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Tuesday, 13 February 2007
Page: 77

Ms MACKLIN (7:20 PM) —I think it is important for us to remember that it was a momentous time in Australian history when the fiction of terra nullius came crumbling down and the then Labor government, with Indigenous leadership, negotiated to pass the Native Title Act. This is an opportunity to remember that very significant time in our history. Of course, the legislation was not perfect, but it was unprecedented. Some things had to be tried out with the understanding that there might need to be finetuning in the future. Years later, one of the good things is that native title has become part of the everyday business of mining companies and pastoralists. I would like to pay a particular tribute to the late Rick Farley and his extraordinary work, especially during his time with the National Farmers Federation, to make native title a reality for so many people.

There are many issues to be addressed to improve the workings of the Native Title Act but, unfortunately, the Native Title Amendment Bill 2006 is not the answer to many of the problems facing the native title system. Recently, we have seen reported research from Griffith University which provided a very timely insight into the effectiveness of Indigenous land use agreements. The study of 45 Indigenous land use agreements over the past 10 years found that half of them ‘were either basket cases that should never have been entered into’ or delivered few benefits for Indigenous Australians. The study also found that Indigenous groups:

… are seriously deficient in the financial, organisational and technical resources required to deal with modern, complex development projects and the companies and state agencies that promote them.

I think this really is the critical point facing the native title system and unfortunately this legislation does not address this significant concern at all.

The challenge for representative bodies is complex indeed. They must not only act in drawn out legal and project approval processes while monitoring the activities of third parties but also consult with traditional owners who are spread out over large and sometimes remote areas. Representative bodies need to be proficient in the law, in policy, in politics, in culture and in strategic planning. Yet the study I referred to earlier concluded:

Federal policy and legislative and budgetary initiatives during the last decade have substantially weakened the negotiating position of Aboriginal people.

Noel Pearson from the Cape York Institute could not agree more. In the Weekend Australian he wrote:

The federal Government has continued to legislate to weaken the indigenous position, both in terms of the procedural rights of landowners and the institutional support they receive from land councils. They are now proposing another round of amendments that further threaten the capacity of indigenous people to deal with developers.

Pearson described the challenges for land councils in dealing with fragmentation and overlapping claims as ‘an enormous native cat-herding challenge’. He also argued that their limited commercial and financial capacity was no match for mining companies that have ‘Adam Gilchrist flashing the blade for them’. So, once again, the missed opportunity that this bill represents is very disappointing and I think Noel Pearson captures that very succinctly.

Despite the recommendation of the red tape evaluation report of the Office of Indigenous Policy Coordination that the government move away from rigid compliance frameworks to a focus on capacity building and community outcomes, we see another piece of legislation here tonight that is premised on more top-down accountability and box ticking. Under the Native Title Act, native title representative bodies represent traditional owners to advance their native title interests and broader community agendas. They have to build relationships with non-English speakers and with people who have totally different concepts of information sharing, knowledge and lifestyle. They have to cross very significant cultural divides and build trust. They have to become custodians of delicate intellectual property. They certainly have to be more than a government agency. But the bill, instead of moving towards capacity building, treats native title representative bodies like, for example, Job Network providers that can easily be replaced or franchised.

Labor is all for making native title representative bodies perform better and be more accountable to the people they represent. That will be achieved, however, by building the capacity and governance of representative bodies, encouraging quality and long-term staff and empowering traditional owners to hold their representative body to account through community education. It certainly will not be achieved by putting more bureaucratic hoops in the way. We need to foster more upward accountability from the people on the ground so that they can really see if the body representing them is doing a good job. Native title representative bodies already endure too much red tape and bureaucratic micromanagement. You have only to look at the government’s own report to confirm that.

We support the move to make funding agreements longer than one year, as provided in this bill. But we do not support putting those bodies through periodic ‘rerecognition’, primarily because it is unnecessary given the Attorney-General already has the power to withdraw recognition for a poorly performing native title representative body. It is cumbersome and contrary to the principles of capacity building. Instead of doing this, the government should implement the recommendations of the inquiry into native title representative bodies. The inquiry recommended that the government immediately review the adequacy of funding for these bodies and target their chronic staffing issues but that proposal has not been picked up by the government. The Attorney-General’s Department claims that some representative bodies have underspent their budgets because they cannot attract or retain staff. You would have to ask, ‘Why would you want to take a three- to six-month contract with unattractive pay?’ The bodies need to be better resourced to attract experienced people so that they can do the job that needs to be done.

