The Australian Greens wish to thank all submitters to this important inquiry, in particular the many First Nations communities, and community organisations as well as concerned individuals that came forward in what was a very short timeframe for submissions. Their considerations are much valued and should be guiding the government’s decision on how to proceed with the Aboriginal Land Rights (NT) Amendment (Economic Empowerment) Bill (the Bill).
The Australian Greens are therefore very concerned that, despite 92% of submitters being against the passing of the Bill at this stage, the committee’s majority report recommends passing the Bill without further amendments, and does not properly consider the many concerns expressed with the Bill, both around the consultation during its development as well as its substance.
Background of the Bill
The Aboriginal Land Rights (NT) Amendment (Economic Empowerment) Bill 2021 proposes the most substantial changes to the Aboriginal Land Rights (NT) Act (ALRA) since it was first established in 1976.
Stated purposes of the Bill include the enhancement of ‘Aboriginal control over land management’ and the empowerment of ‘Aboriginal peoples in the NT to activate the economic potential of their land for generations to come’.
Amongst other changes, the Bill proposes:
the establishment of the Northern Territory Aboriginal Investment Corporation (NTAIC) as a statutory authority with the broad purposes of promoting the self-management and economic self-sufficiency, and the social and cultural wellbeing of First Nations people living in the Northern Territory (NT). The NTAIC will receive, out of the Aboriginal Benefits Account (ABA), $500 million of initial funds and an additional $60 million per year for the first three years of its operation for investment and beneficial payment purposes
the abolishment of the ABA Advisory Committee
changes to application processes for exploration and mining on Country in the NT
changes to township leasing processes and funding arrangements
changes to the Land Councils’ ability to enter into land agreements and the amount at which they must seek ministerial approval to enter into a contract
increasing the Land Councils’ discretion to determine appropriate consultation with Traditional owners
removing the Land Councils’ ability to delegate powers to certain corporations
removing the requirement that certain permits may only be cancelled by the issuer of the permit
increasing penalties for trespassing on Country
alignment with other Commonwealth legislation.
Concerns with the Bill
Consultation with First Nations communities
The Australian Greens’ first and foremost concern with this Bill relates to the lack of consultation with First Nations communities affected by the proposed changes.
This inquiry received overwhelming evidence from stakeholders and First Nations communities concerned by the lack of community consultation underlying the proposed changes.
While the government argues that this Bill has been co-designed in an extensive process over many years, the co-design process did not actually include First Nations communities in the NT but was carried out closely with the four NT Land Councils.
As Mr Gregory Marks notes:
The Land Councils it appears are the gate keepers when it comes to consultation. This gatekeeper role is also evident in the Minister’s statement that the land councils had consulted with 220 elected landowners. The 220 elected landowners are the elected members of the Land Councils. This is not the way that consultation works for Aboriginal Traditional Owners. Consultation cannot be mediated through third parties, even elected representative parties. As is well known, a fundamental of Aboriginal law and custom is that Aboriginal people cannot speak for or make decisions about land for which they are not directly responsible according to that Aboriginal law and custom. The Government cannot delegate its responsibilities for consultation to Land Councils, who in turn are consulting indirectly through elected land council members.
[…] a bona fide attempt has to be made by Government to consult widely and to obtain a cross-section at least of the views of Traditional Owners, and other affected Aboriginal communities or groups, before proceeding with legislation of such moment.
Similarly, Mr Michael Dillon notes:
The result has been a Bill that favours land councils over TOs, and that favours land councils and TOs over the wider group of potential beneficiaries. Yet the codesign process was undertaken only with the land councils.
[…] in the context of designing a complex piece of legislation impacting different elements of the diverse Aboriginal population differently, it is patently inadequate to negotiate and codesign (effectively in secret) with just one of those elements.
