UNDERWOOD, Ms Brenda, Chairperson, Arabana Aboriginal Corporation [by audio link]

[14:34]

CHAIR: I now welcome a representative from the Arabana Aboriginal Corporation to give evidence today. Although the committee doesn't require you to give evidence under oath, I advise you that the hearing is a legal proceeding of the parliament, and therefore has the same standing as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter, and may be regarded as a contempt of the parliament. The evidence given today will be recorded in Hansard, and it does attract parliamentary privilege. Brenda, I now invite you to make a brief opening statement, before we open up for discussion.

Ms Underwood : I beg your indulgence because I'm quite nervous and it's the first time I've done this, but I thank you for allowing me to speak today. I'm a proud Arabana woman from South Australia. I am the chairperson of the Arabana Aboriginal Corporation. I live on the land of the Ngadjuri, and today I speak on the land of the Kaurna people. I acknowledge them to be the custodians of this country, and I acknowledge their elders past and present, and their young, for they will hold and respect the connection to land, water and culture for generations to come. I thank them for allowing me to come to their country and do the work I do. I acknowledge my ancestors, who sit with me and guide me in all I do. I acknowledge all the elders of the people I meet today and pay my respects to them.

Today we are here to speak because the standing committee is doing an inquiry about the Juukan Gorge tragedy. I'll speak to that for a moment. It's a national treasure destroyed and a national tragedy. Unfortunately, it is not seen as this; if it were, we would not be here discussing the outcome today. If I sound cynical, you will have to forgive me, as the past speaks for itself. The Juukan Gorge tragedy probably came at the right time in history to make an impact on management and the national knowledge about how at-risk Aboriginal heritage sites are in this country. However, let us be honest: if it were not for the public outcry from around the world, and the actions taken by investors in Rio Tinto, possibly we would not be doing this.

Why did Juukan Gorge happen? The mining company is adamant that it followed the protocols as set by legislation which is meant to protect and preserve sites of significance to the Aboriginal peoples of Australia. There are layers of protection—state and federal. Legislatively, they did all that was required: they spoke to the traditional custodians and they negotiated outcomes if they needed to mine near the sites. They covered all their bases except for one, where they had a vested interest in destroying a sacred place, a place whose stories have been shared orally down generations. Legislation told them, 'You have done all that is required; go ahead'—and they did. Now we have a hole in the heart and the soul of the Kurrama people and the Pinikura people, and a sacred place, which had been there for uncountable years, is gone.

It's long past time for the Australian government to put meaningful things in place to recognise the First People and their culture, and the richness of the history of this land—this dirt, this island—on which we live. If we are to share this place then we all need to care for it. It's long past time for the Australian government to show an interest and some pride in the fact that this island is the home of the oldest living culture on this planet. We need to celebrate the First Peoples and educate Australian people—and indeed the world—about the very diverse civilisations we have right here on this island. The issue is that, up to now, we have not sincerely considered this to be the case. In the interim, we've lost or destroyed many of the things, and we will never know the depth of this. The federal government has the power to act clearly and consistently on behalf of, and with, the First People and protect and preserve what's left. But they have allowed the cancer of state legislation and power shifts to interfere with this.

Aboriginal heritage is not just a phrase or a byword. It is stories and oral history which have guided and supported a civilisation to live by their law and culture, unchanged and flourishing. The whole social system survived without written law, allowing for thousands of years of habitation on what Western eyes see as a hostile continent. The physical sites are just a small part of the puzzle. The last 200 years has been focused on disbanding all that was here. We are at a place where many of the knowledge holders no longer sit with us, and the government has purposely done all it can to destroy any of that oral history and physical history. Today, I'm pleased to have the opportunity to voice the concerns of the Arabana people about the preservation of our heritage—stories and culture.

