Kelvin Thomson (Wills, Australian Labor Party, Deputy Manager of Opposition Business in the House) Share this | Link to this | Hansard source

Labor wants to see native title claims resolved quickly, effectively and fairly. This is manifestly in the interests of all parties. Unfortunately, it has not been happening. The current situation is far from adequate. While 91 claims have been resolved, more than 600 remain unresolved, and claims are taking on average six years to be resolved. I think we on all sides can agree that this is an unsatisfactory situation and in need of improvement. The question is whether the legislation before the House, the Native Title Amendment Bill 2006, will make any contribution towards that. It is my concern that this bill will in fact generate uncertainty for native title claimants and for development, and will undermine the capacity of native title representative bodies to represent Indigenous interests. Those concerns form the basis of the second reading amendment which I now wish to move. I propose that detailed amendments be put forward and considered when the Senate Standing Committee on Legal and Constitutional Affairs inquiry report has been tabled; I understand it is due to be tabled by 23 February. I move:

That all words after “That” be omitted with a view to substituting the following words: “whilst not declining to give the bill a second reading, the House acknowledges;

(1)

that the native title system is currently mired in bureaucracy, and urgently needs a considered and practical approach from the Government;

(a)

to resolve native title claims effectively, expeditiously and fairly; and

(b)

to ensure Indigenous Australians are able to take full advantage of their legal rights;

(2)

the recent findings of Griffith University study which found that ‘federal policy and legislative and budgetary initiatives during the last decade have substantially weakened the negotiating position of Aboriginal people; and

(3)

that the amendments proposed by the Government;

(a)

represent a missed opportunity to remedy the real causes of delay and bottleneck in the native title system;

(b)

overlook calls from the Minerals Council of Australia 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; and

(d)

run the risk of making the claims resolution process slower and more bureaucratic”.

In speaking to the amendment, I note that back in September 2005 the government announced a package of six changes to the native title system. The primary purpose of this bill is to amend the Native Title Act of 1993 to implement aspects of four of the six elements of that package. The bill is expressed in terms of four schedules, and I would like to make some observations about each of those schedules.

At the heart of the first schedule is the introduction of periodic terms applying to the recognised status of native title representative bodies, with those periods to range between one and six years. I note that it is already the case that the minister is able to withdraw status recognition if a body is underperforming. It strikes me that periodic terms as to recognition will destabilise negotiations with third parties and create uncertainty surrounding development proposals, discourage already fragile staff tenure and the build-up of corporate knowledge, inhibit strategic business planning and the liquidity of these organisations, and increase infrastructure costs. It is my view that one-year periodic terms are inconsistent with the spirit of reducing red tape in this area. I also note that these organisations are representative institutions; they ought to be improved in quality and capacity rather than disbanded.

It is further part of schedule 1 that it broadens those native title service providers which can be recognised. I note that could lead to the government doing an open tender and bringing in non-Indigenous law firms. It was indicated to me in the briefing, which the Attorney-General kindly provided, that that is not the government’s intention, nevertheless, that is the way that the legislation is drafted. It is also part of schedule 1 that, with the passage of this bill, the minister would be able to reduce the amount of notice which he is required to give to a native title representative body, should he wish to close one down, from 90 to 60 days.

It is also part of schedule 1 that there is the removal of the requirement that native title representative bodies present their annual reports to parliament. It is the case that these bodies have to do an annual report in any case and I wish to query what harm there is in submitting these annual reports to parliament to provide that additional oversight. It is also part of schedule 1 that it enables the minister to change the territorial boundaries for the native title representative bodies without native title representative body consent. So there are a series of issues raised by schedule 1.

The heart of schedule 2 is the expansion of the power and role of the National Native Title Tribunal. There has been concern expressed by stakeholders regarding the role of that tribunal as being bureaucratic and slowing down the system. I will come back to some of these issues in more detail shortly. Schedule 3 deals with prescribed body corporate amendments and it is my view that the proposals in this schedule are not controversial and ought to be supported. Schedule 4 is essentially about assistance for nonclaimants and contains changes aimed at encouraging negotiation over litigation from non-claimant parties. Again it is my view that these matters are largely uncontroversial and can be supported.

There has been a very limited time for consultation in relation to the legislation. It has occurred over the summer. But it is clear that there is substantial opposition to the legislation. I understand the native title representative bodies unanimously oppose the bill. The Federal Court has expressed some concerns with substantial elements affecting it. The Aboriginal and Torres Strait Islander Social Justice Commissioner rejects most of it. The Western Australian state government and the Minerals Council have also expressed concerns, which I will come to in a little more detail shortly.

The consultation process has been such that, after the bill was introduced on 7 December, the Senate referred the provisions of the bill to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 23 February. Submissions were required by 19 January. I think it is regrettable that the government has brought this bill on for debate in this House before we get the benefit of the Senate committee report. I think that a lot of the discussion around the detail will have to await that Senate committee report and the recommendations of detail and substance which arise from it. There has been an extensive brief prepared by the Department of Parliamentary Services in relation to this bill and I am indebted to the Parliamentary Library for the work that they have done in putting it together. I intend to draw on it in some of the remarks I want to make about the content of the bill.

As I said, there are a series of organisations expressing concern about the consultation arrangements. For example, in its submission to the Senate committee, the Minerals Council of Australia has identified a lack of consultation with respect to this bill’s particular set of changes. They have contrasted that with other elements of the Attorney-General’s proposed changes and the consultation involved. They have expressed the view that the time frame for the inquiry into the final form of this legislation and its precise approach to implementing policies is arguably too short, in contrast with the more consultative nature of some of the government’s other preparatory work. One of the bodies that is a primary body dealt with in this legislation concerns the native title representative bodies which represent the native title interests of Indigenous Australians in a particular region. The bill also deals with prescribed bodies corporate. Where courts make a determination that native title exists, native titleholders are required to establish such a body corporate to represent them as a group and to manage their native title rights and interests.

The issue is frequently raised about the level of funding to each of these two primary bodies, the native title representative bodies and the prescribed body corporates. That has been an issue for quite some time. For example, the Native Title Tribunal’s most recent annual report observed that, for some years, there have been concerns about the perceived inadequacy of the human and financial resources available to representative bodies to perform their functions. In March last year, the parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund reported on the operation of these representative bodies. Both the majority report and the minority report expressed concerns about the issue of adequacy of resourcing.

The majority report recommended that the Commonwealth immediately review the adequacy of the level of funding provided by the Office of Indigenous Policy Coordination to native title representative bodies for capacity-building activities, including management and staff development and information technology. The minority report was even more strongly worded, saying that the evidence submitted to the committee on the impact of chronic underfunding was prolific, forceful and emanated from a variety of stakeholders, including the minerals sector.

The Minerals Council of Australia noted that, while reporting requirements had increased significantly in the past few years, there had been no real increase in operational funds since 1995. This meant that the native title representative bodies had less money to carry out their functions on the ground. It also commented that the workload of these bodies had risen steadily as the number of native title claims and mining applications proliferated. Of course, we can see a link between that and the issues of delays and failure to resolve claims. The Minerals Council again raised its concerns over funding in the course of the inquiry into this legislation. There have also been concerns expressed by the Human Rights and Equal Opportunity Commission’s Aboriginal and Torres Strait Islander Social Justice Commissioner along the following lines:

Inadequate funding of representative bodies has had the cumulative effect of undermining—

the native title representative bodies’—

... capacity to protect Indigenous interests in the native title process ... it has diminished the extent to which Indigenous people can enjoy their land, their culture, and the social, economic and political structures built upon them. In effect, it has diminished Indigenous peoples’ enjoyment of their human rights.

