Dissenting report by Senator Rachel Siewert
The deplorable state of remote
housing
1.1
The inadequate provision and deplorable state of public housing on
remote Aboriginal and Torres Strait Islander communities has been an issue of
serious concern in Australia for decades. The Australian Greens welcome the
commitment of the Commonwealth Government to invest significant resources to
begin to address overcrowding and unmet need, and improve the condition of
existing housing stock to advance the health and safety of remote communities.
I am keen to support legitimate efforts by the Commonwealth to ensure that this
housing is constructed quickly, is appropriate for the communities it serves,
and meets Australian health and safety standards. To this end I support the
stated objective of the Native Title Amendment Bill (No. 2) 2009. However,
having spoken with Aboriginal communities and organisations, and having seen
and heard the evidence presented to the committee, I am not convinced that this
legislation is supported by, or in the best interests of, the communities it is
meant to serve.
1.2
My main point of concern and contention is the manner in which the
legislation proposes to suspend and diminish native title rights, purportedly
to achieve the objective of expeditiously delivering this much-needed housing.
I do not believe that this suspension and diminution is necessary; I am not
convinced it will make much difference to how quickly this new housing could be
provided by governments using existing provisions (particularly Indigenous Land
Use Agreements – ILUAs) to negotiate in good faith with native title holders or
representative bodies; and I remain concerned that the extent of derogation of
these rights is significantly out of proportion to the supposed benefits of the
expedited delivery of this housing.
1.3
The problems with the provision of housing on remote Aboriginal
communities predate the introduction of native title, and the lack of
investment by state governments, plus their recalcitrance in entering into
consultations and negotiations with Aboriginal communities in good faith,
provides a much better explanation for the delays in and failure to deliver
adequate and appropriate housing in a timely manner than any issues with legal
complexities involving native title and state land rights acts, or difficulties
reaching agreements with Aboriginal communities desperate to get new housing.
The federal government has failed to demonstrate any causal link between the
two, in circumstances where, if such a causal link existed, it would be
relatively easy to compile comparative data with other states and territories.[1]
1.4
The most compelling point for us is the simple fact that this is a bill
that purports to speed the delivery of benefits to Aboriginal communities, and
yet all of the evidence to the committee from Aboriginal organisations clearly
stated they did not want it and did not believe it necessary. Surely, if there
is a choice between suspending or diluting their rights or receiving the
benefits of housing a few months sooner, it should ultimately be down to those
rights-holders to decide if the alleged benefits outweigh the perceived costs?
As Australians for Native Title and Reconciliation and others[2]
argued to the committee, on the basis of the principle of equitable treatment,
native title holders should have the same rights and abilities to protect their
interests as other property right holders, and these rights '...should only be
affected with their consent.'[3]
1.5
I do not support the recommendations of the majority report, and dissent
from most of the assertions presented at the end of the report as the
'committee's view'. That said, I found the arguments and evidence from the vast
majority of submissions received and evidence presented to the committee (which
makes up most of Chapter 3 and represents the bulk of the report) to be
compelling. I remain concerned however that the ultimate conclusions of the
report neither reflect nor adequately address this evidence and these
arguments. In fact, there appears to be a major disconnect between the evidence
presented, the concerns discussed and arguments evaluated within the report on
the one hand, and its final conclusions on the other.
1.6
This brief minority report will not seek to repeat or provide further
examples of this evidence, but will simply address the main issues and
arguments. It comprises three main sections:
- The failure of the Federal, WA and Queensland Governments to make
a compelling case or provide evidence of the need for these reforms;
- Consideration of existing options for reaching agreements on
future acts, shortcomings in the current approach to consultation and agreement
making with native title holders and representative bodies, and the likely
impact of the reforms on future use of ILUAs; and
- The diminution of native title, procedural and human rights that
would result, in particular its impact on the principle of non-extinguishment
and its compatibility with the Racial Discrimination Act 1975.
