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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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ANANGU PITJANTJATJARA YANKUNYTJATJARA LAND RIGHTS (MINTABIE) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 23 September 2009. Page 4074.)

Dr McFETRIDGE (Morphett) (21:36): Aboriginal affairs can be a series of highs and lows. During Reconciliation Week, when addressing a function, the Premier said that Aboriginal affairs is often three steps forward and two steps backwards. Certainly today has been an historic day in this place. This morning we saw the passing of the Maralinga Tjarutja land rights bill, with the hand back of section 400. It was a great pleasure for me to be a part of that occasion, and to have the traditional owners of Maralinga Tjarutja here today was a special part of that occasion.

Aboriginal people, whether Anangu Maralinga Tjarutja or Anangu Pitjantjatjara Yankunytjatjara, have a very close affinity to their land. As I said this morning, being taken to a sacred site, a men's special site, is almost like a religious experience—the emotion is palpable—and to understand the connection between the land and the people is difficult for many people. I have had the privilege to be associated with Aboriginal people for well over 30 years, particularly in the past eight years in this place.

Because of that association, I sometimes put positions that do not always meet with those of my colleagues in this place. The Anangu Pitjantjatjara Yankunytjatjara Land Rights (Mintabie) Amendment Bill 2009 is a bill on which there is a range of opinions, and in this case my opinion differs from that of my colleagues. I inform the house that the Liberal Party will not be supporting this bill.

Having said that, I put on the record a number of pieces of information, some history about the Anangu Pitjantjatjara Yankunytjatjara, the handover of their land, what their land means to them, some history on Mintabie and the effect of grog, marijuana and petrol on Aboriginal people in rural and remote communities. Certainly on the APY lands it has been a significant issue.

On 23 October 1980 the then premier, David Tonkin, introduced the Pitjantjatjara Lands Rights Bill, which has been amended a number of times since then and is now the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act. On 23 October 1980 David Tonkin said:

Members will be aware that, at a simple, but memorable ceremony on 2 October this year, Mr Pantju Thompson on behalf of the Pitjantjatjara Council and I on behalf of the South Australian government signed a document indicating that a Pitjantjatjara Land Rights Bill had been agreed between the parties and was to be introduced by the government into this parliament. That ceremony brought to an end many months of detailed negotiations on the contents of a Land Rights Bill between the Government, representing the people of South Australia, and the Pitjantjatjara Council, representing the tribal Aborigines that are traditional owners of the lands in the North-West of the State, to be vested by the Bill.

The fact that the agreement has been reached on such a potentially difficult question has been hailed in many quarters. We believe that the main significance of this agreement is in three parts. First, the tribes that comprise the Pitjantjatjara for the purposes of this Bill are given the means to protect and preserve their culture. In this regard, it was clearly demonstrated during the negotiations that this culture is still largely intact. Secondly, it demonstrates that only representatives of the Government and the Pitjantjatjara Council were able to sit around the conference table and resolve a great range of matters related to the transfer of land to the Pitjantjatjara people and its subsequent management. Thirdly, it demonstrates that with respect to exploration and mining on these lands, with which the Pitjantjatjara have a traditional association, clear guidelines can be established to achieve the proper balance between their interests, and those of the entire South Australian community. In other words, we believe we have demonstrated that a willingness to talk, accompanied by an ample fund of patience, can lead to a solution of even the most intractable problems that exist between the Aboriginal and European communities in this state and, indeed, this nation.

That was David Tonkin introducing the Pitjantjatjara Land Rights Bill on 23 October 1980. The Maralinga Tjarutja bill of today was a similar event, with many years of negotiations but, certainly, the Maralinga Tjarutja have the legacy of that toxic land that they have to deal with for many years to come. David Tonkin continued:

One aspect of mining that has received special attention in the Bill is the opal mining currently taking place at Mintabie. Mintabie is situated on Granite Downs and is thus part of the lands to be granted by the Bill.

It also happens to be close to some especially important and sensitive areas, from the Pitjantjatjara point of view. It is intended that the opal miners, operators of legitimate businesses on the field and their families will have virtually unfettered rights of access to the field. Other persons with genuine reasons for being on the field will be subject to a notification procedure, which is not expected to interfere greatly with their freedom of movement. All other persons will be required to obtain permission to enter the lands under the provisions described earlier. It is intended that Mintabie be proclaimed as a precious stones field at an early date. This will ensure that all the supervision, controls and protection applicable to precious stones fields under the Mining Act are available at the Mintabie field.

