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

The committee is considering the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006 and government amendments (4) and (8) on sheet PF377, moved by Senator Kemp.

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

I forget when it last was that we were debating this; this bill seems to be a bit of a stop-start affair. In relation to the government amendment that seeks to remove the five per cent cap on financial benefits on the annual rent under the 99-year headlease, I want to indicate that Labor are going to support it. It is something we argued for at the start of this process. We could not understand why the artificial cap was being imposed.

There are two concerns that have been raised with us. One concern is the question of the cap and the attempt to limit the potential financial benefit that might flow to Indigenous people from a lease arrangement. The second concern is why anything other than rent was excluded. Even though we have fundamental difficulties with the model being used, we took the view that, if there were to be development on leases granted under this proposal, people ought to be capable of negotiating at, if you like, the going rate—that is, at what something is worth—rather than at some artificial limit being imposed by the government saying, ‘We are going to take your land, we are going to insist on a leasing arrangement and we are going to limit how much money you can make out of that arrangement.’ That seems to us to be manifestly unfair.

I know the government have changed their approach for other reasons. They have seen the light because, I think, the Northern Territory government and others have realised that the placing of a cap might restrict the capacity to do the deal—to get agreement to the lease in the first place. That reflects the fact that there was not enough negotiation with Indigenous interests about how to progress on these issues. Clearly, from the government’s point of view, if they want to get the leasing arrangements in place, they have to get a deal. I have expressed my concerns about the way the government are going about promoting the leases and the fear that they will be linked to services that Indigenous people have as a right of citizenship, such as access to education, health and housing. Nevertheless, in terms of this issue, Labor believe the cap was unnecessary and counterproductive to the government’s intentions.

Labor have also been strongly in favour of the capacity for traditional owners to negotiate pecuniary benefits other than annual rent. One of the key concerns in economic development issues in Indigenous communities is that, where economic development has occurred, very little benefit has flowed to Indigenous communities. We have had people—developers, miners—that have brought economic development to areas where Indigenous people live or to Aboriginal land, yet we have not seen the trickle-down effect in jobs and other benefits that should come, and are always alleged to be coming, from industry and economic development on Indigenous land. One of the key concerns that ought to be raised, and which Labor are focused on, is that, if there are to be these arrangements with leasing on town sites, one should hope to achieve Indigenous employment outcomes. If Woolworths were to set up a store in an Aboriginal community then one of the things one would want to talk to them about would be employing young Aboriginal people in the store and that sort of employment objective. The social benefits of that are, I think, quite critical to the hopes for economic development.

What worries me about the whole framework the government has adopted is that those things I have mentioned seem not to be able to be negotiated by Indigenous people. The government’s model is: sign up for the 99 years, lose any control over what happens and let things be determined by others. It seems not to be a model that allows Indigenous people to have some say over things. Their being able to identify the priorities that they want from any economic development on their land should be part of any model we adopt. It is certainly part of the government’s rhetoric and everything else, such as shared responsibility agreements and COAG trials. They are all wrapped in this sort of rhetoric about Indigenous communities’ priorities and identifying economic opportunities. But this model, it seems, is not. It is the rigid approach: ‘Hand over the 99-year lease, get the people out of there; the entity runs the lease now.’ We have no detail about how that entity will work or whether or not traditional owners will have any say in how it works, whether they will have any say in the priorities or whether they will have any say in aspects of economic development that occur on their land. As I have said, one of the things that has been raised most often with me is the question of employment—that if there is to be economic development then Indigenous people ought to be able to negotiate employment outcomes for Indigenous people in those communities.

So I welcome the loosening up of these provisions in the sense of the cap being removed and the concession that there might be benefits other than purely rent that can be negotiated. I think that does improve the bill; I commend the government for accepting that change. I know the land council and others think that it will make it a better proposition if that occurs. As I have said, I still have basic problems with the model—concerns about the lack of Indigenous input into how things proceed once the leases have been signed over—but I think that the change that has been made does at least increase the capacity for better and broader outcomes, and for that reason we support it.

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

I want to report that I welcome the comments generally by Senator Evans. A view was put in this chamber that the government was not consultative and was not listening. Senator Evans has just made a very valuable point that we were listening and we did change. We welcome that. I think that it does show that this is a government that does consult and does listen to people, Senator Siewert, and, where appropriate, does make changes.

