SCHESKE, Ms Rebecca, Director, Nuga Nuga Aboriginal Corporation [by video link]

CHAIR: I'd now welcome a representative of the Nuga Nuga Aboriginal Corporation to give evidence today. Although the committee does not require you to give evidence under oath, I would 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 parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege.

Ms Scheske : Not a problem.

CHAIR: I now invite you to make a brief opening statement, and then we will proceed with some discussion. Over to you, Rebecca.

Ms Scheske : I don't really have an opening statement to make, because I feel that our written submission took in most of what we wanted to discuss, so I'm happy to take any questions from the start.

CHAIR: That makes it nice and easy for us. We'll start with Senator Dodson, if you would like to kick off, my friend.

Senator DODSON: Thank you, Rebecca, for appearing and for your submission. Given your difficulties with the state's last claim standing provision, have you tried to use Commonwealth heritage protection under either the EPBC Act or the Aboriginal heritage protection act to protect your cultural heritage?

Ms Scheske : I'm not a qualified legal professional in these sorts of areas. My understanding is that every conceivable pathway that we've been able to take has been exhausted, and that left us to take all the steps that we did. If there were a stone unturned, we probably would have given it a good push by now. That's my understanding, but I am also happy to look into that further and could probably provide a further submission that would cover that.

Senator DODSON: Yes. I don't think I came across in your submission an application to one or other of the Commonwealth entities, but I may have missed it. If you could check on that, that would be good—and if you could let us know what your experience was if you did make an application.

Ms Scheske : Absolutely.

Senator DODSON: If you haven't made one, why haven't you made one? There are a number of questions there for you to take on notice if you wouldn't mind.

Ms Scheske : Absolutely. I'd be happy to do that because, as I said, for me personally it's quite a difficult territory because it does take in so many different spheres that we're talking about: state and federal acts and laws. Somebody like me, who's pretty much unqualified in any of those fields, needs to rely solely on the expertise of people that we engage to help us along the way. I think something about the whole system that is probably a great disadvantage to a lot of us who are just seeking to protect our cultural heritage is that it is quite a complex process when really all we're trying to do is the right thing by our ancestors and by our country. It does get frustrating that so many things seem so complex in light of that. It's something that realistically, for me personally, should be a very straightforward thing, and I should be able to get my head around the full ins and outs of the whole system without having to rely on such outside help in that regard.

Senator DODSON: You shouldn't be too hard on yourself. It's a bit difficult to understand the Queensland system from an outside point of view, and I'm certainly not a lawyer. What's your understanding of this large-claim standing provision, and why do you think the Queensland government enacted it?

Ms Scheske : If I'm honest, I think that a lot of steps that have been taken in the past by the state in regard to that have been, I guess, to give surety to proponents in most circumstances. To my understanding and knowledge, these projects are quite large, and proponents take on a lot of financial pressures to get things done. So I guess there's been a—I'm trying to think of the correct word. Sorry. But I think it may have been more to keep those interests happy, and that's been to the detriment of cultural heritage, sadly. To remove that has been one of those, really.

Senator DODSON: Yes, I think that's the clear message from your submission.

Ms Scheske : Yes. Continually being disadvantaged by a really flawed act, effectively, has been our experience.

Senator DODSON: Have you had a look at any of the other state and territory laws to see if any of those would be a better model for the Queensland situation?

Ms Scheske : Again, that is not my wheelhouse as far as being able to give a really thorough overview of that goes. I'm sure there have been plenty of people who have spoken ahead of me who have a better understanding and a more intimate knowledge of how that might be applied in circumstances here. I personally would be open to anything that could improve the current state of affairs when it comes to the protection of cultural heritage in Queensland.

Senator DODSON: Yes. The task of this committee is trying to look at that, so it would be useful to see what works and what doesn't work from your point of view.

