Senator MARGETTS (6:11 PM) —I would like to start by seeking leave of the Senate to table the advice given by the Clerk of the Senate on section 57 of the constitution with regard to the nature of the double dissolution trigger. I also wish to table the response from the Attorney-General and the Clerk's notes in relation to that response.

Leave granted.

Senator MARGETTS —I thank the Senate. Towards the end of last year's debate on native title a very wise Nyungar elder called Robert Bropho left this building saddened by what the government was doing to the last vestiges of Aboriginal land rights. As he left, his final words to me were, `Walk tall and tell the truth.' Now that we are being forced to reconsider this despicable piece of legislation, I remember Robert's words and will remember to attempt to live up to his rightful expectations.

The recent public and parliamentary debate around native title has highlighted many flaws in contemporary Australian society, not the least of which is the way our information revolution often serves to confuse rather than inform. Despite all the modern communication methods available to politicians and the media, last year's marathon Senate deliberations on native title left the community more bewildered and insecure after the parliamentary proceedings than before the entire debate began. To be fair, the media had a tough job. Even the most experienced journalists in the Canberra press gallery were struggling to grasp the 300 pages of native title legislation, 800 overlapping amendments and complex implications of the Mabo and Wik High Court judgments. However, what does deserve criticism is the way in which the debate so quickly degenerated to the lowest common denominator.

In the information haze of legal claim and counterclaim, what has come to characterise native title perception quickly becomes far more important than reality. Those who convey the simplest messages are those most likely to be heard. No matter that these messages play on racist sentiment, no matter that so-called compromises remain manifestly unjust, no matter that the facts are just plain wrong, something has to be broadcast and the easier it is to digest, the better.

Those of us who thought claims over backyard scaremongering had disappeared to the back rooms of One Nation meetings were horrified to see it trotted out by federal government ministers. They made these claims despite knowing full well that native title was only claimed over government or crown land which had been transferred into freehold by devious state governments. Western Australia is a tragic example of that. They made these claims despite the fact that the High Court has twice ruled unanimously that private and commercial freehold extinguishes native title. The old parlance that people fear what they do not understand was used as a political tool rather than something that should be constructively avoided. As Phillip Adams identified during the debate in 1997, there is something far worst than racism—that is, exploitation of the racism of others for short-term advantage.

In addition, when members of the government present such a view, it deliberately ignores the fact that the right to negotiate was a trade-off for widespread validation in the Native Title Act. And if this government has adopted the Hansonite view that Aboriginal people have been afforded special privileges which must now somehow be stemmed in order to preserve some warped view of equality, it stands condemned for ignoring both the history and the current reality of Aboriginal oppression and fourth world standing in our society.

Unfortunately, very few of those who followed the mainstream coverage of this bill last year would be aware that many more of the government's own amendments to the bill passed than those of the `meddling' Greens and Democrats put together. Still fewer in the community would know that not a single non-government amendment was passed which actually increased indigenous rights beyond those contained in the original 1993 legislation. Sadly, public understanding of the most important debate in our nation's history disappeared in the yawning gap between the reality of the legislative proceedings and the sideshow that is the haggling over the margins of dispossession. This is why the government could confidently bluster at the conclusion of the debate that the bill was rendered unacceptable by an interfering Senate, despite the fact that Senator Harradine provided between 80 per cent to 90 per cent of the government's desired outcome.

Indeed, what still shocks me is the widespread fallacy that Senate amendments to the government Native Title Amendment Bill achieved something for Aboriginal and Islander people. In fact, all the Senate amendments do is slightly lessen a tremendous loss in indigenous rights. These losses included: validation of tens of thousands of mining tenements which potentially breach the Native Title Act 1993; extinguishment of native title on thousands of non-freehold leases and tenures where it may have still existed; upgrade of pastoral leases to full primary production, quarrying or forestry status—and therefore bringing about de facto extinguishment of native title without the right to negotiate; establishment of indigenous land use agreements which can occur without proper scrutiny and safeguards; allowing acts which involve the management or regulation of water to displace native title rights, such as fishing, without the right to negotiate; allowing acts on reservations—for example, national parks—to remove native title rights without the right to negotiate; allowing acts in offshore places to displace native title rights, such as fishing, without the right to negotiate; approving gold, tin, opal and gem mining without the right to negotiate; excluding the right to negotiate on native title land which lies in Australia's enormous intertidal zone; ensuring strict rules of evidence in Federal Court proceedings; significantly increasing the threshold test for making and registering native title claims, including the exclusion of overlapping claims; striking out claims which do not adhere to onerous and expensive evidentiary requirements; automatically reassessing all native title claims made since June 1996 and allowing state governments to have any claim ever made reassessed using the increased threshold test; forcing every Aboriginal representative body to go through a process of reregistration and to adhere to accountability procedures stricter than those for any government department; restricting access rights for Aboriginal traditional owners; diminishing the independence of the President of the National Native Title Tribunal against the express wishes of the Aboriginal people; and allowing a variety of government activities to override traditional hunting and fishing rights.

