Thursday, 17 August 2006
Aboriginal Land Rights (Northern Territory) Amendment Bill 2006
Consideration of Senate Message
Bill returned from the Senate with amendments.
Ordered that the amendments be considered immediately.
(1) Clause 2, page 3 (table item 20), omit “201A”, substitute “201”.
(2) Schedule 1, page 7 (after line 25), after item 4B, insert:
4BA Subsection 3(1) (subparagraph (a)(ii) of the definition of intending miner)
Omit “exploration retention lease or exploration retention licence, or has made an application for the grant of such a lease or licence”, substitute “exploration retention licence, or has made an application for the grant of an exploration retention licence”.
(3) Schedule 1, item 46, page 22 (line 20), omit “person”, substitute “approved entity”.
(4) Schedule 1, item 46, page 24 (lines 15 to 20), omit section 19B.
(5) Schedule 1, item 61, page 33 (after line 15), after paragraph 28(3)(b), insert:
(ba) section 19A (about grant of township leases);
(6) Schedule 1, page 60 (after line 29), after item 124C, insert:
124D Subsection 46(1)
Omit “exploration retention lease (whether that licence or lease”, substitute “exploration retention licence (whether that exploration licence or exploration retention licence”.
(7) Schedule 1, item 189, page 71 (line 28), omit “, (13)”.
(8) Schedule 1, item 192, page 74 (line 16) to page 75 (line 9), omit subsections 67A(12) and (13), substitute:
(12) This subsection applies in relation to an application:
(a) that was made under section 50 before the commencement of this subsection by or on behalf of Aboriginals claiming to have a traditional land claim to qualifying land (whether or not recommendations of the kind referred to in subparagraph 50(1)(a)(ii) have been made and whether or not the application covers other land); and
(b) that was given the land claim number prescribed by the regulations.
That the amendments be agreed to.
I think all sides of the House would agree that the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 is very important legislation. I noticed that one of the newspapers this morning—I think it was the Courier-Mailwhen commenting about this had a fact wrong. That is unusual for the Courier-Mail. It stated that this legislation was introduced by the Whitlam government. As was rightly acknowledged by those who sit opposite—I think it was the member for Banks yesterday or the member for Lingiari—it was Fraser government legislation and landmark, as it was. I certainly was not part of government at the time, but I think all those at the time had great hopes that this legislation would lead to a new and improved set of circumstances for Indigenous Australians around landownership and ultimately around self-determination. Unfortunately, again as I am sure we would all recognise in this House, that has not come to fruition.
There has been a nine-year period of consultation for this bill. Wonderful and positive contributions have been made by a variety of groups, by the Northern Territory Labor government, by the Northern Land Council and by individuals. And the process will continue. There has been a long and wide-ranging debate in the Senate on this bill and on the amendments to it and a number of different views have been expressed. The one thing we all agree on, whilst we may disagree on how it can be achieved, is that we all have the goal of alleviating the plight of the First Australians, the Australian Aborigines. The last 30 years have promised much but delivered far too little to many of these remote communities.
As I said in this place yesterday and previously, the bill before us, which I hope to bring to conclusion shortly, is not putting any requirements on Aboriginal Australians. It is making the way forward to a better future easier, should they elect to do so. The bill will make the operation of what is already available less onerous, quicker to implement and less confusing for those who are part of the process. But, most importantly, it can make reality what the rest of us take for granted—and that is the opportunity to own your own home in your own right, if that is something you choose to do.
The amendments we are reconsidering today are the culmination of amendments to the original bill that were moved in this place; amendments to the amendments, which are money matters and which were moved in this place; and then a range of other inconsequential amendments, predominantly made in the other place. This now brings it all together, and hopefully today we will bring this matter to a conclusion. The honourable member for Lingiari has a couple of other amendments he wants this place to consider, so I will not delay the House any further.
by leave—I move:
(1) Senate amendment 7, omit “, (12)”, substitute:
“, (12), (13)”.
(2) Senate amendment 8, omit the amendment, substitute:
“Schedule 1, item 192, page 74 (line 16) to page 76 (line 28), omit subsections 67A (12) to (17)”.
