Introduction
The Australian Greens acknowledge that First Nations people of this Country have never ceded Sovereignty and acknowledge the Elders past and present of the lands on which we are so grateful to live. We also acknowledge the care First Nations people have taken of Country and culture over thousands of years and the deep knowledge they have of Country.
The destruction of the 46,000 years old Juukan caves caused grief and disbelief not just for the Puutu Kunti Kurrama and Pinikura peoples (PKKP), but for all First Nations communities across Australia, and for the Australian society as a whole.
It was a fully pronounced example of the lack of protection for First Nations heritage in this country, but it was by far not the only one.
This inquiry carries incredible significance in bringing to light the many ways heritage destruction can take place in Australia, and is sometimes even encouraged under the status quo. It is also an important wake-up call that there is an urgent need for a national framework on First Nations heritage protection, built on best international practice and fundamentally ensuring the rights of our First Nations peoples, in making decisions for their Country and cultural heritage and beyond.
The evidence presented in the course of this inquiry has been devastating and heart-wrenching and the Australian Greens express their heartfelt condolences and best wishes to the many communities who have fought so hard to protect their Country and cultural heritage; unfortunately all too often unsuccessfully as the laws that are meant to protect them are a continuation of colonial oppression, favouring developers’ interests over the rights of First Nations peoples.
The Australian Greens wish to deeply thank everyone who contributed to this inquiry. Without the testimony of each and every witness we would not have the substantial evidence of cultural heritage destruction and vision of A Way Forward from here that we have gained through this inquiry.
We wish to thank in particular the many First Nations communities who have participated in this inquiry, recounting their stories of loss of cultural heritage or destruction of Country and struggles to protect it, and relieving these painful experiences. Their courage, honesty and care is deeply admirable.
Case Studies
In his poem ‘Red Land Claims’, Kevin Gilbert (Wiradjuri poet, playwright and artist) reminds us to:
Mark well the cry of the dispossessed.
In this spirit, though the committee’s report features a number of case studies, the Australian Greens wish to add to these through elevating the voices of First Nations People on a few of the cases where communities are struggling to protect their cultural heritage. Given the prominent role the Juukan gorge and caves’ destruction and WA cultural heritage protection framework takes within this report, we thought it valuable to try to include the recollections from Traditional Owners of other parts of the Country as well. Their voices, and their culture and connection to Country, should guide us all in the actions we take following this important inquiry.
As Mr Jack Green, a Garrwa man, pointedly told the Committee:
We need government to understand how important our land is. It's a mother to Aboriginal people, and the river itself is like a garden to all our nation, white or black. We have to survive on the river with what they're doing, and they need to understand and negotiate with Aboriginal people properly.
McArthur River Mine, Garrwa Country, Northern Territory
The McArthur River Mine (MRM) is a zinc and lead mine on Garrwa Country, 700 kilometres southeast of Darwin. The mine is owned by Glencore. Over the past decade, it has been the subject of significant environmental issues, including a huge burning waste rock dump and lead contamination of fish and cattle.
Mrs Joy Priest, a Yanyuwa Garrwa Gurdanji woman, told the Committee about the history of the McArthur River Mine:
This is what my father said to the Northern Land Council on 2 November 1978 about his experience with the McArthur River Mine: 'We had a fight with the mining company first go, before that land was given to the Aboriginal people. Borroloola people said to the mining company, "We are not going to talk to you about the land or the corridor until we get the land. When we get the land, we can come back and talk to the mining company." But they didn't listen to us. So, now that they hold a stronger position, it leaves us only some place that we have got no hope anyway, just like sardines in a tin. They have got all these interests protected anyway—the mining company.' Forty years later, that mining company has still got us like sardines in a tin, and they still have all these interests protected, but we are left exposed with our sacred site unprotected. We've been fighting for four decades, and now we've brought our children here to continue the fight.
