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Wednesday, 29 February 2012
Page: 1238


Senator SIEWERT (Western AustraliaAustralian Greens Whip) (15:37): I move:

That this bill be now read a second time.

I seek leave to table an explanatory memorandum relating to the bill.

Leave granted.

Senator SIEWERT: I table an explanatory memorandum and seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

NATIVE TITLE AMENDMENT (REFORM) BILL (NO. 1) 2012

The Native Title Amendment (Reform) Bill (No. 1) 2012 is the second iteration of Native Title reform proposed by the Australian Greens.

The Bill seeks to address key failures of the Native Title Act 1993 (NTA). We want to provide meaningful rights and a basis for economic and community development to Aboriginal and Torres Strait Islander people. Something the Act has failed to do in the 18 years since it came into force.

By introducing this Bill and any further reforms we intend to contribute constructively to a debate about native title reform that can ultimately lead to simpler legislation which produces more meaningful outcomes in a more timely fashion for all those involved.

In March 2011, I introduced the Native Title Amendment (Reform) Bill 2011. The Bill was referred to the Senate Legal and Constitutional Affairs Standing Committee in May last year. Over 35 submissions were received, from a range of stakeholders and government agencies during the course of the inquiry. The majority of these were supportive of the intent of the legislation - many noting the great need for the Native Title Act to be reformed. The submissions contained many useful suggestions on how the Bill might be strengthened and improved.

This new Bill builds on those suggestions. We have closely examined the submissions and incorporated numerous revisions, creating a more robust and effective piece of law.

In the original Bill we sought to address some of the 'low-hanging fruit' of native title reform - by targeting some of the areas of native title law where relatively simple amendments could have far-reaching implications for addressing some of the current barriers to effective native title outcomes. In this Bill we have chosen the most important and most urgent of those areas and drafted amendments which we hope will gain broad support.

We are still committed to incorporating aspects of the United Nations Declaration on the Rights of Indigenous Peoples into the Native Title Act. We are currently exploring the best way to do this and intend to introduce another Bill later this year.

As I said when I introduced the original Bill, if we do not work together to traverse the "impenetrable jungle"1 that is native title litigation, there is little hope for just outcomes for Aboriginal and Torres Strait Islander peoples. The second reading speech for the original Bill is still relevant for this current revised Bill:

... nearly two decades after the introduction of the NTA it is clear that native title has failed to deliver on its promises.

The Preamble states that …

"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."

We hope that by the time we reach the twentieth anniversary of the NTA in 2013, the process of native title reform will be seriously underway, and we will be able to see native title delivering on some of the seemingly forgotten promises contained in the preamble to and objects of the NTA.

In practice, the people who the Act recognises and describes as "…the most disadvantaged group in society…" as a consequence of the dispossession of their lands, have had to rely on one of the longest and most complex pieces of Australian legislation to try to "…secure their advancement…" and to recognise and protect (not establish) their pre-existing rights.

In nearly two decades since its introduction, only a handful of native title claims have been resolved, with many of these being in remote areas which had been of little interest to European colonists. For the majority of our Aboriginal and Torres Strait Islander people, particularly those in urban areas and regional centres, native title has offered little and delivered less.

Meanwhile the promised complementary measures have also been a grave disappointment - the land fund has only been able to help out a limited number of communities, and the social justice package never eventuated.

It is clear that in the application and judicial interpretation of the NTA a huge gap has emerged between these original promises and intentions, and the on-the-ground experience of Aboriginal and Torres Strait Islander communities seeking to have their native title rights recognised and protected.

Justice Kirby characterised the barriers to the recognition of native title rights as comparable to an impenetrable jungle, saying:

"It would be easy for the judicial explorer to become confused and lost in the undergrowth to which rays of light rarely penetrate. Discovering the path through this jungle requires navigational skills of a high order. Necessarily, they are costly to procure and time consuming to deploy. The legal advance that commenced with Mabo v Queensland, or perhaps earlier, has now attracted such difficulties that the benefits intended for Australia's Indigenous peoples in relation to native title land and waters are being channelled into costs of administration and litigation that leave everyone dissatisfied and many disappointed." 2

There are many who still believe that the recognition of rights to land, culture and resources through native title could provide a strong and sustainable basis for 'advancement' by underwriting and enabling community and economic development.

