Senate debates

Tuesday, 13 June 2017


Native Title Amendment (Indigenous Land Use Agreements) Bill 2017; Second Reading

6:44 pm

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

That was an extraordinary contribution by Senator Chisholm on the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017. You have to think that maybe the Queensland Labor Party is a little bit worried and that it is finding that standing in the middle of the road on this issue is becoming increasingly uncomfortable. I will confine my remarks largely to the bill that is before us. Obviously, this is a holdover from what we saw occur during budget week when, despite what Senator Chisholm has just sought to put on the record, Minister Canavan let the cat out of the bag and acknowledged that this was about Adani. I think the only things amongst what you said just then that I agree with are that this is an incredibly complex matter and that it is not something that should be rushed. That has been our point about this all along.

To imagine that not just native title rep bodies but Aboriginal people around the country speak with one voice and all believe the same thing about the complexities of native title would be absolutely ridiculous. That is the reason why we sought to have this debate in a much more measured way. It was very, very evident that the government, back in budget week, were seeking to shotgun this thing through as rapidly as they could. And, while they tried all kinds of procedural tactics, we had Senator Canavan acknowledging that it was about Adani—and it is appreciated, I guess, that at least they did not try to hide it. It was about distorting native title law, which has all of its own problems and issues unto itself, to win an outcome for a coal conglomerate. Let's not pretend that that is not what is going on here.

This is an incredibly complex matter; native title is a very, very complex body of law. We heard Senator Scullion's acknowledgement just before about Mabo, and I do want to add my voice to those of my colleagues and, I think, everybody in here and acknowledge the courage of those who brought forward the argument and sought to have it embedded in white law that there were people here, there were nations here and there were an extraordinary number of complex trading societies here. This land was occupied and cultivated for a vast amount of time. I want to acknowledge the very fact that the battle to have basic recognition of that pre-existing culture and system of law and to have that embedded into white law took as long as it did and was fought bitterly by some of the people representing various interests in here today.

I can still remember the advertisements that the mining industry in Western Australia took out against native title and its various subsequent amendments at the time, with pictures of the Australian continent blacked out and saying that the blackfellas are coming for your land; they are coming for your backyard. These were well-resourced campaigns run by well-resourced industries to fight the very concept of the existence of native title law. That is one of the ways through which we have ended up here today.

Let's just acknowledge for a second that the courage of those advocates, of the people who fought this and their legal representatives, all those years ago did win an important precedent in having the concept of the legal fiction of terra nullius being set aside. I do not want to come in here and diminish the importance of that achievement. The rights that were created under native title at least acknowledge, or form the beginning of an acknowledgement, that there is a traditional connection to land and waters. The maintenance of that connection is obviously a significant part of the act, and I would argue is also a significant flaw in the act because, wherever acts of government or colonial settlers had broken any part of that connection, native title rights were extinguished.

Who can forget the 'bucketloads of extinguishment' comment? I think it was the leader of the National Party at the time who was trying to reassure his constituents that, in fact, we can set up this native title right and then we can take it away—that Aboriginal people are going to need to fight in a white tribunal to justify the fact that they had pre-existing culture, civilisation and law across this continent for 40,000, 50,000 or 60,000 years; that they would need to then justify that continuing connection and custodianship of country in front of a white tribunal. And if some pastoralists had thrown a sheep fence across it 80 years ago, then that would form a measure of the bucketloads of extinguishment and those rights would have been taken away.

I am not one of those who think that native title is a perfect body of law; in fact, I think it goes only part way towards embedding in colonial law, in settler law, the fact, the complexity and the sophistication of the pre-existing law that existed over this ground for so many thousands of years. That is why you do not want to come in here and rush these kinds of things at the behest of the resource industry.

The resource industry does not have a proud or happy history when it comes to debating or conceding the existence of native title or other forms of pre-existing sovereignty over this country. In fact, they have an absolutely shocking record. It is one of the things I would have to say, as a Western Australian, shames us—the way the argument was run and continues to be run. Then you have someone like Senator Canavan in here, who makes no apologies and, unlike some others in this chamber, does not attempt to hide or obfuscate the fact that he is basically here representing the interests of big coal. He is not here representing the public interest. He is sure as hell not in here representing the interests of traditional owners, who might have a variety of different views about these amendments and the complexities the High Court has thrown up at different times. He is here representing the coal industry, whether it be domestic or foreign. Native title happens to be in the way, so let us get it the hell out of the way. That is what we saw in the budget week and that is what we fear is occurring here and now.

We also recognise the legitimate interests, given the complexities that the High Court has thrown up in recent times, and the reasons why many of the rep bodies around the country believe that there is a legitimate public policy issue here that needs to be rectified. Senator Canavan and the Australian government come in here after the rather degrading spectacle of Prime Minister Turnbull in India telling the proponents of this coalmine—which must never go ahead—that native title is not going to be a problem, 'We'll sweep that out of the way'. He might as well have said, 'Bucketloads of extinguishment,' mightn't he. Some things do not change.

We saw a rushed committee process. I think Senator Siewert, more than nearly anybody in this chamber, understands the complexities of this. She has been arguing not for purposeless delays but for time to consider the ramifications and the unforeseen consequences of legislating an act as complex as this in a hurry. The committee process was incredibly rushed. There were people with legitimate points of view and who were available to give evidence who had the door slammed in their faces because of the incredible hurry that the government was in. I think what we need to be doing in here is respecting not just the letter of the law but the spirit of the law of native title—the spirit and intention with which it was legislated. That is the opposite of what we are seeing here.

