NOONAN, Mr David, Private capacity

[13:47]

CHAIR: I welcome David Noonan to give evidence today. Mr Noonan, although the committee doesn't require you to give evidence under oath, I should advise you that this 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 is recorded by Hansard and it does attract parliamentary privilege. I invite you to make a brief opening statement, and then we can fire off with some discussion.

Mr Noonan : Thank you for the opportunity. I would like to make some brief opening comments that go to your terms of reference. I'd like to point out some of both the best and the worst potential initiatives that the federal parliament could take with regard to the proper protection of Aboriginal heritage.

In relation to terms of reference (h), how cultural heritage laws could be improved, I think by far the primary measure that the federal parliament could instigate would be to implement the UN Declaration on the Rights of Indigenous Peoples. I draw the committee's attention to a statement by the Australian Human Rights Commission earlier this year entitled 'Implementing UNDRIP', which is the UN Declaration on the Rights of Indigenous Peoples. They've stated that, while Australia endorsed the UN declaration back in 2009:

The Australian Government has not, however:

taken steps to implement the UNDRIP into law, policy and practice.

Negotiated with indigenous peoples a National Action Plan to implement the UNDRIP.

Audited existing laws, policies and practice for compliance with the UNDRIP.

The Australian Human Rights Commission went on to make a recommendation calling on the federal government to develop a national program to implement the UN Declaration on the Rights of Indigenous Peoples and to schedule it to the definition of 'human rights' in the Human Rights (Parliamentary Scrutiny) Act 2011. I think one of the key points here is: while there's a lot of talk about the UN declaration, and in particular about free, prior and informed consent, which is by far the lesson I would recommend to your committee, there's no formal action by the Australian federal government to do so—not in law, not in policy and not in practice.

The second issue I'd like to draw to your attention, under the term of reference to do with federal environment legislation, is: we've recently had a review of the EPBC Act, and the chair, Professor Samuel, who found that there was an illegal culture of tokenism and symbolism, has recommended that an Indigenous standard for engagement and participation in decision-making be implemented and attached to the operation of the federal environment laws. He went on to refer specifically to articles 1 to 8 of the UN Declaration on the Rights of Indigenous Peoples. However, he did not include, and he was not required under law or policy or practice in Australia to include, the key articles that go to the right to free, prior and informed consent—in particular article 32, which requires free, prior and informed consent prior to the approval of mining and resource projects that affect the lands of Indigenous people and their resources, including water. I recommend that Australia implement that UN declaration, in particular the parts that go to free, prior and informed consent, and that there should be a new required standard on Indigenous engagement and participation in decision-making in federal environment laws. Those steps would be by far the primary initiatives you could take, and would then follow on down through state and territory jurisdictions and their own mechanisms.

On your term of reference that goes to the effectiveness and adequacy of state laws: I have, in my submission, made a request that your committee should investigate state indenture acts and state agreements that give primacy for mining over Aboriginal heritage, that actually override Aboriginal heritage laws in state jurisdictions. You have the example in Western Australia of the Marandoo act of 1992, which gives primacy to Rio Tinto mining interests and actually overrides Aboriginal heritage in Western Australia. Recently, Rio Tinto have, I gather, given agreement to the repeal of that legislation. However, in South Australia the analogous situation is: it goes to BHP, the world's largest mining company, who have rights under a 1982 indenture act called the Roxby Downs (Indenture Ratification) Act—which governs by far the most influential and largest mining project in South Australia, the Olympic Dam copper-uranium mine—to override the South Australian Aboriginal Heritage Act and to apply a highly modified form, favouring mining interests, of an earlier act from 1979 that's been repealed in SA for the last 30 years and has no application in South Australia, other than to do with Olympic Dam and an associated area, to deal with the mining operations to the proponent, BHP.

