Wednesday, 16 August 2006
Aboriginal Land Rights (Northern Territory) Amendment Bill 2006
Consideration resumed from 15 August.
When last we were considering this legislation, I formally moved amendment (4) standing in my name. This seeks to repeal section 44A of the principal act in accordance with a submission made by the Northern Territory land councils and the Northern Territory government in 2003, which the government argues is the basis of this legislation. The government has consistently argued that what it is doing in the proceeding of this bill is implementing the negotiated settlement between the land councils and the Northern Territory government. That is true to a large part. As we have said, there are two parts to the bill: that which was consulted upon, negotiated and agreed to; and the second part, which is the added-on ideological agenda of the government, which has not been subject to the same level of consultation and which certainly has not been done with the consent of the traditional owners.
Putting that argument to one side—we have debated it at length in this chamber already—this provision, section 44A, restricts a form of agreement that is wanted by both the land councils and the Northern Territory government. There has been no explanation as to why the government, in proceeding with this bill, did not include this aspect of the agreement. Nearly every other aspect of the proposals that came out of the joint submission from the land councils and the Northern Territory government were adopted by the Commonwealth, but this one was not. So Labor is moving to include that measure because we think it is an appropriate one, and I have not heard an argument from the government as to why it should not occur.
Basically, we are seeking to repeal section 44A of the principal act because we feel it imposes restriction on the negotiation of mining agreements. On the face of it, it seems to preclude exploration agreements which specify a formula for royalty payments when mining occurs. Currently exploration agreements negotiated by the land councils and the Northern Territory government include provisions regarding mining payments. They have been included in negotiations since the 1987 Native Title Act amendments because of the different approach applied in that act. If the owners consent to minerals exploration in the Northern Territory, they lose the right to object to the subsequent grant of a mining interest. In other words, unlike the regime under the Native Title Act since 1987, exploration mining agreements under the Aboriginal Land Rights (Northern Territory) Act have been in a conjunctive rather than a disjunctive form. Senators might be aware of the method that applies under the Native Title Act. It has been the subject of much debate in this chamber since 1993.
The joint submission by the land councils and the territories recommended that there should be no restrictions on the content of agreements, leaving all the parties to be governed by general commercial law. As I understand it, this recommendation was supported in all three major reviews of the land rights act, including the Reeves review, the national competition policy review and, of course, the report of the House of Representative Standing Committee on Aboriginal and Torres Strait Islander Affairs. In the absence of any coherent argument from the government it seems to Labor that this aspect of the agreement reached in the Northern Territory, which the government has largely given force to in its amendments to the land rights act, ought to also be reflected in these amendments. I urge the Senate to support Labor’s amendment.
I think Senator Evans has been speaking on amendments (5) and (6). Senator Siewert, in her usual sharp and incisive way, has noted that the discussion really related to amendments (5) and (6). Senator Evans, as indicated, did move amendment (4), but I do not think we discussed that yesterday. I am happy to deal with amendments (4), (5) and (6) at the one time, if that makes sense.
If we are dealing with the amendment that relates to ministerial approval, which is the amendment that I thought we were dealing with and the one that was moved yesterday, the Greens support it. Sorry for the confusion. This amendment relates to ministerial approval or variation of a delegation if a land council refuses to do so. The amendment, I believe, makes more rigorous the minister’s power to approve a delegation if a land council refuses to do so. That relates to the additional things that the amendment requires the minister to consider, such as that the body has a sound governance framework and prudent management and that the majority of traditional Aboriginal owners of the region represented by the body consent to the delegation. Those two are important considerations in that at the moment, as I understand it, the minister could approve a delegation to a land council that in fact may not have a sound governance framework and prudent management.
As the original land body is still responsible for the carrying out of its functions, it is important that, where decision-making powers are delegated, a land council does in fact have a sound governance framework and prudent management. This amendment gives more rigour to the decision-making process, gives more certainty to the land councils that the body that the powers will be delegated to in fact has a sound governance framework and gives the land councils more confidence that the powers being delegated will be appropriately used in a satisfactory manner. We support this amendment to give more rigour to that decision-making process.
I apologise for any confusion caused. In a sense, the confusion may have been caused because we debated yesterday the question of the regional bodies and the delegation of powers. As I was not successful yesterday, I suspect that despite the eloquent contribution of Senator Siewert, which might convince the government, we will go down on this one as well. Senator Siewert made the argument very well. Effectively, we are concerned that the government is seeking to move to give regional bodies control over many of these matters. We have some concerns about what that will do to the efficient operation of land issues. We have some concerns about the potential for dispute and the potential for more uncertainty regarding development. Those concerns come from both the Aboriginal side of the argument and from the mining side. They are united in their concerns about the government’s direction here.
Given that the government was intent on going down this track, we thought that this amendment would be a positive measure, given that this amendment seeks to provide some clarity about the circumstances in which the minister should be allowed to use his powers. We sought to include a test which ensures that the regional body concerned has operated effectively and appropriately and that there is the consent of Aboriginal traditional owners. The government, on various other occasions, has sought to emphasise the issues of sound governance and prudent management. We think that this is an opportunity for the government to be consistent with its policies, and I commend the amendment to the chamber.
Senator Evans was right on one thing: I have not been persuaded by the eloquence of Senator Siewert, although I listened very carefully to her views. The amendment which has been moved has three parts, (a), (b) and (c). The first reads:
The Minister must not approve the request unless he or she is satisfied that:
(a) the body will be able to satisfactorily perform the functions and exercise the powers sought by the body;
This is in fact already in the act. The second part, (b), reads:
(b) the body has a sound governance framework and prudent management;
We believe that (b)—and this is the point that was raised by Senator Evans—is already encompassed in (a), so there is no need to specify that particular element separately. We do not agree with (c); we do not accept it. It reads:
(c) a majority of traditional Aboriginal owners of the region represented by the body consent to the delegation.
