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Wednesday, 11 March 1998
Page: 948


Mr NUGENT (11:33 AM) —When I spoke to the Native Title Amendment Bill 1997 [No. 2] on its first passage through the House on 21 October last year, I said, amongst other things:

I do have my doubts about this bill. I do have concerns about the unedifying prospect of future litigation—thereby negating any claims of certainty. And I do have serious concerns about the impact of this legislation on the reconciliation process.

Given the passage of time and the events that have occurred since then, I have to say that I have not changed my fundamental position. I still have serious reservations about aspects of this bill. However, I will support the government's position because to do otherwise frankly would be to give credence to some sections of the opposition who seek, in my view, to manipulate the indigenous community for political gain.

I think that we all recognise in this chamber that there is a need to amend the native title legislation. It seems to me that there are three basic reasons for this. Firstly, there is the workability or, perhaps I should say, the unworkability of the present legislation. Quite clearly the present legislation has not delivered the outcomes that were expected of it in the first place. This applies to miners, to farmers and to pastoralists, but also, and in many ways more importantly, it has not delivered for indigenous people. There are all sorts of practical problems in the handling and processing of all claims under the present legislation. Frankly, the duplication and often nonsensical ambit claims by some indigenous groups have unfortunately brought discredit on the good intentions of this legislation when it was first introduced. Secondly, we need to change the legislation because of the legal ramifications of the Brandy case. This is largely mechanical; nevertheless, it is important. Thirdly, the Wik case has changed some of the fundamental assumptions underlying the original native title legislation.

I believe that the Wik judgment made it very clear that leasehold title and native title can coexist and that leaseholders' interests would take priority over any native title interests where there was a conflict. Therefore, to some extent I think the changes generated in response to the Wik decision are probably overstated. However, given the levels of concern, emotion and misinformation in the community, it is probably prudent to clarify the situation.

As I mentioned before, I am on record over a long time as having concerns about this legislation. Of course, I also support, though, many aspects of what is proposed in the legislation. It is not all bad. In regard to three key matters of difference between the government and the opposition—and they are the right to negotiate, the registration test and the sunset clause—I feel that this bill overcorrects to some extent, moving the pendulum back too far one way. Nonetheless, I accept the essential premise and thrust of what is proposed.

I do have three major areas of concern however. Firstly, in respect of what I perceive as a back door mass extinguishment possibility via the upgrade provisions. As I understand the legislation, and in spite of lengthy discussions with the minister and with some of his staff, who are in the official's box today, I have not had my mind put to rest on this matter. As I understand the legislation, it will allow state governments to resume a lease and to reissue it as freehold for the payment of an as yet undefined improvement fee.

Of course the legislation requires that appropriate compensation be paid to those entitled to native title in respect of that property. Some 75 per cent of that compensation will come from the federal government. I do not see any correlation between the improvement fee and the compensation and perhaps there should not be. But it does seem to me that the system is open to abuse.

Whilst I further understand that to implement this provision some states will need to change their existing laws, I harbour a concern that history has taught us that there will be state regimes that will go down the path of property by property improvements or upgrades thereby effecting a gradual de facto mass extinguishment of native title. This has been characterised by some as `buckets of extinguishment'.

I acknowledge that such action is not intended by the legislation, but nowhere have I been able to find where that will be prevented in the legislation or by statute. The states unfortunately have a history of not necessarily doing the right thing in regard to indigenous people. That is why the 1967 referendum passed control of indigenous matters to the federal government. I fear that this aspect of the legislation will be operated to the detriment of Aboriginal people.

My second major concern is that I do not believe that even if this legislation is passed through the Senate in some form or another, either now or at a joint sitting following a double dissolution, it will achieve its prime stated objective of delivering certainty. Clearly, given the number of interested parties who have not signed up to the spirit of this legislation, we are going to see a return to the courts, probably for a decade to come. The only winners will be the lawyers. Not the farmers. Not the pastoralists. Not the miners. Not indigenous people. Not the community at large.

It would seem to me that a better solution would have been to enter into a series of regional agreements with all of the key stakeholders. I say `regional agreements' rather than a national agreement because we need to recognise that in different parts of the country there are variations between state laws, there is uneven development of the land and a variety of indigenous cultural backgrounds and attitudes. It has been demonstrated that regional agreements are possible—for example, the Cape York agreement agreed between pastoralists, miners, state and local government and indigenous people more than a year ago.

I accept that it will take some time to deliver agreements in all areas of Australia. But, surely, better a two- or three-year negotiating period which all parties can then subscribe to as a basis for agreed legislation than a series of court battles lasting a decade or more. Such a course of action may not get the matter off the current political agenda, but I suggest that it would deliver a greater certainty than the course on which we are currently embarked. Perhaps a less contentious tidy up bill could be passed now where we have a lot of common ground between the two sides, with the major areas of dispute then being resolved between the key stakeholders in those regional agreements.

In spite of my own reservations about this legislation, let me make it clear to the House that I do not believe that the games being played with this bill by some in the opposition should be countenanced. I believe that suggested amendments to make every aspect of the native title legislation subject to the Racial Discrimination Act in the way that they are being proposed would clearly produce an unworkable farce as has been articulated very well by Father Frank Brennan—a well-known and knowledgeable friend of indigenous Australians. If the ALP believe that it is proper to include such a clause, one has to ask the question: why was it not included in their own original native title legislation? It seems to me that there are those in the opposition using this legislation, regrettably, for crass political purposes. Whilst I have suspected this for some time, I think the recent publication of an exchange of letters between Frank Brennan and the National Indigenous Working Group have more than confirmed my worst fears.

Finally, my third concern is that I would suggest that the divisions generated by this legislation have already had a negative impact on the reconciliation process. Fortunately, that reconciliation process is now sufficiently established as a people's movement that it will survive. However, it was noteworthy that at the weekend, the new Council for Aboriginal Reconciliation—nominated by this government—advocated negotiated regional agreements as the way forward. We do have an arrangement for speaking times, so I will not go into a lot more detail.

In conclusion, let me say that I accept the basic need for this legislation. I agree with much of what is in the bill, but I do have reservations particularly concerning the upgrade provisions and the potential for their misuse by state governments. But the bottom line is that I do not believe that this legislation will achieve as its outcome the certainty which is the fundamental basis for its introduction. I also believe that it is unhelpful to the reconciliation process.

This is not one of the more enjoyable speeches that I have made in this parliament. I raise these matters with a deep and sincere concern that the legislation in its present form does not provide a certain and workable solution, particularly for Australia's indigenous community. We are a liberal democracy and we ought to be able to work out a better win-win compromise for all stakeholders and for the benefit of future generations of Australians.