Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

Labor supports this bill, and we support the bills which are to follow: the Aboriginal and Torres Strait Islander Land and Sea Future Fund Bill 2018 and the Aboriginal and Torres Strait Islander Land and Sea Future Fund (Consequential Amendments) Bill 2018. My colleague, the member for Barton, will speak to the latter two bills. I'm proposing to address some comments to the first of these bills. I think it's useful for the parliament, in considering these bills, to put them in their historical context, which really does start with the Mabo judgement—a landmark decision of the High Court of Australia handed down on 3 June 1992, which, of course, as we all know, overturned the long-held assumption of Australia's settlement, that the land belonged to no-one, and recognised the continuing title of First Nations people to land. The judgement recognised in Australian common law that Aboriginal and Torres Strait Islander people's traditional title to land, or native title, had survived the British settlement of the continent, and the judgement found that native title had been extinguished by many of the titles granted to other Australians by successive Australian governments.

Shortly after the Mabo judgements were handed down, the federal government, led by Prime Minister Keating, sought to codify native title in legislation through a process of negotiation with Indigenous leaders. The first part of the settlement was the Native Title Act 1993, which passed through this parliament in December 1993. The Native Title Act codifies the definition of native title and establishes a process for its recognition where there has not been extinguishment.

The land fund, now officially known as the Land Account, was the second part of the settlement with the First Nations people of this continent. At the time, government and Indigenous leaders were conscious that many Indigenous Australians had seen their traditional country overlay with the land titles of other Australians. The Land Account therefore provides a mechanism for some compensation for the dispossession of Aboriginal and Torres Strait Islander peoples since 1788. The Land Account was established with legislated appropriations over 10 years to build a capital base, after which the account's own income would support the operations of a new statutory authority created at the same time as the Land Account, the Indigenous Land Corporation.

Since that time, the ILC has used the land account to purchase property for the use and enjoyment of the Indigenous Australians whose native title has been extinguished. After 20 years, the ILC began to initiate a review into its functions. From early July to the beginning of September 2017 the ILC undertook a series of consultations to gain community feedback on legislative changes to the Aboriginal and Torres Strait Islander Act 2005, the ATSI Act, on two key issues—the first being the financial sustainability of the Aboriginal and Torres Strait Islander Amendment land account and the second being the ILC's remit to include fresh and salt water based activities. Sixteen consultations took place around the country involving more than 75 Aboriginal and Torres Strait Islander organisations.

According to the report that was produced on the consultation, 75 per cent of the consultation sessions provided consensus support for both areas of proposed reform. More than 85 per cent of sessions provided consensus support to the reform of management and governance arrangements for the land account. There was unanimous support for reform to the investment mandate of the land account expressed in the written submissions that dealt with that issue and, of the 17 submissions that addressed both issues, 77 per cent gave support to both with only eight per cent indicating they did not support the reform relating to water.

On 28 March 2018 the government introduced two substantive pieces of legislation, and one piece of consequential legislation, to alter the functions and governance of the Indigenous Land Corporation, the ILC, and the Indigenous land account. As I've said, my colleague the member for Barton will be addressing the latter two bills. I'm addressing the first bill, which deals with the Indigenous Land Corporation. What this bill does is to enable the ILC to perform functions in relation to waters, including ground and surface water, where the Commonwealth or the states and territories have sovereign rights—that is, in water or waters within the outer limits of the exclusive economic zone of Australia, including internal waters of Australia.

The bill amends the ATSI Act to give the ILC functions in relation to water related rights. These additional functions are to be consistent with the ILC's functions in relation to land. They include: the acquisition of water related rights and divestment to Aboriginal and Torres Strait Islander corporations; the provision of assistance in the form of grants, loans or loan guarantees to Aboriginal or Torres Strait Islander corporations to acquire water based rights; the carrying on of management activities in relation to Indigenous waters; and the provision of assistance grants, loans or loan guarantees for the purpose of carrying on management activities in relation to Indigenous waters. The bill does not create any new rights and does not authorise the ILC to exercise its functions in a manner that is inconsistent with the rights and interests of other persons or international law such as the UN Convention on the Law of the Sea. The bill alters the name of the ILC to the Indigenous Land and Sea Corporation to reflect the expansion of the ILC's functions to water. As I've said, Labor supports this bill. It's an appropriate response to the consultation that was conducted by the ILC. I commend the bill to the House.

