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Friday, 15 June 1984
Page: 3193


Senator CHANEY (Leader of the Opposition)(8.09) —I would also like to raise a number of matters arising from this interpretation section which I think is a centrally important part of the legislation which is before us. Certainly, the definitions give rise to a number of concerns which the Opposition has expressed in debate. I just express some regret that Senator Ryan is unable to be here tonight, given her long history as shadow Minister for Aboriginal Affairs and Minister representing the Minister for Aboriginal Affairs in this place. However, I have no doubt that Senator Grimes will pick up where she left off.

The matters I wish to raise touch initially on the definitions mentioned by my colleague Senator Messner. First, I wish to mention the definition of 'area'. The clause provides that 'area' includes a site. I assume that is of some importance because the definition of 'area' as including a site makes it clear that the Bill is meant to go beyond the protection of what I might call a specific location and is, in fact, capable of providing protection to what might be described as broad acres. In terms of the debate which took place earlier at the second reading stage, it potentially would include in, say, the Noonkanbah situation areas of influence and areas which have some relationship to a site. Given the definitions of 'Aboriginal tradition' and 'significant Aboriginal area ', it may well mean land generally with respect to which the traditional Aboriginal beliefs are known and with respect to which the Aboriginals to whom those traditions are significant are still living.

What I would like to do is to make a number of comments about how I read these definitions and seek from the Minister some indication as to whether the Government agrees with my reading and, if not, how it reads the definitions. I understand that the Minister at the table, Senator Grimes, cannot give us a legal opinion, but on the other hand we are responsible for the final form of this legislation and I would like to put down what I read from these definitions . I start with the proposition that the definition of 'area' means that the Minister is capable of protecting more than simply some specific identified site . It is something wider than that.

The definition of 'significant Aboriginal area' refers to areas of land or areas of water being an area of particular significance to Aboriginals in accordance with Aboriginal tradition. So that definition does not take us very far. Again, it simply makes it plain, I think, that the Bill is dealing with undefined-in terms of quantity-areas of land or areas of water. In terms of which areas are protected, one has to look to what areas are of particular significance to Aboriginals in accordance with Aboriginal tradition and one is thrown back then to the definition of 'Aboriginal tradition'. In my speech at the second reading stage I raised the point that the definition of 'Aboriginal tradition' seems to me to be so wide as to include any Aboriginal tradition or belief which relates to a piece of land. The point which I raised at the second reading stage which is relevant to the inquiry which I am now making in this Committee is whether the definition of 'Aboriginal tradition' is so wide as to cover the explanation which a traditional Aboriginal community might have for the form of landscape. That might mean that one could have an Aboriginal tradition which encompasses the form of landscape over a very large area which is considered to be land which is traditionally owned or with respect to which there is a traditional association by a particular Aboriginal, individual or group.

All that might seem fairly complicated, putting it in words, but I suppose the gravamen of my inquiry is whether the combined effect of those definitions means that any land with respect to which the traditional Aboriginal explanation is available-and where there are those who are associated with that traditional explanation of the form of the land-is effectively encompassed by the meaning of those definitions. In other words, given the definition of 'area' and the definition of 'Aboriginal tradition', can a 'significant Aboriginal area' include any land for which the traditional explanation for its form is known?

The Minister is being assisted by officers of some experience in this area and officers whose knowledge of this matter is certainly superior to my own, but I would simply say, because I may be under some misapprehension in the matter, that it would be my understanding that in an area like Arnhem Land it could be said that the whole of the country had some traditional belief relating to it; in other words, that that could be so wide as to encompass the totality of an area in respect of which the traditionally associated community was still extant . I hope I have made that inquiry clear. Concern has been expressed by the Opposition about the possible breadth of this legislation and of course my inquiry relates to that concern. I would appreciate from the Minister an indication of the Government's understanding of what the composite effect of those definitions is.