Dorinda Cox (WA, Australian Greens) Share this | Hansard source

I rise to make a contribution to the Aboriginal Land Rights (Northern Territory) Amendment (Economic Empowerment) Bill 2021. This bill makes some significant changes to the exploration and mining approvals on Aboriginal land in the Northern Territory. I echo the concerns raised by my colleague Senator Thorpe, who's done a considerable amount of work on this bill.

The Australian Greens have strong concerns about the changes to this bill that make exploration and mining approvals in the Northern Territory. The government claims that these changes will be streamlined and modernised towards mining in the Northern Territory and reduce red tape. This government is famous for using euphemisms and jargon to hide its motives, so when they say 'streamlined and modernised', what do they actually mean? There's no doubt this bill is being rushed through parliament at the expense of proper consultation with First Nations communities.

The Northern Territory has some of the strongest cultural heritage protections in the country. It's the only jurisdiction in Australia that provides traditional owners with the right to veto, the right to refuse exploration and mining activities on their country. This is incredibly powerful and should not be diminished, under any circumstances, and there are strong concerns from right across the communities that this bill could result in the right to veto being weakened. This include concerns about the impact of removing checks and balances from current mining approval processes, which means they're not protecting country. It's unclear if the proposed amendments dilute the ability of traditional owners to say no to mining on their land.

Some of the Aboriginal corporations provided powerful evidence, in the bill's inquiry, outlining their concerns. They explained that the changes being proposed by the government to mining approvals are complex and impossible to understand in such a short period of time. One corporation said in its submission:

The Coalition Government says that they will make the processes more efficient for the Minister, NIAA and miners without impacting on the rights of traditional owners. It is not clear, however, whether there is any benefit to Aboriginal people from these amendments. More importantly, there is no independent evidence produced that assesses the impact for traditional owners and the valuable right they have to consent to exploration on their land.

One of the independent First Nations MPs in the NT explained why any of these changes to exploration and mining approval processes need to align with the principle of free, prior and informed consent. He said that for this reason any amendments to this section of the law must result in robust processes that protect landowners' rights and interests and reinforce the principle of free, prior and informed consent.

There should never be a decision made for us. The land councils are intermediatory; they're not the decision-makers. I am concerned that any amendments to streamlining approval processes and creating greater flexibility may come at the cost of landowners' autonomy. These amendments require a high level of scrutiny that ensures that this doesn't happen.

The proposed changes in the bill enable land councils to convene meetings with traditional owners, and they must do that when that's considered 'appropriate'—rather than necessary—for the purposes of considering exploration licence applications. Professor Altman explained:

This discretion to provide land councils with greater flexibility might result in more or fewer meetings, but the power to convene such meetings seems to lie entirely with land councils, not traditional owners.

It's possible that land councils could restrict meetings in order to prevent objections to a mining project being raised by the traditional owners. Given that, in practice, land councils do not always obtain free, prior and informed consent from traditional owners, the Greens are deeply concerned about the bill's provision for land councils to take a more flexible approach to consulting with traditional owners about mining and exploration proposals. This provision carries the risk of less consultation and, as Senator Thorpe said before, consultation is not consent. Consultation can be undertaken and consent is then assumed when none has been explicitly granted.

It is clear that traditional owners were not consulted about the changes this bill proposes to the Aboriginal Land Rights (Northern Territory) Act 1976. They did not give explicit consent and they did not, in most cases, even know about these changes. It's not good enough for the government to explain these proposed changes by virtue of their benefits for industry and land councils. This is absolutely unacceptable. As explained by the Australian Human Rights Commission:

Without clarity and transparency as to how representative the support for this legislation is, there is no certainty that the changes proposed in this Bill have the free, prior and informed consent of the Aboriginal Territorians affected.

The Greens will be opposing schedule 2 of this bill—which proposes changes to the exploration and mining approvals processes—on the basis that free, prior and informed consent to these changes has not occurred. And there is a high degree of uncertainty around what impact these changes will have on the ground.

For too long in this country, mining companies have got away with manufacturing consent. Free, prior and informed consent is not taken seriously by the likes of Rio Tinto, BHP or Woodside. It is seen as a box-ticking exercise and it's used to buy off First Nations people to enable the destruction of cultural heritage. We see this happening right across the country—from Western Australia to Queensland to Victoria to the Northern Territory. In Beetaloo we saw consent being manufactured, when First Nations families were left out of the consultation processes on purpose. In fact, the committee heard evidence that NLC and Origin Energy did not properly communicate or consult with native-title holders from 11 determinations of native title across the Beetaloo. In my home state we have a system that legally permits the destruction of cultural heritage—every single day. Juukan Gorge is one example of traditional owners being forced to sign an agreement with a gag clause that stops them from speaking out about what's happening on their country. Gag clauses fly in the face of free, prior and informed consent, and they must be stopped.

At the moment state and federal laws do not properly consider the social and environmental impacts of the destruction of country. The rock art in the Murujuga is being eaten away by the acid gas from the Scarborough gas project—and yet the state and federal approvals for the Scarborough project do not require an assessment of how greenhouse gas emissions will impact on cultural heritage. This is a massive oversight.

So what does free, prior and informed consent really look like? Firstly, it means that consent is freely given—that is, free of coercion or pressure from any other party. It means that consultation is undertaken with all First Nations people impacted by the proposal, regardless of whether they're represented by a land council or not. It also means that First Nations people have full access to all of the information about how the proposal will impact on their community and their country. And this information needs to be provided in different languages and formats, to ensure that First Nations people who have English as their second, fourth, or sixth language are able to fully understand the proposal.

Accessible information is especially important in the context of mining agreements, which are usually full of legal jargon. I am deeply hurt when I hear about elders being forced to sign documents they don't understand by land councils and proponents. Obtaining informed consent also means providing independent assessment of harm to country as well as the social, cultural and environmental impacts of the project. True free, prior and informed consent means the outcome is not predetermined. Time and space are provided for extensive deliberation. First Nations people have the right to object to a proposal. They have the right to veto, and that is powerful. It's a powerful choice and its importance cannot be understated.

Finally, I want to touch on the sequence in which free, prior and informed consent needs to be undertaken, which is something that is often misunderstood by mining companies and the government. Free, prior and informed consent is not—it is not—a side dish; it is not something that can be dipped in and out of when it suits the mining company. It needs to be taken in a methodical way that allows First Nations people to lead this process. Anything short of that is manufactured consent.

Yesterday the government announced a new partnership with First Nations Heritage Protection Alliance to strengthen the safeguards of First Nations cultural heritage in this country. Minister Ley said the partnership will develop options to improve the laws, policies and processes that promote and protect the unique Indigenous heritage that exists in Australia. If this government were serious about strengthening cultural heritage protections in this country they would stop and engage in extensive, open and transparent consultation with all Northern Territory First Nations people who will be affected by this bill.