5.1
Aboriginal and Torres Strait Islander peoples’ cultural heritage is managed primarily by the states and territories through various legislative and policy settings. There are some consistencies across jurisdictions, but no nationally coordinated approach to the management of cultural heritage.
5.2
Stakeholders in each state and territory held predominately negative views about the various schemes and their evidence conveyed that, on the whole, there are problems with the nation’s approaches to Aboriginal and Torres Strait Island cultural heritage legislation.
5.3
This Chapter will outline cultural heritage legislation in each state and territory (excluding Western Australia) and discuss the views of submitters on their experiences with these various frameworks.
New South Wales
5.4
NSW is the only jurisdiction without stand-alone Aboriginal cultural heritage legislation.
5.5
Cultural heritage is primarily dealt with by the National Parks and Wildlife Act 1974, with other protections afforded by the Heritage Act 1977, the Environmental Planning and Assessment Act 1979 and the Aboriginal Land Rights Act 1983.
The National Parks and Wildlife Act 1974
5.6
Aboriginal cultural heritage in NSW is primarily protected and managed under the National Parks and Wildlife Act 1974 (NPW Act). The objects of this Act include:
…the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to … places, objects and features of significance to Aboriginal people…
5.7
‘Cultural significance’ of certain lands is recognised under this Act, meaning significance ‘in terms of the traditions, observances, customs, beliefs or history of Aboriginal persons’. This may be extended to some consideration of intangible cultural heritage, though the actual protections are only extended to nine national parks or similar listed under Schedule 14.
5.8
The NPW Act establishes the Aboriginal Cultural Heritage Advisory Committee (ACHAC), an advisory body of Aboriginal persons to provide consultation and advice to the Minister and the Chief Executive of the Office of Environment and Heritage on matters relating to Aboriginal cultural heritage. The NPW Act also establishes and regulates a database called the Aboriginal Heritage Impact Management System (AHIMS) which identifies Aboriginal objects and places across the state. In 2020, AHIMS recorded 100,000 records of Aboriginal objects and places.
5.9
Under the NPW Act, blanket protections are provided to Aboriginal objects (including ancestral remains). Aboriginal places may be protected by declaration by the Minister, such as the Three Sisters at Katoomba, Moon Rock in northern Sydney, and Wilcannia Mission Camps in western NSW. The process for declaration can be an arduous one–it took the Barkindji people more than two years to achieve a result in Wilcannia. Further, protections can be narrow and not consider the site’s cultural value in relation to the wider landscape.
5.10
It is an offence under the NPW Act to damage an Aboriginal object or place, unless a permit–known as an Aboriginal Heritage Impact Permit or AHIP–has been granted. It is a defence to prosecution under the NPW Act if a person can prove that they exercised due diligence in determining whether an act or omission would harm an Aboriginal object. Due diligence is defined in accordance with the regulations, which give effect to certain specified codes of practice.
5.11
Proponents are required to consult with Aboriginal people before applying for an AHIP. In doing so, they must comply with the requirements for Aboriginal community consultation under the regulations. These requirements mandate short timeframes for response and review of impact plans and methodologies, often 14 or 28 days. Evidence to the Committee from Aboriginal and Torres Strait Islander groups across jurisdictions indicates that such requirements are onerous and do not consider the realities of resource-limited groups who have to consult with their community and may be responsible for large areas of country.
5.12
The management of Aboriginal cultural heritage protections under an Act predominantly drafted for the management of flora and fauna is now widely seen as offensive. Called ‘a now outdated and distasteful remnant from a time when Aboriginal peoples were considered as merely part of the environment’, numerous reviews and articles have highlighted this point for over a decade of cultural heritage legislation analysis.
Heritage Act 1977
5.13
The Heritage Act 1977 (NSW) provides another avenue for protection of Aboriginal cultural heritage. While the Act is predominately relevant to non-Aboriginal heritage, it sets out that the relevant State Minister may issue heritage protection orders or authorise councils to do so.
5.14
The Act establishes the Heritage Council of NSW, which is responsible for providing advice, keeping registers of items of significance, heritage orders, notices and heritage agreements. Aboriginal representation on the Heritage Council is minimal−the Minister is required to appoint one person who, in his or her opinion, ‘possesses qualifications, knowledge and skills relating to Aboriginal heritage’. There is no requirement that this individual be an Aboriginal person.
Interaction with other legislation
5.15
Further protection is afforded by the Aboriginal Land Rights Act 1983 (NSW) but, similar to the Native Title Act, this Act is geared more toward securing property rights by providing for the return of claimable land to Aboriginal owners, generally members of Local Aboriginal Land Councils and other specified Aboriginal owners within the legislation. It can do little to prevent harm or desecration of cultural heritage on land or property over which Indigenous groups hold no title or proprietary interest.
5.16
The Environmental Planning and Assessment Act 1979 (the EPA) regulates the planning and development system in NSW. The objects of the EPA Act include management and conservation of the state’s natural resources and cultural heritage (including Aboriginal heritage), facilitating ecologically sustainable development, and protecting the environment. The EPA Act is supported by the Environmental Planning and Assessment Regulation 2000 and also by planning policies which are legislative instruments at local, regional and state levels, many of which provide for further exceptions and work-arounds to Aboriginal cultural heritage protection.
Box 5.1: Case study: Calga Aboriginal cultural landscape
The Calga Aboriginal Cultural Landscape on the central coast of New South Wales is a highly significant place for Darkinjung, Guringai and Mingaletta peoples. In 2015 the Darkinjung Aboriginal Land Council on won a victory in the NSW Land and Environment Court, after the court upheld the Council’s appeal against the decision of the NSW Minister for Planning and Infrastructure under the EPA Act to allow the extension of a sandmining quarry on its lands.
The court’s finding was particularly significant because it supported the view that environmental issues affecting a site were inseparable from Aboriginal cultural heritage. The Darkinjung Aboriginal Land Council submitted to the court that ‘the issues of water, visual impact, noise, vibration and biodiversity are not severable to culture and heritage issues’. In upholding the appeal and refusing the application to extend the quarry, the court stated that it made the decision ‘having regard to all of the weighted considerations, including the impact on Aboriginal cultural heritage and the public interest’.
Highlighting the importance of the judgement, the CEO of the Darkinjung Land Council Sean Gordon stated that ‘What we've been able to do is get the court to move away from thinking about an individual site and to start to think about the cultural landscape’.
The site was NSW State heritage listed on 1 October 2019. [Type the text box details here]
5.17
Cultural heritage legislation in NSW is not effectively integrated with these land management and planning and approvals systems, and Aboriginal people are not effectively represented in decision-making processes. Aboriginal Heritage Impact Permits (AHIPs) must be approved by the Secretary of the Department and Cabinet and are issued under the NPW Act. Applications for work approvals that may harm items listed on the State Heritage Register or subject to interim protection orders under the Heritage Act 1977 are decided by the Heritage Council of NSW. Development applications of various kinds are decided under the Environment Planning and Assessment Act 1979 (EPA Act) by the Heritage Council, the local council, the Minister, or the Independent Planning Commission of NSW, depending on the type of development. None of these decision-making bodies are Aboriginal.
5.18
There is also a number of NSW Acts that enliven Aboriginal cultural heritage mechanisms and set standards for the protection of cultural heritage by requiring searches be conducted on the AHIMS database before certain certificates or authorities may be issued, such as the Bush Fire Environmental Assessment Code for New South Wales under the Rural Fires Act 1997. In this case, Heritage NSW is required to respond to an information request within three working days, otherwise the authority may proceed with issuing the certificate.
Stakeholder perceptions and experiences
5.19
Stakeholders presented negative assessments of NSW cultural heritage protections. Submitters claimed that the protections offered are weak and the heritage framework is inadequate and ineffective. Statistics suggest that destruction of cultural heritage is a common event in the State.
5.20
The Law Council of Australia (LCA) submitted that the NSW cultural heritage framework is considered ‘anachronistic and contains serious deficiencies’.
5.21
One of the most fundamental problems is that Aboriginal cultural heritage is considered as flora and fauna, a fact which is seen as highly insulting by Aboriginal peoples. The National Parks and Wildlife Act 1974 provides no rights of ownership or inclusion in decision making processes for Aboriginal peoples. Aboriginal peoples are unable to determine what is considered significant cultural heritage.
5.22
Destruction of Aboriginal heritage is NSW is occurring at high rates. According to the New South Wales Aboriginal Land Council (NSWALC), during the first half of 2020 approximately four Aboriginal Heritage Impact Permits (AHIPs) were being issued every week by the NSW Government. The NSWALC stated that:
‘The high rates of destruction of Aboriginal sites, both ‘approved’ and illegal, continues to cause deep distress within our communities. The destruction of Aboriginal sites impacts on the ability of our peoples to maintain living cultures and create wellbeing and healthy communities. Our sites tell important stories and must be protected so Aboriginal peoples can strengthen and maintain our cultures now and in the future’.
