Daryl Melham (Banks, Australian Labor Party) Share this | Hansard source

I rise to speak in support of the Carbon Credits (Carbon Farming Initiative) Bill 2011. I will restrict my comments to the interaction of the bill with native title. It is a complex issue, as acknowledged on page 44 of the explanatory memorandum, where it says at paragraph 4.51:

Given the practical and legal complexity of the interaction of the scheme with native title, the Government intends to undertake further consultation with a broad range of stakeholders and complete detailed legal analysis before reflecting a considered approach in amendments to the bill.

It is good that the government is doing that because, from what I have read so far, I am concerned about the restrictive nature of the interaction of native title with this bill. On page 39 of the explanatory memorandum, paragraph 4.18 it says:

To be eligible to apply for a project, native title holders must hold the legal right to carry out the project and, in the case of sequestration projects, the carbon sequestration right.

They then go on to say at 4.19:

It is not clear whether native title could include a right to carbon sequestration. This is because native title rights are sourced from traditional laws and customs, which may not include the recently identified right to benefit from carbon stored in the land. As a result, native title holders may need to seek a court determination (or a consent determination) to confirm their carbon sequestration right before they could participate in the scheme. This is likely to be difficult, costly and time consuming and any court decision would be unlikely to have universal application to other native title holders. Demonstrating the legal right to carry out a project may present a similar hurdle.

It then goes on to say at paragraph 4.20:

To address this barrier, the bill will take the registered native title body corporate to be the project proponent where the project area is determined exclusive possession native title land, as long as:

What we then do is restrict it to exclusive possession. With the greatest of respect, Mr Deputy Speaker, the Wik case is a classic case where you do not need exclusive possession to be found to be a native title holder. What I am worried about here—and it is something that has been raised by people before the House of Representatives Standing Committee on Climate Change, Environment and the Arts that has considered this matter—under non-exclusive possession is that you cannot rule out their ability to participate in this bill before us. I think there is a concession there, but they are in effect saying that we still have to work on it.

Recently we had a number of agreed native title determinations in the Northern Territory and Western Australia for vast areas of land. In the Northern Territory there was 16,500 square kilometres. In terms of the settlement of Australia and the titles, as you go west, particularly in Western Australia, there are many leaseholds with reservations for Indigenous people. The threshold should be that, if you are a native title holder and a determination on native title has been made, you are able to participate in the scheme, all things being equal.

We have had a number of lectures recently by the former Prime Minister Paul Keating. He gave the Lowitja O'Donoghue oration for the Don Dunstan Foundation at the University of Adelaide on 31 May 2011 about reversing the burden of proof. Indeed, back on 9 July 2008 Justice French also talked about how difficult it is to prove a continued connection. He talked about some modest proposals for the lifting of the burden of native title.

I congratulate the government because they have not been conclusive in what they have determined in this bill to date. They have left open the question of consultation. I am saying that we should be a little more generous. It is right that non-exclusive holders could go to court and have a determination on this matter, but why should they be put through the expense? In my view, if you are native title holder, there should be a presumption that you are able to participate in this scheme. If there is any hint that says, 'If it is non-exclusive possession you are going to lock us out,' we will have another situation where Indigenous people have to go to the High Court for a determination.

This is a scheme that we should be encouraging people to participate in. We talk about bridging the gap. We should be saying that, if you are a native title holder in exclusive or non-exclusive possession, you should have an opportunity to participate in this scheme. I accept that in a number of instances non-exclusive title holders might not fall into the category of being able to participate in this scheme, for whatever reason, but I notice that the Parliamentary Secretary for Climate Change and Energy Efficiency made a speech also on 8 June 2011 where he said:

While the interaction of the Carbon Farming Initiative with the Native Title Act is complex, the Government has developed a creative solution to allow holders of exclusive possession of native title easy and direct access to the scheme.

The Government is continuing to engage with Indigenous stakeholders and others about appropriate consent rights to project on land that is subject to non-exclusive native title. Consent rights will allow the native title holders to negotiate a share of the benefits of sequestration projects on their land.

That is exactly the point I am trying to make—there is engagement taking place. I urge and encourage the government to go the extra yards on non-exclusive native title to encourage participation by Indigenous people. This was the subject of an advisory report on the bills by the House of Representatives Standing Committee on Climate Change, Environment and the Arts, with Mr Zappia as the chair and Dr Mal Washer as the deputy chair. Anna Burke, Jill Hall, Nola Marino, Wyatt Roy and Kelvin Thomson were also on that committee. On native title, they said at paragraph 2.82:

The Committee does have concerns about the treatment of non-exclusive native title in the bill, but understands that continued consultations and discussions with Indigenous groups are planned by the Department of Climate Change and Energy Efficiency—

(Quorum formed) It is not an accident that the person who took the quorum call was the member for Paterson, who is well known as Paterson's curse. I do not think it is an accident that I was actually talking about reducing Indigenous disadvantage, which his leader rabbits on about but at every opportunity they never come to the table. We are talking about carbon farming, native title, exclusive and non-exclusive possession and the opportunity to bring Aboriginal people into a project that might advance them. So what do we get? We get a quorum call by the member for Paterson. It is not for me to comment on him; it speaks for itself. He can take as many quorum calls as he wants for the next 2½ years because he is over the other side. That is what we have had for the last six or seven months. We have had a bitter and twisted opposition who do not accept the fact that they got done over in the last election, we formed a government with assistance from the Greens and Independent members of this House and we are going to get on with business. You can call as many quorums as you want, but it exposes you for the small-minded person that you are.

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