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

I wish to speak on the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006. In 1995, David Mowaljarlai, an Aboriginal elder from West Kimberley, said:

... I don’t own the land, but the land owns me. That is the strong thing in Aborigine law and culture. It’s about the land. I’m only a servant, we all Aborigines are servants, we serve nature. That’s why it’s so important for us, because the land owns us.

That is regarded as one of the definitive statements about Aboriginal relationship to land. The Aboriginal Land Rights (Northern Territory) Act, which is being discussed today, was the first and strongest legal recognition of the profound connection that Indigenous people have to their country and the communal nature of landownership in traditional Aboriginal law and culture. It recognised that relationship by granting a form of freehold title. It represented the most significant set of rights won by Aboriginal people after two centuries of European settlement. It returned about 50 per cent of the land area of the Northern Territory to its traditional owners. It went some way towards correcting a historical injustice and extending our legal system to recognise a non-European, communal ownership structure and the historical truth of Aboriginal rights on this land before European settlement. Australians can be rightly proud of the land rights act and the bipartisan spirit in which it was enacted.

With the bill before us, the government will seek to radically reshape that land rights regime and, I think, in doing so it will debase its symbolic value. The bill diminishes the rights of traditional owners over their asset: the land. It fundamentally seeks to alter the principle of communal landownership, which is at the heart of the land rights regime. The government has taken this step without proper negotiation with traditional owners and without their consent. It is hard to imagine that any other group of Australians would have their property rights treated in this way. The government is rejecting the tests set from the first days of the land rights regime—the tests that those rights should not be diminished without negotiation or the consent of traditional owners. It is squandering the opportunity to develop a negotiated package of reforms which recognise Aboriginal cultural principles and encourage appropriate economic development on Aboriginal land. The government’s actions demonstrate a lack of respect for Indigenous people and their culture. It represents yet another paternalistic attempt to tell Aboriginal people what is good for them.

Labor is proud that the land rights act had its origins in a Labor government and that we remain absolutely committed to the spirit and substance of the act. The act had its roots in the Woodward report, commissioned by the Whitlam government in 1973. Justice Woodward identified various aims of recognising Aboriginal land rights, including:

• The doing of simple justice to a people who have been deprived of their land without their consent and without compensation.

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• The provision of land holdings as a first essential for people who are economically depressed and who have at present no real opportunity of achieving a normal Australian standard of living.
• The preservation, where possible, of the spiritual link with his own land which gives each Aboriginal his sense of identity and which lies at the heart of his spiritual beliefs.

The need for justice, the need to recognise the spiritual link to land and the need to provide an economic resource for Indigenous people are as strong today as they were 30 years ago. With bipartisan commitment to land rights, the Labor legislation that lapsed at the election of 1975 was adopted and passed in almost original form by the Fraser coalition government. In the debate, the then Liberal Minister for Aboriginal Affairs, Ian Viner, noted: ‘affinity with the land is fundamental to Aborigines’ sense of identity’.

From the outset, a difficult test was set for those who might try to amend the act. The test began with Woodward, who stressed the importance of it. He said:

… ensuring that none of these interests or rights are further whittled away without consent, except in those cases where the national interest positively demands it—and then only on terms of just compensation.

That is, not without consent and only on the basis of a strong national interest. This is a tough test and it is a test that the Howard government’s bill, which we are debating today, has failed. There was no proper negotiation, no consent and no argument of strong national interest.

That approach and test was reaffirmed by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs in 1999. It was a restatement, if you like, of the Woodward test. The bipartisan report, Unlocking the Future, stated:

The Aboriginal Land Rights (Northern Territory) Act 1976 (‘the Act’) not be amended without:

• traditional Aboriginal owners in the Northern Territory first understanding the nature and purpose of any amendments and as a group giving their consent; and
• any Aboriginal communities or groups that may be affected having been consulted and given adequate opportunity to express their views.

Again, this is a test that the Howard government has failed in relation to this bill.

The failure to properly consult, negotiate with and afford basic respect to Aboriginal people in framing and pursuing these changes has engendered broad opposition to the bill. Not a single non-government submission to the very brief Senate inquiry that we were allowed was satisfied with either the bill’s content or the way it had been brought forward. Traditional owners, land councils, the Aboriginal and Torres Strait Islander Social Justice Commissioner, the Law Council of Australia and the Minerals Council of Australia all had reservations about the bill. The government is on its own in unilaterally reshaping the land rights regime.

Labor is committed to reforms which assist Aboriginal people in gaining maximum benefit from their land. Likewise, we as a party have always promoted the benefit of homeownership and have helped Australians to realise that dream for over a century. We will consider positively any proposal which assists Indigenous Australians to realise the economic potential of their land but we will do so in accord with other strongly held values.

Aboriginal land belongs to Aboriginal people and changes to land tenure on their land need to be negotiated with them and to have their consent. Reforms must be respectful of and appropriate to the principles of Aboriginal communal ownership and ensure the security of their title to Aboriginal land. To diminish their ownership rights as this bill seeks to do must be considered very carefully. Reform is a delicate and nuanced process but one which is achievable with a commitment to negotiation and consent and respect for Indigenous culture.

