7.1
Rio Tinto was not alone in exploiting inadequate state and Commonwealth legislation to pursue resources at the cost of cultural heritage. Case studies throughout the report demonstrate that Aboriginal and Torres Strait Islander peoples have suffered the loss of their cultural heritage sites at the hands of development−by many industries−for generations. Despite the national current awareness, and condemnation, of these destructive acts, they are ongoing.
7.2
The report has examined, in detail, the events that occurred at Juukan Gorge and the legislation in Western Australia that permitted these events to occur. It has also looked broadly at the state, territory and Commonwealth legislation that governs cultural heritage protection.
7.3
The Committee acknowledges that Rio Tinto has responded positively to its interim report and is working towards rebuilding its relationships and modernising its land use agreements not just with the PKKP but with all Aboriginal and Torres Strait Islander peoples on whose lands it operates.
7.4
The Committee, however, also considers that full transparency on heritage destruction, in particular around the company-internal decision-making processes leading to it, leave some questions about how the Juukan Gorge destruction could occur unanswered, even after such an extensive inquiry
7.5
The Committee also acknowledges that Rio Tinto, and the resources industry as a whole, has called for legislative modernisation. Proponents need clarity about the framework in which they are operating and Aboriginal and Torres Strait Islander peoples need surety that their lands will be protected and, if threatened, there are workable avenues of appeal open to them.
7.6
The WA Government has not responded to the findings of the Committee’s interim report. While the Committee is disappointed in this, it nonetheless reaffirms the Committee’s view that the nature of the Australian legal frameworks governing the protection of cultural heritage needs to be rethought.
Findings
7.7
The Committee is therefore making the following findings:
1
The Australian Parliament should legislate for an overarching Commonwealth legislative framework based on the protection of cultural heritage rather than its destruction, in line with the principles set out below. State and territory legislation should also be required to meet the principles set out in this report.
2
The Commonwealth, state and territory governments should endorse a set of standards that set best practice in the management of cultural heritage sites and objects and the development of cultural heritage management plans.
3
The economic benefits of protecting and celebrating cultural heritage sites should be promoted.
1−Need for an overarching Commonwealth legislative framework
7.8
States have failed. Lack of responses and concerns with WA legislation indicates that states will continue to fail without overarching legislative framework guiding the protection of Aboriginal and Torres Strait Islander cultural heritage.
7.9
This report has demonstrated that time and time again, states have prioritised development over the protection of cultural heritage−including through the enactment of site-specific development legislation intended to further dispossess Aboriginal and Torres Strait Islander peoples.
7.10
The resources industry has also called for reform of the legislative frameworks governing cultural heritage. It too wants a clear set of guidelines−with adequate penalties. There many in the industry who are working to rectify past poor practices and set higher standards for the industry as a whole and they recognise that singular events like Juukan Gorge diminish the industry as a whole.
7.11
The Committee notes that the development of new legislative frameworks at the national, state and territory level will, and should, take time to develop. Therefore, as a first step, the ATSHIP Act and the EPBC Act must be amended to make the Minister for Indigenous Australians responsible for all Aboriginal and Torres Strait Islander cultural heritage matters. All administrative responsibility for Aboriginal and Torres Strait Islander cultural heritage matters should be transferred to the relevant portfolio agency reporting to the Minister for Indigenous Australians
7.12
This is in line with the recommendations contained in the Committee’s interim report, which have not yet been actioned.
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.
Establishing a definition, and the primacy, of cultural heritage
7.15
International standards for Aboriginal and Torres Strait Islander cultural heritage have focused on the rights of Indigenous peoples globally and across a multiplicity of cultures. Debate over what cultural heritage is has been ongoing and has been conducted in numerous policies and discussion papers. Notwithstanding the progression, a clear and final definition of cultural heritage at an international level has not been implemented in Australia. Australia has also committed to a number of international conventions to protect the rights of Aboriginal and Torres Strait Islander peoples that are not reflected in national legislation.
7.16
Most legislation across Australia is inadequate in its definitions of cultural heritage, focussing primarily on artefacts and history, and failing to recognise the living nature of Aboriginal and Torres Strait Islander culture.
7.17
The Committee heard extensive evidence about the importance of connectivity between physical places and songs, ceremonies, protocols and stories that are vital to people’s identifies and sense of place. The Committee also heard that the landscape, waterways and journeys to sacred sites are often in themselves part of the site.
