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Aboriginal Lands Amendment (2024 Council Election) Bill 2023

Vica Bayley MP

Vica Bayley MP  -  Tuesday, 14 November 2023

Tags: Legislation, Tasmanian Aboriginals

Mr BAYLEY (Clark) - Mr Speaker, I will also start by acknowledging that this House is built on stolen Aboriginal land, the land of the muwinina people. It was never ceded. I cannot acknowledge the muwinina elders present; I can acknowledge their elders past. The muwinina are no longer and their hopes, their claims of land, and the responsibility to protect the cultural landscape of nipaluna and surrounds, falls with the Tasmanian Aboriginal community. I acknowledge the community here in the Chamber tonight. I hope and trust we can do justice to your views on this bill.

I acknowledge to you also the indignity of us in this Chamber, on this land, debating a bill that affects your lives and how you organise yourselves. I am certainly not an Aboriginal person and I acknowledge that many of you do not even participate in the process that establishes this House and establishes this process. I acknowledge that because it is significant. That charges additional responsibility on you, minister, to listen carefully, consult genuinely and hear the views of the Aboriginal community on how we, as a House, are going to arrange the laws of a system that is not yet accepted and should never be accepted by these people as speaking for them. It is the way of the system and there is a grudging acknowledgement of that.

That is why they are here in the Chamber today. This is a system that is not embraced yet here we are, non-Aboriginal people, making laws about how Aboriginal people organise their affairs, manage their business, own and manage their land, and the like. I acknowledge that indignity and the Greens will always fight to acknowledge your sovereignty, your survival, your spirit and the protection of your heritage.

Just over 200 years ago, 100 per cent of lutruwita/Tasmania, its land and waters, was Aboriginal-owned. Today, less than 1 per cent has been returned to the Aboriginal community under the legislation we are debating today. Dr Woodruff has laid out numerous opportunities for this Government to honour its commitment to reset the relationship with Aboriginal people, to return land to Aboriginal people. It has dithered and delayed, it is has thrown up every barrier, including the legislation we are debating today as a reason not to do that. Kooparoona Niara, unallocated Crown land that had no title, that was coming before both Houses of parliament, that was the opportunity for this Government to demonstrate its bona fides and deliver a genuine return to the Aboriginal community. It squibbed on it, it snubbed the request, it snubbed a claim that was made in direct response to a State of the State invitation of past premier Peter Gutwein.

This is an important bill, not only because we are hearing clearly from Aboriginal people about the problems contained in it but because it pertains to democracy itself. Fundamentally, we should not delay democracy. It smacks of incredible double standards for this Government, a government that went to an election one year early the last time - 2021 instead of 2022, to be mounting arguments about why we should delay elections for the Aboriginal Land Council. It is making that argument based on the fact that there is legislation that might come before the House, future legislation that may pass, that may have an impact on that legislation.

Again, the double standards and the hypocrisy are outstanding. We have spent time debating both inside the House and outside the reform to political donations bill. That now sits in the other place being debated up there. But there is no proposition that the next Tasmanian state election is going to be delayed until that can be gazetted so that the political donations law is in place by the time we have the next election. Oh no, we are probably going to get a quick one and have that legislation pushed out into the never-never so that the next election happens in the absence of that political donation legislation.

It concerns me that we seem to treat Aboriginal issues versus non-Aboriginal issues with a fundamental double standard. It is a deeply concerning issue and it should not be the case.

When it comes to the lands act I am not going to lay it out and there might be a time when we can debate it in the future but there is clearly significant unease and significant consternation about the major reforms to the Aboriginal Lands Act.

I can tell you from firsthand experience from talking and working with Aboriginal people that the very presence of that act is a re-traumatising experience. People have got genuine and well-founded fears for the future of the land that is already owned by Aboriginal people and who is going to manage it and who is going to run it, let alone the management of any land that may be returned in the future.

