Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

The Democrats support this amendment. The minister’s contribution has made me even more concerned that the government does not accept it. Obviously the views of all Aboriginal residents need to be taken into account, but the fact that the minister does not see it as necessary to be satisfied that a majority of traditional owners consent to the delegation is, I think, a serious problem.

It is a problem on two fronts, and I again refer to the evidence not only from the land councils but also from the Minerals Council. They are the people who have to work on the ground with the reality. As one of the witnesses said to the Senate inquiry in Darwin, whatever the principles in the legislation are, people eventually end up getting mugged by reality. The Minerals Council’s concern was that this may risk putting in place a scenario where the minister agrees—for whatever reason, good motive or bad—to approve a request which does not have the support of traditional owners. That would put in place the potential for serious dissent. That would make whatever is being proposed far more likely to become unworkable, whether it is mineral exploration or anything else.

I would have thought that the whole basis of the principle behind land rights legislation would have to include the traditional owners. I do not mean it would have to include only them, but it certainly would have to be a sufficient condition to which the majority of traditional owners of the region consent. I think that it is very important in principle, but even if you wish to put principle to one side—and I do not—in terms of workability you are really putting in place quite a serious risk.

Remember that we are not talking just about the current minister and the current government. This legislation stays in place, once it is put in place, until it is amended. It could be that a future government or a future minister might be willing to use this power for less than benign intent. You would really be creating a potential situation where a minister could approve a request that is quite clearly against the majority views of the traditional Aboriginal owners of the region. That would set up a very unworkable situation, and I do not think it is wise to allow that potential to be there in the act when there is no need for it. There is no need for it, according to the evidence presented at the inquiry.

There is only one other point I would make, and I have made it a few times in my broader contributions. I do think it is an important point, and it goes to the submission of the Aboriginal and Torres Strait Islander Social Justice Commissioner. He detailed the commitments that the Australian government had publicly given with regard to the objectives of the Second International Decade for the World’s Indigenous People. Australia had agreed to act in accordance with and to promote those objectives, which include promoting full and effective participation of Indigenous peoples in matters which directly affect their lifestyles, traditional lands and territories, considering the principle of free, fair and informed consent.

With regard to Indigenous people’s traditional lands, I believe that the failure to accept this amendment sets up the potential for the government to be able to act outside of the consent—informed or otherwise—of Indigenous people regarding their traditional lands. I think it contradicts what the Australian government said it would do with regard to those principles, and that is a problem. As I said, I think it also raises some potential problems with workability. It is not going to occur every single time; I am not trying to suggest that this will lead to the collapse of everything. But, given that it is not necessary, I do not see that it is such a massive shift from what the government is wanting to do in its original legislation that it should be rejected. It is an extra impediment but I would see it as an extra protection. It is not like it is absolutely essential that we have to be able to use this power that has been put in subsection 28C(3). It is just an extra protection to ensure that, if it is used, it is used with the clear support of the local Aboriginal people.

We can all see the problem that would almost certainly arise if you had a minister in Canberra who agreed to something that was opposed by the majority of traditional owners of the region. That would be a pretty bad dynamic. I do not know why you would want to allow even the potential for that to happen. It really concerns me, and the minister’s response concerns me further, if anything, because it contains the view—at least the way I heard it—that ‘we do not feel it is necessary to have that majority view’. That is a real problem.