ABORIGINAL LANDS AMENDMENT BILL 2013
Mr WYNNE (Richmond) — I rise as the lead speaker for the opposition on the Aboriginal Lands Amendment Bill 2013, which as we know amends the Aboriginal Lands Act 1970. I will start by thanking the minister and the officers from Aboriginal Affairs Victoria and the minister’s private office for their briefing. I raised a number of matters that which I sought clarification on. Whilst some matters had to be taken on notice, I was pleased that last Friday I received a comprehensive response to the various issues I raised with the officers at that briefing.
I thank them for the courtesy they provided to me regarding that briefing and also the subsequent follow-up. Nonetheless there are still a range of issues that we canvassed in the briefing that I seek to elaborate on today. Before I do so I indicate that the opposition will not be opposing the bill but that there are a number of issues that may emerge during the debate today. I will indicate the position the opposition may seek to take on the bill going forward to the upper house, where we may seek to move an amendment.
I say this in the context of consultations I have sought to have with the two relevant parties to this bill: the Lake Tyers community and the community at Framlingham. I have had detailed conversations with a number of key people at the Framlingham Aboriginal Trust, and it would be fair to characterise those conversations as being both forthright and somewhat conflicting. As we know there have been a range of issues with the community at Framlingham, particularly around questions of governance, and some of those concerns have been addressed by a different leadership being put in place at Framlingham. That is not to reflect necessarily on previous leaderships of the Framlingham trust but simply to state what is the circumstance at that community.
I have not had the opportunity to talk directly with the community at Lake Tyers.
I contacted the administration of the Lake Tyers Aboriginal Trust but was advised that it would not be appropriate for me to travel to Lake Tyers last week because a significant elder at Lake Tyers had died and residents quite rightly did not welcome at that stage a visit from someone outside the community. I will not seek to name the person; however, this was a very significant elder — not just to the Lake Tyers community but also to the broader East Gippsland community. In my contribution I acknowledge that we need to be very respectful of the wishes of that community.
If possible I will visit Lake Tyers. I have been there on a couple of occasions. It is a lengthy trip and probably affords an overnight stay for me to have proper and meaningful conversations with the community. I will attempt to do that in the interregnum between the debate in this house and when this matter comes before the upper house to get a fuller appreciation of what the views of that community are in relation to this bill.
I accept at face value the advice that has been provided to me by both departmental officers and the minister’s private staff; however, I think it is incumbent upon me, as I am sure the minister would expect, to talk to community members directly where possible. If I am able to get that opportunity, I will certainly do so.
But let me make it clear that, in relation to Framlingham, I have talked to a range of interested parties there and have reached a clear view that the structure that has been proposed here is broadly supported by the leadership of the Framlingham Aboriginal Trust. It is not exclusively supported; of course it is not. We know that.
That is by way of introduction. When you reflect upon this bill it is clear that it was the original Aboriginal Lands Act 1970 which put in place these trust structures. It is a very old bill.
The trust structure has been in place since 1970, and that is 43 years. I submit to the minister that the trust structure was certainly right for its time, and I have afforded myself the opportunity to look at some of the historical documentation which underpinned the thinking of the government at that time. It is a fascinating piece of legislation. As the minister notes in her correspondence to me, it is legislation that was enacted by the Bolte government. Lots of people have views about the somewhat rambunctious character of that former Premier of this state.
While some would have some interesting and perhaps conflicting views about the leadership of that government, in relation to this matter it is a most illuminating light that is shone upon the Bolte government that put in place a structure that has endured for 43 years. I acknowledge that the minister in her correspondence to me has suggested that we might have further conversation about an alternative structure for both Lake Tyers and Framlingham going forward, because it is appropriate to think about the type of governance that should be ongoing from 2013 moving forward.
Where I have landed and where the opposition has landed is to say that certainly the trust structure made a lot of sense in 1970, because in effect it involved those communities — that is, the residents of those communities. There is a rather unfortunate history to this where, as we know, the history of Aboriginal connection with land was severed for many community members who were moved off their land and moved to various other settlements.
There is no doubt, in my view, that there are a number of people who would havevery much associated themselves with those two existing communities but who for a range of historical reasons were not part of that original trust structure. I do not think there is any doubt about that.
There are also serious questions about how the trusts have been administered going forward, how the beneficial interests of people who may have been initial members of the trusts have been passed on to family members through the death of original trustees and subsequently how those trust associations may have been passed on to their children. We have circumstances now where the original trust owners are no longer with this. Their rights have been passed on to their children, who are now more than adults; they are moving into older age, and their beneficial interests are now being passed on to their children.
What we had understood originally to be a trust arrangement where people lived within the communities of Lake Tyers and Framlingham is in some circumstances not the case any longer. It is a different set of circumstances to what was originally envisaged. It is not surprising given the duration of this piece of legislation that what I would characterise as a cooperative structure where all the members are direct beneficiaries of the trust is no longer the case.
