Mark Butler (Port Adelaide, Australian Labor Party) Share this | Hansard source

I will not speak for long and I am sure that the member for O’Connor will get an opportunity to speak on this as well before we adjourn. The Native Title Amendment Bill 2009 is the most recent of a long line of legislation in this place that has dealt with the complex and often controversial question of native title, particularly since the 1992 Mabo decision finally rejected the legal doctrine that Australia was terra nullius at the time of European arrival and settlement a little over 200 years ago. This was a pivotal moment in Australia’s history, granting legal recognition of our Indigenous communities’ previous possession of Australia, and dispossession as a result of European settlement. It was also a recognition of the devastating consequences that have resulted from dispossession, which have reverberated through generations and are still keenly felt today.

The Native Title Act 1993 was the legislative response to the High Court’s decision in Mabo, introduced by the Keating government in the face of a very significant and at times vicious fear campaign about the threat posed by that legislation and the High Court decision to various types of property—ranging up to, and including in some cases in the fear campaign, suburban backyards, although it was quite clear that the Mabo decision did not involve any suggestions that native title would defeat existing property rights under the Australian and common-law systems. The 1993 legislation saw legislative recognition of those previous rights and the Indigenous Australian connection to the land in the pre-existing English and then Australian and common-law hierarchy of property rights that has endured since European settlement.

The act was a vital tool for restoring the cultural, social and economic benefits that that connection between Indigenous communities and their land brings and was a major step forward on the march towards lasting and true reconciliation. The preamble to the act states that the people of Australia intend:

… 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.

Sadly, I am sure that nobody in this House could argue that we do not still have a long way to go to fulfil the intention included within the preamble to the legislation.

This year marks the 15th anniversary of the Native Title Act coming into operation and taking force and, whilst there have been some successes, it is widely accepted, I think, that the process under that act is excruciatingly slow and complex for all parties involved. The delay that we have seen in the resolution of native title claims and the litigation that flows from those claims has resulted in millions of dollars being wasted, opportunities for reconciliation and development squandered, and the flourishing of distrust and disillusionment with the process by all parties involved, Indigenous communities and others with interests in the land. The prolonged delays in resolving claims have meant that some people have died while still fighting for their rights under the native title process and been denied the chance to see their native title recognised. If this situation continues, as I understand the position, the best estimate is that another 30 years will be required to resolve all current native title claims, not including any that come about in the future.

This government is committed to closing the gap between Indigenous and non-Indigenous advantage. The Prime Minister’s apology to the stolen generations gave the nation fresh impetus for renewing efforts in reconciliation and moving forward towards a more equitable future for all Australians, including Indigenous Australians. Getting the native title process right is an important part of that broader ambition that we have for our nation. Native title and its associated agreements are an essential part of closing that gap. Whilst the process for recognising claims struggles under the weight of protracted litigation, our Indigenous communities and other communities that have connection to the relevant lands are being further deprived.

This government believes that negotiation is more likely to produce results than litigation and that native title issues should be resolved by negotiation wherever possible. Negotiation is better suited to achieving timely and effective resolution of those claims. The adversarial system by its very nature is not conducive to encouraging long-term, productive working relationships into the future, which are often so important in ensuring that the land is used in a productive way. Frankly, negotiation and mediation have always been the intent and the spirit of the legislation.

My home state of South Australia provides an impressive example of what can be achieved through negotiation. Our state’s biggest native title determination was made in March this year, after many years of determined effort. It involved the recognition of the non-exclusive rights and interests of the Adnyamathanha people over more than 41,000 square kilometres of land in and around the Flinders Ranges. It recognises rights and interests including access to perform ceremonial or cultural activities, to hunt, to camp and to gather natural materials such as plants and ochre. These were consent determinations that resolved one claim and partially resolved another. The Indigenous land use agreement is currently being finalised for comanagement of Flinders Ranges National Park. The parties to the determination included 45 pastoral lease holders, mining and exploration companies, along with the Adnyamathanha people and the South Australian government.

