ADDITIONAL COMMENTS BY THE AUSTRALIAN GREENS

1.1        The Australian Greens welcome the amendments that this Bill makes to the Native Title Act 1993 (Cth) (Native Title Act), but do not believe this is enough to resolve the significant problems in the operation of native title in Australia. There is a need to do more to address the failure of the Native Title Act and deliver on its initial intent to provide meaningful rights and a basis for economic and community development to Aboriginal and Torres Strait Islander people.

1.2        While we are supportive of the recommendations in the majority committee report, and believe these will improve the Native Title Act, these additional comments outline how the Australian Greens believe the Bill should be further improved as well as clarifying our position with regards to the inclusion of case law into the good faith provisions.

1.3        With regards to the recommendation that the government reconsider new paragraph 31A(2)(a) in item 6 of Schedule 2 of the Bill, with a view to incorporating the Njamal Indicia set out in Western Australia v Taylor (1996) 134 FLR 211 as the good faith negotiation criteria to be included in the Native Title Act, the
Australian Greens support incorporating the case law criteria but not to the extent they fully replace the statutory criteria in the Bill. It is essential that the good faith provisions are robust, and while the evidence draws attention to the usefulness of the Njamal Indicia, the criteria should be more extensive than this case law alone and should build on the provisions in the Bill including the statutory criteria from the Fair Work Act 2009 (Cth). The Native Title (Reform) Amendment Bill (No. 1) 2012 introduced by the Australian Greens built on the Fair Work Act provisions to strengthen the good faith mechanisms in the Native Title Act and those clauses should be adopted in order to guarantee that negotiations are fair and that traditional owners have greater control over the negotiation process.

1.4        Similarly, our private member's Bill went further than this Bill with respect to disregarding extinguishment, and we believe that these provisions should be adopted in order to give greater scope to the principle of coexistence of native title rights.
The current breadth and permanence of the extinguishment of native title through the provisions of the Native Title Act is arguably unjustifiable, unnecessary and in breach of Australia's human rights obligations.

1.5        Finally, the Bill has not addressed the pressing need to reverse the onus of proof; a position supported by former Prime Minister Keating who has recognised this as a fundamental flaw of the laws he introduced and supported in the past by the now Chief Justice of the High Court, Justice French. The onus of proof on the claimant is a requirement that inherently disadvantages those who have experienced higher levels of dispossession and disconnection over the course of the last two centuries. The extremely high hurdle for Aboriginal people to prove their ongoing connection to the land means that native title claimants are dying before seeing their claims settled.

1.6        The Australian Greens would like to see an additional schedule which places the onus of proof onto the Government to disprove a claim, because in practice, the bar for recognition of these rights has been set too high, with the onus of proof of cultural continuity being placed on Aboriginal people and with evidence standards effectively mandating reliance on the written accounts of European colonists, denying the oral nature of Indigenous cultures.

Recommendation 1

1.7        That the Bill incorporates provisions reversing the onus of proof as provided for in the Native Title Amendment (Reform) Bill (No. 1) 2012 currently before the Senate.

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