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

I, too, rise today to speak to the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017. The bill responds to the Federal Court decision that places doubt over some Indigenous Land Use Agreements, commonly called ILUAs. They are bringing this forward because there was a recent decision of the full bench of the Federal Court in what is commonly called the McGlade case, where the court found that all individual members of the registered native title claimant, the authorised representatives of the broader native title claim group, must be party to the area Indigenous Land Use Agreement for it to be registered—including those who are now deceased. This decision overturned a previous decision known as Bygrave, from 2010, which held that an area ILUA could be registered if it were signed by at least one member of the registered native title claimant on behalf of the majority.

The decision in McGlade has created uncertainty around the validity of registered area ILUAs that were not signed by all members of the registered native title claimants. There are, we are told, 126 of these agreements on the register, although the list of these agreements has not been made available. It has been requested, I know, of the government, and certainly the committee raised the issue. I understand that in fact there are now more than 126, given the issues that have been raised by Cape York about which amendments have been circulated.

At this stage the Australian Greens cannot support the bill. We understand the complex issues that are involved, but we feel that the bill is still being rushed and that the latest amendments are a further indication of that.

The bill was introduced and rushed through the House of Representatives fairly soon after the Federal Court decision—driven, we believe, largely by the so-called threat that this could pose to ramming the Adani mine through and getting that development up and running. The developers are concerned that the Adani mine may be at risk because the ILUA may be found to be invalid. We understand that the native title rep bodies have raised concerns about the decisions made under Bygrave and the issues around Bygrave for some time. Senator Dodson just referred to that. These issues have been raised with the government. Yet, for years no action has been taken. All of a sudden, now we have to have action.

The lack of consultation that has been undertaken with Aboriginal and Torres Strait Islander communities regarding this bill is of serious concern. I do understand that there was a meeting—I think it was last week or the week before—of 15 native title rep bodies. At least that is something. However, that does not mean that all native title claimants have been consulted. They were not consulted prior to the development of the bill. The lack of consultation that has been undertaken with these communities is, as I said, seriously concerning. So too is the short time frame that was provided for the Senate inquiry into the bill. We had concerns about the time frame from the beginning. We attempted to extend the reporting date for the inquiry to 8 May. Unfortunately, this was not supported by the Senate. Consequently, submitters did not have very long at all to develop their submissions. The committee was able to hold only one hearing. This is particularly concerning given the complexity of the native title arrangements, the changes and the significance of these amendments.

I flag here that I have circulated a second reading amendment. We believe that we need to have a look at the amendments that have been circulated, as new matters have emerged on this bill. So not only are we dealing with the complexity of it in the first place; there are also new matters that we need to look at. The bill is in two parts. Part 1 measures will affect the roles for future ILUAs—that is, those that are made on or after the commencement of the bill. Part 2 measures will affect existing area ILUAs made after the Bygrave decision and that were made on or before 2 February 2017.

Firstly, I would like to turn to part 2 measures. Area agreements that were made or registered prior to the McGlade decision will be subject to the amendments contained in items 9 to 13. These include the proposed Adani ILUA. As a consequence of items 9 and 10 of schedule 1, existing ILUAs that are not signed by all individual members of an RNTC will be considered to be, and to always have been, a valid ILUA. Area agreements that were authorised or lodged for registration prior to McGlade will be able to be registered, even if they were not signed by all individual members of the RNTC.

Item 12 relates solely to the agreements that were subject to the McGlade decision. These are the South West WA claimants that were not happy with the outcome of the ILUA process and that took this court action. So those ILUAs—there is a number involved there—are being considered separately. If this bill passes, these agreements will be taken to be ILUAs from the date of commencement of the amending act. However, these agreements will still need to go through part of the process again—the registration process. People who are not happy with the process will be able to lodge complaints again. I think it is very clear from the evidence that the committee received that the claimants who took the court action in the first place are very unhappy with this bill and the approach the government has taken.