The former Prime Minister Kevin Rudd, for instance, spoke of the capacity for respect for native title to provide a sturdy foundation for durable economic and social outcomes in his Apology speech.3

It is a tragic shame that neither his government nor its successor have done anything to seek to strengthen and facilitate recognition of the native title rights of Aboriginal and Torres Strait Islander Australians to help make that vision a reality. Instead the only changes to native title laws we have seen in these two terms of Labor Government have been those that either diminished native title rights or at the very least have failed to enhance the capacity of traditional owners to participate in securing meaningful outcomes.

This of course comes on the back of over a decade of Coalition Government under John Howard that systematically wound back the rights of Indigenous Australians, diminished native title rights, and saw the scrapping of all the existing avenues for representation and decision making with the removal of ATSIC.

The challenge for this government in moving forward to make the vision of the apology a reality is to put aside the paternalism of the Howard/Brough years and to actively engage Aboriginal communities in policy development, decision making and community development instead. This also means recognising, as the Cape York Land Council put it, that "[m]eaningful respect for native title as a valuable property right is part of the solution … not an impediment"4.

The impetus for reform

The impetus for this bill arose from the interactions with Aboriginal and Torres Strait Islander Australians and native title experts that took place in and around the 2009 inquiry of the Senate Standing Committee on Legal and Constitutional Affairs into the Native Title Amendment Bill 2009. A Bill which in and of itself had little to do with reforming native title to deliver better outcomes.

The discussions that took place around that Senate inquiry crystallised many of my long-standing concerns with the NTA which lead to a continuing dialogue on broader native title reform that has ultimately led to these reforms.

At the time of the introduction of the first 2009 bill, the Attorney General Robert McClelland stated that the intent of the Australian Government in introducing the bill was "… achieving more negotiated native title outcomes in a more timely, effective and efficient fashion"5.

The vast majority of the evidence tended to that Senate inquiry supported the need for native title reform that would achieve more effective native title outcomes in a more timely and resource efficient manner but disagreed with the Attorney General's suggestion that the Government's reforms came anywhere near achieving those outcomes.

As Tony McAvoy of the National Native Title Council put it at the time:

"…the amendments that are proposed in this amendment bill are not controversial. They may make some small difference but they are not going to make any vast change in the way in which native title matters are dealt with. There is not going to be any rush of settlement of native title applications as a result of any of these amendments."6

The submissions to that inquiry identified a number of other possible reforms to the NTA that promised to address the barriers to timely and meaningful native title outcomes and went beyond the narrow agenda of the government's first 2009 bill. These included addressing the 'burden of proof' through a rebuttable presumption of continuity7, strengthening the requirements for parties to 'negotiate in good faith', and raising the threshold on extinguishment, among others.

Many of the issues raised in this inquiry were further discussed and developed in the Native Title Report 2009 of the Australian Human Rights Commission by the then Social Justice Commissioner, Tom Calma. This report made an important series of recommendations for native title reform, many of which have provided the basis for the reforms proposed within this bill.

I note that this bill does not cover all of the reforms recommended by Tom Calma, and includes a number of measures that he did not discuss at the time. While many of the good ideas can be attributed to Mr Calma and to others, I take full responsibility for the way they have been interpreted as legislative amendments. I commend the work of the former Commissioner and thank him sincerely for his efforts.

I would also like to thank the native title experts, Aboriginal and Torres Strait Islander organisations, land councils and representative bodies that have contributed their thoughts, ideas and comments to us in response to our inquiries and as part of the consultation process we undertook around the discussion paper and draft amendments proposing these reforms.