Achieving this major determination without litigation not only shows the potential for negotiated settlement but, just as importantly, paves the way for future cooperation between all of the parties in managing the land and jointly exploring other economic development opportunities. As the Native Title Tribunal Deputy President Chris Sumner said:

This determination is an example of what can be achieved when all agencies involved in the native title process—especially the Federal Court, the Tribunal, South Australian Native Title Services, the SA Government and legal and anthropological advisers—work together in a co-operative way, which is a feature of native title negotiations in South Australia.

Our government wants to see all of the country following South Australia’s example, and this bill aims to facilitate that. The government believes that broadening the scope for mediation whilst tightening case management, a much-needed step in this area, will increase flexibility and efficiency, resulting in more timely and effective negotiated resolution of claims.

A key aspect of this bill is to amend the act to give the Federal Court a central role in managing native title claims. The Federal Court, as we know, has vast experience in alternative dispute resolution in a range of different areas of the law. The Federal Court will henceforth, if this bill passes, oversee case management of the native title claims. The Federal Court can provide transparency, independence, accountability and competency that is vital to maximise faith in the native title process, deliver results and fulfil the hopes and aspirations of native title claimants and other involved people. By centralising control over case management in the Federal Court, opportunities for resolution can be more easily identified, deadlocks can be worked on more efficiently instead of being left to fester, a more focused approach can be pressed upon the parties by the court if one or more of the parties is dillydallying and issues in dispute can be more readily identified along with options to further progress the claim’s resolution.

As part of its central role, this bill allows the Federal Court to refer the whole or any part of a proceeding for mediation to a court mediator or to the Native Title Tribunal or another individual or body. It provides a flexible and responsive approach to mediation and allows the court to use the most appropriate form of dispute resolution according to the circumstances of the case. The court will continue to utilise the Native Title Tribunal’s experience and specialist capacity without relying on it necessarily as the only available mediating body. The Federal Court will better coordinate, prioritise and allocate resources for mediation than currently is the case. The success of negotiating agreements through mediation depends heavily on the good faith of all parties involved. Without a cooperative approach and sincere efforts from all, very little can be achieved. One of the court’s new roles will be to assist in identifying parties who are acting in bad faith and pulling them into line.

The bill will also enable the court to make consent orders—and I stress ‘consent orders’—about matters beyond native title that might be conducive to a positive working relationship between all parties. This could include agreements relating to economic development opportunities, training, employment, heritage, sustainability or existing industry principles. Permitting the court to assist in the resolution of native title and other matters at the same time will foster future cooperation and agreement, hopefully to the benefit of all parties.

The bill will also give the court discretion to rely on agreed statements of facts between some or all of the parties. At a minimum, this agreement must be between the native title claim group and the principal government concerned but can also be between a range of other parties involved in the claim.

This bill also seeks to broaden the scope of claimants utilising the recent changes to the rules of evidence introduced by this government in the Evidence Amendment Act last year. This has the potential to greatly assist native title claimants with giving evidence relating to traditional laws and customs. In particular, amendments to the hearsay and opinion rules recognise those rules’ incompatibility with providing evidence on the existence of traditional laws and customs. This shifts the focus away from legal technicalities to the more pertinent issues—and, frankly, more reliable issues—of reliability and weight. In order to ensure that native title claimants reap the most benefit from these changes, this bill will make exceptions to the transitional provisions so that the new rules relating to evidence can apply to proceedings initiated prior to 1 January 2009. This bill will also streamline processes dealing with the recognition of native title bodies that can be involved in the resolution process. Experience has shown those bodies to be a very important part of successful claims.

The whole thrust of this bill is to facilitate a more cost-effective, efficient and timely native title process that focuses on negotiation rather than litigation to achieve results. The government has consulted widely on the amendments and there has been wide-ranging support for what is proposed in this bill. A discussion paper was released by the Attorney-General and distributed to over 70 stakeholders, although we accept there is still more to do than this bill presents. This bill is part of an ongoing process of reform in consultation with Aboriginal and Torres Strait Islander peoples to make real and lasting improvements that achieve the original intent of the act 15 years ago.

The bill before us today, together with renewed efforts by all parties to work constructively together to further the interests and the intent of those the act was intended to benefit, can make some much-needed improvement that will enable a more flexible, effective and timely response to determining native title claims. I commend the bill to the House.

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