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Standing Committee on Aboriginal and Torres Strait Islander Affairs

BESLEY, Mr Edward Douglas, Partner, Just Us Lawyers

BUNYAN, Ms Libby, Director, Native Title Policy, Land Programs Branch, Department of Families Housing Community Services and Indigenous Affairs

BYGRAVE, Dr Louise, Senior Policy Officer, Aboriginal and Torres Strait Islander Social Justice Team, Australian Human Rights Commission

DONOVAN, Mr Mark, Head Of External Affairs, BHP Billiton Iron Ore

DUGGAN, Mr Kym Francis, First Assistant Secretary, Social Inclusion Division, Commonwealth Attorney-General’s Department

FLETCHER, Dr Debra Anne, Manager, Land Access, Chamber of Minerals and Energy of Western Australia

GOODA, Mr Mick, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission

GRACIK, Ms Lavinia Michelle, Acting Assistant Secretary, Native Title Unit, Commonwealth Attorney-General’s Department

HARDIE, Mr Colin Stanley, Partner, Just Us Lawyers

LINNEGAR, Mr Matt, Chief Executive Officer, National Farmers Federation

MALEZER, Mr Robert Leslie, Co-chair, National Congress of Australia's First Peoples

MEEGAN, Mr Michael, Principal Legal Officer, Yamatji Marlpa Aboriginal Corporation

MORCOMBE, Miss Alexa, Group Manager, Aboriginal Engagement, Fortescue Metals Group Limited

NEATE, Mr Graeme John, President, National Native Title Tribunal

OWENS, Mr Michael John, Private capacity

PATTERSON, Ms Michelle Diane, Deputy Principal, Australian Institute of Aboriginal and Torres Strait Islander Studies

PHILLIPS, Ms Jacqueline, National Director, ANTaR

POSTMA, Ms Therese, Assistant Director, Social Policy, Minerals Council of Australia

RUSSO, Mr Frank, Deputy Registrar, National Native Title Tribunal

SEXTON-MOSS, Dr Sean Patrick, Native Title Special Counsel, Native Title Unit, Commonwealth Attorney-General’s Department

SHORT, Mr Graham, National Policy Manager, Association of Mining and Exploration Companies

STEWART, Mr John, AM, Chair, Native Title Task Force, National Farmers Federation

STOREY, Mr Matthew, Director, National Native Title Council; and Chief Executive Officer, Native Title Services Victoria

STRELEIN, Dr Lisa, Director of Research, Indigenous Country and Governance, Australian Institute of Aboriginal and Torres Strait Islander Studies

STUTSEL, Ms Melanie, Director, Health, Safety, Environment and Community Policy, Minerals Council of Australia

TAN, Dr Carolyn, In-house Legal Counsel, Yamatji Marlpa Aboriginal Corporation

WEAVER, Mr Tom, Native Title Manager, Fortescue Metals Group Limited

YEATES, Dr John Stafford, Chair, Working Group, WA Chamber of Minerals and Energy

Committee met at 10:01

CHAIR ( Mr Neumann ): I declare open this public hearing of the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs into the Native Title Amendment Bill 2012. We acknowledge the traditional custodians of the land on which we meet, and pay our respects to elders past, present and future. We also acknowledge the Indigenous people residing in this area who are present in this room. Please note that these meetings are formal proceedings of the parliament. Everything said should be factual and honest. It can be considered a very serious matter to mislead the committee. This hearing is open to the public and a transcript of what is said will be placed on the committee's website.

The committee is aware that an investigation is taking place into activities involving a former Native Title Tribunal manager in Western Australia. Given that this is potentially a sub judice matter, and having 20 years experience as a litigation lawyer, I am going to make sure that no-one comments on that matter. Please refrain from making any comments in relation to that investigation.

The committee has been asked to inquire into the Native Title Amendment Bill 2012 and we hope to report back to the House of Representatives during the week commencing 18 March this year. We are aware also that the Senate Legal and Constitutional Affairs Committee, which is our equivalent in the Senate, has also had a referral and is inquiring into the bill. They will be focusing on the technical drafting aspects of the bill. Today we are looking at a few of the sections and looking at where the balance has been struck and getting comments in relation to that in a general sense, particularly in the second session.

This committee thinks it is important to hold a roundtable dialogue. We have had numerous meetings in this format for previous inquires, including for 'Doing Time' which looked into the role of the criminal justice systems in terms of Indigenous juveniles and adults. We are inquiring into the role of sport in closing the gap in this location as well. So we are very familiar with the areas.

The purpose of this morning session is to examine the legislation proposed but equally to look at the effectiveness of the bill and meeting its objectives, whether the bill strikes a fair balance for stakeholders, the adequacy of safeguards put in place; and the unintended consequences in relation to the bill. In particular, this morning session will focus on issues concerning new section 47C in relation to historical extinguishment of native title and that being overwritten by agreement. We will also be looking at the meaning of and attempts to codify the good faith issues as a result of the government's response to the Cox decision. Finally, there is another schedule which deals with purported streamlining of processes in relation to Indigenous land use agreements.

I welcome everyone here today. I will ask Mick Gooda to say a few words and then we will have one representative member of each group make an introductory statement.

Mr Gooda : I think today's focus is on whether the bill achieves a balance between the views of various stakeholders and future reforms for the native title processes. I acknowledge that the amendments in the bill focus on incremental reform as suggested by the former Attorney-General, Nicola Roxon. Nonetheless, these amendments provide positive steps towards clarifying processes and encouraging flexibility in the native title system.

The intent of the Native Title Act 1993 is outlined in the preamble, which proposes that Aboriginal and Torres Strait Islander people receive the full recognition of status within the Australian nation, to which their history, prior rights, interests and rich and diverse culture fully entitle them to aspire. Native title was a promise to recognise Aboriginal and Torres Strait Islander people's traditions and their connections to, and rights and interests in, their lands, territory and resources. I continue to ask whether the promise of native title has eventuated into outcomes for Aboriginal and Torres Strait Islander people. Together with that, we must ask what needs to happen in the native title system to create and achieve substantial change for our people.

In setting the scene for our discussions today, the starting point could be to focus on what we have in common so that we can have a constructive discussion about how we can achieve real outcomes from the native title processes— in my case, particularly for Aboriginal and Torres Strait Islander people. I think the issue we can agree on are that native title is not going away, it is part of the Australian landscape; we cannot accept the status quo of the way the Native Title Act is currently drafted; we want native title result in shorter time frames—I am constantly being confronted by our elders passing away before their native title is confirmed; and the process is too expensive. Some of these things go hand in hand: the longer it takes, the more it will cost.

Speaking from an Aboriginal perspective, it is important to recognise that the issues that bother you also bother us. I said when I began in the position of Aboriginal and Torres Strait Islander Social Justice Commissioner that the declaration on the rights of Indigenous people will guide all the work that I do. In our submission we recommend that we need to ensure the native title legislation is consistent with our human rights as outlined in that declaration. For us in the Human Rights Commission, it means making the native title legislation consistent with what we consider to be the important principle of the declaration: self-determination.

In my social justice report last year I proposed that we reframe our discussion around self-determination. I think self-determination carries a lot of baggage that is unfair. I want to think about self-determination in a way that measures, instead of how strong people exercise it, how the most vulnerable in our communities—women, children, old people—are being hurt.

The second principle is the principle of our right to participate in decisions that affect us underpinned by good faith and the concept of free, prior and informed consent. I know that when the declaration was being drafted the concept of free, prior and informed consent scared lots of people. They talked about it being a right of veto. We do not know about this stuff. It is a global document we are talking, and we struggle to work out what we mean by free, prior and informed consent. Is it a right of veto and how does it work? We are proposing the Human Rights Commission along with congress to hold a series of dialogues around the country over the next 18 months to work out what this means. Respect for and protection of culture is one of the main principles, and the final principle is non-discrimination and equality.

The declaration mentions in about three articles our right to land. The government were involved in developing the declaration and lobbied to have article 27 put in. Article 27 says:

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources …

I want to run through a couple of issues that concern us. I am sure you will recognise some of these. A couple of years ago I started a conversation around lateral violence—how we as Aboriginal people treat each other. I had to think long and hard about raising this issue. I did not want Aboriginal people painted with yet another dysfunction. But lateral violence happens in every workplace, every family, every community. But it has an acute effect on indigenous people around the world: the phenomenon of oppressed people eventually internalising oppression and using the tools of the oppressors to oppress ourselves.

When I started this conversation around lateral violence I wanted specifically to relate it to native title and the sort of troubles that happen in our communities when we go through a native title process: who belongs where, who belongs to whom, the sort of fights that we have within our families and communities when we get to this point. I think we have to make that easier. In my experience with native title, if there is one thing that causes the angst in our communities, it is connection reports. That is why we think some of these amendments do not go far enough. We think we should be looking at reversing the onus of proof on connection.

I think that once we get through some of that stuff we can actually make it really easy for Aboriginal people. I am not saying we do not have a system for deciding who belongs where, but it would be an Aboriginal or Torres Strait Islander system, not something with the standards that we have to meet in a Federal Court. A friend of mine was confronted time and time again by Aboriginal people asking about the benefit of native title to Aboriginal and Torres Strait Islander people. In last year's native title report I talked about those opportunities being realised and what we needed to make that happen. I talked about the importance of governance. Next week in Canberra congress is hosting a roundtable, and I will give my thoughts on an Indigenous governance framework which covers community governance, organisational governance and the governance of government. I think that if we can get those sorts of things worked out then it is going to be okay, but we Aboriginal and Torres Strait Islander people have to get our governance right if we are going to produce what we think we want out of this, and that is intergenerational benefit for Aboriginal and Torres Strait Islander people. How are my kids, my kids' kids, my kids' grandkids going to benefit from native title? That is the question that vexes us all the time. Do we say that this generation of people benefits alone because of an accident of being born at a time when we were determining native title? We get native title because of the generations that have come before us, and I believe this generation has a duty to the future generations that come after us.

I say we need to start thinking about the things we agree on: those high-level things like 'It takes too long', 'It costs too much' and 'It's not going to go anywhere.' Let's think about those to start with. Let's agree openly about the things we disagree on and the things we need clarification on instead of fighting like the trench warfare that we fought 20 years ago. I encourage everyone to be open and honest today and think about how we can make this thing work for everyone, not just Aboriginal and Torres Strait Islander people: for developers, for farmers, for miners, for people just living their lives out in the suburbs. I thank you for giving me the opportunity to speak.

CHAIR: Thank you. I wanted to make sure you had that opportunity at the beginning to set the scene. Now we will go around briefly. Assume we have read your submissions, but we are very interested in hearing a brief introductory statement. We want to make sure everybody has a chance to have a say. Could we get one person from every organisation please.

Mr Duggan : The Australian government's focus in native title has been through practical, considered and targeted reforms. The government is focused on achieving faster, better outcomes in the system. As you will be aware, the government made a number of reforms to the act, particularly in 2009. The government implemented reforms that have contributed, in the government's view, to broader, more flexible and faster negotiated settlements. These reforms particularly gave the Federal Court a greater role in the management of native title claims and more flexibility about how to manage them. Since these amendments came into effect, the number of consent determinations has increased almost fourfold, and the Federal Court tells us that pace is about to increase. This is a positive sign that the government's changes are helping achieve negotiated outcomes.

The government's current institutional reforms to the Federal Court and National Native Title Tribunal will build on those successes, resulting, in the government's view, in a better alignment and allocation of functions between the NNTT and the Federal Court and contributing to a more timely resolution of claims. In that context the government is now progressing, with this bill, a range of targeted reforms that seek to improve the native title system with a focus on improving agreement making, providing parties with flexibility to resolve native title claims. As you have already indicated, the bill reforms three areas of the Native Title Act. It allows parties to agree to disregard the historical extinguishment of native title in areas set aside for the preservation of the natural environment such as parks and reserves. It clarifies the meaning of negotiating in good faith and makes associated amendments to the right to negotiate provisions. It broadens the scope and streamlines processes for voluntary Indigenous-land use agreements.

Since 2010 the government has undertaken extensive consultation on these amendments with key stakeholders, and on behalf of the government I thank all those present, because we have had some very—at times frank—useful discussions with almost everyone around this table. Not all stakeholders agree, but all views have been carefully considered. The government believes, at least at the moment, that a sensible balance has been struck.

I also indicate that many of you will be aware that the Attorney-General has been in his job for four days at the moment. He has a very significant personal interest in native title, having worked for a land council in his previous life. He has already indicated to us that he has a very significant interest in these proceedings. We have not had an opportunity to brief him, but he is very keen to hear the deliberations of the committee. Thank you.

Mr Short : The Association of Mining and Exploration Companies is the peak national body for mineral exploration and mining for companies within Australia. As I mentioned earlier, we have a membership base of over 360 members. The feedback we have had from our membership base, which is made up of those including the legal fraternity as well as consultants, is the basis under which our views have been taken. As far as we are concerned, the proposed amendments to the act will increase uncertainty and inefficiency and lead to further delays in the negotiation process, contrary to what the apparent intentions are. It will also from our point of view result in a slowdown in the release of mineral titles, which of course affects our membership base. We are also concerned about the limited consultation process to date, contrary to what my colleague has just indicated from the Attorney-General's Department. I do have a chronological record of the limited consultation that we have had, which also included a period of some 12 months where we did not hear anything.

CHAIR: Will you submit that to the committee today for our consideration?

Mr Short : I will do that.

We are also concerned about any real strategy. You will have read in our submission that we referred to the apparent intention of the Commonwealth's amendments to align with the Commonwealth government native title strategy. We have tried to locate that particular strategy and understand it does not publicly exist. In fact, we have recently been told—again by the Attorney-General's Department—that it is not in one single document, so the question is obviously asked: does it exist and, if it does, what is the strategy?

As far as we are concerned, the act is a very complex and sensitive piece of legislation, and we certainly ask the committee to carefully consider the issues, the problems, all of the concerns and potentially the unintended consequences. We believe they go far and wide to Aboriginal communities, to Aboriginal people and to federal and state governments. I also note it is disappointing that nobody from any of the state governments are here, and they are a major stakeholder in this whole process. I understand the Western Australian government could not attend because they are in caretaker mode, but nevertheless it is disappointing that they are not here.

We are also concerned about the lack of research and, really, evidence to support that the proposed amendments will make any difference. On that basis, that is a difference for all stakeholders, and we are very conscious of all stakeholders as well. On that, I say that, despite recommending that the amendment bill should be withdrawn, we have been trying to be constructive and proactive back to 2010 that I recall. Certainly in recent times we have been constructive in saying that there needs to be broad stakeholder consultation with everybody. As I said, I do not think all of the stakeholders are in the room today. I do not know whether there is any intention to finalise the consultation discussion process or get some direction today, but I do not think it is possible. We wish you well, but I think today is just the start of a potential further process. It definitely needs to be more comprehensive.

CHAIR: Thank you.

Mr Donovan : BHP Billiton Iron Ore is a member of the Minerals Council of Australia and also the Chamber of Minerals and Energy of Western Australia. We fully support the submissions that have been made by both of those representative organisations. I am here in addition to that on the basis that I have had nearly 20 years of experience with negotiations under the right to negotiate process, so I can talk about it with some firsthand experience.

Mr Stewart : I represent the National Farmers Federation. I have been dealing in native title since 1996 and am a former member of the Queensland Aboriginal land tribunal, so I had a little bit to do with native title and Aboriginal people, who I will say I admire. The National Farmers Federation has always been supportive of this system and has always been concerned that everything takes so long, but at last in the last 12 to 18 months we have seen a substantial improvement in the settlement of native title claims. For instance—I am talking about pastoral native title claims—in the years 2010-11 and 2011-12 49 claims were settled, but in the six months from 1 July to 31 December 2012 18 were settled. That is a big increase in number. It is estimated that in this current 2013 calendar year there will be 79 pastoral claims settled. That to me is improvement and shows that, with what we are currently doing and the system we currently have in place, good faith must be working. If good faith is working, why do you want to change something we know is achieving what we want it to achieve?

We go on to historical extinguishment. We have a concern about historical extinguishment in that, while it says parks and reserves, it is terribly easy to move over into pastoral land. We asked in our submission that pastoral land or agricultural land be exempted, and that was not taken up in the final draft. We are suggesting that, to avoid doubt, the application of 47C does not apply to leasehold land and freehold land, including any formal or informal conservation land contained within them such as conservation covenants such as in Queensland, where we have nature reserves.

Moving finally to ILUAs: ILUAs to me are being able to see the proof of whether or not you are succeeding. This is where the Aboriginal people and pastoralists are coming together to settle something that makes everything so much more accessible, particularly for the Aboriginal people. People tend to forget that in many cases, particularly in the places that I have lived, Aboriginals have been coming onto pastoral land for years and years historically. They were there before we were. We now have a situation where a lot of people have to sign a piece of paper to tell them it is okay to do what they have been doing for years and years. As of the end of June last year we have 114 pastoral ILUAs signed but 591 pastoral ILUAs currently being finalised. If that is not improvement, what is improvement? So I am also saying to you that the ILUA process to us seems to work, so let it continue.

However, there is one problem: the federal Attorney-General ceased funding for pastoral respondents at 31 December 2012. It will be said, 'No, she didn't; she said there'd be funds available for a lawyer who was looking to prove a point of law'—you really have to ask how many more points of law we have to settle—'and some disbursements for lawyers.' To give you a figure which I am sure will surprise you all, to fund native title representatives in Australia would have cost $1.1 million this year and $1.1 million next year. That is the amount of money that we were seeking from the federal Attorney-General's Department. To me it is ridiculous to all of a sudden pull the plug on a system that is working. What happens now? We have something like 1,500-odd respondents all around rural Australia. What do they do? If we are not there to do what we are doing now, they will then have to go and find a lawyer, and you can imagine people in the Kimberley or the Northern Territory or North Queensland having to go and each find a lawyer. It will not be as it is now, where we have one lawyer and one native title holder dealing with the process—two people in each state, dealing with all these processes.