Something that concerns us greatly is the recent decision to allow drilling to occur on Lake Torrens. Lake Torrens does not have native title status for any group, but it's a significant place for all the groups which surround it, including the Arabana. The Arabana native title includes Kati Thanda / Lake Eyre and a significant area between Lake Torrens, Coober Pedy and Oodnadatta in South Australia. To many, much of the country would appear to be desert, but to the Arabana it's a place of rich abundance of life. The things that sustain that life are what we call mound springs, which are seepages in the southern edge of the Lake Eyre Basin, and they are of great significance to the Arabana people. The springs themselves can be as small as a cup or large enough that you could bathe in them. To us, and to many Australians, they're a beautiful sight in a harsh environment.

Unfortunately, our springs are disappearing. How many have disappeared we are not yet sure. Springs that once bubbled out of the ground and that people used for bathing and living by have disappeared in the last 30 years. The cause of that disappearance of our springs is water usage, with water being taken from the Great Artesian Basin by mining companies, petroleum companies and pastoralists. Just in South Australia, we estimate that there is around 200 megalitres of water removed from the gap each day. That is over 70,000 megalitres per year. This is just an estimate. This does not account for domestic or town use, which will add to this number significantly.

The Arabana people have asked the board of directors of the corporation to protect this spring. The big question is how. We are told that Olympic Dam will continue for at least the next 60 years, and other mining companies, pastoralists and petrochemical companies will continue for untold years. Many of the springs have disappeared in living memory of our families—around 34 years. So we've got a great fear that in 60 years there will be none left whatsoever. The Arabana are currently in negotiations with BHP for the first time in over 30 years, but there is no opportunity for us to address the usage by pastoralists or petroleum companies, which is responsible for four-fifths of the water usage.

Under the South Australian Heritage Act, there is no way that the protection of the springs can be guaranteed. Under the act, the minister for Aboriginal affairs can authorise the destruction of the springs. The only requirement is that he must call a meeting and consult with us. Then he can give authorisation to anyone to continue to take water out and destroy our springs. He alone can make that decision. Should damage occur, the maximum penalty for a body corporate is $50,000. What a joke! In other cases, the penalty is $10,000 or imprisonment for six months. Who collects these fines, and who monitors and identifies damage? It is a conflict of interest, surely, that the South Australian minister for Aboriginal affairs is also the Premier.

Unless something is done by the Commonwealth, our springs will disappear, and with them will disappear the unique flora and fauna that live in and around the springs. There are many endemic endangered species of plants, fish, birds and invertebrates that depend on these springs, and they, too, will disappear. These are such important decisions about the preservation of our history, which is the longest history on earth. We, the Arabana, have a precious resource which winds through our very being and can be destroyed in a moment in time. We have no control over this because legislation, both state and federal, has total control over the decisions being made regarding these spiritual threads which hold our culture and people together.

Consultation with us, before the government decides to allow the continued destruction of these precious parts of our very being, is not enough to mitigate the constant destruction of their existence. Our families and language groups are devastated because of government legislation which removed us 'for our own good' and destroyed our family and tribal structure, and which now continues to systemically destroy our connections to our ancestors as well. Aboriginal peoples need to be the voice in this space. We should be sitting at the table of the decision—not the financial fiends who think of nothing but how to collect their next tax windfall. I would therefore urge you to inquire into what's happening with water in the Great Artesian Basin—the use of it not just by BHP but by the pastoral and petrochemical industries—before our springs, like the caves, disappear. It is unsustainable, destructive of nature and destructive of our culture to allow the springs to die. Will you please enact laws that ensure our mound springs and culture are recognised and respected and protected. I extend an open invitation for you to come and sit with my family at these sites and see the connection to us spiritually, emotionally and historically. It is our very heritage. Come and sit with us and see the destruction not only of a physical place but of our very being. Thank you.

CHAIR: Thank you. You've provide a hell of a lot of information there and we have limited time for questions. Senator Dodson.

