Posts

Native Title Inquiry Needed Now

I spoke in support of Senator Hanson’s motion for an inquiry into Native Title.

The problem many of the Aboriginal and Torres Strait Islanders we speak to have continuously raised with us is that under Native Title the land is locked up and can’t benefit from it. That’s about half of Australia locked up under Native Title and held with the government. Is it any wonder the United Nations is so interested in Native Title?

The white and black aboriginal industry consists of lawyers, consultants, activists, academics, politicians and bureaucrats. They all claim to be ‘closing the gap’ between Aboriginal and Torres Strait Islanders’ standard of living and other non aboriginal Australians. The fundamental flaw in this system is that those running the industry are parasitically living off the money that is given to the aboriginal communities. It is a self-perpetuating problem.

Every year the billions of taxpayers’ dollars poured into solving the problem is being syphoned off by the same individuals who “claim” to be helping. Very little of the money makes it through to those in need.

You may recall when the Western nations were called upon to donate to ease the famine in African nations, very little of that aid often didn’t make it past the greedy government bureaucrats. This is what’s going on in Australia now. The pressure to scale it up is significant, but it will only increase the size of the industry and make it worse. What is needed is a solution to the Native Title problem that’s locking up the land. A sunset clause in the Native Title act should also be included. We need accountability within the white and black aboriginal industry.

Autonomy and accountability is what the Aboriginal and Torres Strait Islander communities are hungry for, yet they are being blocked by those who are living off the industry in the cities, both aboriginal and non-aboriginal.

It’s time to close the gap for good. We need this inquiry.

Transcript

As a servant to the people of Queensland and Australia I speak to Senator Hanson’s motion, which I’ll read for clarification. It states:

That the following matter be referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 4 June 2024:

(a) the establishment of a sunset date in relation to submission of claims of native title, after which no further claims of native title can be made; and

(b) the effectiveness of the operation of the native title system, options to improve economic development resulting from native title, and options to improve certainty over the claim process.

We want an inquiry.

Since the concept of native title was accepted by the High Court in the case of Mabo there have been mixed views from Indigenous and non-Indigenous commentators as to the benefits that have flowed to the Aboriginal and Torres Strait Islander communities. The extent and nature of these was spelt out in the now rather complex Native Title Act 1993 and some further decisions of the High Court, including the Wik case in 1996. The act sets out a bundle of rights, some exclusive and some non-exclusive. Some exclusive rights relate to traditional activities, including the rights to fish, hunt and gather within the determined claim area—and I note as an aside here that Minister Plibersek’s latest piece of legislation seeks to take that away from Aboriginals, according to Aboriginals in northern Australia—but those rights cannot be transferred or on sold. Native title is extinguished by subsequent freehold and suppressed by leasehold, although that may revive at the expiry of the lease. Recent figures from the Native Title Tribunal indicate that determinations comprise more than 50 per cent of Australian land mass, more than half of our country.

One of the features of the Native Title Act is the attempt to balance the rights of all parties. The use of Indigenous land use agreements is a way of establishing possible land use, including mining leases and other means of gaining some commercial benefit, registered for the traditional owners. These can be varied at some later time through the National Native Title Tribunal.

When we were last in Cooktown we met with a local community leader, an upstanding man, who shared with us his views on native title and its impacts on his community and on many communities across Cape York. He said that native title was important from the aspect of recognition of the Indigenous perspective of their relationship with the land and recognising that Indigenous people were the first inhabitants of Australia and that they have inherent property rights in the land. His view was that the Native Title Act was not providing Indigenous people with something tangible, because they could not use native title to advance any individual interests. Land under native title cannot be mortgaged to help build a home or be used as collateral to support a business loan. The land is essentially locked up and not used to support small projects.

