Nigel Scullion (NT, Country Liberal Party) Share this | Hansard source

As a Territorian, I want to try and add some context to the material to allow both Senator Evans and Senator Bartlett to gain a clearer understanding of the process. I commend them both. Their questions are not mischievous questions; they are questions going to the core of why the Commonwealth is acting in these matters. The Aboriginal land rights act that we are very sensibly seeking to amend applies only in the Northern Territory, and that is perhaps why the issues are not widely known.

While we talk about this area as Aboriginal land, people need to remember that for half the day this is ocean. This is a very complex legal matter. It has been gone over again and again. We have had the Croker Island test case; we have had the Blue Mud Bay test case. To answer Senator Evans’s earlier question: the Blue Mud Bay case does not deal with matters to do with the intertidal zone at all. It is being examined on this day by the full bench of the Federal Court, presided over by Justice French, and we look forward to the outcome of that matter. But, as I understand it, it has nothing to do with the intertidal zone in Blue Mud Bay.

Whether or not the Aboriginal Land Commissioner recommends that this land be granted is based on one simple piece of information, Senator Evans. If the land commissioner is convinced that Indigenous people have a continuing association with the land then the land must be granted. He has no discretionary powers over that matter at all. He then has to take into consideration at those hearings all the cases of detriment. In this circumstance, it was a case of detriment on behalf of the Northern Territory government. They have to manage the fisheries there and the people who move in and out of these areas—commercial fishers, recreational fishers, yachties and other people who use the water.

Generally, the Westminster system does not recognise landownership beyond the high-water mark for that very reason. So we have by dint of history a circumstance in which the land title goes to the low-water mark, when in every other case it goes to the high-water mark. The reasons for that are fairly simple. I may be wrong but I am pretty sure that in schedule 1 of the act it says that the original definition of places like Arnhem Land fell under the protected reserves. The protected reserve was described to the low-water mark. The low-water mark is something that is intangible. Where the low-water mark is changes every day, so in point of law it was so difficult to define where it was in general terms that we then went to using the mean low-water mark so that we could establish a couple of pieces of fact to enable us to work out whether people were on that land—or at least have a mechanism for doing so. There have been a number of cases that have failed to establish whether or not that is possible. I add those pieces of information, Senator Evans, so that you understand the complexity of these issues and the time that has gone into establishing some of them.

The minister’s responsibility in this matter, Senator Evans, is to weigh up the balance of benefit, because that is outside the ken of the land commissioner. It is the role of the minister to take into consideration the cases of detriment. The cases of detriment are in the equivalent of Hansard and are part of the report from the land commissioner. The minister will examine cases of detriment to do with the beds and banks of the rivers, for example, and particularly regarding land that is not contiguous with Aboriginal land, which is significant. This is not a continuation of Aboriginal land; this is simply land that was claimed on the last day before the expiry of the sunset clause to ensure that it was all covered. And good luck to the land councils—it is their responsibility to make sure that every possible claim can be made.

In considering this, the minister has taken into account the claims of detriment. For example, a pastoralist—and it may be an Aboriginal pastoralist—may need to move his cattle from his land to the water. To get a barge to come up and simply move the cattle across, you would have to seek permission or get permits. There are a whole range of processes which simply make it untenable under normal circumstances. That is the very reason that the Westminster system only recognises land tenure to the high-water mark.

To both Senator Evans and Senator Bartlett: I am just appealing for some common sense in this matter. I assure you quite sincerely that there is no mischief in this matter. The minister has sincerely considered the issues of detriment, which is his or her responsibility. The setting aside of these does not form any precedent. It should also be noted that no land in the intertidal zone not contiguous with Aboriginal land has ever been granted. This is simply a series of historical events. It does not take away any particular rights. You cannot move the land. The capacity for Indigenous Australians, or those people who see themselves as or who are traditional owners, to occupy that land or use the resources that, depending on the time of the day, walk upon or swim across that land will continue. I appeal to senators to take into consideration some of those circumstances.