Patrick Dodson (WA, Australian Labor Party, Shadow Assistant Minister for Reconciliation) Share this | Hansard source

When the Native Title Act was passed in 1993 Paul Keating described it as an opportunity 'to do justice to the historic Mabo decision'. According to Keating, the act had twin goals: firstly, to protect the native title held by First Nations across the country and, secondly, to ensure workability and certainty for land management. Yet even in 1993 it was widely recognised that more was needed to redress the over 200 years of dispossession endured by First Nations. As Keating said at the time, the Native Title Act represented a mere modicum of justice for First Nations. It was meant to be accompanied by a land fund and social justice package, and that never eventuated.

Far from building on the promise of Mabo, subsequent years have seen the progressive erosion of native title rights and interests under the act. The destruction of the Juukan rock shelters by Rio Tinto earlier this year demonstrates the extent of this erosion. It reflects what we have heard in multiple reports and in the inquiry into the bill—that the original undertaking of the Native Title Act has been brought into disrepute.

This bill makes a number of reforms to the Native Title Act. Labor supports the bill, because we have no desire to delay the progress of those parts of the bill designed to improve the operation of the act. This includes changes to allow historic extinguishment over areas of national parks and state parks to be disregarded in certain circumstances. It also includes a number of changes that make modest improvements to procedural and technical elements of the act. These changes were widely supported by First Nations stakeholders. But I want to make it very clear that Labor remains concerned about several other provisions in this bill. Moreover, we recognise that the bill falls well short of the comprehensive reforms necessary to restore honour to the native title system in the wake of Juukan.

Along with my colleague Senator Carr, I had the privilege of participating in the committee's inquiry into this bill. As outlined in our minority report, the inquiry highlighted several specific concerns about the bill. One of these specific concerns involves the amendments to section 24EB and 24EBA, which deal with the deregistration of Indigenous land use agreements. Concerns were raised through the inquiry process that these changes purport to validate future acts done pursuant to the ILUA, even where the ILUA has been deregistered as a consequence of fraud, duress or undue influence. The government has said that these amendments implement a recommendation from the 2016 COAG investigation into Indigenous land administration and use. Importantly, however, this recommendation was opposed by the Expert Indigenous Working Group appointed to inform the investigation. Many submitters to the inquiry also expressed concerns about the consequences of validating future acts that done under later deregistered ILUAs. The Native Title Council raised concerns about these changes, saying that the changes would mean that any future act authorised by the ILUA that had been done through fraud, undue influence or duress remains valid and will still affect native title. Similar concerns were raised by the Law Council of Australia, which continues to oppose these amendments. While it does not fully address our concerns, we welcome the additional clarification that the government will add to the explanatory memorandum, at our request, which confirms that 'these measures do not affect the court's power under section 199C of the act and remove the detail of any agreement from the register and order appropriate compensation where an ILUA is affected by fraud, undue influence or duress'.

A second concern for Labor is that this bill creates a new ground enabling ORIC to place a registered native title body corporate into administration for failure to comply with its obligations under the native title legislation. While Labor supports better transparency and accountability, this new ground appears to apply not only where there is serious failure but also where there are a number of failures. A constant theme of the inquiry was the significant underfunding of registered native title body corporates and resulting struggles to discharge often overwhelming legislative and regulatory obligations. The Aboriginal and Torres Strait Islander Social Justice Commissioner told the inquiry that the limited financial resources and governance capacities of registered native title body corporates hinders their capacity to effectively discharge their statutory obligations and, most importantly, to fulfil the cultural, social and economic aspirations of native title holders. Without further funding for rep bodies, Labor shares the concern raised in the inquiry process that the increase in ORIC's power risks curtailing the rights of self-determination of the native title holders. Again, we welcome the government's clarification in the explanatory memorandum: 'It is not intended that this ground would be utilised in circumstances of multiple inadvertent and trivial breaches. It is intended that this ground would be utilised where the nature or cumulative consequences of a series of failures is more than trivial.' However, we remain cautious about the potential impact of this amendment and call on the government to substantially increase the technical and financial resources available to rep bodies to enable their compliance with their obligations and to ensure their capacity for self-governance.

