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Thursday, 14 May 2009
Page: 3878


Mr MELHAM (10:53 AM) —I have great pleasure in rising to support the Native Title Amendment Bill 2009. Before I go to the substance of the bill, it is important to give a little bit of history.


Mr Tuckey —I did that last night, Daryl!


Mr MELHAM —I have no problem with the honourable member for O’Connor engaging in a little history; what worries me is those who seek to rewrite or distort history. History is generally given by the winners, and the losers tend to be the ones who struggle. In many instances Aboriginal people over the years have been the losers and they have not been able to get their story out. In terms of native title, it was a Labor government that was in power at the time of the original Mabo decision. What the Labor government did—and I was a member of the government at that time—was to try to stick with the principle of the recognition and protection of native title. Indeed, the Attorney in his second reading speech talks about the key objective of the government being to try to resolve issues through negotiation where possible rather than through litigation. If one goes to the preamble of the original Native Title Act they will see that that was the whole basis of the act. Rather than go through the common law, have litigation and knock-down, drag-down court cases that cost millions of dollars and where only the lawyers are empowered and enriched, we attempted to set up an alternative system of mediation and negotiation.

There is no doubt that it was legislation that was evolving in an area that was largely unsettled and unknown. But the principles were protecting native title and providing this alternative system. If you wanted to be involved in native title, in terms of mining and pastoral activities, there was a process. It was always recognised that the legislation would need to be amended—that it would not be the final resolution of the matter because there would be court cases and there would be evolution and we would learn from experience. It was always the view of the Labor Party that there were certain principles to maintain. In the end, we acted in a non-racially discriminatory way in terms of that legislation. The then Prime Minister, Paul Keating, needs to continue to be commended for the way he conducted himself and his government in those years. History will treat him very kindly because he ended up with a principled, balanced response.

Certainly, there was validation in relation to titles. I do not want to go into all the details of that but, with the change of government in 1996, you had a government that was hostile from day one to native title. It had been hostile in opposition and as a result of the Wik decision brought down 400-odd pages of legislation with bucketfuls of extinguishment and basically constricted the way that native title claimants and others would be involved. Is it any wonder that, whilst there has been a number of issues resolved both in the courts and by way of mediation, a lot of money has been spent strangling the system, trying to deny native title claimants their rightful due? One of the ways of doing that was in effect strangling representative bodies in terms of funding.

One of the good things in last night’s budget is that an additional $50 million, over four years, has been allocated by the government to the native title system. That is consistent with the legislation before the parliament at the moment—to help build a more efficient system that focuses on achieving resolution through agreement making rather than through costly and protracted litigation. And mining companies know this, because in a number of instances they have funded Aboriginal groups so they can resolve native title claims. What we have here is additional funding—$45.8 million—to improve the capacity of the native title representative bodies to represent native title claimants and holders. A further $4.3 million will be allocated to improving claims resolution by working with state and territory governments to develop new approaches to the settlement of claims through negotiated agreements.

We are along the way. I am pleased. I understand that the opposition is supporting this particular piece of legislation. Hopefully, post the Wik resolution or the legislative resolution by the former government, instead of dealing with this matter in a combative way we as legislators can deal with it in a conciliatory way so that we can build on what gains have been made and improve those situations or systems that are not working.

What this legislation will do is:

… amend the Native Title Act 1993 to implement institutional reform to give the Federal Court of Australia a central role in managing native title claims.

One reason for that is the central role at the moment of the Federal Court system in dealing with native title claims. This will allow courts to be better involved.

As I understand it—and I am relying on the Parliamentary Library’s Bills Digest—during the Native Title Claims Resolution Review there was a difference of opinion between Graham Hiley QC and Dr Ken Levy. Dr Levy disagreed—and probably still does—with Mr Hiley on who should have ultimate control of native title alternative dispute resolution. He felt it should be the tribunal, and I think the former government agreed with that. But the current government is of the view that this has not worked to create an efficient native title mediation process and has made a policy decision to follow Mr Hiley’s recommendations to give the court mediation powers. Interestingly, the court will have an ‘overseer of workload’ role as well as a role in the mediation process through the registrar, deputy registrar, district registrar or deputy district registrar of the court. In relation to the mediation role of the Federal Court, Andrew Chalk, a practitioner in the field, commented that it is not without criticism, saying:

One complaint made against giving the Court control of the mediation process is that the judges, because of their very independence, are apt to be inconsistent in their approach.

However, he says:

… the Federal Court, with its collegiate appellate structure, national allocation of judges and Commonwealth jurisdiction with powers of cross vesting, is suited to developing consistent national approaches that are still sufficiently flexible to have proper regard to the circumstances of particular States, regions and matters.

It is acknowledged by many people that the current system of having the tribunal manage all the mediation process has not worked to produce efficient native title outcomes.

At this point can I make a comment on the new Chief Justice of the High Court, Justice French. He is someone whom I had a lot to do with in the late nineties when I was shadow minister for aboriginal and Torres Strait Islander affairs and he was President of the Native Title Tribunal. I think he is a very decent, honourable human being and will bring expertise to the High Court, certainly in relation to his experiences as President of the Native Title Tribunal. I notice that he made a speech recently in relation to some of the evidence that might be required to establish native title claims.

