Scott Ludlam (WA, Australian Greens) Share this | Hansard source

The reason Senator McLucas did not get to complete her speech is that this debate has been crammed into 25 minutes on a Tuesday night. Before I comment on the substance of the Wild Rivers (Environmental Management) Bill 2010 [No. 2], I would like to make some remarks on the process that has brought us here. This is the first time in my experience, having been here for two years as a full member of the Senate Legal and Constitution Affairs Legislation Committee, which Senator Crossin chairs, that I have ever seen a proposed motion come through this parliament to cut short the reporting period of a committee. That is what happened. Senator Crossin, in her brief time, did not make mention of that. Then we saw the procedural chicanery that occurred this afternoon, and which has been going on for the last 48 hours, to find some time to have this debate. The Greens have been proposing, and the coalition opposed our proposition, additional sitting hours so that we could debate the bill—and we will get to the merits of it in a moment—without the farce of everybody watching the clock for periods of four, five or six minutes.

I would also like senators to recognise that we are on Ngunawal land tonight and that no Aboriginal voices are represented in this debate, as has been the case for the last several hundred years. So here we are again, debating the future and the sovereignty of Aboriginal people in their absence in this parliament. We have some affinity for the principles in this bill. We welcome the Liberal Party’s newfound commitment to increasing the rights of native title holders. The principle here, as I read it, is that native title holders should be able to agree or disagree with legislation and determinations that affect their land, so, for a moment, let us give the coalition the benefit of the doubt.

As the additional comments of the Australian Greens outline, there are substantial flaws contained in Senator Scullion’s bill and we identify in those comments why we do not believe the Senate should pass this bill. It will quite clearly not achieve what it says it will. We would be much better off with substantive Native Title Act amendments which would implement the bill’s stated intent far more effectively than what has been presented to us tonight. Any change to the native title rights of Aboriginal and Torres Strait Islander peoples should apply nationally, rather than in one part of one state. Professor Jon Altman, who provided evidence to the inquiry, said:

... unless such provisions are extended Australia-wide this change will constitute Cape York bioregion-specific legal exceptionalism. This is hardly appropriate given that the Closing the Gap framework applies nation wide ...

Changes to the Native Title Act would be far more likely to produce an outcome consistent with what we believe Senator Scullion’s legislation is trying to achieve, if this is really about a requirement to obtain the agreement of Aboriginal people before a wild rivers declaration on their land is made. Senator Scullion’s bill is silent on the processes that should be used in obtaining the consent of what the legislation refers to as ‘the traditional owners of native title land’.

Many witnesses to the inquiry pointed out—and Senator Scullion knows this well—that there is an existing process under the Native Title Act for negotiating Indigenous Land Use Agreements. This exists, it is already well defined and the Greens believe it makes sense to have this reflected in any legislative changes which seek to require the consent or agreement of Aboriginal people with regard to wild rivers declarations. Those increased rights should be available to all native title holders across the country and in all circumstances, rather than only on Cape York and only with regard to one particular Queensland state law.

As the committee’s report notes, many submissions and witnesses to this inquiry also raised the United Nations Declaration on the Rights of Indigenous Peoples and, in particular, the principle of ‘free, prior and informed consent’, which is detailed in article 19 of that declaration. The Greens have consistently supported the UN Declaration on the Rights of Indigenous Peoples and we supported the current government’s decision to sign that declaration. That is why we recommend that the content of this declaration be reflected in domestic laws and domestic policies, with priority given to examining how the principle of free, prior and informed consent should be consistently and effectively applied. The Liberal Party opposed that declaration while in government and continuing public statements—correct us if we are wrong, Senator Scullion—would suggest that their official policy is to continue to oppose it. But, nonetheless, we welcome the support that Liberal Party senators expressed throughout this inquiry for the principle of free, prior and informed consent as it is contained in the declaration. The committee notes the declaration and consent principle contained within it is not yet binding in Australian law. We do not believe that we should be signing international declarations unless we are prepared to make an effort to implement them in domestic law.

In Australia, free, prior and informed consent provisions exist only under the Aboriginal Land Rights (Northern Territory) Act and, even here, there are ways of overriding the right of veto and the right of consent. In other jurisdictions, apart from WA, under land rights under state laws, there are specific forms of consultation and negotiation possible. But, just as we have seen, not just in Cape York but right across the Top End in the Kimberley and the goldfields—right across the country—the Native Title Act does not contain the right to say no and have that no respected. For this reason, the Native Title Act should be amended to provide native title groups with free, prior and informed consent rights. Instead, under the future acts regime, they perhaps, at best, have a right to negotiate or, more weakly and at the worst, they have a right of consultation, and then various developments can roll right over the top of them. If the coalition has suddenly discovered the benefits of giving traditional owners a veto power over developments on their land, then let us talk about sovereignty and let us have that principle enshrined nationally.

In 1999 the Nunavut Act was signed in Canada. That is just one example, I suppose, of just how far it seems we have to come in this country, that we should be having a debate here in parliament in 2010 in the absence of Aboriginal voices in this parliament or people to put their own views without white fellas putting them for them yet we had an act of parliament in Canada that established the newest federal territory of Canada. It was separated officially from the north-west territories on 1 April 1999 by the Nunavut Act. How far are we in Australia from that kind of discussion of sovereignty of Aboriginal peoples? Rather, we have these continued legalistic wranglings over the way the land rights act operates in the NT and the way the Native Title Act operates around the country.

There are big structural changes that require more than a 25-minute debate squashed into a Tuesday night more or less against the will of the chamber. I think we need to give more substantive time to this debate. This is one of the worst abuses of process I have seen in the brief number of years I have been here, both in the committee stage when it was being dealt with and in the way this debate was brought before the chamber this evening.