7.18
The legislative framework reveals there is inconsistency in approach across jurisdictions. New South Wales includes a definition of ‘Aboriginal objects’ and ‘Aboriginal place’ within its National Parks and Wildlife Act 1974, whereas Victoria includes a more comprehensive definition of ‘Aboriginal cultural heritage’ as including both landscape and intangible cultural heritage, within its standalone legislation. The Commonwealth definition in the Aboriginal Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act) refers to ‘Aboriginal tradition’ as meaning:
…the body of traditions, observances, customs and beliefs of Aboriginals generally or of a particular community or group of Aboriginals, and includes any such traditions, observances, customs or beliefs relating to particular persons, areas, objects or relationships.
7.19
This is closely related to the definition in legislation in the Australian Capital Territory in its standalone legislation. Although this definition would appear to encompass a meaning which acknowledges some complexity regarding concepts of country that include customs and belief, the reference to ‘Aboriginal tradition’ is engaged by reference to landscape rather than as an understanding of cultural heritage.
7.20
The UN Declaration on the Rights of Indigenous People (UNDRIP) defines the right to a series of meanings including ‘cultural heritage’, ‘traditional knowledge’ and ‘traditional cultural expressions’ per Article 31 as follows:
Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
7.21
However, Australia has not been obliged to implement standards such as the UNDRIP due to the declaration being a non-binding international instrument. The Committee considers that the time has come to review and change this situation
7.22
Most current definitions of cultural heritage place insufficient emphasis on intangible cultural heritage, despite the fact that it is an internationally recognised legal standard:
The “intangible cultural heritage” means the practices, representations, expressions, knowledge, skills–as well as the instruments, objects, artefacts and cultural spaces associated therewith–that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.
2. The “intangible cultural heritage”, as defined in paragraph 1 above, is manifested inter alia in the following domains:
(a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage;
(b) performing arts;
(c) social practices, rituals and festive events;
(d) knowledge and practices concerning nature and the universe;
(e) traditional craftsmanship.
7.23
The focus on objects in Australian legislative frameworks means that that heritage is seen as an inert object and an obstacle to redevelopment rather than an asset to be celebrated and protected. It also means that objects and artefacts are seen as removable and relocatable rather than intrinsically linked to place.
7.24
Cultural heritage laws at all levels, therefore, do not have conceptual clarity about what is being protected, and tend to link cultural heritage to land, objects or physical places only. Where there is a more complex understanding this is not consistently implemented across Australia. The effectiveness of implementing and complying with cultural heritage laws is hampered by a lack of a clear definition and this should be addressed in review of cultural heritage laws nationwide.
7.25
The Committee is also concerned about anecdotal reports of buffer zones around cultural sites being ‘delisted’ or reduced by bureaucrats in response to proponent pressure. Appropriate recognition of intangible cultural heritage may provide additional protection of the cultural meaning of landscapes around heritage ‘sites’.
7.26
There is currently no national agreed definition of cultural heritage, meaning that what comprises cultural heritage is defined and managed differently in each jurisdiction, with the Commonwealth, states, territories and local councils having separate and competing responsibilities. While local management plans are essential, they should be based on an agreed national definition of cultural heritage.
7.27
The above definition of intangible cultural heritage is contained in the UNESCO ‘Convention for the Safeguarding of the Intangible Cultural Heritage’. Australia is not yet a signatory to this convention.
7.28
Ratification of this convention would not only signal an international commitment to preserving Aboriginal and Torres Strait Islander culture but also support the economic development of sustainable cultural tourism opportunities−a goal which would contribute to Australia’s commitment to meet the UN Sustainable Development Goals 2030.
7.29
Furthermore, ratification of this convention would support the recognition of Aboriginal and Torres Strait Islander intangible heritage in Australian legislative frameworks.
7.30
The Committee recommends that the Australian Government ratify the Convention for the Safeguarding of the Intangible Cultural Heritage 2003.
Mapping cultural heritage sites
7.31
Mining companies have argued that without their presence on country many cultural heritage sites would not have been discovered. This argument is based on a false premise−that Western recording of sites is the only method of recording ‘historical’ cultural sites. Land dispossession and forced relocation has resulted in Aboriginal and Torres Strait Islander peoples being disconnected from physical sites, but cultural lore remains alive.
