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

With regard to the Native Title Amendment Bill 2009, which proposes to shift more responsibility to the Federal Court for native title matters, I wish to conclude my remarks by saying that a change to the legal arrangements will not succeed without a change to the administrative arrangements, and I spoke at some length on that in my speech last night.

At the moment, significant to all these matters, are the so-called representative bodies, the land and sea councils. Every one of them associated with my electorate is dysfunctional and in fact cannot even resolve its own matters within its proceedings. In the north, theYamatji Land and Sea Council has come under severe criticism through representations in my office from Aboriginal people who want to see it resolve certain native title matters and certain issues of approval of mining projects et cetera, because they see employment and contracting prospects associated with them. It is a mess.

In the south of my electorate I have the South West Aboriginal Land and Sea Council, that has not even been able to resolve, over two years, the transfer of a tiny piece of land to the local fire brigade so that they can build a shed to house a brand new piece of firefighting equipment very necessary to the adjoining community. We are going to end up with some people getting killed because other firefighting appliances cannot be relocated there in a hurry, depending where the fire is. Fires have a habit of blocking off the access road when they occur. That is how bad the situation is and that administrative process needs to be changed.

We have another problem with land rights, which concerns the intervention of other people, other interest groups that tend to exploit native title to oppose something that they do not like. The classic example, which would be known by the next speaker, I think, is Hindmarsh Island. This House was rent apart by a campaign of white people utilising native title issues to prevent a mundane and, what was really otherwise, an uncontroversial land development. It now exists and I do not see any Aboriginal person now being unable to have a family, as was predicted at the time.

We have the tragedy of the INPEX decision in Western Australia, which has denied the people—the collective of Western Australia—millions and possibly billions of dollars of revenue. That revenue might have built hospitals and schools and other things through the payroll tax just in the construction of that project. Furthermore, the Commonwealth has become a loser of resource rent tax. From the minute the developers of that field put in a pipeline to the Northern Territory—with, of course, huge emissions in Japan or wherever that lengthy pipeline is constructed, and with the ongoing emissions and the necessary extra energy required to pump the gas—the Commonwealth were the loser.

Now, all of a sudden, the new Premier has used the law as it is written and might be determined by the Federal Court in the future, and the next such decision has been passed in minutes. Why? Because the so-called representative group was sidelined by the native title owners. The native title owners had their own vote this time and voted 90 per cent. Again, that dysfunction cannot continue.

Of course, we have the arrogance of the self-interest groups that intervene and people who say, for instance in the town of Broome, ‘Oh, we don’t want development; we want the other taxpayers of Australia to provide us with the Flying Doctor Service, a good hospital, roads and everything else you like but don’t you dare have some development up here that might in some way affect us.’ Missy Higgins the singer got into the act. She has a house up there, which I believe is tax deductible and one that she uses to get the sorts of feelings she needs to write things. These people should not be there. The Maret Islands, where INPEX wanted to go, has not been inhabited for years but suddenly the Kimberley Land Council starts flying people out there on a daily basis to prove that there was some interest by the Aboriginal— (Time expired)

Daryl Melham (Banks, Australian Labor Party) Share this | Link to this | Hansard source

I have great pleasure in rising to support the Native Title Amendment Bill 2009. Before I go to the substance of the bill, it is important to give a little bit of history.

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

I did that last night, Daryl!

Daryl Melham (Banks, Australian Labor Party) Share this | Link to this | Hansard source

I have no problem with the honourable member for O’Connor engaging in a little history; what worries me are those who seek to rewrite or distort history. History is generally given by the winners, and the losers tend to be the ones who struggle. In many instances Aboriginal people over the years have been the losers and they have not been able to get their story out. In terms of native title, it was a Labor government that was in power at the time of the original Mabo decision. What the Labor government did, and I was a member of the government at that time, was to try to stick with the principle of the recognition and protection of native title. Indeed, the Attorney in his second reading speech talks about the key objective of the government being to try to resolve issues through negotiation where possible rather than through litigation. If one goes to the preamble of the original Native Title Act they will see that that was the whole basis of the act. Rather than go through the common law, have litigation and knock-down, drag-down court cases that cost millions of dollars and where only the lawyers are empowered and enriched, we attempted to set up an alternative system of mediation and negotiation.