The Land Councils, as representatives of Traditional Owners in the NT, are obliged to act on their behalf and based on consultation with and consent of Traditional Owner communities. They have also set themselves Free, Prior and Informed Consent (FPIC) as an underlying principle of their negotiations with the government on schedule 1 of this Bill, as pointed out in their submission to the inquiry:
Consistent with Australia’s international and national human rights obligations, traditional owners must provide their informed consent regarding any changes to the ABA.
However, the government does not seem to have undertaken its duty of care to verify that FPIC has actually occurred.
As the Australian Human Rights Commission points out:
The Government appears to have delegated its responsibility to consult with Aboriginal Territorians to the four land councils with whom the Minister states the Bill has been co-designed. […]
However, the Commission reminds the Committee that while consultation can be outsourced, the duty to consult ultimately sits with the Government. In relying on third parties—including land councils—to fulfil these obligations, Government should be able to demonstrate in a fulsome and transparent manner how these obligations have been met.
Mr Gregory Marks remarks:
[…] to conflate co-design with consultation in respect of informed consent is incorrect. The established international norms in respect of free prior and informed consent for Indigenous peoples set a high bar. The provisions and jurisprudence of international conventions to which Australia is a party, such as the International Convention on the Elimination of All Forms or Racism (ICERD), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR), plus the provisions of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which Australia supports, make it clear that some form of indirect consultation will not be adequate to meet Australia’s international obligations in this regard.
FPIC has not occurred in relation to this Bill. This is besides the Land Councils proclaiming the following as one of the principles underlying the co-design process in relation to the first schedule of the Bill:
Consistent with Australia’s international and national human rights obligations, traditional owners must provide their informed consent regarding any changes to the ABA.
The Human Rights Commission also expresses its concerns around FPIC
Without clarity and transparency as to how representative the support for this legislation is, there is no certainty that the changes proposed in this Bill have the free, prior and informed consent of the Aboriginal Territorians affected. […]
In principle, the Commission supports reforms to make decision-making and approval processes more efficient, however, this should not come at the expense of the procedural rights and the control over decision-making of Traditional Owners.
Traditional Owners were not consulted about the proposed changes to the ALRA, did not give explicit consent, and did in most cases not even know about the changes.
As the Ngurratjuta/Pmara Ntjarra Aboriginal Corporation states:
This so called co-design process needs to be investigated by the Senate Committee. We were never aware of it and we think that is the case for most if not all community organisations across the Northern Territory. There were no public announcements by the Coalition Government that such a process was underway. […]
Our member communities and their residents have not been asked about the amendments and they do not have any knowledge of what is being proposed let alone support them. We think that is the case throughout the Northern Territory. Communities are each able to choose one or two traditional owners to be Land Council members but that does not constitute a fully representative body. Moreover, many traditional owners do not engage with the Land Councils and have chosen to establish their own organisations to advance their interests which is their human right.
Senior cultural elder from Ngukurr and Galiwinku Communities, Mr Ian Mongunu Gumbula notes:
This is the most significant Balanda Law for protecting First Nations rights in the NT. We need to be very careful about changing it, and make sure there has been consultation out on country and in our communities.
Our people out on country do not know that this Bill is in parliament. They have not heard about the changes.
There were no consultations or engagement with our people out on our country. That means that the great majority have been excluded from the process.
Mr Michael Gravener, CEO of the Urupunta Aboriginal Corporation also points to the lack of consultation with their community:
Our local Aboriginal Corporation has not been consulted in any meaningful sense in regards potential changes to the Aboriginal Lands Rights Act! I am very aware most Traditional owners have not been informed or nor provided with any meaningful consultations. […]
The 1976 ALRA should not be passed until Aboriginal owners understand and consent to the nature and Purpose of amendments. In addition any Aboriginal communities or groups that may be affected need to be consulted and be given adequate opportunity to express their views. We feel that we have not been consulted adequately and that the vast majority of our people are unaware of the impending changes to this important Act.
