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Thursday, 25 September 1997
Page: 8459


Mr BEAZLEY (Leader of the Opposition)(9.32 a.m.) —The government's Native Title Amendment Bill 1997 is a recipe for uncertainty. It is, in its current form, a flawed piece of legislation headed straight for multiple visits to the High Court. The reason for this is, quite clearly, the fact that this piece of legislation has had to be negotiated through a backbench whose every public presentation of views makes evident its complete ignorance of the legal framework in which successful legislation has to be pursued.

The government has surrendered certainty for pastoralists and the minerals and resources industry, and decent treatment of the property rights of indigenous Australians, for a bogus backbench unity—a unity based, as it is, on a fundamentally mistaken view of this parliament's legislative powers and an ignorance of the certainty to be found in the rule of law. This is the dominant fact of contemporary Australian politics on this issue, and it is no good for our country.

Labor shares the government's stated desire for greater certainty for all stakeholders, for greater workability of the Native Title Act 1993 and for the timely resolution of disputes the act seeks to address. The amendment to the Native Title Act is a task and a responsibility that would have confronted the Labor Party had we remained in government.

The Mabo decision brought Australia into line as the last New World nation with a tradition of British common law to recognise the pre-settlement laws of its indigenous people as giving rise to native title. Even without the hysteria and campaigns of misinformation that followed the decision, the government of the day would have been obliged to respond.

There was a need for clarification of the implications for all levels of government and all holders of post-settlement titles as well as for potential native title claimants. There were complex legal, social and economic issues to be worked through. There was the prospect at the time of a myriad of common law claims for native title from indigenous people to be conducted without a statutory framework and with a single piece of case law for guidance. The consequence was likely to be a lengthy period of complex, expensive legal action and a great deal of legal and economic uncertainty, just as surely as the process had the potential to be socially divisive both within indigenous communities and between indigenous communities and non-indigenous Australians.

Unlike most conservative political leaders across Australia, the Labor government accepted the concept of native title and set about devising a decent, workable, practical response. A key element of the response to Mabo was the Native Title Act 1993. The act was the product of extensive and inclusive negotiations with all stakeholders. The process was further enhanced by extensive research on comparable responses in Canada, New Zealand and the United States.

I go back to that point of inclusive discussions with all stakeholders. Some folk like to portray the notion that an arrangement was set in place with one set of stakeholders only—the indigenous community—and an act emerged. If people recollect those times, as I do, there were in that community substantial concerns about the way in which the government was legislating, substantial concerns which produced some profound disagreements between the indigenous community and the government of the day. In the end, what was produced was an on-balance result, not a result that went—as the Prime Minister (Mr Howard) likes to say in producing his pendulums on these matters—all one way. Interfering with that balanced result places any particular legislative activity at great constitutional risk.

The act aimed to provide an expeditious, cost-effective and less legalistic alternative to resolving matters on a case-by-case basis in common law actions. It established the Native Title Tribunal and allowed for state governments to set up approved alternative processes. The clearest immediate outcome from the act was the validation of every previously issued title for every existing title holder. In particular, it validated potentially invalid past acts of governments, such as grants of interest in lands since the commencement of the Racial Discrimination Act 1975.

The aim in a prevailing atmosphere of legal uncertainty was to achieve certainty, clarity and workability. The drafting and passage of the act was carried on in the face of a stubborn refusal on the part of the coalition parties to engage constructively in the process. Every word, every clause, was routinely opposed, irrespective of its merits or the interests that it sought to protect.

It makes nonsense of the Prime Minister's rabid assertions that the flaws in the present act are the sole responsibility of the Labor government. Despite urgings by miners and pastoralists—and I well remember them at the time—the Liberal Party in opposition refused constructive participation in that debate. They let this parliament down and they let the country down, and many features in the act which are difficult to work at this stage can be directly sheeted home to that. We will not treat either the government or the country the same way.

