House debates

Monday, 19 June 2006

Aboriginal Land Rights (Northern Territory) Amendment Bill 2006

Second Reading

Debate resumed from 31 May, on motion by Mr Brough:

That this bill be now read a second time.

5:47 pm

Photo of Warren SnowdonWarren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for Northern Australia and Indigenous Affairs) Share this | | Hansard source

We have just seen another travesty of democracy in this place with the government gagging the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006. I know that Aboriginal people who are my constituents in the Northern Territory will be shocked and amazed that this government would not allow a proper debate for this very important piece of legislation—a historical debate, as it will be. I will move a second reading amendment at the end of this speech.

A week or so ago, I visited a number of Indigenous communities across the Top End of the Northern Territory. In each of these communities, I held meetings with traditional owners, council members and other individuals. Those meetings were held right through Arnhem Land. At those meetings, people expressed their frustration, their anguish, their concern and their hurt at the way the Commonwealth government has imposed its agenda for change without any reference to them and at the way they have been demonised by the media, largely at the behest of the government and without any opportunity to properly respond or have their voices heard. They are deeply concerned that the government feels absolutely no compulsion to sit down and talk with them, let alone to consult or negotiate with them; that the government shows them no compassion; that it shows no knowledge or understanding of their cultural values or priorities; and that it shows no knowledge or understanding of the cultural differences that exist across Indigenous Australia and of the different historical experiences that different communities have suffered.

David Martin, a fellow of the Centre for Aboriginal Economic Policy Research at the Australian National University, has spoken about the ‘new direction’ in federal Indigenous affairs policy. This is quite a lengthy extract, but I think it gives a very good description of where we are in the context of debating Indigenous affairs policies in this country at the moment. He argued:

Much of the support for the new policies is predicated on the ... assumption that Indigenous people naturally desire the lifestyle and values which correlate with economic integration, or that if they don’t, a carrot and stick approach can be used to achieve it. However, the evidence shows that while many ... do indeed seek to take advantage of better economic opportunities, and while cultural change is a feature of all societies ... there is a widespread resistance amongst Indigenous people to what they see as attempts to assimilate them into the dominant society—

economically and socially. He went on to say:

... my unease is because the debate is conducted with such a vitriolic and unnecessary demonisation of what has gone before ... with a complete disregard for what I would see as the lessons of history in Aboriginal affairs; and most importantly with an all too common disregard for the diverse views, values, and aspirations of the Aboriginal people at whom the new policy apparatus and its ideological underpinnings are directed.

Except when the latest instance of horrific dysfunctionality in the Aboriginal world is brought forward to illustrate the need for profound change, or when the views of the new Aboriginal political elite are given prominence in the legitimating discourse around proposed policy directions, Aboriginal people themselves are conspicuously absent from the discussion ... the new policy frameworks ... are essentially empty vessels, if rather chipped and cracked ones, into which the new array of more socially functional values is to be poured.

From my own observations and experience I think that is a very apposite and fair comment on where we are currently, and it expresses the frustration felt by so many I have spoken to. It is important that there is an appreciation of this backdrop as we debate proposals to amend the Aboriginal Land Rights (Northern Territory) Act 1976, which has now been operating for 30 years. The land rights act flowed as a direct result of the Woodward royal commission, initiated by the Whitlam government in 1973 to inquire and report into ‘the appropriate means to recognise and establish the traditional rights and interests of the Aborigines in and in relation to Land and to satisfy in other ways the reasonable aspirations of the Aborigines’ rights in or in relation to Land.’ It is worth reflecting for a moment on five things that Justice Woodward identified as the aims of recognising Aboriginal land rights. He said:

  • The doing of simple justice to a people who have been deprived of their land without their consent and without compensation.
  • The promotion of social harmony and stability within the wider Australian community by removing, as far as possible, the legitimate causes of complaint of an important minority group within that community.
  • The provision of land holdings as a first essential for people who are economically depressed and who have at present no real opportunity of achieving a normal Australian standard of living.
  • The preservation, where possible, of the spiritual link with his own land which gives each Aboriginal his sense of identity and which lies at the heart of his spiritual beliefs.
  • The maintenance and, perhaps, improvement of Australia’s standing among the nations of the world by demonstrably fair treatment of an ethnic minority.

Justice Woodward said further:

These aims could be best achieved by:

  • Preserving and strengthening all Aboriginal interests in land and rights over land which exist today, particularly all those having spiritual importance.
  • Ensuring that none of these interests or rights are further whittled away without consent, except in those cases where the national interest positively demands it—and then only on terms of just compensation.
  • The provision of some basic compensation in the form of land for those Aborigines who have been irrevocably deprived of the rights and interests which they would otherwise have inherited from their ancestors, and who have obtained no sufficient compensating benefits from white society.
  • The further provision of land, to the limit which the wider community can afford, in those places where it will do most good, particularly in economic terms, to the largest number of Aborigines.

The Whitlam government drafted the land rights legislation, based on Justice Woodward’s report. The legislation was ultimately passed by the Fraser government after only marginal change. Today this act still reflects the values described by Woodward, despite the fact that it was reviewed by Justice Toohey in 1983 and substantially amended as a result. The Howard government commissioned a further review of the act in 1997 by John Reeves QC. The Reeves review was referred to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs in December 1998 for consideration and report. The standing committee reported in 1999, after extensive consultation and after considering written submissions. The committee overwhelmingly rejected the recommendations of the Reeves review. It is worth noting, however, that the Commonwealth government is yet to respond substantively to the standing committee’s report entitled Unlocking the Future. Significantly, the report was supported unanimously by the committee members from both sides of the parliament.

In the context of the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 before us it is worth noting that the first and primary recommendation of Unlocking the Future is:

The Aboriginal Land Rights (Northern Territory) Act 1976 (‘the Act’) not be amended without:

  • traditional Aboriginal owners in the Northern Territory first understanding the nature and purpose of any amendments and as a group giving their consent; and
  • any Aboriginal communities or groups that may be affected having been consulted and given adequate opportunity to express their views.

Today we are considering proposals to amend the act, some of which could be seen to have been agreed by Aboriginal people in the Territory through the land councils as a result of a package of proposals to amend the land rights act agreed to with the Northern Territory government. In this sense, the package could be seen to have the consent of traditional owners. This package took a number of months to negotiate. Significantly, it has the support of the mining industry, whose principal interest was with proposals to amend part IV of the act, which deals with mining.

Most of the other amendments proposed have not been discussed, let alone negotiated, with traditional owners or other Aboriginal people living on Aboriginal land or their representative organisations, the land councils. The process leading to the joint position agreed by the Northern Territory government and the land councils showed how parties working together, showing mutual respect, can arrive at a negotiated outcome. Unfortunately, the Northern Territory government stepped outside of this framework in developing and submitting to the Commonwealth proposals for amendments to section 19 of the act to accommodate a proposal for the leasing of Aboriginal townships. These proposals have been quickly picked up, holus-bolus, by the Commonwealth government and are a key feature and component of the package of amendments before us.

The failure of both the Northern Territory government and the Commonwealth government to seek informed consent for these and other proposals that did not form part of the package of agreed proposals is an indictment of the approach of both governments. While individual traditional owner groups or traditional owners may give their support to the proposals to amend section 19, I note that in the bill before us their consent would in any event be required for those lease proposals to proceed.

However, these proposals have been put into this legislation without any discussion or understanding of them by Aboriginal people, whether or not they are traditional owners, across the Northern Territory, let alone their agreement. I note also that the federal government is already using the proposals contained in these amendments as leverage in dealing with Indigenous communities in the Northern Territory. In effect, they are making infrastructure and other resources to Indigenous communities conditional upon these communities entering into agreements, and presumably traditional owners also agreeing that they enter into lease arrangements, as envisaged by the legislation, as a condition of those resources being made available to the community.

We have seen this only last weekend, with the minister announcing comprehensive—and welcome—initiatives for additional housing and other infrastructure, including the presence of a police station for Galiwinku, while clearly indicating that in order to secure investment the community will need to agree to the new land leasing proposals. Instead of a partnership based on mutual respect and trust, it is one based on the power of the purse. The Commonwealth is imposing its will as to how Indigenous people use and deal with their land in order to obtain the benefits that other Australians see as their rights as citizens: access to reasonable housing, health, education and other services. Nowhere else in the Australian community would this sort of proposition be put, nor would it be accepted.

The minister may well argue that, on providing information, the traditional owners and communities accepted his proposals. This begs the question as to whether those Aboriginal Australians were given the option of considering other proposals or indeed other arguments. What the minister fails to clearly understand is the obligation of the relevant land councils to do whatever is necessary and appropriate to obtain the consent of traditional owners for any agreement to finally proceed. The minister apparently regards himself as exempt from any such requirement.

What is apparent is that the proposals to amend section 19 have not been well enough thought through and may have some serious downsides which should be brought to the attention of Aboriginal people. For example, the proposal includes the proposition of capping rental payments for developments on Aboriginal land leased to an NT government entity at five per cent of the improved capital value of the land. It is arguable that imposing a cap of five per cent in this way proposed by the legislation may well be racially discriminatory. In any event, no other owners of a freehold title or its equivalent have arbitrary limits imposed on the economic rent that they can negotiate for the use or sale of that land.

The proposed amendments also make provision for the surveying and administrative costs of introducing the leasing scheme to be made out of the Aboriginals Benefit Account—the mining royalty equivalents coming out of consolidated revenue for the use and benefit of Aboriginal Territorians. The Commonwealth government has earmarked $15 million from the ABA for the costs of surveying townships and administrative expenses. The Northern Territory government has estimated that the task of surveying one township alone will be $1 million, and up to $100 million in total. This amount of money could not be taken from the ABA without undermining its viability. However, beyond the Commonwealth’s failure to do the maths on this is the fact that the ABA is effectively being used to pay the rent and costs of the Northern Territory government on Aboriginal land. It is also true that the ABA is now being used as a slush fund for the Commonwealth minister’s own priorities—not necessarily the priorities of Indigenous Territorians who are supposed to be the ones making decisions about how this money will be spent.

Not only is this inherently unfair but also it raises the significant question of the NT and Commonwealth governments fettering the ability of Indigenous Australians from obtaining appropriate economic rent for the use of their land for residential and commercial purposes and ask them to pay full tote odds for that privilege through the ABA. Significantly, though, the fact remains that, even if you believe this is a good idea and is without flaws, there has been no extensive consultation with—and no prior consent given from—Indigenous communities or traditional owners about its impact, whatever the government might believe and whatever might be said to the minister. Notwithstanding these concerns, there is merit in developing a model which will provide Aboriginal Australians with the opportunity to purchase housing on communities. Of course, Labor is happy to support any Australian who aspires to buy their own home. However, the situation we are confronted with here is not about home purchase; it is about housing provision and the regularising of the arrangements between the housing providers and the traditional owners.

We should all be aware of the chronic housing shortage faced by Indigenous Australians across the continent, but particularly by Aboriginal people in the Northern Territory. In the Northern Territory alone, there is estimated to be a $1 billion housing shortfall, and I am told that nationally the figure is approaching $3 billion. This housing shortage goes to the question of poor health outcomes, poor educational outcomes and, ultimately, the lack of employment and life opportunities. It is a great indicator of the level of poverty being suffered by Aboriginal Australians in the Northern Territory and across this nation and it is an absolute indictment on successive governments at all levels.

In the context of the Aboriginal Land Rights (Northern Territory) Act 1976, there have been no attempts by the housing providers to regularise the arrangements for the provision of housing by seeking leases for the land on which the houses have been built. Historically, the Northern Territory government have relied on sections 14 and 15 of the act. These sections allow the Northern Territory government, where they have been using or occupying Aboriginal land before the enactment of the Aboriginal land rights act, to continue using that land for as long as they require. Where that use of land is for a community purpose—for housing, education or police—the use is rent free. Nor am I aware that there has been any request by any person for a lease of land to build for residential purposes.

This goes to the heart of the question, which is the need for governments to accept their responsibilities to negotiate with traditional owners over lease arrangements for residential purposes and to provide sufficient resources to address the housing crisis in Indigenous communities generally across Australia. While the government’s proposals for private home ownership may be attractive for a very small minority, the simple truth of the matter is that home ownership may not be an option for the bulk of Aboriginal Australians living in remote communities—if for no other reason than the fact that the average individual income for Indigenous people living in remote areas at the 2001 census was a measly $13,460.

While we acknowledge the government’s intention in relation to these issues, we say to them: this is not the main game and this is not the way to proceed. Nor is the main game the leasing of whole townships to a Northern Territory entity which will then have the responsibility for all dealings in that land, including the provision of subleases for commercial and other purposes, because in the end this could have the effect of alienating the Indigenous estate from effective Indigenous control.

It is also worth noting that the Northern Territory government does not need the amendments sought in this legislation to deal with Aboriginal townships not on Aboriginal land. The fact is they have the legislative authority to do this for communities such as Kalkaringi, Alpurrurulam, Apatula and others which are not on Aboriginal land yet they have not done so. You would have thought that if this move was of such significance for the feasibility of townships it would have been put in place at least as a pilot in these communities some time ago when there was no requirement for Commonwealth legislation. It is no surprise that that has not been the case.

I also note that just last week the Northern Territory government proposed a ‘new way’ of addressing the housing crisis on Aboriginal communities, involving community, government and private sector finance. I support that initiative. There needs to be a partnership between government, the private sector and Aboriginal communities if we are ever to address the chronic shortage of Indigenous housing. But the methods proposed by the Commonwealth government will not attain that objective. There are other models which do not require traditional owners giving up their right to control commercial development on their land and would provide ample capacity for dealing in residential property.

