
Part II--The Senate
Part III--The House of Representatives
Part IV--Both Houses of the Parliament
Part V--Powers of the Parliament
Chapter II--The Executive Government
Chapter III--The Judicature
Chapter IV--Finance and Trade
Chapter V--The States
Chapter VI--New States
Chapter VII--Miscellaneous
Chapter VIII--Alteration of the Constitution
Chapter IX--Charter Enacting Aboriginal Rights
Part I--The Rights of the Aboriginal Peoples of Australia
Part II-The Australian Charter of Rights and Freedoms
The Schedule
.
Chapter IX--Charter Enacting Aboriginal Rights
Part I--The Rights of the Aboriginal Peoples of Australia
Recognition of existing Aboriginal, native title and proclaimed rights.
RIGHTS OF THE ABORIGINAL PEOPLES OF AUSTRALIA
(1) The existing Aboriginal, native title and proclaimed rights of the
Aboriginal peoples of Australia are hereby recognized and affirmed.
Definition of "Aboriginal peoples of Australia"
(2) In this Act, "Aboriginal peoples of Australia" includes the Torres
Strait Islander peoples of Australia.
Land claims agreements
(3) For greater certainty, in subsection (1) "native title and proclaimed
rights" includes rights that now exist by way of land claims agreements or
may be so acquired.
Aboriginal, native title and proclaimed rights are guaranteed equally to
both sexes
(4) Notwithstanding any other provision of this Act, the Aboriginal,
native title and proclaimed rights referred to in subsection (1) are
guaranteed equally to male and female persons.
Commitment to participation in constitutional conference.
The government of Australia and the State and territory governments are
committed to the principle that, before any alteration is effected to
benefit of the Royal Proclamations in respect of the Aboriginal peoples of
Australia that have been issued by the Imperial Crown, and including the
Letters Patent of 19 February, 1836, establishing South Australia and
before any amendment is made to any Imperial Acts with effect on the
Aboriginal peoples of Australia, including the "South Australian
Foundation Act, 1834", to section 130 of this Act or to this section,
(a) a constitutional conference that includes in its agenda an item
relating to the proposed amendment, composed of the Prime Minister of
Australia and the Premiers of the States and First Ministers of the
territories, will be convened by the Prime Minister of Australia; and
(b) the Prime Minister of Australia will invite the representatives of the
Aboriginal peoples of Australia to participate in the discussions on that
item.
Part II--The Australian Charter of Rights and Freedoms
130. The Australian Charter of Rights and Freedoms
Australian Bill of Rights and Freedoms
AUSTRALIAN CHARTER OF RIGHTS AND FREEDOMS
Whereas Australia is founded upon principles that recognize the
supremacy of the Creator and the rule of law:
A Bill of Rights and Freedoms shall apply as annexed hereto subject to the
following:
The guarantee by this Charter of certain rights and freedoms which hereby
may be provided by the annexed Bill of Rights and Freedoms shall not be
construed so as to abrogate or derogate from any Aboriginal, native title
and proclaimed or other rights or freedoms that pertain to the Aboriginal
peoples of Australia including:
(a) any rights or freedoms of the Aboriginal peoples of Australia that
have been recognized Royal Proclamation that has been issued by the
Imperial Crown in respect of the Aboriginal peoples of Australia and
including the Letters Patent of 19 February,
1836; and,
(b) any rights or freedoms of the Aboriginal peoples of Australia that now
exist by way of land claims, agreements or may be so acquired; and,
(c) any and all rights and freedoms of the Aboriginal peoples of Australia
that have been recognized, exist or may be so acquired within the purview
of this Constitution or otherwise under or by virtue of the Commonwealth
of Australia Constitution Act (1901) as amended hereby.
_____________________________________________________________________
SEE: http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/
http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s9.html
_______________________________________________________________
Yours in the struggle for Equity and Parity.
Lynette Alice Crocker
Ngangki Burka
Senior Kaurna Woman
Kowiandilla Meyunna - Kua Nepotinna (Lone Crow)
Chair of the Kaurna Nation Cultural Heritage Association Inc
http://kaurna.auspics.org.au/
Named Applicant Kaurna Native Title Claim
Independent SA Change Candidate for Legislative Council
http://sa-change.auspics.org.au/
M 0457802654
Traditional Owner
25 East Avenue NORTHFIELD SA 5085
On Kaurna Land (http://www.kaurnaplacenames.com/) - yet to be free !
