Wednesday, 14 June 2017
Native Title Amendment (Indigenous Land Use Agreements) Bill 2017; In Committee
I table three supplementary explanatory memoranda relating to the government amendments to be moved to this bill and seek leave to move government amendments (1), (2) and (4) on sheet ZA429 together.
The government opposes schedule 1 in the following terms:
(1) Schedule 1, item 4, page 3 (lines 23 and 24), to be opposed.
(2) Schedule 1, item 6, page 4 (lines 7 and 8), to be opposed.
(4) Schedule 1, item 11, page 6 (line 28) to page 7 (line 11), to be opposed.
I thank the members of the Legal and Constitutional Affairs Legislation Committee and, in particular, the chairman of the committee, the distinguished father of the Senate, Senator Macdonald, for their work in reviewing the bill. The committee's majority report contained two recommendations, the key recommendation being that the bill be passed. This reflects the significant uncertainty that the native title sector was faced with following the decision in McGlade, something I mentioned in closing the second reading debate last night. The government was urged by Indigenous and non-Indigenous stakeholders alike to address the ambiguous situation faced by the parties to an estimated 126 ILUAs following that decision.
The committee's other recommendation is for the removal of two separate measures from the bill at this time, with the recommendation that they be considered in a later bill, involving government proposals arising from the 2015 Australian Law Reform Commission report Connection to country: review of the Native Title Act. The committee recommended that the proposed amendments to sections 251A and 251B of the act be removed. Those amendments, items 4 and 6 of schedule 1, would have permitted claim groups to authorise an ILUA and to make applications for compensation or the determination of native title by a traditional process or a method agreed upon by the group. These changes implemented recommendations 10-1 and 10-2 of the ALRC report. The Senate committee has taken the view that the amendments require further consultation and are not strictly necessary to respond to the McGlade decision. Given that the purpose of this bill, as I indicated last night, was merely to respond to the McGlade decision, their presence in the bill might be regarded as supererogatory. The government accepts this point of view and proposes to remove these measures from the bill and consider the issues again at a later point, along with other important recommendations made by the 2015 Law Reform Commission report.
The committee also recommended the removal of item 11 of the bill for later consideration. This item would have allowed for the validation of applications to register ILUAs and was intended to address any unforeseen consequences of McGlade. The committee formed the view that the impact of the provision was not clear. The government considers that the provision can be removed without affecting the integrity of the bill.
I also note that the committee expressed concerns about the onerous administrative burden placed on the South West Aboriginal Land and Sea Council and the Noongar people by having to proceed through the registration process once again. The committee, however, did not see this as an impediment to recommending that the Senate pass the bill, and I note the government's commitment to considering this in the future.
One further matter raised by the committee which I wish to comment on is the status of what are known as section 31 agreements under the Native Title Act following the McGlade decision. Section 31 agreements are another way that agreements can be made under the act through the right-to-negotiate procedure. While the McGlade decision did not involve these types of agreements, stakeholders have raised concerns about the potential that these agreements could be challenged. However, as agreements made under the right-to-negotiate procedure have different requirements to ILUAs, the government will consider these matters further and will consider the ramifications of McGlade on the right-to-negotiate procedure more closely with stakeholders before making amendments to the law.
Just to be clear, with these government amendments there is nothing in this bill at all that does anything beyond legislatively reverse the effect of the McGlade decision and reinstate the status quo ante of the law as settled by the Bygraves case.
I wish to speak to the amendments moved by the minister but also to the other amendments that I know the government is intending to move—that is, those amendments on sheet ZA431 as well as those on sheet ZA429. Labor has been a long-time supporter of native title and the Indigenous land rights movement, and has worked for many decades to protect and strengthen these rights for Indigenous people around Australia. After the High Court decision, the 25th anniversary of which we celebrated around the nation last week, it was Labor that introduced and legislated the Native Title Act in 1993. That act, while achieving a balance of certainty for existing landholders, established a process for a legal system for native title claimants to achieve recognition and ownership of their ancestral lands. It is our strong belief that this amendment act and the developments of future legislative amendments that affect the act need to be carried out in a consultative and respectful way. Indigenous people need to provide their free, prior and informed consent on things that affect their interests, most especially on the issue of native title.
I want to reiterate that, for Labor, the amendments to the Native Title Act in this bill have always been about land rights, not mining rights. I wish that that were the case for the government, many of the senior members of which have made it clear that, for them, the bill is about the Adani Carmichael coalmine. The Prime Minister's statement and last year's closing the gap speech that did seek to do things with Indigenous people, not to them, reflects these same principles.
I was very disappointed to read the comments of the Prime Minister while he was in India, in April, where he said to the head of the Adani corporation that the native title laws that stood in the way of the mine would be fixed. In relation to specific amendments, Labor acknowledges that the decision of the full court of McGlade has created a great deal of uncertainty, both for native title holders and for other land users around Australia.
We have been informed by the government that some 125 Indigenous land-use area agreements that have been negotiated and agreed with native title holders and their respective representatives are now subject to uncertainty and potential renegotiation. So let me make it clear again: there are some 125 ILUAs that this bill will validate and we accept that this is a just outcome for the communities that made those agreements under the law as it then was and to those with whom they made those agreements. But it is not my understanding that this bill will provide some kind of green light for the Adani mine as some media reports seem to suggest. To the contrary.
I understand that the Wangan and Jagalingou people—the traditional owners of much of the land on which the mine and its facilities are proposed to be built—have several legal actions afoot against Adani. Most of this litigation will be entirely unaffected by the passage of this bill. In particular, there are very serious allegations of fraud that have been made against Adani regarding the processes under which agreements with the Wangan and Jagalingou people were purportedly reached. And those proceedings, which may impact on the validity of any ILUA, will only commence hearings in March next year.
Other legal action is always underway, including a case challenging the validity of the licences issued by the Queensland government. Be that as it may, since the decision in McGlade we have sought to work constructively with the government to agree upon a position that balances the need for a reasonable and timely resolution of the matters with the need to properly consult with Indigenous people, native title holders and their representatives. That is why we insisted that the legislation be the subject of a proper Senate inquiry prior to its passage through the parliament. A very short time was agreed upon by the government for submissions—only one day of hearings was allowed.
Despite those constraints, in the process of the Senate inquiry a number of very significant issues arose with the bill. First, despite the assertion in the explanatory memorandum that the legislation 'amends the Native Title Act 1993 to resolve the uncertainty created by the full Federal Court decision in McGlade' in fact, the draft bill contained provisions that went well beyond that objective. Those included but were not limited to amendments that had been first proposed by the Australian Law Reform Commission in its report Connection to country. Second, it became clear to us that little or no consultation had occurred with Indigenous people prior to the introduction of the legislation.
Considering the significance of these changes, we considered this as a breach of the concept of free, prior and informed consent. Through the Senate committee process, Labor senators secured important amendments to the legislation which removed those provisions that went beyond the stated purpose of the bill. That inquiry recommended:
… subject to paragraph 2.75, that proposed amendments to sections 251A and 251B of the Native Title Act 1993 be removed from the current bill and dealt with in any later bill involving government proposals arising from the Australian Law Reform Commission report …
Following the Senate inquiry tabled on Monday, 20 March 2017 the government undertook to draft amendments to give effect to this agreed position. More than a week later, on Tuesday, 28 March 2017, the government tabled amendments and sought to have the legislation debated prior to the April recess. Unfortunately, in subsequent briefings from the Attorney-General's Department, it quickly became clear that these amendments were again defective in a number of respects: (a) they contained provisions which went beyond the original intentions of the bill and the agreed position of the Senate inquiry; and (b) not one single person outside the government, Indigenous or otherwise, had been consulted in their preparation. Labor considered this to be such a breach of the good-faith agreement reached through the Senate committee process and a clear breach of the concept, again, of free prior and informed consent.
It was necessary for the government to urgently convene, for the purposes of consultation, a meeting of the major native title representative bodies under the umbrella of the Native Title Council. Labor supported these consultations, although they were brief and some of the amendments were still unclear. I note that Senator Brandis had been selectively generous in his recognition of my role in encouraging this point of consultation and I thank him for that. However, he is completely wrong in saying that I have been alone in supporting a balanced and principled position on this issue. My Senate and House colleagues have been of one mind and one focus in working through the issue, and I thank them for that.
