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Saturday, 18 December 1993
Page: 5148


Senator O'CHEE (4.14 p.m.) —I thank the minister. I hope we do not end up with a case like this, but if we do, I hope the government's intention in the clause is made abundantly clear.


Senator Tambling —He will be on the High Court by then.

  Senator Gareth Evans interjecting—


Senator O'CHEE —I do not know which I would prefer Senator Evans to be—in the High Court or Secretary-General of the UN. With the greatest respect, I am not really thrilled with either alternative. If we ever end up with a case like that, I hope it is abundantly clear to those who have to look at the section that that is what the section is meant to be.

  I raise with the minister another problem which relates to this. It is a problem that was drawn to my attention on an earlier visit to Western Australia, and would apply in certain places in Queensland. It relates to state jurisdiction. Essentially, an onshore place is an area of state jurisdiction. I am concerned that areas of Western Australia and Queensland may have a series of what would be called in international law `drying rocks', and that rights would appertain to each of the drying rocks and to the waters enclosed therein, because they would all be onshore places, would they not?


Senator Gareth Evans —Each of the what?


Senator O'CHEE —Drying rocks; rock or coral bommies that are exposed at the low water mark. I note the comments that Senator Gareth Evans made to Senator Ian Macdonald in relation to the drawing of baselines, which is a related but separate issue. This one is slightly different because there could be an area of coastline and there could be offshore from that coastline a series of drying rocks—rock or coral bommies which are exposed at low water.

  The question is, what is the effect of this bill over the waters that are on the landward side of those drying rocks? Certainly, the water on the ocean side of those drying rocks would appear to be relatively unaffected, but there may be a substantial area of water between the exposed drying rocks and the ordinary shore. Does native title extend to the area between the shore and the drying rocks and over the waters in that area? I understand that in Western Australia this would substantially affect the lobster industry because many of those lobsters are gathered from the landward side of exposed drying rocks.


Senator Ellison —And pearling.


Senator O'CHEE —As Senator Ellison says, this could also affect the pearling industry. In Queensland, it could quite foreseeably affect much of the fishing industry. What is the effect in relation to waters in Moreton Bay, for example, where there are very substantial long sand islands which, at their nearest point to the coast, are across a bar no more than 100 or 200 metres wide. If one looks at most of Moreton Bay, the bars at either end—at Caloundra and Southport—are merely a couple of hundred metres wide. If there are native title rights, do those native title rights affect all of the waters within the bay? This is a separate question from the drawing of baselines between two low water marks across an estuary or inlet.