Tuesday, 30 November 2021
Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021; Second Reading
As I was saying, the bill before you today, on the other hand, does not achieve what it set out to do, which was to strengthen our land rights and lead to economic empowerment. If you want to honestly benefit First Nations people in the Northern Territory then include them in the changes that concern them. Listen properly and work from that. I don't mean just the land councils and the various Native Title corporations—no, I mean the communities and the people on the ground. Acting Deputy President, I foreshadow my second reading amendment.
Yes, I move:
At the end of the motion, add ", but the Senate notes that:
(a) this bill proposes the most substantial changes to the Aboriginal Land Rights (Northern Territory) Act since it commenced in 1976;
(b) an overwhelming majority of submitters to the Finance and Public Administration Legislation Committee's inquiry into this bill recommended that it not be passed, mainly due to insufficient and inadequate consultation about the changes contained in it;
(c) submitters to the inquiry noted that consultation during the bill's development was only conducted with Land Councils and no free, prior and informed consent was obtained from Traditional Owner communities and non-land holding First Nations people in the Northern Territory; and
(d) the Government has failed to conduct extensive, open, transparent, direct and independently facilitated consultation with all affected First Nations communities across the Northern Territory on this bill".
I rise to make a contribution to the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021. This bill makes some significant changes to the exploration and mining approvals on Aboriginal land in the Northern Territory. I echo the concerns raised by my colleague Senator Thorpe, who's done a considerable amount of work on this bill.
The Australian Greens have strong concerns about the changes to this bill that make exploration and mining approvals in the Northern Territory. The government claims that these changes will be streamlined and modernised towards mining in the Northern Territory and reduce red tape. This government is famous for using euphemisms and jargon to hide its motives, so when they say 'streamlined and modernised', what do they actually mean? There's no doubt this bill is being rushed through parliament at the expense of proper consultation with First Nations communities.
The Northern Territory has some of the strongest cultural heritage protections in the country. It's the only jurisdiction in Australia that provides traditional owners with the right to veto, the right to refuse exploration and mining activities on their country. This is incredibly powerful and should not be diminished, under any circumstances, and there are strong concerns from right across the communities that this bill could result in the right to veto being weakened. This include concerns about the impact of removing checks and balances from current mining approval processes, which means they're not protecting country. It's unclear if the proposed amendments dilute the ability of traditional owners to say no to mining on their land.
Some of the Aboriginal corporations provided powerful evidence, in the bill's inquiry, outlining their concerns. They explained that the changes being proposed by the government to mining approvals are complex and impossible to understand in such a short period of time. One corporation said in its submission:
The Coalition Government says that they will make the processes more efficient for the Minister, NIAA and miners without impacting on the rights of traditional owners. It is not clear, however, whether there is any benefit to Aboriginal people from these amendments. More importantly, there is no independent evidence produced that assesses the impact for traditional owners and the valuable right they have to consent to exploration on their land.
One of the independent First Nations MPs in the NT explained why any of these changes to exploration and mining approval processes need to align with the principle of free, prior and informed consent. He said that for this reason any amendments to this section of the law must result in robust processes that protect landowners' rights and interests and reinforce the principle of free, prior and informed consent.
There should never be a decision made for us. The land councils are intermediatory; they're not the decision-makers. I am concerned that any amendments to streamlining approval processes and creating greater flexibility may come at the cost of landowners' autonomy. These amendments require a high level of scrutiny that ensures that this doesn't happen.
The proposed changes in the bill enable land councils to convene meetings with traditional owners, and they must do that when that's considered 'appropriate'—rather than necessary—for the purposes of considering exploration licence applications. Professor Altman explained:
This discretion to provide land councils with greater flexibility might result in more or fewer meetings, but the power to convene such meetings seems to lie entirely with land councils, not traditional owners.
It's possible that land councils could restrict meetings in order to prevent objections to a mining project being raised by the traditional owners. Given that, in practice, land councils do not always obtain free, prior and informed consent from traditional owners, the Greens are deeply concerned about the bill's provision for land councils to take a more flexible approach to consulting with traditional owners about mining and exploration proposals. This provision carries the risk of less consultation and, as Senator Thorpe said before, consultation is not consent. Consultation can be undertaken and consent is then assumed when none has been explicitly granted.
