BILLS - Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 - In Committee


I wish to speak to the amendments moved by the minister but also to the other amendments that I know the government is intending to move—that is, those amendments on sheet ZA431 as well as those on sheet ZA429. Labor has been a long-time supporter of native title and the Indigenous land rights movement, and has worked for many decades to protect and strengthen these rights for Indigenous people around Australia. After the High Court decision, the 25th anniversary of which we celebrated around the nation last week, it was Labor that introduced and legislated the Native Title Act in 1993. That act, while achieving a balance of certainty for existing landholders, established a process for a legal system for native title claimants to achieve recognition and ownership of their ancestral lands. It is our strong belief that this amendment act and the developments of future legislative amendments that affect the act need to be carried out in a consultative and respectful way. Indigenous people need to provide their free, prior and informed consent on things that affect their interests, most especially on the issue of native title.

I want to reiterate that, for Labor, the amendments to the Native Title Act in this bill have always been about land rights, not mining rights. I wish that that were the case for the government, many of the senior members of which have made it clear that, for them, the bill is about the Adani Carmichael coalmine. The Prime Minister's statement and last year's closing the gap speech that did seek to do things with Indigenous people, not to them, reflects these same principles.

I was very disappointed to read the comments of the Prime Minister while he was in India, in April, where he said to the head of the Adani corporation that the native title laws that stood in the way of the mine would be fixed. In relation to specific amendments, Labor acknowledges that the decision of the full court of McGlade has created a great deal of uncertainty, both for native title holders and for other land users around Australia.

We have been informed by the government that some 125 Indigenous land-use area agreements that have been negotiated and agreed with native title holders and their respective representatives are now subject to uncertainty and potential renegotiation. So let me make it clear again: there are some 125 ILUAs that this bill will validate and we accept that this is a just outcome for the communities that made those agreements under the law as it then was and to those with whom they made those agreements. But it is not my understanding that this bill will provide some kind of green light for the Adani mine as some media reports seem to suggest. To the contrary.

I understand that the Wangan and Jagalingou people—the traditional owners of much of the land on which the mine and its facilities are proposed to be built—have several legal actions afoot against Adani. Most of this litigation will be entirely unaffected by the passage of this bill. In particular, there are very serious allegations of fraud that have been made against Adani regarding the processes under which agreements with the Wangan and Jagalingou people were purportedly reached. And those proceedings, which may impact on the validity of any ILUA, will only commence hearings in March next year.

Other legal action is always underway, including a case challenging the validity of the licences issued by the Queensland government. Be that as it may, since the decision in McGlade we have sought to work constructively with the government to agree upon a position that balances the need for a reasonable and timely resolution of the matters with the need to properly consult with Indigenous people, native title holders and their representatives. That is why we insisted that the legislation be the subject of a proper Senate inquiry prior to its passage through the parliament. A very short time was agreed upon by the government for submissions—only one day of hearings was allowed.

Despite those constraints, in the process of the Senate inquiry a number of very significant issues arose with the bill. First, despite the assertion in the explanatory memorandum that the legislation 'amends the Native Title Act 1993 to resolve the uncertainty created by the full Federal Court decision in McGlade' in fact, the draft bill contained provisions that went well beyond that objective. Those included but were not limited to amendments that had been first proposed by the Australian Law Reform Commission in its report Connection to country. Second, it became clear to us that little or no consultation had occurred with Indigenous people prior to the introduction of the legislation.

Considering the significance of these changes, we considered this as a breach of the concept of free, prior and informed consent. Through the Senate committee process, Labor senators secured important amendments to the legislation which removed those provisions that went beyond the stated purpose of the bill. That inquiry recommended:

… subject to paragraph 2.75, that proposed amendments to sections 251A and 251B of the Native Title Act 1993 be removed from the current bill and dealt with in any later bill involving government proposals arising from the Australian Law Reform Commission report …

Following the Senate inquiry tabled on Monday, 20 March 2017 the government undertook to draft amendments to give effect to this agreed position. More than a week later, on Tuesday, 28 March 2017, the government tabled amendments and sought to have the legislation debated prior to the April recess. Unfortunately, in subsequent briefings from the Attorney-General's Department, it quickly became clear that these amendments were again defective in a number of respects: (a) they contained provisions which went beyond the original intentions of the bill and the agreed position of the Senate inquiry; and (b) not one single person outside the government, Indigenous or otherwise, had been consulted in their preparation. Labor considered this to be such a breach of the good-faith agreement reached through the Senate committee process and a clear breach of the concept, again, of free prior and informed consent.

It was necessary for the government to urgently convene, for the purposes of consultation, a meeting of the major native title representative bodies under the umbrella of the Native Title Council. Labor supported these consultations, although they were brief and some of the amendments were still unclear. I note that Senator Brandis had been selectively generous in his recognition of my role in encouraging this point of consultation and I thank him for that. However, he is completely wrong in saying that I have been alone in supporting a balanced and principled position on this issue. My Senate and House colleagues have been of one mind and one focus in working through the issue, and I thank them for that.

At the Melbourne consultation arranged by the government, we noted that a further amendment was proposed to address concerns raised by representatives of the Cape York Land Council over the longstanding ILUA that underpins the Weipa agreement, the Western Cape Communities Coexistence Agreement. Even after that point, the government sought to rush through passage in the last sittings, which was a simple stunt on the pretence that the sky was about fall in and it was only the Attorney-General who was going to be able to hold the sky up.

Labor seeks to work constructively and productively with the government but this process has been challenging, leading to the sentiment expressed in Senator McCarthy's amendment in the second reading speech moved and agreed to yesterday. We seek to ensure that the land use agreement system is sufficiently stable and sound after the judicial decision in McGlade that created a high degree of uncertainty, not only for those agreements before McGlade but for the security and clarity of agreement making going forward. Agreement making is important to Labor and we support the need for some sense of confidence for those native title holders who have negotiated access and use agreements across the country. Having removed many of the problematic elements of the draft bill, and having now engaged in consultations, at least with those native title representative bodies and those who made submissions to the Senate committee, Labor can now support the amendments.


I made my comments fairly clear, I think, in earlier comments. I just note that the Cape York agreements are very much according to customary laws that pertain to the people involved here. Such matters are vital to the nature of native title itself. Obviously, the law under the Western system has required these amendments that are to be made necessary in order to validate those agreements that were done in good faith and under customary law arrangements, as I understand it.


Labor will be opposing these Greens amendments as well. For all the discussion I have heard about consultation with Indigenous peoples, I have no indication that these proposals have gone anywhere near the native title rep bodies. They have been put forward at the last minute in my view. They are beyond the scope of the agreed position that the Senate committee came to. The more important matter around extinguishment that I heard raised is a very important point of policy, but that is for another day. I certainly repudiate the allegation made against Labor that we are simply rolling over and trashing native title rights. We have stood up for native title rights and we will continue to do so. What I have heard in this debate is primarily about Adani and a coalmine, and that is a bit sad.



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