At the Melbourne consultation arranged by the government, we noted that a further amendment was proposed to address concerns raised by representatives of the Cape York Land Council over the longstanding ILUA that underpins the Weipa agreement, the Western Cape Communities Coexistence Agreement. Even after that point, the government sought to rush through passage in the last sittings, which was a simple stunt on the pretence that the sky was about fall in and it was only the Attorney-General who was going to be able to hold the sky up.
Labor seeks to work constructively and productively with the government but this process has been challenging, leading to the sentiment expressed in Senator McCarthy's amendment in the second reading speech moved and agreed to yesterday. We seek to ensure that the land use agreement system is sufficiently stable and sound after the judicial decision in McGlade that created a high degree of uncertainty, not only for those agreements before McGlade but for the security and clarity of agreement making going forward. Agreement making is important to Labor and we support the need for some sense of confidence for those native title holders who have negotiated access and use agreements across the country. Having removed many of the problematic elements of the draft bill, and having now engaged in consultations, at least with those native title representative bodies and those who made submissions to the Senate committee, Labor can now support the amendments.
I have a few comments to make, but I should also let the chamber know I have a series of questions to the Attorney-General through you, Chair, that I will be seeking some clarification on. First off, I very quickly wanted to address some of the comments that Senator Brandis made last night and, in fact, Senator Dobson just touched on then, in terms of the consultation process and how the message Senator Brandis was intending to deliver yesterday was that everybody should be on board now because they have held another meeting and there is consensus now to these amendments! There is not consensus to these amendments. Yes, the bill is a relatively short bill, but it deals with complex issues. It does not mean just because a bill is short that it does not still involve complex issues.
There is not consensus, because last night we had people in the gallery who were clearly not on board with supporting these amendments. Just last night I had an email from a member of the Noongar community in Perth, Western Australia, who clearly was representing a number of people who do not support these changes. So there is not consensus. There was one more meeting that the Attorney-General convened and invited people from the representative bodies to. I acknowledge that that was extra, and that is a good thing, but you cannot claim that you have consensus because you convened that particular meeting.
We were getting, and we are still getting, a lot of messages from people saying, 'Don't support these amendments.' These are people that recognise that we need to be addressing this issue, and I and the Greens have acknowledged that in our contributions. We need to be addressing these issues. We are deeply concerned that these amendments are being rushed through because of Adani. These issues have been on the books for some time, and all of a sudden the government decide that they are going to deal with it now.
I will indicate that, although we cannot support the bill because we are still concerned about these amendments, we will be supporting this particular set of amendments because they deal with part of the concerns that were expressed during the Senate inquiry and that the Greens had identified. The amendments do pull back a little bit on the changes being made around the decision-making process. On schedule 11, I am also pleased to see that the ALP did in fact pick up on the issues that I raised through the Senate inquiry. So I can indicate that we will be supporting the amendments on this sheet, ZA429, even if that means we have to vote in the negative, because the question we will be asked to vote on is whether we should support the bill as printed.
However, what I would like to do now is to go to some of the questions that I have. I have some general questions, and I also have some specific questions around the second set of government amendments, which are on sheet ZA431. I ask this through you, Chair, to the Attorney-General: I do not know if you want to deal with them all at once or if you would rather do it when we deal with that amendment.
Thank you. I have some overarching questions first, in that case. Could I ask now: do we have a definitive list of the agreements that are affected by the McGlade decision? We have never been able to get a clarified number.
Thank you. That was the number that we were given during the Senate inquiry, and I understood it was an approximate number. Also, as I understand it, the second set of amendments, around Cape York, were not on the table at the time. They certainly were not discussed during the Senate inquiry, and I would like to know whether they are included in this particular list.
The figure of 126 is the number of registered ILUAs. As you know, the way in which this system works is that ILUAs are registered, so one can rely upon the state of the register for accurate guidance. That is, as I am advised, the number that are registered, and all that are capable of registration should have been registered. So that is the best information that we can provide from the state of the register.
Can I just clarify something—and I will not be asking particular questions around the other amendments. Does that mean that they were already in the mix but the issues around those specific agreements—and I will come to the numbers when we discuss that amendment—were already there? They are not additional agreements that were subsequently identified as having issues?
As to the agreements that had been agreed to and for which an application was before the registrar but which were not registered—in other words, those going through the process—can you tell us how many are in that category, please?
That is not what I am advised, Senator Siewert. Going back to your earlier question: the number of ILUAs affected by McGlade, pending registration, as I said, is eight. You will have to forgive my pronunciation but they are the Wuthathi Land Transfer ILUA, lodged on 22 December 2016; the FMG Palyku Land Access ILUA, lodged on 25 January 2017; the FMG Kariyarra Land Access ILUA, lodged on 6 December 2016; the Bellary Springs ILUA, notification ended 15 February 2017; the Sandstone Western Land Transfer ILUA, notification ended 7 March 2017; the Melsonby ILUA, notification ended 7 March 2017; the Peninsula Developmental Road ILUA, notification ended 7 March 2017; and the Adani Mining Carmichael Project ILUA, notification ended 22 September 2016. So those are the eight that are pending.
Minister, on those eight I have two questions. What was the nature of the resource proposed to be under development? Obviously, it is coal, for the Carmichael Adani mine; what is the resource for the other ILUAs? Then I will have a second question as well.
That is ridiculous. How can we not know? How is it commercial-in-confidence—the whole subject of this bill? You are trying to facilitate these ILUAs being deemed valid, even though the majority have not, in fact, agreed—or, rather, there has not been unanimous support by the native title claimants. How can you not tell us basic facts like that?
Senator, you seem to be under the misapprehension that the full terms of an agreement are open for inspection on the register. That is not the case. It is, as I am advised, very commonplace for there to be confidential commercial terms in an ILUA, and they are not registered so as to be a matter of public disclosure.
) ( ): Minister, I was not asking you to disclose the ILUAs; I am asking about what resource the ILUAs pertains to. That would surely be a matter of public record. You have umpteen officials up there. Could you tell us which minerals those ILUAs pertain to?
Of the eight ILUAs that are in process, for those projects that they relate to, have other permits already been gained by the applicant; or is the ILUA at the very start of the process, and other land-use permissions have not yet been gained?
I am sorry to say, Senator, you are asking me for a degree of detail that I am not in a position to provide. These are not questions about the bill; these are questions about the particular characteristics of certain ILUAs. If I can invite you to return to questions about the bill, that would be helpful.
The line of my questioning goes to whether or not your party has received any donations from any of those eight proponents. We know that there has been from the Adani coal company; hence, I am trying to ascertain if it is just Adani that all of this palaver is about or whether you have other donors that also want you to help out their situation in stifling native title rights.
If that is where you are going, you are barking up the wrong tree. I would not know what donations received by any political party beyond—but I can assure you that, so far as the political party which I represent in this chamber, the Liberal Party of Australia, is concerned, all disclosure obligations under the Commonwealth Electoral Act and under state electoral law are met in a very thorough and conscientious manner. But you are asking me about whether certain parties to agreements with which you would not expect me to be familiar are donors to political parties—I do not know, and I would not expect to be in a position to know.
Yes, I can do that. Might I say, just so there is no suggestion of there being any obscurity here, all the register of ILUAs contains is a description of the area covered, the names of the parties, the period of the agreement and if it includes an extinguishment. Those are the matters that are on the public record. None of the matters about which your colleague Senator Waters has just asked are matters of public record, so why you would be asking me about that, I do not know. The record speaks for itself, and a modest amount of research by you or your colleagues could have established what is on the record. Nevertheless, in relation to those that have not been registered yet, I have read the details of them onto the record, and I am happy to provide you with the list from which I read.
Thank you. This pertains to the bill, and in fact, amendments that the Greens are going to be moving, which is why I am asking about this. The list you just read out—I am sorry if I am being obtuse here—does not include the south-west amendments from what I could tell and yet, in your previous answer, you said the list did include those, so I am seeking clarification about that list.
