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Wednesday, 23 April 1980
Page: 1760

Senator TEAGUE (South Australia) - Four years ago this Parliament established Aboriginal land rights legislation. The early stages of that debate in the Parliament began under the former Government, but it was concluded with the momentum and initiative of the present Government. The land rights legislation setting up the Northern Land Council and the Central Land Council had the bipartisan support of the great majority of members on both sides of the Parliament in both Houses. Since that time, with four years of experience, problems have arisen which necessitate some amendments being made to the legislation. They are minor amendments, in the broadest context of the legislation, but they are not unprecedented. In recent years there have been several amendments, three passed by the Parliament in 1978 and another in 1979. Now we are considering this seven-page Aboriginal Land Rights (Northern Territory) Amendment Bill which seeks to amend the substantive legislation.

This amending Bill does not challenge the principle that the opportunity be given to Aboriginal communities to identify themselves with land, for their traditional lands to be owned by them and, under the Act, to be controlled substantially by them. These principles are not challenged at all by this amending legislation. The Bill has three purposes and is designed to meet three problems. The first concerns the Crown ownership of minerals in land under Aboriginal ownership. The second is to put into legislative form a solution agreed between the Aboriginal Land councils, the Northern Territory Government and the Commonwealth Government to a problem that had arisen with regard to public roads traversing Aboriginal land. The third purpose of the Bill is to overcome a problem by making stable and binding the agreements that are concluded, as provided in the principal legislation, between a land council and any mining company. The insecurity that has developed around some of the agreements that have been made had led to this necessary amendment.

The first two purposes were outlined by the Minister for Aboriginal Affairs (Senator Chaney) when he presented the Bill. They are not controversial issues. As I have said, the matter concerning public roads is the outcome of an agreed solution by the parties concerned. I understand that parallel legislation will be introduced in the Northern Territory legislature to implement this legislation. The matter that has attracted the attention of the first Opposition speaker tonight and the one about which I wish to speak for a little while relates to agreements concluded between Aboriginal land councils and mining companies. Section 23 of the principal Act sets out very fully the specific functions of the land council, the representative nature of the council, the need for the council to protect the interests of traditional Aboriginal owners, to consult with those traditional Aboriginal owners in making decisions, to negotiate on behalf of the traditional owners, and so on.

The last of the functions set out in the legislation concerns any agreement that the Land Council may enter into with a miner or a mining company. This is a very relevant and practical function because, as is known to all Australians interested in the land councils, this has been one of the principal matters receiving public attention. There has been the establishment of uranium, chrysoprase and other mines on Aboriginal land. There has even been oil drilling. This legislation provides for the traditional owners, through the Land Council which is representative of them, to negotiate with those best able to exploit the minerals that are to be found in the land without disturbing the community relations of the Aboriginal people or without trespassing upon sacred sites that can be defined and discussed. When all of the discussion has taken place and all negotiations have been concluded, a formal agreement is struck between the Land Council and the mining company. The legislation provides that the Land Council has obligations to the traditional owners in determining that agreement. They are very demanding responsibilities for the Land Council. Section 23 (3) of the principal legislation states:

In carrying out its functions with respect to any Aboriginal Land in its area, a Land Council shall have regard to the interests of, and shall consult with, the traditional Aboriginal owners (if any) of the land and any other Aboriginals interested in the land and, in particular, shall not take any action, including, but not limited to, the giving of consent or the withholding of consent, in any matter in connection with land held by a Land Trust, unless the Land Council is satisfied -

It must be satisfied that two questions are answered. The Council, must be satisfied that: the traditional Aboriginal owners . . . understand the nature and purpose of the proposed action and, as a group, consent to it;

The second point on which the Land Council must be satisfied is that: any Aboriginal community or group that may be affected by the proposed action has been consulted and has had adequate opportunity to express its view to the Land Council.

It is very right and proper that the Council should properly represent the traditional owners in the area under the responsibility of the Land Council. However, in the consultation at some point the Land Council should feel that it has achieved a sense of agreement. (Quorum formed). The Bill amending the legislation that is before the -

Senator Keeffe - Mr President,I take a point of order. I refer you to Standing Order 406 which appears on page 53 of the Senate Standing Orders and which states quite clearly and unequivocally that no senator shall read his speech. I have been worried about the honourable senator who has been addressing the chamber. It is obvious that the speech has been written for him and he appears to be reading his speech. I draw your attention again to Standing Order 406.

The PRESIDENT - I am well aware of Standing Order 406. I have been listening closely to Senator Teague and observing his speech. He is not reading his speech.

