Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

When Senator Brandis spoke on the Native Title Amendment Bill 2009 last week, he made it clear that the coalition support the aims and objectives of this piece of legislation. We well recognise that there is a need to undertake reform of the process by which native title is determined in this country. I know the slow rate of resolution and finalisation of native title claims is a matter of widespread concern in the parliament, certainly on this side of the parliament, so much so that it would appear that existing native title matters for resolution might not be determined until the vicinity of 2035, which is of course a long way down the track. That is really a very unacceptable time frame. Indeed, the average time spans that now seem to be required to complete a determination are in fact themselves a worrying matter. Even for consent claims it is in the vicinity of five years and seven months before there can be a settlement of these claims. If litigation is required for settlement, and that is not unusual, the figure actually moves up to six years and 11 months. So, whether or not these are consent claims and whether or not they are litigated outcomes, it is taking somewhere in the vicinity of five to six years to resolve these matters.

The Howard government introduced quite extensive amendments to the act in 2006 in an effort to try to address this situation. I have to say that in the time that has now passed we really have not had a good opportunity to test the success of those amendments. In some ways the changes before us are perhaps rather premature. Nevertheless, the objective is to try to speed up determinations and in that context we are indeed very supportive. There is a need to do that.

I am not particularly confident that these particular proposals, the amendments that are contained within this bill, are actually going to make material change to the speed with which there is resolution of these matters. It seems to me that the issues which are at the core of resolving native title claims are really matters about the accumulation of evidence and presenting the evidence in a persuasive way. It is not obvious to me that these kinds of interventions of a procedural nature are necessarily going to solve the problems which are besetting the system. In fact, Mr Tony McAvoy, a very experienced barrister in the field of native title matters, in evidence before the Senate Standing Committee on Legal and Constitutional Affairs when it looked at this particular bill, was asked whether or not he thought the reform in these particular amendments was likely to make a significant change to the speed with which these matters were resolved. He answered:

… my personal view is that it will not make any significant change to the speed with which matters are resolved.

So from one who is already in the system the intimations are not very encouraging that we are going to improve the situation. But we ought to be trying and, in the spirit of an effort to try to resolve this problem, the opposition support these amendments.

However, we do have some concerns over the amendments and the direction in which they are moving. In my remarks on this bill I want to draw attention to those concerns that the opposition have about the amendments and the likely impact that they might have on the whole determination matter. I suppose the first and obvious place to begin is the consequences that these amendments might have in relation to the Native Title Tribunal. The tribunal has a central role to play in determinations. The 2007 amendments which were introduced provided to the tribunal a right of appearance before the Federal Court. It seems that the amendments before us are going to withdraw that right of appearance. They are also going to have some widespread consequences in relation to the tribunal’s capacity to be able to provide information to the Federal Court as it takes a larger role in the determination activity. I think the question that we ought to be asking ourselves is whether or not there is something of an ideological agenda here—whether or not the government’s reforms are really less related to a sober and serious assessment of what might be required to try and improve the speed of determinations and ensure that justice is done in relation to those determinations and that, rather, a view has been formed on the government side that the Native Title Tribunal ought to be more marginalised than it is in the process and that these reforms, these amendments, are actually proposed with a view to prosecuting that particular ideological agenda.

The Federal Court will in the end have a very central role to play in the management of determinations, and I will say a bit more about that in a moment. It will also mean that these amendments will marginalise the native tribunal, and I ask myself: to what end? How will that necessarily improve the process by which we reach a determination in many of these cases? It seems to me that the likely consequence will be that the court will be deprived of a very valuable resource in trying to settle these matters with expedition and justice. That is a matter which, I think, the coalition will watch with some interest to see whether or not that is, in fact, the outcome.

As I said, the consequence of these amendments will be that the Federal Court will have a very central role in managing the native title claims which come before it. There is an amendment proposed that subsection 86B of the act, which currently requires that every native title determination application goes before the tribunal for mediation, be removed. Instead, under this bill, the court will be required to send applications for mediation, not necessarily to the tribunal but to ‘an appropriate person or body’, which is the actual phrase contained within the bill. In speaking to this bill the Attorney claimed that it would give the court a central role in managing all native title claims, including deciding who mediates the claim, and I think that that will, indeed, be the consequence of the amendment.

The question that comes to us on this side is: why has the court not actually exercised the power already available to it to take control of native title claims?—which it has been able to do over the last several years. I am a great admirer of the Federal Court and I am a great admirer of the jurisdiction. I think the expedition with which justices of the Federal Court exercise their powers and the speed with which they dispose of their cases is a standard to be emulated by other courts around the country, certainly by some of the state supreme courts, which have been very tardy in disposing of issues. There is no question, at least in my mind, that the Federal Court will act judiciously in this particular matter. However, I do have a question—and I think the opposition has a question—as to why the court has failed to exercise the opportunities which have already been made available to it through amendments to the act some time ago. Nor is it clear to my mind as to why procedural directions are necessarily going to advance the cause or progress of determinations. It may well be that giving parties particular directions, clear instructions or perhaps intervening more regularly in the whole process will advance the determinations. It will provide speed, it will provide expedition and one hopes it will provide the measure of justice which is required. But it is unclear to me that this will be the consequence by just this process itself.