As with the leasing arrangements, the proposals in the legislation before us which go to the question of the creation of new land councils and delegations from current land councils, as well as the proposals for the funding of new land councils, have also not been the subject of any extensive discussion, consultation, negotiation or agreement with traditional owners, other Aboriginal people or the land councils in the Northern Territory. Together, they clearly undermine the integrity of the land rights act and arguably will be an impediment to the rational, orderly development of economic opportunities on Aboriginal land in the Northern Territory. These proposals are particularly pernicious in their treatment of land councils and are clearly designed to revisit the proposals in the Reeves review to establish new land councils—rejected by the HORSCATSIA inquiry.

Some of the other proposals which have not been negotiated with traditional owners but which are a major cause of concern relate to the establishment of these new land councils and the delegations. These proposals reflect another ideological obsession of the government to break down the authority of land councils and to limit their capacity to act as advocacy bodies for those Aboriginal Australians whom they have been set up to service and also represent. In many ways these proposals reflect much of what Reeves proposed and which was rejected by HORSCATSIA. They come as no surprise, and they demonstrate the inherent contradictions in the Commonwealth approach. On the one hand while, in the case of the proposals for the amendments to section 19, traditional owners’ consent is required, on the other hand this is not the case for the establishment of new land councils or the delegation of land council powers. In addition, the proposals designed to create a large number of land councils or to give other bodies land council-like powers and responsibilities clearly conflict with the government’s policies on representative bodies under the Native Title Act. In this case, the Commonwealth has sought to rationalise the number of such bodies in order to provide administrative efficiencies and limit the possibilities of inappropriate behaviour.

How is it then that the government has determined that it ought to facilitate proposals to break up the existing land councils in the Northern Territory? The proposals have a capricious intent and are designed to limit the capacity of land councils to act as effective advocacy bodies for Aboriginal Territorians. This intent is perhaps no better demonstrated than by the changes to funding for land councils that this bill proposes. At present, the land rights act guarantees that 40 per cent of available funds in the ABA be set aside for the administrative expenses of the four land councils. This bill proposes to remove that guarantee and determine funding for land councils on the basis of estimated workload. Removing the 40 per cent floor funding undermines the guarantee of independence and viability of the land councils and their ability to pursue the interests of traditional owners.

It is clear that the government’s proposals in relation to land councils are a potential disaster and will inevitably be viewed with some concern by those, particularly in the mining industry, who seek to develop economic opportunities on Aboriginal land. After 30 years they have certainty and confidence in dealing with the four land councils currently in existence. They know that these organisations have the competence, experience, knowledge and expertise to deal with them in an open, transparent and orderly fashion. You can imagine what might have happened under these proposals of the Northern Territory and federal governments to create new land councils if they had had to negotiate the Darwin to Alice Springs railway. These mining businesses would be concerned by the prospect of dealing with a larger number of bodies who, apart from lacking competence, would be without the corporate knowledge, economies of scale or professional expertise that prevail under the current arrangements. There was no forewarning of these proposals by the Commonwealth government and I note that these proposals were not supported by the Northern Territory government. Again, given the strength of the recommendations of HORSCATSIA, it is of grave concern that the government has chosen to follow this course.

The issue of land council delegations reflects a similar story. The joint submission of the Northern Territory government and the land councils proposed amendments to section 28 of the current act. The submission proposed a certain level of delegation of power to allow some functions to be performed at a regional level rather than at land council meetings. The Commonwealth government have taken the delegation power much further in the arrangements they propose under this legislation. Core land council functions with respect to mining and leasing on Aboriginal land may now be delegated. There is a possibility that the powers of a land council, the body representing traditional owners, could be delegated such that a body including non-Aboriginal people would be exercising these core land council functions.

These proposed amendments will also allow the Commonwealth minister for Indigenous affairs to make decisions about delegation of a land council’s powers even if the land council does not agree. The minister’s power to delegate these powers, as well as the types of bodies that land council powers can be delegated to, disfranchise traditional owners of the rights accorded to them under the original legislation.

While there is much to be concerned about in this bill, Labor does support a good number of the measures within it. The bill proposes a new section 12AAB to make an immediate grant of land to the Anindilyakwa Land Trust of land in the area of the Anindilyakwa Land Council included in any Arnhem land type 1 deed. This is land inappropriately granted to the Northern Land Council. Labor supports an immediate grant of that land to the Anindilyakwa Land Trust so it becomes the responsibility of the Anindilyakwa Land Council. I note with some concern comments made this morning by the minister in relation to the changes which he proposes. He referred with great ignorance to the way in which Indigenous Australians deal with their land and to their relationships with each other. He had the temerity, and indeed the audacity, to say this as he described the way in which Aboriginal people live on their land:

… We’re saying to people … that you’ve been living on what is for all intents and purposes little communist enclaves, which means that there’s no opportunity for business to flourish, there’s no access to a market economy.

I have never heard in this place such benign stupidity and rubbish. This minister is clearly ignorant of how Indigenous people see their land and how they relate to one another. I point the minister to the words of Justice Woodward and suggest to him that he bring himself to read the two reports of the Woodward royal commission and the subsequent reports and commentary which have been written about the land rights act. He would soon come to understand that his view of the world is not only wrong but also so far off the mark of where Indigenous Australians see themselves that it defies description. I say to him that I do not know any Indigenous people who are not concerned about involving themselves in the market economy in some way or another. I do not know any Indigenous Australians who do not want a roof over their head or the right for their children to attend school and have a healthy outcome—that is, to have education and health services and access to work opportunities. I do not know any Indigenous Australians who do not want any of those things, just like every other Australian.

What I know is that this pogrom, which has been undertaken in different guises by the federal government but in this case it is by attacking the land rights act, is all about disempowering Indigenous Australians. It is all about getting their agenda run and the wedge put in about how ignorant these poor buggers are. Well, they are not! They are not ignorant and they understand what you are doing. When you sit down and talk to these people, as this government should do, you understand what is required—that is, their need to give prior informed consent, as Justice Woodward commented upon in his royal commission report and as HORSCATSIA commented upon in its very first recommendation. The banal attitude of this government defies description. My time has concluded, and I move:

That all words after “That” be omitted with a view to substituting the following words: “whilst welcoming many measures contained in the bill including the mining and exploration provisions, the House is of the opinion that some other provisions of this bill:

(1)
undermine the integrity of the Principal Act by eroding the rights of traditional owners and the independence of land councils;
(2)
are a recipe for uncertainty for development on Aboriginal land;
(3)
should be withdrawn and redrafted to provide a more balanced approach that ensures:
(a)
the informed consent of traditional owners to major changes;
(b)
that traditional owners as land owners are not unfairly constrained in optimising their financial and other benefits under the 99 year lease;
(c)
the better promotion and facilitation of economic development on Aboriginal land including home ownership opportunities for Aboriginal people;
(d)
the protection of traditional owners’ rights to control access and development on their own land; and
(e)
the maintenance of the independence and viability of land councils to defend and pursue the interests of traditional owners and other Aboriginal people living on Aboriginal land.”

Photo of Phillip BarresiPhillip Barresi (Deakin, Liberal Party) Share this | | Hansard source

Is the motion seconded?

Photo of Peter GarrettPeter Garrett (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Reconciliation and the Arts) Share this | | Hansard source

I second the motion and reserve my right to speak.

6:17 pm

Photo of Dave TollnerDave Tollner (Solomon, Country Liberal Party) Share this | | Hansard source

It is indeed a pleasure to be standing here talking about the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 and the changes it will bring to the land rights act which, in the main, has not changed at all in the last 30 years. The member for Lingiari summed up a few things when he talked about the Woodward royal commission. It is important to understand where things have come from and how they have eventuated. It is important in this context to understand the political climate of the time in relation to land rights and how we got to where we are now.

Back in the sixties and the seventies, the world was discovering that it had rights. South Pacific nations shook off their colonial oppressors. MGM stopped making films featuring white Americans gunning down red Indians. The cult heroes were Che Guevara, Martin Luther King and Malcolm X. In Australia, Charlie Perkins was boarding freedom buses in the Northern Territory. The Aboriginal stockmen of Newcastle Waters and Wave Hill had walked off the job, demanding equal pay. A strike that became symbolic of Aboriginal dispossession was when the Gurindji people at Wave Hill turned the pay dispute into a demand for the return of their land. In 1967, the national referendum giving the Commonwealth responsibility for Aboriginal welfare received 90 per cent support, and the Aboriginal tent embassy was established on the lawns of Parliament House, just as Prime Minister Whitlam was moving into his office, brimming with reformist zeal.

The Gurindji strike lasted for seven years. In 1975, the year before the Aboriginal land rights act, Gough Whitlam symbolically poured red sand into the hands of Vincent Lingiari—my colleague the member for Lingiari on the other side represents the electorate named after him—and handed over the lease of 1,250 square miles of Vestey’s land, with a promise to further redress the injustice—an impression that has long been the lot of black Australians.

My point is that the Aboriginal land rights act is a rights act, not a lands act. It was about putting things right and about appeasing a national conscience and international opinion in the only place that the Commonwealth could—the Northern Territory. It was not about good land management or land administration. It was not about planning for the future exploitation and productivity of the land. The act does not concern itself with how the landowners are going to make a buck—quite the opposite. It is about the protection of land as a right, the preservation of culture, the locking of the gates and defending Aboriginal people and their land from the intrusions of outsiders—the miners, pastoralists, tourists or anyone without a permit for that matter, even the Northern Territory government.

It was thought that Aborigines would be able to return to hunting and foraging on their newly acquired land. Why would they need to make a dollar? Justice Woodward penned those intentions, writing of preserving ‘the spiritual link’ with land providing an Aboriginal sense of identity and allowing ‘Aborigines to be free to choose their own manner of living’. The Aboriginal affairs minister at the time, Ian Viner, picked up on the theme while introducing the legislation. He waxed lyrical about the Aboriginal spiritual connection with the land and the Dreamtime. He said that ‘ancestors left in each “country” certain vital powers’ that ‘make that country fruitful and ensure a good life for people forever’. ‘An Aboriginal’s country’, he said, ‘no matter how stricken a wilderness it may seem to others is, to him, a Canaan’. He stated his belief that there had been ‘a fundamental change in social thinking in Australia, recognising that within our community there are some people, the Aborigines, who live by a unique and distinct system of customary law’. Thus we can see the intent of the land rights act—to establish rights to protect the country and its inhabitants from the intruders, to create inalienable title in perpetuity for people who live differently and thereby ensure a good life for people forever.

The Aboriginal Land Rights (Northern Territory) Act was established to establish a sanctuary, a preserve of living prehistory within modern Australia. Spurring on this mood was the Commonwealth’s deep suspicions about the intentions of the then embryonic Territory government, the Legislative Council. To defend Aboriginal Territorians from their future government, the act stipulates that the Territory parliament could not acquire Aboriginal land for public purposes. At that time, Canberra genuinely believed that, given half a chance, the Territory council would repossess Aboriginal land en masse and Viner felt compelled to tell the Commonwealth parliament that he had assurances that the Territory Legislative Assembly was prepared to cooperate. In fact, there was uncertainty, resentment and division in the Territory. It was not so much about Aboriginal land ownership; it had more to do with the way the rights act was imposed exclusively on the Territory from on high. It seemed hypocritical—and it was—to impose upon a territory a land regime that is applauded by the same people who would not have a bar of it in their home states.

Mr Viner had some sense of the impact his legislation might have on the Territory. Alarmed by what he feared was a white backlash, he wrote articles and pamphlets in the Territory in 1978 assuring Territorians that rumours that Aborigines would get 50 per cent of the land were untrue and downright dangerous to racial harmony. Today of course 50 per cent of the Territory is under Aboriginal title and that is the 50 per cent that Mr Viner said would never happen. He simply did not anticipate the real outcome of his legislation. His stated desire for an end to the divisiveness was not backed by his actions. He left the Territory a legacy that has soured relations between the Northern Territory government and land councils ever since. That legacy was his scant regard for the public interest in his plan to effect the biggest land transfer of crown and pastoral land to new, select communal ownerships since Captain Cook arrived.

The Commonwealth act prohibits any compulsory acquisition of land under the Aboriginal land rights act by the Territory government. The vast tracts of land were handed over to select communal ownership. The Territory government was forced into the land claims courtroom to represent and argue the public interest. It cannot be argued that the Territory government should not have done this. Governments are required to represent public interest, to plan for future services, provide water from catchment areas, provide pasture for cattle on the move, pipelines, powerlines, public parks and access for the enjoyment of beaches and rivers. To ignore such future considerations would have been a dereliction of public duty. But the adversarial nature of the courtroom inevitably leads to acrimony. Today most Aboriginal Territorians believe that the Territory government has opposed every land claim. They have been told that by land councils and the Labor Party finds polarisation of Aboriginal people and the previous CLP government relations politically convenient. John Reeves QC, in his review, said:

The provisions preventing the Territory government from compulsory acquiring land meant that the land claims process was the only chance the Territory government had to present possible matters of detriment.

He went on:

If the Territory government could acquire land in the future in certain limited circumstances, it would not be necessary for matters of detriment to be predicted way into the future and thus occupy so much court time and argument.

Today there is no real answer at all as to who owns the schools, the health centres and other community facilities on Aboriginal land. The land councils count such assets as having zero value, as they are not their asset. Taxpayers, through their government, also have no propriety interest, as the buildings do not stand on public land. So it was Mr Viner, consciously or unconsciously, who set up the dispute between the Territory government and the land councils.

