Parliamentary Committees

Aboriginal Lands Parliamentary Standing Committee: Inquiry into Aboriginal Heritage

The Hon. T.T. NGO (15:54): I move:

That the report of the committee, entitled Final Report Inquiry into Aboriginal Heritage, be noted.

The inquiry into Aboriginal heritage was self-referred by the Aboriginal Lands Parliamentary Standing Committee on 15 February 2021. The committee received 36 written submissions from stakeholders and heard from 27 witnesses in the inquiry overall. A consistent theme in the submissions received was that Aboriginal heritage laws in this state and around the nation are severely outdated and in need of urgent attention.

The destruction of 46,000-year-old rock shelters at Juukan Gorge in Western Australia in May 2020 highlights the absolute devastation and cultural and spiritual loss that can occur when sites are destroyed as a result of inadequate Aboriginal heritage laws. When destruction of ancient heritage sites such as this occurs they are lost forever.

The committee read with interest the subsequent federal parliamentary joint committee report, which led to a renewal of calls for reforming and modernising Aboriginal cultural heritage protections across Australian jurisdictions. That joint committee's final report commented that Rio Tinto's actions:

…demonstrated the profound lack of care for Aboriginal and Torres Strait Islander heritage in this country. But perhaps the tragedy may at least be a catalyst for change.

It is with those remarks in mind that the Aboriginal Lands Parliamentary Standing Committee sought to establish just how out of date our state's 1988 Aboriginal heritage legislation is.

The overwhelming stakeholder view received by this committee is that this outdated legislation does not reflect modern-day community expectations for cultural heritage protection. It was enacted prior to native title recognition and requires urgent reform.

One only has to look at what happened in Western Australia in 2020 and recently at our historic Koonalda Cave in the Far West of our state for examples of that ancient cultural heritage being destroyed. However, as the joint federal committee said, this may be the catalyst for change that we have needed. This is the time to modernise Aboriginal cultural heritage protection so that the devastating destruction never happens again.

This committee has followed the lead of other jurisdictions, including Western Australia, and recommends that our 1988 Aboriginal Heritage Act be comprehensively reformed by the Minister for Aboriginal Affairs based on the evidence received in this inquiry. The committee makes these recommendations over and above the recently proposed amendments to the Aboriginal Heritage Act introduced by the minister. The committee also supports a modernisation of the state's Aboriginal heritage protection regime in accordance with encouraging free, prior and informed consent to be provided by traditional owners in heritage matters.

Our current 1988 Aboriginal Heritage Act was amended in 2016. The committee received oral and written evidence from many stakeholders suggesting that these reforms have not worked or have not produced the desired outcome. One major example of this was the introduction of recognised Aboriginal representative bodies (RARBs), to be appointed by the State Aboriginal Heritage Committee. The only RARBs appointed as a matter of course were APY lands and Maralinga Tjarutja lands bodies.

The appointed RARBs were to advise the minister regarding matters affecting Aboriginal heritage in respect of the area for which the RARBs were appointed. Registered native title bodies also require approval of RARB status under the act. Where this system has fallen foul of the State Aboriginal Heritage Committee is the requirement that they must be satisfied that the applicant RARB is able to represent the views and knowledge of the traditional owners of the relevant area. The applicant RARB must also satisfy the model principles recently produced by the State Aboriginal Heritage Committee.

This standing committee heard that since the amendments commenced operation in 2017, only one RARB has been appointed by the State Aboriginal Heritage Committee. Other applicants have resorted to costly legal proceedings to force the State Aboriginal Heritage Committee to make a decision about their RARB application, whilst others have struggled to respond adequately to the lengthy model principles.

It seems that the State Aboriginal Heritage Committee's main concern with registered native title bodies becoming RARBs for large land areas is that they may not represent all traditional owner interests. They maintain that a RARB introduces opportunities for planned activities to be amended in favour of avoiding heritage or at least mitigating against its disturbance. It seems that, in their view, not all registered native title bodies are set up to adequately advocate for all traditional owner views of all heritage sites and intangible storylines in existence. Overall, the State Aboriginal Heritage Committee told this committee that their role as appointing RARBs is not a rubberstamping process.

The committee has heard evidence both in favour and against registered native title bodies being appointed as RARBs as a matter of course. We have heard examples of when large areas of land covered by registered native title bodies may include areas or sites not always represented by members who sit on those native title bodies but who are, nevertheless, the traditional owners and knowledge holders of particular areas.

The committee has therefore recommended that the function of a registered native title body that is appointed as a RARB be clarified so as to impose the requirements that it must promote and safeguard the rights of traditional owners of Aboriginal heritage and not be limited to consultation only with members of the native title bodies. The committee also recommends that RARBs be resourced adequately, with ongoing support for them to undertake their statutory duties and to ensure compliance with the State Aboriginal Heritage Committee's model principles.

The committee was interested in learning about how a system of traditional owner identification might also be established in our state in order to assist with providing free, prior and informed consent regarding heritage matters. It heard how the Northern Territory land councils applied to maintain a register of traditional owners that can be searched to determine the traditional owners of particular areas. The committee has recommended that the South Australian Aboriginal heritage fund be used to resource a system of traditional owner identification for Aboriginal heritage matters, as this remains intrinsic to the Aboriginal heritage protection system working effectively in the long term.

