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Apology Breakfast Archie Roach Honours the Stolen Generations at This Year’S Apology Breakfast, Adelaide

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Apology Breakfast Archie Roach Honours the Stolen Generations at This Year’S Apology Breakfast, Adelaide Aboriginal Way Issue 62, Autumn 2016 A publication of South Australian Native Title Services Apology Breakfast Archie Roach honours the Stolen Generations at this year’s Apology Breakfast, Adelaide. Full story and more photos on page 9 Aboriginal heritage out of our hands? A Bill by the Aboriginal Affairs The deleted section of the Act was one powers to the traditional owners whilst Minister Kyam Maher to amend of the key provisions for Aboriginal the Department was secretly working to the Aboriginal Heritage Act 1988 people which in 1988 was celebrated as amend the Act to render the orders void was rushed through Parliament last giving Traditional Owners the mechanism and with no effect,” Mr Thomas said. month without the support of key to protect and preserve their heritage. Andrew Beckworth, SANTS Principal bodies representing the interests It had recently been successfully used Legal Officer said “the amendments of Aboriginal people in this State by Traditional Owners to overturn the to the Act seemed to be directed to including South Australian Native former Aboriginal Affairs Minister Grace remove the most beneficial provisions Title Services (SANTS), the Aboriginal Portelesi’s decision to authorise mining for Aboriginal people in the Act, Legal Rights Movement and the Law companies to destroy heritage sites coupled with a new regime to make it Society of South Australia. on Lake Torrens. easier for developers and the mining The Act was amended on 24 March Keith Thomas, SANTS CEO said “it was industry to damage, disturb or interfere 2016 after passing through both houses clear that the Bill was rushed through with Aboriginal heritage without the of Parliament. At the time of writing Parliament to remove these sections of free, prior and informed consent of the principle amendment that has the Act and to avoid having to comply Aboriginal people and without the fear taken effect is the deletion of section with Court orders. After the Government Aboriginal Affairs Minister Kyam Maher. of prosecution.” 6(2), which was the requirement for failed to receive special leave to the Minister of Aboriginal Affairs and “It is extremely disappointing that The mining industry lobby group appeal that decision to the High Court Reconciliation to delegate certain powers after three years of trying to get the SACOME stated that “the repeal of the of Australia, Minister Maher has now or functions to the Traditional Owners. Government to comply with the orders requirement for the Minister to delegate legislated his way out of complying with of the Court this is where we end up.” to Traditional Owners his functions to All other amendments have not the orders of the Supreme Court to give give authorisations under the Act is commenced and will not be incorporated the Traditional Owners of Lake Torrens “We have been trying to negotiate with particularly welcome.” into the legislation until regulations and the responsibility for making decisions the Department of Aboriginal Affairs guidelines have been finalised. about their heritage.” about the delegation of the Minister Continued on page 3 Inside: New Board members for SANTS 4 New group to give voice to Stolen Generations in South Australia 8 What does 26 January mean to you? 12 What do changes to the Aboriginal Heritage Act mean for “agreement making” in South Australia? A view from Paper Tracker’s a ‘Scoping Paper’ and accessible This may have implications for the 2011 This Committee, which is central to Susan Tilley consultation documents, community Starkey v State of South Australia [2011] agreement-making processes about the and peak body consultations were SASCFC 164 case. In this important protection of heritage, has been given On 22 March 2016, having passed held across the State, and a public case, the Full Court of the Supreme significant powers and responsibilities. through the Legislative Council, call for submissions received 36 Court of South Australia found that the Not only can it approve or refuse an the House of Assembly agreed submissions. This level of consultation Government had acted in breach of this application from a body to become to the Aboriginal Heritage is commendable and is not in doubt. imperative that requires the Minister a RARB based on ‘any reason the (Miscellaneous) Amendment Bill for Aboriginal Affairs to delegate his Committee thinks fit’, it may revoke or 2016 to amend the South Australian However, what is in question is the or her powers to Traditional Owners suspend the appointment of a RARB, and Aboriginal Heritage Act 1988. This extent of consultation on the recent if they request this delegation. The Court is also required to play a mediating role Bill arose out of a Review of the amendments – which were introduced ordered that the Minister confer with the between parties and undertake dispute Aboriginal Heritage Act that was into Parliament