Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

by leave—I move opposition amendments (2) and (3) on sheet 5008:

(2)    Schedule 1, item 52, page 29 (lines 3 and 4), omit “55%”, substitute “60%”.

(3)    Schedule 1, item 52, page 29 (line 4), at the end of subsection 21C(5), add “and there is free and informed consent from traditional Aboriginal owners”.

The question here is the question of the provisions regarding the creation of new land councils. Under the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006, the government seeks to move a provision that new land councils can be created with the support of 55 per cent of local Indigenous residents. There are a number of concerns about that approach. One can argue up hill and down dale about majorities et cetera. In other aspects of democratic life we often have a provision that is 50 per cent plus one. That has not been seen as appropriate in terms of Aboriginal consent in the past because of the nature of the issues at stake, the ownership of land and the need for a majority greater than 50 per cent plus one. As in other organisations where one requires a three-quarters or two-thirds majority to change a constitution, the acceptance inside this debate has been that a figure greater than 50 per cent was appropriate given the import and significance of the decision regarding the administration of Indigenous land.

The provisions that the government are seeking to amend here argue for a new benchmark of 55 per cent of local Indigenous residents. Quite notable is the failure to have any requirement for traditional owner consent. As the Senate would be aware, we have local Indigenous residents in the community who may not have any relationship with that particular land or community. They might be residents, temporary or permanent, but the traditional owners, the traditional people of the land, may be only a subset of those living in the community. So there are two distinct groups and they may not all be Indigenous, for a start. The community might consist of Indigenous and non-Indigenous people. Among the Indigenous people of the community there may be those who have traditional ownership and a relationship with the land and those who do not—for example, the people who have moved there for whatever reason.

The government’s proposition is that a decision to create a new land council which has administration over Indigenous land ownership could be made with the support of only 55 per cent of local Indigenous residents. There is no requirement for traditional owner consent. It is conceivable that a decision could be reached which has an impact in terms of the creation of a land council which does not have traditional owner consent. If traditional owners represent 30 or 40 per cent of the population, even if they all vote for a proposition or against a proposition, they are not guaranteed having their view prevail because of the proportion which they represent in the community.

There is a great deal of concern about these issues being expressed by the parties involved. I know the Minerals Council have expressed some concerns, as we discussed earlier, about some of the government amendments relating to land councils, which seem to reflect a bit of an effort to undermine the existing land councils and a move to what can only be a proposition for a proliferation of smaller land councils. I do not know whether the government is concerned about the power of particular land councils in the Northern Territory but certainly they seem to be going down the ‘small is beautiful’ path—so maybe they will get Greens’ support on this one. They seem to be looking to insert provisions which undermine the capacity and authority of existing land councils.

In any event, Labor are concerned that the benchmark set in the government’s proposal is too low, and we have looked at various propositions. Some people in submissions to the Senate inquiry have argued for 70 per cent approval or 75 per cent approval et cetera. Labor have determined that we will follow the advice provided by the House of Representatives Committee on Aboriginal and Torres Strait Islander Affairs inquiry into the Reeves review, which was the review of land council operations. That House of Representatives committee spent a great deal of time examining all these issues. They were allowed much greater time to examine the issues than the Senate inquiry into this bill was afforded—a note in passing. That inquiry unanimously recommended a benchmark of 60 per cent support amongst Aboriginal people living in the area and the requirement of traditional owner consent. The House of Representatives committee, consisting of both government and non-government senators, spent a great deal of time reviewing propositions relating to land councils and the administration of land inside the Northern Territory and they adopted a benchmark for the creation of new land councils at a level considerably higher in two respects than the government’s benchmark. First of all, rather than 55 per cent support they recommend 60 per cent support, but there is also the insistence of the House of Representatives committee for the requirement of traditional owner consent—a key factor missing in the government’s proposition.

In moving these amendments, Labor seek to bring the provisions in the bill into line with the unanimous recommendations of the House committee. This includes the requirement for traditional owner consent and lifting the required vote from 55 per cent to 60 per cent of local Aboriginal residents. We are concerned that the government has set the benchmark far too low, which would run the risk of exacerbating problems that exist between traditional owners and non-owning Indigenous people in communities. As I think the Senate understands, this is often a source of conflict. Although many communities obviously resolve problems to everyone’s satisfaction, it is a key issue. It goes directly to the property rights of traditional owners. It is their land, upon which they and other people are living. It seems to me that they have a greater right to have a say over what happens on their land than people who have perhaps recently moved to live in the area or may be temporary residents et cetera.

As I said, it is a difficult issue, but we are concerned that the government’s proposal might lead to instability and greater dispute. We think that the rights of traditional owners require greater protection. Therefore, we recommend that the Senate supports our amendments, which seek to bring the proposition directly into line with the attitude of the House of Representatives committee. That committee inquired into the Reeves review, which had the support of government and non-government senators and made a very valuable contribution to the debate. The minister has been very keen to continually highlight that there might be differences between the views of federal Labor and those of the Northern Territory government. This is a statement of the views of his colleagues in the House of Representatives about what would be an appropriate benchmark. I urge the government to agree to these amendments, which would result in a better outcome than their proposition, and to support what I think are sensible findings of the House of Representatives committee.