I dare say that we have all heard stories about some of the legal practitioners involved in this area of law, including, for reasons of their own when acting on behalf of the Indigenous communities involved, that they take a less than diligent approach to some of their clients’ interests. That in itself has been, on the evidence that I have heard from practitioners and those involved in these claims, a problem in determining the outcome of many of these cases. The opposition will be watching to see whether or not these particular reforms, and whether giving the court the opportunity to intervene more actively, are going to deliver the outcome that is expected. It is not clear to me at this juncture that that will be the result.

The third point I wanted to make about the court in general terms is that this amendment will impose another burden on the resources of the Federal Court. It is a court that already has a very large jurisdiction. The opposition would be particularly sorry and regretful if, in fact, one of the consequences of these amendments was that there would be extra resources demanded of the court which the government was unwilling to provide. The registrar of the court, when giving evidence to the committee, assured us that he did not think that this was going to be a difficulty, and I hope that is the case. But it is important that, if these powers are to be exercised truly and with the intent with which the legislation will be amended, the court has the resources to act as it needs to.

We recognise the value of mediation in these proceedings. Mediators can provide a very useful role in relation to the settlement and determination of native title claims, but we are concerned about the dangers of inconsistency and fragmentation of process in the way in which the mediation proposal is set out in the legislation. Mediators have a role to play, but I think it is important that they exercise their powers in a consistent fashion. Some of the evidence that the committee heard when examining this bill suggested that there is a danger that the process of determination of native title claims could become ad hoc, fragmented, less efficient and more expensive as a result of these changes.

Dr Levy, some time ago in an examination of the process of reform in relation to the Claims Resolution Review, made the point that the kind of discretion which is now being given to the court to engage mediators, other than the tribunal, could in fact:

… exacerbate the current problems in the native title system by further proliferating concurrent mediation, thereby leading to cost and effectiveness implications.

So there are already concerns about this kind of process, and the government seems not to have taken those concerns seriously and has pressed on with the way in which it is proposing these amendments. There is a danger of inconsistency. There is already some suggestion that the way in which the various justices of the Federal Court are acting has introduced a measure of inconsistency in the process. That seems to me to be an undesirable dimension of resolving these matters.

There is also a second question with regard to the mediation that is of concern to the opposition—that is, the qualifications of mediators. The bill is silent essentially on defining who might be an appropriate mediator—it takes what might be regarded as a kind of minimalist approach in relation to this matter—whereas, in contrast, tribunal members are required to fulfil certain qualifications. The presidential member must be a judge or a former judge, or have been enrolled as a practitioner for more than five years. The tribunal members are appointed by the Governor-General. None of these particular restrictions, none of these particular constraints, are going to apply with regard to the appointment of a person or a body who might be appointed by the court to mediate on these matters. I think we are entitled to ask questions about whether or not they will have experience in relation to native title claims. Will these people be on a pool list from which the court will be required to draw? Will they be existing mediators, people who have already had some experience in dealing with these questions? None of these matters have been answered, and so the wider question of the qualifications of mediators and the experience that they might have remains unsettled. I think that is rather disturbing when in fact both the justices of the Federal Court and the existing members of the tribunal all have to reach certain standards in relation to their qualifications before they could actually be appointed. There seems to be no such proposal in this bill.

That is of concern to us because the mediators themselves will be given considerable coercive powers under this new legislation. They will have the power to direct parties, refer questions, direct a party to attend a conference, exclude persons from a conference—a wide range of powers which are supposed to have the capacity to be able to advance the case. It seems to me that we ought to be careful about giving these kinds of coercive powers to people with limited qualifications, or over which the act itself proposes no particular accountability. There is almost nothing in these amendments which is going to improve the accountability or the transparency with which mediators are appointed. From a coalition perspective, that seems to be a weakness. It may be that having these kinds of coercive powers is a necessary part of mediators settling these issues, but we would much prefer that they be constrained to some degree and it be clear in the legislation as to the kinds of qualifications that we would expect these mediators to have.

Finally, in the time that remains I would just like to make the point that the Liberal members of the committee were concerned at the suggestion by some witnesses before the committee that there had been limited consultation in relation to the amendments to this legislation. The President of the National Native Title Tribunal, Mr Neate, gave evidence before the committee. Indeed, I specifically asked him whether or not the Attorney or representatives of the Attorney had consulted him about the reforms. His answer was:

I was advised of the announcement of the proposed changes immediately prior to them—the day before.

Somewhat surprised by this response, I asked for clarification. He said:

… the Attorney rang me the day before the announcement and advised me of it.

This hardly seems a satisfactory way to proceed on a matter which is so vitally important to the Indigenous community. These are matters about which there ought to have been wider consultation, and it is a disgrace that the government would seem, at least on the evidence the committee received, to have failed to undertake that kind of consultation. At the very least, one would have thought that the president of the tribunal would have had his views actively and extensively canvassed in relation to these reforms, but that was not done on this particular occasion.

In summary, I hope these reforms work. I hope there is some improvement in the speed with which these matters are determined. There is an urgent need for there to be an increase in the speed of determinations, down from that five- to six-year period. My fear is that this is a rather ideological agenda that the government is imposing on the native tribunal system. They are amendments which have been imposed as a result of some view that exists within the government as to the best way to proceed rather than as a result of some serious and sober consideration of what actually is required to address this serious problem. The opposition will be watching the changes with great interest and hoping that they lead in the direction that the government anticipates. But from my perspective, I have a high degree of scepticism that it is going to achieve the results that are proposed.

