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Saturday, 18 December 1993
Page: 5177


Senator GARETH EVANS —(Victoria—Minister for Foreign Affairs) (8.36 p.m.)—If the pastoral lease in question does not in terms affect the exercise of the native title, it can be granted. The problem is, the inhibition is, in granting a pastoral lease to the extent that it adversely impacts on native title. If the two are capable of living together, they can be granted conterminously in the future, and there are some kinds of pastoral lease that do not involve absolutely exclusive occupancy; there are some kinds of pastoral lease that may involve exclusive occupancy, because they carry with them some statutory reservation that might enable some enjoyment of some residual component of native title rights. That is possible. But the basic situation remains that, under the legislation, native title rights are to be construed as having the same effect in law as freeholder rights, just as, under the present law, no government can grant an interest over land that is occupied by existing freeholders. So too, under this law, native title interests cannot be overridden.

  It is all a function of just whether or not honourable senators are prepared to give weight and value and substance to native title. If they are not, if they regard this as some latter day invention of the High Court in a way that is not to be taken seriously, not to be respected, not to be valued, then honourable senators will respond in the way that they are. If honourable senators regard the recognition by the High Court of native title, if they regard the overturning of terra nullius as being one of the outstanding feats in our jurisprudential history of at last giving some recognition to proprietary rights which should have been recognised in the past but have not been and now are for the first time and, if honourable senators are prepared to give weight and value and substance and respect to those proprietary rights, then they should not be prepared to argue for the cavalier overriding of those rights in a way that has been the norm in the past.

  If there are inhibitions on the extent to which those rights can be overridden, honourable senators should be applauding that as for the first time getting a little bit of justice back in the system. Honourable senators should be applauding the fact that, for the future, those rights will be given weight and value and respect, whatever the injustice has been in the past, and whatever the irreversible injustice may be. We cannot unwind the past, to the extent that those rights have been overridden in the past; we simply cannot in the interests of the economy of this nation and the interests of all the other Australians who have economic interest that would otherwise be under assault under these circumstances in relation to grants that were given in total good faith in the past. We cannot overturn that; we cannot override that. But we can get it right for the future. Let us try, in a spirit of reconciliation and a spirit of understanding of the justice of the claim in question, to get it right for the future and not carp and not harp and not try to whittle away and reduce or demean the value of the rights that have been, for the first time, recognised by the High Court. That is what this is about.