Yankunytjatjara Elder Yami Lester is deeply disturbed by the exodus of Anangu from the APY Lands over the past several years. Big mining has been approved for the area but there are no jobs.. He says many families are not returning, causing a decline in the population of the lands. Lester who was awarded the Order of Australia medal in 1981 for service in the field of Aboriginal Welfare says,
“The governments are now impatient to mix Anangu into the mainstream, hundreds of kilometres from their homelands.
“As of March this year twenty-seven mining companies were given approvals to mine on APY Lands in the Far North of South Australia, and now mining companies and Anangu will be competing for clean water. We are surrounded by mineral wealth, but services are being withdrawn and people are leaving.”
“The dismantling and destruction of the APY Lands for domestic and international mining interests is a cruel and racist act,” said Yami Lester.
“The APY Land has half the number of Anangu and half the services that we had 10 years ago. Anangu can no longer find jobs on our lands when 10 years ago there were many jobs and many services like other communities our size. Services for APY Lands are now being situated a long way away, but there are no jobs in these towns for traditional Anangu – only homeless centres.”
“For every Anangu that is manoeuvered off the lands a white person gets a job, a car and a house. This latest hardship will provide new jobs for government workers, but no help is provided for those Anangu suffering from mental problems caused by despair– why?”
Yankunytjatjara Elder Yami Lester (OAM) at his home on Walatina APY Lands – where he find peace at the beginning of the Ngintaka dreaming
Alcohol and despair is still the genocide that is taking away our dignity and our will to look to the future.
These services must be returned to our communities,” he said.
“The APY EXECUTIVE in my opinion is not listening to what has been handed down since the time of creation. They seem confused about our choices and saying yes to the Government.“
“The South Australian Government sent their mining department to run after us for signatures over a decade ago and now they have secured our freehold homelands for mining. 27 mining companies are here now and the government is already taking the Umuwa administration to Adelaide.”
“Why is it that the South Australian Government tells us that the minerals on our land belong to the Crown and we have no rights to the water when the United Nations states otherwise? I would like the government to show me the papers where aboriginal people transferred any land, minerals or water to this government before they began selling it off,” said Mr. Lester.
“I don’t believe that the lawyers the government appoints for us are informing us about our rights because there are too many barriers that cause unequal outcomes for us and the Anangu are missing out. Now large numbers of APY people are being resettled by the government in places that are far away from the APY Lands, just as the big mining operations need our water.”
Assimilated Aboriginal people throughout Australia want us to sign the Australian Constitution. I think why should we? It is somebody else’s rules and when it comes to Sovereignty how does the Government dare say we don’t have it? “Our traditional lore is our law. We have our rules and legal systems and we want them acknowledged in our country,” he said.
“I’m worried for our sacred sites that are so important to the traditional Anangu. I do not believe that mining companies will respect our heritage. The connection of our people to our country will be lost within a generation.”
“We have shared our sacred sites for 50,000 years with Yankunytjatjara and Pitjantjatjara People; with Central Australia’s NT People, WA People and the Maralinga Tjarutja People and I don’t believe the mining companies and APY Executive are listening to the cultural importance of our traditional laws, now that big dollars are in sight.”
Yami Lester believes that the Anangu are becoming refugees in a land they will no longer recognize when mining has destroyed it.
“As an elder of the Yankunytjatjara and the APY Lands I state my absolute disappointment and disgust with the governments of South Australia and the Commonwealth. I say “NO” to mining in APY Lands and I say “NO” to homeless centres being built for our people away from their traditional homelands.”
HOW TO SECURE what has been handed down since the time of creation and ENDURED FOR 50,000 years OF ABORIGINAL SELF-GOVERNANCE so that the minerals and water of Aboriginal lands and the land are taken outside the rules of the Crown that disrespects the Letters Patents and returned HOME
ABORIGINAL LIBERATION MOVEMENT DRAFT#6 2013 For Descendant Elders Assembly – LETTERS PATENT FRAMEWORK AGREEMENT ON THE ABORIGINAL DESCENDANTS LETTERS PATENT PROVINCE (ALM Copy)
(Incorporating the Letters Patent PLEBISCITE AGREEMENT between the South Australian Government and the Aboriginal Liberation Movement on an independent plebiscite on Self-Government for Aboriginal Descendants)
DRAFT#6 – 11 January 2013 – For Descendant Elders Assembly
In the Name of the Creator Being.
