Monday, 9 November 2020
Native Title Amendment (Infrastructure and Public Facilities) Bill 2020; Second Reading
In 2010 the Labor government introduced subdivision JA into the Native Title Act 1993. That subdivision is a useful set of provisions that provide a process to assist in the urgent construction of public housing and a limited class of community facilities, including education, health and emergency services facilities and staff housing associated with those facilities. The process is available where the construction of these facilities is by or on behalf of the Crown, a local government body or other statutory authority for Aboriginal and Torres Strait Islander people and communities on Indigenous-held land.
This reformed Native Title Act was introduced by Labor when last in government to deal with situations where there was an urgent need for the construction of public housing or other public facilities on land subject to native title. When introduced the provision included a 10-year sunset, which was to approximate the duration of the National Partnership Agreement on Remote Indigenous Housing Labor had put in place. This bill will extend the operation of these provisions for a further 10 years, and Labor supports this extension.
I take this opportunity to encourage the government to ensure that the subdivision continues to be used only when strictly necessary to facilitate urgent construction and that at all times proper consultations take place with affected communities before, during and after construction is completed. Importantly, the subdivision provides the consultation with affected parties, including periods for comment on any proposed construction. In his second reading speech when this measure was introduced in 2010, Attorney-General Robert McClelland emphasised that the bill 'also contains important safeguards to ensure genuine consultation with native title parties.' The new process sets out reasonable and specific periods for comment and consultation and provides flexibility to allow native title parties to choose the level of engagement they feel is appropriate for each individual project. It will be subject to state and territory heritage processes.
The bill also enables the Attorney-General to prescribe how consultations with native title parties should occur, including general guidance on the issues to be included in consultation. This includes the capacity to set more detailed requirements such as face-to-face meetings and provision of interpreters.' This requirement for consultation put in place by Labor is a very important part of this legal regime.
In May this year, the 46,000-year-old rock shelters at Juukan Gorge on the traditional Pilbara lands of the Puutu Kunti Kurrama and Pinikura people were blasted to rubble. This outrage occurred while this government sat by, despite warnings and attempts by the traditional owners to stop the destruction of their ancient heritage. While this disgraceful act occurred in a quite different context to the provisions being extended by this bill, what occurred highlights the importance of respect for the culture and heritage of First Nations communities and the need for those communities to be consulted with and listened to regarding actions that impact their traditional lands.
In the 10 years since these provisions were first introduced, concerns have been raised in some First Nations communities about the need not only for consultation prior to projects commencing but for ongoing consultation to take place to ensure that any facilities built under this legislation are managed in a manner that is appropriate and respectful to those communities. I believe that this kind of ongoing consultation is something that should be practised by the government as a matter of basic respect in its dealings with First Nations people. Unfortunately, that respect is not always forthcoming from this government, and I call on the government to listen to the concerns of First Nations communities regarding the need for ongoing consultation with respect to the management of facilities on land that is subject to native title and to adjust its conduct accordingly. I commend this bill to the House.
I rise to support the Native Title Amendment (Infrastructure and Public Facilities) Bill 2020, which will extend the sunset clause and provide for Indigenous people and their needs. The Morrison government is firmly committed to helping Indigenous Australia realise social and economic security. One of the keys to improving the livelihoods of Indigenous Australians is by unlocking job-creating housing and infrastructure projects which provide a positive public impact. This is particularly important now more than ever, as we pivot to our economic recovery from the COVID-19 pandemic.
This bill extends the operation of section 24JAA for a further 10 years. This section provides a pragmatic approach to rapidly delivering essential public housing and infrastructure on land that is subject to native title rights and interests. This section requires that native title holders and registered claimants be notified about relevant public works and may continue to exercise the right to be consulted. The bill has provisions to ensure that this occurs with the support of interpreters and the like. It mandates that this consultation process be completed within four months of notification.
