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JOINT COMMITTEE ON NATIVE TITLE AND THE ABORIGINAL AND TORRES STRAIT ISLANDER LAND FUND
08/10/1997
Native Title Amendment Bill 1997

CHAIR —The committee prefers that all evidence be given in public, but should you at any time wish to give your evidence, part of your evidence or answers to specific questions in camera, you may make application to the committee and the committee will give consideration to your application. I should point out, however, that any evidence given in camera may subsequently be made public by order of the Senate. I understand that no submissions have been received.

Mr Poynton —I believe that there are a couple that will be made in the course of the hearing.

CHAIR —Mr Poynton, could you please tell the committee in what capacity you appear to give evidence?

Mr Poynton —I appear in a private capacity.

CHAIR —I ask you to make some opening statements. At the conclusion of your opening statements, I will invite members of the committee to submit questions to you. I ask that you keep your opening statements fairly tight in order to give us an opportunity to ask questions.

Mr Poynton —I thank the committee for inviting us to give evidence. There are only two small points that I want to address today, as other people have adequately addressed other points. The first is the replacement of the Attorney-General's Department as the alternative source of funding for claimants outside of the control of the representative bodies.

The government seems to be labouring under the illusion that ATSIC is capable of acting impartially. All the evidence we have about that organisation since 1983 suggests otherwise. In 1995, we had the spectacle of the Federal Court finding ATSIC manifestly unreasonable in the infamous land funding decision and we had the disgraceful exercise of ATSIC attempting to suppress a report on its activities by the federal Ombudsman.

I remind members of the committee that ATSIC has yet to apologise to Mr Bell, to whom we ultimately owe the Brandy decision. I note the omission to comment upon that at the Human Rights and Equal Opportunity Commission by the Aboriginal and Torres Strait Islander Commissioner.

ATSIC is an organisation that makes unreasonable decisions, fights external review to the Federal Court--at public expense, mind you--and then refuses to apologise. This is the organisation that you propose to allow to externally review decisions made by representative bodies about traditional owners being allowed funding for native title claims.

The decision to place ATSIC in this review situation is not only unwise but it will also, in reality, make decisions by representative bodies non-reviewable. The bottom line is that ATSIC will always find for its representative bodies--and they are very much the creatures of ATSIC. ATSIC and the representative bodies are tied into a certain ideological framework of Aboriginal representation. It is all about exclusion--a leadership has been established through legislation--and the patronage of certain white political players.

ATSIC now demands that those it supposedly represents should follow it and even obey it. We saw this last year in Ms Langton's attack on Pat O'Shane. I remind you that she suggested that Ms O'Shane, despite her successes, should butt out of Aboriginal affairs. She then demeaned those successes by saying, `None of us would deny her'--Ms O'Shane--`the right to integrate with white Australian society.'

The whole ethos of the representative bodies is about further statutory empowerment over traditional owners. It seems that control over the traditional owners by reliable leaders is the aim that the government and, more surely, the Democrats and the ALP are pursuing. ATSIC and the land councils are inextricably bound by lines of funding, family and patronage. This was made very clear in the so-called independent review of representative bodies put out by ATSIC at the end of 1995.

ATSIC and the land councils have a very small circle of key players and overlapping board memberships, which are all supported by a select group of yes-men and yes-women consultants. Under-the-table funding arrangements and nepotism run rife. You want to entrust to this self-appointed revolving leadership--when they are not in Edinburgh or Brussels--what amounts to a refusal to allow any kind of review mechanism and statutorily deem it an external review.

In 1992, Mabo abolished the legal fiction that had been running in Australia for about 150 years that native title did not exist. So let us not create a new legal fiction to replace that one by saying that ATSIC is competent to conduct external reviews. Legal fictions are abhorrent to the law.