Let me outline our reasons for that. Bodies corporate which are delegated land council powers will be required to represent Aboriginal residents as well as traditional owners. Therefore, the consent of traditional owners to the delegation of the powers would not be appropriate; it would be inappropriate. It does not recognise, in our view, the rights of Aboriginal residents. Therefore, we will not accept amendment (4)(3)(c) because we do not agree with it. While we agree with (4)(3)(b), we believe that (b) is already encompassed in (a), as it is already part of the act. Senator Evans was quite right to remind the chamber that the government do place great weight on sound governance framework and prudent management, but we believe that is already encompassed in the bill as it stands. The government cannot accept this amendment.
The Democrats support this amendment. The minister’s contribution has made me even more concerned that the government does not accept it. Obviously the views of all Aboriginal residents need to be taken into account, but the fact that the minister does not see it as necessary to be satisfied that a majority of traditional owners consent to the delegation is, I think, a serious problem.
It is a problem on two fronts, and I again refer to the evidence not only from the land councils but also from the Minerals Council. They are the people who have to work on the ground with the reality. As one of the witnesses said to the Senate inquiry in Darwin, whatever the principles in the legislation are, people eventually end up getting mugged by reality. The Minerals Council’s concern was that this may risk putting in place a scenario where the minister agrees—for whatever reason, good motive or bad—to approve a request which does not have the support of traditional owners. That would put in place the potential for serious dissent. That would make whatever is being proposed far more likely to become unworkable, whether it is mineral exploration or anything else.
I would have thought that the whole basis of the principle behind land rights legislation would have to include the traditional owners. I do not mean it would have to include only them, but it certainly would have to be a sufficient condition to which the majority of traditional owners of the region consent. I think that it is very important in principle, but even if you wish to put principle to one side—and I do not—in terms of workability you are really putting in place quite a serious risk.
Remember that we are not talking just about the current minister and the current government. This legislation stays in place, once it is put in place, until it is amended. It could be that a future government or a future minister might be willing to use this power for less than benign intent. You would really be creating a potential situation where a minister could approve a request that is quite clearly against the majority views of the traditional Aboriginal owners of the region. That would set up a very unworkable situation, and I do not think it is wise to allow that potential to be there in the act when there is no need for it. There is no need for it, according to the evidence presented at the inquiry.
There is only one other point I would make, and I have made it a few times in my broader contributions. I do think it is an important point, and it goes to the submission of the Aboriginal and Torres Strait Islander Social Justice Commissioner. He detailed the commitments that the Australian government had publicly given with regard to the objectives of the Second International Decade for the World’s Indigenous People. Australia had agreed to act in accordance with and to promote those objectives, which include promoting full and effective participation of Indigenous peoples in matters which directly affect their lifestyles, traditional lands and territories, considering the principle of free, fair and informed consent.
With regard to Indigenous people’s traditional lands, I believe that the failure to accept this amendment sets up the potential for the government to be able to act outside of the consent—informed or otherwise—of Indigenous people regarding their traditional lands. I think it contradicts what the Australian government said it would do with regard to those principles, and that is a problem. As I said, I think it also raises some potential problems with workability. It is not going to occur every single time; I am not trying to suggest that this will lead to the collapse of everything. But, given that it is not necessary, I do not see that it is such a massive shift from what the government is wanting to do in its original legislation that it should be rejected. It is an extra impediment but I would see it as an extra protection. It is not like it is absolutely essential that we have to be able to use this power that has been put in subsection 28C(3). It is just an extra protection to ensure that, if it is used, it is used with the clear support of the local Aboriginal people.
We can all see the problem that would almost certainly arise if you had a minister in Canberra who agreed to something that was opposed by the majority of traditional owners of the region. That would be a pretty bad dynamic. I do not know why you would want to allow even the potential for that to happen. It really concerns me, and the minister’s response concerns me further, if anything, because it contains the view—at least the way I heard it—that ‘we do not feel it is necessary to have that majority view’. That is a real problem.
Mr Temporary Chairman, I was hoping the minister would respond to that contribution. I want to reiterate the point that at the heart of this clause—and it has been at the heart of a number of the debates on the bill—is the question of Aboriginal traditional owners having a say over what happens on their land. The government’s proposition fundamentally undermines traditional owners’ say over what occurs on their land—this is their property. Every measure the government takes seems to be about undermining the ability of the traditional owners to have a say over that land. This amendment seeks to provide some protection for traditional owners.
One of the issues at the heart of Aboriginal law and culture is that no Aboriginal person seeks to speak for another Aboriginal person’s land. It is a very central tenet of their culture that you do not speak for another person’s land. But this legislation is all about trying to enshrine a system, a view of the world that is a Western view of the world, about how Indigenous people ought to maintain or exercise their control over their land. The government consistently undermines the rights of traditional owners. The fundamental point that I keep trying to make is that it is their property. This is not about native title rights. This is their property—granted by the Commonwealth in recognition of their dispossession. The land is held in the name of the Aboriginal people. It is their land.
So the government is not only seeking to make arrangements which govern their land but it is also constantly seeking to undermine the capacity of traditional owners to have control over matters that affect their land. While there are tensions caused by the movement of Aboriginal people into communities which are not on their traditional land—the coming together of various peoples into communities for economic or other reasons—we are attempting with this amendment, as with the general approach to the bill, to try and ensure some capacity for traditional owners to maintain, enjoy and exercise their rights over their land. It seems to me that the government could at least make a minor concession to try and recognise their rights and provide some protection for their rights.
Senator Evans, the reason I did not respond to Senator Bartlett—and I feel a little bit constrained in saying this—is that, Senator Bartlett, your interventions are long and sometimes rambling, I regret to say, and you repeat relentlessly the things that we have already discussed at some length. You have a particular view and the government has a particular view. I do not seek to impugn your motives and I do not think you should seek to impugn the government’s motives. We just have a different view. It is a view that some others across the political spectrum share and some do not. It is not simply a matter of suggesting that someone is acting in bad faith or anything else.
The point I make is that if a land council or a body corporate performs a function in relation to Aboriginal land, they must get the consent of the traditional owners first. I think you are missing that point, Senator Bartlett. That point has been made throughout this debate, and there is not much more that I can add. You have a different view; we have a different view. We have thought hard about our view and, in weighing up the balance, we have come to a different position to yours. We give no ground to anyone in wanting to advance Indigenous interests. All of us recognise that action must be taken in this particular area.
