Bills

Aboriginal Heritage (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 9 March 2016.)

The Hon. T.J. STEPHENS (11:02): I rise today on behalf of the opposition to speak to the Aboriginal Heritage (Miscellaneous) Amendment Bill, which we will be supporting subject to some amendments that I have on file. This bill seeks to amend the Aboriginal Heritage Act of 1988 to recognise direct agreements between traditional owners and government, as well as developers and mining operators, regarding the use of sites protected under the act. It will also resolve discrepancies between current land access agreements.

The bill aims to ensure all traditional owners have an equal say before government when agreements on land use are being negotiated. In some cases, there are many groups that lay claim to heritage sites, and the act streamlines these negotiations. The bill will establish a process for Aboriginal and native title representative groups to be officially recognised under the act as 'recognised Aboriginal representative bodies' (RARBs), therefore allowing them to negotiate with land use proponents officially with full authority.

The effect of this is twofold: it prevents the stonewalling of attempts of legitimate use of land on sites with Aboriginal heritage by certain groups with special interests but also gives even the smallest of native title groups and bodies a say at the negotiating table, provided they are officially recognised and registered. This is necessary as any splinter group could then enter negotiations and white ant any genuine attempts at economic activity on the site. All native title claimant body corporates will become official RARBs upon the act becoming law, unless these bodies specifically opt out.

I acknowledge the contribution of the Hon. Ms Franks and her putting on the record the dissatisfaction of SA Native Title Services. It believes that there has been inadequate consultation. On that point, it is disappointing that the government is rushing this through so quickly. This bill has not even spent its customary one sitting week on the Notice Paper. I hope that the minister will ensure that all stakeholders have an adequate opportunity for consultation on the bill and that all issues have been addressed.

I foreshadow a number of amendments that I will move at the committee stage of the debate regarding mediation between groups and the abolition of costs for applications to the court. These amendments are the result of discussions between the shadow minister, the member for Morphett in another place, and the Minister for Aboriginal Affairs and Reconciliation, and were deemed necessary by crown law. I commend the bill to the council.

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (11:05): I thank honourable members for their contributions to the second reading stage of this bill. I would also like to thank them for their considered views on this bill. I know that a number of the members who have made contributions are members of the Aboriginal Lands Parliamentary Standing Committee, and have been for a long time, so they have made very informed contributions.

This bill envisages that an Aboriginal group may enter into an agreement with a land-use proponent. The bill in no way changes the ability for prosecution of people damaging, disturbing or interfering with sites, objects or remains. The bill also ensures that Aboriginal heritage will continue to be protected under the Aboriginal Heritage Act. The bill does not lessen anyone's burden to ensure that Aboriginal heritage continues to receive protection in South Australia. These reforms will provide Aboriginal people and groups with better opportunities to have a say in the protection of their cultural heritage and the use of their land.

I have a quite extensive list of answers to questions that have been raised in response to contributions made in the second reading stage, as well as some comments generally on the amendments that have been moved by the opposition. I might address these at clause 1 in the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: Honourable members have raised a number of issues that I will address here at clause 1. In response to issues that were raised by the Hon. Tammy Franks on behalf of the Greens, I will go through and address each issue raised separately.

The first question was about what the process of consultation has been to date. The Aboriginal Heritage Act has been under review since 2008; there is a process of constant review of that act. Very wide community consultation took place at the start of the review in 2008-09, and then there was wide peak body and stakeholder consultation on a detailed draft bill in 2013. There was broad support for an agreement-making provision structure as part of the previous consultations.

I will just go through the consultations that have taken place previously in relation to this bill, and I beg the chamber's indulgence as it will take some time to go through them. A significant part of the previous review process and consultations was extensive community consultation occurring in 2009. This comprised 25 public meetings across South Australia, which were supported by the expertise of the Aboriginal Affairs and Reconciliation Division of the Department of the Premier and Cabinet, as well as by representatives of both the South Australian Aboriginal Heritage Committee and the Heritage Subcommittee of the Aboriginal Congress for Native Title Management (the Joint Working Party).

Meetings occurred during 2009 for Adelaide Metropolitan West at Tauondi College, for Adelaide Metropolitan South at Neporendi, at Adelaide Metropolitan North at Elizabeth House at Elizabeth, in the Murray region at the Lower Murray Nungas Club at Murray Bridge, in the South-East at Raukkan and at Camp Coorong and also at the Quality Inn at Mount Gambier. In the Mid North, they occurred at the community hall at Copley, at the community hall at Nepabunna, at the Standpipe Function Room in Port Augusta, and at the Central Whyalla Football Club in Whyalla. In the Far North they were at Umoona in Coober Pedy and at the Anntetkerenya Store at Oodnadatta.

