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

I rise to speak to the amendments to the Native Title Act. It is telling that, in addressing what they consider to be the ‘problems’ and failures of the Native Title Act, the submission from the Attorney-General and FaCSIA and the minister’s second reading speech in fact focused on the complexities, the costs and the delays in the system of assessment, recognition, mediation and agreement making but they did not concentrate on the original intention of the introduction of native title and the outcomes it is meant to deliver for native title holders.

This is particularly strange when you consider that the Native Title Claims Resolution Review 2006 report found that, of the total 1,683 claims filed, 1,062 had been resolved one way or another by January 2006, despite native title being a relatively new area of law, only 15 years old. I would say this was a fairly respectable outcome.

However, on the other side of the ledger, you only have to look at the manner in which the standard of living and life opportunities of native title holders and Indigenous communities have been going backwards over this period. The statistics I have recounted many times in this place about health, education, employment, economic development and housing outcomes for Indigenous Australians have not been going forwards; they have been going backwards. There is still a very significant life expectancy gap between non-Aboriginal Australians and Aboriginal Australians. We need to recognise that native title is not delivering on its promises for Indigenous Australians.

The Native Title Act was meant to go some way to undoing the injustices and addressing the disadvantage caused by the dispossession of Australia’s original owners. The preamble to the act recognises that one of the consequences of dispossession has been that Aboriginal and Torres Strait Islander peoples as a group have become the most disadvantaged and marginalised group within our nation. The hope was that through limited recognition and protection of what remained of traditional property rights the act might provide some means for the economic and social advancement of Indigenous communities. It has clearly failed to deliver on this promise and the proposed changes to the act put forward by the government do not address these failings. If anything, they are another push in the wrong direction.

To my mind, two things have gone wrong with the development and implementation of the concept of native title. Firstly, the whole concept of native title rights has been a compromise all the way along, and its evolution through a series of High Court decisions, such as the Miriwung Gajerrong, Yorta Yorta and, more recently, the Perth Nyungar claim, have seen both a continual erosion of these rights and an increase in the number of barriers to Indigenous people actually being able to exercise these rights to improve their social and economic position.

Secondly, the institutions created to represent traditional owners and help them obtain recognition have been inadequately resourced and empowered, and they struggle to either defend these rights or negotiate constructive outcomes and resources of state and territory governments and of industry. At the same time the institution created to oversee the process and be the impartial mediator, the National Native Title Tribunal, has become increasingly bureaucratic and particularly ineffective, especially in its mediation role. Research released in late February by Griffith University Business School shows very clearly that the National Native Title Tribunal seriously disadvantages Indigenous groups in negotiating arbitrated agreements with mining companies.

Professor O’Faircheallaigh’s research clearly demonstrates how the inequity of the tribunal’s arbitration process creates a situation in which Indigenous groups are under enormous and unequal pressure to make agreements outside of arbitration that deliver few tangible benefits. That is because mining companies know that, if the matter is referred to NNTT arbitration, the tribunal is not permitted to consider awarding Indigenous groups money toward the value of minerals taken from their lands; it is unwilling to impose conditions that may prove onerous for the mining company; it requires more stringent standards of proof of Indigenous groups; and it has granted mining leases in all 17 cases referred for arbitration in the last decade—hardly a fair outcome for Aboriginal groups. Professor O’Faircheallaigh concludes:

In principle, the Act ... creates incentives for grantees to reach agreement because if they fail to do so and enter arbitration the Tribunal may decline to grant the interests they seek or impose onerous conditions on any grant it makes. However, in practice the Tribunal has applied the arbitration provisions of the NTA in a manner that renders them largely innocuous from the perspective of the grantees. The result is a fundamental inequality in bargaining positions. This undermines the purposes of the NTA and leads to agreements that favour the grantees.

If the government were serious about reforming the Native Title Act to ensure that it delivered better outcomes for Indigenous Australians—rather than quicker and cheaper outcomes for industry, and more politically comfortable outcomes for the states—it would be assessing the way the tribunal is currently administering the provisions of the NTA and amending them to create a level playing field between miners and native title groups. Rather than tipping things further the other way, it would allocate the arbitration function to an independent judicial body, not the NNTT, and it would allow arbitrated decisions to include compensation relating to the value of minerals taken from the land, which would create the possibility of some real outcomes for Indigenous landholders and provide a basis for some real economic development initiatives.

The proposed amendments to the Native Title Act undermine native title rep bodies; give greater coercive powers to the National Native Title Tribunal; give much greater executive powers to the minister and provide insufficient mechanisms to review ministerial and bureaucratic decisions; and would allow non-Aboriginal corporations to take on responsibility for representing and consulting with native title holders.

