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Thursday, 28 October 2010
Page: 1013

Senator SIEWERT (11:10 AM) —Before commenting on this bill, the Native Title Amendment Bill (No. 1) 2010, I would like to make some introductory remarks about native title reform in general. Nearly 18 years after the introduction of the Native Title Act in 1993, I think it is fair to say that native title has on the whole failed to deliver on its promises—the promises that were explicitly stated in the preamble and the objects of the act, and that were outlined by Prime Minister Paul Keating at the time it was introduced and, in fact, in the comments that he had made in his Redfern speech the year before. The preamble was quite explicit in stating the parliament’s intention in passing the act:

The people of Australia intend:

     (a)  to rectify the consequences of past injustices by the special measures contained in this Act … for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

     (b)  to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

However, in practice, the group that the act explicitly recognises as ‘the most disadvantaged in Australian society’, as a consequence of the dispossession of their lands, have had to rely on what is arguably one of the most complex pieces of Australian legislation to ensure their advancement and to recognise and protect, not establish, their existing rights.

In practice, over nearly two decades, only a handful of native title claims have been resolved, and many of these, you would have to say, are in the more remote parts of Australia and have not been of much interest to the non-Aboriginal population. In practice, the bar for recognition of these rights has been set too high, with the onus of proof of cultural continuity being placed on Aboriginal people and with evidence standards effectively mandating reliance on the written accounts of European colonists, denying the oral nature of Indigenous cultures. In practice, the bar for extinguishment has been set too low, and the principle of coexistence of native title rights is too often brushed aside or ignored. In practice, the rights that native title delivered have not been strong or complete enough to provide for the advancement of traditional owners or to provide a basis for economic and cultural development, as they have not provided an unambiguous and exploitable right to land and resources. In practice, the future acts regime has been designed and applied in the interests of development.

In practice, the provisions that were meant to address the challenges faced by the majority of First Australians who have been dispossessed of their lands and much of their culture have not been put into practice, and, though in many places the extinguishment of native title has been recognised, it has not been compensated. There has not been a successful claim under section 61 of the act. In practice, the manner in which traditional culture is defined in section 223 of the act fails to recognise dynamic and living cultures. Instead, it seeks to freeze culture in the pre-colonial past and provides insurmountable barriers to cultural resurgence in areas such as in my home state of Western Australia for the Noongar, Larrakia and Yorta Yorta cases, for example.

In practice, the failure of successive governments to adequately resource native title rep bodies and prescribe bodies corporate has undermined the ability of traditional owners to effectively realise their native title rights as the basis for economic and social development. Sadly, in practice, efforts to reform the Native Title Act to date—including, in fact, these ones—have focused predominantly on making applications of the act quicker and cheaper, and reducing the rights of traditional owners, as we are seeing here, rather than addressing native title’s failure to deliver.

 This brings me to the current bill. Yet again, we see an opportunity missed to undertake major native title reform, and another series of amendments that reduces the rights of native title holders for reasons which are not justified. The deplorable state of public housing on remote Aboriginal and Torres Strait Islander communities has been an issue of serious concern in Australia for many decades. It was a serious problem well before native title was introduced. The primary cause of this problem is the chronic failure of state, territory and federal governments to provide adequate housing in Aboriginal communities. The Australian Greens welcome the commitment of the Commonwealth government to investing a significant proportion of resources to address overcrowding and unmet need by providing new housing and improving the condition of existing housing stock to advance the health and safety of remote communities. We support that—that is in no doubt.

I am keen to support legitimate efforts by the Commonwealth to ensure that this housing is constructed quickly, is appropriate for the communities it serves, and meets Australian health and safety standards. However, I do not believe that the changes in this bill are necessary to deliver that outcome. Having spoken with Aboriginal communities and organisations and having participated in the Committee on Legal and Constitutional Affairs Legislation Committee inquiry into the previous bill, of 2009—which is the same bill as the current one, reintroduced—and having seen and heard the evidence presented to that committee, I am not convinced that this legislation is supported by, or in the best interests of, the communities it is meant to serve.