That is what I was seeking some clarification about. I got confused when you said they were on the list. I am not trying to be tricky here; I am just trying to get some clarification, because the list of the eight then changes. They are completely different to the ILUAs that would previously have been on the list.
We are talking about three different things now. There are the ILUAs that are registered—that is the 126. There are the eight ILUAs that are pending, and those are on the list that I am providing to you and just read onto the record. Then there were some other ILUAs, including those to which you have referred, which had been pending registration but, as a consequence of the McGlade decision, were no longer capable of registration, as it were—and the purpose of this bill, as you know, is to reverse legislatively the effect of the McGlade decision.
Thank you for that clarification—it is much clearer. I want to go back to the 126 ILUAs and get an understanding of the answer that you gave. During the Senate inquiry hearing, we were told very clearly that the 126 was a bit of a rubbery number and you could not tell us what the agreements were because there was not a clear understanding of which agreements had the majority sign-on and which actually had all the named applicants on them. Am I to understand from the answer you just gave that we are now clear about that? Why weren't you and the department able to tell us during the Senate inquiry what the list of 126 was when we asked? We definitely were not told during the Senate inquiry.
First of all, I have just given you a copy of a list that you have been seeking. That is being provided to you by the attendant as we speak. I am not in a position to inform you of that much detail. I was not, as you would know, at the Senate committee hearing. My officers, no doubt, were very forthcoming about the information they had. The figure of 126 is the figure that has been arrived at by inspection of the register.
My question referred to the 126—I am sorry if I was not clear. Why could you not have told us that in the inquiry when there were specific questions around the number of agreements? We were clearly told that we could not know all of them and that there was some question mark over the numbers and what was on the list because you had not been through them.
As you know, I was not at the inquiry, but I am advised by the officers of my department who were and who are with me in the chamber today that the number was not available at the time because the tribunal was still working through the register to establish the number. That number has now been established and, in response to your question, I am telling you the number that has been established is 126.
I did not actually say you should look at the website; I said you should look at the register. The register is a public document. By what mode it is inspectable and whether it is online or not, I am not sure. That is a matter for the tribunal.
If we are going to split hairs, no, you did not say website; you said register. I am a modern girl. I expected that they would be listed on the website. However, let us go to the context of the issue and the substance of the issue. Is there a separate list of the 126? If so, please table it.
I am told there is no list on a website, and I am not in a position to table the list because I do not have the list with me. Senator Siewert, I think you are asking me to compile a list or to inquire whether a list has been compiled.
Yes. If I had not pursued this line of questioning, one would take from your first answer of 'Look, it's on the register' that one could easily go to the register and find these agreements. You cannot unless there is a separate list. So my question is: is there a separate list? You have just said you do not have it with you. That does not mean there is not a separate list. Can you, therefore, take on notice and provide to this chamber a list of those agreements?
I am advised there is not a list. The details—or those of the details that I have indicated are a matter of public record—are available by inspection of the register, and, with all due respect, it is not for my officials to do your research for you. The register is a public document. By whatever mode accessible, it is a public document, and if you want to inspect the register it is available to you.
In other words, you have the list—you must have the list because you know categorically that there are 126—and you are not prepared to provide that list to this chamber or take it on notice. They are the very agreements that we are having this debate about, and you are not prepared to provide that list; you are telling us to go through the whole register to find them. Is that what you are saying?
You just asserted to me that I had said I have a list and I am not prepared to provide it to you. That is not the case. I do not have a list. The figure of 126 was established by the tribunal by their inspection of the register, so perhaps this is an inquiry you ought to direct to the tribunal. I do not have a list, but I do have advice from the tribunal that, on the basis of their examination of the register, the number is 126.
You have never inquired? There has been speculation that these agreements cover some national parks and that, during the process of negotiation of the agreements, some covered agreements reached over native title. You have never inquired as to the nature of these agreements—for example, what mining areas or other areas do they cover? You keep telling us that there are areas in these agreements that are at risk and that there are important things that are at stake here, yet you have never inquired as to the nature of those agreements or asked for the list.
I certainly have not. These are registered ILUAs. My concern has been to protect their registration following the McGlade decision, and that is my only concern. There have been a lot of wild things said in this debate, including from your party—and not only your party—many of them inaccurate, speculative and at variance from reality, so I am not going to reflect upon the sentiment you have just expressed. Suffice it to say, the bill before the chamber does one thing and one thing only, and that is to protect the ILUAs that would have been put at risk by the McGlade decision, and there are 126 of them. I am advised they are available—or at least the public details of them are available—on the register.
Just for the record, I was not wildly speculating about the national parks or the issue around the agreements being reached over native title during the agreement process. It is on the record from the Senate inquiry that these may be. I am seeking to clarify whether they were or not. I found it astounding that there is not a list available to back up the claims of urgency for dealing with this matter.
I turn specifically to the South West ILUAs. Could you clarify for us now the process from here, if this bill goes through—and I am speculating that it probably will—for the South West ILUAs? The reason I am asking is that there is now some doubt in the community about the process. We were told one thing during the Senate inquiry, and certainly there is a group in the South West who understand the process a bit differently. I know the South West Aboriginal Land and Sea Council had some concerns about the process as well. So, for the record, could you please clarify what that process is?
I hope I can. I am advised that the relevant representative body will have to restart the application process—in other words, apply again. I am advised that they will not have to go through the authorisation process but they will have to apply for registration of the ILUA in accordance with the provisions of the act.
That is a useful clarification, because, as I said, there is some misunderstanding at the moment. I can tell you that because I got an email about it last night. Just to be clear, that means that they go through the application process and people get an opportunity again to lodge complaints about the process and go through that process. Is that right?
I am sorry; I can give you a better response to your earlier question. I am advised that there are some that were pending that are not affected by McGlade. I am just trying to get a number for you.
I do understand the distinction you draw, and I am having that checked by my officials—that is, whether or not, the moratorium having come into effect at once upon the McGlade decision, nevertheless there were applications lodged but not accepted, as it were, as a result of the moratorium. I will have that checked.
I want to put to you a few facts from the Wangan and Jagalingou people, the claim group, and ask for your response based on contentions that you have put in this chamber about there having been majority support for Adani's Carmichael mine ILUA, which the W&J people refute. They say that on three occasions since 2012, the natural majority of the claim group have rejected an ILUA with Adani. They also say that in a meeting at which the current ILUA under application was voted upon that, whilst the vote was 294 to one, over 220 of the meeting's attendees were people who have never been involved in the Wangan and Jagalingou claim, and in fact that those people were bussed in at Adani's' expense. I seek your response to those facts.
You say they are facts; they sound like allegations to me. I have never heard them before. I have absolutely no reason to believe they are true. Senator, can I remind you that the Commonwealth is not a party to the ILUA, so we are not involved in the process of the negotiation of the ILUA. If the ILUA is regularly arrived at in accordance with the Native Title Act, then it can be registered.
Minister, with due respect, that is the whole point of why we are here. The process has been dodgied up, and now you are trying to hastily patch it over for Adani. Clearly, this thing stinks to high hell, and you have on previous occasions insisted that the W&J—
The CHAIR: Senator Waters, please resume your seat.
That needs to be withdrawn. It is unparliamentary. The senator said the process had been dodgied up, implying some level of degree of dishonesty or impropriety and the government was trying to patch it up for Adani. Those assertions or insinuations must be withdrawn.
The CHAIR: Senator Waters, if you made that imputation, I would ask you to withdraw.
I will not, because I did make that imputation, and the reason is that the Prime Minister, in his own words—
The CHAIR: Senator Waters, I suggested to you that, if you made the imputation, you withdraw. You have admitted that you made the imputation, so please withdraw.
No. Can I go to the fact that the Prime Minister has acknowledged—
The CHAIR: Senator Waters, are you dissenting from the chair, because I have asked you to withdraw.
Fine; I will withdraw, but I have another question. The Prime Minister himself said, 'The issue needs to be fixed and will be fixed,' after he met the head of the Adani group in India. Clearly, this is trying to fix the issue, and hence my earlier imputation. So I stand by that, even though I have technically withdrawn it. My question—
The CHAIR: Senator Waters, please resume your seat. Minister.