The need to increase ... funding has been recommended in the reports and reviews of government agencies, parliamentary committees, state governments and industry.

Despite recommendations to this effect in reports in 1995, 1999 and 2002, native title representative bodies have not received funding increases. The commissioner notes that, if these reforms are implemented, native title representative bodies will require further funds:

... as it is likely that their obligations and functions will change.

The Native Title Act does not envisage that the government fund native title claims directly but, instead, that it funds the representative bodies. The government does, however, fund respondent bodies. This bill, indeed, broadens that process.

The guidelines approved by the Attorney-General are in relation to applications for financial assistance for native title matters. One of the key features of the guidelines was that assistance was available to a person or organisation for mediation of native title matters and for negotiation of Indigenous land use agreements. Other key features were that assisted parties were not required to make their own contributions and that the hardship test was removed from the act. The Attorney-General’s Department has issued new draft funding guidelines which will modify these rules again and introduce more strenuous consideration of whether respondent parties are in a position to self-fund.

The sorts of concerns expressed about these proposals include that there may be insufficient mechanisms for review of ministerial or bureaucratic decisions being made in this area. Accountability for native title representative bodies is important, but they are presently subjected to a substantial amount of scrutiny. The derecognition process needs to be done according to clearly defined and transparently adjudicated criteria. There are currently minimal rights of review over ministerial discretion. While some of these decisions must be taken according to set criteria, the proposed amendments would remove some of the considerations to be included in those criteria.

The Office of Native Title of Western Australia suggested that the government provide further information about why the statutory criteria which previously underpinned the minister’s decisions regarding recognition of native title representative bodies—that is, satisfactory representation and consultation—have been removed by the bill. These amendments regarding the recognition and the withdrawal of recognition of representative bodies are declared by the bill as legislative instruments.

These legislative instruments are subject to disallowance. The amendments specify that three types of decisions by the minister are legislative instruments: the proposed section under which a minister can recognise a representative body; the proposed section under which the minister withdraws recognition from a defunct body or body which has asked to have recognition withdrawn; and the proposed section under which a minister withdraws recognition due to unsatisfactory performance or financial irregularities.

As the decisions made by the minister are made by legislative instrument, they are no longer subject to review under the Administrative Decisions (Judicial Review) Act. The Human Rights and Equal Opportunity Commission has raised concerns regarding those arrangements. It has argued that, by removing such decisions from the operations of the Administrative Decisions (Judicial Review) Act, the bill does severe damage to representative bodies. It argues that the only avenue for judicial review when a legislative instrument has been utilised is by prerogative writ, which is cumbersome and expensive. Furthermore, by subjecting them to disallowance proceedings:

... the proposed amendment would politicise recognition decisions, making them vulnerable to inappropriate public comment and potential political disruption in what should be a principled and predictable administrative process.

Another area of concern has been the length of time for which a representative body is recognised. The Minerals Council of Australia has proposed, for example, that periods of recognition for a representative body be three to six years rather than the proposed one to six years. For reasons of capacity building, certainty and stability, they suggest that recognition for less than three years would be inadequate.

The barrister John Basten has commented:

Representative bodies require a range of skills and expertise to perform their functions properly. Internally, managerial, accounting and administrative skills are at a premium. In addition, they require specialist professional services from anthropologists, land managers and lawyers. It is likely that such organisations will take years to develop critical levels of administrative competence, not merely to perform their functions adequately but to provide a work environment in which trained professionals will feel comfortable and will remain without unduly high levels of turnover.

These are serious concerns that have been expressed about the proposed changes in relation to periods of recognition.

There has also been discussion about the role of the National Native Title Tribunal. The Federal Court has argued—and this has appeared in other submissions as well—that the amendment giving the National Native Title Tribunal greater directive powers is an inappropriate legal and constitutional arrangement because it is likely to increase administrative costs—because ultimately the court will need to enforce the National Native Title Tribunal’s new powers if they are to be effective—and could violate the Constitution by giving judicial powers to a body which is primarily administrative in nature. It also argues that coercive powers are inappropriate in a mediation setting and that the court’s power to mediate should not be restricted while the tribunal is mediating a matter—as the amendments propose to do. There are a wide range of other concerns which will presumably be examined in the Senate report. As I indicated when I commenced my remarks, the debate in the House on this bill is scheduled for a time when that report is still in its preparatory stages.

I would now like to examine in a little more detail some of the changes proposed in the bill. The minister will have discretion to stipulate a period of recognition of between one and six years. There is a requirement that the representative body will satisfactorily represent persons who hold native title and will able to consult effectively with Aboriginal and Torres Strait Islanders living in the area being removed. The provisions which remain define who the Commonwealth minister may recognise as a representative body by providing that the body must be satisfactorily performing its functions as a representative body or would be able to do so. The functions of a representative body are itemised in section 203B and include facilitation and assistance functions, certification functions, notification functions, dispute resolution functions and internal review functions.

As I mentioned earlier, the minister is also able, after due consultation and consideration, to unilaterally extend or vary the area of a represented body. While the minister is required to consult before making these changes, there is no requirement that the views of the relevant representative bodies be a concluding feature of the matter—and that is a matter of some controversy as well. The standard time frame in which representative bodies are required to respond under a variety of sections has been shortened from 90 days to 60 days and the references in the current act to the need for a representative body to satisfactorily represent the native title holders and consult effectively with Aboriginal and Torres Strait Islander people have generally been abandoned in favour of a shorter formulation focusing on whether the representative body is satisfactorily performing its functions.

There is also some change made in the area of claims resolution review. Section 84 has been amended to reduce the number of grounds that entitle a person to become a party to native title proceedings. The previous procedure was that the registrar notified a range of potential parties to the proceedings. In order to join, what was required was that the party reply to the registrar within the required time frame. The amendments limit the range of people to whom the registrar will give notice of proceedings and stipulate a more restrictive range of those who are automatically a party to proceedings. The amendment requires an ‘interest in relation to land or waters’ whereas previously it was simply ‘an interest’.

As I indicated before, the Native Title Tribunal is to be given significant new powers. Parties are required to act in good faith in mediations, and the tribunal may include details of any failure to so act in its annual report. If it is proposed to include such details in the annual report, the presiding member must inform the government party before doing so. Apart from documenting the issue in the annual report, the presiding member may report the matter to the relevant Commonwealth, state or territory minister; the relevant secretary of a department; the relevant legal professional body; and the Federal Court.

As I have indicated, we have concerns about whether these changes are going to help matters and result in the swifter and more efficient resolution of claims—which I think everyone would like to see—or result in more uncertainty and more delays and not help in the objective of reducing the time taken to resolve native title claims. Based on his previous public comments, I suspect that the Attorney-General will be claiming support for this legislation from the states. He referred in a press release to the native title ministers meeting in December 2006. I had a look at the communique from the meeting. It is quite clear to me that the Attorney-General is drawing a long bow in claiming support from the states on the basis of a communique in which the states have agreed that ministers should continue working together to secure better outcomes from the system.

Furthermore, I draw the attention of the House to the submission made by the Western Australian government’s Office of Native Title to the inquiry into this legislation and, in particular, to the comments and concerns expressed about schedule 2, which goes to this issue of claims resolution review. The Office of Native Title indicates that it supports the inclusion of a good-faith requirement in the Native Title Act in respect of native title mediation, but it goes on to say:

However, to preserve the impartiality of the presiding National Native Title Tribunal (NNTT) member, parties to the mediation rather than the NNTT member should raise any alleged breaches in the first instance.