I'd consider that it's quite untenable that these state agreements that give primacy to mining interests over Aboriginal heritage legislation should be allowed to continue in Australia. I think it's a travesty. In this particular case, BHP rights under that 1982 indenture ratification act are said, by the South Australian legislation, to proceed through to 2036. BHP took over Olympic Dam back in 2005. They've had 15 years to surrender those untenable, outdated legal privileges. We've had civil society and joint national and state environment groups call on them to do so. They've so far failed to do so, and their legislation would allow them to continue to enact those overwrites of Aboriginal heritage for another 15 years. That's quite unacceptable. They're matters that I hope your committee can make findings on.

I would welcome questions in the question-and-answer session on how those illegal overrides of Aboriginal heritage work in South Australia and how they affect, in particular, the matters of protection of unique and fragile mound springs that are of ongoing, fundamental importance, both cultural and spiritual, to the Arabana people and to other Aboriginal people, and on how those illegal overrides of Aboriginal heritage may be proposed to apply to a new mining project, called Oak Dam, in South Australia; that's 65 kilometres away from Olympic Dam. Apparently, the mining company, BHP, are trying to trigger the application of those outdated 1982 legal privileges to apply again in the 2020s to a major new mine proposal and again override Aboriginal heritage interests in that case.

Those legal privileges in South Australia to BHP go to the extent where, while we in the public debate are trying to have a discussion about free, prior and informed consent as a human right to favour our fellow Indigenous Australians, the legislation in that indenture that governs Olympic Dam sets out that the consent of the company is required for any change or alteration to the legal arrangements that override Aboriginal heritage in South Australia, in the case of the Olympic Dam mine. I think it's quite unacceptable, and should be seen as so, for the consent of the company to be placed above the free, prior and informed consent of our Indigenous fellow Australians. I now welcome questions on those and related issues, including on matters raised in my submissions.

CHAIR: Thank you very much indeed.

Senator DODSON: Thank you, Mr Noonan, for your proposals and suggestions, and for your submission. Can you give the committee an overview of the damage to cultural heritage as a result of the Roxby Downs act of 1982?

Mr Noonan : It goes to a range of impacts and damages. It goes to the denial of proper due process and procedure to Aboriginal groups that have been involved for decades in the mine proposals—that they're not allowed to exercise the due process and the rights and interests that are represented in other South Australian legislation.

On the illegal overrides that exist in that 1982 indenture act: I will quote the Productivity Commission, in a recent report on resource sector regulation from March last year:

The Roxby Downs (Indenture Ratification) Act 1982 (SA) overrides any inconsistent provisions of other laws, such as licensing, environment, heritage, and freedom of information … Instead, BHP has the power to make decisions about this legislation independently (in consultation with the South Australian Government). This arrangement has been subject to some controversy—

Quite an understatement—

since its introduction for the various privileges offered to the mine.

That's gone to the extent where physical cultural heritage was intervened with by prior mining companies, prior owners of the operations, and has been destroyed in the case of facilities and operations to deal with Olympic Dam.

It goes to impacts such as the ongoing threat to the unique and fragile mound springs. BHP, under the 1982 indenture act, are given primary access to water from the Great Artesian Basin, and can take excessive volumes of water under the 1982 act and using late 1990s licences that have standalone legal power that override other South Australian legislation in regard to natural resource management and water resources. So BHP have primary access to take excessive volumes of water from their borefields in the Great Artesian Basin. In particular, Borefield A, which is located within the arc of the mound springs, south of Lake Eyre, has a significant regional drawdown effect that reduces the flow to those springs and has caused the extinction of some of those springs and the decline of flow, vitality and viability to other springs.

The springs are of both noted cultural and spiritual significance to the Arabana and to other Aboriginal people. BHP have continued to exercise those outdated legal privileges and those outdated licence conditions, even though over the last 20 years there's been a very significant increase in scientific understanding of the linkages and the fragility in the Great Artesian Basin and in scientific understanding of both the ecological importance and cultural importance of the springs. I'd like to note that these mound springs are listed as endangered ecological communities under the federal environment legislation. They are recognised as a matter of national environmental significance. They're really a national asset that should be protected, not put at ongoing threat and risk from mining interests under outdated state provisions.