She further continues about the impact of the mine:
The spiritual connection that Aboriginal people have, the ties that they have, to the environment that's to be destroyed—it has a total effect on the health of all Indigenous people, particularly Borroloola people. They've seen with their own eyes the changes. Even now, they do not recognise or respect the rights of traditional owners—the governments, the mining companies, the damage that has been done. There hasn't been any penalty or anything like that given to them. They just continue to destroy. They're not willing to negotiate. No-one has sat at that table to negotiate, to talk to them.
Mr Jack Green is a Garrwa man who made a submission to the inquiry existing of powerful paintings showing the impact of the mine on Country and the story behind it. He regards the damage to Country and impact it has on people as a continuation of the genocide carried out on Australia’s First Nations people. In his painting ‘Desecrating the Rainbow Serpent’, Mr Green describes the history and impacts of the McArthur River Mine and the loss of his people’s authority over their lands:
Desecrating the Rainbow Serpent 2014
At the top of the painting, guarded by the Junggayi (Boss for Country) and Minggirringi (Owner of Country), are the eyes of The Rainbow Serpent. The Junggayi and Minggirringi are worried that The Snake is being desecrated. The Rainbow Serpent is one of our spiritually powerful ancestral beings. It rests under McArthur River in the southwest Gulf of Carpentaria. Under our Law we hold responsibility for protecting its resting place from disturbance, and responsibility for nurturing its spirit with ceremony and song—just as our ancestors have done for eons. The left of the painting represents a time when we had authority over country. We lived on country, hunted, fished and gathered our food. We used fire to care for country, and most importantly, we protected our sacred places within it. By protecting and nurturing our sacred sites we protect and nurture our spirituality and our wellbeing as Gudanji, Garrwa, Mara and Yanyuwa peoples. The right of the painting represents the present time (2014) when we still have no authority over all of our ancestral country. The artwork illustrates how the resting place of The Rainbow Serpent looks now. It’s been smashed by McArthur River Mine. Country, torn open to make way for one of the largest lead, zinc and silver mines the world has ever seen. To do this they cut the back of our ancestor—The Rainbow Serpent—by severing McArthur River and diverting it through a 5.5 kilometre diversion cut into our country. A lot of people have died because of the desecration of our sacred places. Interfering with these powerful places, it pulls people down. The stress of seeing our land suffer means we suffer. Men tried to fight but got pulled down. I might be the next one, or the Junggayi will go down. The mining executive might go too. All this pressure, it’s no good.
In his painting ‘Like an Ice Cream in the Sun’, he further describes how Glencore’s processes are divisive and flawed:
Like an Ice Cream in the Sun 2014
This painting is about how Glencore work in Borroloola. Glencore won’t let us organise under our own Law. Instead, they pick off one or two of our people. They say to them, “If you can work for us we’ll get you a motorcar, we’ll give you tucker. You’ll be well looked after, and you’ll have money. They want these people to say to the families, “Look if you work with the mining company you will get money, you’ll get motorcar, and you’ll get everything you need”. But in the back of Aboriginal people’s minds we worried about our land, our song lines, and our sacred sites. We worried about our bush tucker. We worried about our future. Three men under the dollar signs represent the Aboriginal fellas that have been picked off by the mining company. The mining company man is standing behind the Aboriginal fella, patting his back and saying to him, “You talk up for me old man”. The ice cream, lollies on a plate and cake symbolise the absurdity of what’s being offered to us. Things that have little long-term value to us. Things that won’t last. Here now, but quickly gone, just like an ice cream in the sun. Glencore throw down scraps like this while they destroy our sacred sites and contaminate our land and water, while the government watches. There’s no way we should be played off like this. We want people in the cities to know what’s happening to us. They have to know how their governments work with mining companies to do us over and destroy our land.
On the other hand, Glencore told the Committee, without providing further detail that:
MRM is engaging with the Northern Land Council (NLC) to facilitate discussions with Traditional Owners about an Indigenous Land Use Agreement (ILUA) for the MRM site […]
We are in the very early stages of this process.