Further, and more significantly, the proposed sanctions would see the NNTT empowered to make reports about potential breaches of the good faith requirement to certain entities ... including the Court, and to include details of alleged breaches by government parties in its annual report. It is a matter of concern that the proposed amendments would not accord natural justice to parties allegedly contravening the good faith requirement, in so far as there is no requirement for the NNTT to advise and/or seek the views of parties considered to be in breach before it reports or publishes details of an alleged breach. It is recommended the proposed provisions be amended to require the presiding NNTT member to advise a party if he or she considers they are not acting in good faith and give that party an opportunity to respond.

Further in relation to schedule 2 is the question of the connection review function. The Office of Native Title in Western Australia says:

The proposed amendments to enable the NNTT to undertake a review of connection material have the potential to undermine State and Territory government connection assessment processes, cause further delays in the resolution of native title claims and place increased pressure on an already limited pool of experts in the system.

It is understood the main intent of the provisions is to facilitate the agreement of non-government third parties to proposed consent determinations, where they are reluctant to accept the relevant State or Territory government’s assessment that connection is met. Consistent with the Commonwealth’s push for States and Territories to adopt transparent practices, the Western Australian Government has released connection guidelines and, in the case of positive assessments, provides respondent parties with a ‘position paper’ outlining the basis upon which the Government considers connection is met. Despite participation in the proposed NNTT connection reviews being voluntary, native title parties could nevertheless use the provisions as a means of “forum shopping” if the State Government considers that connection is not met, potentially undermining the transparent processes the Western Australian Government has put in place.

In addition, if claimants seek an NNTT review following a decision of the relevant government that connection is not satisfied, the resolution of the claim, whether by an agreed or litigated outcome that native title does not exist, will also be further delayed. The amendments also anticipate the NNTT relying on consultants to conduct a review, which could further increase demand on an already limited pool of qualified experts, such as anthropologists. The Commonwealth Attorney-General’s recent comments acknowledge that the current shortage of anthropologists in the native title system is contributing to the delay in resolving native title claims. If the NNTT also seeks to rely on anthropologists in undertaking reviews of connection, the demands on anthropologists and the associated delay in resolving claims would increase.

Given that background, I have moved the second reading amendment in my name. I look forward to the Senate committee’s report and to further debate in this House and in the Senate on the detail of this bill.

Mrs Bronwyn Bishop (Mackellar, Liberal Party) Share this | Link to this | Hansard source

Is the amendment seconded?

Jenny Macklin (Jagajaga, Australian Labor Party, Shadow Minister for Families and Community Services) Share this | Link to this | Hansard source

I second the amendment and reserve my right to speak.

Ian Causley (Page, Deputy-Speaker) Share this | Link to this | Hansard source

The original question was that the bill be now read a second time. To this the honourable member for Wills has moved as an amendment that all words after ‘That’ be omitted with a view to substituting other words. The question now is that the words proposed to be omitted stand part of the question.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

I rise in the House tonight to express my support for the Native Title Amendment Bill 2006. While I understand the argument advanced by many people that it would have been more cost-effective and beneficial to Indigenous Australians for native title to have been extinguished and full compensation paid, the government must deal with the situation as it currently exists. The support the government has, and hopefully the opposition will also provide, for these amendments to the Native Title Act is very important insofar as there have not been changes made to the Native Title Act by way of substantial amendment for a period of some eight years.

As the Attorney-General indicated in introducing the bill late last year, the key catalyst for the present reforms is the absolute commitment by the government to improving the performance of the native title system. I think every member of parliament, regardless of the party they represent, has been the recipient of complaints about the native title system—about the delays and about the lost business and employment opportunities resulting from the system. Of course, the sad thing is that Indigenous Australians have not themselves benefited in the way that they would have had there been a more efficient system. That is why these measures are important to reform a system which has been in need of reform for some time.

It is important to always recognise that this government does consult, and these reforms were not developed in a vacuum. The process of going out into the community and finding what the community wants is something that this Attorney and this government have been particularly diligently in following through during the period since 1996, when we were entrusted with government. The honourable member for Wills seemed to criticise a lack of consultation by the government with respect to this legislation. The government rejects that; the government has consulted key stakeholders across the native title system.

The Attorney-General originally announced the framework for reforms in September 2005. These comprise a series of six complementary elements aimed at addressing all aspects of the system. Back then, the Attorney-General emphasised the desire to achieve a better result for all parties involved in native title and undertook to ensure that stakeholder concerns were taken into account. On my submission, this bill does in fact take into account the concerns expressed by stakeholders. There has been substantial consultation in relation to all elements of the legislation currently before the chamber, and the results of that consultation, in the view of the government, are accurately represented in the clauses the House is currently debating.

The four schedules in the bill before the House will respectively implement aspects of four of the six elements of the government’s reform package. These aspects include measures to clarify the key institutional arrangements for the resolution of native title claims through the implementation of a series of key recommendations made by the Native Title Claims Resolution Review on how the National Native Title Tribunal and the Federal Court might work more effectively on native title matters.

The bill, as the Attorney has indicated, also includes particular measures to improve the effectiveness of representative bodies in the area of native title which generally represent claimants in the native title system and to encourage the effective functioning of prescribed bodies corporate—the bodies established to manage native title once it has been recognised. In addition, the bill will broaden the existing provision for assistance to non-claimant parties so that government assistance can be provided in a wider range of circumstances to respondents participating in the right to negotiate process. I think that this additional assistance will mean that the system will be streamlined and hopefully more satisfactory outcomes will be achieved more expeditiously.

Collectively, the measures will reflect a balanced and considered approach to improving native title processes without disrupting the overall system or undermining the current balance of rights under the Native Title Act. It is important to appreciate that these reforms are part of a broader package intended to address all key elements of the system in an appropriate way. I am advised that there will be further legislation before the House to implement outstanding measures and that it should be introduced to the parliament later in the 2007 calendar year and will include a number of amendments, some minor and technical, which have also been the subject of detailed discussion.

The honourable member for Wills mentioned that the Attorney-General claimed the support of the states. The simple fact of the matter is that the government has sought to work with the states and territories to secure and ensure agreement on improvements to the native title system. As recently as December 2006 the Attorney-General convened a meeting of native title ministers and they noted the proposed package of reforms and, significantly, agreed that all parties, including governments, should continue to build on this package. That is an indication that the ministers are broadly happy with what the government is doing. It is important that we in the House recognise that, while it is inherently complex, native title can and has assisted in securing meaningful outcomes for Indigenous Australians. That is a view which might be disputed by some, and I suspect that the benefits of native title have not been received by some Indigenous Australians, but native title has probably assisted in securing meaningful outcomes for Indigenous Australians.

I am advised that, up until the present day, there have been over 90 determinations of native title. In many of these cases, the determinations have been by agreement. About nine per cent of Australia’s land mass has been the subject of native title determinations, an area comprising over three times the state of Victoria. If you went out in the community, many people would see this as a matter of some concern. Many people in the community also would have been incredibly surprised when the High Court found that native title had survived. As I said at the outset in this speech, the government has to deal with the situation that we have, and this bill seeks to improve the administration of native title. Engagement between parties on native title processes can assist in building meaningful and productive relationships which may endure beyond the resolution of specific claims. This bill offers a way forward. It seeks to improve the administration of native title and, in doing so, achieve a more efficient and effective outcome, which is in the interests of not only Indigenous Australians but also the broader Australian community. I am pleased to be able to commend the Native Title Amendment Bill 2006 to the House for its consideration.

