Mr TUCKEY (10:11 AM) —Naturally, I too support the extension proposed in the Extension of Sunset of Parliamentary Joint Committee on Native Title Bill 2004 of the operations of the Joint Statutory Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund. Clearly, the parliament has a distinct responsibility to oversight this important legislation in a bipartisan fashion. But it also therefore gives me an opportunity to comment on the operation of this legislation, and hopefully some of my remarks will be taken account of by the committee, if not by the government of Australia—or governments, given that the act requires both state and federal governments to legislate. Let me say that the failure of state governments—and, in fact, the absolute rejection of their responsibility, in the case of the Gallop government in Western Australia—to take up their responsibility to give native title, particularly in the context of pastoral leases, a substance which allowed for its resumption as it would apply in other circumstances, with appropriate compensation of which the Commonwealth promised the states it would pay 75 per cent primarily as a means of overcoming the logjam that exists in dealing with native title, was very foolish.

I thought it was very foolish, because it accepted a principle that the High Court has virtually not designated. There could be a more appropriate or formal property right than native title. Where it might exist state governments could make even a prospective decision to resume it to allow for other development, but, where there was a proven loss arising from that native title, compensation would be paid. That is a fundamental principle of land ownership within Australia, and I think it was a major contribution to the system that was offered in the Howard government's 10- or 12-point plan that passed the parliament many years ago. I had a significant interest as the backbench chair of the committee that made those suggestions.

It was not something designed to take away from the Aboriginal people; it created an opportunity where people could get on with business that was in the national interest, if that was the view of the state. It might be a mineral claim or it might be the business of development, as I have found in my own electorate. The time taken to resolve native title issues—which sometimes, it is eventually agreed, do not exist—in order to add a small industrial estate to the boundaries of a town in one of my electoral areas is just outrageous.

Opportunities are lost. Someone comes along and says that they want to create jobs in a particular town and that a piece of land is required. They might be transferring business activity out of the city. They go down to DOLA, as the Department of Land Administration in Western Australia is known, who say, `We will now have to research all the native title issues.' By the time that research has passed through all its processes, the entrepreneur who wanted to move into the town has gone and rebuilt in the city or somewhere those issues do not apply, so the opportunities for decentralisation, jobs in rural and regional areas and economic diversity are lost. To me, that is very foolish and would have been overcome by the government simply saying: `We will resume native title rights in this area. We are not really sure what they are, but we the Commonwealth will compensate the appropriate interest groups in due course.' That still stands in the Commonwealth statute book but, of course, it has not been taken up by a single state government. As I said, it was taken up by the Court government in Western Australia, but it was overturned by the Gallop government.

In my view, the operation of native title—not the principles—is quite debilitating to the process of development, and that frequently reflects on even advantage to the local landowners, the Aboriginal people that may have native title rights. Nevertheless, it is worth putting on the record that the High Court in its Mabo judgment—and the member for Fraser gave that a fleeting remark—said that native title was not an estate in land; it was a form of access to land for certain historic and cultural purposes—for instance, the conduct of ceremonies or hunting and gathering. Of course, it is very hard to put a value on those things.

The Keating legislation, which still survives, said that, where a native title claim might be made, the participants with the exception of the claimant—that is, the prospective Aboriginal native title holders—would negotiate in good faith. For reasons I cannot understand, because it should be a universal requirement, the Aboriginal people are not required to negotiate in good faith. History proves that that has unfortunately become the right not to negotiate. The act has some provisions that allow claims and anything else to be arbitrarily taken after quite a lengthy period to the Native Title Tribunal. Other parties have to turn up to meetings to discuss issues related to that. I do not object to that but Aboriginal people frequently do not turn up, so there can be no negotiations. That is their right under the legislation.

I think that, if ever the committee wanted to uphold the good Aussie principle of a fair go, it would make it a requirement that all parties negotiate in good faith—if only to progress the matter. The great benefit that so frequently arises for claimants, whose rights to a claim are probably very shaky, is the extension of the negotiating period to a point where someone who, for instance, has a highly prospective mineral area and wants to get on with the business of development to the benefit of all asks: `Just how much do you want? How much should I pay to get you out of the road?' There may be no legitimate claim at all, but if you have spent $1 million on exploration, you have a prospective title and you want to get on with it, maybe $10,000 or $20,000 is cheap. That is fine in my mind, if there is a genuine inherent right in the claim. But, if there is not, why should people be forced to pay just to clear the decks?

A constituent of mine informed me the other day that he had eventually obtained a right to drill for oil. I would think that that is pretty important for Australia. But he has been telling me for at least three years of the battles that he has had over claims which have eventually come to nothing. There was no claim in the end because none could be substantiated, but the delays to that project might be quite expensive if he discovers oil—oil that might have been assisting Australia in its balance of payments.

I think all of us the other day got a bit of lobbying from APPEA, the petroleum export association, who told us of the great opportunities for our national economy arising from their gas reserves and how they might be better encouraged to progress those businesses. They raised the issue—which other sectors of the minerals industry are raising with government—of flowthrough shares. Flowthrough shares virtually mean that, if you invest in a company that is in exploration, the losses that that company incurs in its processes of exploration can flow back to the shareholder, who can then of course reduce their personal income in that process. However it is described, it is virtually a tax incentive to encourage people to invest in exploration. Prior to the Native Title Act, no such incentive was needed. I am not sure that flowthrough shares will overcome the problems that people experience through the delays to their right to explore and develop that arise from the failings of the Native Title Act or the failure of state governments, who are the land administrators, to take up the options that are inherent in the Commonwealth act as it was amended.

