Mr MELHAM (1:17 PM) —The Aboriginal Land Rights (Northern Territory) Amendment Bill (No. 2), which is before the House, seeks to amend the Aboriginal Land Rights (Northern Territory) Act 1976 in two parts. Firstly, it seeks to invalidate the deed of grant executed under section 12 of the act in favour of the Gurungu Land Trust to the extent that it included that area of land described as the Elliott stockyards land. Secondly, it seeks to allow the disposal of Aboriginal land claims where the Aboriginal Land Commissioner is unable to find any traditional Aboriginal owners of the land; the claims are over stock routes or stock reserves; and the claim was made after 5 June 1997, the date set for the expiration of the period for making land claims—the sunset clause.

The opposition will be opposing the Aboriginal Land Rights (Northern Territory) Amendment Bill (No. 2) 1999 because we have fundamental problems with specific details of the bill and the general policy process. We believe the government has been too anxious in introducing this amendment bill before the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs has finished scrutinising the review of the Aboriginal Land Rights (Northern Territory) Act. The second reading speech of the Minister representing the Minister for Aboriginal and Torres Strait Islander Affairs creates the fiction that this amendment bill corrects a minor error and makes a few technical changes to the act. In reality, this bill will considerably change the working of the act and potentially cause injustice to traditional owners and claimants.

I would like to deal with the issue of the Elliott stockyards and its history first. The explanatory memorandum to the bill claims that the bill:

would remedy an administrative error which occurred in 1991 when the deed of grant executed in favour of the Gurungu Land Trust was stated to include a portion of land [the Elliott stockyards] containing public trucking yards and a public dip facility.

Whilst there is an argument that that portion of the grant was an error, the fact remains that the Gurungu Land Trust was given legal title to the land in 1994, whether in error or not.

There is considerable history associated with this portion of land. Initially the traditional owners resisted any attempt to surrender the land in question. It was part of their traditional lands, the stockyards are next to important ceremonial grounds, and the operation of the stockyards raised serious health and safety issues for the nearby Aboriginal community. However, after subsequent meetings with the affected parties—being the Commonwealth, the Northern Territory government, the Northern Land Council and the Northern Territory Cattlemen's Association—the traditional owners agreed that surrender of the land could be possible if certain health and safety concerns were resolved and implemented. Amongst these health concerns was the proposal to build a screen of trees to keep flies, disease and stench from the stockyards away from the Aboriginal community nearby.

In 1995 the Northern Territory government drew up an agreement to cover remedies for these concerns in return for the surrender of the stockyards by the Gurungu Land Trust. The agreement was initially signed by the Territory government and the Northern Land Council but was found by the Commonwealth—which refused to sign it—to be legally deficient. The agreement to be drawn up by the Territory government would have exposed the Commonwealth to liability and did not protect the position of the traditional owners. The Northern Land Council sought further legal advice, which described the agreement as `badly drafted and incapable of providing legal protection for the position of traditional owners'. The only part of the agreement that would have been legally enforceable was the surrender of the Elliott stockyards back to the Territory.

The Northern Land Council withdrew from the unexecuted agreement, and on 10 April 1996 presented a new draft agreement to the Territory. The new agreement was in accordance with the Commonwealth's previous legal advice. In addition to the surrender of land, it included enforceable covenants ensuring health measures, such as the burial of carcass es and the reduction of odour and dust from the stockyards' workings. It also included safety measures for children and provision that traditional ceremony on the nearby ceremonial ground would not be disturbed during the Christmas period.

The land council received neither a response nor acknowledgment of receipt from the Northern Territory government concerning the new draft agreement. In May 1996 the Territory requested assistance from the new Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs, Senator Herron. Senator Herron replied that the issue should be resolved by agreement between the Territory and the Northern Land Council. He also stated that it would be inappropriate for the Commonwealth or ATSIC to provide funds for a privacy screen of trees rather than the users of the stockyard or the Territory.

