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Tuesday, 21 December 1993
Page: 5483


Senator GARETH EVANS (Minister for Foreign Affairs) (9.54 p.m.) —Senator Tambling still has not answered my question about how this legislation is supposed to stop subdivisions, tourist developments and all the things he is talking about.

  Let me begin again at the beginning. What we are talking about here is the validation of notionally invalid leases by virtue of the operation of the Racial Discrimination Act or some other law in connection with the law of native title. We are not talking about valid pastoral leases or other kinds of leases that always have been valid and in respect of which no credible suggestion arises about invalidity. We are only talking about those which may be invalid. The standard case that people think of in this respect is invalid by virtue of the non-discriminatory provisions of the Racial Discrimination Act—which came into operation in 1975, not before.

  There are not many pastoral leases that have been granted anywhere in the country since 1975. Even those that have been notionally identified as new pastoral leases after 1975 are subject to an argument, I understand, that maybe these were not new pastoral leases at all but simply continuations in a slightly different guise of earlier granted leases.

  Then there is the question of whether or not, if they were granted after 1975, we can say they were granted in a way that was offensive to the Racial Discrimination Act because no compensation was paid—this being in a situation, of course, where nobody knew at that stage, until 1982, that there was such a thing as native title.

  So we have to erect theoretical possibility upon theoretical possibility, and we are only doing it in relation to a very small proportion of the number of pastoral leases that exist in this particular country—a tiny proportion, at best. The suggestion from the National Farmers Federation is that there might have been somewhere between two and 13 such leases that would, prima facie, come within the scope of this legislation. That is out of all the thousands of pastoral leases which exist across the length and breadth of this country. So, when we are talking about dire consequences following from any reading of the effect of the validation clause, we are only talking about this theoretical possibility in relation to a tiny proportion of the total number of pastoral leases.

  But, when we do focus on that as being the particular situation we are talking about, we then see the effect of this particular clause. Bearing in mind that the effect of clause 14 is to extinguish any Aboriginal native title that may have existed as a result of the validation exercise, what it says is that the extinguishment effected by this section does not, by itself, confer any right to eject or remove any Aboriginal persons who reside on or who exercise access over land or waters covered by a pastoral lease which has been, in effect, validated. That is all we are talking about. The extinguishment by itself does not confer any right to eject or remove.

  There are other ways under the law, as spelt out in this legislation, by which such a removal of Aboriginal people could be accomplished. One is by agreement—they might choose, in effect, to renounce or relinquish their physical possession of a particular part of the area in question to which they might otherwise have established some non-extinguished right and to use that as the basis for an agreement with a tourist development or something of that kind. Again, we have the compulsory acquisition provisions which apply to any non-extinguished native title situation anywhere in the country and which would equally apply in this situation, with the compensation that is payable pursuant to that acquisition varying depending on the nature of the title, the interest and so on. So we have ways of achieving the result that may be necessary for economic development purposes.

  But I repeat: Senator Tambling is only looking at the operation of this whole clause in the context of an essentially theoretical validation exercise. There are some big principles attached to this subclause—and we think it is not unimportant to state these principles for the reasons I have spelt out. But, in terms of its practical impact, on any view the impact of this clause will not be great.