5.23
Dr Janet Hunt submitted that 100 to 200 sites and objects are lawfully destroyed every year. Dr Hunt stated that between 2012 and 2017, 704 permits were issued and only one was rejected. These statistics suggest there is very little consideration given to Aboriginal cultural heritage in the permits process.
5.24
The NSWALC submitted that the cultural heritage provisions of the NPW Act are not effectively integrated with the development processes in NSW. This results in a reactive system that does not consider Aboriginal heritage until after development assessment processes have occurred or until after Aboriginal heritage is under threat.
Victoria
Aboriginal Heritage Act 2006
5.25
The Aboriginal Heritage Act 2006 (AH Act (Vic)) is standalone legislation which provides for the blanket protection and management of Aboriginal cultural heritage. Victoria is the only jurisdiction with legislation providing for intangible cultural heritage protection.
5.26
The definition of Aboriginal cultural heritage in the AH Act (Vic) is multi-layered. It defines Aboriginal cultural heritage as ‘Aboriginal places, Aboriginal objects and Aboriginal ancestral remains.’ These terms are defined further in the legislation and reflect the legislation in other jurisdictions. The AH Act (Vic) differs by defining Aboriginal intangible cultural heritage in section 79B(1) and (2) as follows:
1
For the purposes of this Act, Aboriginal intangible heritage means any knowledge of or expression of Aboriginal tradition, other than Aboriginal cultural heritage, and includes oral traditions, performing arts, stories, rituals, festivals, social practices, craft, visual arts, and environmental and ecological knowledge, but does not include anything that is widely known to the public.
2
Aboriginal intangible heritage also includes any intellectual creation or innovation based on or derived from anything referred to in subsection (1).
5.27
In addition to intangible heritage protections under the AH Act (Vic), the Charter of Human Rights and Responsibilities Act 2006 (Vic) grants Aboriginal people a ‘cultural right’ which encompasses the right to enjoy culture, identity, language, kinship ties and the relationship to land and water. The Charter could be extrapolated to be a protection of Aboriginal cultural heritage. Non-Indigenous cultural heritage is protected under the Heritage Act 2017 (Vic).
5.28
Importantly, Aboriginal people are recognised as the owners of their heritage in the case of ancestral remains and secret or sacred objects, and legislative processes are put in place for their return.
Box 5.2: Case study: Sacred trees of the Dhab Warrung
Trees sacred to the Djab Wurrung of Victoria are threatened by the Victorian Government’s Western Highway Duplication project. The Djab Wurrung have a history of dispossession from their lands and consequently they have not achieved Native Title. Due to this, they have never been consulted by the State Government regarding the planned destruction and damage to their trees.
In 2013 then Registered Aboriginal Party, Martang Pty Ltd agreed to a cultural heritage management plan relevant to the project area with Vic Roads. Despite Martang being deregistered in 2019 by the Victorian Aboriginal Heritage Council this statutory agreement was not impacted.
In 2017, before substantive construction of the project began, Aboriginal Victoria received preliminary reports that trees in the vicinity of the project were culturally significant. Two trees had been identified as birthing trees used by the Djab Wurrung. VicRoads facilitated inspections involving senior Djab Wurrung representatives of Martang Pty Ltd and Eastern Maar Aboriginal Corporation who also had an interest in the area. Claims from the preliminary reports were not substantiated.
Tree-removal was scheduled to begin in 2018, but work ceased when Djab Wurrung Traditional Custodians occupied the site. The occupation later became an established camp, ‘the Djab Wurrung Protection Embassy’ with several locations along the approved highway alignment. Djab Wurrung Traditional Custodians sought to protect not just the two previously identified trees but others that had also been identified as significant. To this day the Embassy remains in place protecting the sacred trees.
In a similar period, Djab Wurrung custodians made an application under the ATSIHP Act (Cth) for Commonwealth protection for the six trees. Then Minister for the Environment (Cth) found that the trees were significant, but ruled in favour of the Victorian Government.
During this process VicRoads supported a further independent cultural heritage assessment for the area, involving consultation with Martang and Eastern Marr. As a result modifications were made to the Highway project, but the Djab Wurrung were not satisfied.
On 26 October 2020 authorities proceeded with the destruction of a Directions Tree. It was one of the six trees ATSIHP protection had been sought for. Before further destruction took place, Senior Djab Wurrung woman Marjorie Thorpe was successful in achieving an injunction on the project in the Supreme Court. The injunction stopped work until February 2021, but no further works have occurred since.
Not all the six trees were slated for destruction. Instead the trees would be in close proximity too close to the road. In some cases 15m, which is not acceptable to the Djab Wurrung.
As of yet no further destruction of the trees has occurred, and the Djab Warrung and area farmers have proposed an alternative, cheaper route for the duplication. The matter continues to be pursued in the Victorian courts.
The Djab Wurrung Trees example is a demonstration of the problems of the Registered Aboriginal Party (RAP) system. Aboriginal groups that have not achieved RAP status have little ability to protect their heritage. This flaw has been the cause of heritage destruction for the Djab Wurrung, not to mention years of anxiety over the potential destruction of their heritage.
5.29
The AH Act (Vic) works by reference to a central system of Registered Aboriginal Parties (RAPs) which determine approach to cultural heritage.
5.30
The role of RAPs in decision-making relating to their registered area includes:
consideration of applications for cultural heritage permits
evaluating and either approving or refusing cultural heritage management plans
entering into cultural heritage agreements
reporting to the Victorian Aboriginal Heritage Council (VAHC) on an annual basis.
5.31
The VAHC is an independent statutory body comprising traditional owners with knowledge of Victorian Aboriginal cultural heritage. It is responsible for managing the system of RAPs and advising the Minister. Members of the VAHC are appointed by the minister for Aboriginal Affairs. Decision-making processes under the AH Act (Vic) afford more power to traditional owners than most jurisdictions, though there is still a high number of functions undertaken by the Department, particularly where there is no RAP appointed for a particular area − approximately 26 percent of the state.
5.32
The Act legislates that a Victorian Aboriginal Heritage Register be established and maintained, containing information on the full scope of cultural heritage protections and instruments. The Register is the responsibility of the Secretary of the Department. Places and objects do not have to be listed on the Register to be protected.
5.33
There are criminal penalties under the Act for knowingly damaging cultural heritage. Notably, the Act goes further by empowering the Court to make orders for financial reparation or any other reasonable steps toward restoration of the damage.
5.34
While the Victorian system can be commended for locating considerable power with Aboriginal bodies like RAPs and the VAHC, the statutory body for non-Aboriginal heritage, the Victorian Heritage Council (VHC), is empowered with significantly greater authority. A 2010 review suggested that the VAHC’s powers should be brought more in line with the VAC’s capacity to grant permits and registrations and hear cases.
5.35
Though the VAHC’s capacities were expanded in 2016 to include managing return of ancestral remains and granting cultural heritage permits, it remains problematic that reviews of decisions made by RAPs are remitted to the Victorian Civil and Administrative Tribunal, rather than a body with knowledge and experience of Aboriginal cultural heritage like VAHC.
Interaction with other legislation
5.36
Other State legislation that provides for the protection of cultural heritage include the Traditional Owner Settlement Act 2010 (Vic)−which operates in conjunction with the Native Title Act−the Heritage Act 2017 (Vic) and the Planning and Environment Act 1987 (Vic).
5.37
The AH Act (Vic) works in conjunction with the Planning and Environment Act 1987 to manage permits and work approvals relating to cultural heritage. A permit may be applied for voluntarily for certain minor works relating to cultural heritage. Cultural heritage management plans (CHMPs) may be voluntary or required under legislation in certain circumstances, such as where an Environment Effects Statement is required under the Environment Effects Act 1978.
5.38
The Environment Protection Act 2017 was recently amended and came into effect on 1 July 2021. It governs the Environment Protection Authority and regulates the environment with a similar approach to other jurisdictions by incorporating environmental, social and cultural considerations in environmental assessment and decision making, including cultural heritage impacts from development.
Stakeholder perceptions and experiences
5.39
Victoria’s Aboriginal cultural heritage legislation is considered by many of submitters as the best in the country, but some key criticisms remain.
5.40
The National Native Title Council considers the legislation as best-practice, noting that it comes the closest of all jurisdictions to embedding the legal norms of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The Minerals Council of Australia submitted that it considers that Victoria is ‘leading the way at a national level’.
5.41
Aboriginal Victoria, which provides secretariat support to the VAHC, states that, based on the approvals processes, ‘Victoria has more effective Aboriginal cultural heritage protection legislation than any other jurisdiction in Australia, Canada and Aotearoa/New Zealand’.
5.42
Aboriginal Victoria also points to the fact that proponents take their heritage obligations seriously under this system as an important element of the State’s heritage framework. A further benefit of the CHMP process in the State is that proponents have certainty about cultural heritage matters, especially because only the CHMP has to be amended if undiscovered cultural heritage comes to light.