The case of the McArthur River Mine exemplifies many of the issues that have been raised time and time throughout the inquiry and from all over the country. While Traditional Owners repeatedly raise health, environmental and cultural concerns about mining and development proposals, and the flawed and divisive processes by which consent is gained from Traditional Owners, they too often remain unheard and unable to protect their cultural heritage and Country. Existing legislation is all too often designed to facilitate mining and exploration rather than providing an effective framework to ensure the protection of cultural heritage.
Magazine Hill, Waanyi Country, Queensland
Magazine Hill is a sacred site on Waanyi Country, located on the edge of the New Century zinc mine at Lawn Hill, about 250 kilometres north-west of Mount Isa. New Century Resources recently announced plans to excavate an area adjacent to Magazine Hill.
A group of Waanyi Elders told the Committee about the history of Magazine Hill and their concerns with the process by which excavation around the sacred site was recently approved.
Uncle Glen Willetts, a Waanyi and Alyawarr man, told the Committee:
What we're saying is that when the agreement was first signed over 27 years ago, it was noted in that Gulf Communities Agreement that Magazine Hill will be preserved and protected from the mining companies, regardless of which mining company comes in.
They said, 'We've got the best engineers in the country. We can design the pit, extract the ore and still protect a significant site.' On that agreement, the mining company proceeded forward. The elders, the Waanyi people and all other people that had a stake in this business, the cultural side of it, were happy with that decision.
The mining company is saying to us now that there's a part of the ore body left there, which previous mining companies mined around to protect Magazine Hill, and they want to extract that.
The companies started talking to them [the Waanyi PBC] and not the native title groups that were parties, signatories, to the Gulf Communities Agreement.
Uncle Barry Dick, a Waanyi Elder, told the Committee:
When the PBC took over, it was just not operating properly with the native title holders. There were numerous calls [...] and they didn't cooperate with what we wanted to do up here.
Uncle Kevin Cairns, a Waanyi Elder, told the Committee:
The sad thing with the PBC is that it's supposed to be fighting with us against the mines.
Whatever information the PBC receives, we don't get to hear it. We don’t get to hear the discussion that the PBC has with the mining company.
Waanyi Elder Clarence Walden questioned the validity of the Waanyi PBC’s vote to approve the new excavation:
If they're talking about 17 May, it wasn't signed off; it was an attendance list. That's all it was, because they never got to talking about the Century Mine. I was there. They only signed an attendance form, and those people who signed the attendance form never even stayed for the meeting to hear it out, and the meeting never went ahead, because they wanted to tell their story at the time, and the solicitors just said, 'No, we're not going to listen; we'll adjourn until another day,' and they never came back another day.
Witnesses further described the significance of Magazine Hill to other First Nations people and their disappointment and frustration that this was not recognised in the existing consultation and approval processes.
Mr Gilbert Corbett, an Alyawarr man, told the Committee:
We got the right to protect our sacred site. We’ve joined together, Waanyi and Eora, together. It's been passed on from generation to generation. It's been passed for us, forefathers, our fathers and for us now, that we can keep carrying on. We don't want our site to be destroyed. But I've got the songline and Century Mine—I call it windera in my language. The windera I call it, and it's in the songline, as well.
Mr Willetts told the Committee:
It's a ceremonial place—men's business—and it's connected to the desert people, and that's a strong storyline, one you people can't make a decision on Magazine Hill, one you people have to consult with the people who are on that storyline all the way back from that connection. That's how we do business. That storyline goes all the way back out into the Sandover Desert, with my brother-in-law and his family out there.
There is evidence on Riversleigh Station that points towards the desert of etchings on rocks, of the same paintings that we do out there at ceremonial time. That indicates that that songline went all the way up from Yalarnnga people up to Indjilandji people through Kalkadoon country, all the way up to Waanyi land—all the way along that storyline goes. There are paintings. There's a story over there. There are etchings up on Riversleigh Station that are up there on rock that indicate that that storyline is strong—archaeological findings. All the evidence is there.