FRAMEWORK AGREEMENT ON THE ABORIGINAL DESCENDANTS LETTERS PATENT PROVINCE
The South Australian Government (SAG) and the Aboriginal Liberation Movement (ALM) herein
referred to as the Parties to this Agreement,
HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS:
I. ESTABLISHMENT OF THE ABORIGINAL DESCENDANTS LETTERS PATENT PROVINCE
1. The Parties agree that the status quo is unacceptable and that the Aboriginal Descendants Letters Patent Province (ADLPP) shall be established to replace the dispossessed and Aboriginal land rights areas in the State of South Australia (SSA) that herein after is referred to as the “State”. The ABORIGINAL DESCENDANTS LETTERS PATENT PROVINCE (ADLPP) is the new autonomous political entity (NEP) envisaged as an original Province under the 1834 South Australian Foundation Act of the British Parliament effective from 15 August 1834 and pursuant to which the descendants’ land rights in South Australia originally were vested under the Letters Patent of 19 February 1836.
2. The government of the ADLPP shall have a ministerial form.
The Parties agree to entrench an electoral system suitable to a ministerial form of government. The electoral system shall allow democratic participation, ensure accountability of public officers primarily to their constituents and encourage formation of genuinely principled political parties. The electoral system shall be contained in the ADLPP Basic law to be implemented through legislation enacted by the ADLPP Government and correlated with State and as required, Federal, laws.
3. The municipalities and geographic area within its territory shall be the constituent units of the ADLPP.
The authority to regulate on its own responsibility the affairs of the constituent units is guaranteed within the limit of the ADLPP Basic Law. The principles already enjoyed by the local government units under existing laws shall not be diminished unless otherwise altered, modified or reformed for good governance pursuant to the provisions of the ADLPP local government code.
4. The relationship of the State and where required, Federal, Government with the ADLPP Government shall be asymmetric.
5. The Parties recognise ADLPP identity. Those who at the time of English plantation and colonization were considered natives or original inhabitants of South Australia and it’s adjacent islands and their descendants whether of mixed or of full blood shall have the right to identify themselves as ADLPP by ascription or self-ascription.
II BASIC LAW
1. The ADLPP shall be governed by a Basic Law.
2. The provisions of the ADLPP Basic Law shall be consistent with all agreements of the Parties.
3. The Basic Law shall reflect the ADLPP system of life and meet internationally accepted standards of governance
4. It shall be formulated by the ADLPP people and ratified by the qualified voters within its territory.
1. The State and where required, Federal, Government will have reserved powers, the ADLPP Government shall have its exclusive powers and there will be concurrent powers shared by the State and where required, Federal, Government and the ADLPP.
The Annex on Power Sharing, which includes the principles on intergovernmental relations, shall form part of this Agreement and guide the drafting of the Basic Law.
2. The State and where required, Federal, Government shall have powers on:
a) Defence and external security
b) Foreign policy
c) Common market and global trade, provided that the powers of the Aboriginal Descendants to enter into economic agreements already allowed under the State Constitution Act as consistent with the Australian Federal Constitution provided for in the Commonwealth of Australia Constitution Act shall be transferred to the ADLPP
d) Coinage and monetary policy
e) Citizenship and naturalization
f) Postal service
This list is without prejudice to additional powers that may be agreed upon by the Parties.
3. The Parties recognise the need to inaugurate the Aboriginal courts and strengthen other customary courts in the State and to extend their jurisdiction over cases. The ADLPP shall have competence over the Aboriginal and other customary justice systems. The supremacy of Aboriginal customary law and its application shall only be to Aboriginal Descendants comprising the Aboriginal citizenry of the ADLPP.
4. The ADLPP Basic Law may provide for the power of the ADLPP Government to consider and accredit customary Aboriginal cultural practice.
5. The ADLPP basic law shall provide for justice institutions in the ADLPP. This includes:
a. The competence of the Aboriginal and other customary justice systems, as well as the formal institutionalization and operation of their functions, and the expansion of the jurisdiction of the Aboriginal and other customary courts.
b. Measures to improve the workings of local civil courts, where necessary; and
c. Alternative dispute resolution systems.
6. The customary rights and traditions of Aboriginal peoples shall be taken into consideration by the ADLPP in the formulation of the justice system. This may include the recognition of Aboriginal processes as alternative modes of dispute resolution.
IV. REVENUE GENERATION AND WEALTH SHARING
1. The Parties agree that wealth creation (or revenue generation and sourcing) is important for the operation of the ADLPP.