Tim Wilson (Goldstein, Liberal Party) Share this | Link to this | Hansard source

I'd like to begin by thanking the member for Isaacs for his brevity. It is always good to get his views on the record, particularly on a matter as important as this. In my former role, I spent time working with Aboriginal and Torres Strait Islanders, including my good friend the Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda, particularly around the challenges facing the use of land under native title for economic development. Having convened round tables in Broome and Sydney on some of the challenges that are faced in this space to realise the economic potential of land, this bill is very welcome because not just prescribed body corporates but also Indigenous land corporations play an important part of the infrastructure that sits around the use of native title lands and the legacy of the Mabo decision—and, of course, state based regimes as well as the particular issues around title in the Northern Territory.

What we actually want is an environment where Aboriginal and Torres Strait Islander people are able to fully realise their ambitions and their dreams based on the assets that are available to them. And what we have in some of the ILCs is an acquisition program of land of up to $2 billion which enables it to be used for an effective purpose to advance the interests of Aboriginal and Torres Strait Islander people who live with the consequences and injustice of displacement that came as a consequence of European settlement. We cannot undo the legacy of the past. What we can do is choose a better future for Aboriginal and Torres Strait Islander people. But, more critically, it doesn't actually matter what we, being the people who are in this place right now in this chamber or in the Senate, think, because the pathway for success for Aboriginal and Torres Strait Islander peoples is not for what we can impose on them or do to them. The pathway to success for Aboriginal and Torres Strait Islander people is what we can do to empower and support them to realise their own ambitions and their own dreams.

What we want, I would have thought, is for more people to take ownership, for people to feel like they are in control of their future and for them to be able to take that control—that sense of ownership—and translate it into better outcomes not just for themselves but also for generations yet to come. I say that because, when it comes to generations yet to come, what we have to do is break the cycle of what has occurred in the past—where many Aboriginal and Torres Strait Islander people have felt that this country has not served them and where this country has simply, in its modern form, sought to alienate, isolate or displace their traditions, their culture, their language and, of course, their land.

Yesterday I spoke in this place on another bill related to some of the housing measures that this government is investing in as part of a framework working with the states. I made the point at the time that, despite how we sometimes think about the transactional nature of housing—and it's an important part of it; we have a market in housing that needs to be supported and a private market that works successfully for the most part but doesn't meet everybody's needs because of people's economic circumstances and sometimes the constraints we place on it which make it beyond the reach of many people who would otherwise seek to rely upon it—without a house, but more critically without a home, as the bedrock of stability in people's lives, there are huge consequences for how people then go on to live their lives. It's a truism and a statement of the bleeding obvious, but in practice we take it for granted. If people don't have that bedrock of their life—that foundational stone of a home—they can't then go on and achieve so much of what is frankly the habit of life.

We all have lived experience when we come into this parliament. It's not reserved for me, those on the other side, those on this side or even yourself, Mr Speaker. It is the lived experience. Part of the reason why we stand here is because we have succeeded in harnessing the potential that's available to us, and that's off the back of routine and stability and then the capacity to use that to leverage to a more successful life, including, frankly, the confidence to put yourself out into the public and have your ideas, your values and your confidence tested against a community and, ultimately, the scrutiny of the Australian people. The story is no different for Aboriginal and Torres Strait Islanders. When you sever a connection between a people and the place they call home, particularly when the connection is more than just a transactional relationship around what is owned at a time but a relationship around what is seen as being an enduring custodianship as connected directly to a place, a home, a culture and a language that in people's mindsets brings them a sense of safety, the consequences are quite severe.

Aboriginal and Torres Strait Islanders are not alone in this. There are many other cultures around the world who have similar journeys and similar challenges and countries that continue to face the consequences of that. That's why taking simple and practical measures to redress the legacy of that severed connection is so critical as part of rebuilding that sense of place.

As I said, this bill is designed to enable Aboriginal and Torres Strait Islanders' land account, which funds the ILCs, to be used for as constructive a purpose as possible, because—while we might capitalise the basis of that ownership and that heritage in financial resources, to be able to go on and do things into the future—we have to make sure that it's sustainable and that no money is wasted. So part of the very pragmatic reform of this government is to recognise that the place for such funds is with the Future Fund—not because we wish to control it but simply because of the capacity to deliver returns—so as to provide that basis for a sustainable future for Aboriginal and Torres Strait Islanders and the ILCs, so they are able to secure the funding that they need.

