Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I rise to speak on the Native Title Amendment Bill 2006. Labor want to see native title claims resolved quickly, effectively and fairly. This is manifestly in the interests of all parties, and we support reasonable and effective measures to assist this. Unfortunately it has not been happening. The current situation is far from adequate. While 91 claims have been resolved, more than 600 remain unresolved. Claims are taking, on average, six years to resolve. All sides to this debate can agree that this is an unsatisfactory situation and in need of improvement.The question remains as to whether this legislation before the Senate contributes towards the goal of improving both the effectiveness and efficiency of this legislation—that is, will the Native Title Amendment Bill 2006 make a difference? It is my concern that this bill will generate uncertainty for native title claims and for development. It will undermine the capacity of native title representative bodies to represent Indigenous interests.

The primary purpose of this bill is to amend the Native Title Act to implement aspects of four of the six elements of that package. The bill is expressed in terms of four schedules. I will turn to each of those schedules and make some observations about each of them. Before I start that, I foreshadow that Labor will move substantial amendments to the bill to seek to fix it. Our opposition to schedules 1 and 2 of the bill reflects the widespread views of stakeholders. The native title representative bodies unanimously oppose the bill. The Federal Court has expressed serious concerns with substantial portions of the bill. The Aboriginal and Torres Strait Islander Social Justice Commissioner rejects most of it, and the Western Australian state government and mineral councils have also expressed concern. I foreshadow that Labor will move amendments in opposition to schedules 1 and 2.

Turning to the committee report, while I respect the work of the committee on this bill, as noted in the minority report the report does not go nearly far enough in relation to a number of fundamentally flawed areas in the bill. I will touch upon each of those in a moment, but the problem goes to the very heart of the bill. This bill is, as it stands, a seriously flawed piece of legislation. It will not reduce red tape and it will not save taxpayers money. It will instead continue the uncertainty and delay that plague both industry and the Indigenous community. If anything, the changes being introduced will exacerbate the problems that currently exist.

I turn to schedule 1. At the heart of the first schedule are very substantial alterations to the operation of native title representative bodies, or NTRBs. The bill makes a range of modifications to the regime under which they operate and the regime under which they are recognised. The current scheme of recognition works this way: once an Aboriginal and Torres Strait Islander organisation is recognised as an NTRB, it remains recognised until it ceases to exist. The body requests withdrawal or the minister withdraws recognition, which the minister may do upon satisfaction of certain legislative criteria. Schedule 1 will alter the scheme in a number of ways, and I want to touch upon a couple of major ways in which it alters the scheme. First is the introduction of periodic terms applying to the recognised status of NTRBs, with those periods to range between one and six years. Second, the first schedule also broadens those native title service providers which can be recognised. This broadening could easily lead to the government performing an open tender and bringing in non-Indigenous law firms. It was indicated in a briefing to my colleague Mr Kelvin Thomson, the former shadow Attorney-General, that this is not the government’s intention. Nonetheless, that is the way the legislation is drafted, and it leaves the door open for the future. Third, the changes in the first schedule would reduce the amount of notice of closure the minister is required to give an NTRB from 90 days to 60 days. Fourth, the changes would allow for the minister to unilaterally alter the areas of the representative bodies. Finally, the changes in schedule 1 would remove the requirement that NTRBs present annual reports to parliament.

There are also changes in relation to the use of legislative instruments in relation to recognition and withdrawal of recognition. I will turn to those changes in a moment, but I also want to comment on schedule 2. Schedule 2 acts primarily to expand the power and role of the National Native Title Tribunal. This feeds off concerns expressed by stakeholders about the role of the tribunal being slow and overly bureaucratic. I will come back to this.

I can perhaps deal with schedules 3 and 4 quickly. I note that both of these schedules appear, in my view, to be largely uncontroversial and can be supported. Schedule 3 deals with prescribed body corporate amendments and schedule 4 contains provisions for assistance for nonclaimants and other measures designed to encourage negotiation over litigation. They can be supported for that aim.

Coming back to schedule 1, Labor has a range of concerns with this schedule, and in the time available it is necessary to deal at some length with those changes. Firstly, as I noted above, one area of concern has been the length of time for which a representative body is recognised. The proposed bill provides that the period of recognition for a representative body would be between one and six years. Discretion would be given to the minister to stipulate a period of recognition between one and six years for each body.

These changes are unnecessary and will introduce uncertainty into the process. This is not only said by Labor; it is criticism which has been levelled at the legislation by a range of bodies. The Minerals Council of Australia, for instance, proposed that the period of recognition be raised to at least three years. Others have also commented on this issue, arguing that it is impractical from the point of view of capacity building, corporate knowledge and long-term planning. Clearly, there is still significant argument about how beneficial this provision would be. It is still being argued about whether two years should be a minimum or whether capacity building, corporate knowledge and long-term planning can be undertaken if periods less than that which is otherwise provided for in the legislation are granted to the minister to use at their discretion.

