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

I present the explanatory memorandum and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

The Native Title Amendment (Reform) Bill 2011 begins to address the failure of the Native Title Act 1993 (NTA) to deliver on its initial intent to provide meaningful rights and a basis for economic and community development to Aboriginal and Torres Strait Islander people in the 18 years since its introduction.

By introducing this Bill and any further reforms in the future we intend to contribute constructively to a debate about native title reform that can ultimately lead to simpler legislation which produces more meaningful outcomes in a more timely fashion for all those involved.

In this first Bill we have sought to address some of the ‘low-hanging fruit’ of native title reform – by targeting some of the areas of native title law where relatively simple amendments have been identified that could have far-reaching implications for addressing some of the current barriers to effective native title outcomes … essentially cutting a bit of a path through what Justice Kirby describes as the “impenetrable jungle”¹ of native title litigation.

Almost two decades after the introduction of the NTA it is fair to say that native title has failed to deliver on its promises – as explicitly state in the Preamble to the Act, and in its Objects.

The Preamble states that:

"The people of Australia intend:

(a)

to rectify the consequences of past injustices by the special measures contained in this Act… for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

(b)

to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire."

We hope that by the time we reach the twentieth anniversary of the NTA in 2013 the process of native title reform will be seriously underway, and we will be able to see native title delivering on some of the seemingly forgotten promises contained in the preamble to and objects of the NTA.

In practice, the people who the Act recognises and describes as "…the most disadvantaged group is society…" as a consequence of the dispossession of their lands, have had to rely on one of the longest and most complex pieces of Australian legislation to try to “…secure their advancement…” and to recognise and protect (not establish) their pre-existing rights.

In nearly two decades since its introduction only a handful of native title claims have been resolved, with many of these being in remote areas which had been of little interest to European colonists. For the majority of our Aboriginal and Torres Strait Islander people, particularly those in urban areas and regional centres, native title has offered little and delivered less.

Meanwhile the promised complimentary measures have also been a grave disappointment – the land fund has only been able to help out a limited number of communities, and the social justice package never eventuated.

It is clear that in the application and judicial interpretation of the NTA a huge gap has emerged between these original promises and intentions, and the on-the-ground experience of Aboriginal and Torres Strait Islander communities seeking to have their native title rights recognised and protected.

Justice Kirby characterised the barriers to the recognition of native title rights as comparable to an impenetrable jungle, saying:

“It would be easy for the judicial explorer to become confused and lost in the undergrowth to which rays of light rarely penetrate. Discovering the path through this jungle requires navigational skills of a high order. Necessarily, they are costly to procure and time consuming to deploy. The legal advance that commenced with Mabo v Queensland, or perhaps earlier, has now attracted such difficulties that the benefits intended for Australia’s Indigenous peoples in relation to native title land and waters are being channelled into costs of administration and litigation that leave everyone dissatisfied and many disappointed.”²

There are many who still believe that the recognition of rights to land, culture and resources through Native Title could provide a strong and sustainable basis for ‘advancement’ by underwriting and enabling community and economic development.

The former Prime Minister Kevin Rudd for instance, spoke of the capacity for respect for native title to provide a sturdy foundation for durable economic and social outcomes in his Apology speech.³

It is a tragic shame that neither his government, nor to date its successor, has done anything to seek to strengthen and facilitate recognition of the native title rights of Aboriginal and Torres Strait Islander Australians to help make that vision a reality. Instead the only changes to native title laws we have seen in these two terms of Labor Government have been those that either diminished native title rights or at the very least have failed to enhance the capacity of traditional owners to participate in securing meaningful outcomes.

This of course comes on the back of over a decade of Coalition Government under John Howard that systematically wound back the rights of Indigenous Australians, diminished native title rights, and saw the scrapping of all the existing avenues for representation and decision making with the removal of ATSIC.

The challenge for this government in moving forward to make the vision of the apology a reality, is to put aside the paternalism of the Howard/Brough years and to actively engage Aboriginal communities in policy development, decision making and community development instead. This also means recognising, as the Cape York Land Council put it – that meaningful respect for native title as a valuable property right is part of the solution … not an impediment.”⁴

The impetus for reform

The impetus for this bill arose from the interactions with Aboriginal and Torres Strait Islander Australians and native title experts that took place in and around the 2009 inquiry of the Senate Standing Committee on Legal and Constitutional Affairs into the Native Title Amendment Bill 2009. A Bill which in and of itself had little to do with reforming native title to deliver better outcomes.

