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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-08-30 Daily Xml
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Parliamentary Committees

Aboriginal Lands Parliamentary Standing Committee: Inquiry into Aboriginal Heritage

The Hon. L.A. HENDERSON (20:23): I move:

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

In the Hon. Mr Ngo's contribution, he highlighted the functions of the Aboriginal Lands Parliamentary Standing Committee. I wish to highlight these functions again today. They included the reviewing of the operation of three acts of this parliament: the Aboriginal Lands Trust Act 2013, the Maralinga Tjarutja Land Rights Act 1984, and the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981.

The committee was able to inquire into matters affecting the interests of traditional owners of the lands, look into the manner in which the lands were being managed, used and controlled, and inquire into the matters concerning the welfare of Aboriginal people.

The committee has traditionally visited many Aboriginal lands and communities. It has also held strong relationships with Aboriginal landholding statutory authorities. Speaking with representatives from those communities and statutory authorities allowed the committee to be updated on current issues.

My membership on this committee was, regretfully, only brief. I was appointed to this committee upon the retirement of the Hon. Stephen Wade only earlier this year and note that this committee has since been wound up. In my very limited time on this committee it provided me the opportunity to hear firsthand from Indigenous groups and to learn from their submissions on the inquiry into Aboriginal heritage. It was a committee that I had looked forward to joining for the opportunity to engage directly with Indigenous communities. This committee was an important conduit between Indigenous communities and members of this parliament.

When this parliament passed the First Nations Voice Act 2023 it included in it, amongst other things, the function to repeal the Aboriginal Lands Parliamentary Standing Committee Act 2003. My opposition to this legislation, and my position on the upcoming federal Voice to Parliament referendum is well known.

A Voice to Parliament seeks to create an unfortunate divide in our nation based on race. An important pillar of our democracy is that we are all equal: one person, one vote. The establishment of a Voice to Parliament undermines the very premise of equal representation, giving greater weight to the voice of one group over another, and to create barriers to representation based on race. Instead of being one Australia, instead of being equal, we will become divided with separate voices, separate powers, separate votes, determined by race.

It perplexes me that this government would wind up such a body that would increase the ability for members of this parliament to be able to engage with grassroots Indigenous communities and to engage in matters of significance to Aboriginal people.

When the Malinauskas Labor government rushed the First Nations Voice Bill through the parliament, the Minister for Aboriginal Affairs said, 'We are poised to lead the nation again and, make no mistake, the nation will be watching very closely ahead of the referendum to be held later this year.' Well, the nation has watched as the Labor government rammed through this legislation, including an unprecedented Sunday sitting of the parliament. The nation has watched as the Labor government arrogantly decided to not wait for the outcome of the federal referendum before creating a state-based voice to hear what South Australians really wanted.

The nation has watched as the Labor government has repealed legislation that provided for a parliamentary committee to engage with Indigenous communities. The nation has watched as the Labor government has postponed the elections that were meant to happen only a matter of weeks from now, leaving our parliament without a dedicated committee, without a voice for a significant period.

One must wonder why the Aboriginal Lands Committee has been repealed in circumstances where it seems somewhat counter productive to champion for the betterment of Indigenous communities and increase engagement, yet see it appropriate to remove another channel for parliamentary engagement. It is disappointing and seems a missed opportunity for further community engagement.

We all know that committees can do incredibly important work, but this government has made a conscious decision to repeal the Aboriginal Lands Standing Committee. The Voice is expected to be able to pick up the ground that this committee would otherwise cover, yet the Voice is not equipped as a parliamentary committee. One wonders why the government did not try to work with the existing infrastructure to enhance the capacity for these issues to be investigated within this committee, drawing upon the resources of committee processes.

The parliament will now be left without the ability to reflect upon the work of the Aboriginal Lands Standing Committee, any submissions and evidence that it would otherwise have received into the future. It is counterproductive to postpone the State Voice elections and leave this parliament with no committee. Our committee then enabled grassroots community members to engage with members of parliament. Instead of having a committee where we can hear the voices of many, we will now have a body that purports to speak on behalf of all Aboriginal people, but we will only hear the voices of the few.

The Hon. B.R. HOOD (20:29): I rise to add some brief comments in the relation to the Aboriginal Lands Parliamentary Standing Committee, as this will be the final report before the committee is disbanded. It is a shame that the state Labor government has chosen to abolish this committee, which has done some great work since it was proclaimed almost 20 years ago today.

The Aboriginal Lands Parliamentary Standing Committee was closely based on the Parliamentary Committees Act, with its functions expanding to inquire into a broad range of matters affecting Aboriginal people, including health, housing, education, economic development, employment and training. It has provided many members of parliament with the opportunity to visit Aboriginal people on country including, but not limited to, the APY lands, Maralinga, Oodnadatta, Davenport, Port Augusta, Ceduna, Point Pearce, Raukkan and Koonibba.