Plainly, Madam Chairman, that is not good enough. You cannot withdraw an imputation and then remake it in the next sentence. The senator is being disrespectful of the chair and of the chamber.
The CHAIR: Thank you, Minister. Senator Waters, if you have withdrawn, you have withdrawn, and that is the end of the matter.
I withdraw. There was no disrespect intended to the chair. But I do want to take the minister to the Prime Minister's comments, which were reported in the Fin Review on 11 April, when the Prime Minister had told Mr Adani, the head of the Adani group, in relation to native title:
The issue needs to be fixed and will be fixed.
Minister, when the Prime Minister made that statement, how many traditional owner groups had your government spoken to, if any?
Plainly, there is a problem that does need to be fixed. This legislation is to restore the status quo ante, before, the McGlade decision, and that of course is what the Prime Minister was referring to. The government had a very extensive consultation, which I described last night in the second reading debate. In the end it was the unanimous view of all of the native title representative groups whom the government consulted—and all of them were invited to the consultation by the way—and I think it is right to say that all or nearly all attended. Also, as expressed by their peak body, the National Native Title Council, in the letter from Mr Kelly of 5 May that I read into the record last night, it was the unanimous view of the native title claimant groups that this problem needed to be fixed.
As at the date when the Prime Minister assured Mr Adani that he would fix the native title issues, how many traditional owner groups had you spoken to? I understand you have gone through a consultation process. My question is whether that was subsequent to the Prime Minister's promise to Mr Adani or antecedent.
I cannot immediately tell you the date on which the Prime Minister visited India, but the consultation with the native title holders occurred on 27 April. Prior to that, though, within a matter of days of the McGlade decision being delivered—that is, not later than the second week of February this year—Senator Scullion and I met with Mr Kelly, the CEO of the National Native Title Council, the peak body that speaks for all native title groups, and he, at that meeting, urged us to fix the problem, or words to the effect of, 'Fix the problem caused by the McGlade decision,' and to ask the parliament to do so urgently, and we did. The purpose of the consultation meeting on 27 April was merely to share the government's proposed bill with the native title claimant groups to ensure they were happy with the manner of the solution to it. They made some helpful suggestions at the margins, which we have adopted and they are embodied in the government amendments before the chamber today. But the request, on behalf of the native title claimant groups, that the problem presented by the McGlade decision be fixed, came as early as the first meeting Senator Scullion and I had with Mr Kelly in early February of this year.
The bill was introduced into the House of Representatives on 15 February, and I had already announced that, because of the urging of the native title groups, we were urging the parliament to deal with the matter urgently. Now, the parliament, obviously, has not dealt with the matter urgently because four months have now elapsed and we are still debating it. Nevertheless, if you are seeking to establish some kind of cause-and-effect link between the Prime Minister's discussions with Mr Adani in India and the bill, you are completely wrong, Senator Waters. The government determined upon this course in response to the request of the traditional owners within days of the McGlade decision being delivered by the Federal Court in the first week of February.
I will not, because your questions are irrelevant to the bill. This is the committee stage of the bill. You are at liberty to make these broader political points in the second reading debate. I imagine you probably did so, but if you have any questions about the bill and in particular the government amendments that we are now discussing, please ask them.
Minister, this bill is being rushed through to save Adani's hide, and the Prime Minister went to India and promised that he would fix native title issues. My question is completely apposite to the whole purpose and reason for this bill. I want to know who first instigated the need for this rushed response, which tramples on native title rights, and whether it was Adani himself or one of his representatives.
As you know, it is factually false to say that it has been rushed, this having now been in the parliament for four months. But, to answer your question, so far as I am aware, the first approach came from the National Native Title Council through Mr Kelly. That is the first approach that I am aware of. I am also aware of the Premier of Queensland, Ms Palaszczuk's, letter to the Prime Minister asking that the problem be dealt with urgently, which I think, if my memory serves me correct, was by a letter dated 6 February.
Minister, you said this morning that stakeholders have raised concerns about the potential that section 31 agreements could be challenged. Can you explain to the Senate why section 31 is of concern and why you have raised that this morning?
Well, I have not actually raised that. This is what I said about section 31, Senator McCarthy—and let me read it to you again:
One further matter raised by the committee which I want to comment on is the status of what are known as section 31 agreements under the Native Title Act following the McGlade decision. Section 31 agreements are another way that agreements can be made under the act through the right to negotiate procedure. While the McGlade decision did not involve these types of agreements, stakeholders have raised concerns about the potential that these agreements could be challenged. However, as agreements made under the right to negotiate procedure have different requirements to ILUAs, the government will consider these matters further and will consider the ramification of McGlade on the right to negotiate procedure more closely with stakeholders before making amendments to the law.
That is what I said. So, Senator McCarthy, far from saying what you have attributed to me, I actually said the opposite: that the right to negotiate issue under section 31 are not the subject of this bill but will be the subject of consideration when the government reviews in a more holistic way the Native Title Act, as we have foreshadowed we will do.
No. What we are doing is we are legislatively reversing the McGlade decision, and that is all we are doing. In the course of debate on this bill, other issues have been raised which go way beyond its scope—one of them being the right to negotiate provisions of the act. And, as I have said, that is not part of this bill, because it is not necessary to its purpose. But there is a view—certainly a view that was expressed to Senator Scullion and me by the native title representative groups at our meeting on 27 April—that a broader, more comprehensive review of the act was desirable. The government accepts that point of view. That will involve many issues, including the section 31 issue. That is the work of another day, but it is not part of this bill.
I think it is fair to say that the McGlade decision changed the playing field and put at legal risk ILUAs in which native title claimants and, indeed, all parties to the ILUAs have proceeded on the basis that they were on a sound legal footing. As a result of McGlade, some of them were put at risk for reasons that you understand. Therefore, the government's immediate focus, urged by, in particular, the native title claimants, was to restore certainty following the McGlade decision. That is the narrow, surgical focus of this bill. A broader review of provisions of the Native Title Act may very well be desirable but is the work of another day.
Essentially, yes. A lot of people have made remarks in this debate which are, frankly, irrelevant to the McGlade decision, whether out of an imperfect understanding of the way the act works or for the sake of making mischief, or for whatever reason. But the narrow focus of this bill is the McGlade decision. And that does not require reform of section 31.
While I am not satisfied with the answer over the 126, I think we have gone as far as we can go on that one. But in terms of the ILUAs that extinguished native title—and I understand that you know how many there are—do you have a list of those that we could be provided with?
I understand that you know there is one in Queensland and there are, obviously, the ones in Western Australia—although they are not among the 126. But I understand there are others—up to 10—from your list. How come you do not have that list if you can tell precisely how many there are?
In order for us to make decisions in this place, questions are to understand the ramifications of the amendments and of the changes to the bill. I thought extinguishment of native title was a pretty important issue. Clearly it is, because you have outlined that there are, as I understand it, 12. You know that bit of information. Surely, you know which ones are affected.
As I have pointed out before, the Commonwealth is not party to these ILUAs. The Native Title Act—you know this, Senator—provides a system of registration. But the Commonwealth is not a party to these agreements. In relation to these broader matters about which you ask, we had a Senate committee. Perhaps you explored the matter at that stage. But if you have any questions to ask me about the legal meaning and effect of particular government amendments, then please ask them.
I understand what you are saying. You actually are able to provide a list of those that were executed where—the list is here now—there was agreement over native title. So you do have that list. You are being selective in what lists you ask for information on. I would have thought that was a pretty important issue. As I said, you know how many there are. Why aren't you able to provide that?
I do not, as a matter of fact. You asked about how many ILUAs there were, and I was able to tell you, because the tribunal has, by its own inspection of the register, arrived at that number—that is, 126. You asked me how many were pending; you asked me how many were affected. That information is relevant to the process by which the government approaches this legislation. But, now, you are asking me about the content of particular ILUAs. I am not in a position to tell you that. It is not something that I know—the Commonwealth not being a party to the ILUAs. And it is not germane, frankly, to the bill.