Senator DODSON: Thank you, Chair; and thank you, Brenda, for the submission you've made. In recent days this committee has received a letter from BHP that says it's prepared to voluntarily operate under the 1988 Aboriginal Heritage Act when it comes to the management and protection of cultural areas in your region. Did the company discuss any of this with you and do you think they're likely to change their attitude to the privileged position they hold?

Ms Underwood : In my opinion, the discussions we're having with BHP at the moment show that they certainly intend to behave in that way. I can proudly say that the Arabana people have been at the table with BHP for two years, and in the last two months we have made significant changes in speaking to each other respectively and discussing what's going to come as a part of our relationship. I can't speak for the future, but I can say that we continue to speak to them because we have confidence that they will do that.

Senator DODSON: What are the practical things you'd like to see BHP do?

Ms Underwood : Do you mean in managing our heritage?

Senator DODSON: Yes, and in the impact they cause on your country.

Ms Underwood : In our discussions with BHP, we certainly focus on the water issues and the springs and the taking of water from the gap. To be honest, all we can hope for is that they are looking at different options for how they get their water, where they get it from and what happens. There are two well fields that they use for OD: well field A, which sits entirely on Arabana country, and well field B, which extends up into Dieri country. In our discussions, the Arabana people have had the outcome where they have turned the use of well field A down because we have evidenced the destruction of the springs. That's not to say they aren't using it anymore or that there can't be more positive things happen in the future; but as long as they stay open in the discussions and we're able to garner that power in the decision-making, or at least have a seat at the table, we have a better chance than we have ever had before. I feel like though that, for the Arabana people to have that voice, we more so require assistance from federal legislation to give us the right to have that veto around the destruction of heritage sites.

Senator DODSON: From your discussions it's clear that BHP is likely to want to use more water. You mentioned that something like 70,000 million litres a day get used out there. Is BHP seriously thinking about a desalination plant and pumping water from the ocean?

Ms Underwood : I need to clarify my data there. BHP currently remove between 34 and 35 megalitres per day. They are the smallest users of waters. Pastoralists and the petrochemical companies use the remainder of the 200 megalitres a day, so the pastoralists and the petrochemical companies use around 165 megalitres a day. BHP use around 34 or 35 megalitres a day. My understanding is that they have certainly had internal discussions around a desal plant. They're also very mindful that that has consequences for heritage and environmental destruction as well because they'll be taking seawater from a certain area. It's a multilayered issue that we need to wade ourselves through. The major concern for the Arabana is that we want to have a voice in every space, not just mining. We need to have a look at all of the users of the water from the GAB that have an effect on our springs.

Senator DODSON: Are your sacred places and the mound springs being impacted simply because of BHP's use of the water or are these other usages also impacting it?

Ms Underwood : I think the numbers speak for themselves in that 200 megalitres a day are used and 35 of them are used by BHP.

Senator DODSON: I'm trying to get clear whether the pastoralists and the other explorers are using the same bore fields as BHP.

Ms Underwood : They're not using the same bore fields, but they're using the same water source. They have their own bore fields and they have their own method of usage. The pastoralists sink their own bores. My understanding is that there's no real data about the daily use on any of them. The petrochemical companies use water in order to remove petrol and gas from the ground, which is fracking.

Senator DODSON: In terms of reviewing legislation, have you had any involvement with the South Australian government in any reviews of its cultural heritage legislation?

Ms Underwood : I've submitted to both the heritage and the governance inquiries. I've received notification that they received my submissions, but I have not yet been invited to speak or to take part in those. Of course I would very much like to do that. It is a national problem. It's something we need to work at at a national level. I feel like the layers of legislation are not giving the Aboriginal people Australia-wide the ability to manage our own heritage and our own self-determination. I feel like there are too many chiefs to answer to. I truly believe that, if we had federal legislation which had to be used by the state governments, it would be a much clearer system.

Senator THORPE: Thank you for appearing today, Brenda. I am deeply sorry and heartened by your country being desecrated and under the extreme effects of mining companies. My question relates to mining companies. What is your view of mining companies evading environmental and heritage protection laws?

