Senate debates

Tuesday, 13 June 2017


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

6:23 pm

Photo of Peter Whish-WilsonPeter Whish-Wilson (Tasmania, Australian Greens) Share this | | Hansard source

I was saying in my previous contribution before question time that this is a very clear example of big business and big politics getting into bed with each other. This legislation we have here today is being rushed through the Senate because of one project, a large coal operation in Queensland—the Adani or Carmichael coalmine. What is crystal clear to those who understand the detail around this legislation and the impact of the project on local Indigenous communities is that it does not have local Indigenous consent.

I have a couple of articles here written by the Wangan and Jagalingou people in northern Queensland—I will just call them 'WJ'; that is what they call themselves in their articles. They are seeking Federal Court orders to strike out the reported Indigenous Land Use Agreements, the ILUAs, filed by Adani mine with the National Native Title Tribunal.

This ILUA would authorise extinguishment of native title and allow the mine to proceed against the wishes of the local Indigenous people. One of the grounds is that Adani does not have a valid ILUA capable of registration since the law was confirmed in the recent Federal Court decision in McGlade. We have heard a lot about McGlade already so far in this debate. The federal government has been attempting to push through amendments to the Native Title Act, which is what we are looking at in front of us today, to overturn the ruling in McGlade and to protect Adani's interests. The W&J council has vowed to do everything in its power to stop Adani's mega coalmine proceeding and will fight all the way to the High Court if necessary.

Senator Canavan has publicly said that Adani has local Indigenous support. He claimed that Westpac:

… have also turned their back on the indigenous peoples of Queensland by this decision, because this mine in the Galilee Basin is supported by the Wangan and Jagalingou peoples.

He said:

They met last year and voted on the mine, they voted on the mine 294 to one in support of it, yet that’s not good enough for Westpac.

That is a direct quote from the 'minister for coal', Senator Canavan. What he did not say was the detail about that meeting. Firstly, Westpac did not make a decision based on Aboriginal rights one way or the other. W&J believe it was the last thing on Westpac's mind. For the record, the W&J council has put out a media release and written a blog to say:

Adani didn’t ‘negotiate’ and achieve the free prior informed consent of the W&J people. The meeting, that all these barrackers for Adani’s mine cite, that seemingly voting 294 to 1, is only ‘a vote for the mine’ if it’s a true expression of the W&J traditional owners. But it’s not.

Over 220 of that meeting’s attendees are people who have never been involved in the W&J claim or decision making, and who are identified with other nations and claims, or didn’t identify an apical decent line.

They were bussed in and paid for at Adani’s considerable expense. The ‘natural majority’ of the claim group, who have three times rejected an ILUA with Adani, refused to participate in this stitch up of a meeting. They stayed away.

They were their own words. This is part of the evidence that the W&J people are presenting in their objection to Adani's attempt to register a land-use deal for the Carmichael mine and is included in their current case before the Federal Court to invalidate the application for registration of this 'sham' deal—once again in their own words—as an ILUA.

This is an example, as I said earlier, of big business and big politics not only riding roughshod over environmental concerns around developing the biggest coalmine in the world that will have a material impact on emissions and climate change but, if you believe the local Aboriginal community, riding roughshod over the Indigenous people of this area. Why the rush?

I would like to read a quote from a claimant in the Wangan and Jagalingou native claim. He is a traditional owner of the lands on which the Adani mine is proposed to be built, along with his family and many other families who are opposed to the mine. He says:

The amendment of the Native Title Act requires a detailed and nuanced approach that protects rather than undermines the property rights of the various clans and families that make up each native title claim area. This must be done with care as the failure to get it right will permit the property rights and interests of particular families and clans to be extinguished or impaired without their consent.

I encourage the members of federal parliament to take a deep breath, and come to terms with the fact that the property rights of Aboriginal and Torres Strait Islander people all over Australia will be affected by the proposed amendment to s 24CD of the Native Title Act. This amendment should not be rushed in order to appease some other agenda.

I think we have firmly established what that agenda is, and that agenda is to get the Adani coalmine built. That was Tony McAvoy. I would like to acknowledge in the chamber today the attendance of some of the W and J people. Thank you for being here today.

