Senator BOLKUS(10.02 p.m.) —This goes to offshore places and in this particular area there is some division, as has already been evidenced, between the ALP and other minor parties. There is, of course, major division between other minor parties and the government. What the government's bill does is to adversely affect native title claimants' offshore and intertidal zone interests. It does so at a time when the matter is still to be decided by the High Court in the Croker Island case.

Subdivision N of the government's proposal is one of the nubs of the problem. That subdivision envisages that any native title rights may be recognised by the High Court and that any native title rights that may be recognised by the High Court can be acquired. This means that this happens despite there currently being no means of identifying which acts will extinguish native title. As a consequence, it would be very hard to ensure that the appropriate notification provisions as required by the broad demands of the just terms compensation provision of the constitution are met.

We are talking here of a government moving to stifle the development of the common law in respect to offshore. We are also talking of a government which is trying to remove indigenous people's rights in respect of the intertidal zone by removing the right to negotiate in respect of the intertidal zone. This, of course, is a right currently existing under the Native Title Act. We are concerned that the government's legislation is unnecessary. To the extent that it extinguishes the right to negotiate, it obviously has a similar effect on the rights that are being consequently extinguished by the extinguishment of that right to negotiate.

The government's proposal will have a major impact on indigenous people's traditional fishing and shellfish gatherings in the intertidal zone area and in offshore places, of course, if the High Court rules that native title to some extent does exist offshore. In short, this can be described as a gratuitous attempt to limit the ability of native title holders to assert and pursue their claims. It is that sort of typical government response that says, `Oh, well, let's just buy them off; money will do the job.' But you do not really appreciate that there is more than money involved here. Native title interests emanate from a whole range of reasons.

I have said that this is a gratuitous attempt to limit people's ability to assert their claims. It also raises a number of inconsistencies. You are trying to pre-empt the common law and you are trying to override the right to negotiate in respect of the intertidal zone. When you look at some of the arrangements along Australia's shoreline already, for instance, at Shoalwater Bay, indigenous people have under agreement with the federal government a right to continue traditional practices in respect of those intertidal waters. I think it is also in respect of waters in excess of the intertidal zone. Basically what you are trying to do here is overturn that sort of practice.

It is worth noting in this debate that what the government is doing here is in contradistinction to the Torres Strait treaty of 1984 whereby the Commonwealth `protected the traditional fishing activities of the inhabitants of Papua New Guinea and created a protected zone in the Torres Strait'. If the government's amendments tonight are passed, then Australia's indigenous citizens will have similar traditional rights extinguished—rights that are recognised by treaty, rights for people from the Torres Strait and Papua New Guinea and rights that are recognised by agreement with indigenous claimants in respect of other parts of Australia. This government is trying to extinguish those rights in a broad general sense.

So what we are doing is seeking to amend subdivision N to ensure that there are minimum standards for notification and consultation with native title claimants about acts carried out offshore. These standards will ensure that, if native title is found to apply offshore, the interests of native title holders are taken into account and they are properly notified, consulted and involved in respect of any acts that may give rise to compensation. We will apply the non-extinguishment principle to the acquisition of native title rights on offshore waters. We will also move amendments to maintain the current regime—that is, the right to negotiate regime—in respect of the intertidal zone waters.

In conclusion, the government is, once again, trying to stop the development of common law rights here. It is something that we should all be concerned about. It has immediate effect on people's rights and practices.