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

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

I rise to provide a contribution to the debate on the proposed changes to the Native Title Act contained in the Native Title Amendment Bill 2009, which was introduced into the House of Representatives in March this year. It predominantly seeks to amend the Native Title Act in one area only at this stage. I will make some further comments about why only one change is being made at this stage and respond to what Senator Siewert just said. That change gives the Federal Court of Australia a more central role in adjudicating the native title claims.

In summary, this bill invests the Federal Court with the authority to decide whether the Federal Court or the National Native Title Tribunal, or indeed any other body or individual, will mediate a native title claim, should that be necessary. It will further encourage and facilitate negotiated settlement of claims, allow the application of amended evidence rules for evidence given by the Aboriginal and Torres Strait Islander people to apply to native claims in certain circumstances and streamline provisions relating to the role of representative bodies.

The Senate Standing Committee on Legal and Constitutional Affairs, which I chaired, had this bill referred to it for inquiry and report in May, which is what it did. During the conduct of the inquiry, we received only eight submissions. I do not believe that was because of the short length of time the committee had to inquire; I think it was because of the nature of the changes. In relation to the nature of the changes, everybody agreed with them, except, unsurprisingly, the National Native Title Tribunal. We held a public hearing in Sydney on 16 April.

Schedule 1 of the bill would make a number of amendments to the native title mediation provisions in the Native Title Act 1993. The amendments, as I said earlier and as other speakers have said, give the Federal Court the role of managing all native title claims, including whether claims will be mediated by the court or referred to the National Native Title Tribunal or another court appointed individual or body for mediation.

The explanatory memorandum to the bill sets out the rationale for the amendments, which is to emphasise the importance of mediation and to draw on the court’s significant alternative dispute resolution experience to achieve more negotiated outcomes. Having one body actively control the direction of each case—rather than, as it is at the moment, having a number of bodies—with the assistance of case management powers means opportunities for resolution can be more easily identified. Parties that are behaving with less than good faith can also be more forcefully pulled into line. Where parties are deadlocked or unwilling to see common ground, the court can bring a discipline and focus on issues through the use of its case management powers to ensure that matters do not languish.

The bill repeals and replaces section 86B(5), which empowers the court to refer a matter for mediation at any stage in the proceedings if it believes that agreement on key facts can be reached. The new subsections would operate together with proposed new section 87C to better enable the court to direct cases to mediation, as well as to recall them and redirect them, possibly to a different mediator, if such a course is deemed helpful to resolution. Section 86 deals with the cessation of mediation. Currently there are two grounds upon which the court can order cessation: there being no likelihood of agreement being reached or further mediation being deemed unnecessary. In this bill a new ground is added under which the court could order cessation if it felt it appropriate to do so. The same subsection is also amended to add a power to make general orders in relation to the cessation of mediation as the court thinks fit.

As I said, the public inquiry received eight submissions. I have to say that, in relation to the Senate Standing Committee on Legal and Constitutional Affairs, eight submissions is pretty minimal. We normally get well in excess of that, but I do not think that is an indication that people were not interested; it is an indication that, with one exception in those eight submissions, the provisions of this bill were met with general approval. The most controversial changes the bill would introduce are those that remove the compulsory reference of matters for mediation from the NNTT to the Federal Court. Significantly, the primary body representing users of the native title system, the National Native Title Council, regarded the changes as uncontroversial.

The government’s proposals aim to address a significant backlog of claims for settlement. During the course of the inquiry we heard that 145 determinations were made between 1994, when the Native Title Act was passed, and the end of 2008. The average time taken to finalise these was about six years where the application was by consent or seven years where the outcome was litigated. The tribunal’s concerns derive largely from the bill’s proposal to centralise the management of native title cases in the court and hinge on the assertion that the amendments would not necessarily bring about a faster or a more efficient claim-settling process—a claim that we heard from Senator Trood who, even though the opposition say they are supporting this bill, still seems to want to defend the way the current process is happening.

The National Native Title Tribunal argued that the bill’s passage would give rise to accountability issues when mediators operate outside a governmental institution and would see further resources being available to fund flexible and innovative solutions in a timely manner. The NNTT also submitted that the amendments would encourage a system that was ad hoc, fragmented, less efficient and more expensive to the Commonwealth and that there could be confusion and lack of clarity about the respective powers and functions between the court and the tribunal, especially the extent of the court’s capacity to direct the tribunal to do things, to allocate tribunal members to mediate particular matters and to direct how mediation is to be conducted, which raise legal and resource issues.

We do not believe that that will be the case at all, because in 2007, when the Senate Standing Committee on Legal and Constitutional Affairs held an inquiry into the provisions of the Native Title Amendment Bill 2006—we were in opposition, of course, so the current opposition was chairing that committee—the minority report of the Australian Labor Party found that there were significant concerns expressed during the course of that inquiry about the expansion of the NNTT’s powers, particularly as most stakeholders did not have confidence in the NNTT’s capacity or expertise to conduct effective mediation. Evidence received by the committee during the course of that inquiry from native title rep bodies unanimously rejected the expansion of the NNTT’s mediation function, citing past statistics and experience. Like a majority of stakeholders, Labor—and, at the time, Green senators, I have to add—were not convinced that the NNTT was capable of exercising those expanded powers effectively or properly.

