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Wednesday, 11 March 1998
Page: 970


Mr WILLIAMS (Attorney-General) (NaN:00:00) —I thank the members of the House who have participated in this debate on the Native Title Amendment Bill 1997 [No. 2] . As I said in the debate last year, native title is a difficult issue for Australia. It is novel, it is complex and it evokes passion. It is clearly an issue which will require long-term consideration by this parliament and by the nation. The government continues to believe that this bill is an important step in that process and that it is a balanced and practical response to the issues which have emerged since 1993.

The debate has progressed considerably since last year. It is heartening that it is now generally conceded that there are substantial deficiencies in the current act. I addressed these in my second reading speeches in 1997 and earlier this week. Principally, the current act was not designed to deal with native title which coexists with other rights and interests. Four years of experience have shown us that some procedures in the act are constitutionally questionable and that others work inappropriately and inefficiently. These must be remedied quickly.

It is also heartening that it is now generally conceded that the Native Title Amendment Bill 1997 [No. 2] does not override or overturn the decisions of the High Court in Mabo No. 2 and Wik. The government has always rejected these suggestions. On the contrary, the act as amended by the bill will recognise and protect native title in Australia, including coexisting native title on pastoral lease land, but the bill provides, as the court held in Wik, that the lessees' rights prevail.

The opposition voted for the bill in the Senate and has indicated that it thought that that outcome was a fair one. If this continues to be the opposition's position, then it is also heartening to see that many of the issues that were so hotly debated in this chamber last year have dropped away. Sensible and responsible law making is emerging. It would be very unfortunate if the opposition were now to walk away from this middle ground.

Most importantly, the need for more certainty and precision in this area of the law has been generally recognised. The Mabo No. 2 and Wik decisions established some fundamental principles, but they also left many issues unresolved. The common law and its development by judicial decisions has many strengths, but it also has weaknesses. The development of law over significant periods on a case by case basis is not always appropriate for a modern democratic society. This is particularly so when that law touches upon basic property and economic rights.

There is clearly ongoing uncertainty and ambiguity about native title rights and their relationship to other rights. This is damaging our social and economic life. The situation needs to be resolved by clear and precise legislation. This bill provides a way forward. It builds on the common law but adds to this a much greater level of certainty and predictability for native title holders, pastoralists, miners and governments. After enactment of the bill, we will need to continue to grapple with native title issues, but we will be able to do so on a much firmer foundation.

I would like to mention several key areas where this bill will deliver much needed certainty. The first is validation and confirmation. Validity can be provided to grants made before Wik, when there was uncertainty as to the effect of pastoral leases on native title. The confirmation provisions set out tenures which, on any reasonable view, have extinguished native title. The act currently leaves this issue to be determined by the common law. As I have said, this approach is clearly now inappropriate. To leave such issues to be resolved by individual cases which work their way through the courts would cause significant economic and social cost and would perpetuate uncertainty.

The bill clarifies that pastoralists can carry on primary production activities on a pastoral lease and that those activities prevail over native title; that state and territory governments can continue to authorise primary production activities; that state and territory governments can continue to authorise pastoralists to carry on activities outside the farm area which are directly related to the primary production activities on the lease; and that state and territory governments can continue to authorise the taking of natural resources from pastoral leases. These acts will not extinguish native title. Where these acts affect native title, significant compensation and procedural rights are given to native title holders. Existing access is maintained for registered claimants. We believe that this is the appropriate balance and, importantly, it provides clear, precise rules.

In relation to future development on pastoral lease land, the policy of the government is to ensure that legitimate land management needs—such as suburban developments, public infrastructure and agricultural developments—can be accommodated. It is hoped that this can be by way of agreement. Where agreements cannot be reached, the protections in the current act against extinguishment of native title are maintained and indeed strengthened. They will ensure that the only way native title can be extinguished in the future is by agreement or by way of non-discriminatory compulsory acquisition.

As to water and public services, the ability of governments to manage and regulate water and grant rights in relation to that water is ensured. The ability of governments—in particular, local governments—to provide facilities for the public is ensured. In both cases, these acts are subject to the non-extinguishment principle, with procedural and compensation rights to native title holders and other protections of their interests.

