Senator Rice on Native Title amendment and Adani
I rise to speak on this important piece of legislation, the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017. This parliament, every day—as we did today—opens with an acknowledgement to the traditional owners of the land on which we stand. In the halls of Parliament House, we appreciate the stunning Indigenous art from all over the country. We have a former Prime Minister who apologised for the stolen generations in this very building.
In beginning my speech today, I want to take the opportunity, as I have many times before, to acknowledge the traditional owners of the land, the Ngunawal and Ngambri people—to acknowledge their elders past and present and to note that sovereignty over this land was never ceded. Let us think about the last part of that sentence, 'this land was never ceded.' It was not ceded—it was taken.
To try and make some reparations for taking this land, this parliament passed the Native Title Act in 1993, and native title has been an important step along the way towards land rights. For such an important act, one would think that any changes would be considered extremely closely and follow proper process: scrutiny, consultation and engagement. But what we are debating today really seems to just fly in the face of that. In fact, it is basically saying: 'Why bother with all that scrutiny at all?'
Here we are in this parliament about to vote on changes to this important act, despite the fact that there has not been enough consideration of the implications of these amendments and that the consultation with Aboriginal people has been anything but full and thorough.
The Greens opposed this bill in the House of Representatives. This bill was introduced and rushed through the House of Representatives pretty soon after the Federal Court decision because of the threat to the Adani mine if the Indigenous land use agreement which covered that mine were found to be invalid. The timing of this bill is about the Adani mine, not about proper consideration of Native Title . We know that Indigenous owners have made many representations and have raised concerns about the native title legislation and the decisions made under the Bygrave court decision for some time with the government. We know that, despite that, legislation is being rushed through, with an incredibly short time for our Senate inquiry, which was totally inadequate to hear the concerns and to thoroughly debate and understand what the consequences of this legislation are going to be. We as Greens have had concerns about the time frame from the very beginning, and we attempted to extend the reporting date for the inquiry, but unfortunately this was not supported by the Senate. Consequently, submitters did not have enough time to compile their submissions and the committee was only able to have one hearing for such a substantial change to our native title legislation. This is of huge concern, given the complexity of native title arrangements and the significance of these amendments.
A core concern that we have had with this bill and its process has been the lack of adequate consultation undertaken with Aboriginal and Torres Strait Islander communities. The Greens accept there is a need to address the issues raised by the McGlade decision, but we cannot support this bill until there has been proper consultation with Aboriginal and Torres Strait Islander peoples, communities and organisations and a really thorough consideration of all the consequences of this proposed legislation. Given that has not occurred, I reiterate: why are we here today? Why are we about to vote on this legislation? It has got nothing to do with native title . We are here today to help the Labor and Liberal mates of the Adani coalmine and their dirty polluting, reef-cooking, climate-destroying coalmine. That is why we are here today. It is to support something that goes completely against the interests of Indigenous peoples across this country, of all the peoples of this country and of all the peoples of the world, given the consequences of this coalmine and the carbon pollution that it will entail if this coal is mined.
Acknowledging the traditional owners in this parliament is hollow when you support changing the Native Title Act to favour your mates in a coalmining company over the rights and interests of traditional owners. It is despicable the way that traditional owners are being used as pawns in this debate and how the members of the Wangan and Jagalingou people who dare to disagree with the ILUA that has been made over their land, the destruction of their land by a massive coalmine, have been vilified. These traditional owners have been speaking out over the last week, and probably the most well-informed person in the country about the legal issues involved in this issue and the interaction with Indigenous rights is Tony McAvoy, who is a senior counsel and the first Indigenous silk in the country. He is a Wangan and Jagalingou traditional owner. He was reported on the weekend strongly rejecting the claim that Marcia Langton had made that Indigenous people had become 'collateral damage' as the so-called 'environment industry' hijacked the Adani issue. Mr McAvoy was reported in the article as saying:
… to suggest that “the greens are puppet masters pulling the strings and we’re somehow puppets” was wildly off the mark and disrespectful to the many families opposing the mine, including his.
His view and that of the other W&J traditional owners is that there is no need to rush the passage of a law that changes how critical issues around Indigenous property rights are dealt with through future land access deals. The other information that has come out since we were debating this in the chamber last month has been about the sham of a process for the supposed approval that was given for the ILUA for the Adani mine. Spokesperson for the W&J Traditional Owners Council, Murrawah Johnson, giving a keynote address at the National Native Title Conference last week, said:
Adani's approach seems to be ' fake it until you make it ,' but the reality is they can't and won't proceed in the face of our resistance.
The W&J traditional owners have said that they will bring evidence to the Federal Court hearing that is to be heard in March next year on the Adani ILUA to demonstrate that Adani did not negotiate and achieve the free, prior and informed consent of the W&J people. Murrawah Johnson says that the meeting, which Adani and its barrackers claim achieved consent with a 294 to one vote, was not a true expression of the W&J traditional owners. Over 220 of the attendees at the Adani meeting were people who have never been involved in the W&J claim or decision making. They identify with other nations and claims or do not identify a particular descent line. Many of the people were bussed in and paid for at Adani's considerable expense. The majority of the claim group, which had rejected an ILUA with Adani three times, refused to participate in this stitch up of a meeting. Many members of the claim group stayed away. At least now, with this Adani mine, they have a Federal Court case to be heard in March next year.
But what of the other ILUAs that stand to be retrospectively agreed to where it is clear that there is considerable controversy over them, like the Cape York agreements that were made despite the fact that all of the native title claimants were deceased? Clearly, after the McGlade decision, there is a need for change. Clearly, there need to be changes made to the situation at the moment as to who needs to be involved in an ILUA. We need to listen to the way forward that Tony McEvoy is proposing. He has identified that the problem with the majority approach being proposed in this bill is that, in many native title claims, the claim groups have needed to ensure that each family group or clan is represented within the applicant or registered claimant to protect the differential interests of that family or clan. This is particularly so where one large family or clan can outnumber the other groups, as is often the case. On the bill, as it is presently drafted, that large family or clan, or a group of families or clans, could win a majority vote at a meeting to approve a mine, for instance, over the land or waters of another clan, or over sites for which another family has special rights and responsibilities. This is not a fair, considered, appropriate or just outcome to achieve. What Tony McEvoy asks for, and what the Greens ask for, is a detailed and nuanced approach to amend the Native Title Act that protects rather than undermines the property rights of the various clans and families that make up each native title claim area. McEvoy notes that it:
… must be done with care as the failure to get it right will permit the property rights and interests of particular families and clans to be extinguished or impaired without their consent.
Tony McEvoy says:
I encourage the members of federal parliament to take a deep breath, and come to terms with the fact that the property rights of Aboriginal and Torres Strait Islander people all over Australia will be affected by the proposed amendment to s 24CD of the Native Title Act. This amendment should not be rushed in order to appease some other agenda.
Surely, that is good advice that we would be wise to take. Clearly, action is required. Clearly, amendments are required. But we owe it to ourselves and the Indigenous landowners and native title claimants across the country to be making these changes properly and taking time.
The Greens are committed to working for sovereignty and a treaty with Indigenous Australians, and we know that we will never be at peace with ourselves as a nation until we have achieved a treaty or treaties that recognise the prior occupation and sovereignty of Aboriginal and Torres Strait Islander peoples. This bill goes against all of that. So let's repeat the real reason why we are here today. The real reason why we are here today is not about good governance. It is not about getting things right. It is not about making sure that we have a fair and just process for native title into the future. We are here today to help the Liberal and Labor mates of Adani and their climate disaster mine, and in doing that we will be trashing the rights of traditional owners whose land was never ceded.