Peter Garrett (Kingsford Smith, Australian Labor Party, Shadow Minister for Climate Change, Environment and Heritage) Share this | Hansard source

I follow on from my colleagues the member for Hotham, the member for Lingiari and the member for Wills, who has moved a number of second reading amendments which I support. I note that he has also foreshadowed the drafting of substantial amendments in the Senate when this matter is considered there. Native title is important for Australians. It is certainly something the Labor Party has a proud history of championing and supporting. I do not think there is any doubt at all that getting native title right remains one of the great challenges for both this government and governments to come. It requires a very careful deliberation by us in the House.

The notion that Aboriginal communities in any part of Australia should be able to constitute themselves into representative bodies to make determinations and decisions about the use of and access to their land comes as a consequence of a long and hard-fought struggle for the rights of Indigenous people to assert some control over the way in which their land is used. But, now, more importantly, given the debates of the past two or three years and the considerable levels of social disadvantage that Indigenous communities still face, in order for Indigenous people to fulfil the potential their land offers to them, the native title system, as evidenced in the legislation and amendments we are considering—particularly in respect of native title representative bodies and the way in which they function, their capacities and their success in fulfilling the duties that they have—is absolutely critical to the ongoing wellbeing of Indigenous communities Australia wide.

I note that native title rep bodies oppose aspects of this bill. I do hope that the government will take the views of the native title representative bodies on board as we debate the legislation in the House and as we bring forward amendments for the government to consider. Primary amongst the issues raised, both in this legislation and more generally in relation to the ongoing capacity of native title representative bodies to fulfil their purposes and functions, is the question of their resources and support.

For people listening to this debate or perhaps reading it in Hansard, the considerably difficult environment that native title rep bodies quite often operate under is something which tends to be underestimated and undervalued. As we talk through this legislation and discuss the merits of the amendments we would like the government to take into account—and as the bill goes to the Senate for a more thorough and deliberative consideration—it remains extremely important for us to consider the conditions under which Indigenous people find themselves. We need to consider the nature of their communities. In some instances there are high degrees of illness amongst older populations, particularly men but also, regrettably, women. There are burgeoning populations, particularly in Northern Australia, where many younger people live in communities, where cultural history and political expertise is quite often at a premium. It is in native title representative bodies that much of this expertise resides. I think it is incumbent on the government to take very fully into account the views put by the native title rep bodies.

It is also true that, up to this point, the record on determinations in relation to native title representative bodies has not been particularly good. It is true that, particularly in recent years, we have seen an additional amount of attention drawn to the nature of agreements that have been undertaken and the fact that they have not as a matter of course ended up delivering those kinds of benefits nor fulfilled their terms such as was intended. Of particular note is the Griffith University study conducted by Ciaran O’Faircheallaigh, which was noted in an article in the Australian on 30 January entitled ‘Land use contracts fail to deliver’. It found that almost all agreements that promised Indigenous people some ability to control environmental damage to their traditional lands which were done in the process had rarely happened. It found that, in a number of cases, the agreements were either ‘basket cases that should never have been entered into’ or had delivered few cultural and monetary benefits to Aborigines and that ‘in many cases, Aboriginal groups do not have the resources or sophistication to deal seriously with the complexities of land-use agreements’.

It is the case that there are some agreements that have worked well. The Argyle Diamond Mine agreement and others are held up as examples of agreements that have worked well. They have some more prescriptive terms and conditions applying to them but they also have the benefit, particularly in the case of the Argyle Diamond Mine agreement, of having people with the goodwill, expertise and resources to enter into an agreement which has the capacity to deliver what both parties intended.

It is not a one-sided issue in relation to these agreements. In many instances, particularly as Australia is in the fortunate situation of experiencing something of a minerals boom in Western Australia, we may have, on one side, native title owners and native title representative bodies and, on the other side, mineral companies of one kind or another seeking to reach an agreement, yet both of these entities which are parties to these agreements have expressed dissatisfaction and concern with the Native Title Amendment Bill 2006. Again, reference has been made to the Minerals Council’s views on some aspects of the bill that is before us, and I ask that the government take into account the views that the Minerals Council of Australia has put.

