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

Last night I was making the point about the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 that this bill is more about opportunity than it is about a lack of opportunity. The bill represents an important step towards enabling Indigenous people in the Northern Territory to obtain an economic advantage from the land which, over the last 30 years, under the land rights legislation, has been transferred to the ownership of those Aboriginal people. It is important that we therefore consider in this legislation a shift in the paradigm whereby such land might be used for the benefit of its traditional owners. The fact remains that it has been the case that that land has, for the most part, not been available for such economic exploitation, and this has unquestionably worked to the disadvantage of Indigenous people in the Northern Territory.

I want to focus for a moment on one particular proposal in the legislation, which is that it will be easier for Indigenous people to own their own homes and businesses on land in townships. The scheme was developed by the Northern Territory government. It is important to put on the record that it is not an initiative of this government but in fact was proposed by the Northern Territory government. What is more, it is a proposal which is entirely voluntary and would apply only to townships where most of the residents are not traditional owners. Traditional owners have the power under these proposals to set lease conditions and retain freehold title to the land. It is not about the alienation of Indigenous land—at least not for more than 99 years.

The federal government can only offer homeownership to townships if land tenure issues are resolved. Land councils do have a role to play in respect of this, but the decisions are principally ones for owners of townships. The dynamics which these changes engineer are ones which permit a use of land which is much closer to that which occurs in other parts of Australia. For instance, it will be possible now for individual Indigenous people or families to obtain ownership, at least for 99 years, of a parcel of land. It will also be easier to regularise the arrangements whereby a business might operate in or move to a township and have a form of land tenure which is much more like what they might enjoy in another part of Australia.

At the moment, many such businesses, if they operate in those areas, operate under a licence arrangement. It is very difficult to see how any business would be willing to invest a large amount of capital in the growth and development of a particular business when there are such uncertain arrangements about the use of the land on which those businesses are based. I think that this development offers the prospect of much better use by and attraction to business of parcels of land for commercial operations.

It is true that many Aboriginal people in the Northern Territory would not be able immediately to take advantage of provisions that allow them to purchase their own homes. It is true that the level of disadvantage in many communities is such as to not make those provisions immediately available for the use of many people. Senator Siewert made that point in her remarks yesterday. But I would say to the Senate that the fact that not everybody is able to take advantage of provisions of this kind should not be an argument against making it possible for those who can.

The argument that if all cannot benefit then none should is a very weak argument indeed. The fact is that some land councils in the Northern Territory are keen for these provisions to be available; some are ready to take advantage of these provisions and to put in place arrangements for better commercial use of land and for ownership to be transferred to people who live in those townships under the 99-year lease arrangement. I think it is unconscionable for the Senate to stand in the way of those arrangements merely because some people in other parts of the Northern Territory may not be in a position to take up and use those arrangements immediately.

Senator Siewert made the comment yesterday that under these proposals traditional owners lose control of their land for four generations—for 99 years. That is true up to a point but, first of all, the conditions under which such leases are to be granted are essentially conditions that are set by traditional owners before the initial 99-year lease occurs. Secondly, if there is a loss of control for those 99 years, or four generations, it is no more or less than occurs in many other parts of Australia where leases are granted and where a measure of individual or corporate ownership occurs over land that is otherwise owned by somebody else for a period of time that approximates with that 99 years. If it works in other parts of Australia and if it is acceptable as a device for the commercial exploitation of land in other parts of Australia, why is it not acceptable on Aboriginal land?

The bill means that many townships under Aboriginal control will need to have a different way of looking at the land that exists in those townships. But it is clear to anybody who visits many of those communities that there is a serious problem in those communities, a problem rooted in poverty and a lack of opportunity, and a problem which the present settings do not adequately address. I believe that it is important that we rethink our approach towards the issues in those communities, and this is part of that process. It is part of introducing the kinds of motivations, the kinds of commercial dynamics, in those communities that apply in other parts of Australia. I have no reason to believe that the principles that work in other parts of Australia would not work in these communities as well. I emphasise again that the 99-year township leasing program was one that was originally proposed by the Northern Territory government and was supported, at least in principle, by a number of witnesses who came before the inquiry by the Community Affairs Legislation Committee in Darwin a few weeks ago.

The arrangements proposed in the legislation with respect to mining provisions are somewhat less controversial. They make for easier and clearer pathways for decisions to be made on exploiting the potential to mine on Aboriginal land. Again, the whip hand is retained by traditional owners. It is they who determine the essential conditions under which such arrangements are worked out. Many of the somewhat outdated impediments to making decisions on that land are to be removed by this legislation and I think they are widely seen as being appropriate steps in the right direction.

There are other provisions in the legislation dealing with, for example, the potential to create new land councils which attracted some criticism in the inquiry. These are among a number of provisions in the legislation which may have great benefit to Indigenous communities but which may also create controversy if they are used in the wrong way. On that point, I make the observation that if we stood against any legislation in this place which had the potential to be misused, which had the potential to be wrongly applied by individual governments from time to time, we would not pass a great deal of the legislation that comes before this House. But we have to accept that in order to create opportunities some risks might have to be taken that such misuse or abuse of power might occur. I do not believe that any of the governments involved in exercises such as this, and I refer to the federal government and the Northern Territory government, are likely to exploit such provisions to the disadvantage of Indigenous people in the Northern Territory. I believe there is enough goodwill on the part of the governments concerned to ensure that these provisions are used for the benefit of Indigenous people in the Northern Territory, and provide for an injection of certainty into arrangements which in the past simply have not had sufficient certainty to allow firm decisions to be made.

For example, under present provisions it is possible to create new land councils in the Northern Territory where a ‘substantial majority’ of Indigenous people support the creation of a new council. That has not been defined. What is a ‘substantial majority’? In the past we did not know exactly what that was. This bill defines that substantial majority as 55 per cent of Indigenous people living in an area where a new land council might be created. That is the kind of certainty which people need in order to be able to make arrangements for the future, to deal on a commercial basis with particular landowners and to identify the issues which need to be identified in order to proceed to negotiate outcomes which are to the advantage of those people who own that land.

There are other provisions dealing with the termination of land claims, for example, the termination of claims over intertidal zones and riverbeds which are not contiguous with existing Aboriginal landholdings. It seems to me that that is an entirely sensible arrangement. Although such claims have occasionally been granted in the past, there really is not a reason why land which is not contiguous with existing Aboriginal landholdings should be treated in that way. Again, this is about an end to uncertainty.

It seems that the opposition and others in the chamber are opposed to these changes. They are intent on defending the status quo. They want to resist the measures in the legislation for greater flexibility, greater accountability and the use of some market principles. That is unfortunate because it is clear that even others within, for example, the Australian Labor Party see potential in these provisions.

I note again that the Northern Territory government gave substantial support to many of the provisions in this legislation while expressing some concern about the time frame in which they were being implemented. Nonetheless, for the most part they accepted in principle the reforms inherent in this legislation, including those provisions which had more recently been added to the proposal by the minister.

It is important to remember that these changes are going to in large part be administered by the Northern Territory government. They are not about the federal government making day-to-day decisions about use of land in the Northern Territory or about creation of new land councils and so forth. Many of the changes which this bill provides for will confer powers in effect on the Northern Territory government, and it will be making these decisions. So, if there is some sort of conspiracy here to deprive Indigenous people in the Northern Territory of some rights over their land, it is a conspiracy in which obviously the Northern Territory government is at least to some extent a partner. I said that we should look at the benefits in this legislation, not the potential for harm, and I believe that is the case.

I want in the last couple of minutes to make reference to a couple of other matters. No doubt members in this chamber will have had a great many emails and phone calls in recent days from members of the community who are concerned about these changes. As members will be aware, that has largely being generated by the GetUp! website, which has begun a campaign on this legislation. I note that in my case, and I suspect it is the case for other senators, there was almost no correspondence on this legislation before the weekend and now there is a flood of it. I think that reflects more the power of sites such as GetUp! than necessarily a genuine basis of concern in the rest of the community. I do not think that people, though, ought to take their information from one single source, a source which has been universally critical of the present federal government, and consider it to be the only source of information to use for finding out about important reforms such as this.

The Community Affairs Legislation Committee report which was presented out of session last week does endorse the legislation being passed, but I need to put on the record that the committee did feel that there was inadequate time to completely and comprehensively cover the issues which were entrusted to the committee to review. This was not a conspicuous example of the Senate committee system working at its best, and I put on the record that I would urge the Senate to consider very carefully putting issues of such significance into committees which already have a very heavy workload. That was certainly the case for the Community Affairs Legislation Committee. (Time expired)

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Next week we celebrate the anniversary of one of the most remembered and historic moments in the history of this country. It will be 40 years ago, on 16 August 1975, that Gough Whitlam poured a handful of soil from the Daguragu land into the outstretched palm of Vincent Lingiari in a gesture signifying the handing back of 3,236 square kilometres of ancestral land and the final chapter in the Gurindjis’ nine-year fight. The official record of this significant gesture was the drafting under the Whitlam government of the land rights legislation finally passed by the Fraser government.

Let me spend a moment looking at the history of the legislation, which was the culmination of the royal commission conducted by Justice Woodward. The Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 before us today would make the most significant and monumental changes in the history of the legislation’s existence. The legislation was designed and has always been seen as an instrument to preserve and strengthen Aboriginal interests in rights over the land and ensure that these interests are not taken away without consent. After review by Justice Toohey in 1983 and amendment as a result, we did not see any other attempt to change the fundamental intent of this legislation until the arrival of the Howard government.

John Reeves QC was commissioned to undertake a further review of this act in 1997, and the controversy of his report culminated in the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs considering his recommendations and the implications of these for change. The report that the House of Representatives committee wrote is there for the history books and should be read by anyone who has an interest in this legislation. The unanimous recommendations—that is, recommendations supported by government members and opposition members in this building—especially the first of these recommendations in the report Unlocking the future, say that this act should not be amended without the traditional owners in the Northern Territory understanding the nature and purpose of these changes and giving their consent and, further, that any Aboriginal communities or groups that may be affected should be consulted and given adequate opportunity to express their views.

That thought was good enough for government members in the House of Representatives to sign up to in 1998-99. It is a pity they did not stick to their view when this bill was put through the House of Representatives in June. We have seen all too often of late the arrogance of the government with control of the numbers in both houses and we have seen their preparedness to abuse such control. This is another of those examples.

This legislation has been rammed through with minimal debate, minimal scrutiny and minimal time for any Senate inquiry. We have just heard Senator Humphries admit that the Community Affairs Legislation Committee of this chamber had a grossly inadequate time frame in which to deal with such serious ramifications as this act presents. The government think they know best on all matters and that they do not have to consult, negotiate or debate with anyone except their mates. The Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 before the Senate chamber today is no exception. As I have travelled around Aboriginal communities in the Northern Territory, particularly in last six months, I have heard constant complaints that Indigenous people have not been consulted and have not been given time to understand, consult and talk with one another about these major changes.