The inquiry also recommended that the government second expert government staff to representative bodies and provide ongoing professional development and scholarships to staff. Once again, these proposals have not been picked up. It is recommended that the government develop comparative data, based on a range of indicators, to assess the relative effectiveness of representative bodies and publish this data annually. These indicators could include their levels of client satisfaction and their success in forging regional outcomes with industry, like jobs, investment in Indigenous enterprise and social programs. Sadly it seems that the measures affecting representative bodies in this bill were written with no regard for this bigger picture.

The bill introduces periodic terms for recognition of representative bodies. Under the existing act, these bodies enjoy indefinite recognition, which is tempered, however, by the minister’s power to withdraw recognition if a body is poorly performing. Not only does the bill introduce periodic recognition, it makes it easier for the minister to withdraw recognition. The test for withdrawal has been broadened and the minister is required only to give 60, not 90, days notice. In our view, this expansion of ministerial power is unnecessary and frankly over the top. It leaves representative bodies even more vulnerable to political interference and undermines their independence.

Periodic terms will inhibit strategic business planning. It will require more resources to go into the reapplication process; it will increase infrastructure costs as leases or hire will be more expensive; and it will destabilise negotiations with third parties, as there will be less certainty. I am sure the government is aware that an average native title claim can take six years. What is more, if we go to short-term periodic terms, it will make it much harder to attract and retain quality staff.

It is also a possibility under these changes for the minister to open native title representative body services up for tender. We certainly hope that this is not the intention of the government, as clearly private law firms would not have the expertise or capacity to carry out representative functions. The minister’s new power to change the territorial boundaries of a representative body without its consent is also unwarranted. Their areas are usually dictated by regional clusters of clan and language groups. It is reflected in the body’s constitution and membership. The representative body should have a final say as to who it represents.

The amendments in this legislation will not improve the performance or capacity of representative bodies to advance Indigenous interests. This really goes to the core of the issue. The annual Native title report of successive Aboriginal and Torres Strait Islander social justice commissioners has called for proper funding for representative bodies so that they can research and pursue the regional tasks that are their responsibility.

Indigenous land use agreements could become common tools of economic development but, as the report I quoted from Griffith University indicates, that is not occurring at the moment. Stronger deals could be struck as the technical and procedural aspects of negotiation become less onerous and time consuming. It would be much better to see our representative bodies becoming forces to be reckoned with like their counterparts in New Zealand and Canada.

Instead of investing in the capacity of representative bodies, the government has invested its faith in the National Native Title Tribunal, which is far from a proven performer in this field. The government believes that the expanded powers to assist the Federal Court with inquiries, including the power to compel parties to attend mediation and produce documents, and to report parties who negotiate in bad faith, will give the tribunal the teeth it needs to become effective. We would like to hope that that is the case, but the submissions to the inquiry did not express the same optimism. The National Native Title Council argued that mediation was a lot more effective and expeditious in the Federal Court than it was in the National Native Title Tribunal. This argument is grounded in the Griffith University research, which found that the best land use agreements were negotiated outside the tribunal.

The independent Claims resolution review report noted that, as of January 2006, 76 per cent of mediation in the tribunal had been going on for more than three years and that just under 48 per cent of mediation had been going on for more than five years. The Minerals Council of Australia has offered its cautious support, but only on the condition that the tribunal dramatically improve its performance and capacity with existing resources.

The objectivity and impartiality of the tribunal has also come into question. Although it will be exercising quasijudicial powers, it will continue to be part of the executive or administrative arm of government. Of course, Labor do support non-adversarial processes. We understand the merits of tribunals. We support them in various parts of government—in industrial relations and administrative appeals, for example—but we need to have a serious rethink about how well it is working in resolving native title claims.

It is clear that the tribunal’s processes and difficult interactions with the Federal Court are one of the ills of the native title system. We are not to this point convinced that giving the tribunal more power in more parts of the process will help. We would like to know how the government will assess whether it is working or not. How does it intend to monitor the performance of the tribunal, given the figures that I read out before? The fact that 76 per cent of mediation in the tribunal had been going on for more than three years does not look like a recipe for success.

The changes before us in this legislation give prescribed bodies corporate more freedom in their decision making and the ability to benefit from economies of scale by sharing their infrastructure with other bodies. These are positive changes, but once again I do want to reiterate that they do not address the most pressing concern: how these bodies can generate an income or plan strategically without any resources. That issue is not addressed in this legislation.

The Minerals Council was particularly disappointed with the government’s failure to show more innovation in this area. We share in that disappointment on this side of the House. The government needs to go back to the drafting board—this time with the informed advice of stakeholders at the forefront of its mind. As the shadow Attorney-General has indicated, Labor will be drafting substantive amendments to address our concerns with this bill, which we will move in the Senate. I do hope that the government will look at these amendments, which will be put in good faith to improve the workings of the native title system. At this stage, without these amendments, Labor cannot support the bill. I support the second reading amendment that has been moved by my colleague.