Minister, this bill would seek to retrospectively invalidate an ILUA that does not have unanimous support but rather makes majority support sufficient for it to be a registerable ILUA. I put to you earlier the facts put by the Wangan and Jagalingou traditional owners whereby they say people who are not even part of their clan group were bused into a meeting at which a vote was then taken on the ILUA that this bill would now seek to validate. You said you had not even heard of those claims and they were simply assertions. Are you calling the traditional owners liars?
Senator, you have made an assertion. I have absolutely no reason to believe and no basis to know whether that assertion is true or false. I do not know where you get your facts from. I am merely saying that I have no reason to believe the assertion that you make is accurate. The other point I would make to you, Senator Waters, and you as a lawyer should know this, is that this particular ILUA is currently the subject of pending proceedings in the Federal Court. Whether or not the assertion you make is one of the issues in those Federal Court proceedings, I am not aware of; but, for all I know, it could be. Therefore, this being before the court at the moment, it is not appropriate in any event for me to comment.
Minister, I can table the press release from the Wangan and Jagalingou people—a number of them, in fact—if you require. You are simply not engaging with their facts and you are dismissing them as assertions, which is highly insulting to them and, frankly, an abrogation of your own duty in trying to spruik this bill. I hope you are seeking some useful advice that can actually answer some of the questions that we are asking.
I can confirm that the assertions that you are repeating in this chamber are matters that are in issue in the Federal Court proceedings at the moment—I am so advised. That, Senator, is why these matters are dealt with by courts, not by legislative chambers. What we are doing here is dealing with a bill. I understand that certain individuals are challenging an ILUA in the Federal Court, and we will leave the determination of that issue to the branch of government that deals with disputes between citizens—that is, the court.
Minister. let's hope that the court is more respectful of the assertions and facts put by the traditional owners than you have been today in dismissing them either as irrelevant or as simply assertions that you have not bothered to inform yourself about, which I am quite shocked and disappointed by. On that matter, you are correct that it is before the Federal Court. I understand the hearing date is March of next year and that there are several grounds to that case, which Senator Dodson referred to earlier in his initial contribution as well. The Prime Minister promised Mr Adani that he would fix the native tile issue. This bill is seeking to fix a small aspect, but is it not the case that there are multiple prongs in that litigation before the Federal Court by the W&J mob and that even if this bill does succeed, thanks to Labor rolling over and trashing Indigenous rights with this government's bill, that in fact the issue will not be fixed and that there will still be many other grounds before the court such that a registered ILUA could not be completed any time before March? Is the Prime Minister now going to tell Mr Adani that in fact he has not been able to 'fix' native title issues at all?
Senator, you are requesting me to comment on matters before the court and you know perfectly well that that is not the proper thing for me to do and therefore not a proper question for you to ask. I might point out, Senator, that you seem to be confusing the authorisation of an ILUA with the execution of an ILUA. This bill deals with the execution of an ILUA, not the authorisation of it.
I want to make another attempt at understanding the government's logic with respect to the issue of extinguishment. During the Senate inquiry, we received a number of submissions that raised concerns about ILUAs that were agreed by the majority, not all the named applicants, as per the McGlade decision. Instead of this blanket approach to agreeing to all of the registered ILUAs, a number proposed that there should be a process to review them to make sure people are happy with those agreements. To my mind, this is germane to the discussion we are having, because they are proposing an alternative approach. I know for a fact that in the South West WA the extinguishment of native title is one of the issues for the people who are opposing the ILUAs in the South West. They are concerned that they have to give up extinguishment over, admittedly, rather smaller areas of land, but that is one of their key concerns. To my mind, if not to yours, this is an important issue, because these may be the agreements that people would particularly like to have a look at. The fact that they are included here means it was not a consensus decision to extinguish native title. Some people see that as a threshold—I am not saying everybody, but some people do. That is why I do not understand, when you actually have pulled out the information, you cannot give us a list. We know there is one in Queensland, which has to do with transport corridor, as I understand it, but what are the others? That is why it is important. This goes to the heart of what many people are concerned about.
Senator Siewert, I can tell you that the South West Land and Sea Council was one of the rep bodies that was represented at the consultation that I undertook in Melbourne on 27 April. The South West Land and Sea Council strongly supports this bill and its urgent passage through the parliament.
Senator Brandis, you know very well that there are disputes over that, and I know where the South West Land and Sea Council stand. I have a lot of sympathy for their argument. In fact at the inquiry, they raised concerns that it did not go far enough for them. They have to go through that application process, which you have just articulated, again. Yes, they agree, but they want it to go further. I know they have some issues there, but they do want to see the passage of the bill. I also know very strongly, because I have spoken to people, and they are the groups of claimants who took the court case in the first place.
To answer my question by simply quoting the South West Land and Sea Council does not answer my question at all. You know very well we are here right now is because of the group of people who took the action in the Supreme Court in the first place, and that is now the McGlade decision. You know very well that there is a group of people who do not agree with where we are at in the South West of WA. I am not seeking to prosecute that argument here, but I am using it as a clear example of claimants' concerns about the extinguishment of native title. It is one of the key issues that has been raised with me as the reason they do not agree. As I said, I am not seeking to prosecute that discussion here—it is not my place to do so. I am raising it as an example of why extinguishment of native title is a really important issue, when there has not been a consensus decision on it.
Senator Siewert, I think you are making debating points rather than asking me questions now. We asked for the views of the South West Land and Sea Council, and they have said they support the bill and they want the parliament to pass it. There may be particular disputes among the South West Land and Sea Council, but I am not aware of them. That may very well be the case, but it is not relevant. The only question before the chamber at the moment is whether this bill should be passed, and the representative body of those people has asked the government to introduce this bill—we have done so—and the parliament to deal with it urgently. Although four months have now elapsed since it was first introduced, we are trying to do what they are asking us to do. There may be individual members of that community who have a different view. We are not asking for unanimity, but there is consensus.
There is not consensus. You have a very strange understanding of 'consensus'. You are going with the majority view; you are not going with consensus. This is at the heart of the discussion that we are having. You are swapping from a consensus view that is currently in the Native Title Act to a majority view. It is no wonder we are at odds; you do not even understand the term 'consensus' by the sound of it. There is not consensus. The south-west claimants are not the only ones who do not consent to this bill. But let's go back to the question that I asked: why do you not know—when this is one of the key issues at the heart of people's concerns—about the extinguishment of native title. I think there are many people who want to know which ILUAs extinguished native title. Which ones are on this list that did not have all—let's abandon the term 'consensus' and go to 'all'—named applicants sign the agreement?
Whether or not native title is extinguished—as I said about an hour ago—is one of the particulars on the register. So, if you have an inquiry about whether or not a particular ILUA extinguishes native title, I invite you to inspect the register. It is not for me to do your research for you.
This is getting to the point of rudeness. We have already established that you cannot interrogate that list to find out that sort of information. The Native Title Tribunal has done it. They know that up to 12 have extinguished it. So are you saying that you never bothered to inquire? Your department never bothered to inquire where those were? Is that what you and the department are saying? You never bothered to inquire about which agreements extinguished native title?
Whether native title is extinguished—as I said—is a matter that appears on the face of the register. If you want to make an inquiry about a particular ILUA, then inspect the register. But that is not the business before the chamber today. The business before the chamber today is to deal with the bill, and that is what we are doing.
I think we are getting a very long way away from discussing the terms of the bill. The fact is that every native title representative group in the country—and that is a consensus; there is a unanimity among the native title representative groups—wants this bill passed, and they want it passed now.
I just have a few additional questions harkening back to some earlier questions that sadly were not really answered. In the time between the McGlade decision on 2 February and the introduction of this bill on 15 February, did the Prime Minister talk to Mr Adani or any representative of the Adani companies?
Can I ask you to check, because you have claimed a lack of awareness about a number of things and that is not actually determinative of the question. Can I ask that you ask your officials to ascertain whether or not the Prime Minister did have contact with Mr Adani in that time. I am not interested in your state of mind about it; I am interested in whether it factually happened or not.