7.32
Nonetheless, it is important that sites are mapped in a manner which is accessible by proponents, governments and future generations. This cultural mapping should be undertaken by walking on country with traditional owners not by desktop survey. The control of mapping and information should be in the hands of the traditional owners.
7.33
Many traditional owners expressed reluctance to provide information about cultural heritage without the ability to control how the information is stored and to protect secret or sensitive information.
7.34
Currently most detailed mapping and studies of sites occur in the context of prospective development and is funded by proponents, rather than for the purposes of heritage protection. This information is then maintained by proponents with, in many cases, no mechanisms to share or return the information to traditional owners.
7.35
It is true that when proponents act responsibly towards traditional owners strong partnerships can be formed to map and protect cultural heritage sites. However, greater public resources must be made available for the mapping and recording of cultural heritage, with the interests of Aboriginal and Torres Strait Islander peoples paramount.
7.36
Alongside the mapping and registration of existing sites, records and maps of past destruction should be made available to traditional owners. The Committee heard distressing evidence of the destruction of sites and artefacts many decades ago that traditional owners have not been informed about until recently.
7.37
Cultural heritage registers at council, territory, state and Commonwealth levels must also be required to contained details of heritage destruction.
Identification of traditional owner groups
7.38
Currently no heritage framework successfully grapples with how to identify the correct Aboriginal and Torres Strait Islander group/s to speak with about heritage sites. The recognition of traditional owners is complicated by a long history of state-sanctioned disconnection of Aboriginal and Torres Strait Islander peoples and their lands and compounded by complicated legislative frameworks at multiple levels of government.
7.39
In jurisdictions where they operate, entities such as Land Councils and Prescribed Bodies Corporate (PBCs) have specific roles and functions that allow them to speak about cultural heritage with authority. However, some heritage laws pre-date native title laws and as such, newer bodies recognised under Commonwealth law may not be recognised under state laws.
7.40
Identifying appropriate and representative spokespeople is more problematic in areas where there is no clearly defined entity with statutory responsibility. However, many of the disputes about overlapping claims or entitlements to speak for country are a product of divisions caused by colonisation and Anglo-Australian laws. Native Title Law has unfortunately seen division and counter claims between applicants and respondents within Aboriginal and Torres Strait Islander people contending for Native Title recognition over claimable land.
7.41
The Committee heard examples where dissent has been fostered and exploited by proponents, such as FMG’s funding of Wirlu Murra and the Yindjibarndi having to fight for their exclusive claim to native title.
7.42
Similarly the contention within the Waanyi community over Magazine Hill in Queensland demonstrates the conflict between the use of Queensland Heritage Laws rather than the Commonwealth Native Title Act which, one Waanyi group claims, exposes Magazine Hill to destruction that could be prevented by applying terms under the Native Title Act.
7.43
The Victorian system of Registered Aboriginal Parties (RAPs) was suggested as a model for the recognition of traditional owner groups, but even this has raised concerns as entities seeking registration as a RAP do not need to satisfy that they are the only, or the most representative, body for traditional custodians of the relevant area.
7.44
Despite this, if registered, RAPs have the sole responsibility for evaluating projects that may impact cultural heritage sites. The unrepresentative nature of this approach was borne out by the concerns surrounding the Djub Wurrang trees, with multiple groups claiming cultural connection to the trees, but only one of these groups being responsible for evaluation and consent to destroy.
7.45
The recognition of who should speak for country is further complicated by the fact that customary law and decision making processes are not necessarily democratic in the sense that this concept is understood by a western world view. For example, customary law gives weight to the views of those with cultural responsibility, not necessarily all members of a group.
7.46
Therefore the process of recognising traditional owner groups will be unique to each jurisdiction, but this should not prevent the Australian Government from developing a framework to guide a process for recognising traditional owners.
Free, Prior and Informed Consent
7.47
As discussed in Chapter 6, Free, Prior and Informed Consent (FPIC) is a core underpinning principle of the UNDRIP. Aboriginal and Torres Strait Islander peoples, industry groups and government bodies are all calling for FPIC to be enshrined in Australian legislation.
