House of Representatives Speech- Native Title Amendment Bill 2009

Since the 1992 decision of the High Court in the Mabo case, it has been understood that the common law of Australia recognises a form of native title.

Since the 1992 decision of the High Court in the Mabo case, it has been understood that the common law of Australia recognises a form of native title. The Native Title Act, passed in 1993, accepts the High Court’s conclusion from the case of Mabo and Queensland No. 2, from which I quote:

The common law of Australia recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws or customs, to their traditional lands.

The Mabo decision and the Native Title Act passed in 1993 marked a fundamental shift in the place of Indigenous people in our nation. The shift was a long time coming, the decision of the High Court was a long time coming and the legislation was something that the nation had waited a long time for, but they offered hope of full recognition of and status for Indigenous people.

Sixteen years on, that hope has not been fully realised. I do not want to recite the tortuous history of reviews, inquiries and amendments to the native title legislation but to record the fact that, 16 years on, there remain more than 450 unresolved native title claims, according to the last published report of the Native Title Tribunal. On present estimates it may take another 30 years to resolve the native title claims lodged to this time. Millions of dollars and countless hours of the time and effort of claimants, of lawyers, of judges and of tribunals have been spent in attempts to resolve native title claims. I make that comment with the greatest of respect to all those who have devoted their efforts and their time to this endeavour. Perhaps most sadly, Aboriginal and Torres Strait Islander claimants have died before their claims could be resolved, and I fear that more such claimants will die before their claims can be resolved.

This Native Title Amendment Bill 2009 contains amendments to the Native Title Act which are aimed at speeding up the claims process. This aim reflects Labor’s commitment to Indigenous people and is completely consistent with the explicit intention of the Native Title Act to recognise, support and protect native title. This aim is also consistent with the government’s recent confirmation of Australia’s support for the Declaration on the Rights of Indigenous Peoples, articles 25 to 32 of which provide for rights to maintain traditional connections to land. Improving the Native Title Act gives better effect to those rights as well.

I want to note two key aspects of this bill, those being the provisions dealing with the role of the Federal Court in mediation processes and the provisions applying new procedures in the Evidence Act to evidence given by Aboriginal and Torres Strait Islander people—specifically, proposed new section 214. The proposed new mediation processes arise from a review conducted by Mr Graham Hiley QC and Dr Ken Levy in March 2006. The two reviewers disagreed on whether the National Native Title Tribunal or the Federal Court should have ultimate control of native title dispute resolution processes, and made separate recommendations in their March 2006 report.

The former government elected to implement Dr Levy’s recommendation to give exclusive control of mediation to the National Native Title Tribunal, with increased powers. This recommendation and the 2007 amendments which were based on that recommendation were widely criticised at the time. There were many submissions to an inquiry that was conducted by the Senate Standing Committee on Legal and Constitutional Affairs, and some of those submissions—probably a majority of them—noted that the mediation record of the National Native Title Tribunal was a poor one. Indeed, the report of Mr Hiley and Dr Levy noted that, as at January 2006, some 76 per cent of mediations in the National Native Title Tribunal had been going for more than three years and that just under 48 per cent had been going for more than five years, which might suggest that part of the problem up to that time was the way in which mediations were being conducted by the National Native Title Tribunal.

Labor senators pointed out at the time that the proposed expansion of the tribunal’s powers would conflate the National Native Title Tribunal’s role as a mediator with determinative quasi-judicial functions. The Federal Court offered some comments as well at the time that the Howard government’s proposals would create a confusion of the mediation role of the National Native Title Tribunal with other functions and might also involve in an unconstitutional manner the impermissible intrusion of executive power into the judicial power of the Commonwealth. The Federal Court also pointed out at the time, in 2007, that giving the National Native Title Tribunal greater directive powers was actually likely to generate additional delay and additional costs because National Native Title Tribunal directions would be subject to judicial review and would, of course, only be enforceable through processes in the Federal Court.

It needs to be said that the Aboriginal and Torres Strait Islander Social Justice Commissioner was also critical of the powers proposed by the former government to be conferred on the Native Title Tribunal, and one could add to that the voice of the National Farmers Federation, who said, and I quote from their submission at the time, ‘History shows that the Native Title Tribunal does not have a good track record in resolving mediation issues.’