No, I will not be doing that, because it is irrelevant to the bill. What I can tell you as the minister with the carriage of this bill is that the people with whom I have had contact—the National Native Title Council and individual native title representative groups—are urging the Senate not to delay or filibuster this debate but to get the bill passed and they are doing so unanimously—the Queensland government and other stakeholders. As the minister responsible for the carriage of the bill, I can assure you I have had no communication with Adani whatsoever.
You selectively misquote what I said, so let me put it on the record again. Next time you quote, I ask you to do me and the Senate the courtesy of honesty. What I said was I am not aware whether the Prime Minister spoke to Mr Adani and I have no reason to believe that he did. That is the part that you left out. I have no reason to believe that he did.
I am just trying to establish whether he did or not. Whether you believed that he did or not is completely irrelevant, but it seems that, unfortunately, as the Minister representing the Prime Minister, you are not able to answer a fundamental question, so I will move on to my last set of questions—which you will probably not answer either, but I will ask them anyway. Of those eight ILUAs that were pending registration which this bill seeks to validate despite the fact that they may not have unanimous support by the registered native title claimants, at least two of the mining companies involved are Fortescue and Rio Tinto. Both companies have donated to the Liberal Party. What discussions, if any, were had between either you or the Prime Minister and representatives from Fortescue and Rio about this bill?
I had no discussions with Rio about this bill—none at all. As to Fortescue, I had a meeting with Mr Andrew Forrest about two or three months ago in my office in which he came to see me about human slavery and to give me a briefing about human slavery, a cause about which I would have hoped you would care but plainly do not. During the course of my meeting with Mr Forrest I have no recollection of any discussion of anything other than the question of human slavery. I put that on the record for the sake of completeness because I have had one meeting with Mr Forrest during the time in which this bill has been before the parliament. We did not discuss the bill; we discussed human slavery.
In relation to whether the Prime Minister has discussed this with representatives of either of those companies or anyone else, I am not in a position to tell you.
No, because that is not what this process is for. This process is to discuss the terms of the bill. You are coming very close to abusing the process of the committee stage of the debate, but we are in the hands of the Acting Deputy Chairman.
This bill is being hurried through to patch up Adani's massive coalmine and, potentially, also to patch up Fortescue's and Rio's ILUAs, and you are telling me it is not relevant? I think that is patently ridiculous and I am sure anybody bothering to listen will be outraged at the government refusing to disclose what is potentially the key purpose behind this bill—the key motivation. Of course, it is very interesting to note that many of those companies have donated to your side of politics—probably also to the opposition as well—so I find your refusal to engage an abuse of process.
Whatever is the most efficient.
The TEMPORARY CHAIR: We will move them separately, Senator Brandis.
I move government amendment (3) on sheet ZA429.
The TEMPORARY CHAIR: Do you mean 249?
No, 429. In other words, this one.
The TEMPORARY CHAIR: Yes. That is 249. I think you said '429'.
Yes. There is a disconformity between the sheet and the running sheet.
The TEMPORARY CHAIR: I can see that now.
Native Title Amendment (Indigenous Land Use Agreements) Bill 2017
(3) Schedule 1, item 9, page 5 (line 26), after "native", insert "title".
That merely corrects a typographical error in item 9 of the schedule, the omission of the word 'Title' so that it would read 'Native Title' as it was plainly intended to read.
Question agreed to.
I move government amendment on sheet ZA431.
(1) Schedule 1, item 9, page 5 (after line 26), after subitem (1), insert:
(1A) This item also applies if:
(a) paragraphs (1)(a) and (b) apply to an agreement; and
(b) the agreement was not an indigenous land use agreement (within the meaning of that section) only because:
(i) if there was only one registered native title claimant in relation to land or waters in the area—none of the persons who comprised that registered native title claimant was a party to the agreement; and
(ii) if there was more than one registered native title claimant in relation to land or waters in the area—for any registered native title claimant, none of the persons who comprised that registered native title claimant was a party to the agreement; and
(c) the agreement was registered on the Register of Indigenous Land Use Agreements on or before 2 February 2017.
Since the bill's introduction, the Cape York Land Council has advised the government of a small number of ILUAs that were made and registered when none of the members of the registered native title claimant were a party to the ILUA. These agreements are small in number and are the result of circumstances where it may not have been possible or indeed appropriate to obtain the signatures of the members of the registered native title claimant. I have been advised that this practice was confined to very limited situations such as where all members of the registered native title claimant were deceased or where they were not the right people to be party to agreements over a certain area of land in the claim—that is to say, it was not appropriate for them to speak for that part of the country.
One of these agreements, the Western Cape Communities Co-Existence Agreement, was entered into back in 2001 at a time when practice in relation to the negotiation and registration of ILUAs was developing. This agreement has provided and continues to provide considerable benefits to the Indigenous people of Cape York. It would be a significant detriment to these people were this agreement to be invalidated. All of these agreements were accepted for registration by the National Native Title Tribunal and were subject to the usual objections process following lodgement for registration.
The government therefore believes it is important to give effect to requests from the Cape York Land Council to validate these ILUAs. The bill now includes an additional round for application of the retrospective validation provisions where an agreement had been registered on or before 2 February 2017 but no members of the registered native title claimant were party. The measure is confined to retrospectively validating only those agreements that have been already registered and therefore would have been through the rigorous authorisation and objection processes set out by the act. The bill will not validate agreements without signatures where the agreement is under negotiation or not yet registered, and should not be taken to indicate the way in which agreements will be made in the future.
I made my comments fairly clear, I think, in earlier comments. I just note that the Cape York agreements are very much according to customary laws that pertain to the people involved here. Such matters are vital to the nature of native title itself. Obviously, the law under the Western system has required these amendments that are to be made necessary in order to validate those agreements that were done in good faith and under customary law arrangements, as I understand it.
The earliest date, I am advised, is 2001. I am advised that my officials believe there are still some among those nine pending registration. I am sorry; I should clarify—because the bill only validates registered agreements, there are nine registered agreements.
Could I ask the minister how many of these ILUAs that are at risk or that will be regularised by this bill are in my state of Queensland? Attorney, you would appreciate me asking that, as I, like you, am a Queensland representative in this place.
I should just mention that I had the pleasure of meeting with a large number of Indigenous people just last week—I forget when it was; Tuesday, I think—when the Adani corporation came to Townsville and made the official announcement that Townsville would be the headquarters of the Adani project. Of course, that was great news for Townsville, which is currently suffering the highest unemployment, I regret to say, around the country—more than 11 per cent. Youth unemployment is unreasonably and unconscionably high.
This announcement by Adani of anywhere up to 600 new jobs—as I understood them—being created just in the headquarters in Townsville was great news for Townsville. I have to say that I do not always agree with the Labor Mayor of Townsville, but the Labor Mayor of Townsville was totally involved in the announcement and very pleased. The Queensland government was there, represented by the Premier of Queensland—of all people—and some of her ministers, all lauding Adani for establishing their headquarters in Townsville and going ahead with this project that will mean so much to all Queenslanders, particularly Indigenous people. I had the pleasure, at a little function after the announcement, of sitting with a group of Indigenous people. Some of them lawyers—
I have raised the question. I thought, Senator Siewert, that you had asked a series of question, most of which you had already asked at the committee hearing that you attended, so you are simply re-asking the same questions; for what purpose, I do not know. I thought I heard you make—
Thank you. Yes, quite right, Chair. I thought I heard Senator Siewert make quite lengthy statements earlier in this debate; yet, it seems to be, as always, that there is one rule for the Greens, one rule for Senator Siewert and a different rule for everybody else. I would have thought it was important for this debate for senators to understand that Indigenous people are totally behind this amendment and, as an aside might I say, behind the Adani project. But this is not about Adani; this is about a wider thing. Hence, my question to the minister about how many of these Indigenous Land Use Agreements are at risk in Queensland because, Attorney, as I know you know—but I will repeat for other senators who do not—Indigenous people in the area supported this Adani proposal very strongly, almost unanimously. They are very keen to see this particular piece of legislation passed. In fact, last week in Townsville the National Native Title Council met. Whilst I was not party to the meeting, I understand from talking to people that they are all very, very keen. There were a lot of representatives and a lot of Indigenous lawyers there, and they were all saying to me: 'When are you going to get this through? Because we need this. We need this for our people.' They were very keen and very appreciative to the Attorney for acting so quickly. I think the McGlade decision was on 2 February. I know the Attorney introduced this bill on 15 February and it has taken us to the middle of June—
four months, to get here. If it was something that people were wildly opposed to, if Indigenous people were widely opposed to it, one could understand why it might take four months to get to this particular state of being, but I understand that the Labor Party and certainly the Labor Party in Queensland—Premier Palaszczuk and her ministers—are all totally in support of this amendment and always have been. Clearly, if the Labor Party, the coalition and One Nation are so much in favour of this, it amazes me that it has taken us four months to get to this stage where we are almost ready to pass a piece of legislation that has all but the unanimous support of this chamber. People can make their own opinions on the motives of those who have delayed it until this time. I simply come back to my question: Attorney, it is very important for Queensland to know how many of these Indigenous Land Use Agreements will be regularised or confirmed—or whatever the terminology is—when, as appears likely, this amendment is passed.