On the West Coast, they occurred at the Far West Aboriginal Sporting Complex at Ceduna and at Mallee Park Football Club at Port Lincoln. In the far East, it was at the Broken Hill Legion Club at Broken Hill, and on the West Coast it was at Port Pirie and Districts Aboriginal Community Centre at Port Pirie. On Yorke Peninsula, it was at the Patio Motel at Moonta Bay, and on the APY lands meetings were at Indulkana, Pukutja, Amata and Pipalyatjara. In Adelaide, it was at the Adelaide Town Hall, in the Murraylands at Glossop, and Yorke Peninsula at Point Pearce.

They were the consultations taking place in 2009. Written submissions were received from about two dozen individuals. I will not go through each of the written submissions, but I am happy to provide them to any honourable members who would like to see them.

In 2013, with the draft Aboriginal Heritage Bill, there was confidential peak body stakeholder consultation with the following people: the Commissioner for Aboriginal Engagement, the South Australian Aboriginal Advisory Council, the South Australian Heritage Committee, the Property Council, Anangu Pitjantjatjara Yankunytjatjara, Maralinga Tjarutja, the Local Government Association, the Resources Industry Development Board, the Australian Geothermal Energy Association, Primary Producers SA, the Law Society of SA, the Australian Petroleum Producers and Explorers Association, the SA Museum, the Chamber of Mines and Energy, the Aboriginal Legal Rights Movement, the Cement Concrete and Aggregates Association, South Australian Native Title Services and the Aboriginal Congress of South Australia.

Written submissions were received from the Museum, the Chamber of Mines and Energy, the Aboriginal Legal Rights Movement, the Cement Concrete and Aggregates Association, South Australian Native Title Services, the Aboriginal Congress of SA, Primary Producers SA, and the Law Society. In addition, over the course of the last year there have been discussions about this bill. I regularly meet with the Aboriginal Legal Rights Movement and also with the South Australian Aboriginal Advisory Council, the South Australian Aboriginal Heritage Committee, South Australian Native Title Services, and our Commissioner for Aboriginal Engagement.

I have, in discussions over the course of the past year, raised my desire to amend the Aboriginal Heritage Act to allow for an agreement-making provision, and certainly prior to the introduction of the bill I had a meeting with and provided the draft copy of the bill to the Aboriginal Legal Rights Movement, the South Australian Aboriginal Advisory Council, the state Aboriginal Heritage Committee and South Australian Native Title Services.

I also understand that consultations from other areas of government have taken place with the Australian Petroleum Production and Exploration Association, the Mineral Explorers Council of Australia and the South Australian Chamber of Mines and Energy. That is an outline of the consultation that has taken place in relation to potential changes to the Aboriginal Heritage Act. The principles underpinning the review have always been that traditional owners should be able to make decisions about the protection of heritage by agreement and that where possible that should be in alignment with the Aboriginal Heritage Act and agreements and decisions made under the Native Title Act.

Further consultation from early 2009 occurred in 2013, as I have outlined. More recently, I have met with some of those peak groups. I think that the Hon. Tammy Franks' next question was: when was the Law Society given a version of this bill, what was their advice and can you table it? I am advised that the Law Society was consulted on early versions of amendments to the Aboriginal Heritage Act and that it supported an agreement-making provision. I am advised that the Law Society has published a notice of the bill in its most recent bulletins to members.

The next question from the Hon. Tammy Franks was: what is the Aboriginal Legal Rights Movement's position on this bill? We received advice this morning from the Aboriginal Legal Rights Movement on their position on this bill. They do not agree with everything in this bill, and I am happy to address concerns. I think most of the concerns from the Aboriginal Legal Rights Movement I will address when I talk about South Australian Native Title Services' concerns in just a moment. I have regular meetings with the Aboriginal Legal Rights Movement, and I undertake to continue my regular meetings and consult with ALRM on the implementation of this bill and the development of guidelines and principles.

The next question was: is this bill in breach of the Racial Discrimination Act? I have had advice from the Crown that the bill does not breach and is not inconsistent with the Racial Discrimination Act or the UN Declaration on the Rights of Indigenous Peoples. I can inform the chamber that I am not aware of anywhere that that might be a potential breach. Is the bill inconsistent with the Native Title Act? The Crown has advised that the bill is not inconsistent with the Native Title Act.