2. Consistent with the ADLPP Basic Law, the ADLPP will have the power to create its own sources of revenues and to levy taxes, fees, and charges, subject to limitations as may be mutually agreed upon by the Parties. This power shall include the power to determine tax bases and tax rates, guided by the principles of devolution of power, equalization, equity, accountability, administrative simplicity, harmonization, economic efficiency, and fiscal autonomy.
3. The ADLPP will have the authority to receive grants and donations from domestic and foreign sources, and block grants and subsidies from external local municipal government, the State and where required, Federal, Government. Subject to acceptable credit worthiness, it shall also have the authority to contract loans from domestic and foreign lending institutions, except foreign and domestic loans requiring sovereign guaranty, whether explicit or implicit, which would require the approval of the State and where required, Federal, Government.
4. The ADLPP shall have a just and equitable share in the revenues generated through the exploration, development or utilization of natural resources obtaining in all the areas/territories, land, air, water or seas, covered by and within the jurisdiction of the ADLPP, in accordance with the formula agreed upon by the Parties.
5. The ADLPP may create its own auditing body and procedures for accountability over revenues and other funds generated within or by the region from external sources. This shall be without prejudice to the power, authority and duty of a tripartite ADLPP – State – Federal Commission on Audit that jointly may be agreed by the Parties to examine, audit and settle all accounts pertaining to the revenues and the use of funds and property owned and held in trust by any government instrumentality.
6. The details of revenue and wealth sharing arrangements between the State and as required, Federal, Government and the ADLPP Government shall be agreed upon by the Parties. The Annex on Wealth Sharing shall form part of this Agreement.
7. There shall be an intergovernmental fiscal policy board composed of representatives of the ADLPP and the State and where required, Federal, Government in order to address revenue imbalances and fluctuations in regional financial needs and revenue-raising capacity. The Board shall meet at least once in six (6) months to determine necessary fiscal policy adjustments, subject to the principles of intergovernmental relations mutually agreed upon by both Parties. Once full fiscal autonomy has been achieved by the ADLPP then it may longer be necessary to have a representative from the State or where required, Federal, Government to sit in the Board. Fiscal autonomy shall mean the generation and budgeting by the ADLPP of it’s own sources of revenue, its share of the internal revenue taxes and block grants and subsidies remitted to it by the State or where required, Federal, Government or any donor.
8. The parties agree that sustainable development is crucial in protecting and improving the quality of life of the ADLPP people. To this end, the ADLPP shall develop a comprehensive framework for sustainable development through the proper conservation, utilization and development of natural resources. For efficient coordination and assistance, the ADLPP legislative body shall create, by law, an intergovernmental body composed of representatives of the ADLPP and the State and when required, Federal, Government, which shall ensure the harmonization of environmental and developmental plans, as well as formulate common environmental objectives.
1. The core territory of the ADLPP shall be composed of: (a) the present geographical area of the State and any Federal Granted Land Rights, Aboriginal Lands Trust and Native Title areas: (b) the (Aboriginal) Municipal areas contiguous with or adjunct to granted land right and Lands Trust areas that opt for transition to the Territory upon municipal plebiscite along with such freehold areas as the Freeholders thereof elect to present for transition to the Territory; (c) all other contiguous areas where there is a resolution of the local municipal government unit instigated upon a petition of at least ten percent (10%) of the qualified voters in the area asking for their inclusion at least two (2) months prior to the conduct of the ratification of the ADLPP Basic Law and the process of delimitation of the ADLPP as mentioned in the next paragraph.
2. The Parties shall work together in order to ensure the widest acceptability of the ADLPP Basic Law as drafted by an agreed Transitory Commission and the core areas mentioned in the previous paragraph through a process of popular ratification among all the ADLPP within the areas for their adoption. An international third party monitoring team shall be present to ensure that the process is free, fair, credible, legitimate and in conformity with international standards.
3. Areas which are contiguous and outside the core territory of the ADLPP where there are substantial populations of Aboriginal Descendants may opt at anytime to be part of the territory upon petition of at least ten percent (10%) of the residents and approved by a majority of qualified voters in a plebiscite.
4. The disposition of internal and territorial waters shall be referred to in the Annexes on Wealth and Power Sharing.
5. Territory refers to the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain and the atmospheric space above it. Governance shall be as agreed upon by the parties in this agreement and in the sections on wealth and power sharing.
