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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-09-27 Daily Xml
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Barngarla People, Litigation

The Hon. T.A. FRANKS (14:58): I seek leave to make a brief explanation before addressing a question to the Attorney-General on the topic of the state and commonwealth governments' litigation against the Barngarla people.

Leave granted.

The Hon. T.A. FRANKS: The Barngarla Determination Aboriginal Corporation and the Barngarla people generally have had to fight two large court cases against the state of South Australia over the last three years.

First, there was the Federal Court proceeding against the state government regarding Barngarla's native title recognition over Port Augusta. The state government and Barngarla settled these by consent orders in the Federal Court in September 2021, where the Barngarla successfully won their recognition of native title. However, that occurred after years of litigation and court work, including Croft v State of South Australia (Port Augusta Overlap Proceeding) Nos 1, 2, 4 and 5.

Second, was the Supreme Court judicial review in Dare & Ors v Kelaray and the State of South Australia to overturn the authorisation under section 23 of the Aboriginal Heritage Act of our state, made by former Premier Steven Marshall to allow mining activity on Lake Torrens. The Supreme Court found in favour of the Barngarla in late August 2022, just last month, but the mining company has now appealed this decision to the Supreme Court. This of course comes after a broader background of the former Labor government taking the entire Barngarla native title claim to trial in both 2014 and 2015, which the Barngarla were also successful in.

Now the Barngarla Determination Aboriginal Corporation are in the Federal Court with an application of judicial review against the commonwealth government to overturn the federal government's declaration of Napandee as the nuclear waste facility site. This shows a longstanding and continued history of litigation, where both state and federal governments have litigated extensively against one of our state's First Nations groups. This includes two court cases that are still ongoing: the Torrens court case, which is a state one; and the Napandee court case, which is a commonwealth one. Therefore, my questions to the Attorney-General are:

1. Is the Attorney-General aware that the Barngarla and BDAC are not receiving any funding from the South Australian Native Title Services, the commonwealth or the state governments regarding the Lake Torrens litigation against the state government or the Napandee litigation against the commonwealth government?

2. Is the Attorney-General aware of the reports that the commonwealth government has been outspending the Barngarla 3 to 1 on the Napandee litigation and that this figure doesn't even include the additional expenditure of the commonwealth on their departmental staff?

3. Can the Attorney-General advise with regard to the legal costs that the state government has spent litigating against the Barngarla people and the BDAC? In particular, can the Attorney-General advise of the state's legal costs associated with the two court cases that the state has recently litigated against Barngarla, relating to Port Augusta after June 2018, and the Lake Torrens Supreme Court matter, including the appeal against the BDAC currently underway?

4. In particular, how much has the state government and any of its departments or agencies spent on legal and other costs incurred, including costs associated with any internal departmental legal staff, in relation to the Port Augusta proceedings against Barngarla and in Dare & Ors v Kelaray and the State of South Australia to date, including any unbilled work?

5. Given it is state Labor Party policy to oppose a nuclear waste facility in South Australia, can the Attorney-General confirm that the State of South Australia will intervene in the Napandee Federal Court case in support of Barngarla's efforts to stop a nuclear waste dump being built on their country and assist in preventing the continued dramatic outspending by governments against one of our state's proudest Aboriginal communities?

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:02): I thank the honourable member for her question. I want to acknowledge her very longstanding and well-known interest in Aboriginal affairs, particularly in the Barngarla people and also as it relates to the issue of nuclear waste being stored in South Australia.

I think it was in the week before last, when the community cabinet was in Port Augusta and Port Pirie, that I was fortunate to spend some time with representatives of the Barngarla Determination Aboriginal Corporation for discussions. I think nearly all the issues the honourable member has raised were discussed over the time that we had in Port Augusta to traverse a number of issues.

In relation to the costs of litigation that have occurred in relation to native title, I will certainly take that on notice. I don't have any costs at the moment to see what costs can be sensibly attributed—if it's possible to ascertain the costs specifically attributed to this action. I know that there is advice that is given broadly in relation to native title issues, and it may be that some but not all of the costs can be properly itemised for a particular action. This pre-dated my time in the roles, the litigation, in terms of overlap or other native title claims.

I am not intimately familiar with the specifics of the Port Augusta overlap claim, but I do know that, from time to time, there are important matters that are tested in court in relation to native title and how the law of Australia—the native title jurisdiction is federal law—applies to overlap claims. I know that there are occasions when there are important principles that are determined by courts that help determine future native title applications, that the state will seek to have those legal points aired and decided in court, but in relation to the costs for the native title issues I will see if that is something that can be brought back, and if I am able to I will report back for the honourable member.

In relation to litigation that is currently ongoing in the federal court in relation to the nuclear waste storage facility at Kimba, I am aware that Barngarla Determination Aboriginal Corporation is currently in proceedings against the commonwealth at a trial level in relation to a number of issues on there. I will get some further advice. My understanding is it would be quite unusual for the state to intervene at a trial level, but if it does go further and there are constitutional issues that are appealed to the High Court that is an area where the state does intervene on occasions. I will get some further advice and bring back an answer for the honourable member.

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