Daryl Melham (Banks, Australian Labor Party) Share this | Hansard source

I rise to speak on the Native Title Amendment (Technical Amendments) Bill 2007 and to lend my support to the second reading amendment moved by the member for Jagajaga. In her speech, the member outlined the concerns the Labor Party had with sections of the amendment bill before the House. I do not propose to repeat those concerns; however, I think it is worth while going over the history of the Native Title Act as there is a lot of concern with some of these amendments and the tranche of bills that have been pushed through by this government. In the second reading speech, it is asserted that this is being done without undermining the existing balance of rights and interests under the Native Title Act. In respect of what the member for Jagajaga said, there are some question marks over that for some of the stakeholders.

The Labor Party does not oppose amendments that improve the act. This act should be about protecting native title and the rights of prospective native title holders. The problem has been that with every piece of legislation—certainly with the 1998 bill that has now successfully amended the act—come bucketfuls of extinguishment. What also came through in subsequent pieces of legislation—it appears in this bill as well—was retrospective validation of acts that in effect might have offended the existing Native Title Act. Validation was a big issue with the original act. I must say I am getting a bit sick and tired of the federal parliament having to validate acts of the state governments, which on a number of occasions have taken the risk. In effect, instead of using provisions of the Native Title Act, they then come to us, cap in hand, and say: ‘Look, there is a question mark over this. Can you help fix it up for us?’ Some suggestions in the current bill were put forward by the Aboriginal and Torres Strait Islander Social Justice Commission in relation to the South Australian provisions—that what is happening is a validation of acts of the state government of South Australia, to do with section 43 and some tenements in relation to that.

I must say that I do not have a lot of sympathy for state governments. When I was practising as a lawyer, I was always cautious in my advice. If there was doubt, I did not encourage clients to act in a way that could be detrimental to them in the future but provided caution. There is no doubt that in the early stages of the Native Title Act there was a bit of uncertainty because the law was still developing. The original Native Title Act—that is, the Keating government Native Title Act—was 127 pages long; that is all it was. That act contained a preamble, which is still there—it has not been amended by this government. The preamble says:

It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate.

It goes on to say:

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned ...

Unfortunately, in many instances there is no negotiation and there are no consent determinations. It is a knock down, drag down fight all the way to the Federal Court or to the High Court. It is generally the Commonwealth government or the state governments that spend many millions of dollars fighting Indigenous people all the way through, telling us that they need to clarify this and clarify that. It is being done now to an act of parliament—the amended Native Title Act. This is a government that does not believe in red tape. The Native Title Amendment Act was passed in 1998 with bucketfuls of extinguishment. It has 443 pages as opposed to the original 127 pages. That is why there is a bit of cynicism in the Indigenous community when dealing with governments. I think it is fair to say that this applies to governments of any political persuasion.

That is why we need to be careful about this amendment bill. The Labor Party has basically said that by and large it supports much of what is in this bill. I think that is fair enough. It is agreed: the bill does need refining. It needs improving, but we need to be careful not to cut back on the existing rights of Indigenous Australians—which is what seems to be happening here with some of the validation procedures. We have a minister who said in the last little while that he was not going to increase the money to native title representative bodies to help them in pursuing determinations. All that is doing is slowing down determinations of native title. We have a situation where the mining companies are saying the native title representative bodies are not being properly funded. That is another basis for Indigenous people to believe that they are not being fairly treated in this process. Indeed, we have a special responsibility as a parliament to protect Indigenous people. We were given that responsibility through the 1967 referendum, and we will be celebrating the 40th anniversary of that referendum in a couple of weeks time.

A report on this bill was tabled in the Senate recently. As I see it, the Senate committee made six substantive recommendations to the government. There were also some minority recommendations from members of the Labor Party, and among them were recommendations relating to items 62 and 63 of schedule 1, which purportedly seek to clarify the scope of alternative state regimes under section 43 of the Native Title Act. There were also some additional comments by Senator Bartlett and by the Greens.

I want to take up the second reading dissertation that the government made where it said ‘without undermining the existing balance of rights and interests under the Native Title Act’, because that is what we should be about. In 1998, many amendments were picked up by the government that were originally Labor amendments. We were well advised in 1998 by people who were expert in the area. Good discussions were taking place behind the scenes whilst there was the fundamental disagreement in relation to the act. There were a couple of hundred amendments—maybe the member for Lingiari can correct me—that were picked up by the government that had originally been Labor amendments. I suspect there would have been more, but the government did the deal with Senator Harradine to sell out Indigenous interests, and the amendment bill went through with opposition from the Labor Party.

There were many more amendments on the table from the Labor Party that I think would have improved and streamlined the operation of the act. I am not saying that the act does not require amendment. I applaud the government for refining it and I understand that some consultation has taken place with Indigenous communities. I know that you will never reach unanimous agreement in this area with everyone, but that need to consult with people on the ground is important—but not with a view to basically winding back existing rights under the act.

A submission to the Senate committee came from the Aboriginal and Torres Strait Islander Social Justice Commissioner on behalf of HREOC. His recommendation 1 stated:

That Item 56 not be enacted unless it is amended so that a notice under s.29 may not give notice of more than one proposed future act unless:

• each of the proposed future acts would affect land subject to claim by the one native title claim group, or to a determination of native title in favour of the one native title holding group; or
• each of the proposed future acts would affect land within the one representative body area.

There was then recommendation 2. On pages 5 and 6 of the submission—which I will not read out, because I will not take much longer—there is his recommendation in relation to South Australia:

That Items 62, 63, 138 and 139 not be enacted.To the extent that South Australia has granted invalid titles or done other acts which are invalid as a result of the invalidity of the Commonwealth Minister’s determinations under s.43, and it is considered necessary to retrospectively validate them:

• Amendments should follow extensive consultations with affected Indigenous peoples; and
• the validating provisions ought not go any further than validating the invalid tenements; and
• just compensation for any loss resulting from doing the acts under the invalid laws should be made payable to the native title holders ...

In effect, what we are saying is that you should not reward people who have engaged in unlawful acts, acts that are not valid within the framework of the Native Title Act. I believe that retrospective validation has occurred too many times and should not continue to occur. So I support those suggestions.

There were other recommendations that I will not go into. But the commissioner needs to be taken into account and given due consideration. He cannot just be dismissed. That is the problem here: when Indigenous people get up to protest when their rights are being trampled, or have been retrospectively trampled, very few people listen. I tell you what: if it were Rio Tinto or BHP they would be going feral. We would all be listening then. I can remember when the High Court in effect upheld 4-3 the property rights of a mining company. It was a lease over land to do with Bulla. The member for Lingiari remembers it very well. Everyone respected the High Court’s decision, which was 4-3, the same as it was in the Wik case—but, because the victors in Wik were not a mining company, all hell broke loose.

I think we need to just take a raincheck in relation to some of these amendments. I do not think it will take much to satisfy the people concerned. I implore the government to listen to them in that regard. It is time we moved forward without Indigenous people always being done over and short-changed of their rights. They are doing it tough enough as it is without us giving dispensation all the time to people who do not follow proper processes.

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