Ms O’CONNOR – Thanks for covering for me. Thanks, minister, and congratulations on being trusted with the Aboriginal Affairs portfolio. I’m sure you realise now it’s a really important and meaningful portfolio to administer. Are you able to provide the committee with an update on the process of establishing that truth‑telling framework and how it will work out for Aboriginal people across the island?
CHAIR – Is this under the other line item under DPAC?
Ms O’CONNOR – Well, it’s heritage as well. I guess the thing is, that heritage is part of the truth‑telling as well.
Mrs ARCHER – I can talk in some broad terms around that and then we can revisit with DPAC as well, if you like. I think that goes to the point that I just made, and Steve may wish to add some more to this. Certainly, I think the Aboriginal community has identified several key priorities: two of those priorities are Aboriginal heritage and also land returns, and so consequently we are prioritising those two items. It is my strongly held view that both of those things are important, and you talked about trust and we often talk about moving at the pace of trust. I think those two things, and the progression of those two things are very important as we move towards truth‑telling and, indeed, to sort of lay a foundation for truth‑telling. We know, as I said, from talking across a range of stakeholders, that there is very broad agreement that these two things are very high priorities.
That to me seems like a good way to build those relationships and build that trust to be able to do the vitally important work of truth‑telling and healing; but I think we have to move at the pace of trust and we have to build trust and relationships as well to be able to do that. Steve, did you want to make any particular comments around that? You don’t have to, but I am conscious that I’m speaking.
Ms O’CONNOR – There’s experts at the table, actual experts.
Mrs ARCHER – There’s experts at the table.
Mr GALL ‑ Look, as an Aboriginal man, land return is absolutely a large priority for us and certainly, the heritage act 1975 is a long time ago, absolutely. So from our area of responsibility, they are the major focus for us. We are very conscious of the Closing the Gap targets and we are having some in‑earnest conversations about how to move forward with the land return.
We have an exhaustive list of land that has been provided to us through different organisations and individuals in the community, and we are focusing on a handful of those to at least get some assessment done and have a look at how we can start moving this forward, because the reality is land return.
Ms O’CONNOR – That’s right, and we can talk a little bit more about land returns shortly in the next output. It is encouraging to hear that the new Aboriginal heritage legislation is in –
Mrs ARCHER – It’s well‑advanced.
Ms O’CONNOR – Well‑advanced and in full development, and I heard you say that the structure is moving from one where Aboriginal people advise government on heritage protection to being able to make decisions over heritage. How will that work in practice? I mean, if it’s well‑advanced, there must be a reasonably clear idea of the structure that you would establish, the heritage body that you would establish, that has that decision‑making capacity.
Mrs ARCHER – Yes, and I will ask Louise to make some more comments. That’s correct. I suppose the caveat to that, which you may speak to as well, and Steve alluded to as well, is that that’s not without complexity as well and cultural sensitivity. I think it’s reasonable to say we already know that, and Heritage Council members reflect the difficulty of doing that job as it is, and so we are approaching that carefully to ensure that you’re taking people along on that journey, and that it is culturally appropriate and safe for people to be able to engage in that process. That has been part of the process to date and will continue to be, but I will ask Louise to make some more comments.
Ms WILSON ‑ Thank you. The new bill at the moment provides for a new Aboriginal Heritage Council. Currently under the current act ‑
Ms O’CONNOR – The relics act?
Ms WILSON ‑ It’s got a new name, but yes, basically the same with a few tweaks ‑ the Aboriginal Heritage Council is an advisory body rather than a decision‑making body and I know that can be very frustrating for the council at times. Under the new legislation we are proposing a decision‑making body for the Aboriginal Heritage Council, and the council will be responsible for almost all the decision‑making under the act, so that they will be the primary decision‑maker rather than a minister, or purely being an advisory body, which is really important, and there will be some provisions for minister responsibility, but they will be the exceptions rather than the rule.
Ms O’CONNOR – Okay, and through you minister, that goes to what you said, Louise, that the council will be responsible for almost all decisions. What’s the proposed threshold for the ministerial intervention?
