MoU Box
Australia-Indonesia MoU
regarding the Operations of Indonesian Traditional Fishermen in Areas of the
Australian Fishing Zone and Continental Shelf – 1974
In 1974,
as part of negotiations to delineate seabed boundaries, Australia and Indonesia
entered into a MoU which recognised the rights of access for traditional
Indonesian fishers in shared waters to the north of Australia. This access
was granted in recognition of the long history of traditional Indonesian
fishers that have fished the area. The MoU provides Australia with a tool
to manage access to Australian waters while for Indonesia, it enables
Indonesian traditional fishers to continue their customary practices and target
species such as trepang, trochus, abalone and sponges. New guidelines
under the MoU were agreed in 1989, in order to
clarify access boundaries for traditional fishers and take into account the
declaration of the 200 nautical mile fishing
zones. The MoU area became known as the MoU Box.
A CSIRO report into reef
top species in the MoU Box area was completed in 1999. The study indicated
that reef top stocks in the MoU Box area were severely
depleted. Recognising the existence of a shared problem, Australian and
Indonesian officials met to discuss the issue in April 2002
and further meetings are scheduled to take place in 2003.
Bilateral
Fisheries Priorities
In relation to fisheries
and marine affairs, the key current issue for the Australia-Indonesia
relationship is IUU fishing. Australia is working with Indonesia in
several fora, but primarily the Working Group on Marine Affairs and Fisheries,
to address the issue.
Cooperation to progress
management arrangements for the MoU Box is also a priority for the bilateral
fisheries relationship, along with the cooperative management of shared stocks
such as snapper and shark. Australia will also be continuing to work with
Indonesia to facilitate their participation in regional fisheries management
organisations such as the
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.
Last reviewed: 03 Oct 2007
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fifth most valuable Australian rural industry after wool, beef, wheat and
dairy. Australia’s fishing zone is the world’s third largest (total of 8,148,250 square kilometres), but our waters lack
nutrient-rich currents and, consequently, have lower productivity. Australian
waters contain some 3,000 known species of fish and at least an equal number of
crustaceans and molluscs, but only about 10 per
cent are commercially fished.
About 9,000 commercial
fishing boats operate in Australia, of which about 1,000 currently hold
Commonwealth fishing concessions and the rest state/territory licenses. As at
November 2007, Australia’s fishing industry
employed approximately 16,000 people.
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the biological and economic status of fish stocks managed by the Australian
Government can be found in the
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and the
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Last reviewed: 13 Oct 2008
The
Australian Fishing Zone and Economic Exclusion Zone
On 1 August 1994, Australia
declared an EEZ extending 200 nautical miles from its coastline. Within our
EEZ, Australia has sovereign rights to explore and exploit, conserve and manage
the living (e.g. fisheries and genetic material) and non-living (e.g. oil, gas,
minerals) natural resources. It also has jurisdiction over offshore
installations, marine scientific research and the protection and preservation
of the marine environment.
The AFZ, which was first
declared in 1979, is exactly the same area as
the EEZ but relates only to the use or protection of fisheries, whereas the EEZ
relates to all types of resources in the zone (e.g. fish, oil, gas, minerals,
etc.). Also, under the EEZ regime, where the edge of the continental shelf of
Australia extends beyond 200 nautical miles,
Australia has the right to explore and exploit the non-living resources as well
as sedentary fisheries species in this area.
The area of the AFZ is over
8 million square kilometres and the length of
Australia's coastline (not counting the offshore island territories) is
slightly less than 37,000 kilometres.
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Conservation of Southern Bluefin Tuna (CCSBT)
Indian Ocean Tuna
Commission (IOTC)
Western and Central Pacific
Fisheries Commission (WCPFC)
Pacific Islands Forum
Fisheries Agency (FFA).
DAFF is also active in the
United Nations’ Food and Agriculture Organization and the Pacific
Islands Forum Fisheries Committee.
Other
responsibilities include:
northern illegal
fishing
Australia’s bilateral
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Torres Strait Fisheries
issues
implementation of the
Aquaculture Action Agenda, and
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Crossing
Borders: Implications of the Memorandum
of
Understanding on Bajo fishing activity in northern Australian waters
N.
Stacey
South
Pacific Regional Environment Programme
Report
for Environment Australia, 2001
PDF
file
HYPERLINK "http://www.environment.gov.au/coasts/mpa/publications/pubs/bajo.pdf"
Crossing
Borders: Implications of the Memorandum of
Understanding
on Bajo fishing activity in northern Australian waters
(PDF - 148 KB)
About this
document
The 1974 Memorandum of
Understanding (MOU) between Australia and Indonesia was a goodwill attempt to
recognise the long-standing interests of Indonesian fishermen in the northern
Australian region. Bajo originating from the villages of Mola and Mantigola in
the Tukang Besi Islands, Southeast Sulawesi, are one group of fishermen who
have a historic interest in the region and currently operate in and around the
MOU area. This paper examines the effectiveness of the MOU in providing for
recognition of indigenous Bajo fishing rights, sustainable marine resource
conservation and management, and in curbing illegal Bajo fishing activity in
the Australian Fishing Zone. An analysis of the key concept of
"traditional" fishing encapsulated in the 1974
MOU shows it to be problematic with direct and far reaching consequences
for Bajo fishermen. It is argued that until the problems of the MOU are
addressed, by way of new arrangements incorporating a more culturally informed
inclusive approach with respect to traditional Indonesian fishermen, other
Australian policy responses to address illegal activity and marine resource
conservation in the AFZ will be undermined.
http://australia.gov.au/
Chapter 1. Contested
Rights of Access
This study considers
contested rights of access to fisheries resources between Indonesian fishermen
and the Australian government in the Timor and Arafura seas. The imposition of
international maritime borders between Australia and Indonesia has created a
situation of conflict between various groups of Indonesian fishermen seeking
access to traditional fishing grounds and the sovereign integrity of
Australia’s border regime. This conflict is exemplified by the many Indonesian
fishing vessels apprehended for illegal incursions into Australian waters each
year.
