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Monday, 20 December 1993
Page: 5346

Senator GARETH EVANS (Minister for Foreign Affairs) (11.55 p.m.) —I am indebted to the Greens for their support of our amendment 20. I am disappointed by the attitude they have taken towards amendment 21. Just because it is advanced by the Northern Territory government, as I said it was, does not mean, ipso facto, that it should be regarded as a bad thing.

Senator Alston —It is an ideological response.

Senator Collins —Then presumably it will attract your support, Senator Alston.

Senator GARETH EVANS —One would hope so, but that would really be to pursue a false dream. The amendment makes clear that where there exists public utilities, such as water supplies, on pastoral leases where native title is recognised under this clause, they will remain the property of the relevant government. It is a bit hard to see how that impacts adversely on the interests of native titleholders or anybody else. Be that as it may, I note the Greens' position and ask them to reconsider. I hope they will, but I have no great confidence that, in the circumstances, that is likely. So maybe that is another issue that will have to be subject to review at some later stage next year.

  As far amendment 16 is concerned, the Greens possibly have underestimated the extent to which the real impact of what they are trying to say in that amendment is covered by our amendment 20. Government amendment 20 to clause 45 does make it clear, in determining whether native title exists over land, that any extinguishment caused by acts done under the lease are to be disregarded. Acts done under the lease could include the fencing off of areas thus preventing future access to the land by the native titleholders—in other words, the sort of situation that I think Senator Chamarette has in mind.

  The trouble with Senator Chamarette's amendment, which also addresses the situation of exclusion from a pastoral lease, is that we read it as just simply going too far, in effect providing for conversion to native title in these pastoral lease situations, even though the Aboriginal people in question have not had a continuous connection with the land. It is an understandable attempt to deal with situations where at some stage or another people were forced off the land, but we see that a continuing connection of some kind, not necessarily physical, with the area in question in accordance with their customs and laws still needing to be established. We think it goes too far to strip away all of those criteria. There are clear criteria in the common law and we believe they should have some force and effect.

  Similarly, I have to say that we have difficulty with amendment 17, which addresses the question of escape from obligation arising under the ordinary terms of the pastoral lease. We see the effect of this provision—whether it is intended I do not know—as enabling those of acquired native title to surrender the native title by converting a pastoral lease and thereby escaping from any obligations arising from the pastoral lease. It is certainly not our intention that by converting a pastoral lease into native title the owners would be able to renounce the pastoral lease and then escape from the obligations which the pastoral lease carries.

  The pastoral industry is obviously a very important export earner. We are committed to its future development. We are committed to rational and equitable treatment of all people occupying these leases. Aboriginal owners are an important part of the industry and they should regard themselves as having as much of an interest and obligation as fellow owners in the industry to ensuring that their fellows live up to their obligations in areas such as feral animal and pest control. They are very important obligations to be preserved and we see the terminology of this amendment as undercutting those obligations.

  There is also a technical problem about this amendment. The states cannot be required to accept the surrender of a lease where its terms do not provide for this. The Commonwealth under those circumstances would have to acquire the underlying estate from the state in order to accept the surrender itself. I have tried to give some reasoned explanation for our position on those amendments. Regrettably, we cannot accept them and ask the committee to vote against them accordingly.

Tuesday, 21 December 1993