I think a couple of these were questions that the South Australian Native Title Services raised, and certainly the next field of questions was raised by the South Australian Native Title Services. The question is about the assertion that the bill removes beneficial provisions, coupled with a new regime, in particular 19N, which gives the minister the power to approve agreements without consultation with Aboriginal people.

The South Australian Native Title Services specifically raised a question about section 19N of the bill, and they are concerned that ministerial approval agreements reached under the Native Title Act are not subject to consultation with Aboriginal people. We fundamentally disagree with this. This seems illogical, as consultation with the appropriate body that represents traditional owners has occurred in the process of reaching such an agreement.

Under section 19N, the minister must also consult with the South Australian Aboriginal Heritage Committee before approving any such agreement. If the minister is not satisfied that an agreement satisfactorily deals with Aboriginal heritage, it will not be approved. There is also an ability to revoke approval if the agreement is not working in practice. If the minister chooses to approve an agreement, she or he must be satisfied that it satisfactorily deals with Aboriginal heritage. Likewise, if a native title agreement is approved by the minister under section 19M, it can only be approved by the minister if satisfied that it satisfactorily deals with Aboriginal heritage and after consultation with the South Australian Aboriginal Advisory Committee.

In relation to issues raised about the repeal of section 6(2), specifically the question from the South Australian Native Title Services was: what are the implications for other native title groups seeking this delegation? On that question, the implication for native title groups (and I will get to that in a minute), there are no implications for native title groups, but I will explain that in a moment, but I acknowledge there are different views about the repeal of section 6(2).

The experience of dealing with the handful of requests since the commencement of the act in 1998 has revealed that this section does not do all that I think those who drafted the bill and traditional owners expected of it, as providing a delegation of ministerial power. The delegation of ministerial power, I suspect, is that it provides for a delegation of ministerial power, and the people to whom it is delegated must act as if they were the minister, not as a traditional owner, when making any decision.

This power, in practice, is administratively exceptionally difficult to work, as the Supreme Court observed in the Starkey matter that has been discussed in this chamber. At paragraph 98 of the Hon. Justice Sulan's judgement he observed:

The issues of construction of section 6 are particularly complex, due in no small part to the unsatisfactory drafting of the section. Section 6 is difficult to interpret, its subsections exposing internal inconsistencies which are not easily reconciled. Ultimately it is a matter for Parliament to determine whether the difficulties in application of the section require resolution.

That is one of the things we are putting forward today. In addition, even if there was a delegation under section 6(2), for the first time in nearly 30 years of operation of the act, as I have said, any traditional owner given that delegation must act as if they were the minister and not the traditional owner. This potentially could mean a traditional owner acting against the interests of traditional owners in the carrying out of that delegation. Further, if any individual did receive a delegation under section 6(2), there is a very real potential for significant resource requirements for that individual or group of individuals. For example, the Crown could not provide legal advice as it does for ministers while exercising his or her responsibilities.

The very specific question was regarding the removal of 6(2) and what are the implications for other native title groups seeking the delegation. I am advised that under the current act the delegation under 6(2) cannot be made to an organisation. It cannot be made to a native title prescribed body corporate; it can only be made to an individual or a number of individuals. Strictly, the delegation cannot be made out to a native title prescribed body corporate.

The next question raised was: have Anangu been consulted and how will APY be dealt with in the bill? Certainly, over the course of previous consultations, APY have been consulted. The very easy answer is that this bill will have no effect on the operation of the APY Land Rights Act. The APY will be taken, under this bill, to be the recognised Aboriginal registered body for the APY lands, but if the APY fail in anything they do under the terms of this act and fail to satisfactorily deal with heritage in any of its agreements that they may enter into, the minister can refuse to approve.

The next question raised concerned the doubt about who speaks for country and the potential undermining of native title bodies. That is not what this bill does or intends to do. In fact, the South Australian Aboriginal Heritage Act 1988 was enacted prior to native title coming into operation and does not currently contemplate native title. As I outlined just a moment ago, a native title prescribed body corporate cannot apply for a delegation under section 6(2); it is only individuals or a number of individuals.

