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Thursday, 12 August 1999
Page: 8594

Mr McCLELLAND (10:55 AM) —I congratulate the previous speaker, the member for Stirling, on an excellent and well researched speech on the Aboriginal Land Rights (Northern Territory) Amendment Bill (No. 2) 1999 . I think she hit the nail on the head with her quotation of evidence to the Senate committee when she described the acquisition of the Elliott stockyards area of land as an `unacceptable backdoor compulsory acquisition'.

As members of parliament we have to think about how we would regard the situation if a constituent came in our front door and said, `Look, some seven years ago'—it is now getting on for eight years—`by regulation made by a minister of the Crown I was given registered title to this piece of land. I have had that land for seven years. I have used it as my own. I have made improvements to the land and now I have been told that, unbeknownst to me, an error was made and the government is taking it back off me.'

You would say to them, `Have they offered you any compensation?' They said, `They don't know whether they have to give me compensation. They might be taking it back illegally. If they don't admit that they might have to pay compensation down the track, but I don't know what it is. They have just said, "You've got a right to compensation and such compensation is as determined in the courts."' You would ask, `What do the courts say about your compensation?' They said, `This is a very complex area, my lawyers tell me. I don't know whether I am entitled to compensation or not.' It would be an outrageous situation. Any member of parliament worth his salt would have a feeling of outrage at such a proposition and would come in with all guns blazing.

But that is precisely what has happened to the Gurungu Land Trust in respect of a parcel of land known as the Elliott stockyards. Elliott is a small town on the Sturt Highway about 260 kilometres north of Tennant Creek, so it is right out into outback Australia. According to the explanatory memorandum to the bill, the small area of land contains public trucking yards and a public dip facility, which of course relates to the grazing of cattle.

The grant of the Elliott locality arose from an agreement between the Commonwealth and the Northern Territory governments in September 1989 to provide secure title to the land for Aboriginal people in these pastoral areas. Consequent to that agreement, legislation was introduced in 1989 to provide for the grant of title of about 2,300 square kilometres of land to the Aboriginal people, under conditions which sought to address the concerns expressed by the pastoral industry, such as preserving access to water and also to transport routes.

By and large, that has been operating successfully—as indeed has the Aboriginal Land Rights (Northern Territory) Act, which after all was as a result of an agreement reached between the Commonwealth and the Northern Territory governments, Aboriginal communities and, where relevant, other interested stakeholders. It has been a piece of legislation that has been developed through a consultative process and through cooperation. It is regrettable indeed that it is now being used in such a heavy-handed and cavalier fashion. That was by way of a diversion.

The explanatory memorandum to the Aboriginal Land Rights (Northern Territory) Amendment Bill (No. 2) 1999 indicates that the purpose of the legislation is to correct an error where the Elliott stockyards were inappropriately or inadvertently included in that parcel of land. While unquestionably the Commonwealth has the power to pass a law to resume land, it is subject to the provisions of our Constitution, and in particular section 51(xxxi), which provides that property cannot be appropriated by the Commonwealth without just compensation.

That is certainly the case in respect of Australians living in places other than territories. In respect of territories, it is more complex as to whether the territories power in the Constitution, being a plenary power, overrides that. But it is probably the case, since the Newcrest Mining case in the High Court, that that compensation will now be payable in the Northern Territory. But these are complex issues and would need to be tested by expensive litigation, as the previous speaker indicated. As a result of this legislation, that will now be the inevitable consequence for the Gurungu Land Trust.

There has been no suggestion at all that the granting of the title to the Elliott stockyards was in excess of ministerial power or otherwise a nullity. Yet this bill seeks to retrospectively invalidate the grant, as clause 3, paragraph (2), of the bill says, and deem it `never to have been executed'. So it is a retrospective appropriation of that title.

Clause 3 of the bill, which affects the acquisition by the Commonwealth, or the assumption of the land, does not specify any compensation at all. There is none specified in the bill itself. The only guide we have as to the appropriate amount of compensation is contained in the financial impact statement to the explanatory memorandum. That reads:

It is expected that any compensation which may be payable would be nominal.

