Mark Butler (Port Adelaide, Australian Labor Party) Share this | Link to this | Hansard source

I will not speak for long and I am sure that the member for O’Connor will get an opportunity to speak on this as well before we adjourn. The Native Title Amendment Bill 2009 is the most recent of a long line of legislation in this place that has dealt with the complex and often controversial question of native title, particularly since the 1992 Mabo decision finally rejected the legal doctrine that Australia was terra nullius at the time of European arrival and settlement a little over 200 years ago. This was a pivotal moment in Australia’s history, granting legal recognition of our Indigenous communities’ previous possession of Australia, and dispossession as a result of European settlement. It was also a recognition of the devastating consequences that have resulted from dispossession, which have reverberated through generations and are still keenly felt today.

The Native Title Act 1993 was the legislative response to the High Court’s decision in Mabo, introduced by the Keating government in the face of a very significant and at times vicious fear campaign about the threat posed by that legislation and the High Court decision to various types of property—ranging up to, and including in some cases in the fear campaign, suburban backyards, although it was quite clear that the Mabo decision did not involve any suggestions that native title would defeat existing property rights under the Australian and common-law systems. The 1993 legislation saw legislative recognition of those previous rights and the Indigenous Australian connection to the land in the pre-existing English and then Australian and common-law hierarchy of property rights that has endured since European settlement.

The act was a vital tool for restoring the cultural, social and economic benefits that that connection between Indigenous communities and their land brings and was a major step forward on the march towards lasting and true reconciliation. The preamble to the act states that the people of Australia intend:

… to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

Sadly, I am sure that nobody in this House could argue that we do not still have a long way to go to fulfil the intention included within the preamble to the legislation.

This year marks the 15th anniversary of the Native Title Act coming into operation and taking force and, whilst there have been some successes, it is widely accepted, I think, that the process under that act is excruciatingly slow and complex for all parties involved. The delay that we have seen in the resolution of native title claims and the litigation that flows from those claims has resulted in millions of dollars being wasted, opportunities for reconciliation and development squandered, and the flourishing of distrust and disillusionment with the process by all parties involved, Indigenous communities and others with interests in the land. The prolonged delays in resolving claims have meant that some people have died while still fighting for their rights under the native title process and been denied the chance to see their native title recognised. If this situation continues, as I understand the position, the best estimate is that another 30 years will be required to resolve all current native title claims, not including any that come about in the future.

This government is committed to closing the gap between Indigenous and non-Indigenous advantage. The Prime Minister’s apology to the stolen generations gave the nation fresh impetus for renewing efforts in reconciliation and moving forward towards a more equitable future for all Australians, including Indigenous Australians. Getting the native title process right is an important part of that broader ambition that we have for our nation. Native title and its associated agreements are an essential part of closing that gap. Whilst the process for recognising claims struggles under the weight of protracted litigation, our Indigenous communities and other communities that have connection to the relevant lands are being further deprived.

This government believes that negotiation is more likely to produce results than litigation and that native title issues should be resolved by negotiation wherever possible. Negotiation is better suited to achieving timely and effective resolution of those claims. The adversarial system by its very nature is not conducive to encouraging long-term, productive working relationships into the future, which are often so important in ensuring that the land is used in a productive way. Frankly, negotiation and mediation have always been the intent and the spirit of the legislation.

My home state of South Australia provides an impressive example of what can be achieved through negotiation. Our state’s biggest native title determination was made in March this year, after many years of determined effort. It involved the recognition of the non-exclusive rights and interests of the Adnyamathanha people over more than 41,000 square kilometres of land in and around the Flinders Ranges. It recognises rights and interests including access to perform ceremonial or cultural activities, to hunt, to camp and to gather natural materials such as plants and ochre. These were consent determinations that resolved one claim and partially resolved another. The Indigenous land use agreement is currently being finalised for comanagement of Flinders Ranges National Park. The parties to the determination included 45 pastoral lease holders, mining and exploration companies, along with the Adnyamathanha people and the South Australian government.

