Senator BOLKUS (7:30 PM) —I think we were discussing water before the suspension of the sitting and, if I can just add to the discussion, it is quite apparent to the opposition that, even before this legislation passes this parliament, even before this package is endorsed by this parliament, it has been found to be inadequate. It is inadequate in that, although in the interests of the government the legislation may be seen to deny native title claimants a capacity to access their rights under the act, that is what it does do. It does not provide justice and it does not provide certainty because of those provisions.

We had the opportunity in December and in April to ensure there was some process, there was some protection and there was some consequent inducement for native title claimants to access this legislation. The government's sneaky manoeuvre, whereby the intertidal zone is taken from the ambit of the right to negotiate, may give them short-term joy but will give industry and stakeholders medium- to long-term problems until it is resolved in this place. The lack of process for other waters is also a major deficiency.

But the government do not care. They are passing the buck; they are passing the bill to the taxpayer. Richard Court will not care, because he will pass the bill back to the general Australian taxpayer. But we are only really doing half a job here—even if we are doing that—and by taking away indigenous people's rights we are not doing much of a job at all. I just do not think that Senator Minchin gets it. After listening to him before the dinner suspension, I was torn between arguing that he does not get it or arguing that, having spent time during the longest debate in the history of this parliament with him in this chamber, I suspect he probably does get it but does not want to acknowledge that there are problems in this legislation.

We are not implementing this legislation for the sole benefit of indigenous Australians. Native title does not derive from this legislation. It does not derive from High Court decisions. Native title is recognised by High Court decisions as pre-existing. To the extent that we do not accommodate native title through processes settled by this parliament, then we are not doing our job.

As I say, even before this package gets through this place, it has been found to have major inadequacies by the ruling with respect to water. But those inadequacies do not just stop there. This is a package that was promoted using those buzz words `fair', `just' and `certain'. It is not fair. No-one in their right mind would claim that it is fair. It is not just. Even the process was not just. But certain? Certainty has been thrown out the window by the Croker Island decision. Certainty is certainly not embodied in proposed section 43A, the provision that is now before us.

Let us look at proposed section 43A. We had major concerns with it in April; we have more concerns with it now. It is now deemed to cover not only pastoral leases but also historical and current freehold and leasehold. So the ghost leases are now covered. It covers reserves, including national parks and Aboriginal reserves. It also covers proclamations, dedications, land used for any purpose, and areas within a town or city. How can one justify the application of this provision to proposed section 43A and the consequent exclusion of the right to negotiate from those areas?

It basically means that, if all the state governments establish the section 43A regime, the right to negotiate will apply only to a minuscule part of Australia in respect of a minuscule range of rights. The government's rhetoric has given us absolutely no basis for extending the application of this scheme to historical leasehold, freehold and reserves. But that is what has been done here, without any explanation to the public or to indigenous interests.

The application of proposed section 43A to historical interests means that the right to negotiate will not apply to vacant crown land, existing Aboriginal reserves and Aboriginal owned pastoral leases. At the very least, the government should have made an exemption for these categories of land and permitted the right to negotiate to continue to apply. That is a fundamental concern.

If you want certainty, you do not come up with this option. This option is riddled with uncertainty. Subsection (3) deals with notification of the scheme to Aboriginal and Torres Strait Islander bodies about aspects of the scheme. They are notified and they are invited to put forward submissions. But there are no time frames specified.

In fact, there are no time frames embodied in this legislation at all. So you will have the uncertainty of different states perhaps coming up with different time frames. You will have the uncertainty of maybe having no time frames at all in some states. You will not have the benefit of the right to negotiate provisions where there are definite national time frames which are conducive to achieving outcomes. There are no time frames specified for the lodgment of an objection in response to a notification or to prepare, lodge and secure registration of a native title application. This leaves the process open to abuse from hostile state and territory governments.

Haven't we already had three or four years of abuse by those state governments? To say, as Senator Minchin said before the suspension of the sitting, that Aboriginal Australians had expectations but they were not realised and to say that so glibly without recognising that conservative state after conservative state went out of their way to frustrate the processes here is being misleading.

Required under existing provisions for the right to negotiate is, amongst other things, negotiation in good faith. This provision junks that requirement. In respect of the creation of a right to mine, the proponent—that is, the miner—has a duty to consult with registered native title claimants. In the instance under proposed section 43A, that consultation is limited to `minimising the act's impact, access and the way anything authorised by the act may be done'. It goes back to the point I made earlier on about a capacity for indigenous Australians to basically get on their own feet through access to native title.

