Senate debates

Tuesday, 30 November 2021


Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021; Second Reading

1:02 pm

Photo of Kimberley KitchingKimberley Kitching (Victoria, Australian Labor Party, Deputy Manager of Opposition Business in the Senate) Share this | | Hansard source

I rise to speak on the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021.

The passage of the Aboriginal Land Rights (Northern Territory) Act in 1976 was an historic moment in the history of our country. In fact, in discussing this with colleagues on the other side of the chamber, they also recognise that. Before I go on, Mr Acting Deputy President Fawcett, I would like to say that your point in relation to who has the loudest voice was necessary, unfortunately, but one that was very well made in our system, so thank you. This was the first legislative attempt by an Australian government to recognise First Nations people's prior ownership of the land. It followed years of advocacy by Aboriginal people in the Northern Territory, including the bark petition presented to this parliament by the Yolngu people and, of course, the Gurindji people's seven-year strike for land rights. The act was an achievement of both the Whitlam and Fraser governments and passed with historic bipartisan support.

Since 1976, however, the act has been amended several times, mostly against the wishes of the land councils and the Aboriginal people they represent. The Howard government was responsible for amendments in 2006 and 2007—I may need to correct those dates later on the Hansardwhich were an attempt to weaken the land councils and limit their abilities to advocate for Aboriginal people in the Northern Territory. It's no wonder then that this bill, which proposes significant reforms to the act, has been met with suspicion in some quarters. However, unusually for this government, the bill has been negotiated with and is supported by all four of the Northern Territory land councils: the Tiwi Land Council, the Central Land Council, the Anindilyakwa Land council and the Northern Land Council.

Following the introduction of the bill in the House, the chair of the Northern Land Council, Mr Samuel Bush-Blanasi, said:

We have been working on this now for many years. For the first time Aboriginal people have been at the table with government ensuring the interests of Aboriginal people are front and centre. Finally we are seeing real progress.

In the explanatory memorandum to the bill, the government has stated a commitment to only amend the land rights act with the support of the land councils. This is a welcome development. The involvement of the land councils in the design of these changes and their strong support for them is the basis for Labor's support of this bill.

I will now go through the changes to the act. In relation to the new investment corporation—and these are arguably the most significant changes—a new Northern Territory Aboriginal Investment Corporation is to be established, funded from the existing Aboriginals Benefit Account, the ABA, which receives and distributes the equivalent of royalties generated by mining on Aboriginal land in the Northern Territory. It currently holds some $1.3 billion in funds. Pursuant to the land rights act, the minister is empowered to make payments from the account 'for the benefit of' Aboriginal Territorians. The ABA Advisory Committee was established under the act to provide advice to the minister on the making of these beneficial payments.

Unfortunately, there has been a chequered history of ministerial payments from the ABA. Ministers have not always heeded the advice of the ABA advisory committee. Minister Brough, for example, used funds from the ABA intended to benefit Aboriginal people living in the Northern Territory to support a festival in Queensland. Minister Scullion controversially used his discretion to refuse funding projects that had been recommended by the ABA advisory committee. Land councils have long called for greater Aboriginal control over the funds of the ABA. This bill makes a significant step in that direction. It will empower the new Aboriginal controlled NTAI Corporation to take over responsibility for making beneficial payments and to make investments that will promote the economic self-sufficiency of Aboriginal people in the Northern Territory.

The new corporation will be led by a board of eight Aboriginal representatives from the Northern Territory, two government appointed directors and two independent directors appointed by the board. Roughly half of the current balance of the ABA will be transferred to the new corporation; that's about $500 million and $60 million annually for the first three years of its operation. The bill also enables further payments to be made from the ABA to the corporation at the minister's discretion. Concerns have been raised about continued ministerial discretion over the remaining funds in the ABA, which are projected to grow significantly in coming years. Given this government's astonishing willingness to use public funds for its own political imperatives, that concern is understandable. However, as the history of ministerial payments indicates, misuse of ABA funds remains arguably a greater risk if the status quo is maintained. The establishment of the new corporation means that for the first time an Aboriginal controlled body is making decisions about the spending of ABA money. This is far preferable to an advisory body that does not have the capacity to direct spending and which has certainly not prevented questionable ministerial payments in the past.

