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senate vote 2021-02-03#1
Edited by
mackay staff
on
2021-02-12 15:56:24
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Title
Bills — Native Title Legislation Amendment Bill 2020; in Committee- Native Title Legislation Amendment Bill 2020 - in Committee - Keep sections unchanged
Description
<p class="speaker">Sue Lines</p><p>The committee is considering the Native Title Legislation Amendment Bill 2020. The question is that the bill stand as printed.</p> <p class="speaker">Lidia Thorpe</p>- The majority voted in favour of the following [sections of the bill](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Fbills%2Fr6429_first-reps%2F0000%22;rec=0) remaining as they are: schedules 1 and 2 and 4 to 9 and division 2 of schedule 3.
- ### What is the bill's main idea?
- According to the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2021a/21bd021):
- > *The Bill ... contains nine schedules.*
- >
- > * *Schedule 1 creates options for a native title applicant and group to change their internal decision making structures including allowing the group to place conditions on the applicant, allowing applicants to act by majority decision-making rather than unanimously as the default position, enabling removal of deceased or unable-to-act applicant members and creating succession planning.*
- > * *Schedule 2 enables Indigenous Land Use Agreements (ILUAs) to encompass areas where native title has been extinguished, increases flexibility of the processes to notify, register, and make minor amendments to ILUAs (including potentially more wide-ranging amendments permitted by a legislative instrument), and validates actions taken under ILUAs removed from the Register of ILUAs.*
- > * *Schedule 3 allows historical extinguishment of native title on land by national, state or territory parks, and pastoral leases owned/controlled by native title corporations to be disregarded. In the case of parks this is subject to agreement by the relevant government parties.*
- > * *Schedule 4 allows registered native title bodies corporate (RNTBCs) to be the claimant for compensation from extinguishment in most circumstances, instead of individual claimants undertaking a separate compensation process.*
- > * *Schedules 5 and 6 change the ways in which the Commonwealth Minister or government party can be a party to, or intervene in, native title proceedings. Schedule 6 also clarifies procedures to be followed if a native title holder or applicant objects to a future act, and requires the Native Title Registrar to maintain a record of section 31 agreements.*
- > * *Schedule 7 enables the National Native Title Tribunal (NNTT) to provide assistance to common law native title holders and RNTBCs to promote agreement about native title and the operation of the Act. The NNTT may charge a fee for this service. Schedule 7 also enables acting appointments to the NNTT during vacancy, absence or incapacity.*
- > * *Schedule 8 amends the CATSI Act provisions dealing with governance of RNTBCs. It includes requiring dispute resolution mechanisms, ensuring RNTBCs represent all common law native title holders, limiting the circumstances under which membership of an RNTBC can be cancelled, and enabling the Registrar to place an RNTBC under special administration if it has repeatedly or seriously failed to comply with its obligations under Native Title legislation. This Schedule creates a strict liability offence for failing to notify a former member of their membership cancellation as soon as practicable.*
- > * *Schedule 9 retrospectively confirms the validity of certain Native Title Act section 31 agreements (which chiefly pertain to mining and exploration on land under, or claimed as, native title) which may be affected by the McGlade decision if they were not signed by all members of the relevant native title body. Schedule 9 also provides for ‘just terms’ compensation for any acquisition of property, as required by section 51(xxxi) of the Constitution.*
<p>I have a few more follow-up questions for the minister. Minister, the National Native Title Council noted in their submission to the committee inquiry into this bill that they do not—I repeat, do not—support Commonwealth intervention in native title proceedings as set out in schedule 5, because the bill seeks to clarify the role of the Commonwealth minister in native title proceedings. Under this bill, would the Commonwealth be a party to any agreement if it has intervened?</p> <p class="speaker">Amanda Stoker</p><p>The clarification that's made in the bill for the Commonwealth minister to have a role in agreeing to consent determinations is necessary because there's currently an inconsistency about whether or not the Commonwealth minister is or isn't a relevant party to consent determinations over the whole of an area or part of an area, and their consent is required to determinations under both circumstances. So there is currently an inconsistency relating to the role of the Commonwealth minister as intervener in the provisions giving the Federal Court the power to make the orders in relation to the whole of the claimed area, compared to orders in relation to part of a claimed area. This is appropriate, as the Commonwealth minister will only intervene—I think this is getting to the crux of your question—in a native title proceeding where there is a significant matter of law to be determined and there is a need for the Commonwealth, as administrators of the Native Title Act, to assist the court. It's not anticipated that the Commonwealth will be participating as a matter of course, but, where there is a novel question of law that needs to be resolved so that all people who are participants in the system have clarity about how it operates, then that avenue is available.</p> <p class="speaker">Lidia Thorpe</p><p>Minister, can you outline how and why the Commonwealth might oppose an agreement even when all the other parties are in agreement?</p> <p class="speaker">Amanda Stoker</p><p>It's the position of the Commonwealth to support decisions by parties to resolve matters by consent. So, that's not anticipated.