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Wednesday, 20 March 2013
Page: 2760


Dr STONE (Murray) (12:42): by leave—I wish to make comment on the Native Title Amendment Bill 2012 and, in particular, the House of Representatives coalition members' minority report on the bill. We could not support the recommendations of the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs that this bill be passed. The bill proposes what would in effect be substantial changes to the Native Title Act 1993. But let me stress that the committee as a whole, including the coalition members, recognises the need for significant reform of our native title legislation. Indeed, the excellent roundtable discussion that we had in Sydney, which was ably chaired by our committee chairman, concluded that we do need significant comprehensive reform of the Native Title Act 1993.

Unfortunately, this bill does not give us more than an ad hoc reference to some of the issues in the Native Title Act 1993 that need to be addressed. Schedule 1 creates a new section 47C which would enable native title to be revived by agreement between the parties—namely, the native title party and the relevant government party. Such an agreement would set aside the historical extinguishment of native title in areas that had been set aside, or where an interest had been granted or vested, for the purpose of preserving the natural environment—for example, in national parks and reserves. Schedule 2 amendments propose changing and codifying the obligation to negotiate in good faith in relation to grants of mining interests and acquisitions of native title. Schedule 3 contains largely technical amendments, which we did not have a significant problem with, in relation to the Indigenous land use agreements.

The government of the day made it clear that the original Native Title Act 1993 was aiming to do justice to the Mabo decision in protecting native title—where it was found to exist—and to ensure sustainable and certain management. The act was expected to deliver justice and certainty for Indigenous Australians, industry and the whole community. The stated intention of the amendments in this bill is to improve agreement-making to encourage flexibility in claim resolution and to promote sustainable outcomes.

It is the conclusion of the coalition members of the committee that, unfortunately, contrary to the stated intention of this bill, the bill's enactment would not lead to greater transparency or certainty, or to a reduction in any current asymmetry perceived in the power relations between the parties. Longer times would be required for resolution and there would be more litigation, without commensurate benefits for any party.

Sufficient time and resources were not made available for adequate consultation in relation to any changes to the original act. The changes brought forward were therefore disjointed and ad hoc. Other serious concerns about the current functioning of the Native Title Act raised in evidence to our committee and to the parallel Senate committee were not addressed—for example, the lack of guidance in identifying an appropriate level of compensation.

In relation to the revival of extinguished native title, proposed section 47C allows for native title to be revived over areas otherwise set aside or dedicated to the preservation of the environment. However, in these amendments third-party rights which can exist in these areas are largely ignored. There is no obligation on either the relevant government or the native title party to respond to or take into account any such interests. Nor is there any guidance about how to deal with competing traditional owner claims to be the only negotiating party. We can see this leading to more confusion, uncertainty, litigation and general distress.

In relation to negotiations in good faith—in section 31—in the 7,140 mining tenements and acquisitions notified since 1 January 2000, good faith has been challenged on only 31 occasions. Agreements are by far the most common means of resolving issues under the Native Title Act. The bill does not give any guidance as to the meaning of 'all reasonable efforts' in proposed section 31A(1). The reversal of the onus of proof in relation to good faith matters may in effect confer a veto on the native title party, and so, far from creating greater certainty, these amendments may make the provisions more likely to be litigated and more uncertain. The proposed amendments reflect the indicia found in the Fair Work Act, whereas the more useful and relevant would be the Njamal indicia, which have been utilised and developed over years of case law.

Passage of the Native Title Amendment Bill 2012 is not supported by the coalition membership of this committee. Contrary to the stated intention of the bill, if it is enacted there would be greater uncertainty and potentially more litigation, particularly in the context of the 'future act' regime, with few identifiable additional benefits for Indigenous Australians or the wider society.

However, let me stress: the coalition members were very much of the opinion that these are nationally significant issues. Genuine consultation in relation to identifying any current problems and real improvements to the current act must be carried out. These consultations must be adequately resourced; they should not simply rely on the usual well-funded advocates who can make a trip to Sydney or Canberra. We want to see ongoing consultation which will go right to the grassroots, to communities where these issues are very much alive.

Many parties concerned with the outcomes relating to native title often lack a true understanding of the intent of the legislation. Much evidence was heard of the disappointments endured as a result of disparity between the expectations of claimant groups and the practical outcomes, both financial and territorial. We are very concerned that this act should continue to be a focus of this government and of the Attorney-General. We do not believe we should hold off continued consideration until the government of the 44th Parliament. We are concerned that this act become absolute best practice and deliver the best outcomes, as was the original intention following the Mabo decision. Unfortunately, this bill does not deliver a better outcome for Indigenous Australians or for the wider Australian society. I repeat: we have put in a minority report attached to the committee report, because we cannot support this bill.