1.7
In total, these considerations lead us to conclude that the proposed
changes to the Native Title Act are not necessary to expedite the delivery of
new housing for Aboriginal communities experiencing extreme overcrowding; would
have a serious impact on the rights of native title holders that is out of
proportion to any alleged or perceived gain; there is little or no evidence
that these changes are supported or desired by the communities they are meant
to benefit; and ultimately they are likely to prove counterproductive in the
wider task of addressing Indigenous disadvantage and improving life outcomes.
No case for the need for reform
1.8
It is interesting to note that the committee report ultimately agrees
with the Law Council of Australia and the Northern Land Council that the
practical application of the proposed reforms will be limited to future acts on
a group of Indigenous communities within Queensland and Western Australia -
where land is held by (or for the benefit of) Aboriginal or Torres Strait
Islander people under particular state-based land rights legislation and the
federal native title regime also applies.[4]
That is, where a non-exclusive native title right coexists with and is subject
to a state-based statutory scheme.[5]
1.9
I am concerned that this information was not contained in the Explanatory
Memorandum, or in the Attorney-General's second reading speech. A satisfactory
account for this important oversight was not given by the federal government.
As a consequence of confirmation of this limited application only emerging
relatively late in the inquiry (in evidence given by the Attorney-General's
Department to the hearing in Sydney) this crucial fact did not inform the
committee's terms of reference nor its hearing program (hearings were not held
in Queensland or WA). As a consequence, while there were three submissions from
land councils in Queensland,[6]
there was no engagement with native title representative bodies, land councils
or Aboriginal organisations in WA. I remain concerned that the views of those
affected in Western Australia could not be ascertained. The short turn-around
for the inquiry over the Christmas – January 'downtime' period may also have
been a contributing factor.
1.10
Given the limited application of these provisions to large discrete
communities in Queensland and WA where native title has already been
suppressed,[7]
it is then incumbent on the federal and state governments to make the case that
the expeditious delivery of new housing within these communities is being
significantly hampered by the interaction of the existing provisions of the
native title and the relevant state land rights regimes. However, there was no
evidence presented that lack of sufficient appropriate housing in remote
Indigenous communities in these states was due to procedural delays or an
inability to reach agreement on an ILUA, nor was there comparative data
presented on the time taken to negotiate the provision of remote housing in
comparable remote communities in other states and territories where different
regimes apply.
1.11
When it comes down to it, there simply appears to be no evidence that
the time taken to not deliver remote housing in these states was any worse than
the time taken to not deliver it elsewhere in Australia. There are numerous
examples of remote communities in both these states who have been crying out
for new housing for decades, so it makes little sense to suggest that
communities will not seek to reach agreements as quickly as possible where
governments are negotiating in good faith to deliver much-wanted essential
services.
Usefulness of existing mechanisms,
including ILUAs
1.12
The Australian Greens believe that community negotiation, as the best
way to ensure the delivery and repair of housing and infrastructure, is both
timely and just. I believe that communities have a fundamental right to be
fully consulted on issues which directly impact upon their lives, and see full
informed prior consent as a crucial consideration where the rights and
interests of communities are affected. I am disturbed by the continuing trend
within the Federal Government to discount the importance of working in partnership
with affected communities to develop policies, implement initiatives, and to
develop community capacity and self-governance in the process. I am
increasingly distressed by the prevalence of an attitude and culture within
government departments that communities and community leaders do not understand
or act in their own best interests, and that their concerns and aspirations
must be over-ridden, and punitive measures that reduce their rights must be
imposed for their own good.
1.13
I believe the most appropriate manner to resolve native title and
housing issues is through negotiated outcomes, and that existing mechanisms
such as ILUAs are both sufficient and more appropriate than the proposed new
mechanism. I am not convinced that the federal and state governments have
either made a compelling argument, or provided any evidence that the use of
ILUAs necessarily results in either significant delays in reaching agreements,
or in uncertainty regarding outcomes or tenure.