From its outset it was supported by both major parties, with its inaugural presiding member, the late Hon. Terry Roberts, noting the strong support received from the opposition Liberal Party as well as from minor parties. It was also the only standing committee, over quite a few years, to have a statutory obligation to report its work annually. The first priority of the committee, as stated by then Presiding Member Jay Weatherill in 2007, has been to consult with Aboriginal people in their home communities and to engage with their elected representatives and leaders.

The Hon. Peter Arnold MP put it well when he said back in 1987, during debate on the Pitjantjatjara Land Rights Act Amendment Bill, that, and I quote:

The fact that it gets members of parliament out into the lands, whether it be the Pitjantjatjara lands or the Maralinga lands, can only be of benefit from an educational point of view for those members who are fortunate enough to have been appointed to that committee. Too often, we tend to act too remotely from the real issues that we debate in this house.

I believe the strength and success of this committee lies in its wealth of information received from visiting far-reaching places that members of parliament would not normally have the opportunity to visit on their own. It is the annual reports over the years that are full of insights from some of our most remote lands and towns, from community members who would not be used to having parliamentarians rocking up on their doorstep.

This has helped the committee to develop a deeper understanding of how services and programs are being delivered to Aboriginal people, and to assess whether they are meeting their needs. Among the important issues that the committee heard and were able to influence include:

supporting dialysis treatment;

inquiring into Aboriginal housing, which contributed to Premier Marshall's South Australian Aboriginal Housing Strategy 2021-2031;

inquiring into governance standards in Aboriginal community-controlled organisations;

inquiring into pathways to support young Aboriginal people and Aboriginal women to step into community leadership roles; and

playing a pivotal role in providing recommendations to the Stolen Generations reparations bill, which resulted in an $11 million state government contribution to the scheme.

The Aboriginal Lands Parliamentary Standing Committee helped to achieve practical outcomes, which is why it is unfortunate that the Malinauskas government feels it needs to abolish it in favour of a First Nations Voice to Parliament: the First Nations Voice which now has had its first elections delayed while we wait in a holding pattern. One could be forgiven for thinking that it is thanks to the federal government's Federal Voice campaign that what was once an important issue on the state government's agenda is now having the can kicked down the road.

The Aboriginal Lands Parliamentary Standing Committee provided a vital function for community members to make representations to parliamentarians on their own turf. By abolishing this committee, another instrument has been removed from this parliament to get us out of the city to visit and engage with Indigenous communities on their own soil. While the First Nations Voice Act 2023 provides for the State Voice to address cabinet, parliament, chief executives and ministers, it says nothing about requiring or enabling parliamentarians to get out of the CBD and into Aboriginal communities.

It would be a missed opportunity, and would appear counterintuitive, to abolish this effective standing committee and to remove the frequent engagements between committee MPs and the Aboriginal people that have been ongoing for 20 years.

The Hon. T.A. FRANKS (20:33): I rise to speak to this motion noting the final report of the Aboriginal Lands Parliamentary Standing Committee on its Inquiry into Aboriginal Heritage: the topic of the report being its inquiry into Aboriginal heritage. I listened with great interest to those members who made a contribution on the nature of the Aboriginal Lands Parliamentary Standing Committee, something that I have been on the entire time I have been in this parliament. Indeed, the former Hon. Robert Brokenshire was very happy, at a crossbench meeting, to pass the role on to me. I was not expecting to be placed as the crossbench member on this committee but here we are, over 13 years on, still on the committee. This committee—

The Hon. I.K. HUNTER: Point of order: the honourable member on her feet is actually addressing the substance of the motion. None of the previous speakers have.

The ACTING PRESIDENT (The Hon. R.A. Simms): I am not sure that is a point of order, the Hon. Mr Hunter, but thank you.

The Hon. T.A. FRANKS: I will get into that later, but first I am going to start with actually addressing what the report had to say on our inquiry as a committee into Aboriginal heritage. Here we go. The destruction of two ancient rock shelters in the Juukan Gorge in 2020 has prompted much-needed community, industry and political discussions about law reform of outdated Aboriginal heritage legislation across Australia. Given the trauma caused by this event, there is now strong public interest and expectation of a process to modernise and strengthen Aboriginal cultural heritage laws.

South Australia has one of the least effective pieces of Aboriginal heritage legislation in the nation. In 2016, our government introduced an amendment bill to modify the Aboriginal Heritage Act 1988, based on feedback from a 2008 review. The 2016 amendment bill sought to make multiple changes to the act, notably repealing section 6(2), which delegated the decision-making powers to authorise damage to sites to the traditional owners, on their request. This came from the impact of judicial decisions surrounding this section and section 23, which had resulted in difficulties with administering the act—not the Aboriginal lands parliamentary standing act, the Aboriginal Heritage Act, just to provide clarity to the council that I think was sorely missing from the previous contributions.

