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Saturday, 18 December 1993
Page: 5201


Senator ELLISON (10.44 p.m.) —I am trying to come to terms with this amendment and I might just address the minister in the first instance. With this amendment, would it not be necessary for there to be any development, in the case of crown land where there is native title, that the Crown would firstly acquire the land for the purposes of a third party and thereby would extinguish native title—


Senator Gareth Evans —In some jurisdictions it is permissible for a third party.


Senator ELLISON —For a third party, and that is the problem. That is what I am getting at. Can we just take this through: if the Crown wants to provide a piece of land to a third party for development and it is crown land and there is native title, it acquires the land and there is a procedure in the bill for that. That extinguishes native title and it goes through a procedure and that allows the third party to develop the land. But is not this amendment thwarting that process by the application of the non-extinguishment principle? Could the minister answer that?


Senator Gareth Evans —What was the last question?


Senator ELLISON —What I am saying is that, where there is vacant crown land which is subject to native title, the Crown—


Senator Chamarette —For public purposes.


Senator ELLISON —Say, it is crown land and it is subject to native title and the Crown wants to make that available to a third party for a development—


Senator Gareth Evans —It is not every jurisdiction in which you could do that.


Senator ELLISON —Right. By the compulsory acquisition it extinguishes native title, but we will leave aside arguments about compensation. There is a process, of course, involved in that and I think the bill provides for that. And then the development proceeds. With this amendment, does the inclusion of the non-extinguishment principle not thwart that process? The non-extinguishment principle is that the native title subsists whilst the act is occurring. Could the minister answer that?