Simon Crean (Hotham, Australian Labor Party, Shadow Minister for Trade and Regional Development) Share this | Hansard source

I too rise to support the amendment that has been moved by the member for Wills to the Native Title Amendment Bill 2006. This legislation does little to improve the functioning of this vexed area of native title. It is a pity, because this is something that we have had to work at consistently as a parliament since the Mabo decision in 1993. Our concern is that when this government came to power, rather than dealing with trying to assist the evolution of this process and give effect to what in essence was the Mabo decision—the recognition of the concept of native title but the argument that there could be many aspects by which it could be addressed through coexistence—this government has done little to facilitate that way forward. In fact it has allowed the native title system to become very bureaucratic. At the same time as making the system more complicated, our concern as well is that it has failed to adequately resource the representative bodies that are charged with the task of trying to deal with this problem on the ground to achieve negotiated outcomes.

The legislation is also being debated in the House despite the fact that the Senate committee considering the detail of it is not scheduled to report until 23 February. This is a continuing unfortunate practice of this government. It is not allowing proper scrutiny of these complex areas by the parliamentary processes before attempting to rush legislation through this chamber. We register again our concern at the lack of scrutiny but will be using the opportunity in the consideration in detail stage, as well as within the Senate, to make further amendments. We also note that this is not just a view on our part that there has been inadequate consultation in the consideration of this legislation; it is also a claim made by the Minerals Council. This refutes the government’s assertion that there has been adequate time for consultation.

We do know the difficulty of getting the balance right in this area; achieving it requires understanding and commitment. This bill fails that test. It is a disappointing response, but it is hardly surprising given the government’s track record. The amendment that the member for Wills has moved essentially recognises the flaws in the legislation: the fact that it is a missed opportunity to get it right; that it overlooks recommendations from the Minerals Council; that it overlooks calls from the ATSI social justice commissioners for the proper resourcing of the native title representative bodies and the prescribed bodies corporate; that it will adversely affect the capacity of those bodies to represent and pursue Indigenous interests; and that the process that is being implemented as a result of this suite of measures will make the process much slower and much more bureaucratic.

I come to this debate after many years of involvement on my part, both through the parliament and through the trade union movement, in a range of Indigenous issues. That involvement has given me insight into the rights and cultural connections that Indigenous people have to their land, and that understanding is fundamental to getting this legislation right. I also remain, of course, committed to the quest for reconciliation, but that is something that we will not be able to achieve until there is a change of government.

I am proud to have been part of a government that was confronted with the High Court decision in Mabo and that set about securing the legal framework for native title whilst balancing it with the various interests of other stakeholders. I was the Minister for Primary Industries and Energy who had to deal with guaranteeing farmers certainty over leasehold land. So I have had a lot of experience in grasping the complexity of this area and the need for consultation, the need for rigour and the need to understand not just what the High Court decided but also the cultural affinity of Indigenous people with their land. The High Court decision in Mabo was a watershed in relation to land title. It essentially embraced native title as part of our common law. There was a difficult balancing of interests within the context of the hitherto considered legal framework, and that, as I said, was the challenge that we were presented with.

I might say that the Native Title Bill that we introduced and enacted in 1993 secured both the commitment and, in my judgement, a real recognition of the need to get the balance right. We also recognised, through the land acquisition fund, that native title claims should not be focused solely on the purchase of land but also on the economic development of that land in accordance with the wishes of the Indigenous communities. It was, as I said, difficult and complex, and it required leadership to balance the competing interests. As a government committed to staying the course, I think we demonstrated the ability to strike that balance between what could have been considered the irreconcilable interests of the competing parties. It involved, as I said before, a lot of consultation, something that this government refuses to properly embrace—exhaustive consultation, because it is only through that process that we can get it right.

This bill fails to create the necessary certainty and efficiency in the native title resolutions system, and it is for that reason that we moved our amendment. We are disappointed that the government have not seen fit to implement recommendations that many of the participants in this debate have urged. We hope that they are prepared to consider our amendment and embrace what we are putting forward. The legislation that we are considering will not deliver a fair resolution process to all of the parties involved. Combined with last year’s Northern Territory land rights legislation it demonstrates this government’s lack of commitment to proper consideration, proper debate and proper scrutiny. We were not even afforded the opportunity to debate that legislation in this chamber last year, despite the fact that none of its provisions—to introduce 99-year leases on Aboriginal land and to change arrangements for ministerial powers over land councils—were recommended by any of the reviews of the relevant act. There are no quick fixes to this issue, but, if you are going to ignore recommendations, if you are going to try to truncate or avoid consultation and if you are going to try to avoid scrutiny, then mistakes will be made. You will not get the system right—and this government has not got it right.

Let us go to some of the details of this bill. Schedule 1 and schedule 2 are the two fundamental areas of concern that we have. Schedule 1 covers native title representative bodies. The aim of schedule 1 is to improve the role, functions and opportunities of the representative bodies. That is the aim of it, but it does not achieve it. Instead, the provisions of the amendment bill that we are debating here tonight are likely to have a detrimental effect. The bill fails to secure greater efficiency and fairness for the parties in the native title resolutions system. Now, there is no doubt on our part that the system needs an overhaul. The average claim is taking six years and, despite the fact that there have been over 1,000 settlements, 600-odd cases remain unresolved. But the difficulty is that the amendments in this bill diminish the role of the native title representative bodies rather than enable them to overcome the backlog and keep up with any future claims.

