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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-03-08 Daily Xml
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Bills

Aboriginal Heritage (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 25 February 2016.)

The Hon. T.A. FRANKS (15:30): I rise on behalf of the Greens today to speak on the Aboriginal Heritage (Miscellaneous) Amendment Bill 2016. I do so noting that it was only brought into this place in the last week of sitting and, unlike protocol, we are not letting it sit on the table for at least a week before proceeding with debate. I was surprised somewhat to see a changed letter received in our email inboxes today stating that this was indeed the number one priority for the government, number one with a bullet, above the planning bill some might be relieved (but perhaps not surprised) to hear.

I point this out because, while I think the new minister has gone some way to repairing the damage of previous ministers of the Rann-Weatherill government in Aboriginal affairs, I fear he is making the same mistakes by rushing this piece of legislation through. I thank minister Maher for his time in personally giving me an informal briefing on this bill in that last week of sitting and giving me a heads-up that it was coming.

My office has since sought feedback from the Aboriginal Legal Rights Movement and the South Australian Native Title Services, and we have also sought Law Society advice on this bill. I would like to thank both the Aboriginal Legal Rights Movement and the South Australian Native Title Services for their time in rapidly briefing my office at what certainly seems to be very short notice, not just for my office but for their offices as well.

It seems to me that this government has a tendency to show disrespect to Aboriginal people's rights, because it seems that time and time again this place is asked to rush through pieces of legislation on Aboriginal affairs without proper process. I remember standing here back in 2012 debating the then Petroleum and Geothermal Energy (Transitional Licences) Amendment Bill 2012. Less than an hour and a half was spent on that bill. In fact, going back to my 2012 speech notes, closer to 60 minutes than 90 minutes was spent on that debate in the House of Assembly and, without the contribution of the Greens in this place, less than 25 minutes would have been spent debating that bill in the Legislative Council on 20 September 2012.

Back then, the Greens put on the record that we opposed that bill. We opposed the second reading of that bill and we opposed the process of the debate of that bill. We called on the government to account on a very flawed process that had brought that piece of legislation through into the Legislative Council. It was less than 48 hours after the second reading debate occurred in the other place that it was passed in this place. We are being asked to do something similar again today, and I think it is disrespectful and the Greens raise concerns about the process.

As I say, I think minister Maher has come a long way in repairing the damage of that disrespect from those previous ministers. I urge him to take the time that is needed to make sure that this bill is properly consulted on. We may not agree, and the Greens may never support this bill, but I think the process should be respected.

I will now take the chamber's time to put on the record the position of the South Australian Native Title Services. The South Australian Native Title Services is, of course, quite concerned and expresses its disappointment in this bill, which it also believes has been rushed through without the appropriate consultation.

Just stepping back a little, members will be aware that since 2008 there has been review after review into the Aboriginal Heritage Act, and so I do not discount that process which has been a very longstanding and overly time-consuming process and should have brought legislation to this place well before this time. I certainly do not put those at the foot of this particular minister but I urge the minister to make sure that we as Legislative Councillors and, indeed, those in the other place have the full facts at our disposal as we proceed with this debate. The letter that I received today (8 March) from SA Native Title Services on this particular bill states under the title Summary Position:

SANTS oppose this Bill as it:

1. has not been subject to consultation with Aboriginal community in its current form and has not been put before Parliament with the support of Aboriginal People;

2. does not improve the level of protection and preservation of Aboriginal Heritage, which was the basis of the Aboriginal Heritage Act;

3. is inconsistent with the Racial Discrimination Act 1975 and with the Native Title Act 1993 and is thus unconstitutional;

4. removes the ability for Aboriginal people to require the Minister to delegate his or her powers;

5. legislates to provide a potential avenue for native title holders to be prevented from exercising and managing their determined native title rights and creates further doubt in who 'speaks' for Aboriginal heritage;

6. affords agreements negotiated in different legislative contexts a false status in regard to the level of Aboriginal Heritage protection while removing statutory safeguards;

7. removes the ability for the prosecution of people damaging, disturbing or interfering with sites, objects or remains in many circumstances;

8. legislates out of the Government's compliance with court orders in the matter of Starkey v State of South Australia.

The letter goes on to note under the title 'Process and engagement with Aboriginal people' as follows:

This Bill will come as a shock to many Aboriginal people in South Australia, as it has done for us. Over the last 15 years there have been a number of moves by State Government to amend the Aboriginal Heritage Act. Some have been undertaken in a participatory fashion which has given the Aboriginal community some hope that their rights and interests will be upheld. This Bill flies in the face of what previous governments or Ministers have attempted and does so without any respect for the primacy of Aboriginal people's voices and their rights and interests in managing and protecting Aboriginal Heritage. This is against the United Nations Declaration on the Rights of Indigenous Peoples.