There is no doubt that it was legislation that was evolving in an area that was largely unsettled and unknown. But the principles were: protecting native title and providing this alternative system. If you wanted to be involved in native title, in terms of mining and pastoral activities, there was a process. It was always recognised that the legislation would need to be amended, that it would not be the final resolution of the matter because there would be court cases and there would be evolution and we would learn from experience. It was always the view of the Labor Party that there were certain principles to maintain. In the end, we acted in a non-racially discriminatory way in terms of that legislation. The then Prime Minister, Paul Keating, needs to continue to be commended for the way he conducted himself and his government in those years. History will treat him very kindly because he ended up with a principled, balanced response.

Certainly, there was validation in relation to titles. I do not want to go into all the details of that but, with the change of government in 1996, you had a government that was hostile from day one to native title. It had been hostile in opposition and as a result of the Wik decision brought down 400-odd pages of legislation with bucketfuls of extinguishment and basically constricted the way that native title claimants and others would be involved. Is it any wonder that whilst there has been a number of issues resolved both in the courts and by way of mediation, a lot of money has been spent strangling the system, trying to deny native title claimants their rightful due. One of the ways of doing that was in effect strangling representative bodies in terms of funding.

One of the good things in last night’s budget is that an additional $50 million, over four years, has been allocated by the government to the native title system. That is consistent with the legislation before the parliament at the moment—to help build a more efficient system that focuses on achieving resolution through agreement making rather than through costly and protracted litigation. And mining companies know this, because in a number of instances they have funded Aboriginal groups so they can resolve native title claims. What we have here is additional funding—$45.8 million—to improve the capacity of the native title representative bodies to represent native title claimants and holders. A further $4.3 million will be allocated to improving claims resolution by working with state and territory governments to develop new approaches to the settlement of claims through negotiated agreements.

We are along the way. I am pleased. I understand that the opposition is supporting this particular piece of legislation. Hopefully, post the Wik resolution or the legislative resolution by the former government, instead of dealing with this matter in a combative way we as legislators can deal with it in a conciliatory way so that we can build on what gains have been made and improve those situations or systems that are not working.

What this legislation will do is:

… amend the Native Title Act 1993 to implement institutional reform to give the Federal Court of Australia a central role in managing native title claims.

One reason for that is the central role at the moment of the Federal Court system in dealing with native title claims. This will allow courts to be better involved.

As I understand it—and I am relying on the Parliamentary Library’s Bills Digestduring the Native Title Claims Resolution Review there was a difference of opinion between Graham Hiley QC and Dr Ken Levy. Dr Levy disagreed—and probably still does—with Mr Hiley on who should have ultimate control of native title alternative dispute resolution. He felt it should be the tribunal, and I think the former government agreed with that. But the current government is of the view that this has not worked to create an efficient native title mediation process and has made a policy decision to follow Mr Hiley’s recommendations to give the court mediation powers. Interestingly, the court will have an ‘overseer of workload’ role as well as a role in the mediation process through the registrar, deputy registrar, district registrar or deputy district registrar of the court. In relation to the mediation role of the Federal Court, Andrew Chalk, a practitioner in the field, commented that it is not without criticism, saying:

One complaint made against giving the Court control of the mediation process is that the judges, because of their very independence, are apt to be inconsistent in their approach.

However, he says:

… the Federal Court, with its collegiate appellate structure, national allocation of judges and Commonwealth jurisdiction with powers of cross vesting, is suited to developing consistent national approaches that are still sufficiently flexible to have proper regard to the circumstances of particular States, regions and matters.

It is acknowledged by many people that the current system of having the tribunal manage all the mediation process has not worked to produce efficient native title outcomes.

