Monday, 11 September 2023
Legal and Constitutional Affairs Legislation Committee; Reference
I rise to speak on the motion of Senator Hanson as amended regarding native title. To commence my remarks, there is significant merit in paragraph (b) of Senator Hanson's motion. In fact, if Senator Hanson had merely moved paragraph (b) I could assure you that the Liberals would have easily been able to support it. The issue we have in paragraph (a) is it is legally problematic. One concern we have is that it could lead to an increase in litigation. So on that basis, while paragraph (a) remains in it, we are unable to support the motion in its present form. As I said, if it was just paragraph (b) we could support the motion. Paragraph (b) of the motion asks the Legal and Constitutional Affairs References Committee to inquire into 'the effectiveness of the operation of the native title system, options to improve economic development resulting from native title, and options to improve certainty over the claim process'.
The coalition recognises the merit of an inquiry into the native title system. Many would be aware that native title is a form of property rights that sits alongside other property rights like freehold title. Dealing with native title has become a routine part of doing business on land in Australia. It touches on the full range of primary industries. Agricultural, pastoral, mining and other forms of economic development are all affected by native title. The proper use, as Senator Hanson has stated, has enormous potential to unlock economic benefits for Aboriginal and Torres Strait Islander communities. We on this side of the chamber recognise the potential economic benefits of using native title to stimulate investment and jobs in regional and remote Australia. It makes good sense. If you have rights to use land, why not capitalise on them for the benefit of your community? But in far too many cases—and this is why we would support part (b) of the motion—the potential economic effects from native title are not being realised. For too long, native title rights have not delivered the kinds of outcomes for Aboriginal and Torres Strait Islander communities that we would have liked to have seen them deliver. It is therefore appropriate that we do consider the effectiveness of the operation of the native title system.
The Native Title Act, for anybody who has tried to read it, for anyone who has tried to practise in the area of it, is notoriously complex. It involves myriad confusing concepts, all of which interplay in complex ways to affect native title claims. For example, the Native Title Act involves the concepts of a past act regime, which is an act that occurred before the native title commenced, and a future act regime, which is an act that was to occur after the Native Title Act commenced but, given we are now in 2023, ironically, may actually have happened in the past. Now if that isn't confusing enough, just to highlight the labyrinth of complexity, there is also the concept of the intermediate period act, which sits within the future act regime and, on top of that, may be a category A, Bill, C or D intermediate period act. Now try telling that to someone who is trying to make a living that they themselves now need to consider a category A intermediate period act that sits within the future act regime. You have lost them. They are gone. Their eyes have already glazed over.
But the complexity in native title does not stop with the basic concepts. The act sets out the procedural rights that go with native title and some of the ways in which native title can be used. It allows native title groups, for example, to negotiate individual land use agreements. It allows them into enter into so-called section 31 or tripartite agreements between the Commonwealth, the state and the relevant native title holders. It also covers various other sorts of agreements. Importantly though, the act also sets out pathways for the claim and recognition of native title rights whether through negotiation or litigation.
As I said, there are many issues to explore. That is why paragraph (b) of the motion absolutely warrants support. In relation to paragraph (a), the biggest concern I have is that, if this is agreed to, it could actually make the problem more legally complex and could actually see an increase in litigation, and that is absolutely not what we want to see.
Basic questions absolutely should be explored and looked into. Is the claims process too complex? Are applicant groups adequately representing the will of native title holders? Do native title holders and applicant groups face procedural barriers that are baked into the Native Title Act? Are there fast-track options? Do we need to simplify the system? Is the tripartite agreement system under section 31 of the Native Title Act doing everything it could? Are the governance arrangements—and this is incredibly important, and it is something Senator Hanson spoke of—for registered native title bodies corporate appropriate? Do they need to be revisited? Are we seeing inefficiencies caused by structural and procedural barriers? Again, as Senator Hanson has raised: what role are the land councils playing and are they are a help to this process or, alternatively, are they actually a hindrance? Is the Native Title Tribunal performing as we would hope in terms of timeliness and process? Quite possibly not. What about the role of the Federal Court in all of this?
Ultimately, if you are going to have native title, the one thing we need to be sure of is that we are realising the economic opportunities for those who most need it. The other thing we need to explore and potentially simplify is how the native title system interacts with heritage planning and with environmental laws. Does that interaction create barriers to development? If that is creating barriers to development then absolutely this does need to be looked at. There are so many questions that need to be considered. That is why we acknowledge the wisdom of paragraph (b) of Senator Hanson's motion. It is a sensible part. It is a sensible thing to look at. It is absolutely worthy of substantial policy debate.
But in relation to paragraph (a), I'm concerned about the legal issues. Paragraph (a) of the motion calls for 'the establishment of a sunset date in relation to submission of claims of native title, after which no further claims of native title can be made'. The issue I have with this particular part of the motion is whether or not the proposal to sunset native title claims would work from a legal perspective in the context of the Native Title Act. We know how complex—I have already read it out—the Native Title Act itself actually is. We don't know how that sunsetting of claims would work. It is unclear what would happen to all the various claims that are on foot as we speak. Even if we worked through the complexity of the Native Title Act, it is unclear whether it is even possible—and this is one of the issues I have again in terms of the legalities of paragraph (a)—to sunset native title claims.
This is one of the issues that arise in relation to paragraph (a) in any event. Native title itself exists in Australian law. When you look at paragraph (a) of the motion you need to remember that Eddie Mabo did not need a Native Title Act. He did not even need a claim process. In Eddie Mabo's case his rights were recognised by the High Court under the common law of Australia and, importantly, those rights were not granted as a result of some kind of a claim. The court actually said that they just simply exist, and they had continued in existence since before European arrival because of his continuing connection that he had with the land and the waters. The court, therefore, decided to recognise those rights.
Even if you do go down the path of pursuing the idea of sunsetting native title claims under the Native Title Act, it appears at first glance, based on the legalities of what we are looking at, that native title rights would nevertheless continue to exist. Our concern, therefore, is you do not really than give effect to paragraph (a)—you potentially cause more litigation and what you end up doing is pushing Indigenous communities into recognising those rights through claims by litigation under the common law. In other words, you could actually end up in a situation that is more complex and potentially sees an increase in litigation, which is something that I would have thought none of us want to see. I'm completely in support of paragraph (b) of Senator Hansen's motion. I think it is a really good path to take. What I don't want to see is lawyers benefiting out of an increase in litigation and money spent on legal fees. Ultimately, that will not improve outcomes for communities, and that is the concern we have in relation to paragraph (a). You could make the system more complex—not meaning to, but that could well be the end result. You actually lead to an increase in litigation, which I would have thought defeats the purpose of Senator Hansen's motion. But in relation to paragraph (b), the committee inquiry into:
the effectiveness of the operation of the native title system options to improve economic development resulting from native title and options to improve certainty over the claim process.
there are certainly merit of an inquiry by way of that formulation.