I should, of course, acknowledge your very, very longstanding role in this chamber as an absolute champion for the people of North Queensland and, in particular, their economic future. So there are 126 registered ILUAs which were affected by the McGlade decision. Of those 126, 109 are in Queensland.
The point at the heart of this amendment, as I understand it, is that you have nine agreements that relate to Cape York—the one claim—and, due to the process by which Cape York deals with native title, they were not signed by any of the named applicants. I am trying to work out the period during which this occurred because I have some questions as to the process that occurred.
I am advised that the way I have described it was the way in which, by custom, this was done in Cape York. I am at pains to make this point: this particular amendment was requested specifically by the Cape York Land Council. The government accepted the Cape York Land Council's request that, in order to protect the interests of the people whom they represent, the bill be amended in this way, which is why we have included it.
I do understand the rationale and I have some sympathy for the way that Cape York has addressed and does address native title decision-making and agreement-making. We went through some of that during the inquiry. What we did not do during the inquiry was go through these issues, because they were not raised at the time by the Cape York institute when we were discussing the amendments. If you read their submission to the inquiry, they actually took quite a different approach. Through that original submission, they did not agree to this legislation. In fact, they are one of the organisations, if I remember the submission correctly, who were saying that you needed to look more specifically at some of the agreements as to whether they should be revisited or not. As I said, I have some sympathy for the way they make decisions and the approach they have taken. However, the point here is that, with no named applicants, they clearly do not even meet the majority approach under Bygrave. In fact, at least one of these agreements was made way before Bygrave.
So before that decision was taken that the majority could sign on—that is what the Bygrave decision was, that you could go with the majority—at least one, if not more, of these agreements were made. They were made way before that interpretation was put into effect—that is my understanding of the situation. How, with all the goodwill in terms of the way that Cape York run their processes, could the register be clearly inconsistent with the act? That has been happening for a significant period of time. How did that occur? Was this flagged at the time? I understand that this relates to some time ago; I am not having a go at the government. I want to know how this process could have occurred when, as I understand it, there was not even an interpretation at the time that no named applicants could sign.
I am advised that the answer is they were signed by representatives of the members of the clan group as their agents. That is the answer to your question.
You seem to me to be raising a question of the legal validity of some of these ILUAs. I cannot speak to that, but if there were to be such a question then that is a matter for the courts.
The ILUAs were authorised and registered through the appropriate registration process. I cannot speak to the formal requirements of the National Native Title Tribunal in accepting ILUAs for registration, but they were formally registered. The Cape York Land Council, which exists to protect the interests of members of claimant groups, have asked that this amendment that be included in the bill in order to protect their interests. You are asking me about historical processes about which I am not in a position to advise you.
The register at the time must have used a process where there were no named applicants. I understand the issues that have been raised, but the fact is that it was not consistent with the law. How can we be confident that none of these other ILUAs are in the same situation, where maybe the registrar made up their own rules about what they would or would not accept?
As I said a moment ago, you are asking me about historical events and processes about which I am not in a position to speak. But I am advised that the manner in which this was done was that representatives or agents, acting on behalf of members of the claimant group, caused the registration to be effected and that was accepted by the tribunal. It is not right to say that there were no named applicants. I am advised that there were, but the signatories on their behalf were representatives signing on their behalf. That was accepted by the registrar as being sufficient compliance with the provisions of the act.
Attorney, can I just clarify this? I think you have said it twice, but from the way this debate is proceeding I perhaps am not sure of my hearing. Is it a fact that the Cape York Land Council, who I know to be to be made up of very responsible and intelligent people, have looked into this very carefully—looked into it with the best interests of not only clan groups from Cape York but all those affected by native title legislation? They have looked into this very carefully. They have asked for this particular amendment—I am sure you have said that three times already. The debate is being dragged out for reasons that I do not understand and there seems to be questioning of the ability or the authority of the Cape York Land Council to deal with this amendment and to make the request or to consult with you on the amendment.
What might have happened in years gone by is, I am sure, interesting for the history books. I am sure if it were relevant to this amendment then those at the Cape York Land Council and, indeed, those at the Native Title Council would have all fully considered this. They obviously do not think this interesting sojourn into past history is of any relevance to matters today, to matters relating to this bill, and to the interests of Indigenous people right around Australia, because I am sure if they thought these were relevant, if they thought it were necessary for this parliament to go into past history, then they would have raised that with you. I am assuming that they have not, but I seek your confirmation again that this is an amendment that the Cape York Land Council—intelligent, capable people themselves—have asked for and are desirous of seeing passed through this parliament at the earliest possible time.
Yes, Senator, that is correct. I met with the representatives of the Cape York Land Council on 27 April. That was part of the non-consultation that has been alleged. They requested this amendment of me. An amendment to meet their wishes was prepared and shared with them for careful study. That was another aspect of the non-consultation that was said to have occurred or the consultation that was said never to have occurred, and the Cape York Land Council have asked, as part of the failure to consult them, the government to amend the bill in this way, and the government has agreed, which is why this government amendment is being moved. This is part of the absence of the consensus that has been pointed to by the Greens. So every native title council in Australia was consulted and every single one has agreed to this bill, and, particularly in relation to the Cape York Land Council who particularly asked for this very amendment to protect the interests of their people, this is the amendment they asked for that I am moving.
Senator Brandis, perhaps you could share with the chamber the process that you went through to take this to the reps bodies, because I and a number of other senators have received a letter from the NLC, the Northern Land Council, expressing their concerns. Ultimately, I do understand that you agreed to amend the original amendment that you proposed here, but I think it is clear, certainly from the correspondence that I received, that there was concern from other representative bodies about this approach. I will accept that they ultimately agreed—I understand, with some reluctance—to the amendments that you subsequently made to the original amendment.
Senator, rather than prolong the debate, I will merely refer you to my remarks last night in winding up the second reading debate in which I did that very thing and explained at length the consultations that occurred. You say 'reluctance' on the part of the Northern Land Council. The fact is that the Northern Land Council, like every other land council in the country, has asked for the parliament to pass this bill in this form and to do it urgently.
I notice very clearly that you did not answer the question that I just asked, which was for you to explain the NLC's original concern. I would like to go back to the question that I asked and the points that I raised earlier. I understand the Cape York decision-making process. They explained it, and I have a lot of sympathy for it. But the fact is that it does not meet the requirements of the legislation at the time. How many of these agreements—not just Cape York but others—had representatives sign onto them as part of the majority?
I do not seek to prolong this. I want to get these answers; and I am not going to get these answers. It is clear that these agreements, for all the goodwill in the world, did not meet the provisions of the Native Title Act. That is why you are having to validate them in this way. A 'representative of the named applicant'? How many other times has a 'representative of the named applicant' signed on?
