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Monday, 1 August 2022
Page: 260


Senator SCARR (QueenslandDeputy Opposition Whip in the Senate) (11:57): I absolutely agree with Senator McCarthy that it's absolutely crucially important that we have respectful, open, courteous debate in relation to this matter. I have been listening, during the course of this debate, to all the contributions made by all senators in relation to this matter very, very closely. I'd like to make a few preliminary comments, if I could, and at the outset let me say that I think there's considerable merit in Senator Dodson's proposed amendment to the United Nations Declaration on the Rights of Indigenous Peoples Bill 2022 that the matter be referred to the relevant joint standing committee. I was serving on the Legal and Constitutional Affairs References Committee, which simply ran out of time in terms of conducting its inquiry in relation to these matters. As Senator Dodson has rightly observed, there were hundreds of submissions made to that committee and those submissions need to be carefully considered by, I believe, the relevant joint standing committee for this matter to be properly progressed. I think that is important.

I was reading the debate last night in the Canadian parliament in relation to the bill in Canada that has been referred to in the context of this debate. It was clear to me that there were objections coming from all sides in relation to the rush that bill had in terms of progressing through the Canadian parliament. That was a source of friction between various sides in the Canadian parliament, and I think it would be a great shame if this bill were not given the consideration, which it certainly does deserve, through our committee processes. I think we should all aim to avoid the situation that occurred in Canada, where the debate became quite fractious. I think that was a factor of the time; there just wasn't enough time for all the views to be considered in the context of the bill. In particular, I bring to the attention of the Senate that one of the issues that was raised in the debate was the concept of free, prior and informed consent, and how that would work in practice in the Canadian context. I'll speak further about that matter shortly.

The second preliminary point I'd like to make is in relation to the reasons why the Australian government in 2007 did not endorse the UN declaration, and that has been referred to. I think it is important to place on the record the concerns in good faith that the 2007 Australian government had with respect to the declaration. I'd like to place on the record a quote from my good friend the former senator George Brandis, who served as Attorney-General of this country under the previous government, or previous governments. This is a quote which was attributed to him in a Sydney Morning Herald article on 26 March 2009, written by Mr Julian Drape: 'Of most concern is that the declaration seeks to establish special sectorial exemptions for one section of the community to the exclusion of others. There is no room in Australia for different rights attaching to different citizens, differentiated only by race.' So that was the concern as expressed by my good friend, then senator, George Brandis in relation to the context of this debate, and there is a legitimate point of inquiry in relation to the references made in the UN declaration to customary law, traditional law, in the context of the Australian legal system. I think that should be recognised as quite a legitimate point that needs to be considered in the context of this debate. I think it's important that that articulation of the previous government's reasons for not endorsing the declaration should be placed on the record.

I'd like to reflect on a comment which Senator Thorpe made in introducing the bill. Senator Thorpe, quite rightly, made the comment that the bill does not set out how to enact the declaration in relation to specific laws. Basically, it sets a framework for the declaration to be advanced in the context of Australian laws. It is very similar, in that respect, to the Canadian bill which I referred to earlier. The point which causes me some concern, and which should be a matter of inquiry by the joint standing committee, is whether or not that is the best approach, or whether or not the best approach is actually to look at a particular area of law—for example, safeguarding cultural heritage—and then seek to progress proposed amendments to that law. Some might say this would better reflect the intention and objectives of the UN declaration as opposed to starting with the process of introducing, holus-bolus, the declaration, giving it force of law and then seeking to apply it to individual situations. I think there's a lot of merit in that, and I think it would actually help to bring people together if the detail of how the declaration would apply in a particular context were considered.

I believe that a good place to start would be in relation to cultural heritage. In particular, I say that mindful of the recent disgraceful occurrence in relation to the Juukan Gorge. I note that considerable work was done in relation to proposed amendments relating to cultural heritage in that context, and the committee drew very heavily in terms of the references to the UN declaration in that regard and did an analysis as to whether or not the existing laws at both the national and state levels adequately reflected the intent and objectives of the UN declaration. So, from my perspective, I would like to see how the declaration would impact in practice upon some of the most important areas of law with respect to Indigenous rights in this country. Maybe cultural heritage laws would be a good place to start in working on the foundation established by the committee which produced the report into the Juukan Gorge disaster—there's no other word for it. As someone who worked in the mining industry for many, many years, what occurred in that case is an absolute blight, a shameful blight, on the mining industry.

