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Monday, 20 December 1993
Page: 5272


Senator GARETH EVANS (Minister for Foreign Affairs) (3.34 p.m.) —I cannot think of a more succinct way of replying than to say there is no foundation whatsoever for suggesting that the government has changed its mind, is considering changing its mind or may change its mind on the question of the specific vesting of mineral rights in native titleholders. That is no part of our thinking, for reasons that have been amply set out by the Prime Minister (Mr Keating).

  The only point I made in reply to Senator Chamarette is that the High Court has not passed upon the question as to the extent to which, if at all, mineral rights could be regarded as being associated with native title, or at least some forms of native title. The High Court has not passed upon it. From what it has said, there is no reason whatsoever to think it would conclude that mineral rights are part of native title. The matter simply was not argued before them, so the issue has not been addressed.

  All I was saying is that the legislation does not rule out the possibility of that issue being tested at some time in the future. If it was tested in the future, in my own judgment, as the government's judgment, as to what the state of the law is—bearing in mind what the High Court said about the nature of native title and knowing what we do about what is necessary to achieve extraction in most forms of minerals these days other than surface outcrops—the notion of mineral rights below the surface existing as part of native title is a pretty highly implausible one. I do not think anyone should be getting too excited about the possibility of that occurring.

  I was just simply saying to Senator Chamarette, as I have said on a number of other occasions—for example, in the context of extinguishment of native title and in the context of valid pastoral leases—that is an issue which simply has not been finally resolved by the High Court and which is left open by the terms of the legislation, and deliberately so.