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

The Australian Greens supported the findings of the majority report of the Senate Standing Committee on Legal and Constitutional Affairs on the Native Title Amendment Bill 2009 and will be supporting the bill because we think it offers some small improvements. However, we believe the legislation does not go far enough and the government has missed an opportunity; we believe there is an urgent need to make much more fundamental reforms to the Native Title Act.

We share the concern of stakeholders and witnesses such as the National Native Title Council and the Human Rights Commission that these relatively minor amendments represent a missed opportunity. There was a chance to address the current limitations of the Native Title Act and to deliver on the intent of the act—in other words, to deliver justice and tangible benefits to Australia’s first people, as stated in a preamble to the act. Native title should offer an opportunity for Aboriginal Australians and Torres Strait Islanders to participate in the management of their land, to maintain and enhance their cultural responsibilities and spiritual connection to it and to benefit from the sustainable use of its resources. The fact that the system of native title law has not enabled them to do so is, we believe, an indictment of the current legal framework for native title. Also we believe the framework has facilitated the misuse of its processes by state and territory governments, allowing them to frustrate the rights of the traditional owners of the land.

The changes proposed in the Native Title Amendment Bill 2009 were considered to be minor and relatively non-controversial by most of the witnesses to the Senate inquiry. I note that the National Native Title Tribunal raised some concerns over how the changes may impact on ongoing operations, some of which I believe were addressed in the hearings and others which we will have to keep monitoring. I remain to be convinced that the additional case load brought about by the handing of responsibility and oversight of mediation to the Federal Court can be addressed without increasing the resources of the court. I hope the government will undertake to monitor how these changes are implemented and the impacts they are having on both the time frames and outcomes of ongoing native title claims, and that they will commit to make additional resources available if needed or to bring in additional amendments if these minor reforms have unintended consequences or do not achieve their objectives.

I want to focus on the other issues that were raised in the Senate inquiry and which go to the matter of missed opportunity for native title reform. As Tony McEvoy of the National Native Title Council put it:

... the amendments that are proposed in this amendment bill are not controversial. They may make some small difference but they are not going to make any vast change in the way in which native title matters are dealt with. There is not going to be any rush of settlement of native title applications as a result of any of these amendments.

These comments in fact reflect the recent analysis by Chief Justice Robert French, who argues that the heavy burden on the principal parties to native title litigation is a result of these claims being proceedings conducted in the Federal Court. He says the resolution is to a degree constrained by the judicial framework, particularly its requirement that:

... applicants prove all elements necessary to make out the continuing existence of native title rights and interests within the meaning of the NTA and their recognition by the common law.

The Australian Human Rights Commission also argued that further reforms were necessary to realise the human rights of Aboriginal and Torres Strait Islander peoples and to enact international commitments. The Australian Greens consider that the amendments suggested by the Human Rights Commission have merit and recommends that the government consider their adoption. The Human Rights Commission also drew to the attention of the committee the latest statement by the United Nations Human Rights Committee, in which it said that it:

... notes with concern the high cost, complexity and strict rules of evidence applying to claims under the Native Title Act. It regrets the lack of sufficient steps taken by the State party to implement the Committee’s recommendations adopted in 2000.

The small number of submissions to this inquiry by Aboriginal organisations possibly reflects the minor nature of these changes but also the short time frame the inquiry allowed for submissions. It was very short when you consider the time frames that are needed to adequately consult within Aboriginal and Torres Strait Islanders communities. Given the current problems, costs and delays faced by parties to the native title process and the significant concerns with other aspects of the native title process that have been highlighted over the last decade, it is very disappointing that more significant reforms have not been brought forward by the government at this point.

The most significant and relatively simple amendment that could be made at this time to help is the burden of proof. The Attorney-General claims that the intent of this is to achieve more negotiated native title outcomes in a more timely, effective and efficient process. That is what he is claiming this bill is trying to do. It was the view of the majority of witnesses who addressed this issue that the problem was the burden of proof placed on native title claimants to prove connection and continuity. The majority of witnesses said that changing that was the biggest thing that would achieve what the government claims this bill is achieving, which is more negotiated native title outcomes in a timely fashion. The Australian Human Rights Commission argues that:

It cannot be disputed that Indigenous peoples lived in Australia prior to colonisation and that the Crown was responsible for the dispossession of Indigenous peoples throughout Australia.

It has also been acknowledged by governments over time through various policies, laws and statements of recognition, including the creation of land rights regimes and other mechanisms, that Indigenous peoples are the Traditional Owners of the land.

It is in this context that the Commission argues that it is unjust and inequitable to continue to place the demanding burden of proving all the elements required under the Native Title Act on the claimants.

The National Native Title Council argued that the burden of proof placed on native title claimants unfairly ties them up in longwinded and costly research and litigation, arguing that in the Federal Court:

The state is a party and is entitled in the way that the law is presently structured to demand that the party seeking the remedy prove its case; it is entitled to do that.

It can sit in mediation and require the applicant to prove each point to a level of satisfaction.

Whilst in a spirit of settlement that might seem to be unreasonable, it is a long way short of being in bad faith or of there being an absence of good faith.

