Aboriginal Law Bulletin; Conservation Council of South Australia --- "Comment on S.A. Heritage" [1987] AboriginalLawB 39; (1987) 1(27) Aboriginal Law Bulletin 10

• Comment On S.a. Heritage
• Ccsa Comments

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Comment on S.A. Heritage

The South Australian Government through the Department of Environment and Planning's Aboriginal Heritage Branch has prepared a Bill to protect Aboriginal heritage sites and objects.

The Bill is for an Act to provide for the protection and preservation of the Aboriginal heritage; to repeal the Aboriginal and Historic Relics Preservation Act, 1965, and to amend the South Australian Heritage Act, 1978 and the Mining Act, 1971.

The Conservation Council of South Australia (CCSA) sees some problems with the Bill, and 'feels that it may not reflect the best interests of the Aboriginal community in its endeavour to protect mining and other exploitative interests' according to Marcus Beresford, the Council's Executive Officer.

The following is a compendium of their remarks for the Bill:

CCSA Comments

A Bill is currently undergoing public consultation in South Australia as a prelude to a new Aboriginal Heritage Act being passed by the State Parliament. The proposals would give better protection to Aboriginal sites and objects in the State, but unfortunately they have serious short-comings. The Bill would establish an 'Aboriginal Heritage Committee' comprising Aboriginal people, and a 'Register of Aboriginal sites and objects.' A fund would be established to acquire land or objects. As well there would be offences prescribed for damage to objects, and sites, and failure to report such finds, remains or sites after 'discovery'.

One concern with the proposals is Section 12(1) (b), which provides that Ministerial determinations to the effect that a site or object should not be entered in the Register of Aboriginal Sites are 'conclusive proof that the site or object is not an Aboriginal site or object.' This provision seems unnecessary and unacceptable, containing the absurd presumption that the Minister can canvass all information and consult with all appropriate persons in making his or her determinations.

Section 12 (1) (b) should be deleted or at the very least modified to read that such a determination may be treated as 'evidence' that the site or object is not an Aboriginal site or object.

In addition, some public right of appeal against a determination by the Minister that a site or object should not be entered on the Register should be provided for.

In Section 13 the consultation provisions prior to determining entries to the Register seem unnecessarily exclusive. Whilst not arguing with the view that the proposed Committee, Aboriginal organisations, traditional owners or other Aboriginal persons are the people with whom consultation should take place first and foremost, there may be other appropriate people or organisations with information on Aboriginal sites or objects-for example, S.A. Museums staff, non Aboriginal archaeologists, anthropologists, conservationist or the public. There could be an additional provision such as:

'13 (d) Such other appropriate persons or organisations likely to have information on the matter.'

The Second Schedule to the proposed Bill dealing with the Mining Act 1971 amendments provides some safeguards, but in the Conservation Council's view these would not be sufficient. Under the Bill, in granting mineral exploration licences or mining leases, the Minister of Mines may set special conditions for the protection of sites.

However, the Minister of Mines should be required by legislative provision to advertise for and to receive comments or objections relating to licences and leases affecting sites. This is currently only implied by the Act and largely at the Minister's discretion.

In addition, the Minister of Mines should be required to consult with the Minister for the time being responsible for administration of the Aboriginal Heritage Act, and receive the latter's assurance that any conditions to be imposed to protect the site or object against detriment resulting from the conduct of mining operations. Some public right of appeal over such decisions seems desirable. Such a requirement could be best accomplished by a more substantial amendment of sections 30(2), 34(6),4 l a(5) and 52(4) of the Mining Act offering similar protection in relation to natural beauty, flora and fauna, buildings of architectural or historical interest, objects or features of scientific interest.