Let us be clear. We are rushing this legislation. The Greens pointed this out in our dissenting report to the legislation committee. We felt the reporting date needed to be set back, as more time needed to be spent on getting this right, taking into account the unintended consequences of this kind of legislation on what is a very complex and very sensitive issue and has been an incredibly critical issue to this country.

We have heard from the opposition that this is about getting balance. I sat through the first debate a couple of weeks ago. This is about getting a balance between business interests and local Indigenous rights. At least some of the Liberal-National Party are admitting that this is about business interests, although they are saying this is about getting balance. This is not about getting balance; this is about giving business what they want and it is about a particularly aggressive proposal by a multinational company, Adani, to build one of the biggest coalmines in the world at a time in history, on our watch, when the Great Barrier Reef has suffered back-to-back mass coral-bleaching events.

In the committee I am chairing I spoke to a scientist who has been studying water temperatures on coral reefs for 25 years and he said that they would never have predicted back-to-back bleaching events on the coral reefs in the Great Barrier Reef. In my home state of Tasmania the waters off the coast are at again record high temperatures. Our giant kelp forests have now disappeared. For 10,000 years they used to span the state. They are gone. They are nurseries for crayfish, shellfish and a whole series of marine life. They are gone because of warming waters and severe storms. Just this weekend I found thousands more dead fish washed up on a beach on the east coast of Tasmania. The baby leather jacket, which is a subtropical species from Papua New Guinea, are washing up on the beaches of Tasmania because of climate change and warming waters.

This is a time when we should be acting on global warming and climate change, not building a coalmine because short-term political interests in this place are trying to prevent leakage of votes to One Nation in marginal coal seats in Queensland and New South Wales. That is what this is about—the short-term political gain for political parties by supporting a project, giving a project a free loan—$1 billion of concessional finance, which I finally got the Productivity Commission to admit during Senate estimates was a taxpayer subsidy—and potentially a royalties holiday. Why? Why are we going to such lengths to build one of the biggest coalmines in the world and screw the Indigenous people who do not want this mine built?

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Attorney-General) Share this | | Hansard source

Yes, they do.

Photo of Peter Whish-WilsonPeter Whish-Wilson (Tasmania, Australian Greens) Share this | | Hansard source

They have been very clear about that, Senator Brandis.

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Attorney-General) Share this | | Hansard source

You haven't spoken to them. I have.

Photo of Peter Whish-WilsonPeter Whish-Wilson (Tasmania, Australian Greens) Share this | | Hansard source

I have read their correspondence and Senator Siewert, my colleague who I acknowledged earlier in the debate, has spoken with them and a large number of Indigenous communities across this country. We recognise that this is a very complex area. I have said that three times. This is about you trying to get a deal for a coal baron and a large multinational company so that you can secure votes and prevent leakage of votes to One Nation. That is what this is about, in my humble opinion, and no doubt in the opinion of many other people around this country who look at this and say: 'What's going on? Why are you so determined for this project to go ahead that you would do things like rushing this kind of legislation?' It is because you want to give certainty to a large multinational, which, may I say, has a very poor track record, not just in environmental terms but in social terms and in paying tax. Why would you go to these lengths?

It is time to draw a line in the sand if we are serious about getting native title right in this country and if we are serious about stopping climate change. By supporting this legislation here today, by voting for this, you are not only riding roughshod over the local Indigenous community, you are giving a green light, potentially, for the Adani mine to proceed. That is what this will do. We know that Senator Brandis is involved with the legal proceedings around decisions—that is my understanding; you can refute that later if you disagree with it. What we are deciding here today is not just a decision on this legislation; it is whether you support the Adani mine or not. That is really what it is for—let's be clear about that. Rushing through this legislation is about giving a large multinational business certainty.

