6.1
The Commonwealth Government’s legislative framework provides protection for cultural heritage sites on lands in Commonwealth control, and provides remedy for seeking injunction against state-authorised destruction.
6.2
Australia is also party to a range of international agreements and conventions that provide for the rights of Indigenous peoples. These agreements and conventions provide frameworks for the management and preservation of tangible and intangible cultural heritage.
6.3
The Committee’s views on the future for the Commonwealth legislative framework and the role of international agreements is discussed in Chapter 7.
Commonwealth legislation
6.4
The Commonwealth legislative framework comprises the:
Aboriginal and Torres Strait Islander Heritage Protection Act 1984
Environment Protection and Biodiversity Conservation Act 1999
Protection of Movable Cultural Heritage Act 1986
Underwater Cultural Heritage Act 2018
Aboriginal Land Rights Act 1976 (discussed in chapter 5)
6.5
This framework has serious deficiencies in its protection of cultural heritage.
Aboriginal and Torres Strait Islander Heritage Protection Act 1984
6.6
The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act) is designed as a system of protection by application, where Aboriginal and Torres Strait Islander peoples or interested parties can apply to the Commonwealth Minister of the Environment for protection of areas and objects.
6.7
The limitations of the ATSIHP Act were apparent in the Juukan Gorge disaster, as it is legislation of last resort where state and territory protection is not sufficient. It also requires Aboriginal and Torres Strait Islander groups to take the initiative, rather than creating protection from the outset and without application, as the Minister can only act where they receive an application.
6.8
The provisions of the ATSIHP Act allow for the declaration of an area only to be protected and only where all other state and territory pathways have been exhausted. It is therefore limited as a means for protecting cultural heritage as a holistic concept, and it was also not sufficient for the purpose of protecting Juukan Gorge, as discussed in Chapter 2.
Box 6.1: Case Study: Junction Waterhole
In the 1980s, the Northern Territory Government began developing a plan to dam the Todd River as part of a flood mitigation project. The project was stalled by traditional owner protests that the development would cause sacred sites to be inundated. In 1988, a ‘50 year flood’ caused considerable damage and resulted in the deaths of two homeless Aboriginal people who were camping in the usually-dry riverbed. The flood prompted a new proposal for a dam site at Junction Waterhole.
Junction Waterhole had been known as a sacred site since 1984. An approval was initially issued in 1989 for the development by the NT Aboriginal Areas Protection Authority (AAPA), which was a necessary approval under NT law for the project to go ahead. Controversy and outrage led the AAPA to withdraw the authority certificate in 1991, which resulted in the first ever ministerial override of the AAPA in April 1992. In justifying the decision, the Minister of Works put great emphasis on the need to protect the lives of Aboriginal people living in the riverbed.
The NT Government’s decision was thwarted in this case by the then Federal Minister for Aboriginal Affairs. The Minister sought a review of the project under section 10(4) of the ATSIHP Act from Hal Wootten QC, who produced an extensive report covering flood mitigation, engineering, environment, politics, finance and Aboriginal rights, and ultimately recommended against the dam.
To justify a $20 million dam in the name of the safety of a hundred or so homeless Aboriginal people while having refused for a decade to acknowledge their problems is hypocritical and cynically opportunistic.
The Federal Government then put a 20-year moratorium on the dam’s construction in the first ever application of the ATSIHP Act.
6.9
The requirement for making a declaration in relation to Aboriginal heritage under the ATSIHP Act is that the area be declared a place of significance. ‘Significance’ is determined by the Minister and the purpose of any declaration is to protect an Aboriginal place or object from injury or desecration. Once declared, any damage to the place or object will result in criminal sanctions. The decision by the Minister to declare a place or object as significant under the ATSIHP Act is also subject to remedy through judicial review. Recent cases have challenged the decision making of the Minister.
6.10
In the circumstance of a potential breach of the ATSIHP Act, only the Minister has the statutory power to seek a Federal Court injunction to stop or prevent conduct that would otherwise be a criminal offence under section 22. In addition, there are no civil enforcement provisions for the traditional owners on whose behalf the protection has been enacted, or for anyone else, to seek to enforce the Act.
6.11
The ineffectiveness of the ATSIHP Act is evidenced by data from the Department of Agriculture, Water and Environment (DAWE) and as reported in the 2016 State of the Environment (SOE) report. The 2016 SOE report notes:
The ATSIHP Act has done little to fulfil its intended purpose of protecting significant Aboriginal areas or objects. Between 2011 and 2016, 32 applications were received for emergency protection under s. 9 of the Act, 22 applications were received for long-term protection under s. 10 of the Act, and 7 applications were received for protection for objects under s. 12 of the Act. During the past 6 years, no declarations under ss. 9, 10 or 12 of the Act were made.
6.12
Updated data on applications has not yet been made available by DAWE at the time of writing, a fact which raises concerns about the Department’s implementation of the principles of transparency.
Box 6.2: Case study: Butterfly Cave
The Butterfly Cave and its surrounding bushland is an Awabakal women’s place, a key focus of cultural activity and a connection to cultural practices and ancestors. Over ten years ago the land was sold to Roche Group/Hammersmith Pty Ltd who planned to build a housing estate in the area which would have resulted in the destruction of the cave, the traditional journey path and surrounding bushland. Awabakal people were never consulted and have fought to protect the cave ever since.
Awabakal women and the Sugarloaf and Districts Action Group (SDAG) have been working to protect the Butterfly Cave. Their battle has been long and hard, taking a toll emotionally, mentally, and spiritually. Despite their efforts their culturally significant site is still at risk.
In 2013 the NSW Government made a NPW Act s84 declaration to protect the cave. But the protected area only extended for a 20-metre radius from the cave centre. It was the smallest declaration ever granted for a site in NSW which would have allowed any development to overlook the cave. A follow up 2016 application was refused. Unsurprisingly the SDAG now has no faith in NSW legislative protections.
An ATSIHP declaration was made in 2019, due to efforts from the NSWALC and the Awabakal Land Council Group, with the SDAG working closely. However, despite the site being declared as a significant Aboriginal area under the Act, the declaration still would have allowed the housing development to be built in too close proximity to the site. This was only the second time since 1999 that the Commonwealth had acted to protect a site under the ATSIHP Act.
Mrs Anne Andrews and Ms Annie Freer of SDAG have alleged that throughout this process they have received various threats. They also allege a local Member of the NSW Parliament was threatened because of his support for the Butterfly Cave.
The Butterfly Cave is still under threat. The area subject to the declaration has been significantly reduced and the development amended so its boundaries now lie just outside the Declared Area, which excludes the traditional journey path. Breach of the declaration would result in fines of up to $111,000 for the developer, but the Awabakal women have expressed concern that such penalties would be insignificant as a deterrent.
