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Wednesday, 29 October 1997
Page: 10145

Mr GARETH EVANS (Deputy Leader of the Opposition)(6.22 p.m.) —I would like to comment on what has been said by the member for Indi (Mr Lieberman) about the sunset clause. The truth of the matter is that this is a very silly and counterproductive provision. I fully accept what he says—that the sunset clause, as presently drafted, does not exclude common law claims but, if common law claims continue to be able to be made after the period of the sunset clause, you will have a much greater threat, in effect, to the workability of the whole native title system than would be the case if these matters continue to be dealt with purely under statute.    The very nature of the common law system is infinitely more cumbrous and undirected, which is why, of course, we got the whole native title legislation in the first place—because nobody wanted to commit the Australian landscape to that endlessly protracted uncertainty and complexity of a common law claim process. Of course, if you went the extra distance and knocked off common law claims as well, as the National Party is urging us to do, not only do we say that is indefensible in principle but also it would instantly involve the Commonwealth in having to deal with a potentially massive compensation payout claim because of the acquisition of property rights without just terms having been given.

The other aspect of it which makes me say it is silly and counterproductive is that it is bound to trigger a lot of claims that might not otherwise have been made if there was not the time pressure associated with this sunset clause being made and clogging the system again with claims that are manifestly unlikely to succeed.

It has been acknowledged in a lot of private conversations, even if not publicly, that the sunset clause should be one of the first to go in this legislation, and I am surprised that the member for Indi should be wanting to hang his hat on one of the least defensible provisions of the whole bill. I suspect the real reason that there is a bit of passion in the coalition parties for the sunset clause is that having the right to proceed under the act is inextricably linked with the right to negotiate, because with regard to the right to negotiate, although there is an argument that it is a common law right, its primary foundation—

Mr Tuckey —There's no argument to the contrary.

Mr GARETH EVANS —There is an argument and it has not yet been established to the contrary by the High Court. It is basically a right of statutory foundation. The reason it is there is not because of some whim or fancy, as has been alleged by the member for Kalgoorlie (Mr Campbell), along with his other usual tirades of vulgar abuse; it is there in order to give certainty and predictability to the legislation by providing something of genuine benefit to indigenous people because of the constitutional problems of proceeding with a piece of legislation that does not amount to net benefit or constitute a special measure so far as indigenous people are concerned. For all of the constitutional reasons that have been argued in full in the second reading stage and will be again by my colleague the member for Wills (Mr Kelvin Thomson), I do not want to go into it.

I want to say a quick word about the whole question of the right to negotiate, to clearly put my position on the record about this. I, for one, without going into the procedural aspects of the right to negotiate, acknowledge that the right to negotiate the particular threshold test or registration test which triggers a capacity to exercise that right is not something that has worked well under the present legislation. There is no doubt that it was not our intent in 1993 to have an open-ended capacity to access that right to negotiate, but the way in which the test has been applied by the courts, tribunals and registrar has made it, for all practical purposes, a worthless form of filter. The system, particularly in areas like the eastern goldfields and so on, has been disastrously cluttered as a result of too many claims being registered that simply would not satisfy a reasonable test.

So far as the minority report is concerned, the crucial thing is their recommendation—and that is something with which I would strongly agree: the registration test should not exclude bona fide claimants with reasonable prospects of success in establishing native title from access to the right to negotiate provisions. There is much distance still to go in our consideration of how best to draft the threshold test. It is a matter for argument as to whether the physical connection and test as drafted here is, in fact, unfairly limited. It may be; it may not.

There is a case for Father Brennan's suggestion that the proper criterion here, perhaps in addition to the physical connection one as an additional alternative, might be the maintenance of observance of laws and customs so far as is practicable to do so. There is a real concern about the limitation of abilities to have claims registered where a claim of exclusive possession is adopted in relation to an area where there have been previously non-exclusive possession acts. There are problems of that kind. They are all redressable. The important thing is to get it right. (Time expired)