Senator MINCHIN (Special Minister of State and Minister Assisting the Prime Minister)(9.31 a.m.) —I thank all honourable senators who participated in the second reading debate on the Native Title Amendment Bill 1997 . Native title is a very recent issue for most Australians. It is complex and it evokes deep emotions, because nothing is more fundamental than how we share the land, and native title is very different from other forms of Australian land tenure.

The government's bill follows the High Court's recognition of native title rights as part of Australia's common law and passage of the 1993 Native Title Act. In 1993, we in the coalition parties thought that the act was inadequate and unworkable. It has also failed to deliver real outcomes, particularly to Aboriginal and Torres Strait Islander people. After almost four years, over 660 claims, and over $210 million of taxpayer funded expenditure, the only judicial determination of native title on mainland Australia is for a small piece of land at Crescent Head in New South Wales.

On 23 December 1996, almost 12 months ago, the High Court decided in the Wik case, by a four to three margin, that pastoral leases do not necessarily extinguish all native title. This decision relates in complex ways with the existing Native Title Act, which was simply not designed to deal properly with coexisting rights and interests in land.

This interaction, and not simply the Wik decision itself, produced serious legal uncertainties. For example, the current act could mean that activities which are legal under pastoral leases or permits and essential to pastoral businesses would be impermissible if native title could be effected. The act could also effectively reverse the Wik finding that pastoral leaseholders' rights prevail over native title rights.

Clearly, the decision has widespread implications for native title holders, for resource based industries like mining, petroleum and fishing, for pastoralists and farmers, and for governments. Leading up to the release of our 10-point plan in May this year, the Prime Minister (Mr Howard) personally spent months in detailed consultation and discussion with all these interest groups to develop a fair and balanced framework for a Commonwealth legislative response to the Wik decision.

The Prime Minister resisted widespread calls for extinguishment of native title on pastoral lease land. Instead, he proposed a fair and sensible national framework which integrates the Wik decision into Australian land law management. The Native Title Amendment Bill 1997 , based on that plan, respects and protects native title and allows claims over about 79 per cent of Australia's land area, including over pastoral leases. It also deals with workability issues arising from experience with the current act. In summary, the bill lets the Wik decision work.

Few opponents of the bill appear to accept or concede that substantial deficiencies in the current act must be remedied if coexistence of native title with other interests in land is to be accommodated in our legal system. This is because the conventional wisdom in 1993 was that native title would be found to exist in limited and remote parts of Australia, and would not be interacting with other interests. Since we now know this understanding to be wrong, the act must have a more appropriate future act regime, in particular for pastoral lease land. This is done by the bill.

A constant refrain from the opposition is that the bill lacks a proper constitutional foundation. The government has formal constitutional advice from the Solicitor-General that the bill is entirely supported as a special law under the constitutional races power. The government recognises that the bill's constitutional validity is likely to be challenged, probably by our political opponents, just as the native title act itself was, unsuccessfully, challenged.

The government's firm view, supported by the opinion of the Solicitor-General, is that the bill is not detrimental to Aboriginal and Torres Strait Islander people and is fully supported by the races power of the constitution. Political assertions about constitutionality should not prevent passage of the bill, any more than they prevented passage of the Native Title Act in 1993.

It has also been alleged by some that the bill overturns the decisions of the High Court in Mabo and Wik. The government absolutely rejects these allegations. The bill adopts the very test in Wik that native title has been extinguished to the extent that native title rights and interests are inconsistent with the grant of rights and interests to lessees. It is left to the courts to assess the extent of this inconsistency. The bill does not pre-empt these decisions.

The bill provides—again, as the court held in Wik—that lessees rights prevail over any surviving native title rights. It implements this principle in the real world of practical primary production. I note that 81 per cent of Australians believe that farmers should be guaranteed that they can use the land they lease as needed.

Some people argue that the bill's validation provisions are not justified because government's should not have acted on the basis that native title was extinguished on pastoral leases. However, this assumption was supported by the High Court's decision in Mabo, by the Native Title Act itself, by the practice of the National Native Title Tribunal and by decisions of the Federal Court. It was also actively encouraged by the previous government. The coalition government believes that grants made on the basis of this legal assumption should be validated by legislation. It is just not possible to provide the necessary validity through agreements.

The bill's confirmation provisions are vital to ensuring certainty in areas of Australia where, on any reasonable assessment, native title as a matter of common law has been extinguished. The act currently leaves these issues to be determined by the common law. The bill will allow the extinguishment of native title to be confirmed in line with the decisions in Mabo and Wik. The government calls on the Senate to meet its obligations to provide Australians with certainty by supporting the bill's confirmation that freehold land and other titles which clearly grant exclusive possession extinguish native title. It would be unacceptable for the parliament not to support a bill which reiterates the views of the High Court.

The schedule to the bill includes types of agricultural, residential and commercial leases which the Commonwealth and the relevant state and territories believe, on the basis of a purely legal assessment, have conferred exclusive possession and have therefore extinguished native title. The schedule does not contain one pastoral lease or other lessor interests and specifically excludes mining leases.

The parliamentary joint committee has heard that the Commonwealth took a highly conservative approach to the development of the schedule. Some states and other interests strongly criticised the Commonwealth because certain tenures were not included. Some argue that this approach pre-empts the common law. But to leave these issues to be determined on a case by case basis by the courts would incur an enormous cost and leave enormous uncertainty. From the government's point of view, such a massive expenditure for little or no tangible benefit for Aboriginal people cannot be justified. Expenditure priority should be on determining claims on the 79 per cent of Australia where native title may have survived.

