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Tuesday, 21 December 1993
Page: 5415

Senator GARETH EVANS (Minister for Foreign Affairs) (2.47 p.m.) —There are answers to all of those questions. As to Senator Ellison's first question, it is the case that regulations will be needed to more specifically prescribe the information that is required to be submitted with an application. It will not be left to just the rather broad language of clauses 56 and 57. Those regulations are being drafted at the moment and are expected to be ready for promulgation if not by 1 January then certainly quite soon thereafter.

  Secondly, Senator Ellison asks about different clans wanting to make different sorts of claims. It is the case that multiple applications can be made and in some situations they are quite likely to be made. One of the reasons for the very broad notification provisions in the legislation is to ensure that all relevant interests including, possibly, competing interests, are picked up in the application and subsequent determination process.  At the end of the day, it is for the tribunal to sort out who is entitled to what so far as native title status is concerned.

  It needs to be appreciated—I do not think this point has been made before in the 40-odd hours we have been debating this bill, but I think it is quite a relevant one—that we could envisage a situation of multiple determinations of native title rights with respect to the same area of ground. One native title right vested in one particular claimant might be a kind of leasehold interest—to try to translate that into contemporary property law terminology. Another kind of native title interest that could perhaps exist simultaneously with that might be one that was confined to access rights, rights of entrance to visit a particular sacred site, or perhaps a hunting-foraging right of that kind—native title right expressed in rather more limited terms.

  It is envisaged that the process of determining competing claims and of possibly resolving situations of overlapping claims will be, in some cases, a quite complex one, but I think the tribunal will have sufficient flexibility and authority to unravel it. Part of the consideration it will have in mind is the necessity of having the maximum possible clarity about the nature and extent of that title, particularly when it affects dealings with third parties, be it governments, mining companies, other pastoralists or whatever. They are the issues that will need to be sorted out by the tribunal.

  As to the question of possibly less sophisticated native title applicants being required to swear formal affidavits and so on, that is not really what is contemplated by clause 56. Senator Ellison will notice that paragraph 56(1)(c) talks in terms of the name and address of the person who is to be taken to be the claimant. That is intended to confer a kind of representative status on one individual, perhaps on behalf of the other applicants in his group. There will need to be some identification of who all the applicants are, but, in terms of having declarations by applicants and so on, it is envisaged that one such declaration by one such individual, provided he or she is representative, will probably be sufficient for that purpose and that is the person who has to be named for the purposes of paragraph 56(1)(c).