Warren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for Northern Australia and Indigenous Affairs) Share this | Hansard source

I thank the member for Banks for his contribution to the debate on the Native Title Amendment (Technical Amendments) Bill 2007. He is one of the few people in this parliament who has any real appreciation of the delicacies, intricacies and detail of the Native Title Act. He has that because he was engaged, as I was, in the discussions in this parliament over the original native title legislation. He was here in the parliament when the amendments were made in 1998 and he has had an ongoing interest in this issue—and an ongoing commitment, as he was previously the shadow minister responsible for Indigenous affairs. He is well known for his advocacy of Indigenous interests as well as his advocacy of the protection of their rights as Australian citizens.

I note that the member for Banks mentioned the Wik case of the High Court. I remember that famous case and other cases in which the claimants—in this case the Indigenous people—had victories, and the furore that accompanied those victories. In particular, on this occasion, if I recall correctly, the then Deputy Prime Minister of Australia was attacking the High Court in this decision—very publicly, without any measure of feeling for or understanding of the rights that had just been won by Indigenous Australians through that court case. I think it is a major blight on the record of that person, who left this place with much acclaim as being a good man—well, a good man who did bad things. On this occasion he did a bad thing by attacking the High Court for its decision to protect the native title interests of these people. I know that the member for Banks made comment at the time about the observations that were being made about the High Court and its temerity in making this decision or upholding the rights of Indigenous Australians. I remember well, in discussions in this place and elsewhere, the views that were expressed by the member for Banks and others and their disgust at the way in which Indigenous Australians’ rights were being undermined in a very overt way and a very divisive way by the then government—led, appallingly and shamefully, by the then Deputy Prime Minister.

I am pleased to support this piece of legislation. But most particularly I would like the government to support the amendments that have been moved by the opposition. As we know, the purpose of the legislation is to make a range of what are termed technical changes—but in fact are not all just technical—to the Native Title Act, which will have the stated effect of streamlining it and improving its operation.

There are four schedules. Schedule 1 will introduce the majority of the changes, which include amendments to the processing of future Indigenous land use agreements, ILUAs. I observed the contribution by the member for Banks. He recalled the amendments in 1998. At that stage I was not in the parliament. I was actually employed as a policy advisor to the National Indigenous Working Group on Native Title, who were here negotiating with the government and the opposition about those changes to the Native Title Act. One of the propositions which were put forward, advocated by both the Labor Party and Indigenous interests, was the development of Indigenous land use agreements, which appeared subsequently as amendments to the Native Title Act. That was a very positive change, and one which we supported. The second thing that schedule 1 will do, referring to the making and resolving of native title claims, is to change the obligations of the registrar, and there will be a range of other changes.

Schedule 2 simplifies a range of procedures relating to representative Aboriginal and Torres Strait Islander bodies—rep bodies—ensuring that legal obligations on those bodies are not duplicated, improving processes for reviewing decisions and clarifying the process of transferring documents from a superseded body to a replacement body. Schedule 3 introduces a range of amendments to the operation of prescribed body corporates, or PBCs. It will close a loophole relating to the replacement of PBCs with other PBCs and prescribe a regime for the charging of fees by PBCs. Schedule 4, I am advised, is entirely composed of minor technical amendments.

This package of amendments is pursuant to the reforms to the native title system that the Attorney-General proposed in late 2005. It is worth noting, or reminding ourselves, of the six elements of the reform proposed. Firstly, there was an independent review of the native title claims resolution process. This was undertaken by Mr Graham Hiley and Dr Ken Levy. The report was handed down in March 2006. Secondly, there were technical amendments to the Native Title Act. Thirdly, there were consultations and measures to encourage the effective function of PBCs. Fourthly, there was the reform of the native title non-claimants (respondents) financial assistance program to encourage agreement making rather than litigation. Fifthly, there were measures to improve the effectiveness of native title rep bodies. Sixthly, there was the increased dialogue and consultation with state and territory governments to encourage more transparent practices in the resolution of native title.

