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Queensland: Federal Shadow Minister claims that legislative measures enabling Century Zinc mine to go ahead breach Racial Discrimination Act

JOHN HIGHFIELD: Well, Democrats' Leader, Cheryl Kernot, has held off making any comment tonight, but the Federal Opposition is saying that the special legislative packages would be racist. The ALP's Shadow Aboriginal Affairs Minister, Daryl Melham, joins us now. Again, P.M.'s questions from Matt Brown.

MATT BROWN: Daryl Melham, how can you say that these measures would be racist? We've just heard Nick Minchin tell us the rights being dealt with aren't enjoyed by any other Australians.

DARYL MELHAM: That's exactly why this would breach the Racial Discrimination Act. You see, Nick Minchin really blew the cover of the Federal Government and the Queensland Government. This has all been a subterranean plot to attack the right to negotiate under the Native Title Act. Now, the right to negotiate is a special measure that we gave Aboriginal people in the Native Title Act. Any winding back of that would infringe the Racial Discrimination Act because it is aimed at a class of people. Now, the Federal Government would have that legal advice. I challenge Senator Minchin to table all the legal advice he has in relation to that.

MATT BROWN: But you're saying it's a measure which has been wound back and that measure only exists for Aboriginal people.

DARYL MELHAM: That is why it will offend the Racial Discrimination Act. The Native Title Act was a special measure. I remind your listeners, Matt, that the Native Title Act was upheld 7:0 in the High Court when it was challenged by the West Australian Government, and the West Australian Government legislation was thrown out 7:0. Now, what Senator Minchin has described would be a breach of the Racial Discrimination Act. Now, it's not necessary .. the great irony is, if the company and the Queensland Government and the Federal Government had utilised the Native Title Act of 1993, then the company would have its certainty of title by now. There is no right of veto. It's because they worked outside the process that they don't have this certainty of title as yet.

MATT BROWN: But this process has been given .. people are referring to the McArthur River legislation which your government passed to allow a big project to go ahead. Did you breach the Racial Discrimination Act when you did that?

DARYL MELHAM: In the McArthur River legislation, there was the agreement of the whole of the Aboriginal community affected in the Northern Territory. That's different from what this present case is. The other situation is the McArthur River legislation was passed by the Northern Territory Parliament before the enactment of the Native Title Act, in other words, before there was the right to negotiate. And that's the problem and that's the fallacy. I think, you know, the Federal Government and the Queensland Government better get their facts right. I mean, they're comparing chalk and cheese.

Now, the situation is, it is possible to ratify if there is agreement under the current Native Title Act, under Section 21, and guarantee certainty for those tracts of land where there is agreement between the company and the Aboriginal communities, and you don't need to roll back the right to negotiate to guarantee certainty in relation to the disputed area. You can....

MATT BROWN: Just finally and briefly, can you tell us what do you think this has done for the Government's case for amendments to the Native Title Act? There seems to have been a lot of uncertainty that could be dealt with by those amendments, they say.

DARYL MELHAM: Absolutely not. What this shows is that this is the real agenda here. The Federal Government and the Queensland Government are playing politics with the Century Zinc project to try and attack the Native Title Act, which they've never accepted. What this shows is that the Native Title Act, if it's used by the companies and indigenous groups, will guarantee certainty. The problem here for the company has been that they've been working outside the Act, and I can repeat that. And there is a mechanism available and the Federal Government would know this, or should know this, that doesn't necessarily require you to take away the right to negotiate to give the company certainty. This is a beat-up. Mr Borbidge talks about stunts. He's been engaged in a stunt in relation to Century mine because what he's trying to really do is attack the Native Title Act.

MATT BROWN: Daryl Melham, thanks for joining P.M.

JOHN HIGHFIELD: And the Shadow Aboriginal Affairs Minister, Daryl Melham, with Matt Brown in Canberra.