VI. BASIC RIGHTS
1. In addition to basic rights already enjoyed, the following rights of all citizen residing in the ADLPP bind the legislature, executive and judiciary as directly enforceable law and are guaranteed:
a. Right to life and to inviolability of one’s person and dignity;
b. Right to freedom and expression of religion and beliefs;
c. Right to privacy;
d. Right to freedom of speech;
e. Right to express political opinion and pursue democratically political aspiration;
f. Right to seek constitutional change by peaceful and legitimate means;
g. Right of women to meaningful political participation, and protection from all forms of violence;
h. Right to freely choose one’s place of residence and the inviolability of the home;
i. Right to equal opportunity and non-discrimination in social and economic activity and the public service, regardless of class, creed, disability, gender and ethnicity;
j. Right to establish cultural and religious associations;
k. Right to freedom from religious, ethnic and sectarian harassment; and
l. Right to redress of grievances and due process of law.
2. Vested property rights shall be recognized and respected. With respect to the legitimate grievances of the ADLPP people arising from any unjust dispossession of their territorial and proprietary rights, customary land tenure or their marginalization shall be acknowledged. Whenever restoration is no longer possible, the State and where required, Federal, Government and the Government of the ADLPP shall take effective measures for adequate reparation collectively beneficial to the ADLPP people in such quality, quantity and status to be determined mutually.
3. Aboriginal people’s rights shall be respected.
4. The State and where required, Federal, Government shall ensure the protection of the rights of the Aboriginal people residing outside the territory of the ADLPP and undertake programs for the rehabilitation and development of their communities. The ADLPP Government may provide assistance to their communities to enhance their economic, social and cultural development.
VII. TRANSITION AND IMPLEMENTATION
1. The Parties agree to the need for a transition period and the institution of transitional mechanisms.
2. The Parties agree to adopt and incorporate an Annex on Transitional Arrangements and Modalities, which forms a part of this Framework Agreement.
3. There shall be created a Transition Commission through an Order in Executive Council and supported by State and where required, Federal, Parliamentary Resolutions.
4. The functions of the Transition Commission are as follows:
a. To work on the drafting of the ADLPP Basic Law with the provisions consistent with all the agreements entered and that may be entered into by the Parties;
b. To work on proposals to amend the South Australian and where required, Federal, Constitution for the purpose of accommodating and entrenching in the relevant constitution the agreements of the Parties whenever necessary without derogating from any prior Reconciliation agreements;
c. To coordinate whenever necessary development programs in ADLPP communities in conjunction with an agreed ADLPP Development Agency and ADLPP Leadership and Management Institute and other agencies.
5. The Transition Commission shall be comprised of fifteen (15) members all of whom are Aboriginal Descendants. Seven (7) members shall be selected by the SAG and eight (8) members, including the Chairman, shall be selected by the ALM.
6. The Transition Commission will be independent from the Anangu Pitjantjatjara Yankunytjatjara (APY) and Maralinga Tjarutja (MT) Lands Councils and Aboriginal Lands Trust and other government agencies. The SAG, and as may be required the Federal Government, shall allocate funds and provide other resources for its effective operation. All other agencies of government shall support the Transition Commission in the performance of its tasks and responsibilities until it becomes functus Officio and cease to exist.
7. The draft ADLPP Basic Law submitted by the Transition Commission shall be certified as a constitutional bill by the Governor.
8. Upon promulgation and ratification of the Basic Law, which provides for the creation of the ADLPP Transition Authority, the APY and MT Lands Councils and Aboriginal Lands Trust and other government agencies in Aboriginal Affairs are deemed abolished.
9. All devolved authorities shall be vested in the ADLPP Transition Authority during the interim period. The ministerial form and Cabinet system of government shall commence once the ADLPP Transition Authority is in place. The ADLPP Transition Authority may reorganize the bureaucracy into institutions of governance appropriate thereto.
10. The ADLPP Transition Authority shall ensure that the continued functioning of government in the area of autonomy is exercised pursuant to its mandate under the Basic Law. The ADLPP Transition Authority will be immediately replaced in 2016 upon the election and assumption of the members of the ADLPP legislative assembly and the formation of the ADLPP Government.
11. There will be created a third party monitoring team to be composed of international bodies, as well as domestic groups to monitor the implementation of all agreements.
12. At the end of the transition period, the SAG and ALM Province Negotiating Panels, together with the Jointly Designated Facilitator and the Third Party Monitoring Team, shall convene a meeting to review, assess or evaluate the implementation of all agreements and the progress of the transition. An ‘Exit Document’ officially terminating the Province negotiation may be crafted and signed by both Parties if and only when all agreements have been fully implemented.
