Monday, 14 September 2009
Native Title Amendment Bill 2009
To continue my contribution from earlier today, the third point that I was making prior to question time was that representative bodies, as constituted under the act, are required to be governed equitably and to have a proper and fair basis for the selection of priority claims. The circumstances that confront claimant groups under the umbrella of one particular rep body is that they are all jockeying for funding and for the use of the anthropologists, the lawyers and all of the professional assistance that each group needs. How that is resolved is a very important matter that requires transparency and equity. Up to this point in time, there have been significant problems with claimant groups not being able to conduct their claims because they have not been able to get onto the priority list of their particular rep body. Often they have had to go through the future act process and fund their own claim away from the supervision of the rep body.
The final point with respect to the logistical difficulties confronting claimants is that the discipline of communicating the outcomes of the activity of the rep body is expensive but necessary. The claim is managed by the rep body on behalf of the claimants, who often have very limited capacity in terms of expertise to conduct a serious Federal Court litigation. The claimants’ solicitors’ advice and the outcomes of various court hearings all need to be communicated to the claimants by the rep body. This is both expensive and time consuming but ever so necessary.
So, as I have indicated, pursuit of a native title determination is a tortuous, complex and very-high-cost litigation and definitely not to be undertaken lightly or without a great deal of advice and consideration. These matters are besides the technical issues of accuracy of description of the boundaries of the land claimed, which is often very difficult—and I pause to say that the Native Title Tribunal has established a very good mapping system that indicates the precise locations, or as precise as the descriptions allow, of various land boundaries as claimed by the claimants. We then have to have concise elements of connection to the land and compliance with the thresholds set out in the act. These are all very difficult technical matters. I further note that, to have a successful claim determination, the evidence of connection needs to be direct evidence and in vive voce form. The problem with this is that we are talking about a whole host of people whose life expectancy is far below that of mainstream Australian society. Many are already old and English is not even their first or second language. To ask them to come to a sitting of the Federal Court, which is usually in capital cities to give evidence—occasionally there are significant sittings in country—is therefore a major ordeal for them.
There was a report in 2006 that was commissioned by the former government, by Graham Hiley QC and Dr Ken Levy. They provided to the then Attorney-General, Philip Ruddock, a detailed report in which the success of the process was reviewed. This was a good report. It broadly focused on the issues I have mentioned and sought to offer some solutions. To some extent, unfortunately, the authors differed as to the solutions to the various problems, and it is apparent that the current Attorney-General and government have elected to go with the changes recommended largely by Mr Hiley—that is, that the Federal Court and the registrars be further empowered to deal with claims. I will come to the rationale behind that, but I pause to say that the National Native Title Tribunal paved the way and was a trailblazer in this area. I do hope that the Federal Court will continue to use the mediation powers of the National Native Title Tribunal, because I think they have had a number of successes in very difficult circumstances, and I commend them for that. I think the native title legislation is very difficult, very complex, and continues to present logistical nightmares for claimants, respondents and state governments. I want to see that the legislation is effective and works, and that we come through this period of uncertainty with respect to land use, particularly in my home state of Western Australia.
It does seem to me that greater power to make interim orders in both the management of the claim and the ultimate determination is preferred, such that we are moving, as we are with these amendments, to the Federal Court and the federal registry. I say this because, notwithstanding that much of the work will be done by Federal Court registrars, the Federal Court will provide much more of a one-stop shop capacity. This should—I trust and I hope and I expect—expedite matters and accordingly reduce costs.
I have a view with respect to the entree type of judicial forum required to get these matters into some sort of order prior to their being presented formally before a judge in court. In Western Australia we have an administrative court called the Warden’s Court, where matters proceed with a minimum of court documents and process yet there is a good track record in the summary determination of factual issues. I hope that the registrars in the Federal Court can take a leaf out of the way that the Warden’s Court in Western Australia works, often dealing with very serious and very valuable matters, such that the lion’s share of the work is done before the matter comes before the Federal Court judge.
A move away from formal evidence in chief and cross-examination is desirable in this particular area, with agreed statements of facts and prior published evidentiary statements setting out the perspectives of the claimants and the arguments of the respondents. That is a very positive thing, and I do not think there is anything to stop us doing that. Ultimately, I think everybody has a pretty fair idea of where the matter is going. Setting out evidentiary statements allows everybody to know where they stand, and it is a great aid to mediation such that we can have agreed orders. The ultimate objective of all of this is to minimise the time that the judge has to sit in court and to make the orders as pristine and as practically applicable and effective as they possibly can be.
I pause to endorse very much of the remarks of the Chief Justice of the High Court earlier this year in talking about some of the solutions that are needed here. I do consider that the need to look at the onus of proof is important. My principal reason or the motivation for the need for reform has been the conduct of the states. Each of the states, to some greater or lesser degree, for their own reasons—some legitimate and some questionable—has been inordinately slow and often parsimonious with respect to the shouldering of the some of the expense and assistance to both claimants and respondents in resolving matters and in obtaining determinations. In Western Australia we have had to review freehold title, mining leasehold title, pastoral leasehold title and so on and so forth. All of this has presented major difficulties just for lawyers examining the position of the claimants and seeking to agree orders, which has meant literally months of examination of the state government records. This is a terribly onerous procedure, and this is why the process has bogged down.