This book is an
ethnographic study of the sailing and fishing voyages undertaken by one group
of eastern Indonesian maritime people who operate in waters now claimed by
Australia. It concerns Bajo people (also known as ‘Bajau’ or ‘Bajau Laut’ and
by the generic terms ‘sea nomads’ or ‘sea gypsies’) who originate from the
villages of Mola and Mantigola in the Tukang Besi Islands, Southeast Sulawesi,
as well as Bajo from these communities who have recently migrated and settled
in the village of Pepela on the island of Roti in East Nusa Tenggara. These
Bajo belong to a much larger ethno-linguistic group known as the ‘Sama-Bajau’
who are found in scattered settlements in Indonesia, the Philippines and
Malaysia.
For at least three
centuries diverse groups of fishing peoples from islands now part of the
archipelagic nation state of Indonesia have engaged in seasonal voyages to fish
in the plentiful coastal and offshore waters, reefs and islands in the Timor
and Arafura seas off northern Australia. This activity is focused on the
collection of a range of marine products including trepang, shark fin, turtle
shell, trochus shell and reef fish, some of which command high prices on
international markets in Southeast Asia.
Since the early decades of
this century, but particularly since the 1950s, Australia has successfully
carried out a series of maritime territorial expansions culminating in the
establishment of a 200 nautical mile Australian Fishing Zone (AFZ), legitimated
under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). These claims
have gradually encroached on the traditional fishing grounds of a number of
distinct groups from Indonesia and turned Indonesian sailors of the open seas
into trespassers and illegal fishermen. [1]
The Australian government
has taken measures to recognise some form of prior fishing rights and to
regulate ongoing access for Indonesian fishermen in offshore waters now under
Australian control. Under a Memorandum of Understanding (MOU) signed with
Indonesia in 1974, Australian authorities allow traditional Indonesian
fishermen to operate within an area incorporating a number of offshore reefs
and islands in the western region of the Timor Sea, located in the outer part
of the AFZ. According to the minutes of a bilateral government meeting held in
1989, access to the area is limited to ‘Indonesian traditional fishermen using
traditional methods and traditional vessels consistent with the tradition over
decades of time, which does not include fishing methods or vessels utilising
motors or engines’. However, this arrangement has largely failed to address
issues of marine resource management, recognition of fishing rights and
prevention of illegal activity outside the permitted areas.
Australia’s response to
these illegal incursions has been to adopt a series of policy strategies aimed
at deterring Indonesians and protecting fisheries resources. These policies
take the form of: apprehension of boats and crew found operating illegally in
the AFZ; prosecution; confiscation of boats, catch and equipment; jail terms
for repeat offenders; and repatriation of fishermen to Indonesia at Australia’s
expense. Complementary to this approach, a series of educational visits by
Australian officials to provinces of eastern Indonesia has been undertaken to
inform Indonesians of the maritime boundaries existing between the two
countries and the areas where Indonesian fishing is permitted inside the AFZ.
This response costs Australian taxpayers millions of dollars each year.
However, more controversial than the cost is the burning of the confiscated
Indonesian fishing boats by Australian authorities (Fox 1998). Despite these
strategies, Indonesian fishing continues.
The issues are part of a
complex, tangled web of legal, political, economic and historical trajectories.
Since the late 1980s, the problem has at times posed a serious impediment to
diplomatic relations between Australia and Indonesia (Campbell and Wilson 1993:
6). It will continue to pose a serious challenge for both countries until a
suitable and appropriate policy and management response is devised.
For some years a number of
Australian commentators have argued that the shortcomings of Australia’s policy
and treatment of Indonesian fishermen are due, at least in part, to a lack of
culturally sensitive insight and understanding (Campbell and Wilson 1993; Van
der Spek 1995; Fox 1998). This argument has been supported in the report of the
Joint Standing Committee on Foreign Affairs, Defence and Trade: ‘if there are
deficiencies in some aspects of Australia’s handling of the problem of illegal
fishing they were probably caused in part at least by a lack of knowledge about
complex social and economic situations in eastern Indonesia’ (JSCFADT 1993:
129).
Commentators have suggested
that there is a limited acknowledgment and understanding of the diversity of
ethnic groups fishing in Australian waters. Generally, Indonesian fishermen
‘assume an inherent, inalienable Indonesian identity’ in Australia (Pannell
1993: 72). They are categorised as one homogeneous group and all prosecuted in
the same fashion without any regard to their historically specific activities
in northern Australia (Fox 1998: 134). In fact, Campbell and Wilson (1993)
demonstrated that at least five different Indonesian fisheries were operating
in the early 1990s. These involve a number of ethnically distinct populations
using a range of technologies with differing historical antecedents.
It has further been argued
that there are serious problems with the MOU arrangements and the definition of
traditional fishing encapsulated within it. This definition restricts access to
the allowed areas based on ‘traditional’ technology and ignores the dynamic
aspects of culture change (Campbell and Wilson 1993; Fox 1998). Furthermore,
Australian authorities continue to develop and enforce their policies without a
clear understanding of the complexities of the situation, the social and
economic impacts of the policies themselves, and the relationship of these to
continued legal and illegal fishing activity (Campbell and Wilson 1993; Fox
1995a, 1998).
The issue of traditional
Indonesian fishing has been further complicated since the late 1980s by a series of waves of illegal fishing activity
involving a number of opportunistic groups of people from Indonesia who
generally do not demonstrate a history of fishing activity in the Timor and
Arafura seas. Consequently, the Australian Government’s focus since the
mid-1990s has been on the ‘problem’ of illegal fishing, ‘solutions’ to minimise
or prevent illegal intrusions (Fox 1992; Reid 1992; JSCFADT 1993; Wallner and
McLoughlin 1995a: 33), and the current impact of Indonesian fishing on
Australia’s marine resources (Wallner and McLoughlin 1995a, 1995b). While
over-exploitation of some resources in the Arafura and Timor seas is a matter
of concern, the problems faced by the fishermen have generally been ignored.
Attention has focused on surveillance, apprehensions, prosecution and boat
forfeiture, rather than on alternative management responses.
