Carmen Lawrence (Fremantle, Australian Labor Party) Share this | Hansard source

The Native Title Amendment Bill 2006 is part of a complex suite of policies that affect Indigenous Australians, native title rights and Indigenous interests more generally. In my view, it is part of a fairly sustained assault on Aboriginal interests which started with the official government abandonment of reconciliation and continued with vigorous attacks on the so-called ‘black armband’ view of history and the abolition of ATSIC.

Among the more recent and distasteful manifestations of this vendetta was former Minister Vanstone’s assertion that remote communities were ‘cultural museums’ whose inhabitants should be moved, she thought, to places where there were better economic opportunities. Some of those places are frankly places where Indigenous people are much worse off. Of course, we have heard Mr Abbott’s call for a ‘new paternalism’ and demands for the removal of traditional law from considerations in sentencing in the justice system, stemming, I think, from the same wilful disregard of Indigenous perspectives. I often find it ironic that the same people are happy to use images of Indigenous people—they probably have their paintings on their walls—and use their culture to promote international events and entice overseas visitors.

Much of this behaviour has taken place in the context of a persistent refusal to acknowledge the position of Indigenous Australians as the first peoples of this land and to recognise native title. This stems, at least in part, as Larissa Behrendt has noted, in the government’s favoured orthodoxy:

... that Australia was peacefully settled, with Aboriginal people simply giving way naturally to a far superior (as the story would be told) technology of British civilisation.

Of course, there have been numerous times in the last decade when this government has specifically sought to wind back native title rights conferred through the Mabo decision and subsequent legislation, beginning with the so-called ‘10-point plan’ and the ‘bucketloads of extinguishment’, which really did arrive. In the area of Indigenous affairs, the Howard government’s chosen terminology—its mantra, in fact—has been ‘practical reconciliation’. This is supposed to draw a clever distinction, as they see it, between ideals on the one hand and achievements on the other as if they were actually mutually exclusive. So it is only right that this government after 11 years be judged firmly on what it has achieved—on the practical outcomes. It is only right that it be judged on its approach to Indigenous policy.

Of course, I acknowledge that this area of government policy, perhaps more than any other, is not one where you simply score party political points. But, having said that, it should never be the case that this area of policy is anything less than rigorously and vigorously contested at every opportunity, because it is so important. That is the process by which a democracy works to ensure that the best policies are formulated and implemented, especially for the most disadvantaged in our community.

I think it is fair to say, as many have said, that the most positive outcome of the Mabo decision was a fundamental political shift in Australia which saw Indigenous people finally acknowledged through the law as the original owners of this country—although, of course, there are still some in government seeking to roll back the very modest gains of native title. Property rights were affirmed, even though the legal interpretation of these rights has rendered them, it has to be said, poor cousins to other, non-native title, property rights.

In some places the process of claiming native title rights has delivered social, economic and political outcomes to Indigenous people, and that is to be praised. Some economic benefits have accrued to those with the resources and good fortune to be able to negotiate an outcome through the Native Title Act. A few have received land back, but they are very few indeed. Many claims have not been resolved at all: at this stage, while 91 claims have been resolved, 600 remain unsettled.

In general, partly as a result of amendments to the act over the last decade, the results have been far more limited than might have been hoped for. Successive Federal Court and High Court decisions have confirmed that. This disappointing outcome has been commented upon by many, including Aboriginal and Torres Strait Islander Social Justice Commissioner Bill Jonas and one of his successors, Tom Calma, in their native title reports, which deserve reading. In expressing his concern at the failure of the Native Title Act to deliver tangible and lasting benefits for Indigenous people, Mr Jonas said, for example:

As an embodiment of social relations, the native title system places Indigenous interests at a lower level than non-Indigenous interests, every time. As an embodiment of economic relations, the native title system removes Indigenous people’s effective control over their only asset: exclusive rights to land and sea country. And as an embodiment of political relations, native title fails to recognise traditional decision-making structures.

In his submission to the recent parliamentary inquiry into the capacity of native title representative bodies, Mr Calma went even further and asserted that the Native Title Act had actually erected a barrier to the enjoyment and protection of these rights.

Despite attempts by the Howard government to do so, it is impossible to separate the benefits that may flow from native title recognition from the broader context of Indigenous rights, reconciliation, economic independence and governance. These are in fact the possibilities that were held out by native title. As Mr Calma indicated in his submission, realising these possibilities and meeting minimum human rights standards for Indigenous Australians will be based on the provisions—which I hope we will continue to support—of the Committee on the Elimination of Racial Discrimination and will centrally depend on the capacity and resources of the native title representative bodies affected by this bill.

