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Saturday, 18 December 1993
Page: 5148


Senator GARETH EVANS (Minister for Foreign Affairs) (4.13 p.m.) —I know this is tricky, but, as the honourable senator says, it is just a matter of reading the text of the clause carefully. For the section to bite, native title is required to apply to some extent in relation to an onshore place. The onshore place can be either land, water or a mixture of both because of the way that onshore places are defined. They are not defined as land; it can be land or water, including onshore water. That is true. But it is a matter of determining whether the particular native title right in question is one that relates to land, is one that relates to water, or is one that relates to both. That is something which is determined separately from the operation of this clause.

  This clause works on the presumption that the native title exists in relation to some onshore place as defined in some way other than by the operation of this clause. Subparagraph (ii) of subclause 16(2) says that where there are any waters concerned; where the onshore place happens to involve some waters—in other words, where the title in this instance extends to waters—in determining what kind of regime applies and what powers are associated with that native title, one looks at what kind of powers are exercisable by someone holding freehold on the land adjoining that. I have got nods from all the advisers, so I hope that is sufficiently clear.