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Friday, 5 December 1986
Page: 3490


Senator MACKLIN(12.00) —The Aboriginal Land Grant (Jervis Bay Territory) Bill 1986 has had a long gestation and in many ways it has not been a happy one. The process of getting this Bill, which the Australian Democrats support, before the Parliament, has divided the community and has pitted one family against another. I think as an exercise in moving towards what is agreed by most reasonable people as a successful conclusion, at least in the interim, what has happened along the way has not been a model for what should occur. Those people who know the Wreck Bay community know that there has not been so much of a division but a distinction between those who have lived in the community and those who have relatives within the community and who have worked outside it. That has been the well established position for some time. The way that negotiations on this legislation have proceeded through the Department of Aboriginal Affairs, I think, merely exacerbated the tensions which already existed. Nothing can now be done to rectify that situation. The Bill provides for a council of those people who are currently within the community. The Wreck Bay Community Council is able to extend its membership to others and it is hoped that it will be extended to those people who have links with the community and who wish to be part of that community.

I wish to raise some questions during the Committee stage dealing with certain parts of the land and how it will be maintained, but at this point I wish to refer to the issue of the title that the Aborigines are to have to their land. Senator Lewis, on behalf of the Opposition parties, raised the fact that it should not be freehold title. He said that by giving the Aboriginal people freehold title that somehow makes a distinction between them and the other people in the area. Yes, it does make a distinction, but such a distinction already exists. We are here talking about the restoration of land to people who once owned that land. These are now only small communities, consisting of several groups, that occupied this area of land and lots more. His approach seems to me to be an incredibly niggardly and parsimonious approach and indeed an approach which could only be said to be half-hearted to the rectification of the types of problems that we know have existed in our history. The Pope was recently in Australia and made a speech in Alice Springs on this issue and interestingly raised quite specifically this matter in what has been reported to be probably his most political speech. I think that is a reasonable description of it. He put in a very succinct way the type of proposition of many Australians as to why there is a distinction in this area, and I would like to read out that portion of his speech. I do not wish to rely on him necessarily as a way of supporting the political debate, I wish to rely rather on the words and the way they were put together because I think they succinctly express the proposition I wish to put. He said:

Let it not be said that the fair and equitable recognition of Aboriginal rights to land is discrimination. To call for the acknowledgment of the land rights of people who have never surrendered those rights is not discrimination.

I will repeat that:

To call for the acknowledgment of the land rights of people who have never surrendered those rights is not discrimination.

So we are not in fact involved in a discrimin- atory operation here; we are involved in something quite different, something quite historic. In that sense surely it could be acknowledged by everybody in the chamber that it is right and proper that the land title be freehold and that it is not appropriate for that land to be handed back to the Aboriginal owners and say that it is merely leasehold. That would be a denial of the basic underlying philosophy that has to go along with this. The next words I also think are important in terms of that address that the Pope gave in Alice Springs, when he said:

Certainly what has been done cannot be undone. But what can now be done to remedy the deeds of yesterday must not be put off till tomorrow.

In a very succinct way that sums up what many people in Australia have been working for. There has not been an attempt to undo history. There is an acceptance, in a sense, that what has occurred indeed has occurred. But that does not remove an obligation from us, who now have the legislative responsibility in this area, to put aside those types of actions that are able to be undertaken.

As Senator Lewis has already pointed out, this is only one of the areas in Jervis Bay that raise problems and it happens to be in the Australian Capital Territory. Other parts are in New South Wales. The destruction by a department of this Government of sacred sites that happen to be on Department of Defence land, I think, is another item that needs to be raised on another occasion. I believe that the moves that have been made here should be supported. I do not want that remark to be taken as meaning that I am totally happy. In fact there are some boundary drawings that I believe are inappropriate. The Aboriginal people themselves are concerned that certain sacred sites that have been identified are outside the boundaries that are set down, and there are a number of other items. Given the good will which the Government is expressing in this Bill, and by using the provisions which are contained within it, I hope that those extensions and inclusions of the additional sacred sites which have been identified will proceed and will proceed in cordial negotiations between the Commonwealth Government and the Aboriginal owners.

I signal to the Minister for Community Services (Senator Grimes) that, although I wish to raise in the Committee stage some matters with regard to public access, it might be appropriate for me to raise them now because the Minister may wish to respond to them at the end of the second reading debate and then I may not need to raise them in the Committee stage. I ask: What has the Government done in terms of those public access lands? I draw the Minister's attention to the fact that part of this land has been used by people as a park and recreation area. The land will be owned by the Aboriginals but in fact there will be public access without any control by the Aboriginal people. The Australian Democrats' preference would have been for that land to be under the total control of the Aboriginal people. When we see what the Aboriginal people have done in the Northern Territory we are satisfied that they acknowledge the prospects and the desires of other people to use their land for one reason or another and have not impeded that provided that the use by other people of their land meets certain reasonable criteria. I would have thought that that could have been done in this case.

My concern is that the Aboriginal people now have actual ownership of and thereby accept certain legal obligations in regard to that land. Accepting those legal obligations, what type of legal penalties might now be imposed upon the Aboriginal people as a result of damage, personal injury or other types of problems which may occur on that land and which the Aboriginal owners are not able to prevent people coming upon? Free access is granted and, hence, the people who go there, for example, picnicking, could be killed on the land because of broken glass on it or because of a hundred possible circumstances that one can think of. I would have thought that the owners of that land then have a legal obligation and could be sued. I am bearing in mind that it is an extremely small community with hardly any financial resources and I would have thought that it was vastly inappropriate for the community to be engaged in any litigation in this area. I hope that that is not the case and I seek an assurance from the Minister that, although the Aboriginal people own it, they will have absolutely no control over it. It is not as though it is a lease-back arrangement; it is simply a declared public access arrangement, which is a somewhat different case in law.

Lastly, the Australian Democrats support the Government moves in these areas and hope that, in other cases where the Commonwealth Government is committed and in which negotiations take place, the types of unfortunate instances that occurred in a very heavy-handed way will not occur again. Indeed, if there is at least some understanding on the part of those negotiators that they are dealing with people who have never given away that land and that they are dealing with the owners of that land, the attitude may be more acceptable to the Aboriginal peoples.