So as far as the bill is concerned, we think that the bill is overkill. Our legal people have advised us that they do not think there is much in this for anyone, and, especially, that it will not improve native title. So our general feeling is that this bill, as it is, will not achieve anything.

The other thing I have to say is that 28 February is a very important day for native title from pastoralists' point of view. The current system is going to fall apart on 28 February, because that is as long as you can go before the current lawyers have to say, 'We cannot represent anyone anymore,' and then the pastoralists have to go and find their own lawyers. So on 28 February, believe me, if we do not have some funding to keep going, I think native title settlement of claims is just going to go down and down and down.

Ms Patterson : I will make a brief opening statement on behalf of the Australian Institute of Aboriginal and Torres Strait Islander Studies. However, I am sure everyone around this room understands that Dr Strelein, who is sitting next to me here, is quite the eminent expert on native title and I will leave the direct evidence about the various bill amendments to Dr Strelein.

Next year marks the 50th year of the Australian Institute of Aboriginal and Torres Strait Islander Studies and/or its predecessor. It has a 50-year-long history of continuous research under statute by government into issues of relevance to Aboriginals and Torres Strait Islanders, canvassing a wide range. Since the Mabo decision we have had the Native Title Research Unit, which is a powerhouse for information, advice and research on native title in this country, I am sure you will all agree.

We want to thank you for the opportunity to enter into a dialogue today and provide further advice to the committee. What we wonder, having provided three submissions on this particular bill, is: what more can we say on the issues that we have raised that would help bring the arguments to the committee to help it to understand what we are saying?

In particular, I refer to the issues of arbitration and good faith and the onus of responsibility that we address in our submission. I come from a background in industrial relations. If I were to appear 100 times before the Industrial Relations Commission, or the previous conciliation and arbitration side of things, I cannot imagine how the employers or the unions would feel if 95 times out of those 100 one side or the other came away with the expected advice that their side got up. Yet in 95 per cent of the cases that go before arbitration under native title, the proponents come away with what they ask for. We do not understand how that could ever be seen to be fair, and there must be something in that system that needs examination.

So, in the spirit of dialogue that the Aboriginal social justice commissioner has asked us to enter into today, we do ask for some clarity and advice: what is it that we could do to bring these issues to an agreeable settlement around the table and that will deliver a fairness and patent equity in that system which we are not seeing at the moment?

Ms Stutsel : Thank you for the opportunity to appear today. The Minerals Council of Australia is the peak national industry association representing the minerals industry and its contribution to sustainable development and society, and we have long held the view that we support changes to the Native Title Act which improve the efficiency and operability of the system without diminishing the rights and interests of Indigenous Australians and their special connections to land and waters.

While we support the objectives of these reforms in seeking to improve agreement making and to encourage parties to focus on negotiated rather than arbitrated outcomes, the critical issue for us is really: do they bring certainty and clarity to a system, particularly for an industry that is engaged much more in the future act process rather than in claims determination? As we have detailed in our submission, we do not consider that these amendments achieve those aims of certainty and clarity. Our primary concerns really relate to two areas of the proposed amendments: the negotiation in good faith amendments and the historical extinguishment changes.

Based on all of the evidence that we have seen produced by eminent organisations in this space, we do not consider there to be an empirical justification to reform the provisions for negotiation in good faith under the act. Indeed, the evidence demonstrates that over 98.5 per cent of tenements granted between 1 January 2000 and 11 October 2012 were actually granted through negotiated rather than arbitrated outcomes. That is a pretty high achievement rate for anything, let alone in an area where some 10 years ago we were very much in the trenches.

We do however recognise the value of greater clarity in relation to the application of the good faith provisions, and in that vein for the past four years the Minerals Council of Australia has offered to work collaboratively with government and the National Native Title Council to develop some guidance on how negotiation in good faith could apply. Importantly, we think this guidance should actually sit outside of the act, and could provide a clear indication of what leading practice looks like—building principally on the Njamal indicia and over 15 years of legal precedent which has already occurred in this space. We believe this would provide greater clarity and certainty for all parties than the reforms that are proposed in the bill which, we contest, will result in increased time and resources to test these concepts in court and to bring greater clarity to the system.

With respect to the issue of historical extinguishment, the MCA recognises that there are areas of lands that at the time of the Native Title Act were never expected to be extinguishing acts. So, while we support the decision to allow parties to actually set aside historical extinguishment in parks and reserves, we consider that the reforms, as proposed in this bill, are largely inadequate. That inadequacy is in two areas. Firstly, they do not properly engage with parties who may have future interests in the land and the decision-making process. Secondly, they fail to remove the potential for compensation, specifically compensation paid for acts which have occurred prior to the native title being recognised.

In general, while we think that there is an opportunity for reform—and we would welcome the opportunity to continue to have a dialogue with all of the people around this table about how we can make this system more effective—we do not believe that the proposed amendments are the most desirous method to achieve that. In fact, we would also note that we consider that in reviewing the native title system and the Native Title Act, we really need to focus on the system as a whole. The question about whether we have symmetrical outcomes being achieved, we consider, potentially relates more to the imbalance in the resourcing of parties in negotiations—an obligation that currently is largely met by mining companies in those negotiations rather than through independent funding arrangements. This potentially brings into question both the effectiveness and the independence of those negotiations for some stakeholders.

Mr Malezer : We do not have a prepared statement but I would like to make a few particular comments. I would first like to acknowledge the Aboriginal peoples of the land, the Gadigal peoples of the Eora Nation, and also the National Centre for Indigenous Excellence for the opportunity to meet and talk over this business in the territory. I would also like to thank the Aboriginal and Torres Strait Islander Social Justice Commissioner for his opening statement—one that we can fully support.

In case there is any doubt in the discussions today about where congress stands on the legislation, we want to make it quite clear that we support this bill and its passage. I would like to thank the former Attorney-General, Nicola Roxon, for her meeting with us earlier in the year around the time of the anniversary of the Mabo decision, to bring this to our attention and also to provide us with confidence that this an incremental approach to reform and improve the native title processes.

So, if there is any doubt, we do support the bill that is presented and encourage that that be put through. However, as we made clear to the Attorney-General at the time and will make clear in today's discussion, we believe that an important element that should have been included has not been included in the bill. We would still like it to be included, and that is where the onus of proof is put upon the extinguishment of native title, not upon the Aboriginal and Torres Strait Islander peoples having to prove native title.

Let me also acknowledge the members of the committee. From the congress's point of view, our relationship in representing the Aboriginal and Torres Strait Islander peoples of Australia and their interests and rights is with the parliament and not with any particular political party or political point of view. We believe it is important that we have an engagement that is across all the political parties and is one where we encourage informed and considered opinions by the parliament in relation to the relationship with the Aboriginal and Torres Strait Islander peoples of Australia. Mick Gooda has already outlined some of the foundations for that. Particularly in this legislation, something that we are not going to harp back on is the need for prior informed consent from Aboriginal and Torres Strait Islander people in relation to any legislation and administrative procedures that affect their rights and interests.

I also draw attention to the preamble of the legislation to point out what it says about the Native Title Act. I believe that reform of the native title laws should be consistent with the undertakings that are provided in that preamble. In fact, I might step back a little bit further to say: isn't it correct that native title law in Australia should in fact be a constitutional document? Shouldn't native title legislation in Australia be treated as a foundational document along with the Constitution of Australia where it recognises the existence of the first peoples and the inherent rights that the first peoples carry despite the creation of the Australian nation? It is a tragedy that it was not until 1992 that any rights of the first peoples of Australia were recognised, and that was in relation to the property rights—the rights to lands and territories that Aboriginal and Torres Strait Islander people held. It is also a bit of a travesty that no other rights have been recognised formally since the native title decision.

But the Native Title Act was enacted, and I was present in the parliament during that period of time, in what was called TV. I was also present in 1998 as the deputy chair of the National Indigenous Working Group on Native Title and have continued to campaign on native title and land rights ever since that time. One of the issues that we have before us with this legislation is that it is discriminatory. We do not need to get into a debate about that, but in the comments of the Committee on the Elimination of Racial Discrimination which were made against both Australia and New Zealand—which had passed the foreshores and seabed legislation to extinguish Maori rights over foreshores—the committee made it clear that what the governments were doing was taking a property right, a right to property that existed with Indigenous peoples, and replacing it with a procedure. So the Native Title Act provides procedures to recognise the property rights, but what we find, and what I think many people around the table have expressed frustration about, in the way in which these procedures operating is that in fact the deliverable—that is, the property rights of Aboriginal and Torres Strait Islander peoples—seems to get lost in the debate about native title laws in Australia. So the future of native title legislation—which, as I said, should be a foundational document—really lies in the success of Aboriginal and Torres Strait Islander people getting back rights to their lands and territories and being able to survive in a viable way with their economic, social, political and cultural development in relation to their territories.

Later on today you will be talking about reforms to the native title legislation. We have put some suggestions into our submission, which you have received there. We believe that these are important, particularly when we go back to the issue of procedure, and that more needs to be done to ensure that we have a fair, independent procedure that operates in relation to the interests of the Aboriginal and Torres Strait Islander people.

Shayne, I just wanted to take the opportunity to read article 27 of the Declaration on the Rights of Indigenous Peoples, which says:

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, …

That is what we are discussing in this roundtable.

I do not want to harp on this, but I just go back to the fact that the Native Title Act originally set up a tribunal to arbitrate on this matter, and then with the Brandy decision in the High Court the powers of the tribunal were lost back to the Federal Court. It replaced the concept of land councils, which was a concept of Aboriginal and Torres Strait Islander people, with the concept of native title bodies—services and procedures which are not representative of the traditional owners but in fact are service organisations to the traditional owners. Again, as people around the table have already said, these involve huge costs in relation to how people should appear before those courses.

We think this is a long way away from 'fair, independent, impartial, open and transparent processes'. As an example of that we just want to draw attention to the Waitangi Tribunal, which operates in New Zealand, which is a completely different situation to what we are using in Australia and one which I think Indigenous peoples are more supportive of, even though in New Zealand it is ultimately the minister—the government of the day—who makes a decision about what the outcome is for the indigenous peoples.

I think I will leave it at that. Again, I go back to support what the Aboriginal and Torres Strait Islander Social Justice Commissioner has said in relation to the principles that are involved. The submission that we submitted to you we are also submitting to the Parliamentary Joint Committee on Human Rights to point out, as the preamble of the act already points out, that Australia does have human rights obligations which it needs to meet. Many of these obligations that we are talking about today—rights of indigenous peoples—are part of the treaties: the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.

We hope that the parliament, and I address you as members of the parliament, will be more cognisant of its legal obligations and how those obligations apply to the first peoples of Australia. Thank you very much.

CHAIR: We have heard from Mick. Colin?

Mr Hardie : Thank you for the opportunity to address the committee today. I am aware, as my colleagues sitting either side of me are, that we do not often venture into the area of law reform, and that in this instance we have.

Just to put it in perspective about where we come from: Ted and I—and Michael might be given an opportunity to speak himself—have worked for land councils. We have both been in the role of senior legal officers, for me in relation to one land council and for Ted in relation to several land councils. And I have worked in conjunction with land councils also.

Our firm, which was established in 2001, has primarily worked for native title applicants. We do act for one or two respondents, but primarily we come from a position of advocating for Indigenous people in pursuance of their legal rights. I will be clear about it in terms of my politics: if I had to pick a side I would be closer to Labor than I would be to the coalition. The reason I am giving this perspective is because I would request that the Labor government not proceed with this legislation. It is not because I want to be critical of a Labor government; it is quite the reverse. I think that this legislation is seriously flawed and will cause major problems, particularly in the area of negotiation of Indigenous land use agreements.

The benefits that will flow from this legislation are not great. They are tinkering around the edges at best. I think the basic position is, if this legislation is pursued, that there are many more beneficial things that the government could be doing to improve the native title system than pursuing this particular piece of legislation.

What is our greatest concern? There are a number of concerns, but our greatest concern relates to the repeal of the Bygrave 3 decision with which our firm was involved. We represented the native title respondent, the Bigambul people, in that decision. We found ourselves on the same side in our argument as the Queensland Gas Company, which is a large company owned by British Petroleum. While we primarily practice in native title, my firm has lots of clients of all different political persuasions, so I was not made uncomfortable by finding myself on the same side, in arguing my client's interests, with a large multinational gas company.

Turning to Bygrave 3—just before I do, can you give exhibits to committees?

CHAIR: Make it brief.

Mr Hardie : It will be very brief. What I am handing out is the Arrow Energy Indigenous tertiary scholarships program. I am not putting this forward as an advertisement for Arrow; on the contrary. I would like to draw the committee's attention to page 3 of the program, where it says: 'Arrow works in partnership with a number of traditional owner groups. Individuals who identify as belonging to one of these groups are strongly encouraged to apply.' They are encouraging Indigenous people to apply for scholarships, which I think is a very good thing and something that everyone in this room would applaud. But if you look at who the traditional owner groups are, you will see in one column they have a group called one thing; in the middle column they have a group called another thing, and in the right-hand column they have a group called yet another thing; they are all different names for the one group. In the centre column you have one name, and then you have, in the right hand column, another name; they are also different names for the one group. You also have the same name spelt slightly differently. The main problem with this legislation is that the ill that Bygrave sought to address in relation to areas where there are native title claims was this: it was trying to stop groups from taking advantage by having more bites at the one cherry than is warranted. It achieved that by saying, 'If you go to the trouble to get a native title claim registered, you have the right to make the decision as to who should be looked after in an ILUA.' This ILUA, this tertiary scholarship, is in an area very close to Blair; these groups are on the border of your electorate, Chair. We know them, and Mick Gooda would know them too, because they are pretty close to his mob. So we know where they are. There is no native title claim in that area. Bygrave did not solve the problem, but it addressed one important thing: it stopped individual groups where there is a native title claim having multiple bites of the cherry and being greedy in relation to what other Indigenous people can get. If you undo the effect of Bygrave 3, you are going to open it up again for that ill to recur, and that will stifle the native title ILUA settlement process.

Let us look at the statistics. I got my good wife to do a graph for a paper I did for the Native Title News, and in it you will see that since 1990 the number of ILUAs has expanded exponentially. If you want to run the risk of halting that process, then pass this legislation and I have no doubt that it will make the ILUA provisions unworkable.

The second thing in that legislation is this. We have worked for land councils, as I have said. Land councils do not always get it right. Land councils back their mates and people who support them. There are some problems with their funding. They are very wasteful in the use of their funds.

If you have a situation where a land council is the sole arbiter as to who holds native title in a particular region, you are going to allow them to back certain groups over others. That is what the certification provisions do. You have a certification provision which allows native title representative bodies to certify that these ILUAs cover the right people. If they do that, there is no right of appeal. There is a right of judicial review, but we know the difference. If you have two anthropological reports and one says, 'These are the people.' and the other says, They are the people,' and the land council says, 'We are going with that one,' there is no appeal on merits. If the land council says, 'I'm not interested in looking at that one; I'm going to appeal that one' it means that they are going to be the final arbitrators of which Aboriginal groups get to benefit from it. That is something that this committee, this parliament, should not allow to happen.

The land councils, as they are, have already got enough power. Having come from that system, I know. We are private lawyers. Our clients are people who are disaffected with the system. They do not want to go through the land council system; they have been burnt off. They would rather use their own resources to pay our fees. We do not get public funding. Our fees are paid directly by native title clients who are not happy with the way the system is operating.

I agree that there has been a change in attitudes in relation to how determinations have been achieved. There has been a quickening of the pace. But I disagree that that has been the result of legislative intervention. There have been very minor amendments made by this government to do with the Native Title Act. What has happened—and John Stewart hit the nail on the head—is there has been a change of attitude within the parties. The Federal Court has banged heads together and brought us together to stop the nitpicking of legal points so that we can get on with getting determinations for Aboriginal people. The good work that has been done by this government has not been in legislation, it has been about bringing pressure to bear on the parties themselves to change their attitudes. That is the way forward in the limited term of this parliament. That could work in bringing the people sitting around this table today together to continue. There are other matters that are dealt with in our submission, and I think that in relation to the actual future acts others might be better placed to make some comments.

Mr Owens : Thank you for the opportunity to appear here today. I would also like to pay my respects to the traditional owners here. I support what Mick Gooda had to say. I have not come with anything prepared, but my intent here today—as known by Graham and other people who sit at the table today and who know me—is to focus on my particular interest in the future act regime, particularly the obligations to negotiate in good faith. I have heard other people here talk about trench warfare and that it no longer exists. I am here to tell you that it does exists. I am here to tell you quite clearly that particularly in Queensland, which is my area of experience, trench warfare is alive and well. The good faith obligation is not working. I think there are a couple of reasons for that.

Before I go there, I would like to acknowledge that this does not apply to every company. There are companies in Australia, like Mark's BHP, that have best practice and corporate social responsibility values, and they bring those values to a negotiation. I absolutely acknowledge that. I am sure Mark's company would not say that they are perfect and I am sure that there are others around who would probably criticise them, but they at least try their hardest to bring good, leading practice, world practice and corporate social responsibility values into a negotiation, and they seek to obtain a social licence to operate. But if you step outside of that group of those leading-edge companies—mostly multinational companies who have had world exposure—and deal with some of the more local companies, that same level does not exist, particularly in Queensland.