There are some positive elements to the recommendations, which I note are the amendments that arose from that part of the bill that had widespread community consultation—for example, limiting the rights of third parties to issues that are relevant to their interests, giving the court the power to remove a party that does not have a relevant interest and encouraging the court to adopt a practice note setting out the court’s preferred method for managing native title claims.

However, the negatives far outweigh any of the positives. Rep bodies are undermined by making their continued existence more uncertain through periodic recognition; by heaping a much greater administrative load onto their shoulders without addressing the already pressing issue of underfunding; by giving the minister greater executive discretion to deregister rep bodies, to change the areas they represent without consultation and to determine their financial resources; by changing the criteria for assessing their performance so that satisfactory representation and adequate consultation with native title holders are no longer considerations; by allowing a broader range of bodies to be recognised as rep bodies; and by allowing native title service providers to perform all the functions of an NTRB.

While accountability and good governance are always of concern where public moneys are being spent, they are not the major stumbling blocks in delivering an efficient and effective system for reaching native title agreements. The main issues are capacity and resources. The parliamentary joint committee on native title’s inquiry into native title rep bodies looked into the limitations on the functioning of NTRBs and made a number of key recommendations, only some of which have been implemented to date. The evidence given by stakeholders to the PJC and the evidence given to the Senate legal and constitutional committee’s inquiry into this bill all seem to point to inadequate resources as one of the major limitations. Recommendation 5 from the joint committee’s report states:

The committee recommends that the Commonwealth immediately review the adequacy of the level of funding provided by the OIPC to NTRBs for capacity building activities including management and staff development, and information technology.

The Minerals Council of Australia said in its evidence to the Senate committee:

It is essential that improved governance is matched with increased resources directed towards capacity building of NTRBs and NTSs. Without adequate resourcing of NTRBs and NTSs, both in terms of financial and human capital, we consider that these reforms—

the reforms that we are talking about now—

could destabilise the operations of the native title system, which would be to the detriment of business, Indigenous communities and the achievement of mutually beneficial native title outcomes.

They go on to say:

... NTRBs have been chronically underresourced in fulfilling their legislative functions in representing Indigenous interests, which has delayed the negotiation of mutually beneficial agreements with industry and the resolution of native title claims.

They say that the changes:

... have the potential to divert already limited resources towards bureaucratic processes, unnecessary onerous compliance obligations or the winding up and establishment of new services, and away from the primary functions of representing Indigenous interests and achieving native title outcomes.

That is from the Minerals Council of Australia.

In particular, I am concerned that periodic recognition could result in the suspension of and substantial delay to ongoing negotiations, which could cost other parties, such as governments and industry bodies, substantial amounts of money. It could also mean that it could become necessary for them to renegotiate already agreed matters, to begin building relationships with new NTRB staff and organisations, and to revisit complex and longwinded issues all over again.

The stability of NTRBs, just like their capacity for understanding native title law and negotiating mutually beneficial agreements, is in the interests of all parties to a native title claim. Having the minister able to choose to recognise NTRBs for only 12 or 18 months would be particularly destabilising for all concerned. That is why the Australian Greens will move an amendment, as recommended by the Minerals Council of Australia—it is highly unusual for us to be taking up one of their recommendations—to establish a minimum recognition period of three years. Similarly, giving the minister the discretion to arbitrarily alter the boundaries of an NTRB’s representative area could also have a seriously destabilising effect on ongoing negotiations and native title claims.

Increased powers of the NNTT are dealt with in schedule 2. The bill proposes that the NNTT have the power to: make reports to the Federal Court, ministers, funding bodies or legal professional bodies of a failure by a party to act in good faith in mediation; issue directions to parties to attend mediation conferences or produce documents; and conduct native title application inquiries and reviews of a claimant group’s connection to the land. The bill precludes the Federal Court conducting mediation on a native title application when NNTT mediation is underway. There is a large degree of concern about NNTT mediation in many states.

Practically all of the stakeholders who gave evidence to the committee, including the Office of the Registrar of Aboriginal Corporations, the Minerals Council of Australia, the National Native Title Council and native title lawyers as well as NTRBs, land councils and HREOC, rejected the idea that expanding the mediation powers of the NNTT would lead to the more efficient and effective resolution of native title claims. All of these stakeholders pointed to the poor success rate of the tribunal with mediation, citing both past statistics and experience, saying things like:

... all of our experience is that they—

the NNTT—

do not deliver the goods.

The Northern Land Council said that. Further, it was said:

… the NNTT has simply not shown in the past that it has the expertise to effectively mediate.

The National Native Title Council made that comment. The Minerals Council suggested:

Given the Government’s intention to provide the NNTT with greater powers in the mediation of native title claims, the MCA considers that there is a need to ensure that ... greater emphasis is given to building capacity to ensure competency in undertaking any expanded role.

