In 2008, the then-Minister for Aboriginal Affairs and Reconciliation Jay Weatherill announced a review of the South Australian Aboriginal Heritage Act 1988.
After initial intensive activity there was a long period of inactivity. Then, suddenly last month, with little notice or consultation, draft legislation to amend the Aboriginal Heritage Act was introduced into state parliament. On March 22, having passed through the Legislative Council, the House of Assembly agreed to the bill without any amendment.
Minister for Aboriginal Affairs and Reconciliation Kyam Maher said the focus of the proposed amendments to the Aboriginal Heritage Act 1988 was on “agreement making”.
Consultation
Given this emphasis on “agreement making”, it is worrying that before introducing the bill to parliament, the minister did not engage with traditional owners, heritage groups and native title prescribed bodies corporate (PBCs) to obtain their agreement and support for the legislation.
Maher argued that extensive community consultation had taken place, even to the point of “falling into the trap of over-consulting”. The extent of consultation during the early phases of the review of the Act is not in question.
The Aboriginal Affairs and Reconciliation Department provided a scoping paper and accessible consultation documents, community and peak body consultations were held across the state, and a public call for submissions received 36 submissions. This level of consultation is commendable and is not in doubt.
However, what is in question is the extent of consultation regarding the recent draft legislation. Maher indicated on February 12 that the legislation had not been finalised, yet, within two weeks it was introduced to parliament. This left very little time for consultation with either traditional owners or other members of parliament.
While the “consultation debate” is critically important, it also provides a distraction and smokescreen for the proponents of the legislation from the critical aspects of the bill, namely the dilution or deletion of critical parts of the existing legislation that enable agreement making and negotiation by traditional owners.
So, what does the bill say about “agreement making”?
Agreement making
The key provisions for “agreement making” in the bill focus on changes to section 6.2; the establishment of Recognised Aboriginal Representative Bodies (RARBs); the scope and role of the State Aboriginal Heritage Committee (SAHC); and the powers of the Minister for Aboriginal Affairs and Reconciliation.
Section 6.2 of the original Act stated: “The Minister must, at the request of the traditional owners of an Aboriginal site or object, delegate the Minister's powers under sections 21, 23, 29 and 35 to the traditional owners of the site or object”. These sections deal with the power to damage, disturb or interfere with Aboriginal sites, remains and objects.
Section 6.2 gave traditional owners a potentially powerful tool to make decisions and enter into agreements to protect their heritage. The amended legislation removes this all-important provision. If the minister is serious about increasing the extent to which traditional owners were involved in decision making and agreement making, why has this powerful aspect of Aboriginal decision making been removed?
In addition, Schedule 1 of the bill states that all existing section 6.2 requests “will be taken to be void and of no effect” and/or “be taken to be revoked”.
This may have implications for the 2011 case Starkey v State of South Australia, where the Supreme Court found the government had acted unlawfully and was in breach of its duty to delegate the minister's powers to traditional owners, when they requested him or her to do so.
This matter is yet to be resolved and it is unclear how the now amended Aboriginal Heritage Act might affect the government's obligations as set out in the Supreme Court order.
Recognised Aboriginal Representative Bodies
Under the amended Act, RARBs are to be set up to obtain and represent the views and knowledge of traditional owners of the relevant heritage area. Anangu Pitjantjatjara Yankunytjatjara will be the RARB for the APY Lands; Maralinga Tjarutja will be the RARB for the Maralinga Tjarutja Lands; and a registered Native Title Prescribed Body Corporate (PBC) will be the RARB under the relevant Native Title determination for that area.
However, it is not automatic that the Native Title PBC will become the RARB. The SAHC first has to approve the PBC as a RARB and the Committee “may refuse to approve an appointment for any reason the Committee thinks fit”.
Effectively, the SAHC has the power to override and veto the Native Title PBC taking on the role of a RARB. This also implies that the SAHC can veto the Federal Court of Australia's determination through the Commonwealth's Native Title Act 1993 for a Native Title PBC to represent the protection of heritage within its determined area.
State Aboriginal Heritage Committee
Members of the SAHC are appointed by the minister to represent the interests of Aboriginal people throughout the state in the protection and preservation of Aboriginal heritage. This committee is not elected and does not necessarily or automatically speak for the interests of traditional owners across the state.
As a result of the amendments to the Aboriginal Heritage Act, this committee now has significant powers and responsibilities about agreement-making processes. Not only can it approve or refuse an application from a body to become a RARB, based on “any reason the committee thinks fit”, it may revoke or suspend the appointment of a RARB. It is also required to play a mediating role between parties and undertake dispute resolution functions. The amended legislation does not include any guidelines or indicate the nature of the training and resourcing to be allocated to this committee to enable it to carry out its extra responsibilities.
Minister for Aboriginal Affairs and Reconciliation
The minister has increased powers under the amended legislation. As well as appointing the members of the SAHC, which itself has significant powers, the amended Act provides for the minister to require the RARBs to carry out “other functions”.
Section 19F(1) states that “the Minister may, on application or on his or her own motion … revoke the appointment of a RARB for any reason he or she thinks fit”. Section 19H(6) states that “a local heritage agreement does not have effect until it has been approved by the Minister”. Section 19I(2) indicates that the minister must “determine whether or not to approve the local heritage agreement”.
Section 19N(1) states that the minister “may, on application or on his or her own motion … approve an agreement referred to in section 19M” — this applies to agreements affecting Aboriginal heritage under other Acts, including the Native Title Act 1993, Mining Act 1971,
Far from directing decision making and agreement making to traditional owners, the amended legislation gives significant powers to the minister — including veto powers based on “any reason he or she thinks fit” — and could effectively mean that the RARBs become “toothless tigers”.
At the same time, it removes those sections of the Act that put the minister in a difficult position or a potential conflict of interest when determining whether to allow the damage or destruction of Aboriginal heritage.
Critical timing
Many people were surprised at the way this bill was rushed through parliament and its critical timing.
South Australia is facing a number of contentious developments that may significantly impact Aboriginal land and heritage, including the consideration of potential sites for a nuclear waste dump on Aboriginal country and the development of the Northern Connector Road Project.
Was the timeframe driven by the need to have the Aboriginal Heritage Act out of the way to enable these and other developments to proceed unhindered?
The bill has passed both houses of parliament and is awaiting proclamation and a commencement date by the governor, making this a very sad day for traditional owners and for the protection of Aboriginal heritage into the future.
It appears to be a triumph for developers and mining interests who have the benefit of power and resources on their side when it comes to engaging with traditional owners.
In many cases they will be able to ride roughshod over heritage sites in the interests of “economic development”, supported by new legislation that allows the government to avoid taking responsibility for protecting Aboriginal heritage and present the changes to the legislation as being about increasing the involvement of Aboriginal heritage groups in “agreement making”.
[Sue Tilley is a Social Policy Advocate.]
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