1.14
It is interesting to note the evidence provided by NTSCorp, Cape York
Institute and the Northern Land Council that, in practice, ILUA processes work
quite effectively on the ground in negotiations between Indigenous right
holders, mining companies, developers and other private sector interests, and
other communities. They suggest that complex and drawn out negotiations only
seem to occur either '...where people are not willing to sit down with Indigenous
groups and have these conversations...', or where state and territory governments
are involved. This also raises the question of whether the problem is either
that state and territory governments are not sitting down to negotiate in good
faith, or whether the standards and level of legal detail or certainty being
pursued by state and territory governments are disproportionate to what is
required to get things done on the ground (it is of course possible that both
of these factors are coming into play).
1.15
NLC also argued that, contrary to the assertions made by state
governments, there is in fact no apparent legal uncertainty with the negotiated
outcomes of ILUAs.[8]
The state governments failed to make the case for this uncertainty, and no
evidence was presented of ILUAs being challenged on these grounds.
The diminution of native title and
human rights
1.16
I am extremely concerned that the manner in which the Bill proposes to
suspend and diminish native title rights could amount to the practical
extinguishment of native title and is tantamount to compulsory acquisition by
other means. This view was strongly expressed in submissions and evidence by
the Cape York Land Council (CYLC),[9]
the National Native Title Council (NNTC),[10]
and the Law Council of Australia.[11]
The Law Council of Australia also asserted the claim by governments that the
only means by which they could improve old houses and build new ones is to
compulsorily acquire the land or require the signing of 40 year leases is '...an
extraordinary proposition.'[12]
1.17
Given the woefully short life expectancy of Aboriginal people living on
many remote communities, the NNTC asserts that 40 year leases effectively
equate to suppression of native title rights 'for a generation'[13]
– which they consider to be practical extinguishment and hence de facto
compulsory acquisition. They argue that, on this basis, native title holders
should have exactly the same rights that they would have elsewhere under section
24MD of the Native Title Act 1993 (NTA) if their lands were compulsorily
acquired – that is, a full and undiminished right to negotiate. However, under
the proposed new provisions this important procedural right to negotiate has
been downgraded to a mere right to comment and consult. Given the recent
history of such consultation processes,[14]
the lack of provisions that require governments to ensure such consultation is
comprehensive, and the lack of any obligation for them to take into account the
views and concerns expressed – there is a very real reason to expect these
consultations could end up being superficial and insincere.
1.18
Perhaps the most concerning aspect of the manner in which these
provisions comprise de-facto compulsory acquisition is that they do so in a
racially discriminatory manner which is only possible because of the suspension
of the application of the Racial Discrimination Act 1975 (RDA) to the
NTA by the Howard Government's 1998 'Wik' amendments. In fact, as the CYLC
compellingly argues, '...this is an extension of the 1998 Wik amendments which
significantly reduced the non discriminatory freeholder test applied to all
future acts by the original NTA.'[15]
The Rudd Government, despite its stated intention of its 'new approach' to
ensure native title plays a foundational role in delivering durable social and
economic outcomes for Indigenous people, is in fact embracing and extending the
logic of the Wik amendments to significantly wind back the rights of native
title holders to speak for their lands, resulting in '...recognition of native
title translating into little more than a symbolic statement and a limited
right to negotiate over some mining and compulsory acquisitions.'[16]
1.19
In effect, after spending decades negotiating complex processes to have
their native title rights recognised, their ability to exercise those rights is
diminished to the point of irrelevance, as '...by withdrawing native title
holders' legal power to leverage an agreement, such negotiated outcomes will
only occur at the behest of government good will, and not of legal right.'[17]
The NNTC also described the net result of these proposals as '...a downgrading of
a very important procedural right, the right to negotiate, to a mere right,
which is the right to comment and the right to consult',[18]
and the Law Council of Australia also reached a similar conclusion.[19]
1.20
The reason why this outcome is particularly tragic is that it overlooks
and undermines the strong role that effective application of native title
rights could play in addressing the underlying causes of disadvantage and
delivering effective community housing solutions. As Prime Minister Kevin Rudd
has acknowledged, respect for native title can provide a sturdy foundation for
durable economic and social outcomes.[20]
1.21
Good governance has a crucial role to play in sustainable community
development. International experience clearly demonstrates that the key
elements of good governance are its cultural legitimacy, the validity of its
representative processes and its accountability.[21]
The effective exercise of native title rights provides a strong foundation for
cultural legitimacy,[22]
and by undermining the ability of native title holders to exercise their role
in good governance of their communities the ultimate impact of these changes is
to undermine and weaken the government's stated aims of strengthening these
communities.