Alternative approaches
involving both short- and long-term strategies are required (Russell and Vail
1988; Campbell and Wilson 1993; JSCFADT 1993; Fox 1998). These include
identification of different groups of Indonesian fishermen in order that
individual arrangements and treatment can be devised for each group, since the
different fisheries ‘present separate problems for which different measures are
needed’ (JSCFADT 1993: 117). Such an approach calls for investigation of the
historical, social, cultural and economic organisation of each fishery active
in Australian waters (Campbell and Wilson 1993: 193; JSCFADT 1993: 117; Fox
1995a: x). The absence of detailed ethnographic research has continued to mar
Australian policy decisions (Van der Spek 1995). This study will begin to fill
the gap by examining ‘what is actually happening on the water’ (Cordell 1989:
5) with regard to Bajo fishermen from Southeast Sulawesi.
The aim of this study is to
examine the social, cultural, economic and historic conditions which underpin
legal and illegal Bajo activity in the AFZ. It presents an analysis of the
history and economics of voyaging, identifies elements of continuity and change
in the patterns and organisation of voyaging, examines the material culture of
fishing, and illustrates Bajo world views and rituals associated with boats and
fishing. It also considers issues arising from Australian maritime expansion
and Australian government policies regarding the treatment and understanding of
Indonesian (especially Bajo) fishing activity.
The first question posed in
this study concerns the effect of Australian maritime expansion and the 1974
MOU on Bajo fishing activity. As a result of area restrictions, Bajo fishing
activity underwent considerable change from the late 1980s. However, the
changes did not happen in isolation. This dynamism is examined through analysis
of the interrelationship between Bajo responses to Australian maritime
expansion and the wider impacts of the domestic and international trade in
marine products. The Bajo are now firmly tied to the wider maritime economic
patterns in Southeast Asia. They have adopted new technology and interact with
the wider domestic and international economies in a creative and enterprising
fashion.
Marcus and Fischer have
stated the need for anthropology to embed local cultural worlds in larger
impersonal systems of political economy. They argue that ‘“outside forces” are
integral to the construction and constitution of the “inside”, the cultural
unit itself, and must be so registered’ (Marcus and Fischer 1986: 77). The Bajo
are a people attempting to accommodate cultural continuity within broader
processes of influence (ibid.: 78). Transformations in material culture provide
insights into issues of encapsulation and culture change among peoples
previously categorised as ahistoric (Wolf 1982), Oriental (Said 1979), or
‘traditional’. A central theme of this study is the opposition of ‘tradition’
to ‘modernity’ in relation to Bajo fishing activity in the AFZ, because access
to the 1974 MOU area for Indonesian fishermen is defined by the use of
‘traditional’ technology.
The second question posed
in this study is thus about the immediate and long-term consequences of this
concept of ‘traditional’ fishing contained in the 1974 MOU. While Australia and
Indonesia continue to enforce policies towards ‘traditional’ fishermen as if
they were people frozen in time, the Bajo are in fact demonstrating a form of
cultural dynamism in response to a range of local and international forces.
Because of changes in Bajo fishing activity, an adherence to entrenched notions
of ‘traditional’ fishing activities as static, subsistence-oriented and
non-commercial means that the Bajo are no longer considered to be operating
‘traditionally’ but ‘commercially’. Yet Bajo fishing activity in the AFZ has
‘traditionally’ been a commercial activity. Misunderstandings and
inconsistencies have thus arisen in Australia’s treatment of Indonesian
fishermen. Furthermore, it appears that this has hindered attempts at providing
solutions to the issues concerning traditional Indonesian fishing activity in
the AFZ.
This leads us to the third
question, which is why the Bajo continue to fish both legally and illegally in
the AFZ. For as long as illegal fishing continues, the effectiveness of the
Australian policy of deterrence is minimised. The apprehension and prosecution
of Bajo fishermen, and the confiscation and destruction of their boats, not
only fail to deter illegal fishing, but through the creation of indebtedness,
result in further illegal fishing activity. There are also other historical,
socio-cultural and economic motivations for continued fishing and sailing
despite the loss of access to traditional fishing grounds, and despite
technological restrictions, boat apprehensions and confiscations. The evidence
counters claims that fishing activity is driven only by the prospect of
monetary gain and the fact of resource depletion in Indonesian waters (JSCFADT
1993: 128).
A final question concerns
future management of Indonesian fishing activity in the AFZ. Previous research
by social and natural scientists, working in both academia and government,
agrees that the most suitable options for sustainable management of marine
resources and equitable arrangements for traditional fishermen in the MOU area rest
on a re-negotiation of the MOU itself, a revised definition of traditional
fishing, and more appropriate ways of regulating or licensing access for the
different groups of traditional fishermen (Russell and Vail 1988: 139–43; Reid
1992: 8; Campbell and Wilson 1993: 186; Wallner and McLoughlin 1995a: 34,
1995b: 121; Fox 1996: 174, 1998: 130). The first step in this process involves
identifying the fishermen ‘who can demonstrate an historic interest in these
waters’ to whom ‘priority access rights should be granted’ (Wallner and
McLoughlin 1995a: 34). This study therefore asks whether the Bajo have an
historic interest in the AFZ.
Permeable
border
Indonesian fishermen whose
traditional fishing grounds are in Australian waters may have a Mabo-style
claim, says CAMPBELL WATSON.
Papela
is situated on the island of Roti south-west of
Timor, near the maritime border between Indonesia and Australia.
Local tradition
says Papela was established during the sixteenth century as
a base to fish for shark and trepang around the sandy islands and reefs between
north-western Australia and Roti. So Papelans have been
fishing there for 500 years.
Most of the 7,000 Papelans are descended from the Islamic
seafaring peoples of south and south-east Sulawesi such
as the Makassans, Bugis, Butonese and Bajo, and from the
islands on the sea route from there such as Flores,
Solor and Alor.
Colonial
claims
Colonial Great Britain took
possession of the Ashmore Islands in 1878 and
Cartier Island in 1909. Presumably the claim was
based on the same now debunked grounds as claims to the Australian continent
itself, namely that they were terra nullius because they had no permanent
inhabitants.
In 1931
Britain transferred the Ashmore and Cartier Islands to Australia. Approximately
the present land areas were under the control of each state at the time of
Indonesian independence soon after World War II.
But claims by Australia and
Indonesia to ever more extensive seas continued to move forward. There is not
simply one border between the countries but a whole set of them (see map). In 1952 Australia unilaterally claimed the living
natural resources of the entire Australian continental shelf, which extends to
within 150 km of Roti. It included the
trepang and trochus within the Papelans' traditional fisheries.
