Trish Crossin (NT, Australian Labor Party) Share this | Hansard source

I rise this morning to provide a contribution regarding the changes to the Native Title Act in the Native Title Amendment Bill 2006 before us today. In September 2005 this government announced a package of six interrelated reforms to the native title system. The primary purpose of this bill is to amend the Native Title Act 1993 to implement aspects of four of those six elements of the reform package announced back then. These four elements are the measures to improve the effectiveness of the representative Aboriginal and Torres Strait Islander bodies, known in the industry as the native title rep bodies; an independent review of native title claims resolution processes to consider how the National Native Title Tribunal, the NNTT, and the Federal Court of Australia may work effectively in managing and resolving native title claims; measures to encourage the effective functioning of prescribed bodies corporate; and reforms to the native title nonclaimants or respondents financial assistance program to encourage agreement-making rather than litigation.

I want to place on record very early in the piece that it should be noted that the provisions in schedule 1 of this bill have in fact only been available for comment for two months—that is, two months over the Christmas period. They were released late last year. I am aware that, in the other chamber, representatives of this government have argued that this bill has been out there for quite a while and that they have consulted organisations and individuals on it. If we are talking about the reform package that was announced in 2005 then that may well be correct. But you need to ask the question: which aspects of this bill have actually been out there long enough for those affected to provide some genuinely informed feedback on its implications? The native title rep provisions have received quite substantial concerns and criticisms, as has the expansion of the powers of the National Native Title Tribunal.

Generally, we believe that the significant changes to the Native Title Act contained in this legislation by and large have not been out there long enough for people to have had genuine consultation and discussion about their implications. The changes are fundamentally flawed. The reasons for that were outlined in the minority report of the Senate Standing Committee on Legal and Constitutional Affairs on this bill.

The original native title legislation, when it was debated in this parliament, was historic—there is no doubt about that. It has become an accepted part of business now for the pastoral and mining companies. As indicated, it was accepted that over time, as with most other policies and acts, changes would be needed. It is just a logical extension. When you get an act into place and you start to work with it, you realise that changes need to be made from time to time. But we do not believe that the bill before us today is the answer to the changes that are needed in the native title process. Many aspects of it are not supported by the Australian Labor Party.

Recent research released by Griffith University has shown that native title has not always proved to be effective and that many Indigenous land use agreements or ILUAs, as they are known, have failed the people they were supposed to help—that is, the Indigenous people in areas of most concern. The Griffith research showed that, over the past 10 years, half of the ILUAs entered into were failures and delivered few if any benefits to Indigenous people. Many, indeed, were described as basket cases. The research also reported what any of us who have been closely involved with Indigenous organisations over the years know—that Indigenous people do find our ways of governance in general difficult to understand, follow and comply with, and extremely complex. I might add that it is probably not only Indigenous people who feel that way sometimes.

This bill now before us really does not answer these concerns either. Indigenous organisations do lack the skills and resources to take on negotiations on anything like a level playing field when dealing with large mining companies—or other companies, for that matter. This government has continually, over the period of its time in office, weakened the position of Indigenous people. The bill before us today is just another example of this. This is a government that thrives most zealously on what it calls accountability for all and any Indigenous organisations or communities.

The government imposes layers of red tape on Indigenous organisations. That has been highlighted most significantly, for instance, in the recent reports of the COAG trials. Mainstreaming has imposed more layers of bureaucracy, with the result that most of the COAG trials have been a disaster, have achieved very little improvement and, in fact, have spent 10 per cent more money in administration than was ever imagined under the operation of ATSIC. It ignores the relationship of trust which must be generated over time with stakeholders when dealing with sensitive cultural issues such as land. This bill ignores cultural factors associated with the way Indigenous people prefer to discuss and negotiate improvements and outcomes for themselves.

We would fully support any legislation that would genuinely improve the performance of native title rep bodies, but we do not believe that this bill will do that. The bill imposes more regulation on and uncertainty for native title claimants and their representative bodies. It further undermines the capacity of native title rep bodies to fully represent Indigenous interests. Limited periods of recognition of native title rep bodies will create uncertainty, inhibit strategic business planning and discourage staff tenure, and the accumulation of corporate knowledge will be lost over time. Broadening the range of native title service providers could lead to the government giving away native title service provision in open tenders—as we are seeing, for example, in the way in which CDEP is being operated—and bringing on non-Indigenous firms that may well in fact be the future representatives of Indigenous people in negotiating outcomes for native title.

