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Monday, 20 December 1993
Page: 5335

Senator GARETH EVANS (Minister for Foreign Affairs) (10.32 p.m.) —They have to be able to establish what would otherwise be claimed a native title themselves. It is not just a matter of an absence of an effective native title claim from anyone else. The people who are occupying and owning the pastoral lease in question have to be able to establish it themselves.

Senator Crane —So they cannot at some future time have that transferred over into native title?

Senator GARETH EVANS —No. Just because a person is sitting on a pastoral lease, if he has no common law connection with the land in question that he is sitting on, he cannot convert that to native title. It is only if he would otherwise be able to establish a native title claim. Clause 45(1) states:

This section applies if:

(b) when the application is made, a pastoral lease is held over the area by:

(i) any of the persons who made the application claiming to hold the native title or any other persons with whom they claim to hold the title; or

(ii)a trustee, on trust for any of those persons; or

(iii)a company . . .

It is not just enough to claim the thing to enjoy the status, then, of taking over. The applicant has to be established by the tribunal to have the appropriate status and has to be determined to be, in effect, a native titleholder. I keep saying `in effect' because this is premised on the assumption that the actual native title has been extinguished as a result of the conferral of the pastoral lease.