A 2001 study by Griffith University found that the most fruitful agreements were negotiated outside of the NNTT.

There is a real risk when looking at the good faith reports that a judgement being made by the NNTT that a party has not acted in good faith in mediation is very likely to result in that party feeling obliged to defend their reputation and, in the case of NTRB and other bodies reliant on government resources, their funding in the courts. We are also extremely concerned about the coercive directions being given to the tribunal. The office of the registrar argued that:

... giving the NNTT the ability to issue coercive directions would be likely to lead to state and territory governments pursuing second-order litigation seeking to protect their own prerogatives, that administrative directions by the NNTT would have no credibility unless backed up by an effective enforcement mechanism—that is, by reference to action taken in some court—and that if the power to give directions in mediation is conferred on the NNTT, it becomes an administrative power which would be subject to judicial review ... as it is simply not possible under our constitution to set up a system where an administrator can give binding statutory directions which do not attract judicial enforcement and are exempt from judicial review.

In other words, there is a great deal of concern also around that particular amendment.

Another area of great concern is the provision of greater executive powers. The proposed amendments to schedule 1 give greater executive powers to the minister which would allow the minister to de-recognise a representative body or alter the area which it covers in an arbitrary and non-transparent manner without any accountability. There is also no requirement for notification, and no requirement that the minister re-register NTRBs. This lack of certainty could have a destabilising influence on ongoing native title negotiations, and the increased administrative load associated with re-registration applications could further delay native title processes. This is why we are moving amendments to require the minister to invite re-application in a timely manner where notice of an intention to withdraw recognition has not been given. There is no rationale given for these changes to ministerial executive powers to justify the need for greater executive discretion, and it seems contradictory that on the one hand there is a move to greatly increase the accountability of NTRBs while on the other hand the accountability of the minister is dramatically reduced.

We also have concerns around the recognition of non-Indigenous corporations. The bill proposes to allow a much wider range of corporate bodies to be recognised as rep bodies and to permit native title service providers to perform all the functions of an NTRB. This ‘mainstreaming’ approach, taken together with the provisions which ‘wipe out’ the criteria relating to representation of and consultation with native title owners, undermines the fundamental role of representation of the native title holders of the NTRB.

This bill is a retrogressive piece of legislation that does not seek to progress the issue of native title. It does not address the fundamental constraints to the success of native title law in delivering certainty to industry and governments—and certainly not to native title holders. It is further hindering opportunities for economic development and increased self-reliance in Aboriginal communities; in fact, it makes that much harder. It is an opportunity wasted and yet another example of what I believe is this government’s blinkered ideological approach to Indigenous development in this country.

This piece of legislation could be very important for Aboriginal communities. It has not been operating effectively because it has been hobbled. It has not delivered the promised outcomes. These changes will not deliver a better process. They will not deliver for Aboriginal communities. I think the government’s intention is more to deliver for industry bodies and mining corporations, but I do not think it will even do that. By further destabilising rep bodies, the government is further destabilising the native title process, which will undermine any negotiations between mining companies and native title holders. If the government were genuine about improving this act, it would review the issues that have come out of the research to date which shows that the act has not been delivering for native title holders but that it has been delivering for mining companies, and it would seek to genuinely address those issues. The Greens will be opposing this piece of legislation when it is put to the chamber.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I rise this morning to provide a contribution regarding the changes to the Native Title Act in the Native Title Amendment Bill 2006 before us today. In September 2005 this government announced a package of six interrelated reforms to the native title system. The primary purpose of this bill is to amend the Native Title Act 1993 to implement aspects of four of those six elements of the reform package announced back then. These four elements are the measures to improve the effectiveness of the representative Aboriginal and Torres Strait Islander bodies, known in the industry as the native title rep bodies; an independent review of native title claims resolution processes to consider how the National Native Title Tribunal, the NNTT, and the Federal Court of Australia may work effectively in managing and resolving native title claims; measures to encourage the effective functioning of prescribed bodies corporate; and reforms to the native title nonclaimants or respondents financial assistance program to encourage agreement-making rather than litigation.

I want to place on record very early in the piece that it should be noted that the provisions in schedule 1 of this bill have in fact only been available for comment for two months—that is, two months over the Christmas period. They were released late last year. I am aware that, in the other chamber, representatives of this government have argued that this bill has been out there for quite a while and that they have consulted organisations and individuals on it. If we are talking about the reform package that was announced in 2005 then that may well be correct. But you need to ask the question: which aspects of this bill have actually been out there long enough for those affected to provide some genuinely informed feedback on its implications? The native title rep provisions have received quite substantial concerns and criticisms, as has the expansion of the powers of the National Native Title Tribunal.

