Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

I do not dispute Senator Scullion’s knowledge of Northern Territory issues. Obviously, he is from there and I am not. And I would not profess to be across the full details, as he is, of various issues that have arisen at a community level. But I do not want to put myself in a position where I completely ignore the comprehensive, wide-ranging and undeniable evidence provided to the scandalously short Senate committee inquiry into this legislation, from a whole range of people from the Northern Territory, including traditional owners, all of whom expressed very strong dissatisfaction with parts of this legislation and with this process.

I may be from somewhere outside the Territory, but nonetheless I have a responsibility to listen to the evidence provided to the Senate committee by people from the Territory, and particularly from people who will be directly affected by this legislation. I remind the Senate that despite what Senator Scullion just said—and I point out that he did not attend the single-day hearing into this legislation, which was held in Darwin—the evidence to the Senate committee hearing in the submission from some of the traditional owners of north-east Arnhem Land stated:

Most of our homelands have no electricity, we have no newspapers, we do not get ABC Radio or TV—it is very hard to know what Government is doing. We had heard that the Land Rights Act was going to be amended, but it was only by chance that we heard about your Senate Committee hearing. We have had little time to try and understand what these changes might mean, and we have no access to lawyers and other independent experts. It takes time and resources to inform and consult with our members and clansfolk, and we have to rely on our staff who are not experienced in these matters to help us.

This submission came from a group of people from a key area that will be directly affected by these changes—not just by the 99-year headlease provisions, but by a range of other changes in this legislation. If you had heard some of the debate on this matter from the government side you would think that all this legislation was about was the potential to set up a 99-year headlease over townships, but there are a lot of other aspects to the legislation.

It is a simple fact, provided in evidence to the committee hearing by the government witnesses, that this aspect of the legislation—the proposal for a 99-year headlease over townships—did not appear until late last year. So you can talk all you like about nine years worth of consultations, but the fundamental component of the changes that are contained in this legislation did not appear until last year. So it is simply misleading to talk about there being consultation for years and years and years. It is not true. And this is a fundamental area that directly affects Indigenous people of the Northern Territory.

I would also emphasise that, as was made clear in evidence to the Senate committee inquiry, this change to the headlease provisions is not necessary to allow leases to be set up. There was already scope under the legislation to enable leases to be set up for prolonged periods of time—as we saw with the Alice to Darwin railway that Senator Scullion mentioned, which uses, as I understand it, a 99-year lease covering Aboriginal land. So clearly it is grossly misleading to suggest that this fundamental change—which puts Indigenous people in a position where control over their own land and their own townships can be contracted out for 100 years, so they will have to pay rent out of the Aboriginal Benefits Account—is somehow essential to allow economic exploitation or economic gains to be made out of Indigenous people’s lands.

But I have to say that Senator Scullion is right to point to the role of the Northern Territory Labor government in this. They have made it very difficult because the Northern Territory Labor government have, quite clearly, acquiesced in this process. Even in their evidence to the Senate committee hearing, whilst they acknowledged some of the problems with consultation, they basically took a hands-off approach and said, ‘Well, it’s not our role; it is not our job. There should be more consultation; that would be ideal, but we like the bit we’re getting out of it so we’re not going to say anything.’ And I am not surprised. There is a huge land grab contained in this legislation, which wipes out all existing land claims over intertidal zones that run along areas that do not connect with existing Aboriginal land holdings.

It was quite clear from the evidence presented to the committee by the Northern Territory government—I think it was in response to questioning from Senator Moore—that Northern Territory government officials were quite happy for Aboriginal people to be able to generate economic wealth from their land. And the land councils that appeared before the hearing made it quite clear that they wanted to use these intertidal zones that they had land claims over to negotiate with the commercial fishing industry to generate economic wealth for their people. But the Northern Territory government did not want them to use that for that purpose. The Northern Territory government wanted that land. So there was complete hypocrisy from the Territory government which said, ‘We’re happy for them to generate income from their land, just not that land. We want that land so we can generate income from it.’

