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Thursday, 30 April 1987
Page: 2046


Senator CRICHTON-BROWNE(10.15) —At the conclusion of my remarks on this matter yesterday I was drawing the attention of the Senate to the fact that the Government was claiming that the denial of applications and granted tenements was a one-off situation and not likely to happen again. Let us go through the sorry saga. I refer to the words in the second reading speech of the National Parks and Wildlife Conservation Amendment Bill 1987. The speech makes it quite clear when it states:

The purpose of this Bill is to amend the National Parks and Wildlife Conservation Act 1975 to prevent exploration and mining for minerals, and related operations, in Kakadu National Park. The Bill applies to all mineral interests, including those interests which existed prior to the proclamation of the Park.

. . .

The Bill also provides that no compensation will be payable by the Commonwealth to any person, body politic or body corporate by reason of the enactment of this legislation.

In other words, retrospectively, applications and granted tenements will be taken from the proprietors by the Government without compensation. While we are on the question of compensation, perhaps we ought to look for a moment at what the Bill says and what the Australian Democrats have said. Clause 7 of the Bill reads:

Notwithstanding any law of the Commonwealth or of the Northern Territory, the Commonwealth is not liable to pay compensation to any person by reason of the enactment of this Act.

I remind the Senate of the private member's Bill which was introduced by Senator Haines. I refer to the Property Rights Protection Bill 1984. It was a Bill for an Act to protect private property from unjust acquisition under certain laws. We were reminded:

Whereas the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in the year 1948 provides, in Article 17, that everyone has the right to own property and that no-one shall be arbitrarily deprived of his property.


Senator Sanders —The mining companies don't own this property outright.


Senator CRICHTON-BROWNE —Yes, they do, with respect. An application gives them right of ownership. Senator Haines made the point in her Bill--


Senator Coleman —An application does not give them anything.


Senator CRICHTON-BROWNE —Yes, it does. We will come to that in a moment. Senator Haines said in clause 7 of her Bill:

Where, before the commencement of this Act but on or after the prescribed day, there has been an acquisition of property of a person that would have been contrary to section 6 if it had occurred after commencement of this Act, that person is entitled to recover, by action in a court of competent jurisdiction, from the person (including a State or an authority of a State) by whom the property was acquired, such compensation as is just.

In the second reading speech on that private member's Bill Senator Haines said:

In a democracy people have a right to expect that their property will not be compulsorily acquired without adequate compensation. Arbitrary confiscation of property was a characteristic of despotic regimes which parliamentary democracy ought not to countenance.

That was the view of the Democrats; that if people owned property they ought to be paid fair and just compensation in the event of its being acquired by governments. It has been put to me that the companies do not own the property in what is now Kakadu National Park. I remind all honourable senators of what Beaumont, J. said in the Supreme Court of the Northern Territory when dealing with the case of Geopeko v. The Commonwealth. He made the point:

The question, then, is whether the mining leases and mining lease applications approved by the Mining Warden before the acquisition of the leasehold property and subsequent acquisition of freehold interest are `interests' for the purpose of s. 70 (6)

. . . .

`Interest' is defined in s. 56 of the Self-Government Act to include `any right, title, estate, power, privilege, claim, demand, charge, lien or encumbrance, whether at law or in equity'. Although s. 145 of the Mining Act provides that `every mining tenement . . . shall be deemed and taken in law to be a chattel interest', it is the definition of `interest' in the Self-Government Act that is at issue here.

He concluded:

There can be no doubt that a mineral lease falls within the definition. An applicant for a mineral lease may take possession of and hold the land applied for pending determination of the application . . . Entry by an unauthorised person is a trespass-

this relates to an application-

the applicant having the right to recover damages.

. . . .

In my view, the rights conferred on the holder of an application for a mineral lease-

never mind the granting of a mineral lease-

meet the definition of `interest' in the Self-Government Act; hence, the applications are, by force of s. 70 (6). . .

In other words, the application and the grant are a proprietary interest. Now we have the Australian Democrats saying that they agree with this Bill, which gives no compensation. But they have already introduced their own private member's Bill which states that anybody who owns private land ought to be given adequate and proper compensation. The Bill is quite clear and unequivocal.

Let us go through this sad saga. Let us go back to the last time the Australian Labor Party was in government. What did the then Minister for the Northern Territory, Mr Rex Patterson, say on 21 December 1973? He said:

I am authorised by the Government to assure you-

that is, the mining company-

that, if your applications for renewal of licences are approved only in respect of areas outside the boundary of the proposed park, you will, upon commencement of the new legislation, be issued with fresh licences under that legislation in respect of the area within the park boundary to which your current renewal applications relate.

In other words, in 1973 the company was given a clear undertaking by the Labor Government of the day that its applications would be granted. What has happened since? Has there been confirmation of that undertaking? Yes, there has been. By whom? Of course, it came from the Minister for Resources and Energy, Senator Gareth Evans, no less an eminent senator in this chamber.


