Senate debates

Wednesday, 25 March 2015


Native Title

10:30 pm

Photo of Dean SmithDean Smith (WA, Liberal Party) Share this | | Hansard source

In the available time this evening, I would like to focus on an issue that I would contend is among the most significant financial issue facing Western Australia and of particular significance for pastoralists in my home state. Native title is a complex issue that has a greater impact on Western Australia than any other Australian jurisdiction. It is worth placing the present situation in some historical context.

On 3 February 1994, shortly after the Native Title Act was passed by the federal parliament, the then Labor Prime Minister Paul Keating wrote to the Western Australian Premier of the day, Richard Court, pledging that the Commonwealth would bear 'the lion's share of the burden for compensating for native title'. The offer made was that the Commonwealth would fund up to 75 per cent of the compensation costs arising from the validation of past acts on determined native title land.

Five years later under a coalition government, on 22 August 1998, that position was reconfirmed with the then Prime Minister, Mr Howard, writing to the Premier of Western Australia, again Mr Court, stating that the Commonwealth would fund 75 per cent of all future native title compensation as well as validation of past acts.

Almost two years after Labor returned to federal office in August 2009, the Commonwealth Attorney-General advised the Western Australia government that there would be a suspension of the deal that had been reached between the states and the Commonwealth in relation to the funding of native title compensation due to the global financial crisis. In May 2011, the Western Australian Premier Colin Barnett received a letter from the then Prime Minister, Ms Gillard, which advised him that the federal government would no longer honour the agreement and that $241 million of debt arising from the Commonwealth's 2009 decision to suspend the deal would not be paid to Western Australia.

Separate to this issue is the question of funding for respondents in native title claims, which was another area in which the former Labor government sold out the interests of Western Australian pastoralists. Following the decision of the High Court in the Mabo No. 2 case in 1992, the Commonwealth enacted the Commonwealth Native Title Act 1993. That legislation sets out the various processes through which native title can be recognised and protected. Section 213A of the Native Title Act 1993 provides financial assistance for native title respondents for reasonable legal representation and disbursement costs incurred in native title proceedings, including funding for native title officers. That assistance remained in place for almost 20 years through the Keating, Howard and Rudd governments and for the bulk of the Gillard government.

However, a system that had provided a measure of stability and certainty for nigh on two decades was ended by the stroke of a pen on 1 January 2013, when the Gillard government withdrew funding assistance for respondents in native title claims. This meant that henceforth, respondents were required to fund their own legal representation and to pay for their own legal costs. At the same time, the Gillard government withdrew its funding for native title officers, which had a huge impact on the pastoral and commercial fishing sectors across Western Australia, and forced some primary organisations to withdraw from native title proceedings.

As a senator for Western Australia, I was exceptionally pleased when early in the life of this coalition government, Attorney-General Senator Brandis announced that this government would be restoring funding for respondents in native title claims. It was announced that from 1 January 2014, the Abbott government will be providing $2.2 million over two years to assist people who demonstrate that a native title claim is likely to have a significant impact on their interests. This includes pastoralists, local councils, commercial fishers and miners, as well as native title officers. The reinstatement of this funding allows for fair and equitable finalisation of existing native title claims, and will hopefully alleviate the uncertainly that arose when the Gillard government suddenly changed the rules in the middle of the game. Yet, as I said at the beginning of my contribution, this is a complex issue, and the reinstatement of funding does not in and of itself resolve all those complications, which I will highlight in a moment.

It is worth bearing in mind that there are about 100 unresolved native title claims in the pastoral regions of Western Australia, of which 85 are active claims that affect 513 pastoral leases across Western Australia. The vast bulk of these claims are over land that falls within the federal electorate of Durack, of which I am the patron senator. In Western Australia all native title claims are determined in the Federal Court with the Western Australian state government as first respondent. As the only native title rights that can coexist with a pastoral lease are those that are not inconsistent with the rights of the pastoralists, pastoralists hold existing interests in Crown land concurrently with native title holders and, as such, they have a real interest in native title claims. Thus, it stands to reason that, just like native title claimants, they too should be given a reasonable opportunity to be heard in Federal Court on matters in connection with native title proceedings.

The optimal outcome for all parties involved in native title claims is for them be resolved through mediation rather than litigation, utilising Indigenous Land Use Agreements—voluntary agreements that primarily relate to land access. These agreements are registered and held by the National Native Title Tribunal. They bind all persons who hold native title to the agreement, whether they were parties or not.

The native title mediation process can often provide the only occasion on which all relevant stakeholders have an opportunity to meet and discuss any issues or concerns about the relationship between coexisting native title rights and interests and pastoralist rights and interests. Over the past two decades, both pastoralists and native title claimants have found this process useful as it promotes successful outcomes, generally reached in a non-adversarial manner. Due to the remoteness and vast distance covered by WA's pastoral region, it can often be practically and financially difficult for individual pastoralists to participate in native title proceedings. This has led to the establishment of group representation, utilising native title officers from recognised industry representative bodies funded through the Native Title Respondent Funding Scheme. In WA the only recognised body for the pastoral industry is the Pastoralists and Graziers Association. In Queensland it is AgForce, and in the Northern Territory it is the Northern Territory Cattlemen's Association. The involvement of a key industry representative body ensures effective coordination and management of pastoral interests and thereby facilitates the resolution of native title matters. Without this form of group representation there would be significantly more individual respondents to native title claims, which would increase divisions in the community and make consent determinations in particular more difficult to achieve.

Following the withdrawal of funding by Labor in 2013, native title representative bodies established various processes to reduce the amount of funding previously used through legal representation, primarily by assuming the lead role in instructing lawyers on all matters; restricting the use of lawyers to only those instances where clear legal advice was required; and obtaining quotes on each legal matter when required. After the reinstatement of funding for native title respondents by the Abbott government in 2013, there were significant changes over the previous scheme, with funding going directly to legal representatives and limited funding for representative organisations. This has, in my view, hampered the capacity for effective group representation in native title determinations. In the case of Western Australia, this is further complicated by the fact that the state has recently revised its approach to consent determinations and will no longer provide a position paper to respondents summarising its view of the suitability of a claim for a consent determination.

The state of Western Australia has indicated that it now wishes for native title claimants to engage directly with respondents. As a result of this, pastoralists will require further support from their representative bodies. Without continued funding support, pastoralists and their representative organisations will be unable to continue in their role as coordinating the pastoral response to native title claims. Ultimately this will disadvantage both pastoralists and native title claimants, not to mention the native title process, which is at its most effective when conducted in a non-adversarial manner. Resolving this issue in a manner satisfactory to all parties will be challenging but is not impossible given the genuine goodwill that I believe exists across all sides of the native title process. As a senator for Western Australia I look forward to playing my part in working with colleagues to secure funding for group representation after 1 January 2016 so that our native title framework operates in a manner that is fair and provides certainty to all parties.