It is clear that traditional owners were not consulted about the changes this bill proposes to the Aboriginal Land Rights (Northern Territory) Act 1976. They did not give explicit consent and they did not, in most cases, even know about these changes. It's not good enough for the government to explain these proposed changes by virtue of their benefits for industry and land councils. This is absolutely unacceptable. As explained by the Australian Human Rights Commission:
Without clarity and transparency as to how representative the support for this legislation is, there is no certainty that the changes proposed in this Bill have the free, prior and informed consent of the Aboriginal Territorians affected.
The Greens will be opposing schedule 2 of this bill—which proposes changes to the exploration and mining approvals processes—on the basis that free, prior and informed consent to these changes has not occurred. And there is a high degree of uncertainty around what impact these changes will have on the ground.
For too long in this country, mining companies have got away with manufacturing consent. Free, prior and informed consent is not taken seriously by the likes of Rio Tinto, BHP or Woodside. It is seen as a box-ticking exercise and it's used to buy off First Nations people to enable the destruction of cultural heritage. We see this happening right across the country—from Western Australia to Queensland to Victoria to the Northern Territory. In Beetaloo we saw consent being manufactured, when First Nations families were left out of the consultation processes on purpose. In fact, the committee heard evidence that NLC and Origin Energy did not properly communicate or consult with native-title holders from 11 determinations of native title across the Beetaloo. In my home state we have a system that legally permits the destruction of cultural heritage—every single day. Juukan Gorge is one example of traditional owners being forced to sign an agreement with a gag clause that stops them from speaking out about what's happening on their country. Gag clauses fly in the face of free, prior and informed consent, and they must be stopped.
At the moment state and federal laws do not properly consider the social and environmental impacts of the destruction of country. The rock art in the Murujuga is being eaten away by the acid gas from the Scarborough gas project—and yet the state and federal approvals for the Scarborough project do not require an assessment of how greenhouse gas emissions will impact on cultural heritage. This is a massive oversight.
So what does free, prior and informed consent really look like? Firstly, it means that consent is freely given—that is, free of coercion or pressure from any other party. It means that consultation is undertaken with all First Nations people impacted by the proposal, regardless of whether they're represented by a land council or not. It also means that First Nations people have full access to all of the information about how the proposal will impact on their community and their country. And this information needs to be provided in different languages and formats, to ensure that First Nations people who have English as their second, fourth, or sixth language are able to fully understand the proposal.
Accessible information is especially important in the context of mining agreements, which are usually full of legal jargon. I am deeply hurt when I hear about elders being forced to sign documents they don't understand by land councils and proponents. Obtaining informed consent also means providing independent assessment of harm to country as well as the social, cultural and environmental impacts of the project. True free, prior and informed consent means the outcome is not predetermined. Time and space are provided for extensive deliberation. First Nations people have the right to object to a proposal. They have the right to veto, and that is powerful. It's a powerful choice and its importance cannot be understated.
Finally, I want to touch on the sequence in which free, prior and informed consent needs to be undertaken, which is something that is often misunderstood by mining companies and the government. Free, prior and informed consent is not—it is not—a side dish; it is not something that can be dipped in and out of when it suits the mining company. It needs to be taken in a methodical way that allows First Nations people to lead this process. Anything short of that is manufactured consent.
Yesterday the government announced a new partnership with First Nations Heritage Protection Alliance to strengthen the safeguards of First Nations cultural heritage in this country. Minister Ley said the partnership will develop options to improve the laws, policies and processes that promote and protect the unique Indigenous heritage that exists in Australia. If this government were serious about strengthening cultural heritage protections in this country they would stop and engage in extensive, open and transparent consultation with all Northern Territory First Nations people who will be affected by this bill.
I would like to make remarks about the amendments to the land rights act. I note that these are strongly held views by people in this chamber. I would say that all the contributions I have heard so far are valuable. I would prefer that more people took a view about these things, because they are very important. The land rights system we have, which was put in place in 1976 by the Fraser government, was the culmination of a lot of advocacy from Indigenous people over many decades which had been rebuffed again and again. When you go back and talk to people like Ian Viner, who was the minister at the time in the Fraser government, who put in place the '76 Land Rights Act, with bipartisan support from the Labor Party, I don't know that there would have been any prospect that you would come to 2021 and more than half the Northern Territory would be controlled by Indigenous people through these land councils. That is a very, very significant turnaround over just a few decades.