The right to negotiate is maintained for mining and some compulsory acquisitions where native title is a high level right approaching ownership of the land. A proper registration test will ensure that only credible claims have access to the process. But the right to negotiate is a significant break on development. It is in some aspects an inefficient process which does not always provide appropriate protection for the interests of native title holders. To apply this break across large areas of Australia for all exploration and mining will have very dramatic consequences. This government does not believe that the full right to negotiate is appropriate where native title consists of more limited rights and, in particular, where native title is only a coexisting right. In such cases, states and territories should be able to put in alternative processes which provide to native title holders the same rights as others. Alternative processes may in fact be a more appropriate way to protect native title rights.

There is widespread support for the enhanced indigenous land use agreements process in the bill. Most recognise the potential for such agreements to provide clear, lasting and workable resolutions. Together with the enhanced representative body scheme, the new agreement provisions provide an attractive alternative to the more formal and adversarial processes.

As to the outcomes from the bill, all these provisions will introduce a much greater level of certainty and predictability to native title issues. The government has clear legal advice from Australia's two pre-eminent constitutional barristers that the bill is constitutional. We believe that the bill will deliver greater benefits to native title holders and other interests. The government is not prepared to jeopardise these benefits by incorporating amendments which are clearly inappropriate, uncertain or ambiguous.

This is the government's concern with the amendment made by the Senate in relation to the Racial Discrimination Act. The government will not neglect its national and international obligations to prevent racial discrimination. It has done so in the Racial Discrimination Act and the Native Title Act, but the provision proposed is ambiguous and uncertain and its effects are unclear. The non-government parties do not appear to agree on what it means. On one view, it may allow actions to be attacked, notwithstanding complete compliance with the provisions of the Native Title Act. The government, no government, could accept that risk. This House has an obligation to make clear, precise laws, especially in this area where certainty and predictability are so much needed. The government is willing to maintain the existing subsection 7(1) in the Native Title Act. This was the provision supported by the opposition, the Democrats and the Greens in 1993. That they now wish to change it is proof of their political motives.

Allegations have been made that the government failed to consult on the bill and, in particular, to negotiate on its contents with indigenous groups. There have been calls for further discussions. The government has followed an open and consultative process. It has done so from the initial development of the 10-point plan at the beginning of 1997 to the development of the working draft bill, the bill's subsequent refinement for introduction into the parliament and before parliamentary committees.

The government has had significant discussions with indigenous representatives and the bill includes proposals put forward by them. The bill includes suggestions made by parliamentary committees. The bill includes the amendments moved by the government in the Senate, many of which accommodated legitimate concerns of indigenous peoples. The bill includes a substantial proportion of all the amendments made by the Senate. As I mentioned in my second reading speech, other amendments are being discussed. The opposition denies all this history—no doubt for its own political purposes—but the record shows that the government has been always anxious to reach consensus on these difficult issues where this is possible. Sensible suggestions have been and will be considered but, in the end, there are hard decisions which the government and the parliament must make.

I outlined in my second reading speech the key areas of disagreement between this House and the Senate last year. The period of reflection and the debate in this House have not convinced the government to change its position on those amendments. The government will continue, therefore, to seek to persuade the Senate that this bill does find the appropriate balance. Further delay is unwarranted.

If the government fails to convince the Senate as to the appropriateness of the bill, then it complies with the requirements of section 57 of the constitution which is available to resolve disagreements between the houses. The requirements of section 57 are clear and precise. These requirements have been met. The original bill was passed by this House. The Senate made significant amendments. This House stated in the clearest possible terms that it disagreed with many of those amendments. Three months have elapsed since this House indicated that disagreement and laid the bill aside. This bill is the original proposed law with some of the amendments made by the Senate. This government does not seek a double dissolution and joint sitting. We continue to hope it is unnecessary but, if it becomes necessary, the preconditions will have been met.

The government continues to believe that the bill is a fair balance and that it should be accepted by this House and the Senate. It balances the aspirations of indigenous peoples with the needs of others in the community—in particular, elected local and state governments, farmers, pastoral lessees and miners on whom much of the economic wealth of our society is based. It will deliver a more certain and secure foundation for the recognition of native title in Australia. I commend the bill to the House.

Question put:

That the words proposed to be omitted (Mr Gareth Evans's amendment) stand part of the question.