Larissa Waters (Queensland, Australian Greens) Share this | Hansard source

Thank you all for your indulgence in the chamber. My colleague Senator Thorpe has just spoken powerfully on the concerns that the Greens have with the Native Title Legislation Amendment Bill 2020. The fact that the Minerals Council thinks it's a great idea should, frankly, be cause enough for concern over the risks that the bill presents to First Nations justice.

I'd like to speak briefly in support of the Greens' amendments and offer some examples from the First Nations communities in Queensland that I've spoken with about the injustices that the native title system has emphasised. Last week I spoke with representatives of the Sovereign Native Tribes of the Kabi First Nation, whose cultural site Djaki Kundu is currently being threatened by the planned expansion of a highway near Gympie. They said that their experience of the native title system is that it 'divides nations and pits us against each other', allowing governments and developers to select who they think speaks for country. Our concern is that this bill would further entrench that.

In schedule 1, the amendments would allow native title bodies to move away from consensus decision-making and to allow votes to be taken by majority. This position is strongly opposed by many First Nations groups. It's inconsistent with international law. It's inconsistent with the recognised principles of the right to self-determination and the free pursuit of social, economic and cultural development, which is, of course, article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Many First Nations groups are concerned that allowing decision making by a hard majority, rather than unanimously, will allow registered native title bodies corporate to manoeuvre around and abuse the powers that are conferred on those representative bodies.

In my home state of Queensland, the Wangan and Jagalingou people have fought long and hard against the Adani Carmichael coalmine—I think they now call themselves a different name, but folks still know it by that name. The mining company insisted that it had the consent of native title holders, but traditional owner Adrian Burragubba, who speaks for that land, has been bankrupted, has been bullied and has faced trespass charges for his efforts to protect his country. Further weakening of the consent requirements would see more and not less conflict among First Nations groups over contested resources projects. In the past I've spoken at length about Mr Burragubba's struggles and the injustice that has been perpetrated upon the W&J people, so I won't go into that now with my eye on the clock.

I recently also met with another group of sovereigns near Hope Vale in Far North Queensland. The Thitharr Warra and other common-law clan groups are strongly opposed to Diatreme Resources' Galalar silica mine. The proposal threatens water sources and cultural grounds as well as threatened species and significant geological features at Cape Bedford. The Thitharr Warra have accused their registered native title body of bullying, misrepresentation, accepting favours, hiding critical information, denying access to native title land and failing to undertake appropriate consultation to secure support for the Indigenous land use agreement.

Again, formalising governance structures that remove consensus will remove an avenue for First Nations owners to challenge decisions that purport to be made in their name but which they strongly disagree with. Those examples have quite a lot of similarities to the challenges faced by the Noongar claimants that led to the court decision—McGlade—that provoked this very bill. Legislating to default to majority decision-making is not the right response. Indeed, it goes against the full, frank and comprehensive consultation with all affected native title holders. What is needed is greater support to allow such consultation to occur, and any perceived administrative benefits in streamlining the process are far outweighed by potential discrimination and manipulation by a few against the balance of all native title holders.

Schedule 7 provides for additional dispute resolution assistance from the National Native Title Tribunal, although it is not entirely clear precisely what form that assistance would take. It's critical that the cost of accessing such assistance is not pushed unfairly onto native title groups and denied to those groups who are unable to pay. The RNTBC has a statutory role to consult and resolve disputes and should bear the costs of the resolution unless another arrangement is agreed to between the parties.

Schedule 8 proposes a number of amendments to the Corporations (Aboriginal and Torres Strait Islander) Act regarding the governance of those registered native title body corporates. But, whilst there are many changes needed to strengthen governance, it is entirely premature to amend the C(ATSI) Act while the comprehensive review of that act by the National Indigenous Australians Agency is still ongoing. I would have thought that was a fairly basic principle.

As I mentioned earlier, the Kabi Nation is currently in dispute with the Queensland government over plans for a highway that would destroy the sacred site of Djaki Kundu. The former representative body, the Yangga Buwan Aboriginal corporation, recognised the Kabi council of elders and First Nations governance structures that would have allowed the Kabi elders to speak against this destruction. But that body was dissolved without notice to the Kabi elders. They allege that the new registered corporation ignores the voices of the council of elders. It's that body that the Queensland government has consulted to get consent, despite the longstanding vocal opposition of the Kabi elders.

Members of the Thitharr Warra groups have expressed to me their support for strengthening the C(ATSI) Act to enforce rules regarding transparency and to allow native title holders to deal with improper behaviour and misuse of cancellation provisions by registered native title bodies corporate; however, they are strongly opposed to provisions that would require proceedings to be brought in the Federal Court, where applicants are already experiencing severe delays.

Finally, on schedule 9, as Senator Thorpe has set out, the decision in McGlade very explicitly and intentionally reversed the previous position on the retrospective validation of Indigenous land use agreements, ILUAs. Seeking now to get around that conclusion, even where an ILUA is compromised by fraud or misconduct, is unjustified. ILUAs are a critical document in the expression of and, in many cases the relinquishing of rights to country. They must only be formalised with the informed consent of all affected native title holders.

The Greens want to see a fair, accessible and effective system that delivers outcomes for First Nations people consistent with the UN Declaration on the Rights of Indigenous Peoples and consistent with international human rights law. In asking whether this bill improves the recognition and rights of native title holders, we conclude that it does not.