I'd also like to make some comments in terms of the concept of free, prior and informed consent; Senator Thorpe rightly referred to this concept as one of the cornerstones of the UN declaration. In doing so I bring to this place perhaps a different perspective. As someone who worked in the mining industry for a company that adhered to the highest standards of environmental and social licence, I had occasion, in different jurisdictions around the world, to consider this concept of free, prior and informed consent—in particular in the wonderful country of Papua New Guinea—in relation to projects. I think it is important that everyone understand what that concept means. Free, as Senator Thorpe says—no coercion, intimidation or manipulation. And that means coercion from any side. Certainly in other jurisdictions overseas I've seen instances where people were bussed into meetings in order to intimidate, to coerce and to frustrate the exercise of free consent. So the consent must be free. Secondly, prior: it needs to be prior. It needs to be in sufficient advance of whatever is proposed so there can be truly meaningful discussion at a local Indigenous level in relation to whatever is proposed. And that prior consent must be informed by all the relevant information that the people on the ground, the Indigenous landholders and rights holders, need to have to make fully informed consent. And that needs to be in the context where things can change on the ground; what was originally proposed may well change.

During my time in Papua New Guinea I had quite considerable interaction with a project in PNG called the Ok Tedi project. In the Ok Tedi project originally it was proposed that the mining waste, the tailings, would be deposited into a tailings dam. At the end of the day—it was a factor of geology as much as anything, unstable geology—the tailings dam failed and, therefore, it was decided that the tailings would be deposited into the Ok Tedi, and the Ok Tedi flows into the Fly River. But that was something in relation to which there was no free, prior and informed consent of the local people. The project fundamentally changed. And years later there was a consultation process in relation to 'what should happen now?', after the project had fundamentally changed and after it was absolutely impossible to reverse the damage that had been done in relation to the Fly River in particular. So that information is absolutely crucial in relation to the concept of free, prior and informed consent.

And it has to be consent. What does that mean? What does that mean in different contexts? Senator Thorpe referred to the Beetaloo basin. Not wanting to go into the dynamics or the intricacies of what happened in that case, suffice to say there are no doubt different views as to whether or not consent was given in relation to the Beetaloo basin. So what constitutes consent in this context? I think that is a matter which properly should be considered in depth by the joint standing committee. An example in terms of processes in my experience in Papua New Guinea was that on occasions project promoters needed to actively ensure that women were involved in terms of the consultation process—that they actually attended the meetings that occurred in relation to potential projects. The issue of obtaining consent from men and women in relation to these projects is absolutely important.

So that's free, prior and informed consent. Of course, in order to give that consent, the relevant parties need to have access to appropriate expertise and resources to make sure that they are represented by people with expertise in relation to these matters and are receiving all of the relevant information.

In summary, I think there is great merit in referring this matter to a joint standing committee. I think we should also reflect very carefully on the contributions made in this place, both last week and in this debate, by Senator Nampijinpa Price as she was talking about the practical issues on the ground in some of our Indigenous communities.

I was looking at the declaration, and there are a number of articles which I circled, which, we should always remember, are also part of this declaration. Article 7 says:

Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person.

That's absolutely fundamental, and we should make sure everyone, in every community across Australia, has that right. Article 11(2) says:

States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent …

Article 22 says:

Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities in the implementation of this Declaration.

Article 24 says:

1. Indigenous peoples have the right to their traditional medicines and to maintain their health practices …

2. Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right.

I think there are many of the 46 articles of the declaration which we should all reflect upon in considering whether or not we're meeting the relevant standard. The declaration does have moral force, as Senator Dodson referred to. It should be a cause for deep reflection, and, in my view, this is a matter which, given its serious nature, should be considered in depth by the relevant joint standing committee.