It has to be emphasised that a number of the land claims over some of those intertidal zones had already been recommended, by the Aboriginal Land Commissioner, as appropriate to grant to Aboriginal people. So they were not fanciful ambit claims; they were claims that had been found to be valid by the Aboriginal Land Commissioner and had sat on the minister’s desk unacted upon for some time. This legislation just wipes all of that out, in one go. To me that is unacceptable. It is certainly unacceptable unless it is done with the support and agreement of the potential Aboriginal owners, with some potential trade-off involved perhaps. But, again, that support was not forthcoming. It was certainly not there in the evidence provided to the Senate committee.

It also has to be emphasised, regardless of what might have been said by Senator Scullion about consultation, that it was clear from the evidence provided to the Senate committee by the small number of Indigenous groups that were able to make submissions and provide some evidence to the inquiry that they did not believe they had been consulted on key aspects of this legislation. And certainly, in some respects, there were some components within the legislation that did not match what had been put forward previously.

So either Senator Scullion is right in saying that there has been widespread consultation with absolutely every stakeholder, enabling free, fair and informed consent about every aspect of this legislation, or the Indigenous people who gave evidence to the Senate committee hearing are right. It cannot be both, because their views directly contradict each other. Frankly, given that it is the Indigenous people’s rights that are being legislated away here—not the Northern Territory government’s, the federal government’s or Senator Scullion’s—then I am much more inclined to believe the views of the Indigenous people who gave evidence to the inquiry.

Again, let me emphasise what is to be lost in separating this legislation—putting through the parts that there is already strong agreement with and putting to one side to examine further the parts where there is not agreement. The only thing to be lost is a small amount of time. What is a few months, even six months of proper consultation, community consultation, with affected communities and people? What is that compared to what can be gained? We should look at what can be gained. What can be gained is actual engagement and support at community level not only by a few favoured communities that have been picked out specially to enable political reinforcement of whatever the minister wants to do but by Indigenous people across the Territory. That would be an enormous thing to gain. What an enormous benefit we would get in trying to implement the stated objectives of this legislation if you actually had the affected communities, the traditional owners and the land councils supporting it, welcoming it and engaging with it. The chances of achieving what is stated that it is attempted to achieve would be dramatically increased even if the content does not change.

I disagree very strongly with the suggestion, ‘Process doesn’t matter. Just because you disagree with the process, that’s nothing; it’s what’s in legislation that counts.’ I have concerns with what is in the legislation and I have made that clear. The process is very important, particularly when you are dealing with people whose property rights are affected, a group of people who have been dispossessed by this government and this parliament historically, going back since European settlement, and when you are trying to continue to resolve some of those injustices that have occurred. When you have the dominant society trying to implement new legislation that will affect those who have suffered disadvantage and injustice as a result of the dominant society, of course you are going to benefit if the process involved in making those changes has the support of those who have already been subjected to enormous injustice.

What is there to lose by taking the time to consult properly? There is nothing to lose and there is an enormous amount to gain. The fact that the government refuse to do that says to me that their main concern with this legislation and some of the changes within it is not with making advances for Aboriginal people in the Territory, it is ideological advancement, political point-scoring and the implementation of their ideological agenda. That is what their aim is. If they had concerns about the impact on Indigenous people, they would work with them. Anybody knows, particularly in this area, if you want changes to work properly at community level, you work with consultants and engage with and get the agreement from the people whom the changes are going to affect. If you do not do that then your chances of getting success diminish enormously.

Again, this leads me to assume that there is no particular interest in getting success in regard to the stated objectives of this legislation. There are components within it that clearly give the minister more power, that take power away from the land councils and from the traditional owners. There are components within it, as I have stated, that simply remove land claims and approved land claims from the hands of Indigenous people. There are components within it that require the funds that are already going to be appropriated for the benefit of Aboriginal people to be spent on paying the leases in Aboriginal townships, so it will lead to less money being available for things it would have otherwise been spent on. There are significant problems with this, but the overall point and purpose of consultation is not just some feelgood thing; it is specifically about trying to ensure that the legislation works in the way that it is intended to work. That again is something that, if there were any genuine desire here from the government’s point of view, there would be some effort to try to implement.