</p> <p class="speaker">Lidia Thorpe</p><p>Minister, can you outline to me, in detail, how this bill will support the clans and nations that are excluded because they are in a minority on decision-making processes?</p> <p class="speaker">Amanda Stoker</p><p>The answer really was given yesterday. The decision about how to go about decision-making processes and whether or not there's going to be the acceptance by a native title group of a particular decision is in their hands. If a particular group wants to make it so that more than majority is required—whether that's special majority or whether that's unanimity—that's a decision for the people who are affected by the decision; that's not a matter for the Commonwealth.</p> <p class="speaker">Pauline Hanson</p><p>The bill we have been asked to consider today may appear at first to be relatively simple. Altering decision-making from requiring a unanimous vote to requiring a majority vote does make sense and is in line with the accepted practice in most modern democracies. But my problem with this bill isn't so much what it contains as what it doesn't contain. We were asked by Senator Thorpe and the Greens to tick off on proposed amendments which she well knows contain no mention of accountability of full funds, outcome evaluations of the expended moneys, the effectiveness of the management of funds, and every other audit or performance related process that normally applies to the use of taxpayer funds.</p><p>It's almost as if Senator Thorpe is saying to the Australian people that Indigenous communities and authorities should be held to a lower standard than the rest of Australia in their use of taxpayer funds. It's almost as if the senator doesn't understand that an open and transparent review of the use of funds is a prime driver towards improving performance and processes going forward in future projects and grants. Perhaps Senator Thorpe doesn't understand that empowering performance and holding people to a higher standard in any area is a highly empowering process. But I'm sure Senator Thorpe and every one of her fellow Greens knows that the continuing empowerment of Indigenous groups and communities across the nation—something every right-thinking Australian supports—spells oblivion and total irrelevance for the posturing Greens and their mates in the Indigenous activist industry.</p><p>Senator Thorpe relishes her moment in the spotlight when she has an opportunity to harp on the theme of perceived Indigenous oppression and constantly labels Indigenous Australians as oppressed victims. There is never a mention from Senator Thorpe of Indigenous successes. That would seriously get in the way of her narrative of centuries of continuing oppression and enslavement. Preach only the negatives and do it relentlessly, and some of it might even stick in uninformed minds as fact. That's a classic tactic of the Left that we see every day in this place and across the media. Senator Thorpe and Senator Dodson would have us believe that any legislation to do with Indigenous issues is introduced to benefit mining companies. Senator Thorpe calls the $33 billion that went to all Australians, including Indigenous Australians, and a further $6 billion for Indigenous-only issues last year 'scraps'. Really? Scraps? Was $39 billion 'scraps'?</p><p>Senator Thorpe also hides an inconvenient truth when she fails to disclose that as far back as 2015 native title has been recognised over approximately 2,469,647 square kilometres—that's around 32 per cent of the Australian landmass—for less than three per cent of the population. That's a statistic that we will never hear from the Greens truth deniers, so I will repeat it for their benefit: there's around 32 per cent of the Australian land mass for around 750,000 people who identify as Indigenous—not necessarily Indigenous but identify. A third of Australia under native title and $39 billion are scraps according to Senator Thorpe and her truth-denying colleagues. If almost $40 billion and around a third of Australia are scraps, we can only thank our lucky stars the Greens don't have the keys to the Treasury.</p><p>Senator Thorpe failed to point out that, as Tom Connell told us on Sky News recently, the dollar spend equates to $22,000 for every non-Indigenous Australian and $45,000 for every Indigenous Australian. And more scraps, for Senator Thorpe's information, come from a look at the mining industry, which she and her follow truth denies love to vilify. There are around 6,599 Indigenous jobs in the mining industry. That's around 3.9 per cent of the total mining workforce. Over 6,000 jobs in any industry is anything but scraps, and I'm sure those Indigenous employees who take home their pay to their families each week see it that way too. If Senator Thorpe really wants to empower any group of Australians, she might consider calling on the government to ensure there are strong accountability and audit measures incorporated in any advance of federal funds irrespective of background, race, religion or gender. If you want to be seen as empowering the group you represent, irrespective of background, race, religion or gender, if you want to escape the need for federal funding and if you want to create for yourselves a sustainable economic future, you may want to consider including in your amendments performance reviews that closely examine how effectively the funds were used and include how the funds can be better used next time to deliver better outcomes all around. It's called gradual improvement.</p><p>Any bill that comes before us here that goes to perpetuate the victimhood status of any group of Australians has no place, whether that bill includes such mechanisms or, as the case is here, omits processes that will enhance the lives and futures of that group. We should give it no credibility. Senator Thorpe apparently doesn't even mind misleading the Senate, and I quote her words from <i>Hansard</i> when she told the Senate yesterday:</p><p class="italic">A nuclear waste dump in South Australia: traditional owners do not consent.