Senator HARRIS (1:15 PM) —I rise today to speak on a matter of public interest, and in doing so would like to convey to the chamber both that I am a member of the association that has prepared part of this matter and also that I have mining interests. The Commonwealth Native Title Act does not work, and the right to negotiate does not work, unless there is an incentive. If this incentive is a large compensation payout, or the possibility of a large payout, then there are no problems negotiating an agreement. As an example, I refer to the settlement of the Century Zinc payout. For the traditional small family miner in Queensland, a few hundred dollars is a lot of money. The Aboriginal native title claimants see this as not worth talking about. Therefore, as all that the small miners can afford to pay is insufficient to attract the interests of the Aboriginal claimants, the process does not work. The small miner can negotiate forever and they will never get an outcome.

Section 29 of the Commonwealth Native Title Act does work. This is the section that sets out a process with set timelines that end with an arbitration decision. No-one is suggesting that an arbitrated decision is the answer; a negotiated agreement is the best outcome. The threat of an arbitrated decision creates an incentive to negotiate an agreement within a set timeframe. The fact that there has never been an arbitrated decision in Queensland verifies that it is not an arbitrator that solves the problem. It is in fact the threat of an arbitrated decision that creates the incentive for the parties to work out an agreement. The problem with section 29 is that it is activated at the discretion of the state government.

Senator McGauran —I raise a point of order, Mr Acting Deputy President. I bring to your attention the question of plagiarism. I have before me a speech—given to me by Senator Harris—by Ralph DeLacey, NQUMA president. I do not know where he delivered the speech, but it is a speech by him, which has not been attributed to him, that Senator Harris is reading word for word.

The ACTING DEPUTY PRESIDENT (Senator Forshaw)—Senator McGauran, there is no point of order.

Senator HARRIS —For Senator McGauran's information: as I said earlier on, I am a member of that association, I participated in the preparation of this document and, yes, the document is attributed to—and, I believe, in the correct circumstances—the president of that association, Mr Ralph DeLacey. To continue, Mr Deputy President, the problem with section 29 is that it is activated at the discretion of the state government. The Queensland state government activated section 29s on 180 mining leases and mining claims on behalf of the small mining industry in 1998. The often referred to successful negotiation outcomes in Queensland were the result of those 180 section 29 actions. There are no other successful negotiated small mining outcomes in Queensland. Despite the success of section 29 and the constant demands of the mining industry, the Queensland state government has flatly refused to activate any more section 29 notices.

The Queensland state government has been convinced by the powerful Aboriginal lobby group that section 29 is not in the best interests of the Aboriginal people. This well-funded, well-organised Aboriginal movement in Queensland has developed a sham ILUA. This ILUA was developed by the Queensland Indigenous Working Group, who then convinced the Premier of Queensland to endorse it. This is not a negotiated agreement and had no industry involvement. I would like to emphasise that fact: the ILUA that is being put forward by the Queensland government has had no mining interest input whatsoever. This was cleverly promoted by the Queensland Indigenous Working Group as being only a model or framework that could be used by industry if they wanted to. However, this sham ILUA contained a one-sided promotion of all imaginable Aboriginal aspirations. This sham has been endorsed by the state, and promoted throughout the state, effectively setting the starting point for all future negotiations.

The Western Australian example is entirely different. The Western Australian miners have convinced the state government of the advantages of using section 29. Section 29 has been used constantly in Western Australia since 1998, with great success. The fact that there were a few arbitrated decisions in Western Australia again verifies that it is not the arbitrated decision that brings the result. Instead, it is the threat of going to arbitration if an agreement is not made within a set timeframe. The incentive to do it within the timeframe is that there are no monetary payments to an agreement that is an arbitrated decision. That creates the incentive for the parties to find a compromise quickly. Western Australia is generally making progress, and the Western Australian miners are moving forward with some confidence in the support of the government initiatives.

In Queensland, the miners are opposed to the current state endorsed action. This is verified by a meeting that was held in Brisbane on 12 December 2001. At this meeting, the representatives of all the mining groups in Queensland met with the Minister for Natural Resources and Minister for Mines to protest the current government action. The only successful negotiated outcomes in Queensland are the result of the section 29s instigated in 1998. The Queensland state government is not making progress, and the mining industry is opposed to the current government plan.

The only success in Queensland is in the media hype that promotes a myth that there is some progress, and that is as false as the sham Queensland Indigenous Working Group ILUA. The mining industry in Queensland supported the development of the Queensland alternative state provisions on mining as allowed under section 43 of the Commonwealth Native Title Act. Again, this process allows a proponent instigated procedure that has set time lines for outcomes which, if not met, will result in an arbitrated decision—the arbitrator in this case being the Queensland Land and Resources Tribunal.

