Chapter 3 Future reform of native title
3.1
Submissions to the inquiry raised a number of wider concerns about the
native title system. Therefore, in addition to reviewing the Native Title
Amendment Bill 2012, the Committee decided to conduct a roundtable to canvass
these concerns.
3.2
This chapter reports on the discussions at the roundtable held in Sydney
on 15 February 2013. The Committee does not necessarily endorse nor concur with
these views; however, it has been clear through the course of this inquiry that
there is a need for the issues below to be brought to the attention of the
Government.
3.3
The issues reported here are indicative of those discussed during the
day and it is suggested that interested parties refer to the full transcript of
discussions.
Good faith negotiation
3.4
There is general consensus amongst all stakeholders that the goal in
native title claims is that they should be resolved as quickly and as equitably
as possible, based on good faith negotiation. However, there is a divergence of
opinion about whether ‘good faith’ objectives are working and if they need to
be codified in legislative form.
3.5
The National Farmers Federation (NFF) stated:
The National Farmers Federation has always been supportive of
this system and has always been concerned that everything takes so long, but at
last in the last 12 to 18 months we have seen a substantial improvement in the
settlement of native title claims. For instance—I am talking about pastoral
native title claims—in the years 2010-11 and 2011-12, 49 claims were settled,
but in the six months from 1 July to 31 December 2012, 18 were settled. That is
a big increase in number. It is estimated that in this current 2013 calendar
year there will be 79 pastoral claims settled. That to me is improvement and
shows that, with what we are currently doing and the system we currently have
in place, good faith must be working.[1]
3.6
Similarly, mining industry representatives expressed a strong desire to
participate in a more equitable system. The Chamber of Minerals and Energy (CME)
noted:
CME members are supportive of the objective stated by the
Commonwealth government that they want to create a more efficient native title
system. We fully support that objective. Our industry members have expertise in
the native title regime and the future act regime and the negotiation in good
faith regime. We would like the opportunity to be involved in more extensive
discussions about what is working, what is not working and what needs to be
changed. We have heard from people around the table today that there are very
differing views on the effectiveness of the current future act regime and the
negotiation in good faith regime. We have heard various reasons as to why that
may be case. It indicates, however, that there is a need for further discussion
around this issue. People are not united on whether or not there needs to be
change to this regime. That is significant. We should not proceed with
something if we do not understand what we are actually trying to fix in the
first instance.[2]
3.7
The Minerals Council of Australia (MCA) noted that:
We do however recognise the value of greater clarity in
relation to the application of the good faith provisions, and in that vein for
the past four years the Minerals Council of Australia has offered to work collaboratively
with government and the National Native Title Council to develop some guidance
on how negotiation in good faith could apply.[3]
3.8
The Aboriginal and Torres Strait Islander Commissioner noted that the practical
definition of ‘good faith’ was not well understood:
The second principle is the principle of our right to
participate in decisions that affect us underpinned by good faith and the
concept of free, prior and informed consent. I know that when the declaration
was being drafted the concept of free, prior and informed consent scared lots
of people. They talked about it being a right of veto. We do not know about
this stuff. It is a global document we are talking, and we struggle to work out
what we mean by free, prior and informed consent. Is it a right of veto and how
does it work? We are proposing the Human Rights Commission along with congress
to hold a series of dialogues around the country over the next 18 months to
work out what this means.[4]
3.9
Others argued that the good faith obligation was not working and this
was leading to inequitable outcomes. Michael Owens noted:
…particularly the obligations to negotiate in good faith. I
have heard other people here talk about trench warfare and that it no longer
exists. I am here to tell you that it does exist. I am here to tell you quite
clearly that particularly in Queensland, which is my area of experience, trench
warfare is alive and well. The good faith obligation is not working. … I think
the fundamental thing that you have to understand—and this is where good faith
has been let down—is that there was no legislative intent set out in the
legislation, the Native Title Act, originally. What is good faith? What did
parliament mean by that?[5]
Funding issues
3.10
A number of funding issues were raised, including the withdrawal of
Commonwealth assistance to pastoralists and to local government for responding
to native title claims.[6]
3.11
The Attorney General’s Department noted that:
Can I firstly say that, of course, priority for funding is a
matter for government. The government takes the view in this particular
instance that there has been a significant amount of funding provided for a
very long time in this space. The government's view is that much of the unique
law and significant questions that need to be resolved have been resolved in
native title. We have heard around the table that native title has now become
very much a part of business as usual for organisations. I should point out
that we have very good relations with John and his organisation, and we very
much respect the work they do; but government took the view that it needed to
make savings in this space. It was not just this scheme that has been reduced.
