Senator MINCHIN (Special Minister of State;Minister Assisting the Prime Minister) (12:03 PM) —I am sorry, Senator Harradine. What was the proposed development in the middle of their fishing grounds?

Senator Brown —I am Senator Brown. There is some difference between me and Senator Harradine. Senator Minchin, what rights do the indigenous people in the Mornington Island area have to their traditional fishing grounds if somebody wants to stick an oil derrick smack bang in the middle of those grounds?

Senator MINCHIN —The position in the current act is that everything offshore is permissible. There is effectively no specific future act regime; the current act provides that any native title holders have the rights offshore that correspond to the rights of an equivalent non-native title holder. We have taken up that scheme. We did contemplate the possibility that native title may be found offshore. We left that to the common law.

As we know, Justice Olney made a decision in relation to Croker Island yesterday which, if upheld by the High Court—and I gather the Aboriginal claimants themselves are going to challenge the decision in the High Court—means that the scheme in our act, which is quite detailed, would then apply. It does provide a framework for state, territory and Commonwealth governments to apply with respect to the possible existence of native title offshore.

Again, we get down to the business of procedure, not the rights themselves—we seem to be talking about procedure all the time. It is a matter of what procedure a state, territory or Commonwealth government must go through if it wishes to issue leases, licences, permits or whatever involving activity offshore and what must be done with respect to any native title holders in that area. As we saw with Justice Olney's decision, the native title rights are significantly restricted. They certainly do not amount to exclusive possession. They have the right of access to traditional fishing which must be non-commercial—rights of that kind. They have relatively limited rights which presumably they would have been able to use anyway.

In respect of procedural rights, we have made it quite clear that, generally speaking, the native title holders must be given the same rights that an equivalent titleholder would have under that state, territory or Commonwealth legislation. Again, we are applying the doctrine of equivalence. The common law does not provide any procedural rights per se, but we are legislating to provide that, as with the procedural rights attaching to any statutory titleholders offshore, the equivalent titleholders, to the extent that they have procedural rights provided by statute, must apply to the native title holders.

Let us say that a commercial fishing operation had certain fishing rights to an area and a state government proposed to allow an oil rig to be put in place. Whatever procedural rights attached to that commercial fishing lease would, I am advised, under our legislation, then attach to any native title holder who held native title rights to pursue traditional fishing in the area.