Jenny Macklin (Jagajaga, Australian Labor Party, Shadow Minister for Families and Community Services) Share this | Link to this | Hansard source

I think it is important for us to remember that it was a momentous time in Australian history when the fiction of terra nullius came crumbling down and the then Labor government, with Indigenous leadership, negotiated to pass the Native Title Act. This is an opportunity to remember that very significant time in our history. Of course, the legislation was not perfect, but it was unprecedented. Some things had to be tried out with the understanding that there might need to be finetuning in the future. Years later, one of the good things is that native title has become part of the everyday business of mining companies and pastoralists. I would like to pay a particular tribute to the late Rick Farley and his extraordinary work, especially during his time with the National Farmers Federation, to make native title a reality for so many people.

There are many issues to be addressed to improve the workings of the Native Title Act but, unfortunately, the Native Title Amendment Bill 2006 is not the answer to many of the problems facing the native title system. Recently, we have seen reported research from Griffith University which provided a very timely insight into the effectiveness of Indigenous land use agreements. The study of 45 Indigenous land use agreements over the past 10 years found that half of them ‘were either basket cases that should never have been entered into’ or delivered few benefits for Indigenous Australians. The study also found that Indigenous groups:

… are seriously deficient in the financial, organisational and technical resources required to deal with modern, complex development projects and the companies and state agencies that promote them.

I think this really is the critical point facing the native title system and unfortunately this legislation does not address this significant concern at all.

The challenge for representative bodies is complex indeed. They must not only act in drawn out legal and project approval processes while monitoring the activities of third parties but also consult with traditional owners who are spread out over large and sometimes remote areas. Representative bodies need to be proficient in the law, in policy, in politics, in culture and in strategic planning. Yet the study I referred to earlier concluded:

Federal policy and legislative and budgetary initiatives during the last decade have substantially weakened the negotiating position of Aboriginal people.

Noel Pearson from the Cape York Institute could not agree more. In the Weekend Australian he wrote:

The federal Government has continued to legislate to weaken the indigenous position, both in terms of the procedural rights of landowners and the institutional support they receive from land councils. They are now proposing another round of amendments that further threaten the capacity of indigenous people to deal with developers.

Pearson described the challenges for land councils in dealing with fragmentation and overlapping claims as ‘an enormous native cat-herding challenge’. He also argued that their limited commercial and financial capacity was no match for mining companies that have ‘Adam Gilchrist flashing the blade for them’. So, once again, the missed opportunity that this bill represents is very disappointing and I think Noel Pearson captures that very succinctly.

Despite the recommendation of the red tape evaluation report of the Office of Indigenous Policy Coordination that the government move away from rigid compliance frameworks to a focus on capacity building and community outcomes, we see another piece of legislation here tonight that is premised on more top-down accountability and box ticking. Under the Native Title Act, native title representative bodies represent traditional owners to advance their native title interests and broader community agendas. They have to build relationships with non-English speakers and with people who have totally different concepts of information sharing, knowledge and lifestyle. They have to cross very significant cultural divides and build trust. They have to become custodians of delicate intellectual property. They certainly have to be more than a government agency. But the bill, instead of moving towards capacity building, treats native title representative bodies like, for example, Job Network providers that can easily be replaced or franchised.

Labor is all for making native title representative bodies perform better and be more accountable to the people they represent. That will be achieved, however, by building the capacity and governance of representative bodies, encouraging quality and long-term staff and empowering traditional owners to hold their representative body to account through community education. It certainly will not be achieved by putting more bureaucratic hoops in the way. We need to foster more upward accountability from the people on the ground so that they can really see if the body representing them is doing a good job. Native title representative bodies already endure too much red tape and bureaucratic micromanagement. You have only to look at the government’s own report to confirm that.

We support the move to make funding agreements longer than one year, as provided in this bill. But we do not support putting those bodies through periodic ‘rerecognition’, primarily because it is unnecessary given the Attorney-General already has the power to withdraw recognition for a poorly performing native title representative body. It is cumbersome and contrary to the principles of capacity building. Instead of doing this, the government should implement the recommendations of the inquiry into native title representative bodies. The inquiry recommended that the government immediately review the adequacy of funding for these bodies and target their chronic staffing issues but that proposal has not been picked up by the government. The Attorney-General’s Department claims that some representative bodies have underspent their budgets because they cannot attract or retain staff. You would have to ask, ‘Why would you want to take a three- to six-month contract with unattractive pay?’ The bodies need to be better resourced to attract experienced people so that they can do the job that needs to be done.

The inquiry also recommended that the government second expert government staff to representative bodies and provide ongoing professional development and scholarships to staff. Once again, these proposals have not been picked up. It is recommended that the government develop comparative data, based on a range of indicators, to assess the relative effectiveness of representative bodies and publish this data annually. These indicators could include their levels of client satisfaction and their success in forging regional outcomes with industry, like jobs, investment in Indigenous enterprise and social programs. Sadly it seems that the measures affecting representative bodies in this bill were written with no regard for this bigger picture.

The bill introduces periodic terms for recognition of representative bodies. Under the existing act, these bodies enjoy indefinite recognition, which is tempered, however, by the minister’s power to withdraw recognition if a body is poorly performing. Not only does the bill introduce periodic recognition, it makes it easier for the minister to withdraw recognition. The test for withdrawal has been broadened and the minister is required only to give 60, not 90, days notice. In our view, this expansion of ministerial power is unnecessary and frankly over the top. It leaves representative bodies even more vulnerable to political interference and undermines their independence.

Periodic terms will inhibit strategic business planning. It will require more resources to go into the reapplication process; it will increase infrastructure costs as leases or hire will be more expensive; and it will destabilise negotiations with third parties, as there will be less certainty. I am sure the government is aware that an average native title claim can take six years. What is more, if we go to short-term periodic terms, it will make it much harder to attract and retain quality staff.

It is also a possibility under these changes for the minister to open native title representative body services up for tender. We certainly hope that this is not the intention of the government, as clearly private law firms would not have the expertise or capacity to carry out representative functions. The minister’s new power to change the territorial boundaries of a representative body without its consent is also unwarranted. Their areas are usually dictated by regional clusters of clan and language groups. It is reflected in the body’s constitution and membership. The representative body should have a final say as to who it represents.

The amendments in this legislation will not improve the performance or capacity of representative bodies to advance Indigenous interests. This really goes to the core of the issue. The annual Native title report of successive Aboriginal and Torres Strait Islander social justice commissioners has called for proper funding for representative bodies so that they can research and pursue the regional tasks that are their responsibility.

Indigenous land use agreements could become common tools of economic development but, as the report I quoted from Griffith University indicates, that is not occurring at the moment. Stronger deals could be struck as the technical and procedural aspects of negotiation become less onerous and time consuming. It would be much better to see our representative bodies becoming forces to be reckoned with like their counterparts in New Zealand and Canada.

Instead of investing in the capacity of representative bodies, the government has invested its faith in the National Native Title Tribunal, which is far from a proven performer in this field. The government believes that the expanded powers to assist the Federal Court with inquiries, including the power to compel parties to attend mediation and produce documents, and to report parties who negotiate in bad faith, will give the tribunal the teeth it needs to become effective. We would like to hope that that is the case, but the submissions to the inquiry did not express the same optimism. The National Native Title Council argued that mediation was a lot more effective and expeditious in the Federal Court than it was in the National Native Title Tribunal. This argument is grounded in the Griffith University research, which found that the best land use agreements were negotiated outside the tribunal.

