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Saturday, 18 December 1993
Page: 5133


Senator SPINDLER (2.36 p.m.) —I move:

4.Clause 15, page 10, omit the clause, substitute the following clause:

Preservation of beneficial reservations and conditions

  "15. If:

  "(a)the act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or

  "(b)the doing of the act would affect any existing access to and enjoyment of any land or waters by Aboriginal peoples or Torres Strait Islanders or would affect rights or interests of Aboriginal people or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);

nothing in section 14 affects that reservation or condition or that access or enjoyment or those rights or interests.".

This clause, as has been said before, ensures that Aboriginal reservations or conditions for the benefit of Aboriginal peoples or Torres Strait Islanders are preserved. Proposed subsection (a) is of no concern; we agree with that. In proposed subsection (b) our amendment adds the words `any existing'—I emphasise existing—`access to and enjoyment of any land or waters by Aboriginal peoples or Torres Strait Islanders' should also be preserved when a lease is issued.

  This is a matter of equity. Very clearly, if there is an existing right of access—in the case of Aboriginal people it could be the use of a waterhole or it could be access to a sacred site—we should ensure that this is not extinguished when a lease is issued over that land.

  We know that pastoralists and miners need certainty; Aboriginal people need certainty, too. Although I understand, having discussed it previously, that the government's position is still somewhat uncertain on this, I put it to the Minister for Foreign Affairs (Senator Gareth Evans) that this provision should be favourably considered by the government and I look forward to its support for it.

  This is a provision that the opposition should consider favourably. It does not seek to extend rights; it simply says that, if there is an existing right of usage which is an access to a particular location and enjoyment of any portion of land or waters, that should be preserved.


Senator Campbell —Do you support Richard Court's bill? That's what it does.


Senator SPINDLER —No. That extinguishes all rights first. It is well and truly on the record that it is totally unacceptable and unjust for Aboriginal people. I commend this clause to both the opposition and the government.