I have to say, in preparing this contribution, it occurred to me that when this parliament does make laws for Indigenous people—and Indigenous people are the only group of Australians who have an extensive set of laws made by this parliament for them—we could do a better job of consulting with them. I don't know that we get all the information that we should have when we consider these amendments, and that has been my view since I've been here for these past two years. Last year we considered a bill to amend the Native Title Act, and I'm not sure that we really knew what the views were about that on the ground. I think that is a great shame, and it is one of the reasons I have been of the view that we should put in place a formal consultation mechanism, a voice—call it whatever you like—that is clearly missing in this system of government in Australia. I am anxious and keen that we get that right, because we should hear the voices of people on the ground. There should be the opportunity for people to have special laws made for them to have their say.
In relation to this particular bill—and I understand that it has been the culmination of three or four years of work—I understand that there has been significant consultation with the two major land councils in the Northern Territory and with the 14 constituent bodies, and there is very strong support from the land councils. As far as I can see, there is strong support from their constituents as well. Mixed views about this have been expressed in the parliament today, and I respect that. That has not been raised with me prior to this contribution. In fact, the information I have is that there is strong support amongst the land councils. I understand that the land councils aren't the traditional owners, but my understanding is that they have undertaken significant consultation. Minister Wyatt, who is the first Indigenous person to serve in the cabinet of Australia and to serve in this portfolio, is very committed to consultation and very committed to co-design, as has been his mantra whilst in office.
This bill effectively does three things. It establishes a new entity, the Aboriginal Investment Corporation. It puts in place some corporate governance changes and amends the control and consent arrangements for access to land. I think it's a very good concept to move to an investment approach. I think it's a very good opportunity for Indigenous people to take more control of their assets, their land and their capital, and the removal of ministerial discretion and the removal of ministerial oversight for some of these things is exactly what we should be doing. If one thing is for sure in this area, it is that paternalism has not worked, so anything we can do to empower people on the ground to run their own affairs in the way they would wish is absolutely desirable. I think these will be seen as landmark reforms in years to come.
Of course, there are different rules and laws that apply to the land council system. It has often been said that Indigenous Australians should have access to freehold title, to the same economic opportunities as non-Indigenous Australians, and I think that's right. We want to ensure that Indigenous people have every opportunity to fully participate in the economy of Australia and the world, and anything we can do to drive control of these investments—which is what they will be—is a good thing. But we also want to make sure that individuals can access freehold title in time.
These laws build on a very important tradition in the Australian legal system that commenced in 1976 with land rights, which is that the parliament will enact laws for the benefit of Indigenous people. I think that has been a long-held commitment. What we have failed to do in the past is to properly consult Indigenous people on how those laws are to be made and are to be amended. I believe this is a very good example of why you need to have an Indigenous voice, why you need to formalise consultation on these special laws—because no other Australians have special laws like this, and we are running more than a dozen special laws on the books here in Canberra for Indigenous people. So, the way that we consult people on these special laws is important.
I regret to say there is a lot of ignorance about some of these issues and about the legal system we have in Australia as it applies to Indigenous people. So, as a liberal principle, I would say denying people a say over special laws is fundamentally illiberal and that's why I am committed to improving consultation with Indigenous people. But, having said all that, these particular provisions will improve opportunities for people on the ground in the Northern Territory, and I look forward to more commitment to consultation and co-design in the future.
Well, who would have thought over 40 years ago when we had no land in the Northern Territory for First Nations people that we would be here four decades and some later arguing over minor amendments, really, in the land rights act. Let me share with the Senate. In 1976, the Yanyuwa people were the first under the Aboriginal Land Rights (Northern Territory) Act. to go for land. It was in the old police station on Yanyuwa country that my grandfather sat with my grandmother and other families trying to prove who they were as First Nations people in this country. It took Vincent Lingiari and the Gurindji people of that country eight years, supported not only by the union movement but, more importantly, by First Nations people surrounding those lands.
