Sussan Ley (Farrer, Liberal Party, Shadow Minister for Justice and Customs) Share this | Link to this | Hansard source

The purpose of the Native Title Amendment Bill 2009 is to amend the Native Title Act 1993 to implement institutional reform to give the Federal Court of Australia a central role in managing native title claims. Notably, schedule 1 of the bill will allow the court to determine who should mediate a particular native title claim.

The Native Title Tribunal was established in 1993. It is administered by the Attorney-General’s Department and performs the following important functions. The tribunal applies the registration test to native title claimant applications; mediates native title claims under the direction of the Federal Court of Australia; provides notification of native title applications and Indigenous land use agreements; maintains the Register of Native Title Claims, the National Native Title Register and the Register of Indigenous Land Use Agreements; makes arbitrary  decisions about some future act matters; and negotiates other sorts of agreements such as Indigenous land use agreements.

The history of determination of native title and compensation claims is complicated. The original scheme provided that all claims be made to the Native Title Tribunal. If the terms could be agreed, the tribunal would make a determination in accordance with the agreement, which, once registered, took effect as though it were an order of the court. If terms could not be agreed, the registrar of the tribunal would lodge an application in the Federal Court. However, in Fourmile v Selpam in 1998, this scheme was held to be invalid because it alleged to vest judicial power in a non-judicial body.

The act was amended in 1998 to provide that every current claimant application became a proceeding in the Federal Court and every new application was to be made to the court. As a general rule, the court referred each application to the tribunal for mediation in accordance with parameters set by the court.

The act was further amended in 2007 to expand the tribunal’s powers and functions in relation to mediation, to clarify that the court could not mediate while an application was before the tribunal. The government complains that the existing regime—and its previous iterations—has resulted in the expenditure of millions of dollars in litigation and the creation of a backlog of claims that may take 30 years to clear.

The proposed amendments will provide that both the court and the tribunal may mediate and will also provide that another ‘appropriate person or body’ may mediate. Management and oversight of the process will be the responsibility of the Federal Court. The intention is for ‘broader, more flexible and quicker negotiated settlements of native title claims’. The settlements may be broader because the court will be empowered to make consent orders on matters beyond native title. Other proposals include provisions for the court to rely upon an agreed statement of facts in making a consent determination where the parties include a native title claim group and the main government party, while objections may be taken to the agreed statement by other parties within strict time limits; for there to be a simplified application process for recognition of native title representative bodies; and processes for extension, variation and reduction of areas are to be amalgamated into one variation process. Representative bodies may apply for extensions of time to make submissions on variations.

The proposals are also intended to work with recent amendments to other legislation—in particular, amendments to the Evidence Act relating to hearsay and opinion evidence on Aboriginal and Torres Strait Islander laws and customs; and amendments to the Federal Court of Australia Act to allow the court to refer questions to an expert for inquiry and report.

The coalition supports this bill in principle. However, we foreshadow potential Senate amendments pending the report of the Senate committee.

Mark Dreyfus (Isaacs, Australian Labor Party) Share this | Link to this | Hansard source

Since the 1992 decision of the High Court in the Mabo case, it has been understood that the common law of Australia recognises a form of native title. The Native Title Act, passed in 1993, accepts the High Court’s conclusion from the case of Mabo and Queensland No. 2, from which I quote:

The common law of Australia recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws or customs, to their traditional lands.

The Mabo decision and the Native Title Act passed in 1993 marked a fundamental shift in the place of Indigenous people in our nation. The shift was a long time coming, the decision of the High Court was a long time coming and the legislation was something that the nation had waited a long time for, but they offered hope of full recognition of and status for Indigenous people.

Sixteen years on, that hope has not been fully realised. I do not want to recite the tortuous history of reviews, inquiries and amendments to the native title legislation but to record the fact that, 16 years on, there remain more than 450 unresolved native title claims, according to the last published report of the Native Title Tribunal. On present estimates it may take another 30 years to resolve the native title claims lodged to this time. Millions of dollars and countless hours of the time and effort of claimants, of lawyers, of judges and of tribunals have been spent in attempts to resolve native title claims. I make that comment with the greatest of respect to all those who have devoted their efforts and their time to this endeavour. Perhaps most sadly, Aboriginal and Torres Strait Islander claimants have died before their claims could be resolved, and I fear that more such claimants will die before their claims can be resolved.

