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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-08-31 Daily Xml
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Aboriginal Lands Parliamentary Standing Committee: Aboriginal Heritage

Mr HUGHES (Giles) (11:33): I move:

That the final report of the committee, entitled 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theme in the submissions received was that Aboriginal heritage laws in this state and around the nation are severely outdated and in need of urgent attention.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 the 46,000-year old rock shelters at Juukan Gorge in Western Australia in March 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 to an ancient heritage site such as this occurs, it is lost forever.

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

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is with these remarks in mind that the Aboriginal Lands Parliamentary Standing Committee sought to establish just how out of date our state's 1988 Aboriginal heritage legislation is.

The overwhelming stakeholder views received by this committee are that this outdated legislation does not reflect modern-day community expectations for cultural heritage protection.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 only recently at the historic Koonalda Cave in the far west of our state for examples of ancient cultural heritage being destroyed.

However, as the joint federal parliamentary committee said, this may be the catalyst for change that we needed. This is the time to modernise Aboriginal cultural heritage protection so that the devastating destruction never happens again. The 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 the inquiry. This is not an argument to replicate what the Western Australians did. There were some serious deficiencies. It is not every day that you see such a quick repeal of legislation as a result of the response to that legislation.

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 Dhawura Ngilan, the United Nations Declaration on the Rights of Indigenous People and the best practice standards in Indigenous cultural heritage management. This includes 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 outcomes. One major example of this was the introduction of the Recognised Aboriginal Representative Bodies (RARB) to be appointed by the State Aboriginal Heritage Committee. The only Recognised Aboriginal Representative Bodies to be appointed by the committee were the APY Maralinga Tjarutja lands bodies.

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

This 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 about registered native title bodies becoming RARBs for large land areas is that it may not represent all traditional interests. This is always complex. 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 does not see their role as appointing RARBs as 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 where 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 a particular area.

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 State Aboriginal Heritage Committee's model principles.

The committee was interested in learning 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 are obliged to maintain a register of traditional owners that can be searched to determine the traditional owners of a particular area.

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 it is 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 the Aboriginal Heritage Act, with South Australia's penalties being significantly lower than those in 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, which 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 consultation conducted by the minister be increased, and consultation information be publicly available.

The committee also recommends that the Aboriginal Heritage Act provides for a merits review process to enable such ministerial authorisations to be reviewed on application by traditional owners or proponents. This will limit the need for costly judicial review applications when ministerial authorisations may be granted against the wishes of traditional owners, and provides for a 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 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 was even more outdated than our current 1988 legislation and 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 operations at Olympic Dam, expected to expand with 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 transition to current 1988 legislative standards, the committee recommends that the required amendments be expedited by the minister in conjunction with the traditional owners of the Lake Eyre area. This would bring BHP into line with, at the very least, the processes and expectations of those contained with the current Aboriginal Heritage Act.

During these inquiries, the committee became aware of recent vandalism 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 site, the committee wrote to the Minister for Climate, Environment and Water as well as the Minister for Aboriginal Affairs. Three months later, the federal government announced 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 DEPUTY SPEAKER: Member for Giles, you need to wind it up.

Mr HUGHES: Yes, sir. The committee is encouraged by the response and sincerely hopes the grant will be provided. With those few words, I would like to thank all the committee members for the amazing work they have done on this inquiry and the work they have done in the past. I commend the report.

Mr TEAGUE (Heysen) (11:48): I rise to endorse and adopt the contribution made just now by the member for Giles. In the short time available to us in this committee time, he has stepped through the bulk of the recommendations in an orderly way.

The one he did not quite get to perhaps address fully is the final and sixth recommendation of the report. It really goes to the heart of what the committee has been able to do in the course of not only this inquiry but others. That sixth recommendation in the report, as the member for Giles adverted, is that the committee found in the course of its work that there was very significant damage that had been done to Koonalda Cave and that there was action that could be taken to, if not rectify it, address and prevent further damage.

The committee firstly wrote to relevant ministers; it had a very significant part to play in the securing of $400,000 of federal money to better secure the site. At the end, as I say, the final recommendation is that the committee recommends there be proper ongoing consultation between the minister and the Mirning Council of Elders in relation to the expenditure of that $400,000 grant from the federal government to make sure that we see Koonalda Cave secured and protected.

I dwell on this for a moment because it is work that the committee was able to do in the course of an inquiry precisely of this nature. This inquiry has resulted in publishing six recommendations. It is really one leading recommendation as to the reform of the Aboriginal Heritage Act, and there are seven recommendations within that first one. So there really is quite a thoroughgoing spotlight on what is an aged regime from the 1988 act. As the member for Giles has said, it is legislation that predates the advent of native title and has been moved along over the journey in no small part due to the engagement of this committee in its work now and over the course of many parliaments here in this state over the last 20 years.

In relation in particular to the Koonalda outcomes, this is not the kind of outcome that could have been achieved more easily by the work of a local member or by one or more private members in concert. It is exactly and precisely the kind of thing that can be achieved through the committee process. The committee, in the course of this inquiry, had 36 submissions and 27 oral contributions. The report sets out the wideranging nature of those who were able to engage with the committee in the course of its work. The committee really did afford a wide range of interested, expert and impacted parties the opportunity to engage in a very thoughtful way.