Native title representative bodies play a key role in representing Indigenous interests. This bill undermines their role by including a provision to introduce fixed terms of between one and six years. Considering that the average claim takes six years, why would you give legislative backing to the ability to reduce the time that a member of such a body has to carry out their functions to as little as one year? In submissions on this legislation, the Minerals Council has argued very strongly that such short terms of recognition will not provide for greater stability, yet the government is proceeding with this proposal. It is not only the Minerals Council that argues that there is a problem in the reduction in time; it is also HREOC. The provision, in our view, is unnecessary and it will inhibit the ability of native title representative bodies to set long-term agendas. Imposing set terms of recognition is made even more unnecessary as the schedule then goes on to give the minister broader abilities to withdraw recognition to underperforming bodies. The bill also seeks to reduce the notice period the minister may give a native title representative body he wishes to close down from 90 to 60 days. All of this creates greater uncertainty to the representative bodies. The provision also hinders the organisations, preventing them from improving certainty in their operations through their inability to secure staff, tenure and buildings and to build up corporate knowledge.

If the minister were serious about ensuring better performance and a reduction in red tape, instead of playing around with those provisions, he should consider Labor’s suggestions to give the bodies access to multiyear funding. Again, it is not just Labor that makes this call. The Minerals Council has urged increases in the operational funding of the bodies, noting that the workload of the representative bodies has increased significantly. If the resources were made available, they would provide those bodies with a greater capacity to plan over the longer term and give greater certainty to their operations.

Furthermore, this bill also seeks to remove the requirement that the national native title representative bodies submit annual reports to the parliament. This will have the effect of limiting the parliament’s powers to oversee the operation of the boards and raise relevant issues where appropriate. Another very worrying facet of this bill is that it allows the minister to change the territorial boundaries of the native title representative body without their consent. The geographical boundaries of native title representative bodies are determined by the local Indigenous cultural groups and are reflected in the bodies’ membership and their constitutions.

The bill also opens up the possibility that non-Indigenous law firms could be recognised as native title service providers. This is a serious proposition. It could lead to native title claimants’ interests being represented from a distance both geographically and also, obviously, culturally. This will be detrimental to ensuring the representation of Indigenous Australians in their native title claims. We also believe that the bill fails to meet regional needs. It is the government’s continuing tendency to treat the regions with complacency. In ensuring the sustainable development of our regions, including the resolution of native title, we must commit to an agenda which puts local communities first. Communities know what is best for their regions. Local Indigenous communities must not be represented at arm’s length but must be guaranteed a seat at the table in determining their regions’ future. This bill does not guarantee that right. I have talked in this place in other circumstances about Labor’s regional development framework. We want to develop those sorts of models in relation to the resolution of native title.

Schedule 2 is another very problematic area. It expands the role and the power of the Native Title Tribunal and shifts the emphasis away from the Federal Court. This is one of those areas where I fear we are going to run into problems because of the lack of time we have had to go to the detail and the scrutiny of that detail. The Federal Court, echoing the concerns of a number of other submissions, has argued that the amendments that give the tribunal greater directive powers are inappropriate in a legal sense and even possibly in a constitutional sense. It is likely to increase administrative costs because ultimately the court will need to enforce the tribunal’s new powers if they are to be effective. The court has also argued that these provisions may violate the Constitution by giving judicial powers to a body which is primarily administrative in nature.

These are serious issues and it is a pity that the parliament has not had more time to be satisfied on the fronts that are being put forward. Others who have spoken before me have talked about the problems associated through not only the lack of resources but the fact that there has not been an established mediation role through the tribunal. If we are trying to get to a process whereby negotiation assisted by mediation is the direction in which we go, expertise and resources need to be committed to ensure it.

Essentially, we do support the other schedules in the bill, but the truth is that they do not go far enough in providing greater certainty and efficiency to the native title process. That is why we have moved the amendments that we have. The bill gives some changes to the prescribed bodies corporate that manage native title, once it is recognised, but it fails to address their ongoing funding needs. The provision of ongoing funds would create greater certainty for the resolution system from start to completion and for regional communities in the management of native title.

We believe ensuring efficiency and certainty in native title resolution is of absolute necessity for regional communities that have to deal with this issue on a regular basis. It is essential for these communities that the native title system is workable and provides certainty. This involves restoring a balance between recognising the legitimacy of native title claims and the competing interests in the land. That is why I have been a long-time supporter of regional agreements to recognise Indigenous rights and needs and the long-term sustainability of regional communities.

Labor is committed to ensuring a fair go and fair treatment for all Australians. We are committed to the native title process, but what we want is dedication and rigour in terms of a process that is going to work. We have put constructive solutions as to how this legislation can be improved. We urge the government to pick those amendments up, but we fear that we will have to wait until there is a change of government to make sure that the process that we began can be completed properly. (Time expired)

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