For instance, Mr Calma points to the right to equality. I presume we all agree that Indigenous people should enjoy equal protection of their property interests before the law and that parties, Australia in this case, should recognise, to quote CERD, ‘the rights of Indigenous people to own, develop, control and use their communal lands and territories and resources’—although, as we know, the Native Title Act actually legislates for a lesser standard of protection to begin with. Nonetheless, it is vital that the representative bodies can at least protect those rights afforded under the act and as required in the act by facilitating meetings of claimant groups, researching and advising on relevant issues, and representing claimants in proceedings or negotiations.

The second right that Mr Calma points to is the right to effective participation, especially ensuring that no decision affecting the rights and interests of Indigenous people is taken without their informed consent. Again, representative bodies are vital to this process and are specifically empowered in the act to ensure that Indigenous people who may hold native title in a particular region can participate in decisions affecting their traditional land and receive consultation, assistance with claims, information dissemination and, of course, assistance in dispute resolution and agreement making.

The third right he points to is the right to enjoy and maintain culture, especially in the light of the unique and profound relationship of Indigenous people with the land, which extends beyond economic interests to cultural and spiritual identity. This is something that is often overlooked, even disparaged, by people on the other side. Representative bodies should be able to assist in ensuring recognition and protection of culture as part of their responsibilities.

Finally, there is the right to self-determination. I know that is not in favour with the current government, which prefers its new paternalism, but it is recognised in the International Covenant on Economic, Social and Cultural Rights that Indigenous people should freely determine their political status and pursue their economic, social and cultural development. Again, representative bodies are there to ensure that, to the greatest extent possible, even limited as it is by this government, Indigenous people can exercise some control over their lives.

As I have tried to outline, native title representative bodies are the principal means for: assisting in the pursuit of native title claims and agreements, facilitating communication between Indigenous and non-Indigenous parties, and providing that legislative and contractual responsibilities are met. They are the only bodies that can do this. The capacity of representative bodies to do this requires funding as well as expertise. The process of negotiating agreements assumes that the parties are well resourced, capable and experienced enough to undertake the complicated negotiation procedures. Sadly, as many have observed, this is often not the case. The organisations involved often do not have the resources, the capacity or the appropriate training within the community to successfully negotiate agreements. As a result, frankly, they are dudded.

These bodies need help both in training and in resources, as many have observed, including the representative bodies themselves. As we know, they already face substantial difficulties because of underfunding. Those who know anything about these bodies know that there is staff burnout and negotiations are delayed and/or truncated with unfortunate consequences for Indigenous people and the people with whom they are negotiating. Representative bodies have on occasion simply been unable to engage traditional owners on matters which affect their native title because of inadequate resources, and rights sometimes cannot be enjoyed at all because of a lack of implementation funding. They get a decision, and then nothing can be done about it.

In the now notorious Kennedy case in the Federal Court, Justice Sackville ordered that native title did not exist on land known as Castle Hill Holding. There was strong evidence then and there is now that the shortage of funds to the rep bodies played a part in this outcome. That is a tragedy. The chronic lack of capacity for the native title rep bodies to manage all their native title duties represents a major flaw in the system and renders it open to exploitation. A nonclaimant can effectively capitalise on the fact that overstretched native title bodies cannot take on additional work—and some have. They can do so using the financial assistance of the federal government, which provides them with non-means-tested funds. It is hardly an equal contest. Inequitable levels of funding to rep bodies have disadvantaged Indigenous people and limited their capacity to protect native title rights, and parliamentary committees have found accordingly. The native title rep bodies are in all senses the workhorses of native title, and we in Labor believe they should be adequately funded for this very important task.

So what is happening under this bill to the native title rep bodies? Other members have already noted changes, including the effective opening up of the representative services market in this area, possibly to allow other bodies to supplant the rep bodies—a move which has the potential to destroy the representative nature of the bodies, so central to the functioning of native title.

Others too have noted the introduction of periodic terms, from one to six years, which will almost certainly, in the case of the shorter term, undermine the stability of the rep bodies and their capacity to negotiate. It will make business and financial planning more problematic, if not impossible, increase infrastructure costs and destroy any security in staff tenure—already a problem—further thinning corporate knowledge in an area notorious for its complexity. Of course others have noted too that this legislation will confer powers to change borders without consultation with the Indigenous people, and that this could cause significant problems because the areas are defined typically by cultural groups, not by administrative convenience which might suit the minister.

The bill appears on the whole to ignore the recommendations of the report of the Parliamentary Joint Committee on Native Title and the Torres Strait Islander Land Account on the operation of native title representative bodies, 2006. The majority report recommended:

… that the Commonwealth immediately review the adequacy of the level of funding provided by the OIPC to NTRBs for capacity building activities including management and staff development, and information technology.