In addition, the Bill contains provisions designed to minimise social friction between the white and the Aboriginal communities and, in fact, to encourage communication between them. A Magistrates Court will be given a discretion to prohibit individuals from remaining on the field if certain offences are committed. The Bill establishes a Mintabie Consultative Committee comprising of the miners, the Government and Anangu Pitjantjatjaraku. A representative of Anangu Pitjantjatjaraku will chair its meetings. Its role will be to advise the Government in relation to the management of the field and to provide a form of consultation between all major groups having an interest in the field.

In order to protect present occupiers of residences and business premises on the field, the Bill provides for the period of notice that must be given to terminate occupancy rights, the compensation that Anangu Pitjantjatjara must pay if occupancy rights are terminated, and for rents for such allotments to be related to the rates of rental fixed by the Crown in comparable situations. With regard to the power to terminate rights of occupancy, the Pitjantjatjara have undertaken that these powers will not be used vexatiously or capriciously. This commitment is contained in a letter dated 2 October 1980, which I will cite for the information of honourable members. The undertaking is given to the Attorney-General, as follows:

'I refer to our discussions this morning with respect to the intentions of the Pitjantjatjara in exercising their powers under clause 28 of the bill.

I am instructed to undertake that this is not the intention of the Pitjantjatjara to exercise the powers vexatiously or capriciously.

The Pitjantjatjara do not have any intention presently to exercise their rights under clause 28 against persons lawfully in occupation of residential or business premises who act in accordance with the provisions of the Bill.

Yours sincerely,

Pantju Thompson, Chairman, Pitjantjatjara Council.'

We are also assured by the Pitjantjatjara that they will consider favourably any applications from individual opal miners to prospect and mine in certain areas to the south-west of the present field. The Bill provides that, in relation to such activities, no financial compensation is payable to Anangu Pitjantjatjaraku.

We believe that, given goodwill on the part of the Mintabie miners and Anangu Pitjantjatjaraku, these provisions will work satisfactorily. There is already evidence of sufficient goodwill in moves for discussions between the Pitjantjatjara council and the Mintabie Progress Association as to these clauses of the Bill.

That was David Tonkin on 23 October 1980 when he introduced the Pitjantjatjara land rights bill, and we can see right back then that the goodwill and good intentions were there on behalf of the government of the day, on behalf of the Pitjantjatjara peoples and on behalf of the Mintabie miners. The situation has gone along for many years. At that time a lease was signed with the government for 21 years, and that expired in 2001-02 and has been continued on an irregular basis since then. The lease was to the government, and licences were then issued to the various miners and business occupiers on the lands on a yearly basis.

There have been a considerable number of issues between the residents of Mintabie, the miners of Mintabie and the Anangu Pitjantjatjara Yankunytjatjara over the years, and these issues, such as the selling of petrol and drugs and the abuse of the book-up or use of PIN numbers to secure debit cards at the stores there, have become notorious.

The issues that the Pitjantjatjara have had to face have come to the point now where they have asked the government to amend the bill to rewrite the lease, and the negotiations are still under way with the lease. The lease has not been finished yet. There are still concerns—the latest last week—about what will be in the lease. The Pitjantjatjara do want to control the stores at Mintabie and on the lands to sell good food. The Mai wiru policy is something they have been driving very hard, because they are conscious that good nutrition is a vital part of their future, not just of adults but particularly of the children.

What we have today is this bill, which will change the relationship between APY and the people of Mintabie. There are some restrictions there, which I have some issues with. I think it is quite an onerous change that people cannot have a drink in their own home if they are able to do it in a responsible fashion, but the fact is that a lot of grog has been sold through Mintabie and caused a lot of devastation on the APY lands, and the need to control that is something that needs to be emphasised.

Having said that, there is an opportunity for the APY to introduce by-laws at a later stage to allow people to have access to alcohol in their own homes. The APY are not stupid; they are not just being arrogant here and saying this has to stop today. What they want is the relationship to continue but not the damage to continue, so they are using this piece of legislation as the first step in what could be a very profitable and fruitful long-term relationship for the people at Mintabie.

Mintabie has changed, and I will read some more information about Mintabie from the UnitingCare Wesley's Paper Tracker. I thank Mr Jonathan Nicholls, the former secretary of the Aboriginal Lands Parliamentary Standing Committee, who is now working for UnitingCare Wesley. Jonathan is a very knowledgeable and honest man in putting down the truth. He is not rewriting history in any way; here he is putting down the facts about what has been happening at Mintabie and its history in the Paper Tracker. I recommend the UnitingCare Wesley Anangu Lands Paper Tracker website to everybody. Lots of issues are discussed there, and how they have been dealt with and not dealt with have been laid out in a very cogent fashion.