If you think that ATSIC external reviews will save money, think again. When has ATSIC ever been cost efficient? Create a fair external review mechanism under the federal Attorney-General's Department, or allow AAT reviews, which would be merits reviews, which is really necessary in lots of these cases. I would urge you to stop this mischief of empowering ATSIC to do any kind of fair review. The Ombudsman's report on New Burnt Bridge should have been enough to convince you of the error that section 203FB represents; otherwise you are merely entrenching a political circus.

This of course relates to 203CA. Can ATSIC be made to fund claims that the representative bodies might object to on various political grounds? If they are, where will the funding come from? Once again, I suggest that amendments to 183 leave the Attorney-General as an alternative source of funding.

The second thing I want to appeal to the committee about is your sense of a fair go. The amendment to the amendment--that is, schedule 1, which I suppose is what we would call bucket loads of extinguishment--establishes a statutory extinguishment of a range of supposedly exclusive leases. In particular, I refer to the seven pages of extinguishment that Queensland has inserted into that schedule. Queensland has fought and lost the two major native title cases and now it is seeking its revenge. They could not win in court so now they want their cake to eat as well.

I am not going to argue about the policy. Other people have argued about that with you and have put submissions to you about that. Even though I view it as reprehensible and unjust, I will not go on about that argument. However, the principal amendment required is very simple, and I hope you will support this recommendation. In part 3 section 21 where it says, `leases under various land acts', et cetera, the following words should be inserted: `that have not expired by June 30, 1996'.

Retrospective legislation is always bad legislation. It always raises the spectre of retrospective taxation laws or something as equally abominable. Where a lease is running at present or was running on 30 June 1996, pass your amendments. They will be challenged and dealt with in due course. But, where the leases expired before 1996, and according to judgment in Wik, native title has been revived because it has reverted to state land--possibly except to the extent of any former inconsistency, but that is not certain. Basically, where the lease has expired and reverted to state land, native title has revived. Don't raise your extinguishing hand to those former leases. We are not talking about huge areas of land.

As an example, I can cite cases that I am involved in at present where leases expired 90 years ago, 50 years ago, 40 years ago, and have never been renewed. The option to renew has been left alone, has not been taken up. So those former leases are now state land. In some of them there might have been a makeshift dwelling built or some tiny part of the lease might have been used in the last 100 years or 40 years before it expired. Where they reverted to this state, they should be allowed to be claimable again.

We are not talking about a major change to the policy here; it is a bit of window-dressing, but it affects a lot of native title holders in this part of the world--Far North Queensland. It is a sly and underhand piece of legislation that extinguishes something that has been going for 90 or 100 years. They are the only two points I want to raise with the committee. Mr Mundraby will speak to the fact of this question of retrospective extinguishment.

Mr Mundraby —First, I would like to thank the committee for giving me this bit of time here.

A map was then shown--

Mr Mundraby —The area of land that we are talking about probably sits over here somewhere, which is Cairns. It is this area of lease land here which is smack bang in the middle of the Yarrabah-DOGIT deed of grant and trust which sits over that hill over there. There are two leases: one, 580 acres, was issued in 1883; the second, 650 acres, was issued in 1884. Both leases expired in 1894. In 1892, the Yarrabah mission was founded by Gribble. So, a little over 103 years ago, that lease expired and was not taken up, and for over 103 years we have had a DOGIT reserve in there.

The reason you see it in white is that we excluded it from our first claim--it was pre-Wik. Now that we have seen some light at the end of the tunnel, through Wik, we have the right to at least make a claim for this land. Hopefully, we will get a determination on it. Now that we have come to the amendments side of it, to the best of my knowledge this is one of the leases on which native title is going to be expired.

This lease was never settled or cleared in any way; it was only visited. We have documented oral history and evidence of my ancestors having big battles with the people who tried to take up the lease. What I am more or less saying is: seeing that this lease expired over 103 years ago, why should it be taken away or at least the chance of our people making claim to it be taken away? Like Peter said, this is just one of the examples. The grassroots people within the Mandingalbay clan, especially the Yidindji people, do not see this as holding out a hand for reconciliation. In the terminology of bucket loads of extinguishment, this is how we see one of them.