The majority of conservative politicians simply rejected the concept of native title. They attacked both the concept and the High Court that had seen fit to recognise it. They typified the attitude that led the Hon. Justice Ronald Sackville to observe in more recent times:

Attacks are made in some quarters on the High Court's decision in Wik that go beyond robust criticism of the court's reasoning process and conclusion and amount to attempts to undermine the authority of the court as an institution.

The government took the view that the only lasting certainty for all stakeholders was that which emerged from consensus. Any party aggrieved by the process or the outcome would challenge matters in the courts. In the case of indigenous people, their acceptance of legislated validation of titles was essential to the success of the bill. Their willingness to surrender or forgo any claims related to those titles that were validated was essential for the success of the bill.

The principal offsetting benefit for this wholesale validation of potentially invalid titles was the grant of a time limited right to negotiate in respect of grants of mining interests and compulsory acquisition for the benefit of others of land where native title may have survived. There is no veto in this. It is time limited and any outcome is capable of being overridden by a determination by a state or Commonwealth minister. Remember that. There is only one form of title in this country which has an unlimited veto. That happens to be Western Australian freehold title and agricultural lease title. They do, under those titles, have an absolute discretion to prevent other forms of economic activity taking place on that land. There are some features of it similar in the Northern Territory Land Rights Act, but there can also be ministerial intervention in relation to the national interest, so it is not unlimited veto. Only those forms of title in this country carry the right of veto in relation to other persons' economic rights in relation to the land that you owned or have access to by virtue of the title.

Indigenous people with no hope of access to any benefits in surviving native title were given access to a land fund. A social justice package promised at the time was being negotiated when Labor lost office. Negotiations have not been continued by the incoming government, though those negotiations were one of the things which made the previous act safe. People need to bear that in mind: they are one of the compromises which produced the on balance outcome that the High Court accepted as rendering the act valid. The government's failure in this bill to understand these underpinnings is one of the flawed elements of their legislative approach which make it highly vulnerable to court challenge.

Initial resistance by some state governments was typified by the Western Australian government's resoundingly unsuccessful attempt to challenge the constitutionality of the act and institute a legislative regime substituting an inferior statutory title for native title. The Western Australian challenge was lost 7-0 and the state legislation found to be invalid due to inconsistency with the Commonwealth act. But it is instructive to note this: the Western Australian government responded to its loss by instituting correct future act procedures as set out in the Native Title Act. Since that time, according to figures given in evidence before the Joint Parliamentary Committee on Native Title and Aboriginal and Torres Strait Islander Affairs on 23 September by the chief registrar of the Native Title Tribunal, Ms Patricia Lane, of notified intentions to carry out mining activities submitted under the expedited procedures, a peak figure of 97 per cent, settling down to 92 per cent, have gone forward without challenge from potential native title claimants.

There are approximately 17 native title related cases before the courts, at the conclusion of which many existing uncertainties will have been resolved. After pervading uncertainty with the new procedures, many problems have been ironed out. Confusion in the public mind as to the role of the Native Title Tribunal, sometimes fuelled by mischievous representation by vested interests, has led to criticism of the lack of determinations emerging from the tribunal. The tribunal, of course, is a mediating body with no powers of determination without the consent of all parties. If a state government or other party refuses to reach an agreement, the tribunal has no option but to pass the matter on to the Federal Court for determination.

An encouraging sign has been the emergence over time of regional agreements reached with the assistance of the tribunal and without recourse to the court. It should not be surprising that that is an attractive option. More than 70 per cent of all commercial disputes are resolved before reaching court. The motives are often very similar to experiences in the native title field: uncertainty of court outcomes, the high cost of litigation and commercially ruinous waste of time. Yandacoogina and the Murrin Murrin agreements, together with the Cape York heads of agreement, with all of their short-term difficulties, are examples of a capacity to reach agreement faster than any conceivable court settlement of a common law claim.