This Native Title Amendment Bill 2009 contains amendments to the Native Title Act which are aimed at speeding up the claims process. This aim reflects Labor’s commitment to Indigenous people and is completely consistent with the explicit intention of the Native Title Act to recognise, support and protect native title. This aim is also consistent with the government’s recent confirmation of Australia’s support for the Declaration on the Rights of Indigenous Peoples, articles 25 to 32 of which provide for rights to maintain traditional connections to land. Improving the Native Title Act gives better effect to those rights as well.

I want to note two key aspects of this bill, those being the provisions dealing with the role of the Federal Court in mediation processes and the provisions applying new procedures in the Evidence Act to evidence given by Aboriginal and Torres Strait Islander people—specifically, proposed new section 214. The proposed new mediation processes arise from a review conducted by Mr Graham Hiley QC and Dr Ken Levy in March 2006. The two reviewers disagreed on whether the National Native Title Tribunal or the Federal Court should have ultimate control of native title dispute resolution processes, and made separate recommendations in their March 2006 report.

The former government elected to implement Dr Levy’s recommendation to give exclusive control of mediation to the National Native Title Tribunal, with increased powers. This recommendation and the 2007 amendments which were based on that recommendation were widely criticised at the time. There were many submissions to an inquiry that was conducted by the Senate Standing Committee on Legal and Constitutional Affairs, and some of those submissions—probably a majority of them—noted that the mediation record of the National Native Title Tribunal was a poor one. Indeed, the report of Mr Hiley and Dr Levy noted that, as at January 2006, some 76 per cent of mediations in the National Native Title Tribunal had been going for more than three years and that just under 48 per cent had been going for more than five years, which might suggest that part of the problem up to that time was the way in which mediations were being conducted by the National Native Title Tribunal.

Labor senators pointed out at the time that the proposed expansion of the tribunal’s powers would conflate the National Native Title Tribunal’s role as a mediator with determinative quasi-judicial functions. The Federal Court offered some comments as well at the time that the Howard government’s proposals would create a confusion of the mediation role of the National Native Title Tribunal with other functions and might also involve in an unconstitutional manner the impermissible intrusion of executive power into the judicial power of the Commonwealth. The Federal Court also pointed out at the time, in 2007, that giving the National Native Title Tribunal greater directive powers was actually likely to generate additional delay and additional costs because National Native Title Tribunal directions would be subject to judicial review and would, of course, only be enforceable through processes in the Federal Court.

It needs to be said that the Aboriginal and Torres Strait Islander Social Justice Commissioner was also critical of the powers proposed by the former government to be conferred on the Native Title Tribunal, and one could add to that the voice of the National Farmers Federation, who said, and I quote from their submission at the time, ‘History shows that the Native Title Tribunal does not have a good track record in resolving mediation issues.’

One would think that, faced with that barrage of criticism for the proposals that it was considering, the former government might have thought again and perhaps reconsidered the kind of approach it was proposing to take, which was contrary to very direct recommendations made by Mr Graham Hiley QC, someone with arguably more experience than any other legal practitioner in Australia. I recall that Mr Graham Hiley QC was involved in the very first land claims made under the Aboriginal Land Rights (Northern Territory) Act of the Commonwealth, the claims under which commenced in 1977. Not only was Graham Hiley QC involved in very many of the claims made under the Northern Territory land rights act but he has continued to be involved in claims made under the Native Title Act throughout Australia ever since. Notwithstanding the criticism and notwithstanding the very clear recommendations made by Mr Hiley, the Howard government ploughed on with its amendments.

This government’s assessment of the procedures introduced is that they have not worked. Indeed, they have not worked to create an effective native title mediation process. This bill effectively adopts Mr Hiley’s recommendations from the 2006 review he participated in which give the Federal Court the central role in managing all native title claims. Graham Hiley QC showed considerable wisdom in the comments he made in his 2006 report. He said:

Just as other superior courts must have complete control over their own processes, I consider it essential that the Federal Court have complete control over all native title claims which have been brought before it (under the NTA), from the time of their commencement to the point of their ultimate determination.