Yes, there have been consultations, some of which have extended for nine years on this matter. At the end of the day, people have to reach a decision. The government have reached a decision. We have canvassed a variety of arguments. In the original reading, in the debate on the second reading and in the debate about splitting the bill these arguments have been long canvassed. We do not agree with you, Senators Bartlett and Evans, and we will not be accepting the amendment.
I move opposition amendment (5) on sheet 5008:
(5) Schedule 1, page 60 (after line 21), after item 124, insert:
124AA Section 44A
Repeal the section.
The opposition also opposes schedule 1 in the following terms:
I am in the happy position of having already spoken on these matters, so that will facilitate the work of the committee. As I indicated earlier, they try to pick up what was contained in the original agreement between the land councils and the Northern Territory government. Pending some explanation by the government that convinces me otherwise, we think these will improve the bill. They would carry out the original intent of the long negotiations to which Senator Kemp referred and would confirm the advice found in the various reports and inquiries into these matters over that long period of time.
The government will not be supporting (5) and (6). The government is not willing to remove from the act the provisions preventing compensation for the value of minerals being included in exploration agreements. Such compensation, as senators will know, is already provided through royalty equivalents paid to the Aboriginals Benefit Account.
Aboriginal people affected by mining receive 30 per cent of such royalty equivalents. The government have considered all views on this issue. We accept the point that a number of reviews have recommended the removal of restrictions. But that view is not shared by all stakeholders; all parties do not agree with that. Some seek the removal and others do not. The government have decided, on balance, to retain the restrictions. We cannot support (5) and (6).
While the mining industry agreed, I understand, to most of the package on exploration and mining reached between the Northern Territory government and the land councils, it did not agree with the removal of section 44A. As I said, on balance, the government has decided to retain the existing provisions. As a footnote to history, if I can put it that way, the provisions of section 44A which the opposition are seeking to remove were inserted in 1987 by a Labor government.
Senator Evans, following expressions of bad faith and expressions that somehow people have reached a conclusion which is not appropriate, it is quite interesting to draw on the historical experience and to see what was said by members of the Labor Party, whether they be members of the Labor Party in the Northern Territory at the current time—
Do not get tetchy about it. You raised the issue. I am a minister who likes to respond and to assist people. The truth is that it does undermine the argument that somehow this is a radical act, that the government are not accessible to arguments. The truth is that a previous Labor government reached a similar position to ours. We think that they were right at that time and we call on the experience of that time to support our current position. The Labor Party has changed its mind and we have not changed ours.
Far be it for me to suggest that the minister repeated the same points ad nauseam in his contribution. I think he is right, though, that it is worth looking at history and the whole act that we are debating, which was put in place back in 1976 by a Liberal government. History shows us that the big difference at that stage from what is being done now was that it was put forward in a bipartisan way, as have been many of the amendments since.
Whilst I shall refrain from impugning motives, not least because it is against standing orders—so I would have to withdraw it anyway—it does get more difficult not to do so when there is such a consistent, deliberate refusal to consider people’s views. In this particular example, we are talking about, in the minister’s own words, restrictions that are in place on Aboriginal people. I do not think it is any accident. If you look at the whole range of things that have been done through this process, anything that is a restriction on Aboriginal people has stayed in place and anything that gives extra power to the government gets accepted.
It seems particularly unfortunate that an area that would remove a restriction on Aboriginal people and that would enable more flexibility for them to negotiate with regard to mining activities is not being agreed to. It gives a lie to the government’s rhetoric that this is about opening up opportunities for economic development for Aboriginal people and giving them maximum flexibility and incentive, because it keeps in place a restriction on that. In dealing with every other part of this bill the minister has pointed to the Northern Territory government as a reason for the government doing what they are doing—because the Northern Territory Labor government support it. But on this occasion, when it is not convenient, the government do not support it. That is a real example of what the government’s motivation is here.
The opposition opposes items 173 and 174 of schedule 1 in the following terms:
(8) Schedule 1, item 174, page 69 (lines 9 to 21), TO BE OPPOSED.
This debate goes to the existing provision which guarantees 40 per cent of funds from the Aboriginals Benefit Account being available to support the land councils’ activities. The government seeks to delete that provision. Labor, in moving this amendment, seeks to retain it. The government has previously accepted that this funding floor, as it were, to support the land councils’ operations has been appropriate. The provision removes that funding floor and seeks to determine it on the basis of estimated workloads. It is an approach that has been adopted with some other Aboriginal organisations.
We are concerned about this measure. We believe it removes a protection which helps to ensure the long-term viability and independence of the land councils in representing traditional owners’ interests. It seems to be another measure that is aimed at tightening government control over the land councils, and we are concerned that, as part of a package of measures, it is really about government control rather than effective representation of Indigenous landowners. The government talk about outcome based funding in supporting these measures, but the land councils have already moved to performance based funding under recent administrative changes. We think, as I say, that it is much more reflective of a government seeking to tighten control. We think the controls they currently have are adequate. We think the land councils are committed to accountability and proper process. We think there are broader roles for the land councils in terms of economic development, job creation and advocacy that this amendment has the potential to undermine.
We have seen with other community based organisations where governments have sought to tighten control of their funding that a by-product of this invariably is that advocacy and those types of functions tend to be restricted by the government’s tight control. I have seen it in the disability sector, where the government has moved against the disability organisations that promote advocacy as part of their function. I have serious concerns about the measure to remove the guaranteed floor of funding to the land councils, together with the government’s other activities in relation to the ABA, where the minister seeks to dip into the money whenever he needs to solve a political problem and access money which he cannot win through the cabinet processes. He seeks to dip into the Aboriginals Benefit Account and he argues that what he is doing is in the best interests of Aboriginal people and therefore he has the right to access those funds and use them as he wants. Again this is a reflection of the attitude ‘We know best, and we will do to you, not work with you.’
So I think this is part of an undermining of the independence of the land councils. I do not think that is a good thing. I think one of the great problems in Indigenous affairs in this country currently is the lack of Aboriginal voices, the lack of capacity for Aboriginal people to be represented, not only with the demise of ATSIC but also with the government tightening its control on legal services and on native title representative bodies. This is just another measure that seeks to restrict the capacity for independent Aboriginal voices and for advocacy, and that is why Labor is opposed to the government removing the funding floor. Independence of funding provides a great deal of independence in how you operate. The land councils are strictly controlled anyway in terms of regulations and accountability mechanisms, but this measure fundamentally seeks to undermine their independence and thereby undermine their capacity for advocacy on behalf of traditional owners. I do not think it is a move that should be supported by the Senate.