It is vital that this occurs to enable representation to be provided by the true traditional owners of this state's land and waters and to preserve the intangible spiritual connections that may be lost if not recorded. The committee also recommends that intangible heritage be recognised in the definition of 'Aboriginal heritage' in the Aboriginal Heritage Act. The committee supports the expansion of the definition to include all bodily remains and not just skeletal remains, which has recently been reformed in the Western Australian Aboriginal Cultural Heritage Act 2021.

Numerous stakeholders complained to this committee about the low financial penalties currently provided for in the Aboriginal Heritage Act, with South Australia's penalties being significantly lower than other jurisdictions. All offences in the act are criminal in nature, with not one fine or successful prosecution imposed since the introduction of the 1988 legislation.

The committee was told that this may be due to the burden of proof required in order to secure a prosecution under the act. It is therefore recommended that the financial penalties be significantly increased and that civil penalties and expiation notices be introduced for harm to Aboriginal heritage, similar to that which has been introduced in other Australian jurisdictions.

Some stakeholders were critical of the current section 23 of the Aboriginal Heritage Act, which allows ministerial authorisations for the damage, disturbance or interference with Aboriginal sites, objects or remains. One such example provided to the committee was the lack of publicly available information on the consultation conducted by the minister when making such authorisations.

When the then premier authorised drilling at Lake Torrens, consultation materials were obtained only as a result of a freedom of information application. This showed that several stakeholders were against this authorisation, including the State Aboriginal Heritage Committee and Aboriginal Affairs and Reconciliation. The committee was concerned at the lack of transparency afforded to ministerial authorisations that grant damage and interference with Aboriginal heritage. We therefore recommend that transparency of consultations conducted by the minister be increased and consultation information be made publicly available.

The committee also recommends that the Aboriginal Heritage Act provide for a merits review process to enable such ministerial authorisations to be reviewed on application by traditional owners or proponents. This would limit the need for costly judicial review applications where ministerial authorisation may be granted against the wishes of traditional owners, and provides for more affordable and quicker access to reviews of decisions that could significantly impact cultural heritage preservation.

It is important to note that even major proponents such as BHP also support this recommendation. I also wish to note the committee's recommendation concerning the outdated Roxby Downs (Indenture Ratification) Act 1982, and its reference to the old 1979 Aboriginal Heritage Act in relation to the management by BHP of Aboriginal cultural heritage at Olympic Dam. The 1979 Aboriginal Heritage Act provides BHP with indenture rights and legal privileges over and above those currently in existence in heritage protection legislation.

The committee heard evidence about the scale of BHP's operation at Olympic Dam, which is expected to expand after recent announcements about their operations in the area, and the pressure that the level of water extraction puts on the complex groundwater system of the Great Artesian Basin. Despite BHP committing to voluntarily transitioning to the current 1988 legislative standards, the committee recommends that the required amendments be introduced by the Minister for Mining in conjunction with consultation with the traditional owners of the Lake Eyre area. This would bring BHP in line with, at the very least, the processes and expectations of those contained within the current Aboriginal Heritage Act.

During this inquiry, the committee became aware of recent vandalism occurring inside the Koonalda Cave, destroying 30,000-year-old finger flutings. The cave is a registered Aboriginal heritage site and is on the National Heritage List with the Department for Environment and Water responsible for the site. After hearing the distressed concerns from the traditional owners of the sites, the committee wrote to the Minister for Climate, Environment and Water and also the Minister for Aboriginal Affairs. Three months later, the federal government announced that it would provide a $400,000 grant to assist in protecting the cave with increased security measures at the site.

The grant will be administered by the Department for Environment and Water. The committee is encouraged by this response and sincerely hopes that the grant will provide the security required to preserve this significant Aboriginal cultural heritage site and prevent further damage. However, the committee urges the Department for Environment and Water to continue to consult with the Mirning Council of Elders, the traditional owners of the Koonalda Cave, throughout the project.

Finally, I note the significance of this inquiry report being the final inquiry report to be produced by the Aboriginal Lands Parliamentary Standing Committee, and what an important one it is. The committee is sincerely grateful to the individuals and organisations that have made submissions in this inquiry, both verbally and in writing. All submissions received have added substantial value to the conduct of this inquiry and will help to shape much-needed reform to ensure Aboriginal heritage is protected and preserved for generations to come.

I also take this opportunity to thank the members of the Aboriginal Lands Parliamentary Standing Committee for their contribution to this inquiry. I acknowledge the Hon. Tammy Franks MLC; the Hon. Laura Henderson MLC; the member for Giles, Eddie Hughes MP; the member for Heysen, the Hon. Josh Teague; and the member for Newland, Ms Olivia Savvas MP. I also thank the previous members of the committee in the Fifty-Fourth Parliament who began this inquiry: the Hon. Terry Stephens MLC; the Hon. Kyam Maher MLC; Mr Steve Murray MP, former member for Davenport; and Mr Adrian Pederick MP, member for Hammond.

Finally, and most importantly, I want to acknowledge our acting secretary, Mrs Lisa Baxter. On behalf of all members of this committee, I express our thanks and appreciation for her support and exemplary work. Mrs Lisa Baxter has done an outstanding job throughout the life of this committee, and I am sure all members will agree when I say that we simply would not have done it without her. I commend this report to the council.

Debate adjourned on motion of Hon. B.R. Hood.