Yingiya Mark Guyula, independent First Nations MP in the NT points out further concerns about the assumption that Land Councils adequately represent their communities’ interests:
In my role as a parliamentarian I have been approached by many people from across the Northern Territory who feel that they have been unfairly treated by a Land Council or unfairly impacted by a Land Council decision. Generally these issues include, where a person is not recognised by the Land Council as a land owner, or where they are considered part of the land owning group but do not feel they have been thoroughly consulted on an issue.
Indeed, during the public hearing held for this inquiry, Mr Bulman from the NIAA, conceded that the agency regards the consultation with Land Councils as representative for Traditional Owner communities:
We worked with land councils and their members as representatives of the broader communities across the Northern Territory.
The Central Land Council, through Mr Nugent, further confirms this approach
On a broad policy issue, such as amendments to the land rights act, the constituency of the land councils are the elected representatives of traditional owners and Aboriginal people in the Northern Territory who are affected who give precedence to this.
The Bill was also perceived to be rushed through parliament. In fact, it was only through the Australian Greens' persistence that this inquiry was undertaken, and that community received at least an opportunity, if a very limited one, to express widespread concern about the Bill. Unfortunately, the timeframe for this inquiry was very rushed, thereby excluding the participation of many more.
Due to the major concerns with consultation, as well as with various aspects of the proposed changes, at the time of preparation of this report only 5 submitters advocated for the passing of the Bill: the Land Councils, the National Indigenous Australians Agency (NIAA), the chair of the ABA Advisory Committee, the Aboriginal Peak Organisations NT (which include the Land Councils), and the Minerals Council of Australia. All besides the latter were directly involved in the co-design of the Bill and the Minerals Council has an obvious interest in its passing due to its members benefitting from the proposed changes.
An overwhelming majority of the submissions received do not want this Bill to pass into law. They instead call on the government to ensure a thorough consultation process with First Nations in the NT and any proposed changes to the ALRA to be based on FPIC.
Accountability of Land Councils
Connected to these concerns around consultation about the proposed changes to the ALRA are the wider concerns around accountability of the Land Councils to the communities they are supposed to represent and ensuring Free, Prior and Informed Consent is obtained for any decisions.
June Oscar, Aboriginal and Torres Strait Islander Justice Commissioner, in the submission of the Human Rights Commission stated that:
Given the primacy of the right to free prior and informed consent in the context of land rights in particular, the Commission suggests the Committee give the substantive content of FPIC in-depth consideration.
For FPIC to be best facilitated in all circumstances, the Australian Greens would like to underline the importance of ensuring full accessibility for communities to participate in meetings with Land Councils as well as potential project proponents. Ample notice of the meetings should be given, community members supported to attend (remotely or in person), First Nations Elders encouraged to attend and provisions made to assist their attendance as much as possible, and translators be present wherever required. Community members should also be informed about any decisions made during the meetings to ensure transparency, particularly around any consent granted or not granted, and for community to be provided the opportunity to challenge such decisions where needed.
Given FPIC, in practice, is currently not always guaranteed to be obtained from Traditional Owner communities by the Land Councils, the Australian Greens are deeply concerned about the Bill’s provision for Land Councils to take more flexible approaches to consulting with Traditional Owners about proposals for mining and exploration. While this provision theoretically could enable more consultation, it also carries the risk of less consultation being undertaken and consent to be assumed where none has been explicitly granted.
Of further concern is the inclusion of no-invalidity clauses in proposed sections 65BH(3) and 12D(7), as pointed out in the Scrutiny of Bills Committee report:
The committee reiterates that there are significant scrutiny concerns with no-invalidity clauses, as these clauses may limit the practical efficacy of judicial review to provide a remedy for legal errors. For example, as the conclusion that a decision is not invalid means that the decision-maker had the power (i.e. jurisdiction) to make it, review of the decision on the grounds of jurisdictional error is unlikely to be available. The result is that some of judicial review's standard remedies will not be available. The committee has generally not accepted a desire for certainty to be a sufficient justification for the inclusion of no-invalidity clauses.