This bill balances the rights and interests of native title holders with pressing community needs. The section has been used to streamline public housing for Indigenous communities, which supports the Morrison government's new Closing the Gap targets for 2031. The section has also been used for emergency facilities, such as women's shelters, fire brigades, police stations, public education facilities and staff housing for teachers and public health employees. Without this section, these important projects can take years, and the negotiation process can take years and in some cases can't be finalised at all. Alternatively, compulsory acquisition is required, which extinguishes native title.
When public and other essential infrastructure is desperately needed for these communities, such delays are unacceptable. At the same time, we should endeavour to avoid the undesirable impact of compulsory acquisition on native title. Therefore, this bill appropriately balances the rights and interests of native title holders and the important infrastructure needs of communities. With this in mind, the section retains its temporary status. The benefit of this is twofold. First, it means that the pressing unmet housing and infrastructure needs of Indigenous communities can be satisfied swiftly over the coming years. What we've achieved in this space can be reassessed when the provision is due to expire in 10 years time. Second, it maintains a long-term commitment to safeguarding the rights and interests of native title holders.
Since its inception in 2011 under the Labor government, the section has been used 126 times on almost 1,000 residential lots. It is often a last resort for overcoming stubborn impasses. The section has been used 52 times in Queensland and 74 times in Western Australia. It most heavily benefits these states because of their land tenure arrangements and unmet public housing needs. This includes 778 public houses and other facilities in Queensland, as well as 312 public houses and 73 other facilities in Western Australia. These are important projects that deliver better outcomes for our Indigenous communities. As we emerge from the COVID-19 pandemic, delivering on public housing and infrastructure projects will also support job creation and economic growth, particularly amongst Indigenous Australians.
This bill is part of the Morrison government's broader commitment to empowering and supporting Indigenous Australians, and I note that this week is NAIDOC Week. The theme for this year is 'Always Was, Always Will Be'. This is a very important theme for understanding Indigenous Australians and how we need to partner and walk with them on the solutions that are required to close the gap. The 2020-21 budget delivers investments for Indigenous people in health, housing, education and employment, and places Indigenous organisations and communities in line with communicating in the driver's seat to deliver for their people. This includes the continued commitment to the $5.4 billion Indigenous Advancement Strategy to support programs that will, hopefully, reduce the rates of Indigenous incarceration, youth suicide, and family and domestic violence, and, most importantly, improve health, safety, wellbeing, education, and employment and economic opportunities. It also includes the continued commitment of $4 billion in Indigenous health funding over the coming four years through the Department of Health which includes $975 million in 2020-21.
It is more than 30 years since I spent time in Arnhem Land as a young medical student. There is so much more that we need to achieve to help our Indigenous people close the gap from the non-Indigenous outcomes that we see here in Australia. It's so important that the social and economic security of Indigenous Australians remains a key priority for whatever government sits on this side of the chamber.
This bill is a practical way to ensure a timely response to the emerging needs of Indigenous Australians and promote better outcomes for their communities. It is critical that we continue to work in a bipartisan way on this important work of closing the gap, as well as pivoting to recover from the COVID pandemic as we work together for all Australia.
For those who are not aware, I was the minister for almost a decade in Queensland. It was very moving when people came up to me during the election campaign and looked me in the eye and said, 'I've got a Katter lease,' and I want to tell the House officially and formally that I had nothing to do with the issue of leases that bear my name. This is not the act of some clever genius. The only clever thing that I did was to go and ask the people what they wanted. Effectively, the state government owned these reserves in Queensland—three million hectares—so I went to each of the areas and said, 'What do you want?' They screamed and yelled, 'We want an inalienable freehold.' And I said: 'Shut up! I've got this bit of paper saying "the Yarrabah reserve", and I want to know whose name I put on the bottom of it. Do I leave the state government's name on the bottom of it? Do I put the Yarrabah Aboriginal Shire Council? The council has been set up under self-management, which is much more powerful than local government powers, so do I put the self-management council's name on it? Do I put a tribal name on it? Do I put private names on it, the same as they have in Cairns, Mareeba, Charters Towers or Sydney? Or do you have some other idea, like community ownership? What do you want?' After great argument, we visited some 28 communities and held big public meetings, and these alternatives were put to them. Surprise, surprise! Out of over 3,000 people, all of them voted for private ownership, the same as is enjoyed by every other person on earth. Three people voted against it, and all the rest voted for it.