Senator Gareth Evans —What have I confirmed, to whom and when?


Senator CRICHTON-BROWNE —In writing to Mr Sherrington, Manager Special Projects, Geopeko, Senator Evans was frank enough to say:

I refer to your letter of 15 May 1986 and enclosures concerning mineral activity in the Kakadu region.

I am conscious of the concern in the mining industry over proposals for future land use in the Kakadu Region including the new Plan of Management for Kakadu National Park.

My Department has provided comments on the proposed Plan to the Director, National Parks and Wildlife which seek inclusion in the Plan of provisions for operations for the recovery of minerals similar to those in the first Plan.

In other words, his Department made submissions requesting exploitation of minerals within the park. Senator Evans's letter continued:

Such an approach is necessary to give effect to the Plan's key management objective of developing an inventory of all renewable and non-renewable resources in the Park.

The last paragraph states:

You can be assured that I am following this issue carefully with the long term objective of establishing a multiple land use policy for the Region which balances the interests of the mining industry with those of other land users.

What happened after that? What was Senator Evans's next statement? The next joint statement, put out in conjunction with the Minister for Arts, Heritage and Environment, Mr Cohen, states:

The Government agreed today to endorse a revised Plan of Management for the Kakadu National Park which would exclude the possibility of any new mining activity taking place within the Park boundaries.

The provisions in question differ from the previous Plan,-

contrary to what he said in his letter to Mr Sherrington-

now expired, which enabled exploration and mining to take place outside pre-existing leases with the approval of the Governor-General.

In other words, the honourable senator wrote to Mr Sherrington telling him one thing, and then issued a Press statement saying something else. It was a backflip. What caused that? He knows and I know that it was political expediency.

It is a sad and sorry saga. First, the honourable senator called the area `clapped out buffalo country', which is the most honest, frank and realistic observation that he has made in this chamber; then, Cabinet went cruising in a Royal Australian Navy ship and, under the influence of the balmy skies and the fresh salt air, the Prime Minister (Mr Hawke) became very expansive with the Cabinet and talked of the exploitation of Kakadu National Park. That frightened the pants off Mr Cohen, did it not? So what did his Department do? It promptly leaked correspondence indicating that there would be exploitation of Kakadu National Park. All hell then broke loose, right on the heels of the decision to sell uranium to France. That was more than the Australian Labor Party could carry. The Left had it by the tail, and other parts of its anatomy, no doubt. The Government backed off and left the mining industry high and dry, even though the honourable senator had made personal commitments. Frankly, I give the honourable senator marks for still holding those commitments. It is a pity that he does not have the numbers, the political fortitude, the courage or the commitment to pursue the matter.

The Government beat out a deal, but what was it? It wanted to know where the uranium could be found and, as best as could be told from the superficial observation of exploration done so far, that was thought to be in stage 2. Where were gold, platinum and other base metals and minerals likely to be found? It was in stage 3. So, to placate the crazy Left of the party, the Government said: `No'.


Senator Coleman —Hey, watch it.


Senator CRICHTON-BROWNE —With exceptions, Senator Coleman.


Senator Durack —That is nasty.


Senator CRICHTON-BROWNE —It is my be kind day today, Senator Durack. Having looked at stage 2 and discovered that that was where the uranium could be found, the Government announced that there would be no mining in stage 2. That was to stop the fringe lunatic Left from causing the Party any more heartache and pain. The Government pored over the maps and thought that it could probably live with mining in stage 3 because it was not likely that more uranium would be found there. There is now the bizarre position of selective morality, with the Western Mining Corporation mining uranium in South Australia, and having two or three projects in the Northern Territory-but no more.

It is a sorry saga in which the Government has done backflip after backflip after backflip. One minute it is for it, the next minute it is against it. It is like the price of gold over the past three or four days-the Government jumps up and down like a yoyo, depending upon its political fortunes. Rod Cameron should be here on the front bench telling honourable senators what to say next because, frankly, that is clearly how their judgments are made. Of course, the great tragedy is that the Government has pursued all the courses available to it through the courts of the land to prevent Geopeko Ltd proceeding with its applications and its present granted claims-but the Government failed, and it deserved to fail.

When the Government found that it could not win in the courts, it promptly said that it would legislate retrospectively to take away tenements that had already been granted or were subject to application. Beaumont J. issued an interlocutory injunction against the Commonwealth. The Government appealed against that decision in the Federal Court and lost. It sought special leave to go to the High Court, and was rolled again. So what did it do? It introduced retrospective legislation and, in the process, is likely to lock up about $70 billion to $100 billion of resources-capriciously put aside in the interests of political expediency because the Government has no courage, no commitment and no integrity.


The ACTING DEPUTY PRESIDENT (Senator Morris) —Order! The honourable senator's time has expired.