One would think that, faced with that barrage of criticism for the proposals that it was considering, the former government might have thought again and perhaps reconsidered the kind of approach it was proposing to take, which was contrary to very direct recommendations made by Mr Graham Hiley QC, someone with arguably more experience than any other legal practitioner in Australia. I recall that Mr Graham Hiley QC was involved in the very first land claims made under the Aboriginal Land Rights (Northern Territory) Act of the Commonwealth, the claims under which commenced in 1977. Not only was Graham Hiley QC involved in very many of the claims made under the Northern Territory land rights act but he has continued to be involved in claims made under the Native Title Act throughout Australia ever since. Notwithstanding the criticism and notwithstanding the very clear recommendations made by Mr Hiley, the Howard government ploughed on with its amendments.

This government’s assessment of the procedures introduced is that they have not worked. Indeed, they have not worked to create an effective native title mediation process. This bill effectively adopts Mr Hiley’s recommendations from the 2006 review he participated in which give the Federal Court the central role in managing all native title claims. Graham Hiley QC showed considerable wisdom in the comments he made in his 2006 report. He said:

Just as other superior courts must have complete control over their own processes, I consider it essential that the Federal Court have complete control over all native title claims which have been brought before it (under the NTA), from the time of their commencement to the point of their ultimate determination.

He went on to say:

The court is in the best position to case manage matters effectively …

I agree with the comments made by Graham Hiley QC. This bill will ensure that the full authority of the Federal Court can be brought to bear on the resolution of native title claims. The Native Title Tribunal will still have a role to play but the primary responsibility will rest with the court.

The proposed changes to procedure have been welcomed by native title practitioners, by the Law Council of Australia, by the Northern Territory government, by the Aboriginal and Torres Strait Islander Social Justice Commissioner and by others. All of the submissions to the Senate Standing Committee on Legal and Constitutional Affairs, which I understand is to report today, stressed the importance of continuing to focus on the end result of achieving prompt and just resolution of the several hundred outstanding claims.

The other matter in this bill I want to note is the proposed new section 214, which will allow provisions of the Commonwealth Evidence Act to apply to native title claims. Changes made last year under the Evidence Amendment Act 2008 will apply generally in federal courts to evidence given by Aboriginal and Torres Strait Islander people. Particularly in the context of native title claims, those procedures will make it easier for a court to receive evidence about Indigenous traditional laws and customs.

I can speak from some experience to say that the application of standard rules of evidence, particularly rules against hearsay, even in the modified form in which they appear in the Commonwealth Evidence Act, has been difficult when evidence is being taken from Indigenous people. It is appropriate that a discretion be given to the court to manage the appropriate means of receipt of such evidence. It is equally appropriate that, as is proposed in this bill, it be possible for claims that have already been commenced and are already in process under the Native Title Act to take advantage of those new procedures in the Commonwealth Evidence Act, as they are conducted through the Federal Court.

I have not spoken about all of the reforms proposed by this legislation, but the reforms in the bill could be seen as relatively modest. I say that because much larger reforms have been proposed in recent years, including proposals made last year by the Chief Justice of the High Court of Australia, Robert French. The changes that Justice French discussed included creating presumptions of connection and continuity of connection which would shift the burden of proof to those seeking to disprove connection to land. Another suggestion of the Chief Justice was to allow a state and an applicant for native title to agree to disregard extinguishment of title. These suggestions are worthy of consideration, as are others made by the Human Rights Commission in its submission to the most recent inquiry on this bill by the Senate Standing Committee on Legal and Constitutional Affairs.

I am confident that the Labor government will monitor the effect of the reforms made by this bill and will continue to examine the operation of the native title process. Sixteen years after the enactment of the Native Title Act, it has to be said that our nation has not realised the high hopes of that time. We must continue to strive towards the aim of recognition of native title, which is a beginning of reconciliation, not the end result. If further reforms are necessary, I am confident Labor will undertake them. I commend the bill to the House.