This view is also shared by the Law Council of Australia:
[…] the Law Council is concerned by the inclusion in proposed new section 12D
of subsection (7), which provides that a failure to comply with subsection (4) does not invalidate the agreement. The Law Council would characterise this as effectively undoing the obligation imposed by subsection (4), by removing the logical consequence for an omission to comply with it. It means that the consent of the Traditional Owners is not subject to legislative safeguards, because it can be ignored without there being a legal consequence in relation to the carrying out of the agreement.
The Australian Greens are concerned that these provisions will further undermine inadequate FPIC provisions and practice, a concern which is shared by the Australian Human Rights Commission:
The Minister’s response to the Senate Scrutiny of Bills Committee […] makes clear that the Bill will further entrench the provision of guarantees for external investors and business owners over the need to guarantee that Traditional Owners are being properly consulted and have given their genuine free, prior and informed consent to any use of their land through agreements made by their Land Council on their behalf.
The Australian Greens wish to emphasise the importance of ensuring Free, prior and informed consent as the foremost principle for all provisions of the Bill, to achieve its objective of economically empowering First Nations Territorian.
Northern Territory Aboriginal Investment Corporation and the Aboriginals Benefit Account
While the Australian Greens welcome the intent of empowering First Nations people in the Northern Territory to make decisions around the use of ABA funds, a number of concerns arise from the current proposal.
Besides the establishment of the NTAIC to undertake beneficial investments and payments with funds received from the ABA, the majority of funds will still remain in the ABA.
Emeritus Professor Jon Altman notes:
While the Bill commits to pay $680 million to NTAIC it is unspecified what will happen to the residual equity (currently more than 50%) in the ABA or if there are any projections on how this equity might grow or decline into the future.
These ABA funds will remain subject to ministerial powers under section 64(4) of the Act. Current practice is that such payments are made through a departmental grant program with grants usually, though not always, being assessed and recommended by the ABA Advisory Committee (ABAAC) before the Minister makes the final decision on them.
While the establishment of the NTAIC is supposedly intended to not require the Minister to make decisions over ABA investments and beneficial payments anymore, there is no provision in the Bill to prevent the Minister from doing so. Given the proposed abolishment of the ABAAC, such decisions would then not even be subject to First Nations advice through the ABAAC.
Similar observations were also raised during the inquiry:
The Chairman of the NLC has expressed a view that ABAAC members should continue to provide their important advice to the Board of the ABA Corporation. This will be a matter for the Board to decide at the appropriate time.
The Australian Greens are deeply concerned about the absence of any First Nations guidance on the use of ABA funds, and accountability towards First Nations people. This leaves the ABA open to being used as a slush fund for the government, given the history of other funds being used this way such as in the case of the sports rorts and carpark funding. This risk is further exemplified by a number of controversial funding decisions with Indigenous Advancement Strategy and ABA funds by former Minister Scullion.
Accountability is an important part of democracy, and the Australian Greens would therefore like to propose for the NTAIC to take on the role of providing advice to the Minister in case ministerial discretion is used to make payments out of the ABA.
The Australian Greens are further concerned that under the current Bill, the NTAIC is not given any guaranteed income certainty beyond the $60 million annual payments for three years. The NTAIC will need to annually petition the Minister for additional beneficial payment funding. This contrasts with funding for similar corporations, such as the Indigenous Land and Sea Corporation, which receives statutory annual payments of amounts stipulated by the Aboriginal and Torres Strait Islander Land and Sea Future Fund Act 2018.
The NIAA in its submission notes that:
The Minister will set ongoing administrative funding having regard to on estimates provided by the NTAIC. This mechanism is also consistent with the Land Councils statutory funding mechanism. These NTAIC funding arrangements provide great potential for the NTAIC to grow and support community aspirations. They also balance certainty for the NTAIC with the need to ensure there remains sufficient funding in the ABA to meet the needs of other parties that are dependent upon it. Whilst the ABA is growing rapidly now, mining royalties fluctuate as mines open and close. Without a flexible mechanism for determining ongoing NTAIC funding, these fluctuations could affect the funding of other parties reliant on the ABA. The NTAIC’s estimates process mitigates this risk by providing enabling the Minister to determine future funding taking into account advice of the Board and the balance of the ABA over time.
