Senate debates

Thursday, 12 November 2020


Native Title Amendment (Infrastructure and Public Facilities) Bill 2020; Second Reading

1:43 pm

Photo of Patrick DodsonPatrick Dodson (WA, Australian Labor Party, Shadow Assistant Minister for Reconciliation) Share this | | Hansard source

I rise to speak on the Native Title Amendment (Infrastructure and Public Facilities) Bill 2020. In 2010, the Labor government introduced subdivision JA into the Native Title Act 1993. That subdivision enabled the urgent construction of public housing and a limited class of community facilities, including education, health and emergency services facilities, as well as staff housing associated with these facilities, on land in Indigenous communities that is or may be subject to native title. The process of subdivision JA is available where the facilities are constructed by or on behalf of the Crown, a local government body or other statutory authority. In essence, this subdivision was introduced by Labor when it was last in government to deal with a situation where there was an urgent need for the construction of public housing or other public facilities on land subject to native title. The subdivision provides for a degree of consultation with affected parties, including periods for comment on any proposed construction.

When introduced, the provision included a 10-year sunset clause, which was to approximate the duration of the National Partnership Agreement on Remote Indigenous Housing, which Labor had put in place. This bill will extend the operations for a further 10 years, and Labor supports that extension. The provision has been used sparingly over the decade that it has been in force and it has been a very useful means of helping to facilitate the building of necessary facilities on land subject to native title. Nevertheless, I am aware of concerns in some First Nations communities about consultations in relation to the construction of housing and other facilities. This includes the need for consultation, not just before construction but also during construction and after construction is completed, to ensure that the facilities are being used and managed in a way that is consistent with community needs and desires. With this in mind, I take this opportunity to encourage the government to ensure this subdivision continues to be used only when strictly necessary to facilitate urgent construction. I also call on the government to ensure that, at all times, proper, good-faith consultations take place with affected communities.

The legal framework contains a number of safeguards for consultation. This includes a requirement that affected parties should be given notice and an opportunity to comment on proposed construction. Furthermore, the subdivision requires consultation to take place at the request of affected parties and ensures that construction cannot commence before the consultation period ends. The Attorney-General has oversight of each of these steps by virtue of reports required from the bodies seeking to undertake construction. Importantly, subdivision JA enables the Attorney-General to prescribe how consultations with native title parties should occur, including putting in place specific requirements. These provisions for consultation are an essential part of Labor's original design for subdivision JA.

But legislation alone doesn't ensure that proper consultation occurs. Meaningful consultation requires good faith, commitment and integrity on the part of the parties. It cannot be a box-ticking exercise. Too often we've seen First Nations concerns about the use of their lands disregarded and overridden. Examples of this abound, but one clear and devastating illustration is the destruction of the 46,000-year-old Juukan rock shelters in May this year. What this event exposed is how little genuine understanding there is of the unique spiritual connection that First Nations have with their lands, and how little respect is afforded to that connection in our national laws and practices.

We've seen the failure of governments, when consulting, to consider the diversity of perspectives that may exist among native title holders. In the native title space, consultations that only occur with representative bodies may sideline important voices. Efforts should be made to ensure that native title holders are directly engaged wherever possible. In order to facilitate proper consultations, the provisions of subdivision JA must be given effect by the Attorney-General and this government. The Attorney-General must engage in oversight of the consultation processes as envisaged by the legal regime. He must use his powers to prescribe consultation requirements that suit the needs of communities and give integrity to the processes outlined in the legislation. I urge the Attorney-General and the government to listen to the concerns of First Nations communities and to use these provisions sparingly and in good faith.

I wish to note that when subdivision JA was introduced it was accompanied by a significant financial investment by the then Labor government to address historic underfunding of housing in remote Indigenous communities. This stands in contrast to this government's approach, which has been to walk away from remote housing. This year's budget only included remote-housing-specific funding for the Northern Territory and Queensland, even when the funding provided doesn't fulfil the existing need and ongoing demands. Housing is a critical part of ensuring an adequate standard of living and basic human rights for First Nations peoples, especially those living remotely. The Commonwealth should be actively engaged in ensuring these rights are upheld.

In conclusion, Labor supports this bill, but we do urge the government to take note of concerns raised and, most importantly, to listen to First Nations in the exercise of the powers conferred by these provisions.

1:51 pm

Photo of Lidia ThorpeLidia Thorpe (Victoria, Australian Greens) Share this | | Hansard source

I want to notify the chamber that this is not my first speech. The Greens will not support the Native Title Amendment (Infrastructure and Public Facilities) Bill 2020 for the simple reason that it is against the rights and protections that are given to all Aboriginal and Torres Strait Islander people under the United Nations Declaration on the Rights of Indigenous Peoples, in particular the right to free, prior and informed consent.