Ms Underwood : Obviously my view is definitely in the negative. It's not always evading, either, by the way; it's using them because they're not worded strongly enough. I feel like they also don't have an inclusion of the Aboriginal people in the final decision-making. There's nowhere where we have real impact or realistic and true input into a decision. We're guided by legislation as well. What we can and can't do or say is often governed by legislation. For instance, if a mining company decides that they would like to go and explore somewhere, we can't just say no, because if they say we're being difficult then they can go to court and get access anyway. So I feel like, if they had legislation that was strong enough and we had a say that was strong enough, we would make a change in this country that has never been seen before.

Senator THORPE: I gather that free, prior and informed consent has not been any part of the process thus far.

Ms Underwood : I've been the chair of the Arabana Aboriginal Corporation for two years, and in that two years we've made major steps forward with BHP. Our board is quite strong, and we quite strongly directed BHP as to what we would and would not commit. We've had some lively debates, but I think we're at a place now where we're speaking respectfully to each other. I feel like legislation could make that very much an easier trip than what we've had.

Senator THORPE: It's great to hear that there's a respectful conversation happening between your mob and the mining company. Are the mining company open to coming up with an agreed outcome with traditional owners? Forgetting about the state government legislation, are they prepared to go a step further and work with the TOs around the legislation to ensure an outcome that benefits everybody?

Ms Underwood : My understanding is that they've already put forward a submission that states that they are going to work with the later legislation, which does not rely on the indenture that was put in place for Olympic Dam. Speaking for the Arabana people, I can honestly say that at this time we are certainly a part of any decision-making to do with any activity on Arabana country where BHP are concerned. That's not to say that we shouldn't have legislation to make that a stronger voice.

Senator THORPE: Yes, absolutely. How much destruction has occurred so far and what will it take to stop any further destruction immediately?

Ms Underwood : For a lot of the springs where we could possibly halt destruction, it would be BHP stopping the use of wellfield A, and we're in discussions with them around when that will happen. We're hoping it'll be in the near future, because they do understand that and, again, we've had lively discussions around this. They have an understanding of the destruction that will happen if it continues, and we remind them constantly, I can say. But the destruction around the springs on our country will continue because there will always be the pastoralists and there will always be the petrochemicals, and we have no avenue of opening discussions with the pastoralists, because the Pastoral Act prohibits that, and the petrochemical companies don't actually work on Arabana country. I think sometimes they like to think that the GAB has fences. But water doesn't have fences, and I think they need a bit of education around that. They feel that, if they use water a few hundred kays away from Arabana country, then it's going to be okay. And I think that that's where we fail. We fail to recognise that the GAB is an enormous resource for Australia and that the destruction of it or the abuse of it will have wide ramifications across the country, not just in our country.

Senator THORPE: Do I gather that, in terms of the widespread ramifications for the rest of the country, that's based on songlines and water security? Am I right in saying that?

Ms Underwood : Yes. Absolutely. If you look at the songlines, they go through quite a few language groups. There's a songline that actually goes from the Northern Territory border all the way down to Port Augusta. That has an effect on five-ish language groups—sorry if I'm wrong there—and all of that country would be adversely affected by this water use.

Senator THORPE: Do you believe that those five other language groups and the ramifications for them are being taken into account?

Ms Underwood : I think that they all understand exactly what is happening. I think that right now, because of our interaction with BHP, Arabana have a slightly louder voice, but I think that if there were a federal mechanism where everybody had a voice and if we were really serious about looking at preserving what's there and trying to prevent further damage, it would have a better outcome.

Senator THORPE: So there could potentially be five other language groups down the line that, as part of this process, haven't had a say in how this affects their country?

Ms Underwood : Yes. I could be wrong in the number, to be honest. I'm just thinking off the top of my head. But there would definitely be other language groups that this would have a great impact on, yes. There are areas that cross over a little bit, and environmental areas, such as creek systems, have changed. All sorts of things have changed, which has an impact across any language group that might neighbour that area. Lake Torrens is a perfect example.

