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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-02-28 Daily Xml
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ARKAROOLA PROTECTION BILL

Committee Stage

In committee.

Clause 1.

The Hon. I.K. HUNTER: I might put on the record some answers to questions that were asked during the second reading stage by the Hon. Ms Michelle Lensink. Her first question was: when does the government envisage that the Arkaroola Protection Area Management Plan will be reviewed? The Arkaroola Protection Bill 2011 does not stipulate a requirement for a management plan to be reviewed. Clause 8 of the bill establishes a rigorous framework for preparing a management plan, including extensive requirements for consultation.

The government is therefore confident that these provisions will result in a management plan that does not require regular review. More importantly, the government will commence preparing the draft management plan immediately following the passage of the bill. However, if there is a change in circumstances that warrant a change in the management of the area, the government will consider a review of the plan. The bill does not impede the ability to review and amend the management plan.

In response to the second question regarding the environmental class A zone of the land not within a council area, I can say that the Arkaroola Protection Bill 2011 requires the planning minister to ensure that the relevant development plan, in this case the Land Not Within A Council Area (Flinders) Development Plan, be reviewed within six months of the completion of the Arkaroola Protection Area Management Plan. Therefore, I do not wish to pre-empt the recommendations of the management plan or the findings of the planning minister's subsequent review of the development plan.

Notwithstanding that, the assertion that the environmental class A zone provisions of the development plan provide an appropriate level of protection to Arkaroola from mining is incorrect. Mining operations that are carried on in pursuance of any of the mining acts are not classified as development and are not assessed against the provisions of the relevant development plan. The development plan, therefore, has no work to do in determining if mining operations can be illegally established.

It is therefore also incorrect to suggest that the government's 2009 policy framework, Seeking a Balance, sought to water down those provisions of the development plan. The opposite is true. Seeking a Balance recommended a system of zoning to manage mining access around iconic sites of the Northern Flinders Ranges. In areas such as Mawson Plateau, Freeling Heights and Split Rock, Seeking a Balance recommended absolutely no mining access, thereby recommending a level of protection from mining that previously did not exist. Whilst Seeking a Balance was discontinued by the government in late 2010, it provided the vehicle for the excellent outcome we have arrived at through this legislation.

The third question the Hon. Ms Lensink asked was: will the Arkaroola Protection Area Management Plan be made publicly available? Like other management plans for protected areas, the Arkaroola Protection Area Management Plan will be available when completed, either in printed form from the Department of Environment and Natural Resources or online from the department's website.

Clauses 1 to 3 passed.

Clause 4.

The Hon. M. PARNELL: I move:

Page 3, line 28 [clause 4(b)]—after 'cultural' insert:

or spiritual

I explained this amendment in my second reading contribution. I will not repeat what I said there, but for the benefit of members, this is a very simple amendment to the Objects section of the act. That section provides a number of paragraphs setting out the objects. The first paragraph is, effectively, the nature conservation objectives, which include the protection of habitat and ecosystems. That is paragraph (a).

When we get down to paragraph (b), the objects of the act are 'to support the conservation of objects, places or features of cultural value to the Adnyamathanha people within the Arkaroola Protection Area'. My amendment very simply seeks to add an additional two words so that it says: 'to support the conservation of objects, places or features of cultural or spiritual value to the Adnyamathanha people within the Arkaroola Protection Area'.

They are words that I have been asked by some Adnyamathanha elders to seek to incorporate into the objects. The main rationale is that it does not make an overwhelming or significant change to the objects, but it does recognise that the things that are important to the Adnyamathanha people, in particular their spiritual beliefs, might not be adequately reflected if simply the word 'cultural' is there. In particular, concerns that have been raised with me are that, if there are any non-tangible cultural assets, if you like, they might better be described as spiritual. Hence, I am seeking to incorporate those words into the bill.

