Mrs BRAHAM - 1997-02-19
Yesterday, we spent some time debating native title claims and their effect on the Territory. How much is native title costing the government in legal costs and what are the added cost implications of the Wik decision?
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ANSWER
Mr Speaker, I thank the honourable member for her question because it gives me the opportunity to counter some of the nonsense from the opposition yesterday relating to native title, and the nonsense from the NLC. Territorians are being confused by the opposition and NLC messages about the simplicity of negotiating in good faith around native title issues. They say that this will not cost much in the long term. This is a very important question and it needs to be dealt with in detail so that Territorians understand very clearly the difficulties that confront the government and for which taxpayers are bearing the burden. In simple terms, to illustrate the cost, think of a 7-figure number, double it for the Wik factor and multiply that by the number of years it will take to resolve the particular case. That is not a flippant answer. That is about the best assessment that the Attorney-General's Department can give at present in trying to get some costings on this issue.
Mr Ah Kit interjecting.
Mr BURKE: If the member for Arnhem continues to interject, this will take all of Question Time. Similar situations exist across a number of other departments such as Lands, Planning and Environment and Mines and Energy. Other agencies such as Parks and Wildlife, Primary Industry and Fisheries, Transport and Works, Local Government and Sport and Recreation are all involved to some degree. What should not be lost from this equation is that, in addition to increased expenditure by government agencies, the taxpayer is also footing the bill for the native title claimants and any special interest groups which are affected by native title applications.
In order to cope with the demand placed on my department by the native title process, there has been a significant diversion of the time of senior personnel. The Solicitor-General, crown counsel, the CEO and the director of legal services are all spending more of their time on native title matters. In addition, a native title unit has been established to which 6 legal officers and 4 paralegal staff have been recruited to work solely on native title claims. That was what was needed pre-Wik. The department is now assessing how much it will need to increase those resources post-Wik.
Let me put the costs and estimates in some perspective. At the end of June 1996, 15 applications had been lodged with the Native Title Tribunal and 3 matters had been referred to the Federal Court for determination. No determinations had been made to the effect that native title exists in the Territory, one determination was made that native title did not exist over land in the Territory, and the Territory had intervened in 2 High Court matters - namely, the Waanyi and Wik proceedings. The additional costs being incurred by the Territory in this exercise are quite substantial. I cannot speak for other agencies of government but, for my department, the personnel costs directly incurred in the 1995-96 financial year in respect of native title matters amounted to approximately $0.9m. Operational legal costs for the same period amounted to approximately $210 000. Bear in mind that these costs were incurred without any substantive hearings commencing in the Northern Territory. There are presently 21 native title applications lodged in the Northern Territory and 5 of the claims are with the Federal Court for determination with a corresponding increased demand on Territory resources.
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As for the effect of the Wik decision, before Christmas 1996, there was a class of claims in which all that was necessary was to establish that there was an underlying pastoral lease and therefore native title had been extinguished. That is no longer the case. The 48% of the Territory covered by pastoral leases is now open to claim that must be dealt with under the processes of the Native Title Act. Let us talk about these processes and those costs that are plainly interminable. Take as an example a case of an individual or company that proposes a development in an area where native title may exist. It is true that it is possible under the provisions of the Native Title Act for the government to compulsorily acquire native title rights and interests for these purposes, but the Native Title Act requires the government to notify native title claimants of their right to participate in negotiations with the government and the developer. Two months are set aside for the
notification period before negotiations can commence.
If there is no agreement through negotiation within 6 months, any party can ask the Native Title Tribunal to arbitrate the matter. The tribunal is then required to take all reasonable steps to settle the matter within a further period of 6 months. That is up to 14 months so far. However, the right-to-negotiate procedures require the government party to negotiate in good faith. This onus of negotiating in good faith rests with the government alone, not with the native title claimants nor with a third party. Unless the government satisfies the tribunal that it has negotiated in good faith, the tribunal may require the government to re-enter negotiations. Where does that leave the 14-month process envisaged by the Native Title Act? Do we have to start again? How is it decided that a government has negotiated in good faith?