Mrs ARCHER – One of the examples of that goes to what I just said, where there may be occasions where the council doesn’t want to or, for whatever reason, determines that they are unable to make that decision or don’t want to make that decision for some reason – some more examples of where that might if you don’t mind – oh, that’s it.
Ms O’CONNOR – Historically, for example, the Property Council has been resistant to Aboriginal heritage framework that provides decision‑making, and therefore potentially a veto, over some developments that may have an adverse impact on Aboriginal heritage. I’m interested, Minister, to hear a little bit more about how you make sure there’s integrity in the authority that you give to this council, so that it’s not just, ‘there’s easy decisions over here we can leave to the council,’ but if it came to, for example – contentious – if it came to a stadium on Macquarie Point that impacted on Aboriginal heritage values, how would that work for government?
Mr JOSCELYNE – One of the concepts which is included in the current drafting actually borrows from other jurisdictions. We’re constrained in the current act insomuch as the only instrument available to make a decision in relation to is a permit. You know, it reflects the age of the act. It’s a very crude, blunt instrument, and it doesn’t provide – the act as it’s currently drafted really provides very little guidance for a council in terms of how to consider decisions for an agency, how to support a council in relation to decisions. At the moment, that’s all policy driven, and that reflects, I suppose, the experience and time of the council and the department.
In other jurisdictions, they’ve introduced and are introducing what’s known as management plans. You’d still have permits in the act, but one of the instruments that is currently being considered is management plans, which will provide for more complex decision‑making, potentially higher levels of –
Ms O’CONNOR – More complex projects?
Mr JOSCELYNE – More complex projects. That complexity could be in terms of scope, time, the complexity of the tenure, multiple dimensions. Interests, as well.
And so, the current thinking is that management planning process would allow for early assessment and consideration by the council in relation to a proponent coming forward with a proposal – similar, but it would obviously be different, from what might happen in environmental legislation at the moment with the NOI.
The council would then work with the proponent, and the proponent would also be required to work with Aboriginal people in relation to the conception and development of a management plan that would identify potential impacts, identify community concern, and then articulate how those matters are going to be addressed in a management plan, which is then ultimately considered by the council.
Now, as the minister has already identified, we’re anticipating there could be situations where the decision‑maker might wish to say, ‘Actually we’d rather not contemplate this at all,’ and that could be for that it’s considered unsafe. And so therefore, we want to have a conversation through this engagement phase which we’re about to enter into next year, to understand how we might deal with that. We want to seek, I suppose, a robust administrative decision‑making piece of legislation, but we’ve got to have – underpinning all of that has to be that sensitivity around it – the design and the guide frames for decision‑making.
Mrs ARCHER – And that has to be led by community. Will touched on it, but I think that all of that happening much earlier in the process than what we currently see now – which is one of the ongoing criticisms of the existing legislation, that it’s ages before that sort of interaction, that assessment is taking place – that’s one of the things that we will continue to work through with community as we move towards the draft being released as well.
Ms O’CONNOR – Can I ask a sort of threshold question of ownership of heritage? It’s not a question that Palawa people ask themselves; they’re very clear about who owns the heritage. Will that be addressed in the draft bill? And from memory there’s an Aboriginal heritage register, and there’s sometimes been question marks over who owns the heritage on the register, who is able to administer it, access it and that sort of thing. Are we resolving those thresholds ethical questions, if you like?
Mrs ARCHER – I hope so and I will ask Steve, obviously some kind of cultural experiences as well to respond.
Mr GALL – Yes, it’s a tricky space. The Aboriginal heritage – one point just prior to that is just the other really important component for our average community to be decision-makers is that management plans will move into a space where we can ensure ongoing management of things. If we do have to have a compromise, some impact, and at the moment it is a permit, but there’s no guarantee for anything else on that property, management plans ensure ongoing management that could be a negotiated outcome so that we do get something out of it for our community.
