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Wednesday, 8 April 1998
Page: 2290


Senator MARGETTS (9:34 AM) —I move:

(196) Schedule 2, item 19, page 153 (line 23) to page 154 (line 18), omit subsections (2) and (3), substitute:

(2) An application for a determination of native title must not (as far as is reasonably practicable) cover an area of land or waters in relation to which native title has been extinguished.

(3) If such an area is included in the boundaries of a claim, it must (as far as is reasonably practicable) be identified and excluded from the claim for a determination of native title.


The TEMPORARY CHAIRMAN —Is leave granted for all three amendments to be taken together?

Leave granted.


Senator MARGETTS —This is a really vital issue. I think it is very important to consider the importance of this issue for justice. I do not think any one of us would like to be in a situation where, for reasons of complexity and technicality, we have knocked out or caused people's legitimate native title claims to be knocked out on the basis of technicality. That is what we are in danger of doing here.

In a short while I will go back to amendments 184 and 269, but Greens-Democrat amendment 196 replaces the absolute prohibition on claims over previous exclusive possession tenures and exclusive rights on non-exclusive tenures with a more general obligation, as far as is reasonably practicable, not to claim areas where native title is extinguished under section 61A(1). This is important because it might involve a more complex mining claim. There are situations where people are in the courts, especially the wardens' courts, daily, sometimes for very long periods of time, trying to knock out people's claims on the basis of technicality. This may well be what indigenous Australians will end up receiving if the bill stands as it is currently written.

In Australia, we cannot in all conscience set up a situation where the sheer complexity of the application forms is the basis on which people's claims are not received. We cannot use that as the basis for justice. It cannot be seen that rights can be removed or not obtained legally—in the very narrow sense of `legally'—because, under hundreds of potentially exclusive possession tenures, a mistake, and potentially one mistake, is made.

Nobody can tell me that it is the right, fair and reasonable way to go to leave in there the potential for technical knockouts, TKOs, on something as important as establishing native title claim. I think it is outrageous that we have a situation where people have to write their applications like a jigsaw puzzle anyway. I am sure that, between ourselves, as adult people in our society, we can work out how people can establish where their traditional lands exist. After that is established, we can work out the areas where they are unlikely to get a resolution of their native title claim. But, no, the government is not interested in that kind of fairness. But considering they have gone along that road, this amendment is a totally reasonable compromise. I would hate to think that any Australian parliament this century could deliberately leave in the bill a provision which has such potential for technical knockout.

Amendments nos. 184 and 269, which have already been moved, clarify that native title claim applications must include all people who can claim to hold that particular native title. We also think that is a difficulty, but this amendment will clarify it so that it is not as onerous as the provision proposed by the government under section 25(1)(b) and section 25(3).

I do not know whether Senator Harradine was listening to my first argument in relation to amendment No. 196, but it is absolutely essential, I believe, that we are not associated with an amendment which creates a nightmare of technical knockouts of claims on the basis of mistakes on application forms.