In a recent decision, a tribunal member, Mr Chris Sumner, set out the indicators of a lack of good faith. I table those indicators. They include: unreasonable delay in initiating communications in the first instance; failure to make proposals in the first place; unexplained failure to communicate with the other parties within a reasonable time; failure to contact one or more of the other parties; failure to follow up a lack of response from the other parties; failure to attempt to organise a meeting between the native title and grantee parties; failure to take reasonable steps to facilitate and engage in discussions between the parties; failure to respond to a reasonable request for relevant information within a reasonable time; failure to make counter-proposals; refusal to sign a written agreement in respect of the negotiation process or otherwise; and failure to do what a reasonable person would do in the circumstances. Members should bear in mind that only the government is bound by those conditions. This cumbersome and unwieldy process is supposed to be an efficient and speedy method of encouraging continuing development and ensuring economic growth. These Sumner rules are made even more harrowing when it is realised that more than one claimant can put up their hand in relation to the developed area.
States and territories throughout this country are experiencing problems when it comes to negotiating with native title parties. We have seen examples of that in the Territory and also in Western Australia. Some of what Western Australia has experienced may highlight the difficulties in negotiating under the present provisions of the Native Title Act. In Western Australia, there have been 18 claimants in relation to one goldmining lease application. Brother and sister have opposed each other. One current negotiation over a town site in Kalgoorlie has 4 opposing claimants, 2 being from the same family, each opposing the other. Claimants may have their own legal representatives and, according to the Native Title Tribunal,
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each of the parties and their legal representatives must be kept informed by the government. Given the burden to negotiate in good faith, which rests solely on the government, the whole thing is a nightmare that cannot be allowed to continue and that the Commonwealth government must address.
I was asked at the outset what is the cost of these procedures under the Native Title Act. I will repeat: think of a 7-figure number, double it for the Wik factor and multiply it by the number of years it takes to resolve the case.
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Page 1912
ANSWER
Mr Speaker, I thank the honourable member for her question because it gives me the opportunity to counter some of the nonsense from the opposition yesterday relating to native title, and the nonsense from the NLC. Territorians are being confused by the opposition and NLC messages about the simplicity of negotiating in good faith around native title issues. They say that this will not cost much in the long term. This is a very important question and it needs to be dealt with in detail so that Territorians understand very clearly the difficulties that confront the government and for which taxpayers are bearing the burden. In simple terms, to illustrate the cost, think of a 7-figure number, double it for the Wik factor and multiply that by the number of years it will take to resolve the particular case. That is not a flippant answer. That is about the best assessment that the Attorney-General's Department can give at present in trying to get some costings on this issue.
Mr Ah Kit interjecting.
Mr BURKE: If the member for Arnhem continues to interject, this will take all of Question Time. Similar situations exist across a number of other departments such as Lands, Planning and Environment and Mines and Energy. Other agencies such as Parks and Wildlife, Primary Industry and Fisheries, Transport and Works, Local Government and Sport and Recreation are all involved to some degree. What should not be lost from this equation is that, in addition to increased expenditure by government agencies, the taxpayer is also footing the bill for the native title claimants and any special interest groups which are affected by native title applications.
In order to cope with the demand placed on my department by the native title process, there has been a significant diversion of the time of senior personnel. The Solicitor-General, crown counsel, the CEO and the director of legal services are all spending more of their time on native title matters. In addition, a native title unit has been established to which 6 legal officers and 4 paralegal staff have been recruited to work solely on native title claims. That was what was needed pre-Wik. The department is now assessing how much it will need to increase those resources post-Wik.