Way back, before the construction phase of the mine started, we had the meeting with the elders to talk about Magazine Hill, which I spoke about. I attended that meeting. There was a group of us with the elders, and I was instructed at that meeting that this place is not just Waanyi people's keeping place; it's not just Waanyi people's sacred site. This is what we keep going on about.
When we excavated the excavation in Magazine Hill we found artefacts that weren't native to Waanyi country. They were brought from people in the desert. They were brought from the Kalkadoon people where they came up and traded. It's a really neutral place for all Indigenous people's ceremony. That's how strong it is. We can go on and on about politics with PBC or ORIC. We must protect Magazine Hill at all costs.
Mr Walden further elaborated:
We went down there with the Alyawarr people on 17 May, and they wanted to explain how they were involved. But the solicitors and that were so ignorant of the facts that they just said, 'No more meeting'. They adjourned it for another day, but, when they adjourned it, that's when they went down to Melbourne and signed it all over behind closed doors.
He told the Committee that in holding meetings outside of Waanyi Country, the Waanyi Native Title Aboriginal Corporation were breaching cultural protocols and lore, and restricting Elders’ ability to participate:
So when they go to the meeting in Burketown, no real Waanyi that's got any sense here would go there, because they're talking about their country on another man's land. That's our tradition. That's our law. We don't go there making a mockery of other people.
We've still got the same laws from before I came into being. But there's got to be a way around, maybe getting a new committee on the PBC, and having our meetings back in the country would be a really good way to go.
In their submission, the Waanyi Native Title Aboriginal Corporation reported that:
[...] There is no other body which is representative of Waanyi People with responsibility for cultural heritage sites in this area.
The New Century Resources Limited (NCR) Submission accurately summarises the process of agreeing the cultural heritage management plan for Magazine Hill. The community meetings referred to in the NCR Submission were, in accordance with the Waanyi PBC’s rule book, open to all Waanyi People and they were well attended.
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 as 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.
In their submission, New Century Resources (NCR) told the Committee that:
The process adopted by NCR gave full opportunity for free, prior and informed consent from the Waanyi People and consent was obtained through an appropriate process. […] Throughout the process in respect of Magazine Hill, the Waanyi People were represented by the Waanyi PBC. […] The fact that there were dissenters does not undermine the process adopted or the quality of the consent provided.
As seen above, some Waanyi Elders, and others in the community, did not support the decision of the Prescribed Body Corporate. Furthermore, matters of intangible heritage and the cultural significance of the sacred site at Magazine Hill to other First Nations People were not considered in the decision making process.
This case study highlights the need for culturally appropriate, well-resourced and ongoing consultation processes to obtain Free, Prior and Informed Consent from Traditional Owners and Native Title holders in relation to activity proposals on Country, as well as the need for avenues available to Traditional Owners to question the apparent ‘consent’ provided by their PBC and the right to veto activity proposals. It also highlights the need for broader definitions and considerations, including intangible heritage, when assessing cultural heritage protection requirements.
Beetaloo Basin, Northern Territory
The Beetaloo Basin, approximately 500 km south-east of Darwin in the Northern Territory, encompasses a number of traditional lands including the Jawoyn, Alawa, Jingili, Walmanpa, Warumungu, Ngadji and Binbinga. Mining companies including Origin Energy, Empire Energy, Falcon Oil and Gas and Sweetpea Petroleum are involved in oil and gas exploration and production in the Beetaloo Basin.
In submissions to the Senate Environment and Communications References Committee’s report on Oil and gas exploration and production in the Beetaloo Basin, the Committee heard that oil and gas exploration and production in the NT is a highly contentious issue, including in the Beetaloo Basin, which Empire Energy was awarded a $21m to explore as part of the Government’s gas-led economic recovery. There is strong and widespread opposition to the shale gas industry in the NT. This issue was also picked up as part of this inquiry.