Of all the issues that relate to the capacity of native title rep bodies to successfully and competently go about their tasks, clearly it is the issue of resourcing that is critical. I note in particular a submission by the Western Australian Office of Native Title to the inquiry into native title rep bodies in 2004. I will come to the Senate committee’s views and recommendations in that particular instance in a moment. But, again, Mr Gary Hamley, the executive director of the Office of Native Title in a state where there are a number of native title claims, makes it very clear that native title rep body funding is the most critical issue of all and that, in any instance, in relation to the capacity of these bodies—and I will read the conclusion—‘the Western Australian government believe that native title representative bodies do not have sufficient resources to meet their statutory responsibilities in future act management and the resolution of native title application in Western Australia’. Of course, as a consequence of this, backlogs exist and there are significant delays, and, as the submission points out, this is an obstacle to ongoing regional development.

But more important I think is the fact that, in being unable to meet their capacity to deliver in terms of agreements and to have the resources to enter into the agreements and to be able to maintain through the course of the negotiations a capacity to ensure a proper and good outcome on both sides, there is a sense of dispiritedness and, consequently, a sense of going outside the entire native title system emerges. Indeed, we have seen over the last couple of years the increasing incidence of agreements that are effectively struck outside the native title framework. That is clearly not in the long-term best interests of either the native title holders or the mining companies and others who are seeking to reach agreement with people, particularly in regional Australia, where development issues are so important.

I remind the House—and I am referring to a specific statement from a native title representative body—that land and sea are the cornerstones of Aboriginal spirituality and law, yet it is through these particular legal constructs, for which the parliament is responsible, that these very important goals and elements of Indigenous people’s being, and certainly their economic and social existence, are made manifest.

A number of Labor members have drawn attention to our concerns in relation to the bill that has become before us, and a number of amendments have been brought forward as a consequence of that. It is certainly our contention that the native title representative bodies’ view about issues such as the fixed shorter term periods that are proposed are of real concern. Of particular concern as well is the power to change geographical areas of responsibility without native title representative bodies’ consent, and the discretion that is afforded under this act clearly causes those native title rep bodies and Indigenous people in general a great degree of concern.

Additional to that, there are issues with schedule 2, which relates to the National Native Title Tribunal. I note the comments by my colleagues. We certainly do accept and understand the difficulties the tribunal has faced and we recognise the important role that it plays, but it is clear that, as identified and proposed in this legislation, the expanded powers of the tribunal raise a number of serious questions, both as to jurisdiction and also ultimately to effectiveness.

I note the Social Justice Commissioner has suggested to the government a number of amendments. The Minerals Council makes quite clear that some of these proposed amendments in the bill will be particularly destabilising ‘if they are not equipped with appropriate funding and capacity-building initiatives’. Chronic underfunding certainly holds back progress in mediation, and that is to everybody’s long-term detriment.

When the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Account reported on the operation of native title rep bodies in 2006, it too, specifically in recommendations 5 and 6, raised the issue of the adequacy of the level of funding provided by the OIPC and in particular the need for additional funding to meet the situations and conditions that native title rep bodies find themselves in, particularly in the case of emergencies or otherwise.

That native title rep bodies will no longer have to submit their annual reports to the parliament has been raised as a matter of concern, but I think as significant is the question of introducing fixed term periods of recognition of some one to six years and the potential impact that that might have on native title rep bodies. A number of speakers have made the point that short terms could affect the operation of these organisations and would affect their ability to set long-term agendas.

I think this needs to be seen in the context of the number of years it takes for these native title claims to actually reach resolution. It can take as long as six or seven years or even longer, and that is an average figure that has been cited in the House tonight. So it is a matter of some concern that there would be a turnover of people serving on these bodies whilst at the same time a claim itself would be ongoing, with the question of loss of cultural and legal knowledge that that raises. Relationships with staff, with the legal community and, frankly, with those you are negotiating with have to be built up over a period of time, where trust as well as legal interaction are extremely important.

I support the second reading amendment moved by the member for Wills and hope that the amendments are positively considered by the House. I will confine my comments at this point.

See this speech in context