The Aboriginal land rights act is a very major and important piece of legislation. It is, in fact, fundamental to the future of Indigenous people in terms of promotion of social harmony and stability, and maintaining the spiritual link with the land which gives Indigenous people their very sense of identity and their basis for spiritual beliefs. Any changes should be worked out in very close and full consultation and negotiation with Indigenous people and communities—not thought out using paternalistic ideology by politicians and bureaucrats and then rammed through this parliament in great haste.

Historically, this legislation has had the benefit of being treated in a bipartisan manner. But in the current context of this government and its treatment of Indigenous people we should not be surprised, although very disappointed, with the haste of these changes and the lack of genuine discussion and agreement with the people who will be most affected by them. The existing land rights act has certainly not failed. Under it we can find countless examples of development on Aboriginal land, whether it be mining bauxite at Gove, goldmining in the Tanami, even uranium mining at Kakadu and manganese at Bootu Creek. Then there are examples of tourism at Katherine, Uluru and Kakadu National Park and even the new housing development on the Malpi estate that is being developed in Gove, as I saw only last Friday, and the list goes on.

Under the existing act, Aboriginal people have seen development on their land but in a way in which they can control and in a way that they have come to accept, understand and agree to. This bill proposes major amendments to the Aboriginal Land Rights (Northern Territory) Act of 1976. In summary, these are reforms in relation to mining and exploration provisions, the introduction of the 99-year headleases on Aboriginal land, mechanisms for the creation of new land councils, provisions for the delegation of certain land council functions to incorporated regional groups, new requirements regarding performance and governance of land councils, major change to the funding of land councils and finally, of course, the excision of intertidal zones not contiguous with Aboriginal land.

Everyone except this government—and including the Northern Territory government—agrees that the time allowed to work out and consider these changes is totally inadequate. The Senate Community Affairs Legislation Committee had minimal time to consider this bill and with only one public hearing in Darwin on 21 July—totally inadequate and with not even a chance for the Community Affairs Legislation Committee to get to Alice Springs, let alone to any of the remote Indigenous communities in the Northern Territory who will be at the very core of the effects of the changes to the legislation.

Even the government members of this committee could not give unqualified support to this bill in the report, supporting the legislation only on the basis of further, ongoing negotiations with affected groups—but after passing the bill. Quite frankly, that is nonsense. If the bill in its present form is not good enough to support then it is not good enough to pass and say that later we will tinker around at the edges and make the changes. If it is not good enough to pass in its current form it should not be passed and then sought to be negotiated and discussed further down the track.

We have seen last minute changes of major proportions being made to this legislation. Even, I understand, the Northern Territory government has only had three days to comment on it. The mining and exploration provisions are seemingly accepted by the key stakeholders such as the Northern Territory government, the land councils and the minerals councils. These were done in consultation over many, many months—not in haste—and Labor can and will support them. However, other parts of this bill give rise to serious cause for concern and amendment or even rejection. Some of the problems include the conditions of the 99-year headlease model, the use of the Aboriginals Benefit Account to fund township surveying and administration of the new entity to hold the headleases, the creation of new land councils and the new requirements on land council performance, accountability and funding methodologies.

Under these changes the land councils are being required to perform and account for funds like few other organisations are expected to do. They have to state their anticipated annual budget and stick to it unless they get ministerial approval to vary it. They are already required to report annually to the federal parliament, as are most other bodies of this nature. It is very unclear to me why they are being asked to do more when this level of accountability is already there and other bodies are not put under such scrutiny.

This bill also makes it possible for the establishment of other land councils and for their powers to be delegated from the existing four land councils. This is nothing more than the implementation of an ideological policy base, and I have not seen such strong opposition against the existing land councils as I have seen in this suggestion. Rather than a genuine attempt to ensure that this act continues to work effectively and in the best interests of Indigenous people, the strength of the larger organisations is not supported by this government. It runs counter to the Commonwealth’s current drive to consolidate services and economies of scale in native title representative bodies and Aboriginal legal services. So on the one hand this government wants to consolidate services to Indigenous people through rep bodies and legal services, and on the other the establishment of this legislation seeks to break up the land councils and larger bodies, abolish their existing strength and effectively create many small land councils and organisations, which will be the end result.

This point was highlighted and disagreed to by the Minerals Council in their submission to the Senate inquiry. If you know anything about the history of this legislation, you would know that this government has seriously got it wrong when even the Minerals Council does not want this change to the legislation, has backed the land councils in suggesting that the current legislation should stand and has urged that this provision not proceed.

All of my Indigenous constituents do not want this at the expense of their culture, and it seems that this government, by the way they are going about things, want to return to an assimilation policy. The establishment of this legislation shows that government members totally lack understanding of and empathy for Indigenous tradition. This bill certainly continues that impression and that trend. Aboriginal people have had minimal input and minimal say in something that will have a major impact on their communities and land councils.

In his submission to the committee, Professor Jon Altman, who is vastly experienced and acknowledged nationally in Indigenous affairs, particularly in the Northern Territory, says that it is his belief that these changes will actually make the amendment objectives, especially with respect to economic development, harder to achieve than under the current laws. He believes headleasing would have been better if trialled first in some communities.

Oxfam Australia, in a letter that I received only yesterday, said that they were one of the many organisations that were prevented from making a submission because of the extremely short time frame for the passage of this legislation. This is very disappointing, as Oxfam Australia undertook research last year to examine the claim by this government that these changes will generate improved economic development and private homeownership. The report, titled Land rights and development reform in remote Australia, found that many of the necessary elements required to promote economic developments are not related to butchering the land rights act and making profound changes to this legislation but to taking action to improve health, housing, education and infrastructure for Indigenous people in their communities.

Mr Daly, the Chair of the NLC, made this point during the Senate inquiry:

We want to be part of the Territory economy ... We want to see our people move forward. We also want our kids to have a decent education and to be able to get decent jobs out on their own traditional lands.

Tom Calma, the Aboriginal and Torres Strait Islander Social Justice Commissioner and an elder and traditional owner from the Northern Territory, says in his submission that he has serious concerns about the land rights amendments in this bill. He says:

The amendments make significant changes to the existing land rights legislation which has the potential to compromise the rights and interests of Indigenous people living in the Northern Territory.

He states very clearly that he is concerned that these amendments have been made without the full understanding and consent of traditional owners and Indigenous Territorians. He says:

... the consultations with land councils regarding the ALRA amendments did not cover the full provisions of the proposed changes to the legislation.

At the Darwin hearings, Raymattja Marika, a traditional owner from north-east Arnhem Land—and current Northern Territorian of the Year, I might add—said:

While we Yolngu have always known our connection to land and the laws that govern our connection and our rights ... Our struggle was against the mining companies and the federal government that issued the first leases in 1966. Now we are in the same position today—we are still fighting the Commonwealth government.

She went on to say—and I quote these words because I think they are of particular significance:

Land ownership is not something you can play with. You dig our land and you take our land, but that land is our backbone. It is our life source. We invite you to respect that and to understand the value we have on our land and to help us achieve our goals.

We also heard from Mr Wali Wunungmurra, a man who my husband calls ‘brother’ and who was the first person to invite us to become part of an Indigenous family in north-east Arnhem Land. He said that, in the view of the grassroots people he was representing, the present land rights act was working fine and was a workable act that people could now understand. He went on to say:

What I say and what the people who asked me to present the case here to the committee say strongly is that if there are going to be changes made to the act, Aboriginal people would like to be a part of those changes. They are saying that they would like to be making decisions and saying where we should go and how fast we should go. We want to make decisions about the pace and the timing.

I want to make a few comments in conclusion. There are many areas of this legislation that I could spend quite a deal of time criticising and commenting on, but I want to address very quickly the notion that, despite what this government says about the 99-year leases being voluntary, what we have seen in the two or three instances in the Territory is that it is anything but that. On 4 May 2006 a joint press release between Minister Mal Brough and Minister Julie Bishop said:

A secondary boarding school will be built on the Tiwi Islands as part of an historic deal to open the door for home ownership on Aboriginal land.

In this press release there is clearly a connection between the boarding school and homeownership on Indigenous land. There is clearly a link that, if you give up your land for a 99-year lease, we will provide you with a further $10 million towards the construction of a new community managed boarding college on the Tiwi Islands.

After I asked Mr Greer in estimates this year, ‘Is this school funding linked to any other requirements from the Commonwealth?’ he said:

Yes. I think when the minister for Indigenous affairs announced the new initiative on 4 May, he indicated there would be a condition around signing a heads of agreement committing the traditional owners and the government to settle an agreement by the end of year to allow for home ownership and commercial business development over the township of Nguiu.

But when we were in Darwin on 21 July the chair of our committee asked exactly the same question of Mr Stacey from OIPC. Mr Stacey said:

The government has made it clear right from the outset that the arrangements are voluntary.

We went on to ask Mr Daly, the chairman of the NLC, about the condition on Elcho Island that 50 new homes would be provided in return for a 99-year lease. I asked:

If the people on Elcho Island decide not to enter into the 99-year lease, I take it they don’t get the 49 houses, then, that have been promised by Minister Brough?

Mr Daly said:

That is correct. The community leaders out there have been told, ‘If you do not sign up to this community leasing scheme, you will not get the 50 houses that I have promised you.’

And, in a press release on 19 June this year, Mal Brough had this to say:

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 to support home ownership and business development opportunities.

Mr Stacey denied that in Darwin, and he said to me:

I think, with all due respect, it is an oversimplification to try and characterise the government as going around saying, ‘Unless you agree to a headlease, you are not getting essential services.’

In that context, he denied that the government is doing that. Who is right here: ministerial press releases or departmental officials from OIPC? But the point I want to make is that the 99-year leases will be anything but voluntary. The track record of this government in those two instances shows that you will only get essential services or services connected with your future if you agree to give up your land. (Time expired)

Judith Adams (WA, Liberal Party) Share this | Link to this | Hansard source

As a member of the Community Affairs Legislation Committee, I was involved in the inquiry into the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006. Recently, I have also been involved with two other Senate Community Affairs References Committee inquiries, which have visited a number of remote Aboriginal communities in the Northern Territory, Queensland and the Kimberley area of Western Australia. These visits have given me a great insight into the infrastructure needs of these communities and the opportunities that are available to Aboriginal people through the successful passage of this bill.

The amendments contained within the bill are the first comprehensive reforms to the Aboriginal Land Rights (Northern Territory) Act since it was introduced in 1976. The changes to the act will provide more choices in life for Aboriginal people in the Northern Territory, and in time it is hoped other states and territories will follow. They will modernise the act and allow Aboriginal people to get more economic returns from their land. The changes to the Aboriginal land rights act will occur without changing the two fundamentals of the act—the inalienability, meaning the title cannot be taken away from traditional owners, and the traditional owner right of veto, meaning traditional owners can prevent or stop development and access to their land if they choose.

