Peter Andren (Calare, Independent) Share this | Hansard source

As I begin, can I correct the Parliamentary Secretary to the Minister for Industry, Tourism and Resources. It is unfortunate for him to continue to pronounce Timor-Leste ‘Timor-Leased’ with all the connotations that that phrase may have. It should be pronounced ‘Timor-Lestay’. It is a pity that the parliamentary secretary cannot be questioned about his carriage of that legislation in this House, but that is another matter.

When the amended native title bill came from the Senate on 6 December 1997 after 55 hours of debate and the government voted down those passionately argued changes and laid aside the Native Title Amendment Bill 1996, I said on that day:

The rights of pastoralists will prevail. There is nothing in this amended bill that says otherwise, so the right to negotiate remains just that: the right to negotiate. Aborigines do not want freehold but access, with the right to negotiate ... The Prime Minister speaks of his covenant with the miner and the pastoralist. What about the third part of that troika, the Aborigine? Where is the covenant with him?

After all of the tribulations and debate on native title over the past decade almost, we come to the Native Title Amendment Bill 2006. The general stated intent of the bill is to address the incredible delays that thwart timely resolution of native title claims. It is also supposed to allow the minister to put a badly performing native title representative body on a year’s notice and more easily not renew recognition of that body. This bill is mainly about making processes more efficient.

It is no small irony that it is largely governments that oppose claims as a matter of course and as a matter of ideology, tying up precious time, resources and money in forcing such claims to appeal. Given it can take up to 10 to 20 years to resolve a native title claim in some instances, often with the claimants not living to finally witness formal recognition of their continuing connection with their country, it is an admirable and proper aim to tighten the process and limit the excessive delays inherent in the current process. But this bill just does not seem to do this.

It is important to note that out of the 1,683 native title claims filed, there are currently 604 remaining, suggesting that 13 years of claims have sorted out many of the procedural and legal questions for use in later cases. My concern starts with the process around the bill itself, with a recognised lack of consultation by many parties to the native title process, especially with the native title representative bodies, NTRBs, which represent the native title interests of Indigenous Australians—or are supposed to—especially in the establishment of native title claims.

Not only this, but with just six weeks for submissions to the Senate Legal and Constitutional Affairs Committee—over the Christmas and New Year break—and with that inquiry’s report not even due until the 23rd of this month, I seriously question any commitment to truly working this process out and to properly debating it in the House of Representatives, since we are without the benefit of the report, as is so often the case.

Certainly some measures appear to be recognised as positive, such as splitting claims to progress the more straightforward areas of a claim while the rest is argued, or the granting of legal aid to respondents. However, the main achievements of this bill seem to be entirely at odds with its aims and with the original aims of the Native Title Act itself.

First of all is what looks like a complete undermining of native title representative bodies. This bill explicitly removes the criteria that a representative body, to remain eligible as such, must represent and consult with its constituency across its region. These bodies will provide policy advice to governments about land, water and customary use of country by traditional owners.

Under this bill, registration of native title representative bodies is exclusively at the invitation of the minister, which opens up the possibility of large and expensive law firms, with no endorsement by Aboriginal people, providing representation for those people about processes that are in effect about ancient connections to country, without being representatives of those people. It is absolutely inappropriate that non-Indigenous bodies could take up the role of native title representative bodies in this process.

With this proposed further diminishing of Indigenous participation, this bill also allows the ‘summary dismissal of certain native title applications’ if a presumption is made about the reasons for which a claim is being made. Further, this bill also allows the minister to recognise a representative body for a minimum of one year at a time, and for up to six years, ostensibly to enable the derecognition of such a body if it continues to not perform. So the bill proposes a situation where all the representative bodies may or may not be invited to tender to continue their functions every six years at the most. Those bodies that may have just one year’s grace imposed must try to keep hold of specialist legal staff on a one-year contract, divert already scarce resources towards the process of rerecognition—as will happen every six years regardless—and demonstrate progress in processes that can take up to 10 or more years. There are surely better ways of dealing with the nonperformance of single bodies. With that in mind, and in the name of cutting red tape, the bill also removes the requirement for strategic plans.

