Senate debates

Wednesday, 19 March 2014

Regulations and Determinations

Aboriginal Land Rights (Northern Territory) Amendment (Delegation) Regulation 2013; Disallowance

6:30 pm

Photo of Nigel ScullionNigel Scullion (NT, Country Liberal Party, Minister for Indigenous Affairs) Share this | Hansard source

In consultation with the land councils, one of the things we have said—I note that Senator Peris read out that bit about codification—is that we would provide, as part of this regulation, a series of things that the people making the application had to have in it. It is not difficult. It includes things such as the names of the corporation's members, evidence of the corporation, why the corporation seeks delegation, why the corporation selected part of the area of the land council, description of the consultation, the traditional owners of the land, description of the area and so on. That was exactly what the land councils wanted us to do. That was what was said at the consultations.

We all need to understand—and I am sure those in the Labor Party know exactly what is going on here—that this is a deliberate decision. The Labor Party do not like section 28A for some reason. The fact that it is a law does not seem to be of any material concern to them. They do not like it, so they are going to find a way around it. The thing is that the law is applied so traditional owners can get procedural fairness. This is about procedural fairness.

The good senator opposite indicated that the minister would of course intervene if the process took more than three months. But, as has been mentioned before, there was an application made on 4 August 2010. It is the only one. Some 1,324 days later—for those who need the translation, that is three years, seven months and 15 days—there has been no response. The other thing that is interesting about the fact that they have not responded is that the minister got a copy. The Labor minister got a copy on the same day! Where is the intervention to achieve procedural fairness for the traditional owners? Where was she? Where was Labor? Where were they when they should have been intervening on behalf of traditional owners to ensure their access to justice and their access to procedural fairness? They were nowhere.

This is not a debate, Senator Peris, about land councils. This is a debate about access to justice and procedural fairness. If you want to change the act, bring a bill into this place and do so. That is how it works. If you want to give traditional owners access to something—this was more than three years! Quite clearly there is a mischief in that. So we thought, 'Maybe we should introduce some regulations.' We went to see the land councils and they said, 'Three months is not enough.' We said, 'No worries—that is understandable.' In a normal administrative process, if after three months you needed any longer, you would have to do something. One would have thought that, in all that time, they would have acknowledged the letter—they have not. So we added a ministerial discretion for an extension if one is required, as is normal.

It is just a nonsense to say, 'Three months—that is not long enough.' Of course sometimes it is not long enough. In some cases it would be long enough. As a consequence of the consultations, we have said that, if the letter to the land council does not meet all the provisions of the act, you must refuse it. We put up a much higher bar because we listened to what the land councils had to say to us. When we consulted, it was not just the department going out with me and talking to all the land councils. There was a comprehensive official consultation process.

Two things came out of that consultation process. First of all, there needed to be some discretion in case the process took too long and, second, we needed to codify things. So here we are in the Senate having created a regulation that allows traditional owners to make the decision. In addition to consulting with the land council members, I have, for a long period of time, been talking to my real constituents—the traditional owners on the lands. They see this as a benefit. In fact I was speaking recently to Galarrwuy Yunupingu. He is not the father of land rights but he had a fair bit to do with it. He said, 'We always need to move towards people on country having more say about their country'—and that is exactly what this does. It allows them to have more say about their country. I am sorry but I do not have any letters from land councils to read out, Senator Peris, because I have been talking to your constituents rather than the land councils.

I have a letter here from the Rirratjingu Aboriginal Corporation. It says:

We are writing to you today in support of the Aboriginal Land Rights (Northern Territory) Amendment (Delegation) Regulation 2013 (the "Regulation") and our strong belief that it should not be disallowed.

…      …   …

A corporation may apply for these powers under subsection 28A(1) of the Act, but if the Regulation is not in place the Land Council is not required to respond in any set period. This means that the NLC would be able to refuse to ever make a formal decision on an application.

We have demonstrated that is the case. We have demonstrated that that is exactly what happens—and we have also already demonstrated that it was done with the full compliance of the previous minister. It is no wonder they are worried. They say: 'These are sorts of arrangements we need to move towards. We need to be able to make a decision on our own country.' How could that possibly be so repugnant, so difficult?