In their submission to this inquiry, Nurrdalinji Native Title Aboriginal Corporation told the Committee that:
Many native title holders of the Beetaloo Sub-basin region are deeply concerned that while we have achieved formal recognition of our native title, we have no governance structure to facilitate planning our future and making our own decisions, and virtually no control or say over what happens on our country. That is due in large part to current representation and agency arrangements involving the Northern Land Council (NLC) (the native title representative body for the Top End), and the Top End Default PBC.
We are in urgent need of proper representation and agency arrangements, not the façade that is currently in place.
At present, Origin Energy is fracking our country under exploration permits granted some 15 years ago to other companies, and later assigned to Origin Energy. Our people did not understand what fracking was at the time they were advised to enter into agreements consenting to the grant of those exploration permits. How could they? The exploitation of unconventional gas reserves using extensive fracking was new and barely understood in Australia at that time. Many of our people are now worried about the risks of fracking, and especially about the risks to the interconnected subterranean waters that sustain all life there. Our people are also worried about the risks of contamination to country, our cultural heritage and all living creatures. We still do not know the extent of Origin Energy’s plans and what those plans might mean for the use of our water.
Existing cultural heritage protection laws and practices appear to us to be inadequate to address the risks of fracking, especially on our country.
Many concerns were expressed as to the accountability of the Northern Land Council (NLC) towards the communities it should represent and consult with. Asked about the Northern Land Council’s lack of support for a new PBC, Mr Johnny Willson, Chair of the Nurrdalinji Native Title Aboriginal Corporation, told the Committee:
[...] they think they're doing the right thing. A lot of traditional owners don't agree. We've all been saying for so long there is no connection and no cooperation between the NLC and traditional owners with regard to mining or with regard to anything that happens on country. If there is communication, it is to the wrong people, the ones they can manipulate. The NLC also don't want to lose that power or to let somebody else take over what they think is rightfully theirs.
Mrs Janet Gregory, Deputy Chair of the Nurrdalinji Native Title Aboriginal Corporation, told the Committee:
The NLC is very good at telling stories—believable stories—so people who were really not understanding what they were signing believed the story of the Northern Land Council. You've got to understand: Aboriginal people in the community trust and believe in the Northern Land Council because it represents them. So they were signing things that they didn't understand.
When asked about Nurrdalinji Native Title Aboriginal Corporation’s evidence that the Northern Land Council (NLC) had frustrated Nurrdalinji’s efforts to become a PBC, Mr Daniel Wells, Legal Adviser, Northern Land Council told the Committee:
At a high level, as we understand it one of the key roles of the Northern Land Council, as the native title representative body for the pastoral state in and around Beetaloo, is ensuring that, when decisions are made by groups of native title holders, they are made through the appropriate traditional decision-making process. That involves everybody, particularly the key culturally senior decision-makers. The NLC regards it as its job to ensure that those processes are followed.
Where those processes are followed, the Northern Land Council is there to support native title holders in their aspirations. If that means supporting native title holders to create a replacement PBC and to appoint that replacement PBC, then, as long as those decisions are made in the proper way, the Northern Land Council is there to support those matters going forward. In this case, it was abundantly clear to the NLC that this proposal would have the support of only a minority of constituents from that area. A number of senior native title holders either weren't aware of the proposal or did not support it. In those circumstances, when you look at section 60 and section 251B of the Native Title Act, the NLC saw itself as having an obligation to protect the broader native title holding community from a decision that hadn't been made properly by everyone. At a high level, that's our experience in relation to the Nurrdalinji matter.
In response to a question put about Empire Energy’s consultation process, Mt Alex Underwood, Managing Director, Empire Energy advised the Committee:
Genuine and respectful engagement is central to our relations with traditional owners and other Aboriginal Territorians.
Appropriately, it is not possible to conduct on-country activities without the full and informed consent of traditional owners and regular consultation under the terms of our exploration agreement with the NLC acting as the agent of the traditional owners.