The late author Shiva Naipaul visited the Northern Territory in the mid-eighties. He was appalled by what he described as the ‘confining of the Aborigine in his aboriginality—the escape into an adventure playground of timelessness, of goannas and kangaroos and red earth. The running off into a world of unalterable Aboriginal essences is a condescending and profoundly flawed prescription for regeneration.’ This was followed up with the challenge: ‘Either the Aborigine is or is not a citizen of Australia. If he is—which he is—he must face the consequences.’

Bob Beadman, in the spring 2004 issue of Policy wrote an article called ‘A future for Indigenous youth?’ in which he said:

The problem now, however, is that the title is now stitched up so tightly that it is worthless as a form of security for commercial borrowings, and home ownership is unknown for the high proportion of Aboriginal residents of the Northern Territory who live on Aboriginal land.

It is a cliché now, but the people are land rich but dirt poor.

The form of entry controls (which date back many decades prior to land rights, to when the land was first reserved for Aborigines), whilst very effective in providing a buffer from the worst aspects of the encroaching migration of the frontier, also blocked the migration of businesses, right through to the present time. Now, the Land Rights Act creates additional barriers to people pulling themselves up out of the quagmire of welfare dependency.

In a country with one of the highest levels of home ownership in the world, we construct a form of title for remote Aborigines that denies them the opportunity to fulfil what for others is the Great Australian Dream.

Collectivism has failed around the world, and the evidence is before our eyes that it hasn’t worked here either. Communal home ownership dictated by the Land Rights Act is just another manifestation of the removal of individual responsibility. I’ll bet if people were enabled to own their home repairs and maintenance costs would plummet.

Isn’t that something! If you owned your own home, maintenance costs would plummet. You do not have to be Einstein or the member for Lingiari to know that when you travel around community after community on Aboriginal land in the Northern Territory nowhere do you see a market garden that grows fresh vegetables; nowhere do you see a butcher shop or a small abattoir; nowhere do you see bakeries. You do not see hairdressers; you do not see clothing stores—let alone a McDonald’s or an Irish theme pub. The reason none of that exists is that it is impossible to get those businesses up and running unless there is the incentive for people to make that investment in those communities.

I think the great changes being proposed today will go some way towards changing that. The normalisation of townships and the creation of long-term leases on towns will enable Aboriginal people and others to buy land and build houses in Aboriginal communities. It will allow businesses to set up. Some may not flourish—some may go broke—but that is business. It will allow people to set up market gardens and have an entrepreneurial attitude. It will allow for butcher shops, bakeries, hairdressers and clothing stores and present a whole range of other opportunities to Indigenous people.

In an article in the Australian of 15 August last year called ‘Hope lies in the great Australian dream’, the National President of the Labor Party, Warren Mundine, was reported as saying:

My parents owned a house and I own a house with my wife and my son now owns a house and my daughter is getting a house as well.

…            …            …

Owning ahome changes people’s lives. You have got an asset that you use yourself and that you can pass on to future generations.

He went on to say that home ownership ‘makes a total difference for people’:

For one thing you don’t have a ‘cargo cult’ mentality.

The article says:

Mr Mundine told the story of visiting an Aboriginal community where there was a broken sewer pipe.

‘I said: “You can fix that—we’ll just get a hessian bag and some concrete—otherwise you’re going to have sewage going everywhere.”

‘I was told, “That’s not our job, that’s ATSIC’s job”.’

The article continues:

Owning a home changed all that. ‘If the house is yours you look after it. The other thing is, if you own a house you have to be employed. You can’t willy-nilly wander in and out of jobs, you have to make a go of it.

…            …            …

‘If the boss is on your back you have to grin and bear it, you can’t just say “I’m out of here”.’

That is how you change people’s lives. That is how you allow them to get ahead—you create some incentive for them to work and an ability to own something.

The member for Lingiari laughs when the minister talks about mini communist societies in Australia. It is true. It is almost impossible for Indigenous people on Aboriginal land to get ahead or to own anything. I challenge the member for Lingiari to point out one single person who owns a private asset on any Indigenous land in the Territory. Hernando de Soto wrote in The Mystery of Capital:

By making assets ... capable of being divided, combined or mobilized to suit any transaction—by attaching owners to assets, assets to addresses, and ownership to enforcement, and by making information on the history of assets and owners easily accessible, formal property systems converted the systems of Western capitalist society into a network of individually identifiable and accountable business agents.

That is exactly what we are trying to do in transforming Indigenous economic development and what these changes to the land rights legislation will mean.

I think it goes without saying that the changes being proposed are not going to be the panacea for every ill in Aboriginal communities. More must be done. This legislation does not remove the permit system, for instance. It does not patriate this act to the Northern Territory government. I have said several times in this place that the act should be patriated to the rightful place, namely the Northern Territory. The permit system is another way of stopping Indigenous Territorians from accessing economic opportunities. A previous federal Labor MP, John Reeves QC, who conducted the Reeves review, sent me an email recently where he says:

I think the permit system should be scrapped and replaced with a system that more closely approximates that of all land owners—ie, the right to prevent trespass. By contrast, the permit system is essentially a passport system. Whilst the NT government presently has the power to make legislation to give effect to the permit system, the federal government has the ultimate control over the issue because it can withdraw that power just by amending the Aboriginal Land Rights Act.

He says that this should be done immediately. I am running out of time, but I think the last word should be left to Noel Pearson:

Many of the conventional ideas and policies in Aboriginal affairs—ideas and policies which are considered to be ‘progressive’—in fact are destructive.

He said Aboriginal affairs is dominated by journalists, academics, politicised clergy, politically active medical doctors, party careerists, writers, musicians, actors, cartoonists and ‘other inner city dwellers with socially suitable left-liberal opinions about everything’.

I and my people have suffered the intellectual and cultural hegemony of the progressive scribes for decades.

I think he is right. When I look at the members from the other side of the House who are due to speak on the debate, I see the members for Lingiari, Kingsford Smith, Fremantle, Reid, Banks, Fraser, Hotham, Werriwa, Chifley, Shortland and Melbourne. I rest my case. They are trying to do it all over again. They just restrict Aboriginal people and try to keep them in their place. There is nothing like having a good obedient blackfella around. We on this side of the House want to see them do well. We believe in the individual and giving them all a fair go. (Time expired)

6:37 pm

Photo of Peter GarrettPeter Garrett (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Reconciliation and the Arts) Share this | | Hansard source

It is a real shame that the government has chosen to apply the guillotine to the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006, and in so doing frustrate the legitimate rights that members of this parliament have, particularly in the opposition, to get up and speak to this bill. I cannot help but note that the Senate has also expressed concern about the speed with which this legislation is passing through the parliament. This has been a feature of the Howard government’s approach to legislation in the recent session, but giving a full and comprehensive consideration to an issue as significant as this is a primary responsibility of this parliament. That is what we have been elected to do. The member for Lingiari’s electorate incorporates the lands to which this proposed bill specifically applies. I would have thought it self-evident that not only he but any other member who wished to speak to this legislation should be given the opportunity. So it is a very great shame that the government has chosen to gag debate on a bill as important as this one.

I am struck, having heard the comments of the member for Solomon, by the difficulties that we sometimes have in this House in relation to political debate about Aboriginal issues. It is very difficult, it seems, for people to strip out their biases and their ideological fixations and come to a more constructive place as we seek to determine legislation, its merits and the kinds of policies that will be needed to be adopted by this House—and, hopefully, in time agreed to by both sides of politics—to help Aboriginal people overcome the accumulated disadvantage that they suffer.

In the House today we have had two interesting, hot-button occurrences. The first was a forum in the House, very well attended, detailing and concerning itself with issues of Indigenous violence, something which all of us both deplore and have great concern about. In that particular forum on Indigenous violence, speaker after speaker made the point that one of the most significant and important aspects of consideration of Indigenous violence is to recognise that both strong culture and the identification and protection of rights, particularly rights of the child, are absolutely essential predeterminants of having a debate and developing policy on this issue. Yet at the same time, both in the House and in the media, we have a concerted attack on notions of culture and on notions of rights. Who is right? Those Aboriginal people who work in communities, who experience physical abuse, who experience disadvantage day in and day out? Those Aboriginal people charged with the responsibility of running organisations dealing with health, truancy and kids who are petrol sniffing? Organisations concerned with the delivery of social services, with the health of Aboriginal families, who get up in this place and say that it is about strong culture, it is about recognition and identification of rights? Are they the ones who are correct on this issue? Or is it the plethora of pundits, opinion makers and ideologues who jump in and out of this debate as they see fit and when they see an issue that they can hang onto?

The other hot-button issue that was on display in this House today was the motion brought by the member for Stirling, Mr Keenan, calling upon the House to affirm the primacy of Australian law and asserting in effect that cultural considerations should not predominate over Australian law. With these kinds of contributions from members opposite in this debate is it little wonder that Aboriginal people get frustrated at the way in which politicians respond to the very considerable difficulties that they have?

Finally, I cannot help but refer to the contribution of the previous member when he looks forward longingly to the day when Aboriginal communities have ‘Irish theme pubs’ as evidence of their economic and cultural vitality. What a joke.

Labor opposes this bill, as there are aspects of it which are wrong and make it deficient. We come to the bill recognising that there is a need for reform of the Aboriginal Land Rights (Northern Territory) Act, particularly in relation to prudential arrangements between and including royalty associations, which receive royalties from land councils, and also in relation to mining exploration and development activities.

I think it is particularly significant that it is on the issue of part IV of the act, which relates to mining, that we can see the most sensible and prudent aspects of this act. It is in that particular area that we have seen the most significant advance in the way in which mining companies in particular have changed their attitudes to negotiations with Aboriginal people, both for access to land and for the terms of development on Aboriginal land. I think, and I am sure members present would agree, that there has been a substantial change in attitude over the last decade from the mining industry in general in the way in which it has conducted itself, particularly in the Northern Territory, and in the way in which it has come to negotiations with a respect for culture and a willingness to sit down and spend the time necessary to negotiate. The result has been ongoing economic development for Indigenous people where the mining companies and Indigenous people have struck those agreements.

So it is appropriate that these much-changed attitudes and approaches, and the necessity for us to have better processes in relation to mining and royalty accountability, be reflected in any amendments to the Aboriginal Land Rights (Northern Territory) Act. But, as the member for Lingiari, who has just spoken, noted, these amendments also undermine the integrity of the principal act by eroding the rights of traditional owners. They are a recipe for uncertainty for development on Aboriginal land. The informed consent of traditional owners to major changes is not a part of these amendments. Traditional owners, as landowners, are unfairly constrained in optimising their financial prospects under the 99-year lease. There needs to be a better promotion and facilitation of economic development on Aboriginal land than is put forward by this amendment. And the protection of traditional owners’ traditional rights to control access and development on their own land is not present.

The member for Lingiari noted that these changes have come virtually out of the blue and that for a number of Indigenous communities across the Top End there has been little or no discussion or negotiation about these changes. Additionally, there is no evidence that the government understands the cultural values that attach to changes of this kind or the way in which those issues would play out at a future point in time. There is a diversity of situations that Indigenous people face and there are manifestly different conditions and challenges that present themselves to particular communities.

The comments made in the House today by Minister Brough, the Minister for Families, Community Services and Indigenous Affairs, to the extent that Aboriginal people live in communist enclaves I think is an example of the need for the government to reconsider and to examine more thoroughly what is actually going on in Aboriginal communities. These are not helpful and not accurate comments. There is a danger that this debate is one where we hear only the loud voices and where the underlying and historically based issues are not properly and thoroughly explored, nor the points of view of the communities themselves.

I will just reprise briefly the history that has brought us to this point. The Aboriginal Land Rights (Northern Territory) Act 1976 was a product of the Woodward royal commission. It has been in operation for some 30 years. Justice Woodward’s basic premise was ‘the doing of simple justice to a people who have been deprived of their land without their consent and without compensation,’ and, further, that it was essential to both provide land and preserve the spiritual links to land that give Aboriginal people a sense of identity. While Woodward recognised the important need for Aboriginal people to be provided with land that would do most good in economic terms, as we do in this House and as Labor does, he also viewed the holding of land as a form of trusteeship rather than a transfer of rights.

There is some irony, I would have to say, in the position that the government takes where it wants to attack the rights of Indigenous people but in this very instance, when in fact they were not granted a certain kind of right, it takes opposition to that as well. The Aboriginal land rights act has subsequently been reviewed twice, most recently by John Reeves QC in 1997. That review was then referred to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs in December 1998. The House of Representatives committee did not accept Reeves’s major recommendations and it took wide views from many people and took written submissions. Its report, Unlocking the future, had as its primary recommendation that:

The Aboriginal Land Rights (Northern Territory) Act 1976 … not be amended without:

  • traditional Aboriginal owners in the Northern Territory first understanding the nature and purpose of any amendments and as a group giving their consent—

and that is extremely important—and that:

  • any Aboriginal communities or groups that may be affected having been consulted and given adequate opportunity to express their views.

That is the background: a process of review and of understanding an act of some 30 years standing, an extensive investigation by the House of Representatives committee and two primary recommendations that emerge as a result. It is on that that our opposition to the bill as it has come before this House is based.

It is the case that some of these proposed amendments, including proposed amendments before us which have been agreed to at least through the Northern Territory and through the land councils, are a result of an agreement on a package of proposals with the Northern Territory government. But it is our task as Labor members of this House to come to our view about the merits of the bill as it comes before us. That package took some time to negotiate—in particular, part IV of the act, which deals with mining and which, as I have said, has the support of the mining industry. But a number of the other proposed amendments have been neither sufficiently discussed nor negotiated with traditional owners or other Aboriginal people living on Aboriginal lands, nor even the land councils. That is the necessary precursor for a bill like this to come into law.