Generally, we believe that the significant changes to the Native Title Act contained in this legislation by and large have not been out there long enough for people to have had genuine consultation and discussion about their implications. The changes are fundamentally flawed. The reasons for that were outlined in the minority report of the Senate Standing Committee on Legal and Constitutional Affairs on this bill.

The original native title legislation, when it was debated in this parliament, was historic—there is no doubt about that. It has become an accepted part of business now for the pastoral and mining companies. As indicated, it was accepted that over time, as with most other policies and acts, changes would be needed. It is just a logical extension. When you get an act into place and you start to work with it, you realise that changes need to be made from time to time. But we do not believe that the bill before us today is the answer to the changes that are needed in the native title process. Many aspects of it are not supported by the Australian Labor Party.

Recent research released by Griffith University has shown that native title has not always proved to be effective and that many Indigenous land use agreements or ILUAs, as they are known, have failed the people they were supposed to help—that is, the Indigenous people in areas of most concern. The Griffith research showed that, over the past 10 years, half of the ILUAs entered into were failures and delivered few if any benefits to Indigenous people. Many, indeed, were described as basket cases. The research also reported what any of us who have been closely involved with Indigenous organisations over the years know—that Indigenous people do find our ways of governance in general difficult to understand, follow and comply with, and extremely complex. I might add that it is probably not only Indigenous people who feel that way sometimes.

This bill now before us really does not answer these concerns either. Indigenous organisations do lack the skills and resources to take on negotiations on anything like a level playing field when dealing with large mining companies—or other companies, for that matter. This government has continually, over the period of its time in office, weakened the position of Indigenous people. The bill before us today is just another example of this. This is a government that thrives most zealously on what it calls accountability for all and any Indigenous organisations or communities.

The government imposes layers of red tape on Indigenous organisations. That has been highlighted most significantly, for instance, in the recent reports of the COAG trials. Mainstreaming has imposed more layers of bureaucracy, with the result that most of the COAG trials have been a disaster, have achieved very little improvement and, in fact, have spent 10 per cent more money in administration than was ever imagined under the operation of ATSIC. It ignores the relationship of trust which must be generated over time with stakeholders when dealing with sensitive cultural issues such as land. This bill ignores cultural factors associated with the way Indigenous people prefer to discuss and negotiate improvements and outcomes for themselves.

We would fully support any legislation that would genuinely improve the performance of native title rep bodies, but we do not believe that this bill will do that. The bill imposes more regulation on and uncertainty for native title claimants and their representative bodies. It further undermines the capacity of native title rep bodies to fully represent Indigenous interests. Limited periods of recognition of native title rep bodies will create uncertainty, inhibit strategic business planning and discourage staff tenure, and the accumulation of corporate knowledge will be lost over time. Broadening the range of native title service providers could lead to the government giving away native title service provision in open tenders—as we are seeing, for example, in the way in which CDEP is being operated—and bringing on non-Indigenous firms that may well in fact be the future representatives of Indigenous people in negotiating outcomes for native title.

The changes proposed in schedule 2 would expand the role and power of the National Native Title Tribunal, which is already seen by many stakeholders as bureaucratic and slow. Mr Philip Vincent, for example, from the National Native Title Council, said in his presentation to the Senate Standing Committee on Legal and Constitutional Affairs hearings into this bill on 30 January this year that, when this bill was first put through some years ago:

The starting point was some 1,683 claims filed, and 1062 have been resolved in one way or another as at January ...

He takes those figures from the Hiley and Levy report. Those two gentlemen were charged with the responsibility of inquiring into what changes might be needed in the native title area. So, in effect, 621 claims are outstanding and we know that, as of June last year, it is down to 604. But, by and large, what we heard from people during this inquiry is that the NNTT is remarkably slow at progressing these claims, and there is a substantial lack of confidence in the way in which this bill will transfer the negotiating responsibilities from the Federal Court to the NNTT.

Submissions to the legal and constitutional affairs committee showed that the native title rep bodies opposed this legislation. The Aboriginal and Torres Strait Islander Social Justice Commissioner, who writes the annual native title report that is tabled in this parliament each year, also opposes this legislation. You have to give credit to the government! It writes legislation and proceeds to put it through this parliament, when its own social justice commissioner is saying that there are problems here and that this legislation should not proceed—the same social justice commissioner who will provide a report to this parliament on native title issues this year. From that, I would think that there are serious flaws in this legislation—flaws which this government is not willing to accept or realise.

Our dissenting report on the Senate committee inquiry into the bill expresses concern that introducing periodic terms for native title rep bodies will undermine their true independence. It may also interfere with native title applications, which have, not infrequently, taken over six years. So, under this legislation, native title rep bodies can only be registered for six years, and we know that there are many claims that will take longer than that. The Minerals Council of Australia even saw that the minimum period of recognition should be three years instead of the one year proposed in this bill. So we do not even have the Minerals Council on board 100 per cent in relation to this legislation.