On these grounds the Native Title Council argues that improving mediation processes and referrals or making changes to ‘good faith’ provisions will not result in a dramatic increase in the number of successful native title claims or the speed with which they are resolved. They argue:

Unfortunately, for many traditional owners, simply reaching the point of getting into substantive negotiations with any of the respondent parties is a hurdle that many have been unable to attain as yet.

In many cases, the state will not even talk to them about serious settlement because they have not presented a connection report.

The National Native Title Council further argued that:

The longest delay is in getting into discussions and concluding discussions with the respondent parties, and invariably the primary respondents are state governments or the Commonwealth.

That is where the real delays and problems are, and that is where this shifting of the onus of proof will have great effect.

Instead, the Native Title Council argues for a rebuttable presumption of continuity along the lines suggested by recently retired Chief Justice Robert French, who said:

... if the parliament is interested in bringing forward settlement of native title applications and reducing the cost associated with the hundreds of applications that are presently before the court then a simple measure—

one which is described by Chief Justice French in his paper as a modest proposal—

would be to introduce a presumption of continuity.

It would require a number of small provisions to be inserted into the legislation. It is my submission that having inserted those provisions the initial premise for the establishment of the presumption could be made out in the application itself and the section 62(1) affidavit which supports the application, and then the burden would automatically shift to the states.

The form of such a provision recommended by Chief Justice French is as follows:

(1)     This section applies to an application for a native title determination brought under section 61 of the Act where the following circumstances exist:

(a)      the native title claim group defined in the application applies for a determination of native title rights and interests where the rights and interests are found to be possessed under laws acknowledged and customs observed by the native title claim group;

(b)      members of the native title claim group reasonably believe the laws and customs so acknowledged to be traditional;

(c)      members of the native title claim group, by their laws and customs have a connection with the land or waters the subject of the application;

(d)      members of the native title claim group reasonably believe that persons from whom one or more of them was descended, acknowledged and observed traditional laws and customs at sovereignty by which those persons had a connection with the land or waters the subject of the application.

(2)      Where this section applies to an application it shall be presumed in the absence of proof to the contrary:

(a)      that the laws acknowledged and customs observed by the native title claim group are traditional laws and customs acknowledged and observed at sovereignty;

(b)      that the native title claim group has a connection with the land or waters by those traditional laws and customs;

(c)      if the native title rights and interests asserted are capable of recognition by the common law then the facts necessary for the recognition of those rights and interests by the common law are established.

As the Australian Human Rights Commission argues, such an approach is consistent with the stated intent of Native Title Act as expressed in the preamble and is in line with a number of current Australian laws which shift the burden of proof to the respondent, including the Sex Discrimination Act 1984 and the Workplace Relations Act 1996.

Furthermore, given that governments are both the party that granted interests in traditional lands to others and the holders of the vast majority of the relevant records, it would seem both fitting and appropriate that they bear the burden of proof. The main procedural benefit of including a presumption of continuity would be the manner in which it encouraged governments to progress native title claims without first insisting claimants present comprehensive connection reports. It would also provide much greater incentive for them to access their records and provide to the court at a much earlier point the information they hold that could clarify areas that are under dispute. A respondent party, including a state or territory government, could choose to challenge such a presumption and present evidence to make its case, but it could also choose not to challenge and disregard any substantial disruption in continuity of acknowledgement of traditional laws and customs should it desire.

The Australian Human Rights Commission stated:

The Commission does not consider that shifting the burden of proof to the primary respondent in native title cases would result in opening the ‘flood-gates’ for native title claims—

provided that existing procedural mechanisms within the Native Title Act that act as safeguards are retained, such as the current notification provisions and registration test.

The existing registration test, which requires claimants to specify the details and merits of their claim, should act to limit ambit and spurious claims. The commission cautions against toughening the existing registration test, arguing that this would simply shift the current problem to an earlier stage and place the assessment of evidence outside of the court. It recommends that, instead, the Commonwealth and the National Native Title Tribunal draft a clear and comprehensive guide to the registration test.

To this end, the Australian Greens strongly recommend that the Native Title Act should be amended to include a rebuttable presumption of continuity. We have in fact taken the suggestions from Justice French and translated those into an amendment that would provide for rebuttable presumption of continuity. I have circulated an amendment to the act, believing that this is what the government should have done if it were serious in its intent to make this act more usable and effective to actually deliver tangible outcomes to the traditional owners in Australia. To deliver tangible outcomes to Aboriginal people and Torres Strait Islanders, there is undeniably a need for change to the Native Title Act.

We encourage the government to support the amendment, which, according to expert witnesses, will have the best chance of ensuring that the Native Title Act finally delivers for Aboriginal and Torres Strait Islander people. It is time that we made those amendments so that we can deliver tangible outcomes and not fiddle around the edges. As I said earlier, we believe the amendments currently proposed by the government to the act will have a minor impact on speeding up the resolution of claims and delivering real outcomes. The real change that is needed is to stop state and territory governments and, in some instances, the Commonwealth government frustrating the claims of native title holders. We urge the government to seriously consider supporting the Greens amendment that reverses the onus of proof.