As previously mentioned, the National Native Title Tribunal is aware of at least 126 existing ILUAs that were affected by the McGlade decision. I understand that that must be larger now. Some submitters to the inquiry, including the National Native Title Council and National Congress of Australia's First Peoples, supported securing the existing ILUAs and placing their validity beyond doubt. There is some doubt—and doubt was raised—about whether ILUAs will, in fact, be automatically taken off the register. Evidence given to us during the committee inquiry shows that there would need to be action taken, in fact, if you were to come off the register. So this is largely a scare campaign rather than all ILUAs suddenly being thrown in doubt. If it is a good ILUA you would think people would want it to remain registered—say it was a mining company; the claimants would want to keep it there.

Some submitters to the inquiry raised concerns about retrospectively validating the affected ILUAs, however many there may be. One felt it did not have sufficient information regarding the affected ILUAs to determine whether the amendments were appropriate. And because we have not seen the list, we do not know. Mr Greg McIntyre SC said in his submission:

The Committee has an obligation to satisfy itself that the circumstances relating to each of those agreements which resulted in the registered native title claimant group not acting unanimously did not have a justification in terms of declining to agree to an ILUA for a reason which legitimately addressed the rights and interests of the native title claim group. It should not be assumed without investigation that the majority decision of the native title claim group was correct and any view to the contrary has no legitimacy.

There is, however, very little detail available about the affected ILUAs, and while we know that there are at least 126 ILUAs post 2010 that are affected by the decision in McGlade, we do not know the reason for the members of the registered native title claimants not signing the agreement. We do not know the specific numbers that were not signed due to a member being deceased. We also do not know the numbers of ILUAs affected due to a deceased person not signing between 1998 and 2010, the period prior to Bygrave.

It would be helpful to know why all the individual members of the registered native title claimants did not sign on to the affected ILUAs. Is it because the member was deceased or incapacitated? Were they representing the views of their constituency, the group they represented? Did they decline to sign because the agreement related to another's country? Or were they being vexatious? We just do not know.

The Australian Greens also have concerns regarding the scope of the power conferred on the minister via item 14 of schedule 1 and its relationship to item 11 on the same schedule. The EM to the bill does not indicate in what circumstances the rule-making power conferred on the minister would be required; therefore, it is difficult to assess this amendment and its necessity. We know there are amendments related to item 11 and we will be raising issues about this in the committee process of this bill.

The Australian Greens agree with the majority committee report that the government should consider any implications for the right to negotiate agreements. However, more time is needed for any amendments to be considered by the committee and Aboriginal and Torres Strait Islander people's communities and organisations. This was raised during the committee discussion. It is an issue that still needs to be looked at. Part 1 measures amended decision-making processes for future area ILUAs to, supposedly, improve the process. However, items 1 and 5 of schedule 1 do not reinstate the interpretation applied in Bygrave. Rather, these amendments will apply a new set of rules to future area ILUAs. Specifically, the native title claimant group will be able to nominate which member or members of the registered native title claimant are required to be parties to the area ILUA or, where no members have been nominated, a majority of the members of the registered native title claimant must be parties to the area ILUA.

The National Congress of Australia's First Peoples strongly opposes item 1, which amends section 24CD(2)(a) to allow for the nominating of members or a simple majority of the members where no members are nominated. In their submission, they said:

No Aboriginal or Torres Strait Islander person should have their native title rights violated by an ILUA they do not agree to. Allowing in ILUAs where a potentially large proportion of the native title claim group disagrees is unjust and compromises our native title rights.

There is an argument that some decisions are so significant that they should require unanimous support of those affected or, at least, a higher threshold than a mere majority, particularly where they involve significant consequences for native title holders, such as surrender of native title. This is a very important for the southwest groups in WA.

It is worth noting here that, unlike a standard contract, people who hold native title rights and interests who are not a party to the area agreement can be bound by the agreement upon its registration. In this regard, procedural safeguard relating to registration is crucially important. In its submission, the Law Council of Australia said:

The requirement that all the people who comprise the registered native title claimant be a party to the agreement is one of those safeguards and the removal of it should be carefully considered.