The discussions that took place in around that Senate inquiry crystallised many of my long-standing concerns with the NTA which lead to a continuing dialog on broader native title reform that has ultimately led to these reforms.

At the time of the introduction of that 2009 bill, the Attorney General Robert McClelland stated that the intent of the Australian Government in introducing the bill was "…achieving more negotiated native title outcomes in a more timely, effective and efficient fashion"⁵.

The vast majority of the evidence tended to that Senate inquiry supported the need for native title reform that would achieve more effective native title outcomes in a more timely and resource efficient manner but disagreed with the Attorney General’s suggestion that the Government’s reforms came anywhere near achieving those outcomes.

As Tony McAvoy of the National Native Title Council put it at the time:

“…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. “

The submissions to that inquiry identified a number of other possible reforms to the NTA that promised to address the barriers to timely and meaningful native title outcomes and went beyond the narrow agenda of the Government’s 2009 bill. These included addressing the ‘burden of proof’ through a rebuttable presumption of continuity⁶, strengthening the requirements of parties to ‘negotiate in good faith’, and raising the threshold on extinguishment, among others. 

Many of the issues raised in this inquiry were further discussed and developed in the 2009 Native Title Report of the Human Rights and Equal Opportunities Commission by the then Social Justice Commissioner Tom Calma. This report made an important series of recommendations for native title reform, many of which have provided the basis for the reforms proposed within this bill.

I note that this bill does not cover all of the reforms recommended by Tom Calma, and includes a number of measures that he did not discuss at the time. While many of the good ideas can be attributed to Mr. Calma and to others, I take full responsibility for the way they have been interpreted as legislative amendments. I commend the work of the former Commissioner and thank him sincerely for his efforts.

I would also like to thank the native title experts, Aboriginal and Torres Strait Islander organisations, land councils and rep bodies that have contributed their thoughts, ideas and comments to us in response to our inquiries and as part of the consultation process we undertook around the discussion paper and draft amendments proposing these reforms.

Implementing the UN Declaration of the Rights of Indigenous Peoples

One of the issues we have sought to address in the first of our native title reforms is the application of the principles outlined in the UN Declaration of the Rights of Indigenous Peoples (‘the Declaration’).

In addressing the High Level Segment of the United Nations Human Rights Council in Geneva recently (28 February 2011) Foreign Minister (and Former Prime Minister) Kevin Rudd spoke with pride about the decision of his government to support the Declaration on the Rights of Indigenous Peoples (DRIP), declaring that Australia also seeks to reflect these principles in our dealings with Australia’s own Indigenous peoples.

So far the Australian Government has not yet sought to reflect the principles of the UN Declaration in legislation or in native title law, or to give meaningful consideration as to how they might play a role in the development of government policy or the application of government programs.

The Leader of the Opposition, Tony Abbott has also recently professed a desire to see at least some of the provisions of the Declaration of Rights in Australian Law. In introducing his Wild Rivers Private Member’s Bill, Tony Abbott made direct reference to the Declaration, to the right of Indigenous peoples to own, use, develop and control their lands, and to enshrining the absolute necessity of consent by Aboriginal people to decisions that affect their lands. However, the manner in which his Wild Rivers Bill seeks to put into practice the principle of ‘prior informed consent’ for Aboriginal people in the Cape York region is not consistent with the way these rights are formulated within the Declaration.

The key point is that the UN Declaration on the Rights of Indigenous Peoples is very clearly intended to describe and evoke universal rights that necessarily apply to all Indigenous peoples. It is inconsistent with the declaration and the wider principles of the universality of human rights to seek to apply the principle of prior informed consent only to a limited group of people (communities on Cape York) or only to a particular decisions (to veto a declaration of a ‘wild river’ conservation area).

If the Leader of the Opposition is sincere in his commitment to give traditional owners a right to prior informed consent on development and conservation decisions which affect their lands and livelihoods, then the most appropriate and meaningful way to do so would be in a manner which applies universally to all traditional owners – that is, by direct amendment of the Native Title Act – and not through laws that only apply to one specific region and one type of decision.

