Rachel Siewert (WA, Australian Greens) Share this | Hansard source

I rise to speak to the amendments to the Native Title Act. It is telling that, in addressing what they consider to be the ‘problems’ and failures of the Native Title Act, the submission from the Attorney-General and FaCSIA and the minister’s second reading speech in fact focused on the complexities, the costs and the delays in the system of assessment, recognition, mediation and agreement making but they did not concentrate on the original intention of the introduction of native title and the outcomes it is meant to deliver for native title holders.

This is particularly strange when you consider that the Native Title Claims Resolution Review 2006 report found that, of the total 1,683 claims filed, 1,062 had been resolved one way or another by January 2006, despite native title being a relatively new area of law, only 15 years old. I would say this was a fairly respectable outcome.

However, on the other side of the ledger, you only have to look at the manner in which the standard of living and life opportunities of native title holders and Indigenous communities have been going backwards over this period. The statistics I have recounted many times in this place about health, education, employment, economic development and housing outcomes for Indigenous Australians have not been going forwards; they have been going backwards. There is still a very significant life expectancy gap between non-Aboriginal Australians and Aboriginal Australians. We need to recognise that native title is not delivering on its promises for Indigenous Australians.

The Native Title Act was meant to go some way to undoing the injustices and addressing the disadvantage caused by the dispossession of Australia’s original owners. The preamble to the act recognises that one of the consequences of dispossession has been that Aboriginal and Torres Strait Islander peoples as a group have become the most disadvantaged and marginalised group within our nation. The hope was that through limited recognition and protection of what remained of traditional property rights the act might provide some means for the economic and social advancement of Indigenous communities. It has clearly failed to deliver on this promise and the proposed changes to the act put forward by the government do not address these failings. If anything, they are another push in the wrong direction.

To my mind, two things have gone wrong with the development and implementation of the concept of native title. Firstly, the whole concept of native title rights has been a compromise all the way along, and its evolution through a series of High Court decisions, such as the Miriwung Gajerrong, Yorta Yorta and, more recently, the Perth Nyungar claim, have seen both a continual erosion of these rights and an increase in the number of barriers to Indigenous people actually being able to exercise these rights to improve their social and economic position.

Secondly, the institutions created to represent traditional owners and help them obtain recognition have been inadequately resourced and empowered, and they struggle to either defend these rights or negotiate constructive outcomes and resources of state and territory governments and of industry. At the same time the institution created to oversee the process and be the impartial mediator, the National Native Title Tribunal, has become increasingly bureaucratic and particularly ineffective, especially in its mediation role. Research released in late February by Griffith University Business School shows very clearly that the National Native Title Tribunal seriously disadvantages Indigenous groups in negotiating arbitrated agreements with mining companies.

Professor O’Faircheallaigh’s research clearly demonstrates how the inequity of the tribunal’s arbitration process creates a situation in which Indigenous groups are under enormous and unequal pressure to make agreements outside of arbitration that deliver few tangible benefits. That is because mining companies know that, if the matter is referred to NNTT arbitration, the tribunal is not permitted to consider awarding Indigenous groups money toward the value of minerals taken from their lands; it is unwilling to impose conditions that may prove onerous for the mining company; it requires more stringent standards of proof of Indigenous groups; and it has granted mining leases in all 17 cases referred for arbitration in the last decade—hardly a fair outcome for Aboriginal groups. Professor O’Faircheallaigh concludes:

In principle, the Act ... creates incentives for grantees to reach agreement because if they fail to do so and enter arbitration the Tribunal may decline to grant the interests they seek or impose onerous conditions on any grant it makes. However, in practice the Tribunal has applied the arbitration provisions of the NTA in a manner that renders them largely innocuous from the perspective of the grantees. The result is a fundamental inequality in bargaining positions. This undermines the purposes of the NTA and leads to agreements that favour the grantees.

If the government were serious about reforming the Native Title Act to ensure that it delivered better outcomes for Indigenous Australians—rather than quicker and cheaper outcomes for industry, and more politically comfortable outcomes for the states—it would be assessing the way the tribunal is currently administering the provisions of the NTA and amending them to create a level playing field between miners and native title groups. Rather than tipping things further the other way, it would allocate the arbitration function to an independent judicial body, not the NNTT, and it would allow arbitrated decisions to include compensation relating to the value of minerals taken from the land, which would create the possibility of some real outcomes for Indigenous landholders and provide a basis for some real economic development initiatives.