In my speech in the second reading debate I expressed the Greens’ concerns about this particular section of the act, so we are supporting the Labor Party’s opposition to these items. We likewise are concerned about the undermining of the independence of land councils and the shift in the balance in decision making over how this money is spent. This measure concentrates further control with the government and with the minister rather than with land councils. It is undermining their ability to self-determine and their capacity to determine how these funds will be spent, when the government’s intention is supposedly to increase Aboriginal enterprise. The amendments proposed by the government to take further control of this account seem to us to be in fact undermining Aboriginal communities’ capacity to increase their ability to engage in economic development and increase their enterprise.
The concern we also have is that—as we have been through extensively in this debate—we do not believe the land councils actually support many of these amendments. They do not support the issue of headleases and the 99-year lease at this stage. They do not believe there has been enough consultation, and yet their own funds are being taken to put these provisions in place. These funds are going to be used to pay for the establishment and the administration of these leases. They are also going to be used to pay the rent on these leases. I do not believe that is fair. I do not think that is natural justice for the land councils and for traditional owners. We therefore do not support increasing the concentration of the minister’s control over these accounts. I do not believe that they are being used for what they were originally intended for. While I acknowledge that, as I understand it, the proportions of the allocations of the funds were fairly arbitrarily decided in 1974, I would have thought extensive consultation with the traditional owners, with land councils and with Aboriginal people would have been needed if the proportions of the allocations were to change.
As we have gone through the debate in this place, we have articulated fairly extensively that there has not been extensive consultation on many amendments in this bill, and this is certainly one of those on which there has not been extensive consultation. I do not believe the changes have the support of the land councils. In fact, I have heard very strong arguments that they do not have the support of the land councils. Therefore, we are supporting the Labor Party’s opposition to these items. We believe the formula at this stage should remain the same. If it is to change in future, that should be on the basis of decisions made by the traditional owners, the land councils and Aboriginal peoples. They should come forward and suggest to government what proportions should change in the future, after there has been extensive consultation. I do not believe we should foist on the community changes that they do not want, that they have not been adequately consulted about. It is rubbing salt in the wound to make communities pay for these changes that they do not want. So we will be supporting the Labor Party in opposing these items.
The Democrats support the Labor Party’s opposition to these items. What the government seeks to do in this part of the legislation is give more power to the minister and take power away from land councils representing the traditional owners, and that is not something we accept. It will also provide just one more stick for a minister, whether the current one or a future minister, to basically keep land councils in line. The government will have the ability to imply threats—that it will cut budgets more significantly if land councils behave in a way that the minister does not like. I do not think that is acceptable in principle and, again, it is not in line with the supposed reason for the changes in this legislation, which are to improve independence and development of opportunity and initiative amongst Indigenous people in the Territory.
The government, of course, has consulted very extensively on this bill. Senator Siewert, I think the way you define consultation means that you have to reach agreement. There can be extensive consultation without reaching agreement on every single point. I would not want the record to go uncorrected: there has been extensive consultation on very wide aspects of this bill, as I think has been repeated ad nauseam during this debate. What you are aiming for is that we should reach agreement. Sometimes it is just difficult to reach agreement on these matters, as I have indicated, and people of goodwill will differ.
My advisers tell me there was perhaps a misconception in one of the remarks made by Senator Siewert in relation to headleases. The advice I have received on the headleases is that funds used to start up a headlease are not land council funds. It is Commonwealth money equivalent to royalty payments administered by the Commonwealth. I think there may have been some confusion in your remarks, and I hope that may clarify it.
We can see no reason to retain what everyone around this chamber has agreed is an arbitrary figure of 40 per cent for payments, having regard to population rather than the functions performed. Land councils have regularly received more than the minimum 40 per cent of Aboriginals Benefit Account moneys to which they are entitled under the current legislation. They have been funded to enable them to perform their statutory functions on the basis of work to be done and outcomes to be achieved, and this will continue. Any money not required for land council administrative costs will continue to be used for the benefit of Aboriginal people in the Northern Territory. We therefore cannot agree with the Labor Party’s opposition to these items. I further point out that retaining the funding guarantee is really completely inconsistent with normal performance based funding, and my advice is that that is the basis on which all other statutory authorities are funded. Despite the arguments that have been put forward, of which the government have been aware and which we have listened to, we will not be supporting the Labor Party’s opposition to these items.
by leave—I move opposition amendments (9) and (10) on sheet 5008:
(9) Schedule 1, item 189, page 71 (lines 27 and 28), omit “, (12), (13)”.
(10) Schedule 1, item 192, page 74 (line 16) to page 76 (line 28), omit subsections 67A(12) to (17).
This takes us back to a debate we had earlier regarding removal of intertidal zone provisions that excise this land from the claims process. We had a debate around this issue earlier in relation to the government amendment, so I will not go through it all again. I think this is really a measure by the government which highlights the problem with their approach. As the bill was going through the parliament, the government tacked on a little measure that removed one more aspect of Indigenous land rights. It was like, ‘We can tidy this little thing up by removing the intertidal zones that are not contiguous with Aboriginal land from the claims process.’
As I say, I spoke to this earlier. A number of these claims have actually been successful before the Aboriginal Land Commissioner, Justice Howard Olney QC. They were assessed and recommended for acceptance. I think four claims have been approved and there are other claims that are outstanding. But there are actually four claims that have been granted by the land commissioner that have required ministerial sign-off. They date back to 2002, as I understand it, and successive ministers have failed to sign off on the land commissioner’s finding. The government say, ‘It just so happens that there is a bill going through the parliament, so we will tack this on and we will knock off those land claims and we will knock off those land rights.’ It is a classic example of government seeking to use the bill to again restrict or remove Aboriginal land rights because they can. The bill is going through, they have the numbers in the parliament and they will throw that into the mix.