These reforms that were proposed were long overdue. It speaks volumes of the government and its administration of this area of the law that the native title system seems, at least on one level, to be in such disarray, because unfortunately the implementation of these reforms has not occurred with any expedition. The Native Title Amendment Act 2006 was passed, after amendment, by this parliament on 28 March 2007. These changes drew an amount of criticism from involved parties, particularly the rep bodies, and it is clear that changes are needed to assist the performance of these organisations. One of the changes needed is to ensure that they are funded appropriately and that they are funded sufficiently to carry out their many tasks—and very onerous tasks they are, in many cases.

We now know, of course, that the progress of native title claims through the courts has been both slow and costly. According to the National Native Title Tribunal, as at 23 September 2006 there were 547 native claims pending, including 12 compensation claims. Only 91 claims have been finalised. Of these, 62 said native title existed and 29 said it did not. It is a bit of a concern—in fact, it is a real worry—that it takes so long for the processing of these claims.

For the original claimants of the Murray Islands it was an epic struggle but after the sacrifices of Eddie Mabo and others—and after he had died—the landmark decision that bears his name was handed down by the courts and that resulted, eventually, in the passage of the native title legislation. I believe it is inexcusable that there are similar delays, but there are. Unfortunately, I do not believe those people who administer this legislation understand, or are aware of, the circumstances and conditions in which many of the claimants live. Nor do they appreciate or understand the sacrifice and hardship that is suffered by many, and the difficulties they confront in putting a claim forward. It is sad but true that—as was the case with Eddie Mabo—after a claim has been lodged, it is often the case that, unless there is a negotiated outcome, by the time the claimant process has passed through the courts, the claimants are dead.

That is a really sad indictment. People’s rights have been recognised by the courts through the High Court’s decision on native title and subsequent decisions, such as Wik. The parliament has legislated to recognise those rights and put in place a procedure by which people can make claim over country. Unfortunately and sadly often their claims come to nothing before they have passed from this earth. We have to do something to try and improve the processes so that this is no longer the case and to minimise the frustration and delays that currently occur.

As the member for Banks observed, this legislation has been the subject of a Senate committee inquiry. Its report was handed down yesterday. There are a number of issues highlighted by a minority report to that committee report, which I would like to address—in particular, the changes proposed in relation to alternative state regimes; the new authorisation court processes; and a number of changes to PBCs, contained in schedule 3 of the bill.

Section 43 of the Native Title Act allows a state or territory to establish a right to negotiate procedures which operate to exclude the provisions in the Native Title Act, where the Commonwealth minister is satisfied that alternative procedures meet statutory criteria set out in section 43(2). This has been done in number of South Australian determinations in relation to mining and opal mining. According to the explanatory memorandum, the changes, specifically items 61 to 64, ‘put beyond doubt the validity of the current South Australian section 43 determinations’.

This change was attacked by HREOC in its submission. It noted that such changes are effectively giving retrospective validation to acts done in contravention of the act. This is hardly a technical amendment, as observed, again by the member for Banks, and the government’s endeavour to pass it off as such is indicative of their attitude—unfortunate, in my view—to native title generally. In this regard, we need to delay passing these provisions until there has been proper consultation with native title holders about the validation of any relevant determination acts and negotiate just compensation where appropriate. That is the least we can do.

There are also problems with the provisions relating to default PBCs. The changes in this legislation apparently arise as a result of the recommendation in the PBC report of October 2006:

The Office of Indigenous Policy Coordination should develop a comprehensive proposal for the establishment of ‘default’ bodies corporate to perform PBC functions in circumstances where there is no functioning PBC nominated by the native title holders.

There is need for a mechanism for determining default PBCs. That is clear. However, under these changes, the Federal Court would not necessarily be the body making the choice as to the appropriate body to be the default PBC. Rather, this choice could be made by regulations or by another person or body.