The point we have now reached is where the government is seeking to broaden the ability of the minister to have discretion on those points. But is that going to be beneficial? The people within industry do not see that. The National Native Title Council also outlined a range of similar concerns. It is already the case that the minister is able to draw status recognition if a body is under-performing. Periodic terms of recognition will destabilise negotiations with third parties and create uncertainty around developmental proposals, discourage already fragile staff tenure and the build-up of corporate knowledge, inhibit strategic business planning and the liquidity of these organisations, and probably increase infrastructure costs so that they cannot be spread out over the period. One-year periodic terms are inconsistent with the spirit of reducing red tape. I also note that these organisations are representative institutions; they ought to be improved in quality and capacity rather than disbanded.

The Senate committee examined this issue and came to the conclusion that the proposal for the terms of recognition would militate against the effectiveness of the NTRBs. The government’s legislation would make the NTRBs less, not more, effective. The Senate committee recommended that the minimum term be increased to two years. This is not sufficient. The length of recognition is a serious problem with the bill, and it will not be solved by the minor tweaking recommended by the report. This section is not conducive to the effective operation of NTRBs. It will not allow long-term planning and the accumulation of corporate knowledge. It is clearly unnecessary and it does not fulfil the central requirement of keeping red tape to a minimum and keeping the waste of taxpayers’ funding to a minimum—if there is at all to be waste.

Another area which I touched upon was the process of derecognition, the use of legislative instruments to accomplish that, and the limiting of the time frame in which NTRBs are entitled to respond to a withdrawal notice. The standard time frame in which representative bodies are required to respond to such a notice has been shortened from 90 days to 60 days, and the references in the current act to the need for a representative body to satisfactorily represent the native title holders and consult effectively with Aboriginal and Torres Strait Islander people have generally been abandoned in favour of a shorter formulation focusing on whether the representative body is satisfactorily performing its functions. The practical effect of this is that that there will be very little time in which an NTRB has to consult and formulate a response to the notice as the period of time has been reduced. Again, this will not assist in the provision of effective administration of these bodies. In fact, it is more likely to do the opposite.

The next area of concern is the fact that the minister is able, after due consultation and consideration—whatever that might mean—to unilaterally extend or vary the area of a representative body. While the minister is required to consult before making these changes, there is no requirement that the views of the relevant representative bodies be a concluding feature of the matter, which is also the subject of some controversy. The changes that would allow the unilateral variation of the area of representative bodies was vigorously opposed by a range of submissions, as noted in the committee report. Firstly, I note the opposition of the Aboriginal and Torres Strait Islander Social Justice Commissioner on this point, with the committee report indicating that the commissioner opposed these amendments and suggested that the criteria of effective consultation and satisfactory representation should be retained. Similarly, the Native Title Tribunal Council pointed out that the boundaries reflected cultural groupings rather than being an administrative convenience.

In summing up, I would also like to refer back to other problems with the schedule that Labor raised tonight, including that it is possible for non-Indigenous organisations to become NTRBs and that the annual reports will no longer need to be tabled in parliament. As I indicated earlier, the National Native Title Tribunal, the NNTT, is to be given new significant powers. The powers are contained in schedule 2 of the bill. This schedule would disallow the Federal Court to conduct mediation at the same time as the NNTT. The bill also gives three new powers to the NNTT: the power to make reports to certain persons regarding the failure by a party to act in good faith in mediation; the power to issue directions to parties to attend mediation or produce documents; and the power to conduct inquiries regarding a group’s connection to the area claimed.

Labor has concerns about whether these changes are going to help matters and result in the swifter and more efficient resolution of claims or whether they will result in more uncertainty and more delays. The minority report of the Senate committee noted:

During the inquiry, significant concerns were expressed about the expansion of the NNTT’s powers, particularly as most stakeholders do not have confidence in the NNTT’s capacity or expertise to conduct effective mediation.

The minority report went on to note that NRTBs unanimously rejected the expansion of the mediator functions.

Further, the proposed bill would empower the NNTT to make reports about breaches of the good faith requirement to certain entities and to include details of alleged breaches by government parties in its annual report. It seems that there is no requirement under the legislation for the tribunal to advise and/or seek the views of parties considered to be in breach before the tribunal reports or publishes details of any alleged breach. It is recommended that the proposed provisions be amended to require the presiding NNTT member to advise a party if he or she considers they are not acting in good faith and give that party an opportunity to respond.

