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Tuesday, 21 December 1993
Page: 5448

Senator TAMBLING (5.33 p.m.) —My second issue arises out of clause 197, which reflects on the capacity of states and territories to confirm ownership and control of certain resources where they are said to be subject to the provisions of this bill. The minister acknowledged earlier that there were some very serious complications with the present clause that obviously will have to be addressed by the government in future. The minister has already acknowledged that he has discovered some points; I think it was in clause (3) or something like that.

  I draw to his attention the expression in subclause 197(1)—`subject to this act'. Because those words appear, the confirmation by the government of the ownership of minerals, the control of waters and fishing rights may now need to go through the future acts regime in the bill and compensation may be payable. If these matters are not addressed and clear, there will be an endless loop of litigation along with the resulting costs and delays that will arise.

  The Greens have addressed clause 197 with its amendment 34A, which the government has indicated it is inclined to support. It substitutes subclause 197(3). The existing subclause 197(1) allows states and territories to confirm the right of ownership of natural resources. Subclause 197(2) allows confirmation of public access to and enjoyment of things like beaches and the banks of rivers. The present subclause 197(3) says that subclause 197(2) does not extinguish any native title rights or affect any land that has already been granted to Aboriginal people.

  Proposed clause 197(3) is said to apply to both 197(1) and 197(2) and not just 197(2), as is currently in the bill, and extends not just to extinguishment but is also said to prevent any impairment of native title rights and interests. It may be that state and territory laws confirming existing ownership of resources, control of waters or existing statutory fishing rights may impair native title rights. The Greens' amendment sets up internal inconsistencies between these subclauses. This will be fertile ground for these legal disputes. I therefore ask the minister, seeing he is inclined to accept this amendment: will the law confirming the crown control of waters prevail or will it be struck down because it impairs some native title interests? The amendment changes the whole meaning and purpose of clause 197 and should be rejected.