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

I will be short because I know there are several other speakers wanting to get on the record this evening. I pick up on the words of the previous speaker, the chair of the Public Accounts and Audit Committee. In relation to the Native Title Amendment Bill 2009, and all bills that go through parliament, I would certainly hope we are not now hearing of the Audit Office losing over a third of its budget and therefore being allowed to do two-thirds of the work. I would certainly hope that the Joint Standing Committee of Public Accounts and Audit, of all committees in this place, would argue the case well for a strong Auditor-General to overview programs involving issues such as native title, when we have a clearly broken native title system in Australia with, as I said previously, 81 determinations in the previous nine years at a cost of $11 million a determination. The system is inefficient and it is unjust in the slow outcomes that we are seeing, with a backlog of over 500 determinations waiting to be resolved.

In conclusion and summary, I think there would be general agreement that alternative dispute resolution methods and mediation are the way forward in regard to native title. The role of the Federal Court of Australia being increased in that process is welcomed. I think the Federal Court of Australia will be able to refer native title and compensation applications for mediation and give effect to terms of agreement reached by parties to proceedings, including terms that involve matters other than native title. That is a positive step forward. I hope that having one body controlling the direction of each claim will mean that opportunities for resolution will be more readily identified and the interests of the parties involved better focused. It will also allow decision-making processes to be quickened, as determinations are not just limited to native title claims and therefore recognise the broader nature of most of the claims that are before the court.

Some of those other matters that are to be considered, and are welcomed as part of this reform, are economic development opportunities, training opportunities, employment and heritage issues, and sustainability and viability issues. I note that the parties will still have to agree on the further matters; therefore mediation is still in play in relation to these other matters. The court can give effect to the parties’ agreements and make orders that pertain to both native title and related matters, and therefore the process becomes more finalised.

So, whilst I think that these are good and welcome reforms, this amendment has had a three-year genesis. I note the apology is a symbolic step along the way to hopefully seeing some of the detailed work—not just in legal reform but in justice reform—that we see in this amendment. I also foreshadow an amendment that I will be moving in the consideration in detail stage of this bill, as part of that process of walking together—both Indigenous and non-Indigenous—into the future. As part of getting better justice outcomes and more efficiency outcomes from the native title process I foreshadow the amendment, which I will talk about in detail. Over the three years of discussion leading up to where we are today, this has come up repeatedly from people such as Chief Justice French; retired justice Wilcox; Tom Calma, the Aboriginal and Torres Strait Islander Social Justice Commissioner and Race Discrimination Commissioner; Tony McAvoy; and Kevin Smith of the National Native Title Tribunal. They are all voices of people who work and practice in this area or with bodies that work on detail in this area.

I hope that when we get down to the consideration in detail stage of this debate the amendment is considered in good faith by the government, because this has come up on several occasions. It is a sensible proposal that has come forward, and I was both surprised and disappointed that it was not part of the package that is before the parliament today. It has been referred to by government members speaking on this as an issue for further consideration. I hope that we do not miss the opportunity that is before this House to include it in the Native Title Amendment Bill, and therefore to get even better justice and efficiency outcomes than this amendment will achieve by its passage through this place.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

I too rise in support of the Native Title Amendment Bill 2009. On this occasion I will acknowledge the traditional owners of the land we are gathered on and thank them for their continuing stewardship. I also thank the member for Lyne for his contribution. He is always worth listening to. I might well take him up on the invitation to visit his electorate one day.

The bill before the House is another step in the long struggle to provide appropriate recognition of Indigenous land rights. It has been 221 years since Indigenous Australians were first dispossessed of most of their land back in 1788—dispossessed according to the power of the Crown—and it is 17 years next month, on 3 June, since the historic 1992 Mabo decision, where Chief Justice Mason’s High Court recognised a form of native title for the first time. Those historic actions commenced in the High Court way back in 1982. But 1982 is a long time ago. I was just a 16-year-old, in my last year at St George State High School. I think that back in 1982 Bob Katter might have still been a member of the Nationals in the Queensland Bjelke-Petersen government. I am not totally sure about that, but 1982 is a long time ago.

The plaintiffs in the action were Eddie Mabo, David Passi and James Rice—all Meriam people from the Murray Islands in the Torres Strait—commenced their action. How significant it was for Australia! I just digress. The words ‘Murray Islands’—I am not sure of the history of the word ‘Murray’ in the Murray Islands. It could be named after some English person; I am not sure. I have not done the research on that. But it is interesting that the Queensland word for an Aboriginal or Torres Straight Islander person is actually the Kamilaroi word ‘mari’. The Kamilaroi tribe, in my understanding, are most significant in New South Wales, where the word ‘Koori’ is more often used. There is a bit of trivia there—that a New South Wales word has been accepted by Queensland for Indigenous people. But the area that we are talking about was actually the Murray islands in the Torres Strait, and not people who identify as Aboriginal but people who are Torres Strait Islanders—although I am sure that if you talk to some Murray islanders they do not see themselves as Torres Strait Islanders. But I digress.