As a result, it is targeting funding in a different way. It believes, as I say,
that most critical issues in relation to new areas of the law have been
resolved; that native title is now a question of business as usual for parties;
and that it was appropriate, in those circumstances, where there are other
priorities for spending, where reductions have been made.[7]
3.12
The NFF argued that the cessation of funding will lengthen claim
processes:
The other thing I have to say is that 28 February is a very
important day for native title from pastoralists' point of view. The current
system is going to fall apart on 28 February, because that is as long as you
can go before the current lawyers have to say, 'We cannot represent anyone
anymore,' and then the pastoralists have to go and find their own lawyers. So
on 28 February, believe me, if we do not have some funding to keep going, I
think native title settlement of claims is just going to go down and down and
down.[8]
3.13
Concerns were raised about levels of funding for native title
representative bodies, The National Congress of Australia’s First Peoples
argued:
The resources available to Aboriginal and Torres Strait
Islander people to deal with native title both before determination is made and
after determination is made are insufficient. Just to talk about the
'afterwards', the holding of the title, the management of the title and the
interests, go to the prescribed body corporates, but there is no basis on which
these prescribed body corporates, PBCs, are able to function and operate unless
there is some income derived from agreements—mining or some other activities.
But if there is not an income from agreements, if it is a recognition of rights
that apply without other stakeholders providing some investment, then the
traditional owners are left with this body forever, and future generations will
have the problem of how manage those interests. Now that it has become for
Aboriginal and Torres Strait Islander people a cash economy and society, that money
just does not come from nowhere. So funding to prescribed body corporates is
one of the areas that funding is required for.[9]
3.14
The onus of proof for claimants to establish ongoing connection to land (which
is discussed in the following section) was put forward as a further reason for the
need for ongoing funding:
Because we have to go through all these levels of proof, we
need a level of funding for this sort of research that we have to do to run
claims. From the Yamatji Marlpa point of view, we would not probably survive as
a representative body if not for funding from other sources other than FaHCSIA
such as money from proponents et cetera.[10]
Onus of proof for ongoing connection to land
3.15
As an option for future reform, native title interest groups proposed
reversing the onus of proof which currently requires claimants to prove ongoing
connection to land in the determination of native title. The Aboriginal and
Torres Strait Islander Social Justice Commissioner noted:
In my experience with native title, if there is one thing
that causes the angst in our communities, it is connection reports. That is why
we think some of these amendments do not go far enough. We think we should be
looking at reversing the onus of proof on connection.[11]
3.16
The National Congress of Australia’s First Peoples agreed, stating:
… we believe that an important element that should have been
included has not been included in the bill. We would still like it to be
included, and that is where the onus of proof is put upon the extinguishment of
native title, not upon the Aboriginal and Torres Strait Islander peoples having
to prove native title.[12]
3.17
The Australian Institute of Aboriginal and Torres Strait Islander
Studies (AIATSIS) noted that the reversal of the onus of proof needed to be
approached carefully:
We need to be really careful about what the term 'reversing
the onus of proof' means. What we want is a lower burden on Indigenous people
in relation to proof that allows for the establishment of the right people … without
undue burden in relation to historical grievances, and historical impacts. I
know of one state government who will, for example, with the greatest
intentions, provide a timeline of all of the events they think might have
interrupted a group's connection with land and ask that they prove how they
survived. We should not need to go through that process to establish current
rights to country.[13]
3.18
The Association of Mining and Exploration Companies (AMEC) questioned
whether this issue was really about the onus of proof or presumption of
continuity:
It is not necessarily about the reversal of the onus of
proof. They are looking at the issue of a presumption of continuity. From a
technical point of view—though I am certainly not a lawyer involved with this
space—I understand that to be a slightly different thing.[14]
3.19
Nonetheless, the onus to prove connection is considered burdensome, as AIATSIS
noted:
Picking up on similar themes with regard to reforming the
requirements of proof, it was never the intention of the legislature that
section 223 of the act should become such a cumbersome and difficult process.