I am surprised to hear people like Senator Trood say that there was a lack of consultation about these changes. This has been the position of the Labor Party since 2006 when we handed down our views in the minority report of that inquiry, and certainly people who are in the field and dealing with native title day in and day out—rep bodies, the Native Title National Council, the NNTT and the Federal Court—would have known that that was in fact our position. So I do not accept that there was lack of consultation in relation to this change. Our view and our position in relation to the Federal Court handling the majority or, in fact, all of these matters and directing the mediation, has been on the public record for at least three years. The changes in this bill reflect those concerns and those conclusions. So this is not a new matter. This is not a matter that was suddenly decided upon this year or last year and changed by the federal Attorney-General. This is a matter that has been on the statute of this particular political party for a number of years and, in coming to government, we have augmented those changes.

The NNTT’s contention that the changes will not bring about improvements in the claims process was disputed by the Federal Court and is disputed by us. In his evidence to the inquiry, Registrar Soden told the committee that the change was:

... welcomed by the Court as it supports its long held view that results are obtained through a flexible and responsive approach to mediation. This view is based on the Court’s experience of the beneficial results of active case management by the Court in some native title proceedings.

Mr Soden took the view that the court was in the best position to decide which mechanism was in the best interest of each case, including the existing option of referring the case to the NNTT, and impressed the flexibility that the changed arrangements would bring to the management and resolution of cases. That is, of course, what we want to see. These changes have undergone appropriate and extensive consultation by the Attorney-General’s Department following the release of a discussion paper in December 2008, which elicited 30 submissions.

This takes me to some of the rebuttal that Senator Siewert mentioned about the amendments they have now put before us. I have not seen a copy of them, but they do take this bill further than where this government intends to go at this point in time because we have had a discussion paper—a very extensive discussion paper—about major reforms to the native title legislation put out there by Robert McClelland in December last year. He has spoken extensively around this country at conferences, at meetings, at various venues and organisations about what is in that discussion paper. The discussion paper has been out now for more than six or eight months for the general public and for the people involved in this area to provide input. When we had our hearing back in April, there were, in fact, 30 submissions in relation to that discussion paper at that point in time. Therefore, I am unsure of why we would want to elicit a further amendment from the Greens in relation to changes to the Native Title Act when we have a discussion paper out there that will, no doubt, look at some changes extensively when the minister is ready to take the results of that consultation and translate it into changes.

I want to put on record that we do value the input from the Australian Human Rights Commission. They made a very substantive submission to this inquiry covering a number of issues. For example, they recommended: consultation by the court with parties to a mediation; the regulation of a number of parties to a claim; the requirement for court orders to be appropriate; the application of the evidence act be applied to native title claims; funding of participants in a native title claim; and the expansion of ministerial discretion in appointing native title rep bodies. These are all dot points and summaries from some of the aspects of their submission, but they are worth reading. I am hopeful that the Human Rights Commission will send that in to the consultation process on the discussion document that is currently out there.

Unfortunately, they do warrant further examination but they were received after our committee’s public hearings and we were not able to hear in person from the Australian Human Rights Commission. We were not able to test their propositions on the Hansard record for incorporation in this report. No doubt we will get to them in the future. The views of the commission are worthy of further consideration.

There is one particular section that I want to make a specific comment, and that is the proposed amendments that remove the capacity of the NNTT to provide the court with voluntary regional mediation progress reports and regional work plans, if the president considers that such a report or work plan would assist the court in progressing proceedings. In it submission to the committee, the NNTT noted:

… if the Act is amended by proposed s 94N and the repeal of s 136G(3A), the Tribunal will lose the capacity to volunteer such reports, and the Court may be deprived of a valuable source of information for case management in regions where most or all claims have been referred to the Tribunal for mediation.

The explanatory memorandum states:

It is unnecessary for the Tribunal to provide the … reports … given the purpose of the amendments is to give the Court the overall control of native title claims.

While these amendments are considered by most to be minor or noncontroversial, the NNTT raised some concerns over how the changes would potentially impact on their ongoing operations. However, as Tony McAvoy from 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 … these amendments.

The most significantly relatively simple amendment that could be made at this time to help achieve more negotiated native title outcomes in a more timely, effective and efficient fashion, was, in the view of the vast majority of the witnesses who addressed the issue, the burden of proof placed onto native title claimants to prove connection and continuity. The Australian Human Rights Commission argued in their submission:

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.

While that may well be a valid position put to us by a number of witnesses, the committee deemed that it was outside the scope of our current inquiry. It was not related to the current legislative changes that we were specifically inquiring into. We were asked to specifically look at whether or not the actual application of the NNTT’s handling of claims should stay with them or be transferred to the Federal Court. We are talking not about the nature of the claims but about the actual administration of those claims. For the record, I want to make it clear that the legislation committee at the time deemed that that was outside the scope of its work.