The right to negotiate also applies offshore

This item seeks to improve procedural rights over offshore areas for native title holders. In doing so it seeks to address the contradiction between the existing provisions of subsection 26(3) of the NTA (that limits the right to negotiate to acts that relate to a place on the landward side of the mean high-water mark) and the fact that native title rights have been recognised to exist in offshore areas.8

This amendment is consistent with the views expressed by the then Attorney General Robert McClelland, who stated in 2009 that:

"When it comes to behavioural change, I accept that the Australian Government has to lead by example. I believe we are doing just that. For example, last year I announced that the Government will take a more flexible approach to recognising native title in Australia's territorial waters. The Australian Government now accepts that native title can exist out to the limits of the modern territorial sea, generally 12 nautical miles from the territorial sea baseline. Given that the Government is involved in all claims over offshore waters, this approach should help bring about more negotiated settlements."9

The limitation of procedural rights under subsection 26(3) that denies traditional owners a right to negotiate over future acts in offshore areas is clearly inconsistent with this recognition that native title can exist up to 12 nautical miles out to sea, and so item 2 of the bill remedies this by repealing subsection 26(3) to remove this unnecessary contradiction and allow traditional owners the right to negotiate over acts that impact on their sea country.

Strengthening good faith negotiations

The future acts regime plays a crucial role in the manner in which traditional owners are able to exercise their native title rights, by governing the requirements placed on parties negotiating agreements concerning proposed activities. There has been sustained criticism of the manner in which the future acts regime has led to protracted and uncertain outcomes, and calls for the act to be amended to create stronger incentives for beneficial agreements and to achieve greater procedural fairness by striking a better balance between native title and non-native title interests.

To this end the amendments proposed in items 3 to 12 of this bill expand on the current requirements for parties to negotiate 'in good faith' in relation to future acts.

Currently the burden of proof for proving the absence of good faith in negotiations is on the native title party, rather than the proponent of a proposed future act. This appears procedurally unfair as it is in effect the proponent who is effectively asserting that they have negotiated in good faith for the required period when they apply for a matter to be taken to arbitration.

Item 3 of this bill seeks to strengthen the requirement to negotiate in good faith, in line with the recommendations of the Native Title Report 200910.

The NTA as it stands prevents parties from resorting to an arbitral body, such as the National Native Title Tribunal, for a period of six months from the issue of a notice that the government intends to grant a mining tenement. This fixed negotiating period does not take into account the relative scope or difficulty of the proposed negotiations - it is the same irrespective of whether the parties have established previous agreements or are meeting for the first time, and irrespective of whether they are negotiating a single act or attempting to conclude an overarching agreement on a 'whole of claim' basis.

So on the one hand, parties who are undertaking complex negotiations in a genuine attempt to make efficient use of their time and resources to secure wide-scale agreements over large areas of land and multiple future acts need to do so within the six month limit (irrespective of the number of negotiations and the lack of resources of the native title representative body). On the other hand, proponents who are not inclined to enter into serious negotiations with native title holders can effectively stonewall and sit on their hands for six months, knowing they can then force the matter to arbitration without any requirement to demonstrate they have made all reasonable efforts to come to agreements.

To this end item 3 of this bill substitutes a new paragraph 31(1)(b) which requires parties to negotiate in good faith for at least six months and to use all reasonable efforts to come to an agreement about the conditions under which each of the native title parties might agree to the proposed future act. As made clear in the evidence to the Inquiry, this provision does not limit the ability of parties to reach agreement within 6 months but it does require negotiation for at least 6 months before either party can apply to the Tribunal.

Item 4 inserts new subsections 31(1A)-(1C), providing clarification of what the requirement to negotiate in good faith really means.

