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Saturday, 18 December 1993
Page: 5116


Senator O'CHEE (11.58 a.m.) —I thank the minister. I disagree with his comments, but I do not want to pursue those here and now. I think the minister would recognise though that the bill is quite interesting. The minister says, `Oh well, it only preserves native title so far as it is extant', and then he says, `The only issue, of course, comes up with renewal'. The problem is that, as the minister knows, there are later provisions of this bill, which we will no doubt debate at length, which deem that, when one comes to consider the renewal of a leasehold interest, one is to operate under a fiction: that the native titleholder's rights are not the rights he or she enjoys but are, in fact, a greater right.

  Mr Temporary Chairman, I put it to the minister: if the context of this legislation is to provide a framework for preserving the status quo in an orderly fashion, then why in certain circumstances does the bill say we are to deem the native titleholder's rights to be something greater than they are? That is the effect, for example, of clause 213(4). I do not want to get into it now, but that was also one of the possibilities—that the government was going to insert this fiction into its amendment to clause 24.

  That certainly does not seem to be consistent with the undertakings given by Mr Crean at ABARE, and by Mr Keating and Mr Lee when they met with industry representatives in April. That is why I am just a little perplexed. It is not just the issue of the prior valid grants of interest in land; it is also the issue, of course, of the fiction which is applied to the status of native title at certain future dates, for example, when one considers the renewal.

  Apparently, Senator Evans is coming back and I am sure he will be listening with bated breath to these important comments. But the point is this: it is wrong to say that this bill preserves the status quo. It is wrong to say that this bill, in consequential clause 18, seeks to give effect to the High Court decision when what it does, in fact, is vary it quite dramatically because it creates a fiction about the exact status of native title rights.

  When one creates that fiction, it causes all sorts of consequential legal problems because of the inconsistency of the deemed status of native title with the interests of other people. For example, in clause 213(4), the bill says that, when there is a renewal of certain leasehold interests and native title exists, one should consider the native titleholders to be freeholders. If the native titleholders merely have a right to walk across a bit of land, that is really just an easement in the anybody else's language. But here it is native title and then it is deemed, for the purposes of considering certain future acts, to be equivalent to a freeholder's rights in the land.

  That is just inconsistent. It is certainly inconsistent with the High Court decision and it is certainly inconsistent with the undertakings that have been given to industry. I would seek an explanation as to exactly why that is the case because, to us, it certainly does not seem to be terribly fair, and it certainly does not seem as though the government is giving effect to all of the undertakings it has given to people along the way. It just took us so long in the committee hearings to unearth these problems, and it has taken us almost as long to make the point. But I am very glad to see that Senator Evans is back, and I am sure he will be able to give us a much more succinct answer.


Senator Gareth Evans —I could if I knew what the question was. Maybe someone else would like to.