The bill we have today, as I said, seeks to control grog, petrol, the sale of motor cars and book-up and it is doing this by various means. The reasons for that will hopefully become clear as we go through. Some of my colleagues still have distinct concerns about the way this is being done, and the party position is that we will not be supporting the bill. The information on the PaperTrackerdoes give a good history of Mintabie, and I will read that into Hansard because it is something I want everyone to be aware of. The article states:

The establishment of Mintabie and the APY Land Rights Act.

In 1981, Anangu won the inalienable freehold title to the APY Lands. This victory came at the end of protracted and often bitter negotiations. As part of those negotiations Anangu agreed to lease back to the Crown the small parcel of land on which the township of Mintabie sits.

When Anangu began their struggle for land rights in 1976, very little prospecting was being conducted at Mintabie. As things turned out, the push for land rights coincided with a rush on opal exploration. Consequently, by the time the South Australian Parliament began to seriously consider granting land rights to Anangu, a growing number of opal miners were setting up operations around Mintabie.

In November 1978, a Labor Government introduced a Bill to establish Pitjantjatjara land rights. Before long, a group of miners from Mintabie had expressed their strong opposition to the Bill. They warned that the proposed legislation would:

'act against future opal prospecting and mining...tend to hinder any other industry set up by people other than Aboriginals... [and] give no real benefit to the Aboriginals but...cause plenty of friction with the rest of the population.'

The Bill was still before Parliament when a State Election was called. After the election, Anangu entered into a fresh round of negotiations with the newly-elected Liberal Government. Those negotiations concluded on 2 October 1980, when the Pitjantjatjara Council—acting for all Anangu—formally reached an agreement with the Government on the provisions of a new Bill.

Introduced into Parliament on 23 October 1980, the "Pitjantjatjara Land Rights Bill 1980" proposed granting Anangu title to a large area of land including the township of Mintabie. At the same time, the Bill recognised that opal mining would continue at Mintabie and included provisions to control that activity. Certain occupancy rights were to be provided to prospectors but these would be balanced with processes that Anangu could use, if necessary, to have someone evicted from Mintabie.

On 25 November 1980, the Bill was referred to a Select Committee. In the course of its work the Committee visited both Mintabie and the Anangu community of Iwantja.

The other name for that is Indulkana, which is about 10 kilometres, I think, from Mintabie. The article continues:

In a written submission to the Select Committee, the Pitjantjatjara Council explained that while it did "not wish to interfere with any person who wishes to mine, conduct business or otherwise live at or visit Mintabie lawfully," it had serious concerns about "sly grog selling" [and this is in 1980]:

The difficulties associated with Mintabie are deep-rooted ones. For a long time, the community there has been under little control from the Government, either through the Police or the Mines Department. ... The main problem in the past has been sly grog selling which has continued unchecked as recently as last week.

This PaperTracker article was written a couple months ago. It continues:

As a result of unlimited access to take-away liquor, many Pitjantjatjara and Yankunytjatjara people have been subjected to acute social dislocation. One of their men was shot-gunned to death, others killed in road accidents and many involved in lesser violence. ...the Bill must include the [Mintabie Precious Stone] Field under title to enable integrated rules for protection of the lands to apply and ... long-awaited social controls [to] be enforced.

In contrast, the opal miners of Mintabie - and also some from Coober Pedy - opposed the Bill, sometimes vehemently:

'it is absolutely essential that the area ... of the Mintabie Precious Stones Field be excised from the Act! [they say]...if the politicians of South Australia ignore this request, then they must be held fully responsible for any confrontation - and possibly even bloodshed - that would almost certainly follow.'

After extensive discussions with both the Pitjantjatjara Council and the Mintabie Progress Association, the Parliamentary Select Committee recommended that the area of land covering the township of Mintabie be included in the grant of land to Anangu but would be leased back to the Crown for a period of 21 years. Such an arrangement would enable the Crown to "issue Annual Licenses to persons entering... and wishing to reside" at Mintabie.

The Committee tabled its report on 3 March 1981 and the Bill proceeded through Parliament.

On 2 October 1981, the Pitjantjatjara Land Rights Act 1981 came into operation. On that day, under Section 28(2) of the Act, the township of Mintabie was "deemed to have been leased by Anangu Pitjantjatjara Yankunytjatjara to the Crown for a term of twenty-one years."

Mintabie and the operation of the Act.