Whilst the need for traditional owner consent remains, I am worried that the federal government is already using the proposal in the amendments to negotiate with Indigenous communities. The cart is being put before the horse. It is important to identify that it is by no means axiomatic that individual home ownership capacity in and of itself will bring about economic independence or success for Indigenous people in facing the considerable challenges and disadvantage that does fall upon them. Tom Calma, the Aboriginal and Torres Strait Islander Social Justice Commissioner, has pointed out a number of overseas experiences that demonstrate that point.

Photo of Peter GarrettPeter Garrett (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Reconciliation and the Arts) Share this | | Hansard source

That has been countered by others—it is true—who speak in the debate, and I am reminded of a paper by Warin and Hughes of last year which saw fit to compare the work that was done in Aboriginal communities with that done in communist China. That is probably why we heard the minister’s comments in the House today. But that paper was singularly ill informed and did not understand that in fact there were a number of healthy, vibrant and economically active Aboriginal communities, including communities existing as out-stations throughout Arnhem Land and in other parts.

There are a number of other issues that are problematic and have been referred to by the member for Lingiari. These include the proposal to cap rental payments on land leased to a Northern Territory government entity at five per cent of the improved capital value of the land as well as making payments out of the Aboriginal benefits account, with that account being made available for rental payments. I just make the simple point that to cap a rental payment at five per cent, even of improved value, in an act of parliament like this I think is unacceptable. It is unacceptable in a commercial sense to Indigenous people and it is unacceptable given the terms of these leases and the periods of time for which they run. It is extraordinary to me that a figure of this kind should be included in a bill of this nature. I would certainly ask the minister to readdress that particular issue.

Again, the additional proposals that deal with creating new land councils are also of concern, not having been subject to sufficient negotiations or consultation. It seems that the government has taken those aspects of the Reeves report it agreed to and dispensed with the House of Representatives recommendations that it did not agree to. More importantly, though, is the question about housing itself and the arguments advanced by government members that this bill will be a magic bullet to the extent that it will automatically provide for people to have home ownership and that their social conditions will improve as a matter of course. It is true that, in some communities and some instances, home ownership, which we support, would have that effect, but it would be by no means the rule. For those people living in the Northern Territory in remote communities where their average income is around $13,500, it is hard to see how home ownership in and of itself is even reachable or accessible. The amount that has been identified as necessary for investment in housing in the Northern Territory alone—and that is maintenance and construction—runs to the billions. If the government were truly serious about home ownership or the provision of housing for Aboriginal people—Indigenous people who particularly face extremely challenging social situations on account of the fact that there is a perilous shortage of housing—that is what we should be hearing from the government.

I draw the House’s attention to the Australian Housing and Urban Research Institute paper, Indigenous housing: assessing the long term costs and the optimal balance between recurrent and capital expenditure, released earlier this year. It considered this issue in detail. Its recommendations, most of which go to the best way governments can properly provide for housing, were simple. Governments must provide a financially viable and stable Indigenous community housing sector by ensuring concurrent support for recurrent maintenance and housing management and funding models. The research institute identifies, amongst other things, the lack of data and good information that governments have about what actually happens in Aboriginal communities where housing is in crisis and about the shortage that is there. The challenges faced by Indigenous community housing organisations, both in obtaining housing grants and in ensuring that housing is well maintained into the longer term, are profound.

The institute suggests that, amongst other things, the Australian government could request Indigenous community housing organisations to agree to assist in providing responses to relevant surveys of the housing management and stock condition and, upon receipt of these agreements, a suitably revised version of the questionnaire could be pursued. There could be a quantity surveyor driven analysis of the condition of the housing stock of ICHOs throughout Australia with priority focused on those organisations not receiving grants and the government could establish and fund a national Indigenous housing, training and development centre. This centre, drawing on and developing relevant existing courses, could be attached to an appropriate university and its courses could have tertiary diploma status. Finally, the centre could focus on delivering both longer and shorter courses in Indigenous housing management, drawing heavily on existing Indigenous housing managers. It seems to me that the government should consider—and, I hope, respond positively to—the policy recommendations identified in the work that the institute has done. There is a lot more to housing than coming into the House and supporting legislation of this kind without considering the issues in their wider context.

There are additionally some other aspects of this bill which we find have merit. I refer particularly to those provisions of the bill that refer to royalty associations. Those reforms contemplated are in sync with the House of Representatives Standing Committee on ATSIA proposals. There is absolutely no doubt that, in some instances, there is a need for a form of that kind with royalty associations, particularly to give confidence to both those who are receiving the royalties and those who are distributing them that it is done in a prudential and an acceptable fashion. We accept the need for reform, but this bill is flawed. We need to have good law which delivers good results—law which understands the history both of dispossession and acquisition of rights by Aboriginal people in the Northern Territory and which understands fundamentally the necessity for proper consultation and identification of any or all of those obstacles that may stand in the way of these people being able to deal with their housing problems in a constructive and real manner. This is something the bill does not do.

6:57 pm

Photo of Peter SlipperPeter Slipper (Fisher, Liberal Party) Share this | | Hansard source

When one listens to the honourable member for Kingsford Smith, his speech sounds reasonable and rational in some respects, but as a nation we really have to confront the fact that over 200 years of European settlement we have a situation where Indigenous Australians have an entirely unsatisfactory position in life. We find that they live for 20 years less than non-Indigenous males, we find that there is an infant mortality situation which a First World country ought not to be proud of and we find that successive governments over the years have endeavoured to salve the nation’s collective conscience by throwing money at the problem. I am more than happy to spend whatever money we as a government and as a nation need to redress Indigenous disadvantage, and in 2006 it is very important that Indigenous Australians also share in the prosperity of modern Australia.

The Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 is designed to have a major positive impact on the lives of Indigenous Australians. The amendments set out in the bill have arisen as a result of three separate reports into the Aboriginal Land Rights (Northern Territory) Act 1976. Three reports have been conducted over a period of almost a decade, and all three made recommendations for changes that will help to streamline and update the provisions in the act to ensure improved outcomes for both Australia’s Indigenous people and those relevant stakeholders who play a large and important part in their lives. I think there has been an excessive focus in recent years on self-determination and an insufficient emphasis on accountability and outcomes. It really is important that, as a nation, we look at what we can do to improve the situation of Indigenous Australians.

I just think that so often the Labor Party in the past—like the Labor Party today—has remained some distance from reality. It is all about slogans, tokens and talking up what can be done, but this government is determined to bring about practical reconciliation. We are determined to make sure that there is the same level of accountability for Indigenous organisations as there is for other organisations in the general community. We need, in my view, to convince the Australian people that there are the appropriate levels of accountability with respect to Indigenous spending and, if the government is able to convince the people of Australia that this has at last been brought about, we will find that the government will be able to obtain the political support necessary to spend the additional dollars which are undoubtedly necessary for future expenditure in the area of Indigenous assistance.

The underlying objectives of the amendment in the bill being debated here today are to improve access to Aboriginal land for the purpose of development, specifically mining; to introduce an improved decision-making framework for Aboriginal people for land use; and to encourage improvements in the living conditions in both economic and social terms for Aboriginals living in the Northern Territory.

The three reports which fed into the legislation include the Reeves report, which found that Aboriginal people are not benefiting economically as much as could be possible if administration and licensing of Aboriginal land were streamlined. John Reeves—and the member for Lingiari would well know John Reeves, who was a former distinguished member of this place—is someone who does not look at the Indigenous situation through ideological perspectives; he looks at it as someone who wants to bring about real, meaningful, substantial, important and positive change for Indigenous Australians. The reports which fed into the legislation suggested changes to the act to enable greater ease in negotiating agreements for development, especially mining on Aboriginal land. The Reeves report noted that an inalienable freehold title to over 40 per cent of the Northern Territory land has brought insignificant benefits to the Aboriginal residents of the Northern Territory. I think that most honourable members would agree that this is indisputably a fact. We find that, while Indigenous residents in the Northern Territory have received the dollars, they certainly have not received the outcomes. Anyone who can defend the failed process we have seen over the last 200 years in dealing with Indigenous matters, in my view, has very little credibility at all.

The Reeves report also noted that changes to the act could make things better. It recommended that 18 regional land councils be formed under the umbrella of a single peak body to be known as the Northern Territory Aboriginal Council as well as a modified administration system for exploration and mining on Aboriginal land that has reduced regulations. Personally, I believe that the current structure of legislation for land rights in the Northern Territory is fatally flawed. I do not believe the 1976 legislation was appropriate and, while it may have made some people have a warm, inner glow and feel good, ultimately the people the legislation was intended to benefit—namely, the Indigenous people of the Northern Territory—have simply been sold short.

A second report released by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs suggested that the recommendations of the Reeves report were perhaps too aggressive and suggested incremental changes. Thirdly, the Manning report recommended changes to the time allowable for the negotiation of exploration and mining leases. A change suggested by the report was a period slightly longer than two years, which takes into account the weather patterns in the Top End. Further time extensions were also allowable under the Manning report suggestions. While there are differences in the recommendations of the three reports, there are also similarities, the main one being the general consensus that the act in its present form can be improved and that these improvements could have a positive impact financially and socially on the Indigenous people of the Northern Territory.

I am somewhat attracted to the recommendations made by John Reeves QC. He is someone who has put aside his former political mantra and is prepared to basically cut out the verbiage, to sit down and say, ‘We have tried it every other way. We have tried tokenism, we have tried symbolism, we have tried to make people feel warm and gooey inside but ultimately as a nation, as a government and as a people we really have a responsibility to address Indigenous disadvantage and all the previous systems we have adopted have comprehensively failed.’

On the issue of exploration and mining on Aboriginal lands, the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 includes provisions that will increase core negotiation periods for licences from 12 months to 24 months, while also giving the Northern Territory government the power to end negotiations if it is of the opinion that a company’s intentions in the negotiations are not genuine. It will also enable the Northern Territory to act as observer to any negotiations—previously, this was a role carried out by the Australian government. It will retain the provision that allows the traditional landowners to have the power to withhold consent for mining companies to begin exploration. In the views of the drafters of the legislation, this enables the Aboriginal people to safeguard their own interests. Those exploration proposals that are vetoed by the owners will be subject to a one-year moratorium instead of the current five-year moratorium. This will give the Indigenous landowners greater opportunity to explore more quickly renewed avenues to secure benefits for their people.

When the Northern Territory ultimately becomes a state, I think it is really important that the land rights act be repatriated to the Northern Territory. I suppose the member for Lingiari and I—who do not really agree on very much—might well agree that, if the Northern Territory is to take its place as a state within the Commonwealth of Australia, the Northern Territory ought to be treated in this area in the same way as all other Australian states.

On other proposals for economic developments, the bill includes provisions that will give Indigenous people greater control over the issues by which they are quintessentially the most affected. These include the increase to the threshold of the contracts which need ministerial approval from the current $100,000 to $1,000,000—that makes a lot of logical, sound commonsense; allowing leases to include provisions allowing future transfers; and increasing the lease term that requires ministerial approval from the current 10 years to 40 years. It really is important that issues involving mining and exploration leases, and the negotiations that are a detailed and important factor in finalising these leases, are as streamlined and as workable as possible to ensure that the Indigenous people of Australia receive the greatest benefits, yet it is also important to retain the legislative protections that ensure the integrity of the act.

Further changes proposed by the bill include allowing land councils to delegate certain decision-making permissions to regional groups and clarifying the procedures required to establish new land councils. Currently, the act rather peculiarly states that there must be a ‘substantial majority’ to be in favour. This will be changed to a 55 per cent majority. Changes in the bill also include that future funding to land councils be based on the amount of work that they do and the results that they get, rather than simply on the number of people they represent. This will help to reduce the possibility of excessive funding going to any stagnant bodies. I said earlier that if we can ensure that we have the same level of accountability in the area of Indigenous affairs then it will be so much easier for a government to get the political support of the Australian people to make the economic and social investment necessary to redress Indigenous disadvantage.

I think that most Australians have a view that much of the money spent on Indigenous affairs is simply frittered away, wasted or stolen. All of us know of the horrendous reports we have seen in the media about mismanagement in Indigenous organisations, the historic lack of accountability and the way in which many people use the assets of Indigenous organisations as though they are their own assets. What happens of course is that that leaves a vacuum for the Pauline Hansons of this world to come in. They are able to make these wide pronouncements. People are concerned about wastage of government money, whether it be wastage in the area of Indigenous affairs or wastage in the area of non-Indigenous affairs, but because there is this suspicion that could build up in the Australian community about the fact that money spent in the area of Aboriginal affairs is wasted it makes it very difficult for the government of the day, regardless of political colour, with the best intentions to get the support of the Australian people to redress the very obvious ongoing issues of Indigenous disadvantage.

The bill currently before the chamber includes provisions to ensure transparency in land council cost recovery measures as well as giving power to the Commonwealth Office of Evaluation and Audit to investigate land councils. I know that whenever an amendment is proposed to any law there is a range of views. Indigenous affairs is an area which excites a great deal of interest not only in the community but on both sides of the House. I would be prepared to admit that everyone in the House wants to see Indigenous outcomes improved, but I think it is really important to take the rose-coloured glasses off and to look at what needs to be done in a practical sense to ensure sensible, practical outcomes.