In 1968
both nations extended their territorial seas, a zone of exclusive control, from
three to twelve miles. In 1973 they reached
agreement on a seabed jurisdiction line. In 1979
Australia, along with 60 other countries, extended its exclusive fishing zone
to 200 miles. The 1982
United Nations Convention on the Law of the Sea (UNCLOS III, coming into
effect in 1994) legitimated these extensions to sovereignty.
In 1981 Australia and
Indonesia agreed on a provisional fisheries surveillance and enforcement
boundary approximately equidistant from each country's coast. The 1993 Timor Gap Treaty for the exploration and
exploitation of non-living resources of a large part of the seabed stops just
short of the Ashmore and Cartier Islands,
which have been identified as highly prospective region for oil and gas.
Restricted
fishing
The effect of these
extensions of sovereignty has been that gradually the traditional fishing
grounds of the Papelans have come to lie entirely within Australian territory.
It was only in the 1970s that the Australian
government attempted to restrict fishing in those waters by Indonesian craft.
Negotiations with the Indonesian government resulted in the Memorandum of
Understanding (MOU) of 1974 by which a kind of
reservation was set up for Indonesian fishermen. The MOU zone now includes all
the waters in a boxed area around the initial group of reefs and cays right up
to the Indonesian border.
The MOU provides for
Indonesian fishermen using traditional sailing craft and methods of catch to
fish within this zone. Fishermen may only use sail and compass and may not
operate a radio. Fishing and collecting may only be carried out by traditional
means. It is forbidden to take turtles or their eggs or any land based products.
Taking of trochus, trepang,
abalone, green snails, sponges and molluscs was initially allowed everywhere.
But in 1988 the Ashmore Reef National Nature Reserve was created. This
drastically reduced the area in which products could be collected to just the
sea bed next to Browse islet and Scott and Seringapatem reefs. Fishermen are
only allowed to step onto land within the MOU zone at two of the Ashmore
islands and then only to collect fresh water.
Several fishermen claimed
it would take a month to catch in Indonesian waters what it would take a week
to catch in Australian waters. This is partly due to overfishing and lack of
marine management in Indonesia compared to Australia.
Not
exclusive
The Papelans themselves regard the seas as open and free and are not
inclined to claim exclusive ownership of their traditional fishing grounds.
Many vessels from Sulawesi
and other Indonesian ports also fish the waters throughout the border zone.
These craft are bigger and motorised. Much of this fishing in Australian waters
is 'illegal', although in some cases also based on purported historical rights.
The MOU simply specifies 'Indonesian fishermen' as a whole.
Many boats from nations
such as Taiwan and Japan also fish on both sides of the border. They employ
state of the art technology with devastating effect. Unlike Indonesian vessels
most have sufficient capital to purchase licenses although there are also many
instances of illegal fishing.
Relations with Australian
fishermen are said to be amicable. In certain areas of Indonesia however
conflicts are escalating between fishermen from different regions or using
different methods of catch. As pressure on marine resources within Indonesia
mounts ports adjacent to the border zone, including Papela, are becoming a
magnet for their accessibility to unexploited resources. The border remains
permeable to marine resources, and inevitably to the fishermen that derive
their livelihoods from them.
Dirt poor
Since 1997 the Australian government has begun exercising
an increasingly intolerant approach towards boats breaching the strict terms of
the MOU. Boats are seized by the Australian navy under directions from the
Depar tment of Fisheries and the crews taken into custody. The boats are then
towed to either Broome or Darwin. When convicted the crews may be fined heavily
or imprisoned, and their boats may be burnt.
Meanwhile the livelihood of
the community as a whole is eroding. Forty seven boats were captured and
destroyed in 1996 alone, out of a fleet of
around 200, leaving over 250 fishermen without a livelihood. Multiply this
by each fisherman's unsupported dependents, as well as businesses dependent on
their income. Community members claim an increase in violence, disenchantment
and alcoholism as a direct effect.
Papela is dirt poor.
Malnutrition, infant mortality and birthrates are high. Houses are small and
crowded and few have even running water. Most Papelans are educated only to
primary level. The average fisherman is lucky to earn Rp 4,000 Rp (a dollar or
two) a day.
The small number of boat
owners or 'bosses' live in moderate opulence. Most fishermen work for a boss in
return for a share of the catch. The majority are already in debt either to a
boss or a moneylender before departing to the border fishing grounds. When they
lose their livelihood they become further indebted to the boss, who is
nevertheless seen as a benefactor.
The fishermen are all male
and aged from their mid teens to their thirties. But the economic crisis
resulting from the Australian Government's actions affects the entire
community. I often encountered anger towards Australia, including at times
towards myself as an Australian, because the government denied them a
livelihood.
Fishermen explain that
primitive navigational methods (as required by the MOU) leave them unable to
take reliable bearings or prevent drifting into Australian waters. They are
often confused about the terms of the MOU and the area it covers. The border is
not marked.
When, occasionally, they
admit breaking the terms of the MOU intentionally, they justify it by asserting
traditional rights not written into the MOU. One fisherman said: 'What right
does a latecomer colonial government have to deny me the right to fish the same
grounds as my ancestors?'. Another quoted a more mundane reason: 'It's not the
same as Australia here. If we don't go out looking for a living the government
doesn't give us money, we starve!'.
Mabo
Only as recently as 1992,
in the Mabo decision, has the highest court in Australia recognised that the
customary laws of peoples who were in Australia before white sovereignty can
give rise to rights within the common law of present-day Australia. These
peoples include fishermen from present-day Indonesia, as we have seen.
The Australian government
responded with the Native Title Act of 1993, which tried to extinguish the
rights of Aboriginals and Torres Strait Islanders that had been recognised at
common law and to replace them with a legislative scheme of land and sea
rights. Negotiations prior to the legislation, and the legislation itself, did
not include any foreign nationals such as the Papelans who may also possess
such rights. As a result the Native Title Act may not have extinguished those
rights, and the present actions of the Australian government may conceivably be
contrary to the common law of Australia.
But doesn't the MOU do
effectively the same thing as the Native Title Act? Not exactly. During the
negotiations for the MOU the Papelans themselves were only consulted
indirectly. The MOU did not embody their negotiating position and as such
should not be effective as a voluntary extinguishment of their rights. The MOU
can perhaps best be seen as an agreement controlling and regulating the
enjoyment of historical and traditional rights that remain intact.
