DISSENTING REPORT BY
THE AUSTRALIAN GREENS
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.
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.
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.
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
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
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
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
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.
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
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.
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.
The amendment in the Bill is a simple reform to assist claimants, the
intent of which has broad support.
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.
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
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
The Bill also provides for the Tribunal to make profit sharing
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.
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.
The amendments in the Bill go directly to addressing this asymmetry.
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.
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.
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.
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.
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.
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,
Greens spokesperson on
Aboriginal and Torres Strait
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