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Wednesday, 11 March 1998
Page: 944


Mr STEPHEN SMITH (11:17 AM) —I rise to support the amendment moved by the opposition and to associate myself with the remarks of the Leader of the Opposition (Mr Beazley) and the Deputy Leader of the Opposition (Mr Gareth Evans), both of whom I had the opportunity of listening to in the chamber. In this area it is always helpful in my view to go back to basics and to start at the starting point. The starting point in this debate is Mabo No. 2. What did Mabo No. 2 decide? Mabo No. 2 decided that native title was a common-law property right which needed to be treated as such. Because it is a common-law property right, it has protections under the constitution by way of fair and just terms compensation.

So what we are dealing with here is a common-law property right. That common-law property right was recognised by the High Court in Mabo No. 2 a couple of hundred years after European settlement. One hundred years after, our land administration and property entitlements were settled and made secure via state and territory administrations. What problem was this parliament confronted with? This parliament was confronted with the problem of having to introduce into our land administration and property entitlements a High Court decision which required Commonwealth legislation and to do that when our land administration had effectively been settled through the states for 100 years or more.

That was always going to cause difficulty and it was always going to cause problems, which was why at the outset we said, `You have one or two roads you can go down here. You can leave this alone and let the courts deal with it and have chaos forever or you can seek to craft Commonwealth legislation based on the parliament's legislative heads of power.' We acknowledged from the outset that, if you are doing this for the first time with all those difficulties, you are bound to make some mistakes. It did not help, in the course of the debate on the Native Title Bill 1993, when those on the other side walked away. That was not a helpful contribution in the national interest.

It was recognised on our part that there were procedural and process problems in 1995 and amendments were put into this House which lapsed on the dissolution of the parliament for the 1996 election. Pre-Wik there was an acknowledgment that the processes and procedures had to be improved. This government intended to pick up the amendments that we put into the parliament in 1995. They were not dealt with in 1996. At the end of 1996, we saw the Wik judgment. What are we dealing with now? We are dealing with those problems which arise as a consequence of the Wik decision and the process and procedure problems that we have seen arise from the practical experience of the 1993 Native Title Act.

How do we on this side of the House say you solve the problem? We say you solve the problem by adopting three approaches. Firstly, you have to run with the notion of native title. You cannot seek to do what very many of those on the other side—and I choose my words carefully; what very many but not all—do to seek to stop it, to seek to redress it. We say that there is a High Court recognised common-law property right. You have to run with that. If you run with that, you show respect for property law rights and you show decency and fairness to the Aboriginal people.

Secondly, you have to have the wit to understand our nation's constitution and this parliament's legislative heads of power. You have to be very careful about the sort of legislation that you seek to put to this parliament and seek to enact. If you are not careful, you will find yourself with unconstitutional legislation because you will breach one or two of the heads of power on which this parliament has the capacity to legislate in respect of this matter. Thirdly, you have to have the wit to put into place an administrative system which will work.


Mr Melham —And which is accepted by everyone.


Mr STEPHEN SMITH —The honourable member for Banks interjects and says, `And which is accepted by everyone,' and that is crucial to my next point. I pride myself on being a lapsed lawyer. When I was a practising lawyer, one of the first and best pieces of advice I got from my principal when I was an articled clerk was that the best thing you can do for your client is to keep your client out of court. There is only one winner from clients going to court, and that is the lawyers.

When you craft a system which seeks to respect individual common-law property rights, you have to have an administrative and legal process where those rights can be determined by an adversarial process if that is what is required but one that, in the main, enables people to come to agreement. If you want to get people sitting around the table coming to agreement, you have to instil into this debate goodwill and decency. It is goodwill and decency which are lacking from the man who sits in that chair at question time, the Prime Minister (Mr Howard).

What approach have we adopted on this side of the House since this parliament resumed? When the government introduced its Native Title Amendment Bill No. 1 1997, we on this side of the House supported a second reading amendment. What did that second reading amendment contain? That second reading amendment said `native title rights are fundamental legal property rights and entitled to the same respect and protection as the property rights of non-indigenous Australians'. That respects Mabo No. 2, it respects Wik and it respects our constitutional right for fair and just term compensation if individual property rights are interfered with unlawfully.