13. The Negotiating Panel of both Parties shall continue the negotiations until all issues are resolved and all agreements implemented.
1. The Parties agree that the normalization is vital to the Reconciliation process. It is through normalization that communities can return to conditions where they can achieve their desired quality of life, which includes the pursuit of sustainable livelihoods and political participation within a peaceful deliberative society.
2. The aim of normalization is to ensure human security in the ADLPP. Normalization helps build a society that is committed to basic human rights, where individuals are free from fear of violence or crime and where long-held traditions, cultural heritage and value continue to be honoured. Human insecurity embraces a wide range of issues that would include violation of human and civil rights, social and political injustices and impunity.
3. As a matter of principle, it is essential that policing structure and arrangement are such that the police service is professional and free from partisan political control. The police system shall be civilian in character so that it is effective and efficient in law enforcement, fair and impartial as well as accountable under the law for its action, and responsible both to the State and where required, Federal, Government and the ADLPP Government, and to the communities it serves.
4. An independent commission shall be organized by the Parties to recommend appropriate policing within the area. The commission shall be composed of representatives from the parties and may invite local and international experts on law enforcement to assist the commission in its work.
5. The ADLPP shall undertake a graduated program for commissioning of a policing force so that they are put into operational use.
6. In a phased and gradual manner, all law enforcement functions shall be transferred from the SAPOL to the ADLPP policing force. The Parties agree to continue negotiations on the form, functions and relationship of the ADLPP police force taking into consideration the results of the independent review process mentioned in paragraph 4.
7. The Joint Coordinating Committees on Cessation of Dispossession (JCCCD) as well as the Ad Hoc Joint Action Group (AHJAG) with the participation of the International Monitoring Team (IMT) shall commence to monitor the agreement until the full commissioning of the ADLPP policing forces. These coordinating mechanisms, as agreed, shall be the basis for the creation of a Joint Normalization Committee (JNC) to ensure the coordination between the Government and incoming ADLPP policing forces, and through which the ADLPP shall assist in maintaining peace, order and good government in the area of the ADLPP until the commissioning of ADLPP policing shall have been fully completed.
8. Both Parties commit to work in partnership for the reduction of crime, violence and control of firearms in the area and the disbandment of SAPOL oversight of policing.
9. The details of the normalization process and timetables for commissioning shall be in an Annex on Normalization and shall form part of this Agreement.
10. The Parties agree to intensify development efforts for rehabilitation, reconstruction and development of the ADLPP, and institute programs to address the needs of ALM proponents, internally displaced Aboriginal and other Indigenous persons, and poverty stricken communities.
11. The Parties recognize the need to attract multi-donor country support assistance and pledges to the normalization process. For thispurpose, a Trust Fund shall be established through which urgent support, recurrent and investment budget cost will be released withefficiency, transparency and accountability. The Parties agree to adopt criteria for eligible financing schemes, such as, priority areas ofcapacity building, institutional strengthening, impact programs to address imbalances in development and infrastructures, andeconomic facilitation for return to normal life affecting proponent and non-proponent elements of the ALM, Aboriginal peoples,women, children, and internally displaced persons.
12. The Parties agree to work out a program for transitional justice to address the legitimate grievances of the ADLPP people, correct historical injustices, and address human rights violations.
1. This Agreement shall not be implemented unilaterally.
2. The Parties commit to work further on the details of the Framework Agreement in the context of this document and complete a comprehensive agreement by the end of the year.
Letters Patent PLEBISCITE AGREEMENT
between the South Australian Government and the Aboriginal Liberation Movement on an independent plebiscite on Self-Government for the Aboriginal Descendants
DRAFT #6 – Adelaide, *** December 20**
between the South Australian Government and the Aboriginal Liberation Movement on an independent plebiscite on Self-Government for the Aboriginal Descendants
The South Australian Government and the Aboriginal Liberation Movement have agreed to work together to ensure that an independent plebiscite on Self-Government for the Aboriginal Descendants can take place.
The parties are agreed that the plebiscite should:
• have a clear legal base;
• be legislated for by the South Australian Parliament;
• be conducted so as to command the confidence of all Australian parliaments, governments and people; and
• deliver a fair test and a decisive expression of the views of the Aboriginal Descendants and a result that everyone will respect.
The parties have agreed to promote a single question plebiscite on Aboriginal Self-Government to be held before the end of 20*. The question will put it beyond doubt that there may be an Aboriginal Parliament to legislate for the Self-Government of the Aboriginal Descendants.