Land is the best asset that Aboriginal people have for economic development, and these changes will provide more choices for Aboriginal people. I would like to stress the word ‘choice’. There has been a great deal of misunderstanding amongst some Aboriginal groups and communities regarding the 99-year township leases. The 99-year township lease scheme was developed by the Northern Territory government and is entirely voluntary. It would only apply to townships where most of the residents are not traditional owners. Traditional owners would set the lease conditions and still retain freehold title to the land. The idea is to give individuals more control over their lives. They now have the option to lease their land to other individuals and businesses. For the first time, individuals and families will be able to buy land, and home and retail centres can be privately developed. The opportunity for homeownership should be a great incentive, especially for large extended families, to have a suitably designed house to meet the needs of all occupants. Private investment in retail centres for remote communities is a positive step, considering they may bring employment options as well. I stress again the two fundamentals of the act which will not change with these amendments. The title cannot be taken away from the traditional owner, and traditional owners can prevent or stop development of and access to their land if they choose.

The land councils have criticised the use of the Aboriginals Benefit Account to fund rentals to traditional owners under the leasing scheme. The Aboriginals Benefit Account, known as the ABA, is made up of mining royalty equivalents for the benefit of Aboriginal people. The ABA is designed for the benefit of the Aboriginal people in the Northern Territory, and providing rental to traditional owners satisfies that requirement. It is important to note that this will be a temporary arrangement until the scheme becomes self-funding. The performance and the accountability of the land councils, incorporated bodies and royalty associations which receive payments for the use of Aboriginal land will be improved under this bill. In future, land councils will be funded on the basis of workloads rather than a guaranteed funding formula. Land councils already receive more than the statutory minimum, so this is a much more businesslike approach.

With the Northern Territory government’s support, this bill has the provision to withdraw land claims to the intertidal zone and to beds and banks of rivers which are not adjoining Aboriginal land. The claims are being disposed of because they cover narrow strips of land, which are inappropriate to grant. It was never intended that people could own land that did not abut other owned land. Granting these intertidal zones would prevent legitimate access to non-Aboriginal land. The bill seeks to promote economic development on Aboriginal land by speeding up and clearing up the processes related to exploration and mining on Aboriginal land. The time frame for negotiations relating to exploration licences will be better defined, and the minister will have the power to bring negotiations to a conclusion.

There was a very good editorial in yesterday’s Sydney Morning Herald, titled ‘Dreaming of home: land rights and land deals’, which sums up what the government is hoping to achieve with the amendments in this legislation. The following passage is particularly relevant:

The risks of failure, then, are known, and are great. Yet the alternative is to continue with the welfare-based policies which have trapped generations of Aborigines in the most abject poverty. It is to reject the possibility that some communities may be induced to rely on their own efforts to pull themselves out of the dust. In Aboriginal communities there is enthusiasm and misgiving about the land rights amendments shortly to come before the Senate. That is reasonable. The amendments will never fix every problem or make everyone a winner. But if they can help even some communities to help themselves, they will be worthwhile.

I believe these amendments are a positive step towards improving economic opportunities, providing greater choice for local traditional landowners, and allowing for more decision making for local people.

The bulk of the amendments are based on a joint submission by the Northern Territory government and land councils, and the Northern Territory government supports the bill overall. Whilst the committee has stated that adequate time was not given to conduct the inquiry, I am confident that the government will continue to seek comment from traditional landowners and the community and that it will review the legislation on an ongoing basis to ensure that we are working towards a better outcome for Indigenous Australians. I support this bill.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

A number of senators have spoken on the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006, and we have heard considerable evidence about the history of this wonderful piece of legislation. When the original legislation was being passed in the chambers, I was at school and I listened to the debate.

There is no piece of legislation that is beyond consideration. I have said before in this place that the whole role of our representative democracy is to consider legislation and to reconsider it to see whether amendments can be made to improve it. Extraordinary care is required when moving changes to some landmark pieces of legislation. In this case, the original land rights legislation followed a period of disputation and negotiation in this country which I think came to signify all things about the acknowledgement of Indigenous rights in Australia. That was important to people not only here but internationally, because we were seen to be making genuine attempts to acknowledge Indigenous people and Indigenous rights.

Other senators have talked about the fact that this legislation was originally introduced by the former Labor government but then taken forward by the new Liberal government, and both sides were able to move together and take a unified approach to make the necessary changes. Senators have also talked about the fact that there have been attempts to make changes—and that should happen. There should be attempts to improve and to make changes. But through this process there has been considerable discussion, and concerns have been raised about the motivation of the changes, the impact of the changes and, most importantly—and it has come up consistently during this debate—the involvement of the people on whom these changes will have an impact, and they are the traditional owners of the Northern Territory. We are being watched, and that is important. How we work with this legislation will show our communities how this government is willing to work effectively with the traditional owners in the Northern Territory and with all traditional owners. On that basis, that is our job.

The changes that are being attempted to be made with this legislation fall into two main parts. There are those changes that have been the subject of ongoing discussion—in fact, ongoing discussion which has led to agreement. Consistently, there has been talk about the fact that there has been considerable debate over the years about mining rights and about structures, and a degree of consensus was achieved. There is no such thing as a perfect agreement. But a number of the proposals in this legislation have been discussed and there has been a degree of acceptance which could be moved forward. There is an opportunity with this legislation to have consensus and agreement. But then, at the end of the process, a range of other changes and amendments were brought in that have not had the option for that degree of consultation and negotiation.

It comes back to the core issue of understanding and knowledge of the process. Other senators have talked about the truncated time for consultation with traditional owners, with other people in the Northern Territory and with the wider community. Whilst this piece of legislation relates specifically to the Northern Territory, its impact is much wider. It will have an impact on all of us, because it sets up the model and the expectation of how we are going to interrelate and communicate. It actually puts down our credentials as a government for how we are going to operate in this field. I think the credentials are flawed, because the opportunities for consultation and negotiation have not been effectively taken.

That was acknowledged in terms of the process with the Senate committee. Once again we have seen a disregard for the Senate committee process because of the tokenism of saying that the bill would be brought in and that we would go through the standard process and refer it to a committee for consideration—a very fine, very noble and accurate process to follow. But then there was pressure on all members of the committee to ensure that there would not be effective consideration; there would not be the opportunity for people to have their voices heard.

I will talk more about grassroots discussion later, but I want to talk now specifically about the standard operation of the committee, which has a long history of working in this area. The committee has integrity, it offers the chance to communicate, to work together and to achieve often genuine consensus recommendations.

All of us on the committee agreed that we had inadequate time and that we were in fact not providing respect to those organisations and individuals who had made the effort to put forward a submission and who wanted to talk to our committee. They saw the advertisement and they wanted to have their say in the process. So what could we do? We were restricted in our time, and the deadline for when this legislation had to be brought back to the chamber was predetermined. And the legislation must be pushed through. We understand, because we are numerate, that the numbers are there for this particular process to be pushed through. The committee process was a sideshow; it was going through the motions. The motions were disrespectful. As we have heard from other senators, people genuinely wanted to have their say and wanted to put forward their responses to the legislation—legislation that included amendments that were not previously known about and which they had only recently received notification about. They wanted to have their say about how the legislation was going to impact on them, their community, their lives and their futures.

But we had one day in Darwin and we had to limit the number of people who were able to come and talk with us. We received valuable and incredibly important information from people who knew their business and who wanted to come and talk to us. We had to restrict it. As always, we could not hear from all the people who put in submissions. There were large numbers of people who said that they could not meet the original deadline for submissions, but we could not listen to them because we had to have our committee report concluded so that it could come back into this place in the first week of sittings and so that the legislation could be rammed through and this process proceeded with. So be it. That is the expectation of the government; that will happen. But it devalues the way that we operate and it devalues our credibility and credentials with the wider community.

OIPC were so busy at the time that they could only send some representatives to the committee hearing in Darwin. Some had to stay in Canberra and talk to us by phone hook-up. We acknowledge the fact that OIPC could share a couple of hours with the committee that was tasked to consider the legislation that was going through. I also want to put on record my thanks for the rapid response that OIPC gave to the questions on notice that we put, understanding the time frames and constraints under which we were operating. I want to put on record my appreciation for them getting those responses to us very quickly so that in the limited time that we had we could move forward.

In terms of the process, we set up the committee, we had the hearings and we wrote the report. Even in this very small report we can hear and feel the pain of people who wanted to be involved in the process of changing the legislation which was going to affect everything that they held dear. Senator Crossin quoted the traditional owner who talked so eloquently about the meaning of traditional ownership of their land. We know it. Every single senator in this place understands—I hope—the particular relationship between traditional owners and their land. This strong Indigenous woman could not get to the hearing in the one day that we had but was generous enough to give her time by phone. It is difficult, Acting Deputy President Lightfoot—and I am sure you have had this experience—when you are trying to work through painful issues and you do not have the person in front of you to talk with and see. You do not get the power of their individual evidence. This woman’s evidence was strong even across the telephone line. Senator Crossin quoted those wonderful words about what landownership means.

In that day, we were able to receive significant evidence. I want to quote from one piece of evidence that was specifically about the consultation process with the key people in this whole change, the traditional owners. They were talking about their response to the OIPC submission, which talked about the years over which this particular legislation has been discussed. The traditional owners of north-east Arnhem Land—and I will not attempt to pronounce that area in traditional language because I would destroy it—said, among other things:

There may have been 9 years of consultation leading to these proposed amendments, but it was not with us.

                 …         …         …

The changes the Government are making to Indigenous affairs generally, and in this case Land Rights, are happening much too quickly for our people to understand let alone respond to. This is placing enormous stress on our leaders, and the sense of ‘loss of control’ and powerlessness to respond is resulting in demoralisation, depression and fatigue.

                 …         …         …

Yes, changes are needed and new ways forward need to be carefully developed in partnership with government and business, but the changes must be led by us, and implemented in consultation—not imposed.

That is my whole argument. We have missed an opportunity by ramming through this particular group of amendments in this way at this time.

There were no objections during that one-day hearing that we had—maybe if we had had more time we could have found some objections—to them being involved in the process. There was no objection to them looking at the land rights legislation and seeing whether appropriate changes could be made and made in partnership. The objection was to the way it was being done and to the imposition once again on the people who would be affected by these changes by people who are not from there.

The government, which is supposed to be representing them, chooses not to work with them in partnership for its own philosophical reasons. People have the right to have those. All governments have positions on Indigenous affairs. That seems to be something that every government must do: make particular changes in Indigenous affairs. In many ways, that is good and right because that is one of the key issues for all of us. But it is not good when it means making changes to core legislation about land rights about which the people are not fully informed and aware.

We all know that there is no education process which can guarantee that everybody will be fully aware of every change that could be implemented. That is a goal which, whilst it may be noble, will never be achieved. But there must be understanding. The difficulties of consulting with traditional owners across the Northern Territory were reinforced to us in our one-day hearing. These difficulties are not new. The people who are best able to work through them are the land councils and the government bodies working with the local people.

I was surprised and confused in many ways by the response from OIPC when I asked them about the need for consultation with the local people. Their response to me—and I am not making a direct quote but I am confident that I am not verballing them—was that it was not their responsibility, that it was the responsibility of the land councils to do the consultation and that they would give support to the land councils. I reject that outright. In something as important as this legislation—or as important as all legislation which impacts on Aboriginal people in the Northern Territory—no-one can shirk responsibility or push it onto anyone else.