Significant concerns about the Aboriginal Lands Act and the reforms that are proposed there and it has rightly been delayed. I welcome the fact that it has been delayed: that the minister is taking more time to consult with the Aboriginal community more time to consider the issues and complications around that.

But the reality is it should not happen at all, minister. It has worked perfectly well for many years now. In terms of the amendment bill for the Aboriginal Lands Act, as Dr Woodruff laid out, we simply do not support it.

It is ridiculous to be delaying an election on the punt that some amendments made to that major bill are going to somehow pass both Houses of parliament in the future. We have no guarantees about that whatsoever. We have no guarantees that the Liberals are going to be in government by the time that bill is ready for debating. There are no guarantees that it will actually pass and there is actually no guarantees mind you that the amendments to the OUT roll and to the electoral process are actually going to be in it.

Maybe the minister will fold on that and come to his senses and bring forward a bill that does not include that in the first place. That is why it is absolutely nonsensical to be delaying the elections simply on the speculation that some future piece of legislation will happen.

As Dr Woodruff alluded to, there is legislation that should not be delayed. It is urgent, it is non-controversial and it is overdue. If you do not want to take my word for it, let me read into Hansard the words of the minister when it came to the tabling report of the review into the Aboriginal Heritage Act.

These are not words that was put on the table in the parliament last month or two months ago or even last year. This was from July 2021, so almost two-and-a-half years ago. These are the words of the minister when it comes to the Aboriginal Heritage Act.

The need for a new act, the review has confirmed the Government's long-standing position that the act is considerably out of date and that new legislation is required that expands the scope of the act beyond being mainly focused on mitigating of the impact of physical activities on Aboriginal heritage of archeological significance.

It is clear that the act itself does not provide effective mechanisms for protection, nor does it adequately consider the significance of Aboriginal heritage in the context of Aboriginal culture.

This has led to a high level of dissatisfaction for the act with Tasmanian Aboriginal people and amongst most non-Aboriginal stakeholders.

Let me read that again:

It is clear the act itself does not provide effective mechanisms for protection.

That means that the act does not work. The minister came into this place over two years ago. He tabled a report on this desk here that acknowledged that the legislation does not work and does not provide effective mechanisms to protect Aboriginal heritage. And yet, what have we had since then?

We have had a number of massive and highly controversial and destructive proposals assessed against that very act. We could look at the kunanyi cable car. Yes, it was rejected, and rightly so. But was it rejected on important Aboriginal heritage grounds because of the strong opposition of the Aboriginal community and the cultural landscape that kunanyi is for Aboriginal people? No, that did not even get a mention.

In fact, the act was not even strong enough to compel the proponent to produce an Aboriginal heritage survey that actually complied with the Government's own guidelines. That how good the Aboriginal Heritage Act is; that is why it is urgent that it is reviewed, updated, and strengthened.

Robbins Island, a proposed massive industrial wind farm development on a cultural landscape of significance to Aboriginal people. Thousands, tens and tens of thousands of years of living on that island. A shared history, Robbins went there numerous times with people as he was exiling them to the islands in Bass Strait. It is a landscape of significant importance to Aboriginal people and it is no place for industrial wind farms. Yet, it has not even manage to trigger a proper assessment under the act. They have looked for relics, stone tools, bones, caves, paintings under the exact footprint of the towers. Because they did not find any, it does not even trigger the act. No problem here.

I could go on. Arm End. The Tasmanian Government's tracks on the Tarkine Coast. Dr Woodruff referred to it but it did not even have the courtesy to do a proper heritage assessment of those tracks to refer it to the federal government. It took people in the gallery here taking this government to the federal court to force it to refer that project to the federal government, which immediately said 'yes, you need to do an Aboriginal heritage survey'.

What happened when they got the correct person to do that Aboriginal heritage survey? Immediately they backtracked. They said 'no we cannot lay rubber mats over these middens and drive four-wheel drives on them. That is not going to cut it'. It was a welcome backtrack but it should not have taken the Aboriginal community going to the federal court to attain it.