The Northern Land Council requested that the minister reconsider his decision, but I am advised that they have never received any response. Subsequently, meetings were held with ATSIC during 1997. ATSIC, as I understand, is prepared to fund the creation of a privacy screen of trees.

So here we have the Northern Land Council, on behalf of the Gurungu Land Trust, making every reasonable effort to see that an acceptable agreement is reached between the land trust and the Northern Territory government and the Cattlemen's Association. Despite the Northern Territory government's attempt to have a sham agreement which gave it everything it wanted without protecting the rights of traditional owners, the land council continued to negotiate and forwarded a new agreement which protected the rights of all parties. But the Northern Territory government, in true form to its consistent opposition to the land councils, refused to even acknowledge receipt of the agreement.

So we have the Northern Territory government up to its usual tricks in refusing to negotiate and the Northern Land Council negotiating in good faith. What is the contribution of the Commonwealth minister to this situation? I am disappointed because, first, he refuses to get involved, stating that the best result would be a negotiated outcome—I agree with that—but he needs to play a part in the negotiated outcome. That is what I am disappointed in. I know he does not want to, but I believe he has a role of playing honest broker in this matter. And I think he can do that, with goodwill. I think he needs to do that for the Territory government. The minister will have our support in relation to this matter.

We have just had a fairly contentious review, at the beginning, in terms of the land rights act, and the committee has worked well together. We are considering that report, and I do not want to breach the privilege of the committee. The minister and I, prior to the election, reached an agreement that we would have a review of the land rights act. We took the politics out of that review, and we have seen changes. I note that the chairman of the House of Representatives committee is in the chamber and is due to speak. I am sure that he will confirm that there was goodwill from the minister and me, and that has been generated through the committee. And we are hopefully going to produce a very productive report. I repeat: I am limited in what I can say, because I do not want to breach the privilege of the committee, but that is where the minister has acted as an honest broker. When we started the process, people were at loggerheads and confused and there were misconceptions. But I think at the end of our reporting process all members of the committee learnt a lot—me included, as the shadow minister. I do want to commend the chair, because the public record shows that we had a few harsh words to say at the beginning of that inquiry. But it changed. What happened was that we all grew as a result of that experience. I think the minister does have a part to play here in bringing the Territory government back to the table to negotiate in good faith.

The minister then introduced the bill into the House that hands the Northern Territory government everything it desires and leaves traditional owners without protection from the serious health and safety concerns surrounding the Elliott stockyards. Instead of trying to facilitate a negotiated outcome or acting as a non-partisan mediator, sadly the Common wealth minister has waded into this debate firmly on the side of the Northern Territory government. This is my disappointment, because not only has the minister worked against his professed preferred outcome but he seems to be sanctioning the constant obstructionism of the Territory government to any progress on indigenous issues in the Northern Territory.

That is why, in many respects, this symbolism is important as to why we are opposing this bill, because we cannot have this continued division between the government and the land councils. They need to get on with business, and the best way to do that is for the Commonwealth to be acting—hopefully we will when our report comes out—as an honest broker between the land councils and the Northern Territory government. That is why, on this piece of legislation, the Labor Party is adopting the position that it is. It is sending a message; it is saying, `Look, go back, get your house in order on this and of course we will tick you off,' and that is the way it should be, `and we will give you the approval.'

There still exists very good prospects for a negotiated outcome to this dispute. That is what I am advised. In the hearings of the Senate Finance and Public Administration Legislation Committee on this bill, a proposal came forward for the Cattlemen's Association that operates the stockyards to enter into a lease with the Gurungu Land Trust, conditional on the provision of the safety, health and ceremonial concerns mentioned. At those committee hearings, the Cattlemen's Association expressed no objection to this leasing proposal. Negotiation has always been the preferred method of the Gurungu Land Trust and the Northern Land Council. There is a way forward that the Commonwealth minister should be promoting, making the inclusion of the Elliott stockyards in this bill unnecessary.