Recent trend indicating increase to applications and declarations
6.13
Recent case law has demonstrated that there has been a spate of applications for declarations under the ATSIHP Act from 2020 to 2021. Recent gazettals of applications made under ATSIHP and declarations issued by the Minister also support a finding of a recent uptick in applications and declarations being made including:
for the protection of the former Anglican Holy Trinity Church grounds, in Huskisson, New South Wales
for the preservation and protection of ‘Ravensworth Estate’, and including Bowmans Creek and Glennies Creek, in the Hunter Valley, New South Wales
for the protection of a specified known as Burragorang Valley, near Warragamba, New South Wales
for the protection of a specified area known as ‘Apparrlu (Waubinin Mabauzi Lag and Waubinin Malu)’ on Murulag (or Prince of Wales Island), Torres Strait, Queensland
for the protection of a specified area known as Djaki Kundu, near Gympie, Queensland.
6.14
The increase in applications made since the destruction of the caves at Juukan Gorge an indicator that the existing system of protection by declaration is being used proactively as far as is possible.
Time lags and delays in making declarations
6.15
Despite the increase in applications, the average time for the making of declarations, once notice of an application has been made, appears to be approximately 2 years. The recent declaration of the Mount Panaroma site as protected under section 10 of the ATSIHP Act commenced from the application made in October 2019 to be declared by the Minister as a protected site in May 2021. The Butterfly Cave at West Wallsend in NSW was first lodged as an application in October 2017 and declared as a protected area in January 2019. This is a significant length of time in the context of potential threats to destruction of cultural heritage, particularly given that the declarations have tended to follow longer running public campaigns. The heritage continues to be under threat even once the declaration is made (see case study) and requires significant ongoing input and resources from Aboriginal and Torres Strait Islander peoples.
6.16
The ATSIHP Act provides the Minister with wide discretion, subject to administrative law review limitations, to make a decision on declaring an area protected under the ATSIHP Act. Section 9, which deals with emergency declarations, gives the Minister scope to decide if a site should be protected ‘if he or she is satisfied that it is necessary’ In section 10, the Minister can make a decision provided he or she ‘has considered such other matters as he or she thinks relevant’. These matters, provided they are not irrelevant, can include balancing factors (as in the health and safety concerns for the blasts at Juukan Gorge) that can outweigh protection of cultural heritage with little recourse.
6.17
There are also exemptions under the ATSIHP Act even when a declaration has been made and protection granted. For example, even if an emergency declaration is made under section 9, if a certificate under the Protection of Movable Cultural Heritage Act 1986 is in force, the declaration will not prevent the export of an Aboriginal object.
Box 6.3: Case study: Gomeroi lands and Shenhua mine
Gomeroi lands were under threat of an open-cut mining project in the middle of the Liverpool plains. The project belonged to Shenhua Watermark, a Chinese company. Cultural heritage that was threatened included a mortuary trail, multiple burial sites, multiple grinding grooves and a place of post-colonial massacre. The Gomeroi consider this area to be their Gallipoli site, their war memorial.
Poor perceptions of NSW cultural heritage protections led the Gomeroi to pursue an ATISHP application as their only course of action to protect their heritage. An ATSIHP application was made in 2015, with a follow up application made in 2017 at the request of the Department to ensure all relevant evidence was included. In total the application had over 1,000 pages of evidence.
The Minister for the Environment agreed that the mine would irreversibly destroy sacred places and that destruction would cause high levels of emotional and spiritual devastation. It was also agreed that the Gomeroi’s cultural and heritage was of immeasurable value.
Nevertheless, in 2019 the Minister chose to not make a declaration to protect Gomeroi cultural heritage. The decision was made on the grounds that the ’expected social and economic benefits of the mine to the local community outweighed the destruction of these areas of immeasurable cultural values’. This was despite accepted doubts about the potential benefits of the mine to State and National economies.
The Gomeroi were devastated, they were bewildered that despite the Minister’s recognition of the value of their culture it could be destroyed due to economic interests. They said that they felt duped that the ATSIHP Act was disregarded in favour of the interests of a foreign owned company.
In April 2021 the NSW Government reached an agreement with Shenhua to withdraw its mining lease application due to opposition from the local community who feared the mine’s impact on the area’s fertile food-growing soil. It is not apparent the the Gomeroi’s concerns were taken into account in this decision.
Judicial review mechanisms
6.18
Since the events at Juukan Gorge there has been a growth in the number of cases brought under the ATSHIP Act.
6.19
The growing number of cases brought under the ATSIHP Act by Aboriginal and Torres Strait Islander groups, while a demonstration of healthy separation of powers under the Constitution, also indicates that decisions of the Minister are not effectively protecting cultural heritage.
6.20
The recent case of Onus v Minister for the Environment [2020] FCA 1807 followed a series of cases relating to scar trees in Victoria threatened by construction of a highway through or near the trees. The Federal Court found the Minister had erred in refusing to declare several of the trees as protected under the ATSIHP Act and the matter was reverted for further decision. Given this was the culmination of several litigation matters, all requiring resourcing and responsibility of Aboriginal communities, there is a case to be made for co-designing decisions relating to cultural heritage from the beginning – rather than after expensive and time consuming litigation.
Stakeholder perceptions of ATSIHP
6.21
Throughout the inquiry stakeholders conveyed their perspectives on the ineffectiveness of the ATSIHP Act. Many stakeholders considered the replacement of the Act as the best course of action to address its inadequacies.
…the Law Council supports replacing the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) with new standalone legislation that provides effective protection to First Nations cultural heritage, having regard to the deficits of the current Act’s operation, and is accompanied by adequate funding of First Nations representative bodies in order to address current power imbalances.
6.22
Professor Samantha Hepburn expressed significant criticisms of the ATSIHP Act, identifying that there are strong gaps in the scope of the protection provided by the Act. Professor Hepburn identified the following issues:
It is inappropriate for the act to operate as a ‘last resort’ measure because of the inadequate legislation that exists for many states and territories. In Western Australia, the act is often actually utilised as a ‘first resort’ and it is inadequately structured to provide this protection
The procedures under the ATSIHP [Act] are extremely weak. The basic requirement that the Commonwealth minister consult with State or Territory ministers (rather than the impacted traditional owners) is unnecessarily time consuming, administratively burdensome and insufficiently consultative
The reporting requirements under ATSIHP [Act] are a significant burden and markedly increase time and administration costs
Outside the scope of the interim declarations–which can only last for a maximum period of 60 days–obtaining a long-term protective declaration is difficult and time consuming. By the time a declaration is obtained, ‘at risk’ cultural heritage may already have been damaged or destroyed by corporate entities, like Rio Tinto, operating within the legal mandate of the State.