I cannot believe that—given the debates we are having in this country around transitioning out of coal, clean energy targets, meeting our Paris agreements, trying to find new industries for coal workers and retraining, reskilling and all the things that we should be showing leadership on—we are politically supporting one of the largest coalmines in the world, a new coal development, at a time when 70,000 jobs on the Great Barrier Reef are at stake if the reef continues to bleach. The reef will not survive more mass bleachings, especially if they occur in the upcoming years—of that I can assure you. That is the evidence that we have heard from some of the best scientists in the world. There are already parts of the reef that will not recover, and that is not even looking at the ecosystem damage. There are things that we cannot even quantify in dollar terms.

Senator Brandis, when you get to speak, perhaps you can tell us why those jobs are so important for the Adani mine, why you are giving such preferential treatment to one company, why you are not showing any leadership on, or vision for, transitioning the economy and why we are rushing through very complex, very sensitive and critically important legislation today that we need to get right. Senator Siewert made it very clear in her contribution here that there are all sorts of things that were not looked at by the committee that affect these ILUAs and that potentially have very adverse consequences that we need to look at in a holistic way. The Greens will not be supporting this legislation in a vote today.

6:37 pm

Photo of Anthony ChisholmAnthony Chisholm (Queensland, Australian Labor Party) Share this | | Hansard source

Since our last sitting, and the first time we started the debate on this issue, 3 June marked the 25th anniversary since the High Court brought down the landmark Mabo decision, which paved the way for native title legislation to pass the federal parliament the following year and become law on 1 January 1994. The recent anniversary enabled someone who was in high school at the time to refresh himself with the political circumstances. Senator Dodson, just a moment ago, spoke about this as well. At the heart of the High Court decision was the rejection of terra nullius. I express my admiration for Eddie Mabo and others who pursued their legal rights against such adversity. The anniversary also reminded us of the commitment of the Prime Minister at the time, Paul Keating, to ensure that the High Court decision was codified into law through the Native Title Act. Recently, I wrote an op-ed in the The Courier Mail in response to Senator Canavan's effort to criticise Labor's deliberations on this bill. I pointed out that Labor has acted appropriately. Senator Dodson and Labor insisted on consultation and a proper process. It has been the incompetence of Senator Brandis that has been responsible for this bill not having passed the Senate. Indeed, Senator Brandis, even responded to my op-ed in The Sunday Mail but it was so inadequate I did not bother to respond to it.

Here we are, 25 years later, debating native title again in the Native Title Amendment Bill (Indigenous Land Use Agreements) Bill following a decision of the Federal Court known as the McGlade decision. What was the practical impact of that decision? Currently, under section 24 of the act, all persons in the native title group must be parties to an ILUA. If there is a registered native title claimant, for the purposes of the act, the native title group consists of that registered native title claimant. A registered native title claimant is defined under section 253 as 'a person or persons whose name or names appear in the entry of the Register of Native Title Claims'. This enables a person or persons to enter into agreements as authorised by the native title group.

The decision in McGlade found that an ILUA could not be registered unless all members of a registered native title claimant were parties to the agreement—that is, unless all registered native title claimants had signed the area ILUA—hence creating the uncertainty as a result of this decision. But what has changed in the 25 years since the Mabo decision? You can always rely on the dinosaurs of the Queensland LNP to make a memorable contribution to this debate, and Senator Dodson alluded to their efforts in the 1990s. Senator Macdonald, unsurprisingly, was at the forefront of this, and this is what he said at the last sitting:

Small business in the towns that I mentioned in my home state of Queensland are desperate to see the Adani mine go ahead, and the only thing holding it up at the moment is the uncertainty on the native title issue …

Well, Senator Macdonald, on 5 June Adani made their final investment decision. Senator Macdonald was probably even in the room to see firsthand how ridiculous and over-the-top his rhetoric has been on this issue. He has a few friends, though, and Senator Canavan has been happy to attempt to turn this debate into a vote on Adani as well, all to play political games.

Effectively, the company themselves highlighted the deceit of the LNP argument by making the decision that they did on 5 June. Ironically, the company now say that the only uncertainty they face revolves around the NAIF loan that the company have applied for and Senator Canavan and Senator Macdonald frequently champion.