We have the opportunity to look at an alternative governing structure and to settle with those communities some ongoing land title agreements.
In that context, there are two very interesting documents that are worthy of consideration. One is a 1982 report by the Social Development Committee, a joint investigative committee of this Parliament, entitled Report upon Inquiry into Compensation for Dispossession and Dispersal of the Aboriginal People.
It is a most interesting historical piece, which helps — or at least it helped me — put together some of the thinking and debate around how this Parliament has sought to address some of the fundamental issues around dispossession and land title for our first people. As members would know — we have spoken about it in this Parliament before — it is clear that because of the systematic displacement of Aboriginal people from their lands by various governments over decades upon decades Aboriginal people cannot pass the test of connection to land required under Mabo, and native title simply cannot be achieved in this state. We know that to be the case.
Although substantial claims have been made — the Yorta Yorta claim, which of course failed, comes to mind as perhaps the most substantial one — we now find ourselves in the circumstance of saying, ‘Okay, we need to find a way to satisfy the ambitions of Aboriginal people to have title and access to their lands’, and this was really the path that we pursued when we were in government.
As you would know, Deputy Speaker, we have spoken about this in the past when we had a couple of settlements of land to the great benefit of Aboriginal communities. Ultimately we have to go down the pathway of pursuing this alternative, non-litigated outcome. It is in that context that we have the unique opportunity to settle two aspects of the aspirations of these two communities in relation to their ongoing management and governance of their lands.
What is fascinating is that the Framlingham Aboriginal Trust has title to its forest. I thank the minister for her advice, because it was somewhat unclear to us. I asked the officers at a bill briefing what the interaction was between the Victorian Aboriginal Lands Act 1970 and the application of the commonwealth Aboriginal Lands Act 1987. I read into the record for completeness an excerpt from the minister’s letter of last week:
I am advised the Aboriginal Lands Act 1970 vests by way of Crown grant the land called the Framlingham reserve in the Framlingham Aboriginal Trust. Freehold title to the Framlingham Reserve was vested in the Framlingham Aboriginal Trust in July 1971.
The Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 is commonwealth legislation enacted at the request of the then Victorian government. The purpose of this commonwealth act is, amongst other things, to acknowledge, recognise and assert the traditional rights of Aboriginals to Framlingham forest. Freehold title to Framlingham forest was vested in the Kirrae Whurrong Aboriginal Corporation in February 2000.
Framlingham reserve and the Framlingham forest are separate parcels of land.
The commonwealth legislation makes provision in respect of the ownership and management of the Framlingham forest. This legislation does not make any provision in respect of Framlingham reserve, which is the subject of the Victorian act.
It is quite an interesting mix. The background to that is that there was an attempt by the second Cain government early in its term to seek to resolve some of those land questions through the Parliament. Unfortunately it was frustrated in the upper house. The Cain government then sought the intervention of the federal government to provide some surety in relation to the land at Framlingham. To my knowledge — and if I am wrong, I stand corrected — this is the one and only intervention that has occurred where the commonwealth has sought to enact a specific piece of legislation over this parcel of land.
The history of the struggle of the Aboriginal community around these two parcels of land is a rich and extraordinary one. I invite members who are interested to understand what that struggle has meant for both the Framlingham and the Lake Tyers communities to avail themselves of the wonderful services of the parliamentary library, because there are some excellent publications available to us there which flesh out how important land is. I have spoken about this in the past. The minister has the honour of representing the Aboriginal community in this house, and I had that honour as well. If there was one lesson I learnt as Minister for Aboriginal Affairs — and I think the minister would agree with me — it was to understand the absolutely fundamental importance of the relationship of Aboriginal people to their land. It is the base position. Everything above that frankly is an add-on. When we talk about the crucial issues around closing the gap and all those issues around life expectancy, all those fundamental issues we have worked upon in a bipartisan way — and collectively we have done some very good work in this space — there is still an unresolved yearning there about how to go about resolving the question of land.
When you dig down into this, the aspirations of Aboriginal people in relation to land are pretty modest. They relate to the fundamental right to be on their land and use it for customary purposes — ceremonies and so forth — but also to opportunities for economic development. This must be the next step.
We have a way of resolving outcomes for Aboriginal communities in a non-litigious way. We know how to do that. I say with some pride that the previous government led that through the work of my colleague and friend Rob Hulls, the former Attorney-General.
Together we did some very good work in that area, and I think this government will continue down that path, which provides a clear framework and a clear way of going forward in addressing these questions. When you boil them down, these aspirations are modest. People are not talking about taking over the state; people are saying, ‘We want to be in a situation where our cultural and long historical connection to our land is acknowledged. We want the opportunity to use those lands and as the next step in that process look for opportunities to reap some economic benefit, such as employment, from those lands as well’.