This is entirely problematic, as it diverges from the intention of the department that the court could continue to determine PBCs. I note that Mr Greg Roche, Branch Manager of the Land Branch, Department of Families, Community Services and Indigenous Affairs, acknowledged this point in his oral submission to the committee hearing on Wednesday, 2 May 2007, in which he said:

Practically speaking ... we cannot currently foresee circumstances in which a body other than a court might determine the body. But we thought it useful to put a little bit of scope in this regulation-making power, in case that should prove necessary.

That should not happen.

Finally, it is worth observing that HREOC described these amendments to the PBC regulation-making powers as ‘a radical shift in the current policy embedded in the act’—and indeed that is so. The court in this instance may not be the determining body. It could well be someone else. To this end, Labor is recommending that the regulation-making powers in items 1, 2, 5 and 6 of schedule 3 be restricted to ensure that the Federal Court continues to determine prescribed bodies corporate.

Another area of contention is the proposed item 7 of schedule 3. This purports to implement a fee-for-negotiation scheme which would allow PBCs to charge a fee for expenses they incur in certain types of negotiations and for other functions. Realistically, the government should be providing proper funding for PBC bodies. This should not be a substitution for proper government funding. That is very clear. I know a number of PBCs around Australia. I know how strapped for cash they have been. I know how difficult they have found it to put in place processes by which they can negotiate over rights which they currently hold. It is entirely appropriate that the government should ensure that they are properly and adequately funded. This was noted in the government’s own PBC report, Structures and processes of prescribed bodies corporate, released in October 2006, in which it said:

... it is clear that the level of resources currently available will not meet all of the requirements imposed on PBCs under the current regime. While some of these difficulties can be alleviated through possible reforms to streamline the existing statutory governance model ... we consider that there will need to be additional measures taken by Governments to ensure that PBCs may function effectively.

Having noted this, I will return to the fee regime proposed. The National Native Title Council described this proposed fee regime as discriminatory. It is very difficult to see how we could support it. We would like to see the fee scheme amended to give far more flexibility to these PBCs.

Non-Indigenous members of PBCs are also an issue. Item 5 of schedule 3 raises the prospect of non-Indigenous people being members of PBCs. This seems, unfortunately, to be something of a legislative trend now. Under the recently passed Corporations (Aboriginal and Torres Strait Islander) Act 2006, non-Indigenous people can now be included as members of Aboriginal corporations. This has a number of complications, one of which is of course that it has the potential—not that it might always do this, but it has the real potential—to undermine Aboriginal representation on these bodies. The Native Title Council expressed its strong criticism of this, stating that it would be ‘entirely inappropriate’ for non-Indigenous people to be members of PBCs, given that native title is based on Aboriginal traditional law and customs. The Native Title Act should be amended to reflect this, to prevent non-Indigenous people from being members of prescribed bodies corporate.

Another issue is the question of authorisation processes. There are concerns with item 88 of schedule 1. Under this item, the Federal Court would be able to order the production of evidence of authorisation of applicants. Where there is a defect in authorisation, the court can decide, after balancing the need for due prosecution of the application, in the interests of justice, whether it will, firstly, hear and determine the application despite defects in authorisation and, secondly, make any such order as it sees fit.

The National Native Title Council identified a concern that this might be exploited strategically in a court proceeding. An application for the production of evidence could be made by any party to the proceedings, or on the application of a member of the claim or compensation group, without showing cause as to why an order for production of evidence should be made. It seems pretty clear that this provision will be open to abuse. It is suggested therefore that the proposed provision include that the applicant for production of evidence of authorisation should be required to show cause to the court as to why such an order should be made.

Labor supports the substantial body of this bill. It makes a lot of necessary technical changes; however, it falls short of what is really required. I urge the government to consider and support the amendments moved by the Labor Party here and those moved in the Senate.

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