Native Title Amendment Bill: update and some more generic commentary

'We have strict statutes and most biting laws' 

Measure for Measure I, iii, 19

In a recent post (link here), I made mention of the proposed amendment to the Native Title Act following the McGlade decision in the Federal Court.

I thought it might be worth providing a short and largely non-technical layman’s update, and to provide some commentary on the policymaking process.

The Bill is being considered by the Senate Legal and Constitutional Affairs legislation committee, a public hearing was held in Brisbane earlier this week, and their report on the Bill will shortly be tabled. This will then clear the way for the Senate to consider the Bill further.

The Native Title Act is necessarily complex, not least because it creates processes for facilitating dealings in land which has been claimed, but not yet determined as native title, largely through mechanisms termed ILUAs, or Indigenous Land Use Agreements.

The McGlade case essentially held that The Native Title Act requires that a category of ILUAs required unanimous consent by the applicants, overturning a previous decision of the Federal Court (the Bygraves decision). The McGlade decision thus throws into doubt the potential validity of a significant number of previously finalised ILUAs, and going forward, creates a situation which gives an effective veto over the terms of an ILUA to any one of the applicants, a situation which is inherently unstable, and creates significant disincentives for developers to begin negotiations on a proposal to use land under claim.  

The potential problem had been raised before both by Indigenous interests and less directly by the 2015 Australian Law Reform Commission Report titled ‘Connection to Country: Review of the Native Title Act’ (link here). Despite this, there had been no response by the Federal Government prior to the Federal Court decision.

Following the Federal Court decision on 2 February 2017, the Commonwealth Government moved swiftly to draft and introduce an amendment bill on 15 February 2017. The reason for swift legislative response can be traced to the concerns from state governments and business interests regarding the potential adverse consequences of the decision on past ILUAs and the potential disincentives on negotiating future ILUAs given the substantial uncertainty regarding the likelihood that Indigenous consent would be able to be obtained.

The Senate Committee is due to finalise its report today (after seeking a short extension form the Senate last week: link here). I expect that the Government members will endorse the Government’s Bill; Labor and the Greens may call for a more extensive inquiry which would allow greater consultation. In any case, speculation is not particularly productive as we will shortly have a report.

Rather than dwell solely on the merits or otherwise of the Committee’s approach, I wanted to make some more general observations regarding the state of play in the Indigenous policy domain.

First, at the risk of stating the obvious, the Indigenous policy domain and particularly native title is one of the most complex areas of public policy.

Second, the variety of submissions from Indigenous interests to the Committee, encompassing a number in support of the Bill, a number opposed to the Bill and a number in the middle, points to the increasing variability in views and approaches from within the Indigenous world. This variability has probably always been the case but it is increasingly in the open. Certainly Indigenous interests have always been extremely heterogeneous in nature notwithstanding the apparent commonalities in their histories and circumstances.

Third, in a world where there is a diversity of legitimate and informed Indigenous viewpoints, the notion of consultation, at least insofar as it is used by governments to justify particular actions or decisions, needs to be reconsidered and questioned. Consultation is still important in explaining government motivations, and the rationale for actions, and hopefully in talking on board points of view from outside the purview of the bureaucracy and government, but it is less useful as a means of justifying (or indeed criticising) particular policy actions or decisions.

Fourth, the transcript of the Committee’s hearing on the Bill is instructive (link here). While the ostensible purpose of hearings such as this is to assist the Committee to understand the issues involved and the  implications which flow from the proposed legislative amendment, there is also an element of ‘going through the motions’ or to put it more positively, being seen to consult.

My reaction to reading of the transcript was quite positive; I felt that all participating Senators did an excellent job in drawing out issues and trying to understand what was involved. Nevertheless, it was also apparent that most participating Senators have limited understanding of the complex interactions between various provisions in the Native Title Act (this is not a criticism, but a reflection of the fact that members of parliament must deal with issues from across the policy spectrum), and ultimately will be forming a view in relation to the Bill based on a range of considerations, not all of which are raised in or evident from the Hearing.

There is a sense in which this is inevitable and some might argue it was ever thus. Nevertheless, there is a persuasive argument for injecting greater technical capacity into the operations of parliamentary committees. An idea I favour is the potential use of an expert akin to a Counsel Assisting in a royal commission, so that the issues which are at the nub of the proposed legislation are drawn more clearly, made more transparent, and subject to greater testing. This would have implications for those making submissions as they would be subject to a level of cross-examination, but this seems to me to be a good thing.

A fifth issue which implicitly emerged in some Indigenous groups’ submissions, but not in others, is the deeper question of the fundamental nature of native title tenure and what it should look like going forward. In essence, this goes to the largely nascent debate about the importance of inalienable and communal title versus notions of alienability and individuation.

These issues are complicated by the diversity of circumstances across the nation, with some groups seeking to maximise commercial opportunities from their land whereas others seek to emphasise or prioritise more traditional ways of engaging with ’country’. Clearly, Indigenous groups’ views about their country will change over time, and ought not be cemented into some archaic past. But nor should more traditional groups be pressured to ‘give up’ their beliefs about ways of engaging with country.

My own view is that while it would be desirable for Indigenous interests to themselves be more open about the diversity of fundamental perspectives in relation to land across different groups, there is a case for public policymakers to temper the headlong rush toward alienability and individuation of tenure.

In conclusion, the pace of change in Australia, driven by globalisation, the primacy of markets and economic development, runs the risk of rolling over those Indigenous groups who retain more traditional priorities. It is not that change should not occur, or that markets are somehow illegitimate, but rather is a plea for greater respect for the diverse circumstances of Indigenous Australians.

In particular, this requires a degree of compromise from governments and policymakers in devising and driving policy ‘reforms’. The reality is that governments do need to take decisions and implement policy, but there is a need for greater sophistication in exploring the potential consequences of particular policy approaches.

To take an example from history, in 15^th century Spain, the Inquisition required Jews to convert to Catholicism, and demonstrate the bona fides of their conversion in various ways under pain of death. Today we (almost) universally reject such policy approaches. Yet we often implicitly adopt quite similar assumptions to those of the Spanish Catholics in relation to Indigenous policy: there is often evident a sense of policy arrogance that ‘we know best’, and by implication, that Indigenous citizens must change their fundamental beliefs, including about how to manage their land, for their own good.

My own view is that the Government’s proposed Amendment Bill, with its focus on majority votes as a default where Indigenous applicants cannot or do not adopt an alternative decision making method, is an example of this sort of policy arrogance. It opens a pathway for the undermining of communal decision-making over country, and is thus potentially a challenge to fundamental values at the core of native title tenure.

The fact that the Government’s motives are well intentioned, and aimed at remedying an obvious flaw in the current institutional framework, merely serves to demonstrate how complex the policymaker’s task is. Good policy in the Indigenous policy domain must be both effective and workable, but also respectful of the diversity of Indigenous aspirations and concerns. The Government’s proposals in my view pass the first test, but not the second.