Ms Scheske : Yes. I'd love to be an expert on just Queensland, let alone having an overview of the different states and territories and what has worked for them and what hasn't. But I really hope that there's a positive outcome from all of this inquiry that can further strengthen the protections that need to be in place and that should be in place. I guess what I'm trying to push is that it shouldn't feel like such a battle.

Senator DODSON: In your view, how should the Commonwealth heritage protections be improved? If you haven't used them, you're probably not aware of the limitations of their contributions, but do you think there's a role for the Commonwealth in this space to assist First Nations peoples to protect their heritage?

Ms Scheske : I think there's room for anyone to step in and make improvements. Whatever is to be an outcome, it just needs to be an improvement on where we're at at the moment and strengthen the whole system in general, because, as it is, as you probably read through our submission, we're in a position where we've reached out along so many avenues just to get basic assurances that we will be consulted when it comes to managing what we're responsible for. All we've ever sought is to protect what we're directly responsible for, no more and no less. But it is about consistency, filling in gaps and addressing the weaknesses that have that have been made quite clear by the challenges that we've had here.

Senator DODSON: Can you explain why you've been excluded from the implementation of the Cultural Heritage Management Plan?

Ms Scheske : I'd love to be able to explain it if I could even understand it. It's a continual battle. As you're probably aware from our submission, we are an identified traditional owner group and there are two other parties. One example of the way things are at the moment would be where we were brought in to formulate a CHMP with a company who also did it with the other two groups but they then went on and, in a rather shifty kind of way, went about setting up a cultural heritage management agreement with the other two parties after the CHMPs was signed. That was in a move to actually directly exclude us from being able to participate, knowing that we were the only people that could actually give qualified traditional knowledge and have a traditional connection to country.

So I don't know how to put it. There have been so many examples historically just for us in particular where these kind of things have happened, where we're excluded ahead of people that don't have the connection and that therefore can easily walk in and say: 'Hey, there's nothing of significance here. Here is your assurance that you're right to carry on with your project.'

Senator DODSON: Can you explain what your current concerns are with Rougemont Gorge? What are you doing to protect it?

Ms Scheske : Certainly. For me on a personal level, all this actually draws up a lot of stuff that I had to push towards the bottom because it has been such a challenging time, especially with the level of significance around that area. I won't go into detail; I promised my elders I wouldn't go into detail about why it's significant. Sorry; can you repeat the question?

Senator DODSON: I want to know your current concerns about it and what you are trying to do to protect it.

Ms Scheske : The current concerns are whether the other groups are being engaged and taken to that particular area. Because they don't have the traditional knowledge of the significance of that site in particular, they basically cleared it. They gave clearance for it and said that there's nothing to see here, nothing of significance. We do have a very good relationship with the landowner, and one of my uncles is in regular contact with him and lets him know what's happening and what companies might be scouting around. We're just trying to get back to the table as much as we can with the companies that are undergoing works. As soon as we find out that there's somebody on the ground and they haven't reached out to us directly, I will then make contact and see if we can get some kind of thing happening so we can actually be on the ground and do what we need to do.

Senator DODSON: Can you explain the situation you faced with U&D Mining?

Ms Scheske : Yes. I think I touched on that before, actually, with regard to the situation where we were signatures to a CHMP and then they went on afterward and formulated the CHMA with the other two parties to purposefully exclude us. Out in that area there are many sites of significance within the actual footprint. When we found out that they were going on, conducting works and engaging the other groups, we reached out to U&D—quite nicely, I must add—and did inform them, 'Hey, we do have some knowledge about the area that you're operating in' with regards burials and other significant sites in the area. We made it very known to them, 'We can come in and we can manage this with you,' and we were just blocked at every possible opportunity. They reminded us that they were already engaging other people and that that wasn't necessary.

Senator DODSON: Thank you.

CHAIR: To follow on that before I go to Senator Thorpe: you said that there were two other parties that they've been consulting with. I'd be interested to know why they are the wrong people in relation to this consultation. Would U&D Mining be aware of that?