What became clear in the earlier debate is that there was no notification to the claimants other than advice to the council. There was no discussion with the people who actually had their claims approved by the Aboriginal Land Commissioner. I spoke to one person who did not know about it until the Senate committee inquiry visited Darwin. This is a continuation of a mindset that says: ‘We have the power and we’re going to use it because it’s inconvenient to have these claims. We think they’re a bit messy. We think they might interfere. They are a bit difficult.’ Senator Scullion has raised a whole range of practical problems. I do not doubt that some of them are right.
But the point is that, because we can, we are going to restrict Indigenous people’s land claims, despite them having the capacity for such claims under the current act. We are basically going to wipe out land claims that have been granted. These are not massive issues to anyone, I suspect, except the claimants. There are intertidal zones not contiguous with Aboriginal land. That is not to say that it was not Aboriginal land previously; it is just that pastoral or other leases have been granted over the land that is adjacent to the intertidal zones, and Aboriginal people have already been dispossessed of that land. They were not dispossessed of the intertidal zone, but now we are completing the process of removing their ownership of their traditional land. We are fixing up the last little bit—taking away the last vestige of Indigenous ownership of these parcels of land.
I understand why the government are doing this. It is neat. It suits their involvement with some of the commercial interests, who are wishing to fish et cetera. It is easy to do. With the flick of a pen those rights are abolished and the claims granted by the land commissioner are wiped out. At the flick of a pen it is all fixed, no problem—it is a done deal. The issue in itself of these claims is not a huge issue, but the process reflects the attitude that we have the capacity to tell Indigenous people what to do with their land, the capacity to write off their claims to the land and the capacity to write off findings that say they have ownership of land. It reflects poorly on the government and their approach, and confirms for Indigenous people the sort of attitude the government have taken to their land rights—that is, that claims be dismissed by this parliament, because it can, without proper consultation and without proper process.
The government have failed to provide procedural fairness to these people. I think this is probably the shabbiest bit of the bill, as it is the shabbiest move by the government to exercise their power in extinguishing Indigenous rights. Labor are not going to sign up to it, and that is why we are formally moving our amendments. As I said earlier, we think the government should not be supported by the Senate on this, so we are moving amendments that effectively prevent that.
Senator Evans is absolutely right on one thing: we have been through these arguments before, and at some length. Senator Evans was quite right to refer to what I thought was the quite outstanding contribution that Senator Scullion made on this issue. I refer people to the comments that Senator Scullion made and to his experience with and understanding of what is a very complex issue.
I think we have a slight language issue here. Senator Evans referred to two grants that had been made. That is not correct. The land commissioner made recommendations in relation to two matters. The land was not granted, but there was a recommendation. I think there is a difference. There are no rights being removed, because those rights have never been determined.
There was an ambit claim, and everybody understood that. Because Senator Evans went over some of the same ground again, which he is perfectly entitled to do, I will therefore go over a little bit of ground again as well to point out that, in the government’s position on the disposal of certain land claims, it is supported by the Northern Territory Labor government. So the Labor Party has two positions on this issue.
Opposition senators interjecting—
Yes, I do tend to use arguments that suit me—I confess—and I guess it will continue. I made the point that we have been over these matters before. I am not sure that Senator Evans shed any new light on the Labor Party position. It is not a position that the government accepts. These were not rights; they were claims. Grants were not made; a recommendation was made. So there is, I think, a misunderstanding of the language. The government, for the reasons that have been given throughout this debate, will not be supporting the amendments.
It is interesting the way language is twisted, as it is so often around this place, and that somehow or other this bill can be perceived as not removing a right. I congratulate Senator Kemp for his creative use of the English language, but it is blatantly obvious that what is being removed is a right. That is why the Democrats support these particular amendments.
As was made clear earlier on, this was obviously done without even bothering to consult directly with the people who would be affected, and by just notifying the land council, according to what the minister said earlier on in this debate. The minister had a bit of a shot at another contributor in this debate for suggesting consultation always means reaching agreement. That is certainly not what my view of consultation is, although, when it comes to law affecting the property rights of Indigenous Australians, getting their informed consent was supposed to be something the Australian government had committed to doing. Part of what the federal government says is their honest approach towards Indigenous Australians when dealing with policy matters that affect their land rights is meant to be to get their informed consent. Clearly, that does not apply anymore, and it is good to finally have that on the record.
One of the reasons I repeat some matters—much to the minister’s boredom—is because he refuses to respond to the concerns that are raised. I suppose that reflects this government’s approach to consultation, which is basically to just tell people what the government have decided to do. According to the evidence given to the Senate committee inquiry, that was the ‘consultative’ approach, so-called, with regard to some of the new ideas they came up with towards the end of last year. They went along and told the land councils what the government were doing. That is all they did and that was their idea of consultation. They did not even see the need to talk to traditional owners directly.
So by the minister’s own words, I guess, we finally have a clear indication that the idea of seeking the consent of Indigenous people is not part of the government’s policy. If it is not forthcoming, bad luck; they will just do what they want to anyway. Then they come up with the extraordinary idea that no rights are being removed along the way. It is bit like all those people volunteering to go back to Afghanistan, I suppose.
The Democrats support these amendments. I think that they are particularly important ones. It is worth noting, and it is appropriate to point out, the Northern Territory government’s position—the Northern Territory Labor government’s position, as the minister keeps pointing out. Indeed, I was very disappointed by the response of the Northern Territory Labor government’s representatives at the Senate committee hearing into the whole legislation but particularly this part of it. The Northern Territory government representatives made it quite clear that they did not like the prospect of Aboriginal people being able to claim or have rights over the intertidal zones and they did not like the idea of them getting any economic opportunity out of it. One of the representatives said that it was not so much that the NT government did not support economic development in Aboriginal communities but that they saw this not as economic development but rather the opportunity for rent seeking. What a terrible thing! Imagine rent seeking from your own land. It seems to be appropriate for everybody else in the community but, when an opportunity arises for Aboriginal people to have title over a particular piece of land and then seek to get economic gain out of it, then that is inappropriate because it might impact on another industry or cost the Territory government. That was in response to questioning from Senate Moore and it quite clearly demonstrated the NT government’s view that economic advantage is not favoured by the NT government.
