Aboriginal Heritage (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 8 March 2016.)

The Hon. T.A. FRANKS (12:15): I rise to continue my remarks to this bill. In my contribution today, I would like to table the time line of events in action brought by Robert John Starkey as plaintiff and appellant as a traditional owner for Lake Torrens. I seek leave to table that document.

Leave granted.

The Hon. T.A. FRANKS: The case involved a decision by the then minister for Aboriginal affairs, Grace Portolesi, to provide authority, under section 23 of the Aboriginal Heritage Act, for Straits Resources as operator on an exploration licence held jointly with Kelaray Pty Ltd to damage, disturb or interfere with Aboriginal heritage—essentially, drill holes on Lake Torrens and Andamooka Island.

Prior to the authorisation, the then minister Portolesi conducted consultation with the traditional owners in Port Augusta, with a group of persons of Kokatha and Adnyamathanha descent. At the meeting, those present passed a motion that they, the traditional owners, be delegated the minister's authority to determine the section 23 application themselves. I am informed that the minister prolonged making a decision in regard to that request until 7 July 2010—the same day, I am informed, that she gave the companies authority to proceed and said that she had not made any decision. I certainly ask for feedback on that information from minister Maher.

I am informed that Robert Starkey, a Kokatha man, brought judicial review proceedings in 2010 to review the decision. Initially, Justice Sulan held that the minister's decision was not contrary to law. Robert Starkey then appealed to the Full Court of the Supreme Court, which determined that the section 23 authorisation was contrary to law and quashed it. The Full Court's reasoning was that the applicants had not been provided with procedural fairness by the then minister concerning the delegation request, and the delegation, if requested, was mandatory under section 6 part 2. An order in the nature of mandamus was made requiring the minister to confer with the applicants concerning the delegation request. That process, of course, has been ongoing since December 2011.

I have a further series of questions arising particularly from that; that is, I ask minister Maher if he has been briefed about this court case. I also ask minister Maher to outline what involvement Straits and Kelaray have had in regard to this bill: have they been consulted on this bill; have they had any input and, if there has been an exchange of correspondence, could the chamber be provided with those?

I further ask the minister to outline what industry stakeholders have been given an opportunity to provide feedback on this bill, both in its previous iterations and in its current form, and on what date that feedback was given and what stakeholders in the industry gave that feedback or were invited to give feedback. I also ask minister Maher, before we proceed to address the second reading, what role the Minister for Mineral Resources and Energy has had with regard to this piece of legislation before us.

I have heard some members of this place express frustration that in fact we have been looking at reviews of this bit of legislation since at least 2008. I know that it has been under review in the terms of minister Weatherill, minister Portolesi, minister Caica, minister Hunter and now minister Maher. I think I have covered them all—five ministers who have been involved in this process. Minister Maher, in bringing legislation forth (which did not occur under the previous four ministers) should not assume, because of the very long consultation processes on various iterations of legislation, that we should then rush through this particular bill. That seems to me quite an odd jump in logic. In fact, if it has taken five ministers and this many years—since prior to 2008—I certainly question why the bill needs to be put through in a week at this point of the process and why due process cannot be given to ensuring proper debate.

As I say, I look forward to receiving further feedback from the stakeholders with whom we will continue to consult. The Greens will be raising further questions as we go through this process and I indicate that, certainly at this stage without those due processes, the Greens are unable to support a bill that is being rushed through the parliament.

The Hon. K.L. VINCENT (12:20): Dignity for Disability welcomes the opportunity to speak about the important issue of the protection of Aboriginal heritage in this state. Since the Aboriginal Heritage Act was proclaimed in 1988, there have been significant changes that need to be incorporated into our Aboriginal heritage administration and legislation, most notably:

the enactment of the commonwealth Native Title Act 1993;

the enactment of new Aboriginal heritage legislation interstate;

the government's native title claims resolution process;

the development and implementation of legislation that takes an integrated approach to land management and use; and

the widespread use of agreements negotiated directly between Aboriginal people and land developers about heritage and related matters.

In the short film Nation to Nation, a co-production of the Ngarrindjeri Regional Authority and Change Media, Daryle Rigney states:

It takes great courage to think about how do they open up Australian society in ways where power is shared far more equitably than it currently is, where there is actually a real investment and a real acknowledgement about the history of this country and about Aboriginal Nations and their management of these lands and waters for millennia, and to think about how do they create a future for all [South] Australians, but central to that has to be the recognition of Aboriginal people as the first peoples.

I acknowledge what I understand has been a broad consultation process on this bill and, importantly, I thank the volunteers of Aboriginal communities around the state who have come together to see how we can create a better way.

