Senator MINCHIN (Special Minister of State and Minister Assisting the Prime Minister)(12.07 a.m.) —The difficulty with this is that the whole act was constructed on the premise that, in future, the only way in which native title could be extinguished was either by agreement or by compulsory acquisition—that is, that the act removes the general defeasibility of native title at common law whereby, as was said in Mabo, native title can be extinguished by the exercise of sovereignty in granting exclusive possession or interests that are inconsistent with the continued existence of native title.

When you compulsorily acquire something, you extinguish it. If you compulsorily acquire freehold title, the freehold title is removed from the person holding the freehold title. They are not paid compensation for the acquisition of their freehold title and then still hold the title. When someone compulsorily acquires title, the title is gone. You are paid compensation—end of story. The whole premise of the Native Title Act is that compulsory acquisition is the only mechanism, apart from agreement, by which native title can be extinguished in the future. We maintain that.

To introduce the circular argument, and the ludicrous situation, where you have a compulsory acquisition of native title but the native title stays there somehow—it is not extinguished—is an absolute legal nonsense. And there is the convoluted expression about the common law: that is the law; this seeks to change the law. The law is that, if a government acts using its compulsory acquisition powers to acquire title, it acquires the title, and that is the end of the title. That is exactly what happened at Crescent Head where the native title was effectively acquired and that was the end of the native title. That is the only way now—and forever—in which it can be extinguished. But now we are saying it is not necessarily extinguished. That is a legal nonsense.