6.23
Many stakeholders have had negative experiences with the ATSIHP Act including the WGAC. In 2017 WGAC sought protection for a sacred site referred to as Spear Hill, a site that has evidence of occupation back into the Pleistoscene. Fortescue had sought approval from the WA Aboriginal Affairs Minister to construct a railway and mine in the area with only preliminary and cursory knowledge of heritage about the area. In response WGAC attempted to pursue an ATSIHP Act declaration. However, it was not successful. WGAC’s perspective of the legislation is that:
The “last resort” nature of the ATSIHP Act is a potentially useful concept, as a mechanism to protect significant places that become threatened through non-compatible land uses. The practical experience of the Commonwealth’s “last resort” provisions however confirm the laws to be cumbersome, slow and ineffectual. The same economic momentum that pressures the state decision makers affects the Commonwealth, and outcomes that lead to protection outcomes are rare.
Environment Protection and Biodiversity Conservation Act 1999
6.24
The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is a central piece of legislation guiding protection of Aboriginal and Torres Strait Islander peoples and non-Indigenous cultural heritage.
6.25
With national reach, it is designed as a means of protecting the environment, including cultural heritage, through rigorous assessment and approvals processes with oversight and decision making power in the hands of the Commonwealth Minister for the Environment, with the linked Department administering the legislation. Its objects include:
protecting the environment, including matters of national environmental significance (MNES), which can include cultural heritage as assessed
providing for, protecting and conserving cultural heritage
promoting a co-operative approach to management of the environment, including with Aboriginal and Torres Strait Islander peoples and across levels of government.
6.26
The capacity to carry out these objects is guided by ‘appropriateness’ as to the role of government in assessing and deciding upon MNES. In carrying out this role, there is flexibility within the legislation to allow for state and territory legislative processes to cross over with the Commonwealth. In effect, this takes place through bilateral agreements on which MNES, and which state or territory processes will be managed by either jurisdiction.
6.27
The process of listing of world heritage, national heritage and Commonwealth heritage places is described in the Act.
Only the Australian Government can nominate places in Australia for entry onto the World Heritage List. The World Heritage Committee, established under the World Heritage Convention, assesses each nomination and decides whether to enter a place on the World Heritage List. A property cannot be included on the World Heritage List without the consent of the State where the site is located.
National Heritage sites and their heritage values are recorded on the National Heritage List. Natural, historic and Indigenous sites within Australia can be listed as National Heritage. The Environment Minister decides whether to include a place on the List, following the consultation process set out in the Act.
Heritage on Commonwealth land can be listed, managed and protected. The purpose is to give the Commonwealth greater control over heritage places in areas the Commonwealth owns or controls. Heritage on Commonwealth land can be listed, managed and protected. The Environment Minister decides whether to include a place on the Commonwealth Heritage List, following the consultation process set out in the Act.
6.28
Very few sites of Aboriginal and Torres Strait Islander heritage are listed on the World Heritage List or the National Heritage List. The complex process of listing under the Act means that it is largely ineffective in protecting Aboriginal and Torres Strait Islander heritage.
6.29
The EPBC Act does not, and did not, protect cultural heritage from destruction like that at Juukan Gorge. It is this, together with the gaps left by the ATSIHP Act, which creates a situation that leaves cultural heritage vulnerable to desecration at a national level.
Gaps in the EPBC Act
6.30
The question raised by the destruction of the caves at Juukan Gorge, which was not a site listed or protected under the EPBC Act, is what else is excluded and how far protection of Aboriginal and Torres Strait Islander cultural heritage under the EPBC Act actually goes.
The matters protected under the EPBC Act may include heritage places listed for their Indigenous cultural heritage values. Other matters protected under the EPBC Act may also have cultural significance for Aboriginal and Torres Strait Islander peoples, although they may be protected or listed for reasons that do not relate to their cultural significance.
6.32
Protection of Aboriginal and Torres Strait Islander peoples’ cultural heritage is currently sometimes more reliant upon non-specific protection for non-Indigenous peoples’ cultural heritage (for example, where environmental values may have been identified), including under international law or policy, than it is upon explicit consideration by Australian policymakers and legislation. This could be a result of the incomplete definition or understanding of Aboriginal and Torres Strait Islander cultural heritage, not just within the EPBC Act, but more broadly.
Recommendations to amend the EPBC Act
6.33
The EPBC has been subject to a range of reviews and recommendations for the improvement of environmental laws relating to cultural heritage. Many of the same or similar recommendations have been made previously, in particular in the 2016 State of the Environment Report (2016 SOE).
6.34
The 2016 SOE noted that there should be increased Aboriginal and Torres Strait Islander peoples’ engagement and that cultural heritage is not adequately protected. It also outlined risks of damage to cultural heritage in Western Australia due to the gaps in the law, and warned of the potential for sites of significance to be destroyed – a warning which has proved to be prescient.
6.35
The 2016 SOE noted that it was a ‘major’ risk to the heritage of Australia that there would be loss of Aboriginal and Torres Strait Islander peoples’ knowledge and an ‘almost certain’ possibility that there would be ‘an incremental destruction of Aboriginal and Torres Strait Islander peoples places’ from development and pressures on the environment.
2020 review of the EPBC Act
6.36
The most recent compulsory review of the EPBC Act was undertaken in 2020 by Professor Graeme Samuel (Samuel Review). The Samuel Review recommended that there be additional obligatory National Environmental Standards (NES) included with revised legislation, and highlighting engagement with Aboriginal and Torres Strait Islander communities.
6.37
The Samuel Review outlined existing policies and legal issues relating to cultural heritage and Aboriginal and Torres Strait Islander engagement with rigour. The Review concluded that a review of national cultural heritage laws should be undertaken to revise and develop more appropriate laws to protect cultural heritage. The final report of the Review, delivered in October 2020 (EPBC Act Final Report), stated:
The operation of the EPBC Act has failed to harness the extraordinary value of Indigenous knowledge systems that have supported healthy Country for over 60,000 years in Australia. A significant shift in attitude is required, so that we stop, listen and learn from Indigenous Australians and enable them to effectively participate in decision-making. National-level protection of the cultural heritage of Indigenous Australians is a long way out of step with community expectations. As a nation, we must do better.