The potential extent of the impacts also goes to how Aboriginal organisations can rely on proper treatment under the law in South Australia and nationally. I've given an example of a new proposed mine, Oak Dam, a major proposed underground copper and uranium mine to be located 65 kilometres away from Olympic Dam that would use Olympic Dam as a processing centre for the ore to be mined at Oak Dam. It seems untenable that in the 2020s we have these legal arrangements for the consultation and protection of Aboriginal heritage. For instance, the Kokatha people, who are native title holders of the area around Olympic Dam, are subject to outdated, 40-year-old state legislation that overrides Aboriginal heritage and doesn't allow the proper and full application of the Aboriginal Heritage Act in South Australia from 1988. They also have to negotiate terms and agreements with BHP using that outdated frame of reference when the discussion at the national level is about Indigenous rights, human rights, closing the gap, a voice to parliament and free, prior and informed consent, none of which appear to be allowed to apply by BHP, the world's largest mining company, in regard to that major new mine proposal.

Senator DODSON: But this committee got a letter from BHP yesterday stating that its intention is to voluntarily apply the requirements of the 1988 heritage act to its management of cultural heritage protections within the Olympic Dam and Stuart Shelf areas to the extent that it can legally do so. What difference do you think is this going to make to the way in which BHP operates under its licences?

Mr Noonan : I think that's an interesting letter. It's not a public letter that I'm aware of. I think such matters should be made public as soon as possible. Why should BHP be limiting what legal exercise they undertake in regard to the South Australian Aboriginal Heritage Act 1988? Presumably it should have full application, just as it has full application in every other part of the state. There's an area around Olympic Dam called the Stuart Shelf. It's 12,000 square kilometres and the '82 act gives BHP the right to override Aboriginal heritage interests in that area in regard to their operations associated with Olympic Dam and potentially in regard to major new future mining projects, such as Oak Dam. I think if BHP were legitimate, they would surrender the unacceptable, outdated legal privileges that override Aboriginal heritage in the 1982 indenture and they would accept full legal jurisdiction of the Aboriginal Heritage Act 1988. Only on that basis should they start any discussion, negotiation or consultation with the related Aboriginal parties. They should not be using some strange legal mechanisms to say, 'Yes, we would do the right thing under the more modern South Australian legislation,' but they want to hold on to the formal legal rights and powers that this outdated indenture gives them.

Senator DODSON: You don't think BHP is serious about changing its modus operandi or its attitude towards heritage protection and its relationship to the First Nations people?

Mr Noonan : I think BHP would have to walk the talk before they could be accepted and seen as serious. I think the test for them is to surrender those outdated legal privileges, to work with the South Australian government to repeal those unacceptable, outdated privileges that override Aboriginal heritage and to give full expression to the most modern laws that apply across the rest of South Australia and offer those proper terms to Indigenous people. I think if BHP were legitimate, they would fully engage with the rights granted under the UN Declaration on the Rights of Indigenous Peoples, in particular regarding free, prior and informed consent. Only then could they say that they're walking the walk in terms of respecting, recognising and protecting Aboriginal heritage.

Senator DODSON: You mentioned that these springs have been recognised under the EPBC Act as environmentally significant. What is it about that act that doesn't provide any protections to them?