Similar to the case studies above, grassroots Elders and Traditional Owners in the Beetaloo Basin expressed concerns about the decisions of the Prescribed Body Corporate and in this instance attempted to establish an alternate PBC. They also questioned the adequacy of the consultation processes conducted by the Northern Land Council. This reiterates the urgent need for clear guidelines around best practice consultation processes and the importance of Free, Prior and Informed Consent, including the right to veto to ensure that Traditional Owners’ voices are heard and they have the authority to protect Country and cultural heritage.
Western Highway, Djab Wurrung Country, Victoria
Since 2017, Djab Wurrung people have been involved in a complex series of court cases in an attempt to protect a group of culturally significant trees near Ararat. Although some trees were eventually saved from being felled as part of the Western Highway diversion, questions and concerns remain about both the process and outcome.
In his opening remarks to the Committee, Mr Michael Kennedy, Legal Adviser, Djab Wurrung Traditional Owners, described the significance of the six trees at risk of being removed as part of the Western Highway extension:
Without overstating it, this is as significant to my clients as the Juukan Gorge is and was to the PKKP traditional owners.
Mr Kennedy described how between February 2019 and December 2020 he had been involved in three successful applications on behalf of his clients in the Federal Court to have Ministerial decisions regarding the Djab Wurrung trees quashed.
Mr Kennedy explained that the Registered Aboriginal Party that produced the original Cultural Heritage Management Plan in 2012, which failed to address the significance of the trees and surrounding area, had since been deregistered.
Ms Sissy Austin, Djab Wurrung Traditional Owner, described the ongoing impacts the fight to protect the trees has had on Djab Wurrung Elders and communities:
As a young Koori woman, seeing the toll it has taken on our elders has been heartbreaking. I'm a young person, but our elders have been fighting for generations, and it's 2021 now. Victoria claims to be progressive in that we've been establishing a treaty. On the other side of that, we have elders who have been literally burnt out to the ground, and have been consistently repeating things over and over again, having to prove them. It's traumatic being Djab Wurrung women, in having to try to convince a very male dominated legal system of the significance and importance of women's country to us, as Djab Wurrung women.
Answering Senator Dodson’s questions, Mr Michael Kennedy, Legal Adviser, Djab Wurrung Traditional Owners agreed that it would be beneficial to adopt a set of national standards within the Commonwealth Aboriginal Heritage Act.
This case study demonstrates that even in Victoria, which is widely regarded as having some of the strongest cultural heritage protection laws in the country, the process of obtaining Free, Prior and Informed Consent from Traditional Owners and Native Title holders in relation to activity proposals on Country can be very difficult and divisive. It also highlights the importance of national standards, and of including intangible heritage when assessing cultural heritage protection requirements.
Concerns with heritage protection legislation
Following these case studies, the Australian Greens further aim to illustrate the common themes and issues that emerged during the inquiry regarding the legislative, structural and procedural failures that contribute to the ongoing destruction and desecration of Country.
Overview
There is a general preference among many submitters and witnesses to the inquiry that First Nations cultural heritage be protected through standalone Commonwealth legislation under the Minister for Indigenous Affairs, rather than be rolled into environmental-focussed legislation.
For instance, the Cape York Land Council, in their submission to the Committee, states that:
Indigenous cultural heritage protection and management decisions must be made through objective, transparent and nationally consistent processes that prioritise Indigenous cultural heritage values, the right of relevant Indigenous people to make informed decisions, and an independent regulator to oversee and engage in statutory processes.
In their submission to the Committee, the National Native Title Council elaborates that:
The Commonwealth regime leaves a substantial gap between the protections afforded by the EPBC Act [...] and the ATSIHP Act that operates as legislation of last resort and has a poor record of protection. This places a heavy reliance on inconsistent and often similarly out of date State and Territory Indigenous cultural heritage protections. [...] Indigenous cultural heritage protection is and should be the responsibility of Traditional Owners and it is the expectation of the International community that national governments facilitate Traditional Owner rights to manage and protect their cultural heritage.
