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Friday, 15 June 1984
Page: 3184


Senator CHANEY (Leader of the Opposition)(5.44) —I welcome the chance to contribute to the debate on the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Bill 1984. I must say that one of the welcome features of the debate has been the universal affirmation by honourable senators from both sides of the chamber that they are in favour of the protection of sites which are sacred to Aboriginal people. I was asked a while ago by Senator Peter Baume, who is addicted to crossword puzzles: 'What do you call a list of saints?' I told him that I thought the answer was a litany. If that is true, I want to join a litany of saints. I want to join Senators Boswell , MacGibbon and Crichton-Browne in their affirmation of the importance of the protection of Aboriginal sites. I welcome the fact that so many Opposition senators have put that view on the record.

The difficulty that the Opposition has with this legislation is that, like many Acts of Parliament, it could be used to do good, but, like many other Acts of Parliament, it could also be used for purposes which would not achieve good. It is the view of the Opposition that the legislation in this form at this time is not in the interests of the Aboriginal people of Australia, nor is it in the interests of the broader community.

We have had many suggestions made during this debate about how we should all behave. Senator Cook said that this was an issue on which there was division when we should be unified. Yet when it was raised with him, by way of interjection, that there were differences of view even between the Federal Caucus and the State Caucus of the Australian Labor Party in Western Australia, he was quick to categorise that as an honest difference of view. I hope to be able to put down what I regard as some honest differences of view with this legislation. I believe they are views which cross party lines and which cross even the lines of race in this country, with some Aboriginal people being concerned about this legislation and others being very actively desirous that it be passed. I believe there is room for honest differences of view but on this occasion the Opposition is right and the Government is wrong. I will try to explain why.

As far as the debate is concerned, I would like also to remind the Senate that Senator Cook, in that same speech, having made that plea for more unity, went on to describe critics of the legislation as indulging in scaremongering, racist claptrap. I will try to avoid that sort of pejorative expression in describing some of the views that honourable senators opposite have expressed.

To comment on a couple of other contributions to the debate, Senator Macklin last night made an excellent speech but with which I strongly disagree. I hope during the course of my speech to be able to indicate why I differ from what I am sure on his part is a most honestly and sincerely held view. As I may not have time to get back to it in the time available, I say that Senator Macklin's satisfaction that this Parliament should sit as the final arbiter of whether a particular Aboriginal site should be protected is a proposition which I find very hard to support. Having had some experience of the conflict which can occur about the extent of sites and protection which should be afforded them, I can say only that the Western Australian view that such matters should be vested in a body such as the Western Australian Museum finds more favour with me.

I believe that matters of such complexity, where so many issues can arise and so many examples can be brought forward for examination, are beyond the physical capacity of this Parliament. With the greatest respect for the views put forward by Senator Macklin, I have to say that I think they ignore the realities of the work load of this Parliament and the amount of time that can be devoted to any particular issue at any particular time. It is not possible for the Parliament of the Commonwealth to become an executive body. We are a legislative body. We can inquire and we can put some fetter on the Executive. But for us to be the final arbiters in this way in respect of the protection of sites is unrealistic. If I have to time discuss the issue of Noonkanbah, which seems to be raised very often, I hope to be able to demonstrate that view.

I would also like to disagree with a point made by Senator Coleman in her speech last night. She said that this Bill should not be regarded as land rights legislation and referred us as authority for that to the second reading speech. I merely wish to say, in response to her comments of last night, that we cannot, in determining the ambit of this legislation, rely on the second reading speech where that speech is not in accord with the words of the Bill. In particular, the Opposition would be most reluctant to rely upon the limitations which the Minister for Aboriginal Affairs (Mr Holding) has laid down for himself in his second reading speech when in fact the Bill would permit him to go further than that speech indicates.

Our objections are not based on the second reading speech. Our objections are based on the wording of the Bill which we think is too broad and gives rise to the sorts of fears which I think are destructive of Aboriginal and non- Aboriginal relations in this country.

I wish to say one other thing about the question of scare tactics. I say very seriously to the Labor Government that I think one of the principal difficulties that we have in Aboriginal affairs at the current time is that for many years now Labor has promised too much. I have raised this matter with the Labor Party, both privately and, occasionally, publicly. I believe that in the Northern Territory, for example, the sensible operation of Aboriginal affairs has been hindered by the fact that the Labor Party there has tended to embrace each Aboriginal demand and to run with it. In an area where we had substantial bipartisanship that has really made bipartisanship extremely difficult. The truth is that the resolution of issues in Aboriginal affairs essentially requires an accommodation of different demands, viewpoints, needs and rights. There has to be compromise; there has to be an accommodation. I believe that the Labor Party has overpromised and made satisfactory resolution of some of these difficult issues almost impossible.