A number of committee inquiry witnesses thought that periodic recognition would require native title rep bodies to devote too much time and resources to the time-consuming recognition process, thereby diverting resources from their core function. And that is true. We had evidence before us that if native title rep bodies got, let us say, two-year recognition, it would be at least three or four months before their money kicked in and they could operate; they would spend about another year or 15 months operating as a native title rep body, and then a considerable amount of their time would be spent writing grants or re-registering and undertaking the process to simply continue and survive. So the time frame is too restrictive and there is too much unnecessary bureaucracy in the way that the native title rep bodies will have to operate.

Our dissenting report says the requirement for periodic recognition is unnecessary, given that the minister already has the power to withdraw recognition from a poorly performing native title rep body. And that is true: recognition has already been withdrawn from one native title rep body. But we are talking about 13 or 14 rep bodies, if my memory serves me correctly, around this country, and a couple of service providers. This legislation seems to place an unnecessary burden on all of those native title rep bodies, despite the fact that, in the past, we have seen all but one operating efficiently. So the mentality of this government is: ‘Let’s constrain all of them out there in the field at this time—even though there has been only one that has performed poorly, and we have recognised that and it has been dealt with.’ So obviously the system is currently working. Why you would then seek to impose legislation such as this on all the others is something which I do not believe the department or this government were able to convince the Senate committee of during its inquiry. I certainly am not convinced that this legislation should be put in place when I see evidence that the current legislation is working adequately.

The majority committee report recognises the weakness in periodic recognition, but it is itself weak in recommending a minimum period of only two years. The bill makes it easier for the minister to withdraw recognition from native title rep bodies in that it decreases the amount of notice needed from 90 to only 60 days and it removes some of the conditions under which this can be done. Given the potential amount of consulting that a native title rep body may need to undertake with remote stakeholders in the event of such a ministerial decision, 60 days is not seen as sufficient time for that native title rep body to make a case for continuing recognition. Again, the end result may be to undermine the core function of the native title rep body.

The broadening of the range of bodies which can apply and become recognised as native title rep bodies is a serious concern. It leaves wide open the door for this government to do the same with native title service provision as it is doing with, for example, CDEPs, as I mentioned, in many communities. Such mainstreaming of this sensitive native title service would break down any trust between provider and stakeholder client, as well as reduce the true representative relationship between the two parties.

The concerns continue. The government’s response to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Account’s Report on the operation of native title representative bodies of March 2006 was presented to the House of Representatives on 15 February this year. One of the recommendations of the committee—and I was a member of that committee—was to review the adequacy of the native title rep body funding. The committee at that time clearly believed that native title rep body funding should be increased in order for there to be native title rep body capacity-building activities like professional development. However, the government’s response was that there is no requirement for a funding review as there is significant capacity within current funding levels.

I might add that many witnesses commented to the committee that there was a need for improved funding—for example, the Native Title Council observed that there has never been realistic funding to NTRBs to enable them to carry out their functions under the act. So the dissenting report recommends that schedules 1 and 2 of this bill not be passed, as they undermine the capacity and independence of the native title rep bodies and potentially make the native title system slower and more bureaucratic.

Schedule 2 of the bill is the most significant element of this legislation. My main concern about it is the shift in emphasis from the Federal Court to the National Native Title Tribunal. I believe the Federal Court has a proven track record in native title case management and it has implemented a range of initiatives and efficiencies, particularly in the Northern Territory. I again go to the evidence before the Senate legislation committee of Mr Philip Vincent of the National Native Title Council. He had this to say about the bill:

… as the Minerals Council of Australia advised in their submission, it also will make it very difficult for third parties to deal with them on the basis of an expectation of certainty.

He went on to say that there are two strategies in this bill:

… strategy 1 is to punish representative bodies. Strike out is strategy 2.

He suggested that the second strategy is:

… investing powers in the National Native Title Tribunal at the expense of the Federal Court when many people suggest that the National Native Title Tribunal has not at present got the capacity to fulfil its expected functions.

We know that the Native Title Tribunal cannot determine cases under the new act. It can now make findings, but it is not a court. There is some confidence among native title rep bodies and Indigenous people that when things get difficult they can rely on the Federal Court, but this bill substantially invests the negotiating powers in the NNTT. Mr Ron Levy from the Northern Land Council appeared before the Senate committee and said:

… we have found the Federal Court’s case management, including the mediation service, vastly superior to what has been provided by the tribunal.

That the court should have its case management function transferred exclusively to the tribunal was not something that he was advocating or supporting. He went on to say:

The Federal Court has got an extraordinarily bad rap, particularly from Dr Ken Levy.