We have heard the rhetoric that these changes are about increasing economic opportunities for Aboriginal people, giving them more incentives and chances to get more advancement because land rights have not worked well enough to give them economic opportunity. But, when you look at the detail in the legislation, things are being taken out that would have provided economic opportunity for Aboriginal people. The legislation is going in the opposite direction to what the Commonwealth government and the NT government say it is about. The minister has repeated ad nauseam—as ad nauseam as some of the things that I have repeated—that the position of the Northern Territory government on this is almost the same as theirs. They are almost equally culpable. It has been very disappointing. It seems like a traditional approach perhaps from the NT government of both sides. I guess it is just the nature of governments that they want to have control and they do not like other people having it. That is what this legislation does in so many parts: it takes control away from Indigenous people and, where the opportunity arises, it gives more power to governments.
The Greens too will be supporting these amendments, you may be shocked to hear! I agree with Senator Bartlett that a lot of the debate has hinged on words—’consultation’ and what consultation is. I was told that my understanding of consultation may be different from the government’s. Yes, it is. What I have heard in talking to people about this and in reading what is here and in listening to the debate is that Aboriginal traditional owners in the Northern Territory feel that they have been told about these amendments rather than—according to my definition of consultation—having someone actually sitting down with them and talking about the issues and, hopefully, coming up with an understanding of an agreed approach.
This is particularly important when we are talking about traditional lands. We are talking about the traditional owners’ lands and I would have thought that in the 21st century, instead of just telling traditional owners what is going to happen to the lands, their agreement would have been sought. I think that the approach taken is the paternalistic approach that Minister Abbott talked about a couple of months ago. That is what I feel is happening here: traditional owners are being told, ‘This is what we think is best for you and this is what is going to happen.’ No matter how you dress it up, you cannot say that traditional owners agree with this approach. There is a mountain of evidence in Hansard and in the committee inquiry report that shows that they do not support this approach. No matter how you dress it up, you cannot get away from the fact that you are taking away their rights to try to claim this land and have their claims determined. No matter how you say it, that is taking away a right.
There have also been other word games played. A while ago I mentioned the Aboriginals Benefit Account and the fact that headleases will be paid for. I may have actually used the wrong term there, because the new leasing arrangements and the funding for them will initially be drawn from the Aboriginals Benefit Account. I may have used the wrong term in saying what will be paid for. If you are talking about the headlease and the arrangement for that, it may well be paid from a separate account. But I just referred you to the words that were in the committee inquiry report. So, no matter how you dress this up, this is about taking away rights, using word play to take away from Aboriginal people rights for self-determination, to make decisions over the land and to decide how best to promote economic development in their communities.
The government has come in and paternalistically told Aboriginal people how they think it best to improve economic development in their communities without addressing the real, significant issues that prevent that economic development. We will be supporting these amendments because we do not agree with taking away traditional owners’ rights, no matter how you dress it up. People will know that we do not support this bill as it stands but that we tried to support or make amendments that actually sought to improve it, and these amendments do seek to improve what is, in our opinion, bad legislation. So we will also be supporting these amendments.
I indicate that Labor will be seeking to divide on this matter. We are very disappointed with the way that this debate has progressed. I understand that it is caballing for me to speak at this point, but we might divide on this question. I will do so because I think it is important that the opposition to the government’s approach be recorded in the Senate.
From my point of view, this has been one of the most depressing processes I have ever been involved in in the Senate because of the way we have been unable to get any proper engagement with the government about recognising the fundamental concerns that traditional owners and opposition senators share about the approach. It is disappointing also, from my point of view—in a personal sense—because, when I took on the shadow Indigenous affairs portfolio, I resolved to try to be constructive and engage with the government on solutions and ways forward rather than just be a critic of the government, and there is a lot to criticise. I have been seeking to get more bipartisan support because I think that, until we get some sort of national consensus around Indigenous affairs and return to a period where we sought to do the best by Indigenous people and assist them in their quest for improving their life opportunities, we will not make real progress. I think the sad thing is that under successive governments we have made very little progress in assisting Indigenous people to move into First World conditions and have First World health and education profiles and the rest.
That approach, I think, requires that people work with Aboriginal people so that we actually build a team approach rather than a paternalistic approach, where you tell people what is best for them. I am increasingly concerned that the government is going to what Mr Abbott calls the ‘new paternalism’ approach, which returns to a phase where governments tell Indigenous people what is good for them and try to impose upon them systems and solutions that the government has arrived at and that it thinks are best for them. Quite frankly, we tried that and it did not work. I have no confidence that it will work on this occasion.
I think the government has failed to learn those lessons. It does disappoint me because I was encouraged that the new minister had some energy and some interest in the portfolio. But, quite frankly, he has destroyed all hope and all respect he might have enjoyed amongst Indigenous people in a very short period of time. The sort of approach reflected in the government’s dealing with this bill is what has so disappointed and—I think it is not unfair to say this—insulted so many Indigenous people.
I thought that we should be able to get an outcome on this bill that was actually supported by all. I do not think we were that far away. A change of approach might have delivered that. Whilst the minister seeks to make debating points about who does and does not support it, the reality is that Indigenous people feel no ownership of this. They feel that no consent has been sought from them. They do not feel that they have been consulted. They do not feel that they are in any way involved in this process. They feel that the government has told them what it is going to do to them in controlling their land. All of the rest of the detail is far less important than that. That is why we have concentrated so much on process and consultation—because it creates the atmosphere in which the detail is debated. They have not been engaged with the detail because they have not been given the opportunity. But the approach is what has been so insulting. It fundamentally represents a lack of respect for traditional owners.
I suppose that nothing brings home to me more the government control of the Senate than this debate. The parliament would never have passed the legislation in this form or in this way, whatever the balance of power was in the Senate, where a government did not have control. This is probably the best evidence as to why governments should not go unchecked. They would have been forced to do this properly rather than in the manner in which they have done it. I do not think the result would have been terribly different in terms of a lot of the detail. There might have been arguments about whether 99-year leases were appropriate and there would certainly have been very strong arguments about Indigenous control once the leases had been granted, in terms of how the subleases were applied—all of those things.