6.38
The EPBC Act Final Report outlines in some detail the ineffectiveness of the EPBC Act in protecting Aboriginal cultural heritage. The Report described the current framework as ‘tokenistic’ and symbolic’ rather than prioritising Aboriginal and Torres Strait Islander peoples engagement and protection of cultural heritage. Many of the recommendations in the Report would provide positive steps towards bringing protection of cultural heritage.
6.39
Broadly, the Samuel Review makes key recommendations that the EPBC Act should address issues related to Aboriginal and Torres Strait Islander engagement, environmental decision making and deficiencies in cultural heritage protection, including:
re-evaluating the role of the Indigenous Advisory Committee and establish an Indigenous Engagement and Participation Committee (IEPC) with a decision making and co-design role in decisions affecting cultural heritage
making reference to and consideration of Aboriginal cultural heritage and engagement with Indigenous communities a key part of the approvals process under the EPBC Act
requiring consultation with Indigenous communities early, including obtaining Free, Prior and Informed Consent (FPIC) and following the Nagoya Protocol, as part of any assessment process and by including protocols as an engagement approach.
introducing a Commissioner as part of a Compliance Assurance Commission with oversight and guidance from the IEPC in relation to cultural heritage matters
introducing criminal enforcement mechanisms for harm of cultural heritage, noting that criminal enforcement measures currently exist but should be strengthened for cultural heritage protections
6.40
In summary, the EPBC Act could be significantly improved to empower Aboriginal and Torres Strait Islander peoples decision making and to protect cultural heritage.
Stakeholder perceptions
6.41
The EPBC was a key topic of discussion throughout the inquiry. Similar to the ATSIHP ACT, stakeholders were unanimous in their views that the EPBC is a flawed piece of legislation that does not meet the expectations of Aboriginal and Torres Strait Islander peoples or any other stakeholders. A common view of stakeholders was that the EPBC should be retained, but that it should be amended to ensure that it can provide protection. In addition, some stakeholders such as Australia ICOMOS and Aboriginal Victoria believe that the ATSIHP Act should be incorporated into the EPBC. Many stakeholders noted the Samuel Review and supported its findings.
6.42
Mining companies consistently conveyed views that Aboriginal and Torres Strait Islander cultural heritage is best protected by state heritage laws. BHP stated:
Currently, State and Territory legislation is the primary means for regulating and protecting Aboriginal and Torres Strait Islander cultural heritage across Australia. BHP believes that this approach is effective and that the current balance between State and Federal cultural heritage laws should be maintained.
6.43
BHP also added that:
We consider that Commonwealth laws play an important role in protecting cultural heritage that is of national and world heritage significance, and in taking into account Indigenous values associated with matters of national environmental significance. This, in our view, should continue as the primary focus of the EPBC Act in relation to Indigenous peoples heritage.
6.44
The Law Council of Australia raised a range of issues regarding the limitations of the EPBC Act, stating:
Careful consideration should … be given to the emerging findings from the current Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) review [the Samuel Review] regarding the protection of First Nations cultural heritage, and the opportunities to improve its role in achieving this objective, as part of a broader suite of Commonwealth legislation.
6.45
The Central Land Council considered the required listing of cultural heritage to be a key flaw:
The CLC does not support the proposition that the EPBC Act should be the only, or primary Commonwealth legislation for the protection of Indigenous cultural heritage. The EPBC Act only applies to developments that meet certain criteria, for Indigenous cultural heritage the development must impact on heritage listed on the National Heritage List. It is the CLC’s experience that traditional owners are reluctant to expose their sacred knowledge to the public and they often do not want to have their sacred sites listed on a publically available list. They often only bring the existence of sacred sites to the attention of others when those sites are in danger of damage or desecration.
Native Title Act 1993
6.46
The Native Title Act 1993 (NT Act) was introduced in response to the Mabo decision in the High Court which recognised the rights and interests of Aboriginal and Torres Strait Islander people in land and waters according to their traditional laws and customs. The NT Act has been amended and interpreted over the past 28 years for the purpose of making native title determinations that give Aboriginal owners custodianship of land to which they have proven an unbroken and ‘unextinguished’ historical connection.
6.47
The NT Act establishes the National Native Title Tribunal (NNTT) to mediate in native title proceedings; determine certain applications and objections relating to future acts; assist in the negotiation of Indigenous Land Use Agreements (ILUAs); provide assistance to native title holders, PBCs and representative bodies; and act on certain reviews and inquiries. The NT Act is limited to review and determination of native title claims, including considering whether extinguishment has occurred. There have been several important native title decisions in the Federal and High Courts.
6.48
Native title rights are defined in accordance with the traditional law and custom of the Aboriginal and Torres Strait Islander group to whom they belong. They are not limited in scope by legislation, but only by reference to the traditional law and custom of the group, and often their legal recognition in determination by the Federal Court is limited by negotiations between the traditional owner group and the state or territory government. Rights may be exclusive or non-exclusive. Commonly, native title rights and interests include:
right to access, use and occupy an area
right to use resources (e.g. hunt, fish, gather bush tucker, etc.)
right to conduct ceremonies and traditional practices, and teach law and custom
right to visit and protect sites of significance.
6.49
Native title also affords certain procedural rights to claim groups and native title holders, such as the right to comment on or negotiate in development proposals. Procedural rights are directly proportionate to the size of the project. Mining and extractive projects attract the highest procedural right, the right to negotiate under subdivision P. There is no right to veto.
Box 6.4: Case study: Magazine Hill
Magazine Hill is a culturally significant site to the Waanyi people, situated on the boundaries of Century Mine. There are two separate groups of Waanyi who have differing perspectives about current plans for the site. There is a cultural heritage management plan for the site, agreed to by the Waanyi Native Title Aboriginal Corporation (the Waanyi PBC) which will result in the destruction of the Hill, including an important rock shelter. Despite the Waanyi PBC’s agreement, some members of the Waanyi community are vehemently opposed to the destruction of Magazine Hill, causing some conflict in the local area.
Century Mine was the first mine established in Queensland through processes in the Native Title Act 1993 (Cth). Core to the process was the establishment of the Gulf Communities Agreement in 1997. The agreement was signed by four Native Title Groups, the company and the Queensland Government. The agreement covers land use and benefit sharing and specifies that Magazine Hill would be preserved and protected from mining activities.
In 2010 the Waayni People achieved Native Title over their country. But the area of the mining leases was excluded from the Waanyi native title determination application, so there is no determination with respect to Magazine Hill itself.
New Century Resources (NCR) acquired Century Mine in 2016. Following this acquisition, geotechnical investigations determined that Magazine Hill was at risk of damage from historical mining activities. It was determined that the best option to address the instability was to excavate and remove the hill and buttress the pit wall of the mine itself. Before proceeding with this course of action NCR consulted with the Waanyi PBC. This consultation led to the development of the cultural heritage management plan under the Aboriginal Cultural Heritage Act 2003 (Cth).
