Rachel Siewert (WA, Australian Greens) Share this | Hansard source

The Greens believe that elements of these amendments are bad legislation. We are concerned that some of the amendments contained in the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 will have significant impacts on Aboriginal communities. These are the biggest changes in over 20 years to what is considered in Australia to be landmark legislation that covers a large proportion of Aboriginal controlled land in this country—up to 50 per cent of the Northern Territory. Yet it is being rushed through the Senate with undue haste, causing significant community confusion and concern. The government claims that there has been sufficient community consultation going back over a number of years on this bill. This is disingenuous. While it is true that there has been consultation on some of it, there has not been on the controversial elements. It is telling to note that on the aspects of the bill that have had proper stakeholder input there is little controversy and broad community support.

I was interested to note today when we were talking about the heritage protection bill in this place that Senator Kemp made the point that the government will be consulting. He said:

One of the reasons that this government has been able to get itself re-elected is that it does have a reputation for being a consultative government. It is a government that gets out and it listens.

It has not consulted on this issue. Let me state here very clearly that as far as these sections of the bill are concerned—those amendments arising from the joint submission made by the four land councils and the NT government in 2003 and designed to improve the workability of the legislation as it relates to mining agreements—the community supports them and we support them. As far as the other newer proposed changes are concerned—those that have not had proper community consultation and around which there is significant community concern—we do not support them. We believe that they need to go back to the community and the government needs to get it right.

There are a number of unintended consequences of this legislation which will create disincentives for economic development and homeownership in Aboriginal communities and make it more difficult and costly to resolve issues and develop agreements. Ultimately, they will prove counterproductive to the stated aims of this legislation. To this end we are proposing that the bill be split to allow further development and consultation on those elements of the bill that are contentious and those that have not been adequately discussed. Let us move into law immediately those sections of the bill on which there is broad agreement and defer the newer parts for further work and further community consultation.

We strongly support the idea that problems associated with economic opportunities in Aboriginal lands urgently need to be addressed and we strongly support moves that remove disincentives to investment and enterprise development that benefit Aboriginal communities. We support moves to streamline processes and get rid of unnecessary red tape, but not if they disadvantage Aboriginal communities. We support increased positive incentives to encourage business and employment opportunities for Aboriginal people.

If the government is genuine about economic development for Aboriginal communities then it needs to take time to address these issues effectively, talk to the experts in Indigenous development and look at what has and has not worked both here and overseas. If the government is genuinely concerned about creating real jobs and homeownership for its Aboriginal citizens then it will not push through these ill-informed changes in their current form. Instead, it will present a package of amendments, projects and programs to address economic development.

Given how wrongheaded these amendments are and the government’s apparent unwillingness to support deferring this legislation, I must question the government’s motives to rush this legislation through. The ultimate aim of this legislation may be to diminish the power of land councils, destabilise government structures, increase the power of the minister and take away control from traditional owners so that outsiders can come in and exploit their land and resources.

It is interesting to note that remote Aboriginal communities that are not on Aboriginal land face many of the same problems and constraints as those communities where land rights have been granted, yet the government is not moving to deal with these issues. The issue of facilitating economic development on Aboriginal land, particularly in relation to developing enterprise and employment opportunities for remote Aboriginal communities, is an extremely important one that requires a considered and concerted approach. We are pleased to see that the government is now demonstrating a willingness to address this issue, but the current approach will not prove effective.

The main impediment to economic development in Aboriginal communities is not the issue of land tenure and private leases. Housing access, rather than individual house ownership, is an issue. There are many more pressing issues that need addressing. Constraints to economic development include the incredible remoteness, transaction costs, transport costs, limited opportunities, small population sizes with no economies of scale, the lack of equity in terms of low income and low rates of employment and, in particular, the lack of education, training and infrastructure. These are all issues that constrain economic development.

I note with interest a report that has just been released by Reconciliation Australia which looks at Indigenous community governance. It is a research project and it also looks at socioeconomic development. It points out that common factors for successful socioeconomic development include:

... strong visionary leadership; strong culturally-based institutions of governance; sound, stable management and professional staff support; strategic networking with public or private sector partners to engage with the wider economy; having infrastructure substantially in place; having access to relevant training and mentoring opportunities; and hard-headed strategic planning and review procedures.

It goes on to say:

While improved governance can strengthen economic development, given the rapidly growing Indigenous population there is an urgent need to increase investments in infrastructure and essential services if current levels of socioeconomic development are not to stagnate or go backwards.