The Hon. S.G. WADE: I seek to ask a couple of questions of the mover. As a general point, my understanding is that the objects of the bill—and therefore of the act that results from it—are not substantive in the sense that they can be used by courts in understanding the intentions of parliament where the court is otherwise unable to divine the intention but, unlike other substantive sections of the legislation, the words only have interpretive value. I would like to clarify with the mover whether that is his understanding of the effect of the amendment or whether they would have substantive effect?

The Hon. M. PARNELL: My understanding is that they would not. Basically, the objects of the act are reflected in some substantive measures, such as a prohibition on mining, but I see that this change to the objects is more likely to be reflected, if at all, in the management plan. In other words, it is an addition to the list of things that need to be taken into account when management is being arranged through clause 8 through the management plan, but I do not see the addition of this word as creating any particular new rights and possibly not even any new obligations. However, out of an abundance of caution and at the request of the Adnyamathanha elders, I think it is a useful additional descriptor of the types of Aboriginal values that are sought to be protected through the bill.

The Hon. I.K. HUNTER: The government is not supporting the amendment. We believe it adds no particular value to the objects. It is largely, if not completely, symbolic. It is recognised that spiritual values are an integral part of cultural value of 'objects, places or features' and do not need to be separately referred to in the objects of the bill, in the government's opinion. For the purposes of this bill, the omission of the term 'spiritual value' has no impact in relation to conserving Aboriginal heritage, which will continue to be protected under the Aboriginal Heritage Act 1988.

The Hon. S.G. WADE: I thank the government for the indication that, whilst it sees no need, it also sees no harm. The opposition certainly sees no harm in showing respect to the Aboriginal people of the Adnyamathanha community and we will be supporting the amendment of the Greens.

The Hon. R.L. BROKENSHIRE: I ask a question of the mover of the amendment: does this give any special rights to Aboriginal communities over that land with respect to claims ownership that is not already acknowledged? I just seek that clarification.

The Hon. M. PARNELL: The short answer is no; it provides no additional rights. When we get to the bill a little bit later we will see that there are Aboriginal groups that need to be consulted in relation to management, and that is exactly as it should be. However, this does not affect that at all; it has no implications for native title, for example, or any such thing. It is simply an additional word requested by some Adnyamathanha elders that assists in clarifying that there is a broad range of values that we should be seeking to protect—natural values—but when it comes to the Aboriginal issues, there are Aboriginal cultural values but also with this addition, the spiritual connection to the land, as well, which I think most of us recognise.

The Hon. T.A. FRANKS: I have a question for the minister. Did the minister base the government's position on any findings that it has had in the last three years since the Aboriginal Heritage Act has been under review? Is the information based on any information perhaps they would like to share with the council?

The Hon. J.A. DARLEY: I will be supporting the amendment.

The Hon. K.L. VINCENT: Similarly to the Liberals' position, I can see absolutely no harm in this amendment going forward. As the Hon. Mr Parnell said, this is what the elders want. I think we do not need to look far to know that what the traditional owners of this land want has historically largely been denied. I think if there is no harm in putting this forward then we owe it to the traditional owners of this land to honour this amendment.

The Hon. R.L. BROKENSHIRE: This question is to the mover of the amendment for the public record. Has the mover discussed this with the Sprigg family and others who have made representation leading up to where we are with this bill at the moment, and have they indicated their support?

The Hon. M. PARNELL: I have circulated this amendment to the range of stakeholders that I am aware of, and certainly the Sprigg family have expressed no problem with this aspect of it. I have sent copies of this to the Adnyamathanha Traditional Lands Association. I have discussed it with the chairperson and I have had some correspondence with its lawyers. I do not believe on this particular amendment they have any objection—none that they have raised with me. Certainly, the so-called Camp Law Mob (who I met with in Port Augusta) are the ones who have particularly asked for this to be included. I have not had anyone who has suggested to me that there is any reason not to make this change.

