Senator Lidia Thorpe's dissenting report

First Peoples rights and our international obligations

Offshore gas projects, in the same way as onshore fracking proposals which we oppose, will have a significant impact on our culture, country and way of life. Not only will [Traditional Owners] be impacted, but everyone in the world too, as well as plants, animals and the environment. Consultation should therefore not be rushed, inadequate or watered down … We can no longer pursue any expansion of fossil fuel projects in order to stay within safe limits of climate change.[1]

Nurrdalinji Native Title Aboriginal Corporation

Santos only consulted us Tiwi people because we won in court, and they are still complaining about having to consult with us, along with all of the other mining companies. That is why we are here, right? The government wants to take away what we worked so hard for, because this change to the legislation will give you all a right to ignore us again.[2]

Ms Therese Bourke, Senior Elder of the Malawu clan

1.1This bill is not compatible with human rights and should not pass in its current form. It’s misleading for the bill to claim otherwise, when it lacks the relevant evidence to support such a claim. The bill violates the rights of First Peoples and undermines Australia’s international human rights obligations, in relation to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the Paris Agreement. First Peoples across the continent are having to fight for their right to be consulted in order to protect sacred sites and Sea Country. The Albanese Government refused last year to enact UNDRIP into domestic law and is failing on its commitments to Treaty, to strengthening cultural heritage protections and to reforming our national environmental laws. Meanwhile, Labor governments across the continent have been giving a green light to their mates and big donors in the fossil fuel industry, who continue to pollute and plunder our environment while ignoring First Peoples’ right to Free, Prior and Informed Consent, as outlined in the UNDRIP.

1.2Consultation is not consent, despite what governments and the fossil fuel industry seem to think. Section 790E of this bill seeks to bypass accreditation under the EPBC Act while threatening to undermine the government’s proposed new nature positive laws. Under the proposed new laws, any variations or updates to accreditation would require the proposed new Environment Protection Agency to be satisfied the changes are not inconsistent with National Environmental Standards. These Standards, which will include a Community Engagement and Consultation Standard and a First Nations Engagement and Participation in Decision-Making Standard, will be crucial in ensuring that governments are prohibited from weakening existing environmental protections, which are already so inadequate. The new First Nations Engagement and Participation in Decision-Making Standard must be underpinned by the principles of UNDRIP and ensure that the Free, Prior and Informed Consent is embedded in all approval processes.

1.3The Statement of Compatibility with Human Rights that accompanies the bill is grossly inadequate. It states that the bill engages the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR).[3] It makes no mention of First Peoples or UNDRIP and should therefore be rejected and requested to be rewritten. The development of this Bill and the government’s attempt to rush it through parliament without proper scrutiny, including by the Parliamentary Joint Committee on Human Rights, is evidence that the rights of First Peoples are not given proper consideration by the federal government. This is despite the recommendation from a government-endorsed inquiry into the application of UNDRIP, which recommends that ‘the Commonwealth Government ensure its approach to developing legislation and policy on matters relating to Aboriginal and Torres Strait Islander people (including, but not limited to, Closing the Gap initiatives) be consistent with the Articles outlined in the United Nations Declaration on the Rights of Indigenous Peoples’.[4]

1.4Remove section 790E in Schedule 2, Part 2 of the Bill.

1.5Implement the UNDRIP into domestic law to have full domestic effect and enshrine in law First Peoples’ rights to Free, Prior and Informed Consent.

1.6Implement all recommendations from the 2023 Inquiry into the application of UNDRIP in Australia.

1.7Amend the Parliamentary Scrutiny (Human Rights) Act 2011 to include consideration of UNDRIP, so that no legislation is passed before proper consideration of its engagement and compatibility with the rights of First Peoples.

1.8The Albanese Government must fulfil its election commitments to reform national environmental laws, including a National Standard for First Peoples Engagement and Participation in Decision-Making, in this term of government.

Addressing the climate crisis through Treaty and cultural heritage protections

We as First Nations Peoples come from the Oldest Culture in the World! Our Old People have cared for Country since time immemorial. It’s about time we are listened to, and fully supported by State and federal Governments to implement a First Nations led response for understanding climate change through Ocean conservation and Protection, fine tuned oceanic education and eco tourism. We hold the solutions for Caring for Country.

Our community members and Elders ask: Wantayngeenkopa leekanyoong ngootook?? What’s the matter within you? What’s the matter with you that you destroy future generations' right to live?? Mine and future generations have inherited a world of pollution, disease and mass extinction![5]

Vicki Couzens, Gunditjmara Keeray Whurrong Elder

1.9First Peoples have not ceded our Sovereignty. This means we have not given up our Sovereign rights to care for the lands, waters and skies of this continent. This is why we need Treaty, so that each Sovereign Nation across the continent can self-determine its own aspirations and assert its Sovereign rights to care for Country and protect sacred sites. In the midst of a climate crisis, rather than forcing First Peoples to fight for their right to be consulted, the government must start sharing decision making with the oldest living culture on the planet. Treaty offers a pathway forward that respects the rights, knowledge and expertise of First Peoples, who hold the solutions for caring for Country.