5.43
The Law Council of Australia (LCA) also considers the Victorian Aboriginal heritage legislation as the best in the country because:
It sets up local bodies who have actual decision-making, rather than advisory capacity to a more centralised body, and I regard that as probably the model legislation.
5.44
The LCA’s submission discusses the legislations strengths and weaknesses. It makes the key point that consultation with Aboriginal and Torres Strait Islander peoples is not a mere box ticking exercise as it is in other jurisdictions. Similar to other submitters, the LCA identifies the CHMP process as a key strength of the legislation, as well as other factors including detailed regulations related to the protection mechanisms.
5.45
The Australian International Council of Monuments and Sites (Australia ICOMOS) considers that the RAP system is ‘a strong attempt to put traditional owners at the centre of decision making’, which makes the State’s approach differ from other areas.
5.46
Even states with stronger legislative frameworks have critical issues with Aboriginal cultural heritage protection, as noted by Mr Rodney Carter, Chairperson of the Victorian Aboriginal Heritage Council:
Every day, because country, landscape, is important to us, there are forms of destruction of our cultural heritage. What is even sadder in all of this is that what is seen as an artefact by me or by other Victorian First People is just as important as something that might be massive and seen as a site within landscape. So every day there's an intrusion, because development takes place. People do modern activities that aren't aligned with or considerate of our ancestors' management of landscape, and their values. So I can only say that every day it's happening, and a lot of it isn't immediately known to us. The Victorian legislation is extremely challenged in that it affords tenure-blind protection of culture and heritage across the whole state of Victoria, and then it goes on to put in place procedures in the act and through regulation to allow a form of destruction of culture and heritage, and, to some extent, for registered Aboriginal parties and traditional owners to participate in it.
5.47
Submitters identified problems the RAP system. While RAPs give traditional owners leverage against developers and the ability to protect cultural heritage, the protections offered by this system are not extended to traditional owners who are not part of a RAP. There are 38 language groups in Victoria, but there are only 11 RAPs which cover 74 per cent of the State.
5.48
RAPs may only have membership in the 100 to 400 range despite their relevant traditional owner groups numbering in the thousands, and therefore may not represent the views of an entire community. Some criticisms were also made about the membership and appointment process for RAPS, with accusations that certain RAPS were stacked with family members.
5.49
The problem with the consultation process in Victoria is that proponents are only required to go to the RAP and RAPs are not required to obtain Free, Prior and Informed Consent from relevant traditional owners.
5.50
The Victorian Aboriginal Heritage Council commented stated:
This is where I think the difficulty lies in our own mobs having organisations. What is the degree to which boards and others have clear authorising environments where families, through directorship, can contribute knowingly and can turn their thinking strategically to how we're going to manage culture and landscape? That is a very difficult task for all Aboriginal corporations. But I think it's a fundamental principle of how we do our business culturally and something that I think all corporations need to be reminded of, and boards and executives and others need to be held to account in doing that. I think that is the end goal for all of us, and it will only get more difficult as our families get bigger and our representation through our corporations actually increases.
5.51
The Victorian Aboriginal Heritage Council noted that ‘the first iteration of this legislation in Victoria was fit for a time and somewhat fit for purpose’. But the Council developed a discussion paper about traditional owners taking control of their cultural heritage, which proposes:
Traditional owner groups themselves—very similar to the First Peoples' Assembly—are able to nominate and recommend who their representatives would be. To achieve that at this point in time would be a challenge, because there's an absence of complete coverage of registered Aboriginal parties in Victoria, so that can be a problem in itself. But the vision is very sensible and I think very sound for Victorian traditional owners to be reclaiming their rights to suggest this to government. It is a really good legislative reform to be working towards. Sadly, I'd say, no, it isn't the ideal at the moment, but it's the best we've ever had in Victoria.
5.52
The Law Council, despite considering the Victorian legislation as the best, acknowledges that there are frustrations for Aboriginal people. Such as:
lack of protection where the intangible cultural heritage is widely known to the public
limited opportunity to prevent projects proceeding where there is uncertainty about the extent of cultural heritage (due to limited testing) and difficulties in revoking approvals or changing conditions where the heritage values of a site or object are greater than were known at the time of approval
need for better funding and governance training for RAPs to ensure they have adequate means to assess and protect cultural heritage and to participate in proceedings where cultural heritage matters are raised
where there are multiple groups seeking to speak for country, the concerns of those not part of a RAP may not be addressed.
Queensland
5.53
There are three key pieces of legislation in Queensland’s cultural heritage framework: the Aboriginal Cultural Heritage Act 2003; the Torres Strait Islander Cultural Heritage Act 2003; and the Human Rights Act 2019
Aboriginal Cultural Heritage Act 2003 (QLD) and the Torres Strait Islander Cultural Heritage Act 2003 (QLD)
5.54
The Aboriginal Cultural Heritage Act 2003 (Qld) (ACH Act (Qld)) is standalone legislation to deal with Aboriginal cultural, including “recognition, protection and conservation” of Aboriginal cultural heritage. Substantially the same as the Torres Strait Islander Cultural Heritage Act 2003, the two Acts together are called the QLD Cultural Heritage Legislation.
5.55
The ACH Act defines Aboriginal cultural heritage as anything that is a significant Aboriginal area; or a significant object; or evidence, of archaeological or historical significance, of Aboriginal occupation of an area in Queensland. The Act does not refer to intangible cultural heritage directly.
5.56
The ACH Act refers to a definition of Aboriginal tradition as meaning:
…the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular community or group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships.
5.57
The Act recognises Aboriginal people as the primary guardians, keepers and knowledge holders of Aboriginal cultural heritage. The legislation is designed so as not to prejudice any existing rights, including native title. The Act provides a proponent with certainty of a party and a timeframe to resolve issues.
5.58
The ACH Act imposes a duty of care in relation to Aboriginal cultural heritage, requiring a land user to take all reasonable steps to ensure that an activity does not harm cultural heritage. There are criminal enforcement mechanisms for breach.
5.59
The Act establishes an Aboriginal Cultural Heritage Database and a Cultural Heritage Register.
Human Rights Act 2019 (Qld)
5.60
The Queensland Human Rights Act 2019 contains considerations of the Indigenous peoples of Queensland. The Act states that:
Although human rights belong to all individuals, human rights have a special importance for the Aboriginal peoples and Torres Strait Islander peoples of Queensland, as Australia’s first people, with their distinctive and diverse spiritual, material and economic relationship with the lands, territories, waters, coastal seas and other resources with which they have a connection under Aboriginal tradition and Ailan Kastom. Of particular significance to Aboriginal peoples and Torres Strait Islander peoples of Queensland is the right to self-determination.
Aboriginal peoples and Torres Strait Islander peoples must not be denied the right, with other members of their community, to enjoy maintain, control, protect and develop their identity and cultural heritage, including their traditional knowledge, distinctive spiritual practices, observations, beliefs and teachings.
Critiques of Queensland legislation
5.61
A number of commentators have criticised aspects of the application of the Queensland legislation.
5.62
The ACH Act (Qld) sets up situations where consultations with Aboriginal parties and the agreement of a CHMP is required. This is primarily for major projects requiring an environmental impact statement. This is intended to place Aboriginal people at the centre of the CHMP process for large projects. But the University of Queensland academic, Mark O’Neill, contends that the process has been shifted towards a commoditised, agreement-making process. The better negotiator is often the successful party, and power depends on the capacity of the Aboriginal party. As a result of the legislative structure and the requirements for agreements and CHMPS:
… some land users have failed to implement the agreed CHMPs properly, causing delays and cost overruns during project delivery and some Aboriginal parties have used cultural heritage to attempt to delay or stop a project for cultural or commercial reasons. Nonetheless, the number of CHMPs agreed and successfully implemented point to the ability of land users and Aboriginal parties to reach agreements, which facilitate the delivery of major projects.
5.63
Despite the existence of enforcement mechanisms in the legislation, Kristen Hodge from the Queensland South Native Title Services argues that the state does not engage the provisions due to risks of consequential damages related to any projects. Avenues for enforcement through legal action are limited. Reviewability of decisions is provided for under the state legislation, or by pursuing an injunction, or finally, by seeking a declaration under the ATSIHP Act (Cth).
5.64
Stakeholders in Queensland raised various issues about the application of the State’s cultural heritage legislation. Evidence suggests that threats to and destruction of cultural heritage is a constant occurrence in the State.
5.65
For example, Ms Deborah Moseley is a private land owner on the Sunshine coast whose land contains a Kabi Kabi cultural heritage site called an ‘Aboriginal Kitchen’. Ms Moseley registered the site with the Department; the process involved visits from historians, archaeologists, anthropologists and geologists visiting the site as well as Kabi Kabi elders who were invited to share knowledge of the area. The elders also asked the Department for help with registering the area surrounding Ms Moseley’s block but received no response. Unfortunately, blocks of land were sold and developers knocked down rock a formation with carvings on it. When asked if there was anything to be done a Kabi Kabi elder stated that such events happen every day on the Sunshine Coast: ‘I can only turn my back’.