I have to repeat that the Native Title Amendment Bill as amended last December already represents a tremendous loss. Any further compromise will amount to complicity in dispossession. I urge other senators to say, `Enough is enough.' Not only must politically expedient compromise amendments be rejected; this entire piece of legislation should be voted down and meaningful negotiation should begin at once with the many indigenous nations of this continent.

Most of the amendments passed in the Senate last year and which the government found unacceptable were related to the right to negotiate. This is hardly surprising, given that the right to negotiate is about the only effective land right indigenous people have been left with after 210 years of European occupation. In particular, the retention of the right to negotiate about mining on native title land covered by a pastoral lease and the retention of the right to negotiate at the exploration and commencement stages of mining prevented the government from completely removing the last vestiges of native title rights.

It seems that this whole debate has come down to the government's determination to see the short-term self-interested aspirations of the mining industry extinguish the millennia-old rights of indigenous people. Over the last 12 months, the mining industry has spent millions trying to convince the public as to the unworkability of the Native Title Act. Their agenda has very little to do with the High Court judgment in Wik. It has been a deliberate and opportunistic attack at the very heart of native title rights. Their calls have confused the community, shaken the resolve of the Labor Party and have been taken up with glee by the government.

Over the last few weeks, we have seen the mining industry once more take out full-page advertisements in support of the government's legislation. What the advertisements do not reveal is that, while Aboriginal people have continuously demonstrated a willingness to negotiate and reach compromise, many mining companies, in conjunction with hostile state governments, have deliberately sought to sabotage the native title process. So used to getting their way behind closed doors and being able to ride roughshod over indigenous rights, they have only come into the native title process kicking and screaming. In Western Australia the Court government has joined in, spending millions of dollars on ludicrously unsuccessful High Court actions rather than accepting the reality of native title.

Conservative governments have made much of the burden of the right to negotiate provisions, especially when negotiation is required with multiple claimants. However, it is difficult to establish on what basis these complaints can be considered genuine, because the act's regime has barely been implemented according to the law of native title as established by legislation and the courts. The thousands of potentially illegal future acts granted on pastoral leases since 1994, which this government now wishes to validate, provide a graphic example of the way in which state governments have gone about flagrantly breaching the Native Title Act. And guess what? These acts get rewarded. The indigenous people are punished for their concerns and difficulties.

Until two years ago, when the state of Western Australia was ordered by the judiciary to negotiate in good faith, the Court government's strategy simply was to wait until the negotiating period under the Native Title Act had lapsed and then apply for a tribunal determination. Since then, the resources which have been allocated to processing right-to- negotiate applications have been farcical. I am told that there are just four people processing all such applications in the state government bureaucracy.

In spite of this, the mining industry in Western Australia is highly prospective. Areas subject to mining tenement applications to the Department of Minerals and Energy in 1996-97 have increased by more than 10 million hectares since 1991-92. With this kind of prolific development, it is difficult to sustain the position that the existing Native Title Act has resulted in an unworkable system. We will get to the point where we have run out of Australia to claim, and that will affect the figures. Would the whole of Western Australia need to be subject to mining tenements before the advocates of amendment considered there was a workable system?

Apart from the right to negotiate, the other major sticking points for the government were the replacement of the strict physical connec tion test with the so-called Mabo test and the rejection of the sunset clause on claims and what has now become known as the Racial Discrimination Act amendment.

I would like to spend a few moments considering the RDA amendment because in many ways it epitomises the entire debate surrounding this bill. In the face of a manifestly unjust bill, the RDA amendment has been viewed as the safety net, the clause which would see this legislation raised at least to a level of non-discrimination. Typically, the government took its usual two-faced approach, refusing to allow this basic protection in the act, despite also claiming, with hand on heart, that the bill was not racially discriminatory. Typically, in the face of the government's openly discriminating agenda, the Senate compromised and compromised again until we passed an RDA amendment which now seems to do very little. Typically, on this fundamental issue, we were effectively given one hurried lunch break to consider the issue of such enormous legal complexity. The process was appalling, and in the end we agreed to an amendment which acts more as a sign post to dispossession than a safety net for land rights.