These rights can be
renegotiated in line with developments in Australia's common law and its
international obligations. Negotiations must involve their genuine
representatives in a fair process in which all parties are fully informed of
their likely rights.
For example, Papelans could
press to be allowed the use of motors, diving equipment and improved methods of
catch. As many as 20 fishermen a year from Papela alone perish in Australian
waters as a result of primitive craft and navigational instruments, and lack of
cyclone warning equipment, as dictated by the terms of the MOU.
Perhaps specific licenses
could be granted to those communities with traditional entitlements but who
have been most disadvantaged by the extensions to Australia's waters.
The establishment of
traditional rights may also act as a bargaining chip to allow Papelans to
negotiate on any future oil or gas production in the area. Compensation could
be in the form of aid packages, royalties or access to other resources.
Indonesian
law
Papelans
have little formal education and do not understand how international or
Australian law may benefit them. As citizens of Indonesia they have naturally
turned to the mechanisms of their own country. However, I found that these
bodies have been of little help.
Ever since independence
Indonesia has been a unitary state. Empowering local communities has often been
construed as being in conflict with this goal.
Of course traditional
rights should not have sole claim to determining resource distribution. However
in a society in which the state vigorously defends the rights of a small
capital owning elite, community rights are a necessary counterbalance. They are
part of ensuring a more equitable distribution of wealth. Without them, central
governments tend to serve their own interests rather than those of their remote
constituents.
Indonesia inherited the
civil law tradition from the colonial Dutch. Unlike British and Australian
common law, this system attempts to set down the entire contents of the law.
While reserving supreme law making power the Dutch did allow for 'natives to be
governed by their own customary (adat) laws'.
Ironically, since
independence the civil law tradition has continued to expand in the form of
increasingly comprehensive laws and regulations. These are usually divorced
from traditional rights, and customary law has withered. The latter is now
relegated to the role of a cultural anachronism. The official line is that
customary law will eventually die out.
The passing of the new
Fisheries Act of 1995 supercedes previous
legislation and no longer protects traditional fishing rights. Yet Indonesia
remains a signatory to UNCLOS III, which requires that such protection be
given. In Australia, by contrast, the law is moving in the other direction, in
line with broad international trends.
It is ironic that
indigenous customary laws are receiving greater recognition within a
predominantly settler society such as Australia than in a predominantly
'indigenous' nation such as Indonesia.
If the customary law of a
community whose citizens are Indonesian were recognised under Australian common
law, it could act as an important bridge with the customary law tradition of
Indonesia. It could even lead to a re-invigoration of customary law in
Indonesia.
Unfortunately the current
legal and political structures in Papela have not been a suitable vehicle to
assert Papelans rights. The fishermen do not even know how to conceptualise
those rights. Their official letters tend to speak about the Indonesian nation
rather than about traditional rights.
Aboriginal
communities
In 1993 the Australian
Ambassador, Alan Taylor, came to Papela (Rote Island) primarily it seems to
make Australia's position clear to the fishermen. He made no concessions to a
direct request from a fisherman for fishing licenses to be granted to Papelan
boats.
The Ambassador was
accompanied on his visit by representatives of several Aboriginal communities.
Most Papelans did not understand why they were there. But as it becomes more
widely known that Aboriginals have traditional sea rights in Australia, the
possibility arises of direct negotiations between Indonesian fishing
communities and Aboriginal communities on each community's traditional rights.
Papela is now on a trail
well worn by Australian anthropologists, lawyers, fisheries staff, film makers,
journalists and tourists. Awareness is growing in both Australia and Indonesia
that the present agreement is inadequate. The time is certainly ripe for some
informed and equitable negotiations.
If Australia recognises the
traditional rights of a group of Indonesian citizens within its territory,
based on their own customary laws, it would blur the border between the two
countries.
If the Indonesian government
supports the community of Papela to assert these traditional rights, it could
by osmosis lead to a more pluralist legal and political system within Indonesia
itself.
Sovereignty would be
dispersed to the subject communities of both countries. It would be part of an
evolving international standards of rights that more easily crosses borders.
HYPERLINK
"mailto:Campbell.Watson@UnivLeiden.nl"
Campbell
Watson
is an Australian lawyer who has worked with
Aboriginal organisations. He lived in Papela for
two months in late 1996 under a program of
Gajah Mada and Muhammadiyah Universities. He now researches international law
at Leiden University. A more detailed report is available from him at:
Herengracht 33E, 2312 LA Leiden, Netherlands.
Inside Indonesia 54:
Apr-Jun 1998.Internet.
Fishing in
Australian Waters
In the past decade, 140 Indonesian
fishermen drowned in Australian waters, a further 400
were imprisoned. JILL ELLIOTT reports that policies dealing with the issue are
costly, ineffective and have tragic consequences. She suggests better
alternatives.
For at least three
centuries fishermen from what is now Indonesia have sailed to Australia's
northern shores in search of trepang, shark fin, green snail, trochus shell and
other marine products. Evidence of early contact is found in Aboriginal art,
language, song, and oral history. Today their descendants still make the
hazardous journey, but they are no longer welcome. They now run the added risk
of apprehension, confiscation of vessels and equipment, and for some,
imprisonment.
Since 1906
The process of denying
Indonesian fishermen access to their traditional fishing grounds began in 1906
when they were prohibited from taking trepang in Australian waters. It
continued with the gradual expansion of the Australian Fishing Zone (AFZ), and
culminated in 1981 (after negotiations
between the Australian and Indonesian governments) with the establishment of an
Australian 200 mile (320 km) Fisheries Surveillance and Enforcement Line.
This bilateral agreement effectively
granted Australia sovereignty over as much as 80 percent
of the sea area between our northern shores and Indonesia's southernmost
islands. The Indonesian government received generous aid promises in return.
The losers were the Indonesian fishing communities living near the AFZ, who
were denied unconditional access to their traditional fishing grounds without
compensation. Only limited concessions were made in a 1975
Memorandum of Understanding (MOU), allowing them to fish 'traditionally' in
certain 'allowed' areas within the AFZ. Gradually even their access to these
areas is being eroded as much is converted to marine national parks.
