Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

I speak on behalf of the Democrats on this legislation amending the native title law of Australia. It is, as has been detailed by Senator Ludwig, relatively complex in some aspects; it is, of course, a complex act. It is interesting to compare the focus and attention on the Native Title Amendment Bill 2006 now to the attention focused on amendments to the Native Title Act nine years ago in mid-1998 or, indeed, that focused on the debate that put in place the original Native Title Act a few years before that.

In some ways, it shows that the way native title has developed has been quite different from a lot of the frenzied concerns of the era, but it also shows some of the missed opportunities that have occurred over that period of time. Thinking back to the atmosphere at the time some of the major amendments were made in 1998, it seems almost bizarre that, another eight or so years later, these reasonably significant amendments to the Native Title Act are attracting so little attention and controversy in the wider community and indeed, to some extent, relatively moderate engagement from members of Indigenous communities around Australia. I think there are a range of different reasons for that which I will not go into now.

Before addressing the specifics of the bill, I think it is appropriate to start out by expressing my dismay at the way this parliament and previous parliaments and governments around the country have mishandled native title as an issue, both in terms of the content of the law and in presenting, explaining and promoting it or otherwise to the public. We have collectively squandered many opportunities that were presented by the historic High Court decisions in the Mabo and Wik cases. Those were opportunities not just for Aboriginal and Torres Strait Islander people but also for the entire Australian community. Many of those opportunities have, I fear, been lost—but not all. Whilst there have certainly been some positives to come out of native title law and native title decisions, there is still more potential there that will not be realised without positive and proactive action.

Given all of the drama of years gone by, it is curious that, when people talk about native title law now, the context and nature of the discussion is often about the nitty-gritty and the arcane aspects of the legal processes: the tribunal processes, representative bodies, prescribed bodies corporate and all of these sorts of things. It is presented as something complex, which it is; onerous, which it often is; and grinding, which it often is. It is generally seen as something difficult, painful, arduous, expensive, a lot of hassle and fairly traumatic—sometimes people wonder whether it is really worth all the bother. It is really quite sad to think of that being the way a lot of people perceive and engage with the native title system compared with the opportunities and dreams first presented by those High Court decisions and the original piece of legislation passed by this chamber back in 1993.

It is appropriate to remind ourselves of what native title actually represents as a concept and as a reality—not the Native Title Act per se, but native title and the existence of it. It represents the burying of the lie of terra nullius—the lie that Australia was an unoccupied land that could just be moved into and that the people who had lived here for millennia before that had no claim to it and no need for recognition. It also represents recognition of the fact that much of the cultures of Australia’s Indigenous peoples are still alive and of great value, meaning and significance. For that very reason, it presents still a golden opportunity for all Australians to recognise the extraordinary heritage we are privileged to have a connection to as residents of this continent. Indeed, I believe that, in many ways, native title presents as much as an opportunity for non-Indigenous Australians as it does for Australians with Indigenous heritage and ancestry. But it is an opportunity and potential that, on the whole, has not been realised and grasped. It is imperative that we revisit and remember the spirit of those early years of native title. We must continue to work to change attitudes and to make people recognise that those opportunities are still there but they need to be grasped—they will not just occur as a result of this grinding legalistic process that is represented by the act as it now operates.

Native title was represented by many in the community—including by some who knew that the reality was otherwise—as a major threat to many aspects of Australia’s society and economy. It is often still seen and sometimes still presented as a threat, despite all of the evidence to the contrary. At best, it is seen as a grinding hassle or a grudging paper recognition. But it is more than that, it has been more than that and it deserves to be far more than that again. That requires a change in attitude and a change in approach, and I am afraid that by and large this legislation before us does not provide that. There have been positive exceptions. There have been a number of very important claims that have been recognised. While the reality is that native title in the sense of land title is very much a residual right that does not present economic windfalls, it has been a vehicle for beneficial outcomes for some Indigenous peoples and communities in various parts of Australia and it presents opportunities on top of that.

