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Friday, 15 June 1984
Page: 3197


Senator CRICHTON-BROWNE(8.36) —I share all the anxieties that the Leader of the Opposition (Senator Chaney) has put forward. The definition of 'Aboriginal tradition', according to the Bill, so that we clearly understand what we are dealing with, is:

. . . the body of traditions-

perhaps the Minister will explain that to me-

observances-

perhaps the Minister will explain that to me-

customs-

presumably one has a better understanding of that-

and beliefs of Aboriginals generally or of a particular community or groups of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships;

I wish to raise something which I raised this afternoon in terms of the question of relationships. I raise it only because the definition is purposely so wide as to embrace almost any activity that Aboriginal communities have undertaken prior to and presumably since 1788. The difficulty with having broad definitions of that nature is that they allow for a very considerable amount of subjectivity in terms of making determinations of what falls within the framework of the definition.

As I said in the second reading debate, it was Dr Gumbar, a very highly proclaimed anthropologist who received his doctorate from the Sorbonne university in Paris-I think it was ex-Prime Minister Gough Whitlam who presented him with his doctorate-who took the view that Professor Radcliffe-Brown's proposition, that the relationship of original small groups or hordes of Aboriginals was very much determined by patrilineal descent, in fact, was based on a very false premise that there was interrelationship. In terms of marriage it was interrelationship between groups which moved through the areas, with access by mutual agreement, to the common areas, foraging in pursuit of food, and that they all had attractions to common sacred sites. The definition of who is entitled to claim land rights from the past, which is the basis upon which the Northern Territory land rights legislation was framed, is such that the granting of land rights since then has very much evaporated in the real sense of the word. It has now been argued by Professor Radcliffe-Brown that in fact many Aboriginal communities and individuals have been denied their claim to land rights on that basis.

In a number of other areas, because again of the wider definition, we have the problem of there being no proper appeal provisions. Presumably the Minister will take cognisance of advice given to him by those who have a relationship, perhaps an intrinsic inherent blood relationship, with the Aboriginal community, as distinct from other people. There will not be a proper healthy debate in the real sense that we have seen in the past as to what might be land rights, or rather sacred sites, although they are the same thing in this case except that sacred sites by definition are intended to include all areas of significance to Aboriginals. There have been some very well prepared summaries by a number of people who have given examples of misnomers as to what is and what is not a sacred site. I quote Lesley Maynard from the New South Wales National Parks and Wildlife Service who said about an Aboriginal site:

And the Aboriginal people had impeccable credentials, it was their site, they owned it and they were taking the anthropologist to tell him all about it. They arrived at the site where there was a large . . . you know, one of those enormous Arnhem Land boulders and with some cave paintings around the base. And the paintings included kangaroos, and barramundis and people and snakes and the anthropologist asked the Aborigines, now, tell me what is this site? And they said, ah, this is the emu site. We are the emu totem men and this is our important emu site. So the anthropologist looked back at the paintings and he saw no emus. He saw kangaroos and barramundi etc, but no paintings of emus. So he inquired about this and the Aborigines said, oh no no the rock is the emu, it 's the mythical emu who travelled from the East and did this and did that and when he came here he died and the rock is his body. So that's the emu significance. So the anthropologist said yes, but what about those paintings of kangaroos and things? And the Aborigines said, ah, well, when we come to this site, and we perform ceremonies, the emu totem ceremonies, we get painted up, we dance, we sing and we have an audience. We invite our mothers' brothers and people related from other clans, and they come to make up the audience. And when we've done our thing they have to pay us. And they pay us by painting on the rock. And they paint their own totems. If they are kangaroo men they paint kangaroos, pythons paint pythons and so on. So the art site is a glorified visitors' book.

I could go on to give all sorts of examples of misnomers as to what might be misunderstood to be a sacred site just because it has Aboriginal art upon it. In the past anthropologists have tended to take a preconceived, prejudiced view about what the fabric and structure of the Aboriginal community has been, what is sacred to it and what is of religious and spiritual significance. But those views have almost been set in concrete. Anthropologists are like geologists and many professional people. They like to take a preconceived notion, poor, incompetent and inadequate though it might be. They are terrified that changing their point of view might show them to have been wrong for a very long time. Under this Bill the Minister will be taking advice, presumably, only from people close to him. Given the embryonic beginnings of this Bill and the nature of those who assisted in its conception, one can draw only the conclusion that the advice the Minister will receive will again be from those sorts of people.

Looking at the wider definition of Aboriginal tradition, we have sets of words in the Bill that allow for a very wide ambit in respect of such areas. It must be obvious to the Minister that almost any area regarding which it can be demonstrated that there has in the past been an Aboriginal presence could fall under the hammer of a declaration. The difficulty, of course, is that Aboriginal heritage is dynamic. It is constantly changing and adapting. It is not static. How one clearly draws the distinction in terms of this definition, I really do not know. After looking at this clause I am led inexorably to the view and impression that it is the imprimatur for the Minister to set aside land simply for the purpose of providing de facto land rights. I am drawn to that conclusion because he says that he will embrace this principle at a later time in more draconian legislation.

I ask the Minister in sincerity to explain to me what is intended by the words 'Aboriginal tradition', when all that is really being said is that 'Aboriginal tradition' means to the Government absolutely everything related to the Aboriginal community. It is not definitive in any sense. It is open-ended and it can result in a situation where almost any area that shows an indication of a previous Aboriginal presence can fall within the framework of this definition.