The independent Claims resolution review report noted that, as of January 2006, 76 per cent of mediation in the tribunal had been going on for more than three years and that just under 48 per cent of mediation had been going on for more than five years. The Minerals Council of Australia has offered its cautious support, but only on the condition that the tribunal dramatically improve its performance and capacity with existing resources.

The objectivity and impartiality of the tribunal has also come into question. Although it will be exercising quasijudicial powers, it will continue to be part of the executive or administrative arm of government. Of course, Labor do support non-adversarial processes. We understand the merits of tribunals. We support them in various parts of government—in industrial relations and administrative appeals, for example—but we need to have a serious rethink about how well it is working in resolving native title claims.

It is clear that the tribunal’s processes and difficult interactions with the Federal Court are one of the ills of the native title system. We are not to this point convinced that giving the tribunal more power in more parts of the process will help. We would like to know how the government will assess whether it is working or not. How does it intend to monitor the performance of the tribunal, given the figures that I read out before? The fact that 76 per cent of mediation in the tribunal had been going on for more than three years does not look like a recipe for success.

The changes before us in this legislation give prescribed bodies corporate more freedom in their decision making and the ability to benefit from economies of scale by sharing their infrastructure with other bodies. These are positive changes, but once again I do want to reiterate that they do not address the most pressing concern: how these bodies can generate an income or plan strategically without any resources. That issue is not addressed in this legislation.

The Minerals Council was particularly disappointed with the government’s failure to show more innovation in this area. We share in that disappointment on this side of the House. The government needs to go back to the drafting board—this time with the informed advice of stakeholders at the forefront of its mind. As the shadow Attorney-General has indicated, Labor will be drafting substantive amendments to address our concerns with this bill, which we will move in the Senate. I do hope that the government will look at these amendments, which will be put in good faith to improve the workings of the native title system. At this stage, without these amendments, Labor cannot support the bill. I support the second reading amendment that has been moved by my colleague.

Barry Wakelin (Grey, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Native Title Amendment Bill 2006 as someone who was in this place in 1993, when the first native title legislation created a record in this place, particularly in the Senate, for the length of the debate. I seem to recall it was Saturday morning before we were finally able to go to our respective homes across Australia after this matter had been resolved as far as it could be at the time.

My electorate saw one of the first experiments in a form of native title, in the Pitjantjatjara lands, where really the first land rights legislation was put into place for inalienable freehold title. That legislation, which has recently been the subject of some change in South Australia, was put through the state parliament almost 30 years ago. In the subsequent period, I seem to remember Senator Harradine of Tasmania being involved in native title, and we ended up leaving a number of matters to the states and territories. From those early years, the various players, the complexity and the dealings with the High Court, we can understand what has led us to further change in the chamber tonight.

I, of course, support the bill. It includes a series of significant and balanced reforms to the Native Title Act 1993, which has not been the subject of substantial amendment for more than eight years. As the Attorney-General noted in introducing the bill late last year, the key catalyst for the present reforms is the government’s commitment to improve the performance of the native title system. It is important to acknowledge these reforms were not developed in a vacuum but have instead been informed by an extensive consultation process involving key stakeholders across the native title system.

The Attorney-General originally announced the broad framework for reforms to the native title system in September 2005. This framework comprised a series of six complementary elements aimed at addressing all aspects of the system. At that time, the Attorney-General emphasised the need to achieve better outcomes for all parties—I repeat ‘for all parties’—involved in native title and undertook to ensure stakeholder concerns were taken into account. Since then the government has undertaken consultation on all elements of the reform package, and the outcome of such consultation is reflected in the legislation currently before the House.

The four schedules in the current bill will, respectively, implement aspects of four of the six elements of the government’s reform package. Those aspects include measures to clarify the key institutional arrangements for the resolution of native title claims through implementation of a series of key recommendations made by the Native Title Claims Resolution Review in relation to how the National Native Title Tribunal and the Federal Court might work more effectively on native title matters. If you look at the bill, you will see it does make very genuine efforts to bring about a greater meeting of minds to avoid duplication, which has apparently been a serious issue up till now.

The bill also includes specific measures to improve the effectiveness of native title representative bodies, which generally represent claimants in the native title system, and to encourage the effective functioning of prescribed bodies corporate, the bodies established to manage native title once it has been recognised.

Finally, the bill will broaden the existing provision for assistance to non-claimant parties so that government assistance can be provided in a wider range of circumstances to respondents participating in the right to negotiate process. I hear the concerns from the previous speakers from the opposition, most recently the member for Jagajaga, and I believe that that measure does address some—not all, I am sure—of those resource issues.

Collectively these measures reflect a balanced and considered approach to improving native title processes without disrupting the overall system and without undermining the existing balance of rights under the Native Title Act. People will well recall 1993 and the period eight years ago—which I have just been reminded of—when there was very extensive debate and the effort to try and get a balance tested the whole structure of this parliament.

It is critical that we recognise these reforms as part of a broader package which is intended to address all key elements of the system in a rational and coherent way. I understand a second bill to implement outstanding measures will be introduced into parliament later this sitting and will include minor and technical amendments which have also been the subject of detailed consultation.

The government has also sought to work with the states and territories to secure agreement on improvements to the native title system. This can quite often be overlooked, but the states and territories, at the end of the day, have responsibility for our land title system. Whilst we endeavour to put a national template there, a national framework, there is a very significant responsibility with our states and territories.

In December last year the Attorney-General convened a meeting of native title ministers from the states and territories. Ministers noted the proposed package of reforms and, significantly, agreed that all parties, including governments, should continue to build on this package. It is important that we in this House acknowledge that, while native title is inherently complex, it can and has assisted in securing meaningful outcomes for Indigenous Australians.

To date, there have been over 90 determinations of native title, the majority of which have been reached with the consent of all parties. Nearly nine per cent of Australia’s landmass has been the subject of native title determinations. I also note that engagement between parties on native title processes can assist in building meaningful and productive relationships which may endure beyond resolution of specific claims. I know that from my own electorate. The current bill offers a means to build on this with a view to achieving more efficient and effective outcomes, which is in the interests of all Australians. I commend the bill to the House.

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

Firstly, let me acknowledge the contribution to this debate on the Native Title Amendment Bill 2006 of the previous speaker, my friend the member for Grey, whom I must say I disagree with partly because we are clearly not satisfied with these amendments. We think they should go a lot further, and we do not think they meet the need to amend this legislation properly and to meet the objectives the government says it is trying to set out for itself. I want to make a passing comment on the dog whistling of the member for Fisher. I do not think it was appropriate in the context of this discussion. The Mabo debate happened in 1993. He lost that debate, despite his position, and today he tried to reinvent it. I say that as a person who participated in that debate in 1993 and was part of the processes of government in 1993 which eventually got us to the native title legislation.

I note the member for Jagajaga commented on the role of Rick Farley and others. I too want to commend the role that was played not only by Rick Farley but by the then chairperson of ATSIC, Lois O’Donoghue, and a range of other people such as Pat Dodson and Noel Pearson—and too many others to mention—who were involved in discussions with government about the appropriateness of the legislation and what might go into it. Of course it was imperfect because it was subject to substantial debate in the Senate, and the length of that debate has been commented on. But it is worth reminding ourselves of some of the central objectives of the act. According to the preamble these included, firstly, to provide for ‘the recognition and protection of native title’ and, secondly, the establishment of ways in which future dealings and development affecting native title may occur so as to ‘ensure that native title holders are able to enjoy fully their rights and interests ... under the common law of Australia’.

