TRADITIONAL OWNER SETTLEMENT AMENDMENT BILL 2012

11 December 2012 ASSEMBLY

 

TRADITIONAL OWNER SETTLEMENT AMENDMENT BILL 2012

Second reading

Mr WYNNE (Richmond) — I rise to make a contribution on behalf of the opposition in relation to the Traditional Owner Settlement Amendment Bill 2012. In doing so I note that, quite literally at the last moment, an amendment has been provided to us by the Attorney-General.

Unfortunately I was not aware this amendment was going to be circulated, but I accept the assurance of the Attorney-General that this is merely a technical amendment that has arisen as a result of the scrutiny of this bill by SARC (Scrutiny of Acts and Regulations Committee). I just make the obvious point, however, that it would have been helpful to have known about it earlier than just now. Nonetheless, the opposition does not oppose this bill. I thank the department for the very thorough briefing provided to me a couple of months ago. The bill has been on the notice paper for an extensive period of time and we now have the opportunity to debate it. It was a very thorough briefing, as I said.

The members of the house who have a continuing interest in the question of justice for Aboriginal people know just how crucially important this bill is.

The Traditional Owner Settlement Act 2010 was an initiative of the previous government which put in place a structure by which Aboriginal people would have the opportunity to fulfil what in many cases are their very modest aspirations around land. If I learnt anything in the time in which I had the honour to be the Minister for Aboriginal Affairs, it was that one of the most crucial elements of reconciliation for Aboriginal people is the capacity for them to have their land.

In the state of Victoria the hurdle to achieving a native title settlement is virtually impossible to jump over because, as you see when you look at the history of the displacement of Aboriginal people in the state of Victoria and their removal to various settlements, Aboriginal people simply cannot get over the evidentiary high bar required for native title in this state. This is, as I say, because of the systematic displacement of Aboriginal people.

One of the crucial elements for getting over that evidentiary bar is the capacity to satisfy a court that the people concerned have had a consistent relationship with the parcel of land or area they are seeking to lay claim to. I know in particular of the great disappointment of the Yorta Yorta people in relation to what they regarded as a very substantial claim they had and the strong evidence they tendered in relation to it, including expert evidence. That claim was of course unsuccessful. Ultimately what that meant for so many of those people — and I had the opportunity to talk to many members of the Yorta Yorta over that journey — was a very profound loss. The capacity for Aboriginal people to have that association is absolutely fundamental to their health and to their welfare, and until we can resolve this conundrum which the High Court of Australia decision has placed in the way of those aspirations we will never complete the journey of reconciliation for Aboriginal people in this state.

That is not to say, however, that we cannot do other things, and that is why at the core of the Traditional Owner Settlement Act 2010 — and indeed at the core of Indigenous land use agreements reached by the previous government in relation to a number of claims made by Aboriginal traditional owners — there is an alternative pathway. It is an alternative pathway that does not extinguish the aspirations of Aboriginal people; and neither should it ever extinguish the aspiration of Aboriginal peoples that perhaps one day they can achieve a native title settlement on their country.

That is important, and I acknowledge that this bill does not take away those rights. I will come back to that shortly. Why did we pursue that path? Because we understood — and I think this government also understands — that the immense longing and great need that Aboriginal people have to be able to express themselves through the ownership and occupation of their traditional lands is fundamental and, as my colleague the member for Northcote so eloquently put it, spiritual. It is fundamental, it is spiritual and it is about the health of these people in the fullest sense.

What we seek to do here is to make some amendments to the principal act and review a number of elements of it.

I want to pause to acknowledge that whilst we could not achieve an outcome that in its fullest expression would have satisfied the aspirations of the traditional owners, the Aboriginal people in the state of Victoria, I am very proud of the history and track record of our government in that we found a way through Indigenous land use agreements to at least partially satisfy the deep spiritual urge of Aboriginal people, and essentially that underpins the legislation.

The government, through this bill, is making several changes to the 2010 act, some of which are relatively minor and others are quite substantial. I acknowledge that when shaping most of these amendments the government consulted with Native Title Services Victoria and the Victorian Traditional Owners Land Justice Group regarding a template used for negotiations under the Traditional Owner Settlement Act 2010.

It is important when dealing with matters related to the Aboriginal community that you ensure you have had a proper, thorough and robust conversation with the relevant groups, and I am satisfied from the briefing that was provided to us by the Department of Justice officers and from my own conversations with the relevant groups that the nature of those conversations has been cooperative and consultative.

