Aboriginal Heritage Act Reform

Articles Written by George Croft (Partner), Samantha Daly (Partner), Jee-Seon Lee (Partner), Lara Douvartzidis (Associate), Louise Dinnie (Law Graduate)

The blasting at Juukan Gorge, which has received considerable media coverage during the past month, has again brought to the fore what some regard as apparent issues with the Aboriginal Heritage Act 1972 (WA) (WA Act), now passed almost half a century ago.

The blasting had received ministerial approval in 2013. In 2014, archaeology excavations found several artefacts that dated back tens of thousands of years. Despite finding that these artefacts were of ‘high archaeological significance’ the Ministerial decision was not able to be reversed. The WA Minister for Aboriginal Affairs, Ben Wyatt MP, was not aware of the blast or the concerns prior to the event. The blasting proceeded with ministerial approval and exposed what some regard as the deficiencies in Western Australia’s existing cultural heritage protection system.

The inflexibility of the various Aboriginal heritage protection regimes across the country has been in focus in recent years. In Western Australia, the WA Act is currently the subject of review. In NSW, the Aboriginal Cultural Heritage Reform (NSW Reform) has been proposed. At Commonwealth level, the government’s review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC) in train and, more recently, a Joint Standing Committee has been appointed to inquire on the blasting at Juukan Gorge.

This article provides an update on the various reform processes and inquiries currently  in progress across the country.

The WA Act Review

The WA Act reform process has been the subject of extensive consultation over the past two years. The reform has been organised into four stages with the first two stages now complete. These  involved public consultation with stakeholders on a consultation paper released in March 2018 and a discussion paper released in March 2019. The final consultation on the draft Aboriginal Cultural Heritage Bill (Draft Bill) has been put on hold in wake of the COVID-19 pandemic.

The Draft Bill has not been tabled in Western Australian parliament, but some of the expected changes can be gleaned from the discussion paper. The discussion paper indicates that the changes will bring forward aspects of the current WA Act that work well and new approaches to make a modern, reflective and accessible heritage management process. The discussion paper provides an overview of nine broad reform proposals:

  1. Recognise the central role of cultural heritage in Aboriginal people’s wellbeing and affirm the importance of its protection.
  2. Define “place” in accordance with the Australia ICOMOS Charter for Places of Cultural Significance (The Burra Charter) as ‘a geographically defined area. It may include elements, objects, spaces and views. Place may have tangible and intangible dimensions.’ Further, it is to provide for Aboriginal remains to be dealt with appropriately.
  3. The third proposal recommends a new system for heritage management that is dealt with in sub-proposals:
    1. Give a role to Aboriginal people in heritage decisions through constituted and accredited Local Aboriginal Heritage Services, which will facilitate agreement-making and ensure the right people speak for country.
    2. Establish a skills based Aboriginal Heritage Council that will have a have a range of responsibilities including administering the Aboriginal Heritage Register, advising on land use proposals, advising the minister on Aboriginal heritage issues, providing financial assistance for conservation and promoting best practice for heritage conservation.
    3. Retain the Minister as a key decision-maker for land use proposals of State significance or significant impact to Aboriginal heritage. The Minister of Aboriginal Affairs will also have tools to intervene quickly where Aboriginal heritage is at imminent risk of loss from unauthorised use.
  4. Bring forward the presumption of protection from the current WA Act.
  5. Retain a mechanism to apply for consent to use land and introduce a referral system for land use proposals.
  6. Encourage and recognise agreement making between Aboriginal people and land users.
  7. Improve transparency by publishing reasons for decisions and ensuring rights of review and appeal are equitable.
  8. Bring the penalties for a breach into line with other heritage legislation and improve enforcement by allowing sufficient time for breaches to be thoroughly investigated and prosecuted.
  9. Retain Protected Areas and provide new mechanisms to enable Aboriginal people to care for them.

The discussion paper also proposes to establish a Directory of Heritage Professionals to aid in selection of appropriately qualified people and improving heritage standards generally.

