Monday, 11 September 2023
Legal and Constitutional Affairs Legislation Committee; Reference
COX () (): Are we surprised that this is happening yet again? No, I'm not. Nidja bala cartwarra. It seems that every day there is another motion that is cooked up and rolled up in trying to get extra donations and staying relevant in the media. I want to be crystal clear before the onset of this. Native title is not what it should have been, and I thank Senator Cash for talking specifically about Eddie Koiki Mabo's High Court challenges. That was, in fact, about terra nullius, and he won twice in the High Court, not just once. And he did not have a big bag of cash of the $71 million that Senator Hansen mentioned before to challenge any of these cases. So this landmark decision could have and should have really changed the land rights for First Nations people in this country, who had so much taken away from them.
This decision should have seen First Nations people enjoying their country and their rights to country, such as ngany moort, my Noongar and Yamatji heritage. And, for a short second, we relished in this victory and were hopeful of all that could have come from it. But then the Native Title Act was born. It came, only to end up with what can only be described as a mainstream definition of our connection to country. The ownership was misrepresented in this legislation, and it got rammed into a Western legal system and concept. We call ourselves traditional owners, but the concept of ownership is very different for First Nations people. We don't own the land in the sense of private ownership or even Crown land. We own the land in the sense that we see ourselves as part of the land, and they are not separate entities. In fact, there's no hierarchy involved in that. We are not above country and we do not own country at the exclusion of other people, unlike what some people are alluding to, particularly in this motion. We are here to nurture and care for our country, just as it cares for us. It is an interconnected relationship—that's the way I'd like to describe that.
This is and has been a very hard description for a Western legal system with a Western understanding of property ownership rights—and Senator Cash has talked about that in great detail—which inherently means you own something at the exclusion of others because it's yours. That's what that does; it frames it in that way.
Now, there definitely needs to be an inquiry into native title reform. I'm not going to stand here and say that there doesn't. It's not a perfect system; I believe it is not. First and foremost, the right to compensate people needs to be decoupled from the right for groups to say no in relation to particular projects on their country. That is the first thing. We have seen this clause in particular—and it is misrepresented—through native title groups to tell them that if they don't provide their free, prior and informed consent they don't have any right to compensation. That is the decoupling that needs to happen.
The Native title: the way forward report following the Juukan Gorge debacle—and 'debacle' is the only way we can describe it—recommended that there be a review of native title and provided some really key points that should guide this review, such as the operation of section 31, the right to negotiate and the role of the National Native Title Tribunal. It also goes to the standards for negotiation of agreements to require adherence to the principles of free, prior and informed consent. These were at the heart of some of the evidence that I and people like Senator Dodson from my home state of Western Australia heard during the inquiry into the Juukan Gorge incident. And the prohibition of gag clauses: in this place people need to understand that those gag clauses are still in existence, in 40-year-old agreements in Western Australia—and clarifying the role of PBCs and land councils in relation to cultural heritage and the protection and preservation of that Aboriginal cultural heritage.
The Greens would support this being framed in a way that would seek to strengthen the Native Title Act, would seek, as we've already been through an inquiry and heard evidence from industry and First Nations groups across the country, being able to continue to have a conversation that is well-informed and respectful in relation to what this means. So, I really struggle to think that, in forming this motion, Senator Hanson in particular doesn't understand or, frankly, respect just how difficult and timely it is to gather all the evidence that's needed to make a successful native title claim. And she wouldn't know, as she's already alluded to in her speech that she is not an Indigenous person, not an Aboriginal person. So, she wouldn't understand what that means, and the intense emotional labour that is constantly put on Indigenous people, First Peoples of this country, to have to prove their identity.
We've had this yarn more than once in this place. That basically means we're translating 65,000 years of history and culture for whitefellas to understand, for a court to understand, for lawyers and others—legal teams—to understand and advocate for. Let me give you a real-life example—and it's great to see my fellow senators from my home state of Western Australia, because they will know this example very well. But I want to preface this by saying that there are still issues with this particular process, and we must continue to improve the systems that are built for us, not by us. The South West Native Title Settlement is the largest native title settlement in Australia's history. This settlement will affect an estimated 30,000 Noongar people and encompasses approximately 200,000 square kilometres, which is the size of Belarus, in the south-west part of Western Australia. We belong to the largest cultural block in the country. Of this settlement, there are a couple of parts that I'd like to address in detail. One is a recognition act that was put into the Western Australian state parliament, called the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016. And it was the Noongar Boodja Trust that established and created nation-building activities to decolonise the system that was created for Noongar people—the resurrection of our language so that we could gain back all the things that are required for social justice for Noongar people. The Noongar land estate is up to 320,000 of development of cultural lands of cooperative and joint management agreements of national parks and a south-west conservation estate, land access to certain Crown lands for customary activities and the list goes on. This was brokered by Liberal government Western Australia, the Barnett government, which saw some sense in sitting down and talking it through after the court denied our people, after Justice Wilcox found that we had a 30,000-year-old connection to our lands and our waters in Perth.
This process is far from perfect, as I said, but highlights 26 years of work. I want to acknowledge all of the applicants and all of the people who were part of this process. This motion before our chamber early this evening is to undermine the rights to claim native title; to remove our rights to negotiate; in fact, to get rid of them completely by putting a deadline on people being able to make any native title claims. I want to be really clear and really frank. This is not about native title. This is not about looking at economic development—I find that laughable. This is about cultural assimilation; that's what it is about. You cannot deny people their rights to their country, to their culture, to their songlines, to their birthing places, to their old peoples' stories being told for generations, for tens of thousands of years before colonisation in this country. The Greens are proud to stand here today and say that we are against that. We are against the fact that this motion would be brought to this place. It's a continual attack upon our people.
[Noongar language] Noonakoort moort kwonbarr. Djinying nidjar mungart Boorah. Koort boodjar nidja ngaarl boodjar. Kaarl boodjar. Kaarl boodjar. In this place. It's the cleansing. We cannot continue to do this. We need to heal our people. It is disgusting that we continue to have these conversations.