Mr SLIPPER(5.16 p.m.) —I wish to deal with the issue of validation, which is one of the key elements of the Native Title Amendment Bill 1997 . The purpose of proposed division 2A is to validate certain kinds of interests created and acts done in the period between 1 January 1994 when the Native Title Act commenced and the date of the Wik decision on 23 December 1996. The justification is that these interests were created and acts done on the assumption that governments were free to do various acts over pastoral leases and other leasehold land, including converting it to freehold, without following the processes of the NTA. As a consequence of this belief, acts were done over leasehold land which, on the basis of Wik, may have been invalid.

The preamble to the Native Title Act stated—and the whole world believed—that native title was extinguished by pastoral leases. However, the Wik decision proved this was not the case. The government does not believe that invalidity is the appropriate consequence for acts done on the basis of a legitimate assumption subsequently proved wrong. The ALP is totally hypocritical in this matter because, all the way through the debate over the original native title bill, they predicated their debate on the basis that native title was extinguished by pastoral leases.

The acts to be validated were done on the assumption that governments were free to do various acts over pastoral lease and other leasehold land without following the processes of the Native Title Act. This was an assumption supported by the decision of the High Court in Mabo (No. 2), by many statements of the former government, by the Native Title Act itself, by the practices of the National Native Title Tribunal and by decisions of the Federal Court. It is clear that the assumption that pastoral leases had extinguished native title was one which would legitimately have been held and one which was encouraged by the former government.

Even so, a number of jurisdictions have changed their practice in relation to future acts. Queensland, South Australia and New South Wales originally used a `Swiss cheese' approach to granting exploration licences which excluded areas from the licence which might be subject to native title. Following the unanimous High Court decision that the Land (Titles and Traditional Usage) Act 1993 was invalid in March 1995, Western Australia commenced issuing section 29 notices in relation to exploration, mining and compulsory acquisitions on behalf of third parties. South Australia's alternative future act regime in relation to mining and compulsory acquisitions, along with its ability to determine native title claims, commenced operation in June 1996 following Commonwealth approval.

The proposed validation provisions for `intermediate period acts' are in fact substan tially more limited than the existing NTA validation provisions, which potentially apply to all government acts since Australia has settled. Proposed division 2A only covers acts and grants done on land in relation to which it was reasonable to assume that native title had been extinguished. It does not extend to acts done on land only previously the subject of a licence or reservation or which has always been vacant crown land. It also does not extend to invalid acts consisting of the making of legislation except where the legislation itself directly creates an estate or makes a grant or reservation.

The document prepared by the National Indigenous Working Group rejected `blanket validation' and suggested that some categories of grant which have no compelling urgency or commercial imperatives requiring immediate validation be validated through the future act regime or the proposed regional agreements process. The major objection to this proposal is purely a legal one—it is not possible to provide validity through agreements. Even if a legally watertight agreement were obtained with native title holders not to challenge the legality of the grant, the beneficiaries of the invalid grant or title would remain vulnerable to legal action from any other person with interests affected by the grant—such as trespass where, for example, an exploration permit is given over a pastoral lease—because the grant itself would remain invalid.

The option of including a statutory validation provision but making it dependent on the satisfactory negotiation of an agreement would necessarily result in an effective veto for native title claimants in relation to mines and developments already under way. There would be a serious question about the legal status of these acts in the period before an agreement, even if the agreement were done on a government-representative body basis.

It has also been argued that the effect of the proposed validation provisions in relation to public works will be to extinguish native title on the whole of the area of the tenure on which the work was built. This is incorrect. The effect of the validation of a public work is to extinguish all native title `in relation to the lands or waters on which the public work concerned (on completion of its construction or establishment) was or is situated'. The concept of `land or waters on which a public work is constructed, established or situated' is defined in section 251D to include any adjacent land or waters `the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work'. The fact of the matter is that what has been suggested by the other side is simply not correct. (Time expired)