The proposed amendments to the Native Title Act undermine native title rep bodies; give greater coercive powers to the National Native Title Tribunal; give much greater executive powers to the minister and provide insufficient mechanisms to review ministerial and bureaucratic decisions; and would allow non-Aboriginal corporations to take on responsibility for representing and consulting with native title holders.

There are some positive elements to the recommendations, which I note are the amendments that arose from that part of the bill that had widespread community consultation—for example, limiting the rights of third parties to issues that are relevant to their interests, giving the court the power to remove a party that does not have a relevant interest and encouraging the court to adopt a practice note setting out the court’s preferred method for managing native title claims.

However, the negatives far outweigh any of the positives. Rep bodies are undermined by making their continued existence more uncertain through periodic recognition; by heaping a much greater administrative load onto their shoulders without addressing the already pressing issue of underfunding; by giving the minister greater executive discretion to deregister rep bodies, to change the areas they represent without consultation and to determine their financial resources; by changing the criteria for assessing their performance so that satisfactory representation and adequate consultation with native title holders are no longer considerations; by allowing a broader range of bodies to be recognised as rep bodies; and by allowing native title service providers to perform all the functions of an NTRB.

While accountability and good governance are always of concern where public moneys are being spent, they are not the major stumbling blocks in delivering an efficient and effective system for reaching native title agreements. The main issues are capacity and resources. The parliamentary joint committee on native title’s inquiry into native title rep bodies looked into the limitations on the functioning of NTRBs and made a number of key recommendations, only some of which have been implemented to date. The evidence given by stakeholders to the PJC and the evidence given to the Senate legal and constitutional committee’s inquiry into this bill all seem to point to inadequate resources as one of the major limitations. Recommendation 5 from the joint committee’s report states:

The committee recommends 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 Minerals Council of Australia said in its evidence to the Senate committee:

It is essential that improved governance is matched with increased resources directed towards capacity building of NTRBs and NTSs. Without adequate resourcing of NTRBs and NTSs, both in terms of financial and human capital, we consider that these reforms—

the reforms that we are talking about now—

could destabilise the operations of the native title system, which would be to the detriment of business, Indigenous communities and the achievement of mutually beneficial native title outcomes.

They go on to say:

... NTRBs have been chronically underresourced in fulfilling their legislative functions in representing Indigenous interests, which has delayed the negotiation of mutually beneficial agreements with industry and the resolution of native title claims.

They say that the changes:

... have the potential to divert already limited resources towards bureaucratic processes, unnecessary onerous compliance obligations or the winding up and establishment of new services, and away from the primary functions of representing Indigenous interests and achieving native title outcomes.

That is from the Minerals Council of Australia.

In particular, I am concerned that periodic recognition could result in the suspension of and substantial delay to ongoing negotiations, which could cost other parties, such as governments and industry bodies, substantial amounts of money. It could also mean that it could become necessary for them to renegotiate already agreed matters, to begin building relationships with new NTRB staff and organisations, and to revisit complex and longwinded issues all over again.

The stability of NTRBs, just like their capacity for understanding native title law and negotiating mutually beneficial agreements, is in the interests of all parties to a native title claim. Having the minister able to choose to recognise NTRBs for only 12 or 18 months would be particularly destabilising for all concerned. That is why the Australian Greens will move an amendment, as recommended by the Minerals Council of Australia—it is highly unusual for us to be taking up one of their recommendations—to establish a minimum recognition period of three years. Similarly, giving the minister the discretion to arbitrarily alter the boundaries of an NTRB’s representative area could also have a seriously destabilising effect on ongoing negotiations and native title claims.

Increased powers of the NNTT are dealt with in schedule 2. The bill proposes that the NNTT have the power to: make reports to the Federal Court, ministers, funding bodies or legal professional bodies of a failure by a party to act in good faith in mediation; issue directions to parties to attend mediation conferences or produce documents; and conduct native title application inquiries and reviews of a claimant group’s connection to the land. The bill precludes the Federal Court conducting mediation on a native title application when NNTT mediation is underway. There is a large degree of concern about NNTT mediation in many states.