Regrettably, I suspect the Australian Labor Party is still locked into the tired, old, failed—however well-meaning—policies of the past. This government has been prepared to look beyond the square. We have been prepared in a range of areas to take innovative initiatives. In recent times there have been a number of suggestions which have gained the support of many Indigenous people. So, while the opposition might well oppose this legislation, it really ought not to denigrate the fact that this government is trying to sweep away the lack of achievement in the interests of improving Indigenous outcomes. The Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 is designed to assist the Aboriginal people of the Northern Territory to see a greater benefit from the immense amounts of land that we do have in the Northern Territory. I do not see this bill as being an absolute panacea, but I do see it as being a very positive and important step forward. I am very pleased to be able to stand in the House today to support it and I formally commend the bill to the chamber.

7:12 pm

Photo of Daryl MelhamDaryl Melham (Banks, Australian Labor Party) Share this | | Hansard source

I rise to oppose the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 and to support the amendment moved by the member for Lingiari which is in the following terms:

That all words after “That” be omitted with a view to substituting the following words: “whilst welcoming many measures contained in the Bill including the mining and exploration provisions, the House is of the opinion that some other provisions of this Bill:

(1)
undermine the integrity of the Principal Act by eroding the rights of traditional owners and the independence of land councils;
(2)
are a recipe for uncertainty for development on Aboriginal land;
(3)
should be withdrawn and redrafted to provide a more balanced approach that ensures:
(a)
the informed consent of traditional owners to major changes;
(b)
that traditional owners as land owners are not unfairly constrained in optimising their financial and other benefits under the 99 year lease;
(c)
the better promotion and facilitation of economic development on Aboriginal land including home ownership opportunities for Aboriginal people;
(d)
the protection of traditional owners’ rights to control access and development on their own land; and
(e)
the maintenance of the independence and viability of land councils to defend and pursue the interests of traditional owners and other Aboriginal people living on Aboriginal land”.

That amendment encompasses most of the objections that I have to this legislation, although it does not cover all of them.

At the outset of my contribution, I point out that I, together with other members of this House, was involved in an inquiry by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, for which the report was called Unlocking the future: the report of the inquiry into the Reeves Review of the Aboriginal Land Rights (Northern Territory) Act 1976. That report was tabled in August 1999. I notice that it is referred to in the explanatory memorandum to this bill. The honourable member for Lingiari, who is at the table, was a member of that committee. The significant thing about that committee is that the Native Title Act was all the rage at the time, with many arguments about it, and the issue of land rights was well and truly on the agenda. A committee of this House, chaired by the Hon. Lou Lieberman MP, as he then was, with a majority of government members, managed to produce a unanimous report to this parliament, and right up front was recommendation 1, on page 8, which says:

The Aboriginal Land Rights (Northern Territory) Act 1976 (‘the Act’) not be amended without:

  • traditional Aboriginal owners in the Northern Territory first understanding the nature and purpose of any amendments and as a group giving their consent; and
  • any Aboriginal communities or groups that may be affected having been consulted and given adequate opportunity to express their views.

I repeat that it was a unanimous report with a government majority, and the bill before the House today does not meet that basic test of proper consultation and informed consent of traditional Aboriginal owners in the Northern Territory.

The bill that is before us was added to by this government as against the bill that was proposed some months ago, and I believe it is all done in the hysterical climate that is being generated by the current Minister for Families, Community Services and Indigenous Affairs, who is a bit hairy chested and out there in a big way. He obviously sees this as an issue in which he can impress some of his colleagues and maybe pick up some votes in a future deputy leadership ballot. That is in his mind. It has been reported on in the press. This minister has a big mouth. The problem is that some of the people he talks to report back. I do not have a problem with him having an ego. I have a problem with him breaking all the proper protocols and sensitivities on an act of parliament that was first proposed by the Whitlam government but enacted by the Fraser government and that has served Aboriginal people well. In effect, paragraph 8 of the explanatory memorandum gives it away. Under ‘Objectives’, it says:

The principal objectives are to improve access to Aboriginal land for development, especially mining.

The National Indigenous Times of 15 June 2006 dissected the bill that is before the House. There is an analysis by Chris Graham, who says:

Briefly, the government is seeking to wipe out the independence of the NT land councils—to gain control of them. The land councils’ financial resources will now come under the direction of Mal Brough. He will decide the level of funding they receive (if they receive funding at all).

The Minister is also proposing to give himself the power to delegate land council functions to other bodies—bodies he has created and funded.

What does this mean in practical terms? It means that the land councils are dead. They will no longer do the bidding of traditional owners—they must do the bidding of the government, or they will be abolished.

So what is the intent of the Howard government amendments? They are designed to increase white access to the resource rich lands of the Northern Territory.

The government basically states that in its objectives on page 3 of the explanatory memorandum. From my experience of dealing with the four land councils in the Northern Territory—and I think the member for Lingiari can attest to this—the Central Land Council in particular and the Northern Land Council have served their communities well. What worries me about what the government is doing is that it is attempting to undermine those particular land councils, to break them up. In my view, that will not result in better outcomes for Indigenous people in the Northern Territory.

The government openly says that the bill is about devolving decision making. In my experience, and I think the member for Lingiari would attest to this, resources are stretched with the current land councils. That is because, in the 10 years of this government, they have really been squeezed and they are suffering the death of a thousand cuts. If you further devolve the decision making of the Northern Land Council and the Central Land Council, you are not going to get a better outcome, in my view, for Indigenous people or, indeed, for miners. You need properly resourced land councils. The smaller the land councils the fewer the resources—it becomes a personnel problem—and I think there is a real difficulty in proper decision making taking place.

As I said, I think the National Indigenous Times has done the most comprehensive analysis of the spin of the government, and I commend it to honourable members. Here is an example of the spin. Mr Brough said:

The reforms to the Land Rights Act will help create future opportunities for Aboriginal people. These amendments allow for 99 year leases which will make it easier for Indigenous people to own a home or establish a business in Aboriginal townships.

The facts are that the government amendments will actually ensure that traditional owners will forgo their ownership of land and the associated rights to control entry onto their land. That really is what this bill is all about. Here is some more spin that I think is worth quoting:

The amendments to the Aboriginal Land Rights (Northern Territory) Act 1976 will allow changes to land tenure in Aboriginal townships, streamline processes for land development and raise performance and improve accountability of Land Councils and royalty bodies.

The facts are that the reforms will vastly reduce the independence of land councils and a range of activities. The only increased accountability would be to the federal minister, not to Aboriginal constituents. The amendments will also create major governance problems, with small, underresourced land councils forced to negotiate with large government bureaucracies and cashed up mining companies.

Since the government gained control of both Houses of this parliament we have seen its ideology coming through. It is attacking and cherry-picking those areas on which it has had a long-held view. The land rights act, for this Prime Minister, is one of those pieces of legislation. This is not good public policy in which the government is engaging. We need to respect the rights of our Indigenous Australians. We need to respect their right to say no and to have them properly resourced so that there is informed consent in relation to their decision making. What we should not have is a situation where the land councils have a gun held to their heads by this government and this minister basically saying, ‘If you don’t approve development we’re going to put you out of business.’

That is the thrust of what this legislation is about. That is why the land councils have a problem with this legislation. There was a press release on 1 June 2006 in which the land council expressed serious concerns regarding certain amendments. Mr Fry said:

Many of the amendments improve workability and are welcome, since they will remove red tape and speed up processes for mining and other developments.

Let’s cut to the chase here: many Indigenous people do want mining because they see it as their only way to advance themselves and their communities. They are not anti development; they just want a say over the development on their land. Mr Fry also said:

The proposal that Land Councils be forced to delegate land use functions to small corporations, and prioritise scarce resources to them, is unworkable and inefficient and will promote dispute and jeopardise development outcomes.

He is able to point to successful outcomes such as ‘the Alice Springs to Darwin railway, mining, pipelines, the foreshadowed Commonwealth radioactive waste facility’—which they support—‘or the ENI Blacktip gas processing plant near Wadeye’, which was signed off in May. These outcomes will be ‘seriously jeopardised if a myriad of underfunded, inefficient, small corporations are responsible for performing professional functions’. That is the real problem here: what the government is proposing is inefficient, unworkable organisations with scarce resources taking over development. So I commend the second reading amendment to members and I say to this government: you are going down the wrong track. You are blaming the victims. You are actually not producing decent legislation or decent policy. In part some of this bill will hinder development and create problems, and we will be revisiting this issue down the track.

Photo of Kim WilkieKim Wilkie (Swan, Australian Labor Party) Share this | | Hansard source

The question is that the words proposed to be omitted stand part of the question. I call the member for—

7:28 pm

Photo of Martin FergusonMartin Ferguson (Batman, Australian Labor Party, Shadow Minister for Primary Industries, Resources, Forestry and Tourism) Share this | | Hansard source

How could you forget?

Photo of Ian CausleyIan Causley (Page, Deputy-Speaker) Share this | | Hansard source

How could I forget?

Photo of Martin FergusonMartin Ferguson (Batman, Australian Labor Party, Shadow Minister for Primary Industries, Resources, Forestry and Tourism) Share this | | Hansard source

How’d you find your way to the chamber? You’re a stranger in the House.

Photo of Bob KatterBob Katter (Kennedy, Independent) Share this | | Hansard source

When I see how you occupy your time here it is no wonder that I am a stranger in the House. I just did some quick research before I came down to give my speech in this debate on the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006. I looked up how much water the Northern Territory has. The Northern Territory has 77,000 megalitres of water in the annual run-off from its great rivers. I then looked up how much the Murray-Darling has. The Murray-Darling has only 22,000 megalitres. Half of the Northern Territory—and a lot of that would take at least half the water—is owned by people of Aboriginal descent, First Australians. Some 61,000 First Australians in the Northern Territory own 600,000 square kilometres—half the surface area—and they own let’s say half of the water supply, some 30,000 megalitres. The Murray-Darling on 22,000 megalitres supports 54,000 farming families—that does not include the 200,000 jobs that are there—and produces some $15,000 million a year of agricultural production. I ask: why do the most land-rich people on earth have almost all of the most appalling social statistical qualifying data concerning them? Whether it be life expectancy, income, alcoholism or trauma rates—these areas could arguably be amongst the worst in the world. How can these people be so enormously rich and yet so enormously poor?

When I was appointed minister in the Queensland government in 1983 I had to address that very seriously and very quickly. The education department had moved their teachers out of two schools and were threatening to move them from all of the schools in the gulf and peninsula. The police force were making similar threats and had their police removed from Pormpuraaw during mass rioting at the time. Similar threats took place at Yarrabah. They attempted to ban alcohol. They thought alcohol was the problem, as the current Queensland government does. That is what I walked into at the time. So we had to do some hard thinking.

I was quite surprised to find out that the Anglo races—the English, if you like—got private ownership in 1292. Quia Emptores was passed in 1292. At the time of the First World War the Anglos had nearly half of the world’s industrial production and about 40 per cent of its wealth—England and America put together. Why were these people so enormously successful? They were the one race on earth that had private ownership far earlier than anyone else. The next ones would appear to be the French, and that was not until the 1800s, and then the Germans in 1850. The Japanese only really got private ownership, the way we know it, in 1946. One can see the extraordinary success story that unravelled with the coming of private ownership to Japan, and one can see the same phenomenon occurring now in China. If you are looking for a reason as to why those races got ahead of the rest of the world—there may have been other reasons—the defining factor was that the Anglos had private ownership far faster than anyone else in the world, three or four centuries before anyone else in the world.

Why is this group of people in the Northern Territory, the most land-rich people on earth by a long way, so incredibly poor in every sense of the word? They do not have any private ownership. I have been quite amazed to hear each of the opposition speakers attack the minister over his use of the word ‘communist’. He could have used the word ‘socialist’ or whatever, but most certainly there is community ownership of land as opposed to an individual or a family owning this land.

I did not go into the job in 1983 with any ability to manoeuvre. The most successful community appeared to be Hopevale. I met with a person called Lester Rosendale, who became one of the leaders of the group that got together to change things in Queensland and who at that time was secretary to the advisory council of the church at Hopevale. The Rosendale family were heavyweights in the church. I said, ‘What have you done with land ownership here?’ He said, ‘We have private ownership; here’s the map.’ He had a big map of Hopevale with all the blocks drawn up on it. I said, ‘Legally it is still supposed to belong to the government with a beneficial ownership to the church.’ He said, ‘No, forget about that.’ I said, ‘What about tribes?’  He said no and waved it off. I was looking for a reason as to why Hopevale was the shining light of success amongst all the Aboriginal communities. It was the only one that had this private ownership arrangement.

We moved on. The next community I went to was Pormpuraaw. I met Jackson Shortjoe and Eddie Holroyd. I said, ‘What do you want?’ One of them, Eddie Holroyd, said, ‘We want self-management.’ I said: ‘That’s coming. Forget about that. Move on to the next item.’ Jackson Shortjoe then said, ‘I want to have a go at the cleanskins, the cattle that are running around here unbranded.’ The cattle were running around on government land. At one stage they were government cattle but no-one had been able to get them in. I think some members of the community were joining their cousins in little raids on the cattle in Pormpuraaw and moving them out to their cousins’ place. He thought it would be better if he was mustering them for himself. I said: ‘If you are going to do that, Jackson, you are going to have to build yards and put up fences. You will have to put out a lot of money here. I don’t have government money to give you and I’m pretty certain the feds won’t give you any money. Every bit of money they have put into anything they’ve lost, so I doubt whether you will get anything from them. What say you take up private ownership of a block and then you get some money off the bank to do it yourself?’ He said, ‘But we wouldn’t be able to get the private ownership.’ With a confidence that I most certainly did not feel I said: ‘I’m the boss. I make the decisions. If I decide that is going to be private ownership, then you will own it and nobody else.’ He said, ‘Yeah, that would be good.’ Later we had discussions with Eddie Holroyd and went down the same path conversationally.