So we have the Commonwealth making that assertion in respect of a situation involving very complex legal issues. How do they say that this issue is going to be determined? This is ahead for the Gurungu Land Trust. Clause 4 of the bill reads:


(a) apart from this section, the operation of section 3—

which acquires the property—

would result in the acquisition of property from a person otherwise than on just terms; and

(b) the acquisition would be invalid because of paragraph 51 (xxxi) of the Constitution:

the Commonwealth is liable to pay the person such compensation as is necessary to ensure that the acquisition is made on just terms.

How is this determined? Paragraph (2) of the clause reads:

The Federal Court of Australia has jurisdiction in respect to matters arising under subsection (1) and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.

So the Commonwealth is saying: `We don't know if we can do this without just compensation. You are free to argue if you like; there is the Federal Court.' So here is the Gurungu Land Trust, not a wealthy organisation, whose beneficiaries are far from wealthy—indeed, some of the most impoverished Australians that exist—being shown the door of the Federal Court to get compensation for what the government is doing to them. That is irresponsible, it is heartless, it is unfair. It is a situation that no other Australian would accept, but it is being done to an Aboriginal community. This is despite the fact that there have been extensive negotiations taking place between those parties that have a direct interest in the area, namely, those Aboriginals living in the area and the Northern Territory Cattlemen's Association.

In a submission to a Senate inquiry, an admirably fair and balanced submission, the Northern Territory Cattlemen's Association expressed real concern as to what was taking place. The members of the Northern Territory Cattlemen's Association are pretty rugged Australians, the sorts of Australians who would adopt the term `mateship', as the Prime Minister is wont to describe. They have been regarding the Aboriginal community living up there within that concept of mateship. They have been negotiating bona fide. They have been concerned with the interests of the Aboriginal community, despite the fact that use of that land directly affects their interests, namely the revenue they obtain from the grazing of cattle in and around that area where the Aboriginal communities live. They say in their submission:

It should be emphasised that the Elliott Stockyards is Aboriginal land which has been granted under the Land Rights Act for the benefit of the Gurungu people. The land has not been granted for the benefit of the Cattlemen's Association or the Northern Territory government.

They freely make that admission. They go on to say:

Nevertheless, the Northern Land Council and the traditional Aboriginal owners have always recognised the importance of the pastoral industry to the Elliott region and the territory generally, and have sought common ground which would benefit all interested persons. To that end meetings have been held since 1994 which have examined various issues including safety and environmental health. These issues are crucial to Aboriginal people who reside in the stockyards area.

So they are freely admitting that the Aboriginal community has lived in harmony with the necessary industry in the area, namely the grazing of cattle. The submission went on to explain a local agreement to facilitate the return of land in the following terms:

The agreement contains covenants and conditions which ensure that the stockyards will be operated in a manner which does not detrimentally affect the health and safety of the Aboriginal people who live on the adjoining land. In particular, these covenants are directed at ensuring that carcasses are buried properly—

obviously not doing that would impose a health risk in that hot, dry environment—

the opportunities for mosquito breeding are minimised—

with all the diseases that they carry—

the safety of Aboriginal children who may enter the yards is protected.

They are acknowledging that requirement, which common decency would expect all of us here to acknowledge. They go on to acknowledge:

The above points reflect the environmental safety and other matters agreed to at meetings between the Commonwealth, the territory, the Cattlemen's Association and the Gurungu Aboriginal Land Trust at meetings during 1995.

So here is an agreement that they have reached with the Aboriginal people. They note that:

The stockyards continue to be available for pastoral use even though they are now Aboriginal land.

So they are noting that, despite these health issues, the Aboriginal people are cooperating with them in their use of the land for commercial purposes. In fact, the Cattlemen's Association expressed their concerns that the land was being taken away from the people without these matters being resolved. In their submission they say:

Notwithstanding this agreement, Senator Herron, in correspondence to the NLC dated 28th June 1996 adopted the view expressed by the Northern Territory Minister for Aboriginal Development `that the resolution of the environmental issues should not be a condition precedent to the return of the stockyards to the territory'.