How on earth does this provide greater efficiency where resources are so stretched, where cases take up to a decade or more to progress and where an already high turnover in staff or board members of these bodies diminishes corporate memory and can remove traces of those markers that flag the way? In this environment, how does a representative body mark its priorities and progress and how does it build critical levels of competence—and how can a court determine this and how does a minister measure outcomes?—without a detailed strategic plan to provide a compass to stop the process going in circles for even longer periods? Surely it would be more helpful to ensure good public strategic plans are in fact formulated and followed, with the resulting transparency informing questions of governance and forward planning of scarce resources and providing answerability to its constituents—and indeed the minister.

Another major concern is the role under this bill of the National Native Title Tribunal, which is invested with a quasi-judicial power at the expense of the Federal Court with its power to supervise and impel the progress of proceedings. Under the bill, the tribunal, with its members who are appointed to provide mediation, is given power to coercively direct parties to attend mediation conferences and produce documents. But this is totally inappropriate for an administrative body and will in fact increase costs and delays, because only the Federal Court has the power to enforce such orders to make them effective. Further, this is constitutionally suspect and inappropriate for a mediation setting and is very likely to set off further litigation as parties, especially governments, so ordered by a tribunal seek to protect their own privileges.

It is also proposed that the court’s power to mediate be restricted while the tribunal is mediating a matter, reducing the court’s ability to progress a claim by threatening to take the matter into its own hands and make a determination. Without this threat, the process of mediation can be very easily subverted by parties who do not have an interest in settling—and, as with any litigation, delays usually favour one of the parties. In the case of native title, the parties with the interest in waiting are usually governments. The tribunal in fact already hasn’t the capacity to fulfil its expected functions, with parties already taking advantage of procedural rights that hold up the whole process without having to be tested themselves within that process.

Just over a year ago, of 356 claims with the NNTT for mediation, 272—about 76 per cent—had been with them for more than three years and 170—just under 48 per cent—for more than five years. Yet in the name of expediency this bill bestows yet another option to further divert the process by allowing parties to apply for a review in the tribunal of the existence of native title. This is where a claimaint could be made to bear the time and cost of presenting their case to the tribunal and the applicant for the review. With so much of the work in a native title claim going into assembling evidence over years, one would be forgiven for thinking that compelling a claimant to do this in a tribunal mediation setting, when it has to be done again in a court anyway, is a structured system that creates, perhaps not deliberately, a further delaying tactic designed, inadvertently or otherwise, to diminish the claimant’s energy and resources and to provide a valuable dry run for the applicant to the review in testing the claimant’s case prior to a court hearing, without any binding determination. It seems clear that the Federal Court’s ability to flexibly case manage native title claims, including its ability to order conferences and mediation, is highly regarded and should not be diminished or compromised by a parallel, inexpert and unpractised process that will have to refer to the court in the end anyway.

I am not in the habit of supporting second reading amendments—often as they are an expression of the world as it might be if there were a change of government—but in this case one would hope that the second reading amendment would be a precursor to substantive amendments with the arrival of the inquiry into this in the other place. I note the second reading amendment says:

... that the amendments proposed by the Government;

(b)

overlook calls from the Minerals Council ... and successive ATSI Social Justice Commissioners to properly resource Native Title Representative Bodies and Prescribed Bodies Corporate;

(c)

contain changes which, despite being intended to improve the performance of Native Title Representative Bodies, will adversely effect their capacity to represent and pursue Indigenous interests;

Those are exactly the sorts of concerns that I have been able to identify in my study, along with that of my staff, of this particular piece of legislation. I support the opposition’s second reading amendment as an expression of the processes that need to emerge from this while I am hopeful that there will be possible, and indeed necessary, amendments in the other place.

Finally, I come to what I said on that highly charged Saturday morning in 1997 when the House sat to consider those amendments brought back from the Senate. There had been 55 hours of forensic debate. It was the most inspiring debate that I think I have seen in this place in a decade. Due respect was paid to the work of Senator Harradine and others, and the agony was obvious in the decisions that they arrived at. What happened is that when those amendments arrived in this House they were voted down by the government and the bill was laid aside at that point. I said on that Saturday in 1997, as that amended bill was laid aside, that I had decided that the bill as amended at that point ‘provided the framework for the coexistence of title identified in the Wik judgement’. I said:

... genuine native title is the key to restoring our acceptance of the validity of the Aboriginal culture and recognising that without that title or belonging our Indigenous fellow Australians are condemned to tiptoe around the fringes of this society as outcasts in a predominantly white society.

Nothing—or very, very little, if anything—has changed.

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