Colonial
Australian policies towards
Indonesian fishermen are authoritarian and rely totally on deterrent measures.
They are reminiscent of a colonial past.
They are costly but ineffective, and have a serious impact on the lives of the
fishermen and their families. A closer look at the facts will suggest cheaper
and more humane ways of dealing with the problem.
There are two quite
separate situations. The first concerns the villagers of Papela and the island
of Rote, the second the fishermen who travel here from three small island
communities in the southeast of Sulawesi. Both groups share traditional fishing
links with the reefs and seabed in Australia's north. But the Papela people
live only about 80 kilometres beyond the AFZ, and thus have the stronger
relationship.
Papela
The village
of Papela lies on the island of Rote,
a small island off the southwest tip of Timor, less than 500 km from Australia. Since 1988, an estimated 140 fishermen from Papela have drowned in our
northern waters during cyclones or strong winds. All were fishing legally,
their deaths a consequence of MOU regulations that prohibit the use of motors
and modern communication and navigation equipment. Almost more alarming than
the tragedies themselves has been the lack of concern shown by either
government. There are no search and rescue operations for these men. Usually
their families learn their fate only because they fail to return.
The definition of
'traditional' applied to Indonesian fishermen is both inflexible and
anachronistic. Inflexible because it makes no allowances for safety, and
anachronistic because it expects sail power and traditional navigation methods
to provide enough precision to locate the boundaries of modern fishing zones.
This point was highlighted recently when five sail powered vessels from Papela
were apprehended by an Australian navy patrol boat near Browse Island. The
fishermen claimed they had drifted into Australian waters after the wind
dropped. They had no intention of violating Australian regulations, but could
not tell their exact position.
Proposals
The loss of life and
confiscation of vessels greatly affects the people of Papela.
Most try to obey Australian regulations. But they regard the current
arrangement as unfair - particularly because the loss of their fishing grounds
was negotiated without consulting them. While fully aware they are powerless to
lobby, they have asked the Australian government to consider two proposals.
First, that they be allowed to carry small motors for emergency use to prevent
further loss of life. Second, that Australia place beacons or buoys to identify
areas off limits within the MOU.
The fact that fishermen
from Papela have been careful to obey Australia's fishing regulations is
reflected in the small number convicted in recent years. Among them were
several who adamantly denied the charges, but were unable to negotiate an alien
legal process hostile towards them. In the recent case where they claimed to
have drifted into Australian waters, they initially pleaded not guilty. But
when told they would be remanded in detention for three months, they despaired
and changed their plea to guilty. They were quickly convicted and placed on
good behaviour bonds. Their vessels, equipment and catch were confiscated.
Coincidentally, one captain had witnessed his entire crew drowned during a
cyclone off the northwest coast of Australia four years earlier. He had been
fishing legally at the time. But having only recently recovered from this
trauma he had no intention of putting himself or his crew at risk this time.
Anomalies
Australian society provides
for the families of those detained awaiting court, but not so in Indonesia.
These fishermen were forced to trade their right to justice for the sake of a
quick return home to provide for their families. This is just one of many
anomalies in the legal process dealing with Indonesian fishermen. Another, also
relevant to this case, is the decision by the Immigration Department to
repatriate the crews before the case was heard. If this did not preempt the
outcome, how did they imagine the captains would sail their vessels home
without a crew should they have been found guilty?
The community of Papela
believes it is in its interest to obey Australia's fishing regulations. When
fishermen are unambiguously convicted in Australia, a 12 month fishing ban is
enforced on them by the local government when they return. This does not happen
elsewhere in Indonesia, and shows a willingness to comply with Australia's laws
and protect the few rights the Papela people still have. If the Australian
government was to consider offering restricted licences to these fishermen,
there is no doubt they would work to comply with any conditions. It would also
be in their interest to discourage illegal operators, and thus they would help
police our northern waters.
The
Papela fishermen have been more
disadvantaged by the expansion of the AFZ than any other group. Australia has
an obligation to acknowledge the prior rights of these fishermen, and consider
a more equitable way of compensating them. Their economic livelihood has been
traded off with scant regard for their welfare. Australia's strict enforcement
of MOU regulations only exacerbates their poverty. The confiscation of vessels
denies them an income, leaving them unable to pay off debts over the loss of
their vessels. The unnecessary loss of life has an impact on the whole village.
It leaves wives and children dependent on the limited charity of other poor
villagers.
Sulawesi
Muna-speaking fishermen
from the Southeast Sulawesi islands of Maginti, Masaloka and Kadatua make up
the second group. These three tiny communities share one culture. But the
strong maritime tradition that draws them together is becoming unsustainable.
The smallest island, Maginti, is only a kilometre long and 400 metres wide.
Such a size denies them a viable land-based economy. These fishermen are so
economically deprived and bereft of choices that they are forced to take the
enormous risk of contravening Australia's fishing regulations to feed their
families.
Since 1988, more than 400
fishermen from these islands have been imprisoned in Broome. Since this
excludes juveniles, adults of diminished responsibility and first offenders,
the total detained at Broome could exceed 2,000.
With each island supporting a population of approximately 2,000 people, this represents a large proportion
of the male population.
It is therefore surprising
that since 1988 no government representative
has discussed the problem with these men, either here or in Indonesia. Some
years ago a delegation of Aboriginal people led by Western Australian MLA Mr.
Ernie Bridge visited Papela. Apart from
that, Australian officials have preferred to meet Indonesian officials in
Jakarta, rather than travel to these remote communities. Suggestions are
sometimes heard of senior Indonesian officials with business interests linked
indirectly to illegal fishing in Australia. Indonesia's apparent inability to
stem the flow somewhat supports the suggestion. The fishermen say their
officials tend to 'turn a blind eye' because these are considered 'economic'
transgressions.
Depleted
Fishermen who voyage to our
northwest waters come from one very small region of Indonesia. Per capita
income in this province is among the lowest in Indonesia. Large foreign fishing
ventures, over-population, and rising expectations as people move from a subsistence
to a monetary economy all conspire to deplete their own marine resources.
Transmigrants coming from more populated islands add pressure on resources at
the expense of the locals.