If the government is going to be introducing changes in legislation, it must be the government that has the final accountability to ensure that the people who will be affected by the legislation are at least aware of what is happening. They may not fully understand it—I think that many people in our community are not fully aware of all changes that government makes—but if we are going to be making a change to the core 1976 land rights legislation, which most traditional owners know about very thoroughly because it is their business, we all share the responsibility to ensure that they are aware of it. It is not good enough to just say that it is the responsibility of either the Northern Territory government or the land councils to do that. If we are introducing change, we must be confident that the people who will be affected by that change know what is going to happen.

It would be a good result if they were part of it and agreed to the changes. That would be the best possible outcome with any change of legislation. But the basic minimum must be that we accept our responsibility to ensure that they are aware of it and they see and understand what is going on. I am not confident that that is the case with this legislation. The evidence that we had from people who were living in the Northern Territory who had the opportunity to come before our committee indicated that they were not confident that this is true. In fact, I do not believe the government is confident that the people of the Northern Territory are fully aware of this legislation. Indeed, what the government has said in responses to our committee and in statements made in this place during the debate is that the legislation is evolving and once we get through the necessary process of passing it in this chamber and in the lower house then we can get down to evolving the processes and making sure they work.

Certainly, any change of policy and any change of legislation will involve that kind of working through and seeing what works best and making that fit. Certainly, we have had evidence from OIPC that they will be not imposing standards and that they will be working through things with each community because each community is different. In my opinion, that is a given. There is nothing extraordinary about that. That should always be the commitment. But, in terms of where we go next, I question whether it is genuine partnership in that way.

I agree with the comments of Senator Crossin about the 99-year lease, which is the core aspect of disagreement. Many other things could be worked out, but the processes around the 99-year lease have not been agreed. I share the concern that Senator Crossin put forward about whether this would be a truly voluntary arrangement. We heard in evidence about the kinds of things that would be part of the discussion when communities are asked whether they wish to give up a 99-year lease on their land for other purposes. The kinds of things that we were told would be given back as part of this very large shared responsibility agreement included added housing. We heard about that in one community. In another community, we heard about the development of higher education, a secondary school.

It seems to me that housing and education should be a standard expectation of any Australian, regardless of where they live. This is tying the provision of housing and education to giving up your land—because a 99-year lease is a long time. I totally accept the evidence we have had from the government that it is not changing the title. We know that the process would never be—actually I should rephrase that; I never use ‘never’: we would hope that the process would be that there would be an acceptance that there would be no attempt at any time in our community to change native title. However, we heard from people about what a 99-year lease would do. I had to stop and think about it. If I gave up something for 99 years, it would be highly unlikely that I would be around when the new lease was going to be signed. In that process, you are looking at a cross-generational information exchange, and decisions that are being made over the next few months in Indigenous communities in the Northern Territory will see a break in the linkage between the traditional owners and their land for generations to come. I think that is something that needs to be considered.

Whilst the core native title is not being changed, that special relationship is. To do that in response to something like houses or schooling would seem to me to involve a not particularly equitable balance of power and I am not convinced it would be particularly voluntary. I hope that people understand this in the process. I am concerned that this legislation will go through both these houses, but I implore the government to hear the words which the people gave to us at our committee inquiry and try and return to a true partnership, not an imposition yet again.

Dana Wortley (SA, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak about the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006. The report on the inquiry into this bill was handed down last week, and there remains serious dissatisfaction from key stakeholders, including the traditional landowners, regarding the bill proceeding through the parliament. Unfortunately, there appears to be a lack of consideration and respect from the government in considering the impact of some of the changes that will result from this bill.

This is another important piece of legislation that has some degree of merit but where the negative far outweighs the positive. It has been formulated without proper assessment of its impact on the lives of the people it will affect and without proper consultation. Submissions received from the Centre for Aboriginal Economic Policy Research, the Australian Law Society, the major land councils and the Minerals Council of Australia were all critical of the bill. It was strongly argued that the bill should not proceed until such time as agreement could be reached with traditional owners and other key stakeholders. The message that the bill should not proceed in its current form was clear. The answer as to whether the government listened is simple: no.

So today we stand here again witnessing the government’s abuse of a Senate majority. We are dealing with a situation where a Senate inquiry was held with only one public hearing and less than a week to prepare the report—not enough time to allow for proper consideration of such a bill. If this sounds familiar, it is because it is becoming a regular occurrence with this government, one that we on this side have come to expect from the out of touch Howard government. Even the majority report of the committee made the point that the time allowed was totally inadequate. But that is not all it had to say. It said:

There was insufficient time for many groups to prepare submissions and a single hearing was complicated by the necessity to include a number of teleconferences within the hearing. Additionally, time constraints prevented the Committee hearing from a number of witnesses. The inadequacy of time to do justice to the complex nature of the issues involved was reinforced by a number of groups in evidence.

So the majority report highlighted the inadequate time frame and the denial of potential witnesses to be heard.

As some in this chamber may remember, it was the establishment of the Woodward royal commission by the Whitlam government and the resulting report that formed the basis of the land rights legislation. The royal commission was brought about by a number of cases surrounding the unfair treatment of Aboriginal Australia with respect to traditional connections to the land. One of the most significant of these cases was the Gove land rights case, in which the Yolngu people’s fight for land rights led to a Federal Court case. The action of the traditional owners of the Gove Peninsula and Arnhem Land to protect their land was due to Nabalco being granted a 12-year lease by the federal government to extract bauxite from the ground on the Gove Peninsula. However, the traditional owners lost. They lost because, at the time, Justice Blackburn used the terra nullius claim, which implies that land was unoccupied prior to European settlement.

The drafting of the land rights legislation was based on the report by Justice Woodward and included such significant aims as:

• The doing of simple justice to a people who have been deprived of their land without their consent and without compensation.
• The promotion of social harmony and stability within the wider Australian community by removing, as far as possible, the legitimate causes of complaint of an important minority group within that community.
• 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.

Justice Woodward said that these aims could best be achieved by:

• Preserving and strengthening all Aboriginal interests in land and rights over land which exist today, particularly all those having spiritual importance.
• 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.
• The provision of some basic compensation in the form of land for those Aborigines who have been irrevocably deprived of the rights and interests which they would otherwise have inherited from their ancestors, and who have obtained no sufficient compensating benefits from white society.
• The further provision of land, to the limit which the wider community can afford, in those places where it will do most good, particularly in economic terms, to the largest number of Aborigines.

Perhaps central to the current state of Indigenous affairs in this country—which, under the Howard government, is not being achieved—is Justice Woodward’s aim that:

The maintenance and, perhaps, improvement of Australia’s standing among the nations of the world by demonstrably fair treatment of an ethnic minority.

Now, more than 30 years on—a whole generation after the Woodward royal commission—we are in a position to update and reform the bill to assess if the changes previously made are still relevant and still to the advantage of the people whom this bill affects and protects. We have the opportunity to uphold this important recommendation of Justice Woodward made back in 1973. But the reality is that here is an opportunity to address an important issue and this government has set it up for failure.

Looking at some of the content in this bill, it would appear that Minister Brough has continued with the same attitude of the coalition ministers before him. That has not been lost on Indigenous Australians, as highlighted in the speech by the member for Lingiari, who held consultative meetings with traditional owners in their communities in the Northern Territory. He said:

At those meetings, people expressed their frustration, their anguish, their concern and their hurt at the way the Commonwealth government has imposed its agenda for change without any reference to them.

He went on to say:

They are deeply concerned that the government feels absolutely no compulsion to sit down and talk with them, let alone to consult or negotiate with them; that the government shows them no compassion; that it shows no knowledge or understanding of their cultural values or priorities; and that it shows no knowledge or understanding of the cultural differences that exist across Indigenous Australia, and of the different historical experiences that different communities have suffered.

There have been three reviews of the Aboriginal Land Rights (Northern Territory) Act 1976 over a nine-year time span. Significantly, in 2003, a submission to the government was made by the Northern Territory lands council, in a joint effort with the Northern Territory government, regarding possible amendments to the act. Many of these amendments, based on the finding of the three reviews and their own consultations, have been adopted in the bill. However, some of the proposed amendments contained in this bill before us today have not been negotiated with traditional owners and their representatives.

One has to question why the government call for submissions for an inquiry when they clearly fail to give them the genuine consideration they deserve. They do not adequately consult with those affected and they put in place a series of reworded amendments that have the potential to destabilise the whole region. As was outlined in Labor’s dissenting report, the following amendments were not negotiated with the traditional owners: the 99-year leasing on Aboriginal townships; the creation of new land councils; the ministerial power to override a land council’s decision not to delegate its function to a regional body; the removal of guaranteed funding for land councils; the altered administration of the Aboriginal Benefits Account and composition of the ABA advisory board; and the excision of intertidal zones not contiguous with Aboriginal land.

In principle, there are perhaps some functions that may be better off if delegated at a more regional level. This was indeed a proposed amendment by the Northern Territory government and the existing land councils. However, as the member for Lingiari rightly pointed out, the government has taken this way too far. One of the amendments means that the core land council functions with respect to mining and leasing on Aboriginal land could be delegated. This is problematic because it provides for a situation where the powers of the body representing the traditional owners, a land council, could be delegated such that a body including non-Aboriginal people could exercise the core land council functions.

In addition to this, one of the recommendations of the Reeves report of 1998 was opposed by members of the standing committee investigating Reeves’s recommendations. Another poorly conceived consequence in the land council deregulation amendment is that the minister of the day has the power to make decisions about a land council’s authority, whether they agree or not. So you get this scenario whereby the original act, which was designed to give rights to Indigenous Australians, is going in the completely opposite direction. A further poorly conceived aspect of this bill is the proposal for funding for land councils to essentially be at the minister’s discretion. There exist serious concerns about this outcome. If the government of the day is giving payment to the land councils based on workload, it is essentially saying, ‘Let us know what you’ve got coming up and we’ll see what happens.’ It gives an unfair amount of decision-making power to Canberra. This is just a small insight into the problems resulting from some of the government’s amendments.

There is no doubt that there remain some serious flaws in the bill as it currently stands. The Senate Community Affairs Legislation Committee handed down its report on the bill last week, and it is fair to say that the people who were most disenchanted and generally unhappy about the proposals were the very people who will bear the consequences of the bill’s passage. With a bit of jockeying around the committee table, the government agreed to consult with them but only after the bill has been passed. Paragraph 1.75 of the government majority report recommends:

... subject to the amendments foreshadowed by the Minister and a commitment by the Government to undertake further ongoing negotiations and dissemination of information to the NT Government, Land Councils, traditional owners and communities likely to be affected by this legislation.

What they are saying is that the bill be passed and then the government will negotiate with traditional owners—after the horse has bolted. They are saying to the traditional owners, ‘Trust us, and we’ll negotiate later.’ One can only wonder as to why the government see the need to rush the bill through the parliament without taking the time to negotiate with the traditional owners beforehand.