Mr Noonan : It's an interesting case where Olympic Dam, as an earlier project, predated the EPBC Act, so it was given a right for earlier approvals to continue when the EPBC Act came into power. There was a very interesting case where BHP had proposed a massive open pit project for Olympic Dam. They put that forward between 2005 and 2011. The federal government, then a Labor government, made some very strong approval conditions in regard to the protection of the Great Artesian Basin and the mound springs, and joint and state national environment groups endorsed those particular conditions. However, they were never applied to the actual operations of Olympic Dam because that particular version of the BHP proposed open pit mine project never went ahead. You now have the case where the springs are still subject to 1990s legislation, licensing and mine operating conditions when the federal government back in 2011 set very strong conditions of approval of a proposed mine expansion. But those stronger conditions have never been applied. When the mine was seen to be made subject to the EPBC Act, the relevant federal environment minister set very strong conditions, but, because that particular version of the project didn't go ahead, the traditional owners don't have the protection of those conditions that were set and assessed and required at the time by the federal government. It seems that, if the proper science and economical understanding and the proper EPBC Act assessment were to be applied to the case of the mound springs now, BHPs water extraction wouldn't be permitted in the way that it was permitted back in the nineties and the company would have to decrease and phase out its extraction of water from the Great Artesian Basin and, quite likely, have to close bore field A as soon as possible and look for, in the long term, an alternative mine water supply, which might have to involve a desalination project in South Australia. So I think the traditional owners are told on the one hand that there are these strong powers in the federal environment laws but they're not seeing them applied to the protection of their springs even when the federal Labor government, back in 2011, set very strong conditions to not allow BHP's operations to cause significant adverse impacts on the pressure in the Great Artesian Basin system and to not allow BHP's mining operations to cause significant adverse impacts on the springs. The joint state environment group, of which I was the lead consultant in 2019, made three submissions and briefing papers to the federal government and strongly endorsed those earlier conditions set by the Labor government in 2011, and we still look forward to them having to be applied at Olympic Dam.

Senator DODSON: The volume of water now that's being taken from the artesian basin, is that in the order of 35 million litres a day?

Mr Noonan : Yes, it is. That's about the current extraction rate that BHP exercise through bore field A and bore field B. They have a licence from the 1990s to take up to 42 million litres a day, and they haven't gone to that extent of water extraction. But even the impact of in the order of 35 million litres and, in earlier years, perhaps in the order of 30 million or 32 million litres—those impacts have gone on for decades now, and they have caused the extinction of some springs and a decline in flow of other springs.

I think you have in evidence before you from the Arabana corporation statements that they are concerned about the disappearance of their springs, and there was a major article in national newspapers The Age and The Sydney Morning Herald last November entitled 'Disappearing springs pose questions for BHP'. So there is a national discussion starting as to what proper protection for the springs—not just in an ecological sense but in a cultural and spiritual heritage sense—should actually mean, and we well understand that would have to mean BHP accept that they tone down and decrease the water extraction rates and the highly concentrated impacts that they have through their bore fields on the degree of pressure and flow through the Great Artesian Basin, which is what these springs depend and rely on.

Senator DODSON: So, if there are no restraints made or no alternative methods of obtaining the water and BHP, in fact, increases its rate to 42 million litres a day for the foreseeable future, what do you foresee as the impacts on these water places now?

Mr Noonan : If BHP continue their current rate of extraction—and certainly if they increase it to the licenced potential that was set in the 1990s, going up from 35 million, for instance, to 42 million megalitres a day—you'll see an extensive reduction in flow to the springs, you'll see a significant reduction in the vitality and the ecological viability of the springs, and quite likely more of those springs will become extinct. That has both significant ecological impacts—they are a listed endangered ecological community. Federal environment minister, Minister Ley, is supposed to protect matters of national environmental significance and has powers to intervene to do so.

Another matter for the committee to consider is that, not untypically, cultural heritage matters are only really assessed and considered for protection as a lesser matter, with regard to mining approvals, within the environmental assessment. So, when a mining proponent comes along, there is an environmental assessment and the Aboriginal heritage consideration is done as a part of that but not a primary part of that. In this case, the grant of excessive mining approvals and the allowance for the company to take excessive volumes of water and, under the indenture, to continue to do so up to 2036 locks in a long-term decline in what is a recognised matter of national environmental significance in these unique and fragile springs. That's a significant cultural and spiritual matter and a human rights issue for our fellow Indigenous Australians. If Australia had properly implemented the UN Declaration on the Rights of Indigenous Peoples, you'd have a strong legal trigger by which the traditional owners could represent their interests where a federal or a state government was not properly respecting their rights with regard to protection of the springs. But, given that Australia has failed to implement that UN declaration in law, policy and practice, particularly with regard to free, prior and informed consent, they don't have available to them the legal means that they should have available.

Senator DODSON: This is my final question: should there be a veto capacity for traditional owners when it comes to such horrific potential impacts?

