Native Title Year in Review 2022-2023

What you need to know

• South Australia has recently released draft legislation to amend the Aboriginal Heritage Act 1988 (SA).
• The amendments propose significant increases to current penalties, further penalties on top of fines and imprisonment, and clarification of the obligations to report Aboriginal cultural heritage discoveries.

What you need to do

• Proponents operating in South Australia should monitor the progress of the review and take the opportunity to participate in any further consultation undertaken by the State Government.
• Regardless of whether the amendments are enacted, proponents should be aware that under section 20 of the Act, they must notify the Minister of any cultural heritage discoveries as soon as practicable, regardless of any other agreed protocols in a cultural heritage management plan.

SA releases draft Amendment Bill 

In March 2023, the South Australian Government released the draft Aboriginal Heritage (Miscellaneous) Amendment Bill 2023 (SA) for consultation.  

The Government specifically noted that the changes to the Aboriginal Heritage Act 1988 (SA) are proposed "in line with a national movement to strengthen Aboriginal heritage protection". We foreshadowed this movement in our Native Title Year in Review articles "The long shadow of heritage destruction: Fundamental reset of Aboriginal cultural heritage protection in Australia" (2020) and "Modernisation of cultural heritage protection legislation begins" (2021) where we looked at the implications of the Joint Standing Committee on Northern Australia's Interim and Final reports into the destruction of Juukan Gorge. 

The proposals in the draft bill focus on three key areas. 

Significant increases to penalties for offences under the Act 

The draft bill proposes to increase fines by as much as twenty five times, and to either double (from 3 months to 6 months) or quadruple (from 6 months to 2 years) maximum prison sentences. 

Further, under the current Act a person may face either a fine or imprisonment for committing an offence. The draft bill proposes that both fines and prison sentences could be imposed.

The proposed amendments would mean that South Australia has some of the most significant penalties for causing harm to cultural heritage in Australia.  However, the penalties are still not as significant as those that have recently commenced in Western Australia. See "1 July 2023 - WA's new Aboriginal heritage laws have commenced". 

Additional penalty orders beyond fines and imprisonment. 

In addition to any penalties for offences under the Act, the draft bill proposes that a court may also order an individual or company to:

• pay money towards the repair, restoration or reinterment of Aboriginal heritage, or any other costs incurred to make good any other harm;
• pay an Aboriginal party a sum determined by the court for reasonable costs, or compensation for harm suffered;
• pay an amount estimated by the court as an "economic benefit" that was received as a result of the contravention; or
• take specified action to publicise the contravention and its consequences – a ‘name and shame’ provision.

Clarification of the obligations to report Aboriginal cultural heritage discoveries

Further proposed amendments of the Act clarify that: 

• if there are any discoveries of Aboriginal heritage, work must immediately be stopped and the discovery must be reported to the Minister, even where the person making the discovery holds an authorisation under the Act; and
• authorisations may be granted to classes of persons and cover all Aboriginal heritage in an area, whether known or unknown. 

These amendments specifically respond to the 25 August 2022 South Australian Supreme Court decision in Dare, Bilney & Ors v Kelaray Pty Ltd, Premier of South Australia [2022] SASC 91. 

Dare v Kelaray concerned a judicial review application to set aside the Premier's determination – as the responsible Minister – under section 23.  The determination authorised Kelaray, its agents and assignees to damage or interfere with any Aboriginal site, Aboriginal object or Aboriginal remains, subject to certain conditions. 

In making his determination, the Minister had relied on Kelaray’s Chance Find Procedures – which was part of its CHMP – to protect Aboriginal sites objects and remains.  The Chance Find Procedures allowed interference with an object or site in accordance with the advice of expert anthropologists or Aboriginal representatives of its choice, before the Minister was notified. 

At first instance, Chief Justice Kourakis set aside the Minister's determination, finding that:

The breadth of the authorisation to damage, interfere or disturb Aboriginal sites, objects and remains allowed by the [Chance Find Procedures] subverts the statutory requirement of s 20 of the Aboriginal Heritage Act that any proposed action in relation to a particular object or site be brought to the Minister’s attention as soon as practicable after its discovery so that the Minister may consider whether or not, and how, to best protect items of Aboriginal heritage. 

The Chief Justice's decision was overturned on appeal in Kelaray Pty Ltd v Dare & Others [2023] SASCA 46.  The Court of Appeal held that the Chance Finds Procedures did not subvert section 20 of the Act, because the obligation under section 20(1) to report any discovery of Aboriginal heritage as soon as practicable remained in force, regardless of any conditions imposed upon the Minister's authorisation. 

The draft legislation was released before the Court of Appeal handed down its decision in Kelaray v Dare.  Regardless of the overturned decision, the proposed changes to the Act would ensure that all heritage discovered while working under an authorisation is reported to the Minister before it may be impacted.  Any activity occurring under the authorisation would have to cease immediately, until:

• the Minister authorises the activities to resume;
• the Minister gives a direction for protecting and preserving the heritage; or
• a prescribed period passes after the day on which the proponent provides a proposed methodology for avoiding or managing the heritage. 

Currently, activities are not explicitly required to cease after heritage is discovered, but a person must not excavate land for the purpose of uncovering any heritage or damage, disturb or interfere with heritage without authorisation by the Minister. 

Next steps?

Consultation on the draft amendment bill concluded on 6 April 2023. Feedback received from stakeholders is now being evaluated and reviewed, but the Government has not committed to any timeframes to report back on key outcomes. 

The outcomes of the engagement will be documented on the YourSAy website. The website indicates that this may include a summary of all contributions to the consultation, as well as recommendations for future action.  

Authors: Brigid Horneman-Wren, Lawyer.