If the states had been more proactive and, indeed, if state politicians had greater understanding of native title, were less fearful of consent determinations and less fearful of compensation and the overall process, we might be much further advanced. I do hope that they heed my words today and start to come to terms with the fact that native title is here to stay. It is an act of the federal parliament. It is not going to go away and the best way to deal with the issues that it presents on the ground is to mediate and to come to agreements. There is a great deal of lip service and hand-wringing, with platitudes offered up by state and federal politicians on this subject while they continue to stand effectively on the hose obstructing reform and progress in this regard.
Native Title Amendment Bill 2009 is no silver bullet or instant panacea to the problems, but it is a beginning. It is a contribution and I think that it is a step forward. A greater and more disciplined focus on mediation is a good thing. Greater financial assistance—and I trust that there will be greater financial assistance—for mediation and an increased financial commitment by both state and federal governments is a good thing. However I am very sceptical as to just how much money and how well managed that money will be when committed by those governments. A greater capacity for the Federal Court to make determinations on related matters is a good thing. Refining the process in rep bodies is a good thing, but again I am sceptical as to whether there is a really aggressive and disciplined capacity for rep bodies to effectively and cost-efficiently manage themselves and to properly manage the claimants in a transparent and equitable way. It is not easy. It is difficult and presents a number of problems, but it must be done correctly such that the claimants are fully informed and know exactly where they stand at any given time.
I pause to mention that in one case that I was involved in many years ago a rep body had on its books some 14 lawyers that it employed and yet, with respect to my matter, it still briefed an expensive member of a large city law firm. I just think that we need to get a huge injection of reality here. People who are immersed in native title and who work for rep bodies must conduct their cases in the Federal Court as cost-effectively as possible. The most important thing in this area of public policy is the proper funding of stakeholders and the strictest of cost-efficient management of those moneys, as I have said.
I assure the Attorney-General that many of us in the Senate will be watching the implementation and outcomes of these reforms with a very critical and weather eye. However, I do wish these reforms success, and I trust that in one or two or maybe three years we will be back here to see those 511 cases that are pending substantially reduced.
I firstly thank all senators for their contribution to this debate on the Native Title Amendment Bill 2009. I also want to record the government’s recognition of the work done by the Senate Standing Committee on Legal and Constitutional Affairs in relation to this bill and also to note its recommendation that the bill be passed. This bill will amend the Native Title Act to give the Federal Court key control of the management of native title claims. It also contains measures that will contribute to a broader and more flexible negotiated settlement of native title matters. As the Attorney-General said when he introduced the bill into the other place, ‘... native title can provide an important avenue for economic development for Indigenous people ... [and it can do] more than just deliver symbolic recognition.’
Following the Rudd government’s historic apology to Indigenous Australians, there is a renewed sense of optimism about the relationships between Indigenous and non-Indigenous Australians. Old attitudes are breaking down and there is a sense of renewed hope for what native title can deliver. However it is also clear that this system is in need of reform, and the changes contained in the bill before the chamber will enable faster and better outcomes for participants.
For example, the provision that will allow the Federal Court to accept a statement of facts which has been agreed between certain parties will cut down time spent on issues that are clearly not in dispute and allow parties to focus on negotiating issues central to resolving the claim. Hopefully this means that claims will be settled faster. An amendment that confirms the court can make orders about matters other than native title, again, where parties have agreed, will mean that the court can assist parties to resolve native title and related matters at the same time, again, meaning better outcomes for all stakeholders.
One of the key changes contained in the bill will give the Federal Court the central role for managing all native title claims, including who decides who mediates a claim. It is the government’s view that the Federal Court is in the best position to have overall responsibility for how cases are managed and best resolved. These reforms will draw on the court’s significant alternative dispute resolution experience to achieve more negotiated outcomes. Having the court, with the authority that it brings, actively controlling the direction of each case will mean opportunities for resolution can be more readily identified. The government does not accept criticisms made by the National Native Title Tribunal in evidence to the Legal and Constitutional Affairs Committee. We are confident in the court’s ability to provide a national coordinated approach to the resolution of native title claims and confident that the amendments will result in a more effective and less costly system.
The bill also includes a number of amendments that streamline the processes involved in the recognition and re-recognition of native title representative bodies. There has been widespread stakeholder consultation about the amendments in the bill and it is clear from the consultations that there is a great deal of support for the measures contained.
I want to first reference briefly Senator Siewert’s comments on the need to reverse the burden of proof in native title amendment matters. I do not propose to address that now, as Senator Siewert has proposed an amendment to the bill; obviously, I will comment on that proposal in committee. I make the general point that the last 15 years has shown that, in relation to native title, it is extremely important that there be genuine community support for measures that are, after all, intended to promote the welfare of Indigenous owners and their descendents. Without proper consultation there is always the danger of divisive debate.