Aboriginal people, I have found, are very committed to appropriate economic development and they want better services and economic opportunities in their towns. In partnerships with mining interests, they are finding ways to maximise economic development on their communal land. More than 200 Indigenous land use agreements across Australia have helped achieve economic outcomes for traditional landowners and facilitate smoother leasing arrangements.

Labor supports the normalisation of services in townships and communities, and the capacity for Aboriginal homeownership and commercial enterprises in those communities. In spite of the government’s rhetoric, these things can happen under the current ownership system but Labor also accepts that improvements can be made and some new leasing arrangements could promote more efficient development and increase economic activity—for example, the transaction costs in securing a sublease on Aboriginal land can be high in terms of both money and the time it takes. We accept that this can delay development and we are committed to a constructive solution. We share common goals. There are traditional landowner groups who want to find a model that will streamline leasing and encourage economic activity yet preserve their role as decision makers and financial beneficiaries of development on their lands.

Traditional owners in north-east Arnhem Land, Wadeye and Yarrabah in Queensland are talking about long-term leases, but their models reflect their interests as ongoing landholders, not government interests. They are rightly suspicious of a government which will not supply adequate hospitals and schools but argues that taking over their property rights is the solution to their disadvantage. Ironically, elements of this bill are testament to the effective outcomes that can be generated through consultation and negotiation.

The bill includes a number of mining and exploration provisions which seek to streamline economic development opportunities on Aboriginal land. These are a response to concerns raised by mining interests and traditional owners and are in accord with the joint submission of the land councils and the Northern Territory government to the Commonwealth. They are the product of negotiation, have the consent and support of traditional owners and therefore receive Labor’s bipartisan support. Labor is moving an amendment to split this bill so we can expedite the passage of those negotiated mining and exploration provisions and seek to further negotiate tenure reforms which are respectful of Aboriginal ownership traditions and encourage appropriate development on Aboriginal land.

The Howard government’s changes proposed in this bill fall well short of Aboriginal people’s aspirations. The government seeks to characterise the debate as a conflict between land rights and economic development. It promotes a simplistic political paradigm in which Aboriginal people have to choose one or the other—protection of their land rights or the benefits of economic development. For Minister Brough, it is even more simple: he equates it to a choice between homeownership and communism. All other considerations are excluded by this simplistic and erroneous assertion. You can have private homeownership under his plan or continue to live in ‘communist communities’, as he describes them. That is the extent of the respect he shows for Aboriginal law and culture by characterising that observance and that heritage as communism.

There is ample evidence overseas of how communal land tenure and economic development can work successfully together. The government says that leasing arrangements under communal tenure are too time-consuming and represent a significant deterrent to investors and infrastructure development. Their answer is that the ownership rights of Aboriginal people therefore need to be diluted. Labor says: there are better answers. To the Howard government, land rights are a blockage that needs to be cleared away. For them this is not a policy debate but the continuation of an ideological battle—a rejection of a rights based approach—and what they now call a practical approach.

The commitment the coalition showed to land rights in the Fraser years seems a long time ago. They argue that because land rights have not delivered an end to Indigenous disadvantage they are somehow part of the problem. For Indigenous people and for Labor, economic development and land rights are not mutually exclusive. They are not ends to be chosen between. It is not a choice between economic development and communal ownership; it is a debate about how we best promote economic development on Aboriginal land.

Land rights are a basic legal ownership framework within which we can develop solutions to the particular challenges facing Indigenous communities and landowners. The government is presenting Aboriginal people with very difficult choices. In the hope of a decent economic chance and opportunities for homeownership, they are asked to trade off control of their land, which could effectively be for four generations, given the appalling mortality rates of Indigenous people.

No other Australian landowner would receive such an ultimatum from the government and no other Australian landowner would be expected to tolerate such interference in their property rights. The government’s defence of this criticism is that the scheme they are proposing is voluntary, and that should provide us all with enough reassurance. But these statements that the leasing scheme would be voluntary have been seriously undermined by the minister’s own approach in recent months.

Minister Brough and the government are using their powerful position to coerce communities into signing up to the leasing proposal. On two occasions it sought to link a total of $60 million in education and housing funds to an Aboriginal agreement to enter into a 99-year lease with the government. In a media release on 19 June 2006, Minister Brough stated:

Around fifty houses will be built and real jobs provided, if the community is safe and signs up to full school attendance, a no-drugs no-violence policy and agree to a 99 year lease.

You will get the houses if you sign up for the lease. This casts serious doubt on any assurances that the scheme is voluntary and raises concerns as to whether Aboriginal people are now being required to bargain away their land rights to secure basic services to which they are entitled as a right of citizenship.

Any amendment to the land rights regime needs to be intellectually sound and well thought out. Two recent government concessions on this bill are a clear indication that the original proposals were flawed and that the government is making it up on the run. The government has backed away from the five per cent cap proposal on rental income and the condition that Aboriginal people could not negotiate for any pecuniary interest aside from rent. I understand that as late as a couple of hours ago more amendments were circulated.