7.48
There is a need for a nationally consistent approach which provides Aboriginal and Torres Strait Islander Australians with a primary role in decision-making. Aboriginal and Torres Strait Islander peoples must have greater access to their areas, sites and places, and the connected knowledge and cultural expression, and the law must empower them to protect their cultural heritage. This will enable them to care for heritage sites in line with their customary obligations, and contemporary aspirations.
7.49
Problems occur in cultural heritage protections where proponents and industries are permitted to self-regulate and develop their own protocols for consultation and consent with traditional owners. Due diligence processes for consultation and consent must be uniform across Australian jurisdictions to adequately protect cultural heritage.
7.50
Aboriginal and Torres Strait Islander peoples can lack bargaining power when dealing with multinational companies in the mining industry. However, there are also issues in other industries, large and small, which are affected by industry standards which circumvent proper consultation or seek to override obtaining FPIC by taking advantage of currently deficient protections at state, territory Commonwealth levels.
7.51
These issues also extend to infrastructure and development projects supported by government at various levels which impact on Aboriginal cultural heritage. This creates a system which undermines good faith negotiations and which can result in ineffective protection for cultural heritage.
7.52
To address FPIC the following must be observed:
the timing and method of consent–timeframes and sign-offs must be culturally appropriate and reflect decision-making processes that abide by the traditional law and custom of an affected Aboriginal and Torres Strait Islander group
ongoing consent issues–how to communicate and seek consent over the life of a project
processes for dealing with new information–if an agreement is already in place between a proponent and traditional owners and new information is unearthed, a clear process should be in place. Any new information about the significance of sites, or any associated knowledge that has potential to change traditional owners’ consent, should be disclosed, and the consent decision should be able to be revoked or altered.
7.53
Embedding FPIC in Australia’s legislative and regulatory frameworks would provide clear protocols for consultation and informed consent, and provide a measure of certainty for traditional owners, proponents and governments at all levels in decision-making processes.
Ban on ‘gag clauses’
7.54
There is also a need for legislative guidance about inclusions in agreements that diminish the rights of traditional owners. ‘Gag clauses’ are a particularly egregious example that prevented the PKKP seeking Commonwealth protections, as noted in Chapter 2.
7.55
It is understood that this industry practice has been re-evaluated and a commitment made not to use these clauses as a general approach. This, however, is not the case across all jurisdictions and it is also not clear that this will be a certainty. As such, ‘gag clauses’− which amount to prohibiting the exercise of right without the express consent of the proponent−should be prohibited at a Commonwealth, state and territory level.
A National Aboriginal and Torres Strait Islander Heritage Council
7.56
There is a need for a new independent statutory body to act as an Aboriginal and Torres Strait Islander voice to the Commonwealth Government in relation to cultural heritage decisions and processes. At present, protections under the ATSIHP Act result from an expert report, generally not drafted by an Aboriginal and Torres Strait Islander person, and are decided by the Commonwealth Minister for the Environment.
7.57
Similar to bodies that exist in some states, an independent National Aboriginal and Torres Strait Islander Heritage Council−made up exclusively of Aboriginal and Torres Strait Islander peoples−would go a long way toward empowering Aboriginal and Torres Strait Islander decision-making in cultural heritage.
7.58
The Australian Heritage Council currently has two Aboriginal and Torres Strait Islander-identified positions. However, its remit is broad and it is clear that an independent Aboriginal and Torres Strait Islander-only statutory heritage body is warranted to guide the protection of Aboriginal and Torres Strait Islander cultural heritage. As noted throughout the report, the final decision-maker in all jurisdictions is at a ministerial level. This is not culturally-appropriate, nor reasonable for ministers to not be supported in their decision making by Aboriginal and Torres Strait Islander input.
7.59
Victoria and the Northern Territory provide good examples of Aboriginal cultural heritage bodies with decision-making power, unlike the purely advisory Aboriginal Cultural Heritage Advisory Committee in NSW, or current Aboriginal Cultural Material Committee in WA that only requires one member to represent the interests of Aboriginal people.