The majority equity that Aboriginal communities have to use to promote economic development is their land. The way that land rights and native title work in Australia makes that much more difficult because, unlike in other countries, communities are not granted full freehold lease title, which greatly limits the amount by which they can benefit from resource exploitation, such as mining.

The Northern Territory has very restrictive tenure arrangements over community living areas that basically mean that Aboriginal people cannot undertake economic development opportunities in Aboriginal town sites. If the Commonwealth and the Territory believe that tenure is the main impediment to economic development, why are they not fixing these issues? Why are they only looking at these issues on Aboriginal land? What Aboriginal people need is the ability to enter into joint ventures, to enter directly into these enterprises and to develop their equity. However, at the moment they are restrained in their ability to bring money to the table.

A number of aspects of this legislation are cause for concern—for example, the provision to create 99-year headleases, under the new section 19A. We believe this will not result in either an increase in private homeownership or more enterprise being developed in townships on Aboriginal land. At the same time, this may have a number of unintended consequences that undermine the prospects for economic development. The community is very concerned that headleasing and subleasing provisions could mean that traditional owners relinquish control and cannot prevent inappropriate commercial development on subleased land—for example, liquor outlets subleased in dry communities. Unless traditional owners are convinced that there are provisions to ensure that economic benefits to them are safeguarded, this uncertainty will act as a disincentive to grant any such leases.

It is arguable that there is no need to introduce this new headleasing scheme because private leases are already available under the existing section 19. This has already happened with the Alice-to-Darwin railway and with the gas-processing plant near Wadeye. The reason individual private leases for housing are not already happening is an issue of demand, not of the difficulty of the process. Most people in Aboriginal communities simply do not have the income to buy their own homes, even if they want to, nor do they have the money to maintain them. As I said previously, the issue is to do with access to housing.

If the issue is the complexity of developing leases under the current section 19 provisions then the government should simply look at streamlining the existing section, rather than develop a whole new 99-year headlease scheme which vests control in an outside entity. The Northern Territory government entity that controls the subleases remains totally unknown. The Northern Territory legislation has not been drafted and there is no information available on the powers and composition of this entity or how it will operate. Is it to be a not-for-profit entity? If not, where do the sublease profits go? If the rental for the headlease is fixed, can the entity make a profit from the sublease? What say do the traditional owners then have in the approval of the subleases?

Under the fixed terms of the 99-year lease, traditional owners lose control for four generations. This could mean that they lose the chance to respond to future opportunities when the situation on the ground changes and some real opportunities for economic development emerge. It is unclear whether this means that the rent remains fixed as well. Traditional owners are concerned that they may lose control over townships on their land to community residents from other cultural groups. It is the land councils who will be negotiating the conditions of the lease. When this is taken in combination with the provisions creating new land councils—where 55 per cent of members live nearby and are not necessarily the traditional owners of the land—and delegating the functions of a land council to Aboriginal corporations, who are not necessarily working in the best interests of the traditional owners, this creates a problem. It could mean that a group of residents who are not the traditional owners of the land on which a town site is located could effectively be taking control of a township lease.

The government has asserted that these headleases will be purely voluntary. However, the committee inquiry heard evidence of at least two cases where communities have been required to sign on to headleases in exchange for the delivery of what are arguably basic and essential services. On Elcho Island, I understand that Minister Brough has sent an open letter to the community, giving them two months to sign on to a headlease if they want funding for 50 so-called additional houses to meet chronic unmet need. Given the severe housing shortage on Elcho Island, the provision of adequate housing is an essential service—not, as the minister claims, a discretionary one.

Then we look at the Tiwi Islands and the secondary boarding school. The OIPC have argued that this is not an essential service, but a discretionary extra, because it will be a private boarding school. This is despite the fact that there is an urgent need for secondary schooling on the Tiwi Islands and the government has a long record of providing resources for private school infrastructure elsewhere with no strings attached.

The Department of Education, Science and Training stated clearly in Senate estimates, when cross-examined by Senator Crossin, that the $10 million was conditional on signing the headlease. Housing and education are essential government services that most Australians take for granted. Federal, state and territory governments have been failing in their obligation to deliver these services to Aboriginal communities for decades. Where the provision of essential services is woefully inadequate, it is disingenuous to claim that requiring Aboriginal communities to sign away their rights in exchange for ‘extra’ services is a voluntary decision. This amounts to coercion.

What this government is effectively doing is selling to Aboriginal communities the services we take for granted as our rights as citizens. It is doing this by requiring them to sign away control over their communities and by using ABA moneys to pay for town-planning services which are normally provided by local government.

