Tuesday, 30 November 2021
Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021; Second Reading
I rise to speak on the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021.
The passage of the Aboriginal Land Rights (Northern Territory) Act in 1976 was an historic moment in the history of our country. In fact, in discussing this with colleagues on the other side of the chamber, they also recognise that. Before I go on, Mr Acting Deputy President Fawcett, I would like to say that your point in relation to who has the loudest voice was necessary, unfortunately, but one that was very well made in our system, so thank you. This was the first legislative attempt by an Australian government to recognise First Nations people's prior ownership of the land. It followed years of advocacy by Aboriginal people in the Northern Territory, including the bark petition presented to this parliament by the Yolngu people and, of course, the Gurindji people's seven-year strike for land rights. The act was an achievement of both the Whitlam and Fraser governments and passed with historic bipartisan support.
Since 1976, however, the act has been amended several times, mostly against the wishes of the land councils and the Aboriginal people they represent. The Howard government was responsible for amendments in 2006 and 2007—I may need to correct those dates later on the Hansardwhich were an attempt to weaken the land councils and limit their abilities to advocate for Aboriginal people in the Northern Territory. It's no wonder then that this bill, which proposes significant reforms to the act, has been met with suspicion in some quarters. However, unusually for this government, the bill has been negotiated with and is supported by all four of the Northern Territory land councils: the Tiwi Land Council, the Central Land Council, the Anindilyakwa Land council and the Northern Land Council.
Following the introduction of the bill in the House, the chair of the Northern Land Council, Mr Samuel Bush-Blanasi, said:
We have been working on this now for many years. For the first time Aboriginal people have been at the table with government ensuring the interests of Aboriginal people are front and centre. Finally we are seeing real progress.
In the explanatory memorandum to the bill, the government has stated a commitment to only amend the land rights act with the support of the land councils. This is a welcome development. The involvement of the land councils in the design of these changes and their strong support for them is the basis for Labor's support of this bill.
I will now go through the changes to the act. In relation to the new investment corporation—and these are arguably the most significant changes—a new Northern Territory Aboriginal Investment Corporation is to be established, funded from the existing Aboriginals Benefit Account, the ABA, which receives and distributes the equivalent of royalties generated by mining on Aboriginal land in the Northern Territory. It currently holds some $1.3 billion in funds. Pursuant to the land rights act, the minister is empowered to make payments from the account 'for the benefit of' Aboriginal Territorians. The ABA Advisory Committee was established under the act to provide advice to the minister on the making of these beneficial payments.
Unfortunately, there has been a chequered history of ministerial payments from the ABA. Ministers have not always heeded the advice of the ABA advisory committee. Minister Brough, for example, used funds from the ABA intended to benefit Aboriginal people living in the Northern Territory to support a festival in Queensland. Minister Scullion controversially used his discretion to refuse funding projects that had been recommended by the ABA advisory committee. Land councils have long called for greater Aboriginal control over the funds of the ABA. This bill makes a significant step in that direction. It will empower the new Aboriginal controlled NTAI Corporation to take over responsibility for making beneficial payments and to make investments that will promote the economic self-sufficiency of Aboriginal people in the Northern Territory.
The new corporation will be led by a board of eight Aboriginal representatives from the Northern Territory, two government appointed directors and two independent directors appointed by the board. Roughly half of the current balance of the ABA will be transferred to the new corporation; that's about $500 million and $60 million annually for the first three years of its operation. The bill also enables further payments to be made from the ABA to the corporation at the minister's discretion. Concerns have been raised about continued ministerial discretion over the remaining funds in the ABA, which are projected to grow significantly in coming years. Given this government's astonishing willingness to use public funds for its own political imperatives, that concern is understandable. However, as the history of ministerial payments indicates, misuse of ABA funds remains arguably a greater risk if the status quo is maintained. The establishment of the new corporation means that for the first time an Aboriginal controlled body is making decisions about the spending of ABA money. This is far preferable to an advisory body that does not have the capacity to direct spending and which has certainly not prevented questionable ministerial payments in the past.
The second set of amendments to the bill go to processes for the negotiation, consent and approval of exploration and mining on Aboriginal land in the Northern Territory. Given the importance and the subject matter of these provisions, the changes have understandably attracted some concern. As my colleague the shadow Attorney-General noted in his speech on the bill in the other place:
… this government has a dismal history with respect to making changes to traditional negotiation and consent processes in the context of native title. In recent years, claimed improvements to make those processes more efficient have in fact come at a cost to the rights of First Nations people and have threatened the integrity of traditional decision-making processes.
