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Thursday, 28 October 1993
Page: 2748


Senator PARER —My question is addressed to the Minister representing the Prime Minister. Native claims have now been made over all the export coalmines in the Bowen Basin in Queensland, representing some $4 billion worth of exports. As the minister has said on numerous occasions in this place, the government does not believe these sorts of claims will succeed. I ask the minister: what action, if any, is the government considering to deter costly ambit claims? Will the government's Mabo legislation address ambit or mischievous claims, which are doing untold damage to investor confidence and customer perception of Australia as being a reliable supplier to steel mills and other users of Australian coal around the world? If not, why not?


Senator GARETH EVANS —One of the difficulties in conducting this debate is the constant claim by the opposition that they have not been—


Senator Alston —Give us an answer to the question.


Senator GARETH EVANS —Hold your horses and curb your hormones; just relax. Those opposite will get an answer to the question. One of the difficulties is that there is a constant reference to not knowing enough about the detail of the proposed legislation. Senator Hill went so far as to claim in this place a couple of weeks ago that there is some sort of conspiracy of silence so far as the original outline document of 2 September was concerned. In that particular document of 2 September, which has not changed in any relevant respect as a result of the later debate, a very detailed set of provisions were laid out as to the way in which claims which were manifestly vexatious, frivolous and unsustainable would not in fact be registered in a way which would allow them to proceed.

  I refer to paragraph 95 of that document and subsequent provisions which bear directly upon this. The paragraph states:

Where a claim for native title has been received, the Judge may determine—

right at the outset—

that it not be registered if:

  (a)the claim is not made in the prescribed form;

  . . .

  (c)the claim fails to disclose sufficient information as to the ongoing traditional connection with the land by the claimants;

  (d)that the claim fails to disclose evidence of the representative capacity of the claimant or claimants;

  (e)the claim is in relation to land already the subject of a determination;

  (f)the geographical boundaries of the claim have not been specified with sufficient precision; or

  (g)the claim is vexatious.

There is a further provision that enables things to be ruled out if native title has been extinguished over the land or any part thereof. There is a further note in paragraph 96 which addresses the question of the means by which that particular issue might be resolved, because that obviously raises slightly more complex questions than the others.

  We are, of course, conscious of the possibility of frivolous and vexatious claims, and that is one of the reasons that these provisions are very much part of the outline as it has been anticipated. In the Bowen Basin we have a further issue, which has some people excited, about the fact that there is some overlapping of the claims that have been foreshadowed or made at the moment. Obviously, we have not yet got in place this system of registration, but it will need to be addressed in this way. But the overlapping of two claims is really no different from the sorts of disputes about the exact position of boundaries that occur between land-holders or claimants in other litigation context all along.

  To attempt to deny potential native titleholders the right to be involved in decisions about proposed uses of the land, to attempt to deny them, moreover, the right at the threshold, even to pursue claims in situations where it might well be thought that the case was unsustainable and the result likely to be negative, is, of course, to get us right back to where we were debating this a couple of days ago. What the opposition has made clear is that it wants different rules for white people in this country and for black people, and that simply is not a sustainable proposition.


Senator PARER —Mr President, I ask a supplementary question. I understand exactly what the minister is saying. But in a related comment today, Mr John White of the New South Wales Farmers' Association said:

The present public funding of Aboriginal land claimants, while defendants with limited resources remain unassisted, is grossly inequitable and will inevitably lead to an avalanche of claims funded by the public . . .

What does the government intend to do to deter the frivolous ambit claims? The minister's response dealt with what one does after one gets to court. If public funding is to be made for frivolous claims, will public funding also be provided for those people who are defending frivolous claims?


Senator GARETH EVANS —There is really no other interpretation that one can glean from that question other than that the opposition does want a completely separate system of law to apply for black Australians as compared with everybody else. Of course, everyone contemplating litigation of any kind is subject to rules about frivolous and vexatious claims in court procedures. To help the process of determining what is a frivolous, vexatious or manifestly unsustainable claim that will waste everybody's time, we have gone further in spelling out some of the criteria which should be taken into account in a registration process.

  If one wants to go further, the kind of criteria I have just indicated will be taken into account. The only further direction that we could take is to rule out absolutely the possibility of Aboriginal litigants bringing claims at all. This government is not going to go down a path which says, `If you are white, you can litigate—if you think you have got a prima facie case, however quixotic that might be. But if you are black, you cannot'. We are not going to be a party to that kind of discrimination and we never will.