Warren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for Northern Australia and Indigenous Affairs) Share this | Hansard source

Firstly, let me acknowledge the contribution to this debate on the Native Title Amendment Bill 2006 of the previous speaker, my friend the member for Grey, whom I must say I disagree with partly because we are clearly not satisfied with these amendments. We think they should go a lot further, and we do not think they meet the need to amend this legislation properly and to meet the objectives the government says it is trying to set out for itself. I want to make a passing comment on the dog whistling of the member for Fisher. I do not think it was appropriate in the context of this discussion. The Mabo debate happened in 1993. He lost that debate, despite his position, and today he tried to reinvent it. I say that as a person who participated in that debate in 1993 and was part of the processes of government in 1993 which eventually got us to the native title legislation.

I note the member for Jagajaga commented on the role of Rick Farley and others. I too want to commend the role that was played not only by Rick Farley but by the then chairperson of ATSIC, Lois O’Donoghue, and a range of other people such as Pat Dodson and Noel Pearson—and too many others to mention—who were involved in discussions with government about the appropriateness of the legislation and what might go into it. Of course it was imperfect because it was subject to substantial debate in the Senate, and the length of that debate has been commented on. But it is worth reminding ourselves of some of the central objectives of the act. According to the preamble these included, firstly, to provide for ‘the recognition and protection of native title’ and, secondly, the establishment of ways in which future dealings and development affecting native title may occur so as to ‘ensure that native title holders are able to enjoy fully their rights and interests ... under the common law of Australia’.

Since 1993 there has been mixed success. There were substantial amendments made in 1998. The bill has been imperfect. It was imperfect then; it remains imperfect. And the current situation is still far from adequate. On recent figures, while 91 claims have been resolved—and this is a point which has been made and boasted about by the members of the government—there remain 600 unresolved. On average, claims are taking six years to be resolved. That, I think, highlights a real problem. We in Labor want to see claims resolved quickly, effectively and fairly. This is in the interests of all parties. Unfortunately, this has not been happening, and this government has taken far too long to do something about it. I think it is truly indicative of a government which has failed Indigenous Australians generally.

If the government was serious about improving the situation for Indigenous people it would do something to improve their position in relation to developers, to allow them to share equitably in mining developments and so on. Development which is handled responsibly and ethically has the potential to provide significant assistance to Indigenous Australians as well as to the wider Australian community. The key is involving them fairly in the process. To date this has often not happened, although I must say there are now some shining examples of cooperation between the mining industry in particular, and elements of the pastoral industry, with native title claimants and native title holders—and I commend those people for that. Generally speaking, of course, this has been done outside of any relationship with the Native Title Tribunal.

It is worth pointing out the observations of Ciaran O’Faircheallaigh, from Griffith University, who has done some considerable work on the issue of native title. In his article ‘Aborigines, Mining Companies and the State in Contemporary Australia: A New Political Economy or Business as Usual?’ in the Australian Journal of Political Science in March 2006, he wrote:

... while the Native Title Act has created opportunities for many Aboriginal people to engage with resource developers for the first time, federal policy and legislative and budgetary initiatives during the last decade have substantially weakened the negotiating position of Aboriginal peoples in dealing with [mining] developers.

He then says:

... in general, the legal, policy and institutional environment remains largely hostile to Aboriginal interests. In particular, legal and administrative aspects of the environment that are notionally politically neutral and objective are in fact highly politicised in that they systematically favour the interest of developers over those of Aboriginal landowners.

Just two weeks ago, on 30 January, early findings from O’Faircheallaigh’s latest research into land use agreements between Indigenous groups, mining companies and governments were released in the Australian. He comments that these agreements have failed to deliver significant outcomes for the majority of Indigenous people who signed them. Specifically, he believes that more than half of the agreements were either ‘basket cases that should never have been entered into’—and I note this was commented upon by the member for Jagajaga—or had delivered a few cultural and monetary benefits to Aboriginal people. This is the situation that has come to pass under the Howard government’s administration of Indigenous affairs. Indigenous Australians are continually being marginalised and not engaged in development opportunities when they otherwise might be, apart from where I say the initiative has been taken by the parties to come together outside of the formal arrangements that might otherwise be.

I think we need to look very seriously at the changes in this legislation. There is much in this bill which gives cause for concern. Specifically, the changes to the native title representative bodies and the claims resolution review are two facets which are highly flawed. Schedule 1 deals with the native title representative bodies. We need to understand—and those of us who have been engaged in this process for any length of time do understand—that native title rep bodies are essential to the effectiveness of the system and are key actors. They perform a range of statutory functions under the act, most notably lodging and progressing native title claims and dealing with future act notices. There are real issues about their resourcing which I know others have commented upon but which this government has failed to address. The changes proposed by this legislation are purportedly aimed at improving the effectiveness and accountability of native title rep bodies, but there is a great deal of concern about the effect that these changes will have.