The good faith negotiating requirements are one of the few legal safeguards that native title parties have to protect their native title interests under the NTA. While section 31 of the NTA seeks to oblige the parties to negotiate in good faith during the negotiating period, in practice it is virtually impossible for claimants to establish that a proponent is not acting in good faith. This is borne out by the decision of the Full Federal Court in the matter of FMG Pilbara v Cox11 - a decision which substantially watered down the right to negotiate, to the extent that any negotiation in which the native title party cannot demonstrably prove bad faith is effectively considered to be a good faith negotiation.

Item 4 strengthens the requirement to negotiate in good faith by including explicit criteria for the type of negotiation activities that are indicative of good faith and clarifies that deceptive or unsatisfactory conduct is not a perquisite to demonstrate a failure to negotiate in good faith. Furthermore, it places a requirement on the arbitral body to consider the financial resources, and in the case of the native title party, the demands of cultural and religious practices, when considering whether a party has negotiated in good faith.

Item 7 reverses the onus of proof so that the party that is asserting good faith is the one that is required to prove it, by inserting a new subsection 31(2A).

Item 10 provides that a party may not apply to an arbitral body (under subsection 35(1)) until the party has first demonstrated good faith negotiations have taken place in accordance with section 31.

Strengthening coexistence by disallowing extinguishment

Another area where the NTA has failed to deliver is the manner in which the bar on extinguishment has been set too low. This has meant that in practice the principle of 'coexistence' of native title rights, which is clearly envisaged within the NTA, is too often brushed aside or ignored.

Item 13 of the proposed amendments seek to address this issue. Item 13 inserts new sections 47C and 47D. The new section 47C provides that in the case of National, State or Territory Parks, extinguishment is to be disregarded. Given the nature of national parks, it is appropriate for the non-extinguishment principle to apply and to allow for the co-existence of native title rights and interests. Chief Justice French has used the example of the vesting of a nature reserve on Crown land as one act which could be determined to have extinguished native title, where it would make sense to be able to disregard extinguishment and provide for an agreement between the traditional owners and the state to recognise native title rights in the interests of managing that reserve.12

New section 47D provides that at any time prior to a determination, the applicant and a government party can make an agreement that the extinguishment (or possible extinguishment) of native title rights and interests can be disregarded.

The current breadth and permanence of the extinguishment of native title through the provisions of the NTA is arguably unjustifiable, unnecessary and in breach of Australia's human rights obligations.13

Section 47 of the NTA provides a model for coexistence of native title and other rights on pastoral leases. The new sections in item 13 are consistent with the current application of the NTA, and allow the existing coexistence provisions to be extended to nature reserves and allow extinguishment to be disregarded by agreement in a wider range of circumstances.

Presumption of continuity

In practice, the bar for the recognition of native title rights has been set too high - with the onus of proof of cultural continuity being placed on Aboriginal and Torres Strait Islander people, and with evidence standards effectively mandating a reliance on the written accounts of European colonists that deny the predominantly oral nature of Indigenous cultures.

As the Australian Human Rights Commission argued in its submission to the 2009 Senate Inquiry:

"It cannot be disputed that Indigenous peoples lived in Australia prior to colonisation and that the Crown was responsible for the dispossession of Indigenous peoples throughout Australia.

It has also been acknowledged by governments over time through various policies, laws and statements of recognition, including the creation of land rights regimes and other mechanisms, that Indigenous peoples are the Traditional Owners of the land.

It is in this context that the Commission argues that it is unjust and inequitable to continue to place the demanding burden of proving all the elements required under the Native Title Act on the claimants."

The issue of prior occupation and hence the pre-existence of native title rights is not being questioned (as the preamble to the NTA readily acknowledges) and so under these circumstances it seems to be 'fundamentally discriminatory'14 and a gross injustice to place the burden of proof upon the dispossessed. This is particularly true when we consider that it is State and Commonwealth Governments that have granted the rights that have lead to the possible extinguishment of native title, and that it is those governments who hold many of the historic records needed to establish connection.