 

NSW Act

NSW is the only state that does not have stand-alone Aboriginal cultural heritage legislation. The current system is subsumed within the National Parks and Wildlife Act 1974 (NSW). It has been argued that the current regime:

  • does not give Aboriginal people sufficient input over heritage management;
  • is outdated (and has been criticised by stakeholders and industry);
  • is inflexible and inefficient to administer; and
  • does not produce optimal heritage outcomes.

The reform process has been ongoing since 2011 with four phases of public consultation. The most recent stage was the release of the draft Aboriginal Cultural Heritage Bill 2018 (NSW) (NSW Bill) on 23 February 2018 for public consultation. The public consultation culminated in a Summary of Submissions Report 2018.

The NSW Bill proposes to give Aboriginal people greater ownership and control of their cultural heritage. It includes a more contemporary definition of ‘Aboriginal cultural heritage’ and related key terms such as ‘Aboriginal ancestral remains’, ‘Aboriginal cultural heritage significance’, ‘intangible Aboriginal cultural heritage’ and ‘Aboriginal object’. One particularly interesting part is the introduction of an Aboriginal cultural heritage Authority (ACHA) that acts with Ministerial oversight. The ACHA includes a provision for an improved information management system that would work hand-in-hand with a dedicated fund for strategic conservation and protection.

Since the 1 July 2020, Heritage NSW has had responsibility for the management of Aboriginal Cultural Heritage regulation functions under the National Parks and Wildlife Act 1974 (NSW), and all things Heritage NSW now have a stand-alone website as part of the move to the Department of Premier and Cabinet.

Ultimately, since the change of State government in NSW, the reform has been placed on the backburner with a lack of updates on the current status of the reform. It is likely that the reforms have been further delayed due to the COVID-19 pandemic.

EPBC Act Reform

Every 10 years, the EPBC undergoes an independent review process. The most recent 10 yearly review was announced in October 2019 with a discussion paper released in November 2019. Submissions on the discussion paper closed in April 2020 and a draft report was due to be given in June 2020, but has not yet been released.

One of the challenges the review is seeking to address is Indigenous peoples’ knowledge and role in the management of the environment and cultural heritage. In the discussion paper, the questions posed to those providing submissions included:

  • How can we best engage with Indigenous Australians to best understand their needs and potential contributions?
  • What mechanisms should be added to the EPBC Act to support the role of Indigenous Australians?

The draft report will reveal the answers provided for these questions by a range of stakeholders. The interesting part will come when the Final Report is released in October 2020 in the wake of the Parliamentary Inquiry’s findings (below).

Parliamentary Inquiry

On 11 June 2020, the Joint Standing Committee on Northern Australia (Committee) commenced an ‘Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia’ (Inquiry). The Committee has requested submissions by 31 July 2020 on the proposed terms of reference (see below). The Committee is then expected to deliver its report by 30 September 2020. The purpose of the Inquiry is to consider the blasting as a starting point for consideration of broader issues around Aboriginal cultural heritage preservation and relationships with mining companies.

The proposed terms of reference for the Inquiry are:

(a) the operation of the WA Act and approvals provided under the WA Act;

(b) the consultation that Rio Tinto engaged in prior to the destruction of the caves with Indigenous peoples;

(c) the sequence of events and decision-making process undertaken by Rio Tinto that led to the destruction;

(d) the loss or damage to the Traditional Owners, Puutu, Kunti Kurrama and Pinikura people, from the destruction of the site;

(e) the heritage and preservation work that has been conducted at the site;

(f) the interaction, of state indigenous heritage regulations with Commonwealth laws;

(g) the effectiveness and adequacy of state and federal laws in relation to Aboriginal and Torres Strait Islander cultural heritage in each of the Australian jurisdictions;

(h) how Aboriginal and Torres Strait Islander cultural heritage laws might be improved to guarantee the protection of culturally and historically significant sites;

(i) opportunities to improve indigenous heritage protection through the EPBC Act; and

(j) any other related matters.

Any interested individual or organisation can provide a submission (in any format) to the Inquiry addressing the terms of reference, by 31 July 2020.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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