I think it is important for the chamber to know that there have been zero convictions under section 23, where it is an offence to damage, disturb or interfere with any Aboriginal site without the authority of the minister. In their second reading speech the government noted the consultation process involved public discussion as well as written submissions from both Aboriginal and legal groups, including the South Australian Heritage Committee, the Aboriginal Legal Rights Movement (ALRM) and the South Australian Native Title Services (SANTS).

This is not the first time I have addressed this issue or the Greens have addressed issues with this legislation in this place, with the 2016 amendment bringing up several issues not only for First Nations South Australians but also in the difficult interpretation of many of its sections. These issues are still relevant today.

The 2016 amendments were done with haste and passed with a lack of legal advice. How does that happen? It happens with the collusion of the Liberal and Labor parties working together to ram these pieces of legislation, not listening to voices, not consulting with the Aboriginal Lands Parliamentary Standing Committee, not listening to anyone out in the community, let alone the stakeholders at the time, so I do note the irony of the previous contributions. It is always Aboriginal affairs legislation that seems to see things rammed through the parliament with a minimal level of discourse, debate and actual consultation.

I repeat that the 2016 amendments were done with haste and passed with a lack of legal advice. Indeed, I remember we did not even have the Law Society advice when we started debate on the bill, contrary to convention. The written submission of SANTS note that this act now legislates out of the government's compliance with the court orders from the judgement of Starkey v State of South Australia. It is clear that an agenda was being pushed which benefits those who profit off the exploitation of our natural resources at the expense of respect for Aboriginal heritage.

These amendments have now left us with an act that has silenced Aboriginal people's decisions over their heritage—something that I would have thought we might all be able to agree on at some point in the future, particularly if we have the strength of an Aboriginal Voice to Parliament to remind us of their voices—almost eliminating guidelines for mining companies and which Aboriginal people they need to consult, and leaves unclear time lines and legal uncertainty in the processes of the act. This provided the minister with the authority to permit any damage they find beneficial, without any consequences.

On 29 December 2020, the then Aboriginal affairs minister approved the request of Kelaray Pty Ltd to enable them to perform a range of mineral explorations, drilling and associated activities in Lake Torrens. Lake Torrens is a large salt lake located in central South Australia, stretching 250 kilometres at its longest point. The proposed mineral exploration site was located on the north-west side of the lake and includes Murdie Island and the southern part of Andamooka Island.

Submissions made to the then minister provided that Lake Torrens had a direct cultural link to the numerous First Nations groups, referring to storylines of the land and the totems connected to the stories. These First Nations groups included the Kuyani, Adnyamathanha, Kokatha and Barngarla people. They have expressed their disdain towards the lack of consultation in that Lake Torrens process and that the former minister proceeded with the authorisation despite the strong opposition received from public submissions. The government then approved drilling of a site despite having extensive knowledge from the Aboriginal Heritage Commission warning it of the potential destruction of sacred sites.

During this committee's inquiry the overarching theme from witnesses was the lack of a fundamental principle of free, prior and informed consent on decisions that impact protection of their heritage. Considerable references were made to the United Nations Declaration on the Rights of Indigenous Peoples. The UN Declaration on the Rights of Indigenous Peoples articulates principles of self-determination for the world's Indigenous peoples, where one of its central themes was the 'free, prior and informed consent of Indigenous peoples'.

Our laws do not give traditional owners the right to appeal a ministerial authorisation. Currently, only landowners have the right to cause a review of a decision of the minister under Aboriginal heritage laws. The series of events that led to the blast of Juukan Gorge highlighted the dangers of a legislative framework that has no appeal rights.

The committee reviewed 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. We heard evidence regarding 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. This is crucial in enabling the fundamental principles of the UN Declaration on the Rights of Indigenous Peoples and ensuring better representation of traditional owners of this state's land and waters, preserving 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, including all bodily remains and not just skeletal remains. Regarding the South Australian Aboriginal Heritage Act, the committee heard consistently from witnesses regarding the low financial penalties currently provided for in the Aboriginal Heritage Act, given that South Australia's penalties are significantly lower than other jurisdictions.

We also know, due to their criminal nature, the burden of proof required to secure a prosecution under the act has resulted in the failure of any successful prosecution imposed since the introduction of the 1988 legislation. I cannot emphasise that point enough.

