Aboriginal Heritage (Miscellaneous) Amendment Bill

Introduction and First Reading

Received from the Legislative Council and read a first time.

Second Reading

The Hon. A. KOUTSANTONIS (West Torrens—Treasurer, Minister for Finance, Minister for State Development, Minister for Mineral Resources and Energy) (15:35): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Aboriginal Heritage Act 1988 provides for protection of all Aboriginal sites, objects and ancestral remains in South Australia. The Act recognises that Aboriginal sites are not only the physical evidence of past Aboriginal occupation but are also integral to the enduring living Aboriginal culture and practiced beliefs.

The current Act commenced operation almost 30 years ago and it was thought at that time that Ministerial powers should frame decisions about how Aboriginal heritage would be protected and the circumstances in which it might be damaged.

In recognition of the fact that knowledge about the location and importance of certain areas protected by the Act is only held by Traditional Owners, a practice has developed where government, developers and mining operators have sought to reach direct agreements with Traditional Owners regarding land use on and around Aboriginal sites, objects and ancestral remains protected by the Act. These agreements are not currently recognised under the Act.

In addition, the recognition of native title over much of the State, with the balance largely subject to native title claim, has resulted in land access agreements being required with native title holders and claimants. It is common for these agreements to provide for site avoidance but as with other non-native title agreements of this nature, they are not able to deal with matters requiring my authorisation under the current Act.

In 2008, this government commenced a review of the Aboriginal Heritage Act and two key objectives of the proposed reform were to enable traditional owners to deal directly with land use proponents about the impact of their activities on Aboriginal heritage and the accommodation of native title holders and claimants within this structure.

The Aboriginal Heritage (Miscellaneous) Amendment Bill 2016 has been informed by consultation since 2008 across government, industry and most importantly with Aboriginal South Australians about these matters.

The amendments proposed in the Bill enable the traditional owners to reach agreements, in their own right, with land use proponents who in turn gain certainty about who speaks for heritage in the area and all benefit from overall certainty of process. The agreement making process is not mandatory and does not require consultation as outlined under section 13 of the Act.

To enable agreement making the Bill inserts a new Part 2B which provides a process for Aboriginal bodies to apply to the South Australian Aboriginal Heritage Committee (the Committee) a body that is already established under the current Act, to become Recognised Aboriginal Representative Bodies (RARB).

Under new section 19B(4) where there has been a determination of native title, the registered native title body corporate will automatically become the RARB unless it opts out or the Committee does not approve it.

The Committee may give written reasons for its decisions relating to the appointment of RARBs and, where there are competing applications for appointment as a RARB in relation to a particular area, or particular Aboriginal heritage, the Committee may attempt to resolve any dispute through mediation.

Pursuant to new section 19E the Committee has powers to revoke and in some cases suspend the appointment of a RARB. These powers exist to deal with a RARB that has failed to properly ascertain and represent traditional owners or where the RARB has failed or refused to perform its functions under the Act. Pursuant to new section 19F, the Minister also has a general power to for example revoke the appointment of a RARB and reappoint it, save for a specific site where I may appoint another body as the RARB. This provides checks and balances for traditional owners who may have interests in areas where the native title holder is the RARB.

Once a RARB is appointed it may enter into agreements with land use proponents under new Part 3 Division A1.

Both the RARB and the land use proponent may then elect to negotiate at which point good faith negotiations commence. Once agreement is reached the Minister may approve it if satisfied that it satisfactorily deals with the Aboriginal heritage and in doing so must then make an authorisation that contains a condition that the person authorised must comply with the approved agreement.

Local heritage agreements can be enforced through the District Court, and costs may only be ordered where it is in the interests of justice to do so.

If agreement is not reached then the Minister must consider the application for authorisation in accordance with requirements of the current Act.

In making Division 1A agreements, the parties may provide for avoidance of known sites, object, or remains. The agreement may also provide a protocol for what might occur in the event that an Aboriginal site, object or remains not known about is discovered and partly damaged or disturbed. As all Aboriginal heritage is protected, an agreement about site avoidance can now deal also with the possibility of damage to what is unknown by the parties with certainty that the Act has been complied with.

Lastly, Division A2 provides for the approval of agreements affecting Aboriginal heritage under other Acts. This Division provides for the approval of native title agreements required under other legislation. New section 19N provides that the Minister must be satisfied that the agreement satisfactorily deals with the Aboriginal sites, objects and remains in the area of the agreement.

Agreements of this kind do not have to be made with a RARB but because they are made according to the requirements of other legislation and the Minister is required to approve them if of the view that an additional regulatory burden is not required. Since consultation commenced in 2008, there has also been litigation about the meaning and effect of section 6(2) of the current Act. Section 6(2) requires the Minister to delegate his or her decision making powers most often requested in relation to section 23, to authorise damage to sites to the traditional owners on their request.

The impact of judicial decisions about the interplay between section 23 and section 6(2) has led to difficulties with the administration of the Act. The current wording of section 6(2) where the Minister must at the request of Traditional Owners delegate his powers has proved to be impossible to determine since the Act was introduced in 1988. There have only been a handful of section 6(2) requests and no section 6(2) requested has ever been successfully granted.

The Bill therefore repeals section 6(2) and section 6(4) and provides that any current requests before the Minister will be void and of no effect.

These amendments to the Aboriginal Heritage Act inserts a framework that adopts existing and familiar agreement making practices that are commonly used outside of the Act and invests them with certainty and regulatory force.