So when this act came in, in 1976, yes, Gough Whitlam, first raised it. Malcolm Fraser enacted it. It was the Yanyuwa who were the first to challenge, to test, to try it out. Those elders stood in the witness box in the old police station which had remnants of members being caught in the cells, very recent and horrible memories of the massacres of that area, and there was indeed an absolute passion and hope that lives would change. But it was not to be. Why? Because there were too many issues, too many things that the new land councils of the day had to work through—lawyers, constitutional lawyers—so the Yanyuwa lost. They got a little bit of land in the Gulf country around the islands but it wasn't until 1992, over 20 years later, that we could try again. In the meantime, we fought successive governments, which happened to be the Country Liberal Party at the time, for every single bit of land that we could fight for, and fight we did.
People were told that Uluru was going to disappear because it was being returned to the Anangu people; the sky would cave in. That was the attitude of the day. There is no way any of my elders standing in that police station giving evidence would have thought in a million years that First Nations people would own nearly 50 per cent of the Northern Territory land mass.
What we have here before us, whilst important, is twinkling around the edges, tweaking around to provide the support that's required in places that have been taken away, for example, under Prime Minister John Howard, with the 2007 Intervention, now being recorrected—if that is possible—in this legislation today. For First Nations people in the Northern Territory, it has been a constant, constant battle to prove who they are.
Over the years, we saw the development, after the Northern Land Council, of the Central Land Council, to cater for the First Nations people in the central region, who were represented by over 70 delegates to the Central Land Council meeting, which I attended, just a couple of weeks ago. After the Central Land Council, you then had two more land councils come into being: the Tiwi Land Council, to protect the interests of the Tiwis, north of Darwin, on that beautiful country, where the Tiwis saw the first bombs come into Darwin. Then, over to the east, you have the Anindilyakwa people of Groote Eylandt, who—surprise, surprise—work very effectively with their local mining company. Yes, they have their issues, but they've also succeeded in places that perhaps even the other land councils could learn from—and not just other land councils but other communities.
So these are the four land councils that have come together, since 2016, 2017 and 2018, to talk about many of the issues that this legislation covers here in terms of the request for change. The problem is that, in the past, there have been successive ministers who have perhaps not been able to achieve what's being achieved here by bringing this legislation before the Senate. Yes, it has its faults. There's no doubt about that.
When we talk about 50 per cent of the Northern Territory's landmass now being Aboriginal land, which also includes rights to the sea country, the priority has to be around economic empowerment. We cannot keep standing in this Senate, or in the other House, and talking about the disadvantage when we have First Nations people owning nearly 50 per cent of the land. It's not just one section here that is failing; it is a combination of sectors that are failing to assist in lifting opportunities for the people up north.
It's in this context that we view these amendments to the Aboriginal Lands Rights (Northern Territory) Act. These amendments have been a long time coming and are made with the strong support of those four land councils, which didn't exist four decades ago. Does that mean that these land councils are above reproach? No, it does not. Does that mean that they are perfect? No. They most certainly are not. Does that mean that they can themselves improve in order to assist the very constituents they are there to support? Yes, they most certainly can do that, but we can do that too, as the Australian parliament. It works hand in hand when this act is a product of this parliament.
The support of the land councils is significant, because there are those of us who remember the battles. Let me tell you: if there were no land councils, those battles would return quick and fast. There is a history of amendments to this very act without the consultation of land councils. We only have to refer to reviews of the past, where papers were burnt because no traditional owners in those four land councils were a part of that. It's interesting to see that we've come this far, where now we have the questions around consent and the questions around inclusion. We need to listen to those questions, as a parliament, and the land councils need to listen too, because it is an example of how far you have grown, and the growth and maturity of First Nations people in the Northern Territory through the land councils. But there are also those who feel that they are missing out. Why are they feeling that they are missing out? Why do traditional owners who are not a part of these land councils at the moment feel so disenfranchised? Who is asking those questions within the land councils? Who is asking those questions beyond the land councils?
We know that there are 83 members of the Northern Land Council. Every three years, 78 members are elected and five are co-opted. Let's have a look at the question of how those elections take place. Is that something the parliament, the land councils and traditional owners need to ask themselves? Is that a fair process? Is it a process that still reflects how this act began? Usually, parliaments review acts. The 1976 Aboriginal Land Rights Act, in terms of the election of its people, may also at some point need to be looked at in fairness to the growth and the development of all those families across the Northern Territory and in fairness to the growth and development of the land councils themselves.