Given this government’s record in honouring undertakings made, it is plain to see why traditional owners, key stakeholders, the opposition and minority parties have grave concerns about such a statement. It is little wonder that those in the Indigenous community get extremely frustrated and discouraged by this government when every time they have the opportunity to move forward they are pushed two steps back. Labor senators, in their minority report, called for the bill to be split to allow for the agreed amendments, such as the negotiated provisions of the bill relating to mining, exploration and subleasing, to proceed. Mining expansions are welcomed by many areas of the Indigenous community because it means they can generate substantial funds to improve their communities and social conditions. The negotiation process of mining has come a long way since the people of the Gove Peninsula boldly defended what was theirs.

Labor also recommended that the remainder of the bill be subject to thorough consultation and negotiation with traditional owners, their representatives and other key stakeholders before it is considered by parliament, not after. Given the lack of consultation raised in submissions to the inquiry, it would be a valuable recommendation to adopt. If, however, the bill is not split, then Labor recommended that the bill should not proceed.

I looked at some of the speeches on this bill made in late June by coalition members in the House of Representatives. Some of the comments are just proof that there is a serious partition between what is needed for Indigenous Australia and what is being applied. For example, the government’s member for Solomon wants ‘normalisation’ for Indigenous communities and cites Irish theme pubs and McDonald’s for incorporation into their lives as his measuring stick for what is normal. The member for Kingsford Smith said at the time, ‘What a joke,’ and I say today: what a disgrace. It just highlights that some government members have little regard for the cultural sensitivity of Indigenous Australia. The minister had the bravado to call it a ‘sorry day for the Labor Party’ for not supporting this bill’s passage through the lower house. In my view, Minister, sorry in respect of rights for Indigenous Australia is a word that many in your party, including your leader, have a very bad track record on.

The transcript of the Senate inquiry on the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 demonstrates a lack of consultation and negotiation. It demonstrates a lack of respect for traditional owners. As stated in the Labor senators’ report:

These non-negotiated amendments represent some of the most significant changes to the Aboriginal Land Rights (Northern Territory) Act since its original enactment thirty years ago. They have the potential to undermine the long-term viability and independence of Land Councils and deny cultural, social and economic enjoyment of land by traditional land owners.

Without the government addressing the key areas outlined by opposition senators in the inquiry, and indeed today in this chamber, we cannot support the bill.

Ursula Stephens (NSW, Australian Labor Party, Shadow Parliamentary Secretary for Science and Water) Share this | Link to this | Hansard source

We heard this morning and yesterday afternoon what the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 is all about. It proposes to alter 30-year laws that gave Aborigines control and communal ownership over land in the Northern Territory and established land councils to administer the land. This morning, Senator Crossin, who so strongly represents the constituency most affected by this legislation, has outlined the historic nature of the original land rights bill and the local impacts of the proposed changes to this legislation.

The government majority report of the House of Representatives entitled Unlocking the future: the report of the inquiry into the Reeves review of the Aboriginal Land Rights (Northern Territory) Act 1976 was tabled in the House of Representatives in August 1999, and I note that it is referred to in the explanatory memorandum to this bill. A committee with a majority of government members produced a unanimous report. Recommendation 1, on page 8 of that report, states:

The Aboriginal Land Rights (Northern Territory) Act 1976 ...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.

As I said, it was a unanimous report with a government majority.

The bill before the Senate today does not meet that basic test of proper consultation and informed consent of traditional Aboriginal owners in the Northern Territory. The report of the Senate Community Affairs Legislation Committee, tabled out of session, noted the concerns of the committee members and many witnesses about the lack of time for preparing submissions and that the committee had only one day of hearings about the bill, which will have a profound effect on Indigenous communities, and that many of those most affected by the changes in the bill are probably not even aware of its existence.

Professor Jon Altman, Director of the Centre for Aboriginal Economic Policy Research at the Australian National University, in his submission to the committee, made a critical point:

.. the proposed amendments ... will result in a statutory framework that lacks internal consistency and that will make the meeting of amendment objectives ... less likely than the current framework.

Professor Altman reiterated concerns about the lack of consultation and the explanation of the impacts:

Other parts of the amendment (especially the provisions for head-leasing and then sub-leasing Aboriginal township sites located on Aboriginal land) emanate from quite recent ideas that have not been explained at all to Aboriginal traditional owners, have not been openly negotiated, and that have enormous potential implications for both the workability of ALRA—

the act—

and especially its financial provisions.

He suggested that the proposals should be undertaken under section 19 provisions of ALRA, rather than amending the act. Professor Altman is a highly respected expert in Indigenous issues. His submission raised very serious constitutional issues about the legislation as well as strong economic arguments. He also said in his submission:

... many old laws ... are good laws and statutory change should only be passed ... if it is likely to result in better outcomes for all stakeholders, but primarily Indigenous Australians.

Paragraph 8 of the explanatory memorandum explains the true motives of the Howard government. Under the heading ‘Objectives’, it states:

The principal objectives are to improve access to Aboriginal land for development, especially mining—

That is why we are here today. The current mechanism of negotiating ILUAs, Indigenous land use agreements, with agreed outcomes and opportunities for communities and businesses, is not enough for this government.

Labor oppose this bill because aspects of it are wrong and make it deficient. We believe that the bill should be split. The bill seeks to undermine the principles of self-determination by removing funding for land councils from the Aboriginals Benefit Account and replacing it with a funding formula based on workloads and results—however the minister wants to define those. We support the provisions of the bill that relate to mining and exploration which also have the support of traditional owners and the Northern Territory government.

We share the desire of the people of the Northern Territory for investment. We understand that they want the capacity to develop their resources and want to be consulted about how that may occur so that there is a chance to maximise the return for communities—not just in the form of royalties but, more importantly, in social and economic development. The Indigenous communities want resource development and tourism that create local opportunities for training, employment and enterprise development.

It is time for the Minister for Families, Community Services and Indigenous Affairs to admit that he is wrong. Indigenous communities are not anti economic development, but they have been alienated by this government. Shared responsibility agreements that make unrealistic demands on unsuspecting communities, the dismal failure of some of the COAG trials, changes to CDEP funding and interference by the Indigenous policy coordination unit—they are all part of this minister’s style. And let us not even go to the minister’s former employee who helped perpetuate a disgraceful hoax on national television.

The best way to achieve development in Australia is by negotiating with people and taking them with you. That is exactly what the act does as it stands right now. Unfortunately, this government wants to diminish the capacity for land councils in the Northern Territory to properly represent their communities, encouraging instead new regional incorporated bodies to which the minister can delegate functions that override the wishes of traditional owners. Writing in the National Indigenous Times on 15 June 2006, Chris Graham had this to say about the bill:

... the government is seeking to wipe out the independence of the NT land councils—to gain control of them. The land councils’ financial resources will now come under the direction of Mal Brough. He will decide the level of funding they receive (if they receive funding at all).

The Minister is also proposing to give himself the power to delegate land council functions to other bodies—bodies he has created and funded.

What does this mean in practical terms? It means that the land councils are dead. They will no longer do the bidding of traditional owners—they must do the bidding of the government, or they will be abolished.

So what is the intent of the Howard government amendments? They are designed to increase white access to the resource rich lands of the Northern Territory.

The minister has been out there working very hard to try to sell the government’s spin on the bill. I quote him:

The reforms to the Land Rights Act will help create future opportunities for Aboriginal people. These amendments allow for 99 year leases which will make it easier for Indigenous people to own a home or establish a business in Aboriginal townships.

The fact is that the government amendments will actually ensure that traditional owners will forgo their ownership of the land and associated rights to control entry onto their land. That is really what this bill is all about, and tempting Indigenous communities to exchange their land for community housing or facilities is really outrageous. As Senator Crossin said this morning, 99-year leases equate to four generations. Shameful!

To date, the legislation has provided for traditional owners in certain circumstances to refuse consent for mining and other developments on their land—not because they are against development but because they are trying to ensure there is a balance between development and traditional rights in their communities.

The National President of the Australian Property Institute, Ms Marcia Bowden, yesterday wrote to Minister Brough outlining the concerns that the Australian Property Institute has with this bill. In particular, Ms Bowden expressed concern that the bill will disturb compulsory acquisition law and provide for compulsory acquisition of land held under the Aboriginal Land Rights (Northern Territory) Act 1976. Ms Bowden wrote:

... it is the strong view of the Institute that the compulsory acquisition of property rights, be they held by Indigenous or non-Indigenous holders, should not arise solely to permit a private purpose that cannot be construed as a Government activity. Whilst tenure holders under the Aboriginal Land Rights (Northern Territory) Act 1976 could withhold consent to a proposed lease, such action should not cause compulsory acquisition to arise merely because it frustrates third party private interests.

And there you have it: the government would rather help its mates at the top end of town than give any consideration to long-established compensation law. I call on the minister to respond to the Australian Property Institute’s letter and explain to all Australians—Indigenous and non-Indigenous Australians—why he is prepared to allow a situation to arise whereby an undesirable private property rights precedent may be created.

We know that the Aboriginal Land Rights (Northern Territory) Act 1976 was a direct result of the Woodward royal commission, and several people have spoken in the chamber about its genesis. The Whitlam government drafted the land rights legislation based on Justice Woodward’s report, and the legislation was ultimately passed by the Fraser government. But since the Howard government gained control of both houses of this parliament, we have seen its ideology shine through. It spends its time attacking those areas about which it has a long-held view. The land rights act, for the Prime Minister, is one of those pieces of legislation.

This is very bad public policy. We should be respecting the rights of our Indigenous Australians. We should respect their right to say no. We should respect the fact that there is informed consent in relation to their decision making. We should not have a situation where the land councils have a gun held to their heads by the minister saying to them, ‘If you don’t approve development, we’ll put you out of business.’

This is exactly the reason the land councils have a problem with this legislation. In reality, many Indigenous people want mining in their country, because they see it as the only way to advance themselves and their communities. They are not anti development; they just want to have a say over the development on their land. They want to protect Indigenous assets on the land once a mining lease is entered into; they want clarity about their control of development under the 99-year lease model. To suggest that land councils should be forced to delegate land use functions to small corporations, and as such prioritise scarce resources to them, is unworkable, and will certainly jeopardise development outcomes.

The CDEP program was established in 1977. It is the single biggest employer of Aboriginal people and operates through an Indigenous community organisation, creating a common pool of unemployment benefits that pay unemployed community members to undertake work within that community. In December 2004 the Minister for Employment and Workplace Relations announced planned changes to the CDEP scheme, and in February 2005 he released a discussion paper which was widely criticised for its potential to create job losses and cut costs.

Nearly 18 months later, with the detail of the bill now before us, I wonder whether Minister Andrews can stand by his claims. Last year, he said of Senator McLucas:

The senator is simply wrong in calling the consultation process a ‘sham’ and is misrepresenting the discussion paper in making erroneous claims about job losses and cost cutting.

I also wonder whether the minister read yesterday’s Melbourne Age, in which three traditional owners of country in Arnhem Land were reported as having written an open letter to the Prime Minister and the people of Australia. About the CDEP, they wrote:

Right now the CDEP allows our people, especially our younger people, to work for the money they get, to learn skills and talents that work for both the white community and the Aboriginal community. The Government wants it to work for the dole, but this is a problem. For the dole you must apply for jobs every two weeks or your payments stop. Here there are not very many jobs, so we share the CDEP work so everyone can get paid and all the work can get done. We are concerned that without the CDEP our younger people will go to places such as Darwin to look for work. This will break up families and expose the young to things such as drink and drugs, which are not here at Gunbalanya.