Section 13 requires consultation before certain decisions are made. Although native title groups, in practice, are regularly some of the groups that are consulted with, they do not have any greater standing under the unamended act than any other group. Pursuant to this bill, a native title body will automatically be taken to be the registered Aboriginal recognised body unless the committee does not approve it. So, this bill, for the first time, directly contemplates the primacy of native title bodies in decision-making about their heritage for a given area. If the South Australian Aboriginal Heritage Committee does not approve of the native title body, then the body can make a merit-based application.

The next question was about the removal of the ability for the prosecution of people for damaging, disturbing or interfering with sites, objects or remains. This bill in no way changes the ability of the prosecution of people damaging, disturbing or interfering with sites, objects or remains. This bill also ensures Aboriginal heritage will continue to be protected under the Aboriginal Heritage Act. It does not lessen the burden for anyone to ensure that Aboriginal heritage continues to receive protection in South Australia.

The next question was: has the Minister for Aboriginal Affairs been briefed about the Starkey court case? I can confirm that I certainly have been briefed about the Starkey court case. I think it highlights the difficulty and unworkability of section 6(2) in practice. As I outlined in the previous answer, the court has made comment:

The issues of the construction of section 6 are particularly complex, due in no small part to the unsatisfactory drafting of the section. Section 6 is difficult to interpret, its subsections exposing internal inconsistencies which are not easily reconciled. Ultimately it is a matter for Parliament to determine whether the difficulties in application of the section require resolution.

The next specific question that was asked was: what involvement has Straits and Kelaray had in regard to this bill and have Straits and Kelaray had any input into this bill? I can advise the chamber that I have had no interactions with Straits and Kelaray about this bill. I have checked with the Aboriginal Affairs and Reconciliation Division, and they have also informed me that they have had no interactions with Straits and Kelaray about this bill.

The next question was: if has there been an exchange of correspondence, could the chamber be provided with those? I would provide the chamber with those if there were any, but there have not been any exchanges of correspondence. The next question was: can the minister outline what industry stakeholders have been given an opportunity to provide feedback on this bill and previous iterations? I have previously outlined them, and I do not propose to go over that list of consultations again and the different stakeholders from 2008 up until February this year that have been consulted on this bill.

What role has the Minister for Mineral Resources and Energy had with regard to this piece of legislation before this? I can inform the chamber that except for the normal cabinet processes, the Minister for Mineral Resources and Energy has had no role in the development of this legislation.

The final question was about why we are keen to enact this as soon as possible and what is the rush, if we have spent so many years consulting? It is true: as honourable members know and have commented, the ideas behind this legislation and previous iterations of the bill that contemplated heritage-making provisions have been subject to enormous consultation over the last eight years. I think it is important to strike a balance between overconsulting, and certainly that is a criticism that occasionally comes up from Aboriginal communities, the consultation fatigue of consult, consult and consult, and wanting governments to just get on with things. It is a balance that one must find between enough consultation and that risk of overconsultation.

I think the bill that is before us strikes a balance between enabling Aboriginal traditional owners, native title holders and organisations and individuals, to have a stronger say in how their land can be used. It seeks to provide a level of protection for those groups who are registered under the act wishing to make direct agreement provisions. It protects the Aboriginal people and proponents. I am keen to have this bill in operation as soon as possible to allow the registered Aboriginal representative bodies to be set up and agreement-making to commence.

I genuinely and fundamentally believe these reforms will provide Aboriginal people, traditional owners, native title holders and groups, with a better opportunity to have a say in the protection of their cultural heritage and sacred sites and look to see how their country might benefit their communities. As I have said, I am keen to see these reforms progressed and implemented to allow the processes that this act contemplates to get underway as soon as possible. They were answers to the Hon. Tammy Franks' questions.

The Hon. T.A. Franks: Could you address the Law Society advice?

The Hon. K.J. MAHER: I might go back. When was advice given to the Law Society about this bill? I think that was the question of the Hon. Tammy Franks.

The Hon. T.A. Franks: I also asked where the Law Society advice was on this bill.

The Hon. K.J. MAHER: We do not have Law Society advice on this; we have not received advice from the Law Society on this bill. In relation to questions that were put by the Hon. Kelly Vincent, her first question was: what provisions will exist to support groups to meet and prepare themselves for discussions and negotiations under new provisions?

Under the bill, the presumption is that native title bodies will become the register for Aboriginal bodies and many native title bodies receive funding to interact on matters that concern them. I can inform the chamber that I will give an undertaking that we will provide resources to groups that require them to start their negotiations with companies under this act. I can also inform the chamber that it is a possibility that any agreement could contemplate providing for costs for bodies to enter into negotiations or to conclude agreements.