Australia's policies have a
devastating effect on these fishermen and their families. They are often
imprisoned for long periods. Their families are left unsupported and forced to
borrow from moneylenders for their daily needs - beyond debts incurred by the
loss of the vessels and in financing their unsuccessful voyage. The longer they
remain in prison, the greater their debt and the greater the pressure on them
to repay when they return home. When released, their prison wages are garnished
against the cost of their repatriation. They are flown to Bali and left
penniless to begin the greater part of their journey home.
When imprisoned fishermen
receive news of the death or serious illness of a family member it adds another
cruel dimension to their punishment. Whether Australia should take
responsibility for at least some of these tragedies is not certain. But
imprisonment certainly distresses the families of fishermen and greatly
increases their deprivation.
Assistance
Thus there are two critical
aspects to the illegal fishing problem in Western Australia. First, the illegal
fishermen come from one very small region of Indonesia, motivated by a unique
set of circumstances. Second, harsher penalties actually increase the chance of
them returning to Australia, to recoup their losses.
Present procedures for
apprehending and detaining Indonesian fishermen are costly both to the
Australian taxpayer and to the fishermen themselves. Why has the Australian
government not contemplated a strategy of assistance rather than punishment? A
small part of the same money could be used to initiate projects that help them
develop a more sustainable economic base. Australian expertise in aquaculture
could ideally help the fishermen restock and manage their own reefs.
There has been an
initiative to help the people in one of these island communities, but not by
any government body.
On Kadatua a man from the Pilbara region of Western
Australia has devoted much of his time and money in setting up and maintaining
small community projects. These help the people manage their resources in a
more sustainable way. Since beginning this project several years ago, not one
fisherman from Kadatua has been apprehended in Australian waters. This example
puts the scale of the problem in its true perspective, and highlights the
inability of the government to fully address the issue.
Fishermen from the island
of Masaloka have also stopped making these risky voyages. It is now more than
two years since a vessel from this island has been apprehended. This was
achieved through a local initiative. Some wealthier people in the community
helped finance small cooperative trading ventures.
Broome
The fishermen from Maginti,
smallest of the islands, continue to occupy cells in Broome
Prison. However, during their incarceration this time, a group of them
have formulated a strategy to take back to their community that they hope will
end illegal fishing. This also involves a village cooperative and small trading
enterprises. Unfortunately, there are no wealthy villagers in Maginti, and
assistance will come from a small group of interested people in Broome.
These solutions sound
remarkably simple. But the fishermen have trouble contemplating an enterprise
that does not use their seafaring skills. Instinctively, they look to the sea
for their resources. When these become depleted, they merely travel further
afield. When they voyage into Australian waters they are aware they are
contravening Australia's laws. But they do so only because their traditional
values deny any ownership of the oceans or its contents. They do not consider
their actions criminal. Australia calls them criminals and imprisons them for
up to two years. But ironically crime is nonexistent in their own communities,
and communal and religious values remain strong despite the deprivation.
Makassan trepang fishermen
In the middle of 1994, some Makassan trepang fishing vessels were
apprehended at Hibernia Reef, about 300 km northwest of the Australian
coastline and just inside the AFZ boundary. The fishermen had purchased maps
from Indonesian officials in the West Timorese town of Kupang,
which showed Hibernia Reef in Indonesian territorial waters. Because of this,
and because they had not intended to fish in Australian waters, all pleaded not
guilty. Nevertheless, all were found guilty, and their catch and equipment were
confiscated. Those able to produce the faulty maps were allowed to return to
Indonesia with their vessels, but those without, whatever their stated good
intentions, lost their vessels.
Some saw this influx of
trepang fishermen from the Sulawesi mainland as a new wave in Australia's
illegal fishing problem. The West Australian newspaper went further, running a
headline story that suggested a large number of Makassan vessels were waiting
in the West Timor town of Kupang, ready to descend on Australian waters early
in 1995. The informant used by the newspapers claimed to have spent time in Broome Prison. But he is unknown to
Australian authorities or other Indonesian fishermen incarcerated at Broome.
Not only had the newspaper not verified its story, it failed to report that
there has been no such raid into Australian waters to date.
Budgets
Stories such as these give
the Australian public the feeling that the illegal fishing problem is much more
threatening than it actually is. Furthermore, were it not for these stories,
and for the determination of our naval, customs and fisheries officers to bring
before our courts a regular supply of destitute Indonesian fishermen, it is
unlikely the budgets for surveillance and protection of our northern waters
would have increased at the rate they have in the past decade.
Indonesian fishermen might
well provide the justification for increased budgets, but there is also a
danger that those policing our northern shores will lose sight of the real
threats. This may have been the case in the Northern Territory in 1994, when a shipment of illegal drugs almost
entered Darwin's port undetected because authorities were preoccupied with
monitoring movements of a vessel carrying Asian
refugees.
Australians should question
the motives behind the hysteria which is drummed up over issues such as
Indonesian fishermen and Asian refugees. There are far more humane solutions to
these problems. But they will only be found by putting the issues into their
proper perspective, and by taking a less imperialistic stance when relating to
our Asian neighbours.ii
Jill Elliott lives in
Broome and is a member of the Kimberley Indonesian Friendship Association.
At the invitation of the
people of Maginti, the Association is raising funds to send a member to Maginti
to assist in setting up a village cooperative (KUD) and associated projects.
Anyone wishing to support this project can send a donation to the Association:
c/- PO Box 1186, Broome WA 6725. (Inside Indonesia 46: Mar 1996).
Australian Navy rescues 16
from sinking boat off northwest coast
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The Associated Press
Published: November 21,
2007
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HYPERLINK
"http://www.iht.com/articles/ap/2007/11/21/asia/AS-GEN-Australia-Boat-Rescue.php"
\l "#" \o "Click to view map"
CANBERRA, Australia
:
The Australian navy rescued
16 people, 10 of them children, from a boat sinking in rough water off the
country's northwest coast, the defense department said Wednesday.
The group from the
Indonesian island of Rote was trying to reach Australia to escape economic
hardship at home, said Ferdi Tanoni, director of the West Timor Care
Foundation, an advocacy group for fishermen.
Tanoni said they came from
three families who had fished disputed waters between Indonesia and Australia
for generations.
Foreign Minister Alexander Downer confirmed that the three men, three women and 10 children had set off in wooden boat
from Rote. He could not confirm that they were seeking asylum in
Australia.