Since 1993 there has been mixed success. There were substantial amendments made in 1998. The bill has been imperfect. It was imperfect then; it remains imperfect. And the current situation is still far from adequate. On recent figures, while 91 claims have been resolved—and this is a point which has been made and boasted about by the members of the government—there remain 600 unresolved. On average, claims are taking six years to be resolved. That, I think, highlights a real problem. We in Labor want to see claims resolved quickly, effectively and fairly. This is in the interests of all parties. Unfortunately, this has not been happening, and this government has taken far too long to do something about it. I think it is truly indicative of a government which has failed Indigenous Australians generally.

If the government was serious about improving the situation for Indigenous people it would do something to improve their position in relation to developers, to allow them to share equitably in mining developments and so on. Development which is handled responsibly and ethically has the potential to provide significant assistance to Indigenous Australians as well as to the wider Australian community. The key is involving them fairly in the process. To date this has often not happened, although I must say there are now some shining examples of cooperation between the mining industry in particular, and elements of the pastoral industry, with native title claimants and native title holders—and I commend those people for that. Generally speaking, of course, this has been done outside of any relationship with the Native Title Tribunal.

It is worth pointing out the observations of Ciaran O’Faircheallaigh, from Griffith University, who has done some considerable work on the issue of native title. In his article ‘Aborigines, Mining Companies and the State in Contemporary Australia: A New Political Economy or Business as Usual?’ in the Australian Journal of Political Science in March 2006, he wrote:

... while the Native Title Act has created opportunities for many Aboriginal people to engage with resource developers for the first time, federal policy and legislative and budgetary initiatives during the last decade have substantially weakened the negotiating position of Aboriginal peoples in dealing with [mining] developers.

He then says:

... in general, the legal, policy and institutional environment remains largely hostile to Aboriginal interests. In particular, legal and administrative aspects of the environment that are notionally politically neutral and objective are in fact highly politicised in that they systematically favour the interest of developers over those of Aboriginal landowners.

Just two weeks ago, on 30 January, early findings from O’Faircheallaigh’s latest research into land use agreements between Indigenous groups, mining companies and governments were released in the Australian. He comments that these agreements have failed to deliver significant outcomes for the majority of Indigenous people who signed them. Specifically, he believes that more than half of the agreements were either ‘basket cases that should never have been entered into’—and I note this was commented upon by the member for Jagajaga—or had delivered a few cultural and monetary benefits to Aboriginal people. This is the situation that has come to pass under the Howard government’s administration of Indigenous affairs. Indigenous Australians are continually being marginalised and not engaged in development opportunities when they otherwise might be, apart from where I say the initiative has been taken by the parties to come together outside of the formal arrangements that might otherwise be.

I think we need to look very seriously at the changes in this legislation. There is much in this bill which gives cause for concern. Specifically, the changes to the native title representative bodies and the claims resolution review are two facets which are highly flawed. Schedule 1 deals with the native title representative bodies. We need to understand—and those of us who have been engaged in this process for any length of time do understand—that native title rep bodies are essential to the effectiveness of the system and are key actors. They perform a range of statutory functions under the act, most notably lodging and progressing native title claims and dealing with future act notices. There are real issues about their resourcing which I know others have commented upon but which this government has failed to address. The changes proposed by this legislation are purportedly aimed at improving the effectiveness and accountability of native title rep bodies, but there is a great deal of concern about the effect that these changes will have.

It is worth noting that these concerns are being voiced by a variety of actors involved in the native title process, in particular the National Native Title Council, which is made up of the recognised representatives bodies around Australia, but also, I would add, by the Minerals Council, the peak mining group body. Under this bill there is no longer to be permanent recognition of native title rep bodies. This is to be changed to a system of periodic recognition of between one and six years, to be determined at the discretion of the minister. There are a number of problems to this. Firstly, there is the real potential for instability for the key groups involved in the native title matters—industry, government and native title claimants. The Minerals Council of Australia, significantly, was concerned at the prospect of one-year periods of recognition. The fact of the matter is that recognition on a temporary basis, such as that proposed, will cause uncertainty for all relevant groups as to who they may be dealing with at any given time. Further, there will be instability and uncertainty for the bodies themselves and, most importantly, for those whom they employ and those they work for and represent.

There is the possibility that short terms of recognition will impair the proper operation of these organisations. The shadow Attorney made the observation about staffing and talked about anthropologists. Let me make it very clear: if you are offering the prospect of temporary employment for short periods, it is unlikely that you are going to attract specialists who are in high demand into these organisations on a yearly basis. And it will affect the organisation’s ability to set long-term agendas in the employment of their staff, the leasing and renting of premises and infrastructure and the entering into of contractual arrangements with third parties.

The current arrangement, where bodies are funded on a yearly basis, is already uncertain enough as it is. The function performed by rep bodies is complicated and requires experience. I think there is real potential for this to be undermined by these changes. If the government wants these bodies to work more effectively and efficiently, they need to fund them better and properly. There is no additional funding going to native title rep bodies under this legislation, just as there is no additional money going to prescribed bodies corporate under this legislation. These changes will squeeze them harder. They are already overworked and underfunded. This has been recognised in a range of reports and academic articles.

In 1998 independent consultants commissioned by the federal government concluded that rep bodies would need to be allocated approximately double their existing levels of funding in order to perform their core statutory obligations. That was in the Love-Rashid report. This was also evident in the report Operation of native title representative bodies, which was handed down by the Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Account, which is now defunct, in March of 2006. The committee recommended that the Commonwealth immediately review the level of operational funding provided to rep bodies to:

... ensure that they are adequately resourced and reasonably able to meet their performance standards and fulfil their statutory functions.

The government expects much of native title rep bodies but delivers little to them at the same time.

The changes in the bill also expand the range of bodies that can become native title rep bodies. This is a concern because it shifts away from Indigenous involvement, and major warning bells arise out of this proposal. Item 5 of the amendments inserts a new section 201B(1)(ba) to the effect that a ‘company incorporated under the Corporations Act’ will qualify for native title representative body status. Under the current act, the minister is required to be satisfied that the native title rep body (a) satisfactorily represents native title claimants and (b) consults effectively with Indigenous people in its area. Under the amendments, these requirements are removed. The minister just needs to be satisfied that the native title rep body can perform its functions. This change shows a callous disregard for prospective Aboriginal involvement in the native title claims process and in rep bodies. It also demonstrates a failure to understand the wider role that rep bodies play. By virtue of their community representative nature and their ability to work successfully with Indigenous people, rep bodies are placed in a prime position to integrate native title activities, consultation processes, representative forums and agreement outcomes with other land related aspirations and activities.

Then there is the derecognition process. Under these changes, rep bodies can be stripped of their status in a way which is a major cause for concern. Currently, the minister cannot remove rep body status unless satisfied that the rep body is unlikely to remedy the relevant deficiencies that might have been identified by the minister or his department. Under the changes being proposed by government, the criteria for derecognition will be dramatically lessened. The minister will only need to be satisfied that the rep body is not ‘satisfactorily performing its functions’ or that there are serious or repeated financial irregularities. This is a dramatic reduction in what needs to be shown. Effectively, these changes bring in summary derecognition at the minister’s request. This change, and there are others in this bill like it, reflects a movement towards greater ministerial control and discretion.