We've done exactly the same thing—and this is where I think it's important to draw the parallel—for superannuation liabilities for public servants under the Future Fund, for this place and this modern structure. In doing so, we're setting a standard against which we're able to hold ourselves but also others. The ambition now for the Future Fund should be not just to hold the capital that's available to them—to be able to do what is right and meet the expectations and obligations set out in their charter and their course—but also to generate income and potential so that we can help Aboriginal and Torres Strait Islander people thrive.

It's on that basis—a very simple, pragmatic basis—that I support this piece of legislation. It follows, as the Attorney-General and shadow Attorney-General have outlined, a long process of consultation with Aboriginal and Torres Strait Islander people, so that we are working with them and designing laws and regulations that meet their needs; but, more critically, so that there is a trust being built between those who are custodians of this wealth and, of course, the people who seek to govern it, so that we may have a better future and a shared future together.

Warren Snowdon (Lingiari, Australian Labor Party, Shadow Assistant Minister for External Territories) Share this | Link to this | Hansard source

I acknowledge those who have already spoken in this debate. Clearly Labor is supporting this bill, the Aboriginal and Torres Strait Islander Amendment (Indigenous Land Corporation) Bill 2018, and the subsequent piece of legislation which will be before us shortly, the Aboriginal and Torres Strait Islander Land and Sea Future Fund Bill 2018. My contribution will be short, but I do want to go back to the origins of the land fund and the debates and discussions that took place post Mabo and the Native Title Act. I was part of the discussions and the deliberations of this parliament, and I remember distinctly the land fund and its establishment. The purpose for its establishment was to try and give Aboriginal and Torres Strait Islander people around the country an opportunity to purchase back some of their own estate. Initially, there was a great effort by the land fund to purchase pastoral leases in different parts of remote Australia. Giving people a land base was seen to be very important. The fund has changed its expenditure profile over the decades since. But, importantly, it was an absolute recognition of the need to address the alienation of Aboriginal and Torres Strait Islander people from their country. From that perspective, it was, truly, really very, very important.

A trifecta of things were to happen: first, the native title legislation; second, the establishment of the land fund; third, a social justice package, which, sadly, has never been implemented. I suspect we wouldn't be now discussing issues around housing and poverty in remote parts of Australia, and the lack of educational or employment opportunities all over Australia, had we had that social justice package developed and implemented at that time.

But the Keating government got defeated; the Howard government got elected; and they were just disregarded. The land fund had been set up, so it was tolerated, but, of course, one of the subsequent things that the Howard government did was abolish ATSIC, so there was a sort of distancing of the federal government from the views expressed by the Aboriginal and Torres Strait Islander people around the country.

You'll remember the absurd and dreadful statements of the then Deputy Prime Minister, Tim Fischer, over the Wik claim. I'm not sure if you recall it, but I do. The High Court made a decision about the Wik peoples' claim. The then Deputy Prime Minister, the Leader of the National Party, pilloried the High Court for acknowledging the right of the Wik people.

We'd come from where the Mabo decision, a High Court decision, had led to the native title legislation—a very difficult piece of legislation to get passed through the parliament, I might say. We had then had some sort of unifying with the passage of that legislation, the setting up of the land fund and the recognition that the absurd notion of terra nullius had been expunged. We then had the Howard government crawling its way, clawing its way, trying to take back the rights that Aboriginal people had been provided. We saw that absurd and very dreadful and insulting behaviour by the Deputy Prime Minister of this country. Nevertheless, we're not here to talk about him today, thank goodness.

What we are here to do is recognise that this is an advance. The land fund has been in existence and has been operating successfully. Obviously, there is debate in the Aboriginal and Torres Strait Islander community about the priorities of the fund from time to time. But this bill is important because it acknowledges that there ought to be a capacity for the land fund to deal with matters to do with seas and water. If we understand the implications of that, it may mean the oceans, but it may also mean purchasing water rights for properties, for example. The additional functions that have been proposed in this legislation are to be consistent with the ILC's functions in relation to land and include the acquisition of water related rights and divestment to Aboriginal and Torres Strait Islander corporations, which is important.