In the Northern Territory it is a different situation because you have land rights legislation up there where the Aboriginal parties have a right to veto access to the land. Western Australia is dominated by some of the largest multinationals—the biggest players—and some of the results that are obtained in Western Australia are far superior to those that they obtain anywhere else in Australia. We have one Native Title Act, yet in Western Australia you obtain one set of outcomes and in Queensland it goes through the floor. Everybody who has any idea of the situation in Queensland knows that. Why is it so after 20 years? Why does the trench warfare still occur in Queensland after 20 years? If you step outside that group of good practitioners, why does it still happen?

I think the fundamental thing that you have to understand—and this is where good faith has been let down—is that there was no legislative intent set out in the legislation, the Native Title Act, originally. What is good faith? What did parliament mean by that? So it was left to the lawyers. I mean no disrespect to the NNTT here; they act as lawyers when they interpret this. When the Federal Court interpret it, they act as lawyers. Lawyers are trained, particularly when they get to the level of tribunal members and judges, to be black-letter lawyers. Over time, anybody who has had anything to do with the law will know that it will naturally lead to a narrowing and a narrow construction of what it means. Now, in 2013, it is but a farce. Everybody—colleagues that I have and executives of resource companies—acknowledges to me the extraordinarily low threshold that is now required to be met at law. In some states and with some companies best practice goes on, but in Queensland you have companies, and I will also say that you have a group of professional lawyers, advisers and consultants who advise their clients on taking a deliberately minimalist and positional approach—absolutely deliberately. I make no bones about that.

Why does that occur? I will tell you why: because, at the outset in any negotiation, you have a power imbalance. You have a group of Indigenous people there, and some of the most intelligent people I have ever met are Indigenous people, but they usually—not always—have low education, low levels of commercial sophistication and low levels of health. They are usually elderly, because they are the decision makers, so they are put up as applicants. So they are the people who I take into a negotiation. Sometimes they do not like each other; that happens all the time in a large group of people. So that is what they are dealing with. They then go in and they are pitted against sometimes the most sophisticated and powerful companies in this world, who have all the resources. The companies have everything that is available to them, and on top of that they have the law on their side. They have the narrow construction of the good faith obligation on their side.

The law in itself is an indictment, because—Graeme might correct me about this—in 20 years there have only been, I think, four or five successful challenges to what is in fact good faith. Nobody in this room is going to sit here and try to pretend that all the resource companies out there are angels and that every negotiation that happens is best practice. I am sorry for the person up in the corner who said 98.5 per cent go through negotiated outcomes. Yes, they are negotiated, but they are bullied and coerced. This is one of the areas in which they are able to bully and coerce. I have had to give this advice on many occasions: people say, 'We've been treated appallingly here,' and I say, 'Hey, if you take it to court, you're going to lose.' There have been four or five successful challenges. I ran one, and it was despicable conduct that went on within the negotiation. They got rolled—absolutely rolled—in the tribunal. I could not believe it. Even industry people say it is a disgraceful decision. One of the reasons that these negotiations are successful—they have a 98.5 per cent success rate—is that the Aboriginal parties know that they are going to get thumped if they go court; they are not going to win; they are not going to succeed.

Dr Fletcher : Thank you very much for the opportunity to appear here today. I would like to note that we endorse the comments made by our colleagues at the MCA, so I will not repeat that position. Take it as said that we endorse that. The member of CME are significant stakeholders in the native title system, particular in the future act regime. We have heard from a number of people already about the amount of activity that occurs in Western Australia, where there is extensive minerals and oil and gas activity. Statistically, since 2000, 87 per cent of future act determination applications have occurred in Western Australia. Set within that context, there are significant agreements struck between our industry members and native title groups that provide significant benefits to native title groups. I would like to provide some documentation to the committee on the publicly available information around the quantum of agreements within the Pilbara alone, and note that it is an underestimation of the amount of money that is being provided. It gives you some concept of the benefits that this can deliver to native title groups.

CME members are supportive of the objective stated by the Commonwealth government that they want to create a more efficient native title system. We fully support that objective. Our industry members have expertise in the native title regime and the future act regime and the negotiation in good faith regime. We would like the opportunity to be involved in more extensive discussions about what is working, what is not working and what needs to be changed. We have heard from people around the table today that there are very differing views on the effectiveness of the current future act regime and the negotiation in good faith regime. We have heard various reasons as to why that may be case. It indicates, however, that there is a need for further discussion around this issue. People are not united on whether or not there needs to be change to this regime. That is significant. We should not proceed with something if we do not understand what we are actually trying to fix in the first instance.

CME members are concerned that the bill in its current form will not only not achieve the objectives stated by the Commonwealth government but perversely deliver more uncertainty, less transparency and more delays. I am not going to go into all the details of our position on the specifics of the bill—they are in our submission and you have that. But I would like to reiterate our position that we support the objectives. We would like to have further discussion on the matter. We believe that it needs to go back to the stakeholders in the native title system to identify what needs to be fixed and how most effectively to fix it.

Mr Meegan : I want to make a few points. My friend John Stewart was talking about good progress being made in relation to the settlement of native title claims. The position in Western Australia is that the settlement of native title claims has drawn to a halt. That is primarily a result of the attitude of the state government. That brings to light the limits of the Native Title Act in bringing those to a conclusion if the primary respondent chooses to take an oppositional view to the settlement of a native title claim.

The other three successful challenges to the right to negotiate were in the region that we operate in, the Pilbara and the Murchison. One of them was the Cox decision involving FMG, which was overturned on appeal. That gave rise to this land council, along with other people in the room, seeking the changes to the Native Title Act that are before you today. In relation to those changes to the good faith provisions, there has been a lot of consultation over a long period of time and that you should have all the issues before you to be able to proceed to these proposed amendments.

If I can speak in simple terms, we know that in the majority of cases there is a reasonable amount of good faith negotiation and we are not pushed to hearings at the earliest possible time. I would also pay regard to negotiations and discussions that I had with Mark Donovan four years ago now. BHP came to the table and said to us, 'We're going to come up with some rules of engagement, a funding agreement and a fair deal.' There are those examples, along with other examples like companies of Rio, where their intention to seek a good social licence in Australia and around the world has resulted in some good agreements. The agreements in the Pilbara, which represent substantial short-term and long-term benefits, are as a result of those companies that demonstrate willingness to negotiate in good faith.

However, that means that the proposed time periods in the bill should not have too much of an impact on the majority of companies who are prepared to negotiate and give some time to that. The fact is that the law does presently allow bad companies to jump the gun and not negotiate, which means that we are forced to use our limited resources and time to giving priority to urgent meetings and negotiations to force the bad guys to the table or take other actions before they jump the gun. It is true that 98 per cent of these tenements are granted, but that is because we know that in the vast majority of cases we will lose and we do not have the resources. That highlights the inequity of the situation and the need for this legislation to go through.

We are put in that position. We have to concentrate our efforts to demonstrate that they really are acting in bad faith, which is difficult to do under the current legislation. This diversion of attention penalises the good guys—the people who are not only prepared to fund us but also prepared to negotiate properly. From our perspective, some of the people around the room today and other good companies that negotiate in good faith should support these amendments, because they are even below the efforts that they bring to the table. But this will force the bad guys to the table to negotiate, at least to a measure of good faith, which, as we know, was a compromise because a right of veto could not be obtained in relation to the native titles bill.

Ms Phillips : Thanks for the opportunity to appear today on behalf of ANTaR. ANTaR is an independent community organisation that was formed in 1997 to defend existing native title rights and promote the opportunities offered by native title for Aboriginal and Torres Strait Islander people to achieve some measure of justice, recognition, protection of culture and economic opportunity.

We support the passage of this legislation and believe that the amendments it contains represent an improvement on the current situation. Nonetheless, we have made a number of recommendations in our submission to strengthen core provisions in a number of ways which we think would better protect the rights and interests of Aboriginal and Torres Strait Islander people.

More broadly, ANTaR believes that more far-reaching reforms of the native title system are now well overdue and are necessary to achieve justice and equity for Aboriginal and Torres Strait Islander people and, most importantly, to realise the vision of the Native Title Act, the preamble of which states that it is a special measure intended to further advance the process of reconciliation in this country. It also states that in passing the Native Title Act the people of Australia intend to rectify the consequences of past injustices by the special measures it contains and:

… 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 believe that reforms should not be implemented on an incremental or piecemeal basis given the enormous complexity of this legislation and the quite fundamental questions at stake. That is why we support the Social Justice Commissioner's call for a comprehensive inquiry and review of the native title process to fully realise the potential of the native title system and to achieve full compliance with the United Nations Declaration on the Rights of Indigenous Peoples.

Mr Storey : I thank the committee for the opportunity to speak. I should mention at the outset that the National Native Title Council is the peak body for the native title representative bodies and service providers across the country. Native Title Services Victoria is, of course, the service provider for traditional owners in Victoria, representing them under both the Native Title Act and the Victorian Traditional Owner Settlement Act. The submission from NTSV and the National Native Title Council was essentially a joint submission.

The submission went primarily to five main points. They include the question of good faith negotiations, proposed section 47C and the Indigenous land use agreement, ILUA, provisions. It also dealt with questions regarding consumer protection in native title future act matters and questions regarding the onus in native title proceedings. Those two last matters really go to questions that I thank the committee intends to deal with this afternoon, so I will not go to those matters now but will happily address them further with the committee this afternoon, if that is acceptable.

One of the advantages of being at this end of the table is that you get to hear what a lot of the other stakeholders in the native title process have seen. I have been interested in listening to that today and, of course, I read with interest many of the submissions that were received. On the question of good faith, from what I can see, the main opposition seems to be coming from sections of the mining industry who are putting forward a proposition that providing a definition of good faith in the act is somehow going to lead to increased inefficiency and delay, to a slowdown of mineral titles issues. I have been involved with native title from the very beginning, working for both the Territory government and representative bodies, and the words 'slowdown of mineral titles' seem reminiscent in a way; they are words I remember hearing for long time. But, of course, they have not slowed down; there has been quite at minerals boom. So I always take with a note of caution when I worked for a regulator—that is, the Territory government—the idea that any proposed regulation was going to slow down the regulation of titles. But it did not. In fact, Australia's mining industry has been prospering quite well ever since native title came in. It did not lead to the professed slowdown of mineral titles.

So why is the concern here? I must admit that I find the concern interesting and perhaps surprising. The rationale seems to be that it is working well and there is no point in having any further amendments to it. I should point out at the outset that the NNTC completely supports the bill as proposed by the government. We think there should be more things introduced and more reforms to native title—and I will happily address those this afternoon—but we support the bill as it stands. In relation to the good faith provisions, surprisingly the best encapsulation of it probably comes from Mitch Hooke, the CEO of the Minerals Council. In response to the then Attorney-General Roxon's announcement on 6 June, he said: 'The changes formulise industry-leading practices on good faith negotiations over native title. MCA member companies already negotiate in good faith but we are not confident our approach is universally adopted across the industry. We should ensure that the focus of reforms to good faith negotiations centre on ensuring the quality of negotiation processes rather than prescribing time frames for predetermined outcomes.' And that is it. I know that Melanie repeated the last part of that, but what was not mentioned was the first part of it, which is that what the amendments do is ensure an industry standard.

Michael Meegan, from Yamatji, has told you BHP do the right thing. I would suspect that most of the players here—and Michael was suggesting the same thing—do the right thing. If they are doing the right thing—and the NNTC works closely with the MCA on many issues, so I hesitate to disagree with them—the amendments will not lead to inefficiencies and delays. What they will lead to is ensuring that the industry overall maintains the standards that most of the players at this table already implement. That is what the amendment is about and that is why the NNTC supports them.

On the question of the proposed section 47C, from most of the submissions I have read the opposition is really coming from one quarter, and that is John and the NFF. The NFF's concern about section 47C, as far as I can see, is the possibility—and John articulated it quite well—that the definition is so broad as to potentially include pastoral leases and other interests. I have a number of responses to that. I have worked as a lawyer in this area for a long time and, frankly, I think that interpretation of the legislation is completely stretched. Even if there was a tortuous interpretation of section 47C, 'Definition of park area', to include pastoral lease—which, on its face, is counterintuitive—the proposed section 47C, as it stands, is framed in such a way as to provide no threat to the pastoral lease. The interests of the pastoral lessee would continue to prevail over any native title. What might be at issue if that were the case is any situation where the pastoral lease is surrendered and ceases to exist.

That might be an interesting discussion to have with the lawyers of the NFF—and I note from their submission that it probably actually comes from the Cattlemens Association of the Northern Territory. Even if that were so, if that is the issue, if that is the concern, then let us have a dialogue with the NFF about clarifying the definition of park area, because, as far as I know, it was never intended to pick up pastoral leases. If it is that concern, let us clarify that. The main intention of the provision, to pick up park areas, is a good one. I say that based on over a decade as a senior crown law officer with the Northern Territory before I was working for NTSV. Having worked for the state and now for a rep body engaged in high-level state negotiations, I think the ability to reach an agreement so that you can have uniformity of land tenure in your post determination era, particularly over parks, where most of the settlements that have been achieved across the nation allow for joint management, is a good one. It is based on good management. It does not give the upper hand to the native title holders. In terms of the use of the word 'balance', it does not imbalance the situation. This is an agreement between the state and the native title holders. It does not unbalance it, it just allows a state to manage the public land estate in their jurisdiction in a sensible way to achieve good outcomes. For that reason, we support the amendment. As I said, I note the NFF's concerns, but I do not think they are valid. If the committee thinks they are valid, then certainly let us have a discussion about ensuring that there is broad based support for what is a good provision.

Mr Neate : The National Native Title Tribunal welcomes the opportunity to participate in this hearing and we have provided the committee with a written submission. We also appreciate the opportunities we have had previously to comment on the exposure draft which preceded the bill currently before you. I want to make it clear that the policy underpinning these legislative reforms is really a matter for government and, finally, the parliament. The tribunal has traditionally not made comment on the merits, or otherwise, of policy; that is clear from our submission, and I want to make it clear here.

Let me say, however, that, 20 years on from the Mabo decision, native title is part of the legal and social landscape of Australia. In considering issues such as reforms to the act, or broader questions such as whether the right balance has been struck, the answers which the committee and, ultimately, the parliament might strike this year are no doubt rather different from what might have been contemplated when the act was originally enacted. To be frank, we can now deal with those questions in light of many years of experience. In this room it is already clearly evident that we have people and organisations represented today who, in making their submissions, have drawn on practical experience over many years which can inform their submissions. So the committee, I would suggest, is able to draw on the benefit of a range of experience from parties well qualified to comment, certainly from their perspective, not only about the particular aspects of the bill but also overall questions about whether balance has been struck.

My only comment in addition to that, in relation to the submissions that have been made both orally already this morning and the written submissions, is that the committee now has the benefit of not only quantitative data but qualitative assessment of the data. We have heard already a number of statistics quoted which, so far as I can tell, are not really in contention. What is in contention is what those statistics mean in terms of practice on the ground. Certainly from my reading of many of the written submissions, I would suggest that people are able to provide that to the committee as well. The statistics do not really speak for themselves; one has to look at the lived experience of native title.

As I said, we have had the opportunity to make submissions on the exposure draft and the draft of this bill. It is clear that our submissions are directed at identifying possible unintended consequences or other technical, procedural or resourcing issues that arise out of the bill and are not intended as a commentary on the policy underlying the proposed amendments except to the extent that this is relevant to the issue raised by the tribunal. On that basis, I am happy to participate further in today's discussions.

Mr Weaver : Fortescue supports the submissions of AMEC and of CME. We would like to amplify a couple of points that were made in those submissions. One is that we are concerned that the changes proposed to be made will not meet the government's stated policy objectives, in particular in relation to the negotiations in good faith provisions. We are concerned that codifying in the legislation in the way that is proposed will require companies and proponents—and certainly this is the legal advice we are receiving—from a risk management point of view to demonstrate that we can tick the box against every one of those indicia in every negotiation just in case we have to go to arbitration. That runs the risk of creating a much more legalistic process.

To illustrate that, I would highlight that Fortescue has reached seven comprehensive land access agreements with groups across the Pilbara through these processes. We have over 80 heritage agreements reached through these processes. Largely through these processes we have delivered over $600 million worth of contracting benefits to Aboriginal groups and native title groups. We pay millions of dollars a year in royalties to these groups. I think about 600 Aboriginal people are now employed with Fortescue and our contractors, mostly from the Pilbara and mostly as a result of the relationships formed through the native title agreement making process. We would caution against anything that may upset that balance.

Finally, we would draw to the committee's attention a point that was made in the submissions of both the CME and the state of Western Australia, which is that we believe the government has a fundamental misunderstanding of the main point of FMG v Cox. We believe that has been misrepresented by certain stakeholders in the native title system and we would urge the committee to closely read the submissions of CME and the state of Western Australia on that point.

CHAIR: As a former Queensland lawyer I am going to ask a question of some Queensland lawyers here. Michael Owens and Michael Meegan were quite supportive of the codification of good faith, the new section 31A and the reversal of the onus of proof there. Colin, you were very critical of the governments in terms of the Indigenous land use agreements and suggested that we might pull the bill at least in relation to that. But you did not really comment in relation to the good faith issues. Could you comment on that particular point?