It is clear that these amendments require careful oversight and monitoring. In our minority report to the committee inquiry, we recommended that the government include a formal evaluation mechanism to review the proposed changes in relation to their effects on the rights to culture and self-determination of First Nations peoples. This was also a recommendation of the Parliamentary Joint Committee on Human Rights report on the bill. We thank the government for accepting these recommendations and agreeing to an amendment to this bill requiring an evaluation and report on its operations within five years of commencement. Our firm view is that the amendments I have outlined should be reviewed as a priority, as part of an independent evaluation of this bill in five years time.

The more fundamental problem with this bill, however, is its failure to engage with the deepening fractures in the native title system. The last substantive legislative amendment to the Native Title Act occurred in 2007. In the years since, there have been significant developments in the native title sector, which the government has only selectively responded to. A number of significant inquiries into native title have made recommendations for reform that are yet to be acted upon.

In 2013 my colleague from the other place the member for Isaacs, when he was the Attorney-General, directed the Australian Law Reform Commission to inquire into a number of aspects of the Native Title Act. The terms of the inquiry focused on the law governing connection and native title claims. This is an area of the law that has proved notoriously complex and ill adapted to its task, failing to acknowledge the living and adaptive nature of First Nations cultures. The Law Reform Commission carried out that inquiry and provided a comprehensive report to the coalition government in May 2015, with 30 recommendations for reform. This bill addresses only a selection of technical refinements suggested by the review. It fails to address any of the recommendations in relation to the central focus of the review, the test of connection—recommendations that would do the most to protect advancements of the rights of First Nations peoples.

More than five years after the report was tabled, the government has still not formally responded to the Law Reform Commission's substantive recommendations for reform. Unfortunately, as our minority report indicated, this reflects a clear pattern from the government of being unresponsive to native title holders while being expedient to accommodate the interests of third parties. This is not protecting native title. Many submitters to the inquiry process noted the need for a comprehensive overhaul of the Native Title Act. The calls for reform have only grown since the devastation of the Juukan caves exposed the hollowness of protections afforded through the Native Title Act. It has shocked many to discover that Rio Tinto's destruction of the 46,000-year-old rock-shelters was entirely legal. The multiple legal frameworks ostensibly designed to uphold First Nations' rights failed to protect, and maybe even facilitated, the destruction of those precious pieces of human history. In this context, a thorough, detailed investigation, perhaps even a royal commission, is needed to investigate the operations of the Native Title Act and to recommend reform that will restore honour and integrity to the native title system.

For over 20 years the Aboriginal and Torres Strait Islander Social Justice Commissioner produced an annual report on the state of the native title system. This was ended because the government amended the act in 2017. I welcome the government's commitment to instruct the social justice commissioner to undertake a review of the Native Title Act once the commissioner's finished all the current work on her plate. This is an important step along the path to reform. I call on the government to provide the commissioner with the time and resources she needs to make this a meaningful review.

In conclusion, native title is an area of the law that goes to the very heart of the relationship between the Commonwealth and First Nations. Importantly, native title is not an act of largess of the Crown. It uniquely originates with and belongs to native title people. It predates the Australian common law. Since Mabo has been recognised by it, that recognition has been converted to statutory form by the Native Title Act. But we must take steps to ensure that this law, which is intended to recognise and protect native title, does not dishonour and destroy it. Those of us on this side of the chamber have a deep commitment to the native title system and to making the necessary changes to ensure its integrity. I call on those opposite to join us in that commitment. The passage of this bill certainly doesn't represent that the job has been well done or that the job has been done. Comprehensive reforms are still required. They must be followed up with meaningful reform—in particular, reform that will restore the honour and truth to a system that is essential as a source of pride for this nation. Thank you.