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Saturday, 18 December 1993
Page: 5147


Senator GARETH EVANS (Minister for Foreign Affairs) (4.08 p.m.) —With respect, that is a misunderstanding. The suggestion is not that the existence of native title or any other rights over the land gives one, by extension, some rights over the water. That is not the context in which this section applies. The context in which we are discussing it is where there are native title rights over the water, to what extent do those rights apply to stop activities taking place on the water? The test for determining whether the native titleholder can stop things taking place on the water is the freehold test—that is, whether or not an adjoining freeholder would have that same capacity.

  It is because there is a bit of an oddity in ordinary property law about having rights over water as such. There are rights to utilise water and rights of riparian owners and so on to treat with the river in various ways. But the notion of having rights over the water—I suppose there might be fishing licences or things of that kind in the law which are parallel in their character—as such is one that is a bit hard to get a hold of.

  That is why, in talking about what we can and cannot do with native title rights over the water, the freehold test has been devised. It has also been devised as a measure of compensation. That also crops up in this clause. I think the honourable senator is probably misreading the clause in question as having some effect in vesting rights over waters if one is simply a native titleholder of land. That is not so.