Jonathon Duniam (Tasmania, Liberal Party, Shadow Minister for Environment, Fisheries and Forestry) Share this | Hansard source

I think it's important to remind ourselves that we are simply debating a motion to have an inquiry into a matter. On at least one occasion in this debate, it sounded like it was a lot more. But it is purely a motion before the Senate to send a matter off to the Senate Environment and Communications References Committee to inquire into matters that a number of speakers have spoken about—that is, the operation and outcomes of cultural heritage laws at the levels of government in which they operate. I don't know what's wrong with inquiring into laws that many in this country perceive to be broken or in need of beefing up. There is no reason for us to not have scrutiny on an area of law that is quite topical at the moment for a range of reasons.

It's also worth pointing out, as Senator Cox mentioned in her contribution earlier, that this government promised new standalone cultural heritage laws to replace the outdated and broken ones we have operating in this country now. The act—insofar as it pertains at a federal level to the McPhillamys goldmine in Blayney, which I'll talk about at length during my contribution—is 40 years old. It predates land councils, and it predates native title. It is out of date and not fit for purpose. But that is the piece of legislation that the minister has relied upon to make a declaration.

The government's tried to squirm away from this by saying: 'It's only a partial declaration on part of the site. It is not a measure that kills the mine.' In fact, if you talk to anyone that knows anything about mining, they'll tell you that if you can't have a tailings dam, you can't have a mine. The thing will not proceed. We don't need to go into the details about that, but the point is that we were promised that the cultural heritage laws would be replaced, fixed or made fit for purpose to ensure that we don't have terrible outcomes like the ones we've seen here—which are rightly being appealed by the proponents of McPhillamys goldmine—and to ensure that those sorts of situations don't arise ever again.

This is an opportunity to assist the government to get these laws right. At Senate estimates, a week and a bit ago, we were able to interrogate the officials in charge of this very slow-moving piece of work. Again, as I say, there was a promise that we would have laws in this parliament, passed during this term of government. There is no sign or hope of that happening at all. When I asked the officials where things are at, as did Senator Cox, the response I got was: 'Well, we're working with stakeholders to figure out what the problems are. We're trying to understand what needs to be fixed.' I cannot believe, nearly three years on, that we are still trying to figure out what the problems are. It was urgent off the back of Juukan Gorge. It was urgent to reform the laws to ensure that those things never happened again. It was urgent to ensure that First Nations people have a voice when it comes to protection of country. But now—well, we'll do it after the election; we'll kick it off into the long grass. I'm not even sure that this government will promise to address these broken laws after the next election. It was a promise before—they've failed; they've not delivered—and of course we're left with the situation we're in now. We do not know whether it will remain a priority or whether the government was just paying lip service to certain groups in our community ahead of the last election

I remind senators that this is just a motion to establish a references inquiry into broken laws, to ensure that we have a better system operating in this country, and to provide guidance and advice to ensure that we can actually get things right for all, not just some, in our community. This inquiry would enable the government to get some much-needed information to hurry up this long, protracted and ridiculous process.

As I said before, these laws are outdated, from 1984, and predate all of the other arrangements and processes that have been put in place around matters for First Nations—native title, land councils—to try and give effect to a robust regime, to ensure protections do occur. Is it perfect? No. There will always be work to be done, which is why we need to reform these laws and replace the 1984 act.

We make a point, as I did earlier today in response to a terrible decision by this government to double down on the appalling decision to not overturn Minister Plibersek's decision around the McPhillamys goldmine. We can tinker around the edges with the Future Made in Australia Bill. We can tinker around the edges with other programs and measures, spending allocations within budgets to try and generate productivity. We can tinker with the environmental approval laws. We could make them the best laws in the world.

But, in effect, section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is so open-ended that anyone of Aboriginal and Torres Strait Islander heritage anywhere in the country who fears for the desecration of a particular piece of land to which there is connection anywhere in the country can make a written or oral application. There is no limit to that. It can be anyone, anywhere, anytime, provided those measures are met.

The problem with the process—the laws as they are set down—became very, very evident in Senate estimates. It is, in fact, borne out in the section 10 declaration signed by the minister. I refer senators to paragraph 6.33 of the minister's statement about the making of the declaration, where the minister says:

I note that the reporter—

that is, the section 10 reporter, an anthropological expert, someone who knows what they're talking about and who was picked by the government to do this report—

expressed the view that the evidence at the time of the Section 10 Report did not provide a basis for concluding that the specified area—

that is, the area that they've now said that, under this declaration, is not fit for having a tailings dam—

is of particular significance to Aboriginal people.

It does go on to note that further evidence was provided by the applicants that made the section 10 application. None of the evidence that was tendered later on, over a four-year period, and there were multiple versions of information presented, went back to the section 10 reporter—the appointed expert, the person with anthropological and cultural heritage expertise—to enable them to make a determination.

Instead, we had the officials, who are doing their job, abiding by the law, telling us senators that this is perfect and that this system is working as it should. We had six rounds of consultation and procedural fairness. Hang on. No, all they did was seek further information from the applicant, and then they said: 'We found this does not have cultural heritage significance.' The applicant went away, looked for something else, found something else, brought it along, went back to the proponent and said: 'Can we test this with you? Does this make sense to you? Does this claim of Indigenous cultural heritage make sense to you?'

They kept bouncing off the applicant and the proponent for six rounds. At no point did the government go back to the appointed expert to test any of this. None of it went back past anyone who would know anything, beyond the applicant and the proponent. The bureaucrats in the department acted as judge and jury in this open-ended process. That is not right. This is why we now find ourselves watching legal proceedings unfold relating to the McPhillamys goldmine. I will watch with interest how these laws are tested.

But the fact is that it is open-ended. Anyone, anywhere meeting the criterion under the act can make a claim. That means there will be investor uncertainty, and that is a bad thing. Investment in our country is not a bad thing, nor is seeking people to come and make a choice to invest here, where we have good environmental laws and regulations at a state and federal level. I will echo what others have said, which is that this mine proposal had every single state and federal environmental approval required met. It was approved. They'd spent, in acquiring the site and going through the processes, $192 million getting to this point.

Despite going through all of those robust processes, including cultural heritage processes through the state planning schemes, this act was activated and weaponised, frankly, as even some in the government have said. There was an article recently in the Australian newspaper, where it was stated:

Senior government sources have also revealed they have witnessed an increasing use of section 10s—

that is, these applications under the ATSIHP Act

to try to stop projects after all other avenues have been exhausted.

That says to me that there are people in government that know what is going on.

There is a suggestion that investors have a guide—not when, out of the blue, out of nowhere, with no robust process occurring under these laws, this can happen to a mine proposal that has been in the works for five years and has had nearly $200 million spent on getting it up and to the stage where they should have been digging a hole in the ground, extracting resources and generating royalties revenue for the state of New South Wales for hospitals and schools and creating 800 jobs. To suggest that somehow they have guides, when they are blindsided by this—that is not a good legal framework for governments to be making proponents go through.

There was a lot of emotive language used in Senator Cox's contribution—and I understand that—but, again, all we are doing here is seeking to set up an inquiry. The Greens have an amazing way of using words to inflame things, to conflate things, to make people think that things are worse than they are. To try and weaponise things like this and to try and suggest that—