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Wednesday, 11 March 1998
Page: 931


Mr GARETH EVANS (10:11 AM) —I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the Bill a second reading, the House notes that the Government, in re-introducing the Bill with significant Senate amendments deleted, and in indicating that its position is immutable on a number of key issues, has:

(1) rejected a legislative outcome that would substantially meet the need of all stakeholders—Indigenous Australians, miners, farmers and the community generally—for a Native Title Act that is certain, workable, and fair;

(2) ignored the stated willingness of the Opposition to continue to consult and negotiate with a view to further refining the legislation to produce an outcome acceptable to all major stakeholders;

(3) ensured that, in the absence of such an acceptable outcome, a wave of court challenges to the legislation will continue into the next century;

(4) ensured that, with continuing doubts about the constitutional and legal validity of the Government's preferred legislative outcome, more and more claims will be pursued by protracted and expensive common law action rather than through statutory processes;

(5) left in question thousands of potentially invalid interests and rights granted after 1 January 1994;

(6) ensured that, in the continuing absence of an effective threshold test, native title processes will continue to be swamped with claims of variable quality;

(7) ensured that, in the continuing absence of improved processes and procedures under the Act, the backlog of unresolved determinations, decisions and negotiations will continue to mount; and

(8) by its intransigent and unaccommodating approach, set upon a course designed to commit our country to a general election focused divisively and destructively on race".


Mr Melham —I second the amendment and reserve my right to speak.


Mr GARETH EVANS —Last month I and several of my senior shadow ministerial colleagues sat down in Townsville for half a day with state and national representatives of the mining industry. We were consulting. We were working to find common ground on the native title issue. We were working to remove and resolve a number of misunderstandings which existed. We were seriously addressing possible refinements to the legislation that we had all been grappling with in this parliament. It was a highly publicised meeting. It was a highly fruitful meeting.

On the very same day, 24 February, that we were sitting down to do just that, Senator Minchin was making a speech on behalf of the government, on behalf of the Prime Minister (Mr Howard), saying in absolutely unequivocal language, `No compromise, no surrender. The bill that we introduced is where we stand. We cannot contemplate any possible change to our original best thoughts in four areas in particular—the right to negotiate, the threshold test, the Racial Discrimination Act and the sunset clause.'

The sunset clause gives the game away. I do not think I am giving the game away if I say that all private conversations we have had with the government from day one have been to the effect that of all the things in their original bill probably the sunset clause is one of the least defensible, the one on which they would seek least to hold the ultimate ground because it was a colour and movement clause, not a clause of any substantive significance because on the government's own drafting of it it would not inhibit common law claims continuing to be made. It was a political clause. Here we have a government spokesman making it absolutely clear that there is to be no consultation, no deliberation and certainly no compromise not only on issues which do have some character of large legal principle about them and which may well be debatable but also on issues as essentially trivial and irrelevant to the substantive debate as the sunset clause. It was a very revealing day as a result, to have those two things happening simultaneously.

It shows, as so many other things have, just how political the government is being in its approach to this whole legislation. It is not policy driven; it is politics driven. It is very hard to believe that the Prime Minister has ever been serious about finding common ground, despite the immense efforts that we, on our side of politics, have put in to achieving just that. My leader, Kim Beazley, referred a few moments ago to some of the demonstrations of that—none more graphic, none more compelling, none more alarming, none more demeaning to the reputation of this country than the Prime Minister's presentation on the 7.30 Report of that map with its spreading brown stain of purported Aboriginal claims or, as he then put it, veto rights—wrong in fact, wrong in law and certainly wrong in morality.

Another demonstration of the way in which this Prime Minister and his government sought to politicise this was of course the attempts they went through to generate a new series of advertisements in the public domain on the native title issue, prepared, we had confirmed in the Senate last night, crafted and drafted in the Prime Minister's own office—those ads, which had as their centrepiece an Aboriginal humpy, superimposed with the expression `The Australian Dream'—deliberately cynical and certainly having the result, as they found out from their own preliminary polling, of hardening attitudes, not finding common ground. It was insensitive stuff. It was divisive stuff. It was politically driven stuff.