The Murray islanders that I mentioned—Eddie Mabo, David Passi and James Rice—challenged the concept of terra nullius. I am going to quote from a book that I wrote, for the definition of terra nullius. At the start of this book, I quote from the Macquarie Dictionary second edition 1991 definition of ‘terra nullius’—the ‘land of no-one’. That was what the legal definition sprang from. These gentlemen, with a lot of legal support, challenged this concept of terra nullius in the courts of Queensland and then ultimately, as I said, their actions moved up to the High Court in 1982—a very long time ago.

How did the decision go in questioning this concept of terra nullius? As a great philosopher from the late 1970s stated, ‘Two out of three ain’t bad.’ In the High Court, it was better than that great philosopher from the late 1970s or perhaps early 1980s—I would have to check. In the High Court, it was six out of seven judges. That ain’t bad. The High Court said that native title exists and is therefore recognised by the common law of Australia.

How did the High Court of the time come to this conclusion? A lot of people do not realise—except for those people who have read the Mabo decision, which I imagine would not be a lot people—that the High Court came to this conclusion: they accepted the findings of fact made by Justice Moynihan of the Supreme Court of Queensland. Unfortunately, that was not good news for the late, great Eddie Mabo, but it was obviously better news for David Passi and James Rice and their families. How did the High Court make this leap? When the Moynihan court looked at the claim at the state level—Mabo v the State of Queensland 1988—and when they looked at these facts, they actually went up to Murray Island. They got their feet wet. They went and looked at the fish traps up there. The whole court went up there and looked around, met local people, got their feet wet and really found out about the facts as they were. That was why the High Court was quite accepting of this evidence. But the High Court leapt from these coastal fish traps up in North Queensland and was then able to extricate from that these laws that particularly applied to Aboriginal communities. So, from these coastal fish traps, they jumped over to these Aboriginal concepts.

How did the High Court, as led by Chief Justice Mason, interpret this set of facts and come up with this new truth which we all accept now? How could they put aside 204 years of historical force? The book that I referred to earlier, The Twelfth Fish, is deliberately set in 1992 because the Mabo decision is a significant theme throughout the book. In this book I tried to invent a new word, and the word I used was a ‘reterpreter’, which is sort of like an ‘interpreter’—where you take facts and turn them into another language and gain a better understanding for you. But I played on that and used the word ‘reterpreter’, which—for lovers of English—is a palindrome. If you are an anagram expert you might also understand why I chose this particular word. Unfortunately, the book that I wrote did not particularly take off and not many people have read it. Certainly, if everyone that was upset about the language in it had bought it, I would be a wealthy man. But that was not the case. Instead, rather than rely on the word I attempted to use, I will turn to the introduction to this book where I quoted from someone with a little bit more style. That is TS Eliot, in his poem—not The Hollow Men, you can rest assured that I am not going to quote from that—Little Gidding. He wrote:

We shall not cease from exploration

And the end of all our exploring

Will be to arrive where we started

And know the place for the first time

He had a much better way with words, obviously.

As I said, that is why my novel, The Twelfth Fish, is set in the year 1992. For me, especially, it is one of the most significant anniversaries in Australian history, along with—as the member for Lyne said—the apology delivered by Prime Minister Kevin Rudd on 13 February last year, which was my very first day in parliament. I have written a sequel as well, and that is set around another date, 6 November 1999, but that is a story for another day for people who love the republic or who perhaps love rugby. Going back to the matter at hand, the Mabo decision had far-reaching implications which Indigenous communities, lawyers, mining companies, farmers and politicians continue to process and resolve. It has been touched on quite thoroughly by some of the earlier speakers.

But the Mabo decision shone a light on the facade that is terra nullius and the flawed process that delivered at least morally flawed certificates of title to every Australian landowner. I include myself in that group. Following a review of the roles of the Federal Court and the National Native Title Tribunal back in 2005, the Howard government decided to give the tribunal greater powers, including the role of mediation. Unfortunately, this has not delivered an effective or efficient mediation process. The Howard decision may have been inspired by the best intentions but, as they say, the road to hell is paved with good intentions.