The intent of providing for a rebuttable presumption of continuity is to shift the burden of proof in a way that encourages government parties (who must now take on the role of adducing evidence in their archives to rebut presumptions) to be more inclined to settle claims with a strong prospect of success - rather than dragging them out in the Federal Court as they are currently entitled to do.

Item 14 of our proposed amendments to the NTA seeks to address this issue, by putting into legislation amendments suggested by Chief Justice French15 that reverse the burden of proof to create a rebuttable presumption of continuity.

Moving to resolve more native title cases by consent determination could result in timelines being 'streamlined beyond recognition' and costs being 'reduced out of sight'16. However, as the Native Title Report 2009 points out17, a respondent would still be able to defeat a native title claim due to the operation of section 223, by providing appropriate evidence.

We have adopted a suggestion from the Law Council of Australia to insert new section 61AB clarifying that a court may determine that section 223 has been met notwithstanding substantial interruption of or significant change to traditional laws and customs if the interruption or change resulted from the action of a State or a Territory or a person or a party who is not an Aboriginal or Torres Strait Islander.

Definition of ' traditional '

As described in the second reading speech to my original Bill, in practice, the manner in which 'traditional' culture is defined by section 223 of the Act fails to recognise the dynamic and living nature of Indigenous Australian cultures. Instead it seeks to freeze culture in some pre-colonial past, which defines traditional culture based on a snap-shot of cultural practices at the time of European settlement and an expectation that they should continue unchanged. This ignores the fact that by their very nature the cultures of Australia's first nations were geared towards adapting to and surviving in an often harsh environment, not to mention the substantial efforts and resources expended by successive governments aimed at forcing or encouraging changes in behaviour.

This limited and unrealistic definition of 'traditional' means that in practice it is far too easy for a respondent to rebut the presumption of continuity by establishing a law or a custom is no longer practiced in exactly the same way it was at the point of colonisation. A more sensible and realistic definition of traditional culture would be one that "encompasses laws, customs and practices that remain identifiable through time"18 and allows at law for an appropriate level of adaptation to the changing circumstances brought about by colonisation.

The narrow application of section 223 has created insurmountable barriers to cultural resurgence as clearly seen by the Noongar, Larrakia, Wongatha and Yorta Yorta cases. In practice, the policy decision to narrowly interpret continuity and traditional practice under section 223 in the Yorta Yorta19 case has created a situation which directly contradicts the original objects of the NTA - in that it means that there is no opportunity to raise the role of past injustices in the interruption of cultural continuity in an Act whose every intent is to provide remedy to those injustices.

Where a group has revitalised its culture, laws and customs by actively seeking out and recovering those elements of cultural continuity driven underground by dispossession, forced relocation, or the removal of children, a comparatively minimal interruption to the sharing of that culture across the claimant group should not be sufficient to prevent the recognition of native title rights.

This state of affairs is clearly at odds both with the stated intentions of the NTA and Australia's international human rights commitments. On this basis it would be sensible to empower the Court to disregard any interruption in the observance of traditional laws and customs where it is in the interests of justice to do so.

Item 18 of our proposed amendments inserts new subsections 223(1A), (1B), (1C) and (1D) which provide clarification of the definition of 'traditional' to ensure that the interpretation of what counts as ongoing Indigenous culture and law is based on a more realistic understanding of the maintenance and continuity of traditional practices and cultural values over time. This should help ensure that communities who have maintained a strong connection to their lands, laws, cultural practices and values will not have their recognition discounted based on changes which do not fundamentally alter the core of their cultural identity as traditional custodians of their land and sea country.

Commercial rights and interests

As mentioned in the second reading speech to my original Bill, in practice, the rights native title have delivered have also not been strong or complete enough to effectively 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.

Currently there is no mechanism to provide for the recognition of commercial rights to enable agreement making that delivers on the stated intent of the NTA "for securing the adequate advancement … of Aboriginal peoples and Torres Strait Islanders" by providing a vehicle for social and economic development. Furthermore, courts have appeared to take a view of customary Indigenous laws that does not properly recognise existing cultural economies and effectively distinguishes between customary or cultural rights and commercial ones.

