Malarndirri McCarthy (NT, Australian Labor Party) Share this | Hansard source

I rise to speak about an uncomfortable truth, because that is what the whole process leading into this debate has been about—and continues to be about—in relation to native title. It is an uncomfortable truth disguised as legislation. It is an uncomfortable truth disguised in urgent amendments. It is an uncomfortable truth that is tucked away behind legal speak—heard but not understood. Even here, in the house of the people, this truth remains uncomfortable. Why? Because it is the symbolic and deeper truth about our country—the unfinished, unspoken business of black and white Australia.

Twenty-five years ago Eddie Mabo said no. He did not want to remain part of an uncomfortable truth tucked away, hidden. He did not want to be reassured with numbing advice that his legal options were impossible. He did not believe that his truth of being a strong Meriam man of the Murray Islands in the Torres Strait, nor his people's richness in historical past and resilience in the present, should be silent. But many around him did. They wanted to stay complicit in the silence. It was comfortable and easier than change.

This house of the people also stayed silent, as did most Australians, but the conscience of the great spirits of this beautiful land we all call home moved in the heart of one man and in the lives of his fellow plaintiffs, Reverend David Passi, Celuia Mapoo Salee, Sam Passi and James Rice. Like any family, there was, no doubt, division in Eddie Mabo's family and in his clan groups in the islands—bitter divisions, not least of which centred on the authority to make decisions about everyday life on Murray Island, about who could hunt where for the food that was needed to feed families or whose role it was to take the lead in ceremonies sacred to their people. It is human nature to have conflict. It takes a spiritual nature to pursue peace through such conflict.

There was friction in the understanding of legal doctrine and further separation of whose legal advice was the better to follow. Who could interpret the law in such a way as to dare challenge the centuries old law, the doctrine of terra nullius? Eddie Mabo did. His challenge and win in the High Court resulted in the Native Title Act.

Fast forward 25 years and the Noongar challenge in the Federal Court sees the Senate here today debating amendments in relation to the McGlade decision. While an important victory for some Noongar families—and I commend those families—it has created uncertainty for others. In fact there is uncertainty in the future of more than 100 Indigenous land use agreements, ILUAs, that we know of. I seek leave to table the 126 ILUAs that the federal government has failed to provide information to the Senate on.

Leave granted.

The job of the Senate is to scrutinise the possible impacts of that decision in this amended piece of legislation. A one-day Senate inquiry hearing, over a few weeks, is not a long time for examination, despite the best experienced people on that inquiry—I know my colleague Senator Pat Dodson has advocated strongly and passionately, within this fraught process, for the rights of native title holders. It is most regrettable that further time was not given to allow even conversations with the parties involved in the over 100 Indigenous land use agreements to see if they understand the ramifications of the McGlade decision and even this amendment before the Senate. I might add that, in the full routine of what this process has been so far, I have just received notice of another amendment, or the removal of an amendment, which just goes to show that this government has no idea and can give no confidence to this Senate or to the Australian people, and certainly not to the first nations people, that it has their best interests at heart.

There are many questions that remain unanswered, such as: how many ILUAs were registered prior to the Bygrave decision of 2010 which might be affected by the McGlade decision; what steps have been taken to identify and audit these agreements; how long would it take to identify and audit these agreements; and are there any other native title agreements—including the right-to-negotiate agreements concluded under section 31 of the Native Title Act and ILUAs registered prior to the Bygrave decision—that might be impacted by McGlade? Cape York Land Council is the only one that I am aware of that has done an audit of its agreements, and that is only because Senator Pat Dodson forced the government to meet with native title holders; otherwise, we would not have even known about Cape York's issue. And that is just one land council amongst a dozen land councils across this country and certainly hundreds, if not thousands, of native title applicants and custodians across the country.

It begs the question: have other Aboriginal land councils and native title representative bodies done audits? Can they confidently say there are no issues? Can the Attorney-General say with any confidence that we will not be here in the future with further amendments required as a consequence of these changes not being properly scrutinised or thoroughly consulted about with traditional owners right across the country? While the government has stated time and time again that this is not about Adani but about certainty for parties to native title agreements, Labor has supported the amendments on that basis—that they will bring certainty for native title groups, government and industry. However, there is more than a suggestion that this is not just about certainty for native title agreements. In the Senate committee inquiry into this legislation, former coalition MP Ian Macfarlane, who is now the CEO of the Queensland Resources Council, advised the committee that there may be another category of native title agreement. The CEO of the Queensland Resources Council advised the committee that there may be another category of native title agreement affected by McGlade which is not rectified by this amending legislation. These are agreements negotiated under the right-to-negotiate provisions of the Native Title Act.

These are enormously significant agreements, underpinning some of the largest resource projects in Australia. If what Mr Macfarlane advised the committee is correct, then there may be potentially hundreds of other native title agreements, and hence major resource projects, in doubt due to McGlade. The Attorney-General is aware of this issue. Indeed, Mr Macfarlane said he had spoken with him about that matter. But, despite the lack of certainty about these agreements, the government has not seen fit to address them in this amending legislation. They have been totally ignored.