It is worth noting that these concerns are being voiced by a variety of actors involved in the native title process, in particular the National Native Title Council, which is made up of the recognised representatives bodies around Australia, but also, I would add, by the Minerals Council, the peak mining group body. Under this bill there is no longer to be permanent recognition of native title rep bodies. This is to be changed to a system of periodic recognition of between one and six years, to be determined at the discretion of the minister. There are a number of problems to this. Firstly, there is the real potential for instability for the key groups involved in the native title matters—industry, government and native title claimants. The Minerals Council of Australia, significantly, was concerned at the prospect of one-year periods of recognition. The fact of the matter is that recognition on a temporary basis, such as that proposed, will cause uncertainty for all relevant groups as to who they may be dealing with at any given time. Further, there will be instability and uncertainty for the bodies themselves and, most importantly, for those whom they employ and those they work for and represent.

There is the possibility that short terms of recognition will impair the proper operation of these organisations. The shadow Attorney made the observation about staffing and talked about anthropologists. Let me make it very clear: if you are offering the prospect of temporary employment for short periods, it is unlikely that you are going to attract specialists who are in high demand into these organisations on a yearly basis. And it will affect the organisation’s ability to set long-term agendas in the employment of their staff, the leasing and renting of premises and infrastructure and the entering into of contractual arrangements with third parties.

The current arrangement, where bodies are funded on a yearly basis, is already uncertain enough as it is. The function performed by rep bodies is complicated and requires experience. I think there is real potential for this to be undermined by these changes. If the government wants these bodies to work more effectively and efficiently, they need to fund them better and properly. There is no additional funding going to native title rep bodies under this legislation, just as there is no additional money going to prescribed bodies corporate under this legislation. These changes will squeeze them harder. They are already overworked and underfunded. This has been recognised in a range of reports and academic articles.

In 1998 independent consultants commissioned by the federal government concluded that rep bodies would need to be allocated approximately double their existing levels of funding in order to perform their core statutory obligations. That was in the Love-Rashid report. This was also evident in the report Operation of native title representative bodies, which was handed down by the Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Account, which is now defunct, in March of 2006. The committee recommended that the Commonwealth immediately review the level of operational funding provided to rep bodies to:

... ensure that they are adequately resourced and reasonably able to meet their performance standards and fulfil their statutory functions.

The government expects much of native title rep bodies but delivers little to them at the same time.

The changes in the bill also expand the range of bodies that can become native title rep bodies. This is a concern because it shifts away from Indigenous involvement, and major warning bells arise out of this proposal. Item 5 of the amendments inserts a new section 201B(1)(ba) to the effect that a ‘company incorporated under the Corporations Act’ will qualify for native title representative body status. Under the current act, the minister is required to be satisfied that the native title rep body (a) satisfactorily represents native title claimants and (b) consults effectively with Indigenous people in its area. Under the amendments, these requirements are removed. The minister just needs to be satisfied that the native title rep body can perform its functions. This change shows a callous disregard for prospective Aboriginal involvement in the native title claims process and in rep bodies. It also demonstrates a failure to understand the wider role that rep bodies play. By virtue of their community representative nature and their ability to work successfully with Indigenous people, rep bodies are placed in a prime position to integrate native title activities, consultation processes, representative forums and agreement outcomes with other land related aspirations and activities.

Then there is the derecognition process. Under these changes, rep bodies can be stripped of their status in a way which is a major cause for concern. Currently, the minister cannot remove rep body status unless satisfied that the rep body is unlikely to remedy the relevant deficiencies that might have been identified by the minister or his department. Under the changes being proposed by government, the criteria for derecognition will be dramatically lessened. The minister will only need to be satisfied that the rep body is not ‘satisfactorily performing its functions’ or that there are serious or repeated financial irregularities. This is a dramatic reduction in what needs to be shown. Effectively, these changes bring in summary derecognition at the minister’s request. This change, and there are others in this bill like it, reflects a movement towards greater ministerial control and discretion.

This is a wider trend in Indigenous affairs in this country under this government. You only need to look at the recent amendments to the Aboriginal Land Rights (Northern Territory) Act and other activities the government is undertaking for proof of this. This government has no qualms in cutting out the need for informed advice, particularly from the Indigenous people most affected. It is a disturbing trend, and further alienates Aboriginal people from contributing to decisions made which affect them. The changes also reduce the period of notice required for the minister to remove the status of a rep body from 90 days to 60 days. Given the gravity of the matter, this change is difficult to accept.

