Page 1112 - Week 04 - Thursday, 21 April 1994
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The Commonwealth Act establishes a regime for future dealings by the States and Territories which affect native title land. The regime applies regardless of any legislation by a State or Territory. Accordingly, it is not necessary for the ACT to legislate on this matter. Nevertheless, it is valuable to record that the Commonwealth Act permits the following future acts to affect native title land: Legislative action which applies in the same way to native title land as land held under another form of title; other actions which could be done if the native title land was instead land held under another form of title; a renewal, regrant or extension of a commercial, agricultural or residential lease; an act which has been authorised by the native title holders; and an act which has a minor defined impact upon the native title land. Other acts are not permitted and, to the extent that they actually affect native title, are invalid.
The Commonwealth Act goes on to establish procedures that give people who wish to deal in land the native title status of which is uncertain a capacity to seek from the Native Title Tribunal a determination of whether such title exists or not and its nature. The Commonwealth legislation also provides that compensation is to be paid on just terms where, for example, native title is extinguished or suppressed by the effect of a validation or where a future act in relation to land will affect native title rights. Usually any compensation is paid by the Commonwealth, State or Territory to which the compensable act is attributable. Again, as the Commonwealth Native Title Act creates the right to compensation, it is not necessary for the ACT Bill to duplicate this provision.
Finally, the Commonwealth legislation enables a State or Territory to confirm certain rights relating to natural resources, waters, fishing and access to various areas, including public places. The Bill I am introducing today provides for relevant confirmations in relation to the Territory and, consistent with the Commonwealth legislation, will not have the effect of extinguishing or impairing native title rights.
Members of the Assembly, in combination the Commonwealth Act and the ACT Native Title Bill will provide for a comprehensive regime for dealing fairly with native title in the Territory. The scheme has its complexities, relying as it does on the interaction of two complementary laws. The Government has also been careful to consult the ACT Aboriginal and Torres Strait Islander Advisory Council on the legislation. The council's comments on the Bill have been adopted wherever possible. The council has indicated that, following the Bill's introduction into the Assembly, it wishes to consult further with Aboriginal peoples and Torres Strait Islanders in relation to the legislation. The Government looks forward to receiving any further advice the council wishes to offer. At the same time I intend to raise the Bill for a round table discussion amongst members of the Parliamentary Awareness Group on Aboriginal and Torres Strait Islander matters in advance of debate in the Assembly.
I believe that it is vital that, in the spirit of reconciliation, we maximise the chances of the Bill receiving the full support of the Aboriginal and Torres Strait Islander community, Assembly members and the community generally. The consultation process I have outlined aims to achieve just this outcome. Important as the national native title scheme is, we must keep it in perspective. The effect of the High Court's decision and the legislative response to it is that many Aboriginal peoples and Torres Strait Islanders will not benefit directly from the existence of native title. These are the peoples for whom dispossession through valid acts that have extinguished native title is complete.
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