I must say that from my conversations with the community at Framlingham and the feedback I have had in relation to Lake Tyers I find that these communities are now starting to use their land in an economically strong way, and that is fantastic. I have read the newsletters that have come to me from Framlingham, and they are fantastic.
They talk about not only ensuring that the basic infrastructure is in place but also about the extensive farmlands attaching to Framlingham, and also to Lake Tyers, where communities are using the land for economic development. There is a wonderful story of some cattle raised in Framlingham — purely through a fluke of the market, as I understand it — being sold into the market and bought by the community of Lake Tyers. That is a pretty amazing thing. It is a fluke of the market, but it is a terrific thing.
The communities are using their lands in a very productive way, and, crucially, people are being employed. Economic development and using the land to achieve a productive outcome are fantastic. We see these land justice settlements occurring not just in terms of cultural outcomes but also where communities can look at their lands and say, ‘Okay, what else can we do with this?’. Ultimately we have to acknowledge the fundamental link Aboriginal people have with their land as well as the opportunity that comes from it.
The greatest opportunity we can offer people is through closing the gap. That means keeping people in schools and giving them a pathway to employment and the dignity that comes from that, including housing and all the associated activities that attend on employment. Ultimately I would expect bipartisan support for that outcome.
I want to finalise my contribution with a couple of points of concern. Obviously the minister has the power to appoint the administrators of the trusts and also a number of trust members. It has been brought to my attention that we must ensure that the structure of this trust is such that not only the administrator but indeed all people involved in — for want of a better term — the boards of management of these two trusts have a strong understanding of Aboriginal culture. That is really fundamental to the success of this structure in the short term — and I ask the minister to note that I said ‘in the short term’.
The opposition believes there is no point incorporating people in these structures who simply have no relevant background, no cultural sensitivity, no cultural training and no real understanding of these communities. They are isolated communities quite a long way from built-up towns, and there are particular dynamics that attach to them.
It is absolutely crucial that none of us goes down there in a paternalistic way and says, ‘Here we are to help you poor people’. That should never be what this is about. This has got to be about saying, ‘How can we assist in enabling you to strengthen as a community and ensure that this structure is one that is not in place permanently but that sees you make the transition to full and complete governance in your own right?’. That ultimately has to be the message of this piece of legislation.
It is in that context that I say the opposition has some concerns about how appointments to the board will be undertaken in terms of the consultative process but also about the appointment of board members from the community as well as by the minister. That is absolutely crucial to the success of this structure going forward. If it does not have support at a community level, we know what the outcome is going to be. I acknowledge that it was the intervention of the Labor government in 2004 which put in place this structure for Lake Tyers. All the representations made to the Labor government simply meant that any person with good intentions could not sit back and say, ‘Good luck, Lake Tyers. Do your best’.
It was a community that was completely dysfunctional, and any semblance of governance had broken down. It was my colleague in the upper house the Honourable Gavin Jennings who intervened, and I rolled that over in my time as Minister for Aboriginal Affairs, because we felt that the journey had not been completed.
As a Parliament at some point we must acknowledge that that journey needs to be completed and that these communities need to have the opportunity to flourish in their own right. We now have a long historical perspective of the lengthy struggle by Aboriginal people to gain some rights. There were also the commonwealth interventions that occurred at Framlingham and indeed an acknowledgement of what have been, particularly at Lake Tyers, some very difficult issues around displacement of people from their community.
This legislation provides an opportunity for us to take a leadership role in a bipartisan way so we can be in a space where we are able to say that we can see a pathway forward which will see not administrators in place but a healthy self-governing community in its own right.
I simply submit to the minister that this trust structure was right for 1970 but it is not right for 2013 moving forward. Conversations between the government and the opposition around Aboriginal affairs are always conducted in a spirit of goodwill, and it is in that context that I flag that opposition members will seek when the bill is between houses to look at the question of inserting a sunset clause, which is currently not a part of the bill. A sunset clause could be put in place so that there is a clear and unambiguous statement by this Parliament that in whatever number of years — I do not seek to prescribe what that will look like — we would seek to move from the existing structure towards a different situation for the communities of Lake Tyers and Framlingham.
It is in that context that we would look at addressing the questions of the longer term aspirations of both those communities in terms of their future going forward.
In the spirit in which we have always tackled these matters I put to the minister that I, on behalf of the opposition, am prepared to lend my time and support to any process through which, moving forward, we can address the issue of providing a structure for those two communities that is a contemporary model. It should be not a 1970 trust structure but a 2013 structure going forward. I believe this will be a better way for us to deliver outcomes for Aboriginal people in this state. Opposition members want to do this together with the government in a bipartisan way. I look forward to the response of the government to that proposal.