Letter from the Editor: History-making State Voice to Parliament and native title concerns

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With respect to the State First Nations Voice, it too suffers from the same concerns as the Local Voices, but further, it is an attempt to represent the views of a diverse number of First Nations groups without being imbued with the cultural authority. It is not established by reference to traditional laws and customs – it is established by the laws of the Crown, the entity asserting sovereignty over each First Nation, and is a reflection of the preferences of the Crown about how it engages with and hears from each First Nation of SA.

There are concerns that the election process could alienate many South Australian Aboriginal people with connections to Country who can only vote in the Local Voice election based on place of residence; who may reside interstate but are members of their First Nations registered native title PBC, or are represented by it as a common law holder; or Aboriginal people who were removed from their Country through government legislation and now these same people and their families will be subject to a new wave of separation from their First Nations group by ignoring their plight with the draft bill ensuring they have no say or involvement with the SA Voice.

The definition of Aboriginal also appears to be inconsistent with Commonwealth wording and could lead to ambiguity, something others such as Liberal Senator Kerrynne Liddle, an Arrente woman herself, have also raised as a concern.

Under SA’s First Nations Voice Bill, a person is considered Indigenous if they are of Aboriginal or Torres Strait Islander descent; regard themselves as Aboriginal or Torres Strait Islander (as the case requires); and is accepted as an Aboriginal or Torres Strait Islander person by the relevant Aboriginal or Torres Strait Islander community.

The Commonwealth, however, adopted a threepart definition in 1978, where an Indigenous person is someone of “Aboriginal or Torres Strait Islander descent who identifies as an Aboriginal or Torres Strait Islander and is accepted as such by the community in which he or she lives”.

Senator Liddle said the “enormity” of the state government’s “distortion” of the three-part test with the different wording used was particularly important, given the state model is being reviewed at as a template for the national model.

“At a time when questions of identity are being asked at the federal level in relation to who can vote and who can nominate as a candidate that have not yet been answered, the definition in this legislation should not be supported if it is not entirely consistent with current definitions,” Senator Liddle said.

The outcomes from determinations of native title have the potential to greatly assist with addressing some of these issues. It generally takes many years, at times even decades of hard work from teams of lawyers, researchers, anthropologists, and administrators for members of groups to be formally identified as Traditional Owners, have their connection to Country recognised and appropriate representative governance structures established. But the state government does not appear to wish to rely on all that work.

Response from state government

While there has not been a formal response to native title concerns from the SA Government, AttorneyGeneral and Aboriginal Affairs Minister Kyam Maher responded to questions from the opposition about such concerns in the parliamentary debate, saying that there had been a “thorough” consultation process and that “some of the concerns” raised by native title holders and others had been considered and provisions introduced to the bill so it would not impede on native title agreements or other First Nations organisations.

The SA Commissioner for First Nations Voice, Dale Agius, released an ‘Engagement Note’ in February, which followed on from his first Engagement Report and summarised community feedback received on the draft First Nations Voice Bill. It made the following recommendations to the Attorney-General:

• Consider including a specific mechanism in the draft Bill to provide for the representation of the diversity of community interests in the State First Nations Voice, that is inclusive of native title, Stolen Generation survivors, Elders, young people and LGBTIQA+ people.

• Consider amending the draft Bill to make clear the Voice is not intended to impede on rights and responsibilities under native title legislation.

SANTS has not seen any further evidence of how such provisions will be made to ensure the bill does not impede on native title agreements or other First Nations organisations. In response to the concerns, SA Premier Peter Malinauskas has also noted publicly that the state government has included a review process, so legislation can be assessed and updated in three to five years if it’s not working effectively.

But we wonder why the state government would not spend the time to ensure we get it right as a state now, from the beginning, as changing it down the track would prove difficult. Sometimes it can be too little, too late. Once something’s in place and started, it’s very hard to make changes.

Differences between National and State Voice to Parliament and who’s backing it

The key difference between the state and federal models is that the SA Voice to Parliament will not be enshrined in our state’s constitution like the National Voice will be. This means that South Australians will not be called upon to vote on whether the body should exist or not, and future state governments will have the ability to amend or even abolish it.

The SA Liberal Party opposed the bill on the grounds that it has been rushed and is “impractical”, after only six months of consultation. They did not have enough numbers to block the legislation however, and the SA Greens chose to back it.

State Voice will inform Federal Voice

Supporters say SA’s Voice to Parliament will become an example for the proposed Federal Voice, ahead of the national referendum slated for later this year.

Mr Maher and SA’s Commissioner for Voice Dale Agius addressed the referendum working and engagement groups in March on Kaurna land, where they held their final discussions before sharing the advice they have accumulated with the Albanese government. Federal Indigenous Australians Minister Linda Burney said at the time that Mr Maher and Mr Agius provided some very useful lessons, and the committees would keep the SA model in their considerations.

“The minister and the commissioner presented to the working group and the engagement group the processes, the model and the lessons, and it has been very instructive and useful and I’m very grateful for it,” said Ms Burney.

“Lessons around making sure that the grounds of consultations and representations were done thoroughly, issues around how it sits with other legislation, issues around how it might interface with the parliament. I’m not saying we’re going to mirror everything, but it has been really helpful to listen to what the South Australian model is, and most importantly, that it’s actually about to happen and it’s there to complement and support the work that we’re doing federally.”