Some of those things will have to be considered because governments will have to get agreement from Indigenous people before they can move the leasing arrangements. But I have very real concerns about the imbalance of power that will apply when it comes to negotiating those things. The government’s intention clearly is to use its capacity to provide essential services like housing and schooling to get outcomes it wants in relation to the leases.
I think, though, that at the heart of this is the disrespect shown to Aboriginal people and the failure to understand the Aboriginal relationship to the land. In the eighties and the nineties we had members of the Liberal Party and the coalition who understood and respected that relationship. We had ministers like Ian Viner and Fred Chaney who retained a lifelong interest in Indigenous people and their progress and success. They very much understood—and I quoted Ian Viner in my speech in the second reading debate—that relationship to the land. That understanding of and respect for the Aboriginal relationship to the land is totally missing in the government’s approach on this occasion. They are seeking to impose Western solutions that suit government needs and priorities. I think that could have been matched with some respect for Indigenous ownership, culture, traditional owners and their relationship to their land. That could have got us a good result that was pro economic development without fundamentally showing disrespect to Aboriginal people and failing to respect their property rights, which is what has certainly happened here.
There is a lot more water to go under the bridge with these propositions. I think that some of the claims that were made earlier by the government about the revolution in private home ownership will prove to be more rhetoric than reality. Labor is fundamentally supportive of any measure that encourages economic development on Indigenous land and is certainly willing to support Indigenous aspiration for home ownership in their communities if that can be achieved. Of course, there are fundamental economic constraints on those aspirations that currently exist, such as the cost of housing, the lack of economic activity and the lack of employment—things that allow people to service mortgages.
Putting all of that to one side, what has characterised the debate and has most concerned those of us who are not part of the government is the lack of respect for Indigenous people and their property rights and the lack of any attempt to seek consent and cooperation in moving forward with these issues. As I said earlier, previous ministers had an understanding and respect for Indigenous relationship to land, whereas the current minister traipses around the country, attends various conferences and describes Aboriginal relationship to land and community control over land as an expression of communism. He describes Indigenous culture and relationship to land as communism. That reflects the lack of respect and understanding of Indigenous control and relationship to their land.
We are having a debate about a change to the Aboriginal Land Rights (Northern Territory) Act, a change to the conditions that apply to Aboriginal land, and the minister responsible for the legislation, whose duty inside the government is to represent the interests of Indigenous people, provides the context with an allegation that communal ownership of land by Indigenous people and their relationship to land is an expression of communism and that it needs to be overthrown—that it is an outdated concept that needs to be overthrown. That is the context in which we have debated Indigenous land rights.
We have also had the context of the continual denigration of Aboriginal culture. We had a debate about violence, where the allegation was made that Indigenous culture is a defence for violence, paedophilia and the abuse of children. All of that serves to denigrate Indigenous people. Of course, no such defence occurs. There is no basis in Indigenous law and culture for child abuse or violence against women. The way that the minister and the government have sought to characterise Aboriginal people in that way has deeply offended them and has deeply hurt the debate about Indigenous culture and support for Indigenous culture in this community.
A lot of Aboriginal men who have spoken to me are very upset about the continual characterisation of Aboriginal men as paedophiles and abusers of women and children. That is terribly damaging. It offends them and it very much hurts them personally. I think there has been no attempt to provide the balance that is required in those debates. It is as though somehow child abuse and violence against women is a problem only of Aboriginal culture, when we all know that it is a very serious problem in non-Indigenous society. We also know that many of the people who are now committing acts of child abuse or violence are actually graduates from institutions run by non-Indigenous people where that sort of activity was taken against them. They are victims of child abuse or violence themselves and, as we know, those things tend to be repeated by the victims. So we actually have to accept some responsibility for some of these issues. As I said, that characterisation of all Aboriginal people has been allowed to develop.
The lack of a government voice in trying to provide some balance in that has been depressing. The failure of any of us in other parties in politics to get any traction with alternative views is a problem, but more important is the problem that Indigenous voices are unheard in our community unless they express views that suit certain interests. We really do have a problem with the lack of Indigenous voices being heard in this country. We have to find a way of allowing Indigenous people to be in the public debate, express their views and be represented. Currently they do not get representation and they do not have their voices heard, and that is seriously undermining the capacity for them to advance Indigenous people’s interests. We have to find a way to allow their voices to be heard.
I also have serious concerns about the way that the OIPC, the government department, have been operating and about the attitude they have adopted with regard to Indigenous Australians. That is of increasing concern and it is something that I will be taking up in future weeks. I am deeply depressed about the way that this debate has gone. I think it has been disrespectful of Aboriginal people. The failure to try and seek their consent is a huge mistake by this government. I think we could have done much better and still made much good progress towards the joint objectives, the shared objectives, of Indigenous people and all politicians in this country, which are appropriate economic development for Indigenous people, opportunities for employment and improvements in their standard of living.
Labor will be opposing the bill. While we share much with the government in terms of intentions, the debate and the context in which it has occurred has meant that this has been a process that has shown disrespect for Indigenous people and their property rights. That is why Labor will not be supporting the bill.
It appears we are not having a third reading. I will not go over the ground I have already covered a number of times other than to use a classic example of where I think this bill is so wrongheaded—that is, whether this process is voluntary or not. I will use Elcho Island as an example. I know we probably bored this place silly yesterday, trying to get a definition of what is an essential service. Elcho Island has been required to sign onto this process in order to get 50 additional houses. These additional houses are not a luxury, above an essential service; they are an essential service. When you have overcrowding of 15 to 16 people in a house, it is an essential service to provide housing for those people. It is not an add-on; it is essential. In order for that community to get that additional housing, they should not be coerced into signing an agreement but they are being required to sign one to get those 50 additional houses.
This example clearly illustrates that this is not a voluntary process. This is being foisted on the community in order for them, presumably, to act in a way the government wants them to, which is to enter into these agreements. It is not voluntary. If they want access to desperately needed housing, it should not be essential to sign an agreement. This is a very clear example of the wrongheaded thinking in this legislation and why we will be opposing it.