Despite the Waanyi PBC’s agreement, some Aboriginal and Torres Strait Islander peoples in the area remain opposed to the destruction of Magazine Hill. They are dissatisfied by the consultation process and the lack of consultation beyond the Waanyi PBC.
In response to these concerns the Waanyi PBC stated:
The Waanyi People’s final decision to consent to the excavation of Magazine Hill was taken with considerable sadness. But it was an informed decision, not made lightly and made against a background of consideration and investigation of the site by senior Waanyi lore men and their advisers–not just part of the most recent process, but over a number of years. It was made because it was the best decision to be made in the circumstances.
The Waanyi PBC further noted that the cultural significance of Magazine Hill was destroyed due to the destruction of the Ten Mile Waterhole ceremonial ground at Lawn Hill, as part of a 2009-2010 agreement between the Gulf Aboriginal Development Company and the then Waanyi PBC. This site ‘was the core essential component of the central landscape’, and its damage effected the importance of Magazine Hill to the Waanyi.
Current Waanyi PBC Chair Alec Doomadgee initially became involved in negotiations regarding Magazine Hill with the intention to seek a contract to rehabilitate the area. But due to the precarious position of Magazine Hill, the PBC sought to come to an agreement that would benefit the Waanyi people, including compensation and a rehabilitation contract for the area.
6.50
Native title law does not inherently protect Aboriginal cultural heritage in an enforceable way which would prevent the destruction that occurred at Juukan Gorge. The PKKP noted:
The Federal Court recognised native title over almost the entirety of the PKKP claim area, including Juukan Gorge, by the making of a Consent Determination on 2 September 2015. In making this Consent Determination, the Federal Court recognised the PKKP people’s native title rights and interests. These rights and interests include the right to enter, travel over, visit and remain on country; to use the traditional resources of the land; and to engage in cultural activities on country, including visiting places of cultural or spiritual importance, and preserving the integrity of those places. The Consent Determination also recognised PKKP peoples’ connection to country through their many land-related laws and customs which facilitate their ‘ongoing spiritual connection to country’. It recognised that PKKP connection to country retained ‘an active spiritual potency’.
6.51
Even the Federal Court determination demonstrates the primacy of other land interests over native title. Shortly after outlining the native title rights and interests now legally recognised as belonging to the PKKP People, the judgment provided that:
a.
to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise
b.
the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but do not extinguish them.
6.52
These Other Interests include any provided under the agreement ratified by the Iron Ore (Hamersley Range) Agreement Act 1963 (WA), of which the mining tenement over Juukan Gorge and held by Rio Tinto was one. The rights as described in the RTIO and PKKP People Indigenous Land Use Agreement (Area Agreement) dated 15 November 2012 (the 2012 ILUA) also created a prevailing interest over common law native title.
6.53
Native title common law and the NT Act are limited in their efficacy to protect cultural heritage even where native title has been determined.
Box 6.5: Timber Creek
The High Court decision in Northern Territory v Griffiths (Timber Creek) confirmed the approach to compensation for extinguishment of native title. The claim was brought on behalf of the Ngaliwurru and Nungali Peoples in the Northern Territory. The claimants were native title holders and argued that extinguishment acts on approximately 127 ha of land affecting native title rights had resulted in cultural and economic loss and harm, with compensation for the loss being applicable. The High Court reduced compensation from the original 2016 Federal Court decision to an award of $2.3 million to the claimants for the loss. The final compensation amount comprised of $1.3 million for cultural loss and $320,050 for economic loss including simple interest.
It has been described as a significant native title case, not only because it was decided by the High Court, but also because it directed a new focus for native title determinations. Rather than native title being concerned primarily with proving continuous connection to land, after Mabo and the Wik decisions, the compensatory nature of the Timber Creek claims ensured focus on loss of that connection due to extinguishment and the resultant compensation applicable. Historical and cultural connection to land of native title claimant groups still remains crucial to the determination of compensation for loss, but compared to Mabo and previous determination decisions, the focus has changed to proving destruction of that connection. ‘Cultural loss’ was also successfully argued to have been for the impairment of rights to ‘connection or traditional attachment to land and intangible disadvantages of loss of rights to live on and gain spiritual and material sustenance from the land.’ The concept of intangible connection to land was therefore recognised in the decision.
The High Court in the Timber Creek case assessed both economic loss and cultural loss and provided a template for considering the value of cultural heritage as equated with the value of freehold title. This provides a backdrop for considering the destruction of the caves at Juukan Gorge. The destruction of the caves was carried out in accordance with legislation and private agreements, notwithstanding the warnings and lack of Aboriginal consultation. The extent of the damage and the loss, in the context of considering the Timber Creek decision, must be potentially incalculable.
Prescribed Body Corporates
6.54
When a native title determination is made by the Federal Court, the NT Act requires traditional owners to establish or nominate a corporation to represent them and their native title interests. These organisations are known as registered native title bodies corporate (RNTBC) more commonly known as prescribed body corporates (PBCs).
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PBCs are legal entities that have roles and responsibilities under the NT Act, PBC Regulations and the Corporations (Aboriginal and Torres Strait Islander) Act 2006. The roles and responsibilities of PBCS include:
to hold, protect and manage determined native title in accordance with the objectives of the native title holding group
to ensure certainty for governments and other parties interested in accessing or regulative native title land and waters by providing a legal entity to manage and conduct the affairs of the native title holders.
manage future acts (proposals for work that will affect native title)
participate in the development of Indigenous land usage agreements (ILUAs - negotiations between governments, companies and the PBC about future developments on the land)
exercise, negotiate, implement and monitor native title agreements
consult with native title holders and document evidence of consultation and consent
consult with and considering the views of relevant native title representative bodies (NTRB) and native title service providers (NTSP) for an area regarding native title decisions
compensation (considering compensation matters, and bringing native title compensation applications in the Federal Court)
bringing future native title application cases in the Federal Court.
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A primary role of PBCs is heritage management. It is a role that involves a significant amount of work which correlates to a series of associated problems impacting PBCs. A large part of heritage management for PBCs is dealing with proponents who seek to undertake work on their native title land. In dealing with such issues PBCs will negotiate agreements with the proponent, which can be a strenuous and lengthy process. Negotiations will culminate in agreement documents that are hundreds of pages long, written by the proponent, PBCs can struggle to understand these documents and often require legal assistance to do so.