These changes are an acknowledgment that the government’s proposals in their original form were flawed and were not supported by Aboriginal people, whom we would have seen refuse to take up the scheme. The government is madly churning to try and ensure that it is able to implement the scheme given the hurdle it has in terms of Aboriginal agreement. But with the minister fixing up the holes in his policy as he goes, it is clear the plan has not been thought through and that the weaknesses stem in part from the failure to negotiate and seek Aboriginal consent.

The government simply asserts that this bill will facilitate homeownership and be a panacea for the entrenched disadvantage faced by Indigenous Australians. Of course, no evidence is produced to support that claim. It has floundered to provide answers to the important questions. How will Indigenous people, with some of the lowest incomes in the country, be able to service large mortgages? How will homeownership be achievable in the most remote regions of Australia where construction costs are high and incomes are low? What will happen to the traditional lands of those who default? Will this scheme see much Aboriginal land divested from its traditional owners, as was the case in Canada and the USA with their experiments? We are asked to take the government’s assertions and this bill on trust. This bill is desperately lacking detail and the Senate should not be and cannot be expected to pass legislation with so much important detail unseen—detail that goes to the very heart of Indigenous ownership and control of their land.

The government has been unable to indicate how the Northern Territory or Commonwealth government entities holding a 99-year headlease will be formulated or how they will work. Yet their formulation is critical to the degree of traditional owner representation and influence over future developments on their land—a key consideration for them and for Labor. The government has likewise been unable to indicate whether traditional owners will have to pay rent to these entities in order to lease back land that they already own. Labor cannot accept these changes when it is clear that so little has been thought through and when there are so many critical flaws in the policy.

The bill also includes a range of measures pertaining to land councils and their funding and independence and to the minister’s interference in the role of land councils. Labor has serious concerns about a number of those measures. However, they are consistent with the Howard government’s history of sidelining Indigenous voices and undermining Indigenous organisations. They do nothing for Aboriginal people and they look very much like the government is again seeking to tell Aboriginal people what to do rather than holding a meaningful discussion with them about the way forward. Some of the proposals in this legislation give the minister unheard-of powers and seriously undermine Indigenous control over their property.

This is a government which is strong on the rhetoric of traditional values of courtesy and respect—respect for elders and respect for property rights. It is a government which uses the rhetoric of small government to limit its interference in the rights of individuals to conduct their lives as they see fit. Why do these same values not apply when it comes to its dealings with Indigenous people? It is time the Howard government showed Aboriginal people some respect, showed elders some respect and showed some respect for Indigenous property rights. If the government cannot bring itself to show some respect for Aboriginal culture and connection to the land, then it should at least respect Aboriginal people’s right to be dealt with as citizens.

The land rights act was the first and most substantial legal instrument of its kind and, as such, is one of huge symbolic and practical importance to Indigenous people in the Northern Territory. The act is a demonstration that we can work to do justice in the shadow of injustice and that our legal system is expansive enough to accommodate different cultural and legal systems and principles. It conferred significant landholdings on traditional owners which are available for their economic opportunities. But the government’s failure to respect Aboriginal cultural principles, negotiate with the owners of the land or get their consent in pursuing the changes contained in this bill show a shocking level of disrespect for Indigenous people.

The government is arguing that land rights have not provided the economic benefit to eliminate Indigenous disadvantage and is therefore seeking to construct a Hobson’s choice for Indigenous people—choose between your rights to land and your rights to economic development. I do not believe it is beyond the wit of traditional owners and the government to devise land tenure arrangements which streamline development without fundamentally undermining Indigenous ownership and control of the land. Labor urges the government to go back and negotiate with Aboriginal people and talk with them, not at them. Then I am certain we will have a much better result than that proposed in this bill. The bill is an affront to Aboriginal Australians and to the bipartisanship that we should be seeking to gain in dealing with land rights legislation. I urge the Senate not to accept the bill in its current form.

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

The Democrats do not support the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 as it stands. There are components within it that have been developed through ongoing consultation with Indigenous peoples in the Northern Territory and with other stakeholders over a prolonged period of time, particularly with regard to the area of mining. Those components are the ones that clearly have the support of traditional owners and land councils and are the ones that we will not oppose.

But there are other components of this legislation which, despite all the talk of nine years of consultation, did not appear in any form until late last year or earlier this year. Some of the other components of the legislation actually go in the other direction, to findings of various reports that were brought down as part of previous consultations. So let us once and for all, from the start, put aside any farcical deception that this legislation has been the subject of ongoing consultation at the community level for the last nine years. Some components of it have been, but there are key, vital components that have not.

We only have to look at the evidence given to the disgracefully short Senate Community Affairs Legislation Committee inquiry into the legislation—by one of the few Indigenous voices at traditional owner level who were able to give their views—to see quite clearly that traditional owners are not aware of some of the components of this legislation, are not supportive of other components and have not been consulted on them. If we look at the Senate committee transcript of that single day of hearings in Darwin, we see that the officers from the federal government’s Office of Indigenous Policy Coordination made it quite clear that they had not spoken to traditional owners about some of the newer key, crucial and controversial components of the legislation; they admitted that up-front. They had spoken to the land councils, not to consult them but to inform them as to what the government was proposing, and left it at that. This is from the part of our government that is now responsible for overseeing all activities in the area of Indigenous policy. If there were any one group of people in the entire armoury of the federal bureaucracy who should know the importance of meaningful consultation with traditional owners, particularly on matters that directly affect them, it would have to be the people at the top of the Office of Indigenous Policy Coordination. But they did not do that consultation—they openly admitted that—and from what I could see they did not see any reason why they should have.

