David Johnston (WA, Liberal Party, Shadow Minister for Defence) Share this | Hansard source

I want to say that I am positively disposed to the solutions that have been put forward by the government’s Attorney-General in the Native Title Amendment Bill 2009 in what is a very complex and difficult legislative environment. Upon the occasion of my first speech here in 2002, I spoke of the false dawn for Aboriginal people, particular in Western Australia, represented by the practical operation of the national native title legislation. I spoke of how no stakeholders were happy or satisfied, least of all the people who were the subject of the beneficial objects of the legislation—namely, Indigenous people.

So it was that in August 2002, almost 10 years after the commencement of the act, there were some 589 native title claims on the books. Some seven years later, and some 17 years down the road, there are still 511 claims before the Federal Court—unresolved matters of native title. Any statistical analysis of these numbers indicates that we will be well into the second half of this century before these claims are resolved—at the indicative rates of resolution inferred from the numbers that I have put on the record—unless there is a significant and dramatic change in the way the process surrounding the operation of the act is facilitated.

I should comment that in the first 10 years there were 33 determinations, of which 23 were consent determinations. As at January this year, there had been 117 determinations, of which 71 were consent determinations. I will say that I think that things are getting better, slowly but surely and in small degree, and are progressing at a slightly faster rate than was seen in the first 10 years. The point is that some 19 years on we still have 511 claims on the books. So the assault in the process of satisfying and resolving these rights has been very slow and tortuous.

The answer to this problem is found in the very heavy legal evidentiary burden placed upon the claimants in presenting their case and putting matters formally before the Federal Court and in mediating those matters with other land users. The other land users are miners, pastoralists and farmers. The most important of all the other land users is usually the state governments who hold the land as crown land in right of each of their respective states.

I will give a general precis of what logistical and legal hurdles confront claimants. I will start by mentioning that the claimants are usually a quite loose knit contemporary group of tribal and filial people united by their land, by their customs and by the regions that they live in. They have a requirement for some structure or mode by which they as a unitary group can function and do business. That is to say it is required that there be a basis for the group to appoint and acknowledge a spokesperson or spokespeople.

Indeed, one of the first and most important questions confronting any claimant group is whether they are going to function as a democracy or whether they are going to function as some sort of patriarchal or indeed even matriarchal structure. Do the men control which way the claim goes, do the women control which way the claim goes or do they vote and have equal voting rights? That question alone is a significantly difficult question for many claimant groups. It is a very expensive process to bring them all together. For many of them, English is not even a second language—it is down the road of various languages and customary tongues used for communication. Bringing them together and explaining how they need to go forward in order to pursue their claim is a very technical sociological and anthropological exercise. And it costs a lot of money.

Having set out to you the difficulties confronting the claimant group at a first pass, I will now get into areas such as consultation. Having resolved a mode of proceeding, they then need to have some funding and a mode of talking to each person who is a member of the claimant group so that they are fully informed, know what their rights are and can have some knowledge that the people who they have appointed—and indeed their lawyers and anthropologists—are doing the right thing by them. As I said, all of this is extremely expensive but fundamentally crucial in creating the integrity and authority necessary to move the claim forward. The ongoing costs of funding solicitors, anthropologists, researchers and the general financial commitment to a claim is a very crucial consideration and one that has to be dealt with by the representative body as a priority. You cannot start a claim in the Federal Court and run out of money halfway.

Debate interrupted.