At this point can I make a comment on the new Chief Justice of the High Court, Justice French. He is someone whom I had a lot to do with in the late nineties when I was shadow Minister for Aboriginal and Torres Strait Islander Affairs and he was President of the Native Title Tribunal. I think he is a very decent, honourable human being and will bring expertise to the High Court, certainly in relation to his experiences as President of the Native Title Tribunal. I notice that he made a speech recently in relation to some of the evidence that might be required to establish native title claims.

What I am pleased about is that there was not an outcry after he made that speech—that, in effect, we are having discussion and debate across the spectrum and that we are sticking to the facts; we are not getting blindsided by either side. I think this shows that in this area we are maturing, hopefully, which will be to the benefit of not just Indigenous people but our nation. For too long, a lot of this debate has been as a result of ignorance and prejudice, which has sidelined proper policy. It is good policy to evolve to the point where we are bringing the Federal Court into this more and more, as is proposed through this legislation.

I am not saying that this is going to be an easy road—it is not—and I am not saying that Indigenous people are necessarily going to achieve everything that they seek, but that is the case in the court system in general. In the civil system, where people make claims in relation to negligence, defamation or whatever, you set up a system where people can test the validity of what they are claiming. In this instance, I think that governments at all levels—and the general community too—are realising that it is in everyone’s interest to try to encourage people into the mediation and negotiation stream for resolving conflict, as against the litigious stream, which does not suit anyone. I think that we are better for that—it is like an alternative dispute resolution, which is what the Native Title Act was originally set up to do.

The Native Title Act, and its associated processes, was enacted because miners and farmers wanted certainty. They did not want common law claims that would be locked up in the courts for as long as 10 years or more—look at the history of the original Mabo case and how long it took for that to be resolved. The system evolved as an alternative to common law, and that is what we need to continue to refine. In terms of mediation, I cannot see how involving the courts in what we are proposing in this legislation can be anything other than good, because they carry a status, a stature. I do not accept that they are necessarily divergent. We are all divergent in our views. I know that among people involved in the tribunal there are divergent applications. That is human. But, when you have cases resolved on certain principles coming into the system, people have the principles on which to work. You then have less deviation from individuals concerned, if they are doing their duty properly. My view is that it is not about being a total bleeding heart or about being hard-headed. You have to have an underpinning for your decision for the system to maintain its credibility.

As I said, I can understand that those opposite might want to attack the land councils or the native title representative bodies, but I say to them: I was a criminal defence lawyer by trade before I came into the parliament, which was a bit more black and white—as to what might constitute a murder or whatever—than being a native title practitioner working with an evolving law in its early stages and trying to get the quality and expertise on the ground across the whole of Australia.

The honourable member for Kalgoorlie and I were on the then House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs and we looked at a lot of these land councils and saw variable quality—good, bad, ugly and indifferent. They were not all bad, but, when you look at what they had to work with, let me tell you it was pretty hard for some of them. They were underresourced. Of course there are divisions in Indigenous communities. There are divisions in non-Indigenous communities. There are competing claims—you have disputes over family wills and inheritances where people are included or left out—but there are processes to resolve those claims. Part of the problem goes back to the original structure of the Native Title Act. I do not know how thoroughly it was considered at that time, but there might have been an argument that native title claims should be made through rep bodies so that a lot of the dissent was filtered out before claims were advanced. That was an alternative, but there are arguments against that which are pretty apparent, where people could be locked out in power struggles in certain communities.

It is not a perfect act, but I think this amendment bill heads in the right direction and the government has put its money where its mouth is. The objective of the funding is to make sure that these bodies receive some assistance in arguing their cases.

The interesting thing is that in the old days we would have just heard shrill from some opposite. There is still a little bit of shrill, but not to the extent that there once was, and one has to recognise that. I quote the preamble to the explanatory memorandum:

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

That is what I think this bill is all about. I am not frightened of judges being involved in the process. Indeed, I was very happy at the time that His Honour Justice French was the President of the National Native Title Tribunal. I know that he had a difference of opinion with the then government around some of the misinformation that was put out there and allowed to run in the community, but, in my view, the fact that he was a judge added to that position and he acted honourably. That is why I do not accept the argument that, with the involvement of the Federal Court, you will get a variation in the dealings of native title to the extent that judges should not be doing it.