Mr Noonan : I believe that there should. If Australia had a national program to properly implement the UN declaration, and an Australian jurisdiction were unwilling to provide that right of veto in regard to a particular project, they'd have to answer to us, whereas at present often they don't, because the right doesn't exist in practice. Traditional owners try to exercise their rights and interests, but they're usually forced into some sort of substandard arrangement or agreement with the mining companies or with the state government—with the powers that won't give them that right of veto to protect their own cultural interests. I think they should have that right, but, in cases where that's not allowed through ministerial discretion. I think the ministers in that jurisdiction should have to answer for that and they should have to show why there is an overwhelming national or state interest in not granting that proper due course.

Senator DODSON: Thank you, Mr Noonan.

Senator THORPE: Thank you, Mr Noonan, for appearing today. Most of my questions have been asked, but I'll ask a few more. Can you describe how BHP was granted such powers in the first place, managing to not be held accountable to environmental and heritage protection standards?

Mr Noonan : The primary way that happened was that those powers existed in South Australia prior to BHP taking over Olympic Dam in 2005, but BHP took no steps to modernise, review, reform or surrender the absolutely unacceptable legal overrides, for instance, that they exercise over Aboriginal heritage. They inherited, in a sense, those legal privileges in taking over the mine, but they were unwilling to take any steps to modernise and surrender the most unacceptable aspects of those pre-existing legal privileges.

BHP put forward a proposal for a major open-pit project between 2005 and 2011, but then they abandoned it a year later. They would have been subject to strong EPBC Act conditions set by the then federal Labor environment minister. Those conditions would have protected the pressure in the Great Artesian Basin. They would have protected the mound springs. But those conditions never came into action. It also shows that BHP were willing to accept those conditions back at that time, back in 2011, had that major open-pit project gone ahead. But, for another decade since then, they've favoured their own mining interests by not applying those conditions themselves. They could have applied those more stringent environmental requirements to their own operations, but they've failed to do so, falling back on inadequate previous assessments.

Senator THORPE: Thank you. In your view, should Indigenous heritage legislation at the Commonwealth level be dealt with through amendments to the federal Aboriginal and Torres Strait Islander Heritage Protection Act or through brand-new standalone legislation?

Mr Noonan : I will answer that in a couple of parts. The primary aspect of how the federal government engages with Aboriginal heritage is through the EPBC Act, because that is what assesses major resource projects, mining projects and other projects that are recognised to have an impact on matters of national environmental significance. To be honest, there seems to be very little actual application and action exercised by the Commonwealth under the Aboriginal and Torres Strait Islander Heritage Protection Act. It seems to have very few trigger mechanisms that would allow it to come into play. For instance, even when the EPBC Act is assessing a major mining project that is acknowledged to have potential significant impacts on Aboriginal cultural heritage, it still doesn't trigger the application of the other, parallel, Commonwealth act. What the Commonwealth should have to do in the interim is properly engage, through its review of the EPBC Act, that there is a proper Indigenous standard for engagement and participation in decision-making and that that should fully apply the UN Declaration on the Rights of Indigenous Peoples, in particular, the rights to free, prior and informed consent. Maybe that can only happen if Australia actually takes formal steps to implement that UN declaration into law, policy and practice. So Australia would have to take those steps to implement the UN declaration, it would have to provide a proper Indigenous standard to go with the EPBC Act and then it would have to legislate that for all future aspects of the operations of the EPBC Act. Then, perhaps, in parallel, others who may know more about the other act can see whether that can be reformed to have broader application. Awaiting a full review of the other Aboriginal and Torres Strait Islander Cultural Heritage Protection Act would necessarily waste time when there are steps that are known to us and could be taken now by the federal parliament in regard to the operation of the EPBC Act.

A key measure that the Australian Heritage Commission recommended was that Australia undertake an audit of whether existing laws, policies and practice meet compliance with that UN declaration and whether they meet compliance with free, prior and informed consent. I think if we were to go back across the sweep of what has been done to date, that would be one of the best mechanisms to properly address due protection for Aboriginal heritage into the future. It can't be the case that, if we reform a law such as EPBC, those new powers only apply to new applications. It has to be the case that those new standards apply across the board, regardless of what has been approved in the past.