The proposed primary production amendments have been widely misunderstood, as shown by some opposition contributions to the debate in the House and the Senate. The fact is that the current act contains very limited mechanisms for managing future acts on pastoral leases. The bill makes it explicit for the first time that pastoralists can carry on primary production activities on the pastoral lease and that those activities prevail. State and territory governments can continue to authorise primary production activities. State and territory governments can continue to authorise pastoralists to carry on activities outside the farm area which are directly related to primary production activities on the lease. State and territories can continue to authorise the taking of natural resources from pastoral leases.

These acts will be subject to the non-extinguishment principle. This means that they cannot extinguish native title rights. These provisions do not confer any additional rights on pastoralists or any other person. The management of pastoral leases remains a matter for the relevant state and territory government, as it has always been throughout Australian history. The same applies for environmental controls. It is wholly inappropriate for native title legislation to be used as a substitute for proper environmental regulation and management. Moreover, contrary to some of the grossly inaccurate reporting in the past six months, the government's amendments will not result in a windfall for foreign pastoral leaseholders.

For future development on pastoral leases, the government's policy is to ensure that legitimate land management needs, such as for suburban developments, public infrastructure and agricultural developments, can be accommodated. It is hoped that this can be done through agreement with native titleholders and others. The bill's guaranteed legal certainty for agreements about native title encourages this approach. There may, how ever, be occasions when agreements cannot be reached. The bill ensures that the only way that native title can be extinguished in the future is by agreement or through non-discriminatory compulsory acquisition, with compensation on just terms.

There is little doubt that the Native Title Act as passed by this parliament in 1993 has caused delays in economic activity, particularly for resource development, at a significant opportunity cost for all Australians. Several senators have commented on the economic and commercial implications of the existing act's operations. The facts are these: of the 1,958 acts in Western Australia now subject to the full right to negotiate process, only 169 have been cleared for grant as at 24 October 1997. That is a clearance rate of about 8.6 per cent. The `greater than 90 per cent clearance rate' often quoted is for exploration and prospecting licences which have gone through the act's so-called expedited procedures. Under the act, these give indigenous people very little protection, unlike the provisions in our bill, which do provide that protection.

There has been a 19 per cent fall-off in exploration expenditure in Queensland in the last year, which is a matter of great concern to all Australians. My understanding is that about one-third of Queensland exploration titles are being held up because of uncertainty about native title. The nation simply cannot afford this cost.

So far as ministerial intervention and the right to negotiate process is concerned, the power is constrained by very strict criteria. The minister cannot intervene in the right to negotiate process at will. There has been criticism of the bill's provisions allowing the states and territories to apply their own alternative regimes on coexisting tenures. In these areas where native title can only coexist with other interests, the government considers it inappropriate to equate native title rights with full ownership rights.

There is widespread support for the bill's stronger legally certain agreements framework. A significant number of senators have indicated support for these provisions. Most interest groups recognise the potential for agreements to provide a lasting and workable resolution of native title, land use and coexistence issues at a local or regional level, either with or without government participation. Together with the bill's enhanced representative body scheme, the new agreement provisions give an attractive alternative to the more formal and adversarial processes for resolving native title related issues. There is also general agreement that the Native Title Act needs to have an effective registration test so that only meritorious claims can be registered and gain access to the very significant benefits that it provides. The bill's stronger registration test is to bring an end to the problem of overlapping and multiple claims that are dividing Aboriginal communities and deterring investment.

Allegations have been made that the government failed to consult on the bill and, in particular, did not negotiate its contents with indigenous groups. The government followed an open consultative process and, as far as possible, included all relevant interests in working towards the 10-point plan. It developed the working draft bill, refined the bill for introduction into the parliament and developed the schedule of exclusive tenures attached to the bill. We had significant discussions with indigenous representatives, and the bill includes proposals put forward by them.

I commend the work of the parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund chaired by Mr Warren Entsch. The committee spent long hours hearing evidence in Canberra, Broome, Alice Springs and Cairns. The government appreciates the committee's very useful report as well as the time and effort of people and organisations around Australia in giving evidence and making submissions. The government gave serious consideration to the committee's majority report. This is reflected in amendments that we will be proposing to the bill. We also appreciate the consideration of the bill by the Senate Legal and Constitutional Legislation Committee chaired by my colleague Senator Eric Abetz. We acknowledge the submissions and evidence of constitutional experts. Again, there has been full government consideration of the committee's report, as reflected in our proposed amendments to the bill.

From my perspective, the current community and parliamentary debate seems more about fiction than about the facts of the bill and its actual contents. There has been far too much misrepresentation and posturing. There are far too few who have done the hard work to understand the bill, which we see as a fair balance regarding a range of competing interests.

This bill gives effect to and implements the Wik decision. It does not involve wholesale extinguishment of native title on pastoral lease land; it meets many of the concerns of indigenous groups. The government and the parliament must balance the aspirations of indigenous people with the needs of others in the community—in particular, elected local and state governments, farmers, pastoral lessees and workers in the mining industry. The government's bill is a practicable, workable, balanced solution to the manifest deficiencies of the Native Title Act. I commend the bill to the Senate.

   Question put:

   That the amendment (Senator Brown's ) be agreed to.