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Thursday, 9 December 1993
Page: 4288


Senator KERNOT (Leader of the Australian Democrats) (4.15 p.m.) —Unlike many or in fact most bills that we debate in this chamber, the Native Title Bill has had a very long birth process. For at least a year, the Prime Minister (Mr Keating), after the High Court judgment, consulted with the states. I am one who criticised the exclusivity of that consultation.


Senator Panizza —He didn't consult with WA very much, and that's on the record.


Senator KERNOT —He did. Senator Panizza, prior to the breakdown in communications, every state government was extensively consulted in the year after the High Court judgment. It is not the Prime Minister's fault that those negotiations broke down later on. I criticised the Prime Minister for thinking that only the Prime Minister and state premiers had the right to have an input into the form and content of the native title legislation. We saw eventually that that commitment to consultation was extended to include greater discussions with the mining industry, the pastoral industry and, ultimately, with what has become known as the Aboriginal negotiating team.


Senator Panizza —Unelected ones.


Senator KERNOT —Well, ATSIC is not unelected. Senator Panizza has his own views about ATSIC, but ATSIC is the Aboriginal parliament of this nation.

  The ACTING DEPUTY PRESIDENT (Senator McKiernan)—Order! Senator Panizza, when you seek the call, I will give you the call at that time. I ask you to refrain from interjecting.


Senator KERNOT —I will go back to that point because an objection which is raised from time to time concerns the question of the legitimacy of the Aboriginal negotiating group, the fact that they are not elected. The point is that the opposition has not had the opportunity to be involved in the detail of the negotiation. I suspect that it does not even know the Aboriginal people who have been involved. The point of saying that is to define for the opposition who represents the Aboriginal negotiating team, because it does not appear to know. First and foremost, there is ATSIC. We have seen Lois O'Donoghue and the other commissioners at the press conferences and in the negotiations with the Prime Minister. These people are elected from the grass roots of the regional councils right through to the commissioners themselves.

  The second component of the negotiating group is those who represent the land councils and the third component at the beginning was some members from the Eva Valley working group. They were there; they are still there. They are now affectionately called the B team. The fact is they are still there and they are still part of the process. So it is very unfair to say that this loose coalition which we call the Aboriginal negotiating team is not representative or is not democratically representative. It is just not true.


Senator Vanstone —That is not what the Aboriginal communities say.


Senator KERNOT —Who is the opposition listening to in the Aboriginal communities? This is the big question which, again, we have to address.


Senator Vanstone —Senator Spindler was there.


Senator KERNOT —I tell Senator Vanstone this point—through you, Mr Acting Deputy President—because it is one that has been raised. I saw the witness list for those committee hearings. I noticed that Mr Michael Mansell, Mr Paul Coe and others who formed part of the same B team all lined up as individuals.


Senator Ferguson —The B team!


Senator KERNOT —I am using the term `B team' in the way that everybody is using it. It is not derogatory; we talked about that this morning. I think it is very misleading to infer that there is widespread dissatisfaction with what the Aboriginal negotiating team has in fact negotiated on this legislation. Members of that team are not saying that it is perfect. But they have said all along and clearly that the legislation is workable and that it represents a huge step forward—a bigger step than they have ever taken before, because in this country we have walked away from land rights debates time and time again. To say that there has not been sufficient consultation with Aboriginal groups because the people who have been involved are not representative is untrue and borders on the offensive. Mr Paul Coe wants the Prime Minister to negotiate a separate arrangement with 300 tribes. I think we have to ask ourselves: is that a possibility and is that a reasonable way to legislate? I personally do not believe it is.

  The second point I would like to make about the representative nature of the negotiating group and the comments that have been made about it is that it has a lot to do with Aboriginal politics. It has a lot to do with the way in which Aboriginal people are dealing with what I would call the transition from an old guard which is the same as any other group in Australia which uses its position and power in particular ways to advance its causes. There are new spokespeople, and those who have traditionally been spokespeople find it harder to accept that things have changed. That is a very human condition. I think the difficulty for all of us is knowing whom each of these people represents. I have confidence that they have all been heard. That is the important point—they have all been heard. We may not agree with everything they have said but they have been heard.