Whatever noble public purpose might have been under the need for amendments such as this, the government has been very transparent and quite clear about exactly what it is doing. We believe the government should consider any implications for the right to negotiate agreements as well as land use agreements. We acknowledge that amendments to native title need to be made in light of the McGlade decision, but we also believe that more time is needed for amendments to be considered and to enable other options to be looked at, because it might be a while before these issues are revisited.

We hold concerns, obviously—which Senator Siewert has put any number of times in this place—that there are aspects of this bill that water down traditional decision-making processes. What they told us out at the tent embassy, when Senator Siewert and I went down the hill to visit them and pay our respects not that long ago, was that, by some reckoning, people do not feel bound by decisions with which they disagreed. They do not feel bound. Their concept is that acts such as this—forcing voting rights on them, meeting after meeting after meeting, trying to crunch the numbers and bussing in people from other parts of the country to try and force an issue one way or another—are utterly contradictory to traditional decision-making processes. That is why some people see native title as just a system for tearing families apart and pitting different families with different points of view and different arguments against each other. That is why we believe that care needs to be taken.

We attempted to change the reporting date on the bill. That, regrettably, was not supported by the Senate. When you take a look at what various stakeholders have said about this bill, National Congress of Australia's First Peoples said:

We strongly oppose both nominating representatives, as well as the simple majority requirement in the proposed amendment to s24CD(2)(a). No Aboriginal or Torres Strait Islander person should have their native title rights violated by an ILUA they do not agree to.

That is effectively what we heard down at the embassy only a couple of weeks ago: there is no way that you can say that people should basically be forced into agreements against their will. They went on to say:

Allowing in ILUAs—

Indigenous land use agreements—

where a potentially large proportion of the native title claim group disagrees is unjust and compromises our native title rights.

The Law Council, coming from a slightly different point of view, put:

In considering the appropriateness of the amendments, it is important to note the nature and effect of Area Agreements.

…   …   …

… upon registration, it is possible that people who hold native title rights and interests can be bound by an agreement that they have not had actual notice of, have not had legal advice in relation to, and were not a party to.

…   …   …

The types of matters which may be the subject of an Area Agreement are not trivial.

I think it is extraordinary that not just any group in Australian society but those who were here for millennia before Captain Cook sailed over the horizon would be subjected to having their rights taken away in such an incredibly cavalier manner—rights over country; rights over land. The Native Title Tribunal put:

It is not clear whether this will result in the automatic deregistration of registered ILUAs that are affected, however legal action to test whether such ILUAs can remain on the register has already been intimated. To avoid a period of protracted litigation and uncertainty, this situation is also in need of remedy and the validity of currently registered ILUAs needs to be put beyond doubt.

It is not clear to me whether the government, in seeking to just ram this thing through before all these different ramifications can be tested and evaluated, is not simply signing up people who have much better things to do to many more years of litigation and contest in court.

Those are our key concerns: the very short time frames, the appalling misjudgement in consultation and the bill being rushed through the House so rapidly after a Federal Court decision, driven largely by the threat to the Adani mine if the ILUA was found to be invalid. That is why Senator Chisholm's contribution to the debate really just needs to be set aside. I get that Labor is finding itself in an impossible position. Most of you, or half of you—goodness only knows what the factional break-up is; it is impossible to tell from the outside—want the Adani mind to go ahead and a bunch of you do not. That is why the net effect of those polar opposites of trying to walk on both sides of a busy highway is deep, deep mediocrity of the kind that was expressed by Senator Chisholm before. Put your damn cards on the table. Do you want this coalmine to go ahead or not? If you do, do not come at us with pious commentary about how much you care about climate change. Just pick a side for a change and tell us whether you support this mine or not. Your Queensland state colleagues have obviously marked their cards, but I can remember—I presume it was during an MPI or some other business before the Senate—being lectured to by somebody on the Labor Left, asking how dare we imply that Labor was supportive of this coalmine, and a speaker from the Labor Right saying, 'Of course we support this coalmine.' Just pick a side. At least with Senator Canavan or Senator Brandis or Senator Macdonald or any of these other people, you know where they stand. They are reasonably clear about it. They could not care less about the climate impacts, about the impacts on the reef, about the loss of jobs in tourism or about the break-up of this incredibly important and unique ecosystem that can be seen from orbit. They do not care, but at least they will tell you to your face that they do not care. I would appreciate it, and I suspect many others would appreciate it, if, just for a change, the Labor Party just told us what they stood for. Do you want this thing to go ahead or not? It does have bearing on this bill. We know it has bearing on this bill. Senator Canavan told us that it had bearing on this bill.

I know that Senator Siewert has questions to ask and a major contribution to make during the committee stage of this bill, which is when I suspect there will not be answers to a lot of the questions that we will be putting to the government through the minister. If you had just let the committee process run its course, let everybody give evidence and let the full range of arguments for and against the various ways of improving the act run its course, the committee stage probably would not be as arduous as I suspect it is about to be. But, in the meantime, I think those on the government benches need to have a good, hard think about not just the amendments that they have brought to us now but how they feel about using this complex and quite divisive body of native title law to elbow a group of traditional owners out of the way in order that the largest coalmine in the Southern Hemisphere be allowed to proceed and how they are going to feel in the aftermath, when the Australian community stops that project dead in its tracks. This could have been done much better. You can see from the submissions to the inquiry that there is enough goodwill out there recognising that there is a legitimate public policy problem that parliament probably needs to intervene in and that this could have been done in a far more elegant and less disruptive way.

I will conclude my contribution now and I look forward to the committee stage of the bill.


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