To implement the Declaration of Rights, Item 1 of the Native Title Amendment (Reform) Bill 2011 inserts an additional Object of the Act that references the Declaration on the Rights of Indigenous Peoples, and asserts that the intention of the Parliament in the manner in which the NTA is applied and interpreted is for it to implement key principles of the Declaration, including:

• Free, prior and informed consent of indigenous peoples in matters affecting them
• Full and direct consultation and participation of indigenous peoples concerned
• The right of indigenous peoples to their traditional lands, territories and natural resources
• Demonstrated respect for indigenous cultural practices, traditions, laws and institutions
• Reparation for injury to or loss of indigenous interests
• Non-discrimination against the interests of indigenous peoples, and
• The right of all peoples including indigenous peoples to self-determination.

I acknowledge that there is a need for the Parliament and the nation to have a debate about the meaning and implementation of these rights. I hope that debate of this bill can make a useful contribution to the ongoing debate about the recognition and implementation of human rights in Australia.

I note that the Objects of the NTA serve to provide some direction to the Courts as to the intentions of the Parliament as to how the Act as a whole should be interpreted. Including the principles of the Declaration within the Objects does not mandate or compel a particular outcome or interpretation.

In relation to the interpreting the meaning of ‘free prior informed consent’ and what in practice ‘consent’ means when applied to native title decisions, I believe it is important not to confuse the consideration of whether meaningful consent has been achieved within a decision-making process with a simple right of veto.

The guide to the Declaration on the Rights of Indigenous Peoples produced by the Australian Human Rights Commission says that:

“Consent means we should be consulted and be able to participate in an honest and open process to achieve an outcome all parties are happy with.

This means that we should be engaged in all levels of programs, policy and legislation that affects us from design and implementation through to monitoring and evaluation.”⁷

The rights addressed within the Declaration (such as the concept of ‘free prior informed consent’) are to my mind clearly intended as part of a wider human rights framework – in the same way in which other human rights are already acknowledged and addressed in Australian law. 

Strengthening heritage protection

Item 2 of this bill addresses a problem with the way the NTA interacts with Commonwealth, State and Territory heritage protection acts.

This issue was brought to my attention by the Yamatji Marlpa Aboriginal Corporation in response to my discussion paper and exposure draft, and I am grateful for their input.

The amendment seeks to address an outstanding issue with Section 24MB – which sets out how, as part of the freehold test for grants of tenures, there are two main conditions that must be satisfied before the Subdivision applies and a future act can be validly granted.

The first is the “non-discrimination” principle that the future act could equally have been done to ordinary freehold land – which is self-explanatory.

The second condition relates to whether there is heritage protection legislation that applies to any sites or areas within the affected land that are “…of particular significance to Aboriginal peoples of Torres Strait Islanders in accordance with their traditions.”⁸

Obviously the intent of Section 24MD is to ensure that, before a future act is permitted on native title land, the heritage values of any areas of particular cultural significance are protected.

However, as it stands, the way this provision is worded means that the mere existence of applicable state heritage legislation would satisfy these criteria and permit the future act – irrespective of whether the application of those state heritage laws will actually provide effective protection of those sites of cultural significance.

As my colleagues may be aware, heritage laws vary substantially in their effectiveness and application between jurisdictions. Yamatji Marlpa are particularly concerned by the inadequacy of the Western Australian Aboriginal Heritage Act 1972 and I share those concerns –  having been aware of a number of circumstances in the past where these laws have failed to protect sites of great cultural and historical significance (such as protecting the world’s oldest petroglyphs on the Burrup Peninsula from industrial development).

To this end I have sought to amend Section 24MD to allow the courts and decision makers to give consideration to the effectiveness of the relevant Commonwealth, State or Territory heritage laws when considering whether the elements of section 24 MD have been met.

Compulsory acquisition does not imply extinguishment

Item 3 of the bill is a simple amendment to reinstate the previous language in section 24MD(2)(c) in relation to the application of the non-extinguishment principle to compulsory acquisitions of land. The implements a recommendation of the 2009 Native Title Report and improves the future act regime.