The next question was: how many successful prosecutions have there been under the existing act? I can inform the chamber that over time the existing deterrent mechanisms have worked well and companies are increasingly seeking to make contact and try to make agreements with Aboriginal people. Since the early 2000s, though, there have been specifically nine requests received from the Aboriginal community of South Australia to pursue investigations or prosecutions under the Aboriginal Heritage Act. These requests usually relate to damage, disturbance or interference to Aboriginal sites, objects or remains under section 23 of the act. They have also been in relation to the sale of objects under section 29 of the act.

I can put on record the various investigations that have taken place. First was Marree Man, the Dieri and Arabunna under section 23 of the act in 1998; the second was Umeewarra Lake, Port Augusta, multiple groups, under section 23 of the act in 2005. No. 3 was Lake Eyre, Arabunna, under section 23 of the act in September 2010. No. 4 was Willow Springs, Adnyamathanha, under section 23 of the act in January 2012. Scarred trees at Millicent, the Gunditj Mirring, under section 29 of the act in May 2013; Koonalda Caves, the Far West Coast, under section 23 of the act in March 2014; the issue of Hands Around the World by the Adnyamathanha under section 23 in April 2014; Lyons Road, Murray Bridge, Ngarrindjeri Regional Authority, under section 23 of the act in October 2014; and Parafield Gardens and Salisbury from Kaurna under section 23 of the act in November 2014.

In each of these cases, complaints raised or made have been investigated; however, none of the cases mentioned above were brought to prosecution for various reasons. Some of these factors have included: the burden of proof required for a prosecution, the situation did not meet requirements of the act, the perpetrators of any damage could not be identified, varying community points of view on the significance of an area and what constitutes damage, and alternative legal avenues that were pursued. I am advised that there has been only one prosecution under the existing act which resulted in an acquittal.

The next question that the Hon. Kelly Vincent raised was: what penalties are envisaged under the amended act? I can inform the chamber that one additional penalty is envisaged under the amended act to add to the current 15 penalties: amendment of section 14—Authorisations subject to conditions, which provides:

(2) A person who, without reasonable excuse, contravenes or fails to comply with a condition of an authorisation under this Act is guilty 10 of an offence.

Maximum penalty:

(a) in the case of a body corporate—$50,000;

(b) in any other case—$10,000 or imprisonment for 6 months.

In addition, pursuant to clause 19K of the amended act, I note that, if a party fails to comply with a local heritage agreement, the District Court may make such orders as to secure compliance or remedy the default. The amendments change none of the existing penalties under the current act.

Under the current act penalties are provided under the following sections: section 10, relating to confidentiality of archives; section 18, relating to offences; section 20, relating to the discovery of sites, objects and remains; section 20(4), relating to failure to comply with the minister's direction; section 21, relating to the excavation of sites, objects or remains; section 22, relating to access to and excavation of land by authorised persons; section 23, relating to damage, etc., to sites, objects or remains.

They are also provided under section 24, relating to directions by the minister restricting access to sites, objects or remains; section 26, relating to a failure to comply with the directions of the minister or inspector; section 28, relating to the care of Aboriginal objects; section 29, relating to the control of the sale of land and other dealings with objects; section 32, relating to the surrender of objects and records; section 35, relating to the divulging of information contrary to Aboriginal tradition; section 36, relating to access to land by Aboriginal people; section 38, relating to the interference with signs. All the existing penalties remain and, as outlined above, the new penalty is envisaged. That is the extra penalty that is contemplated under this act.

While I am speaking to clause 1, after having addressed the questions raised by the Hon. Kelly Vincent and the Hon. Tammy Franks, I might address the three amendments to this bill that have been filed by the Hon. Terry Stephens. I know there have been discussions occurring between the opposition and the government in relation to these amendments, and I can indicate now that the government will be supporting the amendments that the Hon. Terry Stephens will be putting forward. They are sensible amendments that improve this bill and will lead to the Aboriginal Heritage Act, as it is contemplated to be amended, working better.

The Hon. Terry Stephen's amendment No. 1 is to make it abundantly clear in the act that the committee may give written reasons in relation to the appointment or other decisions under the section about appointing bodies. We think it is a good idea to make it clear that they can give reasons if they so choose. The second amendment allows for the South Australian Aboriginal Heritage Committee, if it considers it appropriate, to attempt to resolve any dispute relating to an application for a registered body by way of mediation between the parties. That is a sensible amendment that we agree to. Many of us who have an interest in this area know that it is not as easy as many would like to think as to who necessarily speaks for country and any particular part of country.