5.66
Similarly, the Cape York Land Council conveyed a disturbing account of cultural heritage protection in Queensland. They stated that:
It is impossible to quantify the full extent of destruction of Indigenous cultural heritage in Queensland, including Cape York, resulting from land use and development. Mining, agriculture, urban development, infrastructure and other land uses have taken a huge toll on Indigenous cultural heritage. No comprehensive official record of the damage and destruction has been maintained. The destruction has been ongoing since colonisation and is too extensive, pervasive, unrecorded, qualitative and personal to accurately measure.
Our great concern is that the damage and destruction of Aboriginal cultural heritage on Cape York is ongoing, and most alarmingly, is often legally sanctioned pursuant to the provisions of the Aboriginal Cultural Heritage Act 2003 (ACHA), Queensland’s principal Aboriginal cultural heritage protection legislation. Our experience has been that non-Indigenous land use and development is routinely prioritised as more valuable than Indigenous cultural heritage, and Indigenous cultural heritage is expendable if it gets in the way of development. In this way the ACHA is frequently used as a tool to facilitate, manage, regulate and legally approve damage to Aboriginal cultural heritage rather than to protect it.
5.67
The Centre for Social and Cultural Research at Griffith University was particularly scathing of Queensland’s cultural heritage legislation calling it ‘one of the worst performing legal frameworks for protecting Aboriginal heritage’:
No real resourcing has been provided by the State Government to adequately equip Aboriginal communities to administer management of their heritage, and many Aboriginal organisations are already crippled with other responsibilities (such as for broader land management, housing, the provision of health, language survival, improving education outcomes and other essential services). It is absolutely the case that Indigenous peoples should be empowered to control their heritage, but failing to provide cultural custodians with the necessary funding, training and resources with which to do so is, in our view, irresponsible.
In practice we see the Queensland heritage legislation as allowing developers an almost open hand with how to approach heritage management. Often a “cultural heritage management plan” is drafted prior to the identification of the heritage that will be subject to the plan, which is in diametric opposition to best practice and all the fundamental tenets of cultural heritage management. Most troubling, the current Queensland heritage legislation allows any person to be recognised as a “cultural heritage advisor”. Failure to include minimum mandatory qualifications has allowed a small cohort of unscrupulous practitioners, often charging clients exorbitant rates, to provide reckless, inadequate advice.
5.68
Stakeholders raised a number of other issues regarding cultural heritage protection in Queensland.
Duty of Care Guidelines
5.69
Stakeholders were critical of the duty of care approach to cultural heritage protection and of related guidelines.
5.70
Quandamooka Yoolooburrabee Aboriginal Corporation (Quandamooka) stated that:
The Duty of Care guidelines are vague, and when combined with no power to enter land and inspect a breach of the Act turn the Qld Act into a toothless tiger. Without a clear statutory compliance power, the Qld Act is a sham and does not protect cultural heritage at all. You cannot prosecute if you cannot collect evidence.
5.71
Similarly, the Australian Heritage Specialists said that the guidelines do not properly acknowledge intangible heritage and that it is feasible for a land user to base their decision to consult solely on tangible evidence while dismissing anything intangible. They noted:
What we're seeing with the duty of care guidelines, particularly category 4, which is the area where the risk goes from a low risk to a high risk, is that the centre line of that middle score of self assessment can, unfortunately, be developed and used as a loaded weapon against Aboriginal people by those who choose to use it improperly. We regularly see—as recently as last week—even in government departments, where there is a level of decision-making, the duty of care guidelines used to avoid or exclude Aboriginal people in the decision-making process, deliberately or not deliberately.
5.72
Ms Kathryn Ridge, lawyer for Quandamooka, submitted that the guidelines do not always require consultation with traditional owners, with the lower level impact categories not triggering a need for consultation:
If a proponent, whether it's a mining company or a developer, determines they're within parts 1 to 4 of the duty of care provisions, they do not even need to notify the Aboriginal party of the proposed works. So Aboriginal people, by and large, are not notified prior to works undertaken in their areas. It's often after the fact that people find out that heritage has been impacted. Our view is that you could drive a truck through the duty-of-care guidelines in Queensland.
5.73
O’Neill and Hodge made the same point, arguing that the duty of care guidelines enable proponents to make judgements about heritage significance and have thus have had the effect of excluding many Aboriginal parties from cultural heritage management. The responsibility is placed on Aboriginal parties to be aware of developments and the impact on cultural heritage, without having decision making power or input.
5.74
O’Neill therefore urged that guidelines as tools for cultural heritage management should be used with caution, particularly where there is room for interpretation and a developing ‘custom’ around how the guidelines are to be applied.
The ‘last claim standing’ provision
5.75
The Committee heard evidence about has become known the ‘last claim standing’ provision of the Aboriginal Cultural Heritage Act.
5.76
Section 34 of the legislation provides a mechanism to identify the relevant Aboriginal and Torres Strait Islander party that a proponent must deal with to negotiate or develop a CHMP. In short, if there is no Native Title party for an area then the last claimant is considered to be the registered party for the area. This is highly problematic because under the Native Title Act there are often competing claims over a particular area.
5.77
The Karingbal people told the Committee of their negative experience with the controversial provision. The group made a native title claim for the Arcadia Valley at the same time as another group, but both claims failed. It was ruled that the Karingbal people were once native title holders for the Arcadia Valley, but they did not meet the continuity of connection requirements of the Native Title Act 1993. It was found that the other group had never held native title over the determination area and that they were not Karingbal people. Nonetheless due to Department of Aboriginal and Torres Strait Islander Partnerships’ interpretation of the Act both groups were considered the registered party for the native title claim area. This has placed Karingbal in the situation where people with no traditional affiliation with, or traditional knowledge of, Karingbal culture are able to make decisions on their heritage.
5.78
To address this problem and prevent harm to their cultural heritage, the Karingbal have taken the initiative to introduce themselves to proponents seeking to work on their traditional lands in order to develop a cooperative relationship. Some proponents have responded positively while others have refused to work with them.
5.79
In 2017 the Nuga Nuga Aboriginal Corporation (representatives of the Karingbal people) successfully brought a judicial review application to the Supreme Court, challenging the States interpretation of the provision. His Honour Justice Jackson found that the relevant sections of the ACHA 2003 did not have the application asserted by the State. But the State government later decided to legislate its interpretation of the legislation, to the dismay of the Karingbal people.
5.80
The ‘last claim standing’ as re-legislated by the Queensland Government remains as one of the most controversial and problematic elements of the state’s legislation.
South Australia
5.81
Cultural heritage protections in South Australia are offered by the Aboriginal Heritage Act 1988 and the Aboriginal Lands Trust Act 2013. There are also two Acts which only pertain to two Aboriginal groups, the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 and the Maralinga Tjarutja Land Rights Act 1984.
Aboriginal Heritage Act 1988
5.82
The Aboriginal Heritage Act 1988 (AH Act (SA)) is standalone legislation guiding the protection and management of Aboriginal cultural heritage. Within the ambit of protection are sites and objects “of significance according to Aboriginal tradition”, and Aboriginal skeletal remains.
Aboriginal tradition means traditions, observances, customs or beliefs of the people who inhabited Australia before European colonisation and includes traditions, observances, customs and beliefs that have evolved or developed from that tradition since European colonisation.
5.83
The AH Act (SA) does not include explicit protections for intangible cultural heritage, though they may be read in by interpretation. Spirituality is acknowledged as something which may give rise to a traditional owner’s affiliation with a site or object, but legislative protection still only attaches to the tangible. Unlike in other jurisdictions, Aboriginal knowledge is protected by provision for criminal penalties where information relating to an Aboriginal site, object, remains or traditions is divulged in contravention of Aboriginal tradition.
Box 5.3: Case study: The sacred mound springs of the Arabana people
The Arabana people have Native Title over Kati Thanda-Lake Eyre, a significant area between Lake Torrens, Coober Pedy and Oodnadatta in South Australia. Their home is a place with a rich abundance of life which is fed by mound springs, seepages at the southern edge of the Lake. These springs are of great significance to the Arabana people and they are an important part of their cultural heritage.
Over the last 20 years the springs have been disappearing due to water extraction from the Great Artesian Basin. BHP, pastoralists and petrochemical companies in the area pump 200 megalitres a day from the springs. There are fears that continued extraction from the springs will result in a significant reduction to the ‘vitality and the ecological viability of the springs’, and that there is a high likelihood that more springs will go extinct.
A key problem that has contributed to this pumping of water is the Roxby Downs (Indenture Ratification) Act 1982(SA). The Act imposes legal privileges to BHP which takes precedence over the State’s Aboriginal Heritage legislation as well as overriding other State laws and due process. The indenture applies over the Olympic Dam Special Mine lease and also includes the ‘Stuart Shelf Area’ of over 12,000km2, allowing BHP to operate the Olympic Dam Mine without consideration of Aboriginal cultural heritage. .