The second thing we said by way of our amendment was that you need to `balance and reconcile to the maximum possible extent the interests and reasonable expectations of all the major stakeholders'—farmers, miners, the Australian taxpayers and indigenous communities. That means you have to run with the notion of native title and you have to be smart enough to get the constitutional framework and an administrative process which will work.

The third thing we said is that you have to have `maximum possible predictability and certainty'. Our greatest complaint about this legislation, as it was with the government's first bill of 1997, is that it will not solve the problem. It will not produce predictability and certainty. It will drive people off to the Federal Court and the High Court forever. The essential problem which the Native Title Act 1993 sought to address was precisely that point.

Those members who come from Western Australia should not think that, if this bill which the government has put up is adopted by this parliament or subsequently adopted by a joint sitting of the House, the Western Australian problem is solved. It is not. This government's bill does not properly address the pre-June 1996 claims which are lodged in Western Australia, particularly in the goldfields and Kalgoorlie. If you go to a joint sitting on this bill, you will not solve the fundamental nature of the Western Australian problem, which is multiple and overlapping claims. You have to have more wit than this bill to do that.

The fourth thing we said in our amendment was that there is `a need to guarantee constitutional validity of the legislation'. We have argued time and time again that this bill and its predecessor are not constitutionally valid. The best evidence to that point is the fact that this government sought to suppress the Australian Law Reform Commission's opinion which said precisely that. That is the best evidence. It is not our assertion; it is the assertion made by the government's primary law reform agency. The Australian Law Reform Commission, in an opinion which this government sought to suppress, said that the basis upon which this government's bill was flawed was its constitutional invalidity.

The fifth thing we said in our amendment on the first run through of this was that we needed to ensure that `the registration and determination of claims be as effective and expeditious as possible' and that we wanted to `encourage and assist the entering into of agreements'. That is entirely consistent with what we adopted at our party's national conference in January this year in Hobart in our native title resolution. I make reference to our national conference because decisions made in national conferences are binding on future Labor governments. We had a debate on this matter which again showed, firstly, the consistency with which we have approached this since the Mabo No. 2 decision came out and, secondly, the legislative and procedural difficulties and deficiencies which this government's bill throws up.

In our national conference resolution we again repeated the themes of affirming our commitment to ensuring the recognition and protection of native title rights and of wanting to ensure maximum possible coexistence of native title holders and others, maximum possible clarity and certainty of tenure, effective practical workability and maximum encouragement for negotiated agreements. We went on to expressly say:

Labor will continue to support amendments which:

. respect the basic principles of non-discrimination and ensure that the Act is subject to the provisions of the Racial Discrimination Act 1975;

. provide a process for the validation of titles issued between the first of January 1994 and Wik judgement in December 1996;

If the government had taken this bill on the floor of this House in December 1997, validation would have been secure. We went on to say:

. recognise the principle of non-extinguishment of native title;

. respect the rights of pastoral leaseholders existing at the time of the High Court's decision in Wik ;

. provide an appropriate mechanism for access to traditional lands;

. preserve the rights of native title holders to negotiate over resource developments on land on which they have claimed or have established native title, including land over which there are pastoral leases;

. improve the workability of the Act by providing a more certain and substantial threshold test for claims, and procedures for minimising the possibility of overlapping claims and the removal of vexatious claims;

. provide a statutory basis for adequately resourced representative bodies that are subject to appropriate and transparent accountability procedures; and

. promote an agreements based approach to native title issues with appropriate legislative recognition and safeguards.

That approach can solve this problem; the government's approach cannot. Those sentiments, which have been consistent with the way that we have approached this matter since the court's decision in Mabo No. 2 through to the debate on the Native Title Bill 1993 and on the government's Native Title Amendment Bill 1997 [No. 2], ring true with the amendment that we have put forward today.

We reject the government's approach. We note that it has ignored our offer to consult and to negotiate. We underline again the point that the end result of this government's legislation will be a wave of court challenges. We again make the point about the continuing and ongoing and clear and certain doubts about the constitutional and legal validity of this government's approach.