7.60
An appropriately funded Council could hold a number of functions, including but not limited to:
conducting the investigation or engaging an independent expert to investigate an application for protection under a Commonwealth legislative framework
deciding protection applications, or acting as a co-decision-maker with the Minister
hearing appeals relating to decisions made by the Minister under Commonwealth protection legislation, or from state or territory jurisdictions
managing a national Register of Aboriginal and Torres Strait Islander Cultural Heritage
mediating disputes between proponents and Aboriginal and Torres Strait Islander groups;
advising on Commonwealth matters relating to Aboriginal and Torres Strait Islander cultural heritage
developing protocols and codes of practice for Aboriginal and Torres Strait Islander engagement, consultation and consent.
Review mechanisms
7.61
Under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) and the judicial review and standing provisions of the relevant Commonwealth, state and territory legislation there is scope for review of decisions relating to Aboriginal cultural heritage. However, the avenues for judicial review are confined first to administrative principles so that the decision of the relevant Minister must be shown to have been made in error in accordance with, for example, failure to follow proper process or unreasonableness.
7.62
The enforcement mechanisms for judicial review can be time consuming and costly. In addition, the narrow pathway for judicial review is only engaged under the existing legislation. At Commonwealth level, this means that there is only capacity for reviews of decisions which relate to Aboriginal places or objects, rather than decisions which might take into account cultural value.
7.63
This is reflected in the frameworks in states and territories which have weak or no enforcement mechanisms for damage to Aboriginal cultural heritage. An example is under the NSW planning and environment legislation which allows for State Significant Development (SSD) or State Significant Infrastructure (SSI) as declared by the relevant Minister, to override any consultation or permit requirements for protection of Aboriginal cultural heritage. This is similar to the provisions of the Western Australian AH Act and the section 18 provisions. There is no judicial review mechanism for these decisions.
7.64
The recent case of Sunstate Sands Bundaberg Pty Ltd v Aboriginal and Torres Strait Islander Bailai, Gurang, Gooreng Gooreng, Taribelang Bunda People Aboriginal Corporation indicates a shift in thinking in relation to negotiation. In that case, the NNTT found that Sunstate had not provided sufficient information in relation to a Cultural Heritage Management Plan (CHMP) to enable the Aboriginal Corporation to properly participate in good faith negotiations. The decision demonstrates that the courts will hold proponents to account when information is withheld or not sufficiently provided. This is a positive step in addressing industry standards which have previously attempted to circumvent cultural heritage protections.
7.65
The civil and administrative remedies available for damage to cultural heritage were irrelevant in the destruction of the caves at Juukan Gorge, as the legislative framework was able to be circumvented by way of approvals and contractual obligations. Criminal sanctions and enforcement were also not available as part of the remedies for the destruction of the caves, and this is the case in many jurisdictions – even where the provisions for taking action for destruction of Aboriginal cultural heritage exist.
7.66
This is, for example, illustrated in New South Wales where there have been few prosecutions for destruction of Aboriginal objects under the National Parks and Wildlife Act 1974, either because a permit was in place (which is a defence to any damage) or because planning policies and legislative instruments bypass the cultural heritage protections.
7.67
This is a matter which must be remediated. Appropriate review mechanisms should be key element of improved cultural heritage laws.
Compliance, enforcement and penalties
7.68
Rio Tinto has suffered significant reputation damage from the events at Juukan Gorge and its delayed apology. However, because the destruction was within the boundaries of the AHA (WA) no legal penalties were enforceable.
7.69
Where state legislative frameworks do contain penalties, these are manifestly inadequate and do not necessarily compensate Aboriginal and Torres Strait Islander for cultural losses, rather penalties are paid to the state.
7.70
Legislative frameworks also hold limitation periods for commencing enforcement proceedings, which are often restricted to one year. All stakeholders, including the resources industry, have called for stricter penalties and extended limitation periods commensurate with community expectations.
7.71
In addition, there is currently little capacity for traditional owners to seek enforcement actions, or any administrative review of decisions made by ministers or designated decision makers. This unfairly weighs legislative frameworks towards the destruction of cultural heritage.
7.72
Criminal penalties for causing harm to Aboriginal and Torres Strait Islander cultural heritage vary widely across jurisdictions in Australia, as noted in Chapter 5. In addition, criminal penalties and enforcement mechanisms for damage to Aboriginal cultural heritage are often much lower than penalties under other legislation for protection of the environment or similar. These penalties need to be raised to a level that will act as a deterrent.