I just thought that was an important point for management plans. With the register, the register will be central, so it will be statutory register. That’s the intention of it, and that’s because we have to have one version of the truth, especially when it’s interfering with everybody’s lives, when you interact with Aboriginal heritage, and that’s how we have to have accuracy, we have to have a good solid basis for imposing a process on somebody.
In my mind that is a government role to ensure that happens and that it is able to comply with compliance enforcement and all the other things that we need to deal with as administrators. The information itself, absolutely is Aboriginal community-owned information, or some of it, not all of it, because some of it will be business information it will be private information from people.
It is complex the information that’s on the system, but certainly the Aboriginal heritage site information and location of that is Aboriginal-owned.
Ms O’CONNOR – Sorry to interrupt, but the site mapping of heritage, how protected is that information?
Mr GALL – Currently or into the future, it will be statutory, which means we will change – so at the moment the register doesn’t exist in law. It is the memory [??] of the Director of National Parks and Wildlife because that’s basically a person has to notify the Director of National Parks as soon as it’s practical when they believe they’ve found Aboriginal heritage and so the register is basically being evolved out of that system.
It has no legal basis, and it has no protections other than the policy setting that we work in and that policy has been developed over the last 30 years. I’ve been in this role for 18 years and we’ve been very strong on that, and we don’t allow access to that information unless there’s good, valid reasons.
We have three pathways into the register at the moment, which is for regulation, for Aboriginal community, and for research. Two of those things go to the council for consideration. The regulatory is obviously a process that people need to go through for the assessment and potential permitting process.
The register itself, at the moment, it doesn’t have any legal basis, but it is captured and we’ve considered this and we work through this under RTI so there are safeguards under the RTI for the information that’s in there. And so there are protections, it’s just not in our legislation, but we are proposing that as a central register to the legislation and so we will have some rules around it.
But the system that we’re creating at the moment will have access for Aboriginal community and that, how that works and we’ve got to work through that with community, about how the access is given, all that sort of stuff but we’ve got a lot of work to do in that space.
As for the actual system that’s being replaced currently and will be live mid next year that will allow for consultants to have access to certain information to do the regulatory process, the Aboriginal community for their purposes will be able to access cultural information as well.
Mrs ARCHER – Just having that single source of truth is really important also for providing a common understanding, which is the other challenge that currently exists around just providing certainty for anybody in relation to it and having less uncertainty in regard to that. And part of that is also about making sure that where we land is something enduring as well, and I have spoken about this before, but we don’t want to have a situation where we have legislation that’s been repealed at some point in the future. We’re working through those things.
CHAIR – Any other questions on Aboriginal heritage? I will let you change the people at the table, minister, for your Aboriginal affairs.
Mrs ARCHER – If you had any questions about land return –
CHAIR – Now?
Mrs ARCHER – Yes, because it would be with these people.
Ms O’CONNOR – I am happy if others go first.
CHAIR – No, you’re right.
Ms O’CONNOR – Minister, as you know, I think it was 2005 that the last lands were returned under the act. A small island or two in Bass Strait, to our shame as a state really. What is the plan for the return of lands to the Palawa?
Mrs ARCHER – Yes. First of all, I agree with that assessment and most people would agree it has been far too long. It has not sat in the too‑hard basket, I think it’s fair to say. We are really committed to both improving outcomes for Aboriginal people and land return is part of that. It’s part of our Closing the Gap commitments. As I’ve said, since becoming minister and as I move around and talk to Aboriginal people, it is a very high priority and a shared priority for Tasmanian Aboriginal people. There’s been a review into the model for returning land. That included three rounds of consultation, including on the exposure draft of the Aboriginal Lands Amendment Bill. It was clear from that consultation there are diverse views in relation to that legislation, both within the parliament and also amongst Tasmanian Aboriginal people. I know the former minister worked to try and build consensus on that. It’s only when we secure that consensus, we would seek to to reintroduce that. We are looking at a whole range of opportunities; there’s quite an extensive list of parcels of land.
Ms O’CONNOR – Of Crown lands that have been identified?