In conclusion, I do draw people’s attention to the discussion paper by Minister McClelland. No doubt, we will be back in this chamber debating much more extensive and further changes to the Native Title Act once his response to that discussion paper is made available.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I think Senator Crossin sums it up pretty well when she says that the number of submissions are reflective, not so much of the significance of the Native Title Amendment Bill 2009because it is significant to speed up the process of dealing with native title claims; that is very important—but of the further reforms being planned by the government. So I think that on issues such as the burden of proof the process that has been instigated by the Attorney-General is appropriate.

This bill, by enabling the Federal Court to determine whether the National Native Title Tribunal or any other body should mediate native title claims, is an important step forward in the process. It gives the Federal Court a central role in managing native title claims. It specifies the manner in which mediations are conducted, changes the power of the courts in relation to agreed statements of fact and consent orders, enables native title proceedings to rely on new evidence rules and allows for transitional and technical amendments.

The motivation of the bill is a good one, because it deals with a backlog of native title claims and allows the Federal Court to more efficiently decide to delegate or set up mediation to resolve these claims. Of course, I welcome any move to more expeditiously and fairly handle native title claims and note the broad support—both political and in the community—for these changes.

I believe that the connection between Indigenous Australians and the land is fundamental. Noel Pearson, in an essay in 2007 for the Griffith Review headed ‘White guilt, victimhood and the quest for a radical centre’, made the point:

Our rights to our traditional lands, to our languages and our cultures, our identities and traditions are a constant part of our work for a better future for our people.

And it is that connection to the land that is integral in advancing the betterment of Indigenous communities around Australia. So I believe that anything that can be done responsibly to speed up the native title process can only help the advancement of Indigenous Australians. That is why I support this bill.

I do have some questions I would like to put on notice, and I have briefly discussed this with the government. It is clear that the role of mediation will be expanded under the regime in this bill. My question to the government is: what further funding will there be for what I expect will be an increase in mediation? What sorts of outcomes are expected from that, in the sense of how many more cases will go to mediation and what the impact will be on the backlog of claims? In other words, there is no question that the government’s intent to more expeditiously resolve claims is laudable. What performance indicators will there be—in the sense of the yardsticks to determine how quickly claims are being resolved and the likely legal costs? There is a real concern about the very significant legal costs of these claims, let alone the time involved. What does the government expect will be the impact of the bill in reducing the time and the costs involved?

There have been some critics, and I refer to a paper by A Chalk, ‘Redefining the Role of the Federal Court in Settling Native Title Matters’, presented to the third annual Negotiating Native Title Forum in Melbourne on 19 and 20 February this year. In that paper he said:

... the current system for resolving matters has not been successful. It has certainly failed the taxpayer. But more importantly it has failed Indigenous people. It has allowed a once in a century opportunity to redress one of the fundamental scars of our country to slip away. In this regard, we all suffer from the failure.

My question is: to what extent will these changes make a difference in terms of both the costs and the time frames involved in resolving claims; and will there be a benchmark or a mechanism to report back within 12 months or 18 months so that we know how successful these reforms have been in terms of process and whether there should be others, so that if there is a need for further change that can be put on the agenda? So, with those few words I indicate my support for this legislation. I certainly hope that it has the desired outcomes in terms of more expeditiously resolving claims, which I think we all agree is a good thing.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I stand this afternoon as a Liberal senator and Deputy Chair of the Senate Standing Committee on Legal and Constitutional Affairs that reported on the Native Title Amendment Bill 2009 some weeks ago—in May 2009. I note that the bill was introduced on 19 March and its primary objective is to give the Federal Court of Australia a more central role in adjudicating native title claims. It invests in the Federal Court the authority to decide whether it, the National Native Title Tribunal or another individual or body should mediate a native title claim and it encourages and facilitates negotiated settlements of claims. It does a range of other technical and administrative things to speed up the process.

The committee received eight submissions and we had a public hearing in Sydney on 16 April 2009. Can I just place on record, certainly on behalf of the Liberal senators and the committee, my thanks to the committee secretariat for their work in assisting our committee in deliberating on this particular bill and delivering the report on time.

A very important issue that I have asked questions on and that has come up time and again at budget estimates is delays in sorting through and delivering on national native title claims. From 1994 to the end of 2008, 145 determinations were made under the act. The average time taken to finalise those was nearly six years when the application was by consent and seven years or longer when the outcome was litigated. That just shows you the concerns, issues and problems we have in dealing with these matters. At the time the report was handed down, about 475 claims were on foot in the system and over a quarter of those cases had been current for at least 10 years. It is estimated that the last of the cases currently active will not be concluded until 2035, another 26-odd years from now.

This is a very lengthy process and one that, frankly, we need to do a whole lot better at and improve. I am not saying anybody has it right or has the solutions. The objective behind this bill, to try and improve the process, is supported. I have asked at Senate estimates what processes and administrative arrangements are in place to sort through these concerns so that the process can be speeded up. Justice delayed is justice denied. That is a fact. We know it. It is not just an adage. With respect to determining national native title claims it is an absolute truism and it should be noted not just by us in this chamber but by the parliament and the broader public.

The National Native Title Tribunal have expressed a range of concerns regarding the bill and the amendments, and the Liberal senators have set out our concerns in our report. The tribunal’s concerns derive largely from the bill’s proposal to centralise the management of native title cases in the Federal Court. Along with my colleague Senator Trood, I have a lot of confidence in the Federal Court and their ability, executive judgment and management skills. But these amendments put so much discretion in the hands of the Federal Court that I think we need to watch this very carefully to see if the objectives that the government has are actually going to be met. I note that Senator Xenophon said, ‘Watch this space,’ in terms of the outcomes, because the process is, frankly, not working correctly. We need to do better.