Mr Hardie : I contacted a barrister by the name of Bob Breed, who operates mainly for trade unions and employees in the industrial area. That good faith provision was basically lifted out and beefed up a little bit with some extra words. I said to Bob: 'They want to put in a similar provision in the native title area. How is that operating in the industrial area? Is it effective?' He said he would think about it for a while and come back to me. He said: 'Yes, it is operating effectively. It does improve relations in the industrial area. However, on its own it would not operate; it would not be effective.' What happens in the workplace relations area, he told me, is that, for low-paid workers, there are extra things that an arbitral authorities can do to intervene to bring the parties together. His view was very clearly that, if it was only an amendment of the good faith negotiations, it would not make one change. I think what Michael said is that there is a power imbalance in most negotiations.

I think if the committee really want to do something to address that, it is not about tinkering with the good faith negotiation provisions. You have to go further and look at what you can do to address power imbalance. With the consumer code is often the case where you have a power imbalance, where coercion and those sorts of things are outlawed. Those sorts of things are practical things that could be done to bring the relevant parties to the negotiation table.

I do not have anything fundamentally bad to say about the provision. I think it is probably true: most of those in negotiations are the good guys. I have negotiated with Rio Tinto, Xstrata, BHP Billiton—the big companies—and they do properly engage with Indigenous people and some good outcomes, even in Queensland, have been achieved. But I do not think the tinkering of that good faith provision is going to make one iota of a difference in getting the bad guys to start behaving themselves. That is my view.

CHAIR: We are a bit limited by the terms of reference of our inquiry.

Dr STONE: Colin, you said you would not make an iota of difference in itself, as you say, tinkering with the good faith indicia. What would? What is the best practice outcome for this legislation in terms of its amendments? Addressing cultural issues?

Mr Hardie : Yes, I think you have to address the power imbalance. You have to say: 'If you are going to do things like go behind the Indigenous negotiations because you they are a being a bit tough over the negotiating table, and are going to go to the claim group and supply them with cars and largesse so they might be a bit kinder to you'—and those sorts of practices do happen, although I am certainly not saying they have happened to anyone around this table; but individual TOs are bought off and paid off by proponents to look more favourably—then you will target that sort of behaviour, which is in the consumer code, and prevent it from happening.

Dr STONE: (Inaudible)

Mr Hardie : You have examples in the consumer code; you have examples in the Workplace Relations Act. You do not have to reinvent the wheel. The parliament has already legislated in areas where it has been concerned, in other jurisdictions, to address those things. Similar provisions could be applied in this area, I would suggest. Make it clear: I am not against the good faith negotiation changes; I just do not think it is going to change much.

Mr HAASE: My question goes directly to Kym Duggan from the AG's Department. In view of the comments from Colin in relation to the equity in ability to put one's case, and comments from John Stewart, can you explain to us the reasoning behind the cutting of funding for pastoralists and graziers with regards to defending a claim?

Mr Duggan : Can I firstly say that, of course, priority for funding is a matter for government. The government takes the view in this particular instance that there has been a significant amount of funding provided for a very long time in this space. The government's view is that much of the unique law and significant questions that need to be resolved have been resolved in native title. We have heard around the table that native title has now become very much a part of business as usual for organisations. I should point out that we have very good relations with John and his organisation, and we very much respect the work they do; but government took the view that it needed to make savings in this space. It was not just this scheme that has been reduced. As a result, it is targeting funding in a different way. It believes, as I say, that most critical issues in relation to new areas of the law have been resolved; that native title is now a question of business as usual for parties; and that it was appropriate, in those circumstances, where there are other priorities for spending, where reductions have been made. That is pretty much the situation.

Mr HAASE: Is it fair to say that funding continues for rep bodies?

Mr Duggan : There is certainly government funding for rep bodies; that is true.

Mr HAASE: And would you care to comment on the imbalance between the funding required by John Stewart's organisation of $1-odd million per annum versus the amount paid to rep bodies?

Mr Duggan : It is a matter for government.

Mr HAASE: Could you comment to us about that comparison?

Mr Duggan : I do not have the figures in front of me exactly what the government funding is for NTRBs. I can certainly get that for the committee.

Mr HAASE: It would be interesting for us to understand the comparison.

Mr Duggan : I am happy to provide the numbers to you. I just do not have them with me at the moment. I could probably be back during the day to provide those numbers.

Mr Storey : So it might be useful to also get some comparison between the responsibilities in relation to the burden that the different organisations carry in relation to the native title system—so, looking at the work of rep bodies compared with the work of respondent parties. That would have to be part of that, rather than just a numbers comparison.

Mr PERRETT: I am not sure whether this is a question for Mr Neate or the National Native Title Council, or anybody else. I was just wondering whether environment purposes and native title rights always be consistent, and if they weren't consistent what would trump the other—particularly for a national park, shall we say, rather than a reserve.

Mr Storey : My view is that, in the context of 47C we are talking about disregarding prior extinguishment by agreement.

Mr PERRETT: Okay, so this would change the use of the national park.

Mr Storey : It would not necessarily change the use of a national park. The park tenure, depending on the form of the agreement, would continue. This is why I am saying it is such a significant thing. It is not like, for example, section 47(b), which allows disregard of prior extinguishment as long as it is vacant Crown land at the time the claim is made. It is quite different. This is allowing a state to sit down with the native title party and frame an agreement that is going to allow for sensible land management of that area. If there were unreasonable demands coming—for example, the native title party was saying, 'We want exclusive possession, amounting essentially to fee simple, of this park' and the state was not inclined to agree with that, then obviously the state would not enter into a section 47C agreement.

Mr PERRETT: Have there been any agreements similar to this already? If so, could you talk about those examples?

Mr Storey : The best example I am familiar with are the provisions of the Traditional Owners Settlement Act in Victoria that was passed by the previous government there, but endorsed by the current government. There we do have agreements that allow for joint managements of parks outside the native title framework. But the very fact that the Victorian model had to really work outside the native title framework points to the desirability of something like section 47C that allows for those joint management agreements to be brought within it.

Mr Neate : Perhaps if I can give some examples from Queensland—and I would refer you to the Queensland government submission where they traverse the factual material in terms of this, but I can speak from my experience as a member of the Native Title Tribunal—a number of native title applications have been successfully resolved; that is, a determination of native title in favour of Aboriginal people in relation to national park land. The section 47C proposal, as I understand it, was prompted, initially at least, by a decision of the High Court in the Miriuwung Gajerrong case many years ago that held that a particular provision under Western Australian law, under which certain national parks were created, operated to extinguish all native title. Indeed, a particular national park, the Rudall River National Park, was, at the time of the High Court judgment, the subject of negotiations for settlement as part of an overall native title claim. That area of land came out of the final settlement because the High Court had ruled that native title had been extinguished. That, as I understand it, was the prompt for the policy that has given rise to section 47C. But, as others have commented in different contexts today, when you have a law that applies nationally, it can have a different effect in different jurisdictions, depending on the operation of state laws. In Queensland there has not been an issue that native title has been extinguished completely by national parks; it is just that exclusive native title cannot be recognised over national parks. So there are already determinations over national parks in Queensland, and Indigenous land use agreements, in relation to those national parks, which sit together, and they are part of the package for settling them.

As to the consequences of this amendment for the state of Queensland, you can read the state government submission. My only observation is that in Queensland there are examples of recognition of native title over national park areas.

Mr Storey : Just to supplement what Graeme was saying about 47C, if you look at the 10 year history of a park, it will not necessarily always have been a park; there might have been a public work here and a bit of freehold there, and at some stage they have been incorporated within a park. The benefit of section 47C is that (1) it obviates the need to go through and look at all of that 10 year history, and (2) if you do have little pockets—and I have seen this in my work: essentially a Swiss cheese effect where you have pockets of extinguishment because of a historical public work or a small bit of freehold—it allows you to ignore that and say, 'Let's deal with the park as it is today,' and make an agreement on that.

The issue I want to move on to, on Indigenous land use agreements—and this is really part of my opening statement—is this: the provisions in the bill regarding Indigenous land use agreements have broad support from all of those involved in the industry; not just the NNTC but also the NFF, from my reading of their submissions, were supportive of the ILUA provisions, and the MCA—and I see Melanie nodding. So it has broad support from those in the industry. Even Colin—and shortly I will mention an aspect of that—as far as I understood, was opposing the NTRB certification provisions, not the amendment provisions which are just sensible provisions that I think have broad support.

To be reasonably straightforward about this: Mr Hardie has indicated the nature of his firm's activities. Just to give the committee some sense of perspective, essentially that makes Mr Hardie like a plaintiff lawyer arguing against tort reform, because Mr Hardie's firm works off the fees of applicants, often in opposition to the representative bodies which are funded to prosecute native title claims on behalf of native title holders. I am not saying Mr Hardie's views are illegitimate, but I am asking the committee to bear in mind that they do come from a particular perspective, and that it is the perspective of a private firm that, as Mr Hardie says, derives its fees from native title claimants, and a simplification of the system would not necessarily be of benefit in that respect.

CHAIR: I think, in fairness, I have to give Mr Hardie the right of reply on the certification issue, because I am not convinced; I think you may have been verballing him.

Mr Besley : Chair, just before Colin weighs in on that issue, I just want to make one comment on the proposed amendment in relation to section 47C. We have highlighted the operation of that proposed provision as being out of step with the other elements of the section 47 suite which, in a sense, automatically apply when certain factual criteria are met. The incongruence in relation to the proposed section 47C is that, where certain factual criteria are met, that triggers the opportunity for the parties to reach agreement over the overlooking of extinguishment. We just believe that that provides an opportunity for there to be inconsistency from one national park to the other, which would be curious. It would allow governments to, for example, exclude extinguishment in relation to Shelburne Bay in Cape York, which was originally a pastoral lease and which was then turned into a national park. They may take a different view over Fraser Island, which has always been a national park and over which area they want to continue to maintain the extinguishment, which means that they will not talk to Les's people over certain areas of the management of that national park because those rights and interests have been extinguished by the creation of that national park. Whilst we do not oppose the intent of that particular provision, the way it would operate would provide a discretion, in a sense, on behalf of the government party to choose to agree in some situations and not in others.

CHAIR: Is what Matthew was saying an accurate statement of your position on the certification issue?

Mr Besley : We certainly do not believe that the certification power is a safeguard in relation to the authorisation of area agreements. We believe that concentrates too much power in the rep bodies. It also will not necessarily address a situation which has arisen that brought that case in Queensland. We also think that it might actually create litigation in relation to questioning the certification. I will leave it to Colin as to the question about the firm's status.

Mr WYATT: With respect to your submission, I was interested in paragraph 51 in which you talk about predatory behaviour and people external. Given Colin's comments earlier about the way in which rep bodies can exclude those interests to a title claim and the proposed amendment in terms of extinguishment of land, how is it that individuals who may have a right of claim will be considered if they are excluded by rep bodies from being parties for the claiming of their entitlement?

Mr Storey : Can you put that question again? I did not follow it.

Mr WYATT: There are two things I want to touch on. The first is predatory behaviour. I just want some clarification on what you are leading to in terms of that predatory behaviour, and who you see as the predators in respect of that behaviour. The second is the point that Colin raised, and that is: where a rep body determines that a group is not entitled, or you represent a group for the same area, how do you then allow them to be accommodated with respect to the extinguishment of title over national parks and reserves? Because if you are alluding to the predatory behaviour, does that then make those external to the rep bodies predatory in wanting to seek to help those who you exclude?

Mr Storey : I think there are actually three parts in there. The predatory behaviour referred to in paragraph 51 refers to instances where individuals or firms approach named applicants in native title proceedings and encourage those applicants to reach agreements with future act proponents that provide benefits directly to the applicant as opposed to the native title claim group. There is a deficiency in the way the act is currently structured now that leads to an uncertainty in the relationship between the named applicant and their responsibilities to the native title claim group. What has been proposed in our submission is a mechanism to overcome that deficiency by focusing an ability to ensure that the benefits of future act negotiations are held for the benefit of the whole claim group rather than the named applicant.

Anecdotally—and there is probably more evidence of this coming from places other than Victoria, where we do not have the high level of mineral activity—part of the benefit for the predators is inflated, extortionate fees going to the what I will describe as native title agents, who are approaching the applicants to take this course. That is the concern—that is the mischief—that is referred to in that part of the submission. The committee should bear in mind that there already is a rep body certification function for Indigenous land use agreements and also for native title determination applications. So when the act was originally passed, the legislature presumably intended for there to be some benefit in having this certification procedure. Unfortunately, the way it has worked is unlike what has happened with determination applications, where there is authority that says that, once a rep body is certified, the question of authorisation cannot be looked behind. In the context of ILUAs, that is not allowed. It is not a question of the content of the agreement; it is a question of whether the authorisation has occurred. The act establishes rep bodies for the purpose of undertaking that function of ascertaining native claim group status and membership within that context. It can be a difficult and at times contentious issue, and the purpose of this amendment is to allow a rep body to certify that it has been authorised by all those people who hold or may hold native title. It is not changing the nature of the test. If there is a real issue that a rep body has failed in that task then there is judicial review available.

Mr PERRETT: Further to that, Mr Storey, would that practically be the process of hearing stories and examining genealogical charts and anthropologists' reports? What would be the practical process out in western Queensland or the like?

Mr Storey : It would involve all that and more. This is the very stuff of rep bodies in trying to determine, under the provisions of the Native Title Act—

Mr PERRETT: So that is the fallback in terms of the balancing part of reversing the onus of proof. Perhaps among the 500,000 Indigenous Australians out there there might be the odd person that might make a false claim.

Mr Storey : I am sure there is, and the purpose of a rep body is to attempt to sort through that. I was discussing this in the context of certification of Indigenous land use agreements.

Mr PERRETT: Yes. There is a question I was going to ask later.

Dr STONE: I will just follow on from something you mentioned about Victoria a few exchanges ago, being a Victorian myself and having observed closely the very contentious outcome of the Victorian government deciding to deal with one particular applicant as a traditional owner when in fact there was a failed native title case—of course, I am talking about the Murray River, but you would know it well—where the state government has chosen one particular group as, if you like, the winners, to the exclusion of the others who originally were a party to that native title contest. It has led to enormous distress and upset.

Mr Storey : Yes.

Dr STONE: That has led to only job applications from that preferred group now being accepted—jobs in the national park, including the ranger jobs and the training and so on and so forth. So, while you suggested that that was best practice in Victoria, I would suggest it has actually led to a lot of grief because there is no recourse for the parties who argue that they should also be in there—in fact, some argue they should even be the ones who are regarded as the TOs, but there is no appeal process for them; it is just the lucky winner who takes all.

Mr Storey : The situation you are referring to was one under the Aboriginal Heritage Act, and it was a decision by the Victorian Aboriginal Heritage Council. The provisions of the Victorian Aboriginal Heritage Act—which, as you know, the state government is reviewing, and my organisation made recommendations in relation to that similar to where you are heading—are, of course, quite distinct from those under the Native Title Act. All I would suggest that example does is highlight some of the difficulties in the area without looking at the mechanisms within the Native Title Act for addressing some of those difficulties.

Dr STONE: I guess what I was picking up on was that you seemed to me to be suggesting that Victoria had best practice with those situations in relation to parks, and I would suggest that, no, it is fraught and even the changes suggested do not appear to be delivering solutions for the aggrieved parties.

Mr Storey : The reference was to agreements under the Victorian Traditional Owner Settlement Act, and it particularly went to settlements being proposed by the current government. But, as I would say, the settlement act is again different from the Victorian Aboriginal Heritage Act, and of course that is again quite different from the provisions of the Native Title Act regarding both Indigenous land use agreements and proposed section 47C.

Dr STONE: So, in the case of these aggrieved parties, there is no recourse to what they would call justice in either the native title legislation or the Victorian legislation.

Mr Storey : Which is why government is currently contemplating changing that—as I say, quite distinct from the Native Title Act. If there was a situation similar to the one you are describing, there is a mechanism under the Native Title Act that those disgruntled individuals could (1) seek judicial review or (2) bring a determination application. If that application was successful then that would affect the validity of the Indigenous land use agreement.

Dr STONE: Except that they lost their native title case many years ago.

Mr Storey : You are referring to the particular situation in that case, which is a matter of dispute under the Victorian Aboriginal Heritage Act.

Mr HAASE: In view of Mr Storey's comments earlier—and I hate to harp, John—there is a suggestion that there is an explanation from NFF as to why there is some resistance to the amendments in relation to national parks. I think you should have the opportunity to air those views here now.

CHAIR: The NFF in their submission refers to the department's definition on park areas, which is in the bill. I want to hear from Lisa on that issue as well.

Mr Stewart : Our concern is that parks and reserves, as it says in the amendment to the act, are only part of the process, only part of the picture. The gentleman down there said you can have a park designated that has a bit of freehold in it and various tenures in it. We are trying to make sure that agricultural land is protected so that it does not just disappear from us and can never come back to us again, if you understand where I am coming from. That is our point of view. Shayne, this might not have got to you last night.

CHAIR: We can pick it up later.

Mr Stewart : It says the application of section 47C does not apply to leasehold land and freehold land including any formal or informal conservation land contained within them such as conservation covenants, such as in Queensland where they have nature refuges for instance.

CHAIR: The definition is very broad but it seems also specific in certain respects. That sounds a bit strange but it is quite clear to me when I read it what it actually intends. Can you explain, Kym, where you are coming from in terms of that park area?

Mr Duggan : This is to reflect in part the original understanding of the legislation that parks or Crown reserves generally would not extinguish native title. And then of course the decision in Ward came up with a different view in that regard. The government has been keen for a while to give opportunity to parties where there is land within a park area to have a mechanism so that native title could be revived in those circumstances. The provision applies to parks and reserves. There is a definition, as you point out, that the area must be set aside or vested for the purpose of preserving the natural environment of the area.

