Monday, 14 September 2009
Native Title Amendment Bill 2009
I move Greens amendment (1) on sheet 5837:
(1) Schedule 6, page 52 (after line 5), after item 12, insert:
12A After section 61
61AA Presumptions relating to applications
(1) This section applies to an application for a native title determination brought under section 61 of the Act where the following circumstances exist:
(a) the native title claim group defined in the application applies for a determination of native title rights and interests where the rights and interests are found to be possessed under laws acknowledged and customs observed by the native title claim group;
(b) members of the native title claim group reasonably believe the laws and customs so acknowledged to be traditional;
(c) the members of the native title claim group, by their laws and customs have a connection with the land or waters the subject of the application;
(d) the members of the native title claim group reasonably believe that persons from whom one or more of them was descended, acknowledged and observed traditional laws and customs at sovereignty by which those persons had a connection with the land or waters the subject of the application.
(2) Where this section applies to an application it shall be presumed in the absence of proof to the contrary:
(a) that the laws acknowledged and customs observed by the native title claim group are traditional laws and customs acknowledged and observed at sovereignty;
(b) that the native title claim group has a connection with the land or waters by those traditional laws and customs;
(c) if the native title rights and interests asserted are capable of recognition by the common law then the facts necessary for the recognition of those rights and interests by the common law are established.
I indicated in my speech during the second reading debate that the Greens would be moving this amendment, which relates to the presumption of continuity or reverse onus of proof. I do not intend to take much time in the chamber, because I did argue my points in my speech during the second reading debate. While the Greens support the amendments in the bill, we do not believe they are going to make the substantive change that we want to see to native title.
I appreciate the Minister for Climate Change and Water’s comments about the need also for behavioural change. I accept that point. Given even that, I do not think we are going to see the major changes that a lot of people are seeking in native title. If we are going to see native title deliver the benefits that everyone has been expecting for the last 15 years from this legislation, we need to see substantive change, which is why we have put forward this amendment around the rebuttal of the presumption of continuity.
This amendment is one that Chief Justice Robert French, a past president of the National Native Title Tribunal, and many others have proposed in terms of delivering better outcomes for native title. This reverses the onus of proof so that native title holders do not have to prove continuity. There is a presumption of continuity. In fact, the state government and those opposing a claim have to prove otherwise.
I did articulate this argument in my speech during the second reading debate and I quoted extensively from the Australian Human Rights Commission, the Native Title Tribunal and Chief Justice French. The Chief Justice makes the point that the heavy burden on the principal parties to native title litigation is a result of these claims being proceedings conducted in the Federal Court. He says the resolution is to a degree constrained by the judicial framework, particularly its requirement that:
... applicants prove all elements necessary to make out the continuing existence of native title rights and interests within the meaning of the NTA and their recognition by the common law.
I think he argued very eloquently the need for some change to the Native Title Act. I commend this amendment to the chamber.
I believe that, if we are serious about delivering real outcomes from native title, we need to make substantive changes, not just the changes that the government is making. I am not critical of the changes that the government itself is making, but we do not believe they are going to make the substantive impact that we need if we are going to achieve real outcomes from native title. I ask the minister—and the minister referred to this in her summing up comments—is there a formal process of review in terms of the resources that are required and what is the time line for that review?