It’s really about seizing the land, holding it and not giving it to anyone to use. It’s no wonder that we see the words ‘United Nations’ so frequently in the Native Title Act preamble. This is a land grab and the Aboriginals are not benefiting. Because the land is not freehold, nobody is able to work towards owning their own home because the property is now locked away out of reach. No-one is getting this land. The Commonwealth government are able to reclaim native title land and convert it to freehold, and some compensation is then paid to the traditional owners, but this does not benefit any individuals. People in the cities think that this was all fixed years ago. They don’t realise that the No. 1 complaint in remote Aboriginal communities across the north of Australia is that they can’t get access to land to have their own houses and their own businesses. With land ownership prevented, there is little incentive to work towards beneficial goals. My friend said that he wished to own his own place in this community. He cannot own his own place in the community. He wishes to build up and expand his small business as a shop owner but he cannot buy the premises. He must hope that he can lease the shop from the local traditional owners.

These comments were echoed right across the cape by constituents, council mayors and council members, and in the Territory and, we’ve heard also, in Western Australia. It was universal. Not one person to whom we spoke had a good thing to say about native title, other than that it provides some recognition of them as First Australians.

When asked about the government’s closing the gap policy, he made the telling comment that the government was not serious about closing the gap because that would be contrary to the white and black Aboriginal industry that thrives on keeping Aboriginals dependent. With the exception of two Aboriginal members of parliament, Senator Nampijinpa Price and Senator Kerynne Liddle, Aboriginal senators—the other nine—don’t talk about the white and black Aboriginal industry that consists of lawyers, consultants, activists, academics, politicians and bureaucratics who are living parasitically off the money that is given to Aboriginal communities. They’ve stolen it from the Aboriginal communities. The billions of dollars that are poured into solving the problem are siphoned off by those supposed to be assisting, and little of the money and other handouts makes it to those in real need. That’s what’s going on in this country. It’s important for many people to keep the gap wide open.

I listened to a councillor on Badu Island, up in the Torres Strait, about closing the gap. I’ve been across the cape twice, and to some communities three times. In every community we asked, ‘What about closing the gap?’ Some people said, ‘What’s closing the gap?’ Others said, ‘It’s useless.’ When we asked this particular councillor on Badu Island, he said to me, ‘Malcolm, the point about closing the gap is that it will never be closed because there are people feeding off the maintenance of the gap.’ The parasitic white and black Aboriginal industry are feeding off closing the gap.

My friend went on to say that one of the biggest problems in communities was the lack of decent community housing. There were 19 people living in one of the local houses, and many people were homeless. In his community, 70 per cent of the residents were receiving welfare. Many were not coping. Mental health issues were climbing. What my staff have seen on Mornington Island is disgraceful. It’s caused by the white and black Aboriginal industry. They perpetuate the misery so that they can get the funds. As I said, this was a common comment across the cape and up into the Torres Strait.

Further north, a mayor told me that the problems also involved how grant moneys were divided up between the various interest groups, and again highlighted the housing and employment crises. There were no jobs and there was not enough housing.

Why will only two Aboriginal members of this Senate discuss the white and black Aboriginal industry? I have to commend Senator Nampijinpa Price for doing so with vigour. She points out that that white and black industry is destroying accountability, and things in Aboriginal communities won’t change without accountability. The people in the communities that I’ve listened to are hungry for autonomy and accountability. They want it.

I understand that in 1998 John Howard, as Prime Minister, attempted to amend the Native Title Act by putting in place a sunset clause. John Howard, I’m advised, moved to put in place a sunset clause. As Prime Minister, what advice did he get on the legality? Senator Cash would get some answers to clause (a) if there was some form of inquiry. What’s wrong with having an inquiry? Why do you keep blocking Senator Pauline Hanson wanting simple inquiries into basic, fundamental questions?

As I understand it, before Cook arrived the Torres Strait Islands had some form of property rights, handed down from generation to generation, where the holder of the land was clearly recognised. But the mainland not so, I’m advised. We were reminded by Senator Rennick that the High Court decision on Mabo was very close: four to three. We need an inquiry to see how it’s working and to go back to fundamentals. ‘Thirty-one years,’ Senator Rennick said. ‘We need an inquiry. We’re the house of review.’ I concur with Senator Rennick.

Senator Ayres raises the point about Aboriginal Warren Mundine possibly entering the Senate. I don’t know, but does Senator Ayres not want Aboriginals in the Senate because of their views? No-one tonight has offered a solution to the native title problem of land locking, although revisiting Indigenous land use agreements and considering leases for individual housing projects may deserve further consideration.