Unfortunately, way too many native title cases have been bogged down in the courts. This has meant additional expenses and unnecessary delays. Since the Native Title Act began in 1993, around 1,000 claims have been resolved. That is fantastic homage to the legislative work done by Paul Keating and members of his government—and, of course, governments since then. Unfortunately, there are currently around 500 claims awaiting resolution. The average time to resolve a native title application has been 12 months where the claim is unopposed, five years and nine months for determinations by consent and seven years for determinations by litigation. I, a former English teacher, did some quick maths and worked out that that is about 2,557 days on average, and obviously a lot of those would take much longer.

While the process is lining the pockets of lawyers, traditional owners are missing out on better social and economic outcomes for their communities. I do not want to speak ill of lawyers obviously, but these time lines and the costs for the resolution of native title claims are totally unacceptable, which is why the Rudd Labor government is moving to improve the system. This bill will give the Federal Court control over all native title claims and allow the court to manage the mediation process. It will encourage native title disputes to be resolved through negotiation rather than litigation.

I well remember sitting down with the Murris from the Woorabinda community west of Rockhampton back in 2005 when I was the native title adviser for the Hon. Stephen Robertson when he was the Minister for Natural Resources and Mines. So much more can be done when we move away from the adversarial system of legal resolution towards negotiation. Coming from the Labor Party, I have some insights into how complicated politics can be and, Deputy Speaker Thomson, coming from Victoria, I am sure you are able to suggest how complicated politics can be. In my time as a native title adviser I gained a new insight into how complicated politics could be within the Indigenous community. It is certainly very complicated when people talk about historical links with the land.

The Federal Court will not replace the tribunal as the sole mediator but will oversee the role of the tribunal. Where parties cannot reach agreement, the Federal Court can use its powers to ensure matters progress. This bill will also allow the court to rely on an agreed statement of facts between the parties as evidence for consent determination. This will provide greater flexibility and speed up the resolution of native title claims, as will the new ability for the court to make determinations that cover matters beyond native title and to recognise the broad agreements which can be negotiated under the act. That has certainly been the case in Queensland and there have been many cooperative, wonderful decisions between the mining communities and other communities, such as those represented by the member for Kennedy.

This bill will also apply the recent changes passed by this House in the Evidence Amendment Bill 2008. Where appropriate, this will make it easier for a court to hear evidence of Aboriginal and Torres Strait Islander law and customs. I welcome the changes contained in this bill. I am confident it will lead to more timely resolution of native title claims. I think the lawyers will still do all right too. Obviously, those ski trips to Aspen do not pay for themselves. Sorry, Mr Deputy Speaker, I take that back—I know there are hundreds of hard-working lawyers who have never been skiing in the United States and perhaps some who have never been skiing at all.

I recognise that this bill does not do everything and it will not create a perfect native title system. There are still some debates to be had about how we might help fund native title claimants to pursue their claims. Nevertheless, I hope that the improvements in this bill will go some way to reducing the costs through a more efficient claims process, but I also acknowledge that more can be done for a fairer native title system. I want to thank the Attorney-General, Robert McClelland, for introducing this bill into the House and thank him for his passionate and practical support for the advancement of Indigenous land rights.

Recently I made the change to an iPod. It was quite a complicated process. I started out by investing all my money in cassettes. As it turned out, that was not a wise decision. I then moved on to CDs, like so many people. But recently I have made the jump to an iPod. I have put all my CDs on there. There are about 5,000 songs. I have collected the songs from a long way back—back to 1982 when Eddie Mabo, David Passey and James Rice from the Meriam people commenced their High Court action.

My preference was always to choose the album and listen to the album, but then I found the function on the iPod where you can put playlists together. You can put all the Bruce Springsteen covers together, all the sad songs together or all the songs written by Queenslanders together. You can do whatever you want to do. I have started doing that. Obviously, it came to the point in time when I wanted to put my top 50 together. It is hard to pluck 50 songs from the 5,000 songs and put them in order and decide as a 43-year-old what my No. 1 song is.

Since I fell in love with music as a youngster my tastes have changed. Once upon a time my favourite song would have been Joy Division’s Love Will Tear Us Apart. After 17 years with the most beautiful woman in the world, to love a song like that does not resonate well with me. It is the same with Paul Kelly’s song Careless; things have changed.

I am now tossing up the top four songs to be at the top of my top 50. There is Wide Open Road by the Triffids, Walk the Line by Johnny Cash, which I had at my wedding, Head Full of Steam by the Go-betweens and this last song, which I am still particularly in love with, by Kev Carmody and Paul Kelly. Kev Carmody is a Queensland songwriter, I think, from Cairns and Paul Kelly is obviously a well-known performer from South Australia. This song is from the movie One Night the Moon. The song has contrasting voices of two men: one is an Aboriginal and one is a white settler. One says, ‘This land is mine,’ and the other one says, ‘This land is me.’ That is really the conflict that exists in all Australians that the exploration of native title is about resolving. Hopefully, that song will still be my No. 1 in 50 years time and, hopefully, so many more native title issues will have been changed in that time. I commend the bill to the House.