Let me put the costs and estimates in some perspective. At the end of June 1996, 15 applications had been lodged with the Native Title Tribunal and 3 matters had been referred to the Federal Court for determination. No determinations had been made to the effect that native title exists in the Territory, one determination was made that native title did not exist over land in the Territory, and the Territory had intervened in 2 High Court matters - namely, the Waanyi and Wik proceedings. The additional costs being incurred by the Territory in this exercise are quite substantial. I cannot speak for other agencies of government but, for my department, the personnel costs directly incurred in the 1995-96 financial year in respect of native title matters amounted to approximately $0.9m. Operational legal costs for the same period amounted to approximately $210 000. Bear in mind that these costs were incurred without any substantive hearings commencing in the Northern Territory. There are presently 21 native title applications lodged in the Northern Territory and 5 of the claims are with the Federal Court for determination with a corresponding increased demand on Territory resources.
Page 1913
As for the effect of the Wik decision, before Christmas 1996, there was a class of claims in which all that was necessary was to establish that there was an underlying pastoral lease and therefore native title had been extinguished. That is no longer the case. The 48% of the Territory covered by pastoral leases is now open to claim that must be dealt with under the processes of the Native Title Act. Let us talk about these processes and those costs that are plainly interminable. Take as an example a case of an individual or company that proposes a development in an area where native title may exist. It is true that it is possible under the provisions of the Native Title Act for the government to compulsorily acquire native title rights and interests for these purposes, but the Native Title Act requires the government to notify native title claimants of their right to participate in negotiations with the government and the developer. Two months are set aside for the
notification period before negotiations can commence.
If there is no agreement through negotiation within 6 months, any party can ask the Native Title Tribunal to arbitrate the matter. The tribunal is then required to take all reasonable steps to settle the matter within a further period of 6 months. That is up to 14 months so far. However, the right-to-negotiate procedures require the government party to negotiate in good faith. This onus of negotiating in good faith rests with the government alone, not with the native title claimants nor with a third party. Unless the government satisfies the tribunal that it has negotiated in good faith, the tribunal may require the government to re-enter negotiations. Where does that leave the 14-month process envisaged by the Native Title Act? Do we have to start again? How is it decided that a government has negotiated in good faith?
In a recent decision, a tribunal member, Mr Chris Sumner, set out the indicators of a lack of good faith. I table those indicators. They include: unreasonable delay in initiating communications in the first instance; failure to make proposals in the first place; unexplained failure to communicate with the other parties within a reasonable time; failure to contact one or more of the other parties; failure to follow up a lack of response from the other parties; failure to attempt to organise a meeting between the native title and grantee parties; failure to take reasonable steps to facilitate and engage in discussions between the parties; failure to respond to a reasonable request for relevant information within a reasonable time; failure to make counter-proposals; refusal to sign a written agreement in respect of the negotiation process or otherwise; and failure to do what a reasonable person would do in the circumstances. Members should bear in mind that only the government is bound by those conditions. This cumbersome and unwieldy process is supposed to be an efficient and speedy method of encouraging continuing development and ensuring economic growth. These Sumner rules are made even more harrowing when it is realised that more than one claimant can put up their hand in relation to the developed area.
States and territories throughout this country are experiencing problems when it comes to negotiating with native title parties. We have seen examples of that in the Territory and also in Western Australia. Some of what Western Australia has experienced may highlight the difficulties in negotiating under the present provisions of the Native Title Act. In Western Australia, there have been 18 claimants in relation to one goldmining lease application. Brother and sister have opposed each other. One current negotiation over a town site in Kalgoorlie has 4 opposing claimants, 2 being from the same family, each opposing the other. Claimants may have their own legal representatives and, according to the Native Title Tribunal,
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each of the parties and their legal representatives must be kept informed by the government. Given the burden to negotiate in good faith, which rests solely on the government, the whole thing is a nightmare that cannot be allowed to continue and that the Commonwealth government must address.
I was asked at the outset what is the cost of these procedures under the Native Title Act. I will repeat: think of a 7-figure number, double it for the Wik factor and multiply it by the number of years it takes to resolve the case.
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Last updated: 09 Aug 2016