This is at odds with a wealth of existing evidence of customary trade rights and practices which were based in customary rights to resources - including aquaculture, trade in clay and ochres and turtle shells, as well as crafts such as baskets and spears. It also includes strong evidence of a long-term trade relationship with Macassan fishermen from Indonesia.

The current Minister for Indigenous Affairs, Jenny Macklin, has stated that the Government considers that Indigenous communities should be able to use their native title rights to leverage economic development.20 However, as yet, this government has not sought to amend the NTA to strengthen the rights of native title holders in this or any other matter, and have largely confined themselves to amendments to the act that reduce the rights of native title holders.

The Leader of the Opposition, Tony Abbott, recently spoke of his "determination to ensure that the Aboriginal people of Australia finally get a fair go where their land is concerned" and went on to say that "the land which Aboriginal people have secured is obviously a cultural and spiritual asset but it should also be an economic asset." On the face of it, it would seem in principle that there is cross-party support for these measures.

To this end, item 19 the bill provides that native title rights and interests can be of a commercial nature, removing what is an unnecessary impediment to Indigenous economic development.

Conclusion

As with our previous bill, the reforms contained in this legislation put forward clear and specific measures to address a number of key areas of interest to native title claimants.

They address the barriers claimants face in making the case to demonstrate their pre-existing native title rights and interests and they tackle some of the procedural issues within the future acts regime that restrict the ability of native title holders to assert and exercise their native title rights.

As we stated before, native title has the potential to play an important role as a basis for the economic and community development of those of Australia's first peoples who have been able to maintain their connection to their traditional lands and culture in the face of dispossession.

It is clear that the original intention of the Parliament was that the Native Title Act would 'rectify the consequences of past injustices' and secure their 'adequate advancement and protection', however, it is equally clear that in its application this complex area of law has failed to deliver on those hopes.

The strong relationship of Aboriginal and Torres Strait Islander peoples with their land and sea country should provide a firm basis on which to strengthen their culture and build their future. To make this happen, native title reform is needed.

The Native Title Amendment (Reform) Bill (No. 1) 2012 is an important first step on that path - I commend it to the Senate.

—————

1 Justice Kirby in Wilson v Anderson, High Court of Australia (2002) 213 CLR 401.

2 Justice Kirby in Wilson v Anderson, High Court of Australia (2002) 213 CLR 401.

3 Hon. Kevin Rudd, Apology speech, Address to the Opening of Parliament, 13 February 2008.

4 Cape York Land Council, Submission 2, Senate Standing Committee on Legal and Constitutional Affairs inquiry into the Native Title Amendment Bill (No. 2) 2009, p6.

5 Attorney General Robert McClelland, second reading speech, 19 March 2009, Hansard.

6 Transcript, p20.

7 As recommended by Chief Justice Robert French.

8 AHRC, Native Title Report 2009, p106.

9 R McClelland (Attorney-General), speech to the Third Negotiating Native Title Forum. http://www.attorneygeneral.gov.au/

10 pp 104-107.

11 FMG Pilbara v Cox (2009) 175 FCR 141. AHRC, Native Title Report 2009, Chapter 1.

12 Chief Justice French, Lifting the burden of native title, 2008.

13 HREOC, Native Title Report 2002.

14 Les Malezer, 2009 Mabo Lecture.

15 Chief Justice French, Lifting the burden of native title, 2008.

16 Justice North & T Goodwin, Disconnection the gap between law and justice in native title, 2009.

17 AHRC, Native Title Report 2009, p82.

18 AHRC, Native Title Report 2009, p85.

19 Yorta Yorta v Victoria, High Court of Australia (2002) 214 CLR 422.

20 Hon. J Macklin, Beyond Mabo: Native title and closing the gap speech at 2008 Mabo Lecture.

Senator SIEWERT: I seek leave to continue my remarks later.

Leave granted; debate adjourned.