Yes posters at a polling station (Image: AAP/Jono Searle)
Yes posters at a polling station (Image: AAP/Jono Searle)

What was claimed

If the Voice to Parliament is implemented the government will no longer have to seek approval from Indigenous people about developments on their land. 

Our verdict

False. The proposed constitutional amendment has no impact on the legal rights of Indigenous peoples in relation to their lands.

It is being claimed the government will no longer have to seek approval from Indigenous peoples for developments on their “tribal land” if the Voice referendum is successful.

This is false. Experts told AAP FactCheck that the outcome of the October 14 referendum will not impact the legal rights of Indigenous peoples in relation to their lands in any way.

It appears the claim is based on a misunderstanding of a section of the Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 Bill’s explanatory memorandum.

The claim appears in a viral Facebook post (archived here) that lists seven supposed facts about the Voice.

The second point claims that if the Yes vote succeeds, the government will no longer have to seek approval from Indigenous peoples for developments on their land:

Currently the government must seek approval from Originals for ALL developments on Tribal lands,” it reads. “This will no longer be an obligation. Section 15 in the proposed Constitutional Alteration notes: 15. Finally, s 129(ii) would not oblige the Parliament or the Executive Government to follow a representation of the Voice.

The post does not explicitly state what legislation relating to Indigenous land the Voice will alter or supersede. However, experts told AAP FactCheck the constitutional amendment will not amend any laws, be they federal, state or territory, that set out government obligations in relation to Indigenous lands.

Emeritus Professor Tim Rowse, an Australian Indigenous and colonial history expert at the University of Western Sydney, said such laws can only be changed by parliaments, not by a referendum.

He said the Voice amendment would add a section to the constitution, but have no impact on existing legislation in any jurisdiction.

“If these words were in the constitution they would make no difference to any of the existing government obligations (set out in laws passed by the nine legislatures in Australia) to ‘seek approval’ for developments on tribal lands,” Rowse told AAP FactCheck in an email.

“In short, someone is making this stuff up, or they are simply ignorant of the difference between constitutions (which can be altered by referendum) and statutes (which are made and altered by parliaments).”

Associate Professor Kate Galloway, a legal expert at Griffith University, said the Voice would be allowed to make representations on matters affecting Aboriginal and Torres Strait Islander peoples. 

But she said it would have no impact on existing laws such as the Native Title Act 1993.

“It does not have any bearing on native title whatsoever,” Dr Galloway said.

Professor Alexander Reilly, public law and policy research unit director at Adelaide Law School, said that the “Section 15” referenced in the post wasn’t from the actual text of the proposed constitutional amendment.

Instead, it is a section of the bill’s explanatory memorandum, which refers to limits on the Voice body, rather than Indigenous peoples in relation to their land.

“The inclusion of a Voice has no effect on existing or future Native Title rights, or on the existing rights of groups to advocate on Native Title issues,” Dr Reilly told AAP FactCheck in an email.

“The Facebook post has misinterpreted s 129(ii) which …  identifies the limits of the Voice itself.”

AAP FactCheck has previously debunked similar false claims relating to the Voice and land rights, examples here, here and here.

The verdict

The claim the government will no longer have to seek approval from Indigenous peoples about developments on their land if the Voice is implemented is false.

Experts told AAP FactCheck that the proposed constitutional amendment will not impact the legal rights of Indigenous peoples in relation to their lands in any way.

The claim cites a section of the Constitution Alteration Bill’s explanatory memorandum. However, this is concerned with the limits of the power of the Indigenous Voice.

False — The claim is inaccurate.