7.73
Stronger enforcement mechanisms may help reduce circumstances of harm to Aboriginal cultural heritage, but there still is a need for legislation to provide for a culturally-appropriate remedy to traditional owners where those protections are breached. Methods for remedy should include:
Apology to traditional owners–this needs to be culturally appropriate, face to face and on country
Remediation of site/area/object to be conducted by offender, in consultation with the traditional owners
Corrective training for the perpetrators of the breach.
Restitution as agreed between parties.
New legislative framework
7.74
The above form principles on which a new Commonwealth legislative framework governing Aboriginal and Torres Strait Islander cultural heritage should be based.
7.75
Some matters will need to remain within state and territory legislation to ensure consistency with relevant planning and development laws, as long as these laws do not override cultural heritage protection.
7.76
The Committee acknowledges that some state and territory legislative frameworks have been modernised and all frameworks have aspects that that can be considered good practice. But all jurisdictions have omissions. As well as complying with Commonwealth legislation, all state and territory heritage frameworks should be modernised.
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.
Review of the Native Title Act
7.85
Alongside the establishment of new heritage legislative framework at the Commonwealth level, the Native Title Act should be reviewed with the goal of levelling the playing field in negotiations.
7.86
Concern was expressed that the future act regime present in the Native Title Act disadvantages Aboriginal and Torres Strait Islander peoples in negotiations.
7.87
The systematic use of initial binding agreements, ‘gag clauses’ (including clauses that restrict rights to seek Commonwealth intervention or to publicly raise concerns about the destruction of sites), full and final compensation clauses, along with timeframes of the future act process has meant that Aboriginal and Torres Strait Islander peoples are unable to adequately protect cultural heritage through agreements negotiated in the context of the Native Title Act.
7.88
Therefore the Committee considers that under a review of the Native Title Act 1993:
standards should be developed for the negotiation of agreements that require proponents to adhere to the principle of Free, Prior and Informed Consent as set out by UNDRIP
‘gag clauses’ and clauses restricting Aboriginal and Torres Strait Islander peoples access to Commonwealth heritage protections should be prohibited
the authority and responsibilities of PBCs and Representative bodies in relation to cultural heritage should be made explicit.
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.
2−Heritage standards
7.90
In 2020 the Heritage Chairs of Australia and New Zealand (HCOANZ) released Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia. This document sets out a vision for the protection, management and celebration of Aboriginal and Torres Strait Islander cultural heritage and was developed in collaboration with the chairs of Australia’s national, state and territory Aboriginal and Torres Strait Islander heritage bodies, with support from peak organisations representing every major land council and native title representative bodies. It states:
Dhawura Ngilan embodies the long-held aspirations of Aboriginal and Torres Strait Islander people for their heritage … It has been developed by the Aboriginal and Torres Strait Islander Chairs as members of the Heritage Chairs of Australia and New Zealand. It is offered to inform policy, underpin legislative change and inspire action.
7.91
Dhawura Ngilan sets out a series of practical steps to achieve better protection of Aboriginal and Torres Strait Islander cultural heritage. It recognises a number of the same issues that this Committee has found, including the need for modernised legislation frameworks to better protect cultural heritage.
7.92
The four visions articulated in Djawura Ngilan are:
1
Aboriginal and Torres Strait Islander people are the Custodians of their heritage. It is protected and celebrated for its intrinsic worth, cultural benefits and the wellbeing of current and future generations of Australians.
2
Aboriginal and Torres Strait Islander heritage is acknowledged and valued as central to Australia’s national heritage.
3
Aboriginal and Torres Strait Islander heritage is managed consistently across jurisdictions according to community ownership in a way that unites, connects and aligns practice.
4
Aboriginal and Torres Strait Islander heritage is recognised for its global significance.
7.93
Dhawara Ngilan calls for a truth telling process in which the historical loses of Aboriginal and Torres Strait Islander culture are told from Aboriginal and Torres Strait Islander perspectives. This incorporates the mapping and registers as discussed above as well as telling Australia’s history to Australians in a way that recognises the experience and contributions of Aboriginal and Torres Strait Islander peoples.
7.94
The Committee endorses Dhawara Ngilan.
7.95
The Committee notes that, at a roundtable on 21 September 2021, the Commonwealth, State and Territory Ministers with responsibility for Heritage and Aboriginal and Torres Strait Islander Affairs, noted Dhawara Ngilan.