I drew the attention of the Senate committee and the officers of the OIPC to the submission from the government’s own Aboriginal and Torres Strait Islander Social Justice Commissioner which in part went to public commitments by this government in the domestic and international arenas with regard to the rights of Indigenous peoples—principles they had agreed to follow with regard to dealing with Indigenous peoples on issues and decisions that directly affected them. The core of those is the principle of free and informed consent by Indigenous peoples to legislative changes that directly affect their rights. The response from the OIPC officer—I think he was one of those who stayed in Canberra; he could not even be bothered to travel to appear before the committee in Darwin but gave evidence by phone—was, ‘Well, the concept of free and informed consent is a bit fuzzy around the edges.’ Like many legal concepts, international or domestic, it is fuzzy around the edges. But the fact that something is fuzzy around the edges should not be used as an excuse when it is quite clear what the heart of it involves. And it is quite clear that what this government did was not make any effort at all to give effect to any free and informed consent. How can there be free and informed consent when there is not even any informing in the first place? It does not matter how fuzzy the definition is; that is right outside any definition of free and informed consent.

So we have yet another example of lots of lofty-sounding rhetoric from this government, trying to fool people into thinking that they are doing things the right way, that they have some genuine commitment to these basic principles. But, when you look at the reality of what they do on the ground, there is not even a pretence of following these principles; they are treated with total disdain, complete contempt. Unfortunately, that is not just disdain and contempt for a nice-sounding principle; it is disdain and contempt for the Indigenous peoples themselves, for the traditional owners. I find that extremely offensive and very distressing.

When the previous minister announced by way of a media conference, towards the end of last year, this new idea about township leases, I spoke on that subject in the Senate. She did not give a ministerial statement in the Senate, because that is out of fashion. Important matters affecting the public are now announced via a media doorstop interview outside. Ministers very rarely bother to announce them through statements in the parliament now, thus making it more difficult to debate them. But, when I did speak on the matter a couple of times towards the end of last year, I spoke quite specifically about the need for direct engagement and consultation with the people who are affected, the people at the community level. No matter how fantastically brilliant the government thinks these changes are, if they are not going to involve the peoples whose land is affected, whose rights are directly affected; if they are not going to talk to them and treat them with respect, dignity and basic courtesy; if they are just going to impose it on them as another brilliant idea from Canberra, then the chances of it working are dramatically reduced. Of course, that is exactly what has happened. Not even the slightest effort was made.

What that says to me is not that the government did not think about it—of course they would have thought about it. What it quite clearly says is that there is no genuine commitment to try to make these changes work. If there were, there would be genuine engagement with the people who these changes affect. That is not a political or ideological point; that is just basic common sense. If you want a community to work with changes and to make those changes work effectively, then you work with them. You do not just drop it on them from a hundred miles above and then try to convince them afterwards that it is a fabulous thing that is going to be good for them, particularly not when it is something as fundamental as this, and particularly given our extremely sad and sorry history with regard to the dispossession of Aboriginal people.

It seems the latest form of conservative political correctness these days is that you are not allowed to talk about Indigenous history. You are not allowed to talk about symbolism or rights because we all have to be practical, and if you talk about history you are looking backwards, and we have got to look forward; we cannot be trapped in the past. I agree that we cannot be trapped in the past, but there is no way we can walk effectively into the future unless we honestly acknowledge how we got to where we are today. And there has been no honest acknowledgement of how we have got to where we are. That is part of why changes like these can be made with such contempt and such dismissiveness, not just towards the Senate and the parliament—we in the Senate are getting used to being treated with contempt—but, far more importantly and far more unforgivably, towards Indigenous people.

That, to me, is the core problem with this legislation. I have stated publicly a number of times that, even though I have concerns with the specifics of some aspects of the legislation, if the traditional owners, or a reasonable proportion of them, were to make it clear that they were broadly supportive of these changes going through then I would vote for them anyway because this law is, first and foremost, a law regarding the Aboriginal people of the Northern Territory. If they are supportive of it then that is their business. But the evidence is quite clear, even from the very limited Senate inquiry that we had, that they are not supportive of it.

I should emphasise and put on the record that this legislation first appeared at the end of May—less than 2½ months ago. The initial indication from the government when requests were first made to refer it to a Senate committee was that that could not happen, because it had to pass by the end of June. The initial insistence from the government and from the minister was that this had to be pushed through within less than a month. With some strong urgings—urgings that it was in the government’s interest, let alone basic due process and decency—there was agreement to hold the briefest possible Senate committee inquiry. I sometimes wonder these days whether Senate committee inquiries that are impossibly short just give the government a fig leaf to make it look like they have engaged in consultation when they have not.