Let me go back to Hopevale for one moment, because CDEP, the Work for the Dole scheme, started off with a Hopevale person called Greg. They did a 60 Minutes program on the scheme. It is the only time in the history of 60 Minutes that they did a repeat of a program the following week, because the positive public reaction was so immense to what Greg had achieved at what was then Weipa South and is now Napranum.

Hopevale went on to produce Matty Bowen—the greatest footballer in Australia at the present moment, to quote Peter Sterling; some of the selectors obviously disagree but I would agree with Sterling—Eric Deeral, the first Aboriginal person to be elected to a parliament in Australian history, and Noel Pearson, who needs no introduction to this parliament.

Torres Strait Islanders, in sharp contrast, are arguably the most successful race on earth in terms of the mothering of children and life expectancy, despite being away from medical access, in terms of trauma, alcoholism and crime. I remember being on Mer Island and asking the storekeeper how often the store got broken into, because we used to average one government store a week in a lot of Aboriginal communities. The lady said, ‘What do you mean?’ I had to explain to her what ‘broken into’ meant and she recoiled in horror and said, ‘No, we don’t have anything like that.’

The Mer case or the Mabo case, as it is known now—it was really the Father Passi case, because Mabo was picked out on the second day—one of the most famous cases in Australian jurisprudential history, centred on the fact that these people knew that they owned this area of land. It was acknowledged by everyone on the island that they owned that land. The government did not really interfere in any way with that ownership so they had continuous occupation and ownership which was universally recognised. I went on to recognise that arrangement in the legislation. If the Premier, God bless him, had listened to me and we had released the deeds of grant on Mer Island, there would have been no Mabo case. But he listened to $12½ million worth of lawyers’ advice, which was entirely wrong. But the judges were right in saying that those people owned that land. That was the decision of the Bjelke-Petersen government and every member of that government and every member of parliament recognised that ownership and so ultimately did the High Court—and who would argue with that decision? We could argue very much over the way it has been extended, but we will leave that for another day.

At Pormpuraaw we had only ever mustered 360 head of cattle. The government, which was responsible for Pormpuraaw, or Edward River as it then was, had only ever succeeded in mustering 360 head of cattle. But within three years, under Eddie Holroyd and Jackson Shortjoe, under the private ownership arrangements and the arrangements we had for the cattle, they got in 6,000 head. Under government-community ownership we got in 360 head, which was the maximum we ever got in. Then, under the control of the federal government, at the adjoining Aboriginal area, Aurukun, they started community ownership. The church had done a wonderful job there in fact. They had 12,000 head of cattle. It was turned over to community ownership and was run under community ownership, which really amounts to white outsiders coming in and doing it for you. That is really what community ownership amounts to: almost every store and cattle operation is run by outsider whitefellas, which is a dreadful situation in itself. It is demeaning for every single person of Aboriginal descent in these communities. The Aurukun cattle operation was run exclusively by whitefellas. They had inherited 12,000 head of cattle. Within six years they had no cattle at all. But under entirely black private ownership we went to 6,000 head of cattle mustered behind wire. This is an incredible success story which proves conclusively that if you move in this direction there is no reason why these people will not be just as successful as any other race of people on earth—if I may use the term ‘race’.

But I was in no situation to make these decisions. I must say that at the time I had read with very great interest the works of Konrad Lorenz, who received the Nobel Prize during that period for his work on territory and aggression, and Robert Ardrey—his magnificent books, including The Territorial Imperative. As one person remarked, it is the most important book since Das Kapital was written. If I were to reduce what Ardrey was saying in his group of books, of which The Territorial Imperative is one, to a single phrase, it would be that in Russia the year that the Communist manifesto was written was the same year that the Lincoln homestead act was propounded in the United States. Half of the United States was taken up under the Lincoln homestead act. Everyone got a mile by a mile for occupation, cultivation and production—those were the three criteria that you had to meet. You had to live on it, you had to produce something of value from it, you had to cultivate it and you had to use the land. If you did, you got a square mile for free. Remember the big land rush in the movies when they rushed to put their pegs into the ground? That land rush resulted from the Lincoln homestead act.

So Ardrey said that what happened was that Russia was turned into an experiment in community ownership and the United States was turned into an example of private, family territorial ownership. He compared the performance of both states. Russia was the biggest basketcase on earth, having to import huge amounts of food from outside, yet it had a bigger area of cultivated, arable land than the United States had—much bigger in fact. Nearly 90 per cent of the food produced in the United States by agricultural production was surplus to their requirements. They were feeding themselves and nine other people for every American at the time.

Let me move on and say that the question that I asked myself was: how do we move these people from where they are to where these people should be? I asked them the question first, because I actually had little say and little room in which to manoeuvre. So we went out and called a public meeting in each place and we said: ‘Hey, Fellas, this reserve area is in the name of the Queensland government. We’re the legal owners. You people are the beneficial owners, but the name on the ownership papers for Pormpuraaw, Kowanyama or Lockhart River is that of the Queensland government. We do not want to continue in ownership of this land. It is not right, it is not moral, it is not legal and it is not proper. We want to get out. We have to put someone’s name on this bit of paper. Whose name do you want on it? Do you want your local shire council name? Do you want your land council name? Do you want the government’s name to continue on it? Do you want private names to go onto this bit of paper? We will cut it up into little pieces and put private names on it. Whose name do you want to go on the bit of paper?’

They asked a lot of questions about private ownership. It was a concept they were not familiar with. At the end, about 3,800 people voted and only three voted against private ownership. Do you want to own your own house, your own farm and your own cattle station or do you want the council—whatever council or government that might be—to own it? Surprise, surprise! The vote was 3,800 to three. Nobody in this place has gone out there and asked them. Nobody has sat down and given them time. In this process that took three months, I think I was home for three nights. This process took an enormous amount of energy and commitment.

There are about 100,000 hectares of flat land at Lockhart River; it has a 60-inch rainfall. The land is very suitable for grazing or farming. We decided that at least we could plough out the blady grass and put in improved pasture and that would provide about two beasts to an acre or three beasts to a hectare. That would produce $50 million in income, which would have put the 100 families that lived at Lockhart River on an income of $400,000 each.

It would take a lot of money—we are maybe talking about $20 million—to move from where we were to put that fencing in, to plough out the blady grass, to plant the improved pasture, to put in waters and to set up a bit of ancillary feeding. I did not have a government that would give $20 million to the people, and I am damn sure that the federal government, the Hawke government, after the series of disasters that they had inherited, were not going to put a cent in it. Clyde Holding told me that they most certainly would not. So where was the $20 million going to come from?

We felt that, if we put the blocks out to private ownership, these people would own a piece of land; they would have something they could take to the bank. Mr Deputy Speaker, when you think about it, that is the only way it can ever happen. The bank has to have some security, and it is the only one with pockets big enough to be able to provide the finance. As far as the house building went, we provided them with the wherewithal to build their own homes, and 360 jobs were created. The interesting phenomenon was that, where many houses had been utterly destroyed—and Kowanyama was a classic example of this—and probably 70 per cent of the houses had been destroyed by the occupants, people who were not involved with the building program suddenly started to look after their own homes. When people started to realise they could build a home themselves, it was enablement or, to quote Noel Pearson in his very wonderful speech to the Press Club, it was ‘capability’. In retrospect what we were giving those people was the capability to move forward.

I hear a lot about education. Peter Harvey-Sutton, a schoolteacher at All Souls, is about the only person I know who has been successful. He frankly said, ‘If you want a place in the football team, you had better turn up to school and do your homework.’ It was a very cogent argument. Most of the leadership of the Aboriginal communities in Queensland come from All Souls school, and it is the result of very great people like Peter Harvey-Sutton as an educator.

Finally, Bjelke-Petersen said, ‘How many families do you have, Bob, that can run these things?’—he did not think we had too many; I think he thought I was a bit of a bleeding heart—and I said, ‘Five’. We had about 40,000 people living in these communities. He was quite staggered. I think he expected me to say hundreds or thousands. He said, ‘Only five?’ and I said, ‘Well, you asked me the question!’ At that point in time he realised, as everyone in this place should realise, that we must move forward. Do not worry about the past. Let us move forward into the sort of world that we can create for these people. (Time expired)

7:48 pm

Photo of Martin FergusonMartin Ferguson (Batman, Australian Labor Party, Shadow Minister for Primary Industries, Resources, Forestry and Tourism) Share this | | Hansard source

I must say that it is a pleasure to follow the member for Kennedy. This debate is about the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006, and I am trying to work out in my own mind where the Soviet Union fits into the debate—but it was a delight to listen to the member. Having said that, I think we have to front up to the fact that the centre of this debate is the question of consent. It is about the rights of our own Indigenous community and whether or not we treat them with respect and are willing to support their determination to work out their problems.

I think the starting point for the discussion is revisiting a government majority report of the House entitled Unlocking the future: the report of the Inquiry into the Reeves Review of the Aboriginal Land Rights (Northern Territory) Act 1976. To understand the debate, you only have to go to the very first recommendation of the report. That report simply says that, if we are going to have a look at the future of this act of parliament, we have to start thinking about the requirement to consult the traditional Aboriginal owners and their requirement to give consent to changes with respect to the very operation of the bill before the House this evening. I think that is the benchmark for our not only being able to work with traditional owners and the Indigenous community generally to achieve a proper assessment of land rights legislation but also making sure that we give them the capacity to pursue and put in place not only self-determination but also a major improvement in the social indicators that are of concern to the great majority of Australians—issues going to access to housing, the level of education attainment and problems with health and employment, just to name a few.

Interestingly, the history of the act will show that it provided for the immediate transfer to Aboriginal people by freehold title of 258,000 square kilometres of land, which was formerly government reserve—land set aside for Aboriginal people in the Northern Territory. It also correctly provided for the processing of land claims, which is one of the issues that I want to address this evening, based on traditional ownership with the claims lodged by land councils to an Aboriginal land commissioner. About 44 per cent of Northern Territory land has been granted as Aboriginal land under the existing act, with a further 10 per cent subject to claim.

The legislation to date has provided for traditional owners in certain circumstances to refuse consent to mining and other developments on their land. That is not because they are against development; it is about trying to make sure that there is a balance between development and traditional rights of our Indigenous community. It has also provided for negotiations with developers and the payment of royalties to the Aboriginal beneficiaries, which is about the distribution of financial assistance to Aboriginal communities and the funding of land councils so that they meet their expenses in looking after the Indigenous community and properly representing them, with 30 per cent of those royalties being for the benefit of incorporated Aboriginal groups in the Northern Territory. That is the background of the legislation before the House this evening. Importantly, it is part of our trying to front up to the errors of our ways in days gone by.

The problem is that this bill seeks to undermine the principles laid out in the Aboriginal Land Rights (Northern Territory) Amendment Bill. The intent of this legislation is to actually diminish the principle of self-determination. I personally believe that is plain wrong. Not only is that my view but it is also the view of the opposition, as reflected in a second reading amendment moved by the member for Lingiari, Mr Warren Snowdon, who knows better than anyone in this House the challenges confronting the Indigenous community. Unlike anyone else in this House, he spent the last week consulting different communities in the Northern Territory about their view on the draft legislation and how the opposition should react to it so as to ensure their voice is heard in this debate. Unfortunately, the member for Solomon, who also represents a very small part of the Northern Territory, has not taken the opportunity to consult the Indigenous community and does not properly articulate their views in this debate.

As shadow minister for resources, there are some aspects of the bill that the opposition very much supports and these provisions have the support of the Indigenous community. The Indigenous community of the Northern Territory wants investment. It wants to develop resources and wants to ensure that in the development of those resources it is consulted with a view to maximising the return not just in the form of royalties to the Indigenous community but, more importantly, in social and economic development. The Indigenous community more than anyone wants economic development in the Northern Territory. It wants resource development and tourism. That is about creating opportunities locally for training, schooling, employment and enlarging the economic cake available to the Indigenous community in the Northern Territory.

I think it is about time that the Minister for Families, Community Services and Indigenous Affairs understood that he is wrong. The Indigenous community is not anti economic development. It is more pro economic development than the minister himself. It is a question of how you do it. The best way to achieve development in Australia is by sitting down and negotiating with people and taking them with you. That is the intent of the act, as it currently stands. But, unfortunately, it is not the intent of some of the changes embodied in the bill before the House because they actually diminish the capacity for land councils in the Northern Territory to properly represent and lobby on behalf of the Indigenous community.

With respect to the issue of resources, following consultation over a long period, the changes embodied in the bill have the support of the Indigenous community and appropriately so. That is why the opposition also supports them because they are aimed at trying to get a decent outcome—trying to facilitate development over a shorter period and trying to shorten the negotiating period. So, in the interests of all groups, it is proposed that the negotiations covering mining access to Aboriginal lands be streamlined. That has arisen after a period of consultation. It is about consent. It includes the ability of the Northern Territory government to establish deadlines for negotiations after an appropriate period in order to encourage quicker agreements. It is about preventing protracted negotiations. It sets down a core negotiating period of approximately 30 months to provide a realistic time frame for negotiations on exploration and mining developments. We have achieved it in the past and we can do it better in the future. If you have any doubts about that, just look at the success of the negotiating process involving the  upgrade and extension of the Darwin to Alice Springs rail line. That was done in consultation with and support of the Indigenous community. People put the effort into actually achieving an outcome. The Northern Territory will be able to set more realistic deadlines for people to work towards and that is what it is about—people working towards realistic outcomes so that they all know that if they achieve the necessary outcome and negotiations, everyone benefits.

