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Motion Aboriginal Lands Parliamentary Standing Committee into Aboriginal Heritage

 

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, Mr President: 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in the Juukan Gorge in 2020 has prompted much-needed community, industry and political discussions about law reform of outdated Aboriginal heritage legislation across Australia.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 reparations 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 Reparations 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.

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