The Act also gives BHP primary access to water from the Great Artesian Basin, currently pumping at a rate of 34-35 megalitres per day with a planned future increase in water extraction by a further 50 percent. This increase has caused significant concern for the Arabana people.
BHP have committed to working with the South Australian Government and traditional owners to formally transition management of Aboriginal cultural heritage protection at Olympic Dam to the South Australian Aboriginal Heritage Act 1988 (SA).
It is not yet known how this change will impact BHPs water extraction from the Great Artesian Basin and by relation the mound springs.
5.84
Sites and objects are protected by their being recorded on a Register by the Minister, and are conclusively presumed to not be Aboriginal cultural heritage if the Minister has determined that they should not be on the Register. The Minister must consult with and accept the views of the relevant traditional owners in making such a determination.
5.85
More than other jurisdictions, South Australia affords some decision-making power to traditional owners. The AH Act (SA) establishes the Aboriginal Heritage Committee (with an all-Aboriginal membership) to act in an advisory role for the Minister, which in turn appoints Recognised Aboriginal Representative Bodies (RARBs) to advise the Minister in relation to specified sites and objects.
5.86
Like Queensland, this legislation seeks to provide proponents and landowners with certainty in dealing with Aboriginal parties. This is somewhat limiting for traditional owners, as the Act does not contemplate situations of conflict over Indigenous ownership or shared Indigenous ownership of cultural heritage, but rather makes it the responsibility of the Aboriginal Heritage Committee to appoint RARBs for protected sites and objects.
5.87
South Australia protects cultural heritage by affording the Minister power to enter into bespoke Aboriginal heritage agreements with landowners and traditional owners on land where an Aboriginal site, object or remains are situated. The agreement is entered into by the owner of the relevant land but attaches to the land itself and is binding on any subsequent owners. Heritage agreements provide better and more robust protections for traditional owners than the legislation would alone, as the agreements ‘may contain any provision for the protection or preservation of Aboriginal sites, objects or remains.’
5.88
The effectiveness of Aboriginal heritage agreements is limited by the processes necessary to approve them. Under the AH Act (SA), in areas where native title has been determined, the registered native title body corporate (RNTBC) will be the RARB, subject to their agreeing to be so appointed and their approval by the Committee. The RNTBC, also known as the prescribed body corporate (PBC), is subject to native title laws and regulations.
5.89
The AH Act (SA) creates criminal offences for excavation or damage to Aboriginal sites, objects or remains without the authority of the Minister. Such authority is similar to section 18 of the AH Act (WA), which allowed the destruction of the Juukan Gorge rock shelters. The Minister is required under section 5(2) to consider any relevant recommendations of the Aboriginal Heritage Committee, but otherwise has a wide discretion to apply his or her authority.
Aboriginal Lands Trust Act 2013
5.90
The Aboriginal Lands Trust Act 2013 replaced the Aboriginal Lands Trust Act 1966, the first major recognition of Aboriginal Land Rights by any Australian Government. Its aim was to establish the Aboriginal Lands Trust, with members comprising entirely of Aboriginal people who hold land titles on the behalf of the Aboriginal people of South Australia.
5.91
The new Act was created after a South Australian Government review of the 1966 Act. Notably the Aboriginal Lands Trust was given more autonomy. The Aboriginal Land Trust’s role is to lease, mortgage or otherwise deal with the Trust’s land including land development. The role of the Trust is further outlined on their website:
Organising the leasing of land to Communities and managing natural resource management programs to improve the condition of the land. The Trust seeks and has been granted funds from various organisations to undertake land care projects in conjunction with Aboriginal Communities and other landholders. These projects not only benefit landholders but enabled the Trust to take a more direct and proactive role in working directly with local Aboriginal Communities, individuals and both State and Federal government agencies.
Box 5.4: Case study: Lake Torrens
Lake Torrens is the second largest salt lake in Australia and is integral to the beliefs and songlines of the Adnyamathanha, Pitjantjatjara, Yankunytjatjara, Arabana, Barngarla, Kokatha and Kuyani people. The site is not protected by native title. In 2020, the Aboriginal Affairs Minister, South Australian Premier Steven Marshall authorised the minerals exploration company Kelaray to drill Lake Torrens, targeting iron oxide and copper-gold. Lake Torrens is recorded on the SA Government’s Register of Aboriginal Sites and Objects, but section 23 of the Act allows the minister to approve acts which may ‘damage, disturb or interfere’ with Aboriginal sites.
On 6 July 2021, the Kokatha Aboriginal Corporation made applications to the Federal Environment Minister to protect Lake Torrens from exploratory drilling by Kelaray under section 9 and 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).
Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981
5.92
The purpose of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 is to ‘provide for the vesting of title to certain lands in the people known as Anangu Pitjantjatjara Yankunytjatjara; and for other purposes’. The Act established the ‘Anangu Pitjantjatjara (AP) as the ‘body corporate’ of traditional owners (TOs) and, through an elected Executive, empowered Anangu decision-making over development, access and other matters’. Any proponent that seeks to conduct mining activity on Anangu Pitjantjatjara Yankunytjatjara land must apply directly to the Executive Board. The Board must then decide on the application with a copy sent directly to the South Australian Minister of Mines and Energy. Should the Board decline the application, the proponent may request that the application is referred to an arbitrator who is appointed by the Minister to decide on the application. The arbitrator must be a judge of the High Court, the Federal Court of Australia, or the Supreme Court of a State or Territory of Australia.
Maralinga Tjarutja Land Rights Act 1984.
5.93
As with the above Act, the Maralinga Tjarutja Land Rights Act 1984 applies the same conditions to the Maralinga Tjarutja. The Act’s purpose is ‘to provide for the vesting of title to certain lands known as the Maralinga lands in the people who are acknowledged as the traditional owners’.
Stakeholder perceptions and experiences
5.94
South Australian stakeholders were critical of the South Australian heritage framework and there was significant criticism relating to the Aboriginal Heritage Act 1988.
5.95
Mr David Noonan conveyed a series of criticisms of the Act:
Certainly, at the state level, in WA and South Australia, the Aboriginal heritage acts fundamentally fail to protect Aboriginal heritage and gives full ministerial discretion to the minister to grant a power to interfere with and destroy Aboriginal heritage. The South Australian Aboriginal Heritage Act, as a case example, is referred to as a search-and-destroy act by South Australian Native Title Services. Communities, in good will, list their cultural heritage sites and places and interests, whether they be a songline or a storyline, what might be referred to as intangible cultural values. … In good faith they put these values forward to be protected under the act, just to find that, after they have identified those values, the South Australian minister … can grant a right of interference to a mining company or other developer to interfere with and destroy those same Aboriginal values that people have put forward and identified in good faith. There is a recent case of that where the now Lake Torrens National Park was approved for mining access for drilling by Stephen Marshall as the Aboriginal Affairs Minister, and then also as Premier, over the opposition of four Aboriginal groups who have interests on and around the lake and over the direct advice of the South Australian cultural heritage committee to the Minister. Even having that advice and having had the representations from those for Aboriginal groups, the Minister still exercised discretion in favour of mining to allow drilling access on Lake Torrens. Again, that's a completely unacceptable use of power over original interests in an outdated act.
5.96
Ms Brenda Underwood of the Arabana Aboriginal Corporation also decried the excessive powers of the minister to make decisions about Aboriginal cultural heritage:
Under the South Australian Heritage Act, there is no way that the protection of the springs can be guaranteed. Under the act, the Minister for Aboriginal Affairs can authorise the destruction of the springs. The only requirement is that he must call a meeting and consult with us. Then he can give authorisation to anyone to continue to take water out and destroy our springs. He alone can make that decision. Should damage occur, the maximum penalty for a body corporate is $50,000. What a joke! In other cases, the penalty is $10,000 or imprisonment for six months. Who collects these fines, and who monitors and identifies damage? It is a conflict of interest, surely, that the South Australian Minister for Aboriginal Affairs is also the Premier.
5.97
Mr Andrew Starkey agreed, stating:
Our view is not one of very high regard. I've been in the game of site protection most of my life, and I cannot recall that anyone has ever been prosecuted under that act. We've lodged a complaint after complaint that go nowhere.
Tasmania
5.98
The Tasmanian cultural heritage protection framework is guided by seven pieces of legislation:
Aboriginal Heritage Act 1975
Historic Cultural Heritage Act 1995
Land Use Planning and Approvals Act 1993
National Parks and Reserves Act 2002
Museums (Aboriginal Remains) Act 1970
Aboriginal Lands Rights Act 1995.
Aboriginal Heritage Act 1975
5.99
The Aboriginal Heritage Act 1975 (Tas) (AH Act (Tas)) is the primary legislation governing cultural heritage. It was amended in 2017 and had previously been referred to as the Aboriginal Relics Act 1975. The preamble to the Act is still ‘the preservation of aboriginal relics’, though the requirement that an object must be from before 1876 to be protected as a relic has been removed.