The changes proposed in schedule 2 would expand the role and power of the National Native Title Tribunal, which is already seen by many stakeholders as bureaucratic and slow. Mr Philip Vincent, for example, from the National Native Title Council, said in his presentation to the Senate Standing Committee on Legal and Constitutional Affairs hearings into this bill on 30 January this year that, when this bill was first put through some years ago:

The starting point was some 1,683 claims filed, and 1062 have been resolved in one way or another as at January ...

He takes those figures from the Hiley and Levy report. Those two gentlemen were charged with the responsibility of inquiring into what changes might be needed in the native title area. So, in effect, 621 claims are outstanding and we know that, as of June last year, it is down to 604. But, by and large, what we heard from people during this inquiry is that the NNTT is remarkably slow at progressing these claims, and there is a substantial lack of confidence in the way in which this bill will transfer the negotiating responsibilities from the Federal Court to the NNTT.

Submissions to the legal and constitutional affairs committee showed that the native title rep bodies opposed this legislation. The Aboriginal and Torres Strait Islander Social Justice Commissioner, who writes the annual native title report that is tabled in this parliament each year, also opposes this legislation. You have to give credit to the government! It writes legislation and proceeds to put it through this parliament, when its own social justice commissioner is saying that there are problems here and that this legislation should not proceed—the same social justice commissioner who will provide a report to this parliament on native title issues this year. From that, I would think that there are serious flaws in this legislation—flaws which this government is not willing to accept or realise.

Our dissenting report on the Senate committee inquiry into the bill expresses concern that introducing periodic terms for native title rep bodies will undermine their true independence. It may also interfere with native title applications, which have, not infrequently, taken over six years. So, under this legislation, native title rep bodies can only be registered for six years, and we know that there are many claims that will take longer than that. The Minerals Council of Australia even saw that the minimum period of recognition should be three years instead of the one year proposed in this bill. So we do not even have the Minerals Council on board 100 per cent in relation to this legislation.

A number of committee inquiry witnesses thought that periodic recognition would require native title rep bodies to devote too much time and resources to the time-consuming recognition process, thereby diverting resources from their core function. And that is true. We had evidence before us that if native title rep bodies got, let us say, two-year recognition, it would be at least three or four months before their money kicked in and they could operate; they would spend about another year or 15 months operating as a native title rep body, and then a considerable amount of their time would be spent writing grants or re-registering and undertaking the process to simply continue and survive. So the time frame is too restrictive and there is too much unnecessary bureaucracy in the way that the native title rep bodies will have to operate.

Our dissenting report says the requirement for periodic recognition is unnecessary, given that the minister already has the power to withdraw recognition from a poorly performing native title rep body. And that is true: recognition has already been withdrawn from one native title rep body. But we are talking about 13 or 14 rep bodies, if my memory serves me correctly, around this country, and a couple of service providers. This legislation seems to place an unnecessary burden on all of those native title rep bodies, despite the fact that, in the past, we have seen all but one operating efficiently. So the mentality of this government is: ‘Let’s constrain all of them out there in the field at this time—even though there has been only one that has performed poorly, and we have recognised that and it has been dealt with.’ So obviously the system is currently working. Why you would then seek to impose legislation such as this on all the others is something which I do not believe the department or this government were able to convince the Senate committee of during its inquiry. I certainly am not convinced that this legislation should be put in place when I see evidence that the current legislation is working adequately.

The majority committee report recognises the weakness in periodic recognition, but it is itself weak in recommending a minimum period of only two years. The bill makes it easier for the minister to withdraw recognition from native title rep bodies in that it decreases the amount of notice needed from 90 to only 60 days and it removes some of the conditions under which this can be done. Given the potential amount of consulting that a native title rep body may need to undertake with remote stakeholders in the event of such a ministerial decision, 60 days is not seen as sufficient time for that native title rep body to make a case for continuing recognition. Again, the end result may be to undermine the core function of the native title rep body.