There has been great criticism of my Party in this place by members of the Labor Party because it has campaigned very vigorously against the Labor Party's land rights proposals in Western Australia. Let me try to put that very quickly into context. Before the last State election in Western Australia, the Labor Party made promises to the Aboriginal people of Western Australia which I believe are incapable of fulfilment and will not be fulfilled. The Labor Party of Western Australia, to the face of the Aboriginal people who came before it, made promises that it would introduce legislation which would apply to Western Australia provisions similar to those of the Aboriginal Land Rights (Northern Territory) Bill. I do not believe that that will or can occur.

I am not sure whether the Labor Party understood the difficulties that it was laying for itself and the community when it made that promise. But let me say to the Senate that all of us who have taken an interest in this subject over the years know that the land rights legislation in the Northern Territory has given rise to difficulties. By saying that, I do not wish to recant from the importance or the positive gains that were made by the enactment of land rights legislation in that Territory. However, I think that any honest observer will say that the Act has proved to be more open-ended than it was thought to be. Firstly, it has certainly embraced greater areas than were predicted by the responsible Liberal Minister of the day. Secondly, the mechanisms which were meant to resolve the conflicts of land use which were inherent between mining and Aboriginal interests have not worked satisfactorily so far. They have not totally failed; good and positive things can be pointed to. But there are significant problems which have resulted in an enormous concern on the part of the resource industries that if there is an extension of similar legislation there will be massive economic damage to Australia.

The truth is that if one goes back to Mr Justice Woodward's Second Report of the Aboriginal Land Rights Commission, one finds that he showed a becoming modesty in putting forward his recommendations. He said: 'Those are my views after careful inquiry'. But he also said: 'This is going to be novel legislation and we should be prepared to examine its import after a few years, think about it and perhaps adjust it'. I do not quote him exactly but I think that is the spirit of one of the comments that Mr Justice Woodward made in his second report .

The reality is that that sort of re-examination is appropriate. Changes could and should be made. The sad thing is that the Labor Party in Western Australia has made promises in terms which suggest that the Northern Territory model is there to be followed. If that model is followed, of course, any deficiencies which exist in the Northern Territory will be transplanted to Western Australia. It is that fear, that concern, which lies at the heart of the really heated debate which is occurring in Western Australia and which is giving rise to great depths of adverse feeling between Aboriginals and non-Aboriginals. There is a diminishing support for the interests and the advancement of Aboriginals because of that debate. The reality is that if one translated precisely the Northern Territory Act to Western Australia it would, of course, immediately translate 8. 7 per cent of the State, the existing Aboriginal reserves, to Aboriginal land. Vacant Crown land makes up, I understand, nearly 40 per cent of Western Australia. In theory at least that would be open to claim. Pastoral leases make up another 37 per cent of Western Australia. In theory, those pastoral leases, if purchased by Aboriginals, could be open to claim. There is a reality about that possibility because, after all, the Government did make certain promises, which lie at the heart, in my view, of the difficulties that have arisen in Aboriginal affairs over recent years.


Senator Crichton-Browne —They are attracted to their platform.


Senator CHANEY —That is right. What I am saying to the Senate, and I am saying with very great seriousness, is that there is really a great onus on the Labor Party to ensure that what it holds out for the Aboriginal people of Australia is realistic and compatible with the sort of accommodation of interest which I tried to describe very briefly before.

In the case of the Western Australian Government, I understand there have been some statements which indicate that the Federal Government will limit the extent of what it proposes. I put the view that unless it is made quite clear that the difficulties which have arisen in the Northern Territory will be avoided and unless it is made quite clear that there will be limitations imposed which go beyond the limits of the Northern Territory legislation, we will see the continuance of a very difficult debate which could become a very ugly debate in my State of Western Australia. It is within that context that what the Government is now doing federally is being considered.

We all know, of course, of the conflict between the Federal and State governments on these issues. We know that the Federal Minister would like to move more quickly even before the State Government of Western Australia had a chance to complete its investigation and inquiry. In all these matters, I seriously urge the Government to show much greater caution than it has shown to date, not in the interests of some sort of party politics or party advancement, but in the interests of getting some working solutions.

The Opposition is opposed to the Bill because, as I said, we think it is bad for Australia, bad for the Aboriginal people and, in particular, I would say, potentially bad for the relations between Aboriginals and other Australians. What we do not oppose is the protection of sites of special sacred significance, sacred objects or matters of archaeological significance or interest or matters of cultural or artistic interest. There is a whole range of things which, in the interest of Australia generally, we would wish to see protected and which because of the particular interest to the Aboriginal people we want to see protected.