In our view, legislation governing pastoral leases is unlikely to fall from the definition of park area. It is not intended to cover pastoral leases outside of park areas, and we clarify that in the explanatory memorandum. There may be some instances where a park or reserve has been declared over a pastoral lease. That is indeed possible, which would then potentially fall from the definition. I suppose what the government was saying in that regard was that the amendment only operates by agreement between the native title party and the relevant government party. Third parties are given an opportunity to comment on that agreement. Third parties are also given an opportunity become a party to the native title claim.

The agreement that you will effectively ignore the historical extinguishment does not create the connection. The native title party still has to go to the court and then establish that connection after they have had the historical extinguishment ignored. So it is not an automatic right that once you have got the agreement that then your connection is assured. You then have to go through the normal process to ensure that. Any interests that are created prior to the determination continue to exist and the extent of the inconsistency will prevail. So, to the extent that there are these small areas that might be within pastoral leases—like refuges and that sort of thing, John—the government believes there are sufficient protections in that regard. Obviously we have not yet had any opportunity to brief the current Attorney in this regard. He may take a different view about that. We will obviously take those points to him.

CHAIR: Lisa, you talk about jurisprudential logic in your submission, and highlight it actually. Can you comment about that.

Dr Strelein : I can provide some comments in relation to pastoral issues. Our underlying submission there in relation to why this provision should go ahead, and perhaps actually be amended so that it does not rely on state agreement, is really in relation to the concept of extinguishment itself. As Les mentioned, the Native Title Act is based on a racially discriminatory presumption within the common law. That was something that the courts came to really as a political compromise given that we had not recognised native title for over 200 years. Compromises were needed in order to make the native title jurisprudence set able to be implemented, effectively. The critical discriminatory aspect of native title is this concept of extinguishment, where native title can be extinguished prior to the introduction of the Racial Discrimination Act, without consent and without compensation.

There is no logical reason for that to be extended any further than it has to be. Section 47 and the like provisions really provide us with examples of where we can legislate to overcome some of that discriminatory impact, and we should look for those opportunities wherever we can to rebalance the Native Title Act in favour of providing as much recognition to Indigenous people's rights as we can, particularly where it does not affect other people's interests.

In regard to how this might operate in relation to section 47C, certainly the operational provision is not designed to affect current interests. There may be impacts—I do not know, John, whether this is what you were alluding to—to some sort of historical pastoral estate, and whether that was trying to be preserved, and it may well have where those pastoral leases existed previously. I think there would be great inefficiency in trying to preserve a historical pastoral estate that no longer exists, in the sense that it is no longer taken up, because you would effectively have to go through the whole tenure search and tenure history analysis we are trying to avoid through these provisions. Certainly, existing pastoral interests would be protected. In terms of private conservation agreements and covenants, my understanding is that they would not be taken up by the definition as it currently stands, which is 'land set aside by government for conservation purposes'. This unfortunately would also apply to Indigenous people. So Indigenous protected areas, for example, are private agreements. Indigenous people would not necessarily be able to look at IPA areas and say, 'Okay, we can disregard extinguishment over those areas,' So those kind of private agreements would not be drawn up into this provision.

Further to your comments, Graham, about how that might impact on where native title rights might be inconsistent with conservation purposes, unfortunately native title can be regulated for conservation purposes, so those conservation purposes would effectively regulate the way in which Indigenous people could exercise their rights. So any protections that the national parks legislation in each state and territory had against, for example, mining or commercial activity would likely apply.

Unidentified speaker: Hunting?

Dr Strelein : Probably not. Unless it was for commercial purposes, it would not necessarily be inconsistent with conservation. This provision would not affect that. Section 211, which protects hunting rights, might have an effect there.

The only other thing I would say about the definition is that getting greater clarity in a Commonwealth act about national parks and conservation areas is almost impossible given that so much variation exists amongst states as to what they call different arrangements. If the committee is interested AIATSIS has just released a report on conservation reserves and native title around the country, looking at the different legislative regimes and how they operate in relation to native title. We can forward that to the committee.

CHAIR: If you could provide that.

Dr Strelein : It is very complicated, but you are welcome to try to traverse it.

Mr HAASE: I have listened avidly this morning, thanks to Hansard and broadcasting, and I sense that around the room, and from the submissions that have been made, there is a huge level of indecision and dissatisfaction with the timing, especially given the second part of the brief, Chair, which talks about a view of the future to make the whole act better for all concerned. We heard from Mick, who had to go, unfortunately, that all of us in the room have a desire for the same outcome. Those holding native title and therefore the opportunity to get some compensation or advancement on the basis of the resource, on one hand, and resource developers on the other, who want to get on with the job and give a return to shareholders. Given that there is this indecision with this agreement in the first place, and our second part of the brief, I would love to know from A-G: why now? What was the motivation to push through this first part? What was the basis and foundation for that move?

Mr Duggan : From the government's point of view, many of these amendments had been foreshadowed some time ago. Indeed, many of them had been foreshadowed in 2010. I accept the point that Graham made about consultation. Consultation can always be improved. Could we have done it better? Answer: yes, we could have. But these amendments have been on the table for a significant amount of time. There was a commitment by Attorney-General McClelland some time ago that we would proceed to a bill in this regard. For a whole range of reasons that did not occur. Attorney-General Roxon had the view that as part of the government's commitment to the 20th anniversary of the Mabo decision it would now introduce legislation of the sort that you have seen.

The government believes these are incremental changes and that this is the way to reform this area—that we do not look at at the moment. This is the government's view. Regarding revolutionary changes, I notice the Australian called these the biggest changes since the legislation was drafted. I have to say, with respect, that I do not necessarily agree with that. I am not going into the merits or otherwise, but I do not think you could appropriately characterise these amendments as being the biggest amendments since 1993. They are an incremental set of legislative changes the government believes it has exposed to a whole range of consultation over a long period. And, again, Graham Short talked about the delay between one year and the next, about when we actually moved on these. Government took the view that there had been sufficient time to consider them and it was time to act. That is the reason for the timing. That is the only explanation I can give to you. But there was a need for incremental review in the system, and these were the critical areas the government thought it was appropriate to move.


CHAIR: The big miners have been praised. Mark, you are BHP—and Fortescue—and even from someone like Michael Owens. You are very critical in Queensland as to what happens in terms of this, and you are saying that the big miners, the big multinationals—I think that is the expression Michael used—were actually using best practice and came to the party with genuine goodwill to sit down and negotiate properly in good faith. But Matthew, I think it was, talked about an industry standard. Even Melanie was talking in the MCA submission about guidelines. Surely it is not you guys, but there are other players in the industry who may not be negotiating in good faith. The lawyers at the table here—and they are not novices or legal virgins on this, as they have been practising for many years—are saying that this is what is happening. You guys negotiate and we do not always agree with the outcome. You guys negotiate fairly, honestly and in good faith, but there are other people who do not, particularly in the state of Queensland. Mark and Tom, in your experience, what do you have to say about an industry standard—and that is what the codification seems to be getting at, if not clumsy in a way—to deal with the whole industry? What do you say, Mark, then Tom and then I will ask you, Graham, as well.

Mr Donovan : I will seek the answer to that in a roundabout way. I have been involved in negotiations for about the last 20-odd years. From the things I have heard today it has been very pleasing to hear people say that BHP Billiton does the right thing. I am also hearing expressions such as, 'There are bad guys.' My experience is that there are good guys and bad guys on both sides. BHP Billiton spends a lot of time and a lot of resources on these negotiations. We have had a lot of experience in negotiations and we have found that there are some fantastic people to negotiate with and against, but in my experience we have also had some very significant difficulties. That is one of the reasons we do not support the changes. There were changes made in 1998. I was around then and there were problems with the act. These changes were made in 1998 in an attempt to bring about more balance.

The process as it stands now is not easy to get through. Then you couple that with all of the other approvals processes that give Indigenous people the right to be consulted and object. We have state heritage legislation. We have federal heritage legislation. We have state environmental legislation. We have federal environmental legislation. That has led to a thinking among companies such as BHP Billiton that we are better off seeking to negotiate comprehensive agreements of the type that we have been negotiating with the Yamatji Land and Sea Council. Those agreements take us four to five years to negotiate. What they deliver us is certainty, and what companies such as BHP Billiton are seeking is certainty. We will only rely on the process as a last resort.

Our concern with the changes is that, ultimately, because there are bad guys on both sides, it will be the good guys who are hurt by the changes that are contemplated. I certainly believe there are things that can be done and things that people have not even discussed. I will give you but one example. We have been involved with this legislation for 20 years now. The negotiations are to a large extent about compensation for development on land and the impairment of native title rights. No-one has yet formulated what that compensation value is. It has been left to the mining industry and the Indigenous groups through their representatives to seek to come up with agreements. I would like for the legislators and for the courts to get their heads around this very difficult issue, because it is the money debate that is causing a lot of the problems, and people get very passionate. I know if my family was involved in these sorts of discussions we would have a disagreement. That is just human nature.

Because of my experience over a long period of time now, I would be urging this committee to really look at this in the bigger picture with a view to delivering all stakeholders greater certainty. I do not believe that these changes are going to deliver all of the stakeholders that certainty.

Mr Weaver : We would agree with much of what Mark has said. I think, though, I would caution against an oversimplification of good guys and bad guys. I think there is a marked difference in the negotiating position of a multinational corporation such as Xstrata, BHP or Rio Tinto and a start-up company or an explorer. It is just not feasible for a start-up company to spend four and five years negotiating. It is impossible—they would go to the wall. The situation is similar with explorers. I think the expectations need to be different as to what is expected in terms of negotiation time frames and negotiation processes. If Fortescue had negotiated for four or five years five or six years ago, there would be no Fortescue now, and we are now the world's fourth-largest iron ore miner. Consideration needs to be given to the fact that it is not rational to expect a consistent approach to negotiation from multinational corporations and start-ups or exploration companies.

Mr Short : I certainly endorse the comments made by BHP and by Fortescue, and completely reinforce the comments regarding the need for increased clarity and certainty in the whole process. Our members are seeking that as part of their decision-making process, which includes whether they should be investing in Australia—Western Australia, Queensland or wherever—or Canada, Africa or some other province. We are seeing an increasing number of our membership raising funds in Australia, and more than 50 per cent of those funds are currently going to overseas projects. That sets the scene. That is something that I think the committee needs to bear in mind.

CHAIR: Bear in mind that I quoted it before, and Melanie might say a word or two on the guideline issues and the industry standard stuff.

Ms Stutsel : Specifically, we did originally intend to clarify negotiating in good faith. Where we diverge is that we fail to understand why we are seeking to do that in a way that uses criteria that are untested in the native title space rather than using 15 years of legal precedent that already exists. That is anomalous to us.

Mr Meegan : The Njamal criteria were based upon industrial legislation; these criteria are based on similar principles, and will be easily transferrable into this process. We have a practice of 22 lawyers and in-house counsel negotiating a whole range of agreements. I have many examples coming across my desk in relation to agreements where lawyers are faced with a situation where they have to come to a compromise or they are going to be faced with going to the tribunal. I acknowledge that there are bad and good guys on both sides of the table, but we are still left with a substantial inequity and imbalance of power in relation to the negotiating process.

In response to a comment made by somebody else, not all agreements take four to five years to negotiate. Depending upon the situation, the project and the capacity of the mining company to contribute towards negotiation funding—sometimes to a certain extent and sometimes not at all—our land council has developed processes to be able to facilitate negotiations happening in a speedy way, so long as there is good faith. The problem with the current legislation is that it does not enable that to be set out in such a way as to protect us where companies choose to negotiate in bad faith. I am not sure if Carolyn wants to add something very brief to that, because she has done a lot of detail on this.

Dr Tan : The main thing is not to forget that at the moment the FMG decision has basically meant that the right to negotiate is worthless, and that is the only certainty—the certainty that there are no rights. The result is that there does not have to be all reasonable efforts used, which is what is proposed in this amendment. There only has to be a negotiation with a view to arriving at an agreement. You can have a negotiation in good faith about the logistics, and that could satisfy the test—and there are mining companies that are using this. That is the problem. Most of the good companies will easily satisfy the test, and have. It is a question about those who really do not want to do anything.

CHAIR: After lunch, I would like to hear about the way forward in this area from Les and Louise; from the human rights point of view, because that is the tenor that was taken up initially by your submissions.

Proceedings suspended from 12 : 23 to 12 : 57

CHAIR: We will now resume proceedings. Les, we will start with you and then we will move to the Australian Human Rights Commission and Louise. Could you talk about the way forward and reforms and where you think the situation ought to go.

Mr Malezer : To pick up on the introductory statement, the preamble to the native title laws make it quite clear that the idea is to try and address historic injustices. Much of the discussion we have had so far around this bill has been about trying to negotiate interests that exist, particularly between Aboriginal people and the mining industry in relation to land and the contentions there. But the ultimate objective is to overcome what has been an oversight in history of Aboriginal people's ownership of lands and to try to achieve restitution or compensation in relation to that. That is one of the areas, particularly compensation, where the native title laws have not worked to any great extent in the last 20 years, although I think many of the objectives are based on a concept of compensation but not necessarily in the way in which the legislation originally intended.

In doing this, the government magnanimously acknowledged that it had obligations of an international nature, and that is included in the preamble. I mentioned that before. I am not going to repeat those things, but I would simply say that this is more than a localised argument. This is about how to act honourably and respect the fact that Aboriginal and Torres Strait Islander peoples hold particular rights. Mick Gooda referred to the right of governance, which is a form of empowerment and decision-making among Aboriginal and Torres Strait Islander peoples. But it certainly does come down to the areas that are mentioned, which are property rights and, in relation to that, the exercise of prior informed consent that applies to those properties. These are the sorts of things that when reform of the native title laws is considered have to be tested each time that the legislation is looked at.

In relation to the current bill, congress and others here are advocating that the onus of proof should still be a matter for this legislation. We accept, as the former Attorney-General said, that issues of reform may have to be dealt with incrementally not only for the sake of the parliamentarians but certainly also for the sake of the Australian population and stakeholders and so on. That is a reality. But the onus of proof is a huge burden upon Aboriginal and Torres Strait Islander peoples, and I will give you some examples of that to show you the sorts of burdens.

Along with the onus of proof, come questions about fairness in the process, and that is a little bit of what the 'good faith' discussion was about. If good faith is already in the legislation, as it is, why do you have to put a definition in there? For Aboriginal and Torres Strait Islander people trying to apply good faith on its merits, it has not been successful and has not been demonstrated in every instance. There is good and bad on both sides but there is certainly enough evidence in the history to show that good faith just does not come about either in the process, because it is the legislation, or necessarily in the legal system. That is how it is being challenged in the courts. In Australia we have a very low level of acknowledgement of issues like good faith and duty of care and what these concepts mean when dealing with the first peoples. It is certainly not up to the standards of Canada and, to some extent, the USA.

Besides the onus of proof in our submission, we referred to certain other areas. One is that an acknowledgement should exist in the legislation in relation to the Declaration on the Rights of Indigenous Peoples. I understand that this is a matter of concern across party political lines, however it is a universal standard adopted by the General Assembly. All parties that voted on that standard have now accepted it. The four votes against it—Australia, Canada, New Zealand and the US—have now accepted the standard and it needs to be taken into account. Certainly from the congress point of view, it will always be in our language and our dialogue and it needs to be in an important piece of legislation like the native title legislation which, as referred to before, is really a foundational document for the Australian nation.

The resources available to Aboriginal and Torres Strait Islander people to deal with native title both before determination is made and after determination is made are insufficient. Just to talk about the 'afterwards', the holding of the title, the management of the title and the interests, go to the prescribed body corporates, but there is no basis on which these prescribed body corporates, PBCs, are able to function and operate unless there is some income derived from agreements—mining or some other activities. But if there is not an income from agreements, if it is a recognition of rights that apply without other stakeholders providing some investment, then the traditional owners are left with this body forever, and future generations will have the problem of how manage those interests. Now that it has become for Aboriginal and Torres Strait Islander people a cash economy and society, that money just does not come from nowhere. So funding to prescribed body corporates is one of the areas that funding is required for.

It is also—and this might surprise you—a problem in relation to people who are still in the native title claims procedures. There is a view that the money going out to native title rep bodies is sufficient. But in fact, just to talk about the Butchulla people whom I am involved with, we had a meeting a month ago and the native title body came up from Brisbane to Maryborough, some 400 kilometres away, to talk about what is going to happen in the next stages. We asked if we could see the Connection report. We were told: 'No, it is down in Brisbane. You have to go to Brisbane, you can go to the office and you can view and read the Connection report there.' So a report that is probably this big is only available to our people if they take themselves to Brisbane to read it; they will not release the report. We said: 'Well, can we communicate with our people? Can we have the list of email addresses and contact addresses so we can talk amongst each other?' The answer was no, that the list held by the native title body is only for there and it is private unless people give their consent for their names to be given out, so people cannot access it. We also asked: 'When we have a meeting can we bring our people and the people who were exported up to Yarrabah and Cairns or other places around Queensland? Can we bring them together to have a meeting?' The answer was no to all that. So that is giving you what is very real and very practical for the people who have to make this process work. Through no fault of the native title body that is representing the area, the resources just do not extend to those sorts of things.