It will then be for the Aboriginal Government to promote legislation in the subsequent Aboriginal Parliament for the implementation of an independent Aboriginal Province. The parties are agreed that the plebiscite should meet the highest standards of fairness, transparency and propriety, informed by consultation and independent expert advice. The plebiscite legislation of the South Australian Parliament will set out:
• the date of the plebiscite;
• the franchise;
• the wording of the question;
• rules on campaign financing; and
• other rules for the conduct of the plebiscite.
The details of the agreement between the parties are set out in the following
memorandum and draft Order, which form part of this agreement.
Premier Aboriginal Liberation Movement
Adelaide, ** December 20**
MEMORANDUM OF FRAMEWORK NEGOTIATIONS AGREEMENT
(to be negotiated in concert with inter partes discussions on the Letters Patent Framework Agreement between Aboriginal Liberation Movement and Government of South Australia)
WHEREAS the Aboriginal Peoples of South Australia assert that the certain territory has been their traditional territory since time immemorial;
WHEREAS the Council of Aboriginal Peoples represent the plurality of Aboriginal peoples in South Australia, including but not limited to the Ngarrindjeri, the Kaurna ……;
WHEREAS in 1834 the Crown proposed to establish a “province of South Australia” to be established without notice to its Indigenous [JV1]inhabitant proprietors, to be “open to purchase by British subjects” upon its establishment, the Crown passed the South Australia Act 1834 declaring certain lands “waste and unoccupied”
[s.6, South Australia Act 4&5 William IV, cap.95,]; and,
WHEREAS in December 1835 in London, the South Australian Colonizing Commission raised before the promoters of the said Province “this declaration of the legislature as absolutely rebutting, the title of any Indigenous inhabitants of the proposed Colony to the occupation of the Soil”
WHEREAS on 6 January 1836 in London, the South Australian Colonizing Commission agreed to submit “arrangements for purchasing the lands of the natives” of “the province of South Australia” to the Colonial Office at the request by letter of the Secretary of State for the Colonies, Lord Glenelg; and,
WHEREAS in their First Report to the Parliament of the United Kingdom the South Australian Colonizing Commission agreed that “the locations of the colonists will be conducted on the principle of securing to the natives [sic] their proprietary right to the soil’- so as to require cession of any territory to be “perfectly voluntary”
[First Annual Report of the South Australian Colonizing Commissioners, House of Commons, 1836 Sessional Papers 36 No. 491, 39 No. 426, pp. 8-9]; and,
WHEREAS the said arrangements proposed that the Crown of the United Kingdom of Great Britain allow the opening for public sale in England of “those lands uninhabited or not in the occupation and enjoyment of the Native race” in “the province of South Australia”; and,
WHEREAS the said arrangements proposed that
“should the Natives occupying or enjoying any lands comprised within the surveys directed by the Colonial Commissioner not surrender their right to such lands by a voluntary sale”; Then in that case the Colonizing Commissioners have two duties, namely: ONE – “to secure to the Natives the full and undisturbed occupation or enjoyment of those lands”, and TWO – to afford them legal redress against depredations and trespasses”; and,
WHEREAS by Letters Patent of 1836 issued to Governor Hindmarsh in London, the Crown of the United Kingdom of Great Britain purported to allow the Colonizing Commissioner to begin embarking British subjects upon certain commercial terms on ships and sail for South Australia, on the condition
“that nothing in these Letters Patent contained shall effect or be construed to effect the rights of any Indigenous Natives of the said province to the actual occupation or enjoyment in their persons or in the persons of their descendants of any lands now actually occupied or enjoyed by such Natives”
[C.O. 13/3]; and
WHEREAS clause 34 of the Instruction to the Resident Colonizing Commissioner guaranteed that “no lands which the natives may possess in occupation or enjoyment be offered for sale until previously ceded by the natives” [The Select Committee on the Aborigines, Report, 19 September 1860, Legislative Council of the Parliament of South Australia, p.5]; and,
WHEREAS clause 35 of the Instructions to the Resident Colonizing Commissioner required that
“the aborigines are not disturbed in the enjoyment of the lands over which they may possess proprietary rights, and of which they are not disposed to make a voluntary sale” and required “evidence of the faithful fulfilment of the bargains or treaties which you may effect with the aborigines for the cessation of lands”
WHEREAS the United Nations recognizes that the inherent right of self-government is an existing right of Indigenous peoples affirmed by Article 1 of the ICCPR, and Article 3 of the Draft UN Declaration on the Rights of Indigenous Peoples;
WHEREAS the Aboriginal Peoples, Australia and SA agree to negotiate on a government to government basis within the framework of the Constitution of Australia to form the United South Australia pursuant to the Constitution of the United South Australia;
WHEREAS the Parties agree to negotiate in order to set out land, resources, and governance rights to apply in the SA territory;
WHEREAS an Aboriginal agreement is in the interest of all South Australians; and
WHEREAS the Parties intend to conduct their negotiations in accordance with this framework agreement;
NOW THEREFORE, the Parties agree as follows:
§ ‘Chief Negotiator’ means the person designated by each party as the Chief Negotiator;
§ ‘Certainty’ means the objective of the provisions in the Framework Constitution which clarify rights, title, roles, responsibilities and jurisdictions of the parties.
