BILLS - Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 - Second Reading

The Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, introduced by the government to the other place on 15 February this year, amends the Native Title Act in an effort to resolve uncertainty that was created by the decision of the full Federal Court in McGlade v Registrar National Native Title Tribunal, handed down on 2 February this year. The Native Title Act was passed by the Keating government in 1993 and gave legislative form to the historic decision of the High Court of Australia in Mabo and Others v Queensland (No. 2) 1992, which held that the doctrine of terra nullius did not apply where there were already people present; it was a legal fiction to justify dispossession of the Aboriginal and Torres Strait Islander peoples of their lands and waters. Following the Mabo decision, any Indigenous land rights which had not been extinguished by the Crown continued to exist in Australia. Since 1993 the Native Title Act has enabled the continued recognition and protection of Indigenous peoples' land rights. It has also set out a framework, or a regime, to enable third parties, including governments, to deal with native title applicants or holders.

It is Labor's view that any changes to the Native Title Act must be properly considered and consulted upon with Aboriginal and Torres Strait Islander communities. Such matters should never be taken or treated as if they were just business as usual. The Native Title Act provides a legislative process for native title groups to negotiate with other parties to form voluntary agreements in relation to the use of land and waters. They are referred to as Indigenous Land Use Agreements—ILUAs for short. Currently, under section 24CD of the act, all persons in the native title group must be parties to an area agreement. If there is a registered native title claimant, for the purposes of the act, the native title group consists of the registered native title claimant. A registered native title claimant is defined under section 253 as:

… a person or persons whose name or names appear in an entry on the Register of Native Title Claims …

This enables a person or persons to enter into agreements as authorised by the native title group. Decisions around this are influenced by customary decision-making processes, and they can be quite complex, different and diverse across Australia.

The decision in McGlade found that an area agreement, an ILUA, could not be registered unless all members of the registered native title claimant were parties to the agreement—that is, unless all registered native title claimants had signed the area ILUA, including members of the group who may have died. This ruling overturned the decision in Bygrave, which found that an area ILUA could be registered if it had been signed by at least one member of a registered native title claimant group. Post McGlade, the only alternative available to a registered native title claim group is to reauthorise a new application and make an application under section 66B of the act to remove any member of the group who refused to sign. Stakeholders have indicated that that process can impose high costs on registered native title claimant groups and cause delays. It can also cause confusion, hostility and division.

The McGlade decision has potentially far-reaching implications, with some 126 existing registered ILUAs that have been made in reliance on the decision in Bygrave over the past seven years prior to the McGlade ruling, the validity of which could now be subject to challenge in the Federal Court on the basis of the McGlade decision. These ILUAs include agreements concerning very large areas of land across Australia, including ILUAs made with respect to national parks, agriculture ventures and mining ventures. They also include access over leaseholders. In essence, this bill responds to the McGlade decision by amending the Native Title Act so that any area ILUA which was authorised and registered prior to the McGlade decision will be valid, despite not being signed by all members of the registered native title claimant group.

We have been advised by the government that this change to the law will ensure the validity of approximately 126 registered ILUAs that were negotiated in good faith by native title holders with land users on the basis of the law as it was then understood to be. These amendments will also enable the registration of area ILUAs that were lodged for registration prior to the McGlade decision despite not being signed by all members of the registered native title group.

The further amendments proposed in the last weeks by the Cape York Land Council, the last of which was circulated to us last night, would extend the bill to also validate ILUAs that could otherwise be rendered invalid, if successfully challenged in the Federal Court on the basis that they were not signed by any registered native title claimant. However, I wish to emphasise that, while the potential exists for existing ILUAs to be challenged because they do not comply with the requirements of the law as clarified in the McGlade decision, no such challenges have been mounted. This is important. Registered ILUAs remain valid, unless successfully challenged in the court. Given that no challenges to existing ILUAs have been lodged, and given that it usually takes many months for a matter to be listed for hearing in the Federal Court—let alone a decision—the urgency which has been claimed by the government to pass this bill appears to be greatly exaggerated.

The opposition agrees to the amendments as finally determined by the government, but we express our disappointment with the regrettable way in which the government has managed the process for consultation on the changes contained in the bill, which has been a source of unnecessary angst, confusion and delay. The legislation, hopefully, returns clarity and confidence to the agreement-making process at the heart of the Native Title Act.

Our eventual agreement has been provided, despite major flaws in the process and handling by the government. We have seen an Olympian series of false starts, redrafted amendments at the last minute, policy backflipping and legislative somersaulting as late as half an hour before the budget was released last night. It highlights how inept the government is in consulting with Aboriginal and Torres Strait Islander people and the low regard they have for the native title rights of Aboriginal people. The issue could have been resolved nearly three years ago, if the Attorney-General, Senator Brandis, had picked up the Australian Law Reform Commission report on his now-famous bookshelf, read it and set the proposed reforms into legislation.