(Colonised in the foundation of Adelaide, South Australia - the heartland
of the 1836 Letters Patent)
Proposal for a National Aboriginal Political Party Compact
National Aboriginal Political Party Compact
The Members of the National Aboriginal Political Party recognize and affirm
that the independence of the Aboriginal Peoples and the future of the
Nation
can be assured by complete respect for the following seven principles,
which
represent the greatest sacrifice that can be undertaken in order to
achieve a
just and lasting reconciliation, and that the continued existence of
harmony,
justice, peace and stable unity in society is impossible outside of the
said
seven principles:
First Article - Inasmuch as it is necessary that the destinies of the
regions of
the Commonwealth which are populated predominantly by an English speaking
mother-tongue majority being under the occupation of their colonial
descendant
authorities, should be determined in accordance with the votes which
freely shall
be given by their inhabitants, so likewise the whole of those parts also
which are
inhabited by an Aboriginal majority, united in cultural antecedents, or by
race and
in aim to remain imbued with mutual respect for each other and with a
spirit of
sacrifice, and wholly respectful of each other's common racial and social
rights
and surrounding conditions, and whether within or without the
jurisdictions of the
English speaking states and territories of the Commonwealth, indubitably
form a
whole which does not admit of division for any reason in amity, truth or
in ordinance.
Second Article - We accept that, in the case of those Aboriginal
communities
which have united amongst themselves by a general and free vote to abide
the
exclusive authority of the Commonwealth on or after the 1967 Referendum, it
remains necessary for recourse to be had to a new free and secret popular
vote.
Third Article - The determination of the juridical status of the northern
territory
which has been subjugated to the dependency of the Commonwealth from
1912, must be effected in those traditional parts that remain inhabited by
an
Aboriginal majority in accordance with the votes which shall be given by
their
inhabitants in a secret ballot in complete freedom as it shall be provided
them.
Fourth Article - The security, recognition and respect of Uluru as the
cultural
seat of the Nation and the city of Alice Springs as the site of the
administration
and headquarters of the Aboriginal parliament must be protected from every
hazard to their Aboriginal cultural significance and from all dangers to
the city's
capital position to provide for the headquarters of Aboriginal government.
Fifth Article - Provided the principle of the Fourth Article is
maintained, whatever
decision may be arrived at jointly by us and all other governments
concerned,
regarding the opening by Referendum of the Commonwealth Constitution to
the
juridical recognition of the territories and rights of the Aboriginal
Peoples and to
uphold and undertake their own development including by free commerce and
traffic in and to the world, and including by responsible self-government,
is valid.
Sixth Article - the rights of the non-English speaking multicultural
background
minorities already defined and granted by treaties concluded under the
Charter
of the United Nations, including all their international human rights and
those
rights that extend to the Aboriginal Peoples, shall be confirmed and
assured
by us in reliance on the reciprocal trust that the Aboriginal minorities
to remain
in the states and territories of the Commonwealth subsequent to Referendum
also will have the equal benefit of the same rights.
Seventh Article - It is a fundamental condition of our Aboriginal life and
continued
cultural existence that we, like every country of the United Nations,
should enjoy
complete independence and liberty in the matter of assuring the means of
our
development, in order that our national and economic development should be
rendered possible and that it should be possible to conduct affairs in the
form of
a reciprocal and just regularity and parity in administration with
self-government.
On the ground and reason of these seven principles we are opposed to
restrictions
inimical to our development in political, judicial, financial, cultural
and other matters.
The conditions of the settlement by reconciliation of our liberation from
colonisation
shall likewise not be contrary to these seven principles and we commend to
the
Nation that it reconcile to a whole commitment to the seven axioms of:
Recognition
Respect
Rights
Reform
Reciprocity
Responsibility
Reparations
as our pre-condition to the more complete achievement in Reconciliation of
that settlement.
We the undersigned authors of this National Compact for our Aboriginal
Liberation:
ray jackson
president
indigenous social justice association
----- Original Message -----
From: Ray Jackson
To: ray jackson
Sent: Thursday, December 16, 2010 8:11 AM
Subject: constitution 2
three more offerings of constitutional awareness.
the first comes from my good friend michael whose opinions matter to me. even this one.
i also offer him my apologies for my previous misstatement and my not posting the original article from him. but this one is better so i produce it below.
somewhere in my head or heart or whatever i would say that his analysis is right and like 1967 we will again not receive any real social justice from the constitutional change procedure. but that only leaves us with the mind-breaking knowledge that our criminally-enforced position can and will never change.
whilst perhaps at my age, near 70, i can accept that, i cannot and will not accept that for my granddaughters and great-granddaughter and all the other grandchildren and great-grandchildren.