Further in relation to schedule 2 is the question of the power to investigate the connection that a group has to the area claimed. The Office of Native Title in Western Australia has stated:

The proposed amendments ... have the potential to undermine State and Territory government connection assessment processes, cause further delays in the resolution of native title claims and place increased pressure on an already limited pool of experts in the system.

It is understood that the main intent of the provisions is to facilitate the agreement of non-government third parties to proposed consent determinations where they are reluctant to accept the relevant state or territory government’s assessment that connection is met.

Despite participation in the proposed NNTT connection reviews being voluntary, native title parties could nevertheless use the provisions as a means of forum shopping if the state government considers that connection is not met, potentially undermining the transparent processes of state governments, such as those that Western Australia undertake. In addition, if claimants seek an NNTT review following a decision of the relevant government that connection is not satisfied, the resolution of the claim, whether by an agreed or litigated outcome that native title does not exist, will also be further delayed.

These amendments also anticipate that the NNTT will rely on consultants to conduct a review, which could further increase demand on an already limited pool of qualified experts, such as anthropologists. The Commonwealth Attorney-General’s recent comments acknowledge that the current shortage of anthropologists in the native title system is contributing to the delay in resolving native title claims. If the NNTT also seeks to rely on anthropologists in undertaking reviews of connection, the demands on anthropologists and the associated delay in resolving claims would be more than likely to increase. As I said earlier, schedules 3 and 4 are not controversial, and Labor does not oppose them.

In conclusion, Labor believes that the bill is ill-conceived and poorly drafted. It fundamentally fails to address the problems of the native title system; it will instead have the effect of exacerbating them even further.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I speak on behalf of the Democrats on this legislation amending the native title law of Australia. It is, as has been detailed by Senator Ludwig, relatively complex in some aspects; it is, of course, a complex act. It is interesting to compare the focus and attention on the Native Title Amendment Bill 2006 now to the attention focused on amendments to the Native Title Act nine years ago in mid-1998 or, indeed, that focused on the debate that put in place the original Native Title Act a few years before that.

In some ways, it shows that the way native title has developed has been quite different from a lot of the frenzied concerns of the era, but it also shows some of the missed opportunities that have occurred over that period of time. Thinking back to the atmosphere at the time some of the major amendments were made in 1998, it seems almost bizarre that, another eight or so years later, these reasonably significant amendments to the Native Title Act are attracting so little attention and controversy in the wider community and indeed, to some extent, relatively moderate engagement from members of Indigenous communities around Australia. I think there are a range of different reasons for that which I will not go into now.

Before addressing the specifics of the bill, I think it is appropriate to start out by expressing my dismay at the way this parliament and previous parliaments and governments around the country have mishandled native title as an issue, both in terms of the content of the law and in presenting, explaining and promoting it or otherwise to the public. We have collectively squandered many opportunities that were presented by the historic High Court decisions in the Mabo and Wik cases. Those were opportunities not just for Aboriginal and Torres Strait Islander people but also for the entire Australian community. Many of those opportunities have, I fear, been lost—but not all. Whilst there have certainly been some positives to come out of native title law and native title decisions, there is still more potential there that will not be realised without positive and proactive action.

Given all of the drama of years gone by, it is curious that, when people talk about native title law now, the context and nature of the discussion is often about the nitty-gritty and the arcane aspects of the legal processes: the tribunal processes, representative bodies, prescribed bodies corporate and all of these sorts of things. It is presented as something complex, which it is; onerous, which it often is; and grinding, which it often is. It is generally seen as something difficult, painful, arduous, expensive, a lot of hassle and fairly traumatic—sometimes people wonder whether it is really worth all the bother. It is really quite sad to think of that being the way a lot of people perceive and engage with the native title system compared with the opportunities and dreams first presented by those High Court decisions and the original piece of legislation passed by this chamber back in 1993.

It is appropriate to remind ourselves of what native title actually represents as a concept and as a reality—not the Native Title Act per se, but native title and the existence of it. It represents the burying of the lie of terra nullius—the lie that Australia was an unoccupied land that could just be moved into and that the people who had lived here for millennia before that had no claim to it and no need for recognition. It also represents recognition of the fact that much of the cultures of Australia’s Indigenous peoples are still alive and of great value, meaning and significance. For that very reason, it presents still a golden opportunity for all Australians to recognise the extraordinary heritage we are privileged to have a connection to as residents of this continent. Indeed, I believe that, in many ways, native title presents as much as an opportunity for non-Indigenous Australians as it does for Australians with Indigenous heritage and ancestry. But it is an opportunity and potential that, on the whole, has not been realised and grasped. It is imperative that we revisit and remember the spirit of those early years of native title. We must continue to work to change attitudes and to make people recognise that those opportunities are still there but they need to be grasped—they will not just occur as a result of this grinding legalistic process that is represented by the act as it now operates.

