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Saturday, 18 December 1993
Page: 5197

Senator GARETH EVANS (Minister for Foreign Affairs) (10.26 p.m.) —Yes, but if the Commonwealth or a state acquires land for some purpose and then does nothing with it, what does it matter to anybody that native title is not extinguished? Let us face it: in some states, the purpose of a compulsory acquisition can be pretty broadly expressed, and in some states land can be acquired for the purpose of letting it out again by way of lease to private commercial interest. That is one of the things that one can do with a compulsory acquisition in some states.

  If the Commonwealth or state or territory then does something with the acquired land for a public purpose, and that is consistent with the law of compulsory acquisition of the state in question, that would be a step taken for the implementation of the purpose of the acquisition, and so the title would be extinguished and clear title would be taken by the lessee. The title would be extinguished anyway by the grant of a lease under first principles, we guess, of common law.

  So there is not likely to be any problem for anybody. The only problem is for native titleholders who get their title extinguished for a purpose that is not in fact implemented. That is bad news for them, when there is no redeeming public interest advanced in extinguishing title before something actually happens.

Senator Alston —Is it not an impermissible act—unless you have extinguished native title—to grant the new title?

Senator GARETH EVANS —The granting of the new title would itself constitute an act being done to give effect to the purposes of the acquisition and would as such accomplish the extinguishment. So there is no inconsistency there.

Senator Alston —But it is an impermissible act and it cannot be done unless native title is extinguished.

Senator GARETH EVANS —Nothing in this act prevents any act that is done in giving effect to the purpose of the acquisition from extinguishing the native title rights and interests. So any concern of that kind is met by the explicit language of the drafting in the second part of the Greens' amendment. For the Greens to acknowledge that anything is capable of extinguishing anything is a bit of a triumph and ought to be acknowledged as such. But there it is, it spells it out and deals with the particular issue that there is worry about.