I come to this debate with a level of confidence that all the proper processes have been undertaken in relation to how the bill has been framed. However, there are three elements of the bill that we wish to canvass, and we seek some clarification from the government in relation to those. Hopefully if we cannot get some clarification in the debate tonight, we will have an opportunity to clarify a couple of these matters as the bill moves between the chambers.

The bill makes a number of changes to the act.

It amends the definition of ‘traditional owner group’, and, as I indicated earlier, provides that the grant of Aboriginal title in land is not taken to extinguish native title, which is a very important element; it enables the state to enter into a number of agreements in relation to things like carbon sequestration; and it includes additional authorisation for land use activities, including consent for the use and development of coastal land, a lease for a surf lifesaving association, a licence to construct any works on a waterway or bore and a carbon sequestration agreement. Importantly it adds additional activities within the definition of land use activities such as fisheries and aquaculture licences, classification of a wildlife reserve, proclamation of land under the Forests Act 1958, and preparation of a management plan for coastal Crown areas.

Some of these are quite important because a number of Aboriginal communities are very keen to work in partnership with government to achieve their aspirations for economic independence. This is one of the great debates raging across Australia — how do you empower Aboriginal communities to be economically sustainable in their own right? There are a number of examples of this. Those of us who follow these debates have seen the recent commentary by Professor Marcia Langton, a very powerful voice in this space, and Noel Pearson from northern Australia, both of whom are eminent thinkers in the Aboriginal community and very fine academics. They have thrown out the great challenge of how you marry up the capacity to be able to use land to achieve broader economic outcomes and sustainability for Aboriginal communities.

The circumstances are quite different in other states where there is native title, as I indicated earlier, but nonetheless we have to continue down the path of seeking a partnership between government and traditional owner groups to see where there are opportunities for economic development, for employment, for jobs and for long-term independence for Aboriginal communities.

This is really the next step. Above and beyond Indigenous land use agreements, recognising that native title is virtually an impossibility in this state, how can we go about having that conversation? How can we go about saying, ‘We have particular parcels of land here where there are opportunities for fishing, for a range of commercial-type outcomes’, or, as we have seen already, many very successful Aboriginal-run enterprises around tourism and so forth? How can we do more of this? How can we work hand in hand with the Aboriginal community to achieve the expectations that I think would be supported more broadly across this Parliament?

In that context there is one aspect of this bill that we as an opposition are concerned about, and that is that the

bill annexes parcels of land in alpine resort areas. In part the government has indicated its rationale for these parcels of land being annexed by this bill — that is, that there has been significant infrastructure put in place and investment made in these alpine ski and recreation areas and there is no need to continue to have the purview of the Traditional Owner Settlement Act 2010 resting over them.

The opposition interrogated that matter in the briefing with the department, and it is hard to see what the rationale for this decision is. People have put to me that it is to do with native title claims, recognising again that whilst you can pursue a native title claim, its potential for success is extremely limited.

But there is no reason you could not continue on the path of a land use settlement with the Aboriginal community which could be complementary to any of the activities, whether they be in the alpine resorts or any other parcel of land where a settlement has been reached between the state and its traditional owners. The government’s decision is inconsistent with how the legislation was traditionally drafted, and frankly the opposition cannot find an adequate justification for parcels of land in the alpine resorts being taken out of this legislation.

It seems to the opposition that there is a great opportunity to build an extraordinary partnership between the people who are operating at the alpine resorts, whether it be in the areas of skiing, recreation or tourism et cetera, and the traditional owners of those lands.

There are many significant Aboriginal sites located in and around those areas, and I know many of the traditional owner groups have talked about the capacity to harness some of that tourism in a broader sense so that whether people come to these areas in summer or in winter — they do not just come to go skiing and so forth — they have the opportunity to see some of the extraordinarily rich culture, artefacts, stories and spiritualism of Aboriginal people in those parts.

I think this is a short-sighted position by the government, and I hope it will perhaps reflect not necessarily on my contribution but in talking to Aboriginal people once this bill has passed and say, ‘Maybe we should reconsider our position going forward when it comes to annexing out alpine resorts in particular’, because the government’s decision does not sit well in terms of the spirit or application of this legislation.

The major groups that were consulted on this bill raised three major concerns. The first concern was in relation to defining a member of a traditional owner group as a person on whose behalf an Indigenous land use agreement is entered into. People represented by the signatories do not enter into an Indigenous land use agreement themselves; they authorise certain persons to execute it. Native Title Services Victoria has requested a change to this wording. My advice, albeit received some time back, concerning some overdrafting is that the government has since indicated to Native Title Services that this wording will be amended, and I have sighted correspondence to that effect from the Attorney-General.

