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Friday, 15 June 1984
Page: 3205

Senator CRICHTON-BROWNE(9.24) —Clause 9 (1) gives me a great deal of concern in as much as it refers to oral application seeking protection of a specified area. Any decision that is to be made at the unfettered discretion of a Minister-

Senator Macklin —It is not unfettered.

Senator CRICHTON-BROWNE —Under the emergency declaration it is. Given the voting pattern of certain combinations in this chamber, I would have thought that it is unfettered. As a result of an oral application, a Minister is able to declare a protected area for a period of 30 days and, in some cases, if necessary, he can declare it protected for up to 60 days. The provision says that he has to be satisfied that it is necessary he should do so. I ask the Minister, in a definitive sense, how will he satisfy himself that it is necessary to do so. What yardsticks will he use, and with whom will he consult?

Clause 10 provides that he may make a declaration in relation to an area if he has received and considered a report from a person nominated by him. The Bill gives no indication of who the person nominated shall be, what his qualifications might be, or what his impartiality might be. In no way does the Bill bear on the relevance of that person either to the person making the application or to the person in respect of whose land the declaration is made. I would be grateful if the Minister would answer me.

Also, given the enormous dislocation that can be caused by a declaration of this type, is the Minister well satisfied that it is enough to publish a notice in the Commonwealth of Australia Gazette? The Gazette is not compulsory or riveting reading for a great majority of people in the community. While it might be put that most large corporations bother to read the Gazette for a number of reasons, they can quickly overcome that problem by being automatic subscribers. But it is highly unlikely that many pastoralists, farmers, smaller miners and prospectors will read the Government Gazette. It is also likely that a notice in the local newspaper circulating in the region, if any, will be overlooked. I concede that those who read births, deaths and marriages might also have some obsession about reading government notices, but by and large I do not think it is a habit or preoccupation of most people who are likely to be undertaking activities that could fall within the ambit of this legislation. They could find themselves open to grave risk of prosecution. While I am glad to see that the onus of proof has been reversed, at the same time I feel that those open to prosecution might find themselves in very considerable difficulty because the argument as to whether they ought reasonably to have known or not could catch them in a net. Paragraph 4 (e) refers to:

. . . the effects the making of a declaration may have on the proprietary or pecuniary interests of persons other than the Aboriginal or Aboriginals referred to in paragraph (1) (a); . . .

First, I wonder why there is not a more distinct demand that there ought to be consideration of the effect it would have upon them, although that, in part, is covered by the general intention of the legislation. But inasmuch as the Minister is not obliged automatically to notify people who have a direct pecuniary or proprietary interest, I wonder how the report can be absolutely certain that judgment can be made as to the effect it is likely to have on the proprietary interests of persons. I ask the Minister: If that is a consideration , do I take it that there will be balancing and competing interests between the commercial considerations on the one hand and the effect a declaration will have on a piece of land because it falls within the definition of traditional land? I would have thought that that definition was absolute: The application and the declaration would be made in an absolute sense without any other considerations, because the definition is really all that has to be considered. So I am just asking whether financial and pecuniary considerations are a balancing factor and feature in determining what ought to have precedence-the commercial considerations or the traditional considerations outlined in the Bill?

Can I touch upon the point that it is clear from the Bill that the application for a declaration need not be made by an Aboriginal or Aboriginal group or somebody representing an Aboriginal or Aboriginal group who has a direct interest? I would like to give an example of the difficulties that I see facing a number of people. I touched on this before and I apologise for repeating it. Perhaps if I repeat it in more detail it might be clearer. I refer to the Argyle diamond mine in the north-west of Western Australia which is being managed and mined by CRA Exploration Pty Ltd. That company originally commissioned a survey of the site by the Western Australian Museum. The Museum in December 1979 reported and identified 58 sites of which only one-that was Barramundi Gap-was located within the diamond deposit. The Museum also, in terms of its charter and commission, identified four traditional custodians of the Barramundi Gap, the principle custodian being John Toby who had, by the way, some incidental involvement with the Kimberley Land Council. CRA sought to negotiate with him. The facts, by the way, are that while there were a number of stations within the environs of the project the actual site of the diamond venture was on Lissadell Station which had been in white hands for over 100 years-not an unknown occurrence in the north-west of Western Australia.

Early in 1980 a meeting was held between the representatives of CRA, the four custodians of the site and another 30 Aboriginals who were said to have responsibility for the site through kinship links. This is an interesting little part of history. The Aboriginals asked for a written agreement.

Senator Chipp —You can see how everyone is hanging on every word you are saying.

Senator CRICHTON-BROWNE —If the honourable senator is not, he is the loser. The Aboriginals asked for a written agreement between themselves, that is John Toby, the four traditional owners and 30 others who said they had some kinship relationships. The Kimberley Land Council declined to give them legal advice. So they subsequently travelled to Perth and CRA provided them with quite independent, of course, legal counsel and an agreement was signed. The basis of the agreement, which is immaterial to the story, was that very considerable financial assistance would be provided to them and to the whole community. It was not just a question of handing over cheques because, as honourable senators will understand, the ownership of minerals in Western Australia resides in the Crown and not in the Aboriginal communities. There was a great deal of expenditure by the company. The Kimberley Land Council objected vigorously to the agreement on the basis that the wrong people had been dealt with. Council believed that it should have been consulted.

The Western Australian State Government asked the Western Australian Museum to check this. The Museum confirmed that CRA had dealt with the relevant Aborigines . The communities at Turkey Creek asked the State Ombudsman to investigate this matter further to ensure that the finding was correct. The Ombudsman did so and said that there was no case to answer because negotiations had been carried out with the proper traditional owners. The Western Australian Government gave approval for that agreement in September 1980. By the end of 1984, CRA will have provided something like $2m in good neighbour program funding. The exploration and evaluation cost for stage 1 of that project is $120m. From the commencement in 1983 funds of $470m have been committed.

I bring Senator Grimes to my final point. I know that he is hanging on every single word. That major diamond pipe which is worth several billion dollars to the Australian people, and more particularly to the Federal Government through taxation and, to a lesser extent, the State Government, through royalties, has residing on top of it the Barramundi sacred site. As I have explained, an agreement has been entered into between the company and the Aboriginal community . I would have thought-correct me if I am wrong-that under the provisions of this Bill the Kimberley Land Council, which is still bitterly opposed to the agreement, could make application for a declaration irrespective of the fact that it has no extrinsic or inherent relationship with the land. I would have thought that under the provisions of the Bill the Minister would have been quite within his rights to act if he discovered that the area fell within the definition of an area which relates to Aboriginal tradition. Under the general definitions it would be included as a significant Aboriginal area. I would have thought that the legislation would be able to override the agreement and make it null and void without question.