The acquisition of these rights is not for the land fund or the ILC but for the purpose and use of Aboriginal and Torres Strait Islander people, in this case on their land. These rights should be divested. These are not property rights which should be retained by the ILC. The properties which are purchased by the ILC are for the benefit and use of Aboriginal and Torres Strait Islander people and should be divested to them, and that's what this proposes.

The provision of assistance, grants, loans or loan guarantees to Aboriginal and Torres Strait Islander corporations to acquire water based rights is a very welcome proposal. The carrying on of management activities in relation to Indigenous waters and the provision of assistance, grants, loans or loan guarantees for the purpose of carrying on management activities in relation to those Indigenous waters are important.

We've now no longer, thankfully, got the hideousness of the sorts of attitudes, at least in this parliament, that I've seen—sorry, I should say there might be a small segment in the other place that might actually mirror the statements which were made by that hideous person who was then the Deputy Prime Minister. Nevertheless, I think we have advanced a great deal so that native title is no longer in conjecture. We recognise that the rights and interests of Aboriginal and Torres Strait Islander people need to be properly addressed and the way to address them. This piece of legislation advances us by ensuring that we can look after the interests of Aboriginal and Torres Strait Islander people in relation to water rights, and that is most welcome. This is an important piece of legislation, and I'm happy to be able to support it.

Ken Wyatt (Hasluck, Liberal Party, Minister for Indigenous Health) Share this | Link to this | Hansard source

I would like to thank honourable members for their contribution to the debate on the Aboriginal and Torres Strait Islander Amendment (Indigenous Land Corporation) Bill 2018. This bill represents a significant step forward in Australia's land rights journey. The Indigenous Land Corporation was established as part of the government's response to the High Court decision in Mabo No. 2 in recognition that many Indigenous people would be unable to benefit under the Native Title Act 1993. The Indigenous Land Corporation was established to assist Aboriginal and Torres Strait Islander organisations to acquire land and to manage Indigenous held land so as to provide economic, environmental, social and cultural benefits for Aboriginal and Torres Strait Islander people.

Land is not defined within the Aboriginal and Torres Strait Islander Act 2005. On a plain language interpretation, this means the Indigenous Land Corporation cannot support Aboriginal and Torres Strait Islander organisations to conduct activity in freshwater and sea country. For example, it cannot support Aboriginal and Torres Strait Islander people to strengthen their connection with culture and communities through activities in freshwater and sea country; manage freshwater and sea country to keep culturally significant plant and animals healthy; or establish fishing businesses. This is inconsistent with the understanding Aboriginal and Torres Strait Islander people have of country. This is also inconsistent with developments in case law recognising that native title rights can extend to freshwater and sea country. In some cases, these rights include rights to take and use water for a variety of purposes and to take resources from certain waters. The law now acknowledges that, for Aboriginal and Torres Strait Islander people, land and water are inseparable parts of country. It is now time for the functions of the Indigenous Land Corporation to reflect this.

These reforms follow extensive consultations with Indigenous stakeholders. A clear majority of stakeholders supported changes to expand the remit of the Indigenous Land Corporation to include freshwater and sea country. The government has listed and is now enabling the Indigenous Land Corporation to assist Aboriginal and Torres Strait Islander organisations to care for, manage and benefit from freshwater and sea country. In its report on the bill, the Senate Finance and Public Administration Legislation Committee recommended that the bill be amended to ensure that the Aboriginal and Torres Strait Islander Act 2005 gives the Indigenous Land Corporation the function to manage water or waters in which the Indigenous Land Corporation has water related rights. Amendments agreed to in this House respond to the committee's recommendation. These amendments will mean the Indigenous Land Corporation's water management functions are consistent with its land management functions.

The bill will also rename the Indigenous Land Corporation the Indigenous Land and Sea Corporation to reflect the expansion of its remit to include water. Expanding the remit will enable the Indigenous Land Corporation to reflect the understanding Aboriginal and Torres Strait Islander people have of country. It will also enable the Indigenous Land Corporation to support the full range of opportunities for Indigenous economic development in sectors such as fisheries, agriculture and tourism.

These reforms represent a significant step in Australia's land rights journey. By expanding the functions of the Indigenous Land Corporation to rights in relation to water, this government is realising its commitment to improving the lives of Aboriginal and Torres Strait Islander people. I commend the bill to the House.

Question agreed to.

Bill read a second time.

Message from the Governor-General recommending appropriation announced.