Home - Claire Moore - Labor Senator for Queensland

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

Senator MOORE (Queensland) (16:37): I am not going to respond to Senator Macdonald's last statement. He keeps making these statements across the chamber and it does not add to the quality of this debate. We have had a number of senators talk about the history of this piece of legislation. We know that the Native Title Amendment (Indigenous Land Use Agreements) Bill before us is an amendment bill. It was introduced by the government in the other place early this year-15 February. That was the first time that this bill appeared in this parliament. It amends the original Native Title Act to resolve the uncertainty that was created by the decision of the full Federal Court in what we have heard many times was McGlade v Native Title Registrar. That decision was handed down on 2 February this year.

All of us in this place understand the importance to our community and to our culture of the native title legislation. In fact, some of us remember exactly where we were when the original legislation was passed in 1993. In the community in which I was working at the time, we were waiting to hear what was going to happen after that extraordinarily long debate, which is probably still one of the longest debates in this place. Finally, the parliament in Australia ensured that there was native title legislation in our community. It is a very important piece of groundbreaking native title legislation.

Before us, we have an amendment to that and that must have fulsome and true consideration. There should not be, by any sense of urgency, a push in this place to rush things through. Having said that, I think that we are doing the right thing. We are, through the parliament, considering the legislation after the process of it being introduced. It came into the Senate after a bit of a flurry in getting the Senate Selection of Bills Committee to ensure that we had a hearing on the piece of legislation. That was an essential part of the process. The Senate did its job. The Legal and Constitutional Affairs Legislation Committee reviewed the legislation and heard from people and organisations that gave up their time. With their professionalism, their knowledge and experience, they came to the Senate to give us their views on the legislation.

There have been a number of contributions in both this debate and in questions earlier today which may have seemed to indicate that at that Senate inquiry there was a unanimous view put forward that every person who came to that inquiry agreed that this amendment bill needed to be passed and to be passed urgently. Well, that is not true. As with most Senate inquiries, in which I have been involved, there was a wide range of opinion brought to the Senate committee.

The Legal and Constitutional Affairs Legislation Committee brought down its report, reflecting a wide range of views. But, as we have been told in previous contributions, the Labor senators, Senator Dodson and Senator Pratt, actually accepted that, on the basis of the evidence, because of the specifics of the McGlade decision and how they had impacted on native title, there was a need to ensure that there was a response from parliament to stop any uncertainty or confusion.

However, as we have heard from other contributions, this was only step 1 of the process. There was a need for further discussion. We have heard how Senator Dodson, Senator McCarthy and Mr Dreyfus were able to be involved in future discussions. Only then did more amendments appear. I understand that the latest amendment that is part of this discussion only appeared in parliament yesterday. So it is not such a straightforward process as some would make us believe.

In terms of what caused the legislation to be before us, we know that following the bringing down of the Keating legislation, the Native Title Act in 1993, we actually enshrined in legislation the decision of the High Court of Australia in Mabo v Queensland-my state-which upheld that the doctrine of terra nullius did not apply when there were already inhabitants present. Again, the importance to our community of the High Court decision followed by the response to that decision by our parliament must always be kept front of any discussion that we have about amending the legislation.

To make it clear-and I am actually quoting now from evidence and discussions that were put into the Legal and Constitutional Affairs Legislation Committee: 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 land rights.

It is Labor's view-and it has been clearly enunciated by previous speakers from among Labour senators-that any changes to the Native Title Act must be properly considered and consulted on with Indigenous and Torres Strait Islander communities. That is a key component of our commitment to Aboriginal and Torres Strait Islander communities-no decision that impacts on their culture, their land rights and, in particular, this process that talks about the whole future of their relationship with land can ever be taken without full and proper consultation. That is something that this parliament should enshrine in the processes they put in place.

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, referred to as Indigenous land use agreements-ILUAs, which people use as a shorthand way of defining these agreements. That was defined very clearly for us in the evidence that came to the committee. Currently, under section 24CD of the act, all persons of the native title group must be parties to an area ILUA. If there is a registered native title claimant for the purposes of the act, the native title group consists of that registered native title claimant. A registered native title claimant is defined again in the act 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. The McGlade decision found that an area ILUA could not be registered unless all members of the registered native title claimant had signed the area ILUA, including members of the group who may have died. This ruling overturned the decision that had been current and on which a range of decisions had been made-the ruling of QGC Pty Ltd v Bygrave (No. 2) [2010], which found that an area ILUA could be registered if it had been signed by at least one member of the registered native title claimant group.

Post McGlade, the only alternative available to a registered native title claimant group is to re-authorise a new applicant 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 this process can impose high costs on registered native title claimants and cause delays. There was significant evidence to the committee that this could cause confusion and worry in a community if they had to go through the whole process again of registering and then waiting for the process to go through the courts. The evidence that came to us was that consideration needed to be given to improving the amendments in the legislation that we are debating today in the parliament.