The last point I want to make, if I can recall some of the detail from our submission, was in relation to land title outcomes. Our concern was that, even though there are all these agreements that are being referred to, when you go back and look at the body of agreements very little is in relation to actual land title, which was the purpose of the legislation. It was to provide justice for the historical injustices. Results are coming out that there might be a right to continue to hunt and gather over areas, but not title of the areas. There might be certain other rights of joint management where there are park areas involved and some other things thrown in, including some blocks of land that might be handed over, but ultimately there is not a return of title. So the outcomes that are being derived through the native title processes need to be examined.

Those are the priorities that the congress has put forward. The reforms that need to be looked at that this committee might consider and report on are in those areas. Thank you.

Dr Bygrave : I would like to start by endorsing the comments that Les and the congress have made. I will also be brief because we have put in a fairly extensive submission, which also contains large sections of last year's native title report. We have made about five recommendations in relation to future reform. The first one is around consistency with the United Nations Declaration on the Rights of Indigenous Peoples, to ensure that the legislation is consistent. Mick referred this morning to some of those issues in relation to free, prior and informed consent, self-determination, nondiscrimination, equality, and rights to and protection of culture. We would request that those issues be considered.

The second, again endorsing what congress have said, is in relation to reversing the high standard of proof that is required for Aboriginal and Torres Strait Islander peoples to have a determination of native title. The commission's view is that there does need to be some element of test. There obviously needs to be some degree to which people can be certain that the people who speak for country are the right people. But Mick is adamant that that is a process for Aboriginal and Torres Strait Islander peoples themselves; that should not be a process that is directed and dictated by outside people.

The third recommendation we have made is in relation to procedural rights over offshore areas following the Croker Island case, which recognised that native title could exist in offshore areas. We recommend that the committee consider repealing section 26(3), which does not allow a right to negotiate to occur in those areas. Also consistent with some of the language in the declaration, we would ask the committee to consider amending section 223(2) of the act to specify that native title rights and interests can also include economic rights and the right to trade.

Finally, supporting what Les said, if we are talking about the future reform of native title, what we are seeing is an increasing number of determinations of native title and an increasing number of PBCs being registered. Those organisations need to be resourced and that is fine in areas where the determinations are occurring. There are Indigenous land use agreements that are connected to those determinations and that provide some level of resourcing, but we are also seeing PBCs being established that have very limited resources and that is putting a lot of pressure on native title representative bodies and service providers to assist PBCs. They are receiving some funding, but it is fairly limited. Certainly, if we are talking about future governance and people being able to decide for themselves what they can do with their country, then they need to be adequately resourced to do that.

CHAIR: I would like to hear from AIATSIS and then a lawyer on the ground called Michael, and then Ken has got a question in relation to consultation which has come up plenty of times.

Ms Patterson : Picking up on similar themes with regard to reforming the requirements of proof, it was never the intention of the legislature that section 223 of the act should become such a cumbersome and difficult process. We have what has become a judicial nightmare of test after test after test to prove connection to country. We have a word that you might think has an ordinary meaning, the word 'traditional', which now has a series of four tests attached to it about what traditional means, including having to prove generation by generation an ongoing, vibrant system of native title. That does not mean being able to make presumptions of continuity back, it actually means being able to show a connection to country right through each of those generations.

The presumption of continuity is not utilised enough. The courts have certainly given us a very clear indication that unless the legislature gives them a push in a different direction, they cannot change direction. You will see a lot of the reform proposals in respect of 223 have actually come from the judiciary. It is really interesting that judges have actually said, 'We are imposing tests that are far too onerous'. That is something that is highly unusual and it is something that we should pay attention to.

There is probably an argument for a very careful consideration about what the resolution of that is. We do not want to end up in a situation where we are asking state governments to actively disprove native title, because there are times in history—I cannot say in any particular state at the moment—where we know that state governments will take an active role in trying to protect their interests. We know that if native title is not proved, the great beneficiary of that is actually the state, because they get an unencumbered land title. That is a reality that the states are the beneficiaries if native title is not established.

We need to be really careful about what the term 'reversing the onus of proof' means. What we want is a lower burden on Indigenous people in relation to proof that allows for the establishment of the right people, as Michelle was saying, without undue burden in relation to historical grievances, and historical impacts. I know of one state government who will, for example, with the greatest intentions, provide a timeline of all of the events they think might have interrupted a group's connection with land and ask that they prove how they survived. We should not need to go through that process to establish current rights to country.

In relation to section 223(2), the idea of having a very clear recognition of economic rights is incredibly important. We spend a lot of time establishing consent determinations. A lot of people have agreed to consent determinations that have run the risk of actually limiting the potential of native title to achieve economic outcomes for Indigenous people. We talk a lot about the potential for native title to result in economic outcomes, but the fact is that, in order to get a determination, a lot of people have signed up to agreements and a phrasing of their determination that says that most of their rights are for personal or communal ceremonial purposes and non-commercial activity. It is just such a bad investment in the future of native title holding groups to limit those rights. I think there is a very simple thing that the legislature could do: to recognise that native title, particularly exclusive native title, includes the full range of rights, including economic and commercial rights, just as any freeholder would be entitled to.

In terms of the offshore areas, I think I am in agreement in relation to a number of areas where the right to negotiate has been watered down. There is no reason now, with the way that the rest of the regulatory system works, why offshore areas should be treated any differently to onshore areas except where we have international obligations. In the way we now deal with marine parks, with commercial fishing activity and with private interests in waters for Indigenous people who clearly do not make the same distinctions that the common law has historically made between their land country and their sea country, there is no reason for us to impose our historical differences of views about those things onto whether we will or will not recognise native title rights. If people can establish their rights under their own system of law to their sea country then they should be able to exercise those rights to the extent that we are able to make that happen.

Mr Owens : I agree with everything that everyone else has said. The tone of this afternoon is all about a way forward—is that correct? Yes. With your indulgence, I would just like to backtrack for one moment about one thing that I said this morning, because I have a very clear example that I could give.

CHAIR: If you would like to talk about stuff this morning as well, that is okay.

Mr Owens : But then I will talk about a way forward, because I think there is some commonality amongst the parties here about a way forward. We were talking this morning about the certification of ILUAs and the ability of the land councils or rep bodies to certify ILUAs. I had a matter just recently that has been in the tribunal, where we objected to the certification function being exercised by the rep body. In that matter, the ILUA was certified by eight people from one family group, and it went through. That is the danger, and that particular family group were particularly—how do I call it?—responsive to land council issues. They were sympathetic to the land council. That is the reality of what occurs out there, and that was able to occur. It has nothing to do with Victoria.

Mr Storey : Chair, I am conscious that there are extraordinary allegations being made. Against which rep body? Against which ILUA? The allegations are unsupported and without notice.

CHAIR: He has just given an example from his personal experience in relation to that. He is not making any allegation against individuals or families.

Mr Owens : That is exactly right.

Mr Storey : But, in anonymising it, what he is doing is putting the whole rep body system into disrepute.

Mr Owens : No.

CHAIR: Everyone is speaking from their own personal experience and their background here, so he is perfectly entitled to raise it.

Mr Owens : That is the reality that occurs out there. Not all land councils are equal. There are some which I have the greatest respect for, and some are sitting in this room. They do some of the best quality work that I have seen, but not all are equal, and that is particularly the case in Queensland. So I am not going to dwell on that.

Moving on to a way forward, my emphasis in coming here this morning—the reason I came here—is about the future acts regime. I support what other people here have said, but under the future act regime one of the points that Mark from BHP made earlier is: why don't we take the money out of it? In other words, one of the problems—aside from the legislative failings in that the legislation never defined what good faith was and never set out what the intent of parliament was, and that really is fundamental here—is that there is still a huge debate out there amongst the lawyers as to whether native title is in fact a proprietary right or whether it is just a bundle of rights and interests. And there is a further debate—there is a whole vacuum out there—of what native title is worth. You will have best-practice lawyers who value their corporate social responsibilities and who look for a social licence to operate—like BHP and others, and not only them—and who will go in and negotiate, and they will treat that fairly and as if it has value. But there are others who do not. One of the things that can happen here, which will take a huge amount of the grief out of the system, is for parliament to have the guts—and I apologise for using that sort of language—

Mr PERRETT: No need to apologise to parliamentarians for that one.

Mr Owens : It does not matter which political persuasion they are for them to sit down and say, 'What is it worth?' and that will remove all of this. The limitations currently imposed on the NNTT that they cannot make determinations based on profits and incomes derived absolutely opens it up to a proponent who does not want to act well and who does not want to engage in best practice. They know—and this happened to me recently when I was involved in a matter—that they can say, 'No, that's our offer. If you don't like it, bad luck, we are going to go for determination,' in the full knowledge that no orders can be made based on royalty-type returns. So it becomes cheaper as a commercial exercise for them to go straight to the tribunal and to seek a determination. The amount of money they save could be made up in the first year out of what would be paid under proper agreement-making.

There was a matter just recently in Queensland which I was directly involved in with a proponent for Drake Coal—I am talking from firsthand experience. We were up against a billionaire mining proponent—a billionaire. There is 80 years worth of mining and no extinguishment of native title. He offered $1.2 million take it or leave it—no jobs, no training, no anything—and, 'If you don't like it, I am going to the NNTT to get a determination.' And so he did. We took on the good faith but—and it is all on the public record—because of the low threshold that I described earlier about what goes on there, we got rolled under 'good faith'. It is one of the most disgraceful negotiations that I have ever been involved in—got straight through on the good faith. What that particular claiming group is left with is that, if they get a determination, they now have to sue the state out of their own money on a compensation claim for what was not achieved in the negotiation. How is that delivering equality to Indigenous people in Australia, or even in Queensland? I am sure in other states these sort of things occur, but that is a classic example. Personally, I view it as the low-water mark of future negotiations in Australia.

I agree completely with what Mark said up there. Why don't we take the money out of it? Why doesn't parliament have the intestinal fortitude to impose a value? I suspect one of the reasons that has not occurred is that if the decision goes against the Aboriginal parties, they are stuck with it forever more. If it falls against the mining companies, the Aboriginal parties are stuck with it forever more. That is the risk. At the moment there is this vacuum where you have some best practice occurring, which I absolutely acknowledge. Even some of them would say that could probably be a bit better, but despite that, it is best practice. People were talking percentages before. I can tell you in Queensland it would be 98 per cent poor practice—or at the very least medium practice—and two per cent best practice.

I will give you another example—some real-life examples here: James Price Point, the gas deal that was done up there. I know there is a lot of opposition to it from Indigenous environment groups. Let's just put all that aside for a moment. I also know that the state brought forward a huge amount of funding in the package there. I accept that. But let's boil it right down. There were a thousand hectares of land involved. There are no exclusive grants of native title; it was Crown land, only a thousand hectares. The gas was out under the water, the pipeline was under the water, so the only area affected was this thousand hectares. If you take the Queensland coal seam gas: I was right in the middle of a lot of the negotiations that went on there, and led a lot of the negotiations. The gas fields were on country, the pipelines were on country and the refineries were on country.

Now, common sense and logic will tell you that if everybody under the Native Title Act were being treated equally that that would probably be worth 10, 20 or 30 times what the James Price Point deal was worth. Let me tell you that the average native title deal in Queensland—and there were some horrific tactics went on to negotiate these deals—was somewhere between $3 million and $6 million in the area where the gas fields are, where the most disturbance is and where the most impact is. Now that is the difference that is occurring, and I defy anybody to say that that is fair.

Mr WYATT: I just want to clarify something with Les. You made a reference—and I am sure when we read back on Hansard we will see the comments you made—in particular: you referred to income from agreements having a financial return. I hope you are not suggesting that Congress would relinquish native title land on that property or on that land that does not derive an income?

Mr Malezer : I am not sure if I caught the question as you meant it but—

Mr WYATT: What I am asking is: Congress are not supporting the concept that you would relinquish any land—even if it were under native title—that does not give you an income? Because the way you made your statement it sounded as though Congress was prepared to relinquish native title on land that did not provide an income.

Mr Malezer : No, certainly not. The message was that for those areas where there was recognised rights by the traditional owners to the lands and so on, they would not be able to exercise that collective management of that area through the prescribed body corporate for the lack of funds. I was simply pointing out that there was a financial element that comes now with native title outcomes. The problem is not necessarily there where mining occurs, because there may be arrangements made with their incomes for the PBCs to operate effectively. But the problem does exist where there is not that income coming in.

It would not be the suggestion that those people would or should relinquish native title. I know that that is not what would happen. It would be the case that they would not be able to manage effectively or care for their country either in the traditional way or in a modern way once their rights were recognised. I pointed out that it was a cash economy that many of our people now have to live under, and even just things like buying petrol to travel over country and so on are a hardship on communities. So, no: we would definitely not say that native title should be relinquished in those situations.

Mr WYATT: Thank you. That will be in the record in a much more definitive way than what you suggested in your opening statement.

Mr Besley : I was just going to make a point about the Torres Strait, where I was fortunate enough to work. The oldest registered native title body corporate in Australia was that which came from the Mabo decision. Mer Gedkem Le is the name of that organisation. On Murray Island there are no mines. There was a sardine plant, as we all know, but that has long since gone, and the majority of Torres Strait Islanders and recognised native title holders actually live on the mainland.

It is very difficult for those native title holders to actually participate in the workings of that corporation because they live in Townsville and Cairns, and that organisation really struggles, as I know, having worked with them, to give effect to those people's native title rights, even though some of those traditional owners living in Cairns and Townsville are some of the proudest people you will ever meet and know every last stone and blade of grass on their country and will be able to give you a name for every little part of it. They do not enjoy the same rights and interests, effectively, on the ground, as those in, say, the central coalfields of Queensland would, if they actually got a native title determination in that area. So it would seem that there is a perversity that is created by the geographical location of your country and whether or not it has resources on it as to whether or not native title will actually mean anything for you.

Mr WYATT: I want to go to the comment that you made earlier today, Graham, on consultation. You indicated you have a chronology of the consultation process. In your mind, was the consultation process sufficient? Did you have sufficient opportunity in which to present your reflections of the proposed amendments?

Mr Short : The whole process from our point of view to date has been inadequate, and I presented a written statement earlier on. In terms of the way to move forward, bearing in mind that that is what we are looking at in this session, the only information that we have is that which was in the referral statement, which was from the House of Representatives to the committee, and that is to look at these issues and at 'the reversal of the onus of proof'. We have not received any further information, other than that statement. So, in terms of consultation, the consultation process is today.

I have been listening to the statements that have been made. What are the drivers? Where is this coming from? To pick up on one of the things that I saw, the referral statement made reference to the Law Council of Australia as pushing for these amendments. I have been in contact with the Law Council just to clarify their position. It is disappointing that they are not here today. It is also interesting to note their position. It is not necessarily about the reversal of the onus of proof. They are looking at the issue of a presumption of continuity. From a technical point of view—though I am certainly not a lawyer involved with this space—I understand that to be a slightly different thing. It was based on a presentation that Justice French made in July 2008 to a native title users group, and I have a copy of the presentation here. He referred to a number of things. Again, they were suggestions; they were not necessarily recommendations. So I again just raise the question about the drivers. The consultation has been very poor. And we would like to see more information so we can actually consider what the ramifications are—what the unintended consequences could be.

Mr WYATT: I also want to put a question to the Attorney-General's Department. Kym, as to your thinking on the amendments, what was in the department's mind or your mind about the level of consultation required, given that there are many instances where there is much more extensive consultation on lesser issues that have fewer complexities within them—for example, the intervention: there was extensive consultation right across communities, groups affected and organisations. Would this be an instance in which we should have done much more extensive consultation, given that we do not have people from the fishing industry or some of the other rep bodies that could put a position, particularly given that there are no state governments here?

Mr Duggan : I do not know why there are no state governments here. But can I just outline to you the processes that we went through. A consultation is never long enough, it is fair to say, but on 14 January 2010 there was an exposure draft released about proposed amendments to enable the parties to disregard historical extinguishment in parks and reserves. We received 17 submissions in relation to that paper. In June 2010 a discussion paper was released about proposals to clarify the meaning of good faith as well as a number of proposals to amend the ILLIA proposals. We received 29 submissions in that regard. On 6 June 2012 the AG announced her decision to proceed with the amendments that were broadly in the bill—as we currently are. Since then we have conducted fairly extensive and targeted consultations with a wide range of stakeholders including native title representative bodies, state and territory governments, representatives from the mining and farming industries, Aboriginal and Torres Strait Islander representative organisations such as Lisa's organisation, the Federal Court, the National Native Title Tribunal. On 21 September the government released an exposure draft of the legislation for a four-week consultation period. We received 31 submissions in relation to that and all those submissions were taken into account. On 2 November all those submissions except those which were provided in confidence were published on the agency website. I think that is a fairly extensive consultation process. I acknowledge right here and now we did not involve AMEC anywhere near early enough. That is absolutely true. But we certainly have had consultations with others in the mining industry, it is fair to say, over an extended period of time. But I am quite content to acknowledge that AMEC was not involved as early as they should have been. We had attendance at a range of events. For example, my predecessor addressed the AMEC conference in 2011. There have been some contacts. I hope that there will be more contacts in the future.

Mr HAASE: In the same vein, Mr Duggan, I am sure you would agree there is a vast difference between putting a proposition and having responses from respondents and then putting another proposition and whether or not that secondary proposition reflects any of the points of view of the respondents to the first proposition.

Mr Duggan : Absolutely true. There is always an issue about consultation. It does not necessarily mean consensus, I accept that. I have outlined the process we went through.

Mr HAASE: Thank you, and I realise that.

Mr Duggan : We believe that was adequate but, as I say, I think there has been a specific omission on our part and that is in relation to AMEC.