Amendments were introduced in 2007 by the former government, the Howard government. The committee received no evidence as to whether or not those amendments were being properly and fully implemented. That is one concern that the Liberal senators noted in our report. The National Native Title Tribunal also argued to our committee that the bill’s passing could give rise to accountability issues through mediators operating outside the framework of a government institution and that it would see fewer resources available to fund flexible and innovative solutions in a timely manner. That was put on the Hansard record. The Chief Executive Officer of the Federal Court, Mr Warwick Soden, who appeared before the committee, assured the committee that the issue of resources was not a matter for the Federal Court. Well, we hope that that claim will be deemed and proven correct over time. But these are concerns that have been presented by the National Native Title Tribunal. One of the key outcomes, of course, is the appointment of mediators with respect to determining national native title cases.

The Liberal senators do support the aims and objectives of the amending bill, particularly encouraging of settlement by negotiation and building flexibility into the system, thereby maximising the chances of resolution. However, as I have indicated, there was no solid evidence as to how the 2007 amendments have operated, and that is a concern. The government have a job to do. The department should be able to respond and say, ‘These are the benefits of the 2007 amendments.’

The other key concern I have, and this seems to be a revolving consequence, a systemic problem that the government has, is the lack of consultation with key stakeholders. Some senators and the public may be surprised to know that there was entirely inadequate consultation with the National Native Title Tribunal prior to this bill being introduced. Why would that be? Why, when this is the key stakeholder entity, would the government plan to change their operations, their process and the way they do business without consulting them? We have referred to the lack of consultation in our report at page 21:

The Government states it used an evidence-based approach to policy development.

Well, hello! It does not really—not in this case. The report continues:

… we are concerned that little attention has been paid to the view of the NNTT—

the National Native Title Tribunal. Of course we are concerned as Liberal senators, and I think the entire public would be concerned. We continue:

In his evidence to the Committee, Mr Neate, the President of the Tribunal, stated that he ‘was advised of the announcement of the proposed changes immediately prior to them – the day before.’...‘But this was really advising me of what was about to be announced.’

So it was not really consultation, was it? It was: ‘This is the way we’re going to go, this is our approach, and we’re going to ram it down your throat whether you like it or not.’ That is not appropriate. That is inappropriate behaviour and practice for a government that says that it supports consultation. In this case, there has not been adequate consultation with the key stakeholder, the National Native Title Tribunal. The Attorney-General needs to take that on board and ensure that that does not ever happen again. They must, when developing substantive changes to the Native Title Act 1993 in the future, ensure proper consultation. They have impacted on the core mediation function of the National Native Title Tribunal without even consulting the president of that tribunal. Saying a day before, ‘This is what’s going to happen,’ is simply untenable. It is not on. Certainly our side of the parliament will hold the Attorney-General and the government to account. The lack of consultation seems to be becoming a systemic problem in how this government does business.

In turning to some of the other substantive matters, I note the committee expressed concern that:

... the amendments in Schedule 1 could result in the resolution of national native title claims in a less systemic way and that the process could become ad hoc, fragmented, less efficient and more expensive to the Commonwealth.

We noted the very good reputation of the Federal Court and their management skills and executive skills in implementing administrative and other operational arrangements, and we are willing to support these government amendments, but we will watch carefully to see how they are implemented, what benefits flow from them and whether the committee’s concerns will be vindicated. We expressed concern in our report that:

... private mediators may not possess qualifications and experience of practices, which might actually be important in ensuring their honesty, their integrity and their capacity to do the work required of them.

In the past we have had the mediation being undertaken and conducted by the National Native Title Tribunal and now it will be under the auspices of the Federal Court but with a contracting-out to individual mediators. The concerns that we have are exactly how this is going to operate, what the cost will be, its effectiveness and what outcomes will be delivered. These are fair questions and we will watch very carefully as the government proceeds with this reform. Our report continues:

The Bill is also unclear as to whether a Judge could appoint an organisation to mediate, resulting possibly in a person other than a Judge determining who would carry out the mediation.

Frankly, that is a concern, and I hope that these concerns that have been expressed will be answered and sorted out. The report states:

In summary, the appointment of private persons (and organisations) inevitably raises questions of accountability insofar as those persons and organisations operate outside the framework of a government institution with all of the relevant regulatory checks and balances.’

We will have a watching brief on this side of the chamber, and I know members of the public will have a watching brief on the delays in sorting out native title claims at the moment. They are totally unsatisfactory in their duration and need to be attended to. We do know that the Attorney-General has put on record his strong commitment to sorting through that. I and I know others on this side would like to see targets which show they want to sort this out, not in 26 years time, as is the current prognosis by the department and by others. That obviously has to be significantly reduced. We will be watching this through budget estimates. We put the department on notice to prepare for those sorts of questions when estimates arrives in some weeks time. We put it on notice that there will be further watching by this side of the chamber, and indeed by members of the public, so that we can sort through these very important native title determinations as quickly, efficiently and effectively as possible.