The Howard government continually espouses its family values credentials, yet its dogged ideology continues unabated. We have had the extreme industrial relations legislation, making life more difficult and uncertain for hard-working families. The government refuses to act on rising fuel prices. Last week interest rates rose for the third time since the Prime Minister promised Australia he would keep them at record low levels—due to the cost of bananas, he would have us believe. Now, the Howard government’s ideology seeks to destroy Indigenous families. It is mean, it is cruel and it is bloody-minded.

We heard what the member for Solomon thought about Indigenous communities when he suggested, ‘You do not see a hairdresser, you do not see clothing stores or a McDonald’s or an Irish theme pub.’ What a shame if an Irish theme pub is evidence of economic and cultural vitality! And we had the minister saying, ‘We’re saying to the people: “You’ve been living on what are, for all intents and purposes, little communist enclaves, which means there’s no opportunity for business to flourish and there’s no access to a market economy.”’ What is the answer for this government? It is to transform the CDEP—to encourage the development of microbusinesses without the appropriate structures, processes, training and planning in place—to allow subleasing of Aboriginal townships, to allow access to traditional lands and to adopt a paternalistic approach to land council funding.

This is one of the fundamental problems of the bill. It is further evidence that the government does not take Indigenous Australians seriously. It is obvious the minister has never read the words of Justice Woodward, and I suggest that he does so. If he did he would see that his world view is not only wrong but also not even close to where Indigenous Australians see themselves. They are concerned about involving themselves in the market economy in some way. Indigenous Australians aspire to having roofs over their heads and their children having access to education and health services. Indigenous Australians want access to work opportunities. Indigenous Australians want these things just like the rest of us.

Labor supports any Australian who aspires to purchase their own home. However, this bill is not about homeownership; it is about housing provision and the regularisation of the arrangement between housing providers and traditional owners. Across Australia Indigenous Australians face a chronic housing shortage. Nationally the housing shortfall is around $3 billion. This housing shortage is reflective of the level of poverty being suffered by Aboriginal Australians, as well as poor health, poor education and the lack of employment opportunities.

Recently the Northern Territory government proposed a new way of addressing the housing crisis on Aboriginal communities, involving community, government and private sector finance. I applaud the Northern Territory Chief Minister for this initiative. There needs to be a genuine partnership between government, the private sector and Aboriginal communities if we are ever to address the chronic shortage of Indigenous housing. But the Howard government’s proposals will not attain that objective, either. The government should be looking at models that do not require traditional owners giving up their right to control commercial development on their land and that would provide ample capacity for dealing in residential property.

The haste with which this legislation has been rushed through is evidenced by the suite of amendments proposed by the government and circulated yesterday afternoon. This will be a function of the new Senate majority of this government: legislate in haste and amend as each unforseen consequence is identified—an unwieldy and intellectually lazy approach to legislation.

Finally, I commend the substantive amendment moved in this place by Senator Evans that has the effect of splitting the bill. If the Howard government is serious about its practical reconciliation agenda then it can afford to acknowledge that this bill has been contrived in haste and accept these amendments that are about ensuring that Indigenous Australians in the Northern Territory, as traditional custodians of their country, are afforded the same rights as everyone else.

Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Thank you, Senator Stephens. I have Senator O’Brien next on the list.

Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Transport) Share this | Link to this | Hansard source

No, I am on the list after Senator Scullion.

The Acting Deputy President:

Not on the list I have here. Who is seeking the call?

Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Transport) Share this | Link to this | Hansard source

Does Senator Scullion seek the call in this matter? A government senator would normally come after an opposition senator in this debate. If Senator Scullion is not seeking the call—

The Acting Deputy President:

Senator O’Brien, please take your seat for a moment. The list I have been provided by the whips has Senator O’Brien next. That is all I can go on, I am afraid.

Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Transport) Share this | Link to this | Hansard source

My advice from the deputy whip in the chamber is that Senator Scullion is next, and it is normal for the order of debate to be alternated across the chamber. I take it that Senator Scullion is not seeking the call in this debate if he is choosing not to speak in the order that would normally occur. If he declines to take part in the debate, so be it.

Nigel Scullion (NT, Country Liberal Party) Share this | Link to this | Hansard source

Mr Acting Deputy President, I raise a point of order on clarification. I am present in the chamber as the whip. I have a list of speakers here, as does everyone else, that is quite clear: Senator O’Brien is next on the list and I am after that. I would not be in the chamber apart from the fact that I am here as the whip.

The Acting Deputy President:

There is no point of order.

Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Transport) Share this | Link to this | Hansard source

I have never heard a whip use that excuse for not speaking at the appropriate point in the debate, but we hear new things all the time from this government, which is keen to ride roughshod over the practices in this chamber whenever it suits them.

I commend Senator Stephens for her contribution and would respectfully adopt many of the things she has put on the record as a very fair reflection of matters that ought to be put in this debate. We are seeing Indigenous communities being demonised on a regular basis in the media by and with the assistance of this government. I am not surprised. As Labor’s former Indigenous affairs spokesman, I have seen this coming, particularly since this government was able to obtain a majority of senators in this chamber. The unspoken desire of many in the government to turn the clock back in relation to the representation of Indigenous Australians in many respects is typified in this legislation.

I also reflect on the fact that this is a government that when it suits it says that communities who are affected by change ought to have a say in those matters. We saw it quite recently with the plebiscite which was conducted in the Toowoomba community on proposals in relation to their water supply. They are not an Indigenous community, of course. Clearly, according to this government, different rules apply to them than apply to Indigenous communities. It was this government that imposed the obligation on the Toowoomba council to hold the plebiscite on a proposal for funding for water recycling. That has received ample coverage in the media, and I do not need to canvass the nature of that proposal.

That was not the first occasion on which this government interposed in proposals put forward within a community for change. I recall some of the fishing communities in the prawn industry being the subject of a plebiscite requested by coalition senators which ultimately saw the removal of the industry development levy—much to the detriment of the industry—because there was some opposition to the existence of that levy. It was this government that imposed on that industry the obligation to hold a plebiscite. In relation to the establishment of other mechanisms which are given effect by this parliament in the farming industry, such as industry levies and other important industry measures, this government imposes—and we do not object to a democratic indication of an industry’s will—an obligation to conduct a plebiscite to ascertain that there is proper support for the proposal within the industry.

That is not happening now—not for this community. This is an area, particularly in relation to the land councils, in which the government is content to do what its secret discussions are telling it it must do to satisfy its constituency. It is imposing on the Northern Territory land councils and the Indigenous communities within them rules that suit this government in relation to their land. Of course, land rights in this country have had quite a chequered and, in many respects, shameful past over many years.

There had been up until this point quite a degree of bipartisan support for the model of representation through land councils to ensure that the Indigenous communities who had a traditional connection with the land would have a proper say in matters, and it was to ensure that development would be in accordance with the wishes of the traditional owners of land that this legislation which is now in place and is subject to the proposed amendments came into existence. There was a degree of bipartisanship. That issue has been the subject of review and discussion over a period of time.

Now this government has a majority in its own right in this chamber and there is no proposal for extensive consultation with those communities. There is no proposal for a plebiscite within the traditional ownership groups which will be affected by this legislation as to whether they are prepared to accept it on the basis that there is some benefit for them. No, this government will impose its will on these communities. This government will be saying to the land councils: ‘If you don’t do what we want, we will make sure that we get our way. We have control over you in terms of funding. If you don’t do what we want, you can kiss goodbye to the funding.’ This government is saying in relation to setting up new land councils: ‘It doesn’t matter that traditional owners have a view. Any Indigenous Australian who lives in the area proposed will then have a vote in a plebiscite—not just the traditional owners.’

In some of these communities live traditional owners and Indigenous Australians from other parts of the country who have moved there. This legislation will effectively provide the potential for the dispossession of traditional owners by other Indigenous communities through a land council established under a plebiscite, conducted by the Electoral Commission, of any Indigenous Australian who lives in the area proposed. So the government is saying to the traditional owners of land affected: ‘Your rights will be gone. Unless you somehow can exclude those people from the area proposed, you can become the minority.’

I interpose that people talk about concerns about the potential for violence. I would have thought that that would be one of the ways in which this legislation could actually provoke it. I sincerely hope that that is not the case. I know that most Indigenous Australians are gentle people and most Indigenous Australians seek to work well within their communities. But, unfortunately, just as in the white community, a minority of people give some Indigenous communities a bad name and blacken their reputation because they choose to act violently and unlawfully. There are many causes of that, and I do not propose to touch upon them now.

Labor is saying let us proceed slowly. This government has a majority in the Senate and it is not as if it has a time requirement to pass this legislation now without the consultation we propose. It is not as if in a month, three months or six months the position within this chamber will change. It is not as if it does not have the resources to conduct the consultation that Labor is proposing. It is not as if the government has a history of doing otherwise with other communities. It is simply a matter of choice for this government as to what it wants to do now. Why impose on these communities without that consultation and, indeed, without the opportunity to have a proper say in it—and not a farcical, one-day Senate inquiry and not an inquiry which removes from those people the opportunity to have any say at all, let alone to participate in a plebiscite?

Let us have a proper consultation. Let us take this matter to the communities who will be affected by the legislation. Let us not deal with them in the way that other communities have been dealt with where their basic human rights, their rights to the services that the overwhelming majority of Australians receive, can be subject to some community performance standard set by this government. Let us have a proper consultation where the people who are affected by this legislation can have a say.

Why is the government so keen to push this matter through now? That is a question I have not heard an answer to. This government has in many respects in relation to other legislation talked about the need to preserve the principles that operate in many areas in the community. Constitutionally, for example, the government has been talking about preserving our connection with the British monarchy as a cornerstone of our democracy, and that is a matter that the community will have a chance to have a say on. This is a government which has opposed rights for people who have different beliefs from it in relation to families and relationships, but there is a democratic process through here, through the community and also right through state parliaments that can deal with some of those rights—but not here. What we have here is a group of Australians with special rights that have been enshrined in legislation with the support of both sides of politics over many years. Now this government wants to change it, and it wants to change it without the right of those people to have a proper say.

I wonder how the government can say that this bill will improve access to health care, education, employment and housing for Indigenous communities. Indeed, it may be possible that they can demonstrate those facts. They have not so far and they have not to the communities affected but, if their case is as strong as they say it is, why are they not prepared to test it with those who are affected by the legislation? Why can’t they bring the communities with the government on this legislation rather than simply ramming it down their throats?

The Labor Party are committed to reforms that will provide opportunities for Aboriginal people to gain a maximum benefit from their land. In that context we could consider positively any reforms that have clearly demonstrated that they will enable this to happen. If the government were confident that they can demonstrate that then they would not be rushing this legislation through today. They would have gone through a much more extensive consultation, not just through the Senate committee but with the communities involved.

