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Monday, 20 December 1993
Page: 5270

Senator GARETH EVANS (Minister for Foreign Affairs) (3.24 p.m.) —It might be helpful if I answer Senator Campbell's questions. The important thing to realise about the amendments to section 36 is that they apply only to the right to negotiate provisions of subdivision (b) of clause 25. In turn, in clause 25 it is made clear that the right to negotiate that we are talking about and the arbitral response that is triggered if that negotiation breaks down, applies only to certain limited situations. Those situations are, firstly, mining related situations and, secondly, compulsory acquisition for a third person. That is made clear in clause 25(2).

  Clause 25(2) is the way into this whole subdivision (b) about the right to negotiate and, eventually, when we get to section 36, arbitral determinations. So forestry development has no application in the context of these provisions. If people want to get agreement with native titleholders about a forestry development of the kind that Senator Campbell was contemplating, that is a reasonably straightforward matter. They can normally get a forestry development going only with the agreement of the freeholder owning the land in question. Then they can negotiate their commercial arrangement to their hearts' content.

  The freehold equivalent principle applies here. A forestry company can negotiate with the native titleholders as though they were freeholders. It would get its commercial deal negotiated and bedded down as a result. None of this would involve the application of this arbitral process one way or the other. I hope that has clarified the situation for Senator Campbell because I know there is a bit of confusion around as to the precise context in which this arbitral stuff works and about profit related payments being determined. It is only in the very limited context that I have described that that would be excluded.