Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

When last we were considering this legislation, I formally moved amendment (4) standing in my name. This seeks to repeal section 44A of the principal act in accordance with a submission made by the Northern Territory land councils and the Northern Territory government in 2003, which the government argues is the basis of this legislation. The government has consistently argued that what it is doing in the proceeding of this bill is implementing the negotiated settlement between the land councils and the Northern Territory government. That is true to a large part. As we have said, there are two parts to the bill: that which was consulted upon, negotiated and agreed to; and the second part, which is the added-on ideological agenda of the government, which has not been subject to the same level of consultation and which certainly has not been done with the consent of the traditional owners.

Putting that argument to one side—we have debated it at length in this chamber already—this provision, section 44A, restricts a form of agreement that is wanted by both the land councils and the Northern Territory government. There has been no explanation as to why the government, in proceeding with this bill, did not include this aspect of the agreement. Nearly every other aspect of the proposals that came out of the joint submission from the land councils and the Northern Territory government were adopted by the Commonwealth, but this one was not. So Labor is moving to include that measure because we think it is an appropriate one, and I have not heard an argument from the government as to why it should not occur.

Basically, we are seeking to repeal section 44A of the principal act because we feel it imposes restriction on the negotiation of mining agreements. On the face of it, it seems to preclude exploration agreements which specify a formula for royalty payments when mining occurs. Currently exploration agreements negotiated by the land councils and the Northern Territory government include provisions regarding mining payments. They have been included in negotiations since the 1987 Native Title Act amendments because of the different approach applied in that act. If the owners consent to minerals exploration in the Northern Territory, they lose the right to object to the subsequent grant of a mining interest. In other words, unlike the regime under the Native Title Act since 1987, exploration mining agreements under the Aboriginal Land Rights (Northern Territory) Act have been in a conjunctive rather than a disjunctive form. Senators might be aware of the method that applies under the Native Title Act. It has been the subject of much debate in this chamber since 1993.

The joint submission by the land councils and the territories recommended that there should be no restrictions on the content of agreements, leaving all the parties to be governed by general commercial law. As I understand it, this recommendation was supported in all three major reviews of the land rights act, including the Reeves review, the national competition policy review and, of course, the report of the House of Representative Standing Committee on Aboriginal and Torres Strait Islander Affairs. In the absence of any coherent argument from the government it seems to Labor that this aspect of the agreement reached in the Northern Territory, which the government has largely given force to in its amendments to the land rights act, ought to also be reflected in these amendments. I urge the Senate to support Labor’s amendment.