These amendments relate specifically to the issue of intertidal claims. The first amendment relates to item 189, proposed section 67A(5). It will have the effect of omitting paragraphs (12) and (13). The more substantial amendment, however, is an amendment to schedule 1. The purpose of this amendment is to omit proposed sections 67A(12) to (17)—all of those proposed sections dealing with the disposal of claims on intertidal zones. The purpose of this I will make clear. There has been no procedural fairness in relation to these amendments. We are trying to prevent the government from effectively extinguishing claims which have already been assessed by the land commissioner and recommended for grant but which have been not granted by successive federal ministers—Ministers Ruddock, Vanstone and now Brough. The recommendations for grant were made as a result of claims made in 2002 and 2003. The government is now moving to extinguish these claims. For each claim, Justice Olney stated that approximately 2,000 traditional owners would benefit from the grant. Justice Olney was also confident, judging from his long experience as land commissioner, that non-Indigenous interests would be accommodated as a result of his recommendations.
There has been no discussion with the traditional owners who would be affected by these amendments, as proposed by the government, and no attempt made to seek their agreement or otherwise. This demonstrates a total lack of interest by the government in sitting down and dealing with traditional owners in a way which is fair to their interests and to their rights as Australian citizens.
After all, what we are talking about here are claims which were made legitimately under the provisions of the Aboriginal land rights act, claims which were heard at a great cost to the Commonwealth, the Northern Territory and land councils representing traditional owners in the Northern Territory. During the land claims process I have observed and participated in land claims hearings over many years, and they are extremely arduous. But there is no fairness in this approach, because the claims have been made, the hearings have been held and, as a consequence of those hearings, recommendations have been made by the land commissioner—recommendations which sit on the desk of the Minister for Families, Community Services and Indigenous Affairs.
If the minister were reasonable and the government were reasonable, they would have dealt with these claims once they had arrived on their desks and the land could have been granted once issues of detriment, should there be any, had been properly addressed and dealt with. There has been no attempt by the government to validate why it is that they are proposing to go down this course. The only reason that I can contemplate is that they are doing this because of political interests not in this chamber.
There is absolutely no doubt at all that this undermines the rights of Aboriginal people in the Northern Territory as traditional owners and, I would argue, deprives them of rights as Australian citizens. This is not what this parliament should be about. What we should be about is enhancing the interests of all Australians, building upon the rights that they currently have, not diminishing their rights or seeking to take away their rights and eliminating the possibility, in this case, that they might have land granted to them.
I know that the family of a very good friend of mine, Barbara McCarthy, the member for Arnhem and a member of the Northern Territory Legislative Assembly, is affected by these amendments. There has been no discussion with her family about these amendments. (Extension of time granted) In any event, people’s rights are being eliminated by the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006. It is not fair, it is not reasonable and it is not appropriate.
I know the minister and others travelled to the Borroloola region over recent months. Had they wanted to, they could have sat down at the time and discussed the matter with the traditional owners. It was not raised by the government and its representatives. In fact, the irony is that we were there to hand back land. The minister was treated with great respect by those people to whom he was handing back the land. They understood that this process not only took them a long time in their particular instance—islands off Borroloola—but recognised their integrity, their cultural and spiritual affiliation and their traditional ownership of the country that was handed back to them.
The minister spoke well on that occasion, and I was pleased he was there. But he could well have sat down with the other people who are claimants, whose rights he is now eliminating as a result of these actions. This is not fair, it is not reasonable and it is totally un-Australian. I say to the minister: reflect upon this action. I say to the minister: you have one last opportunity, Minister, to fix this problem by accepting our amendments. We are not seeking to substantially change other areas of the amendments that you have put forward—primarily because it is very difficult technically—but we are moving these amendments. I say to you, Minister: here is an opportunity for you to show your bona fides to the Aboriginal people of the Northern Territory—and, indeed, of Australia—to show them you understand their interests and their rights, to show them that you appreciate the significance to them of the land and to show them that you understand that they have been through this process, that land has been recommended for grant and that you are prepared to grant it.