He went on to say:

The court is in the best position to case manage matters effectively …

I agree with the comments made by Graham Hiley QC. This bill will ensure that the full authority of the Federal Court can be brought to bear on the resolution of native title claims. The Native Title Tribunal will still have a role to play but the primary responsibility will rest with the court.

The proposed changes to procedure have been welcomed by native title practitioners, by the Law Council of Australia, by the Northern Territory government, by the Aboriginal and Torres Strait Islander Social Justice Commissioner and by others. All of the submissions to the Senate Standing Committee on Legal and Constitutional Affairs, which I understand is to report today, stressed the importance of continuing to focus on the end result of achieving prompt and just resolution of the several hundred outstanding claims.

The other matter in this bill I want to note is the proposed new section 214, which will allow provisions of the Commonwealth Evidence Act to apply to native title claims. Changes made last year under the Evidence Amendment Act 2008 will apply generally in federal courts to evidence given by Aboriginal and Torres Strait Islander people. Particularly in the context of native title claims, those procedures will make it easier for a court to receive evidence about Indigenous traditional laws and customs.

I can speak from some experience to say that the application of standard rules of evidence, particularly rules against hearsay, even in the modified form in which they appear in the Commonwealth Evidence Act, has been difficult when evidence is being taken from Indigenous people. It is appropriate that a discretion be given to the court to manage the appropriate means of receipt of such evidence. It is equally appropriate that, as is proposed in this bill, it be possible for claims that have already been commenced and are already in process under the Native Title Act to take advantage of those new procedures in the Commonwealth Evidence Act, as they are conducted through the Federal Court.

I have not spoken about all of the reforms proposed by this legislation, but the reforms in the bill could be seen as relatively modest. I say that because much larger reforms have been proposed in recent years, including proposals made last year by the Chief Justice of the High Court of Australia, Robert French. The changes that Justice French discussed included creating presumptions of connection and continuity of connection which would shift the burden of proof to those seeking to disprove connection to land. Another suggestion of the Chief Justice was to allow a state and an applicant for native title to agree to disregard extinguishment of title. These suggestions are worthy of consideration, as are others made by the Human Rights Commission in its submission to the most recent inquiry on this bill by the Senate Standing Committee on Legal and Constitutional Affairs.

I am confident that the Labor government will monitor the effect of the reforms made by this bill and will continue to examine the operation of the native title process. Sixteen years after the enactment of the Native Title Act, it has to be said that our nation has not realised the high hopes of that time. We must continue to strive towards the aim of recognition of native title, which is a beginning of reconciliation, not the end result. If further reforms are necessary, I am confident Labor will undertake them. I commend the bill to the House.

Robert Oakeshott (Lyne, Independent) Share this | Link to this | Hansard source

I pick up on the words of the previous speaker in his conclusion regarding recommendations to the various committees which have led to the Native Title Amendment Bill 2009 before the House, particularly on the question of rebuttal and presumption of continuity. I agree wholeheartedly with him that this issue requires further consideration, so much so that I foreshadow an amendment, which I imagine will be dealt with in the consideration in detail stage. It will pick up on the issues raised by bodies such as the National Native Title Tribunal and various legal authorities, and by Tom Calma and others. It is an excellent recommendation worthy of consideration by government. Surely, after three years of review and consideration of the state of play in regard to native title claims in Australia, and given how slow and inefficient the process is at present, I hope that this opportunity to consider such a worthy matter is not missed.

The first three words I used in this chamber were words from the local Indigenous community on the mid-North Coast of New South Wales. ‘Jum-mada-gai’ means ‘Come, you are welcome,’ and it was an invitation to all members of this chamber to visit the mid-North coast of New South Wales and to work with me on the full range of issues that we confront, whether they be unemployment which is comparatively higher than the rest of Australia, poverty levels which are comparatively higher than the rest of Australia, income levels which are comparatively higher than the rest of Australia or education levels which are comparatively lower than the rest of Australia. Many of those touch very much the significant Indigenous population who I represent on the mid-North Coast and who are quite often forgotten in the stereotypical images that come from this place and others when consideration is given to Indigenous communities. There is a significant and vibrant coastal Indigenous population that is trying to walk together for a common future with the Crown and the sovereign nation that we now live in.