I have great respect for our judiciary. They make mistakes, like the rest of us, but their mistakes are mistakes in good faith. They are mistakes of judgment, which all of us make, but the interesting thing is that what we are talking about here is not a judicial settlement in the sense of a judgment; it is a negotiated settlement where agreement is reached through conciliation. It is not a judicial pronouncement; it is the Federal Court providing a little guidance and assistance, as I read it. It also needs state and territory governments to step up to the plate, because too often at a federal level—and this was true, I think, of the former government—settlements were sought but the states were a bit intransigent in their attitudes.

I have spoken a bit longer than I had planned, but when I get on to native title I tend to take a bit longer because it is something I have followed since 1993—not from a personal point of view, but it is something I believe we need to handle sensitively, depoliticise and get right to the best of our ability. I would like to see the opposition and the government in the cart together. We want long-term solutions. The worst thing in the world is getting contentious amendments every time there is a change of government. That does not help anyone and it certainly does not help Indigenous people.

In summary, the amendments:

• require the Court to refer all native title applications for mediation, subject to exceptions in line with current provisions
• allow the Court to refer a whole or any part of a proceeding for mediation to a Court mediator, the NNTT or another individual or body
• allow the Court to consider the relevant training, qualifications and experience of potential mediators
• allow the Court to cease a mediation in a number of situations in line with current provisions and add a new ground where it considers it appropriate, the Court may also refer it to another mediator following a cessation order
• allow the Court to make any orders about the way in which the mediation is to be provided, what assistance may be provided to the mediator or any other matter it considers relevant when referring a matter for mediation, and
• allow the Court to refer for review by the NNTT the issue of whether a native title group that is a party in the proceeding holds native title rights or interests.

And there are other amendments. I do not think there is anything there that any of us can disagree with. (Time expired)

Barry Haase (Kalgoorlie, Liberal Party, Shadow Parliamentary Secretary for Roads and Transport) Share this | Link to this | Hansard source

I rise to speak on the Native Title Amendment Bill 2009. Native title is the recognition by Australian law that some Indigenous people have rights and interests to the land that come from their traditional laws and customs. Native title is a critical matter in my 2.3 million square kilometre electorate. In addition to having vast mineral and energy resources, much of which are yet to be developed, more than 18 per cent of the people in my electorate are Indigenous. I will explain more about native title in my electorate a little later.

Let me first refer to the comments by the member for Banks. Among other things, he admitted that among the Australian population there was a great deal of ignorance about and a great deal of hesitation in their knowledge of the detail involved in native title legislation. The member for Banks has admitted that this legislation and the act is not perfect. In that regard, I agree with him wholeheartedly. I say from the outset that in principle I support this legislation. I have been, as the member for Banks mentioned, with him a member of the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs. I was also a member of the joint standing committee on native title. If there is any need for me to indicate my credentials in this matter, having grown up in rural Western Australia, I have spent my whole life in association with Indigenous people.

The Commonwealth Native Title Act 1993 came about following the well-known decision of the High Court of Australia in Mabo v Queensland in 1992. In that particular case, what the High Court was dealing with was primarily the issue of whether native title ought to become law and whether it was something that needed resolution at the time. The Australian people, broadly, were very much in favour of resolving that issue.

But the process of resolution of the boundaries—the delineation of land that might be covered or ruled upon by courts—in the Mabo situation was much easier, so much easier that it was almost a different world. Certainly, it was an environment in which there had been little impact by European occupation, and the association with the land on an ongoing basis by Indigenous peoples had been consistent. However, governments of the day—and subsequent governments, I confess—thought it was sufficient in 1993 to introduce the Commonwealth Native Title Act. It was broadly applied to the mainland of Australia for the resolution of issues where claimant groups were identifying themselves and laying claim to particular country. Then the Native Title Tribunal and the Federal Court were expected to make determinations on these matters.