I am heartbroken, devastated and furious that our governments continue to allow Woodside's Burrup Hub to destroy our sacred rock art, our songlines, our precious marine sanctuaries and our environment. The government has been falling over itself to fast-track oil and gas approvals and reassure industry that they won't have to wait to build massive new projects, like the ones destroying my culture on the Burrup.[6]

Ms Raelene Cooper, Lead Campaigner, Save Our Songlines

1.10There must be no new coal or gas projects in the midst of a climate crisis. As the Nurrdalinji Native Title Aboriginal Corporation point out in their submission, the United Nations,[7] the International Intergovernmental Panel on Climate Change,[8] and the International Energy Agency,[9] all agree that we can no longer pursue any expansion of fossil fuel projects in order to stay within safe limits of climate change.[10] Australia cannot pursue any more new coal and gas projects if we are to meet our emissions reduction obligations under the Paris Agreement. But instead, Labor and Coalition governments throughout the continent are permitting oil and gas exploration and expansion that is impacting Sea Country and sacred sites.

1.11There is no coastline on the continent that isn’t currently under threat from fossil fuel expansions. Seismic blasting and existing gas infrastructure along the south west coastline is already impacting sacred Gunditjmara Sea Country and contributing to climate change. The Southern Ocean Protection Embassy Collective (SOPEC) is fighting to protect sacred Sea Country. In addition to plans to expand gas drilling along the coast from the likes of Beach Energy, Cooper Energy and others, a vast stretch of Southern Ocean Sea Country between Victoria and Tasmania has been slated for the world’s biggest seismic blasting plans to explore for even more oil and gas.

1.12Additionally, the recommendations from the 2021 Juukan Gorge Inquiry still are yet to be fully implemented.[11] Every day that these recommendations wait to be implemented, sacred sites and songlines risk being further destroyed. There is an urgent need for new standalone cultural heritage legislation, including protections for intangible cultural heritage and underwater cultural heritage. The Albanese Labor Government committed to implementing these recommendations in full, yet two years into their term we see no evidence of any progress. While the government stalls on further cultural heritage protections, there are incidents like the destruction of Juukan Gorge happening all over the continent.

1.13The federal government must commence Treaty negotiations with First Peoples as a matter of urgency.

1.14Australia cannot pursue any more new coal and gas projects if we are to meet our emissions reduction obligations under the Paris Agreement.

1.15State and federal governments must grant greater protections and declare critical habitats for cetaceans, including Koontapool/Southern Right Whale.

1.16Governments must ban seismic blasting and refuse any further fossil fuel projects impacting Sea Country.

1.17The government must implement in full all recommendations from the 2021 A Way Forward Report into the destruction of Juukan Gorge.

Broken promises and dirty donations

When we find out about these types of things and we decide to stand up and do something about it to protect our home, we are bullied, we are labelled and we are called trolls by politicians who feed the media. We are called trolls, puppets, fringe activists, liars and we are patronised and told that we are being puppets for the environmental movement.[12]

1.18We have heard a lot of big promises and lofty rhetoric from the Prime Minister, but this bill just goes to show how empty Labor’s commitments to First Peoples are when they work to undermine our right to be consulted and take away what little power we have in this colonial system that has no regard for our sacred sites, our songlines and our environment.

1.19Successive governments are prioritising the economic interests of fossil fuel companies. A conflict of interest, paid off by the millions of dollars in campaign donations, both sides of the floor receive from the sector. A practice that influences the natural workings of a democratic system. This is a form of legal corruption within a western colonial government, yet it is the First Peoples and activists fighting to protect Country that get all the media attention and are labelled as criminals. The impacts of this are disastrous and irreversible to the natural environment, First Peoples and future generations.

1.20Political donations from fossil fuel companies and other harmful industries should be banned.

1.21Labor and the Coalition’s fixation on propping up the fossil fuel industry for as long as possible is a clear sign that they are not capable of looking after the lands, waters and skies of this continent. The time has come to hand over control of managing this continent and its natural resources to the First Peoples of this land, who have been doing this for thousands of generations.

Senator Lidia ThorpeIndependent Senator for Victoria

Footnotes

[1]Nurrdalinji Native Title Aboriginal Corporation, Submission 18, p. 3.

[2]Ms Therese Bourke, Tiwi Islands Traditional Owner and Senior Elder of the Malawu Clan, Proof Committee Hansard, 14 March 2024, p. 35.

[3]Explanatory Memorandum, p. 8.

[4]Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs, Inquiry into the application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia, Final report, November 2023, p. 19.

[5]Drillwatch, https://drillwatch.org.au/, accessed on 20 March 2024.

[6]Ms Raelene Cooper, Lead Campaigner, Save Our Songlines, Proof Committee Hansard, 14March2024, p. 36.

[7]United Nations Secretary General, Secretary-General’s press conference on climate (15 June 2023), https://www.un.org/sg/en/content/sg/press-encounter/2023-06-15/secretary-generals-press-conference-climate, accessed 20 March 2024.

[8]International Intergovernmental Panel on Climate Change, Sixth Assessment Report, https://www.ipcc.ch/assessment-report/ar6/, March 2023, accessed 20 March 2024.

[9]International Energy Agency, 2021. Net Zero by 2050. https://www.iea.org/reports/net-zero-by-2050, accessed 20 March 2024.

[10]Nurrdalinji Native Title Aboriginal Corporation, Submission 18, p. 3.

[11]Joint Standing Committee on Northern Australia 2021, A Way Forward: Final report into the destruction of Indigenous heritage sites at Juukan Gorge, October 2021.

[12]Ms Antonia Burke, Tiwi Islands Lead Campaigner and Human Rights Advocate, Antonia Burke Consultancy, Proof Committee Hansard, 14 March 2024, p. 37.