2016-10-12
Ms PENNICUIK (Southern Metropolitan) — The Melbourne and Olympic Parks Amendment Bill 2016 changes the reservation status of Crown land in relation to a pedestrian and cycling bridge from Birrarung Marr to the Rod Laver Arena. The bridge will be Tanderrum Bridge, which is already half constructed. It is unusual that the status change of the land is happening after the construction works have commenced, but that is where we are.
The main issue the Greens have with the bill is the lack of consultation with the traditional owners of the land and that there was no mention of them in the minister's statement of compatibility. The statement of compatibility states with regard to this issue of property rights that:
Section 20 of the charter provides that a person must not be deprived of his or her property other than in accordance with law.
And it goes on to say:
However, while new section 30FA will revoke existing reservations for the Crown land in question, it will not operate to deprive any person of any known proprietary rights that are held in relation to the land. As there are no known property rights held by individuals in the land that will be the subject of the bill, the bill does not limit the right protected under section 20 of the charter.
When the bill was tabled the Greens were concerned by the statement of compatibility, which did not address the Aboriginal cultural rights and stated that there were no property rights affected by the bill. Section 20 property rights are broader than personal property rights. They include traditional rights and statutory rights. The Wurundjeri people have lodged a threshold statement under the Traditional Owner Settlement Act 2010 with the native title unit in the Department of Justice and Regulation. Effectively this means that the Wurundjeri have lodged a claim for recognition and settlement with the Victorian government.
Birrarung Marr is an important place for the Wurundjeri people. It is registered as a place of Aboriginal cultural heritage sensitivity as described in the Aboriginal Heritage Regulations 2007. The minister's statement also fails to address section 19(2) of the charter in relation to distinct cultural rights of Aboriginal persons, which is triggered for consideration by the existence of the Aboriginal cultural heritage sensitivity overlay of the subject land.
While we do not speak for the traditional owners, the Greens did consult with Native Title Services Victoria as stakeholders in the bill. They in turn consulted with the traditional owners. We are informed that the Wurundjeri have not received notice of this bill from the government, let alone been consulted. The Wurundjeri claim area includes all of the land that is the subject of this bill. An outcome of the claim could be a land use activity agreement to be negotiated with the state government, which would afford the Wurundjeri procedural rights, such as the right to be notified and consulted where a change in the status of the land in the agreement area is proposed.
In these circumstances there is a reasonable expectation that the Wurundjeri would be afforded the same rights that they would enjoy should a land use activity agreement be in place over the area. This expectation is consistent with the government's practice in relation to the Taungurung traditional owners, who have lodged a threshold statement but have not yet finalised the land use activity agreement and have been afforded the same rights as they would enjoy under a land use activity agreement.
We asked Native Title Services Victoria whether, in their view, the bill does anything to affect the claim or undermine the potential outcome. They advised that both the construction of the bridge and the land status changes made under the bill to facilitate future management of the land do affect the Wurundjeri claim, as together this results in a loss of amenity of traditional owner rights and interests.
In anticipation of this debate the Greens sent a request for information to the minister's office. The minister's office response was helpful in that it detailed the consultation that has taken place with the traditional owners in relation to the building and the naming of the bridge. It also included some notes on how the statutory obligations of the government under the Aboriginal Heritage Act 2006 were discharged in relation to the cultural heritage overlay.
However, it also included advice that despite the overlay the land is no longer considered to be of cultural heritage sensitivity and native title has been extinguished. The native title has not been extinguished. This always was and always will be Aboriginal land. The Victorian Parliament acknowledges the traditional owners of the land at the opening of each sitting week. Even if native title had been extinguished, it would not be a relevant factor in the Wurundjeri claim for recognition and settlement. The Traditional Owner Settlement Act does not recognise the extinguishment of native title as a barrier to traditional owner rights and interests under the act. Consultation under the Aboriginal Heritage Act with respect to the naming of the bridge is not the same as consultation triggered by the existing Wurundjeri threshold statement. While the Greens will not oppose the bill, we ask that the government address these issues with the traditional owners whenever they can, because the bill is here before us now.
During the debate in the lower house the government speakers disputed what I have just said about the Greens' view about the lack of consultation because the government consulted on the building of the bridge and the government consulted on the naming of the bridge. This bill, however, is about rezoning Crown land and the control and management of that land. The problem is the failure to consult on rezoning and management of land, which may undermine the negotiations that are currently taking place between the government and the Wurundjeri people. The government did not consult. It also did not notify the traditional owners about the bill or include any reference to the traditional owner rights in the statement of compatibility.
The government has an inconsistent record with Aboriginal rights. The Premier's department says it wants a whole-of-government approach, but when it comes to legislation the Attorney-General's department seems to be the only department that does follow that. The Traditional Owner Settlement Amendment Bill 2016 is an example of the Attorney-General's department's approach, because the consultation was meaningful and it led to a bill that includes measures to increase self-determination, but as you get further from the centre the connection with the whole-of-government approach falters and we start to see bills that undermine those rights. We need to connect the values with the action and make sure that these types of lack of consultation over bills that affect our Aboriginal people in Victoria do not occur in the future.