Native title was represented by many in the community—including by some who knew that the reality was otherwise—as a major threat to many aspects of Australia’s society and economy. It is often still seen and sometimes still presented as a threat, despite all of the evidence to the contrary. At best, it is seen as a grinding hassle or a grudging paper recognition. But it is more than that, it has been more than that and it deserves to be far more than that again. That requires a change in attitude and a change in approach, and I am afraid that by and large this legislation before us does not provide that. There have been positive exceptions. There have been a number of very important claims that have been recognised. While the reality is that native title in the sense of land title is very much a residual right that does not present economic windfalls, it has been a vehicle for beneficial outcomes for some Indigenous peoples and communities in various parts of Australia and it presents opportunities on top of that.

A number of positive Indigenous land use agreements have come out in various ways as consequences of the existing process. There have also been some quite poor ones, of course. We have recently had the very positive example of the recognition of the claim of the Githabul people in the far north of northern New South Wales. In itself, the recognition of that native title does not instantly bring with it enormous amounts of money, but it brings with it potential for the future in that regard. Most importantly, it brings clear, unequivocal, official, formal recognition under the laws of Australia of a continuing ongoing connection to the land of Indigenous peoples which stretches back tens of thousands of years. Frankly, to me it is not just very important for those people whose connections to land have been recognised but very important for Australia as a whole to be able to say that we as a nation have part of our people those who have that connection—the oldest continuing living culture in the world today. Those are words that I hear now and then around the place. I do not think that the significance of them sinks in terribly often for Australians, but it is about time they did. That is an enormous and very valuable claim that we can make. It is one for all Australians, not just Indigenous ones, to celebrate and to make use of.

While there have been some positive exceptions, there has also been a lot of disappointment. Just on the other side of the border in the south-east corner of my own state of Queensland, that very same claim from the Githabul people has yet to be progressed and recognised. The border has no meaning for the Githabul people in terms of their traditional connection to land. Other longstanding attempts to get native title recognised in parts of the Gold Coast have made little progress. Indeed, the Quandamooka claim over Stradbroke Island just to the east of Brisbane, which showed such great potential that I recall making special mention of it in my first speech in this place nearly 10 years ago, has been largely frustrated since that time for a whole range of reasons. The missed opportunities there are very disappointing. While they still present themselves in some ways, the lost opportunities, the lost time and the trauma that has been involved in trying to reach resolutions in that regard have been very disappointing. I am not sheeting home all blame to governments, state and federal, but we all know how important leadership can be. If we had had strong, positive, consistent leadership from state governments then we would have advanced much further.

It has been interesting to see the shifts in some attitudes that have occurred. Indeed, in the Senate inquiry into this legislation, evidence that was presented from the Minerals Council of Australia and the Queensland Resources Council was supportive of giving more resources, more assistance and more capacity building to native title representative bodies and Indigenous people working within them. There has been a real shift forward by many—not all—mineral companies and mining bodies compared to 10 years ago, so there are opportunities there.

I believe that, through the processes that have led to this legislation, there have been some genuine attempts to try and improve some of the ways in which things operate at the moment. There is a lot of red tape and lots of starts, stops and expense. But I would have to say that the evidence presented to the Senate committee by those people who engage with this process and have a pretty good idea of what will work and what is not working was not very positive. It was not very positive about more power going to the tribunal; it was not very positive about some of the other mechanisms that are being put forward here. Frankly, while the committee made 10 recommendations that I hope the government picks up, I do not think that they go far enough to address the genuine concerns that were put forward. These were concerns put forward totally outside the context and the paradigm of the ideological battles of the past. They were simply put forward in the context of making this work better.

People recognise and accept native title now. You would not know it sometimes from some of the controversies that appear in the media every time that there is the prospect of a successful claim, such as the Nyungar claim in Western Australia, but there is an acceptance of it among many who work with native title, and people just want to make it work better. Aspects of this legislation may do that, but a lot of those people who work on this on a daily basis and who presented information to the inquiry suggest that aspects of it may, if anything, make it worse.

The Democrats have a number of amendments regarding that, which we will talk to when we get to the committee stage of this debate towards the end of this week. I hope that the government is open to some of those, because, regardless of the past history in this area, there is a genuine desire for the whole native title process to work better. It has achieved some positive outcomes, as I said. But the potential that was presented there initially has on the whole not been realised, and that is a real missed opportunity. A lot of that potential still exists, and I believe that we need to redouble our efforts not just in improving the law but in improving the capacity of and opportunities for Indigenous people—both through representative bodies and other organisations—to engage with this process and make it work better. We also have a responsibility to make the Australian community aware of the positive opportunities that native title presents.

Debate interrupted.