Bob Katter (Kennedy, Independent) Share this | Link to this | Hansard source

I take the wisdom of my honourable Independent colleague who spoke before, that there have 81 outcomes in the last 12 months. There are 500 applications before the court and those 81 outcomes have cost $11 million. In Queensland the government has designated that no action can be taken on any land—change of usage or ownership—without agreement from the native title holders. The House Standing Committee on Aboriginal and Torres Strait Islander Affairs did a tour—we could probably call it the ‘closing the gap tour’—to investigate why First Australians—Torres Strait Islanders and people of Aboriginal decent—have 17 years less life expectancy than other Australians. Their incidence of diabetes and heart disease is 60 per cent higher than that of other Australians. This is not something for us as a nation to be proud of; it is something for us to be totally embarrassed by—not embarrassed; ‘ashamed’ should be the word chosen. In this ‘closing the gap’ tour it became obvious to us that a sedentary lifestyle is playing a part.

We toured the Torres Strait Islands, firstly, and then we did the Aboriginal communities. In the Torres Strait Islands much of the fishing has ceased and almost all the market gardening has ceased. That has happened in my lifetime. In fact, when I was a minister in the late 1980s, almost every time you went up there there was a feast and almost all of the fruits and vegetables were local market garden fruit and vegetables. In the last 20 years that has vanished. Joey Mosby was the long-serving chairman on one of the islands. I asked Joey why there were no market gardens now. He rather angrily replied by smashing his fist into his hand, saying, ‘AQIS has killed it.’ This is true, actually, insofar as their chickens and their pigs were removed by AQIS and they were a major source of protein for the people.

In the supermarkets it seems to me that about five to seven per cent of the shelf space is taken up with rice, which would not comprise 0.005 per cent in a normal supermarket. The dietary regime that the people up there have is very poor. Part of the reason is that the people have no money; they cannot afford to buy fresh fruit and vegetables. You may ask, ‘Why haven’t they got market gardens?’ Maybe some people are thinking, ‘Oh, well, they’re lazy.’ That thought may have passed through the minds of some of the committee as well.

Ask yourself the question why no Australians have market gardens. I do not know anyone on the mainland who has a market garden. Why should we expect Torres Strait Islanders to have market gardens? There is no doubt that the problems created by AQIS have created a fear in the people’s minds that the growing of any food up there will bring the wrath of the government and the whitefellas down upon them. You had to be there to see the vehemence of the reply by Mr Mosby to understand how strongly people feel about their right to produce their own food having been taken away from them.

I am not entirely white, I am certainly not pure merino and I come from Cloncurry. Whether I am one of the brothers or not, I am always accepted as one of the brothers. I am most certainly related to them—I can assure you of that. A lot of these people will open up to somebody like me. Their hatred of the whitefellas is really very vehement. The whitefellas have taken away their right to fish because they have to have a licence and they cannot get a licence to fish. They see all the whitefellas coming in and taking their fish away from them, and their crustaceans away from them in the Torres Strait, yet they do not have a licence. There were two or three licences issued to them but, of course, they cannot raise the money to buy a proper vessel. You would have to look down the gun barrell of maybe a million dollars—certainly half a million dollars—to operate in this way.

There is no doubting these people’s ability. In my day as a minister in Queensland, Richard Bowie, Ahmat and Joey Nonna set up the crayfishing freezer on Badu Island. In their second year of operation they turned over $3.2 million. So do not think you are talking about slackers here. These people can perform and they perform very big, well and effectively. Richard’s brother William is married to the daughter of Bill Gunn, the Deputy Premier of Queensland. They opened a store up there and they have been very successful. So we are not talking about people here who are slouchers or lazy, but they have a sedentary lifestyle which has been effectively forced upon them by the whitefellas.

As far as poor diet goes, by the time the food gets up there—I worked it out—really it is double the price it would be on the mainland. If you have to survive on handout money, because your right to make a living has been taken away from you, and then that money buys only half as much food as for anyone else in Australia, is it any damn wonder that there is a 17-year gap between life expectancy for the whitefellas and the blackfellas in this country?