In contrast, these parts of the bill make largely administrative or technical changes to the land rights act and have the strong support of the four Northern Territory land councils. As the land councils submitted to the committee inquiry:
The reforms have the potential to reduce the amount of time associated with the application process for exploration licenses and permits. Creating more efficient and consistent processes will benefit Traditional Owners and mining parties equally.
As they outline, the changes resolve 'a major source of frustration' by reducing unnecessary meetings when traditional owners have already made their views clear to a land council. In his evidence to the committee, Mr Wayne Beswick of the Northern Land Council explained:
In fact, they're precisely there at the request of traditional owners, who don't want to be humbugged by endless meetings when they've already clearly made their views known to the land councils. So it's traditional owners who were pushing for that particular change, not the miners.
The administrative nature of the changes was emphasised by the Law Council of Australia, which regarded the impact of the amendments as 'generally being negligible'. Importantly, these changes do not dilute the protections in the act for traditional owners, which remain some of the strongest in the country. Land councils are still required to be satisfied that traditional owners have consented to the relevant licence. There has been no change to the right of traditional owners to withhold consent to mining under the act. As Mr Nugent of the Central Land Council explained to the committee, these changes:
…in no way derogate from the central requirements of traditional owners. The so-called 'veto right' that traditional owners maintain is sacrosanct under the land rights act. That is absolutely protected.
The third set of amendments made by the bill are to the land administration arrangements under the land rights act. This includes a range of measures to give land councils greater authority to act on behalf of their communities without ministerial approval and increase penalties for unauthorised access to Aboriginal land. Labor particularly welcomes the bill's repeal of controversial Howard-era provisions imposed over the strong opposition of Aboriginal Territorians. This includes the repeal of section 74AA of the land rights act, which was part of the Howard government's 2007 Northern Territory intervention. That provision has the effect of preventing land councils from overturning permits for accessing Aboriginal land that had been granted by a minority in the community and against the wishes of the traditional owners. According to the land councils, the ongoing effects of this section has been to cause division within communities. As they say:
It undermines Traditional Owner decision making as well as the Land Council’s ability to discharge its statutory function to act on behalf of Traditional Owners as a group.
Its repeal is welcome.
Labor also welcomes the bill's repeal of sections 28A to 28F of the land rights act which provide for the delegation of land councils functions to Aboriginal and Torres Strait Islander corporations. This is another hangover of the Howard era, introduced in an attempt to fragment and undermine the authority of the land councils. Labor opposed these provisions at the time. We have been glad to note that there has been not been a single successful application during the 15 years since its introduction. These provisions were poorly designed and were ultimately ineffective. We are pleased that the government is finally repealing them.
The final set of changes made by the bill align the operation of the ABA with the Commonwealth financial framework by ensuring consistency with Northern Territory legislation for the payment of mineral royalties and clarifying the purposes of the ABA. These provisions are uncontroversial and Labor is pleased to support them.
Before I finish my remarks, I want to briefly address concerns raised about the representative nature of the land councils. There are some who say the consultations the land councils have conducted in relation to this bill are insufficient. There are some that argue the board of the new corporation is not sufficiently representative of Aboriginal people in the Territory because the majority of its directors will be appointed by the land councils. It's worth remembering that land councils are democratically elected bodies with a statutory obligation to represent the views and protect the interests of Aboriginal people living in the regions across the Northern Territory.
Federal MPs represent anything from 70,000 voters to 100,000 voters. Each of the Northern Land Council's 78 full council members represents, on average, 410 Aboriginal people in their region. For the Central Land Council the comparable figure is 187. For the two small land councils it's 60 to 70 each. These are arguably the most democratically representative institutions in the country. Just as those of us in this chamber are accountable to voters in our states' and territories' elections, so too are land council members accountable to the Aboriginal people they represent. As the land councils state in their submission:
Land Council members are elected to represent the views of Traditional Owners and other Aboriginal residents in their Land Council region. If they fail at this, they get voted out.
That sounds pretty democratic to me.
Undoubtedly, there are aspects of the bill and its development that Labor would have managed differently if we were in government. There are parts that we intend to monitor closely over the coming years. In particular, we will take the opportunity to scrutinise the strategic investment plan for the new corporation when it is tabled in parliament, as required under the bill. And we look forward to interrogating the effectiveness of the new corporation through the review provided for in the bill, noting that it will take several years to be able to evaluate the success of its strategic investments.
Overall, the bill has the capacity to enhance the rights and interests of Aboriginal people. It ends some of the most controversial and damaging reforms of the Howard government, and, while there are further reforms Labor would like to see, this is a positive first step. Most importantly, the new investment corporation will ensure a higher level of Aboriginal control over moneys earned from mining and development on Aboriginal land in the Northern Territory. This is a significant development and one that land councils and those they represent have been advocating for, over many years. Labor commends this bill to the Senate.