There are some days that you’d prefer to be digging a ditch than to be a public servant.

Particularly if you were one of the members of Federal Indigenous Affairs Minister Jenny Macklin’s FaHCSIA staff that turned up to the New South Wales Parliament House on the last Thursday of January to face a grilling from the Senate’s Committee on Legal and Constitutional Affairs inquiry into the Native Title Legislation Amendment Bill (No.2) 2009.

The Federal Government has copped considerable flack over its rather ordinary attempts to live up to its promises to deliver improved housing to Aboriginal people – most particularly in the in the Northern Territory where its SIHIP program has stumbled from crumbling pillar to poorly-designed post from the outset.

So there was considerable importance hanging on the efficacy of a new Bill that would, according to the October 2009 joint press release by Attorney-General Robert McClelland and Indigenous Affairs Minister Jenny Macklin:

“…address the need for secure tenure arrangements in the delivery of these much needed projects in remote Indigenous communities. The amendments will also encourage State and Territory Governments to act quickly to address the urgent need for housing in Indigenous communities.”

From that most people would think that the Native Title Legislation Amendment Bill (No.2) 2009 would have broad application to housing projects in Aboriginal communities in all States and Territories.

This impression would only have been confirmed by the Discussion Paper released by Macklin’s FaHCSIA in August 2009 and McClelland’s Second Reading Speech when he introduced the Bill to the House of Representatives on 23 November 2009 and told the House that the Bill was part of a suite of measures:

“…vital to achieving the advances needed in health, education, and employment participation outcomes for Indigenous Australians. The Native Title Amendment Bill (No. 2) 2009…will facilitate the construction of housing on land in Indigenous communities which is or may be subject to native title.

…

It will apply primarily to acts of state, territory and local government bodies.

…

It will be subject to state and territory heritage processes.”

None of the eleven parliamentarians that spent an hour and a half debating the Bill in the House, nor the twenty seven respondents to the FaHCSIA Discussion Paper or most of the seventeen respondents to the Senate’s call for submissions appeared to be aware of the very limited application of the Bill.

The Bill would only have effect on an as yet undetermined class of Aboriginal land in Western Australia and Queensland. This only became clear during the course of the Hearing of the Senate’s Legal and Constitutional Affairs Committee in Sydney on Thursday 28 January.

It was, by all accounts, an extraordinary Hearing.

The first indicators of the failure of the Bill to deliver on the “vital” reforms flagged by McClelland and Macklin came during evidence by the Northern Land Council and the Law Council of Australia.

Liberal Senator Barnett asked the Law Council’s representatives about the limited effectiveness and application of the Bill as disclosed in their submissions:

“Ms Webb – The end result, which perhaps has not been fully appreciated, is that the bill has limited practical application only to those communities which are established on reserves—and then really only to suspend any

remaining unsuspended native title rights but not to extinguish them.

…

Senator BARNETT—Thank you for your submission. It seems to be bordering on—I will not say explosive—evidence which is substantial and critical to the effectiveness of the legislation. In short you are saying it nullifies the bill, it diminishes its effect, and section 233(3)…simply says that the bill

before us does not have the effect which is intended by the government.

Ms Webb—…There are still some areas where there would be an effect, but they are very limited…in the discussions that were held earlier and in the discussion paper it really was not apparent. In fact the wording used quite often in discussion was ‘native title lands’. When you think of native title lands, the perception is that it is any land where native title can exist.”

The real fireworks began when the four FaHCSIA representatives appeared before the Hearing.

Chair of the committee, Labor’s Trish Crossin, set the tone:

“CHAIR—I am going to be really quite tough here because I am a member of this government and this is essentially my piece of legislation. I am not convinced so far that you have provided us with a sound legal reason as to why the current provisions in the Native Title Act are not delivering that. I want to know from you about evidence, facts, restrictions and problems…So I want you to tell me why you think the Native Title Act is the barrier.

…

Ms Cattermole—…What the states are saying—in particular Western Australia and Queensland, as you have heard from others this morning—is that native title is in some cases a barrier to being to able to deliver housing in the time frames that we need.

CHAIR—Give us an example of that.

Ms Cattermole—I do not have any examples. I think they would be in the purview of those states.”

It didn’t get any better for the FaHCSIA representatives – as these selected excerpts reveal:

“Senator SIEWERT—They have consistently raised concerns that native title is holding up a whole lot of things…So you are proposing quite a significant change and you cannot present us with any concrete examples of why we should accept this quite substantial change to native title?

Ms Cattermole—As I said, I just do not have detailed practical examples in front of me today.

Senator SIEWERT—Which I find quite extraordinary!

…

Senator SIEWERT—This is a hearing into this legislation and why we should accept this legislation, and you cannot give us an example of why we need this legislation. Quite frankly, I find that astonishing!”

…

Senator FEENEY—You may not have an example to hand; do you have an example in the department’s possession? You say Western Australia and Queensland in particular have come to you with issues… would the department have examples of where native title has been a particular issue?

Ms Cattermole—I would have to take that on notice.”

There is more excruciating detail in the Transcript of the Committee’s hearing on 28 January which is a difficult, but worthwhile, read – have a look here.

The Committee is due to report to the Senate on 23 February.