In 200 years, not one single government in this country has delivered that to the people. If I speak with rage then, believe me, I feel that rage. We are the only people on earth, we blackfellas in Australia, that are deprived of the right to own a title deed to our home, and this legislation further deprives us of that ownership.
When the vote was taken by the community councils in North Queensland, even though it included south Queensland communities as well, not one single council voted for the proposal being put forward here—not one. One rat council, which happened to be in my homeland, hid out and did not appear for the vote. They snuck around behind everyone's back and sold their people out to the whitefella government. They were little puppets on a string doing what the whitefella CEO told them to do so he could get all of the house building going, and he gets a percentage of the house building, so he makes a lot of money out of it. But there's going to be no house building, because the state government said, 'We're not building any houses unless we own the land upon which we build the house.' Oh, so the only way we can get a house is for you to thieve the land off us? Is that the way it's going to be? There is a wonderful book out. I recommend anyone interested in this reads that book, by Sarah Maddison. It's called The Colonial Fantasy, and it's about how the whitefellas make all the decisions and, in 200 years, they've never gotten it right.
When I go to the Torres Strait and have people hold my hand and look me in the eye, with tears in their eyes, saying, 'I got a Katter lease,' I don't deserve any credit, because I had nothing whatsoever to do with it. I just went out and asked the people what they wanted. That's my total contribution: asking what they wanted. Then, I suppose, yes, we had a bit of bloodthirsty warfare in delivering. What did we deliver? You walked in off the street, into the council chambers, and you got a piece of paper—one page. You filled out the page, which was just a description of the land you wanted, and said, 'I want that land.' There might be a house upon it. It might be a cattle station block. It might be a market garden block. It might be a block to build a chemist shop in the town. You filled it out, you submitted it to the council, and if the council did not object over a two-month period, which was two council meetings, the title deed automatically issued—freehold, fee simple title, inalienable.
It's not really all that clever. We blackfellas aren't brilliant in coming to this conclusion. Every other country on earth—even communist China—has come to the conclusion of giving people private, freehold ownership of their land. But, no, we have imposed upon us some tribal ownership taking us back 2,000 years. So we're wedged into ploughing with a draft horse instead of a 400-horsepower Caterpillar dozer. We're wedged into the stone age. Was this hard to do? No. You filled out the form. No-one objected. I think the application fee was 20 bucks, and, so long as the council did not object, a title deed automatically issued.
There was a terrible mistake made in the United States in the red Indian reserves and only found out many years later: they had not put the inalienability clause. So, where we blackfellas foresaw there was a problem—that it could be flogged off to outsiders—the red Indians or the government of America didn't. Within 27 years, almost every single acre of the Indian reserves in America was gone, because someone would want to buy three horses and he'd borrow money on most of his land and then wouldn't repay it, so he'd lose his land. So the answer is there. Please read The Colonial Fantasyand please read Hernando de Soto's book The Mystery of Capital. He was the senior economist with the World Bank. In that book he explains why Peru, the Philippines and Egypt are the poorest countries on earth. They are the poorest countries on earth because you can't get a title deed. It is an average of 230 legal processes you have to go through, taking an average of six years and requiring on numerous occasions legal advice. People haven't got the money to pay the lawyers, so they don't get to own land in any of those three countries.
I would use the other example of the United States. When no country on earth had private ownership—well, Great Britain did, sort of—they issued their own title deeds to their burgesses. The burgess issued a title deed to a block of land. You'd take it up as a squatter and he gave you a bit of paper saying it was yours. When the King of England decided it wasn't, they got very angry. They had a big fight, the Americans won and Britain was no more on the North American continent.