The Hon. I.K. HUNTER: I am advised that there is nothing in the Aboriginal Heritage Act that reflects spiritual values. This is in response to the question of the Hon. Tammy Franks. The government's position is based merely on trying to be consistent with other acts.

The Hon. T.A. FRANKS: With respect, my question was about the review of the Aboriginal Heritage Act which is from 1988, I understand. However, in 2009 or so (three years ago) the government instigated a review and there have been responses to that review, and I am asking if the government has based its rejection of this suggestion on those responses in that review.

The Hon. I.K. HUNTER: My advice is no.

The Hon. S.G. WADE: The minister's response to the comments of the Hon. Tammy Franks intrigues me, because in reading this clause I wondered why the government did not use the terms of the Aboriginal Heritage Act. The words you would expect to see in South Australia are 'for the preservation and protection of Aboriginal sites, remains and objects'. That is the phrase that is used in the Aboriginal Heritage Act.

I am intrigued that the only place I can see the words used that are actually in the bill, 'the conservation of objects, places or features of cultural value', is in the New South Wales National Parks and Wildlife Service Act. I wonder why we are resorting to New South Wales precedents rather than our own Aboriginal Heritage Act.

The Hon. I.K. HUNTER: My advice is that the government reviewed a range of legislation from around various jurisdictions of our country. We were of the view that the term 'cultural' included the word 'spiritual', and we landed on the objects that we have because we decided that it was a very well worded clause.

Amendment carried; clause as amended passed.

Clauses 5 to 7 passed.

Clause 8.

The Hon. M. PARNELL: I move:

Page 5, after line 8—After subclause (10) insert:

(11) In addition to the persons or bodies specified in subsection (10), if, in the opinion of the minister, an Aboriginal person or Aboriginal organisation has a particular interest in the Arkaroola Protection Area, the person or organisation will be taken to hold an interest in the Arkaroola Protection Area for the purposes of this section.

(12) In this section—

'Aboriginal organisation' means an association, body or group comprised, or substantially comprised, of Aboriginal persons having as its principal objects the furtherance of interests of Aboriginal people.

This is another fairly simple amendment. Clause 8 requires the minister, as soon as practicable after the commencement of the act, to develop a management plan for the Arkaroola Protection Area. The question that then arises is: what process will the minister go through, how will the minister prepare this plan?

We have been discussing the objects of the act and the first obligation is that the management plan must be consistent with, and seek to further, the objects of the act. However, when you get down through this management plan section there is a requirement for consultation. Subclause (3) provides:

The minister must, before commencing to develop or to alter the management plan under this section, undertake consultation with persons or bodies who hold interests in the Arkaroola Protection Area in such manner as the minister thinks fit.

The question then is: who are these people who hold interests in the Arkaroola Protection Area? Subclause (10) basically sets out a list of those who should be consulted in the preparation of the management plan. It defines a person or body who holds an interest in the Arkaroola Protection Area as being (there is a list of five): a native title holder; an owner of land; a lessee of leasehold land; a holder of a tenement in relation to land; or a custodian of land.

My amendment seeks to add two additional subclauses, which provide that the minister should also put his or her mind to whether or not there are other Aboriginal persons or Aboriginal organisations who have a particular interest in the Arkaroola Protection Area and, if the minister forms the view that such other persons or groups exist, then the minister should consult with them as well. In a nutshell that is what it says; it is pretty straightforward.

Basically, it is about broadening the range of people who should be consulted before the management plan is finalised. I will say at this point that, whilst they are not named, the native title holders are ATLA (Adnyamathanha Traditional Lands Association), a registered body corporate. They are the official native title holders and are the ones referred to in subclause (10)(a); they are the first group that needs to be consulted.

However, as I have mentioned in this place before, there are other Adnyamathanha people who also desire to be involved in discussions on the future of Arkaroola and its management. I have already mentioned today—and I have mentioned before in this place—that there are other Adnyamathanha elders, such as the so-called Camp Law Mob, who are keen to make sure that they get to have a say as well.