There are also amendments which allow the minister to make changes to the geographical boundaries of rep bodies. Under the changes, a rep body can be required to administer a larger area, even against its wishes, where the minister decides that it can perform the functions of an adjoining area that does not have a rep body or where the adjoining area has a rep body but the minister thinks there needs to be a boundary adjustment. The government fails to realise that these boundaries were determined to reflect different cultural groups. They are reflected in rep body membership and other constitutional aspects. We should not proceed on this course. What is so odious about this particular change is that the minister has the power to order this without consent. This is an unnecessary and quite draconian measure. A preferable alternative would be to invite bodies to take up the area. Again, the time for boundary changes to take effect is reduced from 90 days to 60 days. The effect of this change means there is not enough time for proper consultation.

I am also concerned about the removal of the reporting requirement. Currently rep bodies need to prepare strategic plans and provide an annual report to parliament. Under the guise of reducing red tape the government is proposing to scrap this requirement. However, the bodies would still be required to give these to the minister through the Department of Families, Community Services and Indigenous Affairs. That is proper and as it should be. But what is being reduced is the possibility of parliamentary oversight of these bodies and the native title system. When these documents are not tabled in parliament, it removes the opportunity for them to be properly inquired into in the way they were previously when reports were tabled.

Then there is the issue of the claims resolution review and the shift to mediation by the tribunal under schedule 2. The main concern is the shift in emphasis from the Federal Court to the National Native Title Tribunal, and I note that the member for Jagajaga went extensively into this issue. The court has a proven track record in this regard. In contrast, the tribunal’s mediation performance has been a lot less effective.

The views of native title practitioners give some insight into the tribunal. Paul Hayes is a solicitor with experience working with native title in the Northern Territory, Queensland and New South Wales. In an article which he published titled the ‘National Native Title Tribunal: effective mediator or bureaucratic albatross? A user’s perspective’ published in the Indigenous Law Bulletin in 2002, volume 40, he observed that the track record of the NNTT in mediating claims is in serious question and he argues that there are many deficiencies in the way that they carry out that function.

The alleged inefficiencies of the tribunal are also borne out by the statistics provided in the Native Title Claims Review, the independent review carried out by Mr Graham Hiley QC and Dr Ken Levy. On 17 January 2006, of the 356 claims currently with the tribunal for mediation, 272—approximately 76 per cent—had been with the tribunal for more than three years, and 170—just under 48 per cent—for more than five years. The court has a much better track record in delivering results from mediation.

One perspective on the tribunal—and possible reform to it—is that offered by Hayes. He noted that the tribunal has not turned out as it was originally intended. This is because of the High Court’s decision in Brandy in 1995, which meant that most of its judicial function had to be shifted to the court. He wrote:

As a result of this reduction in the NNTT’s role, we are left with an unnecessarily bureaucratic and often gratuitous mediation body, whose mediation services could be performed by other more appropriate bodies.

Appropriate legislative reform would see the removal of the mediation functions of the NNTT and appropriate resourcing of NTRBs and the Federal Court to provide mediation as and when it is needed.

This is a view that I know is supported by many involved with the rep bodies. Then there are also the questions raised about the constitutionality of this proposal.

In coming to the conclusion of my contribution, there are various compulsive powers proposed for the tribunal in the bill to accompany its role in mediation. These include the power to compel parties to attend mediation and produce documents, and to report a party for not acting in good faith—and the relevant Commonwealth or state minister and, depending on the party, perhaps a legal professional body or court will decide the consequences for this breach. These ‘teeth’ given to the tribunal are harsh, oppressive and contrary to the idea of mediation. This is not the way to improve the native title system.

There are proposed changes to the prescribed body corporates under schedule 3. This relates to issues including consultations requiring PBCs. Consultation will only be compulsory where it involves surrendering native title rights and interests in land or waters. We support these changes; they stand to make life easier for PBCs in their role in carrying out native title. But at the same time, there is nothing in this legislation which provides for additional resources to allow PBCs to carry out their functions more appropriately.

This bill will serve to complicate native title and will not do the job it purports to do. I say to the government that they should heed the proposals which we will be putting in detail in the Senate and support those proposals so that we can get an improved native title outcome for all people involved in the native title system. Most particularly, we will be able to defend the rights of Indigenous Australians, the people we should be most concerned about in this process. I commend the opposition’s amendment to the House and suggest that the government take it on board.

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