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Saturday, 18 December 1993
Page: 5149


Senator O'CHEE (4.20 p.m.) —If I follow that, what Senator Evans means is that, provided the waters are waters within the state jurisdiction, they are onshore waters and then anything which takes place in the onshore water is subject to the rights of native titleholders in that area.


Senator Gareth Evans —Subject to the freehold test.


Senator O'CHEE —Yes. The problem is not that they have to be freeholders, but merely that they have to have a right which is then, by virtue of a fiction contained in this proposed subsection, deemed to be a freeholder's right. Take, for example, Moreton Bay. Suppose a group of Aborigines on Stradbroke Island have certain rights in relation to Stradbroke Island. They are deemed to be freeholders, notwithstanding that the right may merely be to gather mussels on the shore. Their right is deemed to be a freeholder's right and that has other rights in relation to the waters.

  Senator Evans would not know this because he is from Victoria, but Moreton Bay, as Senator Boswell well knows, is a very lucrative fishing area and this could substantially affect, for example, the prawning industry, which would come very close to many of the islands in the bay. It may affect the fishing industry and it may affect the crabbing industry. Some honourable senators have in recent times had the benefit of the product of some of that crabbing industry in Queensland. Those industries could be affected if one has what Senator Evans described as the freehold test and what I describe as the freehold fiction; that is, that the freeholders have an estate or an interest in the land which is equivalent to a freehold interest. Because it is there and it relates to all of the onshore waters, I believe the effect of this proposed section is to basically cover large areas of water on the landward side of islands or drying rocks.

  We have already seen the consequences this would have in Moreton Bay. We well know that there are Aboriginal claims over Stradbroke Island. That is a well-known fact. We all know there are very prominent Aborigines who come from Stradbroke Island or who claim to have links with Stradbroke Island. So, first of all, we have that problem in relation to a bay which is enclosed on one side by islands.

  We then have the problem of areas that are exposed or generally exposed at low water, especially areas along the Great Barrier Reef where there are substantial reef structures. If we mark off the coastal waters three miles from the low water mark and if there is a series of drying rocks a couple of miles off the coast that were no more than six miles apart, then a huge area of water would be affected. It just does not seem very reasonable for the fishing industry.