Wilson Tuckey (O'Connor, Liberal Party) Share this | Hansard source

I thank the member for Port Adelaide for not taking up his full time, because I feel I can bring quite a lot of good advice to the House on this matter of the  Native Title Amendment Bill 2009 simply because in my business career I lived in—and managed businesses, including hotels, in—a town that had at all times about one-third of its population being of Indigenous descent. I also happened to chair the backbench committee under the Howard government that discussed the amendments that the Howard government provided to the Native Title Act. That in itself involved quite a piece of negotiation amongst the variety of interests involved within the party.

We have here today another attempt to find a mechanism that delivers a speedy resolution of native title claims. I am not totally convinced that it will be any more successful than past attempts. My reasoning is not all that difficult to follow. When the bill for the act was first brought to this House, I think even the Keating government wanted to amend it but at that stage our leader, John Hewson, decided that we would support no amendments and would oppose the legislation lock, stock and barrel, so it was passed in its original form. The opposition has made the point that it wants to wait for the report from the Senate on the legislation before us and hold off its final decision until that occurs. I am hopeful that at that time the government will see the sense of an amendment to the right to negotiate provisions. It is one of the problems that need the attention of the government, and I do not know if it was all done deliberately or accidentally but, as I have said, my longstanding recollection is that the Keating government thought at the time they really should do something about it.

All parties involved in a native title claim bar one group are entitled to negotiate in good faith. The member for Port Adelaide talked about a court dealing with people who were not acting in good faith. But as the act prevails there is no obligation on the native title claimant parties to act in good faith or to negotiate in good faith. In fact, in my view it might best be described as the right not to negotiate. I have seen over the years numerous examples of that occurring and the only outcome of that has been that people have got more angry and the circumstances have not been the best. But, quite obviously, it will be otherwise if it is the view of the government that the Federal Court, with its increased powers and responsibilities, to which I am not an objector, can then in fact have the opportunity to say to any of the applicants or all those involved, ‘You will come to court and we will get this matter moving.’ That cannot happen today because under the act people do not have to turn up and they are not deemed to have been failing to negotiate in good faith. There is no obligation upon them to do so.

If one has had experience, as I have had, with Aboriginal families—and later I will comment a little further on the representations that I have had from Indigenous families within my own electorate—one would know that the first responsibility is to get them to agree amongst themselves. One of the changes with the 10-point plan was to require, for the first time, that there only be one applicant body; in other words, Aboriginal or Indigenous people had to sort out who was going to be the claimant. We had the situation previous to that of a claimant making a claim, successful or not—and if successful often that involved a financial settlement in those days—and then someone else would make a claim and somebody else had to make a financial settlement. Consequently, we amended that situation by saying, ‘Well, there can only be one claimant whatever that matter is.’ But this is the situation that arises before native title issues are settled. It is arguable that under this right not to negotiate there are better outcomes for Aboriginal opportunists in some cases to wait until someone has reason to develop a piece of land and then apply or threaten to apply for native title. Under the act they have a right in those circumstances to negotiate, ostensibly to protect their own interests and culture. But if they can delay a development for sufficiently long, there is usually a financial payment. With a much larger thing like the recent Woodside James Price Point arrangements in the Kimberley of Western Australia, the reality was that the newly elected Premier said, ‘Listen, Fellas, if you can’t come to an agreement I will’—as the 10-point plan provided—’resume native title.’ Because that is a law of the Commonwealth, it would have been resumed with compensation. The other fact that is misunderstood in all of this is that native title is not a right as to property, although that does apply in the Northern Territory, where the Fraser government created a law for the Northern Territory which actually granted property rights. Throughout the rest of Australia a native title right is a right of access and a right, on account of that access, to hunt and gather and to conduct traditional ceremonies.

As time has progressed, I think there has been a more generous view than that amongst many people, particularly in the mining sector, who are more than happy to look at the rights of Indigenous title holders and give them better opportunities in employment, better facilities and things of that nature, which is the outcome of proper agreements. But that is typically after native title is granted. The big problem that first needs to be fixed is that, where native title does not exist but the right to negotiate does, one party has no responsibility to negotiate in good faith. I will be encouraging my colleagues to see that that is changed as a major enhancement to these other measures.

But there are other aspects of native title that worry me considerably. For many people, I think it has created a cargo cult culture. Their expectations are beyond what it is likely to deliver. I think that is a pity. I went to Carnarvon in 1958, nine years before the Australian government had any constitutional right to do anything about Aboriginal people. You may remember the history of our Constitution, in which the founding fathers wished to implement the White Australia policy—under the pressure, I might add, of Labor members of parliament, who thought that the Chinese were going to pinch all their jobs. They therefore created a clause in the Constitution for the federal parliament to pass laws for people of certain race. The purpose of that was to tell them they could not come to Australia. Then someone said, ‘Oops. We’re not going to kick all the Aboriginals out,’ and someone else said, ‘We’ll put in “excepting the Aboriginal race”.’ That insertion forbad the Australian parliament from doing anything on behalf of or for the control of Aboriginal people. It was all a responsibility of state governments.

When I arrived in a town of 2,000 or 3,000 people with a local population of 300 or 400 resident Aborigines and a peripheral population of probably some thousands residing on station properties, which were typically their homelands, and serving as a labour pool in those days, everybody had a job. There was no welfare. Outrageously, you could apply as an Aboriginal person for citizenship of Australia. That was the situation, but people did not have the problems we know of today. They were hardworking and, in fact, at that time a major construction project commenced, building the road from north of Northampton, which is just north of Geraldton, all the way through to Onslow and onwards. The Carnarvon main roads department ran the job for that length of road, and their third in command was an Aboriginal person and very good road builder. A very large number of their skilled grader operators et cetera were Aboriginal. These people just got along. Their kids went to school and all the problems we read about today did not exist.

In 1967, with goodwill and with the aid of my vote—the only time I have ever voted ‘Yes’ in a referendum—the Australian people gave an opportunity to the Commonwealth government to be part of the process. I do not believe that we have done very well. I think there are numerous reasons for that. I promoted to our former leader John Howard the idea of reversing the funding process from tops down to bottoms up. I still believe that the local government financial assistance grants model is the best way to go, but one of the things it does, of course, is disadvantage the Aboriginal elite, and therefore that is a problem.

When one looks at the circumstances that exist, it is too simplistic to say that you can just give more power to the Federal Court. In principle, I do not oppose that, but we need to look at the details surrounding it. There needs to be an understanding that, firstly, the Aboriginal people have to get together and move forward together. If they do not, the court should have the capacity to say, ‘Delay is not acceptable. You have your rights to put your case.’

I am also somewhat of a critic of what I term the inventiveness that exists in tradition and culture. A lot of that, I think, is manufactured and not true—and certainly not true when I knew people who had scars on their chests. One of those people told me they never had a sacred site but had a lot of sacred objects. When one thinks of their nomadic existence, there was probably some truth in that. But I just wonder when the Akubra hat or a flag become part of a culture. They are not cultural things. And smoking ceremonies are an American Indian cultural issue. All of a sudden it sort of looks good because you see it in the movies.

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