surely it is incumbent on us now to at least try for a better world for them and their children and grandchildren? to do otherwise would be only an act of criminal weakness.
as an activist of many years standing, and not just in aboriginal issues, i would find the shame too much to bear. yes, it will be difficult because we are without resources and fractured in our own way as well. we face a nation that is hostile to aboriginal issues for some two thirds of the citizens of this country. it is essentially an exercise of education to that two thirds that the greater majority of them, like the one third who support us, have nothing to lose and really have much to gain.
this education must come from the elected governments and oppositions, from the churches, from the community groups, among others, but more importantly, from us. we need to educate our own as well as non-aboriginal australians. the 1967 referendum struggle was over 10 years; we do not have that luxury
i know what michael is saying and i hear him well but i also hear other voices, past, present and future that say we must do more, we must at least try.
speaking personally, i am of the opinion that to try and fail is far better than to not attempt the herculean task at all. at least i can meet my ancestors knowing that i have tried.
michael states that we should do a face to face with the invaders and negotiate treaty(ies). in all honesty michael, i ask how? what procedure, without rights, can we use to bring such a meeting about? kevin gilbert's argument for treaty is well known but we are no closer to us attaining it.
whilst your 'strange fruit' solution does hold some favour with me, michael, i do not really see the possibility of it. more's the pity, perhaps.
----- Original Message -----
From: michael
To: Ray Jackson
Sent: Sunday, December 05, 2010 10:26 PM
Subject: Re: Wisdom of Customary law.doc
Hi Ray,
> we have yet to be offered any alternative view that there should not be
> any change at all
Yeah you have. But I'll say it again.
The Australian constitution is a fundamentally invalid document.
Not just because its built on illegal invasion and dispossession
(without even a treaty to add a figleaf of legitimacy) but because
the whole concept is just a paternalistic, legalistic patch on
what remains a feudal system little changed since the middle ages.
Its a document defining what crumbs the centralised power structure
deigns to throw to its subjects - and in the case of the Aus
constitution what power is devolved from the centre goes mostly to the
baronies of the states with sweet FA going to the people of Australia -
white or black.
If you're going to have a valid constitution it won't come from our
rulers deciding what pathetic scraps of self-determination and
rights they choose to let us vote on. It will come from rigorous
negotiations with a completely new kind of administration, while
the old one is still hanging from the lamp-posts around Parliament
House to help focus everyone's mind. But of course any such
constitution would pretty quickly be appropriated by a *new*
gang of oppressors who would make it into a club to beat the people
down all over again. And so it goes.
By begging for a few extra crumbs from our existing constitution you
are playing right into the hands of those who try to pretend such
a document can somehow legitimise a completely illegitimate power
structure.
The only use I can think of for the Australian constitution would
be if I ran out of toilet paper.
But lets set all that aside for a minute and pretend that its possible
to amend the constitution in some sort of way that might actually
improve the situation of anyone other than those it was really
designed to serve.
So how might our glorious rulers facilitate this?
First of all they'll split those who want change between minimalists
who want something warm, fuzzy and essentially meaningless in the
preamble and those who think that something substantial might be
gained - such as decent healthcare, basic human rights or just an
end to the endless cycle of murder of the original inhabitants by
the state followed by the sickening spectacle of the state
'investigating' and exonerating itself.
They'll sit back smugly for a while, watching the minimalists and
reformists punch it out, then step in like a referee or parents
separating squabbling children and present us with a 'compromise'
that will be empty at best or, more likely, something that serves
their interests and does nothing to advance the position of aboriginal
people.
If it turns out to be something that suits the people, rather than
the rulers, they will then throw it to the shock jocks and tabloids
who can be counted on to whip up the sort of ill-informed racist
frothing we saw in the wake of Mabo and turn it into an exercise
in black bashing with no chance of success at the ballot box.
They'll have great fun if a proposed amendment includes rights
based on any international treaties Australia has ratified, telling
us that we're signing our national sovereignty away to a bunch
of foreign bureaucrats (and they'd be right).
And of course the liberal press can be relied upon to chime in
with concerned sounding platitudes about how we need amendments
that can be used to protect aborigines from themselves.
In the end all it will do is give PR companies another boost with
the politicians able to use it as yet another example of why the
Australian people 'aren't yet ready for change'.
Am I saying this because I'm against the rule of law?
No, not really - though I think the rule of law is vastly overrated.
If we want to change the way we are ruled over I think constitutional
amendment should be the last step in the process, not the first.
At least with a treaty we can sit the stakeholders down face to face
to thrash it out rather than letting it be run through the media or
another farcical 'constitutional convention' of hand-picked sheeplings.