Ms Scheske : Oh, absolutely. I think most companies operating out and out in the Arcadia Valley area and our traditional lands are very aware of the Federal Court findings. It was very clearly outlined in the findings that the other two parties had no traditional connection or have ever had a traditional connection with Garaynbal country. That was very clearly outlined in the findings of the of the native title determination—well, we didn't get determined, but, yes, the findings from our process of going through native title. So most companies are aware. I think most people in the game are aware of what the situation is. It seems that there's a bit of a facilitation—I don't even know if that's the right word—pushing companies towards the two other parties because it's a it's a lot faster to get a clearance when people can come and say, 'Hey, there's nothing important here that we're aware of.' It's much easier to get some people in for a day to make that unqualified observation than it is to get people on the ground that have an intimate knowledge of the area that may be able to flag certain areas that might be inappropriate to expand their venture into.

CHAIR: In situations like yours—and this is what we've got to try to deal with here and try to make recommendations about—where there are competing claims over an area, how should it be determined who speaks for that country?

Ms Scheske : In our instance, which is the only one I can speak of, when it's recognised through the native title process that those other two parties have never had any traditional connection to an area, how can they somehow be lawfully involved in the management of the cultural heritage of that area? It seems really deeply convoluted.

CHAIR: It's certainly surprising, that being the case, that they can continue to take precedence over an acknowledged determination. I find that quite bizarre.

Ms Scheske : Same! Sorry if I'm getting really animated here, but this has been our point the whole way along. There just never seems to be this understanding when trying to explain our situation to other people. It's one of those things that, if you sat down in the pub and did a pub test with it, nobody would believe it, so how is this possible? Yet this is something that we have been up against since we went through the native title process. It continually blows my mind that, in all these circumstances where we have been effectively trodden on or not consulted with, this system is facilitating that through its flaws. That's the greatest flaw of the system, that, between the Native Title Act and the state cultural heritage act, it facilitates this.

CHAIR: Fair enough. Senator Thorpe?

Senator THORPE: Thank you, Rebecca, for appearing today.

Ms Scheske : I'm super anxious. You can probably tell!

Senator THORPE: No, you're right. You're telling it how it is, and that's how it needs to be told. I also want to acknowledge that the system is something we've been navigating since invasion, and it keeps changing. When we get used to the system, the system changes. So don't think that you ever have to be an expert in that space.

Ms Scheske : Thanks.

Senator THORPE: I just want to pick up on a couple of things you mentioned. You said 'in the game', those that understand the cultural heritage legislation and the native title legislation and ILUAs and all of those things. Is what you meant by in the game and who's in this game?

Ms Scheske : All interested parties: companies and, I guess, people sitting in certain offices who help information get across. Everyone who has a stake, basically, is in the game.

Senator THORPE: Additional information, you mean, in terms of country?

Ms Scheske : Not so much that; it's probably more about the path of least resistance a company can take.

Senator THORPE: Does that include government, the Queensland government?

Ms Scheske : Yes.

Senator THORPE: You also talked about fast tracking and the fact that it's easier to go to these other parties than have to deal with the people who are connected to the country and who have the stories to country. Do you think that fast-tracking process is helped by a lack of consultation or no consultation, which they use as consent?

Ms Scheske : I guess it's the no consultation with us, being the only people who are qualified to protect cultural heritage of Garaynbal country. The path of least resistance is when you can bring people in who will not find any significance for an area because they have no knowledge of the significance of the area. There could be time line differences there and, perhaps, it's box ticking and budgets and that side of things. It becomes easier to get some people out with, 'Hey, come out and have a look around. Thank you very much. I've got your signature. That's all we need.' Whereas if you get somebody out there who has intimate knowledge of an area and the stories attached to that, they're going to maybe have some issues that need to be managed. That management might take a couple of extra days. It might take a meeting. It might take other steps. When you can just get somebody in for a day, you're going to take that path. So I don't begrudge companies for necessarily looking at it from a bottom line and path of least resistance. Businesses like to run smoothly and if they can run smoothly by taking that path, I guess they would do it. It doesn't mean it's the right thing to do, but it seems to be the done thing.