The right to negotiate also applies offshore

This item seeks to improve procedural rights over offshore areas for native title holders. In doing so it seeks to address the contradiction between the existing provisions of Section 26(3) of the NTA (that limits the right to negotiate to acts that relate to a place on the landward side of the mean high-water mark) and the fact that native title rights have been recognised to exist in offshore areas.⁹

This amendment is consistent with the views expressed by the Attorney General Robert McClelland, who stated in 2009 that:

“When it comes to behavioural change, I accept that the Australian Government has to lead by example. I believe we are doing just that. For example, last year I announced that the Government will take a more flexible approach to recognising native title in Australia's territorial waters. The Australian Government now accepts that native title can exist out to the limits of the modern territorial sea, generally 12 nautical miles from the territorial sea baseline. Given that the Government is involved in all claims over offshore waters, this approach should help bring about more negotiated settlements.”¹⁰

The limitation of procedural rights under Section 26(3) that deny traditional owners a right to negotiate over future acts in offshore areas is clearly inconsistent with this recognition that native title can exist up to 12 nautical miles out to sea, and so item 4 of the bill remedies this by repealing section 26(3) to remove this unnecessary contradiction and allow traditional owners the right to negotiate over acts that impact on their sea country.

Strengthening good faith negotiations

The future acts regime plays a crucial role in the manner in which traditional owners are able to exercise their native title rights, by governing the requirements placed on parties negotiating agreements concerning proposed activities. There has been sustained criticism of the manner in which the future acts regime has led to protracted and uncertain outcomes, and calls for the act to be amended to create stronger incentives for beneficial agreements and achieve greater procedural fairness by striking a better balance between native title and non-native title interests.

To this end the amendments proposed in Items 5 to 9 of this bill expand on the current requirements for parties to negotiate ‘in good faith’ in relation to future acts.

Currently the burden of proof for proving the absence of good faith in negotiations is on the native title party, rather than the proponent of a proposed future act. This appears procedurally unfair as it is in effect the proponent who is effectively asserting that they have negotiated in good faith for the required period when they apply for a matter to be taken to arbitration.

Item 5 of this bill seeks to strengthen the requirement to negotiate in good faith, in line with the recommendations of the Native Title Report 2009¹¹.

The NTA as it stands prevents parties from resorting to an arbitral body, such as the National Native Title Tribunal, for a period of six months from the issue of a notice that the government intends to grant a mining tenement. This fixed negotiating period does not take into account the relative scope or difficulty of the proposed negotiations – it is the same irrespective of whether the parties have established previous agreements or are meeting for the first time, and irrespective of whether they are negotiating a single act or attempting to conclude an overarching agreement on a ‘whole of claim’ basis.

So on the one hand, parties who are undertaking complex negotiations in a genuine attempt to make efficient use of their time and resources to secure wide-scale agreements over large areas of land and multiple future acts need to do so within the six month limit (irrespective of the number of negotiations and the lack of resources of the native title representative body). On the other hand, proponents who are not inclined to enter into serious negotiations with native title holders can effectively stonewall and sit on their hands for six months, knowing they can then force the matter to arbitration without any requirement to demonstrate they have made all reasonable efforts to come to agreements.

To this end Item 5 of this bill substitutes a new paragraph 31 (1) (b) which requires parties to negotiate in good faith for at least six months and to use all reasonable efforts to come to an agreement about the conditions under which each of the native title parties might agree to the proposed future act.

Item 6 inserts a new subsection 31 (1A) which provides clarification of what the requirement to use ‘all reasonable efforts’ when negotiating in good faith really means.

The good faith negotiating requirements are one of the few legal safeguards that native title parties have to protect their native title interests under the NTA. While Section 31 of the NTA seeks to oblige the parties to negotiate in good faith during the negotiating period, in practice it is virtually impossible for claimants to establish that a proponent is not acting in good faith. This is borne out by the decision of the Full Federal Court in the matter of FMG Pilbara vs. Cox¹² - a decision which substantially watered down the right to negotiate, to the extent that any negotiation in which the native title party cannot demonstrably prove bad faith is effectively considered to be a good faith negotiation.

Item 6 strengthens the requirement to negotiate in good faith by including explicit criteria for the type of negotiation activities that are indicative of good faith.

Item 7 reverses the onus of proof so that the party that is asserting good faith is the one that is required to prove it, by inserting a new subsection 31(2).

Item 9 requires that a party may not apply to an arbitral body (under subsection 31(1)) until the party has first demonstrated good faith negotiations have taken place in compliance with sections 31(1) to 31 (2A).