Dr STONE: I am not following on on consultation as an issue for a minute. I want to go back to that incredibly important issue, I think, where there was talk of the confusion and difficulty about the commercial outcomes or the royalty outcomes or the financial outcomes of a native title decision and the fact that there is very little guidance as to what that means in reality. Michael, you suggested we should somehow have a codified or guided set of things. What would you call them? Would it be a regulation which helped direct the tribunal as to how they would judge that something was a fair outcome or not? I am just wondering if anyone here has seen any best practice in that area. Is it in the US or Canada? Do they have it? How can we look to see what is international best practice and see how it has worked? What could we borrow from a similar jurisdiction?

Mr Hardie : I might make a short comment on that. I do not know about international jurisdiction. I would like to look a bit closer to home and Queensland is where I live. In the legislation for other landowners, landowners other than native title, whilst there are not defined levels of compensation there are indicia, heads of compensation as they are called, in the legislation that apply if someone wanted to build a railway through my backyard. They are there, and that is not controversial in terms of general compensation law. That is the sort of practical thing, I think, that the Commonwealth legislature could do. In fact, the Queensland government have just announced a review in respect of landholders to do with gas. They are reviewing those heads of compensation. If in our native title legislation we had at least some indicia of that nature I think that would be of incalculable benefit to practitioners, such as Michael and myself and Ted, in trying to negotiate reasonable compensation. It will not solve the issue but it will give us a good start. At the moment we have got nothing.

Mr Storey : I wanted to pick up on one of the themes that was in our submission and in Les's statement before that went to rebuttal presumption of continuity. It is talked about as if it were the Holy Grail. If one thinks about it, currently in standard legal practice those that assert have to prove and the notion is that one is asserting native title. In legal theory that is not actually the case because native title exists. So if one thinks about the practice of the rebuttal presumption, it is merely saying that if you are asserting in the absence of continuity you have to prove it. A lot of my practice has been in the Northern Territory. It would, for example, in a real sense make little difference. In my work for the Territory if the claimants assert native title, there is an implied assumption that it is probably correct and it would be up to me as a counsel for the Territory to rebut that because of the nature of the Territory.

In Victoria, the situation is slightly different. In Victoria the question goes to a paucity of evidence, that is to say, the historical record—and the deputy chair is nodding because she knows exactly what I am talking about—is thin. The way it is currently cast, the thinness of the historical record works against the native title applicant. What the rebuttal presumption is really saying is that the situation it is still open for a state if they want to engage in litigation to oppose the claim altogether to lead evidence to show that break of continuity, but they actually have to lead evidence. In the absence of that evidence, there will be a presumption in favour of the claimants.

In reality, as I think many people have said around the room, there are fewer and fewer litigated determinations. So what would a rebuttal presumption mean there? It means when I on behalf of the Victorian traditional owners sit down with the state to negotiate a deal, the paucity of evidence does not count against those claimants. That is what it is about. It is a significant matter but it is not groundbreaking. I suppose the reason I say it is not groundbreaking is that it would assist in achieving the balance that I think does not exist now. While it would assist in achieving the balance, it is worth remembering—and this probably goes to the major point that I wanted to make at this stage—that we are still operating within a paradigm of a native title system that requires a traditional connection, that is, it requires the maintenance of laws and customs existing in a normative society since the assertion of sovereignty by the Crown.

When you think about that, there is your real absence of balance. The NTSV and NTC submission goes to the questions about reconsidering this notion of tradition and whether we can unfreeze tradition, as we call it in our submission, and accept, not really surprisingly, that Indigenous culture in the last 200 years since the intervention of Europeans has altered considerably, but that that should not alter their entitlement to the traditional lands. It does not with anyone else so why should it here? That is the unfreezing of tradition.

The third aspect that so often gets forgotten in these discussions—but I see we have that broad term of reference to consider the future—is that when the whole nation title system was originally introduced there was the recognition by Prime Minister Keating that many Indigenous Australians would not be able to access the native title system because whether we unfreeze tradition or whether we reverse the presumption they will not be able to establish that connection. This goes to an important part of the UN Declaration on the Rights of Indigenous Peoples that Australia has completely failed to accept. The remedy was indeed the Indigenous Land Corporation funding compensation for that acquisition of country that has happened over time. Now the ILC is there and, although there are mixed views on it I tend to think it does a good job with the resources it has got. But if that were its goal, as Prime Minister Keating said at the time, it has hopelessly short resources. That is one aspect.

The last aspect I want to mention, and I think Lisa mentioned it before—and I know I have chewed up a lot of time, Chair, and you are very indulgent to me—is that if there is one thing that is looming in the native title world—and I say this based on quite a few years of experience—it is this. As we have achieved determinations as we have been moving through that process, the whole issue of support for prescribed body corporates, the Aboriginal corporations that hold the native title rights, is looming as a disaster. Currently no government, state or Commonwealth—well, Victoria does to a certain extent—supports prescribed body corporates. They are set up to fail and yet they are the future of the native title system. If there is within the confines of the existing system one area that needs serious concern—and I know FaHCSIA is starting to look at it—it is support for that aspect of the system.

CHAIR: As Justice French mentioned before, he actually thought that the reversal of the onus of proof was actually a modest proposal. Matthew, would you consider this rebuttable presumption a modest proposal as well?

Mr Storey : Yes. Certainly His Honour the Chief Justice was noting that it would assist in the expeditious resolution of claims. It would, Chair. There are three things that slow down claims. The two main things that slow down claims are the requirement to analyse the historical extinguishment data, collecting tenure histories, and the requirement to analyse traditional connection, the anthropological reports, and the logistics of the claims themselves. Some of the material, like section 47C, can greatly assist in the extinguishment tenure area. A rebuttable presumption greatly assists in the other. Those sorts of factors are the measures that we could do that would greatly speed up resolution of the claims process.

CHAIR: We will go to Dr Tan. My wife's name is Carolyn. I called you 'Caroline' before. It is just as well you are not my wife as she would really have a go at me for that because she hates being called 'Caroline' as her name is Carolyn.

Dr Tan : Thank you, Chair. I agree with what Matthew was saying about the amendments in terms of the rebuttable presumption of continuity. We work in the Pilbara and the Murchison-Gascoyne region, which is an area where there is a complete paucity of early historical information. Having to establish continuity back to sovereignty where those documents hardly exist is extremely difficult. A lot of the time our negotiations with the state towards consent determinations get bogged down about this level of detail. We talked a lot in the earlier session about certainty. Well, really native title determinations give the greatest amount of certainty because people will know exactly who you have to deal with and where. There is nothing more certain than that. We would agree that amendments to section 223 are probably more if not just as important as the rebuttable presumption because really the issue is to get rid of the tests that freeze tradition. As we know, what is most traditional is in fact that Aboriginal traditional laws and customs adapt and change. That is what is traditional, and to freeze it is just quite the opposite. So I echo what was being said about the funding difficulties that representative bodies have. Because we have to go through all these levels of proof, we need a level of funding for this sort of research that we have to do to run claims. From the Yamatji Marlpa point of view, we would not probably survive as a representative body if not for funding from other sources other than FaHCSIA such as money from proponents et cetera. Certainly with prescribed bodies corporate, the ones that have access to lands where there are big mineral deals are probably better off, but we also act for a lot of claim groups where there are no future acts and many a prescribed body corporate there would really struggle to survive in terms of just maintaining day-to-day infrastructure. As for extinguishment, section 47C is obviously only a very small component. There is a lot of work that could be done in terms of overturning the bucket loads of extinguishment that happened in 1998, particularly with lots of tenures which are historical tenures. We spend lots of time doing historical tenure searches and arguing about areas that people on the ground wouldn't even know where they exist. How does anyone know where there once was a homestead when there is no sign of it anymore? How does anyone know where a line was where there was a historical special lease? Nobody knows whether they have stepped over the line or not when you are on the ground. These sorts of things just waste a lot of time and they really do not prejudice anyone to have native title recognised over those areas. So we would certainly support what was floated in the Greens bill that would allow agreements to be made to disregard extinguishment over far greater areas than just parks such as areas where nobody else is affected.

One could go through the act and say there are a myriad of other things that are needed. We talked a lot about the future act process this morning, and there is a whole scheme about future acts, but there is very little said about the role of the independent person in terms of matters which do not fall within subdivision P and the section 29 process but which could involve fairly large amounts of infrastructure, for instance. There is just one little subsection, really, which deals with that, which does not quite match the whole scheme that is set up for the right to negotiate process and, as I said, it could be dealing with matters which are just as major. What happens there if there is no consultation? What is the effect of that? That is something we would say needs to be looked at.

CHAIR: Sharman has a question, and Barry has a question—Barry always has a question—and then we will go to Col, and then I would like to hear from some of the miners and the farmers about what they think the way forward is in relation to native title—particularly in Western Australia; that is exactly where I want to go first.

Dr STONE: Looking at the flaws that are in the current act, and picking up again on what Matthew was saying, because he tends to talk about the areas I work in—Victoria and Tasmania—yes, there is a serious problem with proving continuous traditional association when the contact history is that seven generations ago at least there was a deliberate dispersal and geographic movement of peoples away from their traditional lands under the protectorate system. A lot of that history was not documented in terms of which families went where and so on, and languages are no longer intact, of course, in those places. Having said that, the problem is with what has tried to replace the failure of native title to be successful anywhere in Victoria pretty much. The first case, unfortunately, with Judge Olney on the Murray River—it was the first in the sense of all across Australia—was spectacularly unsuccessful because of the failure of those people to have the traditional association proved. The Victorian legislated regime has tried to step in and fix that. The problem is that no one has come up with a way of helping the disputed traditional ownership to be resolved. So you have got these different—I will call them tribal or clan—groups saying 'But we were the owners of the Barmah Forest,' and someone else saying 'No, but we were.' Some of those claims have now been enacted as legitimate and lots of good things have followed for those who have been given the tick. The others are saying 'Well, how can we dispute this?' There is no mechanism for them to do that, and I have already looked at the changes you suggested that were happening, and they do not resolve the problems. These people who were displaced so early in the contact history still do not, I think, have a decent prospect of recognition of their traditional ownership. The Indigenous land moneys, through the ILC, have been used to buy small properties here and there, but it has not given them the connection again with their place that they are after. So I am just saying that this is unfinished business. It affects much of the southern parts of Australia, and we need to be aware of the distress of the Indigenous communities, particularly in northern Victoria, which you are probably familiar with, as a consequence of this failure.

Mr Storey : I do not disagree with anything the deputy chair is saying, but I just note that questions of intra-Indigenous disagreements regarding appropriate title to land certainly are not restricted to southern Australia and nor, should I add, are questions about title to land restricted to the Indigenous population. I have been a property lawyer for 20 years, and it is based on the fact that people have disputes about title to land.

Mr HAASE: This is not a question to any particular person, but I would like those who have a contribution to make to step in perhaps. We have heard about the question of being able to put a dollar value on settlements for loss of, or destruction of, title. We have plenty of evidence that the lawyers have agreed in the past and that there is a standard routine today for the loss of, or disruption of, body parts, and if that can be done, then surely it can be done for access to country.

A more pressing situation that I confront at least on a weekly basis is the dissatisfaction of members of groups that are excluded from the distribution of royalties or benefits, generally after a determination is made and payments are being made on an ongoing basis by mining companies. I have heard—and I am not sure from whom—that this is something the Native Title Tribunal has no solution for because we as legislators have not given guidance for a solution. I wonder if any of you learned people have something to contribute in that regard?

Mr Meegan : I would just make a point in relation to benchmarks of compensation. My sense of it is that in industry and in the negotiations, and in particular, when you get certain types of law—and we have one in the Pilbara—there is a sense of the benchmark. Interestingly though, and it came up in the context of the recent discussions relating to the proposed changes to the tax law, there is argument as to whether that relates to compensation or whether it includes an aspect of social licence, hence our suggestion that the proposed tax changes should not relate to acts affecting native title. The concern might be that if you start including benchmarks, then it might be assessed only in relation to acts affecting native title. I think there needs to be that fluidity in the processes so that, from our point of view, and this is putting it bluntly, we can get the best deal. From that point of view, it has occurred to me that in some situations—and perhaps it is when you are talking about more minor projects—you could consider benchmarks as prima facie evidence of good faith; however, that would depend upon the scale of negotiation. But I say that with caution as I think there is a real issue around that, so I am not proposing it. I am just discussing it.

In relation to money going to the right people; that is an issue. All I can say is that at the same time that we were undergoing extensive negotiations in the Pilbara we also had support from the federal government for the Pilbara Connection Project. We got substantial funds injected into the process, and so for the first time we were able to do connection reports across seven claims at once and get a really detailed picture of what it looked like in terms of who are the right people for country.

It is a view that we expressed—and I appreciate that others will have a different view, but we did have the availability of the best anthropologists in the country to be able to arrive at those views—in relation to whom we consider are the right people for country and how those claimed groups should be set up. That then in turn gave us the confidence based on our view—and that is all you can ever do; you express an opinion based upon the evidence you have—to set up the benefit management structures to provide in the short term and in the long term for those benefits.

In the discussions with the resource companies, they were very concerned that the monies were not frittered away. So there needs to be short-term and long-term money. While we are representing our clients, our view is that we share that concern. We supported that work because it is also our concern to make sure that the agreements that we make do last for 50 or 60 years and, in fact, beyond that—for 100 years. These agreements that we make—and we know that we are fortunate because of the volumes—do provide for future funds, and they do provide for today money and tomorrow money.

Mr HAASE: The legislation, however, is silent on the basis of guaranteeing that all parties are entitled to compensation as being members of that group—but are not identified as a member of that group—or are excluded as a member of that group by somebody controlling the activities of the distribution of the monies. I believe the legislation is silent in that regard and I want clarification on that.

Dr Strelein : Prescribed Bodies Corporate are set up as either an agent or as a trustee for the whole common law native title-holding group, so they have obligations under trust law. In effect, although we have not seen it yet, members of the group could hold the PBC, or any trust agency that was set up, to account. So, if there were a big trust set up to distribute benefits, they would have the normal obligations of a trustee to look after the beneficiaries. If there is misappropriation of funds or anything like that, it would fit into the trust law. The structure that has been set up, where PBCs have that legal personality, is really the protection for members.

Mr HAASE: I have never seen a successful prosecution, and I have had literally hundreds of complaints.

Mr Malezer : I just want to say very quickly that, up until native title, all Aboriginal land title and all moneys held for Aboriginal people had always been dealt with through trusts and works. Somehow, from the time native title came on the scene it has become a problem how to deal with these things. I agree exactly with that. The trust relationship is the strongest when you can get the law to work in the interests of the people who are meant to be the beneficiaries of the arrangements. There is no reason why that cannot work even where there is confusion in relation to the identity of those beneficiaries.

I was just going to add something on the matter of standards as well, in relation to return of lands and compensation and so on. I think it was 1959 when ILO Convention 107 was established, which talked about how land should be returned to Indigenous and tribal peoples. That was updated in 1989 in ILO Convention 169. In 1994 the Committee on the Elimination of Racial Discrimination General Recommendation No. 23 (General Comments) also put out how Indigenous people should be compensated for land: return of lands or, if lands cannot be returned, land in kind or, if not land in kind, cash compensation. So it is not as though it has not been addressed or attended to. Similarly, in terms of precedent, the Northern Territory land rights legislation passed in 1976 has established the precedent in Australia, and native title or land rights really should be aspiring to those principles established in the Northern Territory, which the federal government was committed to in 1983-84. In 1985 the Prime Minister, Bob Hawke, pulled back on that because of the Western Australian elections—when, I might say, the mining companies were busy running ads of black hands building brick walls, which was not a very nice thing to do in good faith. Shayne, I have to give my apologies. I have to go and catch a plane.

CHAIR: We will go to Mark and then to Colin, and then we will go from there to then to John and to Debra.

Mr Donovan : I am going to talk from a practical perspective about some of the difficulties that are faced, not so much in negotiating the agreement but more in what happens after the agreements are negotiated.

The first comment is that prescribed body corporates only come into operation once native title is determined. In the Pilbara, where we have these very large agreements, most, if not all, of them were entered into at a time when there was no prescribed body corporate because native title had not been determined. That is the first point.

The second point is that even when native title is determined you are not told precisely who holds native title. You are told that native title rests with a particular group and you may or may not be told that that group consists of the descendants of X, Y and Z. What that has done in a practical sense, even where native title has been determined, is create arguments as to who truly are members of the group or not. What that has caused some companies to do—such as my own BHP Billiton Iron Ore—is to consider that much more carefully at the time when we enter into agreements. We now have agreements—one was entered into in October last year—where we go into much more detail as to who the members of the group are at the time the agreement is entered into, with a list of names, and we also spend time in setting out the rules of membership both now and in the future, and also the potential rules for excluding people. You do not get any guidance from the courts or from the legislature to do that, but we do it because of the problems that we have had in entering into agreements where that certainty has not been provided.

Dr STONE: Do you have words to deal with what we now call stolen children or separated children who may not have any traditional association because they were removed at a very young age, being of mixed race or for other reasons? How do you deal with that issue? I know Howard Olney has had things to say about this in Central Australia.