The truth of the matter is that on native title issues, just as on race issues generally, this Prime Minister is not a healer; he is a harmer. He is not a healer; he is a hurter. Everything that he has done has demonstrated and reinforced that perception and that description. We saw in the Financial Review this morning, as again my leader said, what appeared on the face of it to be a glimmer of daylight. The heading said `PM ponders Wik compromise'. Would that that were so. Unfortunately, when you look at the fine print, you discover that that has to be a very exaggerated expectation. Gatjil Djerrkura is quoted as saying:

I asked him—

the Prime Minister—

if he had any room to move on the right to negotiate and he said, "Well, Gatjil, if you can come up with a formula for compromise we'll take that on board and look at it.'

That is, I am afraid, the best that is on offer from that particular exchange with the Prime Minister. The truth of the matter is that from day one the Prime Minister has simply not been serious about addressing any of these issues in a constructive, positive, accommodating way. If he is to move on this issue, or any of the other really central and substantive issues involved in this debate, I will be one of the most surprised people in this country. I wish otherwise, but I fear, as to the prospect of the Prime Minister moving on the right to negotiate, that there is about as much chance of that as there is of Saddam Hussein winning the Nobel Peace Prize.

We should not be having this debate. The legislation which passed the Senate last December is, as our second reading amendment puts it—the one that I have just circulated—legislation that:

. . . would substantially meet the need of all stakeholders—Indigenous Australians, miners, farmers and the community generally—for a Native Title Act that is certain, workable, and fair . . .

The bill that emerged from that Senate process was certainly not perfect from the opposition's point of view. We moved, during the Senate debate, 359 separate amendments. We lost in the Senate more than two-thirds of those amendments. None of them were trivial. All of them were seriously intended. All of them went to basic issues that we regard as of real importance, either of principle or of process. Putting it another way, perhaps narrowing it a little, those 359 amendments represented amendments in 36 major issue areas. In relation to that, we succeeded in getting the bill amended in the Senate on precisely 10 of those 36 areas. On 26 others we were not able to produce a majority.

From our point of view, the product of the Senate's deliberations was much less good than it could and should have been. But, nonetheless, we were prepared to take the view, and we are still prepared to take the view, that the product of those Senate deliberations represented a major step forward in producing a bill which, unlike the government's, is in fact certain and workable and fair. The failure of the government to accept the reality of that Senate outcome and to move on is one that is fraught with adverse consequences for a great many people. We spell some of those consequences out again in the language of the second reading amendment now before the Senate.

The government's action in bringing forward this bill now again, as if the Senate debate had not happened, the government's action in indicating, as the Special Minister for State, Senator Minchin, has, that the government's position is immutable on a number of crucial issues, has ensured that, in the absence of an effective acceptable outcome, we are going to see a wave of court challenges to the legislation continuing into the next century. The government's action has, as we say again in this amendment, ensured that, with continuing doubts about the constitutional and legal validity of the government's preferred legislative outcome, more and more claims will be pursued by protracted and expensive common law action rather than through statutory processes. The government has, by its actions as I have described them, left in question literally thousands of potentially invalid interests and rights which were granted in that period after 1 January 1994 and which this legislation would have clarified and put beyond doubt.

The government's action has ensured that in the continuing absence of an effective threshold test—and there is not one in existence so long as this legislation remains in abeyance—native title processes will continue to be swamped with claims of variable quality. We in the opposition certainly acknowledge that there is a need for a tougher threshold test to weed out those claims which do have a reasonable chance of success from those which do not. But that is not going to happen in the absence of legislation and with the kind of vacuum the government has now created. The government has ensured, again by its actions, that in the continuing absence of the improved processes and procedures under the act—improved processes that we stand squarely behind implementing—the backlog of unresolved determinations and decisions and negotiations will continue to mount.

Above all, of course, and we keep on coming back to this, by its intransigent and unaccommodating approach, what the government has done is set this parliament upon a course which is designed to commit our country to a general election focused divisively and destructively on race. A race based double dissolution election is not what this country needs, unleashing as it will, as I have said on many previous occasions, all those horrible forces of fear and prejudice on one side of the community and the hurt and humiliation associated with that on the other side of the community. We do not need this. The Senate showed the way through the impasse. This could have been avoided if the government had been halfway serious and halfway decent.

Since we are, however, having this debate, let us look again at the basic issues that are involved in this debate. What we have to start with is the necessity for all of us—not just on our side of politics but everyone—to be committed to ensuring the recognition, the protection and the enjoyment of the native title rights of Aboriginal and Torres Strait Islander Australians as those rights were determined to exist, whether people like it or not, by the High Court in the Mabo and Wik cases. We all recognise that in the practical implementation of those rights, in the interests not only of indigenous Australians but of the other stakeholders I have mentioned—the community generally and, more specifically, the miners and the farmers—there has to be careful consideration given to a legislative package which ensures a number of things.