Whatever the shortcomings of the existing act, let us take time to consider that point. The Wik case is a common law claim. It has been in the courts since June 1993. It is still there, with matters of substance related to it yet to be determined. That is four years down the track. Think of the 600 or so claims currently registered with the tribunal. The collapse, in the face of High Court challenge, of a badly amended act, an act bulldozed through the parliament by an unthinking government, would see all those cases, and more, clogging up our courts indefinitely. The pastoral industry might survive such a scenario but not the mining industry.

If you thought we had problems now, you have seen nothing compared with that worst case prospect. In fact, observers have already noted what could be a scare effect. In the face of possible adverse treatment through the prospective provisions of the government's bill, there is a worrying trend now reported in the number of cases that otherwise would have been prepared for processing through native title processes that have been diverted now down the common law route. We could already be previewing a coming nightmare for the minerals and resources industry in particular and Australian society in general.

I turn now to the government's amendment bill. The opposition endorses the principle that the time is right for amendment. It was always accepted that, with relevant common law cases already in train and with an entirely new process to be put in place, the original act would in time need to be amended in the light of practical experience in the tribunal and the Federal Court and in recognition of new case law as it emerged.

There are still many problems to be addressed. Confusion over the meaning of the native title concept and the proper expectations that can flow from the Mabo and Wik decisions has not been the preserve of any one interest group. Unsustainable claims, multiple claims and overlapping claims, on the one hand, have been matched by a failure to negotiate in good faith, a failure to set up appropriate state tribunals and a failure to adequately resource the system on the other.

The virtual gridlock inherent in the current situation in Kalgoorlie, with its maze of overlapping, conflicting and sometimes unsustainable claims impacting on mining, residential development and many aspects of daily life, is a dramatic example of the need for considered, sustainable change to the act in the interests of all parties. However, this government has particular difficulty in dealing with the problem. It is attempting to amend an act dealing with a concept it long refused to accept or recognise. In so doing, it is tampering with a piece of legislation that it failed to address with any intellectual rigour on its part when it came before the parliament in 1993. It failed to understand the breadth of its intent, the complexity of its processes and, importantly, the head of power under which it was enacted.

It is in the national interest that the act balance and reconcile to the maximum possible extent the interests and reasonable expectations of both indigenous and non-indigenous Australians and of all stakeholders, be they miners, farmers or the Australian taxpayers. It is in the interests of all Australians that they not give in to the notion that co-existence is unworkable. We must accept that this nation is mature enough, compassionate enough and pragmatic enough for indigenous and non-indigenous Australians to co-exist, indigenous and non-indigenous cultures to co-exist, and the rights and interests attached to them to co-exist. We can work together for the benefit of all Australians.

The government must come to understand that native title rights are a reality and that they are here to stay. They have been recognised by the High Court as fundamental legal property rights and are entitled to the same respect and protection as the property rights of non-indigenous Australians. It is in the interests of all Australians that we achieve the maximum possible predictability and certainty in the operation of this act and in its practical operation.

This government must come to understand that there is an overriding need to guarantee the constitutional validity of this legislation and that its validity could be critically threatened unless it operates for the net benefit of indigenous Australians. We take the Prime Minister back to his oft repeated promises when he said this:

We don't wind back the Racial Discrimination Act . . . we don't attempt to reverse the Mabo decision . . .

Failure to act in a fashion that upholds the essence of the original act places at risk things that must be done now to ensure expeditious access for commercial interests vital to our national economy.

Labor supports the government in seeking to deal with the registration and determination of claims and the resolving of competing interests in an expeditious and effective regime. These objectives may be advanced by the proper and appropriate adjustment of the registration test. Equally, as we have already observed, these objectives can be advanced by further encouragement and legislative support for the various forms of agreements set out in the bill.

Nonetheless, this bill is seriously deficient and it requires substantial amendment. Our areas of greatest concern include the fact that the validation provisions exceed anything necessary for addressing any real or perceived problems flowing from the Wik decision. The government's measures purporting to confirm the extinguishment of native title through past grants of exclusive tenure involve massive overreach. The legislative provisions, including the schedule, do far more than confirm the current state of the common law as asserted by the government; they involve the extinguishment of surviving common law rights.