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

I cannot really let that one go by. The Greens do support this particular amendment because it is a small step by this government towards taking into account what the traditional owners have said. However, as I have said in this place and have read out from the Hansard transcript, the traditional owners and the land councils do not believe they have been adequately consulted on significant areas of this legislation. So, yes, you can score a cheap point by saying that you have listened, but you have not listened to the bulk of what they said about these contentious amendments. You have not listened and you have not taken it on board, because if you were taking it on board you would split this bill to deal separately with the bits to do with mining that everybody agrees to.

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

Normally I would not respond to abuse in this chamber. As people know, I am very restrained in relation to that. But, Senator Siewert, I think you have got to be generous. This was an important amendment. I think that this was an issue that was well explained by Senator Evans. The government did move on it and I think that you have to give credit for that rather than raising your voice and arguing that some people differ on other matters. Of course they differ on other matters; no one argues that. We are all coming to this debate from a position that we want to achieve significant outcomes for the Indigenous people. You have a particular view and you are entitled to your view. I do not abuse you for your view. You are absolutely entitled to that view. But we do not agree with you and we have consulted with a large range of people that agree with our view. Therefore the government in the end has to make a decision. I think that it is unfortunate that you attempt to politicise a very important debate in this manner. This is a balancing of issues and the government has done the right thing.

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

I remind all senators to address their comments through the chair in future.

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

I do not want to delay the Senate on this particular matter other than to say that I know that Senator Kemp looks to put the best light on it. I think that it is also true that he would remember that I made the key point: the government had received advice that the system was not going to work unless they agreed to this concession. The hard-edged opinion in the Northern Territory was that, on the basis that you set it up, you would not be able to sell it to anybody and that you needed to make some concessions to sell it to a few people. On the basis of that rather pragmatic advice you had a change of heart on the principle at stake.

I do not care why you did it but I would not want you to get away with the suggestion that there was some broad consultation and that somehow that you had been listening to people who agree with you. I would be happy for you to name the people who agree with you, because they certainly did not come before the Senate committee inquiry. I know that you will want to fall back on the Northern Territory government because, quite frankly, that was the only submission that was vaguely supportive, and I understand why. The point is that, if you had been consulting more widely, you would have found that there was not a great deal of support out there among those groups that took an interest and made a submission on the bill, including the Law Council and the Minerals Council, not just your usual suspects.

So I think that the government has seen an opportunity to remove the cap and perhaps make the proposition more saleable. But I would also point out that it was not a conclusion that the government came to when they debated it in the House of Representatives. You can characterise it as listening of late to later and better advice or you could attribute it to making policy on the run, making it up as you go and trying to fix up obvious deficiencies in a scheme. Had it been debated and discussed with the parties who have the most interest in these matters, you may not have had to do it on the run. There are two substantial amendments which we think improve an otherwise difficult proposition, and this is one of them. But I would not want the characterisation that Senator Kemp put on it to go unchallenged. I think that we all know it was done because it is hoped that this will make it more easily agreed to by various Indigenous communities. It is an improvement, but I still have fundamental problems with the structure of the leasing arrangement and the loss of Indigenous control over their land that is envisaged in that arrangement. But, because of the lateness of the government coming to that position, I understand that the bill will have to go back to the House of Representatives so that they can reconsider the merits of that particular proposition.

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

It is a pity that the hour is late, because it does allow people perhaps to vent some spleen, which they would not normally do. Senator Evans, when you mentioned that you agreed with us you did mention the Northern Territory government. I would have preferred you to characterise it as being the Northern Territory Labor government that agreed with us. But you did not mention another group that agreed with us on this, the Northern Land Council.

The government is between a rock and a hard place. If we do not accept something, Senator Evans and Senator Siewert stand up and say how terrible we are that we do not agree. When we do agree, Senator Evans and Senator Siewert stand up and say: ‘Isn’t it terrible? They are making policy on the run.’ It is a bit hard to satisfy people who behave in this fashion. But, from the government’s position, let me say that we have listened. This is an improvement to the bill and we are very happy with this improvement.

Question agreed to.

by leave—The government opposes schedule 1 in the following terms:

(5)    Schedule 1, item 46, page 24 (lines 15 to 20), section 19B to be opposed.