At the time of the introduction of the act, there was an all-pervading point of view that said: ‘Native title and the introduction of the act will be a panacea of all ills, the solution to all problems, almost nirvana for Indigenous people in Australia. All they will have to do is prove their association with the land on an ongoing basis according to the act and all problems will be solved.’ There was a great and ready acceptance of that belief, of that propaganda. I call it propaganda because it was nothing less than propaganda.

It was something promoted broadly by ignorant suburban populations, mainly in south-eastern Australia, who wanted their collective conscience eased by the introduction of this act so that they could sleep nights secure in the knowledge that Indigenous people who had been wronged in the past by European occupation would now have all of their problems solved. So the message was sent out by the law fraternity and those associated with it into communities that money would be forthcoming to push the cause and to find resolutions and that milk and honey would flow as a result. That was 16 years ago.

I am yet to find in my 2.3 million square kilometres a decision on native title that has created any good whatsoever. Money has flowed, compensation has flowed, royalties have flowed and go away money has flowed. All manner of cash resources have come into communities. All manner of committees and associations have been set up, with a great hierarchy of leadership, committee members et cetera. Infrastructure has been created on community as a result of the settlement of native title and determinations by the courts about land use agreements and access to country by mining companies—exploration companies in the first instance and sometimes active mining companies. But I have never seen anything good. I have not seen change to the point where Indigenous lives have been improved by determinations of native title. They have certainly not been improved by the introduction of the act in 1993.

On the other hand, what I have seen is whole cohesive families torn apart. I have seen communities commit murder as a result. I have seen the largesse of expenditure of these cash funds that I talk about create death or at least long-term ill health and huge costs to successive governments in relation to curing Aboriginal health problems created by an excess of various drugs—alcohol and other chemical drugs—and excess generally. The worst thing, I believe, has been the destruction of the harmonious community aspect of family life. You might say that I am suggesting that ignorance is bliss—I am not for a moment. But the conditions that existed pre the myth of native title were, in the majority of cases, much better than the mayhem that has been created since. Those are the circumstances that exist today.

These amendments that we are speaking of are another hope, out of goodwill, I am sure, shared across the chamber, that we will make the 16-year-old dream become a reality—we will make these amendments and once again everything will be put right. I do not believe it for a moment. I am not going to oppose these amendments, because they are a bit like throwing a handful of wheat at a shed—something just might hit. Even the discussion of this issue in the chamber today just might make people think. It just might stop aunties, cousins, mothers, fathers, sisters and brothers from being at each other’s throats because somebody has been excluded from a claimant group, because some wet-behind-the-ears anthropologist has come into a community and made the determination: ‘The line will be drawn here. This group will be beneficiaries. They will be part of the native title claimant group. This group will not.’ There is as much chance of that determination being real, accurate and embracing of reality as there is of me picking up a couple of squillion dollars—it is just not going to happen. We are talking about cultural circumstances that go back thousands of years. What is your estimate—30,000 years, 60,000 years? We are talking about a culture that once upon a time was ingrained into the minds of all Indigenous people that occupied the land. That was about 200 years ago and, since then, so much has happened.

The determinations that are made today by well-meaning individuals about who will and who will not be part of a claimant group are creating mayhem in communities. I have a constant path to my electoral office door of complainants who have been left out in the cold. The stories are numerous.

Don Randall (Canning, Liberal Party, Shadow Parliamentary Secretary for Energy and Resources) Share this | Link to this | Hansard source

James Price Point.

Barry Haase (Kalgoorlie, Liberal Party, Shadow Parliamentary Secretary for Roads and Transport) Share this | Link to this | Hansard source

That is the most recent occurrence. The stories are: ‘I was excluded. Mrs X has just received her royalty cheque and I’m getting nothing. It’s not fair. The person that’s administering the distribution of the funds is corrupt; they’ve got their own family on that group and they are getting all the money and we’re not. They’ve got a new air-conditioner, washing machine, Toyota’—or whatever—’We’ve been excluded. We live in poverty. We’ve been ignored by the courts. We’re the real people; all of these remotely Indigenous people that have got a bit of education have swamped and snowed our legitimate claim.’ The stories go on and on and on. We are led to believe by the government today that these amendments are going to, once again, create nirvana. It is simply not true.