The second amendment, as I indicated, relates to alpine resorts, and I have canvassed those matters reasonably thoroughly.

The third concerns an amendment that could potentially limit the Victorian Civil and Administrative Tribunal’s (VCAT) ability to determine the amount of community benefit that might arise out of a land use agreement. I understand that the government indicated that this was not the case. However, Native Title Services Victoria, which provides much of the legal underpinning for many of these groups, has requested clarification of this amendment to ensure that any payments will be treated as an offer to be considered by VCAT. Both of these amendments are relatively technical, but nonetheless both are of concern to Native Title Services Victoria and the land justice group. If we cannot get some clarity around each of those issues tonight, we will seek it from the government as the bill proceeds to the upper house. They are minor amendments, and the Attorney-General has indicated in his correspondence to the groups that he will satisfy one of them. If we can get some satisfaction around those two points, that would be very helpful.

Finally, I understand that the amendment put before us arises from considerations by SARC, and I accept the explanation of the Attorney-General that this amendment picks up a technical matter that has been indicated through the SARC review process. It is in that context that opposition members do not oppose this bill. However, we want to say to the government that whilst government members have chosen to exempt alpine resort land in relation to allowing the free expression of the will of traditional owners to have some say over how lands may be used in the future, we should never be frightened by the fact that, in my experience, the aspirations of Aboriginal communities in this state are very modest.

Aboriginal people want the opportunity to express their spirituality and to be able to go onto their traditional lands. They want to be able to bring their families onto those traditional lands, to camp there, to fish there, to trek there and to be able to reach some sort of reconciliation.

Many people have been robbed of that opportunity. They are not complete, and they will never be complete, until such time as they can be on their land — on the land of their birth, on the land of their ancestors — in a way that is not inhibited and in a way that says, and is acknowledged by this state as saying, ‘This is your land’. We reflect upon that as we remember former Prime Minister Paul Keating’s extraordinary Redfern speech, some 40 — —

Mr Nardella — Thirty.

Mr WYNNE — Thirty years ago — I nearly said 40. It was some 30 years ago at Redfern.

Mr Nardella — It was 1992.

Mr WYNNE — Twenty years ago! Paul Keating laid out part of that road map at Redfern. Part of that road map was to acknowledge the terrible wrongs done to Aboriginal people generation after generation. It is incumbent upon us as a Parliament to do our bit and to acknowledge that we have the opportunity, through legislation such as the Traditional Owner Settlement Amendment Bill 2012, to assist in righting that wrong, at least in part, for Aboriginal people, the traditional owners of land in the state of Victoria. Whilst Victorian Aboriginal people will never get native title — they cannot get native title in this state, as I indicated earlier — as a government and an opposition we can do a whole lot more in a bipartisan way to be part of that reparation to Aboriginal people.

It is not just about their land, but about an understanding and a journey that we can all go on together to say that we, as a Parliament and as a community, recognise that Aboriginal people were displaced, taken from their lands, and that terrible things were done to them. In some way we can make some of that reparation through Indigenous land use agreements and through saying to Aboriginal people, ‘We want to work in partnership with you because we understand that the spirituality and the intimacy of the relationship that you have with your land is so fundamental to your health and welfare going forward, and that we can be part of a journey with you that is about your economic development and that is about saying this is your land, we respect you, we respect your land, we respect your culture; how else can we be a part of that journey with you towards economic independence?’. If I have learnt anything about Aboriginal community it is that if you can settle this question of land, its ownership and the capacity for Aboriginal people to be on their land and to practise their spirituality, it will bring about immense healing.

We must continue on that journey.

I ask the government to reflect in the future upon exempting alpine resort areas from this legislation. As a former Minister for Aboriginal Affairs and now shadow minister I believe this is unnecessary. We can revisit this matter, but revisit it in the context of saying that we, as a Parliament, are open to this. We are open to understanding that when we are speaking about traditional owners of land in the state of Victoria we must in a bipartisan way do everything we can to achieve the aspirations of Aboriginal people. Ultimately we will be a better people for the fact that we can say that, within the legal limits that curtail us as a Parliament due to decisions that were made by the High Court, in the state of Victoria we have done everything we can do to ensure that the aspirations of Aboriginal people are achieved. We will be a better community for that, and the Aboriginal community will be better for that as well.

In that context I indicate that the opposition is not opposing the bill. We have raised a couple of technical matters upon which we seek some clarification — I suspect potentially to be dealt with while the bill is between the houses. I ask the government in the future to reconsider its position in relation to alpine resort areas and the exemption of those areas.