7.96
The Committee considers this to be inadequate. Dhawara Ngilan, along with the findings of this report, set out an important path forward for the protection and celebration of Aboriginal and Torres Strait Islander’ cultural heritage and it should be endorsed and implemented.
7.97
The Committee recommends that the Australian Government endorse and commit to implementing Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia.
National standards for cultural heritage plans
7.98
The process for obtaining CHMPs should be brought up to a national standard that reflects the proposed legislative framework outlined above.
7.99
Negotiation of CHMPs or similar instruments varies widely across jurisdictions, as do the consultation requirements. Some states, like Victoria and South Australia, have appointed Aboriginal parties to speak for particular aspects of cultural heritage. This system is one which helps to ensure that the right people are consulted to speak for country. Bodies in this position must be empowered by FPIC rights and decision-making powers.
7.100
Representative Aboriginal and Torres Strait Islander bodies must also have the capacity to adequately contribute to CHMPs via resourcing to conduct cultural heritage surveys, undertake mapping and research exercises, and negotiate with proponents. Resourcing of this kind needs to come from an independent source, not from the proponent, to avoid undue influence over the Aboriginal and Torres Strait Islander party, and issues relating to conflict of interest and consent given.
Truth telling and reconciliation
7.101
Truth telling is an important component of recognising and accepting historical harms and a method of apology, commemoration and redress of these harms. Truth telling allows for:
understanding our complete national narrative
learning from, rather than repeating the wrongs of the past
restorying, being heard, healing, and change
Aboriginal and Torres Strait Islander peoples owning their experiences, stories, and futures.
7.102
Although not necessarily known as such, truth telling processes are an important part of how the wider Australian community understands past harms. Recent examples include:
Royal Commission into Institutional Responses to Child Sexual Abuse
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with a Disability
National Apology to Victims and Survivors of Institutional Child Sexual Abuse
National Apology for Forced Adoptions
National Apology to the Stolen Generation
7.103
Many Australians do not know the extent of the harms perpetrated on Aboriginal and Torres Strait Islander peoples nor how the continued destruction of cultural heritage actively harms Aboriginal and Torres Strait Islander peoples. Many would not be aware of the heritage sites on the lands on which they live.
7.104
This is why Dhuwara Ngilan calls for a national truth telling process as part of the protection, management and celebration of Aboriginal and Torres Strait Islander cultural heritage. It is only through recognising and mourning losses with Aboriginal and Torres Strait Islander peoples that protection and celebration can be achieved.
7.105
Dhuwara Ngilan states:
Telling the truth means framing these histories in ways that recognise Indigenous perspectives. Indigenous Peoples remain traumatised by the difficulty of finding evidence for historically documented massacres and other destructive acts. There are many more events, however, that exist in the memories of Indigenous Peoples that are today without documentation. It is important to consider Indigenous ways to memorialise all the truths of Australia’s past through culturally sensitive approaches and creative interpretation.
Memorialisation itself should be considered sensitively. There is great diversity amongst Aboriginal and Torres Strait Islander people, as demonstrated by the more than 250 different language groups spread across Australia.
Each group’s experience of colonial contact is different, and each group discusses and represents it in variety of ways. Telling the truth about Indigenous history is the foundation for a full understanding on the basis of which all Australians can come together in acknowledgement of a shared past and a shared future.
7.106
The Committee heard evidence that some resources companies hold a disturbingly high number of objects collected from heritage sites. Some made public commitments as part of this inquiry process to return objects to traditional owners. The Committee welcomes this commitment.
7.107
The Committee calls on all resource companies and state governments to ensure that objects are returned in a culturally sensitive manner with a truth telling process at the core.
7.108
Truth telling should take place as part of the mapping of existing and destroyed cultural heritage sites as recommended above. Sitting on country and being witness to the truth of the loss and grief of the PKKP people over the destruction of the Juukan Gorge sites was profoundly moving for the Committee. No Australian could fail to come away from such a process of truth telling without a better respect for this country’s past.
7.109
The Committee recommends that the Australian Government develops a model for a cultural heritage truth telling process that may be followed by all Australians−individuals, governments and companies−as a part of any process to engage with Aboriginal and Torres Strait Islander peoples and their cultural heritage.