I am not having a go at Cape York about this; I am having a go at the fact that these were registered in the first place. We cannot be confident that there was not some other interpretation used for some of the other agreements that have been registered. It is not just about Cape York; it is about all of them and in what other circumstances this has occurred. That is why people are concerned. That is why we remain concerned about this blanket agreement supporting all these ILUAs. These were not consistent with the law. I acknowledge that there was probably goodwill on most of them, but we do not know. That is why we had a lot of sympathy and support for the submissions to the inquiry that said that we should be looking at these agreements in more detail rather than just signing them all off. Minister, I note that the piece of paper that you tabled—and thank you—says at the end:
This information was provided in good faith by the National Native Title Tribunal and should be treated as sensitive. A more extensive review of the ILUA register and each ILUA would need to be conducted to confirm these figures.
So, in other words, you cannot confirm that it is just 126. You cannot give me the list of those that extinguish native title.
We have at least nine agreements that we know that no registered claimants signed on to. Some had representatives sign on and there was one where the claimant, as I understand it, was deceased. That is why there are still so many questions over what you say is a really simple piece of legislation. It is not. That is why the Greens cannot support this agreement, despite having sympathy for the approach that the Cape York council takes in terms of one claim having representatives from the regions involved as named applicants and then getting specific traditional owners to sign off on some agreements. I understand that. There are too many open questions about how these were registered in the first place. They were not consistent with the law—however you want to spin it. That is why we cannot sign on to this amendment.
Senator Siewert, I note the point you make, and let me just respond to two respects. First of all, the list of 126 is the advice to the government of the Native Title Tribunal. They have included that reservation out of abundant caution, but that is their advice to the government of the number of ILUAs—126. That is the best advice and evidence we have.
Secondly, in relation to the question you raise about the registration of the Cape York ILUAs, the Native Title Act, as I am sure you know, provides for a procedure whereby an agreement will be registered if it appears to meet the formal requirements of the act, and that is a matter for the registrar. The registrar, plainly, by accepting these agreements, formed the view that they met the formal requirements of the act. That has never been challenged, so far as I am aware, in any court of law, which is the appropriate forum—not here—for such an argument to be made. In any event, I do not understand you to be suggesting otherwise. The Cape York Land Council, by urging the government to move this amendment, is merely looking after the best interests of the people of Cape York and particularly the native title owners. For that reason, I ask you to now allow the amendment to proceed to a vote.
No, I have not, although I have met Mr Ian Macfarlane and those who advise him from the Queensland Resources Council, who are obviously interested stakeholders. But I have not met any particular mining companies, no.
We discussed aspects of the bill and their application, including the Cape York amendment, as a matter of fact, because the Queensland Resources Council was supportive of the Cape York Land Council's position.
I think it was after—I would have to check my diary. Certainly, I had meetings with them after the bill was introduced. I also spoke with Mr Macfarlane on the telephone a few times. Whether I had a telephone conversation with him between McGlade on 2 February and when the bill was introduced on 15 February, I do not know. I have no recollection of having done so, but I may have done.
If you could take that on notice that would be appreciated. What are being referred to as the Cape York amendments were only introduced very recently—subsequent, I understand, to the meeting in Melbourne. You were aware of those issues some time before the first set of amendments were introduced?
No, I do not think so, nor do I understand what when I became aware of an issue has to do with the bill. It has got nothing to do with the bill. However, not so far as I can recall. I do not think so, no.
I will not be doing that, Senator, because I have told you everything I can tell you about that.
The CHAIR: Minister, if you can wait until Senator Siewert finishes her question I will give you the call. Have you finished, Senator Siewert?
I had not.
The CHAIR: Please continue.
You can tell us more, Senator Brandis. You can tell us when you actually met with the Queensland Resources Council. Also, you have already said you discussed the Cape York situation. I am trying to work out when you found out about those amendments, because we did not know about those amendments when we had the Senate inquiry. I understand the representative bodies did not know about those amendments until that meeting in April.
I think I have already answered your question, Senator. To the best of my recollection, this was first raised on 27 April, when I met with the Cape York Land Council.
The CHAIR: The question is that the amendment on sheet ZA431 be agreed to.
Question agreed to.
by leave—could I have our vote of 'No' recorded, please?
The CHAIR: So recorded.
by leave—I move Greens amendments (1), (2) and (5) on sheet 8161 together:
(1) Schedule 1, item 9, page 5 (line 26), at the end of subitem (1), add:
; and (e) the agreement was registered on the Register of Indigenous Land Use Agreements on or before 2 February 2017.
(2) Schedule 1, item 9, page 5 (lines 30 to 32), omit “Without limiting subitem (2), if on or before 2 February 2017 the agreement was registered on the Register of Indigenous Land Use Agreements, then the”, substitute “The”.
(5) Schedule 1, item 12, page 7 (lines 13 to 16), omit subitem (1), substitute:
(1) This item applies to an agreement if, if the agreement had been registered on the Register of Indigenous Land Use Agreements on or before 2 February 2017, item 9 would have applied to the agreement except for the application of subitem 9(4).
We also oppose schedule 1 in the following terms:
(3) Schedule 1, item 10, page 6 (lines 11 to 27), to be opposed.
(4) Schedule 1, item 11, page 6 (line 28) to page 7 (line 11), to be opposed.
We are opposed to clause 10, which deals with validating the applications that are currently before the registrar—in other words, where agreements have been discussed, applications have been made and they are before the registrar. The Adani agreement is one of those. The other amendments there relate to the consequences that taking that section out have. Because these are counted as agreements they are also included under clause 9 in the bill, so we are amending that to address that situation. We are also amending clause 12 because it is a different situation for the south-west agreements. That is the basis of these amendments. We think that, if we take out of the process the Adani application and those pending agreements that are clearly not registered and clearly do not have consensus decisions, that would be a more satisfactory approach to dealing with the particular matters.
The government will be opposing these Greens amendments because their effect would be to confine the bill to registered agreements. Agreements that have been authorised by the entire claim group but not yet registered would be left out if the Greens amendments were to be accepted. The government does not accept that such agreements should be excluded from the bill. The government's approach respects the choices of Australia's traditional owners; the Greens' approach does not. I remind the chamber once again that the bill in the form in which it currently stands, with the government amendments recommended by the Native Title Council and particularly the Cape York amendment, is now the bill that native title owners have asked this parliament to pass.
Labor will be opposing these Greens amendments as well. For all the discussion I have heard about consultation with Indigenous peoples, I have no indication that these proposals have gone anywhere near the native title rep bodies. They have been put forward at the last minute in my view. They are beyond the scope of the agreed position that the Senate committee came to. The more important matter around extinguishment that I heard raised is a very important point of policy, but that is for another day. I certainly repudiate the allegation made against Labor that we are simply rolling over and trashing native title rights. We have stood up for native title rights and we will continue to do so. What I have heard in this debate is primarily about Adani and a coalmine, and that is a bit sad.
With all due respect, Senator Dodson, you know as well as I do that the timing on this is directly related to Adani. There are significant points of conflict around the Adani decision-making process. You heard the same arguments I did through the Senate inquiry, where there was very strong dispute about their decision-making process, specifically related to the Adani mine. I would have loved for this discussion not to be about Adani. In fact, the Native Title Council has raised the issue with the government. It is clearly on the record that it had been asking for some time before the McGlade case came up for this issue to be addressed.
What has pushed the government's buttons is Adani—let's make that clear. I am really regretful that the debate on this has had to centre on Adani, which is clearly the government's agenda. If we take this off, we take some of the heat out of that discussion. By not supporting this amendment gives the government one more way to support the Adani coalmine. Senator Macdonald was in here not long ago saying, 'Oh, they are talking about 600 more jobs in Townsville.' I for one know that we need more jobs—you cannot hold the portfolios I hold without knowing that—but killing the reef is going to kill a lot more jobs, and that is what this project will do. We can address that issue here and not facilitate the development and not go against the wishes of the majority. It is not just a minority of people in this case of Adani—there are really strong claims that this process was manipulated and that it does not have majority support. Take that off the table, and that is what this amendment does, and you take that argument somewhere else. I commend the amendments to the chamber.
The CHAIR: The question is that the amendments as moved by Senator Siewert on sheet 8161 be agreed to.
The CHAIR: The question now is that item 10 of schedule 1 stand as printed.
Question agreed to.