1.22
This issue is of particular concern to the extent that analysis of the failure
of previous Indigenous housing policies in Australia and overseas[23]
clearly indicate that it is not only an issue of the provision of
sufficient resources, but also of the manner in which housing stock and
essential services are managed. Given the limited application of these
provisions to communities on land covered by state land rights regimes, the
fact that native title remains strong in these places is precisely why it is
important to recognise and respect native title to support good community governance.
As the CYLC put it '...meaningful respect for native title as a valuable property
right is part of the solution to effective community housing, not an
impediment.'[24]
1.23
This application and extension of the discriminatory logic of Howard's
Wik amendments is occurring at the same time that the Rudd government is also
struggling to deliver on its commitment to restore the application of the RDA
to the discriminatory aspects of the NT Emergency Response Act. All of the
relevant United Nations human rights committees (including the Convention of
the Elimination of all forms of Racial Discrimination (CERD), CESCR and the
Human Rights Committee) have universally condemned the Wik amendments as
incompatible with Australia's international commitments to human rights.
1.24
It is interesting to note that after many of the subsections of Chapter
3 of the majority report – which deal in turn with the need for the new
process, possible contradictions with the RDA, the non-extinguishment
principle, and procedural rights – there is a section in which the Department
response is effectively presented almost as a 'right of reply'. I must admit
some concern with the manner in which these responses (which are predominantly
assertions that fail to substantively address the questions and issues raised
in evidence rather than compelling arguments) are presented uncritically in
light of the seriousness of the issues under consideration.
1.25
It is of particular concern that on a number of occasions these
departmental responses appear to include some new assertions which are
contestable, but there is neither critical discussion by the majority report
nor is any opportunity given for others to respond. A case in point is the
assertion that the Australian Government believes the amendments within the
Bill (and the Act itself) to be 'special measures' for the purposes of the RDA.
This assertion is particularly problematic, because CERD, which the RDA enacts,
is very clear about the criteria for special measures. Special measures require
full informed consent and must be perceived to be beneficial and desired by
those affected, and that they must also be both necessary and proportionate. It
is arguable that these measures fail on all three counts, and it is clear from
the submissions from Aboriginal organisations that they do not support these
measures or consider them to be necessary, beneficial or proportionate.
Conclusions
- The proposed changes are unnecessary to provide 'certainty'.
- Native title is not a barrier to the rapid provision of housing.
- Delays caused by the exercise of native title rights are not
responsible for the state of public housing and services on remote Indigenous
communities in WA and Queensland.
- The Bill is racially discriminatory and contradicts the Rudd
Government's commitments to a 'new partnership' with Indigenous communities and
to restoring the RDA.
- The impacts of the Bill are disproportionate to the alleged
benefits, and it is not supported by the communities it purports to benefit.
- The Bill reduces the rights of some native title holders to
little more than a symbolic right to be consulted and potentially ignored.
- The Bill will result in de-facto compulsory acquisition of native
title in some remote communities.
- Rather than reducing uncertainty the Bill makes things more
uncertain.
Recommendations
1.26
That the Bill be opposed.
1.27
That template ILUAs be developed.
1.28
That the registration test be removed where an ILUA has been certified
by the responsible NTRB.[25]
1.29
That section 47A be amended to explicitly state that the non‑extinguishment
principle applies for the provision of public housing and services.[26]
1.30
Should the bill proceed (against recommendation 1), that the government
introduces the amendments proposed by the NNTC[27]
to protect the rights of native title holders and ensure the right to
negotiate.
Senator Rachel Siewert
Australian Greens
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