Mr CAUSLEY —This lease is included in what you call schedule 1 and what we call schedule 4, is it?

Mr Mundraby —It was included under the Crown Land Alienation Act in 1876.

Mr MELHAM —It is No. 3 on page 14.

Mr Mundraby —That is more or less what I wanted to say. It is straight to the point; no use beating around.

Mr Charlie —I will not take up too much time; some other people have to come here, so it is a very short time.

CHAIR —Do you have any comments that you would like to make on your submission, Mr Charlie?

Mr Charlie —No, not at this moment.

Senator FERRIS —Mr Poynton, you made some fairly serious accusations about ATSIC this morning. Do you have any examples, more than simply assertions, that you could give to the committee?

Mr Poynton —Those examples have been made clear in the Federal Court in the New Burnt Bridge case and in the decision of the Federal Court last year about the unreasonableness of the decision on the lands fund bill.

Senator FERRIS —You have not had any personal experiences with ATSIC that have soured your attitude?

Mr Poynton —No, I have not.

Senator FERRIS —Thanks.

Senator KERNOT —Mr Poynton, are you retained by these three witnesses?

Mr Poynton —Yes.

Senator KERNOT —Did you give an advance copy of your opening statements to any of them?

Mr Poynton —No, I do not believe so.

Senator KERNOT —So what you said is entirely your view?

Mr Poynton —That is right.

Senator KERNOT —And not necessarily corroborated by the people who have retained you?

Mr Poynton —That is right. I made that clear.

Senator KERNOT —So you are also appearing here in an individual capacity?

Mr Poynton —I made it clear that I was here in an individual capacity.

Senator KERNOT —But the letter you sent to the committee mentions what each of them will be speaking on and gives the impression--it is my impression--that, as you have been retained by them, the views you will express will be shared by them.

Mr Poynton —I made it clear in my Hansard witness sheet that I was speaking individually.

Senator KERNOT —I do not understand the relationship. What is the professional relationship then?

Mr Poynton —I am counsel for these people.

Senator KERNOT —Mr Mundraby, were you happy with all of the comments he made?

Mr Mundraby —Yes, I was.

Senator KERNOT —But you did not have any advance notice of them?

Mr Mundraby —We knew what Peter was going to say, especially on our country because--

Senator KERNOT —Yes, on your country. But what about the wider stuff about the role of ATSIC, the representative bodies and the future of Aboriginal people squabbling?

Mr Mundraby —Just on that, personally, I did not have any trouble. If he was commenting on that, it may have been another business of his. But points like that relating to my country and especially my area I knew about.

Senator KERNOT —I just wanted to get that clear.

Mr Poynton —No problem.

CHAIR —Do other spokesmen wish to say anything?

Mr Woosup —I would like to thank the committee for the invitation and allowing me to view my opinion. My tribe is situated on the north tip of the western side of the Cape York Peninsula, north of Port Musgrave, up to the next community, down to the Jardine National Park and the Bramwell station and west to the north of Port Musgrave.

I have been contacted by the Ankamunthi family who authorised me to speak on native title on the matter of the gas pipe work from New Guinea. In relation to the new act, I am very concerned about the extra power it gives representative bodies. Under proposed section 203C of the new act, ATSIC is the sole source of funding for the representative body and claimants of native title. If I do not get a grant for native title, I will be going through an internal review by the Cape York Land Council under proposed section 203BI. I know the Democrats and the Labor Party think ATSIC is a great thing.

Senator KERNOT —Have you heard me? Have you heard all my words?

CHAIR —Please, he is making a statement.

Senator KERNOT —About my views, Mr Chairman.

CHAIR —About the party. He did not mention you specifically. With all due respect, give him the opportunity to speak.

Senator KERNOT —I am the spokesperson in this area, Mr Chairman.

CHAIR —Give the witness the opportunity to make a statement. You are more than welcome to question him after.

Senator KERNOT —I think the statement has been prepared for him. I would like to know if he is personally responsible for it.

