7.13
The Committee recommends that, at a matter of urgency, the Australian Parliament amend the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and the Environmental Protection and Biodiversity Conservation Act 1999 to make the Minister for Indigenous Australians responsible for all Aboriginal and Torres Strait Islander Cultural Heritage matters. As an interim measure, the Australian Government should take action to prohibit clauses in agreements that prevent traditional owners from seeking protection through Commonwealth legislation.
7.14
Administrative responsibility for all Aboriginal and Torres Strait Islander heritage matters should be transferred to the relevant portfolio agencies reporting to the Minister for Indigenous Australians.
7.77
The Committee recommends that the Australian Government legislate a new framework for cultural heritage protection at the national level.
7.78
The legislation should be developed through a process of co-design with Aboriginal and Torres Strait Islander peoples
7.79
This new legislation should set out the minimum standards for state and territory heritage protections consistent with relevant international law (including the United Nations Declaration on the Rights of Indigenous People UNDRIP) and the Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia.
7.80
These minimum standards would be developed as part of a co-design process but consideration should be given to the inclusion of the following:
a definition of cultural heritage recognising both tangible and intangible heritage
a process by which cultural heritage sites will be mapped, which includes a record of past destruction of cultural heritage sites (with adequate safeguards to protect secret information and ensure traditional owner control of their information on any database)
clear processes for identifying the appropriate people to speak for cultural heritage that are based on principles of self-determination and recognise native title or land rights statutory representative bodies where they exist
decision making processes that ensure traditional owners and native title holders have primary decision making power in relation to their cultural heritage
a requirement that site surveys involving traditional owners are conducted on country at the beginning of any decision making process
an ability for traditional owners to withhold consent to the destruction of cultural heritage
a process for the negotiation of cultural heritage management plans which reflect the principles of free, prior and informed consent as set out in the UNDRIP
mechanisms for traditional owners to seek review or appeal of decisions
adequate compliance, enforcement and transparency mechanisms
adequate penalties for destructive activities, which include the need to provide culturally appropriate remedy to traditional owners
the provision of adequate buffer zones around cultural heritage sites
a right of timely access by Aboriginal and Torres Strait Islander peoples to protected cultural heritage sites
a process by which decisions can be reconsidered if significant new information about cultural heritage comes to light.
7.81
The Commonwealth should retain the ability to extend protection to and/or override decisions made under inadequate state or territory protections that would destroy sites that are contrary to Aboriginal and Torres Strait Islander peoples consent.
7.82
Traditional owners should be able to effectively enforce Commonwealth protections through civil action.
7.83
The legislation should prohibit the use of clauses in agreements that prevent traditional owners from seeking protection through Commonwealth legislation.
7.84
The Minister for Indigenous Australians should be the responsible Minister under the legislation.
7.89
The Committee recommends that the Australian Government review the Native Title Act 1993 with the aim of addressing inequalities in the negotiating position of Aboriginal and Torres Strait Islander peoples in the context of the future act regime. This review should address:
the current operation of the future act regime and other relevant parts of the Act including s31 (right to negotiate), s66B (replacement of the applicant) and Part 6 (the operation of the NNTT)
developing standards for the negotiation of agreements that require proponents to adhere to the principle of Free, Prior and Informed Consent as set out in the UN Convention of the Rights of Indigenous People (UNDRIP)
‘gag clauses’ and clauses restricting Aboriginal and Torres Strait Islander peoples access to Commonwealth heritage protections should be prohibited
making explicit the authority and responsibilities of PBCs and Representative bodies in relation to cultural heritage.
7.120
The Committee recommends that the Australian Government establish an independent fund to administer funding for prescribed body corporates (PBCs) under the Native Title Act 1999.
7.121
Revenue for this fund should come from all Australian governments and proponents negotiating with PBCs.
7.122
Alongside an increase in funding for PBCs, the Committee is of the view that there needs to be greater transparency and accountability in PBC proceedings within communities. Like all statutory bodies, PBCs are required corporate reporting responsibilities like conducting directors’ meetings, AGMs and special general meetings. However, the Committee heard concerning reports that some PBCs are not transparent in their decision-making with respect to their local community resulting in decisions being taken to allow the destruction of cultural heritage sites, against the wishes of community members. (See Box 6.5: Magazine hill case study.)
7.123
Therefore, the Committee considers that PBCs should, as part of funding agreements, be required to demonstrate transparency and accountability in their decision-making processes with respect to their local community.
7.124
In the context of the issue of transparency, the Committee notes that mining companies have publicly reported on outcomes of reviews of currently-held section 18 permits, and the high-level results of reviews of agreements with traditional owners undertaken since the interim report, as well as on their engagement with traditional owners more generally. The Committee considers this to be an appropriate practice provided there is agreement between the companies and traditional owners about the release of such information.