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Saturday, 18 December 1993
Page: 5203

Senator ELLISON (10.55 p.m.) —I want to go back to the point I was making earlier when Senator Chamarette made the point of clarification. During that non-extinguishment period, between the acquisition and the vesting, the native titleholder gets compensation. If the government then uses the land for a different purpose, the native title is revived. That is triggered because the vesting did not occur: it was not the vesting for the purpose for which it was acquired. So the native titleholder could end up with the full native title, plus the compensation. I think this is a problem and I would like an answer on it.

  The TEMPORARY CHAIRMAN (Senator Calvert)—We will have to wait until the minister comes back. He is consulting widely at the moment.

Senator ELLISON —Perhaps I should address my question to Senator Chamarette. I raise this in a manner that is not critical of compensation in any way: that is clearly recognised by the High Court. The question is whether it sets out to do what it sets out to do. In relation to that point on acquisition, the non-extinguishment principle applies and compensation is then available to the native titleholder. The government is then able to pull a swiftie, and use it for a purpose other than that for which it was acquired and the non-extinguishment principle then applies. The native title is then revived because (aa) states that only the act for which it was acquired extinguishes the native title. So if a third person, say, public works, uses it then it extinguishes native title. This amendment is being brought in to safeguard against governments acquiring properties for a specific purpose, sorting out the native title question and then using it for something else.

  Whilst it is used for nothing, there is no problem. The native titleholder has the compensation. The non-extinguishment principle applies and native title subsists. But, as soon as anything is done with the land, which is not the acquired purpose, then native title is fully revived. Therefore, the native titleholder could conceivably get the best of both worlds: the native title and the compensation. I do not know whether that was the intention.