Those who might look more closely at the outcomes, particularly on the Koonalda front, might focus on pages 65 through 67 of the report, which really spell out a way forward. I remain interested, as a private member, to see those very precious and ancient caves properly protected.

It is quite apt that, as we stand here in this house today contemplating the final report into the inquiry into Aboriginal heritage, we are in fact contemplating the final work of the Aboriginal Lands Parliamentary Standing Committee. The committee has been wound up. At the end of June the committee ceased to exist, and I think it is a matter of great regret that that has occurred.

The member for Giles, I think among many of us, has observed that the committee has for some time been a committee that affords engagement between the parliament and Aboriginal communities, and it is a committee that might well be reformed over time to improve its capacity to do that work. But, just like members of this place appreciate, it is a committee of the parliament, resourced by the parliament to afford, in a cross-party way, the parliament to go about the important work of engaging in depth with subject matter of importance.

That will no longer be the case. We see, instead, that the government has made a virtue of bringing an end to the committee directly in the same motion as it would move to establish the state First Nations Voice, and we have seen the legislation that will establish the Voice passed earlier this year.

We have heard in recent weeks that elections that were due to take place in September for that body will not take place now until at least March next year. As we sit here in 2023, the report card for parliamentary engagement with Aboriginal communities and issues of importance is one of going significantly backwards. We are facing a period of what might be expected to be at least a year, maybe more, where we have seen the government bring an end to the committee altogether and put what it describes as the appropriate body to replace it in some sort of medium-term hiatus.

I just contrast that again with the model which was proposed by the then Premier and Minister for Aboriginal Affairs in the last parliament, the Hon. Steven Marshall, and which I was proud to reintroduce in this parliament and then argue for by way of amendment in the course of this legislation with an emphasis on bringing parliamentary committee work, that productive process of this place, in direct connection with those who had advanced the cause of Aboriginal people in this state. It has been rejected by this government and that is a matter to be regretted and it ought be noted loudly and clearly on this occasion.

I am glad that the committee has been able to complete this work. I hope that it is of use to the Minister for Aboriginal Affairs as he deliberates on important amendments that are required in reforming the Aboriginal Heritage Act. I commend the report to the house and I hope that at some stage in the future this parliament may see fit to reinstate serious committee work in the interests of Aboriginal people in the state of South Australia.

The Hon. S.S. MARSHALL (Dunstan) (11:57): I also rise to make comment on this report into Aboriginal heritage by the Aboriginal Lands Parliamentary Standing Committee, which has been received, making important recommendations for a review of the act, which is long overdue. I thank the member for Giles for bringing it to the house's attention today.

As the member for Heysen notes, and in some ways laments, this is the final report of the Aboriginal Lands Parliamentary Standing Committee and I thought it would be appropriate at this point to remind the house of the establishment of the Aboriginal Lands Parliamentary Standing Committee first introduced in the other place in June 2003 by the Hon. Terry Roberts, then Minister for Aboriginal Affairs and Reconciliation.

It passed through both houses in almost record time and by the middle of July 2003 the Aboriginal Lands Parliamentary Standing Committee was formed. Interestingly, in that very first committee, we had the then member for Cheltenham, the Hon. Jay Weatherill, who went on to become the Premier and in some ways a great advocate for Aboriginal affairs and reconciliation in this state. This committee has had many people who have served and learnt about Aboriginal lands in South Australia.

This committee came to an end at the end of last financial year. As the member for Heysen brings to the house's attention, the current hiatus with regard to the alternative is leaving us in a position where we do not have a body as part of this parliament to look into matters that are so pertinent, especially at a time when matters of reconciliation are very much on the national agenda.

I must say, I was very privileged to serve on this committee when I first came to parliament back in 2010, when I was elected on to that committee and I served through to 2012. These were very important times for me learning about the issues associated with people living on Aboriginal lands throughout South Australia. I was very fortunate when I became Premier to appoint myself to the portfolio of Aboriginal Affairs and Reconciliation—of course, that was done by His Excellency the Governor—and I really thought it was a privilege to serve in that capacity.

This committee has delivered very many important reports to this parliament over its time, not just the Aboriginal heritage inquiry report that we are discussing this morning. Earlier this year, in fact late last year, there was the inquiry into Aboriginal governance—an inquiry that I actually asked the Aboriginal Lands Parliamentary Standing Committee to do when I was minister. Other important reports include the Aboriginal languages report, which resulted in quite a considerable investment into recovering the Tanganekald—

The DEPUTY SPEAKER: Excuse me, member for Dunstan, would you like to seek leave to continue your remarks or do you wish to finish off?

The Hon. S.S. MARSHALL: I am happy to conclude by saying that there have been many important reports and inquiries conducted by this body over a long period of time, and I regret that we do not have a replacement in place at the moment.

Mr HUGHES (Giles) (12:00): I thank all members for their contribution and commend the report to the house.

Motion carried.

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