RMIT Thought Leadership: Making Native Title Consent Laws Matter

September 28, 2021

Good Afternoon. I begin today by acknowledging I am speaking from the land of the Turrbal and Jagera peoples and thank them for their strong and continuing stewardship. I especially extend that respect to Aboriginal and Torres Strait Islander peoples who are participating in this discussion today. Including Senator Lidia Thorpe, Jolleen Hicks, Associate Professor Shelley Marshall and Gheran Steel.
As Deputy Chair of the Parliamentary Joint Committee on Human Rights I, and all members of the committee, have the onerous task of scrutinising legislation through a human rights lens once it is introduced to the Parliament. The committee notes any limitations on human rights and whether they are permissible and proportionate. It is definitely not always a perfect system.  Some legislation has already been passed before the committee tables its report into the legislation. But nonetheless, it is a key scrutiny committee and does important work in ensuring that human rights continue to be respected and protected in Australia.
A good example of the work of the Human Rights committee is reflected in the committee’s consideration of the National Radioactive Waste Management Amendment (Site Specification, Community Fund and Other Measures) Bill 2020. The committee considered the bill and noted that it would enable additional land to be acquired to allow for the expansion of the proposed radioactive waste management site or to provide all weather access to the site. As the site undoubtedly will have cultural significance for Aboriginal and Torres Strait Islander people, the committee considered this was concerning because native title rights or interests may be extinguished by these provisions. The committee considered that the bill should be amended to make clear that native title cannot be extinguished by the provisions. 
In the Parliamentary debate that followed, the Minister referred to the committee’s human rights concerns and introduced amendments to the bill reflecting the committee’s recommendations to protect the native title rights. Again, I acknowledge this was not a perfect outcome, but it helped to bring at least one element of fairness to the process.
The topic of today’s forum is interesting - “Making Native Title Consent Laws Matter”. There has been a lot of discussion about ‘consent’ this year - mostly in a different context entirely. But it started with some videos about milkshakes put out by the Government to teach teenagers about consent. They were almost immediately taken down because they were so confusing. So, it’s hardly surprising that the Government doesn’t fully understand its own native title consent laws.
The Australian Oxford Dictionary defines ‘consent’ as -
Voluntary agreement; permission; compliance.
The same dictionary also notes that ‘informed consent’ means
Permission granted in the knowledge of the possible consequences.
Of course, in the context of native title laws, when we talk about consent, we are talking about ‘free, prior and informed consent’ of the collective, that is, the free, prior and informed consent of the community of First Nations people.
That is a difficult concept, and it requires appropriate processes be strictly adhered to. Without an open and transparent process, the legitimacy of the ‘consent’ will be undermined. Without an open and transparent process, First Nations people will be dispossessed of their rights, all over again.
Sadly, we have seen the tragic results of insufficient processes for consent which have led to exactly that – First Nations people being dispossessed of their rights.
The Puutu Kunti Kurrama and Pinikura (PKKP) peoples of the Pilbara in Western Australia lost 46,000 years of their culture and history when Rio Tinto destroyed the Juukan Gorge.
The Joint Standing Committee on Northern Australia has been tasked to investigate the causes and consequences, and its wider ramifications for the protection of Indigenous heritage.
An interim report has been tabled by the committee.  The cross-party majority interim report by Labor, Coalition and Greens members of the committee, made several findings including, relevantly for the topic today -

  • The Section 18 administrative process approving the consent was seriously flawed. Clear evidence as to the significance of the rock shelters was ignored, mistakes in the application forms were missed, and the PKKP and key consultants were not contacted by state government officials for their views on the application.
  • Communication between Rio Tinto and the PKKP failed, with the two sides remaining largely oblivious to each other’s plans and concerns until it was too late to save the site.

Clearly a failure of free, prior and informed consent.
In fact, members of the PKKP gave evidence to the Parliamentary committee that they did not understand the terms of the agreement they signed. Obviously, that cannot be free, prior and informed consent. That is entirely something else – sounds more like a boondoggle to me.
As my colleague, Senator Pat Dodson, a member of that committee said -
“the uniqueness of native title is rapidly being lost, the concept of collective ownership of land and collective decision-making is being rapidly taken away from the meaning of native title.”
The committee’s interim report was scathing of Rio Tinto. They said -
“Rio Tinto’s conduct reflects a corporate culture which prioritised commercial gain over the kind of meaningful engagement with Traditional Owners that should form a critical part of their social licence to operate.”
The committee made seven recommendations in its interim report to ensure that the tragedy of Juukan Gorge is not repeated.
From a human rights perspective, consent is tied to the right to self-determination.
The right to self-determination is the fundamental human right upon which free, prior and informed consent is grounded. It is a fundamental principle of international law enshrined in article 1 of the Charter of the United Nations; in Article 1 of the International Covenant on Economic, Social, and Cultural Rights; and Article 1 of theInternational Covenant on Civil and Political Rights; as well as in other international human rights instruments.
The right to self-determination is a right of 'peoples' rather than individuals.
The United Nations Human Rights Council said in 2018: “Free, prior and informed consent is a manifestation of indigenous peoples’ right to self-determine their political, social, economic and cultural priorities. It constitutes three interrelated and cumulative rights of indigenous peoples: the right to be consulted; the right to participate; and the right to their lands, territories and resources. Pursuant to the Declaration, free, prior and informed consent cannot be achieved if one of these components is missing.”
Our nation has an obligation to consult with Indigenous peoples in relation to actions which may affect them. In determining whether any limits on the rights to culture and self-determination are permissible under international human rights law, it is necessary to consider the extent to which relevant groups have been consulted.
These international obligations should protect the right of Indigenous peoples to influence the outcome of decision-making processes affecting them, which is 'not a mere right to be involved in such processes or merely to have their views heard'.
The Interim committee report on the Juukan Gorge acknowledged the importance of federal laws including the Native Title Act 1993, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and Environment Protection and Biodiversity Conservation Act 1999. These legal frameworks balance development and wealth creation and economic opportunities alongside protecting the world’s oldest continuing culture. Unfortunately, this balancing act has more often than not been tilted against First Nations people.
The committee acknowledged that we need to strengthen heritage protection at a Commonwealth level and the committee will canvas options to achieve this in their final report. I look forward to hearing the committee’s recommendations for reform when the report is tabled.
Labor has committed to protecting First Nationals cultural heritage, the oldest continuous cultures on earth, in its 2021 National Platform.
The Uluru statement called for a fair and truthful relationship with the people of Australia and a better future for First Nations children based on justice and self-determination.
In NAIDOC week last year, Linda Burney, the Shadow Minister for Indigenous Australians confirmed that Labor’s commitment to the Uluru Statement from the Heart is rock solid. Voice, treaty, truth are the pillars of Labor’s commitment.
The first step to fulfil the promise of the Uluru Statement is to establish a Makarrata Commission to oversee a national process for Treaty and Truth-telling. I am very proud that Labor has already announced an Albanese Government will make this a priority.
In addition, Labor is committed to a referendum on a constitutionally enshrined Voice to Parliament in the first term of an Albanese Government, fulfilling the promise of the Uluru Statement.
We are indeed fortunate to live amongst the oldest continuing culture in the world. All Australians have a responsibility to ensure it is protected.