Much needs to be done in relation to this act to change the public colour behind it, to change the philosophy behind it, to change the attitude of those who milk it dry for everything it is worth, including this latest $50 million. I can see those in the industry saying today, ‘Will I put another metre or two metres on the yacht?’ There has been a great deal of good done by this in 16 years, and it has all been for whiteys, whiteys who are milking this act dry for every last cent they can get.

The member for Banks talks about being proud to be part of the legal profession prior to entering this place. I am sure he is. I am sure that it is an honourable occupation and it does much good, but it has certainly also got a free ride on the back of this 1993 act. For 16 years governments of different colour have been feeding funds into that system and lawyers are continuing to enjoy a lifestyle that they would not otherwise be entitled to—they would actually have to get out and do some real, hard work. To say that I and the majority of my people are disappointed with the Native Title Act is an understatement.

Before we are sat down by time, a few stats were mentioned by previous speakers. From 1997 to 2006, 81 determinations were made and 600 were waiting to be made. The cost to taxpayers was $900 million, or some $11.1 million per determination. There are currently around 500 claimant applications to be determined. Of those, 100 are in Western Australia and most of those are in my electorate. I digress for a moment again. There are 100 determinations waiting regarding native title in Western Australia. Can we collectively imagine how many billions of dollars of investment are being held up and how many hundreds, if not thousands, of local jobs are not being created because these determinations are being held up? What gets in the way of these determinations? The process—the claims and counterclaims by individuals as to the correctness of the identity of the individual establishing their right as a member of a claimant group.

I digress further. When the Mabo issue was around, the people of Australia were incorrectly assured that the boundaries dividing one claimant group, one kin group, from another in Australia were so easily defined that every Indigenous person in Australia knew of these boundaries. They were assured that determinations would be made readily—that some mediation may be required but basically determinations would be made quickly and easily—because everyone knew where the boundaries were, just as they did in the Mabo situation. But historians who know their stuff will tell you, and demonstrate it very clearly, that the drawing of boundaries in the Torres Strait and the establishment of boundaries on the Australian mainland are chalk and cheese. There is absolutely no comparison, and that is the basis for all of the delays in making determinations.

So mining companies, explorers, are being absolutely frustrated by this act in getting equipment onto country, developing resources and providing jobs so that Indigenous people can get off welfare and become independent and enjoy all of the benefits of self-sustainability. That is what we really want for Indigenous people. Certainly on this side of the House we do not want Indigenous people to be captives of the welfare system and dependent upon the government for handouts. We would like them to stand alone. We would like them to be proud members of the Australian working community, not tethered to a welfare cheque which some would believe philosophically ties them to vote in a particular way. So we need to resolve these 500 claimant applications. We certainly need to get those that determine outcomes for mining companies well and truly resolved so as we can provide jobs.

Historically—this is something we can really look forward to; this amendment today is endeavouring to convince us that all this will change—the average time to process an unopposed native title claim, notwithstanding that there is almost no such thing these days, has been 12 months, for determinations by consent it has been five years and nine months and for determinations by litigation it has been seven years. So if a mining or exploration company fronts up in good faith, tries to identify those in a community who might legitimately speak for country—and that is an ongoing practical problem, because once a deal is struck today another mob stick their hand up and say, ‘You got the wrong people; you’ve got to now compensate us as well’—and eventually gets onto country and carries out all of the surveys necessary, at huge cost to that company, and then strikes something that is worth having, we are now expecting them to hang around for seven years before shareholders can get a return by developing a resource in the ground. It is la-la land. And it is preventing jobs. That is what we ought to be talking about here. If we really want to ease our collective conscience in Australia, we ought to be about creating jobs for Indigenous people.

