Home - Claire Moore - Labor Senator for Queensland

Aboriginal Land Rights

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 oneday 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 crossgenerational 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.

09 August, 2006