The point is that, if the government had accepted the bill which came out of the Senate in December last year, the validity of those leases, particularly in Queensland, which may be invalid, would have been secured. Note the point that, in the continuing absence of an effective threshold test, native title processes will continue to be swamped with claims of variable quality and, in the continuing absence of improved processes and procedures under the act, the backlog of unresolved determinations, decisions and negotiations will continue to mount.

There is actually a way forward in this matter, and that is to adopt our approach. That is to say, we respect the High Court's decision in Mabo No. 2 and we conduct ourselves with decency and fairness. We also respect this country's constitution and the legislative power and the heads of power which this parliament has. We are smart enough to try to craft a legislative and administrative system which provides for the clear delineation and determination of individual property rights, if that is the road that people want to go down, but we throw out the much more sensible approach of saying, `The best way to resolve these problems is by way of agreement.' If you want to instil the essential ingredients for solving matters in this way, you have to instil goodwill and decency, which are lacking from the government's approach in this matter so far.

I want to conclude by making some points with particular reference to Australia's minerals resources industries. I often see these claims made entirely without intellectual rigour or merit, that all of the problems of the minerals resources industries in Australia are as a result of access to land problems. They are not. Access to land is an issue and it cannot be ignored, but the suggestion that access to land is the beginning of all the problems the minerals resources industries have in this country is as lacking in intellectual rigour as the argument which says that access to land is not an issue.

What are the problems facing our great minerals resources industries? It is a long-term decline in the commodity price cycle just about across-the-board running against Australia, a long-term decline in the profit dividend which minerals resources companies in Australia have made—20 per cent in 1990 and three per cent last year—and a long-term decline in interest in the investment community in Australia and internationally in minerals resources.

There is a whole range of reasons why there are long-term problems for the minerals and resources industry. In short, if you are not making a profit for your shareholders capital funds will not come from the investment community. That is the long-term problem facing the Australian minerals resources industry.

On the other hand, with our petroleum resources industry, oil and gas—other than the shock of the gas price yesterday—the investment cycle is running in its favour. Native title is not an issue for the offshore oil and gas industry because it has never been a practical problem. That view is also buttressed by the High Court's decision in the Western Mining Corporation compensation case.

It is an issue for the petroleum resources industry onshore. Those issues go to validation, which we say we support, and renewal, which we say we are happy to look at again, as we did arising out of our Townsville meeting which the Deputy Leader of the Opposition went through. They have a problem with private versus public infrastructure which we say we are happy to look at again.

So far as our minerals resources industry is concerned, what are the issues that confront them? They are: validation, renewal, the threshold test and whether you have an up-front right to negotiate or, at the back, a conjunctive or disjunctive approach, which we say we are happy to give a flexible one-off approach.

All of these things were the subject of discussions that we had with the minerals resources industry in Townsville. We made it crystal clear to the community that we on this side have a commitment to solve the problem. I could not have found a better example of that than the remarks made by the Chief Executive Officer of the Queensland Minerals Council, Mr Michael Pinnock. In advance of the meeting that we had in Townsville Mr Pinnock spent a good proportion of his working days detailing the Labor Party's alleged crimes against humanity. After the meeting he came out and said, `That was a very productive meeting.' He said in the Townsville Bulletin, `The industry approached this matter with goodwill. We think the opposition approaches this matter with good will. If Mr Howard approached this matter with goodwill the problem could be solved.'

There could be no more damning indictment of the approach that the Prime Minister has taken to this matter than the comments of Michael Pinnock, the Chief Executive Officer of the Queensland Minerals Council. After a meeting with me, the Deputy Leader of the Opposition, the shadow Attorney-General, Senator Bolkus, and the shadow minister for Aboriginal affairs, the member for Banks, who is in the chamber at the moment, Mr Pinnock said there is obviously a capacity on the part of the Labor Party to solve this problem but there is no capacity on the other side unless the Prime Minister shows goodwill. There are one of two ways of solving this problem: either the government instils some goodwill or, after the next election, the solution to this problem will be Kim Beazley, Prime Minister.