5.100
Like other jurisdictions, Tasmanian cultural heritage protections attach to sites and objects of significance by way of history or Aboriginal tradition. Objects made by, objects, sites or places bearing signs of, and remains of the ‘original inhabitants of Australia’ are captured under this definition.
5.101
Notably, objects made or likely to have been made for the purpose of sale are not protected.
Box 5.5: Case study: Takayna
In 2012 the Tasmanian Government closed 4WD tracks in Tasmanian Aboriginal Cultural Landscape within Takayna/Tarkine. It is one of the longest inhabited areas of Tasmania. The landscape is rich in evidence of continuous occupation, including hut depressions, high, density midden deposits, petroglyphs, and known burial sites. After extensive community consultation, 4WD tracks in the area were closed due to damage that was occurring to cultural heritage sites.
After the closing of the 4WD tracks the area became an EPBC Nationally listed heritage place. Despite this, in 2014, a newly elected Tasmanian Government announced that the tracks would be reopened. No approval was sought under the EPBC Act and no assessment of the impacts on the cultural values to the relevant Aboriginal people was conducted.
The Environmental Defenders Office represented the Tasmanian Aboriginal Centre in legal action taken in 2014-2016 to prevent the reopening of the tracks. The challenge was successful as the Tasmanian Government had not sought EPBC Act assessment and approval.
Since then the tracks remain closed. The fact that it took legal action to ensure that the State Government complied with the Federal EPBC Act is concerning. This case demonstrates that even Federal protection is not necessarily a guarantee of the safety of Aboriginal cultural heritage.
5.102
The AH Act (Tas) is currently under review and a report was tabled in Parliament by the Minister for Aboriginal Affairs on 1 July 2021. The amended legislation will include an ‘expanded and more appropriate’ definition of Aboriginal heritage (that omits the term ‘relic’), although it remains to be seen whether protections will be extended to intangible cultural heritage. The report tabled by the Minister does not refer to the issue. The inclusion of intangible heritage is supported by Aboriginal community organisations and organisations with heritage expertise.
5.103
At present, the Act does not provide for the creation and maintenance of a Register of cultural heritage, unlike many other jurisdictions. This is particularly problematic in a system where lack of knowledge may be a defence against a charge laid for harm to Aboriginal cultural heritage. This issue has been identified in the review as one that should be addressed with better cultural heritage management tools and mechanisms.
5.104
Rather than vesting ownership of Aboriginal cultural heritage in Aboriginal people, the AH Act (Tas) automatically legislates that from the date of commencement, relics found or abandoned on Crown land are the property of the state. The Minister has the power to acquire relics from private ownership, unless the owner is of Aboriginal descent and has had possession for more than 50 years.
5.105
Sites on which relics are found may only be declared by ministerial order to be protected sites with the written consent of the owner and/or occupier.
5.106
The Act establishes the Aboriginal Heritage Council to advise the Minister and Director of National Parks on objects, sites and places alleged to be relics, and on administration of the Act. The Council has an all-Aboriginal membership and is required to consult with the Aboriginal people of Tasmania ‘where appropriate and practicable’. This is the only requirement for Aboriginal community consultation under this Act. The need for increased representation of Aboriginal people and interests has also been highlighted as an issue to be addressed in the review, though positions on allocations of Aboriginal decision-making power are many and varied.
5.107
The AH Act (Tas) establishes a system of criminal offences to acts which harm Aboriginal heritage, including causing damage, removing relics from their place or from the state, and selling or disposing of them. It is also an offence to sell an object ‘that so nearly resembles a relic as to be likely to deceive or be capable of being mistaken for a relic’.
5.108
Similar to other jurisdictions, there are mechanisms for permits to harm Aboriginal heritage or to establish a defence to the actions that resulted in harm, such as lack of knowledge. Work approvals are granted for new projects and developments under the Land Use Planning and Approvals Act 1993 and may have conditions imposed upon them by reference to the AH Act (Tas).
5.109
The review has identified a need to improve the enforcement and compliance mechanisms under the AH Act (Tas), including possible new provisions for stop work orders, community education programs and a greater enforcement role for Aboriginal people.
Stakeholder perceptions and experiences
5.110
Overwhelmingly, the evidence put to the Committee is that the Tasmanian legislative framework is inadequate. The Tasmanian Aboriginal Heritage Council Chairperson, Mr Rodney Dillon, put forward the view that the State legislation is weak and that national legislation should be passed to do what the Tasmanian Government and other jurisdictions cannot. The Tasmanian Aboriginal Centre is of a similar view, stating that the Tasmanian legislation is inadequate and in need of reform to ensure more uniform protection.
5.111
A fundamental problem of the Tasmanian Aboriginal cultural heritage protection framework is that Aboriginal people are not acknowledged as owners of their own heritage. This undermines the capacity of the Aboriginal community of Tasmania to manage, protect or conserve their own cultural heritage.
5.112
Mr Rodney Dillon, the Chairperson of the Tasmanian Aboriginal Heritage Council, called for increased powers for the Council:
We want the Heritage Council to be the one that decides and makes that stand; and when we say that this shouldn't be touched, it shouldn't be touched. We want the state government to put that into legislation like they have in white legislation. White heritage sites are fully protected by that committee. We want our committee to have that same power to say 'yea' or 'nay' about whether a site is protected or not. We've got to get that legislation through the state government.
Australian Capital Territory
5.113
The ACT Aboriginal cultural heritage framework is primarily governed by the Heritage Act 2004. The Nature Conservation Act 2014, and the Planning and Development Act 2007 also have intersection with the Heritage Act.
Heritage Act 2004
5.114
The Heritage Act 2004 (HA (ACT)) is designed to protect and conserve both Indigenous and non-Indigenous heritage. The Act’s objects include the protection of places and objects with natural heritage significance, cultural heritage significance, or that are Aboriginal. The Act seeks to construct a system of development that allows for land use and planning with regard for heritage significance and heritage guidelines.
5.115
Definitions in this legislation include:
Aboriginal object means an object associated with Aboriginal people because of Aboriginal tradition.
Aboriginal place means a place associated with Aboriginal people because of Aboriginal tradition. …
Aboriginal tradition means the customs, rituals, institutions, beliefs or general way of life of Aboriginal people.
5.116
By these definitions, ‘Aboriginal tradition’ could be interpreted to include intangible cultural heritage that connects Indigenous people with place.
5.117
The Act establishes the ACT Heritage Council, wherein at least one member must be a ‘public representative…who, in the Minister’s opinion, adequately represents … the Aboriginal community’. The Heritage Council is responsible for maintaining the register of heritage places and objects under Part 4 of the Act. The Minister may also appoint representative Aboriginal organisations in relation to places or objects, with whom the Council must consult before making decisions relating to registration of a place or object.
5.118
This Act interacts with the Planning and Development Act 2007, governing land use in the ACT. Development applications are decided by the Planning and Land Authority on advice from the Heritage Council. The Council further has the power to approve excavations or applications for statements of heritage effect in relation to works that may damage or diminish the heritage value of a protected place or objects.
5.119
The law in ACT is distinctive in that it grants decision-making power to the Heritage Council rather than to a Minister, a system whose like is only seen in the Northern Territory and only there in relation to sacred sites. That said, the ACT Heritage Council may only have one Aboriginal member.
5.120
Other powers of the Council include the making of heritage guidelines and directions, and to apply to the Supreme Court of ACT for heritage orders and enforcement orders.
5.121
Similar to South Australia, heritage agreements relating to conservation of significant objects or places may provide more robust protections than legislation alone. A heritage agreement is entered into between the Minister (in accordance with the advice of the Council) and the owner of the relevant place/object, and attaches to the land on which the place or object is located.
5.122
The Act also contains offence and enforcement provisions for breach of the legislation.
Northern Territory
5.123
In the Northern Territory (NT) there are three principle Acts which contribute to the protection of Aboriginal cultural heritage:
Northern Territory Aboriginal Sacred Sites Act 1989 (NTASSA)
Aboriginal Land Rights Act 1976 (Cth) (ALRA).
The Heritage Act 2011
5.124
The Heritage Act 2011 offers automatic protection for all Aboriginal and Macassan archaeological places and objects throughout the Northern Territory. If a site has an associated Aboriginal tradition it will also be considered a sacred site for the purposes of the NTASSA. The Act includes a Heritage Register, maintained by the Northern Territory Department of Lands, Planning and Environment. Currently 8,000 Aboriginal and Macassan archaeological places are included on the database. Information on the database is used to inform decision-making about proposed development, and proponents are required to undertake archaeological surveys if not enough information is available.
5.125
The Act does not mandate consultation when a proponent proposes to undertake work that may affect an Aboriginal or Macassan archaeological place. This has been acknowledged by the Northern Territory Government as a problem, and it submitted that ‘it may be possible to amend the Act so that (at the very least) it is made clear that best endeavours need to be made to consult with relevant Aboriginal people about proposed work’.