after a very long break applicants concerning the delegation resolution functions. established in 2008 by the then in the Review process. request. It is unclear what effect the The Minister for Aboriginal Affairs Minister for Aboriginal Affairs and changes contained in the recent Bill might The Minister told the Paper Tracker and Reconciliation, has a range Reconciliation, Mr Jay Weatherill. have on the Government’s obligations in Radio Show on 12 February 2016 that of new powers under the amended this case. The Minister for Aboriginal Affairs and the Bill was not finalised and yet, within legislation. For starters, the Minister has Reconciliation, the Hon Kyam Maher the space of two weeks it was introduced Under the amendment Bill, Recognised responsibility to appoint the members MLC, has said that the focus of the to Parliament on 25 February, leaving Aboriginal Representative Bodies of the SA Heritage Committee which amendments was on ‘agreement making’. very little time for adequate consultation (RARBs) are to be set up to represent has significant powers. In addition, the Given this, it’s ironic that the Minister did with either Traditional Owners or other the views and knowledge of Traditional amended Act now gives the Minister not adequately engage with Traditional members of Parliament. Owners of the relevant heritage area. the following powers: Owners, Heritage Groups and Native Title While the ‘consultation debate’ is • to require the RARBs to carry out Prescribed Body Corporates (PBCs) to important, it does also provide a useful …far from devolving ‘other functions’ assigned to it by obtain their agreement and support for smokescreen and distraction from the the Minister; the latest version of the legislation. decision making and critical aspects of the amendment Bill • the Minister may, on application or on One has to wonder about the rush – the dilution and deletion of important agreement making to his or her own motion…revoke the to get this Bill through Parliament aspects of the existing legislation Traditional Owners, the appointment of a RARB for any reason and the critical timing of this. South that enable agreement making and he or she thinks fit; Australia is currently facing a number negotiation by Traditional Owners. amended legislation of contentious developments that may hands significant • a local heritage agreement does not So, what is the Bill saying about significantly impact on Aboriginal land have effect until it has been approved ‘agreement making’? powers to the Minister and on the protection of heritage, such by the Minister; as the consideration of potential sites and the appointed The key provisions for ‘agreement • …determine whether or not to for a nuclear waste dump, and the making’ across the existing Act and Heritage Committee… approve a local heritage agreement; development of the Northern Connector recent Bill focus on changes to Section • may, on application or on his or her Road Project, among others. 6.2; the establishment of Recognised Section 19B states that Anangu own motion…approve an agreement Was the motivation driven by the need Aboriginal Representative Bodies Pitjantjatjara Yankunytjatjara will be referred to in section 19M (which to have the seemingly constraining (RARBs); the scope and role of the State taken to be the RARB for the APY Lands; applies to agreements affecting Aboriginal Heritage Act out of the way Aboriginal Heritage Committee (SAHC); Maralinga Tjarutja will be taken to be the Aboriginal heritage under other Acts, to enable these and other developments and the powers of the Minister for RARB for the Maralinga Tjarutja Lands, both Federal and State); to proceed unhindered? Aboriginal Affairs and Reconciliation. and a registered Native Title Prescribed Body Corporate (PBC) will be taken to be • revoke or suspend an approval under This is a very sad day for Traditional Section 6.2 of the existing Act the RARB under the relevant Native Title section 19N for any reason he or she states that: Owners and for the protection of determination for that area. However, the thinks fit. Aboriginal heritage into the future. ‘The Minister must, at the request of the latter is conditional on the SA Heritage So, far from devolving decision making traditional owners of an Aboriginal site Committee approving the Native Title It appears to be a triumph for developers and agreement making to Traditional or object, delegate the Minister’s powers PBC being recognised as a RARB and and mining interests who have the Owners, the amended legislation hands under sections 21, 23, 29 and 35 to the the Committee ‘may refuse to approve benefit of the power differential on their significant powers to the Minister and the traditional owners of the site or object’. an appointment for any reason the side when it comes to engaging with appointed Heritage Committee and could Committee thinks fit’. Traditional Owners and who, in many These sections of the Act relate to the effectively relegate the RARBs to being cases, will effectively have carte blanche authorisation to damage, disturb or Effectively the Heritage Committee has toothless tigers.
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