The broadening of the range of bodies which can apply and become recognised as native title rep bodies is a serious concern. It leaves wide open the door for this government to do the same with native title service provision as it is doing with, for example, CDEPs, as I mentioned, in many communities. Such mainstreaming of this sensitive native title service would break down any trust between provider and stakeholder client, as well as reduce the true representative relationship between the two parties.

The concerns continue. The government’s response to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Account’s Report on the operation of native title representative bodies of March 2006 was presented to the House of Representatives on 15 February this year. One of the recommendations of the committee—and I was a member of that committee—was to review the adequacy of the native title rep body funding. The committee at that time clearly believed that native title rep body funding should be increased in order for there to be native title rep body capacity-building activities like professional development. However, the government’s response was that there is no requirement for a funding review as there is significant capacity within current funding levels.

I might add that many witnesses commented to the committee that there was a need for improved funding—for example, the Native Title Council observed that there has never been realistic funding to NTRBs to enable them to carry out their functions under the act. So the dissenting report recommends that schedules 1 and 2 of this bill not be passed, as they undermine the capacity and independence of the native title rep bodies and potentially make the native title system slower and more bureaucratic.

Schedule 2 of the bill is the most significant element of this legislation. My main concern about it is the shift in emphasis from the Federal Court to the National Native Title Tribunal. I believe the Federal Court has a proven track record in native title case management and it has implemented a range of initiatives and efficiencies, particularly in the Northern Territory. I again go to the evidence before the Senate legislation committee of Mr Philip Vincent of the National Native Title Council. He had this to say about the bill:

… as the Minerals Council of Australia advised in their submission, it also will make it very difficult for third parties to deal with them on the basis of an expectation of certainty.

He went on to say that there are two strategies in this bill:

… strategy 1 is to punish representative bodies. Strike out is strategy 2.

He suggested that the second strategy is:

… investing powers in the National Native Title Tribunal at the expense of the Federal Court when many people suggest that the National Native Title Tribunal has not at present got the capacity to fulfil its expected functions.

We know that the Native Title Tribunal cannot determine cases under the new act. It can now make findings, but it is not a court. There is some confidence among native title rep bodies and Indigenous people that when things get difficult they can rely on the Federal Court, but this bill substantially invests the negotiating powers in the NNTT. Mr Ron Levy from the Northern Land Council appeared before the Senate committee and said:

… we have found the Federal Court’s case management, including the mediation service, vastly superior to what has been provided by the tribunal.

That the court should have its case management function transferred exclusively to the tribunal was not something that he was advocating or supporting. He went on to say:

The Federal Court has got an extraordinarily bad rap, particularly from Dr Ken Levy.

He acknowledged that Dr Levy is an accomplished person but said he:

… has got itfundamentally wrong. The Federal Court is not fighting a turf war; it is voting with its feet with the aim of settling as much as it possibly can.

So there is confidence in the way in which the Federal Court is handling cases and I do not believe there is any need for this fundamental shift.

In contrast, the tribunal’s mediation performance has been a lot less effective. One practitioner observed that the track record of the NNTT in mediating claims suggests that many of its members and staff are ill equipped to effectively carry out their mediation functions. I asked Mr Graham Neate about that during the inquiry. I asked about what sort of training in mediation members of the NNTT have. His reply was ‘one week’s training’. In his experience, the course goes for one week. ‘One week?’ I said. He thought that perhaps one week was not substantial enough and said they back it up with more training. Here I had a bit of hope. Here I thought, ‘Maybe they are going to go off for a couple of weeks.’ No, they actually give them another week.

So members of the NNTT have only two weeks training in mediation in a formal sense. Yes, I know they are lawyers and I know they are practitioners, but at the end of the day mediation skills, particularly in dealing with Indigenous people, are specific and exclusive. I believe that at times the NNTT is not well-equipped to handle the mediation process. As we saw in the submissions before the inquiry, there was much more confidence in the Federal Court.

The Northern Land Council raised with us the possibility that the proposed expansion of the power of the tribunal is an unconstitutional arrangement. Such legal uncertainty is not conducive to the goals of improving mediation and no doubt will result in further legislation. We believe that this bill should not be passed in its present form. There are many flaws in this bill, as highlighted in the Senate’s report and in our minority report, but either Labor’s proposal should be adopted or more time should be allowed for consultation on this bill. (Time expired)