Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Hansard source

I firstly thank all senators for their contribution to this debate on the Native Title Amendment Bill 2009. I also want to record the government’s recognition of the work done by the Senate Standing Committee on Legal and Constitutional Affairs in relation to this bill and also to note its recommendation that the bill be passed. This bill will amend the Native Title Act to give the Federal Court key control of the management of native title claims. It also contains measures that will contribute to a broader and more flexible negotiated settlement of native title matters. As the Attorney-General said when he introduced the bill into the other place, ‘... native title can provide an important avenue for economic development for Indigenous people ... [and it can do] more than just deliver symbolic recognition.’

Following the Rudd government’s historic apology to Indigenous Australians, there is a renewed sense of optimism about the relationships between Indigenous and non-Indigenous Australians. Old attitudes are breaking down and there is a sense of renewed hope for what native title can deliver. However it is also clear that this system is in need of reform, and the changes contained in the bill before the chamber will enable faster and better outcomes for participants.

For example, the provision that will allow the Federal Court to accept a statement of facts which has been agreed between certain parties will cut down time spent on issues that are clearly not in dispute and allow parties to focus on negotiating issues central to resolving the claim. Hopefully this means that claims will be settled faster. An amendment that confirms the court can make orders about matters other than native title, again, where parties have agreed, will mean that the court can assist parties to resolve native title and related matters at the same time, again, meaning better outcomes for all stakeholders.

One of the key changes contained in the bill will give the Federal Court the central role for managing all native title claims, including who decides who mediates a claim. It is the government’s view that the Federal Court is in the best position to have overall responsibility for how cases are managed and best resolved. These reforms will draw on the court’s significant alternative dispute resolution experience to achieve more negotiated outcomes. Having the court, with the authority that it brings, actively controlling the direction of each case will mean opportunities for resolution can be more readily identified. The government does not accept criticisms made by the National Native Title Tribunal in evidence to the Legal and Constitutional Affairs Committee. We are confident in the court’s ability to provide a national coordinated approach to the resolution of native title claims and confident that the amendments will result in a more effective and less costly system.

The bill also includes a number of amendments that streamline the processes involved in the recognition and re-recognition of native title representative bodies. There has been widespread stakeholder consultation about the amendments in the bill and it is clear from the consultations that there is a great deal of support for the measures contained.

I want to first reference briefly Senator Siewert’s comments on the need to reverse the burden of proof in native title amendment matters. I do not propose to address that now, as Senator Siewert has proposed an amendment to the bill; obviously, I will comment on that proposal in committee. I make the general point that the last 15 years has shown that, in relation to native title, it is extremely important that there be genuine community support for measures that are, after all, intended to promote the welfare of Indigenous owners and their descendents. Without proper consultation there is always the danger of divisive debate.

I want to reference some of the matters raised in the contributions made by senators. I indicate first that the government welcomes the opposition’s support in passing this legislation. Senator Trood made reference to statements by a Mr Tony McAvoy to the Senate committee. I indicate that Mr McAvoy is expressing his personal opinion, not the opinion of the National Native Title Council. Submissions on the bill from the council are generally supportive of the majority of the proposed amendments. The chair of the council has been reported as welcoming the changes:

In the area of mediation, there is a consensus across the industry that the Federal Court should have more power in being able to get parties to come together to discuss common interests.

Notably, Mr McAvoy also argued that what would make a noticeable change to the speed of resolutions is a rebuttable presumption of continuity. The Greens are, as I have previously noted, proposing that amendment, but this is something that Senator Brandis has expressly opposed.

I also want to make some comments on the suggestion in some of the contributions that there has been insufficient time since the last amendments to assess whether more changes are necessary. The 2007 amendments created a mandatory referral to the tribunal. Those amendments resulted from the 2005 claims resolution review of the relationship between the court and the tribunal. The consultations for the review indicated that a wide range of stakeholders had high levels of frustration with mediation being conducted by the tribunal. The 2007 amendments which followed the review reflect options supported by one consultant. In opposition, Labor opposed those changes, in part because they did not address the extensive stakeholder concerns with the performance of the tribunal, and they were also strongly opposed by a large number of native title representative bodies.