The Act of Parliament under which Anangu won title to their traditional lands also sets out the conditions under which any person (and certain classes of person) can enter the APY Lands. Aside from Anangu, most people who want to visit or live on the Lands have to obtain a permit from the land-holding body, Anangu Pitjantjatjara Yankunytjatjara (APY). However, under special provisions included in the Act, certain people do not have to obtain a permit if they want to visit or live at Mintabie. This is the case for:

anyone holding a precious stone prospecting permit;

anyone conducting a lawful business at Mintabie;

the spouse, parents and children of anyone holding a prospecting permit or carrying on a lawful business at Mintabie;

someone who has come to Mintabie 'to transact lawful business' with one of the above persons (if that business cannot be 'reasonably transacted from a place outside' the APY Lands).

In addition, under the Act, anyone who is granted a special provision is permitted the use of the access roads in and out of Mintabie.

As a balance to these special provisions, the Act establishes a process whereby individuals can be barred from visiting or living at Mintabie. The process makes it possible for Anangu, through APY, to apply for a court order to have someone banned or evicted from Mintabie if they have been convicted of:

larceny;

an offence of a sexual nature;

an offence involving violence or a breach of the peace;

an offence involving the unlawful sale of a motor vehicle;

an offence involving the unlawful sale of liquor or a regulated substance.

APY can also apply for a court order against someone who has committed an offence 'involving wilful interference with an Aboriginal sacred site' or who has 'acted in a manner prejudicial to the welfare of an Aboriginal individual or group.'

Finally, the Act provides for the establishment of the 'Mintabie Consultative Committee', whose main role is to provide 'advice to the Minister of Mines and Energy on matters related to the administration of the Mintabie precious stones field.' The five-member committee consists of two Anangu, a police officer, a Ministerial representative and a representative of the Mintabie Progress Association. Under the Act, the Committee can, like APY, apply for a court order to be issued against a person to prevent them from visiting or living at Mintabie.

All of these statutory provisions were an attempt by Parliament to strike the right balance between the needs of a relatively small group of opal miners and the needs of Anangu on whose traditional lands the miners wanted to work.

The effectiveness of any Act of Parliament, however, depends on the extent to which the government of the day ensures statutory provisions are enacted and enforced. In the case of Mintabie, things have been allowed to slide.

For example, in September 2004, the Department of Primary Industries and Resources SA reported that the Mintabie Consultative Committee had only held one meeting in the previous six years and that 'the whole membership of this Committee has currently expired.' The Department also reported that it could 'find no records' of any persons having been excluded from Mintabie over the previous 20 years.

Mintabie as a source for alcohol and drugs

Despite long periods of government inattention, Anangu have repeatedly highlighted the negative impacts that certain individuals and businesses operating out of Mintabie have on their lives. This has included raising their concerns with representatives of the South Australian Parliament.

In October 1987, APY advised a group of parliamentarians visiting the Lands that alcohol had become a major problem for Anangu communities and that a significant amount was being brought illegally on to the Lands through Mintabie. On that occasion, Anangu called for South Australia Police 'to pay greater attention in Mintabie to the sale of alcohol to Aborigines.'

In 1988, after visiting Anangu communities and Mintabie, a Parliamentary Committee reported that it had also been 'advised of "grog running" by persons apparently using Mintabie as the source of supplies and then selling the alcohol at inflated prices to Aboriginal people.' The Committee recommended 'that the matter of alcohol distribution from the Mintabie area be investigated urgently by the Police.'

More than a decade later, significant problems remained. In 2002, in a written submission to a parliamentary inquiry, Iwantja Council alleged that many people at Mintabie were involved in 'selling sly grog to Anangu.' The submission continued:

So much grog is stored in houses [at Mintabie] that people break in to gain access to it, what follows ends in violence and as proved recently a murder resulted directly from the stored alcohol. In recent times the sale of marijuana has reached an epidemic. This is coming from Mintabie as well. The reason it continues is that the people have to be caught in the act, an almost impossible task as the Marla police are some 40 kilometres away.

A month after Iwantja made these allegations, South Australia Police...confirmed Mintabie as the source for a significant amount of the drugs and alcohol coming on to the APY Lands. On that occasion, SAPOL also reported that it had 'recently found buried at Mintabie a large container set up with hydroponic gear that [had] been the source of cannabis for much of the lands for the past couple of years.'

I seek leave to continue my remarks.

Leave granted; debate adjourned.


At 22:00 the house adjourned until Wednesday 18 November 2009 at 11:00.


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