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Special Minister of State says the Democrats are proposing economic vandalism if they do not support the validation regime provided for in the Government's native title Bill; discusses just terms compensation; maintains the Bill is constitutional

TONY EASTLEY: Well, joining us now is the Government Senator Nick Minchin who carries responsibility for getting the Government's legislation through the Senate - a difficult job. He's speaking here to Matt Peacock.

MATT PEACOCK: Senator Minchin, you heard what Senator Woodley said. It looks like there's a stand-off in the Senate this week.

NICK MINCHIN: Well, the Democrats are proposing economic vandalism if they do not support the validation regime provided for in our Act. There was a validation regime in the current Native Title Act. The validation regime we've provided for is essential to provide legal certainty for mining leases and other titles issued in good faith between the time the Native Title Act came into effect and the Wik decision. Every government in this country, including the Keating government, understood the law to be that all leasehold land extinguished native title. Chief Justice Brennan said that in the Mabo decision, and all governments acted in good faith on that basis. And indeed, the Federal Court made a ruling to that effect. What happened in the Wik decision was an overturning of our understanding of the effect of a pastoral lease on native title. Now, it is essential that the Federal Government validate mining titles issued in that three-year period. There is full compensation for any effect on native title.

MATT PEACOCK: You knew that the court was considering this. I mean, essentially, weren't these people just punting on the fact that the Wik decision would go the other way?

NICK MINCHIN: It was a matter of operating on what was known to be the law, and the law of the land at that time....

MATT PEACOCK: But the law hadn't been decided. The court was considering it.

NICK MINCHIN: The Chief Justice of the High Court in the Mabo decision, the lead judge, said that all leasehold land extinguishes native title and that up to that point a pastoral lease was understood to be like any other lease. The Keating government....

MATT PEACOCK: You knew....

NICK MINCHIN: No, you did not know. The Keating government operated on the very clear presumption that native title was extinguished by pastoral leases. It said so repeatedly, as did every government, as did the Federal Court of this country, as did the Native Title Tribunal.

MATT PEACOCK: Even you considered the fact that the High Court was examining the Wik decision. I mean, everybody knew that the court was still out on that.

NICK MINCHIN: It wasn't that the court was out. The law was clear....

MATT PEACOCK: Well, the court was in but it was still considering the issue.

NICK MINCHIN: But that doesn't mean you operate on the presumption that, you know, the whole law is going to be turned on its head. And, well, you've got to deal with the reality now. We have had these mining leases issued in this three-year period. Millions of dollars of investment are at stake. Now, whether you like it or not, the Government of this country has an international responsibility to ensure legal certainty in relation to the issue of those leases. And it would be economic vandalism of the worst kind not to validate those leases, and the ALP understand that.

MATT PEACOCK: Right. Now there are on that subject you're notifying potential claimants that they might have lost something from this process, are you? Is that an amendment you're about to put in?

NICK MINCHIN: Oh, well, I'm not at liberty yet to reveal our amendments, but one of the propositions is that a full notification procedure be put in place. It is not in place....

MATT PEACOCK: What would that involve?

NICK MINCHIN: Well, there is no ... what we've done is essentially follow the regime in the current Native Title Act and we've provided just terms compensation arrangements, but the question of notification to potentially affected native title holders of the issue of these validated leases is an issue we are currently addressing.

MATT PEACOCK: And how would you do it?

NICK MINCHIN: Well, if you did it there'd be an obligation on State governments to issue notices to native title representative bodies and to the public of the validated leases and the right to compensation.

MATT PEACOCK: You say you're addressing that. Does that mean that it's a possibility you'll put that in an amendment?

NICK MINCHIN: Yes, that's a possibility. We're examining now; we're finalising our amendments to our own Bill....

MATT PEACOCK: Is it a good idea, do you think?

NICK MINCHIN: Well, it's an option we're seriously considering.

MATT PEACOCK: But you'd be seriously considering it - why - because without it, there wouldn't be as much constitutional validity in this potential extinguishment?

NICK MINCHIN: No, it doesn't go to the constitutionality of the Bill. The Solicitor-General and all our other legal advisers have made it quite clear that the Bill is constitutional. And of course, if this argument is sustained, it's an argument that can be used against the current Native Title Act, because we've used essentially the same mechanism for just terms compensation as in the current Act. So those who argue that ours is somehow invalid because of this, are arguing the current Act is invalid.

MATT PEACOCK: Well, of course, you say that the Solicitor-General's made that clear, but we've yet to see any kind of a legal opinion that you've been given on whether we comply with international obligations. The Prime Minister basically says that it's not a question of that, it's just a domestic matter. But surely it does matter. When are we going to hear from the legal opinions that you've been given?

NICK MINCHIN: Well, what matters is the constitutionality of the Bill and the question of whether or not the Bill benefits Aboriginal people, and we've released our legal advice on that question. We've....

MATT PEACOCK: Alex Shand disagrees, apparently.

NICK MINCHIN: Well, I'm not sure what his opinion is. We've gone to the best legal advice available and that's the Solicitor-General - the most experienced constitutional law in the country, appointed by Labor, who has said this Bill is constitutional and is of net benefit to Aboriginal people. You can't get better than that. Now, we're well aware of our international obligations. We've kept the same arrangements in relation to the Racial Discrimination Act as are in the current Act. We have preserved Mr Keating's clause which says: 'Nothing in the Native Title Act shall affect the operation of the Racial Discrimination Act.'

MATT PEACOCK: A quick final question: the polls, the latest poll on this, shows that people are confused, but, I mean, there's only something like 30 per cent support for the Government's Bill. What do you make of that? Are you concerned by that?

NICK MINCHIN: Oh, I haven't seen all the polling. I understand only 4 per cent of the community say they know a lot about it. Look, when this issue first arose, 65 per cent of people said there should be no native title claims on pastoral leases.

MATT PEACOCK: And it's going down now?

NICK MINCHIN: We rejected that view and we are allowing native title claims to proceed on pastoral leases. We're not being governed by public opinion. We're being governed....

MATT PEACOCK: So, you're not concerned....

NICK MINCHIN: We're being governed by what's right for the country.

MATT PEACOCK: Okay, Senator, thanks for joining us.

MATT PEACOCK: My pleasure, Matt.

TONY EASTLEY: Senator Nick Minchin speaking there with Matt Peacock, the Senator carrying responsibility for getting the Government's legislation through the Senate.