He acknowledged that Dr Levy is an accomplished person but said he:

… has got itfundamentally wrong. The Federal Court is not fighting a turf war; it is voting with its feet with the aim of settling as much as it possibly can.

So there is confidence in the way in which the Federal Court is handling cases and I do not believe there is any need for this fundamental shift.

In contrast, the tribunal’s mediation performance has been a lot less effective. One practitioner observed that the track record of the NNTT in mediating claims suggests that many of its members and staff are ill equipped to effectively carry out their mediation functions. I asked Mr Graham Neate about that during the inquiry. I asked about what sort of training in mediation members of the NNTT have. His reply was ‘one week’s training’. In his experience, the course goes for one week. ‘One week?’ I said. He thought that perhaps one week was not substantial enough and said they back it up with more training. Here I had a bit of hope. Here I thought, ‘Maybe they are going to go off for a couple of weeks.’ No, they actually give them another week.

So members of the NNTT have only two weeks training in mediation in a formal sense. Yes, I know they are lawyers and I know they are practitioners, but at the end of the day mediation skills, particularly in dealing with Indigenous people, are specific and exclusive. I believe that at times the NNTT is not well-equipped to handle the mediation process. As we saw in the submissions before the inquiry, there was much more confidence in the Federal Court.

The Northern Land Council raised with us the possibility that the proposed expansion of the power of the tribunal is an unconstitutional arrangement. Such legal uncertainty is not conducive to the goals of improving mediation and no doubt will result in further legislation. We believe that this bill should not be passed in its present form. There are many flaws in this bill, as highlighted in the Senate’s report and in our minority report, but either Labor’s proposal should be adopted or more time should be allowed for consultation on this bill. (Time expired)

Alan Eggleston (WA, Liberal Party) Share this | Link to this | Hansard source

I rise to record my support for the Native Title Amendment Bill 2006. This bill includes a series of significant and balanced reforms to the Native Title Act 1993, which has not been the subject of substantial amendment for more than eight years. As the Attorney-General noted in introducing the bill last year, the key catalyst for the present reforms is the government’s commitment to improving the performance of the native title system. It is important to acknowledge that these reforms were not developed in a vacuum but have instead been informed by an extensive consultation process involving key stakeholders across the native title system.

The Attorney-General originally announced the broad framework for reforms to the native title system in September 2005. This framework comprised a series of six complementary elements aimed at addressing all aspects of the system. At that time, the Attorney-General emphasised the need to achieve better outcomes for all parties involved in native title and undertook to ensure stakeholder concerns would be taken into account. Since then, the government has undertaken consultation on all elements of the reform package and the outcome of such consultation is reflected in the legislation currently before the Senate.

The four schedules in the current bill will respectively implement four of the six elements in the government’s reform package. Those aspects include measures to clarify the key institutional arrangements for the resolution of native title claims through the implementation of a series of key recommendations made by the native title Claims Resolution Review in relation to how the National Native Title Tribunal and the Federal Court may work more effectively on native title matters.

The bill also includes specific measures to improve the effectiveness of native title representative bodies, which generally represent claimants in the native title system, and to encourage the effective functioning of prescribed bodies corporate—the bodies established to manage native title once it has been recognised. Finally, the bill will broaden the existing provision for assistance to non-claimant parties so that government assistance can be provided in a wider range of circumstances to respondents participating in the ‘right to negotiate’ process.

Collectively, these measures reflect a balanced and considered approach to improving native title processes without disrupting the overall system and without undermining the existing balance of rights under the Native Title Act. It is critical that we recognise these reforms as part of a broader package which is intended to address all key elements of the system in a rational and coherent way. I understand that a second bill to implement outstanding measures will be introduced to the parliament later in this sitting period and that it will include minor and technical amendments which have also been the subject of detailed consultation.

The government has sought to work with the states and territories to secure agreement on improvements to the native title system. In December last year the Attorney-General convened a meeting of native title ministers from the states and territories. Ministers noted the proposed package of reforms and, significantly, agreed that all parties, including governments, should continue to build on this package. It is important that we in the Senate acknowledge that, while native title is inherently complex, it can assist and has assisted in securing meaningful outcomes for Indigenous Australians. To date, there have been over 90 determinations of native title, the majority of which have been reached with the consent of all parties concerned. Nearly nine per cent of Australia’s landmass has been the subject of native title determinations, an area comprising in total more than three times the area of Victoria.

I note that engagement between parties on native title processes can assist in building meaningful and productive relationships which may endure beyond the resolution of specific claims. The current bill offers a means to build on this with a view to achieving more efficient and effective outcomes, which is in the interests of all Australians.