Senator THORPE: In relation to the United Nations Declaration on the Rights of Indigenous Peoples and the fact that this country doesn't really recognise those rights and the fact that, as you say, the part of the Aboriginal heritage information that goes into these mining approvals is not primary but is just a part of them. In your view, are there any laws in this country that protect Aboriginal cultural heritage?

Mr Noonan : Certainly, at the state level, in WA and South Australia, the Aboriginal heritage acts fundamentally fail to protect Aboriginal heritage and give full ministerial discretion to the minister to grant a power to interfere with and destroy Aboriginal heritage. The South Australian Aboriginal Heritage Act, as a case example, is referred to as a search-and-destroy act by South Australian Native Title Services. Communities, in good will, list their cultural heritage sites and places and interests, whether they be a songline or a storyline, what might be referred to as intangible cultural values. They don't have to be limited to material sites declared under the South Australian act. In good faith they put these values forward to be protected under the act, just to find that, after they have identified those values, the South Australian minister—who in this case is actually the South Australian Premier, Stephen Marshall, who is the minister for Aboriginal affairs in South Australia—can grant a right of interference to a mining company or other developer to interfere with and destroy those same Aboriginal values that people have put forward and identified in good faith. There is a recent case of that where the now Lake Torrens National Park was approved for mining access for drilling by Stephen Marshall as the Aboriginal affairs minister, and then also as Premier, over the opposition of four Aboriginal groups who have interests on and around the lake and over the direct advice of the South Australian cultural heritage committee to the minister. Even having that advice and having had the representations from those for Aboriginal groups, the minister still exercised discretion in favour of mining to allow drilling access on Lake Torrens. Again, that's a completely unacceptable use of power over original interests in an outdated act. So, on one hand, while I have called for full application of the South Australian Aboriginal Heritage Act 1988, it should itself absolutely be reformed and modernised to reflect the UN Declaration on the Rights of Indigenous Peoples. These are not just issues for the Commonwealth to address. It would be very good if your committee made recommendations for the state jurisdictions and the state parliaments to take up the matters of the reform of legislation where they have been negligent in doing so to date.

Senator THORPE: Do you think that the mining companies see Aboriginal people as a hindrance rather than a solution? Secondly to that, do you think there needs to be education to these mining companies and to government agencies on the importance of the United Nations Declaration on the Rights of Indigenous Peoples?

Mr Noonan : I think the mining companies see Aboriginal communities as something to be manoeuvred and outmanoeuvred. They've been allowed to do so for decades, and they haven't changed their ways. They're unlikely to change their ways unless they're directed to do so. I don't expect that mining companies will reform their practice at their own initiative. I think the only way that they would give proper recognition and respect and implementation and protection to the UN Declaration on the Rights of Indigenous Peoples would be if the Commonwealth and the states required them to. Only if the Commonwealth parliament put steps in place to implement that UN declaration into law, policy and practice would the mining companies, when they deal with the Commonwealth government, properly take that into account. I think only if the Commonwealth do so will the states follow to do so. So the initiative really is with the federal parliament.

They are matters that should be addressed and could be addressed in the short term, not just through the findings and recommendations of your committee but in regard to the EPBC bills that are before the federal parliament, where there should be an absolute requirement to instigate an upgraded version of the Indigenous standard that was put forward by Mr Samuel and there should be an absolute prohibition on granting the key EPBC Act approval powers to be transferred to the states—what used to be called the one-stop shop, which a previous Prime Minister put forward. That bill before the federal parliament, I think, would be the absolute worst possible outcome for Aboriginal heritage, because of the clear demonstrated conflict of interest that the states, and particularly state ministers, hold in favour of mining interests over both environmental values and cultural heritage values.

