Traditional Owner Settlement Amendment Bill 2016

October 11, 2016

Second reading

I rise to speak in support of the Traditional Owner Settlement Amendment Bill 2016.

This bill amends the Traditional Owner Settlement Act 2010, and it recognises traditional rights to land as opposed to the native title rights that had been provided for under the commonwealth Native Title Act 1993.

In speaking on this bill, I would also like to acknowledge the traditional owners of the Kulin nation, where we stand today, and the Yorta Yorta and the Bangerang people, who live within my electorate and who have lived there for so very long.

There has been a journey when it comes to native title and traditional land rights, and in my lifetime that journey began with the passage of the Aboriginal Land Rights (Northern Territory) Act 1976. When I finished my law degree I moved to the Northern Territory, where I worked for the Attorney-General's department for several years. I had the great privilege of being involved in some of the first native title claims under that Northern Territory legislation. It was a great privilege to be part of a caravan of lawyers travelling throughout the territory, listening to the evidence of the traditional owners, hearing their stories of the land and of their connection with the land and being part of a process whereby so many grants of land were made under that legislation during the course of the years that followed. Indeed, a very large part of the Northern Territory is now subject to Aboriginal land rights under that legislation.

That was the 1970s, the beginning of that journey, and by the 1980s the Mabo case was well underway. It took many years. It took until 1992 for the High Court to finally determine the massive change in our law which occurred when they tossed out that notion of terra nullius. They found that sovereignty had not delivered complete ownership of the land to the new settlers, and it was on 3 June 1992 that the High Court judges upheld the claim and ruled that the lands of this continent were not terra nullius — or land belonging to no-one — when the Europeans arrived. The High Court recognised that the Indigenous people had lived in Australia for thousands of years and enjoyed rights to their land according to their own laws and customs. It held that they had been dispossessed of their land, piece by piece, as the colony grew and that that very dispossession underwrote the development of Australia as a nation.

By the early 1990s we had the passage of the Native Title Act, and that was really in response to the Mabo case. Prime Minister Paul Keating introduced that legislation into the Parliament in direct response to Mabo, and that legislation introduced to the mainland, as opposed to the island that the Mabo case had been focused on, that notion of native title. It was an entirely new and unknown notion to us really, and it was a very complex piece of legislation.

The very first native title claim in Australia was the Yorta Yorta case, and the area claimed included the whole of my electorate. It ran from Deniliquin in southern New South Wales across to Jerilderie, down to Chiltern, towards Beechworth, down to Seymour and back around, including Echuca but not as far as Bendigo. It was a very large area, and the claimants claimed sole and exclusive possession of the land and the waters.

That was the extent of the claim, and I can tell you that in our community at that time that was met with some horror, because there was such a lack of understanding of what the Native Title Act would mean to communities and there was simply no law around native title. The only recognition there had been up to that date was the Mabo case. To be part of a community where this was the first time such a claim had been made was very disturbing for most people. There were very large meetings held when the National Native Title Tribunal first came to town. People were fearful that their farms would be taken from them or that their irrigation water would be taken off them.

To get people to the point where they could understand that it was really only Crown land that had been claimed, not freehold land, was actually a difficult task and it took a long time. One of the things about Crown land, of course, is that it has always been leased out to adjoining landowners. The water is all entirely used and consumed in irrigation in our area, and the land is fully farmed. Crown land down to rivers is used for grazing licences and other purposes, so there was certainly a fear of what native title would mean if it were granted.

At that time the Kennett government decided to oppose the case, and a very vigorous defence of native title took place during the course of the next 12 years. During that time I acted for a number of parties in that case, and I had the great privilege, for 115 days, of hearing the detailed evidence that was taken from the elders throughout a range of communities — Yorta Yorta people, Bangerang people — and hearing that long history of what had happened since white settlement.

The Aboriginal claimants had to show a continuing connection with the land, a task that was too great in the end. The other side claimed that all native title had been extinguished, and that was the case that was run predominately by the Victorian government and those opposing, or appearing in, the case. In 2002 the High Court finally decided that there were no native title rights, and the Yorta Yorta case, having been the first case in Victoria, was unsuccessful in having native title granted.

I have often reflected over the years that it was a great pity that that was the first case that was brought in mainland Australia, where it was probably the hardest of all places in Australia to establish native title — the most closely settled, settled for so long and with so many other established rights within it. Had that claim been brought in northern Queensland, Western Australia or the Northern Territory, in circumstances where establishing that ongoing connection would have been so much more possible, it might have provided an opportunity for land rights and native title to be established. Indeed Aboriginal land rights in the Northern Territory had already been recognised, so that continuity was much more likely to be successfully shown.

Native title persisted throughout the early 2000s, and Victoria has so many native title claims before it. It was in response to this situation that the Traditional Owner Settlement Act was brought to pass, because if native title was not going to be recognised in Victoria, the Victorian government was certainly keen to see that there was some sort of recognition of Aboriginal rights to land. The Yorta Yorta cooperative management agreement was the first Victorian agreement reached under the legislation, and it recognised that the Yorta Yorta people should become formally involved in the management of the land and waters within the area that they had previously claimed. One of the areas is the Barmah National Park, and that has a joint management committee.

It is hoped that so many of these areas in time will provide an opportunity for Indigenous economic advancement. To date, that has not happened. I think there is a real appetite for that developing in our community, and I hope that with the help of government some of the tourism and other opportunities for economic development will proceed.

This bill before us today is really just an extension of an ongoing story. It is always complex legislation when you deal with land, with entitlements and with title. These amendments provide for a new definition of public land, for grants of Aboriginal title and for changes in relation to land use activities and natural resource agreements. I do not doubt that over time there will be many more amendments to this legislation, because it is a growing and changing area of law. There are not many textbooks in this area of law — very few, in fact. I think we will, over the next 100 years and beyond, see great developments in the area.

The changes that have occurred through all of these events that I have described, I think, have changed our attitudes to our Indigenous community and the way we treat them, the way we respect them and the way we acknowledge them. We see that in Parliament. For these reasons, I support the bill.

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  • Suzanna Sheed
    published this page in Parliament 2018-08-30 12:17:28 +1000