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Throughout the inquiry, inadequate funding for PBCs was consistently discussed by stakeholders as a core problem inhibiting their ability to function. The Commonwealth Government does not currently contribute to the funding of PBCs, instead there has been a ‘hands-off approach’ which submitters such as The Association of Mining and Exploration Companies (AMEC) believe has led to poor outcomes.
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Mr Jamie Lowe, Chief Executive Officer of the National Native Title Council stated:
PBCs are not funded by governments to carry out their most basic statutory functions, let alone to negotiate on a level playing field with mining companies. Most PBCs have no money at all … Some of them have to manage [inaudible] workloads, overwhelming on a daily basis.
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Submitters noted that this disproportionate balance of power leads to agreements that heavily favour proponents; there are also problems that timelines can be forced on PBCs in the agreement process itself.
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Examples were particularly prevalent in Western Australia, particularly agreements that imposed gag clauses on traditional owners.
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Some mining companies do fund legal costs and other agreement-related expenses for native title groups, However this also raised questions as to the independency of these processes and whether they result in positive cultural heritage outcomes.
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A key concern relating to the lack of funding of PBCs is that agreement making is a major source of funding for PBCs. Financial compensation may form part of agreements and may contribute to the administrative costs of PBCs. AMEC raised concerns that if this continues PBCs may be more likely to approach heritage agreements as a central source of revenue.
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PBCs often have very few staff even though they may be required to deal with large numbers of proponents. The National Native Title Council noted that one particular PBC had 546 future act tenements on their books, stating that ‘for a PBC to manage that on their books with zero resourcing from any Commonwealth or state government I think we can all agree is a gross inadequacy’.
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Northern Queensland Land Council submitted that many PBCs are not in a position to deal with future acts sent to them, and that they often cannot be processed in time for permits to be given for actions on native title land to take place. Lack of staffing also impacts the ability of PBCs to process agreement documents given to them by proponents as they do not have the capacity to read through and understand documents that are often lengthy and highly complex.
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Commonwealth funding of PBCs is a necessity that will ensure better cultural heritage management outcomes across Australia. Current funding methods for PBCs are inadequate and do not result in favourable cultural heritage protection. Commonwealth funding of PBCs will provide PBCs with the opportunity to better manage their roles and responsibilities and it will also ensure that more certainty can be provided for proponents seeking to come to meaningful agreements.
Stakeholder perspectives
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Stakeholders to the inquiry were critical of the NT Act, conveying criticisms on difficulties in actually achieving native title, as well as problems with NT Act agreement making. Another core problem discussed was the actual protection for Aboriginal and Torres Strait Islander peoples’ heritage offered by the Act. Some stakeholders spoke on the fact that they consider the NT Act a failure due to the lack of support or protection it provides to cultural heritage.
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Dr Samantha Hepburn noted the difficulty in achieving Native Title and the lack of protections it results in, stating:
… it's incredibly difficult to establish native title. In most instances, the Crown will have already extinguished native title through the issuance of grants, statutory pastoral leases and so forth.
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Dr Hepburn further noted that:
…the structure of the Native Title Act is essentially about proving that you have this continuing connection with the land where you can reach that level of proof and that a grant hasn't been issued which [inaudible] the native title claim, then you can establish it. And, if you get to that point, the only rights that are protected—it's kind of like recognition … given the evidential difficulties and given the problems with extinguishment, often what happens is that, outside of other land rights legislation, other land rights that might be issued, you will have perhaps an Indigenous land use agreement or some alternative form of [inaudible] framework happening. It's insufficiently focused on heritage protection.
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Ms Annette Xiberras noted the challenge with proving ‘continual use’ which significantly diminishes the ability for some traditional owners to achieve native title, and as a consequence severely inhibiting their ability to protect country and cultural practices:
I don't believe in the Native Title Act. … Nobody along the east coast will ever be able to get a native title claim in because you have to show continual use of culture, language and customs; and, once we were put on Aboriginal reserves—my grandmother was born on Coranderrk—and into that process, you could no longer practise your customs, your traditions or your language. I think it's so unfair. …Culture changes over time, and we've changed to adapt into a white society so that we can protect our children, our land and our country. We've had to do what we've had to do to survive. Our culture is still alive and it's still adapting, but native title doesn't recognise or see that.
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Further problems were discussed by Dr Kate Galloway who spoke on the lack of rights given by a native title determination, stating:
…the Native Title Act itself is actually ill-conceived and designed to limit the capability of First Nations people to give expression to their rights. For example, they don't have a right of veto over mining activity on their land.
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As noted throughout the report, the significant problem with the agreement making process under any legislative framework is the power imbalance weighted in favour of proponents.
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The National Native Title Tribunal has an arbiter role under the NT Act but this does not weigh applications in favour of traditional owners:
While the parties are under an obligation to negotiate “in good faith” prior to taking the matter to arbitration, “good faith” has revealed itself a low bar with the NNTT most often finding in favour of the developer or miner and allowing the proposed land use to proceed with few conditions. … Between 2009 and 2017 the NNTT dealt with over 100 applications to arbitrate the grant of a mining title because agreement could not be reached between the parties. On only two occasions has there been a determination that the grant of a mining title could not proceed.
Protection of Movable Cultural Heritage Act 1986
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The Protection of Movable Cultural Heritage Act 1986 (PMCH Act) implements the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 and is designed to assess and protect cultural objects of significance to Australia. ‘Significance’ is a test which is determined by way of examination of an object that is found to have criteria which is of national importance and therefore worthy of protection. It is administered by the Commonwealth Department of the Arts. The legislation also provides for the return of cultural property illegally obtained by foreign countries.
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The PMCH Act carries criminal enforcement powers. This is relevant for Aboriginal and Torres Strait Islander peoples’ cultural heritage because it demonstrates that there are strong mechanisms possible for protecting cultural heritage which can be implemented at a Commonwealth level. But this Act was not widely referred to in evidence, indicating that it is not seen as an avenue for Aboriginal and Torres Strait Islander cultural heritage protection.
Underwater Cultural Heritage Act 2018
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The Underwater Cultural Heritage Act 2018 protects all underwater cultural heritage, implementing cultural heritage considerations under the UNESCO Convention on the Protection of Underwater Cultural Heritage 2001. The Act broadened existing definitions of underwater cultural heritage to include objects of Aboriginal and Torres Strait Islander cultural heritage. There is a discrepancy in the treatment of non-indigenous and Aboriginal and Torres Strait Islander cultural heritage however. Shipwrecks and aircraft are granted automatic protection under section 16. But under section 17 Aboriginal and Torres Strait Islander cultural heritage requires the Minister to be satisfied that the cultural material is of heritage significance.