It also sends a message to some in the mining sector that we will no longer cop warehousing of areas. This bill aims to prevent the warehousing of areas of Aboriginal land where there is no intention by a mining company to explore in the short to medium term. That is not just about the Indigenous community’s best interests; it is about the best interests of all Australians. No mining company should be able to warehouse land without properly considering exploration and development. It puts the onus on these mining companies to pursue the exploration opportunities and decide whether they are actually going to mine. It is not a challenge to mining companies with a good reputation that supports them; it is about the rogues in the industry who are not prepared to make the necessary decisions about exploration and development. It also reinforces the importance of local management by delegating decisions to the Northern Territory government. It will facilitate faster and more responsive processes in development for the resources sector. It will also facilitate minerals development in the Northern Territory.

The problems relating to negotiations will diminish, but it also raises another serious question about how you conduct these negotiations. For an extended period now the Minerals Council of Australia has criticised the Howard government for not properly resourcing representative native title bodies to conduct these negotiations on an equal footing. These negotiations are not cheap. They extend over a long period and you need to consult anthropologists and legal representatives to ensure that Indigenous communities are properly represented.

I remind the House that the Howard government is part of the review of the Aboriginal Land Rights (Northern Territory) Act. It has to get serious about properly resourcing and funding the Indigenous community’s representatives. Negotiations with mining companies have to be on an equal footing, because mining companies get a benefit as a result of successful negotiations. Think about what the Indigenous community wants out of resource development. They are saying, ‘We are pro resource development, but we want to be able to negotiate what is also of interest to us.’ And it is bigger than the issue of royalties. It is not just about money; it goes to issues such as social outcomes, health and education and how you lock in training. For example, how do we extend beyond Comalco in Queensland and the fact that this company has given an undertaking that any Indigenous kid who finishes year 10 is guaranteed a job at Comalco in Weipa?

Those are the types of models that we want to extend to the Northern Territory. But the Indigenous community has to be resourced to facilitate those outcomes, because it is about negotiating processes. The Indigenous community is prepared to manage and facilitate these processes but let’s resource it. It is not just about the law of the land, Mr Howard; it is also about avoiding lopsided negotiations. Lopsided negotiations are not good for industry, they are not good for the Indigenous community and they are not good for Australia at large. Lopsided negotiations, be they in the workplace or in the Northern Territory with the Indigenous community, where they are not conducted on an equal footing, leave a bitter taste in the minds of the participants in those negotiations.

That is not about good economic development in Australia. This is a very important bill, but I point out to the House and, importantly, to Australians listening to this debate that the Howard government is not prepared to extend the debate but is guillotining it at 8.30 this evening to limit the number of speakers. I think that is a disgrace. If it succeeds in gaining proper consent and proper consideration of negotiations, this bill will create long-term economic opportunities for Australia. Why, therefore, should the Howard government limit the opportunity for members to make a contribution to what is a very important debate for the future of Australia?

Having dealt with some of the positive aspects of the bill, I want to remind the House that there are some negatives. I have serious concerns about a range of issues raised by the member for Lingiari and reflected in his second reading amendment, which I absolutely support. Let us go to the issue of land councils. Historically, they have had guaranteed funding so they can do their job. The government now suggests that guaranteed funding should be replaced by ministerial discretion. I just scratch my head. That is about Big Brother from Canberra again saying: ‘If you do what you’re told when you’re told, you might get funding.’ That is not about cooperative negotiations and encouraging the Indigenous communities; it is about waving the big stick—‘Do what you’re told when you’re told or we’re going to cut out your funding.’ It is about politicisation; it is not about a long-term commitment to economic development and the improvement of the lot of Indigenous communities in the Northern Territory.

It is also about taking away the independence of the councils. If you are prepared to express opposition to a bill such as this, which is premised on consent, then it is stored in the back of the minister’s mind and you will pay the price over time because you dared to question the decision-making process of government. I am totally opposed to that approach to government, which should be about a strong democracy and people being able to express whether or not they support an aspect of proposed legislation. It is wrong to give the appropriations to the minister so he can decide who the favoured sons and daughters in the Indigenous community will be if they do what the Howard government tells them. Funding is essential for the activities of the Aboriginal land councils in the Northern Territory and their capacity to facilitate negotiations with the resources sector and a whole variety of other sectors, including the tourism sector, which I have responsibility for as shadow minister.

Then there is the issue of 99-year leasing. Where else in Australia would you get a bill which says that not only is an Indigenous community required to accept 99-year leasing but Big Brother in Canberra is going to determine capping at five per cent per annum of the approved capital value of the land for rental purposes? That is not about proper market considerations. Let the market play out. If there is going to be leasing for a 99-year period, then let the market determine the appropriate rent. Why should politicians interfere with the operation of the market? Let’s have proper economic development. Make the investment and take the market risk. But here we are told that, no matter what the economic potential of development is on Aboriginal land in the Northern Territory, the maximum rate will be capped at five per cent. Why would the Aboriginal community bother to cooperate? There are a whole host of economic opportunities in the Northern Territory which will return a bigger rent than five per cent, but this government says you will only be entitled to five per cent.

Then there is the issue of more land councils to be set up to suit the needs of the government. There is a suggestion that some of the amendments embodied in this bill might, in fact, breach the Racial Discrimination Act. It is for the Indigenous community to consider their legal options. I encourage them: while the rule of law applies in Australia, explore your available options.

Unfortunately, time is limited this evening. Members are not really in a position to use all of the time normally available to members of parliament because of the guillotine of the debate. In conclusion, I say that there are aspects of this bill that, as the shadow minister for resources, I totally support. They are about facilitating economic development in the Northern Territory and, in doing so, bringing long-term benefit to Australia and, perhaps more importantly, bringing long-term economic and social improvements to the lot of the Indigenous community.

Other aspects of the bill are crude, un-Australian and unacceptable. I urge members of the House to support the second reading amendment. I also urge those members on the other side of the House who supposedly have a conscience—they are talking about the rights of refugees at the moment—to think about the rights of the traditional owners of Australian land. Think about the Indigenous community. If you are prepared to talk about crossing the floor on the rights of refugees, think about crossing the floor on the rights of our own Indigenous people. Support the right to decent economic development based on consent of the Aboriginal people—home-grown Australians who want to determine their own future. It is a challenge for members with a so-called conscience to stand up on Aboriginal land rights in the Northern Territory. I commend the second reading amendment to the House. I support those aspects of the bill relating to resource development in the Northern Territory, but I indicate my total opposition to the other aspects of the bill that members of the opposition have touched on in this important debate.

8:05 pm

Photo of Peter AndrenPeter Andren (Calare, Independent) Share this | | Hansard source

The question that needs to be asked about the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 is: how much of it has been put together with input and agreement by the people who actually own the land we are talking about? Informed advice I have received is that the claimed nine years consultation from the discredited Reeves report onwards is ‘absolute garbage’. The Northern Territory government and the Australian government, as well as the land councils, stand condemned in their failure to properly disseminate information about proposals such as these to people who may have several, indeed many, languages but English and its peculiar terms is not one of their preferred or understood tongues.

Now we are having legislation rushed through yet again and, despite the minister’s visit to Northern Australia at the weekend, the landowners involved in this still do not understand the concept of a lease, let alone the word. So much for the excitement we heard from the minister today about the prospect of ownership. This, after all, is Aboriginal land. Their land title is inalienable and equivalent to freehold title. It is land owned by those whose ancestors were custodians of the land for tens of thousands of years before them.

Now we are about to return to the worst of paternalistic models. Through this legislation we set up a statutory body to take care of a head lease on traditional land and we ask its traditional owners to sign off for 99 years. This is at a time when many traditional owners—incidentally, ‘traditional’ is a term absolutely foreign to many of the affected people—do not know after 30 years what the land rights act is in fact all about. People are totally confused as to what a lease means. There is a massive communications problem that did not begin with this amendment; it began 150 or more years ago, and no real attempt has been made to address it in remote communities.

The difference is that this land, while equivalent to freehold title, is held communally, reflecting the fluidity and communal nature of Aboriginal landownership—quite a different concept to our Western, market based individualistic world views. The current Aboriginal Land Rights (Northern Territory) Act provides that, unless the act or some other law determines, the consent of the traditional owners, the landowners, is always required before others may use the land. As things stand at the moment, if someone wants to use the traditional land, the relevant land council conducts negotiations with the traditional owners, with those affected by the proposal and with the proponents. The land council must respond to the views of the traditional Aboriginal owners. The councils must also use traditional or other agreed processes to allow those owners informed, collective consent. When a proposal is agreed to, the land council then directs the land trust to enter the agreement.

When you consider that many traditional owners do not speak or read English, the substantial difficulties imposed by the incredible isolation of many of these people and the very different world views and concepts understood by all parties, it is clear how important and huge a task this is for the land councils. Yet the land council process is not without its serious weaknesses, which could and should have been addressed before this broad-brush and renewed paternalistic approach. I hear stories that even land council personnel cannot communicate with people in the homelands, yet their permission is sometimes obtained by dubious and highly questionable means. Is that now to be repeated many times over across northern Australia?

This legislation may not technically be taking consent away from landowners, but I am advised that it will have that effect unless this process is explained far more clearly—in fact, unless it is explained full stop, which it clearly has not been, from the feedback I have received from contacts throughout the Northern Territory. I understand that major banks could well have mortgages under a sublease over any land subject to these agreements. Say, for instance, the new leaseholder cannot pay. What happens? Do they sell? To whom? Could a non-Indigenous couple from Melbourne pay out the lease and secure a holiday home on the north Australian coast? Tell me why this cannot happen, Minister.

Under this legislation you also do not any longer need a permit for entry to leasehold land. We could have a scenario where half the land affected by this legislation is eventually owned by whitefellas. According to the explanatory memorandum the legislation will open up Aboriginal land. Exactly. What better way to finally undermine aboriginal landownership, which is not a Torrens title type ownership but a spiritual association that goes back 40,000 years at least.

The traditional owners simply do not understand the nature of these amendments, as was required under the original act. Schedule 1 of the existing act gave unalienable rights to traditional owners. It recognised clan and alliance or nation ownership. The existing act services the Aboriginals Benefit Account, which holds moneys equivalent to the royalties paid for mining. Thus, royalties are paid by mining operations to the Northern Territory government as owner of the minerals—with the exception of uranium, which goes to the Commonwealth—and the Commonwealth reimburses the equivalent amount from consolidated revenue into the ABA. These funds are then disbursed according to a formula to the land councils in order to provide for development and actions to benefit the owners of the land. However, the minister retains control over the ABA. A guaranteed 40 per cent is set aside to fund the administration of all four Northern Territory land councils.

It is worth noting that the ABA has net accumulated assets of $109.2 million, which are owned and controlled by the Commonwealth. This equity, from royalties and from Aboriginal land, is owned and controlled by the Commonwealth and cannot be accessed, leveraged or borrowed against by the land councils or the traditional owners.

I understand that there are elements of the bill, particularly amendments to part IV of the act, regarding mining provisions, that have been negotiated and supported by the land councils, who believe they will provide greater workability of the act—and that is fine. But there are parts of this bill that have not been negotiated with the land councils, that have been agreed to by both the Commonwealth and the Northern Territory governments without the agreement of those who actually own the land and their representatives. The processes in this bill abuse the very rights and recognitions of every property owner in this country. This has inserted provisions that completely ignore and undermine right of control over your own land. It undermines and renders invalid control, and thus essentially the ownership of that land for substantial periods of time—in fact, for generations.

The bill allows an association whose members are either traditional owners or residents of an area to apply to a land council to have powers delegated to it. But, if a land council refuses to delegate its powers or functions, the minister can override it. If there were provisions to ensure that a majority of non-owners could never override the objections of the traditional owners—who could otherwise then in effect lose any semblance of rights as an owner—this might not be so objectionable. However, such provisions are not included. The bill further provides that, once a delegation is made by a land council, it cannot be varied or revoked without the request of the delegate or the minister’s approval.

Further, if the land council does not agree with the delegation, the minister may completely override the council and delegate the powers or compel any variation to that delegation. This is all the more alarming when the land councils’ functions and powers that under this bill can be delegated to another body include decisions about mining on Aboriginal land and leasing on Aboriginal land. Not only that, but that body can be made up of non-Aboriginal people and a majority of Aboriginal residents of the area, who need not be the owners of that land. It is easy to see that a non-Aboriginal group could easily gain control over what happens on land owned by Aboriginals.

Currently the act allows for the creation of new land councils provided that a ‘substantial majority’ of Aboriginal adults living in the area agree. The Commonwealth was asked by the land councils and the Northern Territory government to amend this section to ensure traditional owners would have to consent to any proposed new land council. This is also in line with the recommendation of this parliament made back in 1999. However, the government not only disagrees with this approach but introduces in this bill the principle that a single Aboriginal person who is resident in the area can apply for the establishment of a new council. Other bodies such as a council, an association or a company with a majority of Aboriginal members may also apply.

But what of the traditional landowners? After all, the land is Aboriginal land only because these traditional landowners have fought the land claims to receive their rights under the title granted to that land. What happens in townships and communities where a large proportion of the Aboriginal population are not traditional owners? This is completely at odds with the whole process of being granted title to the land in the first place.

Further, the whole movement over many years has been to remove smaller, less efficient services and to remove duplication and impediments to attracting the very best in professional staff. As the Australian National Audit Office pointed out, the informed decision making processes facilitated by the administrative arm of a land council includes the input of lawyers, mining experts, anthropologists and so on. A land council’s strength is highly reliant on the professionalism that only the larger councils can attract. Or is this the very reason for these changes in the bill—to undermine the larger and potentially far more professional and more independent land councils?