</p><p>Senator Thorpe well knows there's no proposal to locate a nuclear waste dump on native title land in South Australia. But when we let fact and truth get in the way of a rolling agenda aimed at painting a falsehood of permanent oppression—the Greens and Senator Thorpe are a one-act pony when it comes to Indigenous affairs. They seek to label and to perpetuate the myth of permanent victimhood over our Indigenous Australians for their own scurrilous political ends. Unlike Senator Thorpe and the Greens, I have faith in our Indigenous Australians.</p><p>I have faith in all Australians. I was raised to think of myself as a proud Australian woman. I also know that by recognising and applauding success, by providing checks and balances, by reviewing and carefully auditing performance and by always seeking to empower and improve we will prosper as a people and as a nation. Australia is a country of equal opportunity. It's not a country that should ever regard one group more or less equal than another and it should never be a country that perpetuates victimhood against any group. Notwithstanding my comments, we will support the bill.</p> <p class="speaker">Amanda Stoker</p><p>In relation to the matter of transparency and accountability for funds raised by Senator Hanson, I can indicate that schedule 8 includes measures to improve the transparency, accountability and governance around native title corporation decision-making. But the particular focus in this bill is on membership, as Senator Hanson's identified. The amendments will do important things, though, that indirectly affect accountability for funds by removing the discretion of directors to refuse membership to a native title corporation where an applicant meets the eligibility requirements and has applied for membership in the required manner. They will require corporations to align the membership criteria with native title determination and also limit the grounds for cancelling membership to those provided for under the Corporations (Aboriginal and Torres Strait Islander) Act—the C(ATSI) Act. As Senator Hanson knows, that's the one that deals primarily with financial accountability matters.</p><p>May I provide some answers to matters I took on notice yesterday. The first was in relation to a question asked by Senator Thorpe:</p><p class="italic">Minister, can you also inform me which mining companies asked the government to fix this problem for them?</p><p>I would like to address that question now so that it can be taken into account in dealing with the bill but also because the premise of the question isn't accurate. It assumes this bill came forward only because mining companies asked for it, and that is, in fact, false. In the wake of the 2017 McGlade decision, the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 was brought before the parliament. During the Senate inquiry for that bill, a number of stakeholders, including the National Native Title Council, raised concerns that McGlade may also have ramifications for section 31 agreements. Due to the urgent need to address the issues raised by McGlade that couldn't be properly considered at the time—and it deserved a proper consultation process that meaningfully involved everybody who has an interest in the sector, so a proper and extensive consultation process was undertaken.</p><p>The measures in schedule 9 of the bill to confirm the validity of these agreements are supported by a broad range of stakeholders in the native title sector. That includes the National Native Title Council, quite importantly, and its members, but it also includes peak mining groups such as the Minerals Council of Australia and the Association of Mining and Exploration Companies as well as state and territory governments. It is very important to note that this bill was not triggered by some request from mining companies; it was triggered by genuine concern raised in the Senate inquiry process from many stakeholders, including the National Native Title Council.</p><p>Finally, there was a question yesterday about who constituted the membership of the expert technical advisory group. I set out everyone that I understood was in the group, and I concluded by saying, 'As I understand it, industry wasn't a part of the expert technical advisory group.' I wasn't actually correct about that. If I can clarify: peak industry bodies were members of the expert technical advisory group, including the Minerals Council of Australia, the National Farmers Federation and the Pastoralists and Graziers Association of Western Australia. The states and territories have also been closely engaged in the development of the bill, and they participated in the expert technical advisory group process, along with, as I mentioned yesterday, the National Native Title Council so that the design has a balanced process.</p> <p class="speaker">Lidia Thorpe</p><p>I've only been here four months, so I will learn people's names whilst I'm here: the senator over here brought up some interesting points which I actually agree with, surprisingly. I agree that there need to be accountability processes, absolutely. Minister, your party has received millions in donations from mining companies. The question is: have the mining companies bought your support for this bill?</p> <p class="speaker">Amanda Stoker</p><p>Senator Thorpe, I'm not going to indulge this juvenile, unfounded narrative. I have made it very clear that the impetus for this bill was the Senate committee process that commenced in 2017. It was a product of the McGlade decision. You can speak to your base all you like, but it doesn't make it the truth.</p> <p class="speaker">Lidia Thorpe</p><p>Just a follow-up: Minister, have any of those companies donated to the Liberal Party because of this bill?</p> <p class="speaker">Amanda Stoker</p><p>Senator Thorpe, you clearly didn't listen to my answer. The answer makes it very clear that this bill was not prompted by mining companies. This bill was prompted by the 2017 Senate inquiry process.</p> <p class="speaker">Peter Whish-Wilson</p><p>Minister, you claim it was a juvenile question. Why do these corporations donate to the Liberal Party? Do they not expect something in return?</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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