DISSENTING REPORT BY THE AUSTRALIAN GREENS

1.1        The Australian Greens welcome the debate and discussion the Native Title Amendment (Reform) Bill (Bill) has generated and the submissions made to the inquiry. The majority report outlines the key elements of the Bill and summarises much of the evidence to the committee.

1.2        There is no question in our minds that there is an urgent need for native title reform. We suggest, as we mentioned in the second reading speech and reiterated by evidence to this committee, that this Bill contains moderate reforms that have been well canvassed in the last few years as well as through the inquiry. The need for much more significant reform remains.

1.3        The native title system is not living up to its promise to Aboriginal and Torres Strait Islanders. There are serious and unnecessary barriers to traditional owners demonstrating their traditional connection to lands and waters. This Bill does not address all of those barriers but the evidence to the inquiry suggests that if the intentions behind the Bill were implemented some of those significant barriers would be reduced and a greater degree of fairness introduced into the native title system.

1.4        Evidence to the inquiry demonstrates a high degree of support for the intentions behind the amendments in the Bill, particularly from native title representative bodies but also from Australians for Native Title and Reconciliation, the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), the Law Council of Australia, and the Australian Human Rights Commission.

1.5        We acknowledge there are improvements that can be made to the drafting of certain clauses to ensure their intention is realised and we thank those witnesses who have provided suggestions on drafting through their evidence. This is what Senate committee inquiries are for, to review and suggest improvements if required.

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

1.6        The UNDRIP must find expression in Australian domestic law if it is to have any significance. The intent of the amendments in the Bill are to reflect the relevance of the principles found in the UNDRIP to the primary piece of Commonwealth legislation dealing with the rights of Aboriginal and Torres Strait Islanders to their traditional lands. If the UNDRIP is to have meaning in Australia it must have meaning to native title. This is not to say that we do not appreciate that there are difficulties in representing principles such as free, prior and informed consent in the native title system but, as commented on by witnesses, the amendments in the Bill will not in any way override the clear intentions expressed in the Native Title Act 1993 (Act) where those intentions are inconsistent with the principles in the UNDRIP. However, what the amendments will do is that where there is ambiguity in the meaning of the Act those parts are to be read consistently with the UNDRIP.

1.7        As noted in the majority report, AIATSIS commented that many of the substantive rights in the UNDRIP are not recognised or protected by native title. The principle of free, prior and informed consent is a fundamental principle of the UNDRIP not recognised in the Act. The insertion of an objects clause acknowledging the UNDRIP will not override the express intentions of the Act but will provide guidance to the operation of native title.

1.8        Despite the support given to the notion of having the UNDRIP reflected in the Act and, given the level of concern expressed about the manner of the amendment, we propose to remove those provisions from the Bill at this stage and to continue to work with relevant stakeholders to develop a better mechanism for reflecting the principles of the UNDRIP in the Act. We do not want the discussion about the UNDRIP to distract from the more urgent and substantive reforms provided for in the Bill. At a later date we will seek to further amend the Act to include reference to UNDRIP.

Key elements of the Bill

1.9        As mentioned by a number of witnesses, a key element of the Bill that, if implemented, would go a long way to re-balancing the native title system are the amendments providing a presumption of continuity. 

1.10      The effect of the current provisions is to require native title claimants to provide extensive anthropological reports and evidence to demonstrate connection. As commented on by Carolyn Tan from Yamatji Marlpa Aboriginal Corporation, the effect has meant many traditional owners are passing away before their claims are finalised due to this burden:

We have seen, unfortunately, elders pass away simply because there was not the funding to do all that research at the time. There are constant pressures of that kind. With the changes to the presumption and with the changes to proving continuity, it would be so much easier if we could spend less time anthropologically on that and just look at the current situation and not have to worry about proving it back to sovereignty.[1] 

1.11      The amendment in the Bill is a simple reform to assist claimants, the intent of which has broad support.

1.12      Another key element is the mechanism to allow prior extinguishment to be disregarded by agreement. While we recognise the limitation of the proposed amendments as it requires the goodwill of the government, it does provide an important means of expediting the resolution of claims and saving resources. Further, we note the government has been consulting on a more limited mechanism. We urge support for our broader proposal.