The letter goes on to say:

The Regulation is urgently needed to address this situation, and we fully support the Minister for Indigenous Affairs in this regard.

It continues:

The statutory authority and responsibility of the NLC is not changed by this Regulation—

and it is not—

What the Regulation does is ensure that the NLC properly exercises that statutory responsibility on behalf of the people that it is meant to represent.

I could not have said it better myself. The responsibility of the land council is not something this place should have to create a regulation to remind them of. Three years and seven months! I do not really think that is procedural fairness for Aboriginal people. The letter continues:

It is unconscionable that an Aboriginal corporation, and the Aboriginal people, which it represents, may be denied any answer to their application—

thereby denying them procedural justice in their application—

and that the land council could refuse to fulfil its statutory duties and effectively shut down an application without giving any reasons for doing so.

Well, of course, that is an outrage, and it is what has happened. It happened on Labor's watch with the full concurrence of the minister at the time, which is inexplicable. Perhaps, Senator, in response, you might want to touch on some of those matters, because I am miffed that I only recently found out that the Labor Party, the minister and the government at the time knew on the same day—three years, seven months and 15 days ago—that this application had been made. Throughout that time, people were waiting for a response. She knew they were waiting for a response, and nothing was done.

The letter continues:

You have the full support of the Rirratjingu Aboriginal Corporation to pursue the continuation of this important Regulation to make certain that Land Councils cannot simply ignore Aboriginal Corporations as representatives of their constituents, and to ensure the proper operation of the Aboriginal Land Rights (Northern Territory) Act.

It is signed by Bakamumu Marika. He is also not the father of land rights, but his father is. This is the son of Roy Marika, a wonderful man I would have learned an awful lot more from if I had not had to sit next to him in his tractor and next to the exhaust while he was providing his wisdom to me, but I can tell you that I have a pretty clear understanding of what he thought land rights were. If you go upstairs to the bark petition on your way out, guys, you might check it out, because what it says is that people on country need to make decisions for themselves. The disallowance of this motion completely prevents that.

What we have here is a situation where consultation was done to remove a mischief. The mischief was clear. It was well known by the previous government—in fact, by the previous minister—that what the land council were doing to get around the law was to deny their own constituents procedural fairness. Their own constituents—the people who elected them to the council—and, I suspect, the members of the council, but I do not think that they have been told.

The other side would have us believe that this is not important. But I cannot imagine, with respect, Senator Siewert, when it came to access to justice, access to the law and access to procedural fairness, that you would not normally be the absolute champion of that first up. I am a bit disappointed—not so much over here—Senator Peris, at your decision, uninformed as it is, to remove procedural fairness and access to the law for your own people. You might be able to somehow befriend the land councils, but I think you are going to have to answer to the traditional owners who, all over the place, are saying, 'We've got a law. Why can't I get access to the law like anyone else?'

It is interesting that if somebody writes BHP a letter, for example, they would be required to write back. It is all part of a process. They just do not write back because that is cool; that is much better—'We just won't write back. It's the Greens. Forget it.' If it does not provide procedural fairness about a response, or something like that, we would all be outraged. But what outrages me more is that somehow because it is Aboriginal traditional owners it is okay, because they do not know anything, do they! They are not smart enough, really, the poor blackfellas; they cannot make up their own mind! I have never heard anything more patronising in this place. They simply can't make their mind up! 'We know best'—Labor know best—'and we don't want them to get access to this because they are not ready for it, are they?' I have never heard anything more disgracefully patronising in my life. I can tell you: we would never be applying it to white people in this place. You would all be crying, 'Access to justice! What about the law? Procedural fairness!' Why is it any different for my countrymen? Why is it any different for the people we represent? There is no difference, is there? So they have been selected on the basis of their race.

I will not make silly allegations about that particular matter, but it disappoints me so deeply that we sit here today with a law that people can access that is legitimate, they have a legitimate access to the law, and today we are about to move in this place to deny people a legitimate lawful right that was provided them in this place by this parliament. Again, I cannot say how disappointed I am that Aboriginal people are still not going to get access to justice, they are not going to get access to procedural fairness, and I think that the only thing that you can say is that—

Debate interrupted.


No comments