I note that a number of people, including important witnesses such as Oxfam Australia, did not put in submissions to the inquiry, because they did not have time, in the extremely short time frame available, to put in meaningful submissions. The committee did not have time to take evidence from some of the people we would have liked to have had evidence from. The report of the committee, which included government members, categorically stated that there was insufficient time for the committee to properly scrutinise the legislation. With legislation as fundamental as this you cannot get a more basic description of contempt than that. The Senate committee members, including the government members, openly stated that there was insufficient time to scrutinise it. How contemptuous can you get?

And it is not just traditional owners that we were not able to hear from. Other important bodies I would have liked to have had more evidence from included, particularly, the Minerals Council of Australia. When you have the mining industry in the Territory lining up with Indigenous people in the Territory in expressing concerns about some of these changes then you know something is deeply wrong. If you look at the detail of the changes, you can see why. There is a consistent pattern coming out, with many different pieces of legislation in a wide range of areas being forced through the Senate, of more power being centralised in the hands of the national government.

We have heard a number of federal government ministers in recent times speaking more and more frequently about the need to get more and more power into the hands of federal government. Whatever the area is, it seems that the government’s solution is to give more power to themselves. That is what they have done in the area of Indigenous affairs; we have already seen it in a wide range of other areas. In the administration of Indigenous issues, under the guise of so-called mainstreaming, we have had the government taking full control. Even though all the rhetoric is of opening up more opportunities for economic development for Indigenous people, creating more flexibility and generating opportunities for enterprise, what you see when you look at the detail is more control for the minister.

That is why the Minerals Council are also concerned about some of these changes. Indeed, even where you had amendments recommended by the land councils, by the Northern Territory government and by the minerals industry, the government did not make some of those changes in particular areas, because that would have meant them relinquishing control and giving more control and power to the land councils, the traditional owners and industry to work it out amongst themselves. You would have thought that a government like this, with all their ideological rhetoric, would be all for any opportunity for government to get out of the way and allow Aboriginal people and industry to figure it all out for themselves without red tape, without bureaucracy and without government interference.

If you look at all of the contentious changes in this legislation, you see that they all have one thing in common: they either give more power to the minister and the government or they take power away from Aboriginal Australians. Sometimes they do both in one measure. When you look at that you see a pattern, and that is why it is not sufficient for the minister to give vague assurances that there will be no coercion of Aboriginal people to sign up to 99-year leases on their townships—that it will all be voluntary. He can say that now, but once the legislation is passed there is no way of preventing people from being coerced in all sorts of ways into leases that they would rather not enter into.

If you look at some of the other changes in the legislation, you see changes that increase the minister’s control over the budgets of the land councils. Previously, there was a legislative minimum that land councils had to receive each year. They had a guaranteed floor that they knew they would receive each year in funding. That is now to be taken away. What other possible reason could there be for that, other than for the federal minister to have more power, more influence and more ability to provide implicit threats to the land councils? If they do not do the right thing then their budgets can be diminished. Anybody that suggests that does not and would not happen is either a fool or a liar. It happens time and time again. It is not a practice solely the province of the current federal government; it is the practice of governments state and federal, Labor and Liberal, over a long period of time. It seems to have got worse, I might say, in recent times, at both state and federal levels; it is a practice that we all know happens. If this legislation goes through, it will be a clear example of where there is a major weapon in the back pocket of the minister. The minister will be able to require the land councils to do what he wants and to inflict punishment if that does not happen.

In addition to that, the minister now gets power to be able to override a land council’s refusal to delegate powers and functions. Supposedly, there is more flexibility because the land council can delegate more easily, and that is good, and they can also decide that they do not want to and keep the decision with themselves. But under this legislation they can have that overridden from left field by the minister. We have the potential for the minister to be able, against the land council’s wishes, to more easily establish smaller land councils. These are the sorts of provisions that were opposed and have been opposed by the Minerals Council for the simple reason that it will increase uncertainty. It will mean the potential for dealing with different people and different bodies making different decisions about the same situation. This legislation has the real prospect, which perhaps in some respects could please some environmentalists, of making it more difficult to establish mining in the Northern Territory. It actually increases the potential complexity and the prospect of bureaucratic interference.

The other aspect which I think really does need emphasising is: who will be paying for any 99-year leases that occur over townships? Remember, this is the government’s brand new idea. The government have not consulted with traditional owners and it has not been part of the long reconsideration of this act to have a 99-year headlease over a township. Yet any rents payable to traditional owners who agree to lease their land will come not from the lessee, like the Northern Territory government, for example, but from the existing pool of money already set aside for Aboriginal people which has been directly derived from mining royalties on Aboriginal land. Frankly, every time I look at this I think there must be a mistake. They could not be so brazen as to say under the guise of providing economic opportunity for Aboriginal people, ‘You can rent your land to somebody else for 99 years and the money to pay for that rent will come from your own money that has already been set aside.’ Not a single new cent will be provided to assist in the so-called economic development for Aboriginal people under this act if any of these leases are agreed to. The money will come from funds already set aside for the benefit of Aboriginal people and derived directly from mining royalties from their own land. So, to pay for leases, the government is now going to dip into that set amount of money already there and meant to be used for Aboriginal people.