Senator TEAGUE - Mr President,I am sorry that I am not reading my speech because I would be more fluent. I assure you and the Senate that I have about 100 words on this sheet of paper before me which are my notes to guide me in what I have to say this evening in speaking in the debate on this Bill.

Senator Young - Senator, wouldyou describe handwriting as being notes too?

Senator TEAGUE -No, I think my handwriting would be very difficult to read- even for me. In fact, these notes with regard to this Bill were written by me on the call list circulated by the Whip. The principal legislation setting out the functions of the Land Council and, in particular, section 23 (3), is in no way diminished by the amendment that is before us. Rather in the consultation whereby the Land Council is consulting with the traditional owners and representing them in formulating an agreement with a mining company, the Council must be sure that the traditional owners understand and consent to the agreement. It must be sure that all those Aboriginal groups that have an interest or may be affected by the agreement have been properly consulted and have had an opportunity to express their views to the Land Council.

In this democratic process and almost familial fellowship context of a community being consulted by the representatives in the Land Council a certain point will be reached when an agreement is formulated. Purists would easily see that there could still be one traditional ownerperhaps two- who somehow was absent from the formulation of the agreement. Such is the demand for the Land Council to be representative, to consult and to make sure that the traditional owners understand, that surely, whatever the best endeavours of the Land Council, one or two people may, subsequent to the agreement being made, remain with a claim that they did not understand, or they did not have a full opportunity to express a point of view or were not totally consulted. If that difficulty arises it may then lead to an appeal system and someone may challenge this provision relating to the functions of the Land Council. They may say that the agreement should be made null and void because the functions of the Land Council have not been, to the last scintilla, to the last point of perfection, totally followed by the Land Council in the formulation of the agreement. Therefore, some point has to be found when the agreement is struck and is binding between the two parties or else mining and other development ventures on Aboriginal land would not be able to continue viably because the development group, the mining group, could not be assured that the ground would not be taken away from them. Indeed, the Land Council might not be able to be confident that the agreement it has undertaken would not be challenged by some legal appeal.

This is the problem that has arisen in the four or five years since the passing of this legislation. The solution to this problem, as proposed by this Bill, is that the agreement that is struck will be binding and not subject to appeal. But the provision is contained in this amending legislation that the Minister must consent to the agreement and must assure himself, with all of the necessary information from traditional owners and the land councils, that the functions set out in section 23 (3) have been rightfully carried out and fulfilled. In the time between the agreement being struck and the Minister giving that approval, there will be an opportunity for any aggrieved traditional owner or any other person who feels that he was not fully consulted or does not fully understand the agreement to make an appeal to the Minister. So the Minister becomes the avenue of appeal in the days and weeks between the agreement being struck and the Minister giving that approval.

If the Minister is not satisfied that this full consultation process has been developed to the right stage, he can refrain from giving that approval. I believe that this is a reasonable safeguard for the process whereby two parties come to an agreement. It is sensible legislation and it is a practical way of solving the problem that has arisen in these years. If an alternative process of the right of appeal to the Administrative Appeals Tribunal or the like were to be built in by another amendment that we are not considering tonight it would not work. (Quorum formed). If there were an alternative means of appeal because the land council had not been properly representative or had not consulted the traditional owners, an avenue for consideration might be an appeal to the Administrative Appeals Tribunal or to a court, whether it be the Supreme Court of a State or a local court, and again there would be a long, drawn-out legalistic battle between the sides that effectively would take away the authority of the land council itself, which, after all, is a body elected by the traditional owners and which is able to have the closest dialogue and consultation with the traditional owners. There is nothing in this solution to the problem which has arisen and which is being addressed by this amendment that denies the full powers of the land council to consult with traditional owners, to help them to understand all the issues involved, to make sure that their views are heard and to make sure that the agreement that is struck is indeed representative of all the views of the traditional owners.

It is only in the event that a land council abuses its democratic responsibilities to consult, to educate and to lead to understanding that there is the channel of appeal to the Minister not to approve, as is now provided for in the principal legislation under clause 27(3), where there is a requirement that such agreements be approved by the Minister. It is only in that event that an appeal can be successful in delaying the agreement until the Minister is satisfied that all the traditional owners have been properly consulted and have agreed to the contract.

I believe that this Bill can be fully commended to the Senate. It is a reasonable solution to this problem of achieving binding, stable contracts and of ensuring that the authority of the land council is maintained. It does not compromise the full powers of the land council, and it does not take away the insistence in the Act on the fullest consultation possible with the traditional owners. The Minister is accountable to this Parliament and is therefore in a very good position to be the avenue of appeal. I commend the Bill to the Senate.

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