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

Native title is quite a big issue in Western Australia, where I come from, and it has caused an enormous number of problems over the years, largely because of the vagaries—if I might put it that way—in the way native title claims are determined. I think there are something like 100 native title claims current in Western Australia. Over the history of determinations in Western Australia, I think there have been 19 consent determinations and six litigated determinations. The story of native title in Western Australia has not been a happy history and I think the Native Title Amendment Bill 2009 does help bring a little bit of clarity and take it a little step forward, but there are still problems.

This legislation, as has been said, provides a central role to the Federal Court in managing native title claims—that is, instead of the Native Title Tribunal doing so. There is a very long backlog of native title claims. It has been said that a time span of some 30 years would be needed to clear all those claims. But this proposal provides for the Federal Court to actively manage these claims and provides for alternative dispute resolution methodology, which I think is a good thing. There is no doubt that, if left to themselves, lawyers can prolong court proceedings for a very long time. That runs up huge bills in legal fees. Sometimes the participants see it as an advantage to not come to a conclusion.

Native title was introduced in 1964—I think the legislation was passed in 1963. I do not have a problem with the concept of Indigenous people, genuine traditional owners, gaining benefit from the use to which their land is put. Of course, the problem has always been that it is not always possible to prove who the genuine traditional owners are. Sadly, very often other groups who are not the genuine traditional owners seek to become involved in native title negotiations and to gain financial reward by so doing. That points to the fact that one of the central problems that remains with native title legislation is that parties have the right to negotiate without having a proven genuine native title claim. In other words, there may be genuine claimants who put in a claim, but other groups—usually family groups at the periphery—then put in counterclaims as co-traditional owners. That is where there have been enormous rorts in this system. Not only is a lot of time lost but also there is a lot of money paid to lawyers who put up these spurious claims by groups which claim the right to negotiate. More importantly, a practice has developed over the last decade or so of paying off the spurious claimants as the quickest way of getting them out of the field. This occurs with mining developments, tourist developments and farming developments.

A very famous case in quite recent times in Western Australia related to the Yindjibarndi-Wong-goo-tt-oo claim to the northern end of the Burrup Peninsula, which is where the North West Shelf gas projects are located. The Wong-goo-tt-oo-Yindjibarndi people were the traditional people of Roebourne, which is nearby, and they claimed the northern beaches of the Burrup Peninsula, which were used for recreational purposes by the people of Karratha. The claim was disputed of course, but the then Carpenter government in Western Australia paid the Yindjibarndi-Wong-goo-tt-oo $15 million or thereabouts to withdraw their claim. They withdrew their claim and it was subsequently proved that they had no legitimate claim whatsoever. They were not in any way traditional owners of the northern end of the Burrup Peninsula. But nobody asked them to repay the money. That group walked off with their $15 million and that was the end of the story. I am not criticising the Carpenter government in particular, although I think as a government they should have perhaps done some more due-diligence work and been a little bit more cautious. But I suppose, like many other groups in the same situation, they decided they just wanted to end this nuisance claim. This kind of thing has occurred all over Western Australia, particularly where claims over mining areas have been involved. It has occurred where tourist developments have been proposed to go ahead. It has caused enormous problems.

Western Australia being Western Australia, and the north of Western Australia in particular being an area where Aboriginal communities still live and have legitimate claims—one would have to say—to traditional ownership of parcels of land, there is a very great need to expedite the legitimate claims to native title so that developments can go ahead. I think everybody has heard about the enormous problems with housing in some of those boom towns in the Pilbara, like Karratha, Port Hedland, Broome, Newman and so on. The problem with housing in those towns essentially is that, although they are surrounded by endless millions of hectares of empty land, none of it can be used for housing because it is subject to native title claim. So you have the ridiculous situation that in Karratha, where there is abundant land—just as there is around Port Hedland—there has not been any land free of native title available for housing. The native title owners or claimants, many and various, have not been able to come to an agreement about settling claims. So, in Karratha, which is bursting at the seams with industrial development, you find people sleeping on palliasses next to their four-wheel drives in the car parks of the town because there is no accommodation.

I have a friend who is the CEO of Chubb in the north-west. To accommodate his workers he has to book them into hotels in Exmouth and fly them in and out of Karratha every day because there is simply no accommodation. It is ridiculous that that sort of situation occurs. It is very important that we find a way of expediting native title claims. But, as I said, while this measure, alternative dispute resolution and active management by the Federal Court will certainly speed up claims, we still have not addressed the central issue: the issue of anybody who wishes to negotiate for a native title claim having first to prove that they are the legitimate traditional owners who should be dealt with. The right to negotiate is a very, very important issue, and it always has been in dealing with native title claims.

I was disappointed that, during the years the Howard government had a majority in the Senate, this issue of the right to negotiate was not addressed in the amendments which the Howard government made to the native title legislation, because, as I have said, it is an absolutely key issue and it is at the core of the rorts which have occurred in the native title debate and in the whole saga of native title. Were the issue of the right to negotiate dealt with, then a lot of claims would disappear because, if people were not traditional owners, they would not have the right to negotiate, to get some sort of payment and be seen off by a company or a government paying them off to withdraw their claim so that the legitimate traditional owners could be dealt with. As I have said, that is the most important issue.