Achieving this major determination without litigation not only shows the potential for negotiated settlement but, just as importantly, paves the way for future cooperation between all of the parties in managing the land and jointly exploring other economic development opportunities. As the Native Title Tribunal Deputy President Chris Sumner said:

This determination is an example of what can be achieved when all agencies involved in the native title process—especially the Federal Court, the Tribunal, South Australian Native Title Services, the SA Government and legal and anthropological advisers—work together in a co-operative way, which is a feature of native title negotiations in South Australia.

Our government wants to see all of the country following South Australia’s example, and this bill aims to facilitate that. The government believes that broadening the scope for mediation whilst tightening case management, a much-needed step in this area, will increase flexibility and efficiency, resulting in more timely and effective negotiated resolution of claims.

A key aspect of this bill is to amend the act to give the Federal Court a central role in managing native title claims. The Federal Court, as we know, has vast experience in alternative dispute resolution in a range of different areas of the law. The Federal Court will henceforth, if this bill passes, oversee case management of the native title claims. The Federal Court can provide transparency, independence, accountability and competency that is vital to maximise faith in the native title process, deliver results and fulfil the hopes and aspirations of native title claimants and other involved people. By centralising control over case management in the Federal Court, opportunities for resolution can be more easily identified, deadlocks can be worked on more efficiently instead of being left to fester, a more focused approach can be pressed upon the parties by the court if one or more of the parties is dillydallying and issues in dispute can be more readily identified along with options to further progress the claim’s resolution.

As part of its central role, this bill allows the Federal Court to refer the whole or any part of a proceeding for mediation to a court mediator or to the Native Title Tribunal or another individual or body. It provides a flexible and responsive approach to mediation and allows the court to use the most appropriate form of dispute resolution according to the circumstances of the case. The court will continue to utilise the Native Title Tribunal’s experience and specialist capacity without relying on it necessarily as the only available mediating body. The Federal Court will better coordinate, prioritise and allocate resources for mediation than currently is the case. The success of negotiating agreements through mediation depends heavily on the good faith of all parties involved. Without a cooperative approach and sincere efforts from all, very little can be achieved. One of the court’s new roles will be to assist in identifying parties who are acting in bad faith and pulling them into line.

The bill will also enable the court to make consent orders—and I stress ‘consent orders’—about matters beyond native title that might be conducive to a positive working relationship between all parties. This could include agreements relating to economic development opportunities, training, employment, heritage, sustainability or existing industry principles. Permitting the court to assist in the resolution of native title and other matters at the same time will foster future cooperation and agreement, hopefully to the benefit of all parties.

The bill will also give the court discretion to rely on agreed statements of facts between some or all of the parties. At a minimum, this agreement must be between the native title claim group and the principal government concerned but can also be between a range of other parties involved in the claim.

This bill also seeks to broaden the scope of claimants utilising the recent changes to the rules of evidence introduced by this government in the Evidence Amendment Act last year. This has the potential to greatly assist native title claimants with giving evidence relating to traditional laws and customs. In particular, amendments to the hearsay and opinion rules recognise those rules’ incompatibility with providing evidence on the existence of traditional laws and customs. This shifts the focus away from legal technicalities to the more pertinent issues—and, frankly, more reliable issues—of reliability and weight. In order to ensure that native title claimants reap the most benefit from these changes, this bill will make exceptions to the transitional provisions so that the new rules relating to evidence can apply to proceedings initiated prior to 1 January 2009. This bill will also streamline processes dealing with the recognition of native title bodies that can be involved in the resolution process. Experience has shown those bodies to be a very important part of successful claims.

The whole thrust of this bill is to facilitate a more cost-effective, efficient and timely native title process that focuses on negotiation rather than litigation to achieve results. The government has consulted widely on the amendments and there has been wide-ranging support for what is proposed in this bill. A discussion paper was released by the Attorney-General and distributed to over 70 stakeholders, although we accept there is still more to do than this bill presents. This bill is part of an ongoing process of reform in consultation with Aboriginal and Torres Strait Islander peoples to make real and lasting improvements that achieve the original intent of the act 15 years ago.

The bill before us today, together with renewed efforts by all parties to work constructively together to further the interests and the intent of those the act was intended to benefit, can make some much-needed improvement that will enable a more flexible, effective and timely response to determining native title claims. I commend the bill to the House.