§ ‘Council of Aboriginal Peoples’ means the Council elected to lead the negotiations on behalf of Aboriginal South Australians.
§ ‘Convention Agenda’ means the collection of provisions initialled by the Chief Negotiators, and signed by the Parties, referred to in 5.2.
§ ‘Framework Constitution’ means the land, resources and governance provisions accepted by the Parties which may be given effect through a variety of mechanisms including the Draft Constitution, legislation, contracts and memoranda of understanding.
§ ‘Aboriginal territory’ means the traditional land use area as asserted to by the Aboriginal peoples
§ ‘The Parties’ means the Council of Aboriginal Peoples and the SA Government.
The objective of negotiations is to complete a Framework Constitution:
(a) Implementing a federal state with two constituent provinces with independent governments which may:
i. make laws and deliver programs and services;
ii. be a public government based internal province laws and customs and other Australian laws and customs;
iii. be the primary government for the delivery of programs and services to residents of province territory within the United South Australia;
(b) describing intergovernmental relationships and jurisdictions;
(c) providing for certainty and clarity of rights respecting land, resources and governance; and
(d) providing for the use, management and conservation of land, water and other resources, including wildlife, fish and their habitat in the Aboriginal territory.
3.1 Prior to beginning negotiations on any subject matter, the Parties will make a presentation of their interests. Roles of the Parties will be determined on the basis of the subject matter and the interests presented.
3.2 The Parties acknowledge that the role of SA will vary depending on the nature of the subject matter and area of jurisdiction or authority being discussed.
4.1 The following are subjects which the Parties intend to address in their negotiations. The list is not intended to be restrictive and each of the Parties may raise a broad range of topics for negotiations under each subject. Further, any party may raise for discussion any subject matter in addition to the matters listed:
i. Settlement area and tenure of land (Aboriginal territory);
ii. Legal status and capacity of Province governments;
iii. Constitution of Province governments;
iv. Models of governance;
v. Intergovernmental relationships;
vi. Province governments liability;
vii. Natural resources management, including land use planning;
viii. Environmental matters;
x. Wildlife harvesting and management;
xi. Fisheries harvesting and management;
xii. Education and training;
xiii. Social services;
xiv. Child welfare, guardianship and adoption;
xvii. Heritage resources;
xviii. Enforcement and adjudication of laws;
xx. Wills and estates;
xxi. Economic development;
xxiii. Resource revenues, including resource royalties;
xxiv. Aboriginal language and culture;
xxvi. Public Works;
xxvii. Dispute resolution;
xxviii. Financial payments;
xxix. Review and amendment process;
xxxi. General provisions;
xxxii. Clarification of rights (certainty in relation to s 35 rights);
xxxv. National Parks;
xxxvi. Protected areas;
xxxvii. Constitutional protection for elements of the final agreement;
xxxviii. Fiscal arrangements for self-government;
xxxix. Implementation and transitional arrangements;
xl. Overlaps and rights of other Aboriginal people; and
4.2 This framework agreement does not constitute a commitment by any party to reach agreement on all or any of the subject matters in 4.1, nor to agree to all or any provisions proposed in relation thereto.
5.1 Initialling process
(a) To signify that negotiations with respect to a subject matter are substantially complete, the Chief Negotiators shall initial the provisions.
(b) The Aboriginal Chief Negotiator will not initial provisions until instructed to do so by the CAP.
(c) The initialled provisions may be reconsidered and amended and, if amendments are agreed to, the process in (a) will apply to the amended provisions.