What I am pleased about is that there was not an outcry after he made that speech—that, in effect, we are having discussion and debate across the spectrum and that we are sticking to the facts; we are not getting blindsided by either side. I think this shows that in this area we are maturing, hopefully, which will be to the benefit of not just Indigenous people but our nation. For too long, a lot of this debate has been as a result of ignorance and prejudice, which has sidelined proper policy. It is good policy to evolve to the point where we are bringing the Federal Court into this more and more, as is proposed through this legislation.

I am not saying that this is going to be an easy road—it is not—and I am not saying that Indigenous people are necessarily going to achieve everything that they seek, but that is the case in the court system in general. In the civil system, where people make claims in relation to negligence, defamation or whatever, you set up a system where people can test the validity of what they are claiming. In this instance, I think that governments at all levels—and the general community too—are realising that it is in everyone’s interest to try to encourage people into the mediation and negotiation stream for resolving conflict, as against the litigious stream, which does not suit anyone. I think that we are better for that—it is like an alternative dispute resolution, which is what the Native Title Act was originally set up to do.

The Native Title Act, and its associated processes, was enacted because miners and farmers wanted certainty. They did not want common law claims that would be locked up in the courts for as long as 10 years or more—look at the history of the original Mabo case and how long it took for that to be resolved. The system evolved as an alternative to common law, and that is what we need to continue to refine. In terms of mediation, I cannot see how involving the courts in what we are proposing in this legislation can be anything other than good, because they carry a status, a stature. I do not accept that they are necessarily divergent. We are all divergent in our views. I know that among people involved in the tribunal there are divergent applications. That is human. But, when you have cases resolved on certain principles coming into the system, people have the principles on which to work. You then have less deviation from individuals concerned, if they are doing their duty properly. My view is that it is not about being a total bleeding heart or about being hard-headed. You have to have an underpinning for your decision for the system to maintain its credibility.

As I said, I can understand that those opposite might want to attack the land councils or the native title representative bodies, but I say to them: I was a criminal defence lawyer by trade before I came into the parliament, which was a bit more black and white—as to what might constitute a murder or whatever—than being a native title practitioner working with an evolving law in its early stages and trying to get the quality and expertise on the ground across the whole of Australia.

The honourable member for Kalgoorlie and I were on the then House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs and we looked at a lot of these land councils and saw variable quality—good, bad, ugly and indifferent. They were not all bad, but, when you look at what they had to work with, let me tell you it was pretty hard for some of them. They were underresourced. Of course there are divisions in Indigenous communities. There are divisions in non-Indigenous communities. There are competing claims—you have disputes over family wills and inheritances where people are included or left out—but there are processes to resolve those claims. Part of the problem goes back to the original structure of the Native Title Act. I do not know how thoroughly it was considered at that time, but there might have been an argument that native title claims should be made through rep bodies so that a lot of the dissent was filtered out before claims were advanced. That was an alternative, but there are arguments against that which are pretty apparent, where people could be locked out in power struggles in certain communities.

It is not a perfect act, but I think this amendment bill heads in the right direction and the government has put its money where its mouth is. The objective of the funding is to make sure that these bodies receive some assistance in arguing their cases.

The interesting thing is that in the old days we would have just heard shrill from some opposite. There is still a little bit of shrill, but not to the extent that there once was, and one has to recognise that. I quote the preamble to the explanatory memorandum:

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

That is what I think this bill is all about. I am not frightened of judges being involved in the process. Indeed, I was very happy at the time that His Honour Justice French was the President of the National Native Title Tribunal. I know that he had a difference of opinion with the then government around some of the misinformation that was put out there and allowed to run in the community, but, in my view, the fact that he was a judge added to that position and he acted honourably. That is why I do not accept the argument that, with the involvement of the Federal Court, you will get a variation in the dealings of native title to the extent that judges should not be doing it.

I have great respect for our judiciary. They make mistakes, like the rest of us, but their mistakes are mistakes in good faith. They are mistakes of judgment, which all of us make, but the interesting thing is that what we are talking about here is not a judicial settlement in the sense of a judgment; it is a negotiated settlement where agreement is reached through conciliation. It is not a judicial pronouncement; it is the Federal Court providing a little guidance and assistance, as I read it. It also needs state and territory governments to step up to the plate, because too often at a federal level—and this was true, I think, of the former government—settlements were sought but the states were a bit intransigent in their attitudes.

I have spoken a bit longer than I had planned, but when I get on to native title I tend to take a bit longer because it is something I have followed since 1993—not from a personal point of view, but it is something I believe we need to handle sensitively, depoliticise and get right to the best of our ability. I would like to see the opposition and the government in the cart together. We want long-term solutions. The worst thing in the world is getting contentious amendments every time there is a change of government. That does not help anyone and it certainly does not help Indigenous people.

In summary, the amendments:

  • require the Court to refer all native title applications for mediation, subject to exceptions in line with current provisions
  • allow the Court to refer a whole or any part of a proceeding for mediation to a Court mediator, the NNTT or another individual or body
  • allow the Court to consider the relevant training, qualifications and experience of potential mediators
  • allow the Court to cease a mediation in a number of situations in line with current provisions and add a new ground where it considers it appropriate, the Court may also refer it to another mediator following a cessation order
  • allow the Court to make any orders about the way in which the mediation is to be provided, what assistance may be provided to the mediator or any other matter it considers relevant when referring a matter for mediation, and
  • allow the Court to refer for review by the NNTT the issue of whether a native title group that is a party in the proceeding holds native title rights or interests.

And there are other amendments. I do not think there is anything there that any of us can disagree with. (Time expired)