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Tuesday, 12 May 2009
Page: 3469


Mr OAKESHOTT (1:50 PM) —I pick up on the words of the previous speaker in his conclusion regarding recommendations to the various committees which have led to the Native Title Amendment Bill 2009 before the House, particularly on the question of rebuttal and presumption of continuity. I agree wholeheartedly with him that this issue requires further consideration, so much so that I foreshadow an amendment, which I imagine will be dealt with in the consideration in detail stage. It will pick up on the issues raised by bodies such as the National Native Title Tribunal and various legal authorities, and by Tom Calma and others. It is an excellent recommendation worthy of consideration by government. Surely, after three years of review and consideration of the state of play in regard to native title claims in Australia, and given how slow and inefficient the process is at present, I hope that this opportunity to consider such a worthy matter is not missed.

The first three words I used in this chamber were words from the local Indigenous community on the mid-North Coast of New South Wales. ‘Jum-mada-gai’ means ‘Come, you are welcome,’ and it was an invitation to all members of this chamber to visit the mid-North coast of New South Wales and to work with me on the full range of issues that we confront, whether they be unemployment which is comparatively higher than the rest of Australia, poverty levels which are comparatively higher than the rest of Australia, income levels which are comparatively lower than the rest of Australia or education levels which are comparatively lower than the rest of Australia. Many of those touch very much the significant Indigenous population who I represent on the mid-North Coast and who are quite often forgotten in the stereotypical images that come from this place and others when consideration is given to Indigenous communities. There is a significant and vibrant coastal Indigenous population that is trying to walk together for a common future with the Crown and the sovereign nation that we now live in.

I also watched the apology from this chamber. It was before I arrived here and it was a significant moment for Australia. It was, in the words that I have previously mentioned, an example of walking together and hopefully walking together for a common future rather than a 220-year history of Crown or sovereign authority and division. It was a significant and symbolic step in, hopefully, uniting, working together and walking together to achieve some common good and some common outcomes. It is now over 12 months since that apology and we are now down to some of the detailed work of putting the meat on the bones—for want of a better expression—of delivering on some of those symbolic gestures of over 12 months ago with the apology. I hope it is from that that we have the genesis of the Native Title Amendment Bill 2009 before the House today.

The bill itself is to there break what is a very slow native title claims process to date. It is common knowledge that the existing system of resolving native title claims is too slow and therefore not effective. I think, going back to the words I have just said, it is one thing to have access to the law; it is another thing to have access to justice. Whilst the native title system that has been built up certainly provides access to the law, it is questionable, as of today, whether it is a process that is just in delivering the reconciliation outcomes that I would hope everyone in this chamber is looking for.

Some of the facts and figures are startling and of concern. From 1997 to 2006, there were some 600 determinations remaining to be made, with only 81 determinations having been made. This is at a cost of $900 million to the taxpayer over that nine-year period. This is a cost of $11.1 million per determination. I think that is a slight on all of us. There are still some 500 or so native title claimant applications currently on the go, and therefore the amendments seek to improve the efficiency and effectiveness of the native title claims resolution process. Part of it is, importantly, giving the Federal Court of Australia a more central role overseeing the native title mediation process. Bluntly, it will be able to oversee the operations of the Native Title Tribunal. It is hoped that by doing so the Federal Court of Australia will be able to assist the Native Title Tribunal with its excessive workload and thereby increase cost and time efficiencies and lead to more just outcomes.

I turn to some background. The Attorney-General commissioned a review of the claims resolution process in the native title system in 2005. As has previously been mentioned, Graham Hiley QC and Dr Ken Levy responded to the terms of reference in 2006 with the Native Title Claims Resolution Review. Dr Levy’s recommendation for institutional reform was implemented. He recommended:

… that a matter should always be ‘mediated’ in whole by a single body, and that different parts … should not be referred to different bodies (at the one time).

Therefore, the National Native Title Tribunal remained the sole body for mediating the claim process. Graham Hiley QC’s preference was to ‘provide the Federal Court with greater flexibility in relation to alternative dispute resolution’. This option would remove the mandatory requirement in section 86B that the Federal Court refer claims to the National Native Title Tribunal for mediation and would thus enable the Federal Court to determine who undertakes mediation and other alternative dispute resolution functions in relation to claims and when such mediation or other ADR functions are undertaken—in other words, therefore, the possibility that not one single body mediates on just one matter.

From a public policy point of view, this is to encourage negotiations rather than litigation, which, again, is something that I hope this chamber and this place generally would support. It is in tune with the act preamble that suggests exactly that, and precedent cases also suggest that. The Wongatha case says that it is appropriate for the court, once again, to draw to the party’s attention the desirability that mediation be fully explored. The famous Yorta Yorta case also makes the point:

The time and expense expended in the preparation and presentation of a large part of the evidence has proved to be unproductive, a circumstance which calls into question the suitability of the processes of adversary litigation for the purpose of determining matters relating to native title.

I will summarise, before talking about the foreshadowed amendment. The bill itself and the amendments included in it are minor. There is no major restructuring of the legislation itself. The question is: will they make dramatic changes to time and efficiency of native title determinations? That is an open question. Until we see fully what the Federal Court of Australia’s role and resources will be in delivering its new role, in my view it probably will not change those time and efficiency questions dramatically but is hopefully pushing the legislation down that path. As far as some of the public responses in regard to this legislation and the review process over the last three years go, the response of the National Native Title Tribunal president, Mr Graeme Neate, to the Senate Standing Committee on Legal and Constitutional Affairs deserves some airtime whilst everyone is here. He is quoted as saying:

The tribunal supports a flexible native title system that encourages more negotiated settlement of native title claims.

This is, I think, an important point.


The SPEAKER —Order! It being 2 pm, the debate is interrupted in accordance with standing order 97. The debate may be resumed at a later hour and the member will have leave to continue speaking when the debate is resumed.