A wide range of objectors to this legislation approached the Opposition. I will quote again from a statement of the Western Australian State Minister responsible for Aboriginal Affairs in the Hansard of Tuesday, 8 May. I do that to remove the smear which has been used in parts of this debate to the effect that anyone who opposes this legislation is some form of extreme right winger. I will quote only part of page 8055 of the Western Australian State Hansard. Mr Wilson said:

The State Government was not convinced, and it remains unconvinced, of the need for the legislation. It continues to have doubts and concerns about the lack of consultation between the State Government and the Commonwealth with respect to this matter.

A little later he said:

Quite frankly, we believe that the Federal legislation is unnecessary. We shall continue to insist on prior consultation at all times with the State Government.

Still later he said:

We believe that the legislation which we have, which is to be reviewed as part of the Seaman inquiry, is already more wide-reaching than the interim legislation, which for some reason is to apply for two years----

He went on to say:

. . . we shall continue to make vigorous representations to the Federal Government to ensure the State's prerogatives, particularly with respect to the mining industry and locally administered industries are fully accounted for.

I could quote the representations of the Australian Petroleum Exploration Association, the Australian Mining Industry Council, the farmers and private individuals, including many Aboriginals, who sent messages to us, but many of them have been quoted already in the debate. The key point I wish to make is that there is a range of concern about this Bill which would have made it prudent for the Government to have stood the legislation over to the Budget session. It was requested to do this by various representatives in the hope that the common ambition of every representative who I have come across that we find some satisfactory mechanism for the protection of what we all believe could be protected, could be achieved, rather than that the Minister for Aboriginal Affairs should ram through legislation which has such widespread opposition.

There may be safeguarding procedures in this legislation. There are procedures for advertising and calling for reports and what reports shall contain, but there are real deficiencies, which most speakers have already dealt with and I do not have time to deal with them again. The central deficiency is that the Minister may act with respect to any area of land-I now refer to the Bill-which is 'an area of particular significance to Aboriginals in accordance with Aboriginal tradition'. The definition of 'Aboriginal tradition' is very wide. It reads:

'Aboriginal tradition' means the body of traditions . . . and beliefs of Aboriginals generally or of a particular community . . . and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships . . .

Those words are very broad and they leave very squarely in the hands of the Minister the difficulty-it is not a privilege that he has; it is an enormous difficulty-of making judgments about claims, which are unlimited as to area; about whether those areas are of particular significance to Aboriginals within the meaning of that definition. On my understanding, traditional Aboriginal communities, people who are still traditionally associated with their own land, have beliefs which relate to the whole of their land. An explanation of the form of that land is contained in their mythology, beliefs or whatever we might choose to call it; in other words, the landscape with which they are associated will be explained by the stories, mythology, or whatever it might be called, of the group in question. If that is the situation, it can be argued that all land has significance for the Aboriginals who are traditionally associated with it. I believe that the breadth of the definitions in this Bill will put the Minister in a totally impossible position in terms of denying or acceding to particular claims. Unless the Bill is meant to protect the generality of land which is of significance to living Aboriginals, there is no way one can spell out from it the particular thing that gives land significance which would demand attention.

Of course a person of goodwill could administer this legislation in a satisfactory way. A person of ill will could administer it in an unsatisfactory way. But even a person of goodwill will, I believe, be faced with claims which go beyond that person's capacity to make a final judgment. I think this Bill is simply not definitive enough. Let me illustrate that matter by talking about Noonkanbah, which was mentioned in the beginning of the second reading speech of the Minister for Aboriginal Affairs as one of the key examples of why the legislation is needed. Let me say just a few things about Noonkanbah. Noonkanbah is a pastoral lease purchased for Aboriginal people by the Commonwealth to enable them to re-establish themselves. A community did re-establish itself at Noonkanbah. When miners wished to drill at Noonkanbah they went there in large numbers. The situation arose in which it was clear that the Aboriginal people wished to withstand the entry of the miners. That is the reality. I visited the people of Noonkanbah on a number of occasions. Clearly, that was their view. The one means that those Aboriginal people had for resisting mining of a pastoral lease was to claim the protection of the heritage legislation. That became the focus of the resistance to the entry of miners on to Noonkanbah. The question went before the Western Australian museum, which has responsibility under the heritage legislation. The museum had a couple of cracks at it. It identified sites-initially simply locational sites, points on the map. Subsequently there was an identification of areas of influence around those sites. The real issue was whether drilling should be allowed not on a sacred site but on an area of influence which was relevant to a sacred site.

I can only assure the Senate that I examined that case as carefully as I think a Minister in office can do. I visited Noonkanbah several times. I spent the whole of Good Friday-I remember it very well-of the Easter before the Noonkanbah conflict with Dicky Skinner and a man called George, whose second name I forget, who was working for the Australian Institute of Aboriginal Studies. They came to my home and we spent the whole day talking about the question of sites. I still have in my Perth files the brown paper on which they made marks as we talked about what was concerning them. It interested me that they identified sites as we talked and marked that piece of paper in the same way as the museum had done initially. In other words, they identified locational sites which were important . The whole day's conversation was at a reasonable level of sophistication; I mean that in terms of religious sophistication. I remember early in the day making a joke about the ox having fallen into the pit. George immediately said: 'Yes, and Noonkanbah is the pit'. He happened to be a Christian and I think Dicky Skinner probably is too.