5.126
Protection provisions are also contained within the Heritage Act that are comparable to other jurisdictions such as stop work orders and repair orders.
Box 5.6: Case Study: McArthur River
The McArthur River Mine in the Northern Territory has been a cause for concern for the local Gurdanji, Garrwa, Yantuwa and Marra people for decades due to its impact on sacred sites. It is one of the world’s largest zinc and lead mines
Following the decision in Mabo and before the mine commenced, the NT Government passed the McArthur River Project Agreement Ratification Act 1992 (NT), which validated the mining leases against any native title claim and deprived the traditional owners of the right to negotiate which they would have been entitled to when the Native Title Act passed two years later. There is a separate section of the Native Title Act (s 46) that recognises the validation of the McArthur mining leases under the NT Act.
The company could still have chosen to negotiate with the traditional owners but didn’t - until their commitment during the inquiry to begin negotiations.
In 2003 the mine owners proposed to transition the mine from an underground mine to an open-cut mine, seeking to extend the life of the mine. This was later approved in 2006 by NT Minister Chris Natt. Traditional owners successfully challenged, with a court deciding in 2007 to rule against the approval. However, the NT Government amended the McArthur River Project Agreement Ratification Act 1992 (NT) to override this decision. As a result the same Act has twice thwarted traditional owner rights.
One of the biggest impacts of the mines transition to an open-cut mine was the diversion of the McArthur River in 2008 to make way for the mine. Plans to divert the river were met with strong Aboriginal and Torres Strait Islander peoples opposition due to the river’s, and an associated site’s, association with the Rainbow Serpent Dreaming. Mr Jack Green, a Garrwa man, stated that the diversion ‘destroyed the back of the Rainbow Serpent’, destroying a site of deep spiritual significance.
Traditional owners, Gurdanji, Garrwa, Yantuwa and Marra peoples, state that in the history of the mine, the owners have never properly communicated with them. They were not consulted about the development of the mine or informed of activities that may impact heritage. They have also not had the opportunity to give Free Prior and Informed Consent as an Indigenous Land Use Agreement was never negotiated. Traditional owners also claim that they have not been provided with access to the mine area to visit sacred sites.
Mr Stephen Rooney, Macarthur River Mine General Manager acknowledged the hurt caused by the mine to traditional owners stating:
Today, we as Glencore, the current operators of the McArthur River Mine, want to offer an apology and say sorry to the Indigenous people and traditional owners from the four languages groups of Gudanji, Yanyuwa, Garrwa and Marra. McArthur River Mine has never destroyed sacred sites, but we acknowledge that historical actions like the river diversion have clearly not met the expectations of the Aboriginal community. We at Glencore cannot change this history, but we are committed to working together with traditional owners to better meet community expectations going forward.
The McArthur River Mine has made a commitment to pursing an Indigenous Land Use Agreement in an effort to rectify their relationship with traditional owners. The pursuance of an ILUA is in its early stages, should an agreement come to fruition it could be beneficial for traditional owners.
The McArthur River Mine has also made a commitment to allow traditional owners site access to facilitate the ability to visit sacred sites. Lack of access to land has also been a point of contention for traditional owners as they have long been unable to conduct cultural practices on country.
Traditional owners expressed doubts, given past history with the mine, and are in need of legal assistance to properly come to any agreement.
Northern Territory Aboriginal Sacred Sites Act 1989
5.127
All Aboriginal sacred sites on land and water in the Northern Territory are protected by law under the Northern Territory Aboriginal Sacred Sites Act 1989 (NTASSA).
5.128
Key to the NTASSA was the establishment of the Aboriginal Areas Protection Authority (AAPA) − an independent authority which oversees the protection of sacred sites. Its functions include responding to requests from traditional owners for sacred site protection, as well as documenting and recording sacred sites. The AAPA states:
We protect our sacred sites for the benefit of all Territorians in balance with the economic development of the Northern Territory. As such, we do not and cannot authorise the destruction of sacred sites in the Northern Territory. We consult always and as mandated by legislation. We respect the rights of custodians, traditional owners and native title holders. We negotiate with and guide developers. We manage risk, and provide certainty for custodians and developers alike. And we prosecute when people do the wrong thing.
5.129
The NTASSA seeks to balance Aboriginal cultural heritage protection with ‘aspirations of the Aboriginal and all other peoples of the Territory for their economic, social and cultural advancement’. It operates in conjunction with the Commonwealth Land Rights (NT) Act to protect Aboriginal sacred sites by way of their significance in accordance with Aboriginal tradition. Under both Acts:
Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships.
5.130
Further, the Act has the potential to protect intangible cultural heritage. In a 2013 case, Aboriginal Areas Protection Authority v OM (Manganese) Ltd, a prosecution was brought when a proponent acting outside the scope of an Authority Certificate caused the collapse of a rocky outcrop in the sacred site known as ‘Two Women Sitting Down’. In the judgment, the Court discussed the Act’s definition of ‘desecration’ as including ‘not so much the physical integrity of the site but … whether what has occurred in relation to it has violated the sacred symbols or beliefs that it represents.’ This case was the first successful prosecution of a company for desecration of a sacred site in the Northern Territory.
5.131
The NTASSA establishes and guides the functions of the Aboriginal Areas Protection Authority (AAPA). The AAPA is an independent statutory authority with a Board of ten Aboriginal custodians and two government nominated members. The Aboriginal custodians are appointed in equal numbers of women and men from a panel nominated by the NT Land Councils.
5.132
The AAPA is responsible for maintaining the Register of Sacred Sites, which in 2018 contained information on more than 12,000 sacred sites in the NT. The Register assists with certainty for development and land management processes, though protection of a site is not contingent on registration as all sacred sites in the NT are protected whether they are known to the AAPA or not.
5.133
The Commonwealth Land Rights (NT) Act makes it an offence to enter or remain on land that is a sacred site without permission. The NTASSA backs up the Commonwealth Act with provision for the same offence, as well as offences of usage or working on a sacred site, desecrating a sacred site, or non-compliance with an Authority Certificate that results in damage to a sacred site or distress to a custodian. The AAPA has sole authority to bring a prosecution in relation to these matters, which presents considerable challenges for enforcement. The AAPA is a small agency with a limited capacity, and much of its enforcement ability relies on voluntary compliance and ad hoc reporting from the community. Nevertheless, the AAPA brings approximately two prosecutions per year for breaches of the NTASSA.
5.134
Anyone seeking to use or work on land or waters in the Northern Territory may apply to the AAPA for an Authority Certificate under section 19B. Though not compulsory in most cases, an Authority Certificate serves to provide certainty to proponents relating to the locations of sacred sites and the wishes of custodians, as well as a defence to prosecution. Authority Certificates may only be issued where the AAPA considers there to be no substantive risk to sacred sites, or if an agreement has been reached with custodians. Aggrieved proponents may then seek review from the Minister in the form of a Certificate under s 32, but any decision by the Minister must still be consistent with the Land Rights (NT) Act and not permit the desecration of sacred sites.
5.135
Review of an AAPA decision by the Minister has only occurred four times during the lifetime of the NTASSA, and only once was the Authority Certificate overridden. In that circumstance, the site found protection under the federal ATSIHP Act – one of few examples where the ATSIHP Act was applied successfully for traditional owners.
5.136
Even before the Juukan Gorge disaster, in 2018 the AAPA made submissions to the review of the WA Aboriginal Heritage Act 1972, highlighting the flaws in the current legislation and suggesting the adoption of a system similar to that which operates in the NT. This recommendation was made again in the AAPA submission to the Inquiry, which emphasised the need to centralise Aboriginal and Torres Strait Islander views when determining matters related to cultural heritage. The positioning of decision-making power with Aboriginal people is an example of how free, prior and informed consent can be centralised in land use decisions and heritage protections under Australian law. In the view of Justice Rachel Pepper:
Legislation as robust as the Sacred Sites Act can militate against box-ticking “consultation” and “consent” without meaningful explanation and engagement with Aboriginal communities. The fact that the Act is administered by a dedicated Aboriginal body provides an element of ownership and control to Aboriginal groups that is lacking in other states and territory legislation.
5.137
In addition, the NTASSA mandates the incorporation of custodians’ views by not only requiring consultation for Authority Certificate applications, but by legislating that conditions under their approvals must be imposed in accordance with custodians’ wishes. The Act also includes a general requirement for the wishes and interests of Aboriginal people to be taken into account in decision making processes and power exercises relating to sacred sites.
5.138
The clear framework for consultation and heritage protection established by the NTASSA has been proposed by the AAPA as “worthy of national adoption”.