It is not unusual for the LNP to play these sorts of games on native title—they have a long history of it in this country—but this debate has seen a new entrant into the ranks of political opportunists on native title, who decided to outdo the rhetoric of the LNP and shamefully turn this debate into an anti-Adani issue: an opportunistic and low-rent effort from the Greens, who used to operate on principles but now resort to lowest-common-denominator politics with complete disregard to the fact that many native title groups from across Australia support this legislation to provide certainty to native title.

Let's look at some of the contributions from the Greens. This is from Senator Waters:

I rise to speak on the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, which is also known as the bill to ram through the Adani coalmine against the wishes of the local Wangan and Jagalingou people. It is known as the bill to give certainty to big miners whilst subjugating the rights of our First Australians.

That is a disgraceful misrepresentation from Senator Waters. Then we had Senator Hanson-Young:

There are fundamental issues with the bill. We know we need to consider it in proper detail. Instead, all the government gives a damn about is giving a free pass to the mega coal company Adani. It is not even an Australian company.

Again, Senator Hanson-Young is prepared to ignore the advocacy of land councils to fix this issue—with some added xenophobia at the same time. And today we have seen speeches from Senator McKim and Senator Whish-Wilson that in their mind were taking the high road but in reality were disgraceful efforts in base politics.

It is perfectly legitimate for the Greens to oppose the Adani project, but for them to use this legislation about native title to further that cause does them no credit. Is it a reflection of their desperation, irrelevance and poor leadership? Indeed, the Greens have stooped to a new low, and there have been plenty of people—prominent people—prepared to argue that case. In a speech last week Professor Marcia Langton highlighted the actions of the Greens with this bill:

The Green movement extremists and the media have misrepresented this very important, but mainly technical issue, in order to bolster their campaign against the Adani project.

The Greens in this chamber have played an active role in the project that Professor Langton described in her speech last week. What we have seen from the Greens is a disgraceful attempt to play politics with native title amendment and the need to create certainty around ILUAs.

Labor has a proud record over generations when it comes to native title—significant achievements by working with Indigenous people. Labor supports this legislation and will continue to work with Indigenous groups to ensure that native title is progressed in this country.

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.

6:59 pm

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Attorney-General) Share this | | Hansard source

There is not a lot that I agreed with in Senator Ludlam's contribution. He and I have very different views about these issues, as we both acknowledge. But there is one thing that Senator Ludlam said which was spot on, and that is that the Labor Party are trying to walk both sides of the street on this issue. There is no doubt about it, and we saw that, embarrassingly, in Senator Chisholm's brief contribution, in which, for a change, he stopped attacking me and decided to attack the Greens—presumably in order to cover his tracks.

We still do not know where federal Labor stands in relation to the Adani mine, but we do know where state Labor stands. And you are right, Senator Ludlam, they are having the mother of all internal fights about this, because the Labor Party is deeply conflicted.

Senator Ludlam and others have suggested that this is a complex bill and that the parliament has not had time enough properly to consider it. With respect, Senator Ludlam, it is not a particularly complex bill. Of course, the area of native title law, the Native Title Act, is a large and complex act. And when the time comes to revise and reform the whole area of native title law, that will be a very complex exercise and it will involve a very long and complex debate. But that is not this debate. Those listening to Senator Ludlam might have thought that the Senate this evening is dealing with some comprehensive review of the Native Title Act. Not so—it is dealing with one very narrow, very discrete legal point, and that is this: whether or not the decision by the Federal Court of Australia delivered on 2 February this year in the McGlade case should be legislatively reversed. That is it.

Before the McGlade case, an earlier authority—a decision called Bygrave—determined that an area ILUA could be registered if it had been signed by at least one member of the registered native title claimant on the basis that the registered native title claimant as defined under the act was a singular entity. In McGlade, the full court of the Federal Court overruled that decision. It decided that an area ILUA must include the signatures of all individual members of the registered native title claimant, including any relevant members who are now deceased. That is the only question before us. And in the broad and complex field of native title, it is a narrow question. The bill restores the Bygrave decision.