This Bill represents an important and practical step for Traditional Owners to have a meaningful say about how their heritage is protected. By providing for native title matters to be addressed under the heritage legislation it also provides for much sought after efficiency and certainty for land use proponents.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Aboriginal Heritage Act 1988

4—Amendment of section 3—Interpretation

This clause inserts definitions of key terms used by this measure into section 3 of the principal Act.

5—Amendment of section 6—Delegation

This clause deletes subsections (2) and (4) of section 6 of the principal Act.

6—Amendment of section 7—Aboriginal Heritage Committee

This clause makes a consequential amendment to section 7 of the principal Act.

7—Amendment of section 13—Consultation on determinations, authorisations and regulations

This clause makes a consequential amendment to section 13 of the principal Act to exclude from the scope of that section an authorisation in relation to which a local heritage agreement has been approved.

8—Amendment of section 14—Authorisations subject to conditions

This clause inserts new subsection 9(2) into section 14 of the principal Act, creating an offence where a person contravenes or fails to comply with a condition of an authorisation under the principal Act.

9—Insertion of Part 2A

This clause inserts new Part 2A into the principal Act as follows:

Part 2A—Aboriginal Heritage Guidelines

19A—Minister may publish guidelines

This section enables the Minister to publish guidelines for the purposes of the measure, and makes procedural provisions relating to making the guidelines.

Part 2B—Recognised Aboriginal Representative Bodies

19B—Recognised Aboriginal Representative Bodies

This section appoints, or provides for the appointment, of persons or bodies as Recognised Aboriginal Representative Bodies in respect of an area, or Aboriginal sites, objects or remains.

The section makes procedural provision in relation to such appointments.

19C—Priority where multiple applications

This section provides guidance to the Aboriginal Heritage Committee in the event there is more than 1 application to be the Recognised Aboriginal Representative Bodies in respect of a particular area, or Aboriginal site, object or remains.

19D—Additional functions of Recognised Aboriginal Representative Body

This section confers an additional advisory function on each Recognised Aboriginal Representative Body, as well as allowing the Minister or other Acts to confer functions on the bodies.

19E—Revocation and suspension of appointment of Recognised Aboriginal Representative Body by Committee

This section sets out the circumstances in which the appointment of each Recognised Aboriginal Representative Body must, or may, be suspended or revoked by the Committee.

19F—Revocation of appointment of Recognised Aboriginal Representative Body by Minister

This section sets out the circumstances in which the appointment of each Recognised Aboriginal Representative Body may be revoked by the Minister, and confers powers on the Minister to fill resultant vacancies, or give directions to the Committee.

19G—Register

This section requires the Committee to establish a register of Recognised Aboriginal Representative Bodies, and makes related procedural provision.

10—Insertion of Part 3 Divisions A1, A2 and A3

This clause inserts new Divisions A1, A2 and A3 into Part 3 of the principal Act as follows:

Division A1—Agreement making with Recognised Aboriginal Representative Bodies

19H—Negotiation of agreement with Recognised Aboriginal Representative Body

This section enables an applicant for an authorisation under section 21 or 23 of the principal Act to negotiate with a Recognised Aboriginal Representative Body, and enter a local heritage agreement accordingly. The section makes procedural provision in relation to local heritage agreements, including a requirement that they be approved by the Minister.

19I—Approval of local heritage agreement by Minister

This section sets out how a local heritage agreement is to be approved by the Minister.

19J—Minister to grant certain authorisations where local heritage agreement approved

This section requires the Minister, on approving a local heritage agreement, to grant an authorisation under Part 3 of the principal Act to which the agreement relates.

19K—Enforcement of local heritage agreement

This section provides that local heritage agreements can be enforced by a party on application to the District Court.

19L—Interaction of Division with other provisions

This section clarifies the relationship between the proposed Division A1 and other provisions of the principal Act.

Division A2—Agreements affecting Aboriginal heritage under other Acts

19M—Application of Division

This section sets out the agreements to which the proposed Division applies.

19N—Approval of agreements to which Division applies

This section sets out how an agreement referred to in proposed section 19M is to be approved by the Minister

19O—Variation, revocation or suspension of approval

This section empowers the Minister to vary, revoke or suspend the approval of an agreement under the proposed Division for any reason he or she thinks fit, and imposes a requirement of consultation with the Committee.

19P—Certain provisions of Part not to apply in relation to acts done under approved agreements

This section disapplies sections 21 and 23 in relation to things done, or not done, in accordance with an agreement to which the proposed Division applies.

Division A3—Register

19Q—Register

This section requires the Minister to establish a register of local heritage agreements and agreements to which Division A2 applies and makes related procedural provision.

11—Amendment of section 24—Directions by Minister restricting access to sites, objects or remains

This clause inserts new subsection (2) into section 24 of the principal Act to require the Minister to have regard to specified agreements before giving directions under that section. It also amends subsection (4) of that section to require notice of proposed directions under the section to be given to the relevant Recognised Aboriginal Representative Body.

12—Amendment of section 25—Directions by inspector restricting access to sites, objects or remains

This clause inserts new subsection (1a) into section 25 of the principal Act to require inspectors to have regard to specified agreements before giving directions under that section.

13—Amendment of section 37A—Aboriginal heritage agreements

This clause amends section 37A(5) of the principal Act to require the Minister to consult with the relevant Recognised Aboriginal Representative Body before entering into an Aboriginal heritage agreement under that section.

14—Insertion of section 37E

This clause inserts new section 37E, setting out how applications under the principal Act may be made.

Schedule 1—Transitional provision

1—Delegations under section 6(2) of the Aboriginal Heritage Act 1988

This clause makes transitional provisions quashing certain applications and rights to apply that existed under section 6(2) of the principle Act (that subsection being repealed by this measure).

Debate adjourned on motion of Dr McFetridge.