While the Australian Greens accept the need to safeguard ABA funds particularly during the uncertain initial phase of a newly established corporation, provisions should be included in the Bill to ensure that the NTAIC will receive annual funding, even if the amount is unspecified at this point in time, to provide at least some funding certainty for the corporation.
The proposed setup of the NTAIC to have responsibility for both investing funds to generate a return while also granting beneficial payments has been pointed out as a challenge and risk for the corporation by submitters to the inquiry.
For example, Emeritus Professor Jon Altman notes:
The purposes of NTAIC include economic self-sufficiency and socio-cultural goals to be underwritten by grants, loans, and investments. This mix of purposes and functions is likely to be extraordinarily challenging to manage as the Australian government has found since 1978. This is especially the case as the S64(4) granting function of the Land Rights Act will now intermingled with an investment instrument that is being accorded priority in the naming of the Corporation as well as in all the media and fact sheet releases about its formation. The NIAA notes ‘… these reforms establish a new, Aboriginal controlled body called the Northern Territory Aboriginal Investment Corporation (NTAIC) to invest money from the Aboriginals Benefit Account (ABA) to maximise the economic future of Aboriginal families and communities in the Northern Territory for generations to come’ (my underlining). This government statement looks to prioritise investment over grant-making.
Review mechanisms
The current Bill proposes a statutory review of schedule 1 of the Bill after 7 years to assess whether the changes to the ABA and the newly created NTAIC operate as intended.
The Australian Greens are concerned that 7 years are a long time if things are not going as intended, and would regard an earlier review, ideally after three years when the currently proposed three annual payments have been granted, as more suitable to identify any early challenges and change direction if needed, as well as determine future funding to the corporation.
Some submitters to the inquiry have also suggested a review after three years. Emeritus Professor Jon Altman writes:
Given that the NTAIC is a new institution with significant resources and power, there is statutory requirement for it to be reviewed after seven year (S65JD). In my view this should occur far sooner (after two to three years) and the review should be stipulated as independent and by an eminent person.
Currently, the Bill only provides for a review of schedule 1, although schedules 2 and 3 also contain major changes to the Act.
Mr Dillon submitted to the committee:
The Bill proposes a review of the NTAIC provisions of the Act after seven years (clause 65JD). This provision is in my view inadequate in a number of respects: it is limited to the NTAIC whereas the NTAIC proposals have the potential to affect the operations of land councils, land trusts, royalty corporations, and other elements of the legislation (and indeed the operation of entities such as PBCs established under the Native Title Act 1993). Any review should be of the operation of the whole Act. It should also be unequivocally independent.
The Australian Greens would like to see schedules 2 and 3 reviewed to assess if the enacted changes achieve their objectives, and to address any unintended consequences or shortfalls in a timely manner.
Composition of the NTAIC Board
The composition of the new NTAIC board has been subject to many concerns from submitters, partly due to the dominance of Land Council positions on the board.
The Ngurratjutapmara Ntjarra Aboriginal Corporation submitted that:
Not surprisingly, as they were the only ones consulted, Land Councils dominate the membership of the new statutory body. No provision has been made for any other Aboriginal bodies to automatically be able to nominate Board members. We see no reason why nominations are not called for in a public manner that allows any Aboriginal Territorian to be considered who has demonstrable experience and outcomes related to achieving the objectives of the new body. […]
Our biggest concern with this Bill is that it gives Land Councils even more control than what they already have over our land by allowing their representatives to also control access by communities to the ABA. We accept that Aboriginal people in communities and their own organisations should have more say in ABA grants and forming partnerships with Governments and industry to do this. The model of representation for the NTAIC that has been chosen by the Coalition Government, however, is likely to alienate our people and meanwhile Land Councils which are also funded by the ABA and control distributions of its mining royalty equivalents to affected communities, will now control payments to communities. There is a significant conflict of interest in these arrangements and it was never intended to occur.