After discussions with the opposition, I can give an undertaking also that we will put in the guidelines that we contemplate that one of the things the committee can do is ask two bodies to consider putting in a joint application for one body to represent. We will give an undertaking that we will have that in the guidelines. That works well in conjunction with the new amendment that is being proposed.

The final amendment that is being proposed is in relation to costs. In relation to breaches of the agreement, parties have recourse to the District Court to seek relief for breaches of the agreement. The final amendment put forward by the Hon. Terry Stephens states:

However, no order for costs is to be made under subsection (2) unless the District Court considers such an order to be necessary in the interests of justice

We agree with this as it is a sensible amendment. In a lot of these cases, there is a power imbalance that may be possible between a big company and an Aboriginal group. We would not want an Aboriginal group to feel dissuaded from looking to potentially pursue their rights because of the threat of costs. We thank the Liberal Party for its constructive amendments, and I indicate that we will be supporting the three Liberal Party amendments.

The Hon. S.G. WADE: I would like to respond to one of the responses the minister gave. If I understood him correctly, his answer to the question, 'Why is this legislation being rushed?' was basically that the government felt that there had been adequate consultation and that they did not want to inflict consultation fatigue on the Aboriginal community. I make the point that my understanding was that the council was not asking the government to go out and undertake another round of consultation.

More to the point, we were maintaining our normal pattern of behaviour, which is that legislation lies on the table for a week. What I have found with a whole range of legislation is that, if the executive has done an effective task of consulting with the community, that period between the tabling of the bill and the progressing of the bill is an opportunity for us to get very short letters back from stakeholders saying, 'We've been consulted on the bill. It's fine with us.' We would have loved to have received those pieces of correspondence from the Aboriginal community, but they were not given that chance.

In relation to the fact that it has been eight years—and I appreciate the comments the minister has made about the extensive consultation—the executive should be mindful of the need to make a final check, if you like. This is an opportunity for people who have been consulted to say, 'There are no remaining issues we need to the bring to the attention of the parliament.'

The Hon. S.G. WADE: I appreciate the comments the Hon. Stephen Wade has made, and I certainly will take them into account, not just in any legislation I have before this chamber but I will make sure that other of my colleagues are aware of how that may help to increase the efficient passing of legislation in this chamber.

Clause passed.

Clauses 2 to 8 passed.

Clause 9.

The CHAIR: As you are agreeing to these amendments (there are two amendments from the Hon. Mr Stephens to clause 9), is there any value in putting them together?

The Hon. T.J. STEPHENS: If it is the will of the committee, I will move them both together and not delay the chamber. The minister has given a reasonable explanation of why we move these amendments and I thank him for his indication of support. I move:

Amendment No 1 [T Stephens–1]—

Page 7, after line 27 [clause 9, inserted section 19B]—After subsection (12) insert:

(12a) The Committee may give written reasons in relation to an appointment or other decision under this section.

Amendment No 2 [T Stephens–1]—

Page 7, after line 43 [clause 9, inserted section 19C]—

After its present contents (now to be designated as subsection (1)) insert:

(2) Without limiting subsection (1), the Committee may, if it considers it appropriate to do so, attempt to resolve any dispute relating to the applications by mediation between the parties.

Amendments carried; clause as amended passed.

Clause 10.

The Hon. T.J. STEPHENS: I move:

Amendment No 3 [T Stephens–1]—

Page 12, after line 36 [clause 10, inserted section 19K]—After subsection (2) insert:

(3) However, no order for costs is to be made under subsection (2) unless the District Court considers such an order to be necessary in the interests of justice.

Again, I will not delay the committee. The minister has kindly given his summation and agreed to support the amendment.

Amendment carried; clause as amended passed.

Remaining clauses (11 to 14), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (11:39): I move:

That this bill be now read a third time.

The Hon. T.A. FRANKS (11:39): At this point I would like to put on the record that I indicated in my second reading speech that I was not in a position to actually put the views of the ALRM because although they had written to me it was in a form that was not to be made public. In the course of the committee stage, in the last few minutes I have received a letter from the ALRM which I would now like to ensure is put on the record. I seek leave to table the letter from the ALRM, addressed to the minister, dated 10 March, which has the ALRM's permission to be released.