I am disappointed that, despite the government’s rhetoric about ‘resetting the relationship’ with Aboriginal communities and despite the statement in the apology speech that recognition of native title can provide a sturdy foundation for durable social and economic outcomes, and despite the promise to restore fully the operations of the Racial Discrimination Act in the NT—and of course I argue that they have not been fully restored—this government is pushing ahead without either a convincing rationale or any clear evidence of the need for these changes. These changes will undermine and diminish the native title rights of Aboriginal communities. They depend for their legislative basis on the suspension of the Racial Discrimination Act by the Howard government in its 1998 Wik amendments.

Please let me remind some of the ALP senators of their comments on the changes at the time, when they were in opposition. The ALP said that these laws depend on changes which were:

Morally repugnant, socially divisive and would endanger the process of reconciliation.

So my question is: given the lack of evidence that native title is creating uncertainty or holding up the provision of housing in the affected areas in WA and Queensland, and given the failure of the department to make a compelling case as to why they believe these changes are necessary, why would you want to go ahead with them? Why would you want to blindly push ahead with a series of changes that rely on the races power to pass a racially discriminatory bill, when we do not believe the evidence is compelling that it is native title that is holding up these changes and when, for decades, it has been the failure of state, territory and federal governments to provide that housing?

I think the North Queensland Land Council summed it up when they said in evidence to the committee inquiry that no government of any persuasion would consider taking away the property rights of non-Indigenous Australians to benefit the wider community—bearing in mind this is for housing and the provision of other community infrastructure. I think the North Queensland Land Council’s point was well made.

My main point of concern is the manner in which the legislation proposes to suspend and diminish native title rights, supposedly to achieve the objective of quickly delivering much-needed housing. I do not believe that this suspension and reduction of rights is necessary; I am not convinced it will make any difference to how quickly the new housing could be provided by governments if they used existing provisions, such as Indigenous Land Use Agreements, ILUAs, to negotiate in good faith—of course, that is essential—with native title holders or representative bodies; and I remain concerned that the extent of derogation of these rights is significantly out of proportion to the supposed benefits of delivering the houses a bit more quickly.

I believe that the problems with the provision of housing on remote Aboriginal communities are best explained by the lack of investment by the relative governments. Their recalcitrance to enter into consultations and negotiations with Aboriginal communities in good faith is a much more likely reason for the delays in the delivery of adequate and appropriate housing in a timely manner. I believe that is the reason rather than any legal complexities or uncertainties around native title and state land rights acts or in fact any difficulties reaching agreements with Aboriginal communities desperate to get new housing. I believe the government has failed to demonstrate any causal link between native title and delays in delivering housing in Aboriginal communities. If such a causal link existed, we believe it would be relatively easy to compile comparative data with other states and territories.

The most compelling point for me is the fact that this bill purports to speed the delivery of houses to Aboriginal communities who have been crying out for those houses for decades, and yet all of the evidence to the committee from Aboriginal organisations clearly stated they did not want these laws and did not believe they were necessary. Surely you would think that, if there was a choice between suspending or diluting their rights and receiving the benefits of houses a few months earlier, it would be down to those right holders to decide if the alleged benefits outweighed the perceived costs. On the basis of the principle of equitable treatment, native title holders should have the same rights and abilities to protect their interests as other property right holders, and these rights should only be affected with their consent.

I participated in the committee inquiry, which I think was a very useful exercise because it brought up a number of points. I do not support the recommendations of the majority report, and I dissented from the assertions presented at the end of the report as the ‘committee view’. However, that being said, I found the arguments and evidence from the vast majority of submissions received and evidence presented to the committee—which makes up most of chapter 3 and the bulk of the report—to be compelling. I remain concerned, however, that the conclusions of the report do not reflect or properly address the evidence and arguments we were presented. If fact, there appears to be a major disconnect between the evidence presented, the concerns discussed and the arguments evaluated within the report, and its final conclusions. I cannot see how the evidence matches the conclusions, and I made that point.

There are some key issues I believe are essential here: the failure of the federal, WA and Queensland governments to make a compelling case or provide evidence of the need for these changes, bearing in mind that during the process of the committee inquiry it became apparent that these provisions only apply to certain lands in WA and Queensland; the existing options for reaching agreements on future acts, the shortcomings in the current approach to consultation and agreement making with native title holders and representative bodies, and the likely impact of the reforms on future use of ILUAs; and the diminution of native title, procedural and human rights by this legislation, its impact on the principle of non-extinguishment and its compatibility with the Racial Discrimination Act 1975.