In conclusion, I simply reiterate that the act of 1993 made great changes in Australia, and the aspiration was to improve the lot of Indigenous people. It has not done that. Irrefutably, it has not achieved what it set out to achieve. We make amendments in this House today in an endeavour to achieve what we set out to 16 years ago. I do not believe the amendment will make the improvement of the situation as we expect, but it has focused our attention on the subject once again, and that cannot be a bad thing. But this is an ongoing problem that needs a real solution. It does need bipartisan support. I sincerely hope that in the future Aboriginal people will have jobs in this community. (Time expired)

Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

in reply—I would like to thank members for their contributions to the debate on the Native Title Amendment Bill 2009. I would also like to thank the Senate Standing Committee on Legal and Constitutional Affairs for its detailed consideration of the bill. I note the shadow minister and member representing the shadow Attorney-General is also present in the House, and I extend my appreciation.

The Native Title Amendment Bill 2009 will amend the Native Title Act to contribute to broader and more flexible negotiated settlements of native title claims. The key amendments to this bill support the government’s main objective for the native title system of resolving issues through negotiation rather than litigation. As I said when I introduced the bill, native title can provide an important avenue for economic development for Indigenous people. It should be about more than just delivering symbolic recognition. However, it is also clear from reports of the Aboriginal and Torres Strait Islander Social Justice Commissioner, and the comments of individual judges, that the system is in need of reform. It is unacceptable that, under the existing native title system, on current estimates it may take more than 30 years to clear the backlog of claims. Indeed, the previous speaker spoke of process being an impediment to resolution. We are certainly trying to address that.

The passage of this bill will give the Federal Court the central role in managing all native title claims, including deciding who mediates the claim. The reforms will draw on the court’s significant alternative dispute resolution experience to achieve more negotiated outcomes. The government believes that the Federal Court is in the best position to work out how a case is best resolved. This view is supported by an overwhelming number of stakeholders in the native title system. Having the court, with the authority that it brings, actively control the direction of each case will mean that opportunities for resolution can be more readily identified. This change is in line with the stakeholder feedback and is consistent with the government’s position when in opposition. These changes also reflect the recommendation of Mr Graham Hiley QC, one of Australia’s most respected native title practitioners, when he reviewed the native title system in 2006. The value of this change was concisely summed up by the Federal Court in its evidence to the Senate Standing Committee on Legal and Constitutional Affairs last month. Warwick Soden, the chief executive of the court, said:

… being seen and being given the responsibility and accountability for managing all of these cases will put an emphasis on the judges to find ways to resolve some of the bottlenecks … The big, fundamental difference between us and the tribunal—

that is, the Native Title Tribunal—

in relation to that issue is what the judges can do by way of orders of the court, from the powers that they have, which may put some real pressure on the respondents to change their attitude …

For example, the court’s innovative approach in consent determinations in several South Australian claims demonstrates its active and creative approach. I do not accept the criticism made by the Native Title Tribunal in evidence to the Senate legal and constitutional committee that these amendments may make the system more ad hoc, less effective and more costly. The government has confidence in the ability of the Federal Court to provide a nationally coordinated approach to the resolution of native title. The court has indicated that following the passage of this bill the current practice of each list judge convening regional call-overs of all cases will continue and be improved where necessary. It will also be able to request regional reports from mediators as necessary. The court has also made clear that it will be approaching native title claims in a consistent and nationally coordinated way, drawing on a team of specialist lawyers within the courts across Australia.

Other amendments in the bill aim to encourage and facilitate more flexible negotiated settlements. A majority of stakeholders who responded to a discussion paper that I released in December last year supported these amendments.

Importantly, the passage of the bill will enable the court to make consent orders on matters other than native title. This will allow outcomes to extend beyond the bare recognition of legal rights. They can include sustainable benefits that deliver improved economic and social outcomes for current and, importantly, future generations of traditional owners. This bill also empowers the court to rely on an agreed statement of facts in consent determinations. This is intended to allow for greater efficiency in the native title process. Last year I introduced the Evidence Amendment Act 2008, which, among other things, will make it easier for the court to hear evidence of Aboriginal and Torres Strait Islander law and customs, where that is appropriate.