Here is the Cattlemen's Association expressing their concern regarding that correspondence. Indeed, they go on and detail their protest at the government's harsh and uncaring approach to these environmental and health consequences. They say:

Senator Herron's position is in direct conflict with the arrangement reached between the Commonwealth and the Gurungu Aboriginal Land Trust during the 1995 meetings.

That was for the Commonwealth to provide funds for a privacy screen of trees adjacent to the stockyard. As the Cattlemen's Association notes:

Senator Herron maintains his position notwithstanding his recognition in correspondence dated 22nd May 1996 that such a screen should assist in relieving some of the potential health impacts from the operation of the stockyard on nearby Aboriginal living areas.

To the best of my knowledge—the minister at the table may correct me—none of these things have been addressed, despite this compulsory acquisition, contrary to the concerns of not only the Aboriginal community but also the Cattlemen's Association whose livelihood depends on the effective use of the area. In other words, the Gurungu people have cooperated entirely with the cattle industry in the Northern Territory, and that cooperation has been specifically acknowledged. The industry itself wants to make the area habitable before the land is returned, but it has not been done.

I mentioned at the outset some of the controversies in respect to the acquisitions power and in particular whether it applies to the Territory. As I indicated, since the Newcrest Mining case I think it would be conceded that just compensation is payable with respect to this acquisition of the land. But one may ask whether this remedying of the so-called error is in the nature of an acquisition of property, and I think it must be. John Reeves in his report says:

. . . stockyards were apparently included, in error, in the land grant made to the Gurungu Aboriginal Land Trust on 12 December 1991. It was always the intention of the authorities, when making this grant, to exclude the Elliott Stockyards.

He goes on to recommend `that this obvious error be remedied'. Reeves does not cite any authority for his assertion as to `the intention of the authorities when making this grant', nor does he refer to the relevant legislation. We may be here acting presumptively in attempting to express a view as to the intention of the authorities when making this grant other than to assume that the intention was to make a grant in accordance with the act as the regulation and schedule specified.

The relevant provision of the land rights act makes provision for the minister to recommend, and section 12 makes provision for the Governor-General to grant to a land trust an estate in fee simple—that is, total ownership—in respect of land described in schedule 1. The Elliott locality is described in schedule 1. The terms of the grant made to the Gurungu Aboriginal Land Trust are certainly in accordance with that description. A grant made in accordance with the act would not ordinarily be described as having been made in error. Of course it may have been that the legislation itself originally contained the error and did not properly reflect the intention of the minister. But these things have to be determined.

Reeves himself did not explain what he had in mind when he proposed that this obvious error be remedied. On that basis, if an error was made, the relevant error occurred, as I have said, in 1991, and it was otherwise a grant made in accordance with the act. That grant was seven years ago, and there can be no suggestion that it is appropriate to use the `slip' rule in any rectification that could be made. Indeed, if any rectification should lawfully occur, it would be under section 19(4) of the land rights act by voluntary surrender or by acquisition. An acquisition would certainly require the provision of compensation. That has not occurred and that has not been negotiated.

It should be borne in mind that, when we are talking about section 51(xxxi) of the Constitution, that provision is based on perhaps the most respected foundation, the cornerstone, of our legal system—the Magna Carta. The famous chapter 39 reads:

No free man shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

That is the 1215 Magna Carta, and that is the basis of the just terms provision of acquisition in our Constitution. So it is a fundamental principle and a fundamental responsibility of government, as it has been since 1215, to provide appropriate compensation.

The Gurungu Land Trust is being treated as no other Australian would responsibly be treated. It is entirely consistent with the cavalier approach that this government has adopted towards the interests of the Aboriginal community. I might say that it was demonstrated in the Prime Minister's comments on the 7.30 Report last night when he said that the only reason he is not including a reference to custodianship in his preamble is that some people have expressed the fear to him that it could affect the land rights area. This is despite the fact that the Attorney-General in his speech emphasised that the proposed section 125A of the Constitution prevents the preamble from having any legal effect.

So the Prime Minister is effectively pandering to those Hansonites who espouse points of view from the basis of bigotry rather than reason and rational argument. It is convenient to do so, but it is wrong, it is immoral, it is unprincipled and, in this case, it is unlawful to take over the land of the Gurungu people without appropriate compensation. (Time expired)