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This disparity was discussed by the Murujuga Aboriginal Corporation who has had recent archaeological discoveries on their Sea Country. Stone tools and other evidence of human habitation were found up to 25 metres underwater, the finds were dated as being at least 8,500 years old. Despite the importance of the discoveries they still required the Minister the grant protection, even with a 75 year old shipwreck having automatic protection.
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The Murujuga Aboriginal Corporation stated that:
…this discrepancy in the Australian legislation’s treatment of Indigenous and non-Indigenous archaeological material is in contrast to those countries that have signed the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage (which protects all categories of UCH sites over 100 years old)
International conventions and declarations
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Australia is signatory to a range of international conventions and declarations. These declarations should guide national law and policy making with respect to the rights of Aboriginal and Torres Strait Islander peoples.
UN Declaration on the Rights of Indigenous People
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The UN Declaration on the Rights of Indigenous (UNDRIP) is an important document which articulates world Indigenous peoples’ rights to set and pursue their own priorities for development, and to maintain and control their cultural heritage. This has not been formally adopted into Australian law, but it was endorsed in 2009. There are remaining steps to be taken before UNDRIP can be adopted into national law.
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Much of the content of UNDRIP is relevant to consideration of cultural heritage laws. The key provisions of UNDRIP include that Indigenous people have the right to:
practice and revitalise their cultural traditions and customs, and states shall provide redress for cultural property taken without free, prior and informed consent (Article 11)
practice their spiritual and religious traditions, customs and ceremonies, maintain sites, control ceremonial objects and repatriate human remains, and states shall seek to enable the access and/or repatriation of ceremonial objects and human remains (Article 12)
revitalize, use, develop and transmit their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons, and states shall take effective measures to ensure that this right is protected (Article 13)
establish and control their educational systems and institutions providing education in their own languages, the right to all levels and forms of education of the State without discrimination, and states shall, in conjunction with Indigenous peoples, take effective measures to ensure such education is provided (Article 14)
maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions and intellectual property over such heritage, knowledge and culture, and states shall, in conjunction with Indigenous peoples, take effective measures to recognize and protect the exercise of these rights (Article 31)
determine and develop priorities and strategies for the development or use of their lands or territories and other resources, and states shall consult and cooperate with Indigenous peoples in order to obtain their free and informed consent before the approval of any project affecting their lands, territories and resources, provide effective mechanisms for redress for any adverse impact from such activities (Article 32)
access to and prompt decisions for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights, with due consideration to the customs, traditions, rules and legal systems of Indigenous peoples and international human rights (Article 40).
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The Law Council of Australia (LCA) submitted that:
The UNDRIP is considered the comprehensive standard on human rights for Indigenous peoples and informs the way governments across the globe should engage with and protect the rights of Indigenous peoples.
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Regarding the obligations created by UNDRIP for the Australian Government, the LCA stated that:
…insofar as the UNDRIP relies on and elaborates well established human rights in international treaty and customary law, it is binding on Australia… The UNDRIP is not a treaty and therefore it does not itself create legally binding obligations. However, many, if not all, of its provisions have been recognised as reflecting customary international law. Its articles also echo many of the rights articulated in legally binding human rights treaties, but with a specific focus on Indigenous peoples.
Box 6.6: Case study: Warragamba Dam
Hundreds of sacred sites are at risk of being flooded in the Southern Blue Mountains due to the proposed raising of Warragamba Dam by the NSW Government and Water NSW. The land of the Gundungurra people is a rich cultural landscape and is a highly significant part of their country. Despite being the Native Title holders, the Gundungurra have not been consulted by the State government as required by the Native Title Act 1993 (Cth) and the Gundungurra Indigenous Land Use Agreement.
The 2017 NSW Government Hawkesbury-Nepean Valley Flood Risk Management Strategy report proposed raising the Dam by14 meters to create a flood mitigation zone. This was considered as the best option to reduce risks to life, property and community assets posed by floodwater risks from the Warragamba River catchment.
The Gundungurra Aboriginal Heritage Association and the Illawarra Local Aboriginal Land Council (GAHA and ILALC) both have significant concerns about this proposal. Already a large portion of cultural heritage and Dreaming stories of the Gundungurra were flooded when the Dam was built in the 1960s. If the dam wall is further raised, what remains of those stories will be destroyed. The deep cultural historical value of the land is at risk, values derived from places, stories and cultural resources. Significant tangible and intangible heritage will be lost, including rock shelters, art, significant stories and songlines that form part of the identity of the Aboriginal people of the land.
The Blue Mountains is also a World Heritage Area and the proposed flooding would be in direct contravention to the UNESCO World Heritage convention. There is a possibility that the raising of the dam would result in the de-listing of the area from the UNESCO World Heritage List because of the impact outstanding heritage that would occur.
A final decision has not been made regarding the raising of Warragamba Dam. Aboriginal groups must be properly consulted before this occurs, with financial aid to do so if required. ILALC were optimistic about a positive outcome for the issue. GAHA and ILALC appeared before the NSW Select Committee on the Proposal to Raise the Warragamba Dam Wall. Mr Paul Knight of the ILALC believed that their evidence was accepted and taken into consideration.
Free, Prior and Informed Consent
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Free, Prior and Informed Consent (FPIC) is a core principle of UNDRIP. Stakeholders throughout this inquiry have pointed to it as a crucial principle that must be enshrined within Australian Aboriginal cultural heritage legislation and related practices.
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FPIC is a specific right that pertains to Indigenous people which allows them to give or withhold consent to any project that may affect them or their lands. Once given, consent may be withdrawn at any stage. Furthermore, the principle of FPIC allows Indigenous people the right to negotiate conditions under which the project will be designed, implemented, monitored and evaluated. This is also embedded within the right of self-determination.
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The elements of FPIC can be defined as follows:
Free: The consent is free, given voluntarily and without coercion, intimidation or manipulation. A process that is self-directed by the community from whom consent is being sought, unencumbered by coercion, expectations or timelines that are externally imposed.
Prior: The consent is sought sufficiently in advance of any authorisation or commencement of activities.
Informed: The engagement and type of information that should be provided prior to seeking consent and also as part of the ongoing consent process.
Consent: A collective decision made by the right holders and reached through a customary decision-making process of the communities.
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There is agreement between Aboriginal and Torres Strait Islander groups and industry concerning the importance of FPIC. In Dhawura Ngilan: A vision for Aboriginal and Torres Strait Islander heritage in Australia it is stated that:
As a foundational principle, Australia’s Indigenous Peoples are entitled to expect that Indigenous Cultural Heritage legislation will uphold the international legal norms contained in the UNDRIP.