All we are saying is that surely the First Australians are entitled to own a piece of land. If you want to go to tribal ownership, I will give you the example of what occurs. Two whitefellas—they could never be described as blackfellas—from Sydney with fairly questionable pasts were the traditional owners. No question about it. They had every legal right to own the tip of Cape York. They arrived there with five Chinese nationals with a view to selling the top of Cape York to these Chinese businessmen. The people that lived there were outraged. How can this be? Two whitefellas from Sydney. Well, they were the direct descendants of the original inhabitants and there is no-one else that can prove that they are a better descendant. If we want to go back to the primitive tribal times of 2000 BC, most of Europe and most of Asia had left that concept of tribal ownership and gone to other methods of ownership.
If you want to build an economy, read Hernando de Soto's book, The Mystery of Capital. Let me be very, very specific. We are proceeding to create an authority in one of the First Australian communities in North Queensland. The authority will consist of representatives of the duly elected shire council. It will have representatives of the traditional owners because, after Mabo, we have no way of going around that, whether we want to or whether we don't. Thirdly, there will be a popular vote in the community for two other members to go on the authority. They will issue the title deeds because—and I want to say this fairly unapologetically—you whitefellas in Sydney and Canberra and Melbourne and Brisbane will not tell us whose land it is. It's not yours. It is ours. We have owned it for 40,000 or 50,000 years. You had nothing to do with it. We fought and died to hold on to some of it. That some of it that we're holding on to—we will own it, the same as everyone else on earth owns their land. You will not deprive us of that right.
If the federal government doesn't like it, that's fine, we'll go to the state government. If the state government doesn't like it, we'll go to the federal government. I am quite sure that one of you won't be real happy about watching the other mob get control of the issue or the acceptance of the issue of the title deeds. If I'd been saying this in the most conservative government in Australian history, the Bjelke-Petersen government—not a single person thought I was going to be able to do it. I think there were five features on 60 Minutes on the tenacious battle we had to get what we were after. Within five years we were able to issue 800 title deeds in spite of fights about who owned what and who didn't own what and all the other fights. We still managed to get out nearly 1,000 title deeds. So those people own that little block of land forever, the same as anyone else on earth, except they can't sell it to outsiders. Whether that went too far or not, you can take it up and argue it with the blackfellas that made the decision because there were no whitefellas involved in the decision-making. I can't help but single out the late Lester Rosendale and Eric Law, who were the heads of the department; Noel Pearson's brother, Gerhardt Pearson, who played a very key role in these decisions; and at Yarrabah: Alfie Neal, Micky Connolly and Roy Grey. There are a thousand other heroes, including Tommy Geia on Palm Island, to name but one. There is old Les Stewart, who came out of retirement to fight the fight in his old age, when everyone thought he was an Uncle Tom, and we found out he wasn't. Jackson Shortjoe and Eddie Holroyd are on my wall in my office at Pormpuraaw. I could go on. Please apologise to all those people who fought the fight.
Give us that land and we can grow. Give us that land and we can put cattle on it and farm it. We can put a chemist shop or other kinds of shops on it. We can go forward and have the prosperity that's enjoyed by other Australians, but not as long as you deprive us of the right to own land with some sort of ridiculous tribal arrangements that set us back 4,000 years. The rest of the world abandoned the tribal ownership that's imposed upon us. Thank goodness, in some ways, it was, because the only weapon we've got to fight the big mining companies and all of the other interests that would take all of our land off us, actually, is Mabo. I thank—and may God bless—Father Passey who carried that legislation all the way through to that result in the High Court, when Eddie was pushed aside. So today we are discussing the opposition— (Time expired)
I rise to thank all members for their contributions on this bill. I've just been reading the second reading speech from the Minister for Indigenous Australians where he spoke about Indigenous overcrowding and how it's a real issue for Indigenous Australians. He also spoke about the $5.4 billion that the Australian government has invested in helping Indigenous Australians in solving overcrowding since 2008. It is a real issue, and I support what the minister had to say on that in his second reading speech.
I commend the bill to the House.
Question agreed to.
Bill read a second time.
Message from the Governor-General recommending appropriation announced.