There are a range of other aspects that need some questioning in the committee stage. One of the downsides of not having time for proper committee inquiries is that in the committee stage of debate we have to ask the questions on the floor of the chamber. The government might think that it saves time by having short committee inquiries but it actually chews up the time of the Senate as a whole. I will explore some of those other matters later.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The Greens believe that elements of these amendments are bad legislation. We are concerned that some of the amendments contained in the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 will have significant impacts on Aboriginal communities. These are the biggest changes in over 20 years to what is considered in Australia to be landmark legislation that covers a large proportion of Aboriginal controlled land in this country—up to 50 per cent of the Northern Territory. Yet it is being rushed through the Senate with undue haste, causing significant community confusion and concern. The government claims that there has been sufficient community consultation going back over a number of years on this bill. This is disingenuous. While it is true that there has been consultation on some of it, there has not been on the controversial elements. It is telling to note that on the aspects of the bill that have had proper stakeholder input there is little controversy and broad community support.

I was interested to note today when we were talking about the heritage protection bill in this place that Senator Kemp made the point that the government will be consulting. He said:

One of the reasons that this government has been able to get itself re-elected is that it does have a reputation for being a consultative government. It is a government that gets out and it listens.

It has not consulted on this issue. Let me state here very clearly that as far as these sections of the bill are concerned—those amendments arising from the joint submission made by the four land councils and the NT government in 2003 and designed to improve the workability of the legislation as it relates to mining agreements—the community supports them and we support them. As far as the other newer proposed changes are concerned—those that have not had proper community consultation and around which there is significant community concern—we do not support them. We believe that they need to go back to the community and the government needs to get it right.

There are a number of unintended consequences of this legislation which will create disincentives for economic development and homeownership in Aboriginal communities and make it more difficult and costly to resolve issues and develop agreements. Ultimately, they will prove counterproductive to the stated aims of this legislation. To this end we are proposing that the bill be split to allow further development and consultation on those elements of the bill that are contentious and those that have not been adequately discussed. Let us move into law immediately those sections of the bill on which there is broad agreement and defer the newer parts for further work and further community consultation.

We strongly support the idea that problems associated with economic opportunities in Aboriginal lands urgently need to be addressed and we strongly support moves that remove disincentives to investment and enterprise development that benefit Aboriginal communities. We support moves to streamline processes and get rid of unnecessary red tape, but not if they disadvantage Aboriginal communities. We support increased positive incentives to encourage business and employment opportunities for Aboriginal people.

If the government is genuine about economic development for Aboriginal communities then it needs to take time to address these issues effectively, talk to the experts in Indigenous development and look at what has and has not worked both here and overseas. If the government is genuinely concerned about creating real jobs and homeownership for its Aboriginal citizens then it will not push through these ill-informed changes in their current form. Instead, it will present a package of amendments, projects and programs to address economic development.

Given how wrongheaded these amendments are and the government’s apparent unwillingness to support deferring this legislation, I must question the government’s motives to rush this legislation through. The ultimate aim of this legislation may be to diminish the power of land councils, destabilise government structures, increase the power of the minister and take away control from traditional owners so that outsiders can come in and exploit their land and resources.

It is interesting to note that remote Aboriginal communities that are not on Aboriginal land face many of the same problems and constraints as those communities where land rights have been granted, yet the government is not moving to deal with these issues. The issue of facilitating economic development on Aboriginal land, particularly in relation to developing enterprise and employment opportunities for remote Aboriginal communities, is an extremely important one that requires a considered and concerted approach. We are pleased to see that the government is now demonstrating a willingness to address this issue, but the current approach will not prove effective.

The main impediment to economic development in Aboriginal communities is not the issue of land tenure and private leases. Housing access, rather than individual house ownership, is an issue. There are many more pressing issues that need addressing. Constraints to economic development include the incredible remoteness, transaction costs, transport costs, limited opportunities, small population sizes with no economies of scale, the lack of equity in terms of low income and low rates of employment and, in particular, the lack of education, training and infrastructure. These are all issues that constrain economic development.

I note with interest a report that has just been released by Reconciliation Australia which looks at Indigenous community governance. It is a research project and it also looks at socioeconomic development. It points out that common factors for successful socioeconomic development include:

... strong visionary leadership; strong culturally-based institutions of governance; sound, stable management and professional staff support; strategic networking with public or private sector partners to engage with the wider economy; having infrastructure substantially in place; having access to relevant training and mentoring opportunities; and hard-headed strategic planning and review procedures.

It goes on to say:

While improved governance can strengthen economic development, given the rapidly growing Indigenous population there is an urgent need to increase investments in infrastructure and essential services if current levels of socioeconomic development are not to stagnate or go backwards.

The majority equity that Aboriginal communities have to use to promote economic development is their land. The way that land rights and native title work in Australia makes that much more difficult because, unlike in other countries, communities are not granted full freehold lease title, which greatly limits the amount by which they can benefit from resource exploitation, such as mining.

The Northern Territory has very restrictive tenure arrangements over community living areas that basically mean that Aboriginal people cannot undertake economic development opportunities in Aboriginal town sites. If the Commonwealth and the Territory believe that tenure is the main impediment to economic development, why are they not fixing these issues? Why are they only looking at these issues on Aboriginal land? What Aboriginal people need is the ability to enter into joint ventures, to enter directly into these enterprises and to develop their equity. However, at the moment they are restrained in their ability to bring money to the table.

