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Wednesday, 1 December 1976
Page: 3067

Mr Les Johnson (HUGHES, NEW SOUTH WALES) -I move:

In sub-clause (2) (b) (iii) after 'matter', insert 'and after giving paramount consideration to the interests of the traditional Aboriginal owners '.

This matter concerns grants of interest in land the subject of a deed in escrow. The purpose of this amendment is to ensure that, where land is held in escrow by a land council, if a person seeks to renew his estate or interest in that land for a further period or to convert his interest an arbitrator appointed by the Minister to report on hardship that would be occasioned must give paramount consideration to the interests of the traditional Aboriginal owners. It is very difficult to see, given the tendering of anthropological evidence, that anything could really outweigh the hardship caused to Aboriginals by deprivation of their traditional land. The wording of the proposed amendment follows that which has been judicially interpreted by Australian courts, and it is hoped that this interpretation will be adopted by any person appointed arbitrator.

However, without this amendment it seems clear that the criteria considered may be against the interests of Aboriginals. As honourable members will be aware, contemporary criteria particularly in the Northern Territory are often related to economic wellbeing. However, for Aboriginals no such claim as to the possibility of capital loss can be made. All they may offer to the arbitrator is their religious and traditional links with their land. It is hoped that the amendment will balance this redress and afford Aboriginals the special consideration that their claim warrants. I might add that this formula is taken from the former Matrimonial Causes Act 1959 when it was used in relation to the children of a marriage. It has been judicially interpreted.

I suggest to the Minister that in such a situation, when we are talking about relative hardship, if on the one hand there is a mining interest or a person who is concerned with material interests and on the other hand there is an Aboriginal person who does not appear by contemporary standards and considerations to have much to lose, if those contemporary considerations are applied the Aboriginal person will be regarded as being the one who has least to lose. But, taking into account the criterion which has been proposed and the one which already has judicial acceptance in the matrimonial causes area- that paramount consideration has to be given to the interests of the traditional Aboriginal owner- he has a chance of getting a place m the sun. He would be unable to show that if his application were lost he would lose millions of dollars. He would be unable to show that he would be unable to continue living in a mansion or driving around in a Mercedes. His interests are relative interests. We must have proper regard for those relative interests- the interests of an Aboriginal person who is concerned with very basic things in life as compared with the interests of a person of considerable means, or the entrepreneurial kind of person who is establishing a mine- and clearly we must put the matter on an entirely different basis. It has to be weighted in favour of the Aboriginal person.

Paramount consideration should be given to the person who is the subject of this legislation which is supposed to provide a benefit for the Aborigine. I put it to the Minister that, unless a consideration of this kind is to be accepted and is to apply, the application of this clause and the process of arbitrating will be extremely difficult. The Arbitrator will be left in a most unsatisfactory state of legal limbo. He will be living in the legalism of the twentieth century on the one hand whilst the interests of people taken into account are of bygone times. In fairness to the Arbitrator I put it to the Minister that he ought to adopt a provision which has found legal utilisation and legal effectiveness given in respect of children who would otherwise be disadvantaged in the matrimonial legislation. Aboriginal people unquestionably will be disadvantaged if they are put on the same interpretative basis in respect of this matter.

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