Mrs ARCHER – Yes. So, working through all of those proposals which Louise or Steve may speak about. There are complexities and there’s a range of complexities depending on different parcels of land, but it’s not to say you shouldn’t try to work through them.
Ms O’CONNOR – Of course you should.
Mrs ARCHER – That’s right. I might see if Louise wanted to add to that. It was a question that came the other day. We’re looking at progressing land returns, but in addition, also looking at potential for leases and other arrangements, in parallel, not instead of.
Ms O’CONNOR – This might be a question for you, minister, or Louise. You wouldn’t want to wait until there was a consensus over the Aboriginal Lands Act before taking some steps to return what land you can, would you?
Mrs ARCHER – No. You have to act in parallel. As I said, there’s work to be done obviously, to build consensus in relation to that, but that’s not to say you don’t do the work required to progress that. I will let Louise speak about where that’s at. Thank you.
Ms WILSON – There are a number of parcels that we’ve been looking at. We have a long list and if we try and address them all at the same time, it will take a long time. Some pieces of land are more complex and have more complex issues associated with them than others. We’ve been talking to Aboriginal people about what their priorities are and obviously there’s a lot of different priorities. We really need to look at the parcels of land and what interests exist. For example, with Crown land and some types of reserve land there are existing non-Aboriginal interests, but really important values and land of important value to Aboriginal people. It’s also working through with non-Aboriginal stakeholders, because if there are existing leases for example, then it’s not a simple process of just deciding to return a certain parcel of land. There’s a bit of a process to go through and we are ‑ minister, you have given us pretty clear directions that this is a priority and that we will be working very hard. We have also to consider other portfolios involved.
Ms O’CONNOR – Yes and presumably that would include, for example, the minister for crown lands who you’d have to have a discussion with.
Mrs ARCHER – Sure, but it’s important to note – and you asked the question about why you wouldn’t wait – because there’s clear –
Ms O’CONNOR – Why you would wait until the act was sorted out.
Mrs ARCHER – Why you wouldn’t wait or why I am disinclined to wait.
Ms O’CONNOR – Oh, yes, okay.
Mrs ARCHER – Why I am disinclined to wait is because there’s a direct obligation under our Closing the Gap targets that it clearly relates to land returns. That is why, in my view, we must progress land return.
Ms O’CONNOR – Under the process of returning lands through whatever mechanism you decide as a government to do so, are you looking at, for example, the return of some reserved lands to Aboriginal ownership and management? Are you looking at tenures like indigenous protected areas and those sorts of things so there’s more capacity there to return culturally important areas of country.
Mrs ARCHER – Yes, is the short answer, but I will ask Louise to expand more on what what that looks like in practise.
Ms WILSON – The priorities will be the list we have. It’s quite a long list and I might throw it to Steve in a moment, but nothing is off the table. We’re listening to all proposals and looking at all options. In some cases, for example, there are some parcels that are probably going to be prioritised for land return, but there might be options for joint management.
The Aboriginal Land Council of Tasmania is the organisation established under the Aboriginal Lands Act to be the owner and manager of the land on behalf of Tasmanian Aboriginal people, but other groups might have an interest in the land. We’re looking at all options to try and realise positive outcomes across the board as much as possible, but it really will depend on what Aboriginal people say as we progress this work and what they want. It’s not without its complexities, but we’re pretty determined to just keep pushing through.
Mrs ARCHER – And that’s about identifying what are those barriers, what are the challenges or the complexities on that, and then looking at the ways we can work through them depending on the particular complexities of that situation. As we have said, obviously, ensuring that’s Aboriginal land.
Ms O’CONNOR – I’m deliberately not going to ask you for a list of the areas of land that you’re looking at because I think that could potentially be unhelpful, but Kooparoona niara – which is an area of country attached to the Greater Western Tiers and to the Tasmanian Wilderness World Heritage Area – is subject to what I think would be still an existent request and claim. A request to government to return an area of land that was set aside under a predecessor and the parliament, as a conservation area. Is that a specific area that’s being examined, given that a formal request came through from – I’m pretty sure – the TAC and the Aboriginal Land Council of Tasmania for government to return that land to Aboriginal people as ownership and managers of the land?