In their submission to the Committee, the New South Wales Aboriginal Land Council:
… encourages the Committee to recognise the importance of, and honour commitments enshrined in the UNDRIP and work proactively to incorporate Declaration aims into domestic policy and legislation.
In their submission to the Committee, the National Native Title Council endorses the work of the Heritage Chairs and Officials of Australia and New Zealand (HCOANZ) on Best Practice Standards in Indigenous Cultural Heritage Legislation, which are based on the principles enunciated in the United Nations Declaration on the Rights of Indigenous Peoples.
In their submission to the Committee, GetUp conclude that:
There is no legislative regime at a State or Commonwealth level which is effective to guarantee the protection of culturally and historically significant sites such as the caves at Juukan Gorge.
Based on the totality of information received, the Australian Greens believe that current legislation to protect First Nations cultural heritage is not just inadequate, but often favours proponents over Traditional Owners. The Australian Greens wish to emphasise that there is an urgent need for the government to develop a standalone national legislative framework to protect First Nations cultural heritage and that this process be First Nations-led and informed by the extensive findings of this report.
The Australian Greens believe that Commonwealth legislation to protect Indigenous cultural heritage should be designed to fully meet our obligations under the United Nations Declaration on the Rights of Indigenous People (UNDRIP).
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHPA)
The ATSIHPA can be used by Aboriginal and Torres Strait Islander peoples to ask the Environment Minister to protect an area or object where it is under threat of injury or desecration and where State or Territory law does not provide for effective protection.
In their submission to the Committee, the National Native Title Council reports that the Aboriginal and Torres Strait Islander Heritage Protection Act operates as a protection of “last resort” only deployed when relevant state and territory legislation failed in addressing Indigenous concerns regarding the injury or desecration of an Aboriginal object or area of significance.
In their submission to the Committee, the Cape York Land Council state that:
Queensland’s Aboriginal Cultural Heritage Act is not effective or appropriate to protect Aboriginal cultural heritage on Cape York; Cape York’s Aboriginal cultural heritage is offered little protection by the Federal regime either. The Federal Environment Minister has powers to issue emergency declarations under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHPA) but this power is rarely used. Since 1984, 539 applications have been made across Australia for urgent Ministerial intervention to protect Indigenous cultural heritage under ATSIHPA, including 200 applications for long term protection, yet only seven declarations have been made and only two remain in place.
In their submission to the Committee, the Kimberley Land Council state that:
For the avoidance of doubt, what the National Native Title Council submits, and Kimberley Land Council supports, is that the Australian Government put in place a legislative scheme that provides the globally accepted, and Australian Government endorsed, minimum standards for protection of Indigenous people. The fact that this submission needs to be pleaded to the Committee should reinforce how woeful current protections available to Indigenous people in Australia are.
In their submission to the Committee, the Yamatji Marlpa Aboriginal Corporation submit that:
Decisions about Aboriginal heritage should always be considered at the planning stage of projects to ensure that, to the greatest extent possible, projects are developed to avoid any negative impact upon or destruction of Aboriginal heritage.
The provisions under the Aboriginal Land Rights (Northern Territory) Act are considered a stronger regime for land rights and cultural heritage than any other legislation in any other jurisdiction, or nationally. For example Dr Josie Douglas, Executive Manager, Policy and Governance, Central Land Council, told the Committee:
The Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) is a ‘strong piece of legislation … giving traditional owners an ability to protect sacred sites that is not replicated in any other Australian legislation.
The Victorian Aboriginal Heritage Act (2006) is considered the strongest heritage-specific legislation. For example in their submission to the Committee the National Native Title Council state that:
‘…the Victorian Aboriginal Heritage Act 2006 comes closest to embedding the legal norms contained in the UNDRIP in particular, the right of Traditional Owners to maintain, control, protect and develop their cultural heritage, and the requirement of Free, Prior and Informed Consent. It is also the only State or Territory legislation with a regime directly applicable to intangible heritage.