None of this is designed to take anything away from genuine applications for native title. It is all about speeding things so that both parties can come out of it with a better arrangement. That is very important. I think, consequently, that this committee in its extended life should be coming back to the parliament with some clear recommendations as to how we can get the situation moving. If an Aboriginal group has a legitimate claim that can be resolved, it might be resolved if all parties were obliged to turn up to the negotiation session. But one party turns up and the other does not and it drags on and on until it becomes a tribunal issue and then the tribunal has a backlog. It may then extend to a court somewhere and the court will have a backlog too. Who wins from that? Nobody. In fact there could be a unique situation where a native title right could be resumed on a pastoral property, which is mostly where these developments occur, and it could be paid out in due course in compensation. That is something that would benefit all parties.

On the matter of native title, I think the Kimberley Land Council were complaining the other day that they were short of funds to proceed with certain legal cases. This is another issue. We have all this litigation associated with these matters, and huge expense. Unfortunately in some cases the defendants—those who consider they are the titleholders under the laws of Australia—find themselves entering into huge legal costs with no assistance financially, whilst the applicant has been virtually 100 per cent funded by the government. But we find today that, for certain land councils, the funding they have under the current methods of distribution is insufficient.

As you would be aware, Mr Deputy Speaker Scott, a group of members of parliament made a submission to the Hatton inquiry, which was looking into the financing and funding associated with ATSIC. They made a suggestion, which I stand by very strongly, about the current tops-down funding process, as I refer to it, where a very large amount of money is transferred to ATSIC—now ATSIS, because the government has decided to take back the chequebook from ATSIC, for reasons that have been well publicised. There are funding decisions made in Canberra that eventually filter down through a series of Aboriginal organisations and a fraction of the money eventually arrives in the areas where it is needed most. We proposed to that inquiry that we should reverse the funding—that we should take up the local government model, where the Commonwealth government allocates an amount of money and it is distributed immediately and in full to the 727 local authorities.

If one looks at the language borders that have been laid out by the Institute of Aboriginal Affairs—I think it was them; I have certainly seen a map in their building—there are just over 300 acknowledged language areas. I am of the belief that they would probably come up as the appropriate boundaries for a series of Aboriginal local authorities. I choose to call them boards of trust, and I do that because I openly admit, from my own long experience in dealing with Aboriginal people, that they are under huge family pressures if they are the keepers of money. There needs to be a process to protect them from those pressures. They are not dishonest but they can get trapped into doing things that are not compatible with the administration of public moneys. So I call them boards of trust. I see a process were all that money is identified in the budget, similar to the local government funding, and the Commonwealth Grants Commission would decide how much each of those boards of trusts receive on a weighted per capita basis.

We know how to do that. They are experts in that field. There is no politics in it—we are not running around buying votes or anything like that. We make a commitment—it is quite a huge amount of money—and then that body sit there and make judgments as to where they want that money to go. They might make judgments about contributions to their local hospital to get better amenities. For instance, I would hope that, rather than funding Aboriginal health, which frequently puts another GP in a town that desperately needs specialist services and does not need two GPs—it is just not big enough—those people sitting in judgment with their own money would make better expenditure decisions.

I propose that the trustee of those funds might be the nearest local government authority, which in some cases would be an Aboriginal council but one subject to the laws of the state in terms of prudential arrangements. They would be there to countersign cheques and give some protection to the boards if they were asked to make financial commitments that were not within the guidelines. I would like to think that the parliament and the government were prepared to further discuss that.

I was very impressed with the support my submission got. Some 12 or 15 MPs wrote letters of support for those fundamentals. The Australian started to try and say, `Tuckey is saying that Aboriginals cannot manage money'. That was not what I was saying. Some of them can do it very well. As an example, I used to cash tens of thousands of dollars worth of cheques in my hotel for hardworking Aboriginal people who had jobs on the main roads and so on, and they always wanted $5 or $10 in single dollar notes to settle with the rellies, who knew it was payday and were waiting outside. They knew they had to take the bulk of that money home to their wife and family, but they were also under pressure to share what they had with others who might have been worse off. Unfortunately, that situation progresses right up to someone who has to manage money that the Commonwealth has provided. I think there needs to be a process. Some might have a different idea of how to do it, but the fundamental of our proposal was that the money should go out on the ground where the real need is and that people living there should make decisions within guidelines as to how it would be expended. The management of that money, we thought, was important and we did not leave that out of our submission.

I just add that to the day because, to the extent to which the community would want to fund native title issues, I would like to think that the process did not put pressure financially on people and that there were simpler and better arrangements. That is why I raise that matter also. I note that I am running out of time, so I will close my remarks. It is an important issue and it is important that Australia continues to have economic growth, if only to make sure that it has funds available through the taxation system, the royalty system and other proposals to help people in need, whatever their ethnic background. I think we have had too many delays. I think the mining industry has a false hope that they can extend their exploration activities by taxation incentives unless the administrative processes they must deal with today with native title are made more effective.