Aboriginal communities can of course maximise economic gains within their communities without the changes proposed in this legislation. It is happening now in communities across the Northern Territory in partnership with mining interests and others. It has been negotiated under the current legislation. It leads to benefits for those communities through the payment of royalties. Those communities, through their land councils, have had some fine ideas about how they could enshrine the benefits for their communities in the long term. It shows a foresight by those land councils that should be encouraged.

The benefits that might be gained from the proposals that the government talks about are counterbalanced by the negatives that might be given effect. I can envisage circumstances where, in a particular area, it is in the interests of a development proposal to seek to divide a community between traditional and non-traditional owners in order to provoke a proposal for a land council. Who knows? In that circumstance perhaps it could even encourage other non-traditional owners to move into the area and propose that it is beneficial for them to support the change and to establish a land council on the basis of a plebiscite. I do not know if there is anything in this legislation that will prevent that from happening. That is one of the flaws that I see and there are other people in the Indigenous community who see that potential as well. Where there is a financial gain to be made there will be strong incentives within Indigenous communities, and outside them, to seek to persuade a majority of people to vote for a particular proposal, even though it is not in the interests of the majority for that proposal to succeed.

We might say that that is democracy, but this will be a flawed democracy because we are changing from a traditional owner model to a model which will be based on whoever the Indigenous occupants of the land at the time are, and that is a concern. So why not wait? Why not sit down with those communities and talk about the potential ramifications? Why not look at how we can make sure that the rights of the traditional owners are not overridden or effectively wiped out by these proposals? That is a question this government really needs to answer, but I do not expect that it will. I expect that there will be a lot of bravado about how this will be good for communities. There will be a lot of bravado about how this will attend to the problems of the communities and provide a basis for good things in the future. I wonder why many Indigenous Australians are not convinced by this proposal. Many of the leaders of their communities have denounced the proposals and called for further discussions.

The opportunity is there for the government, but it will not take it. It will ram this legislation through and oppose the proposal to divide the legislation so that the good parts of it can be passed and those matters which are more controversial can be the subject of more rigorous consultation. That is what we see from a government that has become arrogant after 10 years in office—a government that now has the numbers to do whatever it will. That is what we will get from this government and, unfortunately, in some communities we will probably reap the whirlwind accordingly.

Nigel Scullion (NT, Country Liberal Party) Share this | Link to this | Hansard source

I rise to speak in support of the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006. It is with some sadness that I have listened carefully to the contributions of those opposite. It saddens me that the only interpretation that they can make on every aspect of this bill is that there is some sort of a mischief in government to go out there and upset Aboriginal people. We have heard from the other side about the creation of violence in the communities. To say that this is some sort of a conspiracy runs in the face of the facts that most people, and certainly all the Aboriginal people who have spoken to me, put to the matter. It is very sad that those opposite have obviously not consulted widely, because, in my experience of living in and around Indigenous communities for well over 20 years, the changes to the Aboriginal Land Rights (Northern Territory) Act proposed in this place today simply reflect the aspirations of Aboriginal people and Aboriginal communities.

The Howard government has three fundamental approaches to economic development. We want to grow the economy, lock in prosperity and build for the future. That vision of this government is in an Australia-wide context and it should extend to every Australian. Unfortunately, many of my constituents who live on Aboriginal land have not been part of this economy. They have been isolated from the mainstream economy and face a number of impediments, in the Northern Territory particularly, primarily to do with education, housing, unemployment and, of course, as we have heard with sadness, the lack of services and of a capacity for law and order in many Indigenous communities. Clearly, the Northern Territory government is not providing the sorts of services and the sort of environment for safety that those first Australians deserve.

There is another important impediment to the development of the economy of this country—particularly to the benefits to be gained by Indigenous people who live in the Northern Territory—which is, of course, the Aboriginal land rights act. The principal reason that we are here today is to make some amendments to an act that allow people to participate in the economy that all other Australians enjoy. People have said that it is a good act. It is 30 years old; it has to be a good act. Old acts are good acts. I do not know where they got that from—they have dug it up from somewhere—but in this place we normally know that times change, and 30 years is an awfully long time. It is out of date, it is paternalistic and it needs to be updated. Some 30 years ago, as part of that act, we set up structures and processes that, instead of developing economies and assisting Indigenous people in developing economies, have been impediments to mining, have dumbed down economic activity, have denied local decision making and have disenfranchised many Indigenous people in the townships and deprived them of being able to make choices in life that so many take for granted.

This is the fundamental process under which we are looking at this legislation. The fundamental plank of the amendments is about choice. Nothing that we are proposing is being imposed. We are providing for the locals to have more say. If you want to buy a house in the townships at the moment, you cannot. You will have to go outside of the community if that is your wish. Senator Crossin said in this place that we should not be able to do this, because people on low incomes cannot afford a house. I am not sure about Senator Crossin’s particular arrangements, but I assume that she owns or is buying a house, as are many like her. There are, of course, people in Darwin who cannot afford to buy a house and are renting. But just because there are people in Darwin who are renting does not mean that we should not provide the environment and the legislative framework for people to buy their own houses. It is absolute paternalism at its very worst.

People say that they are on low incomes, but some people in these communities are employed. Through Indigenous Business Australia we have the Home Ownership on Indigenous Land Program so that a family on CDEP income can in fact buy a house. If those opposite had sat down with Indigenous people for a long time, they would have found out that it is a simple aspiration of every Australian that is shared by Indigenous Australians who live on their land. Just like us, their aspiration is to own their own house, not only for themselves but to pass it on as a legacy to their children as property so that through each generation there is an accumulation of wealth. It is something that clearly has not happened in those communities. Again, it is typical Labor paternalism, an ideological lockdown and a lowest common denominator approach.

All we are trying to do is give local people a say over their own lives, and I cannot understand what is wrong with that. I cannot understand why this government is being attacked over trying to provide choice. I do not understand what is wrong with devolving decision making to local people. The land councils support it. Perhaps those opposite should have better communications with the land councils, because they certainly support it. This legislation gives traditional owners the right to decide the future of their townships and to look after the rights of their local residents, who are not all traditional owners. I do not understand what is wrong with that either. Senator O’Brien stood up in this place and painted a picture of violence and of traditional owners somehow being disenfranchised. Obviously, he either has not read the legislation or has not paid attention to the process.

A lot has been said today about consultation. ‘Let’s have a proper consultation,’ says Senator O’Brien. When he says that the government is rushing headlong and jamming this legislation through the parliament, I am almost speechless about this misrepresentation of the facts. I will go through a couple of the processes in this consultation, and I am sure that what Senator O’Brien is really saying is: ‘Let’s delay action. Let’s delay Indigenous Australians getting access to the same sorts of rights to own their house as every other Australian has.’

I will briefly run through the consultation process. In July of 1997, Senator Heron announced a review of the Aboriginal land rights acts and their terms of reference. In October 1997, Mr Reeves was appointed to conduct the review. In November 1997 an issues paper was circulated, including public hearings in 22 communities with 98 written submissions received. In August 1998 there were the findings of the Reeves report. In December 1998 the minister referred the Reeves report to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs inquiry, with 31 public hearings and 72 written submissions between March and June of 1999. The House of Representatives standing committee report was tabled in parliament in August 1999. In January of 1999 the ATSIC commissioned a national competition policy review of the mining provisions of the act. This included written submissions, statistical surveys and meetings with major stakeholders. The draft report was circulated to major stakeholders for comment. The report was then released publicly in August. Early in 2002, Minister Ruddock commenced a new round of consultation meetings with land councils, the Northern Territory government, the mining industry and other stakeholders.

I was very pleased to participate in many of those meetings. They were comprehensive meetings. They certainly did not reflect any of the garbage that I am hearing from the other side. In April 2002, the minister released an options paper to all major stakeholders, and pretty much all of them responded pretty quickly. In June 2003, joint land councils and the Northern Territory government responded. That response was provided to the government. In October, further discussions occurred between the minister and major stakeholders. In 2005, in October, Minister Vanstone announced details of proposed amendments. The opposition was briefed by the senator’s office and by officials. The material was posted on the minister’s website. Detailed media releases and brochures were prepared, and they were distributed widely. On 25 October the land councils, the Northern Territory government and other stakeholders were briefed on the township leasing proposal. The minister’s senior adviser visited the Northern Territory to brief land councils and the Northern Territory government on all the proposed amendments.

On 1 December 2005 the draft legislation on township leasing was provided to the Northern Territory government. On 2 December the same year, the department had a teleconference with the Central Land Council on all the issues. On 30 March a summary paper on reforms was provided to land councils. On 31 March, draft legislation on exploration and mining leasing was provided to the Northern Territory government officials. Early in April the department met with the Northern Land Council, the Tiwi council, the Central Land Council and the Anindilyakwa Land Council in a teleconference. By April, all the comments were received from all the land councils. On 15 May comments were received from the Northern Territory government, and on 4 June comments were received from the Northern Territory government on the township.

People think that the Commonwealth government should sit down under the tree with every single stakeholder and talk to them. It is just a nonsense. We rely on the very good work on the land councils to consult on our behalf with Aboriginal people. That is their principal role: to manage the land, provide advice and consult with Aboriginal people. They have done a very good job in this, and that list does not seem to me to be a comprehensive failure of consultation. In fact, I would say that it demonstrates quite clearly that the furphy that those opposite are putting forward—that we have not spoken to Aboriginal people—is an absolute lie. It is absolute rubbish, and should not be supported.

After the announcement last year, Senator Evans in his media release of 18 November said:

Labor is pleased that the package of amendments to the NT Land Rights Act were finally announced by Senator Vanstone...

The mining industry, represented by the Minerals Council, said at the time that it supported the package announced by Senator Vanstone. It said:

Though these reforms have been a long time in gestation, the process of consultation between interested parties has been a critical and productive element to the reforms announced by the Government.

Again, more acclaim for the consultation process, how widely we have consulted and how successful and forensic it has been. I cannot understand that those on the other side are saying: ‘Well, it’s not right and it’s not good. We don’t support it.’ I know the Northern Land Council supports the package. The Northern Land Council has been very supportive of the township reforms and has undertaken a very responsible approach to the permit issues. I have to say, from a personal point of view, that at one time I was inclined to pursue the permit system further than the government wished. It was my wish, originally, to ensure that the media had full access to these communities inside the permit system. But I have been convinced by the activities of the Northern Land Council that it is responsible enough to ensure that the media have access, without any prescriptive legislation to ensure the permit system gives them access. I will be continuing to watch that space, but it is because of the activities of the Northern Land Council and its responsible approach to these matters that I have decided not to pursue that matter.

Let us go through some facts. I know we have had a lot of stuff from the other side—doom and gloom and saying the world is going to fall in—but these are, simply, good amendments. This is good legislation that provides for the future aspirations of Indigenous Territorians. The 99-year leasing for townships was put forward by the Northern Territory Labor government, and it is funny to see those people on the other side saying that they are all part of the Labor Party. All you have to do is pick up the phone and ring Clare, and she will probably straighten you out on it.