In the case of compulsory acquisitions of native title for a grant to non-government parties, the grantee party has absolutely no duty to consult with native title holders, be they registered or otherwise. With no duty to consult, you strip away immediately any legal requirement that would lead to commercial negotiations over the land. Consultation is limited to minimising the act's impact.

It is worth noting the registration processes here because it will not be all that long before this particular aspect is brought back to this parliament. Unlike the right to negotiate, the process in 43A does not provide a process for native title holders to become registered. Senator Harradine, you may not have thought of it, but there are a lot of things in this package that you never thought of.

Senator Harradine —I thought of it all right. You don't understand.

Senator BOLKUS —So what happens in those circumstances? We have legislative encouragement here for the blanket lodgment of native title claims. What does that lead to? Confrontation, cost and lengthy processes. Apart from the government's acquisition for its own purposes, the scope of negotiation is limited in comparison to the current right to negotiate. I would like to know, for instance, what criteria will be taken into account in any determination under this alternative clause. In respect of the right to negotiate, we have the criteria in section 39. Do they still apply here? That is a question that the minister may choose to answer. That is a question that Senator Harradine may also choose to answer. He may not, of course.

There are other problems with the right of objection. Only registered bodies and native title claimants have the right to object to the doing of any act in so far as it affects their native title. An independent person or body, which includes a mining warden, hearing an objection can make a determination upholding the objection or impose conditions to the doing of the act, provided that the conditions relate to the registered native title rights and interests. Unlike section 39 of the current Native Title Act, as I said, there are no specified criteria. In addition, the state or territory need not comply with the determination if it is deemed to be in the interest of the state or territory not to do so.

In relation to judicial review, the paragraph basically restates the current position of all persons at law, that they may seek a judicial review of the decision to do the act. The paragraph does not apply to the decision of the independent person or body, only to the decision of the granting body or the minister. Then you have ministerial override available to a state or territory, to a minister in a state or territory who may deem that it is not in the interests of the state or territory or in fact not in the interests of a relevant regional locality not to do so. Native title—a national issue—may not be in the interests of a relevant local regional locality and, as a consequence, there is a ministerial override.

We find the provisions with respect to compensation and heritage protection quite fuzzy. But the thing about the proposed section 43A provision we find quite incredible is that it really does not provide certainty in any sense at all. I go back to that initial point: there is no certainty as to time lines, no certainty as to what criteria are relevant.

We also find problems with the alternative section 26A. It is too broad in its application as far as we are concerned. The Senate took a position earlier on in this debate to ensure that acts that could qualify for section 26A endorsement had to be acts which had an insignificant impact on native title. That has been changed now to basically provide for acts that have only a minimal effect on native title. Exploration activity likely to be covered by the section, on our advice, will include mining and retention licences, bulk sampling—in some states up to something like 20,000 tonnes—and extensive drilling. You extend the capacity of activity that flows straight through under section 26A; you offer a more limited right to be consulted; you do not provide a process for native title holders who have not had their title determined to become registered claimants; and you do not have a right to have an objection arbitrated by an independent body, as was passed by the Senate last time. Then you have the granting body, usually a state or territory minister of mines, having an absolute discretion to ignore the concerns of native title holders.

There is no justice and, because there is no justice, there will not be any certainty. And that catch-cry with which this package was promoted last week is not going to be realisable. I do not have to tell the public that in the eyes of the public this package promoted last week was seen as a desperate measure to save the leadership of the Prime Minister (Mr Howard). It was seen to be a last-ditch attempt; it was too late. I think the public appreciation of this issue is such now that they do not believe the Prime Minister when he says, `Oh, well, I've fixed up the problem, I'm giving you certainty,' because they know that he has never been up to this task. He has never been able to show the national leadership to handle it.

Senator Harradine, you may have tried to help, you may have shored up his leadership for some time, but although you might have done that you will never be able to make a real Prime Minister out of him. You will never be able to make a Prime Minister out of John Howard, about whom the Australian public will say, `We're proud of him.' You will not be able to do that because he has shown in this debate that he is not up to the task. You have presented to stakeholders an uncertain model and, as I say, this is not the last time we will be in this place discussing it.