3−Economic benefits
7.110
Regional and remote Aboriginal and Torres Strait Islander communities throughout Australia often face economic and social challenges. The mining industry has somewhat helped to address these challenges by providing royalties in return for agreements with traditional owners related to mining on country. Unfortunately, the mining industry’s provision of royalties often comes at the cost of heritage. While in some cases traditional owners agree to make this trade off, alternatives must be provided to ensure that traditional owners have other options to consider for the economic benefit of their communities.
7.111
Alternatives to resource extraction to promote economic development in regional communities need to be considered and more widely used. The Committee has another ongoing inquiry and intends to use that inquiry to further explore how the preservation of cultural heritage can be leveraged for the economic benefit of traditional owners.
7.112
Seed Aboriginal and Torres Strait Islander Youth Network submitted a desire to use their cultural heritage to build economic opportunity:
We don't need mining. We've done enough of it already. Leave what's there already. Don't open up anything new. There are so many industries for us rather than the most ancient living culture on the planet. We should definitely not be destroying our cultural sites. They are the real money makers into the future. Mining is short term. There is too much destruction and too much risk to our water. We are the driest continent on earth. We should be doing nothing to risk our water. Our culture goes in depth, it goes into the water streams, into the springs, and it moves across Australia. That's the way we need to be looking forward.
Do you want mining or do you want this cultural education stuff that will build your community up and we'll do our best to keep it clean and give jobs to future generations for a long time to come? I'm pretty sure that my people around here and a lot of other mobs too are going to pick the stuff that's not damaging their country. We only have one choice most of the time. They're only giving us a choice of mining, mining, mining. We need other ways to make money to boost the economy and other choices. They are out there. We need our government to support us.
7.113
A component of best practice in protecting and managing cultural heritage is ensuring that there are practical and real pathways for Aboriginal and Torres Strait Islander engagement. This includes by providing and developing policies for Aboriginal and Torres Strait Islander employment through industry or government to enable joint management where practicable, and education of Aboriginal and Torres Strait Islander peoples and non-Indigenous people regarding cultural heritage.
7.114
Some key measures for Aboriginal and Torres Strait Islander engagement may include:
economic opportunities, access and benefit sharing
cross-cultural and heritage training for proponents and developers
repatriation and sharing of traditional knowledge
management of knowledge and site recordings
Aboriginal and Torres Strait Islander Ranger and Caring for Country projects
7.115
Access and benefit sharing is important to improving culturally appropriate engagement processes. One of the key issues arising from Juukan Gorge, highlighted by the submission of the PKKP, is that contractual obligations and negotiations disempower traditional owners and native title holders. This reflects a deeper problem in how benefit sharing is understood within industry.
7.116
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol) is a leading international instrument on access and benefit sharing which recognises the appropriate approach to working with Aboriginal and Torres Strait Islander communities. Although Australia is not a party to the Protocol it has been included in some legislation, for example as part of reforms of the Biodiversity Act 2004 in Queensland. The Protocol could be implemented as part of national cultural heritage protections.
7.117
Currently there are few economic or other benefits that Aboriginal and Torres Strait Islander peoples gain from negotiations over use of their land by mining companies. As discussed in Chapter 3, the Murujuga do not even receive mining royalties as a trade-off for the protection of their country. The Aboriginal and Torres Strait Islander groups that do receive royalties have their own challenges; royalties are often meagre compared to the worth of the mining industry and a significant portion is often spent servicing the requirements of industry such as administration costs of PBCs in relation to mining, and work related to the negotiation of agreements.
7.118
Multiple Aboriginal and Torres Strait Islander stakeholder groups voiced concerns with the Committee over the expenses that are involved in responding to the requirements of industry. There were concerns that such expenses detract from the abilities of PBCs to invest in other necessities for their communities.
7.119
PBCs undertake an important statutory role and should be funded separately for this so royalty payments can be used for the benefit of their community’s economic development. This funding may still need to come from industry, who benefit from the work undertaken by PBCs, but should be administered by an independent fund.
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.
7.125
The Committee recommends that the Australian Government increase the transparency and accountability requirements on Prescribed Body Corporates (PBCs) and Native Title Representative Bodies under the Native Title Act 1999 to require that they demonstrate adequate consultation with, and consideration of, local community views prior to agreeing to the destruction/alteration of any cultural heritage sites.
Hon Warren Entsch MP
Chair
15 October 2021