Mrs ARCHER – I might ask Steve to comment.
Mr GALL – Yes, we’ve had several formal applications for things of interest from the community. Regarding Kooparoona niara, I guess the position we’re taking is to try and find some of the lower hanging fruit to try and get the ball rolling I guess, to be quite crude about it. We are looking at some that are not as complex that we can start moving forward with as soon as we can to meet these targets. Kooparoona niara is an interesting one in that when the request came in it was for an Aboriginal National Park and that isn’t currently under any legislative framework. There’s got to be some further conversations about what that looks like.
There are a couple of angles we could take. We could push it down the road and go, ‘We’re going to go for the legislative review and create something else under budget’, but we can talk about that in 20-years’ time. Or we can have some conversations once we get to this point with the TAC and that and have a look at what exactly it is that they want, what sort of tenure we’re looking at: is it Aboriginal term land or is it some other lease agreement or something like that.
To work under the current program would be easier than to look at an Aboriginal National Park, I guess. That’s the point of confusion, I guess, from the application was that it was something that was probably going to tie us up into legislative reform for several years. That’s another conversation we have to have, but I guess at the moment we’ve got to build some faith and some strength in our relations with community. We have to get the ball rolling as well. The focus from our conversations, and the minister has driven this, is that we’ve got some parcels that we’re at least exploring now that we can really to see happening sooner rather than later.
Mrs ARCHER – It’s not to say no, it’s really more that it speaks to the complexity across the whole range of parcels that have been identified. I think the easiest thing to do would be to just to keep kicking it down the road.
We can’t do that. This goes back to the issue that I was talking about, about trust and building trust and building foundations of trust for the whole range of other conversations that are ahead of us that are really important, that are about truth-telling and healing and where we go from there. I think we have to build these foundations. I think it’s low-hanging fruit, as Steve said, identifying amongst all of those parcels of land what can we progress more quickly and what might take longer, but not doing nothing in the meantime, I think.
Ms O’CONNOR – Do you have a question?
CHAIR – No, you’re right.
Ms O’CONNOR – Oh, good. First of all, it sounds like there’s lots of work and engagement happening, but is there a notional time-frame on any kind of land returns or a benchmark you’ve set yourself, Minister?
Mrs ARCHER – I think there is complexity to it, as I’ve said, and you’ve identified that some of it sits across portfolio areas as well. Notwithstanding that, like I have been very clear both publicly and certainly with the department, that Aboriginal heritage and land-return are high priorities for me. They are they are my two highest priorities in this space, along with truth-telling, as we have identified. I think it’s important that we and – you will hear said often – that we don’t rush it, that we get those things right, that they’re enduring and importantly that again we’re moving at the pace of trust with our Aboriginal communities as well.
Ms O’CONNOR – On Minjerribah/Stradbroke Island, the Quandamooka people were given land back and that land along the west coast of Minjerribah/Stradbroke Island is now the Quandamooka National Park, and it’s owned and managed by Quandamooka people, and it provides them with an economic foundation.
Obviously, in Queensland there must be some tenure you can designate to an Indigenous protected area. Is the Tasmanian government looking at whether there’s changes that you’d make to the Nature Conversation Act or whatever it is in order to create the opportunity for a specific tenure for Aboriginal land returns, in protected areas? It doesn’t sound like it at the moment.
Mr JOSCELYNE – I think it’s fair to say, and this was actually reflected in the other place the other day, is that it’s certainly been identified that that is something that would need to happen. You’re right, the Nature Conservation Act, National Parks and Reserves Management Act currently do not provide for that, and clearly this is a cross-portfolio matter. We wouldn’t want to speak too much into that space other than to say that within the national parks act there are also some provisions that could be useful as a part of the pathway.
For example, section 29 provides for other managing authorities to be assigned to land that are not the Director of National Parks. Now again, I’m saying what’s in another act because it’s factual, but those are matters that are in of themselves complex in our current legislative arrangements.