A number of positive Indigenous land use agreements have come out in various ways as consequences of the existing process. There have also been some quite poor ones, of course. We have recently had the very positive example of the recognition of the claim of the Githabul people in the far north of northern New South Wales. In itself, the recognition of that native title does not instantly bring with it enormous amounts of money, but it brings with it potential for the future in that regard. Most importantly, it brings clear, unequivocal, official, formal recognition under the laws of Australia of a continuing ongoing connection to the land of Indigenous peoples which stretches back tens of thousands of years. Frankly, to me it is not just very important for those people whose connections to land have been recognised but very important for Australia as a whole to be able to say that we as a nation have part of our people those who have that connection—the oldest continuing living culture in the world today. Those are words that I hear now and then around the place. I do not think that the significance of them sinks in terribly often for Australians, but it is about time they did. That is an enormous and very valuable claim that we can make. It is one for all Australians, not just Indigenous ones, to celebrate and to make use of.

While there have been some positive exceptions, there has also been a lot of disappointment. Just on the other side of the border in the south-east corner of my own state of Queensland, that very same claim from the Githabul people has yet to be progressed and recognised. The border has no meaning for the Githabul people in terms of their traditional connection to land. Other longstanding attempts to get native title recognised in parts of the Gold Coast have made little progress. Indeed, the Quandamooka claim over Stradbroke Island just to the east of Brisbane, which showed such great potential that I recall making special mention of it in my first speech in this place nearly 10 years ago, has been largely frustrated since that time for a whole range of reasons. The missed opportunities there are very disappointing. While they still present themselves in some ways, the lost opportunities, the lost time and the trauma that has been involved in trying to reach resolutions in that regard have been very disappointing. I am not sheeting home all blame to governments, state and federal, but we all know how important leadership can be. If we had had strong, positive, consistent leadership from state governments then we would have advanced much further.

It has been interesting to see the shifts in some attitudes that have occurred. Indeed, in the Senate inquiry into this legislation, evidence that was presented from the Minerals Council of Australia and the Queensland Resources Council was supportive of giving more resources, more assistance and more capacity building to native title representative bodies and Indigenous people working within them. There has been a real shift forward by many—not all—mineral companies and mining bodies compared to 10 years ago, so there are opportunities there.

I believe that, through the processes that have led to this legislation, there have been some genuine attempts to try and improve some of the ways in which things operate at the moment. There is a lot of red tape and lots of starts, stops and expense. But I would have to say that the evidence presented to the Senate committee by those people who engage with this process and have a pretty good idea of what will work and what is not working was not very positive. It was not very positive about more power going to the tribunal; it was not very positive about some of the other mechanisms that are being put forward here. Frankly, while the committee made 10 recommendations that I hope the government picks up, I do not think that they go far enough to address the genuine concerns that were put forward. These were concerns put forward totally outside the context and the paradigm of the ideological battles of the past. They were simply put forward in the context of making this work better.

People recognise and accept native title now. You would not know it sometimes from some of the controversies that appear in the media every time that there is the prospect of a successful claim, such as the Nyungar claim in Western Australia, but there is an acceptance of it among many who work with native title, and people just want to make it work better. Aspects of this legislation may do that, but a lot of those people who work on this on a daily basis and who presented information to the inquiry suggest that aspects of it may, if anything, make it worse.

The Democrats have a number of amendments regarding that, which we will talk to when we get to the committee stage of this debate towards the end of this week. I hope that the government is open to some of those, because, regardless of the past history in this area, there is a genuine desire for the whole native title process to work better. It has achieved some positive outcomes, as I said. But the potential that was presented there initially has on the whole not been realised, and that is a real missed opportunity. A lot of that potential still exists, and I believe that we need to redouble our efforts not just in improving the law but in improving the capacity of and opportunities for Indigenous people—both through representative bodies and other organisations—to engage with this process and make it work better. We also have a responsibility to make the Australian community aware of the positive opportunities that native title presents.

Debate interrupted.