(d) Except for amendments which are minor or technical, the initialling of provisions shall be done at a meeting in the Aboriginal territory.
5.2 Approval of the Framework Negotiations
(a) Once all the provisions have been initialled, the Chief Negotiators may review and organize the package for legal and technical review and possible amendments.
(b) When the process in (a) is complete, the Chief Negotiators will initial the Framework Negotiations. They shall submit it to their principals and recommend its acceptance by them.
(c) The Framework Negotiations will be complete once it has been accepted and signed by the Parties.
5.3 Approval of the Framework Constitution
(a) After the Framework Negotiations has been completed, the Parties will work towards completion of the Framework Constitution.
(b) The Framework Constitution will be completed once it has been ratified by the Parties as agreed.
6.1 The Parties will use their best efforts to reach agreement with respect to the subjects listed in section 4 within five years from the date of execution of this Framework.
6.2 Upon approval of the Framework Negotiations, the Parties will negotiate towards a Framework Constitution based upon the Framework Negotiations.
6.3 The Parties will use their best efforts to reach a Framework Constitution within two years from the date of execution of this Framework.
7.1 The Parties agree that the negotiations will take place in an open and transparent manner.
7.2 The Parties agree that the public should be knowledgeable and well informed regarding the general status, aims, objectives and progress of the negotiations. To that end, the Parties will together develop and implement a program of public information and consultation and will attend meetings with such individuals, groups or organizations as they may jointly agree will assist in the process of building public consensus.
7.3 The Parties may, separately, carry out such additional consultation and communications initiatives as they see fit, including to obtain a broad range of input and consensus.
7.4 Notwithstanding the desire to keep the public informed, the Parties may agree that details of positions and documents exchanged or developed by the Parties during negotiations will be confidential. In such an event those details or documents shall not be disclosed except as required by law.
7.5 The Parties commit to educating each other throughout the process of negotiations.
8.1 The Parties commit to a process that fosters an open exchange of ideas, the frank discussion of interests that underlie positions and the joint analysis of problems. As a general principle, informal discussions are encouraged and statements, whether written or oral, will be without prejudice and will not be attributable to the party making them. It is recognized that from time to time statements may be qualified as being positions.
8.2 The Parties agree that it is desirable that the negotiations proceed at a pace which allows for the people of the Aboriginal territory, and particularly the Elders, to remain fully informed and involved in the process. To this end, while the Parties agree that the negotiations should proceed as expeditiously as possible, they also agree that the negotiations may proceed in stages toward agreement on priority agenda items.
8.3 Subject to 8.2, the Chief Negotiators may establish ad hoc working groups to research and report on specific issues or concerns as they deem fit. Working groups may be established to address issues which have particular importance to a particular community or communities including boundary and overlap issues. Any such working groups will report to the main negotiations table.
8.4 Unless otherwise agreed to by the Chief Negotiators, the negotiating sessions will take place in the Aboriginal territory.
(a) When sessions are held in the Aboriginal territory, the CAP willl host the negotiations;
(b) If sessions are held outside the Aboriginal territory, SA will host the negotiations;
8.5 Unless otherwise agreed to by the Chief Negotiators, the negotiating sessions will not be formally chaired.
8.6 Should an impasse in negotiations be reached, any party may request facilitation. The Parties shall equally share the costs of facilitation.
9.1 SA undertakes to provide funding to the CAP to finance the costs of their participation in the negotiations according to Australia’s funding policies and initiatives related to land, resources and self-government negotiations and subject to yearly appropriations of funds by Parliament for this purpose. The budget for the CAP’s participation will be established on submission of annual joint work plans that set out mutually-agreed upon milestones.
9.2 Before the Framework Constitution is completed an implementation plan shall be developed by the Parties that will provide bridge funding for specific activities that will occur after the signing of the Framework Constitution, but before it comes into effect.
10.1 Nothing in this framework agreement is to be interpreted as creating, recognizing or denying rights or obligations, including funding obligations, on the part of any of the Parties.
10.2 All negotiations pursuant to this framework agreement and all related documents, except for the Framework Constitution once it has been brought into effect, are without prejudice to the legal position taken by the Parties in any legal proceeding and shall not be construed as admissions of fact or liability.
10.3 This framework agreement is not legally binding and is without prejudice to the legal positions of the Parties.
This framework agreement may be amended with the written consent of the Parties.
Date: Thu, 12 Sep 2013 16:19:07 +0930
Subject: RE: Great article Yami Lester this week’s Coober Pedy Regional Times