This is a wider trend in Indigenous affairs in this country under this government. You only need to look at the recent amendments to the Aboriginal Land Rights (Northern Territory) Act and other activities the government is undertaking for proof of this. This government has no qualms in cutting out the need for informed advice, particularly from the Indigenous people most affected. It is a disturbing trend, and further alienates Aboriginal people from contributing to decisions made which affect them. The changes also reduce the period of notice required for the minister to remove the status of a rep body from 90 days to 60 days. Given the gravity of the matter, this change is difficult to accept.

There are also amendments which allow the minister to make changes to the geographical boundaries of rep bodies. Under the changes, a rep body can be required to administer a larger area, even against its wishes, where the minister decides that it can perform the functions of an adjoining area that does not have a rep body or where the adjoining area has a rep body but the minister thinks there needs to be a boundary adjustment. The government fails to realise that these boundaries were determined to reflect different cultural groups. They are reflected in rep body membership and other constitutional aspects. We should not proceed on this course. What is so odious about this particular change is that the minister has the power to order this without consent. This is an unnecessary and quite draconian measure. A preferable alternative would be to invite bodies to take up the area. Again, the time for boundary changes to take effect is reduced from 90 days to 60 days. The effect of this change means there is not enough time for proper consultation.

I am also concerned about the removal of the reporting requirement. Currently rep bodies need to prepare strategic plans and provide an annual report to parliament. Under the guise of reducing red tape the government is proposing to scrap this requirement. However, the bodies would still be required to give these to the minister through the Department of Families, Community Services and Indigenous Affairs. That is proper and as it should be. But what is being reduced is the possibility of parliamentary oversight of these bodies and the native title system. When these documents are not tabled in parliament, it removes the opportunity for them to be properly inquired into in the way they were previously when reports were tabled.

Then there is the issue of the claims resolution review and the shift to mediation by the tribunal under schedule 2. The main concern is the shift in emphasis from the Federal Court to the National Native Title Tribunal, and I note that the member for Jagajaga went extensively into this issue. The court has a proven track record in this regard. In contrast, the tribunal’s mediation performance has been a lot less effective.

The views of native title practitioners give some insight into the tribunal. Paul Hayes is a solicitor with experience working with native title in the Northern Territory, Queensland and New South Wales. In an article which he published titled the ‘National Native Title Tribunal: effective mediator or bureaucratic albatross? A user’s perspective’ published in the Indigenous Law Bulletin in 2002, volume 40, he observed that the track record of the NNTT in mediating claims is in serious question and he argues that there are many deficiencies in the way that they carry out that function.

The alleged inefficiencies of the tribunal are also borne out by the statistics provided in the Native Title Claims Review, the independent review carried out by Mr Graham Hiley QC and Dr Ken Levy. On 17 January 2006, of the 356 claims currently with the tribunal for mediation, 272—approximately 76 per cent—had been with the tribunal for more than three years, and 170—just under 48 per cent—for more than five years. The court has a much better track record in delivering results from mediation.

One perspective on the tribunal—and possible reform to it—is that offered by Hayes. He noted that the tribunal has not turned out as it was originally intended. This is because of the High Court’s decision in Brandy in 1995, which meant that most of its judicial function had to be shifted to the court. He wrote:

As a result of this reduction in the NNTT’s role, we are left with an unnecessarily bureaucratic and often gratuitous mediation body, whose mediation services could be performed by other more appropriate bodies.

Appropriate legislative reform would see the removal of the mediation functions of the NNTT and appropriate resourcing of NTRBs and the Federal Court to provide mediation as and when it is needed.

This is a view that I know is supported by many involved with the rep bodies. Then there are also the questions raised about the constitutionality of this proposal.

In coming to the conclusion of my contribution, there are various compulsive powers proposed for the tribunal in the bill to accompany its role in mediation. These include the power to compel parties to attend mediation and produce documents, and to report a party for not acting in good faith—and the relevant Commonwealth or state minister and, depending on the party, perhaps a legal professional body or court will decide the consequences for this breach. These ‘teeth’ given to the tribunal are harsh, oppressive and contrary to the idea of mediation. This is not the way to improve the native title system.

There are proposed changes to the prescribed body corporates under schedule 3. This relates to issues including consultations requiring PBCs. Consultation will only be compulsory where it involves surrendering native title rights and interests in land or waters. We support these changes; they stand to make life easier for PBCs in their role in carrying out native title. But at the same time, there is nothing in this legislation which provides for additional resources to allow PBCs to carry out their functions more appropriately.

This bill will serve to complicate native title and will not do the job it purports to do. I say to the government that they should heed the proposals which we will be putting in detail in the Senate and support those proposals so that we can get an improved native title outcome for all people involved in the native title system. Most particularly, we will be able to defend the rights of Indigenous Australians, the people we should be most concerned about in this process. I commend the opposition’s amendment to the House and suggest that the government take it on board.

Simon Crean (Hotham, Australian Labor Party, Shadow Minister for Trade and Regional Development) Share this | Link to this | Hansard source

I too rise to support the amendment that has been moved by the member for Wills to the Native Title Amendment Bill 2006. This legislation does little to improve the functioning of this vexed area of native title. It is a pity, because this is something that we have had to work at consistently as a parliament since the Mabo decision in 1993. Our concern is that when this government came to power, rather than dealing with trying to assist the evolution of this process and give effect to what in essence was the Mabo decision—the recognition of the concept of native title but the argument that there could be many aspects by which it could be addressed through coexistence—this government has done little to facilitate that way forward. In fact it has allowed the native title system to become very bureaucratic. At the same time as making the system more complicated, our concern as well is that it has failed to adequately resource the representative bodies that are charged with the task of trying to deal with this problem on the ground to achieve negotiated outcomes.

The legislation is also being debated in the House despite the fact that the Senate committee considering the detail of it is not scheduled to report until 23 February. This is a continuing unfortunate practice of this government. It is not allowing proper scrutiny of these complex areas by the parliamentary processes before attempting to rush legislation through this chamber. We register again our concern at the lack of scrutiny but will be using the opportunity in the consideration in detail stage, as well as within the Senate, to make further amendments. We also note that this is not just a view on our part that there has been inadequate consultation in the consideration of this legislation; it is also a claim made by the Minerals Council. This refutes the government’s assertion that there has been adequate time for consultation.

We do know the difficulty of getting the balance right in this area; achieving it requires understanding and commitment. This bill fails that test. It is a disappointing response, but it is hardly surprising given the government’s track record. The amendment that the member for Wills has moved essentially recognises the flaws in the legislation: the fact that it is a missed opportunity to get it right; that it overlooks recommendations from the Minerals Council; that it overlooks calls from the ATSI social justice commissioners for the proper resourcing of the native title representative bodies and the prescribed bodies corporate; that it will adversely affect the capacity of those bodies to represent and pursue Indigenous interests; and that the process that is being implemented as a result of this suite of measures will make the process much slower and much more bureaucratic.

I come to this debate after many years of involvement on my part, both through the parliament and through the trade union movement, in a range of Indigenous issues. That involvement has given me insight into the rights and cultural connections that Indigenous people have to their land, and that understanding is fundamental to getting this legislation right. I also remain, of course, committed to the quest for reconciliation, but that is something that we will not be able to achieve until there is a change of government.

I am proud to have been part of a government that was confronted with the High Court decision in Mabo and that set about securing the legal framework for native title whilst balancing it with the various interests of other stakeholders. I was the Minister for Primary Industries and Energy who had to deal with guaranteeing farmers certainty over leasehold land. So I have had a lot of experience in grasping the complexity of this area and the need for consultation, the need for rigour and the need to understand not just what the High Court decided but also the cultural affinity of Indigenous people with their land. The High Court decision in Mabo was a watershed in relation to land title. It essentially embraced native title as part of our common law. There was a difficult balancing of interests within the context of the hitherto considered legal framework, and that, as I said, was the challenge that we were presented with.