We will be moving amendments to this bill. Instead of extending the operation of section 24JAA by another 10 years, as the government has proposed, we are proposing to extend it by only one more year. In our view, the minister has not made the case for why a 10-year extension is required. The minister has not clearly outlined how or when native title claimants and traditional owners have been so unreasonable that proper negotiation and consultation should be ditched. It's sad that the need for more public homes in our communities is being used as a wedge by this government to undermine the fundamental rights of traditional owners to have full prior and informed consent on everything that happens on country. If the minister were serious about negotiations with traditional owners, he would have funded prescribed body corporates properly and would not have needed to rely on a 10-year extension to section 24JAA. Our amendment would give the government one more year to make its case as to why an extension to that section is needed and then come back to this place and make a case properly and transparently.

The government has got some gall putting this bill up during NAIDOC Week, particularly when the NAIDOC theme is 'Always Was, Always Will Be' Aboriginal land. It's important to tell some truths. Healing starts with truth-telling. The truth is that NAIDOC Week is when we celebrate the history, culture and achievements of our people but also when we celebrate and honour our struggle and the struggles of our ancestors and elders—struggles that began in the very moment this continent was invaded. The truth is that NAIDOC Week has its roots in protest and resistance, especially the Day of Mourning, which was observed by our people in 1938, on the 150th anniversary of Invasion Day. The truth is that the Day of Mourning was commemorating 150 years of the brutal, cruel and savage treatment of our people. It was a protest against the genocide of our people, the theft of our land and the attempts to destroy our cultures and our languages. The truth is that these are not things that belong in the past; these are things that are happening right now. It's not lost on me that this place was not built for me or for my people. The government won't even fly our flag in this place!

I stand here, in this place, as a proud traditional owner and a native title holder. I know what it's like to navigate my way through the native title obstacle course, which is what it is. Minister Wyatt's view is that when Indigenous Land Use Agreements are not possible, section 24JAA would kick in to build infrastructure on country against the wishes of traditional owners on the assumption that the government knows best about what our communities need. The minister also assumes that the government can be trusted to be fair and reasonable and consult widely with our people; not just with registered native title claimants, but with everyone, including all Aboriginal people on country. We know this is not the case. They can't even be trusted to fly our flag.

Under the bill, there is no legal requirement that agreement, via an Indigenous Land Use Agreement, be achieved first. The government hasn't provided any information about why it can't just rely on an ILUA. The government hasn't provided any proper justification as to why it can't just continue to rely on ILUAs. Let's tell the truth. What this bill really does is completely bulldoze through the wishes of traditional owners by allowing the government to completely bypass them about what gets built on their country.

The government bill also doesn't require consultation that has free, prior and informed consent as an endgame. It's not clear if native title holders could substantially influence the outcome of decisions of what happens on country. Any consultation process that doesn't have full prior and informed consent as its end goal is not consultative at all. If traditional owners or native title holders can't or don't agree with the government about what gets built on their country, then that's usually for a good reason. This bill gives the government the upper hand in negotiation, because, if negotiation breaks down, the government will get to do whatever it wants anyway. That's not right. This is why we are not supporting this bill.

As I said, this bill is not in line with the United Nations Declaration of the Rights of Indigenous People that everything that happens on country needs free, prior and informed consent. Look it up, people! Why does the government need an act of parliament to negotiate with traditional owners? What is so hard about sitting down and talking to people? As traditional owners, we demand our rights as sovereign people—that's right, we are sovereign people; we haven't ceded our sovereignty in this country—just another reminder of that, too—and we demand to have a say on all our affairs.

Minister Wyatt has said that extending section 24JAA for another 10 years would or could be used to build more public homes. Has the government only now just realised that we need more public homes? This government has been in power for seven years. It's just now realising that it needs to build more public homes in rural and remote communities, and of course it will continue to disrespect Indigenous people because the question of sovereignty cannot be addressed in this country. Who are the real sovereigns of this country, I ask? This is how much governments don't listen. We've been telling them for years. If the government wanted to do something about building more public homes, it would have done something about it already. It would not have waited until the section was about to expire to suddenly realise it needed to act. It's sad that the dire need for more public homes is being used as a wedge. I remind senators that this bill is not only about more public homes, but also other types of infrastructure that community may not want.

Under this bill, the government—

Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

Order! Senator Thorpe, you will be in continuation when debate resumes.