/7 Comments/by

Over 40% of Australian Land Mass under native title

, ,

With 40% of Australian land mass currently under a successful native title claim, you can see how estimates of up to 80% of Australia being claimed under native title by 2050 are very possible. There are currently 177 native title claims awaiting determination right now.

Transcript

[Malcolm Roberts] Thank you for attending today. My questions are to do with native title projections.

Thank you.

[Malcolm Roberts] Thank you. What are the current costs of administrating administering Australian native title claims each year, please?

Kathleen Denley, assistant secretary of the native title unit. So the approximate cost per year is 140 million. I don’t have the exact breakdown, but I can get it for you. The majority of that money goes to the national indigenous Australians agency who pay for native title representative bodies. There’s also money that then goes to, for example the Federal Court, the National Native Title Tribunal. There’s some administered funding that goes to native title respondents funding schemes. There’s also an anthropologist scheme which the department administers for some funding for native title anthropologists and some money that departments such as NIAA and AGD expend.

[Malcolm Roberts] It’s a massive undertaking. Could, could we get the breakdown on notice please?

Certainly

[Malcolm Roberts] Thank you. Secondly, how many claims have been finalised to date?

Senator just to clarify, do you mean native title claims as distinct from state compensation claims?

[Malcolm Roberts] Yes.

I’ll have to find the exact figure for you Senator. According to the data held by the NNTT as of the 3rd of May, there are 524 determinations and 177 active claimant applications

And of those determinations Senator 416 are consent determinations and 53 were litigated determinations.

[Malcolm Roberts] How many 53 did you say?

Result of litigated determination.

[Malcolm Roberts] Thank you. What human resources are being used to assist progressive progressing native title claims.

Could you

[Malcolm Roberts] How many people in the department are working on that?

Oh, so the native title unit in the attorney General’s department? So I think we have approximately 14 staff. However, the unit is also working on things other than native titles, such as the closing, the gap measures in conjunction with the national indigenous Australian agency

[Malcolm Roberts] And how many people would be employed full-time equivalent on, on government funding outside the department?

Senator, Just before we go onto outside of the department we also, our legal assistance area would also process claims under a number of schemes. I don’t have those details. We’ll take them on notice and I’ll give you an estimate if you

[Malcolm Roberts] Thank you. Yep. How many claims are currently in the system yet to be finalised? Is that a 177 active?

That’s right. That’s of native title determinations. There are also native title compensation claims that are currently before the courts.

[Malcolm Roberts] How many of them?

I think there’s approximately 15, 14 or 15.

[Malcolm Roberts] When is it considered that the remainder of unfinalised claims will be finalised?

I’d have to take that question on notice. I think there’s a range of cases that are still before the courts for a variety of different reasons. I’d, I’d have to take the question on notice to see if there was a projection by the federal court.

[Malcolm Roberts] Thank you. What proportion of the Australian landmass is currently under finalised native title?

So 40.5% are covered by a determination and 6.3% are covered by a determination that there is no native title or that native title has been extinguished.

[Malcolm Roberts] Okay, thank you. There have been some assessments made by persons including Warren Mundine and Josephine Cashman. Who’s an indigenous lawyer and activist predicting that that finalised native title claims will cover 70 to 80% of the Australian land mass by the 2050s. Is this estimate reasonably correct? If finalise claims as successful?

I’m not sure I could accurately comment on that particular percentage. What I could say is in terms of the indigenous land estate once Al Rowe or Aboriginal land rights act findings are also taken into account. The overall indigenous land estate is larger. Of course it’s, it’s uncertain what the percentage would be that it would be based on individual circumstances of cases that are before the federal court. But we would, I think, expect that the overall percentage would increase, but I couldn’t comment on that exact percentage.

[Malcolm Roberts] Senator, if I can add to that, of course when the court makes a determination of native title it might be exclusive native title. What might be non-exclusive native title. So we could have land that’s subject to native title but that doesn’t mean that it’s subject to exclusive native title. If you understand where I’m going with that.