If we are to achieve true economic empowerment, we must open ourselves up to the very strong realistic position of transparency and accountability, not just to ourselves in the Senate as the Australian parliament but also as I stand before you as a traditional owner of those lands. We as traditional owners need to be open and transparent, too. We need to be able to feel confident in a system that enables us to have a voice within that system. I know that there are so many who do not feel they have that. Why? Perhaps because they weren't around in 1976. Perhaps, unlike me—I was only a little girl—they were not even born. But that does not mean that they are not important. In fact, for Yanyuwa, we are known as jungkayi and ngimarringki. My sons are the jungkayi for me. How are they reflected in these land councils? Are they considered as traditional owners?
If I can stand here in the Senate and ask these questions, then I fully understand why there are traditional owners out there who ask the very same thing. It is important to have these debates, but it's more important to achieve the outcomes that are required. That, I believe, can only happen when we have an opportunity to really look at these issues overall.
I have the Senate report here in front of me. I'd like to refer to page 28 and some of the evidence that was provided. I acknowledge the member for Mulka in the Northern Territory parliament, Yingiya. Thank you for the conversations that we've had—and, yes, it was important that we had this Senate inquiry. I know we've got more to do, certainly in North East Arnhem Land. To Professor John Altman: you raised issues about a co-design process and said:
… a co-design process dealing with institutional mechanisms that potentially affect the balance of powers/responsibilities between land councils and traditional owners that is only undertaken with one side of the equation is arguably a flawed co-design process.
There's probably no disagreement with that, Professor, but who is responsible for the co-design process? It comes back to the parliament. These are really important points in the submissions. Michael Dillon, a former senior public servant, said, 'Stating facts demonstrates the complexities involved.' Absolutely, but no-one over four decades ago even thought we'd get to where we are with close to 50 per cent of the land mass plus the sea country. There was Blue Mud Bay. There still is Blue Mud Bay—and the work that has to be done with the commercial fishing industry and the ranger groups. How amazing is it that we can stand here and even talk about that?
Senators, this is a critical piece of discussion around the Aboriginal Land Rights Act, but it is not the only discussion. Far more comprehensive work is required, and I welcome the input from senators here today. As a TO myself, and knowing this act from the very beginning, I know there is a long way to go. But for now, those four land councils do need the support of this Australian parliament, and we must make sure that all those other traditional owners who are not yet included are very much included into the future.
I want to thank senators for their contributions to this debate on the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021, from places of experience, and certainly Senator McCarthy's contribution was one well worth listening to. The government welcomes the Senate Finance and Public Administration Committee's report on its inquiry into the bill and notes the recommendation in that report that the bill be passed unamended. In responding to the committee report I note the recommendations raised also by the Australian Greens.
Aboriginal people in the Northern Territory, through their land councils, have asked for and been partners in the changes proposed by this bill. The government has co-designed the reforms in partnership over nearly four years. The bill establishes the new corporation with a best-practice governance model, including a board with a majority of Aboriginal members. The new corporation will be reviewed after seven years to consider the corporation's performance against its three- to five-year strategic investment plan. The Aboriginals Benefit Account Advisory Committee will continue to advise government on beneficial payments until the new corporation is fully established, ensuring no gap in access to beneficial payments.
The Aboriginal Land Rights (Northern Territory) Act 1976—the land rights act—retains its existing provisions that guarantee the free, prior and informed consent of traditional Aboriginal owners. As such, the government is confident that the bill adequately addresses the recommendations raised by the Australian Greens. The passing of the iconic land rights act in 1976 was indeed a great moment of bipartisanship in this parliament. I'm pleased that this spirit of bipartisanship remains as we look beyond party politics to recognise the intrinsic value of these amendments. This is an important day for Aboriginal people in the Northern Territory, as they see their ideas to modernise the land rights act become a reality. And it's an important day for the parliament as we seize this opportunity to support amendments that will support Aboriginal wealth creation for generations to come.
In conclusion, I table an addendum to the explanatory memorandum relating to this bill. This addendum responds to the concerns raised by the Scrutiny of Bills Committee. I commend the bill to the Senate.