A number of aspects of this legislation are cause for concern—for example, the provision to create 99-year headleases, under the new section 19A. We believe this will not result in either an increase in private homeownership or more enterprise being developed in townships on Aboriginal land. At the same time, this may have a number of unintended consequences that undermine the prospects for economic development. The community is very concerned that headleasing and subleasing provisions could mean that traditional owners relinquish control and cannot prevent inappropriate commercial development on subleased land—for example, liquor outlets subleased in dry communities. Unless traditional owners are convinced that there are provisions to ensure that economic benefits to them are safeguarded, this uncertainty will act as a disincentive to grant any such leases.

It is arguable that there is no need to introduce this new headleasing scheme because private leases are already available under the existing section 19. This has already happened with the Alice-to-Darwin railway and with the gas-processing plant near Wadeye. The reason individual private leases for housing are not already happening is an issue of demand, not of the difficulty of the process. Most people in Aboriginal communities simply do not have the income to buy their own homes, even if they want to, nor do they have the money to maintain them. As I said previously, the issue is to do with access to housing.

If the issue is the complexity of developing leases under the current section 19 provisions then the government should simply look at streamlining the existing section, rather than develop a whole new 99-year headlease scheme which vests control in an outside entity. The Northern Territory government entity that controls the subleases remains totally unknown. The Northern Territory legislation has not been drafted and there is no information available on the powers and composition of this entity or how it will operate. Is it to be a not-for-profit entity? If not, where do the sublease profits go? If the rental for the headlease is fixed, can the entity make a profit from the sublease? What say do the traditional owners then have in the approval of the subleases?

Under the fixed terms of the 99-year lease, traditional owners lose control for four generations. This could mean that they lose the chance to respond to future opportunities when the situation on the ground changes and some real opportunities for economic development emerge. It is unclear whether this means that the rent remains fixed as well. Traditional owners are concerned that they may lose control over townships on their land to community residents from other cultural groups. It is the land councils who will be negotiating the conditions of the lease. When this is taken in combination with the provisions creating new land councils—where 55 per cent of members live nearby and are not necessarily the traditional owners of the land—and delegating the functions of a land council to Aboriginal corporations, who are not necessarily working in the best interests of the traditional owners, this creates a problem. It could mean that a group of residents who are not the traditional owners of the land on which a town site is located could effectively be taking control of a township lease.

The government has asserted that these headleases will be purely voluntary. However, the committee inquiry heard evidence of at least two cases where communities have been required to sign on to headleases in exchange for the delivery of what are arguably basic and essential services. On Elcho Island, I understand that Minister Brough has sent an open letter to the community, giving them two months to sign on to a headlease if they want funding for 50 so-called additional houses to meet chronic unmet need. Given the severe housing shortage on Elcho Island, the provision of adequate housing is an essential service—not, as the minister claims, a discretionary one.

Then we look at the Tiwi Islands and the secondary boarding school. The OIPC have argued that this is not an essential service, but a discretionary extra, because it will be a private boarding school. This is despite the fact that there is an urgent need for secondary schooling on the Tiwi Islands and the government has a long record of providing resources for private school infrastructure elsewhere with no strings attached.

The Department of Education, Science and Training stated clearly in Senate estimates, when cross-examined by Senator Crossin, that the $10 million was conditional on signing the headlease. Housing and education are essential government services that most Australians take for granted. Federal, state and territory governments have been failing in their obligation to deliver these services to Aboriginal communities for decades. Where the provision of essential services is woefully inadequate, it is disingenuous to claim that requiring Aboriginal communities to sign away their rights in exchange for ‘extra’ services is a voluntary decision. This amounts to coercion.

What this government is effectively doing is selling to Aboriginal communities the services we take for granted as our rights as citizens. It is doing this by requiring them to sign away control over their communities and by using ABA moneys to pay for town-planning services which are normally provided by local government.

We have similar concerns about the delegation of land council powers. These provisions are highly likely to undermine the stability and workability of the land councils and to promote dispute and litigation. There is a very big difference between enabling the land councils to delegate some of their responsibilities to regional bodies to make it quicker and easier to deal with local and regional issues and what is proposed in this bill. Proposed sections 28B and 28C are a radical departure from the normal administrative rules relating to delegation of powers. Proposed section 28B means that once a delegation is made it cannot be varied or revoked by the land council, except at the request of the delegate or on the say-so of the minister. The minister can unilaterally grant a variation or rescind it by written direction to the land council—whether they want it or not.

Proposed section 28C means that the minister can delegate powers if a land council refuses to do so. This is not delegation; this is a mechanism to strip and reallocate the core functions given to land councils under the act. Proposed section 28D means that while a delegation is in force a land council cannot exercise its functions regarding that subregion. However, at the same time the land council must provide the corporation with the powers that have been delegated to it and facilities and assistance to perform the delegated functions. There will be an increased demand on limited resources combined with confusion and inefficiency brought about by the duplication of services. The council is still ultimately responsible for its statutory obligations but may no longer be in a position to carry them out.