Leave granted.

The Hon. T.A. FRANKS: I would like to put on record some of the concerns that have been expressed to me today by the ALRM that are encapsulated in the letter dated 10 March 2016 and addressed to the Minister for Aboriginal Affairs. It reads:

Dear Minister

Re Aboriginal Heritage Bill 2016

Further to the letter of 24^th February, ALRM desires to make further submissions to you regarding this Bill.

In our initial letter we referred particularly to the Evatt Report, Chapters 6, 8 & 10. We reiterate our support for that Report and the impulses behind it for improving state based heritage legislation.

Further to our last letter, ALRM is concerned regarding the removal of the operation of sections 12 to 14 and 21&23 of the [Aboriginal Heritage Act] from areas subject to agreements and with the inherent weakness of those provisions of the AHA, as interpreted.

We note that under proposed section 19H(2) a representative Aboriginal Body may refuse to negotiate and under section 19N(4) the Minister may only approve an agreement if satisfied that it deals satisfactorily with Aboriginal sites objects or remains known to be or that may be located in the agreement area.

One concern arising from Evatt and the structure of the present Act is that agreement may not always occur or may not always be possible and the default position is unsatisfactory.

In order to strengthen the agreement making process we reiterate what was said in paragraph 5 of page 2 of our letter of 24^th February regarding the inadequacy of the good faith negotiating provisions and the need to give the ERD court jurisdiction on a no costs basis over the negotiating process itself.

To take an extreme example, what if an ore body or other development site was constituted of a sacred site, concerning which no compromise were possible. No agreement would or could be made or the Minister could not approve such an 'agreement', and the effect of section 19N(4), or of no agreement making process being commenced or concluded, is the default position; a process under sections 12,13&14, or simply sections 21 or 23AHA.

That process is flawed, and it is an indication that the AHA of 1988, although best practice at the time it was passed, has not kept up with developments in heritage protection policy, as witnessed by the Evatt Report. Accordingly ALRM recommends a compromise of the proposed repeal of section 6(2)&(4) and a further policy development.

We refer you to the Evatt report recommendation 6.4.

'…State and Territory laws should provide for assessments relating to the significance of sites and areas to be separated from decisions regarding land use. The former should be the responsibility of Aboriginal Heritage Bodies, the latter the responsibility of the Executive.'

ALRM recommends the rewriting of sections 12,13 &14 and 21&23 to ensure that Evatt's strict separation of functions occurs. We observe in that regard that the various interpretations of those sections and their interaction in Starkey (paras 35-44 and 111-124 per Sulan J.)

The Starkey decision

What is clear from that decision is that there is no necessary connection between a process of consultation, and determination of significance, sections 12-14 and Ministerial decisions about authorising disturbance, section 21-23 (para 43 per Sulan J).

Nor does section 12 give traditional owners or custodians definitive authority to determine significance, rather section 12 requires the Minister to determine whether to register sites. But this is upon the basis of a permissive but not mandatory process for application by the developer. Thus this process of site protection under the AHA works on the flawed assumption that protection is possible from a complete register of sites (which the State Register clearly is not) and an assumption that developers must approach the Minister to get clearance—which on the authority of Starkey—they do not.

Arguably it is that very uncertainty for traditional owners which led them to seek Ministerial delegations under section 6(2) in the first place.

No doubt it was the intention of the Minister to remedy this situation by the amending Bill, however the amendments do not resolve the question of definitive authority of traditional owners to determine significance. We return to this question of traditional ownership below.

ALRM submits that Aboriginal Representative Bodies should be given exclusive powers to decide significance of sites and objects. The Representative Bodies should be resourced to make such determinations and to inform the Minister and State Committee of those determinations and to have sites registered, if that is their wish.

It will be recalled that in our last letter we pointed out that existing section 6 has the virtue of bringing traditional owners together to make definitive statements about significance of sites. In that regard we also note that in litigation the Minister has expressed reservations about the process of defining who the traditional owners for particular sites actually are. Refer to Starkey v State of South Australia [2011]SASC34 at para 59,61. It may be observed that Sulan J attempted to provide a practical and usable definition in paragraph 63.