I also watched the apology from this chamber. It was before I arrived here and it was a significant moment for Australia. It was, in the words that I have previously mentioned, an example of walking together and hopefully walking together for a common future rather than a 220-year history of crown or sovereign authority and division. It was a significant and symbolic step in, hopefully, uniting, working together and walking together to achieve some common good and some common outcomes. It is now over 12 months since that apology and we are now down to some of the detailed work of putting the meat on the bones—for want of a better expression—of delivering on some of those symbolic gestures of over 12 months ago with the apology. I hope it is from that that we have the genesis of the Native Title Amendment Bill 2009 before the House today.

The bill itself is to there break what is a very slow native title claims process to date. It is common knowledge that the existing system of resolving native title claims is too slow and therefore not effective. I think, going back to the words I have just said, it is one thing to have access to the law; it is another thing to have access to justice. Whilst the native title system that has been built up certainly provides access to the law, it is questionable, as of today, whether it is a process that is just in delivering the reconciliation outcomes that I would hope everyone in this chamber is looking for.

Some of the facts and figures are startling and of concern. From 1997 to 2006, there were some 600 determinations remaining to be made, with only 81 determinations having been made. This is at a cost of $900 million to the taxpayer over that nine-year period. This is a cost of $11.1 million per determination. I think that is a slight on all of us. There are still some 500 or so native title claimant applications currently on the go, and therefore the amendments seek to improve the efficiency and effectiveness of the native title claims resolution process. Part of it is, importantly, giving the Federal Court of Australia a more central overseeing role of the native title mediation process. Bluntly, it will be able to oversee the operations of the Native Title Tribunal. It is hoped that by doing so the Federal Court of Australia will be able to assist the Native Title Tribunal with its excessive workload and thereby increase cost and time efficiencies and lead to more just outcomes.

I turn to some background. The Attorney-General commissioned a review of the claims resolution process in the native title system in 2005. As has previously been mentioned, Graham Hiley QC and Dr Ken Levy responded to the terms of reference in 2006 with the Native Title Claims Resolution Review. Dr Levy’s recommendation for institutional reform was implemented. He recommended:

… that a matter should always be ‘mediated’ in whole by a single body, and that different parts … should not be referred to different bodies (at the one time).

Therefore, the National Native Title Tribunal remained the sole body for mediating the claim process. Graham Hiley QC’s preference was to ‘provide the Federal Court with greater flexibility in relation to alternative dispute resolution’. This option would remove the mandatory requirement in section 86B that the Federal Court refer claims to the National Native Title Tribunal for mediation and would thus enable the Federal Court to determine who undertakes mediation and other alternative dispute resolution functions in relation to claims and when such mediation or other ADR functions are undertaken—in other words, therefore, the possibility that not one single body mediates on just one matter.

From a public policy point of view, this is to encourage negotiations rather than litigation, which, again, is something that I hope this chamber and this place generally would support. It is in tune with the act preamble that suggests exactly that, and precedent case also suggests that. The Wongatha case says that it is appropriate for the court, once again, to draw to the party’s attention the desirability that mediation be fully explored. The famous Yorta Yorta case also makes the point:

The time and expense expended in the preparation and presentation of a large part of the evidence has proved to be unproductive, a circumstance which calls into question the suitability of the processes of adversary litigation for the purpose of determining matters relating to native title.

I will summarise, before talking about the foreshadowed amendment. The bill itself and the amendments included in it are minor. There is no major restructuring of the legislation itself. The question is: will they make dramatic changes to time and efficiency of native title determinations? That is an open question. Until we see fully what the Federal Court of Australia’s role and resources will be in delivering its new role, in my view it probably will not change those time and efficiency questions dramatically but is hopefully pushing the legislation down that path. As far as some of the public responses in regard to this legislation and the review process over the last three years go, the response of the National Native Title Tribunal president, Mr Graeme Neate, to the Senate Standing Committee on Legal and Constitutional Affairs deserves some airtime whilst everyone is here. He is quoted as saying:

The tribunal supports a flexible native title system that encourages more negotiated settlement of native title claims.

This is, I think, an important point.

Harry Jenkins (Speaker) Share this | Link to this | Hansard source

Order! It being 2 pm, the debate is interrupted in accordance with standing order 97.