I want to reference some of the matters raised in the contributions made by senators. I indicate first that the government welcomes the opposition’s support in passing this legislation. Senator Trood made reference to statements by a Mr Tony McAvoy to the Senate committee. I indicate that Mr McAvoy is expressing his personal opinion, not the opinion of the National Native Title Council. Submissions on the bill from the council are generally supportive of the majority of the proposed amendments. The chair of the council has been reported as welcoming the changes:
In the area of mediation, there is a consensus across the industry that the Federal Court should have more power in being able to get parties to come together to discuss common interests.
Notably, Mr McAvoy also argued that what would make a noticeable change to the speed of resolutions is a rebuttable presumption of continuity. The Greens are, as I have previously noted, proposing that amendment, but this is something that Senator Brandis has expressly opposed.
I also want to make some comments on the suggestion in some of the contributions that there has been insufficient time since the last amendments to assess whether more changes are necessary. The 2007 amendments created a mandatory referral to the tribunal. Those amendments resulted from the 2005 claims resolution review of the relationship between the court and the tribunal. The consultations for the review indicated that a wide range of stakeholders had high levels of frustration with mediation being conducted by the tribunal. The 2007 amendments which followed the review reflect options supported by one consultant. In opposition, Labor opposed those changes, in part because they did not address the extensive stakeholder concerns with the performance of the tribunal, and they were also strongly opposed by a large number of native title representative bodies.
The ability of the tribunal to more effectively mediate was questioned by other stakeholders in submissions to the Senate committee in 2007. The committee’s minority report, by the Australian Labor Party and the Australian Greens, opposed the previous government giving the tribunal the primary role in native title mediation because stakeholders did not have confidence in the tribunal’s capacity or expertise to conduct effective mediation.
Senator Trood asked why the Federal Court had not exercised powers under the act before now. Of course, the 2007 amendments created a mandatory referral to the tribunal with only minor exceptions; therefore, until now the court has been unable to control the mediation of the proceedings, as the bill proposes. The proposed changes mean that rather than automatically referring every case to the tribunal for mediation, the court will decide which individual or body should mediate each matter.
There have also been claims made about the tribunal not being consulted. I can indicate that I am advised that extensive consultations, including with the tribunal, have taken place over the last few years on native title claims resolution. In proposing the changes, the government took into account the claims resolution review and the inquiries held by the Senate committee into the 2007 native title amendment bills. The Attorney-General did advise the president of the tribunal of the proposed institutional changes prior to the announcement. Senior departmental officers and the Attorney-General have met with both the tribunal and the court to discuss the proposed reforms and how they would be implemented in practice. The tribunal has indicated its intention to work cooperatively with the court and the department to implement the institutional reform.
There has also been a request from Senator Xenophon and Senator Siewert about whether or not the government was intent on providing more resources. Obviously, the government will monitor the resource implications of the amendment. However, the court has advised that presently no further resources are required. At this stage, though, the funding implications cannot be estimated until changes have been implemented. The government will obviously ensure that the court and tribunal are appropriately resourced to carry out their functions.
Senator Xenophon asked what mechanisms are in place to monitor the impact of changes. The federal government convenes the Native Title Consultative Forum three times a year. This forum brings together all stakeholders in the native title system and through this forum the government receives feedback on the operation of the system. We anticipate that we will continue to receive that feedback. In addition, native title ministers also meet every year to discuss the native title system. Undoubtedly, the federal government will receive feedback from state and territory governments on the impact of these changes. Obviously, the Attorney-General’s Department will continue to monitor the impact of the changes in consultation with the court and tribunal.
Senator Xenophon also asked how the changes will help clear the backlog of claims. Obviously, these amendments are in part designed to seek faster settlements. These will be encouraged by giving the court control over native title claims to allow for better identification of opportunities for resolution; by allowing the court to include matters beyond native title in consent determinations, which will give the court more flexibility to resolve claims; by allowing the court to refer claims to the most appropriate mediator; by enabling the court to rely on a statement of facts agreed between the parties rather than having to be independently satisfied of the facts; by improving native title representative body provisions to allow them to focus on their client’s claim; and by allowing the court to use recent changes to evidence laws that concern evidence given by Aboriginal and Torres Strait Islander people and to enable those changes to have a wider application to native title claims.
However, the degree of success that these changes have in delivering faster settlements will depend upon behavioural changes by all parties. As a result, obviously no-one can forecast how many more claims can be resolved and by when, but our hope is that the bill before the chamber will enable more resolutions in a more timely fashion. Much, obviously, does depend on the attitude of the parties.
In conclusion, the government’s view is that the amendments in this bill, along with the behavioural change amongst parties to which I have referred, will bring about important and necessary changes in the native title system. Whilst the law of native title may seem somewhat complex, and often is, its objective is straightforward: to recognise Indigenous people’s ongoing relationship with their land. The passage of this bill will mean that the recognition of that relationship can be achieved faster and with better outcomes and certainty for all stakeholders. I commend the bill to the chamber.
Question agreed to.
Bill read a second time.