Patrick Dodson (WA, Australian Labor Party, Shadow Assistant Minister for Reconciliation) Share this | Hansard source

I rise to speak on the Native Title Amendment (Infrastructure and Public Facilities) Bill 2020. In 2010, the Labor government introduced subdivision JA into the Native Title Act 1993. That subdivision enabled the urgent construction of public housing and a limited class of community facilities, including education, health and emergency services facilities, as well as staff housing associated with these facilities, on land in Indigenous communities that is or may be subject to native title. The process of subdivision JA is available where the facilities are constructed by or on behalf of the Crown, a local government body or other statutory authority. In essence, this subdivision was introduced by Labor when it was last in government to deal with a situation where there was an urgent need for the construction of public housing or other public facilities on land subject to native title. The subdivision provides for a degree of consultation with affected parties, including periods for comment on any proposed construction.

When introduced, the provision included a 10-year sunset clause, which was to approximate the duration of the National Partnership Agreement on Remote Indigenous Housing, which Labor had put in place. This bill will extend the operations for a further 10 years, and Labor supports that extension. The provision has been used sparingly over the decade that it has been in force and it has been a very useful means of helping to facilitate the building of necessary facilities on land subject to native title. Nevertheless, I am aware of concerns in some First Nations communities about consultations in relation to the construction of housing and other facilities. This includes the need for consultation, not just before construction but also during construction and after construction is completed, to ensure that the facilities are being used and managed in a way that is consistent with community needs and desires. With this in mind, I take this opportunity to encourage the government to ensure this subdivision continues to be used only when strictly necessary to facilitate urgent construction. I also call on the government to ensure that, at all times, proper, good-faith consultations take place with affected communities.

The legal framework contains a number of safeguards for consultation. This includes a requirement that affected parties should be given notice and an opportunity to comment on proposed construction. Furthermore, the subdivision requires consultation to take place at the request of affected parties and ensures that construction cannot commence before the consultation period ends. The Attorney-General has oversight of each of these steps by virtue of reports required from the bodies seeking to undertake construction. Importantly, subdivision JA enables the Attorney-General to prescribe how consultations with native title parties should occur, including putting in place specific requirements. These provisions for consultation are an essential part of Labor's original design for subdivision JA.

But legislation alone doesn't ensure that proper consultation occurs. Meaningful consultation requires good faith, commitment and integrity on the part of the parties. It cannot be a box-ticking exercise. Too often we've seen First Nations concerns about the use of their lands disregarded and overridden. Examples of this abound, but one clear and devastating illustration is the destruction of the 46,000-year-old Juukan rock shelters in May this year. What this event exposed is how little genuine understanding there is of the unique spiritual connection that First Nations have with their lands, and how little respect is afforded to that connection in our national laws and practices.

We've seen the failure of governments, when consulting, to consider the diversity of perspectives that may exist among native title holders. In the native title space, consultations that only occur with representative bodies may sideline important voices. Efforts should be made to ensure that native title holders are directly engaged wherever possible. In order to facilitate proper consultations, the provisions of subdivision JA must be given effect by the Attorney-General and this government. The Attorney-General must engage in oversight of the consultation processes as envisaged by the legal regime. He must use his powers to prescribe consultation requirements that suit the needs of communities and give integrity to the processes outlined in the legislation. I urge the Attorney-General and the government to listen to the concerns of First Nations communities and to use these provisions sparingly and in good faith.

I wish to note that when subdivision JA was introduced it was accompanied by a significant financial investment by the then Labor government to address historic underfunding of housing in remote Indigenous communities. This stands in contrast to this government's approach, which has been to walk away from remote housing. This year's budget only included remote-housing-specific funding for the Northern Territory and Queensland, even when the funding provided doesn't fulfil the existing need and ongoing demands. Housing is a critical part of ensuring an adequate standard of living and basic human rights for First Nations peoples, especially those living remotely. The Commonwealth should be actively engaged in ensuring these rights are upheld.

In conclusion, Labor supports this bill, but we do urge the government to take note of concerns raised and, most importantly, to listen to First Nations in the exercise of the powers conferred by these provisions.