Wilson Tuckey (O'Connor, Liberal Party) Share this | Link to this | Hansard source

I thank the member for Port Adelaide for not taking up his full time, because I feel I can bring quite a lot of good advice to the House on this matter of the  Native Title Amendment Bill 2009 simply because in my business career I lived in—and managed businesses, including hotels, in—a town that had at all times about one-third of its population being of Indigenous descent. I also happened to chair the backbench committee under the Howard government that discussed the amendments that the Howard government provided to the Native Title Act. That in itself involved quite a piece of negotiation amongst the variety of interests involved within the party.

We have here today another attempt to find a mechanism that delivers a speedy resolution of native title claims. I am not totally convinced that it will be any more successful than past attempts. My reasoning is not all that difficult to follow. When the bill for the act was first brought to this House, I think even the Keating government wanted to amend it but at that stage our leader, John Hewson, decided that we would support no amendments and would oppose the legislation lock, stock and barrel, so it was passed in its original form. The opposition has made the point that it wants to wait for the report from the Senate on the legislation before us and hold off its final decision until that occurs. I am hopeful that at that time the government will see the sense of an amendment to the right to negotiate provisions. It is one of the problems that need the attention of the government, and I do not know if it was all done deliberately or accidentally but, as I have said, my longstanding recollection is that the Keating government thought at the time they really should do something about it.

All parties involved in a native title claim bar one group are entitled to negotiate in good faith. The member for Port Adelaide talked about a court dealing with people who were not acting in good faith. But as the act prevails there is no obligation on the native title claimant parties to act in good faith or to negotiate in good faith. In fact, in my view it might best be described as the right not to negotiate. I have seen over the years numerous examples of that occurring and the only outcome of that has been that people have got more angry and the circumstances have not been the best. But, quite obviously, it will be otherwise if it is the view of the government that the Federal Court, with its increased powers and responsibilities, to which I am not an objector, can then in fact have the opportunity to say to any of the applicants or all those involved, ‘You will come to court and we will get this matter moving.’ That cannot happen today because under the act people do not have to turn up and they are not deemed to have been failing to negotiate in good faith. There is no obligation upon them to do so.

If one has had experience, as I have had, with Aboriginal families—and later I will comment a little further on the representations that I have had from Indigenous families within my own electorate—one would know that the first responsibility is to get them to agree amongst themselves. One of the changes with the 10-point plan was to require, for the first time, that there only be one applicant body; in other words, Aboriginal or Indigenous people had to sort out who was going to be the claimant. We had the situation previous to that of a claimant making a claim, successful or not—and if successful often that involved a financial settlement in those days—and then someone else would make a claim and somebody else had to make a financial settlement. Consequently, we amended that situation by saying, ‘Well, there can only be one claimant whatever that matter is.’ But this is the situation that arises before native title issues are settled. It is arguable that under this right not to negotiate there are better outcomes for Aboriginal opportunists in some cases to wait until someone has reason to develop a piece of land and then apply or threaten to apply for native title. Under the act they have a right in those circumstances to negotiate, ostensibly to protect their own interests and culture. But if they can delay a development for sufficiently long, there is usually a financial payment. With a much larger thing like the recent Woodside James Price Point arrangements in the Kimberley of Western Australia, the reality was that the newly elected Premier said, ‘Listen, Fellas, if you can’t come to an agreement I will’—as the 10-point plan provided—’resume native title.’ Because that is a law of the Commonwealth, it would have been resumed with compensation. The other fact that is misunderstood in all of this is that native title is not a right as to property, although that does apply in the Northern Territory, where the Fraser government created a law for the Northern Territory which actually granted property rights. Throughout the rest of Australia a native title right is a right of access and a right, on account of that access, to hunt and gather and to conduct traditional ceremonies.

As time has progressed, I think there has been a more generous view than that amongst many people, particularly in the mining sector, who are more than happy to look at the rights of Indigenous title holders and give them better opportunities in employment, better facilities and things of that nature, which is the outcome of proper agreements. But that is typically after native title is granted. The big problem that first needs to be fixed is that, where native title does not exist but the right to negotiate does, one party has no responsibility to negotiate in good faith. I will be encouraging my colleagues to see that that is changed as a major enhancement to these other measures.