There was a bit of an issue about the five per cent cap of the rentals. The Northern Land Council talked to us at length about that. We have made changes and amendments to ensure that we have reflected their concerns. There is no longer a cap. This whole process is voluntary, and in Nguiu the consultation is under way with the support of the Tiwi Land Council. It is very interesting; when I was last there they were reflecting that some of the traditional owners had in times past visited Lord Melville. They were telling me how Lord Melville’s land spread for so far. They had some industry on it, other people had sheep and cattle, and it was all going very well. The Tiwis from Melville Island asked Lord Melville, ‘What is the secret?’ He said, ‘Never sell your land.’ They understood that. They asked, ‘How do you get all these people?’ And he answered: ‘I lease it. Never sell your land; make sure you lease your land.’ In this speech by traditional owners, they were telling me that what the government are intending to do in these amendments is exactly what they want. It is common sense, and they want to be part of the mainstream economy.

Senator Stephens brought up the issue of Ms Bowden. It was to do with the Australian Property Institute. She had apparently written to the minister for some reason or another to say this was going to be a compulsory acquisition. Let me make this clear: the headleasing arrangement is a voluntary arrangement. The framework we are putting in place simply allows the process to happen.

There are some issues associated with the creation of new land councils. I think it is a bit misleading to say ‘the creation of new land councils’. Yes, the legislation provides for the devolution of some responsibilities, not the devolution of all the responsibilities of a land council. We have already talked about plebiscites. The government previously used the term ‘substantial majority’, and all our feedback said: ‘We need some clarification. What does “substantial majority” mean?’ We have defined it as 55 per cent. Other senators on the other side think that is a bit low. I would have thought that we in this place would normally consider that to be a landslide, or some other name. We think that 55 per cent is very reasonable and very fair.

Some senators, including Senator O’Brien, have suggested that we restrict this to traditional owners only. This is the sort of selective democracy that we are gaining on the other side. We need to understand that the land councils are meant to represent all Indigenous people on Aboriginal land, not just the traditional owners. They understand that very clearly. Senator O’Brien’s assertion that this would cause outbreaks of violence is, I think, really off with the fairies. I certainly have not had any indications of that level of negativity on this matter. There have been allegations of bribery. There has been misinformation going around that we are going to threaten to stop basic services, education and housing if people do not sign up to a lease. That is absolute irresponsible nonsense.

This bill is the result of nine years of consultation and four separate reports. I have gone through the most comprehensive consultation list, and I would say that it would be very rare for any piece of legislation to have more than nine years of consultation and such a comprehensive process. The bulk of the recommendations in the bill have been drawn from a joint submission of the land councils who represent the traditional owners, the people of the Northern Territory, and the Northern Territory government. That is right: the Labor government in the Northern Territory—Aboriginal land councils and the Labor government in the Northern Territory. The principle of the township leasing program is based on a submission from the Northern Territory government.

This legislation seeks to provide ministerial power to override land council decisions, not to delegate. It simply offers natural justice for any aggrieved party in the arrangements. It simply provides the capacity for the minister to review land council decisions and to determine if a decision is a reasonable one. Frankly, I do not expect the minister to very often come down on the side of anyone other than the land councils. It would be in circumstances where somebody says, ‘We would like to devolve the process of saying “I would like to negotiate about a mining lease.”’ The land council might quite reasonably say, ‘We don’t think that you have the resources or the capacity or the competence to do that. It is quite a complex matter. You will need some legal advice. We do not think you are ready yet to have that.’ The plaintiffs can then say, ‘Look, Minister, we think we can do it.’ The minister can look at it, and all he will look at is whether or not the land council behaved reasonably. It is just about natural justice.

With respect to the removal of the 40 per cent funding guarantee, this bill provides for outcome based funding—the same as the rest of Australia. Outcome based funding is exactly what it is about. Any organisation goes towards outcome based funding. The land councils support it. They want to be held accountable for what they do, and they want to be funded on the basis of what they achieve. It is absolutely anachronistic. It has got to go.

This legislation also seeks to alter the administration of the Aboriginals Benefit Account and the composition of the advisory board. The royalty associations are being made more transparent by being required to report on the purposes for which payments are made. I think that is going to be a great thing for Indigenous people, and it will ensure that all Aboriginal people benefit, not just a few.

With respect to intertidal zones not contiguous with the coast, these are issues that I have had personal dealings with for many years. To understand the process, these are only the areas that are adjacent to pastoral leases. They have been claimed simply because they are claimable under the Aboriginal Land Rights (Northern Territory) Act. So if you are a pastoralist, you cannot have a barge come up over the low-water mark and unload cattle without going through the whole process of saying that you are using the land. It is an absolutely ridiculous process to have to go through.

We have been able to provide more choices for local people and a prospect for real market economy without changing the fundamentals of the act, which is inalienable freehold title and the traditional owners’ right of veto. Those are being maintained, they are fundamentals of the act and they are not being amended.

The choices now available will allow Aboriginal people to grow their economy, locking in prosperity through a greater number of benefits from this growth. They will allow traditional owners and other people on Aboriginal land to build a better future and to share in an economy that all Australians are benefiting from. I can see no reason why we should not support these amendments to support the prosperity of Indigenous people. An editorial in yesterday’s Sydney Morning Herald stated:

The amendments will never fix every problem or make everyone a winner. But if they can help even some communities to help themselves, they will be worthwhile.

Clearly, this bill will help many communities to help themselves. As such, it is far more than worth while; it is absolutely vital. The time for talking is over. Indigenous Territorians need action. By bringing in these changes, we can offer them a better future. I commend the legislation to this house.

Rod Kemp (Victoria, Liberal Party, Minister for the Arts and Sport) Share this | Link to this | Hansard source

Senators who wished to speak in this debate on the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 have now had a chance to put their views. Let me record my appreciation for the speech of Senator Scullion, which was in many ways quite a visionary speech and one which is strongly rooted in his very deep experience in the Northern Territory. I congratulate Senator Scullion for the work and the thinking which has gone into developing his own position on this bill.

The changes to the Aboriginal Land Rights (Northern Territory) Act are fundamentally designed to give Aboriginal people more choice. The act has been largely unchanged, as many senators have noted, since 1976. Many of its provisions are, of course, now outdated and paternalistic. I think this was a point that Senator Scullion made in his remarks. It is time that the Aboriginal people were given the opportunity to make their own decisions. This legislation will help Aboriginal Australians in townships on Aboriginal land in the Northern Territory to enjoy the same opportunities as other Australians. They will be able to own their own homes and obtain secure title to land for business or community purposes.

We are not saying that these amendments are a panacea for the economic woes of Indigenous Territorians. Obviously, economic independence requires education, good health and decent housing. But changes to land tenure will indeed make a difference. Around one-third of Indigenous Australians own or are buying their own home. With our support, the proportion is growing. But on Aboriginal land in the Northern Territory this is not the case because of land tenure problems. Imagine the difference it would make if, over time, 10 per cent, 20 per cent, 30 per cent or more of these people enjoyed the benefits of homeownership. This is not about hurtling into the unknown. The model that we are aiming for is the normal Australian town where people are able to make their own way in the world.

The reforms implemented by the bill before the Senate have been under consideration for nine years and have followed extensive consultations with all stakeholders. In October and November last year, the government made detailed public announcements about the changes. I can report to the Senate that the consultation process has led to a narrowing of differences among stakeholders. This next point is a particularly important point, and I draw it to the attention of Labor senators: almost all the measures in the bill are supported by the Northern Territory government, including the township leasing scheme, which it put forward, and the disposal of certain land claims, such as those to the intertidal zone.

I am also pleased to report that the Northern Territory land councils, which represent Aboriginal people living on Aboriginal land in the Northern Territory, also supported the majority of the reforms. In particular, most of the changes related to the streamlining of the mining provisions and improved administration and accountability were put forward by the Northern Territory government and the land councils. On behalf of the government, I want to compliment the land councils for their constructive engagement in the lead-up to the bill. They have shown enthusiasm for improving economic outcomes and a willingness to devolve decision making to local people. While they may have issues with the removal of the statutory funding guarantee for administration, they have accepted the concept of outcome based funding because they are prepared to be assessed on what they achieve for Aboriginal people in the Northern Territory.

The government is particularly pleased that, with some qualifications, the Northern Land Council supports the township leasing scheme. It advanced the argument that led to the proposed amendment to remove the five per cent cap on rental returns to traditional owners. Senator Scullion referred in his remarks to the constructive approach that the Northern Land Council is taking in relation to the administration of the permit system. While there are some areas where we differ, the mature relationship that we have with the land councils means that we will continue to listen to them and remain open to further sensible changes.

We have continued to take into account the views expressed by key stakeholders during the passage of this bill. In the House of Representatives, the government moved a number of amendments to the bill related to the mining provisions and the township leasing scheme based on suggestions made by the Northern Territory government. In this chamber, we will be proposing further amendments—in particular, the removal of the rental cap for township leases.

In relation to the delegation of land council powers to regional groups, the government is not planning to fragment the current decision-making structures. If regional groups apply to the land councils to have powers delegated to them so that they can make decisions locally and the land council refuses, it is fair and appropriate that they have recourse to a review mechanism which will assess their capacity to exercise those powers. In such circumstances, if the land council has made a reasonable decision to refuse to delegate its powers, there is no reason to imagine that a minister would not support the land council position.

There have been suggestions that the government should split the bill to allow passage of some of the provisions of the bill while other provisions are subject to further consultation. The government believes that the whole bill should be enacted as soon as possible to provide Aboriginal people in the Northern Territory with the opportunities offered by the township leasing scheme.

I remind the Senate that entering into a township lease will be voluntary. No-one will be forced to agree to such a lease. However, we believe that the opportunity should be available as soon as possible, particularly given the fact that the communities are already involved in discussions concerning township leases. The Tiwi Land Council has signed an agreement with the Australian government to negotiate a township lease and the Galiwinku community in Arnhem Land is actively considering the opportunities of such a lease. Other communities have expressed interest, including communities on Groote Island. Splitting the bill would delay this considerable momentum for change that is building up at the community level.

We believe that there has been more than sufficient consultation on the reforms outlined in the bill. As I said earlier, the government has made changes to the bill to take into account views expressed by stakeholders, including changes in relation to the township leasing scheme. There will be continuing discussions with stakeholders on the implementation of that scheme and other aspects of the bill following its passage through parliament.

Some people in this debate have described this bill as paternalistic. It is the opposite. It is about allowing people living on Aboriginal land to make their own decisions. Indigenous Business Council chairman Joseph Elu once said that we should stop wrapping Indigenous people in cotton wool. Will some people make mistakes? Of course they will. Will the majority make the right choices? Undoubtedly.

After 30 years, the land rights act has been a great success in delivering almost half of the Northern Territory to Aboriginal traditional owners. It has not been successful in generating economic wealth and independence for the people who live there. This bill will help spread the entrepreneurial culture exemplified by people like the late Mr Lee from the Jawoyn Association in Katherine and other prominent Indigenous Territorians. This bill will help people to follow in their footsteps. I commend the bill to the Senate. It is a very important bill. It is one which there has been widespread debate about. As I have outlined, the government has involved itself in very extensive consultations with key stakeholders. Now is the time for action and I hope that we can have a speedy passage of this bill through the Senate.

Question agreed to.

Bill read a second time.