Senator THORPE: Did you want to give that example?

Ms Underwood : Lake Torrens sits at the bottom of Arabana country, and we have stories that touch on Lake Torrens. The Adnyamathanha people have stories there. The Kuyani have stories there. The Kokatha have stories there. The Nukunu have stories there. The Barngarla have stories there. It doesn't have native title held over it by any one of those groups. But it's significant to most of those groups. There are significant things that have happened in the ancient history of women's business and men's business. There are significant stories throughout there, and they're being disrespected by a state Aboriginal minister saying that a mining company can drill there. Who is there to stand up for it, because nobody has native title?

Senator THORPE: I have a number of questions, but for the interests of time I'll put the rest on notice. With the activities of the mine and the pastoralists, do you believe that this would also expedite the climate challenge that we have ahead of us?

Ms Underwood : Yes, it would have to, because it's totally changing the environment out there.

Mr SNOWDON: Brenda, thank you very much for your evidence. I'm pretty happy—happiness is a state of mind, obviously. I'm very pleased with the evidence you've given. I want to confirm that you're in positive discussions with BHP. You've made a submission to the South Australian heritage legislation review and the governance review. Did those submissions address the issues around the pastoralists and the petrochemical industries?

Ms Underwood : The submissions I sent to those weren't pointed. I sent submissions that were broadly around the issues we have in those areas. But if I were invited to speak I would certainly bring up other relevant issues, as I have today. With BHP, I can say that we are having a respectful dialogue.

Mr SNOWDON: Has there been any attempt by you or anyone you're aware of to try and interact with the pastoralists around their water usage and its impact upon your sites?

Ms Underwood : We've made initial attempts about bores on country. We have a ranger program that works on our country. It's a federally funded ranger program and they're out there on a daily basis. They have given feedback around pastoralists' use and if there's water, free-flowing bores et cetera, so we've made tentative contact attempts. We're always referred back to the pastoral law, where we don't have the right to speak to them, in that space. I am currently trying to ensure that I can have a voice, in that space, because I feel that my numbers speak for themselves: 200 megalitres a day; BHP are using 35 megalitres. The other 165 megalitres needs to be addressed. That is something the Arabana Aboriginal Corporation and I are quite determined to do.

Mr SNOWDON: Thank you very much for your evidence. You've done really well.

Ms Underwood : Thank you very much.

Mr SNOWDON: I think the evidence has been fantastic. Thank you.

CHAIR: I do too. For somebody that said they were so nervous, you were very clear and very precise in the presentation that you gave. I thank you very much indeed for that. You basically covered all of the questions that we were going to ask, so good on you.

Ms Underwood : Thanks for that.

CHAIR: Thanks for coming. You'll be asked to provide any additional information. I know that Senator Thorpe said she's got a couple of questions she'd like to forward through to you, and she'll forward those in writing through the secretariat. If you can get your responses back to us by Tuesday 20 July 2021, that would be greatly appreciated. You will be sent a copy of the transcript of your evidence and will have the opportunity to request corrections to transcription errors. Again I say that, if you have the opportunity to appear before a committee again, you can do so with a great deal of confidence. You were very, very clear and precise in the evidence that you gave, and there was no evidence whatsoever of any sort of nervousness. The clarity was very useful. Thank you very much indeed.

Ms Underwood : I thank you, and I just re-extend my invitation to come and sit with us, with me and my family, and have a look at the damage that's done out there but also at the beautiful family that we are. For Aboriginal people, there's nothing better than sitting on country, and I extend that invitation again.

CHAIR: I thank you for that, and that will be noted through the secretariat. When we get a chance, when we're allowed to travel again post COVID, which is causing all sorts of challenges at the moment, we'll certainly keep that in mind if we're travelling that way. We'd certainly like to take up your invitation. Thank you very much indeed.