While I do want to speak on the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 because I feel strongly about some of the matters that have arisen, it may also be appropriate if I speak just long enough for the Minister for Families, Community Services and Indigenous Affairs and the parliamentary secretary to get a few procedural matters sorted out, so let me do both things.
I was concerned when the bill first came in, and with the comments the minister made in introducing these amendments, that the criticism of what has followed on from the original land rights act is far too sweeping. There has no doubt been some disappointment, but let us not ignore the substantial economic and cultural benefits that are flowing from the recognition of entitlement to land. It was an important Whitlam government initiative that the Fraser government quite properly brought to fruition, and we ought not to underestimate that.
The minister said that there has been a very substantial degree of consultation. There has, and it led to a very broad area of agreement about amendment to the land rights act. It was very welcome; I agreed with every element of that. But the trouble is that this bill goes far beyond that. I am shocked now to find, after listening to the member for Lingiari and noting the amendments he moved, that it goes further than I was even aware.
I was not conscious in the original discussion that this significant impact on the intertidal zone and on the rights of people was to be retrospectively aggregated. I have never heard of such a thing. It must be very close to being unconstitutional in terms of these people’s claims, almost being property rights, being taken away from them. I assume that matter has been looked at by others, but I am shocked. Given what I understand to be the procedural agreement, I will give my colleague the member for Kingsford Smith a chance to speak. But I am distinctly unhappy about the broader process and shocked about this immediate matter with which we are dealing. I hope these amendments moved by the member for Lingiari can be supported.
In following on from the remarks made by my colleagues the member for Lingiari and the member for Fraser, I want to speak about the way this legislation has travelled through the House and about the significant disquiet on the part of Indigenous communities in the Northern Territory because they do not feel that the consultation process has been at all adequate.
Traditional owners and others have legitimate claims under way and are going through a process which includes, under the Aboriginal land rights act, claims on the intertidal zone. By the effect of the government’s legislation, they now find that they no longer have the capacity to proceed with the claims made by them for their country and for their rights to country. It is a particularly poor day for Indigenous people in the Northern Territory when legislation like this comes through the House at such a pace.
The member for Fraser mentioned the aspects of the legislation that Labor are supporting. During this debate, Labor put the proposal that we should split the amendments and identify those parts of the legislation which have consent and which mining organisations, traditional owners, governments and communities believe have purpose and merit. We want to look closely at those matters on which there is consent. They are the matters that should be considered by this House. That is what democracy is all about. People have anxiety and concern because they do not feel that they have been properly consulted or because they feel that their rights are being denied or taken away. Those rights, which were hard fought for some 40 or more years ago—and we will be recognising and commemorating some of those campaigns in this House over the next 12 months—will be denied under this legislation.
I again echo the comments of the member for Lingiari to the minister: there are amendments here which we think have merit and deserve your consideration. The way in which this legislation has come through the House has not served the people of the Northern Territory.
I thank the honourable members for their genuine beliefs and thoughts on this issue. I understand where they are coming from and where they believe the system is at.
I want to clarify that this legislation was brought up with and provided to the Northern Land Council in October 2005. It is not new; it has not been sprung on anyone. I do not want anyone to think that for a moment. I understand the views of members opposite. The current bill provides for the disposal of land to the intertidal zone and to the beds and banks of the rivers. We are literally talking about—as members would know but many in the gallery might not—a mud flat between high- and low-water mark. We are talking about that bit of land. It is about having a line in the sand so that people know what is in and what is out and where they have connection.
Claims covering the banks of rivers that are not contiguous with Aboriginal land are being disposed of. We believe that those claims which cover narrow strips of land are inappropriate to grant because of the issue of tidal water marks. For what it is worth, I might add that this legislation is in line with the proposal put by the ALP’s Northern Territory government. Whilst I understand the reasoning behind your position on this and your belief—
The member for Lingiari reminds me that they are not here; they are his ALP colleagues in the Northern Territory. It just goes to show that there are a range of views on this issue, even within the ALP. I commend the original bill to the House and reject the proposals put by the member for Lingiari.
That the amendments (Mr Snowdon’s) be agreed to.