However, of course, as previous speakers have done, I would like to acknowledge that my office has also been contacted with some concerns from bodies including Native Title Services and the Aboriginal Legal Rights Movement and, like previous speakers, I would certainly like to hear the minister respond to those concerns at the committee stage.

I would also like to point out, as did a previous speaker when I was just coming in, that this bill was first flagged by Labor in 2008, so there have certainly been some concerns about the rapid passage of this bill. As I said, I understand that the process has been quite consultative, but given that several offices of parliament have in recent days been contacted with fresh concerns, I would certainly be grateful if the minister could clarify his position on those when he next has the opportunity.

That said, I understand that the changes, when implemented, will allow a clear pathway for Aboriginal communities to work with, for example, investors to provide economic security, while at the same time protecting and respecting Indigenous culture. It will give communities the option to negotiate terms for agreements, for example, with companies that seek to operate in a specific area, around an employment target for local people or any other aspect of engagement with recognised Aboriginal representative bodies.

Across this state, over many years, individual Aboriginal nations have worked hard with local and state authorities to establish their position as custodians and protectors of their country. In so doing, they seek greater economic, political, social and cultural freedom. The government has, by my count, had no fewer than seven ministers for Aboriginal affairs and reconciliation since the year 2002. Switching ministers is not a good way to build long-term relationships. Good work is easily undone and trust is easily broken, and when there are important decisions to be made it takes time.

With five ministers at the helm during the negotiations, I acknowledge that the detailed consultation with Aboriginal nations, cultural and language groups and, of course, the state has been a long process. This same spirit of giving time to work through things has not been evident in the process of getting the bill to this place, but that is government. Perhaps that is one of the ways government earns itself a bad name.

Without singling out any particular group, I would like to acknowledge the strong work done by Aboriginal nations across the state to develop their own processes of working with local and state government and private businesses. In some ways, the amendments before us will strengthen existing processes such as these and create more certainty of a one-stop shop for those seeking permission and engagement with Aboriginal groups.

The original scoping paper for the review of the Aboriginal Heritage Act, which was released, as I said, in December 2008, stated:

Fundamental to the success of any new legislation will be a commitment of adequate resources to establish and build the capacity of Aboriginal groups to participate in the long term. The current system provides sporadic and short-term involvement by Aboriginal groups and individuals, as participants in surveys, either as part of an informal 'clearance' agreement, or as part of a formal survey pursuant to section 12 or 23 of the current Act. Having a negotiation-based system allows all parties to plan and develop for the long term. Adequate resourcing is vital, not only for long-term protection of Aboriginal heritage, but also for Aboriginal groups' stability and effectiveness. Under the AHA, the Aboriginal Heritage Fund depends on appropriations from Parliament and is available to be drawn upon by the Minister for a range of purposes consistent with the Act.

I would like to reflect a moment on my quote, which does come from the government's own scoping paper in 2008, and the fact that it does acknowledge that we have for a long time, within parliament and within government, seen Aboriginal engagement as something of a box-ticking exercise or a clearance-getting exercise, rather than a long-term goal or a long-term intrinsic part of a broader process. I would certainly like to acknowledge that we have before us in this bill an opportunity to move beyond that, and I think we need to seize that opportunity.

I also cannot help but recognise the parallels that exist in terms of engagement with the disability community as well. I think that we still have a long way to go for meaningful consultation and involvement in respect of all people in the South Australian community. I would like to know what provisions will exist to support groups to meet and prepare themselves for a discussion and negotiation under these new provisions. I would also like to know how many successful prosecutions there have been under the existing act and what penalties are envisaged under the amended act. I hope these queries can be discussed with the minister in committee.

In data recently released through the Australian Early Development Index, information was collected on over 300,000 children in Australia, representing 96.7 per cent of children in their first year of full-time school. The key findings included that 22 per cent of non-Indigenous children were developmentally vulnerable in one or more domains. This sounds bad enough, but then we consider that 42.1 per cent of Indigenous children were found to be developmentally vulnerable in one or more domains. This is the gap. These are the issues we must address: Aboriginal health, wellbeing and education, incarceration, employment, domestic violence and the underlying and ongoing impact of intergenerational trauma.

These are not necessarily the issues we are discussing today but, as I said, they are underlying. They are ever present within Aboriginal communities and cannot be ignored, and are issues that need to be ever present as such in our minds as parliamentarians. If, through creating a stronger platform for Indigenous consultation and negotiation, we can empower local people to negotiate better deals that will lead to improved socioeconomic conditions that will then flow on to have an impact on these issues that I have just outlined, that will be huge. On behalf of Dignity for Disability, I acknowledge the importance of protecting the ongoing relationship of Aboriginal people to land, water and everything in between, and to place and heritage, and I support the bill.

Debate adjourned on motion of Hon. T.J. Stephens.