CHAIR —Order! I would ask you to finish your statement, Mr Woosup. Thank you.

Mr Woosup —They are all out of touch with traditional owners. ATSIC is a bureaucracy that is ripping off Aborigines all over Australia. After an internal review by the land council tells me I will not get any help for some reason, I will go to ATSIC for an external review under proposed section 203FB. You tell me if I am getting a fair hearing. It will be like asking the police to investigate the police. It will be like complaining about a missionary. People who complain will be sent to Palm Island.

Now they just take the job away from me, give us less CDEP and I am left with nothing to come back for, except the community where I have been raised. And you will help us traditional owners against the power of the representative body? The amendments so far show that you are against traditional owners and all for the land council. I am telling you, you have been conned.

Senator KERNOT —The amendments are the government's amendments.

CHAIR —Please, do not interject. He is referring to the committee. Please go ahead.

Senator KERNOT —But they are the government's amendments.

Mr Woosup —So I say to you that the Attorney-General's Department can at least impartially review decisions of representative bodies. They should be reviewing controllers, not ATSIC. In section 203FA, the minister can seek information from ATSIC about representative bodies. You and I know that the minister is not going to do that. There are a lot of irregularities already. How much money did they spend fighting brother Charlie here and the Dingaal people last year? We will never know. The minister, in reality, cannot investigate ATSIC and ATSIC supported representative bodies because the minister is advised by ATSIC. The minister has no department. He only has ATSIC.

Already the land council has signed away our rights in negotiating with Kayarlun up in the Scarlett River. We have got a neighbouring tribe that refuses to negotiate with us about this deal. The neighbouring tribe are, of course, co-operating--royalties by corporation against the traditional owners. It is nearly five months since I have asked the land council to negotiate. They still have not written back to me. How representative is that for a representative body of traditional people? Tell me, Senator Kernot: are you their supporter? Are you representing me, or are you representing your mates in silk suits?

Senator KERNOT —Tell me, Mr Woosup: has Mr Poynton told you that these are the government's amendments that are setting up rep bodies, not mine?

Senator ABETZ —You do not support those amendments, Senator Kernot?

Senator KERNOT —I am asking Mr Woosup whether Mr Poynton has told him that these are government amendments. I believe that we have got to find a way for traditional owners, for land councils, to find the best representative structure. But it is the government's proposal to put up rep bodies; it is not a proposal in my amendments. Irrespective of that, you need to know that.

CHAIR —Have you finished yet?

Mr Woosup —Then there is this gas pipe from New Guinea, which is in negotiation with the Chevron. The Cape York Land Council is claiming to represent us, which it is not really. It does not even represent me. I have a copy of the MOU, which I would like to table to the committee, between the land council and the Chevron. In that agreement the land council confirms that the Aboriginal community has appointed it into this agreement with the company. The proposed pipeline goes through nearly 200 kilometres of Ankamuthi country, which is situated up in Cape York. We wrote to the company over a month ago clearly stating that we wanted to be represented by our own lawyer. Here is a letter from my solicitor to the company sent on Monday this week.

The representative body you are setting up is an attempt to continue a system which views Aborigines as children in need of guardians. It is a missionary system update. Some mobs might like that, but the Ankamuthi people are tired of this missionary position. We will be using the pipeline money to set up infrastructure for our traditional owners. In saying all of this, I do not say that the Ankamuthi are opposed to the pipeline. It is an important resource deal, important to Australia, and we are interested in the general wellbeing of this country. But I do say that we want to negotiate directly with the company. It seemed to me that the company and this committee, through this new bill, are working against us and treating us like children, and we are adults.

To summarise my support of Mr Charlie and the Dingaal people, I am opposed to ATSIC being the sole source of resource funding for native title claimants and I am opposed to ATSIC being an external review body. I support the continued role of the Attorney-General's Department in funding claimants who have problems with the land councils and being an external review body when those problems with the council arise. This means you will need to amend sections 203C, 203B(1), 203FB and 203FA.