The Australian Greens agree with the suggestion in the majority committee report that the Commonwealth look at the proposals put forward to amend the act in relation to ILUAs that involve significant consequences for native title holders like the surrendering of native title rights. Aboriginal and Torres Strait Islander peoples, committees and organisations should be consulted on an amendment related to this.

On the other hand, a number of submitters argued that a single member or small group of members of the registered native title claimant should not be able to frustrate the will of the majority by withholding their consent to being a party to an area ILUA, which is a possibility in light of McGlade. The potential for such a situation will likely reduce the number of area ILUAs being negotiated and entered into. In such a circumstance, the native title group would have to make a section 66B removal application to remove the member or members who refuse to become a party, and it has been pointed out that this process can be costly and time consuming. Conversely, if a member of the registered native title claimant feels that the authorisation has not been upheld, they would decline to sign the agreement, withholding their consent to being a party to the area ILUA. In this regard, the Law Council said:

… one of the advantages of the 66B process is that the person is then made accountable to the community for the action … and if they are genuinely acting outside their mandate, they would be removed.

Following the McGlade, a section 66B process would be required to remove a deceased person from the registered native title claimant. This does not accord with the cultural practice of many Aboriginal and Torres Strait Islander communities—specifically, for example, not naming a deceased individual from the registered native title claimant is not explicitly dealt with in the amendments contained in the bill; however the amendments contained in items 1 and 5 of schedule 1 do overcome this issue. At least one submitter to the inquiry suggested that a more streamlined process is needed for removing and replacing a member where they have passed away or lost capacity, and that they would support a bill being put forward to deal with this issue.

A number of alternative proposals were put forward for the consideration of the committee, specifically with regard to the default position of the majority contained in item 1 of the bill. One proposal was that alternative dispute resolution processes should be looked at as a means for resolving disputes within claim groups. Another proposal, from the National Congress of Australia's First Peoples, advocates for all RNTCs to sign an ILUA, which was the process prior to Bygrave, and that 'a process be developed for determining voluntary and informed consent to mitigate against exploitation of our peoples'. They too propose an alternative dispute resolution process, specifically mediation, either where the claim group is unable to choose who should make up the RNTCs or where not all the members chosen agree to sign the ILUA. Another proposal is that the traditional owners of the land as a group consent to any action to be taken on the land, similar to the requirements of section 23(3) of the Aboriginal Land Rights (Northern Territory) Act 1976. It is argued that such an approach better reflects Aboriginal decision-making processes than the default position contained in the bill, as it requires more than a mere majority.

The Law Council of Australia offered yet another alternative suggestion, specifically that subparagraph 24CD(2)(a)(ii) be removed from the amendments. This would have the effect of upholding the decision in McGlade and require that all individual members of the registered native title claimant be a party to an area ILUA, unless a lesser number is specified by a claim group at the authorisation meeting.

Items 4 and 6 of schedule 1 remove the requirement, under sections 251A and 251B of the Native Title Act, for a group's traditional decision-making process to be used where one exists. This deals with the issues around the utilisation of a non-traditional decision-making process. In any case, the Greens are specifically concerned about that and we will discuss that further, given that there are amendments that deal with that. Setting out in the explanatory memorandum the need for these items does not alleviate the concerns. As I said, I will go further into that when we discuss the amendments.

During the committee inquiry, concerns about ILUAs were raised that were outside the scope of the inquiry, such as barriers to negotiation, the power imbalance between the parties, the ability to apply only once for registration, the role of prescribed body corporates, non-claimant applications and the enforceability of the agreements. Such concerns demonstrate the need for further consultation with Aboriginal and Torres Strait Islander communities with regard to changes to not only ILUAs but specifically the broader Native Title Act itself.

The points that were made in the committee and that I have just articulated in my contribution point out the complexity of the issues that we are dealing with and the concerns members of the community have about the rushed nature of the native title changes. I and the Greens acknowledge that we need to address this issue. I have had lots of emails, particularly calling on us not to support these amendments at this stage because there has not been enough consultation. We are unable to support these changes at the moment, although we acknowledge that change is needed.