Practically all of the stakeholders who gave evidence to the committee, including the Office of the Registrar of Aboriginal Corporations, the Minerals Council of Australia, the National Native Title Council and native title lawyers as well as NTRBs, land councils and HREOC, rejected the idea that expanding the mediation powers of the NNTT would lead to the more efficient and effective resolution of native title claims. All of these stakeholders pointed to the poor success rate of the tribunal with mediation, citing both past statistics and experience, saying things like:

... all of our experience is that they—

the NNTT—

do not deliver the goods.

The Northern Land Council said that. Further, it was said:

… the NNTT has simply not shown in the past that it has the expertise to effectively mediate.

The National Native Title Council made that comment. The Minerals Council suggested:

Given the Government’s intention to provide the NNTT with greater powers in the mediation of native title claims, the MCA considers that there is a need to ensure that ... greater emphasis is given to building capacity to ensure competency in undertaking any expanded role.

A 2001 study by Griffith University found that the most fruitful agreements were negotiated outside of the NNTT.

There is a real risk when looking at the good faith reports that a judgement being made by the NNTT that a party has not acted in good faith in mediation is very likely to result in that party feeling obliged to defend their reputation and, in the case of NTRB and other bodies reliant on government resources, their funding in the courts. We are also extremely concerned about the coercive directions being given to the tribunal. The office of the registrar argued that:

... giving the NNTT the ability to issue coercive directions would be likely to lead to state and territory governments pursuing second-order litigation seeking to protect their own prerogatives, that administrative directions by the NNTT would have no credibility unless backed up by an effective enforcement mechanism—that is, by reference to action taken in some court—and that if the power to give directions in mediation is conferred on the NNTT, it becomes an administrative power which would be subject to judicial review ... as it is simply not possible under our constitution to set up a system where an administrator can give binding statutory directions which do not attract judicial enforcement and are exempt from judicial review.

In other words, there is a great deal of concern also around that particular amendment.

Another area of great concern is the provision of greater executive powers. The proposed amendments to schedule 1 give greater executive powers to the minister which would allow the minister to de-recognise a representative body or alter the area which it covers in an arbitrary and non-transparent manner without any accountability. There is also no requirement for notification, and no requirement that the minister re-register NTRBs. This lack of certainty could have a destabilising influence on ongoing native title negotiations, and the increased administrative load associated with re-registration applications could further delay native title processes. This is why we are moving amendments to require the minister to invite re-application in a timely manner where notice of an intention to withdraw recognition has not been given. There is no rationale given for these changes to ministerial executive powers to justify the need for greater executive discretion, and it seems contradictory that on the one hand there is a move to greatly increase the accountability of NTRBs while on the other hand the accountability of the minister is dramatically reduced.

We also have concerns around the recognition of non-Indigenous corporations. The bill proposes to allow a much wider range of corporate bodies to be recognised as rep bodies and to permit native title service providers to perform all the functions of an NTRB. This ‘mainstreaming’ approach, taken together with the provisions which ‘wipe out’ the criteria relating to representation of and consultation with native title owners, undermines the fundamental role of representation of the native title holders of the NTRB.

This bill is a retrogressive piece of legislation that does not seek to progress the issue of native title. It does not address the fundamental constraints to the success of native title law in delivering certainty to industry and governments—and certainly not to native title holders. It is further hindering opportunities for economic development and increased self-reliance in Aboriginal communities; in fact, it makes that much harder. It is an opportunity wasted and yet another example of what I believe is this government’s blinkered ideological approach to Indigenous development in this country.

This piece of legislation could be very important for Aboriginal communities. It has not been operating effectively because it has been hobbled. It has not delivered the promised outcomes. These changes will not deliver a better process. They will not deliver for Aboriginal communities. I think the government’s intention is more to deliver for industry bodies and mining corporations, but I do not think it will even do that. By further destabilising rep bodies, the government is further destabilising the native title process, which will undermine any negotiations between mining companies and native title holders. If the government were genuine about improving this act, it would review the issues that have come out of the research to date which shows that the act has not been delivering for native title holders but that it has been delivering for mining companies, and it would seek to genuinely address those issues. The Greens will be opposing this piece of legislation when it is put to the chamber.