Under the act a land trust could lease to the Northern Territory government or its entity the whole of a township or community. In return the entity would pay rent to the land trust of a fixed five per cent of the improved capital value. It must be asked: how do we work out the value of this land, particularly land in more remote areas? Not only this, but the peppercorn rent paid by the Northern Territory government to the land trust on behalf of the traditional owners is paid from the ABA, the Aboriginal Benefits Account. So the Northern Territory government is using the landowners’ income to pay the landowners peppercorn rent, determined by its own VG, on their land, over which they lose control for 99 years!

I know there are others who want to speak in this truncated debate—and it is deplorable that debate on such an important piece of legislation should be curtailed in such a manner—but I want to ask finally: what in this bill will attack the rudimentary health care problems that exist on a daily or weekly basis? How will they be fixed if the people suffering from illnesses can borrow money to buy a house for 99 years? They are asking today: ‘Where do we find the resources?’ We are told there will be packages put in place. They are saying, ‘What if we can’t afford to pay?’ How will the sewers, the water in each house, the roads and the telephones be fixed? Someone mentioned here bakers and candlestick makers and all these businesses that are going to grow out of nowhere.

If you take the trouble to read Richard Trudgen’s book, Why warriors lie down and die, you will see that in a short space of seven years he saw the complete collapse of many communities because their ability and their right to make decisions for themselves—in fact the very traineeships that were in place in some of these communities—had been taken over by imposed contracts from outside. So there are many other ways that we should be looking towards the benefit of these communities. It certainly is not in this particular act. This bill should be redrafted but, most importantly, it should honour the integrity of the existing legislation by applying the three vital factors missing in this process: communication, consultation and consent.

8:19 pm

Photo of Bob McMullanBob McMullan (Fraser, Australian Labor Party) Share this | | Hansard source

I join with others in regretting the fact that the time available for all of us to speak on the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 has been cut so short. I will not waste any of my limited time railing against that—I will allow people to make judgments for themselves. One of the things that strikes me about this bill is that it illustrates an emerging feature of the Howard government: the Howard government hates agreement on issues that it might be able to exploit as wedge issues. This is an example, and a very sad example, because we have contained within this bill a significant amendment to the Aboriginal Land Rights (Northern Territory) Act supported by the government, the opposition, the Northern Territory government, the mining industry and the traditional owners and their representatives on the land councils on matters relating to mining and exploration.

It would have been a very significant positive achievement if we could have come into this parliament and made an amendment to the Native Title Act that would have been a significant plus for economic development with unanimous support in the parliament—I cannot speak for the Independents but, from the sound of their remarks, with the unanimous or at least the overwhelming support of the parliament—and with the support of the traditional owners, the mining industry and the Northern Territory government.

That could have been achieved. Everybody knew it could have been achieved. It was clear and known but it was a totally unacceptable outcome to the Howard government because it was good for Indigenous people and it was good for the mining industry but there was not a vote in it. It did not split the community. There was no division from which a government could gain political advantage. Where there is agreement on areas that are potentially wedge issues, this government insists upon driving in the wedge, achieving the political purpose by winning some section of that community whose votes it might not otherwise get, even if it means that those matters which could have been dealt with by agreement and consensus are torn apart.

We of course saw that illustrated with regard to the ACT civil unions legislation recently, where Laurie Oakes in last week’s Bulletin blew the whistle and made it absolutely clear that the Attorney-General and probably others in the government had in place a process that probably—and in my view, looking at it from an ACT end, almost certainly—could have led to agreement. But the Prime Minister scuttled the arrangement and made sure that the detailed proposals that could have led to an agreement were never sent to the ACT government so the agreement could never be reached and the wedge could be inserted.

That is why the first part of the second reading amendment about ‘welcoming the measures contained in the bill, including the mining and exploration provisions’ is so important. They could have been major unifying features, bringing together all sections concerned about economic development on Aboriginal land in a very positive way, but it was not good enough. We could not have discussion, negotiation or consensus because major changes have been made to the rights of traditional owners and their representatives on the land council without discussion, without negotiation, without listening and without an attempt at reaching consensus—in fact, with a deliberate attempt not to achieve consensus. No other landowners in this country would be treated this way. Let us remember that when we say ‘landowners’ the people we are talking about—the traditional owners affected by the Native Title Act—are people who have won their title. It has been determined that the title to this land is theirs; yet, without even talking to them, we pass a law to change the way it can be dealt with. No other Australian would be dealt with in this way, yet the government does not even blush. It charges headlong down this path in a manner which it has been warned by the Aboriginal and Torres Strait Islander Social Justice Commissioner risks breaching the principles of the Racial Discrimination Act 1975 and is likely to have us in court.

What will happen? The Howard government will say the people going to court are being divisive. Shock! They are holding up development! But they know that this is a deliberate attempt at creating that division and at undermining the bodies that have the capacity effectively to represent and negotiate on behalf of the traditional owners. And it is not as though that is a secret. I was the Deputy Chair of the then Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, which reported on the operation of native title representative bodies. It reported to this parliament this year that, of all the mainland native title representative bodies, the two that were most effective were the Central Land Council and the Northern Land Council. In the words of the evidence presented by the Indigenous Land Corporation in talking about the difficulties it has dealing with these bodies, they were ‘performing at the better end of the spectrum’. They are two of the three—the third being the Torres Strait Regional Authority, which is not relevant to this debate—that are the most effective and the best to deal with.

So what do we do here? We say: ‘We’ll undermine them. We will undermine them financially, and we will undermine them structurally. We will create that proliferation of small bodies which every bit of previous evidence has said fails.’ Every bit of previous evidence says that, if you split up the big bodies, require them to delegate here and allow smaller split-off councils to be created there, it is less efficient. Everybody who has looked at it has found that, and it is not surprising; but every bit of evidence points to that. The government’s own majority on this committee found that—properly, on the basis of evidence put before it. But the government ignored them and, in fact, did the exact opposite.

We have letters from the Chief Minister of the Northern Territory expressing widespread concern about elements of this legislation, and the government does not respond. It just charges on, when we know it could have had agreement about mining and exploration provisions from all the major participants, including the Northern Territory government. We could have had that bill through and it could have been a very significant positive, enhancing the debate about Indigenous economic development because we can see a way on which agreement can be taken going forward. But that is much too harmonious! There is no division in that. There is no vote in that. There is no split in that.

Let me come back to the point that no other landowner in Australia would be treated like this. I am here as a representative of the Australian Capital Territory, where everybody’s land is leasehold land. Can you imagine what would happen if we brought into this parliament a bill that sought to limit the capacity, the rent, which leaseholders in the ACT could have on their land? We will legislate a cap. These are people who lease Commonwealth land here in the ACT. Perhaps we should have a bill to say that there is a cap on how much return they can get. All my constituents would properly be outraged, and you would not dare do it to them.

Photo of Mal BroughMal Brough (Longman, Liberal Party, Minister Assisting the Prime Minister for Indigenous Affairs) Share this | | Hansard source

It’s not about the constituents.

Photo of Bob McMullanBob McMullan (Fraser, Australian Labor Party) Share this | | Hansard source

It is about their rights, and you are treating the traditional owners in the Northern Territory in a manner you would not dare treat any other Australian. It would not even occur to you to treat any other Australian like that. It is wrong, it is improper and it is also, sadly, very bad economics. It is ineffective. I strongly support some of the measures in this legislation. They would make a substantial economic contribution. I forgive you, Minister, because in your case it is ignorance, but in some parts of the government it is a deliberate attempt to be divisive. A week ago you knew nothing. Now you are an expert, and you have made the transition without gaining any knowledge.

We have here a very significant piece of legislation. It has about 45 more seconds to be debated in this parliament, which is a great pity, but that is the way the world is. It is a great lost opportunity to make a unifying step forward. We are going to have here a divisive step—a step that will almost certainly end up in court, that will almost certainly end up with traditional owners in dispute with the government, when we could have had a unifying set of progressive economic reforms which had economic literacy and political legitimacy. This has got neither political legitimacy nor economic literacy. It is very poor economics as well as being very divisive politics.

Photo of Alex SomlyayAlex Somlyay (Fairfax, Liberal Party) Share this | | Hansard source

Order! In accordance with the resolution agreed to earlier today, I call the Minister for Families, Community Services and Indigenous Affairs.

8:30 pm

Photo of Mal BroughMal Brough (Longman, Liberal Party, Minister Assisting the Prime Minister for Indigenous Affairs) Share this | | Hansard source

I thank the honourable members who have contributed to today’s historic debate on the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006. This legislation will allow Aboriginal Australians in parts of the Northern Territory who have been denied rights for many years to be able to own their own home. I think it almost defies belief that in 2006 we are at a stage where many Australians simply do not have the right to own their own property where they desire to live and where, in many cases, generations have lived before them. This proves beyond a shadow of a doubt that the enforcement of collective rights over individual rights has been an abject failure. As the Chief Minister of the Northern Territory, Clare Martin, recently said, self-determination was the biggest mistake. Unlike those who sit opposite, their colleagues in the Northern Territory agree with the thrust of this legislation. The Northern Territory’s Minister for Housing, Mr Elliott McAdam, who is of course of Indigenous descent, very much supports this and understands it is about—

Photo of Warren SnowdonWarren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for Northern Australia and Indigenous Affairs) Share this | | Hansard source

He is an Indigenous person.

Photo of Mal BroughMal Brough (Longman, Liberal Party, Minister Assisting the Prime Minister for Indigenous Affairs) Share this | | Hansard source

An Indigenous person—I stand corrected; you are right. He says it is all about choice and we agree with him. It defies belief that the opposition can think there is somehow a conspiracy and it is about denying people’s rights. It is simply not about that all.

As I said to the parliament earlier today, over the last two days, and last month, I met with the people of Wadeye, the people of the Tiwi Islands—Nguiu in particular—who have already signed a heads of agreement and also the people of Galiwinku. Many in those communities are excited about having for the first time the same rights as other Australians. This is something that we want to give them. It is something that we should not even be debating; it should just happen naturally. The reality is there has been nine years of debate on this issue—nine long years of talking to people. It is important that those who sit opposite recognise that this is not the end of the consultation. I say to the member for Canberra—

Photo of Bob McMullanBob McMullan (Fraser, Australian Labor Party) Share this | | Hansard source

Fraser.

Photo of Mal BroughMal Brough (Longman, Liberal Party, Minister Assisting the Prime Minister for Indigenous Affairs) Share this | | Hansard source

Sorry—the member for Fraser. I say to him: this is not the end of the consultation. No-one is being forced to do this. What will happen from here is that those communities that wish to participate will have the right to do so and they will then negotiate.

Photo of Bob McMullanBob McMullan (Fraser, Australian Labor Party) Share this | | Hansard source

Mr McMullan interjecting

Photo of Mal BroughMal Brough (Longman, Liberal Party, Minister Assisting the Prime Minister for Indigenous Affairs) Share this | | Hansard source

The member for Fraser raises the issue of services. You know what we asked them to do? We asked the Territory Labor government to provide Indigenous people with the most basic things that they deserve: decent policing, decent education and decent health. I am negotiating on behalf of those Territorian Aboriginal people who have been denied that right by the people who sit opposite—that is an absolute disgrace—and I will continue to do that.

We have a couple of amendments that we will move today. I will table amendments that provide an option for the Commonwealth entity to hold township leases and other minor amendments together with a supplementary explanatory memorandum and a minor correction to the explanatory memorandum.

I have listened to the people whom I spoke with at the Northern Land Council in the last couple of days. On the five per cent cap, I inform the House that it is my intention to move a further amendment in the Senate when this is finally debated removing that five per cent. So far be it from me not to listen. We do listen to people. The reality is that that was set upon because it was a realistic rental agreement that most real estate proprietors would expect as a return on their properties. We and the Northern Territory government will negotiate fair and equitable returns with people in return for their 99-year leases. Then there will of course be a negotiation between the leaseholder of the head lease and the people who want to own their property, in the same way as currently occurs in the electorate of the member for Fraser here in the ACT—because that is the only way that people can have property rights. It will be treated identically. I think that is what people have to understand.

It has been nine long years. We now have the Chief Minister of the Northern Territory, a member of the Labor Party, the housing minister of the Northern Territory, a member of the Labor Party, and the Indigenous President of the Labor Party, all agreeing that this is right. I simply ask—

Photo of Warren SnowdonWarren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for Northern Australia and Indigenous Affairs) Share this | | Hansard source

He doesn’t come from the Northern Territory. He knows nothing about this stuff.

Photo of Mal BroughMal Brough (Longman, Liberal Party, Minister Assisting the Prime Minister for Indigenous Affairs) Share this | | Hansard source

We now hear the member for Lingiari saying that his party president does not come from the Northern Territory and does not know anything about this. You know what he knows about? He knows about the rights of his people. He wants them to have the same choices that you and I have and so do I. I think it is an awfully sad day when a man who represents much of the Northern Territory does not believe that the Indigenous people there have the same rights that he and I have. I feel that is a disgrace. It is a sorry day for the Labor Party and a sorry day for the member for Lingiari but a positive day in that this bill will pass and that Australian Aboriginal people will finally have the same rights, which they so richly deserve, that other Australians take for granted. (Time expired)

Question put:

That the words proposed to be omitted (Mr Snowdon’s amendment) stand part of the question.

Original question put:

That the bill be now read a second time.

Bill read a second time.

Messages from the Governor-General and the Administrator recommending appropriations for the bill and proposed amendments announced.