Mr Donovan : That is not something, as far as I am aware, that BHP Billiton has sought to get into, but the other thing I might add is—and I think Michael referred to it—you have this desire for immediate needs, which is very understandable, but you also have the agreement amongst all stakeholders for the intergenerational needs, because native title is communal title and the view is that we want to make a difference for future generations. Again, in a practical sense that has seen the large companies in these large deals set up two forms of trusts. One is a direct benefits or discretionary trust; the other is a charitable trust, and what the charitable trust allows us to do because of the definition of charity—because you have to have a public benefit test—is bring into that a class of beneficiaries which is wider than the direct traditional owner group. That allows more people to potentially benefit. That is not in the legislation, it is not something of the courts, but in a practical sense it is what mining companies are doing now with the agreement of the traditional owners and their advisors in the Pilbara with a view to overcoming some of the problems. I cannot say that is universal, but what I can say is that to get to that degree of understanding and acceptance takes a very long time and a lot of resources. There are a lot of companies and traditional owner groups that are not resourced to be able to do that.

CHAIR: We will hear from Tom on that issue and then go to the Western Australian miners. Tom, would you like to make a comment in relation to that?

Mr Weaver : I would probably repeat what I said earlier: for start-ups—

CHAIR: Is that your experience?

Mr Weaver : Yes. What I would say is that there is a lot more consultation to be done on compensation if that is to be considered. It is a very complicated issue. There are differing philosophical points of view on how compensation is most appropriately to be provided. There are different views on whether compensation is most beneficial, in an intergenerational sense, when it is provided in cash or in education, jobs, business development and all of those other sorts of things. That will keep going regardless. I have also heard it said by very senior people in the very large companies that there is more money sitting around now in charitable trusts than could ever be spent in the next 100 years by the relatively small numbers of people that you are talking about in the Pilbara. That will only be compounded. The quantum of cash is astronomical. You were handed something earlier. We are talking about, literally, hundreds of millions of dollars a year flowing to Aboriginal groups from the major mining companies, and I think there is a question around the appropriateness of that. But what I would say is that this area of compensation and also the area of reversal of the onus of proof is not in the exposure draft, and I think there is a great deal more thought and great deal more consultation to be done on those two particular areas before any steps are taken.

Dr Yeates : I would like to follow on from Tom and Geoff. For the mining industry, certainty is the real issue. Things that lead to uncertainty make difficulties. I am not sure that we can codify all of the things, and I think you articulated that pretty well. There are a lot of issues, including local issues, but certainty is important. I do not think that the mining industry really wants to get involved in some of the determination issues. I see that, and I think we as an industry see it, as mostly a government process. I find it a little curious—after listening here—that we are talking about some potential changes to the act and now we are bringing in a lot of other things that I would have thought should be considered as part of a more holistic look at the act. That concerns me because I think any act that gets changed in a piecemeal or at least not in a complete sense is going to run into difficulties in the future. I would personally—and I think the industry would as well—much rather see a whole, broad look at it with much more consultation than we have seen, and I think Tom made the same point about going forward.

CHAIR: I appreciate that. Perhaps while we are on with miners, Melanie or Therese—

Ms Stutsel : I absolutely agree with the reports that have been made by others around the table. There are a number of processes going on in this space at the moment in terms of looking at the roles of rep bodies, for example, in a post-determination context. We do continue to have concerns at the piecemeal nature of the reforms, and there are clearly linkages that occur between each of those reform packages that have a cumulative effect on the system, and we think that should be considered in tandem.

When it comes to the point about benefits, the other point worth noting is that there are currently very few structures other than trusts in place to help maximise the value of these agreement moneys. As Thomas mentioned, there are significant funds held in charitable trusts, and we all know that the purposes of those trusts are actually quite narrow and historically have been very limited. I would commend to the committee some joint work that the MCA and the National Native Title Council have done on the development of an alternative taxation vehicle, which would enable the incentivisation of economic development rather than just pushing moneys into the continuation of charity.

Mr Hardie : Barry, I am going to focus on what you said earlier. Firstly, I notice that you focused on the issue of timing and you raised the question as to why these changes are happening now, and what is going on. From my perspective, some of the changes—not all of the changes, but certainly those amendments in relation to overruling the Bygrave decision and giving land councils more power to decide who the traditional owner of an area is and who is not—are relatively late. I got a surprise when I saw that they were in the exposure draft. I was told, 'No use objecting to this; it's a done deal.' I would be very surprised if, in this parliament, anything could be considered a done deal and I am a bit surprised about the timing as well.

The other thing I want to take issue with is something you said earlier in relation to John's organisation. You said: 'Why is it fair that native title rep bodies get all this money and why don't farmers get some funding to defend native title claims?' What I want to take issue with is that my experience dealing with farmers or, if you like, pastoralists is that they do not, in the main, defend native title claims. In fact, in relation to a recent determination involving the Kalkadoon people, there were 50-odd pastoral respondents. John's organisation brought those 50 to the table so that we could get a consent determination. The funding cut to AgForce has been not at the expense of its role in defending native title but in defence of its role of facilitating native title. There was only one in the Kalkadoon determination—Stanbroke Pastoral Company—that objected to the consent determination, and it funded private lawyers to bring about a better deal. What I am saying is that cutting that funding out of that organisation to do the good things—bringing mum and dad pastoralists and the other pastoralists to the table—is not helpful to resolving that issue. I wanted to say that.

Secondly, I note that Matthew says: 'Look, the whole system is going to fall down because, as we are getting more and more determinations, no allowance has been made for the RNTBs—the registered native title bodies—the ones that actually hold the native title and have to deal with it. Where is the money coming from for that?' Logically, you would say, 'Okay, as rep bodies secure the determinations—and they do not just secure determinations, other lawyers do as well—that money and funding could be diverted to RNTBs,' but that is not what is going on.

What is going on is that there seems to be a debate: 'Let's give rep bodies the additional function to support these prescribed body corporates.' But what should be happening is direct assistance to those prescribed body corporates taken out of the budget of the rep bodies as they achieve more determinations.

The second thing is that I have heard so often: 'How do we solve the problem? Let's throw more money at it!' Where is the money going to come from in relation to these reforms? Matthew said perhaps I should not be listened to because I am paid, but what Matthew does not know is that for four years I was principal legal officer of the largest rep body in Australia, and I can tell Matthew that as a principal legal officer I earned far more money on the public payroll as the principal legal officer than I do in private practice—and not only that; now I do not have a private secretary, I do not have the luxury car, I do not travel business class and I do not have anthropologists and research officers at my beck and call. Because traditional owners have to pay our firm out of their own pocket, we have to be frugal and account to them for how we spend their money to achieve a native title determination.

Let's be clear: there are inefficiencies in the current land council system and there is fat in the system that should be looked at and diverted. The reason why there is that fat is that there is no competition. They have monopolies. There must be a method, and we suggest one in our submission. There are good rep bodies—very competent. When I took over as the principal legal officer of the largest rep body there was me and another solicitor. We saw that through an amalgamation and we ended up with over 12, wasn't it? Ted worked there too. Some rep bodies have got 22 lawyers on staff. So there are a lot of efficiencies that should be derived from looking at that rep body system and making sure that it operates fairly.

We suggest in our submission that the best way is to open it up to competition. If Matthew thinks that my firm is just interested in earning fees, put it to the test. Let a firm such as mine—there are others—compete. Let's not have a situation where huge amounts of money are given to rep bodies. They do not have to produce the goods, whereas, as a private lawyer, I do not get paid until I earn the milestone from the client on file. Let's have a system where experienced lawyers can put in bids, as they did under the Attorney-General's scheme. Let's see who can produce the best, most efficient way to a determination. It will not be possible for private firms to compete in all cases, and in those cases the rep bodies are a fantastic resource and there is lots of talent. Ted and I received a lot of our training and experience from being involved in that system.

I believe that, if we are going to look at reform of the native title system, we should not just be looking at the black and white law. As you can see, we do read this thing a bit. It is a bit tattered. Let's look at the whole system and how it operates. Is this system working for the benefit of traditional owner groups? In my view traditional owner groups do not beat a path to my door because they want to pay me money; they beat a path to my door because they are dissatisfied with the way the current system is operating. It is not operating for the benefit of all Aboriginal people. It is operating for the benefit of the privileged few who get the imprimatur, the nod, from the rep body.

Mr Stewart : First of all, let's just clear up this business about parks and reserves. We really need some certainty. If the act does not proceed, we are okay, but if the act proceeds then we certainly want to see something in there that ensures that pastoral land is safe.

CHAIR: We have had a deposition about that.

Mr Stewart : The next thing I want to raise is that I hear all this discussion about consultation, negotiation et cetera. Fortunately, and particularly in Queensland, we have what is called a pastoral ILUA which was developed by AgForce, the Queensland government, Queensland South Native Title Services and the North Queensland Land Council. It is called the pastoral template ILUA, and it is the one we are currently using to settle so many of these claims. It is not a fixture. You can negotiate. Either the claimants or the pastoralists can negotiate within the ILUA frame. But at least we have something there that says, 'These are the things you have to consider when you want an ILUA.' So, as far as we are concerned, that is a plus. We spent quite a bit of time et cetera putting that together.

There are a few other things I want to raise. I have been listening to people about onus of proof et cetera. We agree with Fortescue: we do not think that now is the time to be talking about onus of proof. We just think that that is something further down the track. But I can tell you that there are two issues that are going to settle pastoral and native title claims in a sensible time period, and I will tell you what I think that time period is in a minute. The first one is funding. If we do not have funding by 28 February, heaven help you. The next thing is connection. We think connection is an essential part of this process. It is working. We are speeding up getting connection reports et cetera. So they are the two main issues that we consider will help us proceed.

Going to all the NFF organisations around Australia, they currently consider that the bulk of pastoral native title claims will be completed by the 2014-15 financial year, which is not that far away. We are talking about settling 79 claims this year—again, if we have the money. If we do not have the money, believe me: if there are 30 you will be lucky. That will give you an idea of what we think the situation is going to be.

I think that is the main issue. No-one wants to see native title cleared up on pastoral land more than we do—perhaps the government. We, the landholders, have achieved a good relationship, basically—more with claimants than with the rep bodies, because I have to say that my solicitor, who is considered to be one of the best native title solicitors in Australia, tells me that the rep bodies are slow. That is probably because, as you were saying, there are so many lawyers that they employ. If you take it that in Queensland we have one lawyer and one native title officer representing 578 people, and you go and look at the rep bodies in Queensland and see how many lawyers they have representing so many people, I think you would be amazed.

Mr Russo : I just want to pick up on two points that Colin has raised. They are more micro-issues rather than the big picture that we have been focusing on for most of the afternoon. They relate to the ILUA proposals. The first one relates to the certification issue, which Colin has noted. In the tribunal's submission we note that, with respect to item 9 of schedule 3, which makes the change, the issue there is the removal of the objection process for certified ILUAs. The tribunal in its submission notes that obviously there may be two classes of certified ILUAs: there may be those where the rep body is standing at arm's length and those where it is more intimately involved.

At the end of the day it is a matter for the government as to whether it wishes to go with that proposal, but the tribunal notes that the current system, where there is an objection process for certified ILUAs, is currently managed fairly efficiently and is a time- and cost-effective system. If there is, in the government's view, a need to change that then that is obviously something that the tribunal would follow. I can just go through some of the statistics.

CHAIR: I know the two of you are constrained in part in relation to this, but my experience is that Supreme Court judges or Family Court judges or state or federal magistrates are very quick to let you know privately what reform they think is needed in the jurisdiction in which they operate. So, while I realise you are constrained to a certain extent, I would like to hear from you as to where you think the reform should go.

Mr Russo : There are really only two concerns about that. The first one is the removal of the right to object. There is the proposal within the explanatory memorandum that there would still be a right of judicial review. I guess things for the government to consider are the relative costs of judicial review, the time, and the evidence that is required, as opposed to going through an objection process to the tribunal, which is currently run very efficiently so that matters are resolved within a matter of weeks in most cases.

Just in terms of the actual number of objections that have been successful in the history of ILUAs since the 1998 amendments when the ILUA provisions came into effect, we have had almost 720 ILUAs registered. Only three ILUAs have not been accepted for registration, none of which, I believe, were certified ILUAs; they were all authorised ILUAs. So material had been supplied to the registrar of the tribunal with respect to them, but certainly, to the best of my knowledge, with respect to certified ILUAs, none of them have been prevented from being registered, but the objection process allows a platform for discussion between the objector and the native title party to that particular ILUA.

The other issue is really just a technical one, which is that, should the right of objection be removed, under the provisions as they are currently drafted the tribunal would still need to go through the notification process for those certified ILUAs, and we are just questioning the necessity of that process. Why would you have a public notification process if an objection process no longer exists under the act? So some further thought might need to be given to the interplay between those two things.

CHAIR: You have all made your views very well known today, and I am going to try and finish up early. But the newest and the supplementary member of the committee has asked if he could ask a question which I thought was tangential to what we have been talking about today but which I think is relevant as well. So if anyone would like to answer that you may, and then I think we will finish up—unless anyone has anything else they would like to say. Matthew might like to make a comment on what Colin had to say as well, before we finish up.

Mr WYATT: Have the state and territory legislation amendments assisted with or streamlined any aspect of the native title process that would help inform this committee in its deliberations?

CHAIR: So has any state or territory legislation in relation to these types of areas streamlined things or made obstacles?

Mr Meegan : There have been no legislative changes. They just make policy and tell us what they are going to do. This is in Western Australia, sorry; we are told what they are going to do.

Mr Russo : The Victorian scheme I think offers a lot of promise for people who are not going to be able to achieve the high burden of proof, because in a lot of Queensland that is the reality and people are not going to get anything out of native title. So: offering them some incentive to take an alternative route and, in a sense, forgo making claims, and then obtaining the right to negotiate, enjoying those procedural rights and facing the very high hurdle, then either voluntarily discontinuing their claims or not complying with a court order and then being dismissed, and then coming back again, which we see all the time in Queensland. Without giving people an alternative settlement regime, similar to what has been done in Victoria, I do not see much prospect for that changing.

CHAIR: We will have Lisa comment and then we will go Matthew. I think we will end where we started, with the Human Rights Commission making a final comment.

Dr Strelein : In relation to state government legislation, it should be interesting to the committee to note that there is actually very little change to state legislation to accommodate the recognition of native title. Often the legislation in relation to land use and conservation has mostly stayed unchanged.

We recently did an audit of weeds management legislation and found that only one piece of legislation around the country actually takes into account native title in relation to weeds management. We are currently going through an audit of all land management legislation at the moment. We have been very slow to actually look at the way that we can accommodate native title within the broader land management regimes around the country. Certainly, something that we should be much more active on is to look at how we can better accommodate this—rather than having native title always bumping up against other management regimes—and actually look at how those land management regimes can actually at least contemplate the existence of native title rather than continuing that presumption that it does not exist.

Mr Storey : Just to mention the Victorian Traditional Owner Settlement Act: I would endorse many of those comments. But I would also note that it is a good model, not just for those who might struggle to pass the onerous evidential burden but a good model even in those instances in Victoria where have been consent determinations about the existence of native title. The reason for that, is that it provides a comprehensive settlement framework. I have done a lot of work on pastoral determinations in the Northern Territory, and the outcomes that are coming there are good, and there are good and valuable negotiations between pastoralists and native title holders. At the end of the day the content of the native title rights that are coming out is not dissimilar to the statutory reservation that was in the pastoral lease in the first place.

By contrast, the Victorian model provides a comprehensive settlement model with—as far as the state is concerned—a more effective future acts regime and—as far as the traditional owners are concerned—a more engaging settlement process that is not a bare paper determination. I think that is an important aspect to note.

In relation to Frank's comments: that surprises me considerably. Then I realised, perhaps, the point of view of the administrator, who thinks that the system is working efficiently, expeditiously and at the speed of light, and of the player, who has spent years negotiating an agreement—and I am talking probably more from my own experience in the Territory than in Victoria—then to have to go through the notification and objection procedure, then to get into the Federal Court. My usual expectation in the Territory was that you could add 18 months following execution of an ILUA to when it actually had an effect. That affects the process. The certification procedures in situations where you have a rep body that is attesting to the fact that the native title holders—those who hold or who may hold, native title—have authorised the ILUA, expedites that process. This is good for those who are involved in serious land management work. It is useful to state governments as much as it is for native title holders.

The last point I want to mention is that Mr Hardie's comments really do not warrant response. I think he has made quite clear exactly what his firm's objective is here, and all I can do is refer the committee to the portions of our submission that go to the need for consumer protection in the native title system. Thank you.

CHAIR: Now to the Human Rights Commission. You are as articulate as Mick, and a little bit younger I would think!

Dr Bygrave : Thankyou. I refer the committee to the first recommendation in the commission's submission, which states that the committee support the passage of the bill. In particular, we welcome the bill, and we welcome the proposed amendments because they are compatible with human rights, particularly in relation to culture, and to self-determination. We therefore support it. We do agree that it is incremental reform, and we do look forward to further conversation and debate about future reform. I think the conversation that has happened this afternoon is certainly a positive step in the right direction, and we would endorse that. Thank you.

CHAIR: Thank you, Louise. We will finish up early. Thank you for waiting around and participating in this round table today. If you wish to make any further submissions, please do so by 12 February. I know it is a short time frame, but the secretariat needs to do some work and we need to do some work to make sure that we get our recommendation to the parliament very quickly. We also have to make sure that we have discussions amongst ourselves about what should happen.

I want to thank again the National Centre of Indigenous Excellence. This is the third round table hearing we have had here and their hospitality has been fantastic. We appreciate them making this available to us and we have been looking around at the great work they do. It really is a vital community asset, particularly for the people of Redfern, Sydney and New South Wales. We thank them for their hospitality and goodwill, and we wish them well.

Resolved (on motion by Dr Stone):

That this committee authorises publication, including publication on the parliamentary database, of the transcript of the evidence given before it at public hearing this day.

Committee adjourned at 14 : 36