Senator THORPE: It's something that has certainly been raised before in this inquiry by other witnesses. Some examples from some other witnesses have been that mining companies are offering cars, jobs and financial incentives to be part of those deals. I just wonder if that's also been the case in this instance?

Ms Scheske : I'm not sure. No-one's offered me anything, so I can't speak from personal experience there. I think it's just the thing that relationships get formed. In our circumstance, perhaps, when we are being disadvantaged and have been continually disadvantaged by flaws in the law, it's going to aggravate people. So we're going to have upset people on our side of the fence who are not necessarily going to just sit back and take it. They're going to be quite vocal. They're going to get quite upset about this. I think sometimes that causes personality clashes, and sometimes companies just use that as a way to choose to no longer engage with people. I've worked really hard for the last few years to try to mend relationships with companies so we can actually participate in some way. But there are just some doors that are permanently locked now. We just do what we can. I'm sorry if I keep digressing, but I've got a lot to say. I didn't realise it.

Senator THORPE: It's great information, thank you. Can you tell the committee how long the Garaynbal people's heritage has been affected by the last-claim-standing provisions?

Ms Scheske : We had our native title determination in 2013 from memory, so it was a few years after that. Well, no, I guess the challenges were there pretty much from the get go. My involvement at this end of things has only been in more recent years, so I can't really speak to the historical aspect of that. But we've always been disadvantaged by this pretty much. Any opportunity where this could be used to exploit loopholes that keep us shut out, it's been done and it continues to be done. Even as we speak, there's activity going on—engaging the other two groups to go within a registered significant area to give clearance ahead of us. We've been asked to participate, but our participation, unfortunately, wasn't engaged until the other two parties' had been. So this is a continuous, ongoing thing. I think for as long as it's been able to be flaunted, it's been flaunted.

Senator THORPE: Do you think that traditional owners should have a right to veto?

Ms Scheske : Projects?

Senator THORPE: Yes, for anything that was to restrict access to country or destroy country. In the context of cultural heritage, do you believe that traditional owners should have a right to say no to anything—development or mining—that happens on their country?

Ms Scheske : In a perfect world, yes, for anything that was going to have a significant impact on sites of great importance to us and on our traditional lands. Absolutely. But I also understand the workings of the world, and I understand enough to know that projects are going to go on whether we have that power or not. I guess it's just working to the best of our ability to make sure that when companies do pop-up and they do want to startup a project or expand a project, that we can be involved in ensuring the footprint of that has minimal impact on sites of significance or importance to us on country. Believe me, I'd love to be able to just say: 'Hey, everyone, go home and leave this pristine, beautiful, untouched country alone.' I don't know if any of the committee have ever been out on Garaynbal country. It has some of the most incredible landscapes that you'll ever see. It's magic, and I feel really, really lucky to actually belong to that country. It's incredible.

Senator THORPE: Rebecca, your mob aren't against mining; they're just about protecting culturally significant heritage sites and working with the companies to get the best outcome for everybody. Is that correct?

Ms Scheske : Yes, it is. The thing is: we've had the realisation for a long time that there is no ability, as things are, to say no—not fully. I'm sure there are steps that can be taken to prevent projects from going ahead, but, at the end of the day, we know that we can't just say: 'No. Please leave.' So, because of that, it's about doing everything we can to just minimise damage and destruction and to be included where possible—to at least be consulted with. I think that's the most offensive thing about the position that we're in: we are not even being consulted by certain companies. It's really heartbreaking to go out on country and to see a new project. That has happened in very recent years. We saw a new open-cut coalmine go into the ground in an area that is of deep importance. That was probably going to go ahead regardless, but it would have been really nice to have been consulted and to be able to be part of that process and to at least have ensured that what was important to us was protected.

Senator THORPE: Absolutely. Thank you very much.

CHAIR: Clearly there's a flaw in the state system if a mining body or any body that is proposing an activity on your traditional country is able to bypass the recognised TOs—

Ms Scheske : Yes!