The second set of amendments to the bill go to processes for the negotiation, consent and approval of exploration and mining on Aboriginal land in the Northern Territory. Given the importance and the subject matter of these provisions, the changes have understandably attracted some concern. As my colleague the shadow Attorney-General noted in his speech on the bill in the other place:

… this government has a dismal history with respect to making changes to traditional negotiation and consent processes in the context of native title. In recent years, claimed improvements to make those processes more efficient have in fact come at a cost to the rights of First Nations people and have threatened the integrity of traditional decision-making processes.

In contrast, these parts of the bill make largely administrative or technical changes to the land rights act and have the strong support of the four Northern Territory land councils. As the land councils submitted to the committee inquiry:

The reforms have the potential to reduce the amount of time associated with the application process for exploration licenses and permits. Creating more efficient and consistent processes will benefit Traditional Owners and mining parties equally.

As they outline, the changes resolve 'a major source of frustration' by reducing unnecessary meetings when traditional owners have already made their views clear to a land council. In his evidence to the committee, Mr Wayne Beswick of the Northern Land Council explained:

In fact, they're precisely there at the request of traditional owners, who don't want to be humbugged by endless meetings when they've already clearly made their views known to the land councils. So it's traditional owners who were pushing for that particular change, not the miners.

The administrative nature of the changes was emphasised by the Law Council of Australia, which regarded the impact of the amendments as 'generally being negligible'. Importantly, these changes do not dilute the protections in the act for traditional owners, which remain some of the strongest in the country. Land councils are still required to be satisfied that traditional owners have consented to the relevant licence. There has been no change to the right of traditional owners to withhold consent to mining under the act. As Mr Nugent of the Central Land Council explained to the committee, these changes:

…in no way derogate from the central requirements of traditional owners. The so-called 'veto right' that traditional owners maintain is sacrosanct under the land rights act. That is absolutely protected.

The third set of amendments made by the bill are to the land administration arrangements under the land rights act. This includes a range of measures to give land councils greater authority to act on behalf of their communities without ministerial approval and increase penalties for unauthorised access to Aboriginal land. Labor particularly welcomes the bill's repeal of controversial Howard-era provisions imposed over the strong opposition of Aboriginal Territorians. This includes the repeal of section 74AA of the land rights act, which was part of the Howard government's 2007 Northern Territory intervention. That provision has the effect of preventing land councils from overturning permits for accessing Aboriginal land that had been granted by a minority in the community and against the wishes of the traditional owners. According to the land councils, the ongoing effects of this section has been to cause division within communities. As they say:

It undermines Traditional Owner decision making as well as the Land Council’s ability to discharge its statutory function to act on behalf of Traditional Owners as a group.

Its repeal is welcome.

Labor also welcomes the bill's repeal of sections 28A to 28F of the land rights act which provide for the delegation of land councils functions to Aboriginal and Torres Strait Islander corporations. This is another hangover of the Howard era, introduced in an attempt to fragment and undermine the authority of the land councils. Labor opposed these provisions at the time. We have been glad to note that there has been not been a single successful application during the 15 years since its introduction. These provisions were poorly designed and were ultimately ineffective. We are pleased that the government is finally repealing them.

The final set of changes made by the bill align the operation of the ABA with the Commonwealth financial framework by ensuring consistency with Northern Territory legislation for the payment of mineral royalties and clarifying the purposes of the ABA. These provisions are uncontroversial and Labor is pleased to support them.

Before I finish my remarks, I want to briefly address concerns raised about the representative nature of the land councils. There are some who say the consultations the land councils have conducted in relation to this bill are insufficient. There are some that argue the board of the new corporation is not sufficiently representative of Aboriginal people in the Territory because the majority of its directors will be appointed by the land councils. It's worth remembering that land councils are democratically elected bodies with a statutory obligation to represent the views and protect the interests of Aboriginal people living in the regions across the Northern Territory.

Federal MPs represent anything from 70,000 voters to 100,000 voters. Each of the Northern Land Council's 78 full council members represents, on average, 410 Aboriginal people in their region. For the Central Land Council the comparable figure is 187. For the two small land councils it's 60 to 70 each. These are arguably the most democratically representative institutions in the country. Just as those of us in this chamber are accountable to voters in our states' and territories' elections, so too are land council members accountable to the Aboriginal people they represent. As the land councils state in their submission:

Land Council members are elected to represent the views of Traditional Owners and other Aboriginal residents in their Land Council region. If they fail at this, they get voted out.

That sounds pretty democratic to me.