So, whilst my amendment does not name any particular group or Aboriginal person, it basically leaves it to the minister to put his or her mind to the fact that other people who deserve to be consulted are out there. If the minister forms the opinion that such person or group has a particular interest in the Arkaroola protection area, then the minister should consult with them as well, and it is as simple as that.

The Hon. I.K. HUNTER: I need to correct the Hon. Mr Parnell: if I heard correctly he said that the Adnyamathanha Traditional Lands Association (ATLA) are the native title holders; they are not. They are the representative body for the Adnyamathanha people, but they are not in themselves the native title holder.

The government opposes this amendment, and it is worth noting that the ATLA, the Adnyamathanha Traditional Lands Association, also opposes the amendment. Whilst the ATLA did support the first amendment of the Hon. Mr Parnell, they do not support, I am advised, the second amendment. That advice was passed to me from their legal representatives in Adelaide.

Clause 8 of the bill requires the minister to consult with those who have an interest in the land prior to preparing a draft management plan. This is in addition to the public consultation once the draft has been prepared. This clause recognises that the land remains outside government ownership. It ensures that those with a legal interest in the land were consulted by the minister, given the land remains outside that government ownership. Those with a legal interest include native title holders, owners of land, the lessee of leasehold land, a holder of a tenement in relation to the land and a custodian of the land.

The Hon. Mr Parnell has filed an amendment so that the consultation be extended to include an Aboriginal person or organisation which in the minister's opinion has a particular interest in the Arkaroola Protection Area. The amendment places a positive obligation on the minister to determine which Aboriginal organisations or persons have an interest in Arkaroola. It does raise a very serious question of whether the minister has properly considered who has an interest and thus whether he has fulfilled the consultation requirements. Our view is that this has the potential to be a significant burden.

The definition in the bill of 'native title holder' includes all Adnyamathanha people. The proposed amendment is not required to ensure consultation occurs with all Adnyamathanha people. The amendment is not supported, and I remind the chamber that it is not supported by the Adnyamathanha Traditional Lands Association either.

The Hon. J.M.A. LENSINK: The Liberal Party will support the amendment as well. For reasons of inclusivity we do not see that it does any harm. Anybody who is familiar with Aboriginal politics would know there are diverse views among Aboriginal people, and we do not see any reason why other groups should not be included in the legislation.

In addressing that I also make some remarks in relation to the timing of this particular bill. We are now in the second sitting week of this parliamentary year. I have heard some comments from some stakeholders that they were concerned that the bill was being delayed. I state for the record that the Liberal Party has had no part in that. These amendments were tabled on Thursday of the last sitting week and they have gone through our due diligence process. Certainly if there had been no amendments perhaps this bill could have been debated earlier this year. I would like the community at large to be well aware that the Liberal Party has not had any part in delaying the progress of this bill.

The Hon. J.A. DARLEY: I will support the amendment.

The Hon. R.L. BROKENSHIRE: Family First will also support the amendment.

The Hon. A. BRESSINGTON: I will support the amendment also.

The Hon. M. PARNELL: Given that the numbers are apparent, I will not delay the council. The minister challenged the comment I made about ATLA being the native title holders. I will clarify the record—and this is a communication from their lawyer:

ATLA is the prescribed body corporate/registered native title body corporate on behalf of the Adnyamathanha people as native title holders and acts as their agent and representative in accordance with the Native Title Act and the Native Title Prescribed Body Corporate Regulations.

That is what I meant to say when I said that ATLA was the native title holder I add that I do not think that it is a significant burden to a minister to put his or her mind to the fact that there might be some people out there who should be consulted, other than the narrow range listed in the legislation.

Amendment carried; clause as amended passed.

Remaining clauses (9 to 11) and title passed.

Bill reported with amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Disabilities, Minister for Youth, Minister for Volunteers) (17:56): I move:

That this bill now be read a third time.

Bill read a third time and passed.

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