I note the irony of these changes being forced through the Senate at this time straight after last Thursday, which was the United Nations International Day of the World’s Indigenous People. What a way to mark that day, by forcing through changes that occurred without the free, prior and informed consent of the people who would be affected. I note the comments made by the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr Calma, in marking the International Day of the World’s Indigenous People, where he talked about the goals of solving the problems faced by Indigenous people such as economic and social development, culture, education and health—all areas that we are concerned about. He said:

To achieve these goals indigenous people must be fully involved in the formation, decision-making, implementation and evaluation of processes on laws, policies, resources and projects which affect us; this is our right.

It is not, according to this government. It is clearly not because they have not shown sufficient interest in ensuring that that happens.

I also draw the Senate’s attention to the submission put together by the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr Calma, who is a traditional owner from part of the Territory that would be affected by this legislation. He points out that the Australian government have already promised and indicated publicly that they would act in accordance with the objectives agreed by the General Assembly as part of the International Decade for the World’s Indigenous Peoples and as part of moves that are a long way down the track in developing the Declaration of the Rights of Indigenous Peoples. One of the key objectives the Australian government have said they would act in accordance with and promote is full and effective participation of Indigenous peoples in decisions that directly or indirectly affect their lifestyles, traditional lands and territories. The cultural integrity of Indigenous peoples with collective rights and other aspects of their lives considering the principle of free, prior and informed consent could not be much clearer. With this legislation and the way it has been dealt with, at least in terms of the key components of it, you could not get a clearer breach of the principle and objectives that the Australian government said they would act in accordance with.

All we got from the Office of Indigenous Policy Coordination was, ‘Oh, well, we told the land councils what we were going to do, and it’s up to them to consult with their constituent members.’ That is a farcical interpretation of what free, prior and informed consent means, and it is a farcical interpretation of what it means to say ‘promoting full and effective Indigenous participation’ in decisions which directly affect the lifestyles and traditional lands of Indigenous peoples. You could not get a clearer, more fundamental example of legislation that directly affects the lifestyles and traditional lands of Indigenous people, and yet there has been no effort and no recognition of the need to make an effort to ensure full and effective participation of the Indigenous peoples in those changes, let alone ensure that there is free, prior and informed consent to the changes. That is what I find so offensive—and the continual, deliberately deceptive attempts to pretend that there has been comprehensive consultation I find equally offensive.

It is pleasing to see that the federal government have had to withdraw offensive legislation regarding basic legal rights for asylum seekers, since they recognised that it would not get through the Senate because of welcome indications from a few coalition senators that they simply could not bring themselves to support the legislation. I just wish there were a similar outbreak of concern and conscience amongst one or two coalition senators about this legislation. As people know, I am very strongly in favour of, and have done a lot of work on, promoting the rights of asylum seekers, supporting the rights of refugees and of having a decent immigration act that meets the rule of law and basic legal principles. But I know that sometimes some Indigenous Australians find it just a bit frustrating, if not bordering on offensive, that many Australians are willing to go to the barricades regarding the rights of refugees and yet seem to display far less interest, concern, energy, action and motivation when it comes to dealing with the rights of Indigenous Australians. I suspect that is because people are not sure what they can do. They feel as though it is just too difficult and that the political determination is just too strong. But I would urge all the Australians who collectively played a part in killing the recent piece of legislation that would have undermined the basic rights of asylum seekers to devote just as much energy to continuing attempts to undermine the basic rights of Indigenous Australians. If anything, it is more important to our nation as a whole, because our nation as a whole will never be able to fully advance to its complete potential unless we deal properly and with respect with Indigenous Australians.

This legislation—or certainly key components of it—and the process that has been followed simply show a lack of respect, and I find that very disappointing and very much against our own self-interest as a nation. That is why I urge at least some from the coalition side of the Senate to support this motion to require the contentious parts of this legislation to get further examination before they are proceeded with.