The ability of the tribunal to more effectively mediate was questioned by other stakeholders in submissions to the Senate committee in 2007. The committee’s minority report, by the Australian Labor Party and the Australian Greens, opposed the previous government giving the tribunal the primary role in native title mediation because stakeholders did not have confidence in the tribunal’s capacity or expertise to conduct effective mediation.

Senator Trood asked why the Federal Court had not exercised powers under the act before now. Of course, the 2007 amendments created a mandatory referral to the tribunal with only minor exceptions; therefore, until now the court has been unable to control the mediation of the proceedings, as the bill proposes. The proposed changes mean that rather than automatically referring every case to the tribunal for mediation, the court will decide which individual or body should mediate each matter.

There have also been claims made about the tribunal not being consulted. I can indicate that I am advised that extensive consultations, including with the tribunal, have taken place over the last few years on native title claims resolution. In proposing the changes, the government took into account the claims resolution review and the inquiries held by the Senate committee into the 2007 native title amendment bills. The Attorney-General did advise the president of the tribunal of the proposed institutional changes prior to the announcement. Senior departmental officers and the Attorney-General have met with both the tribunal and the court to discuss the proposed reforms and how they would be implemented in practice. The tribunal has indicated its intention to work cooperatively with the court and the department to implement the institutional reform.

There has also been a request from Senator Xenophon and Senator Siewert about whether or not the government was intent on providing more resources. Obviously, the government will monitor the resource implications of the amendment. However, the court has advised that presently no further resources are required. At this stage, though, the funding implications cannot be estimated until changes have been implemented. The government will obviously ensure that the court and tribunal are appropriately resourced to carry out their functions.

Senator Xenophon asked what mechanisms are in place to monitor the impact of changes. The federal government convenes the Native Title Consultative Forum three times a year. This forum brings together all stakeholders in the native title system and through this forum the government receives feedback on the operation of the system. We anticipate that we will continue to receive that feedback. In addition, native title ministers also meet every year to discuss the native title system. Undoubtedly, the federal government will receive feedback from state and territory governments on the impact of these changes. Obviously, the Attorney-General’s Department will continue to monitor the impact of the changes in consultation with the court and tribunal.

Senator Xenophon also asked how the changes will help clear the backlog of claims. Obviously, these amendments are in part designed to seek faster settlements. These will be encouraged by giving the court control over native title claims to allow for better identification of opportunities for resolution; by allowing the court to include matters beyond native title in consent determinations, which will give the court more flexibility to resolve claims; by allowing the court to refer claims to the most appropriate mediator; by enabling the court to rely on a statement of facts agreed between the parties rather than having to be independently satisfied of the facts; by improving native title representative body provisions to allow them to focus on their client’s claim; and by allowing the court to use recent changes to evidence laws that concern evidence given by Aboriginal and Torres Strait Islander people and to enable those changes to have a wider application to native title claims.

However, the degree of success that these changes have in delivering faster settlements will depend upon behavioural changes by all parties. As a result, obviously no-one can forecast how many more claims can be resolved and by when, but our hope is that the bill before the chamber will enable more resolutions in a more timely fashion. Much, obviously, does depend on the attitude of the parties.

In conclusion, the government’s view is that the amendments in this bill, along with the behavioural change amongst parties to which I have referred, will bring about important and necessary changes in the native title system. Whilst the law of native title may seem somewhat complex, and often is, its objective is straightforward: to recognise Indigenous people’s ongoing relationship with their land. The passage of this bill will mean that the recognition of that relationship can be achieved faster and with better outcomes and certainty for all stakeholders. I commend the bill to the chamber.

Question agreed to.

Bill read a second time.