I would suggest there is an equally important issue in terms of native title, though, and that is what is done with the money that comes into the communities or traditional owner groups from native title claims when they are settled. Frequently the Indigenous people concerned have very little to show for the millions of dollars that are paid into the communities or to a group who claim to be the traditional owners. I remember, as I have said in this place before, going to an Indigenous bush meeting in the Pilbara, when I first went up there. It was held on the banks of the Coongan River at Marble Bar, with about 300 or 400 Aboriginals talking about the issues that faced them. Their problems were health services, housing and education. Their problems still are those three things: housing, health and education.

Sadly, in many of the communities which have had large native title payouts, very little money has gone through to the ordinary Aboriginal groups, the whole community, in terms of providing better housing, better health services and better education for their people. Many Aboriginal groups are beset with the sorts of problems which beset ATSIC, in which a family group gets control of the community—it is very political; they have the numbers, as it were—and so all the benefits flow to that family group and they all get new Toyotas and better houses and travel first class on Qantas, and the rest of the community very often miss out.

In resolving the problems associated with native title what is needed is some way for the funding from the claims to be paid into an account administered by trustees to ensure that the benefits flow through to the communities in terms of better housing, better health services and better education. Our aim in native title negotiations should be a win for both the Indigenous traditional owners and for the community as a whole so that we do not have situations like the ones that exist in those Pilbara towns at the moment, where there is no land available for housing in spite of the incredible demand. That has meant that rentals in a town like Port Hedland for an ordinary two-bedroom house are in excess of $2,000 a week. Individual persons cannot afford to pay those rents; only companies can.

As I said, I regard this measure as a step forward. It means that the Federal Court can manage these cases and that alternative dispute resolution will be put in place. But the fact remains that we still have to deal with the issue of the right to negotiate only being given to native title claimants who actually have a proven claim. We also have to think about how the money is dispensed when it is awarded to Indigenous groups.

David Johnston (WA, Liberal Party, Shadow Minister for Defence) Share this | Link to this | Hansard source

I want to say that I am positively disposed to the solutions that have been put forward by the government’s Attorney-General in the Native Title Amendment Bill 2009 in what is a very complex and difficult legislative environment. Upon the occasion of my first speech here in 2002, I spoke of the false dawn for Aboriginal people, particular in Western Australia, represented by the practical operation of the national native title legislation. I spoke of how no stakeholders were happy or satisfied, least of all the people who were the subject of the beneficial objects of the legislation—namely, Indigenous people.

So it was that in August 2002, almost 10 years after the commencement of the act, there were some 589 native title claims on the books. Some seven years later, and some 17 years down the road, there are still 511 claims before the Federal Court—unresolved matters of native title. Any statistical analysis of these numbers indicates that we will be well into the second half of this century before these claims are resolved—at the indicative rates of resolution inferred from the numbers that I have put on the record—unless there is a significant and dramatic change in the way the process surrounding the operation of the act is facilitated.

I should comment that in the first 10 years there were 33 determinations, of which 23 were consent determinations. As at January this year, there had been 117 determinations, of which 71 were consent determinations. I will say that I think that things are getting better, slowly but surely and in small degree, and are progressing at a slightly faster rate than was seen in the first 10 years. The point is that some 19 years on we still have 511 claims on the books. So the assault in the process of satisfying and resolving these rights has been very slow and tortuous.

The answer to this problem is found in the very heavy legal evidentiary burden placed upon the claimants in presenting their case and putting matters formally before the Federal Court and in mediating those matters with other land users. The other land users are miners, pastoralists and farmers. The most important of all the other land users is usually the state governments who hold the land as crown land in right of each of their respective states.

I will give a general precis of what logistical and legal hurdles confront claimants. I will start by mentioning that the claimants are usually a quite loose knit contemporary group of tribal and filial people united by their land, by their customs and by the regions that they live in. They have a requirement for some structure or mode by which they as a unitary group can function and do business. That is to say it is required that there be a basis for the group to appoint and acknowledge a spokesperson or spokespeople.

Indeed, one of the first and most important questions confronting any claimant group is whether they are going to function as a democracy or whether they are going to function as some sort of patriarchal or indeed even matriarchal structure. Do the men control which way the claim goes, do the women control which way the claim goes or do they vote and have equal voting rights? That question alone is a significantly difficult question for many claimant groups. It is a very expensive process to bring them all together. For many of them, English is not even a second language—it is down the road of various languages and customary tongues used for communication. Bringing them together and explaining how they need to go forward in order to pursue their claim is a very technical sociological and anthropological exercise. And it costs a lot of money.

Having set out to you the difficulties confronting the claimant group at a first pass, I will now get into areas such as consultation. Having resolved a mode of proceeding, they then need to have some funding and a mode of talking to each person who is a member of the claimant group so that they are fully informed, know what their rights are and can have some knowledge that the people who they have appointed—and indeed their lawyers and anthropologists—are doing the right thing by them. As I said, all of this is extremely expensive but fundamentally crucial in creating the integrity and authority necessary to move the claim forward. The ongoing costs of funding solicitors, anthropologists, researchers and the general financial commitment to a claim is a very crucial consideration and one that has to be dealt with by the representative body as a priority. You cannot start a claim in the Federal Court and run out of money halfway.

Debate interrupted.