The legislative package has to ensure the maximum possible coexistence of native title holders and others with title to, or interest in, land or waters. It has to ensure the maximum possible clarity and certainty of tenure for those with rights to exploit land or water resources. That is absolutely fair enough. That has to be an aspiration of all of us. The legislation has to ensure effective practical workability in these processes for determining native title and resolving differences between native title holders and others with competing interests. There has to be maximum encouragement for negotiated agreements between native title holders and others with competing interests.

They are the basic principles about which we all ought to agree ought to be the foundation stone for any serious discussion of this. In order to implement those basic principles there do need to be a number of amendments to the legislation which the government has brought forward. The Labor Party has made it clear in the past, and I do so again now, that we will continue to push for and support amendments which address these issues in the way that we believe is both principled and correct and also practically workable.

So we will be pushing amendments which do respect the basic principles of non-discrimination and do ensure that this legislation is subject to the Racial Discrimination Act of 1975. We will be pushing amendments which provide a process for the validation of those titles which are issued in the intermediate period where their validity is uncertain. We will push for amendments which improve the workability of the act by providing a more certain and substantial threshold test. We almost got there in the Senate in this respect. There are some further refinements of that which are possible, which we debated, among other things, with the miners in Queensland, and we will continue to be working hard to achieve that.

We will be looking at a legislative package which genuinely respects the rights of pastoral leaseholders which existed at the time of the High Court's decision. We do want an appropriate mechanism in the legislation for access to traditional lands. We do want to preserve the rights of native title holders to negotiate over resource developments, including on land over which there are pastoral leases. We want that both as a way of delivering justice to Aboriginal people and also as a way of delivering legal certainty to a legislative package which, in the absence of a recognition of this right, might well come tumbling down for constitutional reasons. We do want to provide a statutory base for adequately resourced representative bodies that are subject to appropriate and transparent accountability procedures. We do want to promote an agreements based approach to native title issues with appropriate legislative recognition and safeguards.

We do want, in order words, to translate the general principles that I have referred to through practical, workable, effective legislation into practical, workable, effective results. To achieve that we are committed—I make clear yet again—to an ongoing process of consultation with the government. However uncooperative the government has been and however uninterested the government has been in getting a policy outcome here as distinct from a politically advantageous outcome or what they perceive to be such, we are committed to pursuing that course of negotiation and discussion.

As an example of what I have in mind, without going into great detail about it, I just mention quickly the outcome of the discussion with the mining industry, which I referred to at the outset. It was a very productive discussion because it focused on four particular concerns that the miners had. One of them was about the language and the substance of the threshold test as it appeared in the legislation. We acknowledged that there were some drafting weaknesses in the way that had finally emerged from the Senate processes and there were some procedural weaknesses and we were eminently prepared to address those in a further process of parliamentary consideration.

We addressed together the issue of the renewal of mining leases, an issue about which the mining industry has had a grouch, understandably, for some time. We indicated that we saw it as being possible to address that concern so far as the renewal in question did not substantively either increase the legal interest involved or extend the geographical area. We took the view that, if those conditions could be satisfied and it could be properly drafted, then that was an issue that we were prepared to see embedded in the legislation without triggering the right to negotiate.

We did look at the issue of public works infrastructure and in particular infrastructure projects that are only incidentally supporting private development projects and which have as their primary or dominant justification serving the public at large. We indicated a willingness to find a way of ensuring that the right to negotiate would not be triggered by infrastructure of that kind. We did look at the question of low-impact exploration activity and whether that should trigger the right to negotiate and whether it might not be possible to find some legislative language which clarified the situation and made that a little bit more practically workable.

I will not go into any more detail about any of this. I just mention those points to indicate that we are approaching this whole enterprise, as we have from the outset, with absolute good faith. We are serious about finding a workable and acceptable solution. The government, unhappily, I am forced to conclude after months of trying to engage it in serious negotiation about these issues is not serious. I make it absolutely clear that, however much the government persists with that attitude, it is not going to deter us. It is certainly not going to deter us from pursuing sensible outcomes and it is not going to lead us in any way, whatever the political costs or consequences may prove to be for us, to abandon the basic principles for which we have stood so firm from the outset.

We are not going to give up the fight for a decent recognition of native title in this country. We are not going to give up the fight for fairness. We are not going to give up the struggle to achieve acceptable workable outcomes which are in the interests of all Australians.