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

In summing up this second reading debate on the Native Title Amendment Bill 2006, I would firstly like to thank all senators for their contributions on this important area and thank members of the Senate Standing Committee on Legal and Constitutional Affairs for the work they did in reviewing this bill. Listening to the opposition’s commentary on the bill, I noted that the majority of the opposition are unhappy with the direction in which these amendments are going. Yet there is a dearth of detailed resolution to the problem. It is all very well for senators opposite to say the system is not working, but the point needs to be made that it is their system. This system was inaugurated by the government of the day in 1992. To call it a dog’s breakfast would be to understate the situation.

The Howard government has grappled with these provisions for 10 years and, at every turn of every corner, the opposition has ‘stood on the hose’. What has been the result? Aboriginal people have barely advanced at all over that period. This is the opposition’s system. This is the dog’s breakfast of native title. The Attorney-General and I, and other members of the government, have been determined to make it better, and this bill is one step towards that end. What do we get in response? We get complaints and accusations that this is not the way to go. But, of course, as is the usual circumstance of those complaints, there is no constructive engagement; indeed, there is no policy. The hallmark of the opposition in this chamber has been the black hole of policy emanating from it. The government, as always, welcomes constructive engagement. To that end, the opposition has proposed some minor amendments that we will be accepting.

At the last federal election the opposition’s general policy on native title reform comprised the magnanimous and deeply thought out contribution of three sentences:

A federal Labor government will review the Native Title Act to ensure its workability.

That has not happened.

Labor will not amend the act without comprehensive consultation with Indigenous Australians, miners, pastoralists and other governments.

Obviously, that consultation has not taken place over the course of the last 2½ years.

Labor’s review of the Native Title Act will consider prescribed body corporates’ operational funding needs.

I am glad they are going to consider that. We are yet to see the result of such considerations. So the bottom line is that the opposition have not put forward any proposals for reform since the last substantial amendments to the act were passed in 1998. Indeed, the amendments before us today have one common underlying, recurring theme, and that is to reject the measures without any real proposals to amend and enhance the act to make it work better from the opposition’s perspective. Why? The answer is simply that the work that is required has not been done.

Opposition Senators:

Opposition senators interjecting—

David Johnston (WA, Liberal Party, Minister for Justice and Customs) Share this | Link to this | Hansard source

Senators on the other side say, ‘You’re the government; you should be doing it.’ At every point and at every turn, the opposition have had to be dragged kicking and screaming to address this act—but they will not. When they are given an opportunity to make a contribution, all we get is carping negativity. The government stands on its record against that of the opposition in this place when it comes to securing practical and considered measures for native title reform for all Australians.

The opposition claims that there is widespread opposition from stakeholders to schedules 1 and 2. Of course, with almost every piece of legislation inaugurated by the Howard government in this place, the opposition takes the perspective of shaking its head and saying, ‘No, no, no.’ Senator Ludwig claims that the Aboriginal and Torres Strait Islander Social Justice Commissioner ‘rejects most of these amendments’. The social justice commissioner noted in his submission to the Senate committee:

I welcome and support many of the reforms in Schedule 2 of the Bill ...

That is some distance, I respectfully say to Senator Ludwig, from his annotated commentary on what the social justice commissioner actually said. Likewise, Senator Ludwig points to concerns raised about the bill by the Western Australian Office of Native Title. While the WA Office of Native Title does note some concerns, it states in its submission:

Overall, the Office of Native Title considers the amendments proposed in the Bill have the potential to improve practical operation of the … system.

That is an objective assessment that I think is worth while. Of course, the opposition’s response is still to say, ‘No, they are opposed.’ The Minerals Council of Australia said in its submission:

The MCA supports … the proposed reforms to the NTA—

the Native Title Act—

relating to representative Aboriginal and Torres Strait Islander bodies, including … a simplified de-recognition process for poorly performing NTRBs …

The government’s reform package has been the subject of extensive consultation over the period since the reforms were announced in September 2005. Those consulted have been strongly in favour of the approach that the government is taking with these reforms to seek to improve the performance of the system to facilitate quicker and more effective processes for claim resolution and to not introduce substantial change to a system that is reasonably understood by the parties—notwithstanding that it is highly complex. The parties are increasingly demonstrating the capacity to be able to work within this framework. Ultimately, the government can improve the processes of native title and the speed with which the system is able to deliver outcomes. This will depend on the behaviour of the parties and the manner in which they approach their future dealings with the Federal Court and the Native Title Tribunal.

As I have said, I want to thank the Senate Standing Committee on Legal and Constitutional Affairs for its detailed consideration of this bill. The government has carefully considered the recommendations made by the Senate committee and accepts the large majority of them. Only two of the recommendations proposed changes to the bill, although a third recommended consideration of a further amendment in a subsequent bill. I will deal with each of the recommendations in turn to record the government’s response to the Senate committee’s report.