I might say that the Native Title Bill that we introduced and enacted in 1993 secured both the commitment and, in my judgement, a real recognition of the need to get the balance right. We also recognised, through the land acquisition fund, that native title claims should not be focused solely on the purchase of land but also on the economic development of that land in accordance with the wishes of the Indigenous communities. It was, as I said, difficult and complex, and it required leadership to balance the competing interests. As a government committed to staying the course, I think we demonstrated the ability to strike that balance between what could have been considered the irreconcilable interests of the competing parties. It involved, as I said before, a lot of consultation, something that this government refuses to properly embrace—exhaustive consultation, because it is only through that process that we can get it right.

This bill fails to create the necessary certainty and efficiency in the native title resolutions system, and it is for that reason that we moved our amendment. We are disappointed that the government have not seen fit to implement recommendations that many of the participants in this debate have urged. We hope that they are prepared to consider our amendment and embrace what we are putting forward. The legislation that we are considering will not deliver a fair resolution process to all of the parties involved. Combined with last year’s Northern Territory land rights legislation it demonstrates this government’s lack of commitment to proper consideration, proper debate and proper scrutiny. We were not even afforded the opportunity to debate that legislation in this chamber last year, despite the fact that none of its provisions—to introduce 99-year leases on Aboriginal land and to change arrangements for ministerial powers over land councils—were recommended by any of the reviews of the relevant act. There are no quick fixes to this issue, but, if you are going to ignore recommendations, if you are going to try to truncate or avoid consultation and if you are going to try to avoid scrutiny, then mistakes will be made. You will not get the system right—and this government has not got it right.

Let us go to some of the details of this bill. Schedule 1 and schedule 2 are the two fundamental areas of concern that we have. Schedule 1 covers native title representative bodies. The aim of schedule 1 is to improve the role, functions and opportunities of the representative bodies. That is the aim of it, but it does not achieve it. Instead, the provisions of the amendment bill that we are debating here tonight are likely to have a detrimental effect. The bill fails to secure greater efficiency and fairness for the parties in the native title resolutions system. Now, there is no doubt on our part that the system needs an overhaul. The average claim is taking six years and, despite the fact that there have been over 1,000 settlements, 600-odd cases remain unresolved. But the difficulty is that the amendments in this bill diminish the role of the native title representative bodies rather than enable them to overcome the backlog and keep up with any future claims.

Native title representative bodies play a key role in representing Indigenous interests. This bill undermines their role by including a provision to introduce fixed terms of between one and six years. Considering that the average claim takes six years, why would you give legislative backing to the ability to reduce the time that a member of such a body has to carry out their functions to as little as one year? In submissions on this legislation, the Minerals Council has argued very strongly that such short terms of recognition will not provide for greater stability, yet the government is proceeding with this proposal. It is not only the Minerals Council that argues that there is a problem in the reduction in time; it is also HREOC. The provision, in our view, is unnecessary and it will inhibit the ability of native title representative bodies to set long-term agendas. Imposing set terms of recognition is made even more unnecessary as the schedule then goes on to give the minister broader abilities to withdraw recognition to underperforming bodies. The bill also seeks to reduce the notice period the minister may give a native title representative body he wishes to close down from 90 to 60 days. All of this creates greater uncertainty to the representative bodies. The provision also hinders the organisations, preventing them from improving certainty in their operations through their inability to secure staff, tenure and buildings and to build up corporate knowledge.

If the minister were serious about ensuring better performance and a reduction in red tape, instead of playing around with those provisions, he should consider Labor’s suggestions to give the bodies access to multiyear funding. Again, it is not just Labor that makes this call. The Minerals Council has urged increases in the operational funding of the bodies, noting that the workload of the representative bodies has increased significantly. If the resources were made available, they would provide those bodies with a greater capacity to plan over the longer term and give greater certainty to their operations.

Furthermore, this bill also seeks to remove the requirement that the national native title representative bodies submit annual reports to the parliament. This will have the effect of limiting the parliament’s powers to oversee the operation of the boards and raise relevant issues where appropriate. Another very worrying facet of this bill is that it allows the minister to change the territorial boundaries of the native title representative body without their consent. The geographical boundaries of native title representative bodies are determined by the local Indigenous cultural groups and are reflected in the bodies’ membership and their constitutions.

The bill also opens up the possibility that non-Indigenous law firms could be recognised as native title service providers. This is a serious proposition. It could lead to native title claimants’ interests being represented from a distance both geographically and also, obviously, culturally. This will be detrimental to ensuring the representation of Indigenous Australians in their native title claims. We also believe that the bill fails to meet regional needs. It is the government’s continuing tendency to treat the regions with complacency. In ensuring the sustainable development of our regions, including the resolution of native title, we must commit to an agenda which puts local communities first. Communities know what is best for their regions. Local Indigenous communities must not be represented at arm’s length but must be guaranteed a seat at the table in determining their regions’ future. This bill does not guarantee that right. I have talked in this place in other circumstances about Labor’s regional development framework. We want to develop those sorts of models in relation to the resolution of native title.

Schedule 2 is another very problematic area. It expands the role and the power of the Native Title Tribunal and shifts the emphasis away from the Federal Court. This is one of those areas where I fear we are going to run into problems because of the lack of time we have had to go to the detail and the scrutiny of that detail. The Federal Court, echoing the concerns of a number of other submissions, has argued that the amendments that give the tribunal greater directive powers are inappropriate in a legal sense and even possibly in a constitutional sense. It is likely to increase administrative costs because ultimately the court will need to enforce the tribunal’s new powers if they are to be effective. The court has also argued that these provisions may violate the Constitution by giving judicial powers to a body which is primarily administrative in nature.

These are serious issues and it is a pity that the parliament has not had more time to be satisfied on the fronts that are being put forward. Others who have spoken before me have talked about the problems associated through not only the lack of resources but the fact that there has not been an established mediation role through the tribunal. If we are trying to get to a process whereby negotiation assisted by mediation is the direction in which we go, expertise and resources need to be committed to ensure it.

Essentially, we do support the other schedules in the bill, but the truth is that they do not go far enough in providing greater certainty and efficiency to the native title process. That is why we have moved the amendments that we have. The bill gives some changes to the prescribed bodies corporate that manage native title, once it is recognised, but it fails to address their ongoing funding needs. The provision of ongoing funds would create greater certainty for the resolution system from start to completion and for regional communities in the management of native title.

We believe ensuring efficiency and certainty in native title resolution is of absolute necessity for regional communities that have to deal with this issue on a regular basis. It is essential for these communities that the native title system is workable and provides certainty. This involves restoring a balance between recognising the legitimacy of native title claims and the competing interests in the land. That is why I have been a long-time supporter of regional agreements to recognise Indigenous rights and needs and the long-term sustainability of regional communities.

Labor is committed to ensuring a fair go and fair treatment for all Australians. We are committed to the native title process, but what we want is dedication and rigour in terms of a process that is going to work. We have put constructive solutions as to how this legislation can be improved. We urge the government to pick those amendments up, but we fear that we will have to wait until there is a change of government to make sure that the process that we began can be completed properly. (Time expired)

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

Carmen Lawrence (Fremantle, Australian Labor Party) Share this | Link to 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.