We have what has become a judicial nightmare of test after test after test to
prove connection to country. We have a word that you might think has an
ordinary meaning, the word 'traditional', which now has a series of four tests
attached to it about what traditional means, including having to prove
generation by generation an ongoing, vibrant system of native title. That does
not mean being able to make presumptions of continuity back, it actually means
being able to show a connection to country right through each of those
generations.[15]
3.20
Mr Matthew Storey from the National Native Title Council (NNTC) claimed
that onus of proof contributes to the slowing down of claims:
There are three things that slow down claims. The two main
things that slow down claims are the requirement to analyse the historical
extinguishment data, collecting tenure histories, and the requirement to
analyse traditional connection, the anthropological reports, and the logistics
of the claims themselves. Some of the material, like section 47C, can greatly
assist in the extinguishment tenure area. A rebuttable presumption greatly
assists in the other. Those sorts of factors are the measures that we could do
that would greatly speed up resolution of the claims process.[16]
Power imbalances
3.21
Alongside the onus of proof which rests with native title claimants,
several witnesses claimed that there are significant power imbalances in the
present system, particularly in the processes of negotiation between native
title claimants and mining and exploration companies.
3.22
The MCA acknowledged this and the contribution mining companies make to
rectifying negotiation imbalances:
…we would also note that we consider that in reviewing the
native title system and the Native Title Act, we really need to focus on the
system as a whole. The question about whether we have symmetrical outcomes
being achieved, we consider, potentially relates more to the imbalance in the
resourcing of parties in negotiations—an obligation that currently is largely
met by mining companies in those negotiations rather than through independent
funding arrangements. This potentially brings into question both the
effectiveness and the independence of those negotiations for some stakeholders.[17]
3.23
A representative of Just Us Lawyers argued that the power imbalances are
the most important issue to be addressed:
I think if the committee really want to do something to
address that, it is not about tinkering with the good faith negotiation
provisions. You have to go further and look at what you can do to address power
imbalance. With the consumer code is often the case where you have a power
imbalance, where coercion and those sorts of things are outlawed. Those sorts
of things are practical things that could be done to bring the relevant parties
to the negotiation table.[18]
International conventions
3.24
It was suggested that Australia’s approach to native title should be
guided by the United Nations Declaration on the Rights of Indigenous Peoples,
and that this is fundamental to achieving an equitable native title process.[19]
3.25
The Aboriginal and Torres Strait Islander Social Justice Commissioner
said:
Speaking from an Aboriginal perspective, it is important to
recognise that the issues that bother you also bother us. I said when I began
in the position of Aboriginal and Torres Strait Islander Social Justice
Commissioner that the declaration on the rights of Indigenous people will guide
all the work that I do. In our submission we recommend that we need to ensure
the native title legislation is consistent with our human rights as outlined in
that declaration. For us in the Human Rights Commission, it means making the
native title legislation consistent with what we consider to be the important
principle of the declaration: self-determination.[20]
3.26
The National Congress of Australia’s First Peoples supported the
Commissioner’s argument:
I just wanted to take the opportunity to read article 27 of
the Declaration on the Rights of Indigenous Peoples, which says:
States shall establish and implement, in conjunction with
indigenous peoples concerned, a fair, independent, impartial, open and
transparent process, giving due recognition to indigenous peoples’ laws,
traditions, customs and land tenure systems, to recognize and adjudicate the
rights of indigenous peoples pertaining to their lands, territories and
resources, …
That is what we are discussing in this roundtable.
I do not want to harp on this, but I just go back to the fact
that the Native Title Act originally set up a tribunal to arbitrate on this
matter, and then with the Brandy decision in the High Court the powers of the
tribunal were lost back to the Federal Court. It replaced the concept of land
councils, which was a concept of Aboriginal and Torres Strait Islander people,
with the concept of native title bodies—services and procedures which are not
representative of the traditional owners but in fact are service organisations
to the traditional owners. Again, as people around the table have already said,
these involve huge costs in relation to how people should appear before those
courses.
We think this is a long way away from 'fair, independent,
impartial, open and transparent processes'.[21]
3.27
ANTaR noted that:
We believe that reforms should not be implemented on an
incremental or piecemeal basis given the enormous complexity of this
legislation and the quite fundamental questions at stake. That is why we
support the Social Justice Commissioner's call for a comprehensive inquiry and
review of the native title process to fully realise the potential of the native
title system and to achieve full compliance with the United Nations Declaration
on the Rights of Indigenous Peoples.[22]
3.28
Several others argued that current native title legislation is
inconsistent with the United Nations Declaration on the Rights of Indigenous
Peoples and that a full review was necessary to ensure that Australia was
meeting its international obligations to this Declaration.[23]
Consultation and ongoing dialogue
3.29
The issues raised in the roundtable pointed to the need for ongoing
dialogue between all levels of government and stakeholders. A number of
participants argued that further steps need to be taken to reform the entire native
title system to improve outcomes.