The Minister for Aboriginal Affairs has not engaged appropriately with the Aboriginal Community. In light of the intended relationship between Aboriginal Heritage Agreements and Native Title, a consultation on the effect of the agreements should be carried. Aboriginal people in South Australia have engaged in the native title and the opportunities that has afforded and have participated in that process on the understanding and certainties about the Aboriginal Heritage Act. The proposed changes affect the context in which Aboriginal People have engaged with the non-Indigenous community. It seems that the Minister is happy to have the context for Aboriginal People to alter dramatically with little to no consultation, but would never dream of altering the business context for the business sector. Once again, Aboriginal People are marginalised and their participation is minimalised, and it is even more galling when the issue which Aboriginal views are being marginalised in is Aboriginal Heritage.

Government have the opportunity to work hand in hand with the Aboriginal community, and particularly native title body corporates who are responsible for managing determined native title rights and interests in this State. Much of South Australia is now subject to determinations of native title which provide your Government and those looking to develop and exploit our resources with absolute certainty about who to consult with. Rather than work with and empower these bodies, this Bill will undermine their authority by, for example, legislating to potentially support other bodies in areas the subject of a native title determination.

The letter goes on to echo those concerns, whether or not this bill is consistent with the Racial Discrimination Act 1975 and the Native Title Act 1993, and I put those on notice for the minister to take as my first question of this bill: is the bill consistent with the Racial Discrimination Act 1975 and the Native Title Act 1993, noting the express concerns of SA Native Title Services that it is not? The letter goes on to state under the title Intent of Amendments that:

Rather than empowering Aboriginal People, the bill appears directed to remove the most beneficial provisions for Aboriginal people coupled with a new regime to make it easier for developers, the mining industry and other land users to damage, disturb or interfere with Aboriginal heritage without the free, prior and informed consent of Aboriginal people and without the fear of prosecution.

For example, 19N provides the Minister with powers to approve an agreement without consultation or consent of Aboriginal People. This in turn would reduce the level of legislative protection afforded to Aboriginal Heritage.

The proposed removal of Section 6(2) which provides for delegation to Aboriginal people is indicative of the intent of Government. This is an important section, and in its current form reflects the rhetoric Government often provide in relation to Aboriginal engagement, empowerment and decision-making. Hansard shows the intention and purpose behind this section. However, the Minister seems to be forgetting this history and its continued relevance in the move to press forward with these amendments.

The Bill will leave us with an Act that gives Aboriginal people less say over their heritage, less certainly for developers and proponents in the mining and oil and gas industries about which Aboriginal people to talk to—

I think that is supposed to read 'certainty', but the letter says 'certainly'. We can clarify that shortly.

—unclear processes and timelines and all in the context of legal uncertainty regarding the validity of aspects of the Act.

The letter goes on—and I shall seek leave to table the letter.

Leave granted.

The Hon. T.A. FRANKS: The letter raises concern about the recognition of 'Recognised Aboriginal Representative Bodies' and the role of committee, agreement making and the confidentiality, and further concerns, and is signed and dated on this day, 8 March 2016, by Keith Thomas, the chief executive officer.

It is concerning that we may see this bill progressed without the appropriate feedback from the key stakeholder groups. Certainly, the Law Society has not yet provided my office with advice and does not have advice on this bill on the website. My next question to the minister is: when was the Law Society given this version of the bill and what is their advice and can he please table that? I have further questions as well.

Regarding the removal of section 6(2), the minister's delegation, what are the implications for other native title groups seeking that delegation? What has been the process of consultation to date? I have certainly had expressions from other groups and I would like to put on record the concerns expressed to my office from Karina Lester, the current chairperson of the Yankunytjatjara Native Title Aboriginal Corporation.

I continue with the questions: what have been those processes for consultation? Specifically, Anangu need to understand the implications, and it has been indicated that they are concerned about procedural fairness here. What are the implications, if this bill is to pass, to the APY Land Rights Act specifically? What are the implications for the Native Title Act specifically? How are Aboriginal heritage sites going to be protected?

I have also received correspondence from the Aboriginal Legal Rights Movement, which I will not speak to today because my understanding is that that correspondence and those conversations with the minister to date have been undertaken with the appropriate discretion prior to the release of this legislation, but that they are now in a position where they need to consult with their stakeholders as well. Certainly, I would like to have an undertaking from the minister of what the ALRM's position is on this bill, whether they have concerns and what those concerns are. With those few words, I seek leave to conclude my comments.

Leave granted; debate adjourned.

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