There has been both committee and stakeholder concern regarding the lack of transparency afforded to ministerial authorisations that grant damage and interference with Aboriginal heritage. It has therefore been recommended that the 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 accessible reviews of decisions that could significantly impact cultural heritage preservation.

It is clear that the South Australian legislation is failing to adequately protect heritage, nor does it provide mechanisms for good faith negotiations. We need to protect all Aboriginal heritage, whether tangible or intangible, and I look forward to seeing our legislation amended in this state to better protect the native title rights and interests of First Nations South Australians.

I have had the pleasure of being on this committee for, as I noted, almost as long as I have been in this council, but it actually gives me great joy to see this committee wound up and to be given the benefit for this parliament—all members, not just six on the committee or, when it used to include the minister as well, seven members of parliament—of having a state First Nations Voice to Parliament so that the interests of First Nations people in our state are better represented.

I also draw members' attention to the committee on committees, which has made many recommendations, including those around the future of this committee that has provided this report and why it will be wound up. It was not simply just in the context of a Voice to Parliament, although that was certainly something under the Marshall government that was considered. It was also a reform of our committee system similar to, say, the Senate, where portfolio-based committees would see the plethora, the abundance, the volume of the ad hoc select committee process that we have in this council streamlined with professional, modern expertise and clarity, with specialist portfolio committees to do that same work.

Aboriginal affairs will be considered in that portfolio of work, so this is not the end of a committee system that considers Aboriginal affairs issues and these particular pieces of legislation. Indeed, it is an improvement on our own parliamentary processes over and above a First Nations Voice to Parliament.

I have found it extraordinary to listen to the contributions that clearly are an attempt to yet again wage culture wars about the referendum, where on 14 October, hopefully, when we see voters go to the polls and history calls, we will see a recognition of the wrongs of the past and a Voice to Parliament at a federal level. I am proud to have been part of creating a Voice to Parliament at a state level. I look forward to listening to that Voice. I look forward to reading reports in full, should they provide them to us, and not completely missing the point of the topic when we have taken significant levels of evidence on an incredibly crucial issue to Aboriginal people, that is, Aboriginal heritage.

I look forward also to future reform of our Aboriginal Heritage Act, improvements because, indeed, we can only go up in terms of South Australia's current situation. We do have what I would call the worst laws in the country, which need a lot of improvement. I know that will be a conversation not just in this parliament but, of course, through the Voice to Parliament and through the community, the very community that the Liberals, in their contributions, are so keen to listen to. I look forward to that listening process.

With that, it has been a pleasure, in many ways, being part of this committee. I thank in particular the former member the Hon. Stephen Wade for working with me to refer a stolen generations reparation bill to this committee in a previous incarnation of parliament, which led to an inquiry, which led to the Liberal opposition actually coming up with their own private members' bill and then eventually led to the Labor government taking up, creating and delivering a Stolen Generations Reparation Scheme. That is the sort of work we should be doing as a parliament through our committee system, through putting aside partisan culture wars and actually getting on with the job of delivering for all South Australians but, in this case, particularly Aboriginal South Australians.

The Hon. C. BONAROS (20:48): Can I start by thanking the Hon. Tammy Franks for her very thorough explanation of the final report of the Aboriginal Lands Parliamentary Standing Committee on its inquiry into Aboriginal heritage, for the benefit of all of us who were not part of that report. I thank her also for reminding us of the work that the committee on committees has done and the important role that it would play in terms of this. We remain very hopeful that bill will see the light of day in this place and, indeed, be supported, with enough political appetite from both sides.

It would, though, be remiss of me not to take this opportunity to reflect on an article that I was reminded of just now that touches on some of the issues that were raised today. The article states that the South Australian government is reportedly planning a process to establish an Indigenous Voice to Parliament. The Australian has reported that the Voice would likely be in the form of an advisory committee and would be chaired by the state's Aboriginal Engagement Commissioner. He would be joined by 12 other Aboriginal members, with the committee expected to be up and running by the end of the year.

Indigenous South Australians would be able to vote for six of the committee members, with the government to appoint the remaining six. Then, after three years of operation, the Electoral Commission would be holding a statewide ballot to elect 12 Voice members. The Premier indicated that he wants legislation to establish the body to be introduced into parliament at the time, according to those reports, because he hoped that South Australia's approach could be adopted to establish an Indigenous Voice at the federal level.

I am glad that I had the opportunity to be reminded of that article. For the benefit of all members in this place, but particularly those opposite, this article is dated 2021, and the Premier in question is former Liberal leader Steven Marshall, and the commentary came as a result of major reforms mooted by the Liberal Party in 2020.

So, for my part, in addition to thanking the Hon. Tammy Franks for enlightening us in terms of the actual work that was the subject of this report, I would also like to thank those opposite for the timely reminder of their party's position while in government.

Motion carried.

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