There is another thing that I do not like about this bill, and that is subdivision D of the Indigenous Land Use Agreement, Alternative Procedure Agreement. I know this section was put into the act to stop another Century Zinc style problem. Already the Chevron people have suspended negotiations with traditional owners on the length of the pipeline. You see, there is a lot of money the Cape York Land Council can control if we agree to let them do what we want them to do instead of allowing the Ankamuthi to be run and to have our own representation. This would mean that the land council has already handed over to us $100,000, and then more later.

With agreement, the money can be given to traditional owners. There is no need for this process in Cape York or on the pipeline, but they are planning it to stop the Ankamuthi people exercising self-determination and our support of the pipeline. I would like to see section 24DL amended so that the registrar of the tribunal must clarify that all the conditions in subsection (2) are satisfied, not just a condition. I do want to empower the land council; I want my people to be empowered. Thank you for your time.

CHAIR —Senator Abetz, do you have a question?

Senator ABETZ —Mr Woosup, were the Ankamuthi people and the Dingaal people consulted in relation to the appointment of Noel Pearson and James Fitzgerald as the representatives for the purposes of the negotiations? Were your people consulted at all in relation to this memorandum of understanding that you just gave to us?

Mr Woosup —No, we have not been consulted. This is a backdoor deal. It has taken away our rights to do direct negotiation.

Senator ABETZ —Are you receiving any funding through any Aboriginal organisations, through ATSIC, through land councils, through your rep bodies? Are the Dingaal people getting anything, or your people?

Mr Woosup —No.

Mr Poynton —May I clarify that. Our community is at the top of the Cape. Dingaal is at the bottom of the Cape. The pipeline does not go anywhere near Dingaal country. Dingaal have their own financial assistance. It is not in relation to that MOU. Dingaal have nothing to do with this pipeline.

Senator ABETZ —Thank you for that. So we have two geographically quite separated groups who are expressing concern at the way the Cape York Land Council has been doing business? Is that correct? Traditionally the people are not related, other than way back?

Mr Poynton —Dingaal does not have a problem at the moment with Cape York. They have worked all that out in the last year. They are working very happily together with the land council, yes.

Mr CAUSLEY —Just one quick question on that lease you are concerned about. It has reverted back to just natural vegetation now, has it, after all that period of time?

Mr Mundraby —Yes, that is right. It is in the world heritage area also. It is the only piece of country in the world heritage within the Yarrabah DOGIT.

CHAIR —Mr Charlie, you have a native title claim at the moment, do you? Do you have a claim over any country at the moment?

Mr Charlie —Yes.

CHAIR —Are there overlapping claims on that?

Mr Charlie —It has all been worked out now.

CHAIR —So there are no problems? They have been resolved?

Mr Charlie —Yes. At the moment, though, I would like to see things change. I would like to see the system in the communities change. White people have stepped on us for many years. Now the Aboriginal people are doing that to us.

CHAIR —In what way?

Mr Charlie —In not communicating. We need advice, we need help, we need funding from ATSIC and we find it very hard, difficult.

CHAIR —What is your working relationship with ATSIC? Do you find you are having the same sorts of problems?

Mr Charlie —I think we all do.

CHAIR —You say that you have worked out with the land council your problems there. So you have no difficulty with Cape York Land Council as a representative body on behalf of your claims?

Mr Charlie —At this point, I think we should go on individuals.

CHAIR —That is what I am asking you. In your individual case, you do not have any problems at all?

Mr Charlie —No, no.

CHAIR —I was just reading your document. You said that there had been quite some considerable conflict there.

Mr Poynton —In the past there has been. That was worked out in October last year, and that is the attachment that Gordon has put there. It is how they have worked that out. They are now working together successfully.

CHAIR —Okay. Thank you very much. Are there any other questions?

Senator KERNOT —You understand that it is the government's amendment, don't you?

CHAIR —Thank you very much for taking the time today. Your evidence has been very useful. We will certainly have a look at the issues that you raised there.

[2.30 p.m.]