The McGlade decision has potentially far-reaching implications for approximately 126 existing registered ILUAs made over the past seven years in reliance on the decision in Bygrave. These decisions had been made, discussed in the communities and then registered on the Register of Native Title Claims. They had been finalised in good faith, and subsequent decisions about rights to the use of land and the opportunities that existed in communities had been made based on that agreement. These ILUAs include agreements concerning very large areas of land across Australia, including ILUAs made with respect to national parks, agricultural ventures and mining ventures.

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 clearly understood to be. The amendments that we are debating will also enable the registration of area ILUAs that were lodged for registration prior to the McGlade decision, despite not having been signed by all members of the registered native title claimant group. Again, advice from the government is that this will apply to a further eight ILUAs.

This was the information on which discussions during the meetings of the Senate Standing Committee on Legal and Constitutional Affairs, as well as subsequent discussions in later weeks, were based. It was also the basis on which the Labor senators originally agreed to accept and support this native title amendment bill. But, subsequent to that, another series of amendments have come before the parliament which have been proposed to consider the situation of the Cape York Land Council. These amendments would extend the bill to also validate area 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. This is another complication and, in terms of the principle, there is still the situation that we need to make quite clear so that people fully understand their rights and fully understand the implications of the decisions that we are making in the parliament. But that information was not available to the Senate Legal and Constitutional Affairs Committee when they met. It was not available to people who were looking at what was going on in the parliament until this week. I think this creates a sense of urgency and it was not effectively discussed and understood before the last period of discussion. Despite that, Labor have listened to the arguments put around the situation with the Cape York Land Council and their particular leases in that area. It is my understanding that we have agreed to approve that process as well. But this reinforces the concerns that have been raised by people in the community about the need for full consultation and understanding of the process.

I accept that we will never be able to fully please every person who has some ownership in this case. There will be differences of opinion. We see that and we must acknowledge that. But that almost gives greater cause for the processes that are in place, how we are proceeding and the basis on which we are proceeding to be adequately explained and understood. My concern is that, if we do not actually fully commit to that principle and understand the sensitivities, it could impact not just on this case but on cases into the future. So, on the basis of the evidence before us that has come from our consideration of this particular bill today, we believe that there have been cases made for the urgency and the need to ensure that there is no confusion in the community or in the various property and business processes that are taking place through agreements that were made prior to McGlade. We understand the need for that. But at the same time I think we have to make very clear our concerns about any perception that this has been rushed and any perception that people have not had their rights and their culture fully understood, accepted and respected. We need to make a commitment that we understand the concerns that have been raised about consultation and that any future action this parliament takes will respond to those sensitivities and to the understanding that full consultation will take place, because this is unfinished business. We know that there will continue to be further need for changes and amendments to the native title legislation.

As we know, when Labor's current shadow Attorney-General, Mr Dreyfus, was the Attorney-General he did refer issues to do with native title legislation to the Australian Law Commission to fully consider where we are now with this legislation and the changes that will have to take place into the future. Certainly, that particular law report now needs to be fully considered by government. There must be much further discussion in this place and a clear process put in place for how we will enshrine the consultative process into the future. We need to make sure that there is trust in the way the parliament will respond to the Aboriginal and Torres Strait Islander communities. That was the intent of the 1993 process. It was the intent of the High Court decision that there be a clear understanding of and commitment to the principles of native title legislation-of true ownership of land. In any discussions about native title in the future we absolutely need to ensure that trust is there and that there is an understanding that we will put in place appropriate and agreed consultation processes. If we do not do that, we will be destroying the history and the challenge of native title. If we do not do that, we will not be fulfilling the extraordinary work that was put in place by the Mabo process and the Mabo family, then and now, who continue, in many ways, to be the actual custodians of the native title legislation.

At this time, Labor are supporting the legislation, but we say that we can do the processes better, and we must do them better. Anyone who has listened to the contribution made by Senator Dodson would understand the way in which we can do this better. I know that Senator McCarthy will be making the same comments in the future as she has made today about what we must do. I think this should be one of the processes that comes out of today's debate: looking at today's legislation and the amendments, which we are supporting, but learning from the process to ensure that this negotiation, this discussion, cannot be rushed.

We need to ensure that consultation takes place. We do not need to have cracks across this chamber saying that the process of having full debate in this place is determined by whether senators want to have a long weekend or not. That does no honour to the person who makes those comments, and it certainly does not reflect appropriate discussion in this Senate. No-one owns morality. No-one owns best practice. But we can do better than exchanging barbs in that way.

What we must do in the parliament is look at legislation, listen to the people who have knowledge, experience and ownership and then balance the arguments here, openly debate the process and move forward, bringing people together rather than laying down laws upon them from outside. And if we do that we will continue the message of Mabo. We will continue the message of the Keating legislation from 1993, and we will enshrine true native title in this community together rather than divided.