By introducing this bill, the minister is pre-empting any agreement by compulsorily acquiring the land in question. There is no need for haste, as both the Northern Territory government and the Cattlemen's Association have agreed that the operation of the Elliott stockyards has not been affected since the Gurungu Land Trust held title to the land. Not only is this acquisition an extreme measure but also it is a dangerously novel one. This is the first time that the Commonwealth has ever attempted to compulsorily acquire Aboriginal land. The bill would create an unacceptable precedent. It may have implications under the Racial Discrimination Act 1975. Perhaps more importantly is that the perception and the reality would be that this bill firmly places the Commonwealth on the side of the Territory in its aspiration for non-consensual access to Aboriginal land. Consensual access has always been available, with governments and authorities obtaining leases, or surrenders where appropriate, of Aboriginal land.

Our nation's history is full of public and private interests ignoring the rights of Aboriginal people to their land, of Aboriginal people being moved on from their homes, of other interests using traditional Aboriginal land for their own profit and comfort. One would have thought that we as a nation had matured and turned the corner on dispossessing indigenous Australians. Near the turn of the new millennium, most of us are working hard towards a lasting reconciliation between indigenous and non-indigenous Australians—and that includes people across the political spectrum. It seems that this government at times is more preoccupied with excluding indigenous Australians from the negotiating table—we are seeing that happening in relation to the preamble, and I will have more to say about that at another stage—and taking extreme measures to curry favour with a conservative government in the Northern Territory. The fact is that there is no need for this compulsory acquisition of land, possibly at all and certainly while there is still hope of a negotiated outcome. That is what we should be working towards.

Even though the Commonwealth is attempting to compulsorily acquire land, the Commonwealth minister has been parsimonious at best in terms of compensation. Most Australians whose land is compulsorily acquired by the Commonwealth are automatically entitled to just terms compensation, but not the traditional owners of the Elliott stockyards. While this bill provides for an avenue to just terms compensation, it is not automatic as in other cases and the traditional owners would have to engage in lengthy and expensive litigation if they wanted to access this compensation.

If the applicants for compensation were successful, the Cattlemen's Association has estimated that `an indicative figure to replace the existing facility is approximately $1.5 million'. The cost of such litigation, combined with the estimated value of compensation for the facility, would be considerably more than the cost to the Commonwealth of implementing a negotiated agreement including indigenous health and safety concerns. So what we have got here is an attitude problem where at the end of the day, instead of there being a win-win situation, everyone is the loser.

It is ironic that this Commonwealth minister, who is actively preventing any further progress of such an agreement that would improve the health of local indigenous people, is quite prepared to claim that this government is committed to improving indigenous health. It seems that this commitment is reliant on the acquiescence of the Northern Territory government.

The compulsory acquisition of Aboriginal land contained in this bill is impractical, illogical, unnecessary and a complete withdrawal by the Commonwealth government from its responsibility to indigenous Australians. The groundwork for a consensual agreement on the Elliott stockyards already exists and the Commonwealth minister should be pursuing that course rather than this ridiculous bill.

This bill's ineptitude does not end with its treatment of the Elliott stockyards. The minister has also included three new situations in which claims under the act may be disposed of. At present, section 76A of the act states that land under claim cannot be dealt with or alienated by the Northern Territory government until such a claim is `finally disposed of'. That section also states the situation in which a claim may be `finally disposed of', which happens when the claim is withdrawn, the Governor-General grants the relevant land under section 12, the Aboriginal Land Commissioner finds that there are no traditional Aboriginal owners of the land, and the minister decides not to recommend a grant in land despite a positive finding of the Aboriginal Land Commissioner.

This amendment bill will add three new situations in which claims may be `finally disposed of' under section 67A. These criteria for which land claims may be disposed are vitally important because, once a land claim is disposed of, the Northern Territory government may alienate that land from crown land, which land would then no longer be subject to the act. The opposition has problems with each of the additional situations provided for in this bill for the disposition of land claims.