(14)  Schedule 1, item 201A, page 80 (lines 14 to 19), to be opposed.

These are essentially the same issues. They give effect to the amendments that, as I understand it, have just been passed by this chamber, so I think they should be supported, as were the previous amendments.

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

The question is that the section 19B of item 46 and item 201A stand as printed.

Question negatived.

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

by leave—I move government amendments (1) to (3), (6), (7), (9) to (13) and (15) to (17) on sheet PF377:

(1)    Clause 2, page 3 (table item 20), omit “201A”, substitute “201”.

(2)    Schedule 1, page 7 (after line 25), after item 4B, insert:

4BA Subsection 3(1) (subparagraph (a)(ii) of the definition of intending miner)

Omit “exploration retention lease or exploration retention licence, or has made an application for the grant of such a lease or licence”, substitute “exploration retention licence, or has made an application for the grant of an exploration retention licence”.

(3)    Schedule 1, item 46, page 22 (line 20), omit “person”, substitute “approved entity”.

(6)    Schedule 1, item 61, page 33 (after line 15), after paragraph 28(3)(b), insert:

           (ba)    section 19A (about grant of township leases);

(7)    Schedule 1, page 60 (after line 29), after item 124C, insert:

124D Subsection 46(1)

Omit “exploration retention lease (whether that licence or lease”, substitute “exploration retention licence (whether that exploration licence or exploration retention licence”.

(9)    Schedule 1, item 189, page 71 (line 28), omit “, (13)”.

(10)  Schedule 1, item 192, page 74 (line 16) to page 75 (line 9), omit subsections 67A(12) and (13), substitute:

      (12)    This subsection applies in relation to an application:

             (a)    that was made under section 50 before the commencement of this subsection by or on behalf of Aboriginals claiming to have a traditional land claim to qualifying land (whether or not recommendations of the kind referred to in subparagraph 50(1)(a)(ii) have been made and whether or not the application covers other land); and

             (b)    that was given the land claim number prescribed by the regulations.

Government amendment (6) refers to the delegation of power to grant township leases. Under the new section 19A of the bill, a land trust may grant a lease for township at the direction of the relevant land council. The bill allows a land council’s power of direction in relation to granting of township leases to be delegated to committees of the land council but not to an incorporated regional body. Consistent with the fact that land councils can delegate decisions about other land use matters to incorporated regional bodies, this amendment will allow the delegation of decisions on township leases to such bodies.

I now turn to government amendments (9) to (12) and (17), which are about the disposal of certain land claims. The bill currently provides for the disposal of certain land claims to the intertidal zone and to beds and banks of rivers which are not contiguous with Aboriginal land. The claims are being disposed of because they cover narrow strips of land for which it is inappropriate to grant land claims. The amendments redraft the provisions in the bill to clarify and simplify them and to ensure that the intent is achieved. The details of the claims to be disposed of will be set out in regulations; I make that important point. Again, this is in line with the proposal put by the Northern Territory Labor government.

Government amendment (15) deals with delegations. It is being proposed to meet concerns expressed by the Senate Standing Committee for the Scrutiny of Bills that, for the delegation of powers, the bill does not specify attributes or qualities which a delegate must possess. The amendment specifies relevant attributes and qualities for delegates. Senator Siewert will be very supportive of that, I am sure. Government amendments (2), (3), (7) and (13) are consequential amendments. They make minor changes to the bill to ensure clarity and consistency.

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

Before we move to debate these amendments, I want to ask about the intertidal zone matters that the minister just referred to. As I understand it, this provision will rule out not only prospective claims but the claims that have already been heard by the Northern Territory Aboriginal Land Commissioner and recommended for approval but are waiting for ministerial sign-off. Given that these are claims where the commissioner has made a finding that the intertidal zones ought to be recognised as being Indigenous land as per the application, I am interested to know what procedural fairness has been offered to people in that situation, what steps the government has taken to discuss the legislation, which will effectively veto their rights—rights that have already been found to exist by the Northern Territory Aboriginal Land Commissioner—and whether the government has any legal advice that acting in such a way will not incur compensation, given that, as I understand it, there have been no negotiations or discussions with those groups and, in fact, many people may be unaware that you are about to legislate away those rights.

Progress reported.