With respect to recommendation 1, the committee proposed increasing the minimum period of recognition for a native title representative body from one to two years. The government will implement a modified form of this recommendation through government amendments to the bill. The minimum period of recognition will, in most circumstances, be increased to two years. However, the minister will be able to specify minimum recognition periods of between one and two years where a funding controller is appointed to the representative body, the representative body is under external administration or a term of that period would promote the efficient performance of the functions of the representative body and representative bodies generally. The government considers that these amendments are an acceptable modification of the recommendations made by the legal and constitutional committee as they will generally provide representative bodies with certainty of a two-year recognition period while ensuring that in appropriate circumstances the minister retains the flexibility to reorganise and recognise a representative body for between one and two years.

The committee’s recommendation 2 is that the government finalise and implement funding arrangements for prescribed bodies corporate as a matter of priority. The government supports this recommendation. However, the government’s expectation is that support for prescribed bodies corporate will, in most cases, be delivered through native title representative bodies rather than directly to prescribed bodies corporate. There may be limited circumstances in which prescribed bodies corporate may be more appropriately provided with director support by the Australian government—for example, where the prescribed body corporate does not have a functioning relationship with the native title representative body. These matters are currently being progressed as a high priority.

Recommendation 3 was that a code of conduct for tribunal mediation be developed without delay. The Attorney-General’s Department is developing a code of conduct at present. I understand the department will be consulting key stakeholders on the drafting of that proposal in coming months.

With respect to recommendation 4, the committee suggested that the bill be amended to enable parties to object to directions made by the National Native Title Tribunal on the grounds of confidentiality, privilege or prejudice. The tribunal’s new compulsory powers are an important part of the package of additional tools the government has given to the tribunal to enable it to secure more negotiated outcomes. This is a very crucial and fundamental direction within these changes. The amendments in recommendation 4 would significantly reduce the effectiveness of the powers given to the tribunal to compel production of certain documents. Further, as drafted, the provisions do not expressly enable the tribunal to compel production of privileged material. It is also clear that the intent of the legislation is that material subject to legal professional privilege cannot be compelled to be produced. On this basis, under the general rules of statutory construction, material subject to legal professional privilege would of course be excluded from such power. The final decision about the production of documents is for the court to make. The bill contains efficient safeguards to ensure that, where parties have legitimate objections to the production of material and objections based on prejudice, privilege or confidentiality, the objections will be taken into account before any enforcement action is taken.

Recommendation 5 of the committee proposed that guidelines in relation to the exercise of the tribunal’s new compulsory powers be developed as a matter of priority. The government accepts this recommendation and considers guidelines would be a valuable tool to assist the tribunal and parties to native title proceedings. Implementation will be a matter for the tribunal. In recommendation 6 the committee suggested the development of a protocol between the Federal Court and the tribunal, which would allow noncompliance with directions issued by the tribunal to be dealt with as a matter of priority by the court. The government accepts recommendation 6. Such a protocol would complement the other measures in the government’s package of reforms encouraging better communication and coordination between the court and the tribunal. Developing a protocol will be a matter for the court and the tribunal.

I turn to recommendation 7. The committee recommended that the tribunal develop an ongoing training program for its members. The government accepts this recommendation. I understand the tribunal is developing a revised program for the induction of new members and the ongoing professional development of all members, including in relation to the mediation of native title matters. In recommendation 8 the committee recommended that the government commit to reviewing the connection review function in two years time. The government accepts this recommendation. Monitoring and review of the connection review function would be a useful initiative in ensuring the provisions operate as the government has intended.

In recommendation 9, the committee recommended that the government consider proposals made by Telstra to the committee in relation to proposed section 87A with a view to including amendments in the second native title amendment bill. The government accepts recommendation 9 and will give consideration to the suggestions put forward by Telstra. Any amendments to section 87A would be made in the second native title amendment bill, scheduled for introduction later this sitting. Finally, the committee recommended that, subject to the other recommendations made, the bill be passed—and I say again that the committee recommended that the bill be passed—as an important step in the right direction towards expediting this complicated process. Of course, the government accept this recommendation, which is subject to recommendation 1, which we implemented in a modified form, and recommendation 4, which will not be implemented for the reasons I have outlined.

In my final remarks I note that the changes in the Native Title Amendment Bill 2006 are an important part of the government’s native title reform package. Together with other elements of the reforms, they will enhance transparency and accountability in this complicated system. The changes before us today are designed to help shorten the time it takes to resolve claims. A more effective and efficient resolution of native title claims is in the interests of all stakeholders, all people involved, in the native title system. A number of government amendments are to be moved. It is best that their content be addressed at the committee stage. I commend this bill to the Senate.

Question agreed to.

Bill read a second time.

Ordered that consideration of this bill in Committee of the Whole be made an order of the day for a later hour.