Once again, the Queensland state government caved in to Aboriginal pressure and passed the law but held the backlog of the mining tenures out of that process. This backlog was held by legislation to be released at the discretion of the state. The Queensland miners had a law—not a good law, but a law that would work—but they could not use it. Only new applications made after 18 September 2000 were proponent instigated. In desperation several miners surrendered applications that they had in the backlog and reapplied to bring them forward to where the alternative state process could be commenced.

The Queensland alternative state processes were found to be invalid and without legal effect on 8 February 2002. The mining industry has now lost confidence in the Queensland alternative state process. The Commonwealth government must make amendments to the Commonwealth Native Title Act to allow a workable process. The current process does not work.

I have an exhaustive list of processes that the association has followed but I will skip over those and conclude by saying that the small mining industry is not asking to be subsidised. This is a proud traditional industry that has survived a century and a half of booms and busts, rises and falls, feasts and famines, and will survive on its own. All that the small miners want is a fair go—nothing more and nothing less. The small mining industry should never be tangled up in this right to negotiate process. The traditional small miners of Queensland are still working areas that have been mined for over 150 years and any impact on native title has effectively long gone. To negotiate about the effects of today's proposed mining activity is nonsense. The traditional working class family small miners should not be forced to create income streams for the native title claimant groups. If compensation is to be paid then the Commonwealth government must pay it; family small miners should not be forced to negotiate forever in circles that only create wealthy lawyers.

I will move on, for the Senate's benefit, to list the process that our association has gone through, starting on 23 December 1996 with the Wik decision. Following that, on 26 December 1996, the grant of mining tenures was frozen. None has been issued, other than those 180 negotiated through section 29, since 1996. On 30 September 1998, amendments to the Commonwealth Native Title Act brought in the ILUA process. On 19 December 1998, section 29 notifications for the 180 mining leases and claims were advertised state wide in North Queensland. On 19 March 1999, the right to negotiate commenced on those leases. In June 1999, the right to negotiate broke down. On 20 July 1999, national native title mediation commenced. In October 1999 the national native title mediation broke down. I want to stress that we were following the process. We went through more than 18 months of negotiation on these leases. We then went to the National Native Title Tribunal to get an arbitrated decision and even the arbitration broke down.

On 11 February 2000, agreement was reached that arbitration would be adjourned until 3 April 2000 to allow negotiation to be completed, with the provision that the right to negotiate was irrevocably tied to ILUAs for all small mining tenements over all areas of interest within the North Queensland Land Council area. Those negotiations were with 13 different traditional owner groups and they were progressing really well.

On 31 March, arbitration was adjourned until 5 June, as the task was not achieved in the time set out. On 28 May 2000, final agreement was reached between the miners, the state and all of the traditional owners. On 31 May, arbitration was adjourned until 30 June to allow the finalisation of the remaining seven ILUAs that did not have the area boundaries defined. On 25 June, four ILUAs were signed by the Aboriginal groups and certified by the North Queensland Land Council and the arbitration was again adjourned, until 25 July.

In July, the right to negotiate agreements signed by the Western Yalanji native title claimants were cancelled out of the arbitration action. The signing of these right to negotiate agreements were tied to an irrevocable agreement by all the parties in a meeting attended by the North Queensland Land Council, Native Title Tribunal, Queensland Native Title Services and the North Queensland Miners Association. This agreement was that all the parties would use their best endeavours to finalise all the remaining ILUAs and lodge them with the National Native Title Tribunal within six weeks. I emphasise that that was in 2000. These have still not been settled.

In September 2000, there were new personnel in the North Queensland Land Council, and a statement was circulated that they could get a better deal for the Aboriginal groups in the ILUAs. On 18 September 2000, Queensland alternative state provisions on native title on mining commenced and the backlog was still held to be released at the discretion of the state.

In November 2000 NQMA gave an undertaking to the North Queensland Land Council to encourage small miners not to use the alternative state provisions, as processing of that would bog down the system. In return the North Queensland Land Council gave assurance that the ILUA finalisation would be expedited. In January 2001 the North Queensland Land Council stalled the process despite the best endeavours of the National Native Title Tribunal and the increased state funding and assistance. I seek leave to incorporate the remainder of my speech in Hansard. (Time expired)

The ACTING DEPUTY PRESIDENT (Senator Knowles)—Is there any objection to the incorporation?

Senator Buckland —Madam Acting Deputy President, the list goes on for over two pages, and I think it is a bit extensive. I think the speech should have been better tailored to suit the requirements here today.