So, Senator Ludlam and Senator Siewert, if you understood the Native Title Act before 2 February you understand it now, because this bill does nothing more than restore what was understood to be the law before 2 February. In fact, those listening to this debate might imagine that this is a very long bill. It is an eight-page bill, and by the time you take out the formal parts, there are five pages of provisions. I do not think that it is unreasonable to ask the Senate, or indeed the parliament, to deliberate on a five-page bill for four months. From the time this bill was introduced into the House of Representatives on 15 February this year to the time that it is being considered now on 13 June, some four months have elapsed. You might think that you can persuade the Australian people that it is rushing a bill to get the parliament to consider five pages of provisions in four months—five pages of provisions in four months! Good luck with that! I think the Australian people would expect the parliament to be good enough to deliberate and say anything that anyone wanted to say on five pages of provisions in the space of four months.

The debate has not been rushed. Not only has it been before the parliament for four months, but at no stage since the legislation came before this chamber has there been any abridgement of time whatsoever. It is not at all uncommon for there to be time management motions in the Senate or guillotine motions. The government have not done any of that. In fact, not only have we not sought to abridge the time for the debate, we actually sought to prolong it. When the debate nearly reached its end on the Thursday of budget week, Thursday 11 May, it was the government that moved a procedural motion that the Senate continue to sit on Friday 12 May until it had finished dealing with the bill. So far from abridging the time or stifling the opportunity for honourable senators to make their contributions, we actually proposed at that time for the debate be prolonged, and you voted against that motion. So please do not come in here to say this has been rammed through when it has been before the parliament for four months to consider five pages, and at no time have the government moved in the Senate to shorten the debate at all nor do we do so now. You go for as long as you propose. That is notwithstanding the fact that all of the native title claimant groups have urged the parliament to deal with this as a matter of urgency.

It is not just the native title claimant groups. Let me perfect the record and take you through the sequence of events. The full court gave its decision on McGlade on 2 February. Four days later, the Premier of Queensland, Annastacia Palaszczuk, wrote to the Prime Minister asking for the parliament urgently to deal by legislation with the effect of that decision. Shortly after that, Senator Scullion and I met with Mr Glen Kelly, the CEO of the National Native Title Council, the peak group of Native Title councils—the stakeholders most immediately affected by this bill. Mr Kelly on that occasion and on many occasions since has urged on behalf of the native title stakeholders that the parliament deal with the matter urgently.

On 15 February, the bill was introduced into the House of Representatives and it was passed by that chamber on the following day, 16 February. On that day, it was referred to the Senate Legal and Constitutional Affairs Committee for report. The reporting date of that committee, which had initially been set for an earlier date, was extended until 17 March, so the Senate committee had a full month to consider this five-page bill. The report was tabled out of session on 17 March. The Senate committee made certain recommendations in relation to the bill, all of which the government accepted. The Labor Party supported the government senators. The Greens—Senator Siewert—were dissenters.

When the Easter recess of the parliament arrived and the bill had not been debated in the Senate, I convened a consultation workshop with the National Native Title Council members. I want to give credit to Senator Dodson, who has played a very constructive role in this debate, for suggesting that course of action. So representatives of all the native title councils in Australia were invited to a consultation meeting and many of them came. That meeting took place, by the way, in the presence of the opposition because we invited the shadow Attorney-General, Mr Dreyfus. Senator Dodson was also good enough to come as was the member for Lingiari, Mr Warren Snowdon, whose lifelong interest in this area ought to be acknowledged tonight. It is not very usual for governments to conduct stakeholder consultation in the presence of the opposition but, in the interests of transparency and seeking to reach the widest possible consensus of opinion about this bill, that is what we did. The native title council representatives met, and their message to us was, 'We support the bill, and we want to see the parliament deal with it urgently.'

I should say that there were two land councils represented at that meeting on 27 April: the Cape York Land Council and the Northern Land Council, which on that occasion suggested minor amendments which the government accepted. The government circulated those proposed amendments to all of those represented at the 27 April consultation meeting. So by the end of this process, by the time parliament came back at the end of the Easter recess for Budget Week, every single native title council was supporting the bill and urging that it be passed.