Undoubtedly, there are aspects of the bill and its development that Labor would have managed differently if we were in government. There are parts that we intend to monitor closely over the coming years. In particular, we will take the opportunity to scrutinise the strategic investment plan for the new corporation when it is tabled in parliament, as required under the bill. And we look forward to interrogating the effectiveness of the new corporation through the review provided for in the bill, noting that it will take several years to be able to evaluate the success of its strategic investments.

Overall, the bill has the capacity to enhance the rights and interests of Aboriginal people. It ends some of the most controversial and damaging reforms of the Howard government, and, while there are further reforms Labor would like to see, this is a positive first step. Most importantly, the new investment corporation will ensure a higher level of Aboriginal control over moneys earned from mining and development on Aboriginal land in the Northern Territory. This is a significant development and one that land councils and those they represent have been advocating for, over many years. Labor commends this bill to the Senate.

1:15 pm

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

I rise to speak to the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021. It sounds lovely! But what does it really mean? Let's pull out the devil in the detail, hey? This bill is the most extensive change to the Aboriginal Land Rights (Northern Territory) Act since 1976, and it's being rushed through this place. Surprise, surprise! There are problems through the bill, but the main ones, the critical flaws in this bill, are the lack of self-determination and of free, prior and informed consent in the development of the bill.

Both the government and Labor have hailed this bill as an example of a bottom-up approach, based on consultation with First Nations people in the Northern Territory. But the government didn't actually talk to communities in the Northern Territory; those who they really talked to were the land councils.

Let's talk about the land councils—the elephant in the room. The land councils are the ones who have really been consulted in the development of this bill, and that's because they're the ones who get substantial powers through this bill. No wonder the land councils are so in favour of the bill! Land councils are supposed to act as representatives of traditional owners and to always act in their interests and always obtain their free, prior and informed consent. But this doesn't happen. The direct feedback I get, regularly, from traditional owners, family clan groups, in the Northern Territory about this bill is that communities have absolutely no idea about this bill and what it will mean to them—how it will affect their life. They have not been informed of the extensive changes proposed through this bill and have certainly not been consulted. So there you have it. Consultation is not consent.

Communities in the Northern Territory don't want this bill to be passed—it's as simple as that. They want more time to understand and examine the changes proposed. That's called free, prior and informed consent. That's called self-determination. Communities want to have input into the amendments made to the Aboriginal land rights act. Hello? They want to know the details. And they have the right to know the details, surely?

At the Senate inquiry into this bill, almost all submitters did not want this bill to pass, due to the lack of consultation with traditional owners. Dot paintings; Black Lives Matter; but don't worry about consultation! The only ones who want this bill to pass are the land councils and the national Indigenous, Aboriginal advancement—the blackfella version of this government's approach to fixing the Aboriginal problem in this country. The only other submission received in favour of this bill was from the Minerals Council. There is no surprise there either, as it helps facilitate mining and exploration applications. Let me just make that clear for Northern Territory mob at home who are listening and have asked me to say these things and call out the government and call out Labor. This bill is supported by the Minerals Council, which helps facilitate mining and exploration applications. This bill we're talking about now gives the mining companies direct access with no free, prior and informed consent.

This bill is not about self-determination. It's certainly not about the empowerment of First Nations people. It is yet another example of how we are being patronised and decisions are being made for us instead of by us. I want to make clear to the Senate and those watching—I know you're paying attention to how people in this place are voting, even though some don't turn up to vote because they are so shamed by how they voted yesterday on Beetaloo—the Australian Greens can't support this bill unless schedule 2 is removed. It's as simple as that. Schedule 2 is about fast-tracking the destruction and desecration of country. It's about mining destroying and desecrating sacred sites. This parliament has no business passing this bill as our people have not consented. They do not consent. That should be the end of the matter. But, no, the government, with their Labor mates, are going to support it and ram it through anyway.

I say to everyone in this place that the Australian Greens cannot support this bill if it will make it easier for the big mining corporations, which have purchased so many politicians in this place, to destroy country. That's what they've done. They've purchased politicians. They've said: 'We'll donate to your campaigns for the next election, but you have to pass this bill, mate. You have to pass it. Don't worry about the blackfellas and their country'—you want a welcome to country all the time—'Just pass the bill. We'll give you money for your campaigns and we'll get easier access to destroy country and frack.' Nice one! This little black girl ain't silly and neither are the blackfellas out there watching. They're not silly. We know what you're up to. We have blacademics out there now.