We have similar concerns about the delegation of land council powers. These provisions are highly likely to undermine the stability and workability of the land councils and to promote dispute and litigation. There is a very big difference between enabling the land councils to delegate some of their responsibilities to regional bodies to make it quicker and easier to deal with local and regional issues and what is proposed in this bill. Proposed sections 28B and 28C are a radical departure from the normal administrative rules relating to delegation of powers. Proposed section 28B means that once a delegation is made it cannot be varied or revoked by the land council, except at the request of the delegate or on the say-so of the minister. The minister can unilaterally grant a variation or rescind it by written direction to the land council—whether they want it or not.

Proposed section 28C means that the minister can delegate powers if a land council refuses to do so. This is not delegation; this is a mechanism to strip and reallocate the core functions given to land councils under the act. Proposed section 28D means that while a delegation is in force a land council cannot exercise its functions regarding that subregion. However, at the same time the land council must provide the corporation with the powers that have been delegated to it and facilities and assistance to perform the delegated functions. There will be an increased demand on limited resources combined with confusion and inefficiency brought about by the duplication of services. The council is still ultimately responsible for its statutory obligations but may no longer be in a position to carry them out.

This is madness. It is clearly politics of divide and conquer. We expect that it will increase conflict and litigation. We believe that this will diminish the potential for economic development in remote communities. It will scare off partners or investors, not encourage them. These provisions are not about simply enabling more efficient and effective decision making about regional issues at the regional level. Giving the minister the power to override land councils subverts their existing governance and accountability arrangements for no appreciable gain. We believe that if the government is serious about fast-tracking development it should drop altogether the proposed provisions under sections 28C, 28D, 28E and 28F.

Then we come to the establishment of new land councils. Some well-thought-out and sensible recommendations on how to create new land councils were provided in the report of the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs Unlocking the future, in 1999. It is ridiculous that the government has ignored these recommendations and effectively gone back to the approach of the discredited Reeves report—of which the committee report was universally critical—and is seeking, for ideological reasons, to effectively dismantle the two large land councils by other means.

At the same time as this plan for breaking up the land councils is going ahead, there has been an ongoing process under native title to create larger native title representative bodies because of the obvious benefits in terms of capacity, resources and economies of scale. We do not believe that a 55 per cent vote represents a substantial majority, and we believe that having such a low threshold increases the likelihood of internal conflict and instability. Because the bill specifies only 55 per cent of ‘people living nearby’, we are concerned that traditional owners could be sidelined and disempowered by Aboriginal people from other cultural groups who do not have rights and responsibilities for that area of the land.

Then we come to the use of the Aboriginals Benefit Account. We do not believe that the use of the Aboriginals Benefit Account to fund the new leasing arrangements is appropriate, and we support the concerns of the Minerals Council of Australia—it is very unusual for the Greens to support concerns of the Minerals Council of Australia—that the ABA moneys are increasingly being seen as a substitute for government funding of basic social services. We are concerned that, by effectively taking over administration of ABA funds, the government is undermining the fund’s role in encouraging and supporting economic development initiatives. It is simply outrageous that ABA money is being used to fund changes that the communities do not want and do not support. We also have concerns about the termination of non-contiguous claims to intertidal zones, riverbeds and banks, and we believe that further work is required to resolve this issue in a satisfactory manner.

I want to very quickly touch on the issue of the Senate inquiry and committee report. We were extremely disappointed at the limited time allowed for the Senate inquiry, which gave stakeholders a very short space of time to put in submissions, and the fact that there was only a one-day inquiry. The committee listed a number of substantial issues with the bill; however, its final recommendation that the legislation should go ahead and further community consultation should be allowed after the act has been put in place `is inappropriate. It is not the way to deal with substantive issues of this kind. Because these changes will have such unintended consequences, we believe that just going back to communities after the fact to deal with the changes in this legislation will be impossible.

This legislation needs to be split. The elements that do not have community support and that will have such unintended consequences, such as the impacts on communities, land councils and traditional owners, should be withdrawn and should go out for community consultation. If the government is genuine about promoting economic development in Aboriginal communities, it needs to come back with a fully consulted and considered package that genuinely addresses the fundamental constraints to economic development in Aboriginal communities. Subleasing and promoting individual homeownership and a miraculous belief that that will therefore deal with all the economic problems in Aboriginal communities is, to my mind, wrongheaded. This bill needs to be split.