Dean Smith (WA, Liberal Party) Share this | Hansard source

It is a pleasure to make a contribution to this important piece of legislation, the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, this evening. It is a piece of legislation that has significance for every Australian. By way of history, in 1992 the High Court of Australia handed down a historical decision in the Mabo v Queensland case, recognising that the common law of Australia recognise rights and interests to land held by Indigenous people under their traditional laws and customs. The Mabo and Wik decisions and the subsequent Native Title Act 1993 were salient points in the history of this nation and the changing relationship between Indigenous and non-Indigenous Australians.

For over 24 years the act has served Aboriginal and Torres Strait Islander communities well, until 2 February this year, when the Federal Court handed down the McGlade v Native Title Registrar decision, which has invalidated land use agreements across the country. It has also seen the $1.3 billion Western Australian South West land use agreement with the Noongar people, which included a benefits package with annual payments of $50 million into a Noongar future fund over 12 years and 320,000 hectares of land handed over to Noongar ownership, shelved. This decision of the Federal Court has created uncertainty throughout the native title sector, especially over the status of Indigenous Land Use Agreements, or ILUAs. It means that ILUAs without the signatures of all registered native title claimant members, including members who are deceased, cannot be registered. Simply, this means that if a single member of the registered native title group withholds their consent or dies before authorising it, the agreement cannot be registered. This also means that the only alternative to the native title claim group is to re-authorise a new applicant and make a new application under section 66B of the act, removing the member or members of the registered group who refused to sign.

This is an unnecessary and unacceptable barrier on the native title system. It is a barrier for native title stakeholders, imposing high costs for claim groups, which often have limited resources, as well as delays for claimants and third parties. It raises considerable uncertainty for all parties doing business on native title land, especially in my home state of Western Australia. Pastoralists, mining companies, oil and gas companies, tourism operators, fishing and pearling businesses, and local government authorities are all left with a high degree of uncertainty over their existing and future native title land use agreements. This is primarily because native title has a greater impact on Western Australia than on any other Australian jurisdiction. Western Australia is exposed to the responsibilities of native title more than any other territory or state in the Commonwealth. Approximately 85 per cent of the state of Western Australia is subject to either a native title claim or has already received a Federal Court of Australia native title determination that recognises the existence of native title rights and interests.

The sheer size of these determinations accounts for over 50 per cent of the total national land area. There are 79 currently filed native title claims in Western Australia, on top of 60 native title determinations. This compares with just 277 outstanding claims and 316 determinations nationally. Western Australia also grants the highest number of land and mineral licences and titles in Australia, the majority of which must comply with the future acts regime of the Native Title Act.

For those unaware, a future act is an act done after 1 January 1994 which affects native title. A future act can be any proposed activity or development on land or waters that has the potential to affect native title by extinguishing it or by creating interests that are inconsistent with the existence or exercise of native title. Other than the issue of the goods and services tax, the most significant state federal financial issue facing Western Australia is native title determinations, especially future acts. This is a $1 billion plus issue for the future of Western Australia.

This is because, in my home state of Western Australia, the most common future acts are the proposed grants of mining or land titles by the Department of Mines and Petroleum and the Department of Lands. It is because in Western Australia all native title claims are determined in the Federal Court, with the WA state government as first respondent. The preferred outcome for all native title claims is that they be resolved through mediation rather than litigation, utilising ILUAs, voluntary agreements primarily about access, which are registered and held by the National Native Title Tribunal and bind all persons who hold native title to the agreement, whether they are parties or not.

The importance of ILUAs in the native title system cannot be understated. An ILUA may address issues of access, compensation, extinguishment and coexistence. An ILUA may be made separately from the formal native title process, form a part of that process or pave the way for a native title determination. An ILUA does not extinguish native title but may, by agreement, allow for the surrender of native title. Most importantly, an ILUA can address past and intermediate acts as well as future acts. It may also replace the future act process entirely.

The Federal Court's decision of 2 February this year has far-reaching implications for the approximately 150 existing Indigenous land use agreements that have been made under the Native Title Act, most of them made in the past seven years. In addition to the implications for agreements made with the Noongar people in WA's southwest, it also has far-reaching implications for future land agreements that are currently under negotiation, not just in Western Australia but across every state and territory. Correcting this level of uncertainty has motivated the government to respond quickly and offer a remedy to ensure that all of these agreements have the status that is expected by those registered native title groups and communities that have entered into them.

This is a legislative response that will secure existing agreements which have been registered on or before 2 February this year but do not comply with the Federal Court's decision on McGlade. They will clarify who must be a party to an area ILUA in the future, unless the claim group determines otherwise. These are important changes. Most importantly, they do not alter the intent of the Native Title Act. They give certainty in the Commonwealth legislation to the agreements that have already been struck. They give certainty not only to Aboriginal and Torres Strait Islander people but also to all parties who have entered into the agreements, so that they can plan the way forward as agreed and honour those commitments.

The source of native title rights and interests is the traditional laws and customs of the native title holders. This means that the nature of native title rights and interests varies from community to community. This is also why native title can coexist with other forms of land title such as pastoral leases but is extinguished by others such as freehold. However, there are fundamental differences between land rights and native title. Land rights are rights created by the Australian state or territory governments. Land rights usually comprise a grant or a freehold or perpetual lease title given to Indigenous Australians. By contrast, native title arises as a result of the recognition, under Australian common law, of pre-existing Indigenous rights and interests according to traditional laws and customs.

It is extraordinary that, even for a moment, the Labor Party and the Greens would have objected to passing this bill. It is extraordinary but perhaps not unexpected, and I will tell you why. For all their talk about working to make the native title system better, fairer and more transparent, the Labor Party continue to fall short. It was a Labor Attorney-General who removed funding for native title respondents, a move that significantly impacted on native title determinations at the time, not just in WA but also in Queensland and in New South Wales. It was a Labor Prime Minister who, in 2001, advised the WA state government that it would no longer honour the 1994 agreement made by then Labor Prime Minister Paul Keating, the architect of the original Native Title Act, and that the Commonwealth would bear the lion's share of the burden for compensating for native title by funding up to 75 per cent of the compensation costs arising from the validation of past acts on determined native title lands. It is the Labor Party who today, again, is playing games with the passage of a bill that will protect the validity of ILUAs and the integrity of the native title process.

This bill is yet another example of how the government is addressing, not ignoring, the deficiencies of our native title regime. As a senator for Western Australia, I support the bill and look forward to playing my part in working with colleagues to ensure that our native title framework operates in a manner that is fair and provides certainty to all parties across all states and territories.