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Saturday, 18 December 1993
Page: 5115


Senator GARETH EVANS (Minister for Foreign Affairs) (11.54 a.m.) —Perhaps I can comment on this to anticipate some further points of the same kind being made. It is worth repeating that if we are talking about a valid prior grant—about which there is no question, threat or suggestion of invalidity—what this means is that the interest that is granted by a valid pastoral lease or a valid mining lease can be fully exercised, fully enjoyed.

  If the nature of the pastoral lease in question is such as to vest exclusive rights of occupancy, that means just exactly that. Other people can be excluded physically from doing anything on the property, even though there might be some conceivable non-extinguished native title still there and capable of revival at some future stage. I am reminded that `valid' is—


Senator Crane —Can't you read?


Senator GARETH EVANS —I could not read which bit of the page I was being referred to because there is a mass of bits of scribble on it. Also I cannot read when I have my glasses on because they are for long distance as distinct from short distance. If Senator Crane gave me some bifocals, I would be much better.

  Just to reinforce the point—and I am indebted to my adviser for confusing me on the matter—`valid' includes `having full force and effect', which is what I was saying. But there it is; it is in the statute. `Having full force and effect' means just that. If the terms or the legal nature of the pastoral lease is to give one exclusive occupancy, it means just that: one can exclude other people. If the terms of the mining lease are such as to enable one again to have exclusive physical occupancy and do other sorts of things, one can do all those things and exclude other people, whatever the notional continuing existence of a non-extinguished native title might prove to be.

  The only context in which it really becomes relevant to determine whether or not native title has been wholly or partly extinguished by the grant of the interest in question is when that interest comes up for renewal or extension, or something of that kind. The rights then do vary, depending on whether there is in existence an extant native title or only an extinguished native title.

  If, when the interests come up for renewal or whatever, there is an existing native title, under those circumstances there are rights of negotiation and all the rest of the things that are associated with native title. It is implicit, I guess, but it gives that extra clarity and makes clear that there will be rights of renewal and confidence in the capacity to go on enjoying the economic interest in future. It is because of the need to introduce some certainty about that that we have proposed later on the amendment to clause 24, which is controversial for various reasons.

  But let us leave the debate about renewals and extensions and all the rest of it till later. If those opposite are just asking about why we have not got in the legislation more explicit provision defining exactly what the status in detail of valid interests are, vis-a-vis native title, it is because it is not necessary to do so. The very nature of a valid interest is such as to mean that it has its own full force and effect. One just reads it in terms of the legal character of the interest in question. It only matters as an issue when one gets to renewals.

  Perhaps that has explained a little more clearly why the legislation is silent on validity generally. Obviously, it could not be silent on invalidity because there would be real uncertainty if that area of potential invalidity were unaddressed. That is why we go into almost a codification of it so far as invalid leases and interests are concerned.