In some ways, we are living it again now. I wanted to bring your attention to the west coast off-road vehicle strategy. This is the $10 million face-saving strategy that I asked the minister about in question time today. This is a strategy that is looking at a network of tracks on the west coast, including the national heritage listed Western Tasmanian Aboriginal Cultural Landscape. It is looking at the existing track and it is looking at expanding tracks and campsites. This is an update, presentation to numerous stakeholders have been consulted; a consultant has been employed to do this work. Page 3 holds stakeholder views.

The stakeholder views says a lot about muddy roads and there is a lot about four-wheel drive tracks and that they do not want off-road tracks to be upgraded because they like the sport. There is a lot here about the priority for improved camping areas at Sandy Cape. Shack owners of Trial Harbour have indicated they need an upgrade of the camping area. Is there a mention in there of Aboriginal heritage? No.

Seemingly, there was no Aboriginal stakeholder. No one offered the view that within a national heritage-listed Aboriginal cultural landscape, you probably should look at Aboriginal Heritage values and work out whether what you think you are going to do, you actually can do.

The reason I am incredibly disappointed by this is because I know it is fundamentally wrong. I sat in one of these consultation meetings. We made the very clear point to the departmental staff and the consultant that it was inappropriate. In fact, it was offensive for this project to be doing early surveys, early work, looking at the network of tracks. They even did a market analysis into what does the four-wheel drive market in Australia want out of its four-wheel driving experiences. This is the kind of preparatory early work that this project had undetaken.

Did not do an Aboriginal Heritage survey? No, it did not. Did the minister this morning answer my question about whether an Aboriginal heritage survey had been done? No, he could not. Would he give a commitment for one to the same standard as that which was commissioned that ultimately led tothe Government reversing its position on the other takayna tracks. Did he give a commitment that that Aboriginal heritage would be done? No, he did not. Will they give a commitment that they are going to refer these projects to the federal government for assessment under the PPC Act? We have not asked the question but I can probably pre empt the answer: not if they can get away with it. Not unless someone from the Aboriginal community takes them to the Federal Court.

This is why trust is so low with this Government. This is why the real priority when it comes to Aboriginal affairs is not to prioritise a controversial, unnecessary, non-urgent reform to the Aboriginal Lands Act, when you are not even returning land in the first place, the really critical reform is for the department to be instructed to prioritise rewriting the Aboriginal Heritage Act, ensuring that it is no longer racist, it is no longer archaeologically based, it looks at cultural landscapes, it protects cultural landscapes, and it offers genuine mechanisms for Aboriginal people to protect their heritage and to have a voice.

It is incredibly significant that Aboriginal people have a proper say. The minister's words say that the current act is not working, but it is abundantly clear when you read the Aboriginal Heritage Council, the statutory body established by the minister, which in its last year in review report identified that:

Four permits were opposed by council but subsequently approved by the minister.

What are those permits? Four times through the Aboriginal Heritage Council a view was put to the minister that a permit should not be provided for a development. The minister ignored that view and issued the permit. What are those projects? I do not know. I know the Land Council does not know either because they wrote to Aboriginal Heritage Tasmania and asked. This report says four permits were opposed by council and subsequently approved by the minister. What are they? On what basis were they approved by the minister? Can you give us some transparency?

The response from Aboriginal Heritage Tasmania was to RTI it. The Aboriginal Heritage Council, so-called 'custodians of Aboriginal heritage', according to this Government, was told to RTI information about its own heritage and which bits of heritage were issued a permit, presumably for destruction, by a minister against the advice of his own heritage council.

That is how perverse we as a community treat Aboriginal heritage. That is how disrespectfully this Government treats Aboriginal people. That is why the Aboriginal Heritage Act is the piece of legislation that this Government should be throwing all of its resources into updating. I know that departmental staff have already commenced consultations. I know that OPT is working on legislation. That is great. Let us turbocharge it. You are putting the Aboriginal Lands Act on the backburner. More work needs to be done, probably none at all, but do whatever works needs to be done. It has been directly requested by the Aboriginal community, and it is abundantly clear in this place when you lay out the situation, the priority has to be the Aboriginal Heritage Protection Act. Something has to happen.