Mr Deputy Speaker Thomson, you might ask, ‘Who’s responsible for this?’ I will tell you who is responsible for this: the state government of Queensland and the people in this parliament. We are responsible for it. We have created this situation. Everyone down here beats their breast and tells us how wonderful the Native Title Act is, and I think I was described as a racist because I opposed it vehemently. I pointed out to the House at the time that 90 per cent of the mainland communities of First Australians do not come from that area, so what they were doing in Queensland was dispossessing 90 per cent of the communities, which people here would call Aboriginal communities. The people who live there have been dispossessed. Let me be very specific. Relatives of mine are on Palm Island, and it is almost exclusively Torres Strait Islander and Kalkadoon—from my country. Only 60 of the original tribe on Palm Island live there. That was the figure that I saw when I was minister. So the 60 have all the property rights and the other 3,000 have no property rights at all.

The land has never belonged to those whose daddies happened to be duke so and so or feudal baron so and so, or some other prominent person. The land belongs to those who till it. If you live in a house you have a right to own that house. You have a right to own some piece of territory. Heaven only knows—these people were the First Australians. With the best will in the world Father Passey and Mr Rice—Father Passey was an Anglican priest who actually carried this case but he was never given any credit whatsoever; he was a man of towering integrity. Eddie Mabo was exited from the case because he had not been up on the islands for some two or three decades. They said: ‘We own this land. We own it in private ownership. That block there belongs to the Passeys, that block there belongs to the Salehs and that block there belongs to the Rices.’ That was the concept that they wanted approval for from the High Court of Australia and which, God bless them, they got approval for.

I have the very great honour of having two textbooks, which are still on the reading lists of most universities in Australia, devoted to the things that we did with land ownership in Queensland during those years. It is a very great honour to have two textbooks written about one’s career and what one did in that career. It is also a very great honour for me to tell the House that, during that period, two 60 Minutes programs were done on me—one of which was highly flattering—and three were done on what we were doing then, including one that was a repeat, which has never been done before or since in the history of 60 Minutes. I personally deserve none of that credit whatsoever because I did not make any of those decisions. But we did do one thing: we went out and asked the people what they wanted in terms of land ownership—at that stage, Mabo had not been decided. What we put before them was a continuation of government trust ownership, ownership by the shire councils that we were setting up in each of these communities, ownership by the land councils, ownership by the tribes—it was not called native title; it was called tribal ownership—or private ownership. Those were the options that were put up at every one of the 28 communities in Queensland. The result was that 3,800 people voted for private ownership. They wanted to own their own houses. Surprise, surprise! Three people did not and they opposed it, so the result was 3,800 to three.

We instituted that legislation in Queensland, which was really a legislative Mabo decision, if you like. We legislated that people could come forward and make application to take up their houses, their farms and their businesses under private ownership. That is what the people asked for and that is what the people got. We made some mistakes in the set-up of the machinery, as have been made here and which we are discussing tonight.

With regard to Aboriginal land rights coming to you through who your daddy or your great-grandaddy was and not through your own energies and merit, I thought that in European history that was something decided by Napoleon Bonaparte in the early 1800s. For those of us of English descent, hundreds of thousands of our forebears died in many upheavals to deliver to us the right of private ownership, the right to freehold title.

If you do not go to private ownership, what we will have is people trying to run a cattle station, a fishing venture or a supermarket with a tribal council. A lot of shire councils in Queensland have attempted to run a cattle station or a supermarket or a hotel. In Winton the hotel went broke three times with the shire council running it, who are all wealthy and successful men, I might add. But you do not run a business with a committee. It just does not work that way at all.

For example, in the Northern Territory cattle stations were taken up under Aboriginal ownership—First Australian ownership is the term I would like to use. There were 170,000 head of cattle on them. In an article in the Bulletin magazine it was argued that allegedly there were only 20,000 or 30,000 head of cattle left. Of course that is going to happen. If you are asking me why the Aboriginal communities are the way that they are, with very high levels of drunkenness, very high levels of alcoholism, if you like, and very high levels of dreadful social statistics, I will tell you what: if I went to Sydney and told everyone who lives in Sydney that they were not able to own their own home, they were not able to own their own business, they were not able to own a title to any damn piece of real estate whatsoever, Sydney would not be batting much better than Lockhart River or Pormpuraaw!

Why can’t the government simply do for the First Australians what every other government on earth has done? It was not in my electorate at the time, but I went in to Yarrabah to listen to Lloydie Fourmile, who was chairman at Yarrabah. He was banging the table and he said, ‘The only place on earth that you can’t own your own home is at Yarrabah.’ They all looked at me, because all my legislation was completely overturned by the incoming socialist government, which was a dreadful mistake. They met a lot of good people there, but they just did not know what they were doing. I understand that we want to terminate at this stage. I seek leave to continue my remarks.

Leave granted; debate adjourned.