With a treaty at least we'll know exactly how conquered we actually
are, and then we'll have some sort of realistic grasp of what sort
of concessions we can really expect from the regime. That would be
a far more practical base to try to reform Australian law and
administrative practice from than anything that would get up in
a constitutional referendum.
cheers,
michael
the second article gives a poor view, numberwise, but of course the survey did not put either a minimalist or maximalist word change.
as we know that would definitely raise the no vote.
i do not want a minimalist change, crumbs, i want only what is due to us, our cake.
the vote, though small, reflects that it is yet only early days.
The Sydney Morning Herald
Should we alter our constitution to recognise indigenous Australians?
December 4, 2010
Poll: Should we alter our constitution to recognise indigenous Australians?
Poll form
1. Please select an answer. No
2. Yes
3. View results
No 33%
Yes 67%
Total votes: 255.
the third and last article comes from richard franklin and peter lewis.
this piece also calls for treaty(ies) and for social justice. i mostly agree with the broad tenets put by richard and peter.
The Sydney Morning Herald
An honourable land needs a constitution free of racism
Richard Frankland and Peter Lewis
December 7, 2010
Australia is based on an age when First Peoples were no people at all.
IN NOVEMBER, the Gillard government announced a process to frame a
referendum question to constitutionally recognise Aboriginal and Torres Strait
Islander peoples. The announcement was a consequence of the Gillard
government's deal with the Greens to gain their support in the hung parliament.
The Coalition had also supported a new preamble to recognise Aboriginal and
Torres Strait Islander peoples in their last two unsuccessful election campaigns in
2007 and 2010.
The process involves the creation of an ''expert panel'' which will consult broadly
with the community and provide the nation with an opportunity to reflect on
questions of identity and vision.
Our constitution reflects an age when the First Peoples were treated as ''no
peoples'' and state governments under section 25 could prohibit racial groups from
voting in state and federal elections.
Unfortunately, without constitutional change, this is still the case. Our racist past
remains embedded in our foundational document.
When it comes to consultation on these issues, we need to remember that there
was such a process a decade ago. In fact, today is the 10th anniversary of the end
of that process.
The point of a preamble is to describe the nation; to describe who we are as a
people (or in our case, as peoples).
While the United States is not always the embodiment of all that is good, at least
their founding fathers had a view as to who they were.
It begins: "We the people of the United States, in order to form a more perfect
union, establish justice, insure domestic tranquillity, provide for the common
defence, promote the general welfare, and secure the blessings of liberty to
ourselves and our posterity, do ordain and establish this Constitution for the United
States of America."
Ours just talks about five states (yes, five not six) combining to enter into a
Federation under the Queen (then Victoria). In other words, it is a political
arrangement not a vision of national identity.
So who the bloody hell are we (with apologies to the Tourism Australia campaign)?
And then, more importantly, who the bloody hell will we be?
The preamble is not just about who we are now; it is also about who we want to
aspire to be as a people. What will be the inheritance we leave to our children and
their children? At a recent indigenous policy conference, the father of
reconciliation, Professor Pat Dodson, made this very point but in terms of the
audience he was addressing. He asked us to interrogate ourselves and our nation
with the following questions: Who are you? Why are you here? And how will you
get to where you want to go?
At the moment, without a visionary preamble and a rights-based constitution, we
are a disparate bunch of descendants of the colonised and colonisers and post-
colonisation peoples whose relationships with each other are dependent on power
rather than principle.
So who do we want to be? We the First and Second peoples of these lands and
waters? We who have either inherited the privileges and proceeds of colonisation
or have been dispossessed of all that, for millennia, the creator spirits have
provided?
It is now 10 years since 300,000 people walked for reconciliation in Melbourne
carrying banners that called for a treaty. It is 10 years since the Council for
Aboriginal Reconciliation, after the most consultative process in Australia's history,
delivered its final report calling for acknowledgement of the moral crimes of the
past, recognition of the special place of the First Peoples and the need for their
rights to be protected, action to address disadvantage and treaty-making to
address the unfinished business.
What we need is not only a preamble which constitutes a vision for all of us,
grounded in respect and recognition of the First Peoples, but a constitution free of
the implied racism of the past that protects all of us from the machinations of power
and a process to fix our relationships with each other.
Then our children will live in the hope that they will inherit a nation that is
honourable, principled and mature. A nation for all of its peoples.
Richard Frankland is an indigenous author, filmmaker and songwriter. Peter Lewis
is national president of Australians for Native Title and Reconciliation.
fkj
ray jackson
president
indigenous social justice association