Mrs STONE(4.52 p.m.) —As the Attorney-General (Mr Williams) stated a very short time ago, the Native Title Act 1993 currently says very little about whether or where native title may still exist in Australia and, apart from the validation provisions in division 2 of part 2, it says nothing about whether native title may or may not have been extinguished. This is an enormous problem in terms of some sense of security and understanding of what rights Aboriginal people have in Australia today. The Native Title Act generally leaves the issues to be determined by common law. This has given rise to significant uncertainty.

The purpose of the proposed amendments dealing with confirmation of extinguishment of native title is to limit this uncertainty. The main effect will be to allow the states and territories to confirm that native title is extinguished on exclusive tenures such as freehold and residential leases and extinguished to the extent of any inconsistency on non-exclusive agricultural and non-exclusive pastoral leases.

An argument has been made that this approach pre-empts the common law. However, to leave these issues to be determined on a case-by-case basis by the courts has the following implications: cost and uncertainty arising from involving potentially many thousands of respondents to claims; so long as there is a question about the legal status of particular tenures, the Registrar of the NNTT is not able to reject a claim on that basis; and whether claims are registered or not, there can be no certainty under the Native Title Act, as currently drafted, about the capacity of governments to carry out future activity until there is a judicial determination.

This would be an immensely expensive and time consuming process and, on the basis of Wik, this massive expenditure of generally public resources would deliver nothing tangible to Aboriginal people. From the government's point of view, such a massive expenditure for no or very little tangible benefit for Aboriginal people cannot be justified. It is, in fact, a cruel diversion. Expenditure should be directed to determining where native title does exist and protecting the rights of the holders, not to confirming where it has been extinguished. That is just time wasting.

The opposition has suggested that exclusive possession is not the appropriate test. The majority in Wik was made up of four separate judgments. There are some differences between the majority justices so it is difficult to establish what the majority test is. However, the grant of exclusive possession remains the major indicator of an implied intention to plainly and clearly extinguish native title.

The bill also allows states and territories to confirm that the vesting of land in persons has extinguished native title. That is in subsections 23B(3), (4) and (5). This is vesting of particular lands or waters by or under legislation of a state or a territory. This provision is not intended to catch the acquisition of sovereignty by the Crown over any part of Australia which would fly in the face of the Mabo No. 2 and Wik decisions. Nor is it intended to catch the simple management of crown land by a government. It is not intended to catch the creation of national parks or reservation of land generally or for a purpose. The vesting is limited to where exclusive possession has been given to a person, including a statutory authority—subsection 23B(3)—or where what is vested in a person is clearly equivalent to exclusive possession—subsections 23B(4) and (5).

The court held in Wik that there may have been some level of extinguishment of native title rights by the grant of a pastoral lease. Justice Kirby stated:

Only if there is inconsistency between the legal interests of the lessee . . . and the native title . . . will such native title, to the extent of the inconsistency, be extinguished.

The bill adopts this very test. Section 237A provides that the extinguishment of native title is permanent. It has been said that this pre-empts and perhaps goes beyond the common law. Three judges of the High Court stated that extinguishment is permanent; four judges left the issue unresolved. It is the view of this government that to leave this issue unresolved adds to the already considerable uncertainty surrounding native title and land management in Australia.

Some of the practical and conceptual difficulties that would result from the revival of native title for the lessees of the Wik pastoral leases were also identified by Chief Justice Brennan in his decision.

There has been some confusion about references to the area of land which remains claimable under the Native Title Act if areas covered by previous exclusive possession acts cannot be claimed. The statistics show that this leaves 79 per cent of the land mass of Australia which can be claimed. The total area of Australia covered by the schedule is 7.7 per cent, freehold land is 12.8 per cent, so the figure for total land not claimable is only 20.5 per cent. I repeat: that leaves 79 per cent of the land mass of Australia which can be claimed. Therefore, this part of the bill is all about a better deal for Aboriginal people so that, at the end of the day, they are delivered an efficient and fair outcome.