The first addition in this bill is when `the Commissioner is unable to make a finding that there are Aboriginals who are the traditional Aboriginal owners of the area of land'. Currently, the act provides that a land claim is not finally disposed of if the Aboriginal Land Commissioner informs the minister that there are no traditional landowners. While this provision may appear at first innocuous, there may be instances beyond the control of any party in a land claim where there is a shortfall of evidence at present. The claim would then be finally disposed of, and the Territory government would be empowered to alienate the land from crown land and thus from claimability in the future.

During the committee's hearings, the Northern Land Council and the Central Land Council made a submission stating that there were several reasons why a land commissioner might not be able to find traditional owners. During those hearings the Aboriginal Land Commissioner acknowledged that this was quite true and that not all evidence may be available or known at the time of the hearing. Under this amendment, such a claim would be disposed of if evidence was unavailable or other circumstances prevented the Aboriginal Land Commissioner from finding traditional owners. Despite any evidence being found in the future in relation to the presence of traditional owners, their claim could not be established because the original claim had been disposed of. When the claim was finally disposed of, the Territory govern ment would be able to alienate the land and thus remove it from claimability under subsection 50(1) of the act. The potential is there in this amendment for injustice to traditional owners of the land.

To illustrate the potential for such injustice to traditional Aboriginal owners, there has in fact been a successful claim under the act that could have been invalidated if this amendment had been in place at the time. The Urrpantyenye (Repeat) Land Claim was listed for scheduling under schedule 1 of the act in an amendment bill which passed through this House on 10 December last year, eventually giving title to the Eastern Arrernte people for whom the Central Land Council had handled the claim. However, the area of the Urrpantyenye claim was originally included in the Simpson Desert Land Claim No. 126. This land claim was not recommended by the Aboriginal Land Commissioner for grant, one reason being the isolation of the area and the difficulty of access, which prevented proper investigation of the claim. In other words, the Aboriginal Land Commissioner could not find traditional Aboriginal owners but this did not mean that traditional owners did not exist.

Following this finding by the Aboriginal Land Commissioner, the Northern Territory government purported to grant a crown lease perpetual over the area to the Northern Territory Land Corporation, in October 1991. In December of that year, the Urrpantyenye claim was launched. Hearing this claim in 1995, the then Aboriginal Land Commissioner, Justice Gray, found that the grant of lease was invalid under section 67A of the act because the earlier Simpson Desert Land Claim No. 125 had not been `finally disposed of' as defined by the act. Therefore, the alienation of the land from crown land by the granting of the crown lease perpetual was invalid. The Urrpantyenye land claim proceeded and was eventually settled by agreement between the involved parties. If the current amendment had been in place, the Urrpantyenye land claim would not have been possible and the Eastern Arrernte people would have suffered the injustice of not being in possession of their traditional lands.

The second provision which this bill adds to section 67A is the final disposition of a claim if the application was made after 5 June 1997, commonly known as a sunset clause of the act. A sunset clause prevents the commissioner from fulfilling any function in relation to a claim lodged after 5 June 1997. This amendment would finally dispose of such claims.

There is argument that there was never a legislative intention to prevent such claims for all time. The workings of the act allow for this subsection dealing with the sunset clause to be repealed at any time, if that was the desired effect. No applications for such claims have been lodged since 5 June 1997; therefore, there is no practical need for this amendment at present, as the administration of land in the Northern Territory is unaffected.

The inclusion of this clause is bad legislative process. The Reeves review, which is currently the subject of inquiry by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, has recommendations in regard to the sunset clause. Parties, including ATSIC, have put forward proposals to have it removed in case legitimate claims could be made in the future. These issues should not be precipitately resolved before the committee has taken account of the views of all stakeholders and made its recommendations.