I've tried to represent some of the best steps your committee could take: to implement that UN declaration; to put it formally into law, policy and practice; to put in place that upgraded Indigenous standard under EPBC; to not transfer EPBC approval powers to the states; and to make findings to call on the states to repeal the state agreements that give mining primacy to override Aboriginal heritage. They're key discrete steps that could all be made in the short term and would not have to rely on long-term other legislation and other reviews and reforms. Unless we act sooner rather than later, we might lose this moment that has been given to the national psyche in response to the Juukan caves disaster—to take steps, and to take full measure of steps, as soon as we can.

Senator THORPE: Thank you. I have no further questions.

Mr SNOWDON: Mr Noonan, I want to make some observations before asking a question. Firstly, a lot of Aboriginal and Torres Strait Islander people I know don't like to be included with flora and fauna through the EPBC Act and would rather see a standalone piece of legislation which dealt with their own cultural heritage in a way which was separate from the EPBC Act, through perhaps enhancing the Aboriginal and Torres Strait Islander Heritage Protection Act and making the minister for Indigenous affairs directly responsible. What is your view of that?

Mr Noonan : I'm completely open to that, but I'm also aware that that warrants an initiative that might again take additional years. It should perhaps be a matter that the major political parties take as a commitment to the next federal election, and the public electorate could judge the parties on that basis. But I'd also not wish to see the proper measures that should be put in place in the EPBC Act delayed by consideration of a major review of a parallel act. I think we're not yet at the place where Australia gives that proper primacy to Indigenous interests, though that should be done. Where we have proposals before the federal parliament now regarding the EPBC Act, I think it should be reformed in full measure. That doesn't in any way limit the options to go on and provide proper legislative control to an Indigenous affairs minister to govern those matters with primacy and at least in parallel.

Mr SNOWDON: That's true. The fact is that the minister who's responsible for the Aboriginal and Torres Strait Islander Heritage Protection Act is currently the same minister who's responsible for the EPBC Act.

Mr Noonan : Yes.

Mr SNOWDON: I personally believe that is an anomaly and should be fixed. That minister could have prevented the Juukan Gorge exercise by using the provisions of the ATSIHP Act rather than the EPBC Act. So those provisions currently exist, and they're in the control of the same minister.

Mr Noonan : I think that any advantageous power in federal law that could be used to protect Aboriginal heritage is a discretion. Typically, the federal government may choose not to exercise that due discretion to protect Aboriginal heritage. There should be a mandatory requirement to protection and not just be an option, a discretion. Obviously, as you say, it shouldn't just be a matter that arises as a secondary consideration in an environmental assessment, which is essentially a third consideration, because the primacy is given to mining in the first place.

Mr SNOWDON: Yes, thank you. I've listened carefully to your responses to Senator Dodson and Senator Thorpe, so I don't have many more questions, apart from wanting to explore further BHP's note to us around their intent to move over to the provisions of the 1988 act. Are you aware of their submission to the Aboriginal Lands Parliamentary Standing Committee inquiry into Aboriginal heritage protection in the South Australian parliament?

Mr Noonan : I've made a submission to that inquiry myself. I'm not aware of the BHP submission. I'm not aware that it's yet been made public on the state parliamentary website. I'd certainly have an interest in that matter.

Mr SNOWDON: It would be worth looking at, because they actually talk about enhancements they think ought to be made to the 1988 act to give extra protections. It may be something you want to think about and perhaps write to us on. I don't have any further questions. Thank you.

CHAIR: Thank you very much for appearing today. It's been greatly appreciated and very insightful. Some very useful evidence has been provided. If there's any additional information that you would like to provide, could you forward it to the secretariat by 20 July 2021.

Mr Noonan : I will do. Thank you for the opportunity.

CHAIR: You'll be sent a copy of your transcript of evidence, and this will give you an opportunity to request further corrections to those transcription errors. If the committee's got any further questions, they will send them through to you in writing through the secretariat. I have to say that you were very, very comprehensive in your coverage. Like Senator Thorpe, the questions that I was going to ask were either asked before or you actually offered information on them during your presentation. Thank you very much indeed for your time.