As the celebrations marking 25 years of the Mabo decision died down, the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 quietly passed in the Senate on June 14, with the only opposition coming from the Greens.
The amending legislation effectively negates the Federal Court ruling of February 2 that all native title claimants had to sign off on an indigenous land use agreement (ILUA) for it to be registered.
The amendments have been touted as “Adani” amendments as they enable registration of the ILUAs currently negotiated by Adani covering the Carmichael mine in Queensland’s Galilee basin. These ILUAs secured majority, but not consensus agreement.
Responding to the amending legislation when it was introduced in February, spokesperson for Wangan and Jagalingou (W&J) Traditional Owner Council Adrian Burragubba said: “The registration of Adani’s sham land use agreement is not being held up because of the decision in Western Australia this month. It’s being challenged by us because it was engineered through rent-a-crowds, deceit and dishonest tactics.
“We will continue our action in the Federal Court to have it struck out, regardless of what dodgy deals are tried on in Canberra to prevent justice.”
The changes to the Native Title Act are a hasty “fix” to ameliorate mining interests and have not undergone a meaningful consultation process with indigenous communities. The implications are significant and seriously undermine Native Title.
“The Native Title system needs an overhaul for failing to give due consideration to the rights of Aboriginal and Torres Strait Islander people. Any reform should involve full consultation, not occur in a piecemeal and chaotic way because of a panic generated by the mining industry,” Burragubba said.
National co-director of the SEED Indigenous Youth Climate Newtwork Larissa Baldwin said on June 13: “George Brandis’s changes to the Native Title Act are designed to help out Adani and their mining mates, but will have far reaching consequences for our people and future generations.
“When the government tried to rush through the changes without consultation, we delayed the vote. Since then, nothing has changed. There has been no further consultation with Indigenous communities.
“A poll we commissioned found that more than half of Aboriginal and Torres Strait Islander people hadn’t heard about the changes to Native Title and 81% were concerned about changes that would benefit the mining industry.”
In an opinion piece, Tony McAvoy, an Indigenous QC, said: “The problem with this approach [majority rather than unanimous approval] is that in many native title claims, the claim groups have needed to ensure each family group or clan is represented within the applicant/registered claimant to protect the differential interests of that family or clan. This is particularly so where one large family or clan outnumbers the other groups, as is often the case.
“On the amendment bill as presently drafted, that large family or clan or a group of families or clans could win a majority vote at a meeting to approve a mine, for instance, over the lands or waters of another clan or over sites for which another family has special rights and responsibilities.
“Given the Federal Court acknowledges and insists upon evidence recording the differential interests of the clan groups in any Native Title claim area in order to recognise the existence of Native Title, the model of approval and execution of ILUAs proposed by the government undermines the Native Title rights the Act was established to protect.”
The Greens have opposed the amending legislation from the outset. Speaking in the Senate on June 13, Greens Senator Nick McKim dismissed the amendments as an “absolute crock” that ride roughshod over the W&J people.
“This has got nothing to do with Native Title, and everything to do with getting up a massively polluting mega coalmine … that is going to, over time, kill the Great Barrier Reef," he said. “You can have one or the other — Adani or the Great Barrier Reef — but you cannot have both.”
The traditional owners of the Galilee Basin, the W&J Family Council, said the amendments erode the legacy of Native Title campaigner Eddie Mabo.
"It is clear from recent polling that Aboriginal people have not been informed about these changes or consented to them," it said in a statement on June 13.
Youth spokesperson for the W&J Family Council Murrawah Johnson said in the statement that the amendments were an abandonment of Indigenous rights in favour of a giant international mining corporation.
"Settling Native Title amendments has become synonymous with looking after Adani's interests, not about good lawmaking for Indigenous people," she said.
"Adani wants the major parties to enable them to take away our rights to say no, to mount legal challenges and resist their destruction of our lands and waters."
The W&J Council has pledged to keep fighting Adani's proposed Carmichael mine through the courts, saying it would destroy vast tracts of Indigenous lands and be ruinous for the environment.
The W&J Council currently has four separate legal actions against Adani underway in the Queensland Federal Court.
Labor’s Indigenous Affairs spokesman Pat Dodson said: "I want to reiterate that for Labor the amendments to the Native Title Act in this bill have always been about land rights, not mining rights.
"I wish that were the case for the government. Many of the senior members have made it clear the bill is about the Adani Carmichael coalmine.”
However Pat Dodson and other Labor Senators may gild the lily, their vote in effect favours big mining corporations over traditional owners. It undermines Native Title and rejects community concerns over the devastating impact of mining on climate change.