Allowing profit sharing and royalties in arbitration

Under the current provisions of the NTA agreements struck during the six month good faith negotiating period concerning future acts such as mining or compulsory acquisition can include provisions for royalties or profit sharing. This is an important provision for traditional owners and their communities as it provides a basis on which they can promote and enhance the economic and social development of their communities through judicious use of their native title rights and interests.

However, if an agreement is not reached during this period and the matter is referred to the NNTT for arbitration, the provisions of section 38(2) actually prohibit the NNTT from making a determination that an act may be done subject to conditions of profit-sharing or the payment of royalties. This means that native title interests are placed at an unfair disadvantage in negotiations, as the proponent knows that if they are not inclined to share profits or pay royalties at the level they propose, they can simply force the issue to arbitration. This creates a fundamental inequality and places considerable pressure on native title holders to conclude an agreement within the negotiation period.

The current Minister for Indigenous Affairs Jenny Macklin has indicated that she strongly believes that Indigenous communities should be able to use their native title rights to leverage economic development¹³. The Victorian Government has also recommended that the NTA be amended to allow the arbitral body to make determinations about the profit sharing¹⁴.

Item 10 of the bill substitutes a new subsection 38(2) which provides that profit sharing conditions including the payment of royalties may be determined by the arbitral body in relation to future acts. This amendment allows that when a matter goes to arbitration similar conditions can be applied to those that may be agreed during good faith negotiations – removing this disincentive for proponents to reach an agreement in good faith and ensuring native title interests are not disadvantaged.

Strengthening coexistence by disallowing extinguishment

Another area where the NTA has failed to deliver is through the manner in which the bar on extinguishment has been set too low. This has meant that in practice the principle of 'coexistence' of native title rights, which is clearly envisaged within the NTA, is too often brushed aside or ignored.

Item 11 of the proposed amendments seeks to address this issue, by providing a mechanism to disregard extinguishment – which means that, at any time prior to a determination, the applicant and a government party can make an agreement that the extinguishment (or possible extinguishment) of native title rights and interests can be disregarded.

The current breadth and permanence of the extinguishment of native title through the provisions of the NTA is arguably unjustifiable, unnecessary and in breach of Australia’s human rights obligations.¹⁵

Chief Justice French provides the example of the vesting of a nature reserve on Crown land as one act which could be determined to have extinguished native title, where it would make sense to be able to disregard extinguishment and provide for an agreement between the traditional owners and the state to recognise native title rights in the interests of managing that reserve.¹⁶

Section 47 of the NTA provides a model for coexistence of native title and other rights on pastoral leases. The amendments in Item 11 are consistent with the current application of the NTA, and merely allow the existing coexistence provisions to be extended to allow extinguishment to be disregarded with an agreement in a wider range of circumstances.

Shifting burden of proof

In practice, the bar for the recognition of native title rights has been set too high – with the onus of proof of cultural continuity being placed on Indigenous people, and with evidence standards effectively mandating a reliance on the written accounts of European colonists that denies the predominantly oral nature of Indigenous cultures.

As the Australian Human Rights Commission argued in its submission to the 2009 Senate Inquiry:

"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 issue of prior occupation and hence the pre-existence of native title rights is not being questioned (as the preamble to the NTA readily acknowledges) and so under these circumstances it seems to be ‘fundamentally discriminatory’¹⁷ and a gross injustice to place the burden of proof upon the dispossessed. This is particularly true when we consider that it is State and Commonwealth Governments that have granted the rights that have lead to the possible extinguishment of native title, and that it is those governments who hold many of the historic records needed to establish connection.

The intent of providing for a rebuttable presumption of continuity is to shift the burden of proof in a way that encourages government parties (who must now take on the role of adducting evidence in their archives to rebut presumptions) to be more inclined to settle claims with a strong prospect of success – rather than dragging them out in the Federal Court as it is currently entitled to do.

Item 12 of our proposed amendments to the NTA seeks to address this issue, by putting into legislation amendments suggested by Chief Justice French¹⁸ that reverse the burden of proof to create a rebuttable presumption of continuity.

Moving to resolve more native title cases by consent determination could result in timelines being ‘…streamlined beyond recognition…’ and costs being ‘…reduced out of sight’¹⁹. However, as the 2009 Native Title Report points out²⁰, a respondent would still be able to defeat a native title claim due to the operation of section 223, by providing appropriate evidence.

Definition of ‘traditi