I ask then: what about the certainty for the native title groups who are parties to those agreements negotiated under the right-to-negotiate provisions of the Native Title Act? What about the certainty, for that matter, for industry and government with respect to these projects? I find it curious that the government views it as urgent that ILUAs be given certainty but that some of the biggest resource projects in Australia, negotiated under the right-to-negotiate provisions of the Native Title Act, should not. And I wonder: in the two months since the Senate committee, why hasn't the government done the work to identify all classes of agreements affected by McGlade, including both ILUAs and the right-to-negotiate agreements?

These contradictions lead me to doubt whether this is really about certainty for all native title groups and parties. If these amendments truly were about certainty for all parties to native title agreements, surely the government would have seen fit to amend it.

On 30 June last year, the Federal Court of Australia handed down a judgement in a case of incredible significance for my Yanyuwa family in the Gulf of Carpentaria. Justice Mansfield, in one of his last judgements, found that exclusive native title still existed in Borroloola and was held by the Rrumburriya people, of which I am a member. He also found that, for the first time in the Northern Territory, the Rrumburriya people have, among their bundle of native title rights, the right to trade for commercial purposes. Now, although we have never described it in this way, the right to trade is something that we Yanyuwa people have always known forms part of our long cultural tradition. We have traded with other neighbouring clans and the Macassan visitors from Indonesia for many generations. But, although we have known this, it has taken this long to have it recognised by an Australian court.

While it was a moment of great celebration for my families, this success comes with a number of caveats. The native title system is uniquely difficult to understand and navigate, let me tell you. Native title claimants must endure endless meetings and interrogations in order to prove that they still have traditional laws and customs. Court processes requiring the filing of service of legal documents are completely alien to many Indigenous people, and sometimes the lawyers themselves have difficulty communicating the complex legal concepts underpinning the Native Title Act. One of the parts of this at times impenetrable native title system concerns the authorisation and execution process for Indigenous land use agreements, the processes of which are the subject of this current bill. Adding to this complexity is the fact that the system, which adjudicates on the very identity of Indigenous people and our legal rights, has its central power in institutions that are located far away, in the Commonwealth parliament in Canberra and in the highest courts in the land. Thus, there is no doubt in my mind that the native title system, despite all it can bring, can also cause alienation for the Indigenous people who it is said to assist.

Given the complexity of the native title system that Aboriginal people are forced to navigate, the profound impact on Aboriginal people's legal identities and rights of this system, and the remote location of the institutions that can affect these legal identities and rights, it is a matter of great sadness to me that these amendments have always been rushed and always come at the last minute. Of all the laws in Australia, the Native Title Act is meant to go some way to remedying the past dispossession suffered by Indigenous people. On this basis, it should never, ever be amended in haste. Amendments should always be thoroughly debated and consulted about, particularly with the Indigenous people who will be the most affected. The government, and in particular Senator Brandis, has failed to give native title legislation and, by extension, native title holders proper consideration and respect in this shabby process. The behaviour of the government has been shameful, secretive, cynical and arrogant.

There has been little recognition of the significant and long-term impacts these amendments will have on native title holders and the rights they fought so hard to have recognised. This government failed to consult properly with native title holders until they were dragged by Senator Pat Dodson to do so. The government were very selective in whom they decided to talk to and they have been even more selective in whom they decided to listen to in this mess of a process, which was created by them in their haste to force through flawed policy as a matter of political expediency.

Senators, traditional owners are your constituents. How many of you have asked them about this amendment? If I asked the traditional owners in the Northern Territory or even closer to home—if I ask the Yanyuwa traditional owners—who are also Native Title claimants, 'What does this legislation amendment mean to you?' they would probably say, 'I don't know. I need more information,' or, in Yanyuwa language, ngarna kudardi—'I don't know.'

The Senate might like to think it is up to the native title rep bodies or even the land councils. The government did not think that. But it is up to the senators to reach out to their Indigenous constituents. With over 100 Indigenous land use agreements across the country and 76 senators who represent this country, how many of you have even asked if any of the native title applicants in one of those ILUAs are in your constituency? How many of you have asked whether your constituents might need to know what is being debated in the Senate today? Do they agree? Do they understand why? Do you? If not, then how can we in the Senate, the house of the people, speak with confidence that this unexamined approach to amending the Native Title Act will end uncertainty? It is an act that requires at least a symbolic sacredness and respect because of the deeper truth that enabled its birth from the first nations people of Australia and our system of laws and beliefs, to attempt to build a future with the Westminster system of laws and beliefs.

To those families who brought us here today due to the McGlade decision—Mingli Wanjurri McGlade, Mervyn Eades, Naomi Smith and Aunty Margaret Culbong: I sincerely wish you well in the days ahead. To all those impacted by the McGlade decision, on all sides: may you find some comfort in knowing that this parliament acknowledges the strength of your struggles; keep believing in the impossible. Eddie Mabo did. I acknowledge his wife, Bonita, and daughter Gail Mabo, especially as we come close to the 25th anniversary of the High Court decision. Thank you for your guidance to me on this journey here today. I will keep believing that one day the uncomfortable truth will be a respected truth.

On behalf of the opposition, I move the amendment circulated in my name, on sheet 8150:

At the end of the motion, add:

but the Senate expresses its disappointment with the regrettable way in which the Government has managed the process for consultation on the changes contained in the Bill, which has been a source of unnecessary angst, confusion and delay."