CHAIR: And yet there are others there. One real challenge we have here, as I said earlier, is: how do you determine which one speaks for the country? Have the other two groups had any determination, or do they have any connection whatsoever to the country that you are speaking for?

Ms Scheske : They have zero connection, and that was found through the native title process.

CHAIR: Well, in that case, I think it's fair to say that there are some serious flaws—

Ms Scheske : Absolutely.

CHAIR: in the native title legislation that allows people to speak for country to which they have been determined to have no connection and allows the proponents to be able to do it and bypass those who have been identified. I find that quite interesting. It's the first time I've heard that come up.

Ms Scheske : I'm nodding my head in absolute agreement, because I cannot believe that in this day and age it's even possible. Every time I try to explain this to people, to anyone who will listen, they just don't believe it because it seems so ludicrous and just so wrong that this is occurring.

CHAIR: Well, you've got it on the record now. We'll certainly do some research. We were hoping to talk to the state government today, but, unfortunately, they have declined to appear, so we'll have some questions there. Anika Wells or Warren Snowdon, is there anything you would like to raise?

Mr SNOWDON: Rebecca, clearly both the determination of native title and the interpretation being used on the last standing provisions of the Queensland bill have acted against your interests. How would you argue that the Aboriginal Cultural Heritage Act in Queensland should be changed? What would you change in it and what would it look like?

Ms Scheske : I would remove these loopholes that can be exploited and that keep us locked out of being consulted. Again, I guess I'd need to have a really deep, intimate knowledge of that to be able to pull it apart enough. But just speaking on what I know, it needs to be consistent and it needs to be drafted in a way that ensures that only the people who are responsible for country can manage and speak on behalf of it. I think, at the end of the day, something should be done to ensure that people that have no connection can't just come in and be making decisions and agreements and financially benefiting from something that they have no connection to. It needs to have high standards and it needs to be consistent. I hope that answers your question. I'm sorry, I just sort of lost it.

Mr SNOWDON: That's okay. What happens when you raise issues with DATSIP?

Ms Scheske : Nothing. Nothing is the big answer there when it comes to DATSIP. I didn't really want to speak about them because of my position. I also act as the cultural heritage coordinator for our group so, when we are involved in activities, I facilitate that happening. I should be able to feel comfortable to go to DATSIP with any concerns, any questions, anything that I need advice on. My understanding is that this is where they're meant to help out, but I have never been in a situation where I felt that it would be even remotely plausible to do that. I want to be really careful about how I frame this, but there have been times where that's felt more like it's a sort of tearoom for proponents to gather and discuss things with the department and get the information they need to tread the path of least resistance, I guess. I've just been nothing but disappointed by that particular government department, sadly. It's one that I thought I should be able to feel really comfortable about making contact with and getting assistance when needed. But, if anything, they actually feel like an opposition, rather than being on the same page.

Mr SNOWDON: I'm going to ask you another difficult question, in the sense that I can understand why you may not want to talk about it. How do you interact with the other two groups that are involved? How do they respond when you assert your primacy of interest?

Ms Scheske : The thing is that there have been times, even in recent weeks, when we've been engaged in activities on the ground, there have been representatives from another one of the parties out there with us and we get along fine. It's not their fault that the system has put them in this position. I guess it's that thing that, when they're approached by a company, they're probably not going to turn it down. I do know of certain people in both groups that know their position. They know that country that they've been engaged to walk on isn't land that they belong to. I know that there are some people that will not participate in programs that are on Garaynbal country. The rest of the time, we don't bring it up. We just get on with it. It's hard, but I get on with most of the people that I've been with working in the field and we just leave that at the door. Some of them don't even know the actual situation, especially the younger ones. They don't have knowledge of what the whole legal background stuff is about. So we don't discuss it. We don't go, 'Hey, this is our country; you shouldn't be here.' We have them walk with us. They participate with us. For the most part, we actually work really well in that situation, even though it's against everything that we've been brought up to believe—that you don't walk other people's country and you don't make decisions for what's not yours to decide over.