This is madness. It is clearly politics of divide and conquer. We expect that it will increase conflict and litigation. We believe that this will diminish the potential for economic development in remote communities. It will scare off partners or investors, not encourage them. These provisions are not about simply enabling more efficient and effective decision making about regional issues at the regional level. Giving the minister the power to override land councils subverts their existing governance and accountability arrangements for no appreciable gain. We believe that if the government is serious about fast-tracking development it should drop altogether the proposed provisions under sections 28C, 28D, 28E and 28F.

Then we come to the establishment of new land councils. Some well-thought-out and sensible recommendations on how to create new land councils were provided in the report of the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs Unlocking the future, in 1999. It is ridiculous that the government has ignored these recommendations and effectively gone back to the approach of the discredited Reeves report—of which the committee report was universally critical—and is seeking, for ideological reasons, to effectively dismantle the two large land councils by other means.

At the same time as this plan for breaking up the land councils is going ahead, there has been an ongoing process under native title to create larger native title representative bodies because of the obvious benefits in terms of capacity, resources and economies of scale. We do not believe that a 55 per cent vote represents a substantial majority, and we believe that having such a low threshold increases the likelihood of internal conflict and instability. Because the bill specifies only 55 per cent of ‘people living nearby’, we are concerned that traditional owners could be sidelined and disempowered by Aboriginal people from other cultural groups who do not have rights and responsibilities for that area of the land.

Then we come to the use of the Aboriginals Benefit Account. We do not believe that the use of the Aboriginals Benefit Account to fund the new leasing arrangements is appropriate, and we support the concerns of the Minerals Council of Australia—it is very unusual for the Greens to support concerns of the Minerals Council of Australia—that the ABA moneys are increasingly being seen as a substitute for government funding of basic social services. We are concerned that, by effectively taking over administration of ABA funds, the government is undermining the fund’s role in encouraging and supporting economic development initiatives. It is simply outrageous that ABA money is being used to fund changes that the communities do not want and do not support. We also have concerns about the termination of non-contiguous claims to intertidal zones, riverbeds and banks, and we believe that further work is required to resolve this issue in a satisfactory manner.

I want to very quickly touch on the issue of the Senate inquiry and committee report. We were extremely disappointed at the limited time allowed for the Senate inquiry, which gave stakeholders a very short space of time to put in submissions, and the fact that there was only a one-day inquiry. The committee listed a number of substantial issues with the bill; however, its final recommendation that the legislation should go ahead and further community consultation should be allowed after the act has been put in place `is inappropriate. It is not the way to deal with substantive issues of this kind. Because these changes will have such unintended consequences, we believe that just going back to communities after the fact to deal with the changes in this legislation will be impossible.

This legislation needs to be split. The elements that do not have community support and that will have such unintended consequences, such as the impacts on communities, land councils and traditional owners, should be withdrawn and should go out for community consultation. If the government is genuine about promoting economic development in Aboriginal communities, it needs to come back with a fully consulted and considered package that genuinely addresses the fundamental constraints to economic development in Aboriginal communities. Subleasing and promoting individual homeownership and a miraculous belief that that will therefore deal with all the economic problems in Aboriginal communities is, to my mind, wrongheaded. This bill needs to be split.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

I am happy to rise in my place today to indicate my support for the legislation on the table, the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006. Indicating one’s view about this legislation does rather depend on whether you see the possible shortcomings in it or the potential that it holds. For my part, I believe this legislation should properly be characterised as a bill which offers an enormous opportunity for growth, empowerment and economic development for at least certain parts of the Aboriginal communities of the Northern Territory.

This legislation in particular addresses the fact that there have been 30 years or so of land claims in the Northern Territory, resulting in approximately half of the land area of the Northern Territory being Indigenous-owned but, in that period, relatively little economic exploitation for the benefit of Aboriginal people, traditional owners, of the land that has come into their legal ownership under these reforms, which were enacted in 1976 by the Fraser government. I believe anybody who observes the state of Aboriginal Australia today needs to acknowledge that part of the solution to the very many problems faced by Indigenous Australians is to give them greater access to economic power and the capacity to fund and resource solutions to the problems that they face.

I see—and, of course, the federal government sees and, to a large extent, the Northern Territory government sees—the reforms in this legislation as being part and parcel of the program to give Aboriginal Australians in the Northern Territory greater economic clout, greater capacity to exploit their most valuable resource, which, in many ways, is the land that is traditionally theirs. These are the most comprehensive reforms to Aboriginal land rights legislation since it was introduced in 1976. I believe it does allow for greater economic returns on land which have not been fully identified, understood and, certainly, exploited.

In many ways, we need to change the paradigm which operates in communities in the Northern Territory. It is a paradigm which could be said to have let down Aboriginal people. I believe that the dynamics and considerations that apply in the rest of Australia—issues such as home ownership and the capacity to secure access to resources that will be an ongoing source of economic wealth—are equally to be exploited within the context of Indigenous communities in the Northern Territory. These changes will make it easier for Aboriginal people to own their own homes and for businesses to operate in the Northern Territory on Aboriginal land in the way that they operate in other parts of Australia.

Debate interrupted.