The thing that came out of that day was that they were determined that there should be site protection and they identified sites in a specific locational sense. I think we all agree that a site can have an area of influence. We would all agree, for example, that the large protection given to something like Mount Brockman in the Northern Territory is an example of that. But I must say that, in all my conversations, both on Good Friday and on my other visits, it never seemed to me that we were talking about an area which really had the sort of significance that much of the debate attributed to it.

I also had the benefit of long discussions with Professor Berndt. Professor Berndt made a series of public statements at that time which you, Madam Acting Deputy President, would remember. I think it is very important to note that Professor Berndt made a clear distinction between areas which are of special sacred significance and areas which have a significance in a traditional sense but which are essentially part of the living areas, the areas of land used by the general community, used for hunting, living, eating, sleeping and for all the general purposes and used, in fact, for economic production. It was my very clear view at the time as a Minister who was concerned with the issue that we were dealing with a situation where there was not a matter of infringement of special sacred, secret sites, places of high order, but rather there was to be an intrusion on land for which there was certainly a traditional significance but which was traditionally used for living purposes, production and so on. Really, my conviction on that was complete when the Aboriginal people of Noonkanbah said to me-and here reflect something Senator Crichton-Browne said, but in slightly different terms: 'We don't just want that site protected. We don 't want anyone on this station. We want no mining at all'. I would have to say that I think there is a great deal of fiction about the Noonkanbah episode. I wish to say publicly that I believe the ultimate conflict need not have occurred and indeed would not have occurred had my efforts to achieve some reconciliation not been frustrated, in part, I believe, by State officials initially but principally by Mr Steven Hawke who actively worked against everything that I sought to achieve and who, I might say, misled me very badly in my dealings with him.

The important point I want to make is that I do not believe that, if we pass this legislation, the issues which arose at Noonkanbah can be satisfactorily settled by the Minister for Aboriginal Affairs under the terms of this legislation or by this Parliament. The issues are just too difficult and require a far more complicated manner of dealing with them. I think there has to be some objective criteria available where people are charged with the responsibility of determining what the facts are and where there is something other than a ministerial discretion and a parliamentary control involved. I cannot think of anything worse for Aboriginal affairs and indeed for this Government, come to think of it, if we are going to have a situation where issues of the sort which arose at Noonkanbah are sought to be solved within the political arena. I think that is totally crazy. On that basis I think this legislation is fundamentally flawed and ought to be avoided.

We are not dealing with circumstances which involve only people of good will. We are dealing with circumstances where motives are complex and, I think, multifaceted and where we need to look much more to the model of, say, the Western Australian heritage legislation than to the sort of model which has been adopted in this place, but I do not pretend that either model will have any complete answer to the problem which we have.

I know this is a request to which it is too late now for the Government to accede but I say to the Minister for Social Security (Senator Grimes) who is sitting at the table: I think it would serve all of Australia well, and Aboriginal Australians well, if the Government took up the offer which has been made by so many of those who are concerned to delay this legislation and enable it to be recast in a form which would be more workable and more suitable. I think that the tone of the contributions from Opposition senators indicates that that would be a course which would meet with widespread approval because after all a variety of viewpoints have been put forward in those speeches.

I think this legislation is a mistake and will add to the difficulties which are rampant in Aboriginal affairs at the moment and which, I think, are doing a great deal of harm. My assessment of this legislation is that perhaps it is well intentioned but it will give a Minister, who I think is too impetuous for the role in which he has been placed, an impossible burden. There is nothing in his record as a Minister to suggest that he, in particular, would carry that burden with wisdom. I am sure he would carry it with sincerity; I do not believe he would carry it with wisdom.

I ask the Minister for Education and Youth Affairs (Senator Ryan) to exercise her authority and let this legislation lie on the table so that it can be properly examined and commented on and the consultation which has not occurred in the past can occur in the future. The only other thing I wish to say is that I know that would be a matter of disappointment and rancour, and that the National Aboriginal Conference in particular has called upon the Government to pass this legislation without delay. But I think in a sense the NAC is locked into that position. Over recent weeks I have talked to a number of Aboriginal people. They are as alive as anyone to the very real problems that are developing in the Australian community because of the demands being made on behalf of Aboriginal people which go beyond the perception of Australians as being a fair go. I think they are aware of the damage which is being done and they have trepidation about it. This is unwise legislation, being handled unwisely and, as I used to say of the Whitlam Government and will say again: It is one thing to have good will; it is one thing to have generosity; it is one thing to want to do the right thing; it is quite another thing to do it.