[Malcolm Roberts] Thank you. Yep. So it will be, you don’t know whether it’ll be a lot more than the current 46 and a half percent

We would expect it to increase

[Malcolm Roberts] Increase. But you don’t know how much. I’m not not complaining about that. I’m just, just trying to pin it down broadly. So next question, Aboriginal people of Australia currently represent around 3.3% of Australia’s population. Yet native title does not allow individual ownership of land under native title claim, as I understand it. This will effectively lock up a large proportion of Australian land that is no longer available as private freehold property to any individual Australian to purchase. Was this an intended consequence of the introduction of native title to lock up the land?

So the purpose of the native title is to recognise pre-existing interest in land and the court will make that determination based on evidence before it. So if there has been pre-existing laws and customs as the secretary outlined before, it will be it will depend on the individual circumstances as to the extent of those rights. In some instances they may be exclusive but in some instances it may be more limited such as a right to hunt and gather. It could be a right to continue a particular cultural practise. So it will change in every circumstances to the extent of those rights.

[Malcolm Roberts] Okay, thank you. Is it true that Aboriginal people are not able to build or buy and own their home on land under native title? Because that’s what I’ve been told by people in communities.

So native title isn’t free hold title although exclusive native title in some circumstances has been considered similar by the nature of the rights that are given. However, as I mentioned, it really does depend on the finding of those individual rights.

[Malcolm Roberts] Okay.

The native title act also contains the regime where the native title holding groups can themselves decide whether they wish to permit activities, to take place on land that is subject to native title. So it would be open to a native title group to in fact say that if they wish to that they would allow individual members of that group to, to build housing on that land and to have, for example, 99 year type leasehold arrangement. But that’s a matter for the group themselves as to whether they wish to do that or not.

[Malcolm Roberts] Thank you. It is, it’s much more complex than people think then. Is it true that land under native title cannot be used as security for a loan to assist an Aboriginal person? Or is that following on from what you just said?

So, because if someone was to default on a loan, for example native title land, can’t then be repossessed by a financer financier. So that that’s not to say that financial institutions aren’t capable of devising financial ways of actually lending to, to native title groups based upon assets and revenue streams that a native title holding group might have. I mean, a native title holding group might have revenue streams, if they’ve agreed to mining, for example on the land and things like that. So it, again, it’s more complex than it might seem.

[Malcolm Roberts] Okay. Thank you. Two more questions. What is the relationship between the United nations and the native title act given the extensive reference to the UN in the acts preamble?

Are you referring to a particular treaty or?

[Malcolm Roberts] No, just a, just a broad understanding of the relationship between the UN and the native title act.

I guess broadly the UN declaration on the rights of indigenous people. I, I’m not sure of the particular reference

[Malcolm Roberts] Okay.

The declaration on the rights of indigenous people postdates the, the native native title act that was passed before that, that declaration. So like my, my colleague, Ms. Stanley, I’m not sure about the references to the UN in the preamble. The native title act is an act passed by this parliament. So it’s, it’s a piece of domestic legislation in that sense.

[Malcolm Roberts] So who would be the best person or agency to do find out more on that?

Look, we, we can take on, on notice.

[Malcolm Roberts] No, could we come and see you? No need to take it on notice.

You actually want a meeting?

[Malcolm Roberts] Yeah. Just a briefing on it. Yeah. Better understanding. Yeah. Thank you. Oh, we intend to, we have been. Has native title improved the living circumstances of the majority of Aboriginal persons in Australia.

Are you asking me for a personal opinion? I’m not sure I can give that sense.

[Malcolm Roberts] That’s probably not

With all due respect to the official, that’s exactly right.

[Malcolm Roberts] That’s fine.

But a briefing will be facilitated for you Senator Robert.

[Malcolm Roberts] Thank you very much.

Thank you very much Senator Robert.

Thank you.

If I could just interject for a minute to going back to the previous witness I appreciate the answers being direct and concise. It’s very helpful.

/by

Native Title Legislation Amendment

,

Yesterday I spoke on an amendment to the Native Title legislation. While I support anything that removes complexities, the government still hasn’t promised to give farmers restoration or compensation of their property rights.

Make no mistake, farmers property rights have been stolen by governments to comply with international agreements like the Kyoto Protocol and Paris Agreement. They must have restoration or compensation.

/by