The Government identified that there were a number of things that could be done in the absence of new legislation. There are other processes that fall outside of legislation that could be done. For example, there could be a review and amendment of the assessment procedures under two important non-statutory processes for public land - the Reserve Activity Assessment and the Expressions of Interest for Tourism Opportunities in National Parks, Reserves, and Crown Land - to improve transparency and ensure that consideration of Aboriginal heritage, including cultural landscapes and appropriate consultation with Tasmania's Aboriginal community, are prominent requirements in the very early stages of development and assessment proposals.

We know that the RAA (Reserve Activity Assessment) has yet to be reviewed properly. It is not a statutory process. As far as we are aware, it has not improved the level of consultation or consideration of Aboriginal heritage. That is abundantly clear, because there are proposals, such as the South Coast Track huts, South East Cape huts, the Lake Malbena development and the Tarkine tracks that are going through RAA processes, or theoretically about to go through RAA processes, irrespective of their immense impact on the Aboriginal cultural landscapes of those areas and irrespective of the strong opposition of Lutruwita/Tasmania's palawa people.

We keep seeing this situation where there is dithering and delay on the very real issues that are of significance to Aboriginal people and their aspirations for their heritage and their land here in the state. I think that is to be condemned. I will urge again, minister, please, park the Lands act, push it out, prioritise the Heritage act, because that is what matters, that is what is being lost every day. To think we are having these huge industrial developments being assessed and ultimately approved against legislation that you said a year and a half ago does not provide effective mechanisms for protection is an absolute travesty. It is a travesty on your approach to Aboriginal heritage. It is an insult on all of us, as non-Aboriginal people, with a responsibility to protect and celebrate our Aboriginal heritage.

Every time we sit, the first thing we do is acknowledge the traditional owners of the land we meet on, pay our respects and so forth. Actions in this House render that acknowledgement meaningless all too often.

You cannot delay democracy. We do not support this bill. We hope the House rejects this bill. We think that rolling these elections on, as usual, and pushing out the Lands act into perpetuity is the best course of action. Prioritise heritage protection and get on with the job of actually returning land to Aboriginal people. There are a whole raft of mechanisms by which land can be returned. It is telling that in one year since the Aboriginal Land Council launched its private land return campaign, a whole website that, for the first time, is the Aboriginal community putting out its hand and saying, 'Please, if you have more land than you can manage, if you have land that you cannot manage at all, if you do not want the land you have anymore, we are here to take it back. We own less than one per cent of the state that we used to own 100 per cent of and we are here to take it back. We have the mechanisms in place in terms of governance, we have the rangers and the people on the ground who know how to manage this land. Give it back and we will look after it'.

Two people in a year have come out and said, 'I have a block of land I do not need anymore, please have it'. It puts this Government to shame. It puts this House to shame. It is a signal and an indicator, it is something that we as a House can aspire to. We have so much more capacity to give back, so much more land in terms of hectares, so much more land in terms of significant areas of cultural heritage, landscape and other values.

There is so much capacity for this House to right some of the wrongs of the past, to right the wrongs of people who were in here before us, yet we are getting shown up by the private sector. We are getting shown up by people in western Sydney who own a little block of land in Mathinna, or a lady in outer Melbourne who owns a block on the edge of kunanyi/Wellington Park. I think that is a travesty. It is clear that we need to do more, we must do more. It is clear that the Lands act is not the right direction. We will be voting against this bill. We hope the elections are held as per normal.

Under the existing legislation, the ALCT elections elect a cross section of Aboriginal people from across the state. There are two people from the north west, two from the north, two from the south, one from truwana/Cape Barren Island and one from Flinders Island. There is broad local Aboriginal representation on the land council because that is how it is structured. It works. There is no need to change it. I will proudly cast my vote in the negative when it comes to this bill.