On 5 May, Mr Kelly, to whom I have already made reference, wrote to me referring to the consultation meeting on 27 April, and this is what he said: 'As expressed during the April 27 roundtable, there is consensus amongst NTRBs'—native title representative bodies—'and NTSPs'—native title service providers—'that the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, incorporating the amendments discussed at the 27 April roundtable, should be passed by the parliament at the earliest possible time. This has arisen from the view that it is firmly in the interests of the traditional owners across Australia for the bill to be passed, in that it will overcome the issues raised in the previous section of this correspondence—that is, the issues arising from McGlade.' He went on to say: 'For the sake of clarity and to reflect the discussions, this consensus refers to the original bill as put to the parliament with amendments reflecting the recommendations of the Senate committee report. These amendments were handed to the NTRBs and NTSPs at the 27 April roundtable. On this, the National Native Title Council urges the parliament to consider and pass this bill as soon as possible.' That is what the stakeholders wanted.

We have heard statements from the Greens—quite misleading statements—that Indigenous people have been kept out of the loop and that this is being imposed on them by some kind of deal between government and big business. Far from it. The people whose voices have been most loudly urging—indeed, beseeching—this parliament to get on with it and pass this bill are the traditional owners. That is what they have been saying. They have been saying it unanimously through their representatives, the National Native Title Council, which, as I say, is the peak stakeholder body.

So we introduced the bill into the Senate in Budget Week, and at last—after a lot of ducking and weaving by Mr Bill Shorten, I am bound to say—the Australian Labor Party, in the second reading debate, through Senator Dodson, announced that it would be supporting the passage of the bill. Notwithstanding that, the following day, on Thursday, 11 May, the Labor Party and the Greens voted not to consider the bill on the Friday of that week, Friday, 12 May. So, far from forcing this through the Senate, we actually moved—as I said earlier—that the Senate consider the bill for even longer than was usual, and you voted not to. You, Senator Siewert, and you, Senator Chisholm, and others voted not to do that.

So there we have it. Notwithstanding the urgings of every native title group representing all of the traditional owners that the parliament deal with the bill as soon as possible, and notwithstanding that there was unanimity, the government having accepted two proposed amendments, that this was the bill the traditional owners wanted, four months after this bill was introduced the Senate is still debating it. Hopefully that debate will come to a conclusion during the course of this week.

Please, let us not have any of these weasel words about the bill being complex; it is not. Let us not have any of these weasel words about the bill being forced through the Senate; it is not being forced through the Senate—in fact, you, Senator Siewert, and you on the Labor Party side voted to prevent the Senate considering it for an extra day. Let us not have any weasel words that this is not what the native title owners want, because it is precisely what they want, it is precisely what they unanimously asked for and it is what the government is determined to deliver.

Let me conclude my remarks at that moment so we can get onto the vote on the second reading. But before I do, I think it is appropriate that I put on the record my debt to Senator Dodson. Senator Dodson, of course, is a good person and a man of goodwill and has played a very constructive role in this discussion—a very constructive role indeed. I want to say that. Sadly, not all of his Labor Party colleagues have done so. We saw a trivial and footling article by Senator Leyonhjelm in The Sunday Mail a few weeks ago, full of lies and misrepresentations. We have seen Mr Shorten walk both sides of the fence, as Mr Shorten has done. But Senator Dodson has been a beacon of integrity throughout the process. You must be very lonely in the Labor Party, Senator Dodson, as an honest man amongst those thieves!

In any event, we now have a bill in the form that all the native title owners have asked for, and we ask the Senate to deal with it.

Photo of Stephen ParryStephen Parry (President) Share this | | Hansard source

The question is that the amendment moved by Senator McCarthy be agreed to.

7:24 pm

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

I move the second reading amendment that I flagged earlier:

At the end of the motion, add:

', and the bill be referred to the Legal and Constitutional Affairs Committee for further inquiry and report by 8 August 2017.'

Photo of Stephen ParryStephen Parry (President) Share this | | Hansard source

The question is that the motion be agreed to.

Question negatived.

The question is that the bill be now read a second time, incorporating the amendment moved by Senator McCarthy.