Mr SETTER - 1995-02-22
In view of the Chief Minister's statement at his press conference this year, that 1995 would be a crunch year for native title, and in view of escalating concern about the process through the Native Title Tribunal, can the Chief Minister report on the arrangements between the Commonwealth and the Territory for the sharing of compensation and administrative costs arising from the Native Title Act?
Mr Bell: This is the legislation you supported, Rick. You put your hand up for this.
Mr SPEAKER: Order!
ANSWER
Mr Speaker, I certainly have not changed my attitude towards the Native Title Act and the implications that its administration has for Australia and for the Territory which is our particular concern. The matter of particular concern to us is what this legislation will mean to the Northern Territory financially. With the exception of Western Australia, the states and territories have been negotiating with the Commonwealth for the past year in an attempt to have it change its position and return to its starting point in relation to compensation. I regret to report that, since the Prime Minister backed away from his initial 100% offer, there has been little progress in convincing the Commonwealth to take its proper financial responsibility for this legislative imposition. The federal government has bestowed on us at present what the Americans would term an 'unfunded mandate'.
The current position is that the states and territories have sought to hold the Commonwealth to its 100% offer on compensation as a result of validating existing titles and a
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75% contribution to the administrative costs of the act. In response, the Commonwealth has offered 75% on compensation and 50% on administrative costs and has restricted its commitment on administrative expenses solely to the cost of establishing and running the arbitral body envisaged under the act. We are arguing that the administrative costs should extend to the administrative and legal costs that result from the Native Title Act. We are seeking an agreement on administrative costs that will run for 10 years with an automatic rollover for a further period. The Commonwealth has rejected these arguments and is currently offering a 6-year agreement with a review after 5 years.
A conservative estimate of the additional administrative and legal costs of the Native Title Act to the Territory is around $1.6m establishment and $3.8m ongoing each year. These costs are separate from the expense of establishing and running an arbitral tribunal in the Territory which, at this stage, we do not propose to do. We have amended Territory legislation in a cooperative spirit to ensure that the functions required by a Territory tribunal under the Native Title Act could be accommodated within existing tribunals. I am sure we have the support of opposition members for that sensible administrative approach. This means, however, that the present Commonwealth offer would not cover those expenses because it is restricted to setting up and running an arbitral body. Thus, we are penalised for trying to do the right thing.
In addition to these considerations, the Territory clearly is entitled to additional financial assistance above and beyond the current Commonwealth offer because of our special circumstances - namely, one-sixth of Australia's land mass, a small population and therefore a small financial base, and by far the highest percentage of Aboriginals in Australia residing within our borders. I would add that we have by far the highest percentage of traditionally living Aboriginals in Australia. In addition, we have what the other states do not - the existing financial burdens of the administration of the Land Rights Act. Accordingly, the Territory is advising the Commonwealth that we are not prepared to accept its offer at least until there is clarification in relation to administrative costs and we are seeking bilateral talks on a potentially onerous impost on Territorians. To give one example of the mean-spirited Commonwealth approach in relation to compensation and funding in general, I refer members to its attitude to administrative costs relating to the tribunal. I am advised that the Northern Territory government has spent $30 000 in bringing together information relating to land tenure history in respect of one native title claim. I know that $30 000 is not an enormous sum in governmental terms, but that relates to a single native title claim. We already have 6 in the Territory and no doubt there are many more to come.
Assembling this historical land tenure has costs. The Native Title Tribunal has requested that information from us and the Commonwealth maintains that we should recover our costs from the tribunal. Unfortunately, when we seek to provide the information to the tribunal and pass on the direct costs of approximately $7000 - we are trying to be reasonable about this - the tribunal states that the cost is too high and it does not want the material. No doubt, that is partly because it is not properly funded and, like the Commonwealth, it probably has little or no idea of the cost of land tenure searches. As we said at the beginning of this native title process, the Commonwealth has no concept of land administration. The Commonwealth does not administer land as a day-to-day function of government. The states do and they were alarmed from the day this process started about the huge financial and bureaucratic
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infrastructure that would need to be put in place in relation to native title under the current terms of the federal act. The federal government has no idea of what it has started.
No doubt, the upshot will be that the Northern Territory will be criticised if it does not pass on the material to the tribunal free of cost and, if it does, it will not be compensated for it. I am using a small example of the first claim before the tribunal in the Northern Territory. The Commonwealth continually criticises the states for cost shifting when in fact it has made cost shifting an art form. This is a classic example.
As was predicted some time ago, native title issues are rapidly descending into an administrative and legal quagmire - and not only those issues in the Northern Territory but also those in Western Australia and in Queensland in particular. The Prime Minister's refusal to legislate clearly in relation to pastoral leases with reservations is simply a classic example. The Prime Minister's assurance at the time the Native Title Act was before federal parliament was that pastoral leases extinguish native title and the huge portion of Australia that is under pastoral leases need not be worried about the act. We find today that those assurances are worthless. The Prime Minister, who personally handled the negotiations in respect of this legislation, does not understand the implications of what he has brought on this country.
I will be saying more on this matter next Tuesday when I propose to report to the Assembly following the Leaders' Forum meeting on Friday this week where I am sure the subject may well have some airing even though I do not believe it is officially on the agenda at present. The decision by French J, head of the Native Title Tribunal, in the Queensland case of the pastoral leases with the subsequently implied reservation, and his comments in relation to the federal legislation and its efficiencies have been the cause of very considerable alarm. I am sure Western Australia and Queensland will want to talk about it.