These have led me to the conclusion that the proposed changes to the Native Title Act are not necessary to speed the delivery of new housing for Aboriginal communities experiencing extreme overcrowding, and would have a serious impact on the rights of native title holders that is out of proportion to any alleged gain. There is little evidence that these changes are supported or desired by the communities they are meant to benefit and ultimately they are likely to prove counterproductive in the wider task of addressing Indigenous disadvantage and improving life outcomes.

It became apparent late in the conduct of the committee inquiry that these laws only apply to a limited number of communities in Western Australia and Queensland where land is held for the benefit of Aboriginal or Torres Strait Islander people under particular state based land rights provisions and the federal native title regime also applies—that is, where a non-exclusive native title right coexists with, and is subject to, a state based statutory scheme.

The committee report ultimately agreed with the Law Council of Australia and the Northern Land Council that the practical application of the proposed reforms will be limited to future acts on a group of Indigenous communities within Queensland and Western Australia. This information was not provided in the Attorney-General’s second reading speech. As a result of the confirmation of this limited application only emerging late in the inquiry we were not able to then have hearings in Queensland or WA. As a consequence, there were three submissions and from land councils in Queensland: Cape York Land Council, Carpentaria Land Council and Northern Queensland Land Council.

I am concerned that that information was provided fairly late and there was some confusion in the committee as to where these provisions would or would not apply. When we asked about the time frame caused by the delay in these specific examples in Western Australia and Queensland, the department was not able to provide an analysis of the time delays caused by the interaction of these two specific pieces of legislation. There does not seem to be any comparison between the delay in providing houses in these specific situations in Western Australia and Queensland compared to the delays in providing housing in, for example, the Northern Territory and other communities that are not subject to the same provisions under both examples.

My understanding is that to date the provision of housing in these communities is a result of a whole lot of other process failures and not the specific processes of the interaction of state based legislation and native title law. It is poor justification for undermining native title. The government should be focusing on how to better the delivery of rights under the Native Title Act. We believe that community negotiation is a better way to ensure the delivery and repair of housing and infrastructure, and that that is both timely and just. I believe that communities have a fundamental right to be fully consulted on issues which directly impact upon their lives and I see fully informed prior consent as a crucial consideration where the rights and interests of communities are affected.

I am quite distressed that this principle is being overridden by the nature of the amendments in this bill. We need to be paying much greater attention to the broader reforms that are necessary. The most appropriate manner to resolve native title and housing issues is through negotiated outcomes. There are existing processes, such as Indigenous Land Use Agreements, which are sufficient and more appropriate than the proposed new mechanism. I am not convinced that the federal and state governments have made a compelling argument or provided any evidence, as I highlighted earlier, as to why these amendments are necessary. What effort has been made to properly discuss with these communities that come under an ILUA the provision of those outcomes?

The evidence presented to the committee by NTSCorp, the Cape York Institute and the Northern Land Council show that in practice ILUAs can work quite effectively on the ground and in negotiations between Indigenous rights holders, mining companies, developers and other private sector interests and their communities. It seems that when corporate Australia and Indigenous communities get together in good faith they can negotiate mutually beneficial outcomes—in fact, sometimes surprisingly quickly. They suggest that complex and drawn out negotiations only seem to occur ‘where people are not willing to sit down with Indigenous groups and have these conversations,’ or where, apparently, some state and territory governments are involved. This raises questions as to whether the problem is that state and territory governments are not sitting down to negotiate in good faith or whether the standards and level of legal detail or certainty being pursued by state and territory governments are out of proportion to what is actually required to get things done on the ground. The Northern Land Council also convincingly argued that, contrary to the assertions made by state governments, there is in fact no apparent legal uncertainty with the negotiated outcomes of ILUAs. The state governments, we believe, have failed to make the case for this uncertainty. No evidence was presented that ILUAs would not be up to the challenge of providing these outcomes. We are extremely concerned that this bill seeks to further undermine native title rights and we urge the government to put the focus on improving native title, not continuing to amend, amend and amend— (Time expired)