The government and especially the Attorney-General have been dragged by Labor into consultations with native title bodies. We pushed in the Senate for a committee process—which allowed only one day for a hearing, but allowed at least a window of opportunity for native title groups and industry to comment on the bill as it then stood. Labor insisted on a full Senate inquiry so that these voices could be heard, and on subsequent consultations with Indigenous Australians and users of the native title system.

As a result of these consultations, Labor has supported changes to the bill to narrow its effect. This is what native title holders have asked us to do. They have been our first concern throughout this process. I have personally met with representatives of native title claimants groups across Australia and I have listened to their issues, their concerns and their hopes. Aboriginal people have a right to object if they believe their native title rights are at risk, especially by extinguishment, and they should be heard. Importantly, Labor has blocked the government's attempt to give itself unfettered power over Indigenous Land Use Agreements. We have insisted on amendments that make sure that control rests with native title holders, not politicians in Canberra. This is about respecting the decisions of Aboriginal and Torres Strait Islander people and giving certainty to the agreements that native title holders have entered into.

Unfortunately, in my view the government has made a complete mess of its amendments to the Native Title Act from start to finish. In particular, despite extensive past experience, the government has yet to give reasons for the urgency with which it is approaching this bill. Native title is much too important to be treated with such dismissive contempt; even small changes to native title law make significant differences to how the system works. This is one of the reasons why it is vital that native title claimants and stakeholders, for whom the native title system is so important, be consulted. For many of these people the experience of not being consulted shows a high degree of disrespect and disregard. Many of the Indigenous people who are involved, in my view, are terribly experienced and skilled in the operations of the act, and it has basically been the government's blundering in this House that has failed to give significant time to examine all proposed changes to this act and to make sure those changes have the support of the Indigenous people.

That is why elected representatives in this place must be able to speak to what is being done to the Native Title Act, and to any concerns that they may have. Labor has been endeavouring to make sure that these things happen, especially for Indigenous voices—even those who disagree with the negotiated outcomes of their fellow native title holders. I referred this to the Senate committee and, in a very short time, it identified a benchmark for potentially making the legislation workable and coherent. It was not until after some persuasion to the government that the representative bodies were even consulted around the proposal as it then stood.

The fundamental object of the Native Title Act, as introduced and passed by Labor, has always been to respect and protect native title rights. It was the Howard government that introduced the 'bucket loads of extinguishment' concept into the act and its heinous nature and impact upon Indigenous peoples. Native title is not an act of largesse or generosity by the parliament, but recognition of what the High Court found to be a common law right of possession that has survived colonisation and is held by the native title holders—either after gruelling litigation processes in the Federal Court or by way of consent by state governments.

This understanding was turned on its head during the Howard era with a knee jerk response to the Wik judgement, with a legislative intent, as I said, for 'bucket loads of extinguishment'. I recall that the applicants in the McGlade case opposed the South West agreement because they were fundamentally opposed to the permanent extinguishment of their rightful inheritance. I have urged the Western Australian government, in the agreement-making process, to rethink the need for extinguishment in the ILUA processes and move toward the suspension of native title rights only for the purposes of agreement. One impact of this legislation is that the South West Aboriginal Land and Sea Council will now have to review their decision-making processes and renegotiate the ILUA that underpins the agreement, and that is going to be costly. We have urged the Western Australian government, as I said, not only to reconsider their policy position on extinguishment, but to invest in negotiations and mediation to bring together the parties of the Noongar people around this proposed agreement.

Another native title claimant group that has strong interest in the issues is the Wangan and Jagalingou Traditional Owners Council. The group has several different legal processes afoot to press its disagreement with the Adani ILUA, and they will be entirely unaffected by this bill.

The McGlade issue is only the most recent of many legal issues in dispute with respect to the Adani ILUA, and it arose from an action by the Noongar people of Western Australia in relation to developments there. This legal process and these amendments are not about a coal mine; they are about native title and the rights of Aboriginal and Torres Strait Islander peoples in relation to their lands and waters. This bill is not about one single project that is being negotiated; it is about providing certainty to well over 100 agreements, already struck by native title holders or claimants and in operation for years, and it clarifies the way forward for future ILUAs to proceed. But we might be excused for thinking it is about one project, because everything I have heard from the other side of the chamber has been only about the overseas owners of the Adani mining leases, not about the native title rights and interests.

Under Labor, we will bring the workings of the Native Title Act back to its fundamental purposes—that is, the recognition and protection of native title rights. We will be informed in the first place by the recommendations of the Australian Law Reform Commission and reports to COAG. But, fundamentally, we will be informed by the views of the native title claimants and owners across Australia, rather than just by the views of the powerful and privileged.

Stay up to date by subscribing to my newsletter.