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Tuesday, 15 October 2002
Page: 5176


Senator RIDGEWAY (5:47 PM) —The Australian Democrats are disappointed that the government and the ALP are persisting with the passage of the Torres Strait Fisheries Amendment Bill 2002 at this time. They are both fully aware of the reasons why, on numerous occasions, the Democrats have requested that the bill be deferred to ensure that two particular issues are resolved. One is the question of Indigenous representation in the Torres Strait and the other is to ensure that the native title rights and interests of the Kaurareg people are recognised and respected. It goes without saying that what has to be achieved is what the bill seeks to achieve as an outcome: to ensure that all Indigenous people in the Torres Strait who are likely to be affected by this bill are adequately consulted about the bill and how it will impact upon them. I want to talk about some of those issues and ask some questions of the minister.

In general, the Democrats support in principle the objective of including an Indigenous representative on the Protected Zone Joint Authority. Indeed we welcome the intention of the bill to bring about that outcome. However, we take issue with the government on the question of ensuring appropriate Indigenous representation. By that we mean representation that enjoys the full support of Indigenous people in the Torres Strait and reflects the spectrum of Indigenous interests in that region. We do not have any confidence that the situation at the moment has been resolved. I will outline our concerns in that regard.

Our concerns centre on the issue of the recognition of the Kaurareg people of the Torres Strait. The Kaurareg people are the traditional owners of the Prince of Wales group of islands off the tip of Cape York. This group includes well-known islands: Thursday Island, Horn Island, the Prince of Wales and the Hammond Islands. They are, therefore, the holders of rights and interests over a significant part of the Torres Strait. The Federal Court recognised the Kaurareg people as the traditional owners of sea country included in the Torres Strait protected zone in May 2001.

However, the Kaurareg native title determinations were not over the full extent of the Kaurareg's traditional land; for example, they did not include Thursday and Hammond Islands, nor did they include any of their sea country which extends north into the Torres Strait protected zone. The determinations of native title that were made by the Federal Court in 2001 recognise both Torres Strait Islanders and Aboriginal people as Kaurareg people. It is important to state here that the native title rights and interests of the Kaurareg people extend into the Torres Strait protected zone and the Australian area of the Torres Strait waters for which the Protected Zone Joint Authority is responsible under the Torres Strait Fisheries Act.

Based on advice that I have been given by the Kaurareg people and the Cape York Land Council, who are providing them with legal advice, the Kaurareg people's native title rights and interests are therefore very significant in terms of the Torres Strait Treaty and the application of the Torres Strait Fisheries Act. I would therefore like to take issue with the view that has been put to me by the minister, Senator Ian Macdonald, in a letter dated 14 October, that the seven islands over which the Kaurareg people were granted native title `lie outside the Torres Strait protected zone'. Their native title rights and interests are not peripheral to the application of the Torres Strait Treaty—they are central and should be recognised as such by the Commonwealth in terms of resolving this issue.

I would also like to respond to the minister's criticism that he is not aware of the `exact nature of the concerns' of the Kaurareg people in relation to this bill. I think the reason for this is obvious—the Kaurareg people have made it clear to me that they have not been consulted about the bill. Beyond what my office has conveyed to them, they have no knowledge of the content and purpose of this bill or how it might impact on their native title rights and interests.

In a letter sent to me this afternoon by Mr Jeffrey Bosen, the Chairman of the Kaiwalagal Aboriginal Corporation, the prescribed body corporate dealing with the rights of the Kaurareg native title holders, he explained:

While the Kaurareg people come under the Torres Strait Regional Authority, we believe that we are not adequately represented as the Aboriginal owners of this area. Because we are a minority in the Torres Strait Regional Authority Area our interests are often secondary to those of the Torres Strait Islanders.

We have continued to struggle to be identified as Aboriginal (rather than Torres Strait Islanders) and this is increasingly difficult when the Torres Strait Regional Authority is making decisions on our behalf without adequate consultation with us. Governments and Agencies assume that the Torres Strait Regional Authority has our mandate but on many matters it is simply not appropriate to have Torres Strait Islanders make decisions that affect us, Aboriginal people.

The Kaurareg people seek recognition and respect as the traditional owners of this sea country.

Although the Kaurareg have a representative on the Torres Strait Regional Authority, I am also aware that there is considerable difficulty for this representative in communicating effectively with the broader Kaurareg nation, whose members are scattered over much of Northern Australia. It has therefore not been possible, in a practical sense, to speak to all of the Kaurareg people to get their informed consent to the passage of this bill. They have advised me that, if they were properly consulted and advised about the bill, it may well be the case that they would have no objection to its passage, but until this occurs they think they should have every right to withhold their support for this bill. Mr Bosen, in his letter to me today, went on to explain:

As the Chairperson of the Kaiwalagal Aboriginal Corporation, I was not informed of the summit that was held in April 2001 or of the decisions that were made in relation to the membership on the Protected Zone Joint Authority. While we support the involvement of indigenous representatives in the Protected Zone Joint Authority we seek to have our own Aboriginal representative as well as the Chairman of the TSRA.

The fact that the minister's office has made it clear to me that the Commonwealth has no intention of seeking the informed consent of the Kaurareg people in relation to this bill raises serious concerns about how recognised native title holders will be treated across Australia, given that their rights have already been recognised by the Federal Court.

In this particular instance, the Democrats believe that the Australian government has a clear obligation under the Torres Strait Treaty with Papua New Guinea to protect the traditional way of life and livelihood of the traditional inhabitants, including their free movement, performance of traditional activities and the exercise of traditional customary rights. It is clear from the definition of `traditional inhabitants' under the treaty and the Torres Strait Fisheries Act that this would include the Kaurareg people. The principal purpose of the establishment of the protected zone under the treaty is to `acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants including their traditional fishing and free movement'. This purpose is also echoed in the Torres Strait Fisheries Act. The advisory council that was set up under the treaty has a responsibility to ensure that traditional inhabitants are properly consulted and are given a full and timely opportunity to comment on the matters of concern to them. Similarly, under the Torres Strait Fisheries Act, the minister is required to consult with traditional inhabitants on any matter that affects their interests.

The Australian Democrats are concerned that the Kaurareg people have not been given a full and timely opportunity to comment on the Torres Strait Fisheries Amendment Bill. We believe that the government could easily rectify this situation if it chose to and that, in doing so, it would give effect to the relevant terms of the Torres Strait Treaty and the provisions of the Torres Strait Fisheries Act. It seems to me that no good argument has been put forward to support rushing this bill through, because it is not a life and death issue; we are talking about changing some of the structural arrangements about representation.

As the minister is aware, the Chairperson of the Torres Strait Regional Authority has been attending recent meetings of the Protected Zone Joint Authority in an advisory capacity for some time. So it is not a question of saying that they do not have representation there; they do. It is a question of looking at formalising that but doing it in the proper way.

As I mentioned earlier, the objective of including an Indigenous representative on the joint authority is one that the Democrats support in principle. However, that representation must reflect the interests of all traditional inhabitants, not just a sector of these interests. The Democrats have called on the government to delay the passage of this bill until the broader issue of Indigenous representation in the Torres Strait is comprehensively resolved. I want again to make that request and to remind the minister that a meeting of the Indigenous representatives, which would include ATSIC, the Cape York Land Council, the Kaurareg people and the Torres Strait Regional Authority, is to take place in November to do just that. It seems to me that no evidence can be put forward to explain why we ought to rush this bill through. It is not a life and death issue. Commonsense requests have been made, and I think that we ought to comply with those requests.