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Saturday, 18 December 1993
Page: 5129


Senator CRANE (2.15 p.m.) —I would like to raise some questions additional to those we were addressing in the body of the previous debate—the clauses tend to get a bit mixed up—concerning some matters arising from clause 14A as it affected a pastoral lease title and the different rights which would exist under this act when comparing a valid act against a invalidated act.

  I will just recap what the minister said to us, because we were discussing this quite some time ago, about the extinguishment of native title in respect of validation. The minister was saying that on the balance of probabilities there may or may not be a coexistence of title.

  I find it very difficult to accept, where in actual fact one extinguishes the native title, how there could still be on the balance of probabilities a continuation of some other claim. Perhaps the minister could clear up that particular point. I would have thought that the extinguishment of native title would have been just that: the extinguishment of native title. If I could go a bit further as to whether or not it does extinguish native title, the minister in his answer said that there would be a small number, but he was not sure exactly how many.

  In addressing the question of equity, what the minister was saying is that it was fine because there was a small number and therefore the government could just with the stroke of a pen—to quote somebody else in this debate today—wipe that away, yet leave it in as far as valid titles were concerned. I was particularly referring to the Western Australian title where, as we know, there is a reservation in law. It does not matter whether it is a valid title, whether it is a validated title or whether there will be a future title; that statute law will stand in place.

  So far as the Commonwealth legislation is concerned, the minister was saying that it is okay to rip it off if there are only a few people. In other words, if there are just a few people, and not 200, 300, 1,000 or even one million people, it is all right to take them around behind the garden shed and give them a damn good hiding. But if the government gets to a certain number then it is not all right. That is, in effect, what the minister was saying.

  I find it incomprehensible that the government can actually be putting up legislation that will give a few people a good hiding behind the garden shed when other people are okay. As I mentioned before, this creates a double standard situation with the pastoralists. There could be an instance where pastoralists who are neighbours may be faced with totally different situations. That is what has occurred under the Western Australian legislation—I will not go into it again—which has been in place for 100 years. Is it really fair to give those few people, to draw on an analogy, a good hiding behind the garden shed?

  I ask the minister whether he would confirm that validity of pastoral leases actually extinguishes native title. In effect, whatever rights that may survive in this mystical thing—which will be challenged before the court—because native title has been extinguished is not native title.