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Thursday, 27 November 1986
Page: 3837


Mr CONNOLLY(11.35) —The Opposition strongly opposes clause 16 which allows land councils not to continue with the registration of traditional Aboriginal land ownership. This was a provision in the original legislation recommended by Mr Justice Woodward. Some would argue that it has its genesis in the Western concept of the Torrens title system where everyone must have his or her land registered for obvious reasons in relation to estates and for the transfer of property. It is now being argued by the land councils, and apparently and most unfortunately supported by the Government, that the effort in trying to maintain a regular register of traditional owners is too difficult and not worth the cost involved. It has even been argued by the land councils that one of the reasons why mining development and the negotiation of agreements between traditional owners and would-be mining companies were delayed for so long was precisely the issue of who owned the land. I would have thought that that argument, if anything, would strengthen the case for, wherever possible, maintaining as reasonably accurate a record of ownership as possible.

The Opposition recognises that there is no concept in Aboriginal land ownership equivalent to the Torrens title. But I think the Minister for Aboriginal Affairs needs to recognise the fact that, notwithstanding that current situation, there is an undeniable case that in the future it is in Aboriginal interests, as well as those of the community as a whole, that concepts or definitional concepts of land ownership be as similar as possible. One of the biggest difficulties in terms of Aboriginal ownership is that different families and tribal groups have specific responsibilities for the protection of sacred sites that may not necessarily be on the land which is normally assigned to that particular community or tribe. We recognise that fact. These are issues which the white community, frankly, is unlikely ever to be able to solve adequately. These are issues which the Aboriginal community must be prepared and encouraged to solve. The undoubted fact of the future will be that, as Western civilisation permeates traditional Aboriginal society more and more, there will be more crossings over of interests, whether they be Western or Aboriginal interests. These interests will cross over essentially on the question of land usage. If we are now to put in place a provision by which the land councils will be given the option of not maintaining accurate title to land, I honestly believe that we will create substantial difficulties for Aboriginal traditional owners in the future. We will certainly create major legal and administrative problems for mining or other commercial interests which may wish to enter into an arrangement with people whom they believe to be the traditional owners.

It is not good enough for the land councils under this legislation to be covered in the case of their failing to find out whom the traditional owners may be, provided they have carried out reasonable efforts in that regard. These are all words which, in a court of law, have so many variations of meaning. Surely, if there is one thing that one needs in relation to land management, it is a degree of certitude. Because the Government did not have enough certitude in the original legislation, it is now deliberately missing this opportunity to ensure that provisions are put in place to ensure that the land councils, which were established as a result of Mr Justice Woodward's original report, keep an up to date and as accurate as possible register of land ownership.

For example. let me take the question of Arnhem Land. If one looks at a map of Arnhem Land in terms of mining claims, one will see that there is no part of that area that does not have a potential mining lease or claim over it. These leases predate the 1976 legislation. Nevertheless, those claims have been made and at any stage in the future there could be difficulties with the traditional owners or allegedly traditional owners. That is the whole problem-the question of allegation or fact as to whether persons are entitled in terms of tribal law and Western judicial concepts to be able to claim that they are the owners of or the rightful negotiators for a specific piece of land. If we take the responsibility for the maintenance of this register from the land councils, we will certainly create very major difficulties for the future. I think the Minister would be telling only the full truth if he admitted that Mr Justice Toohey, in his report, did not come up with a formula which suggests that a form of register should not be maintained. I agree that there is a certain degree of ambiguity in what he said, but he has left the determination of the extent to which his recommendations should be put into legislative form to political control, to the Minister and to the Government. It is a definite step backwards, In Chapter 13 Mr Justice Toohey covers the question of the register of traditional owners. He says in section 375:

The answer to these problems, it would seem, is to repeal s.24 or alternatively substitute `may' for `shall', thereby placing Land Councils under no obligation in this respect. I favour the latter because, over the years, a register properly maintained and understood could be of great value to the councils. There should also be provision empowering anyone who is placed on or omitted from a register to appeal to the Supreme Court of the Northern Territory or to the Aboriginal Land Commissioner.

The fact is that that latter provision does not seem to appear in the Minister's proposals. In other words, the Government has taken the easy way out. The land councils have simply been told: `You don't have the responsibility'. The land councils receive substantial sums of money, through the Aboriginals Benefit Trust Account and through direct government support on various bases. It is expected, therefore, of the Commonwealth that land councils will be involved not just in the negotiation of agreements, as I referred to earlier, but also in maintaining certain administrative arrangements which will further the long term interests of traditional owners. Land ownership does change from time to time in relation to marriages, death, and so forth; we accept all that. Nevertheless, at least at the basis of land trusts, which ultimately are the legal holders of the title, there must be the capacity to maintain a level of legal endorsement in administrative form which people who are not Aboriginals can refer to as being the basis of later negotiations. For that reason, the Opposition believes that this is a derogatory step and it does not support this clause.