CHAIR: Why wouldn't you raise it with them? If they don't know, how would the mining company know that they are not supposed to? Why wouldn't you—

Ms Scheske : Yes, the mining company would know. The mining company would have knowledge of that. When we're in the field, if I'm walking with, say, a 20-year-old girl that has no idea about it, I'm not going to bring that up to her. I'm not going to put that on her.

CHAIR: How would she learn? If she genuinely doesn't know, how will she learn unless you actually raise it with her and explain it to her?

Ms Scheske : I guess that's something that I've always hoped that their elders would raise with them, saying, 'Hey, this isn't actually ours to be participating in.' But that's stuff with the other groups. One of those groups know full well that they have no traditional connection or knowledge and yet continue to be out there. I just try to get on with it. There was one example of where this happened when we were working with one of the other groups on a project. My uncle and I were actually forcibly removed from that program—

CHAIR: By who?

Ms Scheske : By the representatives of the company. What happened was we asked—politely, I might add—the representatives of the company to not handle, pick up or move any of the CH that we were identifying in the field. That became a really beautiful moment where they got to use that as some kind of example of how we were trying to hold things up and were not being agreeable. They used that as an actual means to get us off the project. They've stuck with that and hid behind that since. So if I were out in the field on a program with, say, a couple of young Bidjara people, who from my experience are all really lovely people, and saying, 'Hey, look, this is just so you know,' it really opens up the door for the companies to go: 'You guys are being difficult. We don't want to engage you any further.' And that's what's happened in the past. We have to play nice when we're out there in the field. As much as it hurts and as much as it doesn't sit well with me personally or many other people, we just understand that we're in a position where, if we don't play this game and keep these companies happy, we will be further excluded from country and further locked out. That's the absolute last thing we want. We need every opportunity we can get to be actively involved in the protection of the cultural heritage of Garaynbal country.

Mr SNOWDON: Would those other two parties have the same attitude towards the Queensland cultural heritage act as you do or not, because they are advantaged by the—

Ms Scheske : I don't think they'd have an issue with it at all. I'm not even sure if they made a submission, because why would they want things to change? There's a financial benefit for them in continuing to be involved. If they were doing the right thing by recognising that, in fact, that isn't country or land that they belong to, they wouldn't be out there. If they were into promoting their traditional laws and customs, they wouldn't be participating. But people have different reasons for doing different things. I'm not entirely sure why, knowing what is known, people continue to insist upon their involvement to the detriment of ours.

CHAIR: I just struggle to understand. If they don't know, they may assume that they do actually have it. There has to be a mechanism that can identify them as not being a part of that country.

Ms Scheske : It was very clearly stated in the native title findings.

Mr SNOWDON: The point I was going to come to is that there appears to be no attitude from the Queensland department to contemplate the native title determinations outside of having claimants registered. So there's a clear problem with the relationship between the Native Title Act and the cultural heritage act and their interpretation of what a remaining registered climate actually means. It doesn't have any impact if they're not recognised by the court.

CHAIR: Thank you very much indeed for coming today. If there's any additional information you'd like to provide, please do so by sending it to the secretariat by 20 July.

Ms Scheske : I'm sorry, I forget who asked me the question right at the beginning, where I said that I would—

CHAIR: Senator Dodson.

Ms Scheske : Excellent. I will endeavour to get you those answers. And thank you very much. I really appreciate the time to be heard. It's not an easy thing for me to discuss, but I'm glad I had the opportunity to do so. I really hope that there's some positive outcomes that ensure that people like us are no longer excluded from protecting what we're responsible for.

CHAIR: Thank you. You will be sent a copy of the transcript of your evidence and will have the opportunity to request any corrections to transcription errors. If the committee has any further questions, we'll send them to you in writing, through the secretariat. So thanks again for your attendance. We look forward to getting that information. Thank you very much indeed.