The Senate Committee needs to propose changes to the Bill to rectify these serious problems with the Bill including allowing other representatives of Aboriginal organisations in the Northern Territory to be elected for Board roles without having to be appointed by a Board dominated by the Land Councils.
In addition to these concerns, the currently proposed board composition includes no representation of non-land holding First Nations Territorians. Originally, the ALRA was established not just for land holders but also to ensure First Nations people in the NT who are not land holders can benefit from mining royalties as well.
The Human Rights Commission notes:
It is also noteworthy that the ABA was designed to benefit all Aboriginal Territorians (including those who do not have land rights). There are provisions which acknowledge this in the Bill: clause 65BB (a) stipulating a (discretionary) function for NTAIC ‘to make payments to or for the benefit of Aboriginal people living in the Northern Territory;’ and clause 65C (6) for NTAIC to consult with Aboriginal people living in the Northern Territory in developing its strategic investment plan. However, there is no recourse if the NTAIC (which will be dominated by land council representatives under the current proposal) decides that that function is not to be prioritised.
Mr Dillon is concerned about:
…the potential change in focus of the ABA from a scheme designed to benefit all Aboriginal Territorians (whether or not they benefit directly from land rights) to one that potentially privileges those who do benefit from land rights.
[…] ‘the original conceptual scheme of the ABA was to split the available funds in three main ways: (i) amounts for land council funding; (ii) amounts to communities affected by mining; and (iii) amounts to Aboriginal Territorians generally including those Aboriginal Territorians who do not benefit from land rights. These amendments leave categories (i) and (ii) untouched, but potentially strengthen the trend to allocate the majority of category (iii) funding towards land council priorities and away from beneficial payments.
On this Basis, the Australian Greens would like to see provisions made for non-land holding First Nations Territorians to be represented on the NTAIC board.
Recommendations
Based on the evidence provided during the inquiry, the Australian Greens recommend that:
Recommendation
The government engages in extensive, open and transparent, direct and independently facilitated consultation with all affected First Nations communities across the Northern Territory on proposed changes to the Bill.
Recommendation
The government only re-introduces a Bill to parliament once Free, Prior and Informed Consent by all affected First Nations communities has occurred and proposed changes have been given a comprehensive public consideration through the release of draft legislation followed by a detailed Parliamentary committee process.
Recommendation
The Australian government begin the process of negotiating a Treaty or treaties with First Nations people, including a truth telling process and healing. A Treaty will provide a new framework on how we can move forward as a nation, creating a unified national identity that celebrates what unites us, protects the rights of First Nations people and their cultures while also acknowledging the ongoing and historical injustices of colonisation.
If the Bill nevertheless proceeds at this stage, the Australian Greens recommend that:
Recommendation
Free, prior and informed consent is ensured for any decisions regarding Aboriginal land and First Nations communities.
Recommendation
Transactions are invalid if Land Councils do not comply with the requirement of not entering into an agreement unless it is satisfied that the Traditional Owners consent to the proposed grant, adequate consultation has occurred and the terms and conditions on which the proposed grant is to be made are reasonable.
Recommendation
Full accessibility for Traditional Owners be ensured at consultation meetings and any required support granted.
Recommendation
A review of the NTAIC be caused after 3 years after the commencement of schedule 1, instead of the currently proposed 7 years.
Recommendation
Schedules 2 and 3 are subject to a review.
Recommendation
Non-land holding First Nations Territorians interests have representation on the NTAIC board.
Recommendation
The NTAIC serves as an advisory committee to the Minister in the case of payments being made from the ABA.
Recommendation
Mining applications can only proceed without new consultations if any proposed variations are in accordance with consent already obtained.
Greens Senator for Victoria