Senator Boswell —I ask the Opposition Whip to reconsider that. I do not think it is really up to the Opposition Whip to tell people how they can write their speeches and how many pages they should write. It has never been taken into consideration before. If someone wants to table a speech, it has generally been accepted as long as there is nothing political in that speech attacking either the Labor, Liberal or National parties. The point I would make is that that speech should be acknowledged. I have no objections as long as Senator Harris acknowledges the speech was written by the chairman of the small miners—I do not have the gentleman's name. I have no hesitation about letting it through. I do think Senator Buckland should reconsider his position; the speech is only two pages. It is not a political speech and it is not attacking anyone; it is really putting a statement down on behalf of other people. I would ask Senator Buckland whether he could reconsider his position.

Senator Buckland —I do not usually take the advice of Senator Boswell, but on this occasion I will.

The ACTING DEPUTY PRESI-DENT —Thank you. Leave is granted and the matter will be incorporated.

The document read as follows—

· Feb 2001 NQLC seeking to make changes to ILUA's

· March 2001 State decides to redraft ILUA, no substance changes only drafting changes

· 23 May 2001 two ILUA's Wakerman and Bar-Barrum signed by all parties including Premier of Queensland Peter Beattie and lodged with NNTT for registration

· May 2001 ILUAs renegotiated to meet requirements of NQLC. Solemn undertaking made by NQLC and governing committee that they are now happy and ILUAs will be finalized promptly

· June 2001 Further agreement signed by Tagalaka Native Title claimant Group making total of 5 agreements signed by claimant groups and two of these signed by State and lodged with NNTT for registration

· August 2001 “ILUA” developed by Queensland Indigenous Working Group endorsed by Premier of Queensland. This is not a negotiated agreement and had no industry involvement whatsoever. This was cleverly promoted by QIWG as `only' a model or framework that `could' be used by the industry if they wanted to. However this `sham ILUA' contained a one sided promotion of all imaginable Aboriginal aspirations. This sham has been endorsed by the State and promoted throughout the State effectively setting the `starting point' for all future negotiations.

· August 2001 Progress of NQMA NQLC ILUA ceases

· 7.9.01 Governing Committee of NQLC votes to support QIWG ILUA and formally withdraw support for NQMA ILUA.

· Sept 2001 State endeavors to resurrect NQ Small Miners ILUA and makes offer to NQLC to name conditions on which Small Mining ILUA could progress.

· October 2001 state agrees to NQLC demands

· 11 October 2001 NQMA shown State NQLC agreement conditions and asked to support— NQMA makes counter offer

· 17.10.01 State confirms that NQLC has rejected NQMA offer and that State and NQLC intends to go forward with the ILUA without the Small Miners support. NQMA questions the legalities of this, as this is entrenching payment to Aboriginal groups that are far in excess to what the industry can afford and once entrenched this will wipe out the Small Mining industry.

· November 2001 concentrated effort by NQMA to make Queensland politicians aware of damage being done by `sham' ILUA's

· 12th December 2001 Historic meeting in Brisbane with Minister Robertson DNRM and representatives from Queensland Bolder Opal Association, Queensland Sapphire Producers Association, North Queensland Miners Association and Queensland Mining Council. This group represents the interests of all miners in Queensland and met with Minister Robertson to point out the negative effect that `sham ILUA's have and that after three years of trying to negotiate a ILUA in good faith the Right to Negotiate has not worked. The entire mining industry of Queensland believes that the current Native Title legislation is unworkable

· 8.1.02 meeting with NQLC and State in which State/NQLC sham ILUA put on hold while NQMA and NQLC try to develop a reasonable agreement.

· 22.1.02 meeting with NQLC governing Committee at which NQMA told that the amount agreed to by the State and NQLC are the payments that they want, and no less and if this amount is outside the affordability of the Small Miners then it is up to the State to decide if they want a Small Mining industry or not, and to bridge the gap between what the Small Miners can afford and what was agreed by the State and NQLC. Any reduction in the payments would be seen by NQLC as asking NQLC to subsidize the Small Miners and they wont do that.

· 8.2.02 Queensland Alternative State Provisions on Native Title and mining was ruled invalid and without legal effect by Federal Court

· 22.2.02 joint NQMA/NQLC submission lodged with Premier seeking consideration of State Government bridging the gap. [Don't hold your breath waiting for that to happen]

The Small Mining Industry is not asking to be subsidized, this is a proud traditional industry that has survived a century and a half of booms and busts, rises and fall, feasts and famines and will survive on its own. All that the Small Miners want is a fair go, nothing more and nothing less.

The Small Mining industry should never been tangled up in this Right to Negotiate nonsense. The traditional Small Miners of Queensland are still working area's that have been mined for one hundred and thirty years, any impact on Native Title was effected long ago, to negotiate about the effect of today's proposed mining activity is nonsense.

The traditional working class family Small Miners should not be forced to create “income streams” for the Native Title claimant groups.

If compensation is to be paid then the Commonwealth Government must pay it.

Small Miners should not be forced to negotiate forever in circle's, that only creates wealthy lawyers.