But there are other aspects of native title that worry me considerably. For many people, I think it has created a cargo cult culture. Their expectations are beyond what it is likely to deliver. I think that is a pity. I went to Carnarvon in 1958, nine years before the Australian government had any constitutional right to do anything about Aboriginal people. You may remember the history of our Constitution, in which the founding fathers wished to implement the White Australia policy—under the pressure, I might add, of Labor members of parliament, who thought that the Chinese were going to pinch all their jobs. They therefore created a clause in the Constitution for the federal parliament to pass laws for people of certain race. The purpose of that was to tell them they could not come to Australia. Then someone said, ‘Oops. We’re not going to kick all the Aboriginals out,’ and someone else said, ‘We’ll put in “excepting the Aboriginal race”.’ That insertion forbad the Australian parliament from doing anything on behalf of or for the control of Aboriginal people. It was all a responsibility of state governments.

When I arrived in a town of 2,000 or 3,000 people with a local population of 300 or 400 resident Aborigines and a peripheral population of probably some thousands residing on station properties, which were typically their homelands, and serving as a labour pool in those days, everybody had a job. There was no welfare. Outrageously, you could apply as an Aboriginal person for citizenship of Australia. That was the situation, but people did not have the problems we know of today. They were hardworking and, in fact, at that time a major construction project commenced, building the road from north of Northampton, which is just north of Geraldton, all the way through to Onslow and onwards. The Carnarvon main roads department ran the job for that length of road, and their third in command was an Aboriginal person and very good road builder. A very large number of their skilled grader operators et cetera were Aboriginal. These people just got along. Their kids went to school and all the problems we read about today did not exist.

In 1967, with goodwill and with the aid of my vote—the only time I have ever voted ‘Yes’ in a referendum—the Australian people gave an opportunity to the Commonwealth government to be part of the process. I do not believe that we have done very well. I think there are numerous reasons for that. I promoted to our former leader John Howard the idea of reversing the funding process from tops down to bottoms up. I still believe that the local government financial assistance grants model is the best way to go, but one of the things it does, of course, is disadvantage the Aboriginal elite, and therefore that is a problem.

When one looks at the circumstances that exist, it is too simplistic to say that you can just give more power to the Federal Court. In principle, I do not oppose that, but we need to look at the details surrounding it. There needs to be an understanding that, firstly, the Aboriginal people have to get together and move forward together. If they do not, the court should have the capacity to say, ‘Delay is not acceptable. You have your rights to put your case.’

I am also somewhat of a critic of what I term the inventiveness that exists in tradition and culture. A lot of that, I think, is manufactured and not true—and certainly not true when I knew people who had scars on their chests. One of those people told me they never had a sacred site but had a lot of sacred objects. When one thinks of their nomadic existence, there was probably some truth in that. But I just wonder when the Akubra hat or a flag become part of a culture. They are not cultural things. And smoking ceremonies are an American Indian cultural issue. All of a sudden it sort of looks good because you see it in the movies.

Steve Gibbons (Bendigo, Australian Labor Party) Share this | Link to this | Hansard source

It wasn’t an issue; it’s part of their culture.

Wilson Tuckey (O'Connor, Liberal Party) Share this | Link to this | Hansard source

It is not a part of Aboriginal culture as I know it. What I am saying is that some of this inventiveness is of little value when, in fact, I and others would like to see the life of your typical Aboriginal person much improved. I am not convinced that the focus on land rights has been productive in that regard, nor do I believe a centralised bureaucracy is the way to resolve it—and I have produced papers on the subject and tried to do something about that.

I sincerely hope that this otherwise rather inconsequential piece of legislation can be the foundation for some much more sensible things. Might I say, before the Speaker tells me it is time to adjourn the House, some very silly things happen. A CDEP manager has just been sacked because he took the view that if you wanted CDEP you actually worked for it. I have anecdotal evidence to prove that the powers that be sacked this bloke. By being made to do some work, two people got full-time jobs. That sort of thing has to be looked into. I will continue my argument when the debate is resumed.

Debate interrupted.