This bill also includes a number of amendments to part 11 of the Native Title Act, which deals with representative bodies. The main aim of these amendments is to streamline the processes involved in the recognition and re-recognition of native title claims representative bodies.

I would now like to address some specific comments raised by members. In his speech the member for Lyne foreshadowed an amendment to the bill and I have had the courtesy of some discussions with him. I respect his view and I acknowledge the genuineness of his position. In particular, he has proposed an amendment along the lines of that proposed by the Chief Justice of the High Court, His Honour Mr Robert French, to reverse the onus of proof in relation to connection, essentially based on the thesis that there is a presumption of regularity if that continued association is established. As I indicated in my second reading speech, I share the member for Lyne’s great frustration about the grinding slowness of native title claims and that has also been echoed by a number of speakers.

As I have previously indicated I also have an open mind to further legislative change that may facilitate resolution of native title claims. However, the government will not rush into such changes without first consulting stakeholders. It is very important that there be genuine community support for measures that are after all designed to or intended to promote the welfare of Indigenous owners and their descendants. Without such consultation history shows that changes can be controversial and counterproductive.

Let me briefly state the issues raised by opposition members of the Senate legal and constitutional affairs committee in their report. The first point made was that nothing in the amendments passed in 2007 limited the Federal Court from doing what these amendments seek to allow it to do. That is not the case. The 2007 amendments created a mandatory referral to the tribunal and provided the tribunal with an exclusive mediation role with no time limit. These changes in the current bill mean that, rather than automatically referring every case to the National Native Title Tribunal for mediation, the court will decide which individual or body should mediate in each case, and there have indeed been some outstanding mediations in recent times conducted by persons other than the tribunal.

The amendments will also allow the court to make orders concerning a mediation at any time after it has been referred to the mediator. Orders might address the way in which the mediation is to be conducted, whether the person conducting the mediation may be assisted and any other matter the court considers relevant; for example, orders could include reporting dates, the specific issues that should be mediated and any other issues that would complement the court’s management of the matter. This would provide the court with flexibility in allowing it to make any orders it deems necessary to manage each native title matter.

Secondly, the opposition senators expressed the opinion that the Federal Court’s capacity to direct the tribunal may result in confusion about respective powers. The government considers that the bill makes clear the respective powers and functions of the court and the tribunal. It is envisaged that the court would refer a matter to the tribunal and then the tribunal president would refer it to a specific member. Therefore, no conflict should arise between the court’s and the tribunal president’s powers.

Thirdly, opposition senators expressed the view that giving the court unlimited discretion could result in serious unintended consequences. I do not believe that this will be the case. Under the amendment the court will have the central control over the management of all native title claims. The government is confident the court is well equipped to choose the most appropriate mediator for each case. The court would be able to allocate matters to mediators who, over time, proved that they could achieve good outcomes and establish faith with claimant and respondent bodies. In exercising this discretion the court would be able to match the best mediator with the substance of the particular matter without being limited to the tribunal.

Finally, it was suggested that there had been inadequate consultation with respect to this matter. As I have indicated in both my second reading speech and in this response, that is not the case. There has been widespread consultation, including consultation with stakeholders, the National Native Title Tribunal and the Federal Court of Australia.

In conclusion, the key objectives of this bill are to improve the operation of the native title system and the outcomes that parties can achieve in that system. The amendments aim to foster broader, quicker and more flexible negotiated outcomes for native title claims. The Rudd Labor government is committed to improving the native title system. The amendments in this bill combined with the behavioural change of all participants in the native title system will bring about important and necessary changes in the native title system. This will lead to less delay and reduce costs for parties. The beneficiaries will be not only the claimants, particularly as a result of broader settlements, but all participants in the system. I commend the bill to the House.

Question agreed to.

Bill read a second time.