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Mr Bell: This is the legislation you supported, Rick. You put your hand up for this.
Mr SPEAKER: Order!
ANSWER
Mr Speaker, I certainly have not changed my attitude towards the Native Title Act and the implications that its administration has for Australia and for the Territory which is our particular concern. The matter of particular concern to us is what this legislation will mean to the Northern Territory financially. With the exception of Western Australia, the states and territories have been negotiating with the Commonwealth for the past year in an attempt to have it change its position and return to its starting point in relation to compensation. I regret to report that, since the Prime Minister backed away from his initial 100% offer, there has been little progress in convincing the Commonwealth to take its proper financial responsibility for this legislative imposition. The federal government has bestowed on us at present what the Americans would term an 'unfunded mandate'.
The current position is that the states and territories have sought to hold the Commonwealth to its 100% offer on compensation as a result of validating existing titles and a
Page 423
75% contribution to the administrative costs of the act. In response, the Commonwealth has offered 75% on compensation and 50% on administrative costs and has restricted its commitment on administrative expenses solely to the cost of establishing and running the arbitral body envisaged under the act. We are arguing that the administrative costs should extend to the administrative and legal costs that result from the Native Title Act. We are seeking an agreement on administrative costs that will run for 10 years with an automatic rollover for a further period. The Commonwealth has rejected these arguments and is currently offering a 6-year agreement with a review after 5 years.
A conservative estimate of the additional administrative and legal costs of the Native Title Act to the Territory is around $1.6m establishment and $3.8m ongoing each year. These costs are separate from the expense of establishing and running an arbitral tribunal in the Territory which, at this stage, we do not propose to do. We have amended Territory legislation in a cooperative spirit to ensure that the functions required by a Territory tribunal under the Native Title Act could be accommodated within existing tribunals. I am sure we have the support of opposition members for that sensible administrative approach. This means, however, that the present Commonwealth offer would not cover those expenses because it is restricted to setting up and running an arbitral body. Thus, we are penalised for trying to do the right thing.
In addition to these considerations, the Territory clearly is entitled to additional financial assistance above and beyond the current Commonwealth offer because of our special circumstances - namely, one-sixth of Australia's land mass, a small population and therefore a small financial base, and by far the highest percentage of Aboriginals in Australia residing within our borders. I would add that we have by far the highest percentage of traditionally living Aboriginals in Australia. In addition, we have what the other states do not - the existing financial burdens of the administration of the Land Rights Act. Accordingly, the Territory is advising the Commonwealth that we are not prepared to accept its offer at least until there is clarification in relation to administrative costs and we are seeking bilateral talks on a potentially onerous impost on Territorians. To give one example of the mean-spirited Commonwealth approach in relation to compensation and funding in general, I refer members to its attitude to administrative costs relating to the tribunal. I am advised that the Northern Territory government has spent $30 000 in bringing together information relating to land tenure history in respect of one native title claim. I know that $30 000 is not an enormous sum in governmental terms, but that relates to a single native title claim. We already have 6 in the Territory and no doubt there are many more to come.
Assembling this historical land tenure has costs. The Native Title Tribunal has requested that information from us and the Commonwealth maintains that we should recover our costs from the tribunal. Unfortunately, when we seek to provide the information to the tribunal and pass on the direct costs of approximately $7000 - we are trying to be reasonable about this - the tribunal states that the cost is too high and it does not want the material. No doubt, that is partly because it is not properly funded and, like the Commonwealth, it probably has little or no idea of the cost of land tenure searches. As we said at the beginning of this native title process, the Commonwealth has no concept of land administration. The Commonwealth does not administer land as a day-to-day function of government. The states do and they were alarmed from the day this process started about the huge financial and bureaucratic
Page 424
infrastructure that would need to be put in place in relation to native title under the current terms of the federal act. The federal government has no idea of what it has started.
No doubt, the upshot will be that the Northern Territory will be criticised if it does not pass on the material to the tribunal free of cost and, if it does, it will not be compensated for it. I am using a small example of the first claim before the tribunal in the Northern Territory. The Commonwealth continually criticises the states for cost shifting when in fact it has made cost shifting an art form. This is a classic example.
As was predicted some time ago, native title issues are rapidly descending into an administrative and legal quagmire - and not only those issues in the Northern Territory but also those in Western Australia and in Queensland in particular. The Prime Minister's refusal to legislate clearly in relation to pastoral leases with reservations is simply a classic example. The Prime Minister's assurance at the time the Native Title Act was before federal parliament was that pastoral leases extinguish native title and the huge portion of Australia that is under pastoral leases need not be worried about the act. We find today that those assurances are worthless. The Prime Minister, who personally handled the negotiations in respect of this legislation, does not understand the implications of what he has brought on this country.
I will be saying more on this matter next Tuesday when I propose to report to the Assembly following the Leaders' Forum meeting on Friday this week where I am sure the subject may well have some airing even though I do not believe it is officially on the agenda at present. The decision by French J, head of the Native Title Tribunal, in the Queensland case of the pastoral leases with the subsequently implied reservation, and his comments in relation to the federal legislation and its efficiencies have been the cause of very considerable alarm. I am sure Western Australia and Queensland will want to talk about it.
Page 425
Last updated: 09 Aug 2016