'The phrase "the traditional owners", on its face, might be taken to mean all of the traditional owners of an Aboriginal site or object. However, to construe section 6(2) in such a way would make it unworkable. It is likely to be impractical or even impossible to comprehensively and exhaustively identify and survey each and every member of an Aboriginal community satisfying the definition of traditional owner in section 3. Rather, for the purposes of section 6(2), "the traditional owners" must be interpreted as meaning a person or group of persons who are traditional owners and who can be identified as representing the traditional owners as a whole. Importantly in the context of this case, such a representative must be able to be sufficiently identified as having the authority in relation to the relevant Aboriginal sites and objects to act on behalf of the traditional owners as a whole of such sites and objects.'

If this very sensible gloss to the definition, made by Sulan J is accepted, then the real issue in relation to particular sites is this. If a site has many traditional owners, according to the principles of Aboriginal land tenure found to constitute native title for that area; there will always be a more restrictive question; who are the traditional custodians of that site and what is their decision regarding its significance? ALRM submits the answer to that question is crucial, and is the question which Prescribed Bodies Corporate, as the Recognised Aboriginal Representative Bodies are set up for. They should be empowered to implement the AHA by making those decisions.

Prescribed Bodies Corporate should be empowered to make definitive statements for the Minister, regarding significance of sites and objects.

Our concern with the Bill is that it is silent on the question of definitive determination of the significance of a site and to that extent it does not implement the Evatt Report, or properly acknowledge the importance and significance of Native Title for the AHAct.

The Minister's Function

In default of agreement being reached or being effective or registerable, under proposed DivisionA1, the Minister should be obliged to accept the determinations as to significance by a Registered Heritage Body but also be given a power to make state interest decisions which balance the interests of Recognised Aboriginal Representative Bodies and custodians against development interests.

The same consideration should apply in the event of a dispute as to the operation of an agreement, where the matter of dispute is access for development of a particular place, site or object. The dispute resolution provision in clause 19H (5) (b) should so specify.

It is appropriate that Courts have jurisdiction over heritage agreements under proposed section 19K, including jurisdiction where a party is alleged to have failed to comply with an agreement, but subject to this proviso. It is not appropriate that Courts make political decisions on a quasi-legal basis.

Such a 'national interest' clause being given to the Minister should specify the priority of heritage interests as being a significant consideration in the determination of the interests of the State as a whole, in the Minister's determination.

This is the considered further submission of ALRM and it does in our submission address a lacuna in the Bill and a proper compromise over the removal of section 6(2) & (4). ALRM also questions why section 6(2) delegations should not continue to be allowed to take place in relation to actions under section 29&35 AHA. We note in that regard the effect of ALRM v State of SA No 2 (1994) 64SASR 558.

In addition, the Minister's concerns may be removed by turning the mandatory requirement in section 6(2) into a discretionary power. By changing the word 'must' to 'may'.

For the record ALRM is most concerned by the transitional provisions in Schedule 1 which would remove the operation of section 6(2) to existing applications and matters before the Courts. This is inappropriate because it affects existing rights in litigation in which the State of South Australia is involved. That is inappropriate and should not be pursued by the Parliament.

Yours faithfully

Cheryl A. Axleby

Chief Executive Officer

As I said, I have sought leave and tabled that document. I would hope that members in the other place at the very least might take the opportunity to read it, and I would hope that before the debate proceeds in the other place Law Society advice will be made available to all members.

With those few words, I indicate that the Greens were not in a position to support this bill, but it was quite clear that the numbers had been done and that the process was to be done expediently through those two players. Not only were the crossbenchers' voices in some way silenced—while I do acknowledge that the minister did indeed answer my questions—it is not an appropriate process to rush such legislation through the parliament, and certainly not without Law Society advice. It is reasonably unpresented.

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (11:51): I thank the Hon. Tammy Franks for her contribution, and for her advocacy on behalf of these issues and the organisations whose letters she read out. As I indicated in the committee stage, I have regular meetings with Cheryl Axleby and her team at the ALRM.

Although I do not agree with Cheryl Axleby and the ALRM on every single point of every single issue, certainly the advice the ALRM provides is of great assistance to me as Minister for Aboriginal Affairs. I will commit to continue to meeting regularly with the ALRM and working with them. Much of what has been raised from the ALRM are good points, but go further beyond what the amendments of this act propose to do.

I give an undertaking that I will continue to work with the ALRM, and, if we can make improvements in the future, then I will do that in consultation with not just the ALRM but also the Aboriginal Lands Parliamentary Standing Committee and honourable members who have a significant interest in this area. I will undertake to discuss this further with the ALRM before this is discussed in the other place.

Bill read a third time and passed.