Senator Vanstone —We ignored the Eva Valley-Canberra meetings.


Senator KERNOT —People who have been to the Eva Valley-Canberra meetings have had their say. It is not only what happened at the Senate Standing Committee on Legal and Constitutional Affairs that counts; it is the individual representations which have been made to all of us—the Prime Minister, the National Farmers Federation and the like. While I think our Senate standing committees have an important role, they are not the only ones who hear the evidence.

  Senator Hill says that the Democrats were locked in before we even knew what the government's response was. What the opposition fails to appreciate is that we have been involved in the information channels that surround the debate on this bill. For example—Senator Macdonald is moving to his seat so that he can interject; what a surprise—I am a member of the Council for Aboriginal Reconciliation. That council has been briefed from day one on the negotiations that have been taking place with the states. The fact of the matter is that Mr Peter Nugent—the shadow minister for Aboriginal and Torres Strait Islander affairs—is also a member of that council. He has been in receipt of that information as well. It has been a tedious process, but it has been very helpful to know where the process has been at for the past 15 to 18 months.

  I have also, on behalf of the Democrats, been involved in the detailed discussions with the Aboriginal negotiating team, the representatives from the Eva Valley working group and—for want of a better name—the Aboriginal coalition or alliance that shares some of the concerns of the negotiating team and has some points of difference. I have been involved—I am glad that I have been—in discussions in the cabinet room with the Prime Minister and Senator Chamarette from the Greens. I contend that I speak from a position of having received information and communication. That is a far better starting point than one of ignorance and inherent bias.


Senator Vanstone —Would you like to clarify that?


Senator KERNOT —No.


Senator Vanstone —That has been going all the way through the debate, and it needs clarification.


Senator KERNOT —Senator Vanstone might ask that whatever I have said be clarified through the chair. When I am asked whether I will vote for or against the reference of this bill, I weigh up the competing elements of delay; the damage that can be done; the way in which the Premier of Western Australia has, in the last week, issued grants for 110 leases; the way in which Aboriginal people who happen to reside geographically in Western Australia are expected to have rights which are less than those of Aboriginal people who live anywhere else in Australia. I accept that the response to Mabo has to be a national response. I do not believe that Australia, as a nation, should be held hostage by one state.


Senator Ian Macdonald —It should have been a considered response.


Senator KERNOT —It is a considered response. It is one that has been considered for 18 months, which is a great deal longer than anything Senator Macdonald has had in his mind.


Senator Ian Macdonald —Did you hear any of the committee evidence?


Senator KERNOT —I have been involved in the committee report. When I weigh up the delay and the damage that can be done, when I look at the position of indigenous people in Western Australia, when I look at the way in which any further delay only adds to the unravelling of the goodwill and consensus that exist concerning this bill, when I look at the historic opportunity that it represents for Australia and for all Australians, when I consider my commitment to the reconciliation process and the way in which the opposition says that somehow magically we can separate reconciliation from the Native Title Bill because ownership of land is something that we like to think of as a tradeable commodity—and we do not have to take any acknowledgment of special attachment to land; that is something that can wait until we sort out who owns it—I do not believe that it is appropriate for to us to refer this bill to a Senate select committee. Given all the processes that this bill has been through, I do not think that one significant improvement could be made by sending this bill to a select committee for its consideration between now and February.

  I draw attention to one of our recommendations in the statement made by Senator Spindler. I guess this recommendation reflects our attitude to major legislation. It would probably be very appropriate to have a review of this legislation—the implementation of it, in particular—in, say, two years time. One of the mistakes we make here is that, once we pass something, we think that is the end of it. It has been appropriate to review the Family Law Act. The Democrats made sure there was a review of a Comcare bill.


Senator Ferguson —Don't set up a committee to do it.


Senator KERNOT —We do not need a select committee. We will have the whole of next week to debate this important bill. When, in that debate, we are beset by the technical and legal complexities, which are surmountable, we must not lose sight of what the Native Title Bill represents. It represents a historic opportunity. It represents the opportunity for us to legitimise the new partnership in this country and the shared ownership of the land of this country. It probably represents, given the opportunity of some of the people on this side of the chamber, the last opportunity for us to redress the disadvantage and the dispossession of the indigenous people of this country.