The minority report went further and canvassed a wide range of these concerns, noting the impact of underresourcing on the minerals sector, the native title system and community development in Indigenous communities. But this acknowledgement did not translate into a recommendation for an immediate increase in funding. The weight of the evidence presented to the inquiry, the minority report suggested, warranted a recommendation that the level of funding be increased immediately and then reviewed. The inadequacy of funding to the native title rep bodies was even raised by the Minerals Council in the course of the inquiry into the current bill, as it was by the Human Rights and Equal Opportunity Commission.

I turn now to another part of this bill, which proposes to expand the tribunal’s mediation function and to make it the primary mediation forum. As others have noted in this debate, both inside and outside the House, this expansion of the tribunal’s powers is to be made notwithstanding the fact that the tribunal is regarded by many as among the key problems in this area. I am aware that the President of the tribunal, Graeme Neate, when he spoke on the outcomes of the native title Claims Resolution Review, said:

The reforms give the Tribunal an opportunity to make the system work better and to help deliver just and enduring outcomes more effectively and efficiently. Of course, we cannot do that without the involvement and commitment of the parties, but we are to be given more tools to secure that involvement.

I have to say that the language here is a little strange. I presume it refers to the new powers of the tribunal to compel parties to participate in mediation, to compel the attendance of witnesses and to compel the production of legally privileged documents. All of these things need to be seen not just within a framework of ‘efficiency’ but within the somewhat artificial ‘agreement making’ that the tribunal exists to achieve. It should never be lost in all this that the agreement making we are concerned with here is not in any sense a free negotiation between equal parties. Along the same conceptual lines, we need to recognise that native title mediation in this country has become a process sui generis.

I am not confident, and I do not believe that the native title rep bodies are at all confident, in the mediation process being conducted under the tribunal. The native title mediation process has become quasi-judicial, with the provision of detailed evidence to prove various elements of a particular claim being followed by responses to that evidence and then by counter-responses. Justice North of the Federal Court recently made comments in an as yet unreported directions hearing to the effect that such mediation processes, which occur both through the court and the tribunal, amount, as he put it, to a kind of ‘out-of-court rehearsal’ of a trial. In such circumstances, he said:

If the parties are in effect conducting a trial process, then little is to be gained by calling it a mediation and having it behind closed doors. Rather, it might be better to simply get the case on for trial, and in other cases that is the course which I am adopting.

This is hardly a ringing endorsement. But it will not be a course open to the Federal Court or its applicants in circumstances where mediations are predominantly considered the jurisdiction of the tribunal—an outcome which this bill will effect.

Rather than addressing the real shortcomings of the process as it stands, this bill may have the effect of accentuating the process’s worst aspects. Firstly, it makes mediation of native title claims the primary preserve of the tribunal, when many stakeholders regard the tribunal as one of the more problematic parts of the system. Secondly, it weakens the rep bodies at a time when these bodies are already underresourced.

At last year’s AMPLA conference, David Ritter, who is a lecturer in the Faculty of Law at the University of Western Australia and an expert in this area, delivered a paper that responded to a paper by Graeme Neate from the tribunal. In Mr Neate’s paper, reference was made to a number of issues that hinder agreement making. David Ritter’s paper, in response, made the following observation:

Also surprising is Neate’s failure to mention the socio-economic deprivation of many Indigenous communities as an obstacle to reaching agreement. Surely it is the chronic state of Aboriginal well-being that is perhaps the single biggest impediment to negotiations moving quickly? How can the high incidence of people dying young, the prevalence of serious illness, problems with literacy and numeracy, the pervasiveness of violence in some communities and the frequency of mental health issues not have the impact of complicating even the most elaborately planned negotiations. The actuality of the social and economic demography of Aboriginal Australia logically must, and does, condition the negotiation of legal relations between Indigenous communities and other parties.

We see no recognition of that at all in this legislation. From this observation flow several points that need to be made. Some of them I will have a chance to make tonight and probably others tomorrow morning. Firstly, there is already a serious disparity in the resources available to the various stakeholders in this process. The resources inequality, if you like, is perhaps most stark in the difference between the resources available to the tribunal itself and the resources available to the rep bodies. As an example, I was told by a person who made a submission to the parliamentary joint committee that the tribunal sent its own note taker to a committee hearing, even though the hearing was being formally transcribed—this while the rep bodies struggle along with hardly enough funds to staff the essential positions. Perhaps the minister could have a look at that.

This disparity operates in addition to the socioeconomic disadvantages that I note already afflict Indigenous Australians, yet this bill seeks to make the process more ‘efficient’ by increasing the powers of the tribunal whilst making the position of the rep bodies much more difficult in ways that will have economic consequences. Finally, this bill is an instance of the government’s attempts to make reform in this area while ignoring the loud recommendations to improve funding, which I have already mentioned, coming from all bodies, including the rep bodies themselves.

Debate interrupted.

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