Aboriginal Land Rights Act 1976
5.139
The Aboriginal Land Rights Act 1976 (ALRA) is a Commonwealth level Act that pertains only to the Northern Territory. The Act is designed to provide security in relation to land title and to support continuing connections to land for Aboriginal people. The ALRA recognises the Aboriginal system of land ownership and provides the ability for Aboriginal and Torres Strait Islander people to claim land title if traditional association can be proved. Due to the ARLA, 50 percent of the Northern Territory has been returned to traditional owners who under the Act have inalienable freehold title.
5.140
The ARLA provides Land Councils a statutory function to assist traditional owners to protect their sacred sites, both on and off Aboriginal land.
5.141
Importantly, the ALRA provides Aboriginal people with a limited right to withhold consent to mining on their land. Where consent is withheld, resource companies must wait 5 years before making another application to mine the land. Key to the rights of Aboriginal and Torres Strait Islander people is that the Act requires the consent of traditional owners for work that would be done on ALRA land. Part four of the Act covers how mining may be pursued on freehold land. Section 40 outlines that for an exploration license to be granted the areas Land Council must give consent, as well as the Minister. But as outlined in section 42-43 the Land Council must first consult with and obtain consent from traditional owners.
Stakeholder perceptions and experiences
5.142
Stakeholders in the Northern Territory are the only ones in the nation to hold largely positive perceptions of Aboriginal cultural heritage legislation. Evidence suggests that the Territories Aboriginal cultural heritage legislation is among the strongest in the country. Notably however, these perceptions are mostly due to the ARLA which is considered as one of the best forms of heritage protection in Australia.
5.143
Dr Josie Douglas, Executive Manager, Policy and Governance, Central Land Council CLC) said:
In the Northern Territory, we are fortunate to have a strong piece of legislation that underpins our efforts in site protection …
It provides very strong protections for Aboriginal people in the Northern Territory, for traditional owners. Internationally, I think, it's held up as a very strong and unique piece of legislation that protects Aboriginal rights and interests over their land. In terms of parties with an interest, with land use agreements.
5.144
The CLC outlined how the ARLA and the Native Title Act supports the rights of traditional owners. Under these Acts, the CLC has strict rules for developments and activities in their region. Sacred site clearance certificates are required to be obtained from the CLC. Proponents must provide a detailed work program for traditional owners to consider ensuring they are properly informed. Certificates from the CLC can contain exclusion zones as well as restricted work areas, restricting the type of work that can occur. When work is going to affect Native Title holder areas, companies must follow any instructions given by the Native Title holder. Furthermore agreements negotiated by the CLC do not contain gag clauses.
5.145
The Law Council had criticisms of the Northern Territory legislation relating to the NTASSA. Their concerns revolve around the role of the AAPA as opposed to land councils in identifying relevant traditional owners to be consulted when works are proposed affecting a sacred site. The Law Council considers this as a problem, stating that:
After four decades of conducting land claims and identifying traditional owners of land in their respective parts of the Northern Territory, the Land Councils have invaluable resources, archives and understanding of traditional ownership conducted by and controlled by Aboriginal people. By contrast, the Authority is a relatively small body with limited resources and not guided by the experience, history of research or the representative nature of the Land Councils.
5.146
Archaeologist Ms Karen Martin-Stone submitted numerous criticisms of the Heritage Act relating to the lack of protection for archaeological places and objects. The Act does not mandate that developers engage with traditional owners and Custodians with regard to the management of archaeological places and objects. This is compounded by the problem that there is no formal system for developers to connect with traditional owners and Custodians via the Land Councils who sometimes refuse to engage in areas that are not ARLA land.
5.147
Ms Martin-Stone noted:
I have experienced, and witnessed developers experiencing, difficulty in finding out who the Traditional Owners are for the purposes of heritage management consultation. Therefore, even when there is good will on the part of developers (which is not always the case), there are barriers to connecting with Traditional Owners and Custodians. Once connected, there is no formal framework for the level of consultation required.
5.148
Ms Martin-Stone said that the Northern Territory government lacks a compliance and enforcement policy for the Heritage Act. This results in companies being unaware of what is required of them, such as whether there is a need to complete a heritage survey. Companies may not conduct heritage surveys properly, including through failure to use archaeologists.
5.149
Ms Martin-Stone discussed many other problems within the Act. These include the lack of a repository for heritage objects, the inability for heritage values to be amended, the lack of appeal rights for Aboriginal peoples and the lack of provisions relating to intangible heritage. Due to these problems Ms Martin-Stone makes a series of recommendations on how these problems can be improved:
provision for appropriate recognition of Aboriginal realities and worldviews, and working towards Indigenous leadership of Indigenous heritage management
provision for appropriate levels of consultation with Traditional Owners and Custodians, built on the principles of Free, Prior and Informed Consent’
provision of Keeping Places and statutory repositories for the appropriate custody and care of collections.
clear triggers for when heritage assessment is required.
Penalties
5.150
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 provisions exist for taking action for destruction of Aboriginal cultural heritage. For example, in New South Wales 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.
5.151
Criminal penalties for causing harm to Aboriginal and Torres Strait cultural heritage vary widely across jurisdictions in Australia.
Table 5.1: Criminal penalties for causing harm to cultural heritage
|
Jurisdiction
|
Maximum penalty for individual
|
Maximum penalty for corporations
|
|
Commonwealth
|
$22,200 and/or 5 years imprisonment
|
$111,000
|
|
New South Wales
|
Current: $550,000 or 1 year imprisonment
|
Current: $1,100,000
|
|
Victoria
|
$327,132
6/12 months imprisonment for impersonating or hindering an authorised officer/ACH officer
|
$1,817,400
|
|
Queensland
|
$137,850
*one outlier penalty for contravening a stop order at $2,343,450
|
$1,378,500
*one outlier penalty for contravening a stop order at $2,343,450
|
|
Western Australia
|
Current: $40,000 and 2 years imprisonment
Proposed: $1 million or 5 years imprisonment for ‘serious’ harm
$100,000 for ‘material’ harm
|
Current: $100,000
Proposed: $10 million for ‘serious’ harm
$1 million for ‘material’ harm
|
|
South Australia
|
$10,000 or 6 months imprisonment
|
$50,000
|
|
Australian Capital Territory
|
$160,000
|
$810,000
|
|
Northern Territory
|
Heritage Act: $62,800 or 2 years imprisonment
NTASS Act: $62,800 or 2 years imprisonment
|
Heritage Act: $62,800
NTASS Act: $314,000
|
5.152
Analysing the NSW legislative framework, the Law Council of Australia submitted that penalties of this level are unlikely to be a successful deterrent, unlike penalties for environmental destruction which are ‘in excess of $1 million for individuals’.
5.153
Similarly in WA, BHP called for greater penalty deterrent:
BHP supports a material increase in the fines and penalties under the AHA (WA) to reflect public concerns, act as a deterrent to unlawful damage and to reflect the unique nature of some cultural heritage sites that are protected by the Act.
Legislative exemptions from cultural heritage protections
5.154
The Phenomenon of states and territories passing specific legislation to exempt certain projects or areas from cultural heritage protections is a significant problem for the protection of cultural heritage. Acts such as the Marandoo Act in WA, the McArthur River Project Agreement Ratification Act in the NT and the Roxby Downs (Indenture Ratification) Act in SA are examples of this phenomenon. Acts such as these have had devastating consequences for traditional owners as rights to protect cultural heritage are intentionally disrupted and prevented.
5.155
The Committee notes that Rio Tinto and BHP have committed to transitioning away from the Marandoo Act/ the Roxby Downs Act as well as the fact that Glencore have committed to entering into a ILUA in relation to MRM in an effort to address and rectify the historical inability for traditional owners to have a say.
5.156
Nevertheless, these Acts remain in force and even when they are repealed their associated histories of injustices will remain.
5.157
States and territories as well as companies involved in such acts should seek to fast-track transitions and recompense traditional owners for injustices that have occurred.
Committee comment
5.158
As this Chapter makes clear, the protection of Aboriginal and Torres Strait Islander cultural heritage across the states and territories is at best complex, with no consistency in how legislative frameworks are developed or applied.
5.159
Those legislative frameworks that have strong Aboriginal and Torres Strait Islander peoples’ representation in decision making in standalone legislation seem to have the best acceptance by traditional owners and proponents.
5.160
Those states with multiple pieces of legislation that do not actively seek to include Aboriginal and Torres Strait Islander peoples in decision-making positions perform the worse.
5.161
The Committee acknowledges that Western Australia is not the only state pursuing an inquiry into Aboriginal Heritage legislation. Queensland, South Australia, New South Wales and Tasmania are also conducting inquiries into cultural heritage legislation. But Aboriginal and Torres Strait Islander peoples, in particular from New South Wales and Tasmania, have been waiting a long time for meaningful legislation to will protect their heritage.
5.162
New South Wales’ reform process began in 2010, eventually culminating into the Aboriginal Cultural Heritage Bill 2018, which was released for public consultation yet no final action has yet been taken to enact this bill.
5.163
The Committee’s views on the way forward for all jurisdictions’ legislative frameworks are in Chapter 7 of this report.