It is vital that pastoralists are permitted to fully enjoy all the entitlements they have been granted under their various tenures. Both the 1993 act and the Wik decision affirm that their rights extinguish native title to the extent of any inconsistency. We will support any amendments that give greater certainty and clarity to that reality.

The fact is that the application of the tax act definition of primary production, in defining the activities pursuable without going through the right to negotiate, is simply unacceptably broad. It would allow activities never contemplated in the grant of a pastoral lease which by their very nature require exclusive possession and thereby extinguish native title to the extent of the new inconsistency. It would, furthermore, convert public assets such as timber to private assets to the detriment of a native title holder.

The extension of the primary industry definition to vacant Crown land adjacent to a pastoral lease allows the leaseholder, with the permission of the state, to carry on any so-defined activity on that land without being drawn into a right-to-negotiate process, and that is a clear curtailment of the common law rights of the indigenous people. The test proposed to establish statutory rights is indefensibly restrictive. It requires contemporary, continued physical access. This denies a right of access to land previously exercised within the living memory of most Australians.

It must be stressed that each discriminatory measure in the bill raises the threat of a challenge to its constitutionality, with the consequence being uncertainty for all concerned. The right to negotiate was the critical item in confirming the constitutionality of the Native Title Act, yet this bill radically reduces its application. The degree of restrictive application amounts to a form of de facto extinguishment.

Changes to registration and claims procedures have rendered the system more rigid and legalistic, and consequently more expensive. Placing powers in the hands of registrars that they have not been resourced to use and doing so in a rigid and inadequate time frame will most likely see their decisions challenged with consequent bottlenecks in the courts. Provision for ministerial intervention before the determination stage will inhibit good faith negotiations and remove a key incentive for consent agreements outside the court process. Respondents will be motivated to lobby the minister rather than deal with claimants.

The decision to provide for the application of the rules of evidence and to downgrade regard for the cultural and customary concerns of indigenous applicants in the Federal Court is clearly discriminatory in that it impacts on no other parties and is out of sympathy with the nature of native title as outlined in the Mabo decision. It completely ignores Justice Brennan's statement in Mabo No. 2 that:

Native title depends upon the traditional laws and customs of the group, and the nature and incidence of native title must be ascertained as a matter of fact by reference to those laws and customs.

Any amendments that invite legal challenge must undermine certainty.

The bill descends into absurdity when it seeks to introduce a sunset clause. This is a recipe for ambit claims and guarantees a return to expensive and complex common law claims after six years. This must surely be the case, unless the government presumes that this bill so effectively extinguishes native title that there will be little to go to court over.

This bill must be made more practical. It must offer a genuinely attractive alternative to common law claims. It must address the legitimate needs of all stakeholders—no more, no less. Above all, it must be decent and it must retain the beneficial status of the original act, because if it does not do so it surely has to founder in the High Court. It must reaffirm the fact that the cultures of this nation can co-exist, that we can all enjoy our rights to our mutual benefit in our own best interests and the best interests of the nation.

This is not a bill in our own best interests and the best interests of the nation. This is the minimum achievable bill in a backbench deeply hostile to the concept of native title and deeply ignorant of the operation of the law of this nation in regard to it. It is a bill which reflects surrender by this government to that backbench pressure, and the product of surrender by this government to that pressure is that it means it has no solution. There is no solution arising from this.

We will cooperate with this government to overcome the problems that it has with its backbench to produce a piece of workable legislation. On behalf of what we understand to be the needs of this nation for certainty and the desire of the people of this country to find themselves in a position where this situation is settled, we offer that cooperation to the government. We have considerable understanding about the operation of this act, but if that offer is spurned by the government then that poses a substantial problem for this country—either in the form of the legislation they get through or in the political consequences that flow from that.

This government has to move away from the political motivations essentially underpinning their approach. This is a serious matter which is capable of being dealt with seriously, which is capable of being concluded and which is capable of producing an expeditious and effective process to arrive at conclusions. But that very desirable objective is not contained in this bill.