Dhawura Ngilan is discussed in more detail in chapter 7.
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Many Aboriginal and Torres Strait Islander groups noted that ministerial decision-making powers were in conflict with FPIC. For example, the Cape York Land Council was clear that decisions regarding cultural heritage must be made by traditional owners.
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The Minerals Council of Australia (MCA) also recognised the guiding role UNDRIP:
The minerals industry recognises the United Nations Declaration on the Rights of Indigenous Peoples as a practical framework to inform engagement, decision-making and partnerships. The Australian minerals industry understands FPIC as genuine and good-faith engagement aiming to achieve consent in the form of a land use agreement that sets out how the participants will work together to maintain the consent over the life of a project.
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The MCA further commented that:
We are reviewing our whole approach to FPIC at the moment. It's a process of meaningful engagement, with the aim of documenting consent in the form of a land use agreement. That has to be done right at the start of a process—at the beginning, before even pen is put to paper, really. Companies should obtain consent through a process that incorporates traditional decision-making structures, although sometimes that can be really challenging for companies navigating the problem. By working with Indigenous peoples to devise an inclusive engagement plan right from the beginning, that will ensure that consent is gained and that projects can move forward. A company that really does fail to do that from the beginning doesn't have a relationship and it's really going to struggle to gain a social licence to operate in the longer term from the traditional owners and from the communities. In terms of enacting free, prior and informed consent, it must be done alongside and with the traditional owners right from the very, very beginning.
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The Centre for Social Responsibility in Mining observed that the industry is starting to engage with concepts like FPIC to guide agreement making and that the legislative and policy frameworks are falling behind:
As researchers, we are observing and tracking how the industry is engaging with those terms and concepts, which are gaining prominence. We track what the industry commits to. It's all very voluntary. It's self-regulatory. Our submission is that industry capability to keep up with the commitments that it's making in the policy realm, including around free prior and informed consent, is often lacking. Companies are making commitments in this area but we're not always seeing the capability on the ground, in performance teams, to support the commitments they're making and to put them into practice.
…. We also hear that FPIC is—you used the word 'bastardised'—kind of being picked apart a little bit. So it is free, prior and informed, but there is not the consent piece. We do hear that. We hear that FPIC is consultation. So we do agree with you that it is a term that's open to interpretation. But processes of consultation and consent are very important, and we need to have a more open discussion about what it means and what it looks like.
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The Committee also received evidence about the increasing importance of shareholder power in influencing the actions of companies in the mining industry. National and international shareholders are responding to concerns about heritage and have put a considerable amount of pressure on Rio Tinto to make the changes they did. These actions remind corporations that their social license and corporate ethical positions will affect how they are able to do business in the future – it will affect their investment prospects and return on investment. The same principles apply to other industries, particularly in the context of a transition to renewables, opening the way for them to learn from the mistakes of the mining boom and pay respect to the living heritage of Aboriginal and Torres Strait Islander peoples.
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It was also submitted that immediate and urgent consideration should be given to the inclusion of FPIC to the NT Act. There were, however, concerns that this is not possible. Mr Simon Hawkins from the Yamatji Marlpa Aboriginal Corporation noted that under the NT Act some processes, such as mining tenements, can be granted without native title consent. This goes against the principles of FPIC.
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The NT Act is not the only legislation that does not adhere to the principles of FPIC. Most, if not all, cultural heritage legislation in Australia fails to adhere this principle as decision making is often is not placed in the hands of Aboriginal and Torres Strait Islander peoples.
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970)
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The United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 was ratified and adopted by Australia in national legislation (PMCH Act, see above). The purpose of the convention is to ensure that cultural objects are not moved or transferred globally, including by way of import or export to Australia.
Convention concerning the Protection of the World Cultural and Natural Heritage (1972)
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The Convention concerning the Protection of the World Cultural and Natural Heritage is an international instrument protecting cultural and natural heritage. Australia ratified the Convention in 1974. The Convention protects cultural and natural heritage by listing heritage of outstanding value on the World Heritage List.
Australia ICOMOS Charter for Places of Cultural Significance (1979)
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The Australia ICOMOS Charter for Places of Cultural Significance (the Burra Charter) was adopted by the Australian National Committee of the International Council on Monuments and Sites (ICOMOS) in 1979, most recently amended in 2013.
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The Burra Charter considers various international instruments, and guides conservation and management of cultural heritage places and states how places are geographically defined in area. It may include elements, objects, spaces and views and it notes that place may have tangible and intangible dimensions.
Box 6.7: Case study: Kakadu walkway
Under the NT Sacred Sites Act, Parks Australia (manager of the world heritage listed Kakadu National Park) was charged with damages to an area near Gunlom Falls. In the matter of the AAPA v the Director of National Parks, it was alleged that section 34 of the Act was breached by Parks Australia. The Aboriginal Areas Protection Authority alleged that a walking track was built on a sacred site without permission. The walkway was erected too close to a site and has not been opened. Aboriginal Areas Protection Authority chairman Bobby Nunggumarjbarr stated:
It is good that AAPA was able to listen to the concerns of the traditional owners and do a thorough investigation… These things have happened in the past, but we really need to work together to make sure things happen in the way that the traditional owners want them to. I want to make sure all the sacred sites are protected in the future for the benefits of the traditional owners and the custodians and all the visitors.
Directions hearings held on 5 August 2021. The Director of National Parks stated they will be entering into a plea of not guilty. According to media reports, Parks is arguing crown immunity, making it immune from prosecution. As at September 2021, the case is yet to be heard.
UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003)
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The Convention for the Safeguarding of the Intangible Cultural Heritage was adopted by the UNESCO General Conference on 17 October 2003 and entered into force starting in 2006, following ratification of the treaty by thirty UNESCO Member States. The convention was adopted with consideration for the importance of ‘intangible cultural heritage as a mainspring of cultural diversity’, as was highlighted in the UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore of 1989, and in the UNESCO Universal Declaration on Cultural Diversity of 2001.
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As at September 2019, one-hundred and seventy-eight states have either, ratified, approved or accepted the Convention, but it is significant to note that Australia is yet to ratify or become a party to the Convention. The preamble recognises that Aboriginal and Torres Strait Islander peoples’ communities are particularly important stakeholders.
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This Convention is discussed further in the final chapter of this report.
Other significant instruments
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There are also a number of key human rights conventions which set frameworks for the recognition of the right of self-determination. These include:
International Convention on the Elimination of all Forms of Racial Discrimination (1966) (ICERD)
International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR)
Aboriginal and Torres Strait Islander peoples and Tribal Peoples Convention (1989) (ILO Convention 169)