1.13      The other elements in the Bill are covered in the majority report. We do not believe there was sufficient evidence to suggest the amendments should not proceed although we note the suggestions for improving the drafting.

Right to negotiate

1.14      The amendments to the right to negotiate are equally as important. The government has been consulting on how to improve the good faith provisions but is yet to introduce any legislation to the Parliament. The amendments in the Bill have broad support from stakeholders representing native title claimants. Previous reforms to the right to negotiate have generally been contrary to the interests of claimants. The proposed amendments seek to rebalance the process by requiring a certain period of negotiations before the Tribunal can be asked for a determination and secondly by outlining the requirements of good faith in the legislation.

1.15      The Bill also provides for the Tribunal to make profit sharing arrangements.

1.16      As noted by Ms Tan from Yamatji Marlpa Aboriginal Corporation which engages in a significant amount of negotiations:

The right to negotiate was trumpeted as one of the key features of the Native Title Act; that was given in exchange for any veto. But that has been undermined completely, because the effect of that decision is that sometime before the application is made for a hearing—so sometime within the six-month period from the issuing of the section 29 notice to advertise the future act—there has to be a negotiation about something in good faith.[2] 

1.17      Further, as noted by Professor Jon Altman:

Over time it has emerged, mainly through the research of Ciaran O'Faircheallaigh, Tony Corbett and David Ritter, which have found that in almost all cases when agreement could not be reached, the decision of the arbitral body favoured miners. So a moral hazard has arisen whereby there is actually an incentive for mining companies not to negotiate in good faith and to delay proceedings because they will benefit from an arbitrated, rather than negotiated, agreement in situations where a speedy outcome is not required. This has meant that the power asymmetry already embedded in the original future acts regime has been exacerbated.[3]

1.18      The amendments in the Bill go directly to addressing this asymmetry.

Conclusion

1.19      The majority report suggests that the Bill represents a piece-meal approach to reform and that a holistic approach is to be preferred. At one level we agree with this except that no government has shown a willingness to engage in holistic reform of native title in the interests of traditional owners. In fact this government, as also acknowledged in the majority report, is considering targeted amendments which hardly represent a holistic approach.

1.20      The appeal to a holistic approach sounds more like an excuse to continue to do nothing and not address the glaring faults of the current system. The Australian Greens are well aware that there are more issues to be addressed in native title and indeed the broader issue of land rights for Aboriginal and Torres Strait Islanders. Our intention with this Bill, which we clearly articulated at the time of tabling it, is to make moderate changes that will nonetheless have significant beneficial outcomes for native title claimants. To not proceed with these amendments in favour of some expectation for more reform in the future is to put off into the never-never simple practical measures with immediate impact.

1.21      While important concerns with the actual drafting of the provisions of the Bill were provided to the inquiry, these are able to be remedied with the intention of the Bill being maintained. To dismiss further consideration of the Bill on the basis of drafting concerns is to deny Aboriginal and Torres Strait Islanders an opportunity to have remedied acknowledged flaws in the current system that operate against the interests of native title claimants.

1.22      On the verge of the 20th anniversary of the Mabo decision it is time to acknowledge that the promise of native title is not being met. The Native Title Act needs urgent reform to meet the objectives of native title which is of itself a very limited right to land and waters.

1.23      The Australian Greens urge the Parliament to not let this opportunity pass to address the growing injustice within the native title system, to listen to the native title claimants, human rights bodies and experienced lawyers on what needs to change as a matter of urgency.

Recommendations

1. That item 1 relating to the United Nations Declaration on the Rights of Indigenous People be removed from the current Bill for further consideration; and

2. That the Bill, incorporating revised drafting, be passed.

 

Senator Rachel Siewert
Australian Greens spokesperson on
Aboriginal and Torres Strait Islander Issues

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