Two navy patrol boats were
diverted to assist the 10-meter-long (33-foot-long) vessel after workers on an
offshore mining rig saw it taking on water Tuesday, a defense department statement
said. Naval officers rushed to the scene and pulled all 16 passengers from the overcrowded boat as it sank in rough
seas.
Today in Asia & Pacific
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Immigration Minister Kevin
Andrews said in a statement that the navy was taking the group to Christmas
Island, a remote Australian territory in the Indian Ocean where the government
runs an immigration detention camp.
He said they would undergo
health and identity checks at the camp.
Many asylum seekers set off
from Indonesia in rickety boats bound for Australia.
In February, the Australian
navy intercepted a boatload of 83 Sri Lankans, the largest group of asylum
seekers to try and reach Australia since 2001, when the Norwegian vessel Tampa
rescued 433 mostly Afghan asylum seekers from a sinking Indonesian ferry and
attempted to take them to Australia.
Prime Minister John Howard
refused to allow the ship to dock on Australian soil, and eventually adopted a
hardline policy of refusing to allow asylum-seekers to reach the Australian
mainland by boat. Internet.
Australia's
Treatment To Indonesian Fisherman "Unacceptable"
"YPTB
Condemn Australia's Treatment To Indonesian Fishermen" Referring to the
news about the treatment of Australia's Federal Government Agents to the
Indonesian fishermen held (inhumanly) in Port of Darwin-Australia's Northern
Territory "unacceptable", accusing them
illegally have entered and
fishing in Australian waters, ended with loss of life of an Indonesian
fisherman. Herewith, West Timor Care Foundation known as "YPTB" as a
single non Government institute in Indonesia voicing concerning the various
rights and interests of Indonesian community being neglected Nationally and
Internationally in Timor Sea, require to give its urgent comments as following
;
With very deeply regret,
YPTB condemn the treatment of Australia's Federal Government Agents which have
acted beyond the bounds of human equity to held 7 Indonesian fishermen for
several weeks on board of a small cramped fishing vessel without reasonable
facilities equiped such as toilets. The only sleeping quarters and protection
against Darwin's tropical storm for the seven men was a small box, that strong
possibilities have caused the death of Mansur La Ibu,one of the Indonesian
fishermen.
With very deeply regret, YPTB condemn the treatment of Australia's
Federal Government Agents to the Indonesian fishermen as a virtual prisoner
without charges being preferred against them, without trial and without access
to judicial review. " Furthermore... it is inhuman to keep (detained)
seven men on a 13,5 metre fishing vessel for some weeks where their only shelter is a small box as their
protection against Darwin's tropical storms ".
With very deeply regret, YPTB urge The Indonesian Department Of Foreign
Affairs to immediately form an Independent Team by involving National
Commission Of Human Rights and various related independent parties from Indonesia
and Australia to conduct an objective investigation to the case.
With very deeply regret, YPTB urge The Indonesian Department Of Foreign
Affairs to immediately conduct a review concerning Memorandum Of Understanding
between Indonesia and Australia known as " MOU Box" in Timor Sea,
using the principles of UNCLOS 82' and 200
nautical miles Economic Exclusive Zone respectively especially on the area
around Ashmore Reef (Gugusan Pulau
Pasir) which known to Indonesian fishermen as an inheritance region of
their ancestors (Rotenese,West Timorese etc) for the past centuries,but now,
have been claimed as part of Australia.
With very deeply regret, YPTB urge The Indonesian Department Of Oceanic and
Fisheries, for the time being todiscontinue the entire cooperation plan with
their Australia counterpart such as an MOU,Agreement and or Meetings, until the
death case of Mansur La Ibu, Indonesian fisherman is expressed transparently
and justified by Australia's Federal Government Agents.
With fully humility and high
respect, YPTB extend many thanks and high appreciation to Mr. Greg Cavanagh,an
Australia's Northern Territory Coroner in Darwin which gave his expression
honestly to the death case of Mansur La Ibu, and the treatment to him with his
other 6 friends, and also have strongly criticized the action of the
Australia's Federal Government Agents of their treatment to the Indonesian
fishermen.
Besides also has recommended detained crew members of Indonesian
Fishermen who are not charged by the Government be sent home "as soon as
reasonably practicable" and that The Australian Fisheries Management
Autority conduct a review in to the detention of illegal fishermen. Also urged
Australia's Department of Immigration to work out an arrangement with The
Consul of the Republic of Indonesia in Darwin over the burial of any Indonesian
fisherman who dies while in detention in Australia. "The Humanist Action
of Mr. Greg Cavanagh at least have shown his love to fellow being which really
inestimable".
Based on the spirit of Indonesia-Australia
brotherhood relationship, emphatically YPTB refuse and will not even permit a
little space to Indonesian fishermen knew to bring Illegal immigrants
infiltrate (entering) to Australia, and give its fully support of the imposed
law to them humanly by Australian
Authorities.
"But, on the contrary YPTB give its fully support also to all Indonesian
traditional fishermen to fish in all the region of Timor Sea including in
Ashmore Reef (Gugusan Pulau Pasir) and the area around it. Because truely we
all must admit that hundreds of year since as far as can be remembered year
1609 Indonesian fishermen have searched fish
etc. as part of their daily life in the area far before a British
Captain Ashmore arrived in the area around 1871.
So, Australia should not arrest,detaine and or send the Indonesian fishermen to
the Court found entering the area. If the dispute between the Indonesian
fishermen and
Australia in Ashmore Reef
and the area around it were using the principles of UNCLOS 82 ', that region belong
(become a property) of Indonesia, not Australia. And if that area identify as
an overlap area, according to International Maritime Law also, that area should
become a joint cooperation area between Indonesia and Australia. Kupang,
Wednesday, March 31, 2004. West Timor Care Foundation (YPTB) Ferdi Tanoni
Chairman Mobile : +62 812 376 4928 or +62 3784219
YAYASAN PEDULI TIMOR BARAT (West Timor Care Foundation) Jalan Perintis
Kemerdekaan I / 16 Kupang - 85228 - Timor Barat / NTT. Phone/Fax :+ 62 380833734,
E-mail; ferdi@... SIARAN PERS (Versi
Indonesia Untuk Segera Dipublikasi)Internet.
Penulis
: Drs.Simon Arnold Julian Jacob
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