I think Australians will look back in a number of years and shake their heads at how this country undermined such a fundamental piece of legislation in this country—that is, land rights legislation. A few weeks ago, I heard a radio program where overseas people were extolling the virtues of the progress Australia has made in land rights legislation. Some of us would argue that we still have not made enough progress in ensuring self-determination for Aboriginal and Torres Strait Islander members of our community; however, there has been some progress made and in the future Australians will look back and shake their heads at what has been done to undermine this landmark piece of legislation.
I believe what is happening today is a tragedy. The voices of Aboriginal Australians have not been heard or understood, and that is the crux of the matter. Maybe governments have heard them but they have ignored them. They have not understood how fundamental Indigenous people’s connection to land is and their right to be part of decision making. This government is acting in a paternalistic manner that I cannot support, and neither can the Australian Greens. This is a tragic day for this landmark piece of legislation in this country.
I agreed very little with Senator Evans or Senator Siewert. Listening very carefully to them, I have no doubt about their passion, sincerity and deep interest in this issue. That is accepted; we do not debate that. It is a good thing that senators feel so passionately about these very important topics. Having accepted the sincerity and goodwill of opposition senators, it was particularly disappointing to listen to the attacks by Senator Evans on Minister Brough and his role. The minister brings a great reforming zeal to this area and a deep commitment to Indigenous affairs, and I accept none of the aspersions which were cast on him and his role. All of us accept there are serious problems in Indigenous affairs. No-one is not distressed by the statistics and the reports which come out. Senator Evans raised a wide range of issues far beyond this bill. Because of this distress that everybody feels, it is important that we ask, ‘What are we going to do about these issues?’
This bill is not the total answer to these issues. It deals with a number of important matters. At the end of the day—and I have made this point—people who come to this issue with goodwill may reach different conclusions. We should accept that a lot of these decisions are, on balance, decisions. Senator Evans said correctly that we are not too far apart on many of these matters. If we are not too far apart, how can it be one of the singularly most depressing days that he has had in the parliament? The fact is that the gaps in many areas have been narrowed. Yes, differences may appear. We may not have reached final agreement, but I wanted to put that on record.
I think each of the ministers that the Howard government has had in the area of Indigenous affairs has come to their task with passion and sincerity and has sought to improve the condition and standing of Indigenous people. I do not accept the criticisms that were made about the current minister. I think he is bringing great energy and passion to this area and will be a person who will long be remembered as one who was able to initiate some important reforms, as indeed have our previous ministers.
Let us get some perspective on this. The bill provides individual property rights to township residents through a voluntary township leasing scheme. The township leasing scheme, based on a Northern Territory government proposal, will enable Aboriginal people to own a home or business. It provides the same choices and opportunities available to all Australians. What is so terrible about that? What is the disaster that is involved with this? How much Indigenous land is involved in this proposal? Initially it will be 0.1 per cent. I think we have to get some perspective on this issue. The direction we are coming from is that we are providing to many people the same choices and opportunities available to other Australians. You may not agree with that position but that is the position we are coming from, and we believe that is a moral position.
The reforms include streamlined processes for approval of exploration, mining and other leases over Aboriginal land. There are further reforms in the bill: to improve the operation of the land rights in key areas; funding the land councils on their performance; ensuring royalty distributions are transparent; allowing the devolution of decision making to local Aboriginal people; and finalising longstanding land claims. So what is the disaster there? Is there a moral position that is superior to some other moral position? We actually think what we are doing is important. It is bringing about important reforms to the benefit of Indigenous people.
The government is modernising the act to allow Aboriginal people to realise the economic potential of their land. The reforms do not affect the fundamental principles of inalienability, communal title and traditional owner veto. None of those things are affected. The bill does not affect those fundamental principles. I urge the Senate to support this bill. It is an important bill. I congratulate the minister on bringing this bill forward, and I hope that it will now have a speedy passage through this chamber.
The minister puts forward some wonderful lines. The use of language is very creative. I guess you have to admire people who can come up with language to create these impressions, these nice sounding things like ‘creating more opportunities for decision making at local level.’ Of course that can only occur with the permission of the minister and can occur in circumstances where it is against the wishes of the majority of the traditional owners. The concept of ‘finalising longstanding land claims’ sounds great, except it is actually wiping out longstanding land claims. These things are being portrayed as advancing the rights of Indigenous people.
The minister gets extra power to reduce the budgets of land councils. The minister gets extra rights to break up land councils even if it is against the wishes of the majority of traditional owners in certain circumstances. The one which has not been mentioned for a while is in relation to the 99-year leases. The lease payments are to come from the Aboriginals Benefit Account which, according to the minister’s own words earlier in this debate, are received by Aboriginal people as 30 per cent of mining royalty equivalents. So the money for Aboriginal people is already there from the mining royalty equivalents. It would be there to be spent to the benefit of Aboriginal people but it will now be used to pay the rent for these 99-year leases and will not be available for other things. Somehow or other, that is also meant to be an advance for the economic benefit of Aboriginal people.
A broader thing needs to be emphasised, and it does not give me any great pleasure to be proven right on this. I have said this in this place in a couple of speeches at the end of last year when the government announced their decision about what they were going to do with leasing changes, which they then instructed the land councils about and did not bother to talk with traditional owners about. Regardless of how good people think some of these changes are, if you make changes that affect the property rights and other rights of Indigenous people without consulting them—which is what has occurred and is on the record as having occurred—and without seeking their consent, then your chances of it working are dramatically reduced. The fact that the government did not do that and still see no need to have done that shows a clear indication that their main motivation is not to make it work. If they were determined to make it work, they would have put that extra time into ensuring that happened.
I would point out that this year marked the start of the second International Decade of the World’s Indigenous People. Last week was the International Day of the World’s Indigenous People. The goals of this decade are to further strengthen international cooperation for solving problems faced by Indigenous peoples in areas such as culture education, health, human rights, the environment and social and economic development. I quote the Social Justice Commissioner, Mr Calma, who said:
To achieve these goals indigenous people must be fully involved in the formation, decision-making, implementation and evaluation of processes on laws, policies, resources and projects which affect us; this is our right.
The evidence given to the Senate committee inquiry clearly shows that that is a right that is not recognised by this government. That is unequivocally a bad thing.
That the motion (That the motion (Senator Kemp’s) be agreed to.) be agreed to.