3.30
The Committee received a range of submissions calling for the need for a
comprehensive review of the native title system. Particular emphasis was placed
on the need to ensure an equitable and sustainable balance will be struck
between native title rights and interests and those of mining and exploration
companies. In particular, Professor Jon Altman and Francis Markham provided the
Committee with mapping to demonstrate the competing values, rights and
interests over land in Australia. Professor Altman and Mr Markham commented
that:
Given the extent of Indigenous land holdings it is highly
likely that in future more mining will occur on Indigenous lands, given that on
native title lands even with exclusive possession native title groups cannot veto
mining and given Australia’s current high economic dependence on exports of
minerals. However, just how much is hard to predict.[24]
3.31
The Australian Human Rights Commission noted that many of the major
stakeholders agreed for ‘the need to explore policy and governance reforms to
maximise economic benefits arising from native title and mining development
opportunities’.[25]
3.32
The Association of Mining and Exploration Companies expressed concern
about the limited consultation in regards to this bill:
We are also concerned about the limited consultation process
to date, contrary to what my colleague has just indicated from the
Attorney-General's Department. I do have a chronological record of the limited
consultation that we have had, which also included a period of some 12 months
where we did not hear anything.
…
We are also concerned about any real strategy. You will have
read in our submission that we referred to the apparent intention of the
Commonwealth's amendments to align with the Commonwealth government native
title strategy. We have tried to locate that particular strategy and understand
it does not publicly exist. In fact, we have recently been told—again by the
Attorney-General's Department—that it is not in one single document, so the
question is obviously asked: does it exist and, if it does, what is the
strategy?[26]
3.33
Fortescue Metals Group, supported by the WA Chamber of Minerals and
Energy, raised concerns about the adequacy of consultation on the issue of
compensation:
What I would say is that there is a lot more consultation to
be done on compensation if that is to be considered. It is a very complicated
issue. There are differing philosophical points of view on how compensation is
most appropriately to be provided. There are different views on whether compensation
is most beneficial, in an intergenerational sense, when it is provided in cash
or in education, jobs, business development and all of those other sorts of
things. That will keep going regardless. I have also heard it said by very
senior people in the very large companies that there is more money sitting
around now in charitable trusts than could ever be spent in the next 100 years
by the relatively small numbers of people that you are talking about in the
Pilbara. That will only be compounded. The quantum of cash is astronomical. You
were handed something earlier. We are talking about, literally, hundreds of
millions of dollars a year flowing to Aboriginal groups from the major mining
companies, and I think there is a question around the appropriateness of that.
But what I would say is that this area of compensation and also the area of
reversal of the onus of proof is not in the exposure draft, and I think there
is a great deal more thought and great deal more consultation to be done on
those two particular areas before any steps are taken.[27]
3.34
As noted above, there were some calls for the native title system to be
overhauled and it was argued that piecemeal or isolated changes to the system
would not necessarily result in improved outcomes.
3.35
Participants acknowledged the divergence of views around the table and
it was apparent that there a strong desire for an ongoing, open dialogue to
continue to improve the native title system.
3.36
Summarising the views of stakeholders at the roundtable, Michelle
Patterson from AIATSIS posed the question:
what is it that we could do to bring these issues to an
agreeable settlement around the table and that will deliver a fairness and
patent equity in that system which we are not seeing at the moment?[28]
Committee comment
3.37
The Committee notes the legislative reforms currently underway will
improve the operation of native title in the short to medium term. The Committee
appreciates the goodwill amongst stakeholders and the genuine desire to bring
clarity, certainty and equity to the native title process.
3.38
The Committee considers that a more comprehensive and holistic review of
native title is required for the longer term, and that there is a critical need
to engage stakeholders early in this consultative process.
3.39
Accordingly it is recommended that the Minister for Indigenous Affairs
refer to this Committee an inquiry into the operation of native title. The
inquiry should canvas areas for future reform and appropriate processes to
engage stakeholders in the development of a robust and equitable system that
delivers sustainable benefits to Indigenous communities and certainty to
industry. Such an inquiry could be undertaken at the commencement of the 44th
Parliament.
|
Recommendation 2 |
| |
The Committee recommends that the Minister for Indigenous
Affairs, at the commencement of the 44th Parliament, refer to the
Standing Committee on Aboriginal and Torres Strait Islander Affairs a
comprehensive inquiry into the native title system. |
Shayne Neumann MP
Chair
March 2013