The Greens are on the side of First Nations people in this country. There's absolutely no doubt about that. I say to the elders fighting for country and to the land and water defenders across this country: we are genuinely with you. We won't tell you that we support you and then, when you turn your back, stab you in the back. We don't do that. We genuinely listen and genuinely act.

No consent means we're not going to support it. Why would anybody else? Labor can laugh at this very serious matter, which they're doing in the chamber right now. In fact, the senator who made the previous speech is having a good old laugh down there.

Photo of Kimberley KitchingKimberley Kitching (Victoria, Australian Labor Party, Deputy Manager of Opposition Business in the Senate) Share this | | Hansard source

Madam Acting Deputy President—

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

Please take your seat, Senator Thorpe. I will take a point of order from Senator Kitching, but I'm going to remark first that you are reflecting on another senator and that is incredibly disorderly in the chamber. I ask you to withdraw the comment that was a reflection on another senator. Are you willing to do that, Senator Thorpe?

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

Yes, I am.

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

Thank you. Senator Kitching, are you still seeking to raise a point of order?

Photo of Kimberley KitchingKimberley Kitching (Victoria, Australian Labor Party, Deputy Manager of Opposition Business in the Senate) Share this | | Hansard source

Under standing order 193(3), the language of Senator Thorpe implying that both government and opposition senators were corrupt and that we had been bought by the mining companies would be unparliamentary.

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

I'll take a point from Senator Stoker. Is it on the same point of order?

Photo of Amanda StokerAmanda Stoker (Queensland, Liberal Party, Assistant Minister to the Attorney-General) Share this | | Hansard source

I support the point of order that's been made by Senator Kitching but furthermore invite Senator Thorpe, if she has evidence of this, to provide it, because—

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

That's a debating point. Thank you very much. Senator McKim, on the same point of order?

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

On the same point of order, I have just a small contribution, if I might. For 193(3) to be enabled would require Senator Thorpe to have made those reflections against a specific senator. That was not the case, so I submit to you—

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

Your argument is that it was in the general rather than the particular?

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

Exactly right. That is my submission to you.

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

Thank you very much. I will take some advice from the Clerk. Can I be clear that I think that that is correct, Senator McKim: on the advice of the Clerk, while it was a general comment, it was not directed at a particular senator, so we will deal with that point of order. I note that Senator Thorpe has withdrawn her comment. I call Senator Thorpe. Senator Kitching, you're seeking the call?

Photo of Kimberley KitchingKimberley Kitching (Victoria, Australian Labor Party, Deputy Manager of Opposition Business in the Senate) Share this | | Hansard source

Senator Thorpe then went on to refer to the senator who gave the previous contribution, which would be me, so it was specific.

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party) Share this | | Hansard source

I suggest that it would be appropriate for the transcript to be reviewed and, if required, I'm sure the President will be able to seek the redress that Senator Kitching is seeking. In the interests of time, we will proceed. I call Senator Thorpe.

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

The Aboriginal Land Rights Act was established to give ownership back to the people of the Northern Territory. Traditional owners are still struggling to protect country and culture in a system that is stacked against them, as we have just seen in the report handed down by the Juukan inquiry. Communities still don't have the power to decide what happens on their lands; it's mining companies and governments who decide. Free, prior and informed consent means you provide all of the information available to the people that will be affected. You provide communities with the means to participate in meetings and understand the content of what is being proposed. Most importantly, free, prior and informed consent involves listening—really listening—to the communities affected. Withholding consent is a completely legitimate outcome of free, prior and informed consent.

Free, prior and informed consent has not occurred in this instance. Communities in the Northern Territory have not been heard. It was the Greens who demanded an inquiry into this bill so that community voices could be heard at all. Even the inquiry was rushed. I think we were given two hours. There were only two hours for blackfellas in the Northern Territory to provide evidence as to why this is important to them? I find that quite disrespectful in itself. That shows how much you really want to hear the voices of First Nations people in this country.

What we need is an overhaul of the whole system of how we do things. It's time to do things properly. Do you want to join in that or continue the path that both the government and the Labor Party are going down, which contravenes the Declaration on the Rights of Indigenous Peoples in this country? It's a simple fact that free, prior and informed consent just don't matter to some people in this place. Free, prior and informed consent are fundamental in a treaty. This is why we need a treaty and why you will hear me talk about it again and again and again and again. Free, prior and informed consent must be part of that treaty. I foreshadow a second reading amendment in my name that will educate senators. I think people actually don't know what free, prior and informed consent means, or they make up their own version of it, and it's not working.

Debate interrupted.