The third provision which this bill adds to section 67A is that a claim is finally disposed of if subsection 50(2D) applies to the application. This subsection prevents the Aboriginal Land Commissioner from performing the function in relation to claims that involve a stock route or stock reserve. This amendment bill would finally dispose of these claims.

Stockyards and stock routes were, and still are, important to indigenous Australians, especially to those whose traditional land has been completely swallowed by grants of interest in land, such as pastoral leases, before the act came into operation. As crown land was the only claimable land under the act, the stockyards and routes were often the only remnants of traditional lands left that were claimable under the act. The Commonwealth was prepared to exclude stockyards and routes from claim under the act if the Northern Territory government introduced legislation to allow indigenous Australians whose land had been alienated by grants of interest to make claim to community living areas.

In 1987, the Commonwealth passed legislation limiting Aboriginal claims to stock routes and reserves following the Northern Territory government's introduction of administrative guidelines in 1985 for the grant of community living areas to traditional owners. Under these Commonwealth amendments, contained in section 50(2D), the Aboriginal Land Commissioner could not hear land claims involving stock routes and stock reserves, although the legislation did not dispose of such claims. However, the proclamation of the key provisions of the Commonwealth's amendments were withheld because there were unsatisfactory aspects of the Territory's guidelines.

Negotiations continued until a memorandum of agreement was reached between the Northern Territory and the Commonwealth about stock route claims and living areas. The agreement provided for the Commonwealth proclamation of subsection 50(2D) in return for the Territory acting upon its guarantee to provide for a system for Aboriginal claims in pastoral areas. The Northern Territory subsequently enacted legislation that allowed the excision of Aboriginal community living areas on land containing pastoral leases in 1989.

The Commonwealth subsequently proclaimed the 1987 amendments, which came into effect from 1 March 1990. Prior to this proclamation, the Commonwealth amended the act to allow the grant of certain existing claims covering stock routes to traditional owners. In return, traditional owners withdrew other claims over stock routes. These proclaimed amendments did not involve the final disposition of claims over stock routes, and there was no legislative intention to do so.

Problems remained between the Northern Territory government and the Commonwealth regarding the disposure of land claims on stock routes and the need to expedite grants of land to Aboriginal people under the Territory's community living areas legislation. The Northern Territory's legislation was thought to be inadequate, and slow in process ing claims for community living areas. The Commonwealth and the Northern Territory entered into another agreement in 1995 which provided for the Commonwealth amending the act to provide for the final disposition of claims over stock routes. In return, the Northern Territory would adopt Commonwealth proposals for improving and streamlining the processes of the Community Living Areas Tribunal under the Territory's Pastoral Land Act 1992.

There is a further history but I will not go into it. But I think that members of this chamber need to hear what was said by legislators who passed this act into law, and that their comments are incorporated into the record. Former Prime Minister Fraser and his colleagues wrote:

We were in the Parliament that introduced and passed the Aboriginal Land Rights (Northern Territory) Act 1976.

We all voted for the passage of the Act.

The Act has worked well and has brought benefits to the Aboriginal people of the Northern Territory.

Changes proposed by the recommendations of Reeves, QC. would centralise control of Aboriginal lands in an authority appointed and controlled by the Northern Territory and Commonwealth Governments and take away title now vested in land trusts for the traditional owners.

We believe that the Act should not be amended in ways which ignore traditional property rights of established traditional owners or which remove legal protections which allow these rights to be enjoyed.

That was signed, in a letter dated 17 July 1999, by former Prime Minister Fraser, along with former Aboriginal affairs ministers Viner, Chaney, Baume and Wilson. I think the words are still applicable. They are not the words of the opposition but of those on the other side of politics.

It is illustrative of the fact that it is this government which has moved away from bipartisanship in Aboriginal affairs in this country. It is this government which has sought to use indigenous issues in a base political way to score points or to reward their supporters. It is this government which is seeking to amend the Aboriginal Land Rights (Northern Territory) Act 1976 without the consent of Aboriginal people. The opposition will be opposing the bill.