Also typically, this meagre achievement was characterised as a major imposition on the government and a major victory for indigenous rights. It now seems that nothing could be further from the truth. I for one am ashamed of compromising away indigenous land rights. It is time for the non-government parties in the Senate to draw a line in the sand and say, `No more.' It is time to walk tall and tell the truth.

History will record that the Aboriginal and Islander people of this continent have a sovereignty they have never relinquished and native title which existed long before European invasion. History will record that in the High Court's Mabo judgment, these rights were partially recognised. Likewise, history will record that in the Native Title Act 1993 these rights were largely taken away. It is now up to this Senate to decide whether history will record the near completion of Aboriginal dispossession in 1998.

As I did last year, I would like to quote from the Ngarinyin Kamali Council, who hail from the Kimberley. In just a few words they have captured the true meaning of the extinguishment contained in this bill. They said:

We are realising that people in Canberra and Perth and Brisbane don't want us to continue our culture in our country, so are making paper laws to outlaw recognition of who we are, and our relationship in our birthright country.

You see, we didn't come from anywhere else. We don't belong anywhere else. We can't go anywhere else.

Our tribe of Ngarinyin--maybe 600 people--belong in that country where those 12 small newcomer families are trying to grow their cattle. These families keep changing because cattle don't grow enough money for them to stay there.

Now the families are growing their money from tourism. Tourists who want to learn about Ngarinyin culture visit our sacred waterholes, photograph our living images in the rocks . . .

They are taking tourists to our cultural sites where we are not allowed to go with our visitors, where we are not allowed to create employment for our young people, where we are not allowed to grow money for our communities, our people who are dying from boredom, despair and alcohol in reserves.

This is what `extinguishment' really means. It means killing off our chance to survive as a living culture, as a people, as participants in the future of Australia. It means extinguishing our birthright and meaning.

We Ngarinyin are developing up a bush university to take people into our country, to teach them the meaning of relationship in land. We are doing this because we are sorry for people who are looking for meaning in their lives and are lost to their identity. We want to share our knowledge with them. We are doing this because we want their lives to be enriched with meaning they can get from learning how to receive identity from the land. When they are grounded in the real world which is Earth, they become happy. They stop wandering around lost to themselves. This is our gift.

If our identity is extinguished, instead of receiving this gift, Australia will live with the shame of our extinguishment.

This whole debate has been characterised by an inability on the part of government to recognise the distinct and unique relationship between Aboriginal people and the land. It has been characterised by a government that views native title purely as an inconvenient property right to be read down in line with the narrowest possible interpretation of common law. There is one word for a policy approach which seeks to absorb Aboriginal cultural imperatives: assimilation. It is really only a euphemism for cultural genocide.

This entire traumatising episode in Australia's history could have been avoided. With no representation in federal politics, indigenous Australians should have been offered a comprehensive process of consultation from the grassroots community to the representative bodies in which to resolve native title issues with the European dominated parliament.

It is highly ironic that, while there was wide support for negotiated agreements forming the basis of resolving native title issues on the ground, there was no support from the government or the ALP to use this same method to resolve the disagreements with the bill itself. It is a sad indictment on the nature of Australian parliamentary politics that the most sensible option for dealing with the native title issue was dismissed out of hand in favour of adversarial conflict, which effectively excluded Aboriginal people from the moment the legislation was drafted.

The solution is as ancient and as certain as Aboriginal culture itself. It is only when non-indigenous communities take time, in an organised way, to listen to indigenous people and their requests to be acknowledged and consulted as custodians of this continent that the healing and conciliation will begin. The process should not have been seen as utopian or intimidating. Time and again Aboriginal people have proven themselves to be amongst the most generous, forgiving and compromising people on the planet. Only when we enter such a process will it become clear that native title is not some sort of affirmative action property right manufactured by the High Court to provide Aboriginal people with special privileges. Only then will native title be seen for what it is: an acknowledgment that this land was inhabited long before European settlement and that up to six years ago our nation was built on denying this fact. It is an acknowledgment that for indigenous people this land is not merely property which can be bought and sold, but goes to the very heart of their culture and existence. It is an acknowledgment that this connection with the land is not something to be feared, resented or derided, but rather it is to be respected, nurtured and protected. It is this acknowledgment that is necessary for the healing to begin.