Many submitters and witnesses referred to the Evatt Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, which was conducted in 1996. Of particular relevance are the Evatt Review’s recommendations that amendments to ATSIHP Act should:
Respect and support the living culture, traditions and beliefs of Aboriginal people and recognise their role and interest in the protection and control of their heritage;
Ensure that the Act can fulfil its role as a measure of last resort by encouraging States and Territories to adopt minimum standards for the protection of Aboriginal cultural heritage as part of their primary protection regimes;
Provide access to an effective process for the protection of areas and objects significant to Aboriginal people;
Ensure that Aboriginal people participate in decisions about the protection of their significant sites and that their wishes are taken fully into account.
Ensure that heritage protection laws benefit all Aboriginal people, whether or not they live in traditional lifestyle, whether they are urban, rural or remote. The objective should be to protect living culture/tradition as Aboriginal people see it now.
The Evatt review recommendations remain largely unimplemented but reports since then have frequently referred to it, or made similar recommendations.
Ms Pauline Wright, President of the Law Council of Australia, told the Committee:
At the Commonwealth level, the Law Council supports substantially reviewing and reforming the Aboriginal and Torres Strait Islander Heritage Protection Act 1994 to provide effective standalone protection to First Nations cultural heritage, having regard to the deficits of the current act's operation. This should be accompanied by adequate building of First Nations representative bodies in order to address current power imbalances and lack of resources.
In their submission to the Committee, the Law Council of Australia summarise the ATSIHPA’s deficiencies:
The ATSIHP Act is defective on several fronts: the definition is anachronistic; the Minister holds ultimate discretionary power including as to the significance afforded to a place; there is no requirement to consult any First Nations land-owning body such as a PBC; there is no presumption in favour of protection of an area; and few statutory criteria guiding decision-making. In addition to these concerns, the Law Council adds that intangible cultural heritage is not protected as under the Victorian legislation, First Nations bodies hold no place in decision-making under the ATSIHP Act, and there is no right to, eg, merits review for such bodies to challenge decisions made. With respect to the ‘consultation’ requirement, this only extends to publishing a notice in the Gazette and local newspaper (which may not be read by Traditional Owners who may speak several languages other than English). In contrast, there is a much stronger requirement to consult the relevant state or territory Minister prior to making a declaration. Further, it is incongruous that the Minister entrusted with the protection of First Nations cultural heritage, which is a beneficial piece of legislation aimed at preserving and protecting areas and objects of particular significance to First Nations Australians, is the Minster [sic] for the Environment, rather than the Minister for Indigenous Australians. This does not reflect the principle that First Nations people themselves should be making such decisions.
Based on the totality of information received, the Australian Greens believe that the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is outdated, ineffective and inadequate. It fails to uphold our obligations under the United Nations Declaration on the Rights of Indigenous People (UNDRIP). The lack of a requirement to consult, the absence of clear and effective standards and definitions, and the designation of Ministerial responsibility to the Minister for the Environment are a continuation of colonial practices and further marginalise First Nations people who should, in fact, be leading the decision-making processes and have the right to FPIC as well as a right to veto proposals.
Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)
The EPBC Act is the principal piece of Commonwealth legislation that addresses the environmental impacts from development at the Commonwealth level. The Act is the vessel through which the Commonwealth upholds its obligations as signatory to a significant number of international treaties. The EPBC Act focuses Australian Government interests on the protection of matters of national environmental significance, with the states and territories having responsibility for matters of state and local significance. The EPBC Act’s role in First Nations heritage protection focuses only on nationally and globally significant areas that are included on the National and World Heritage lists and where those heritage areas have First Nations heritage values.
Dr Josie Douglas, Executive Manager, Policy and Governance, Central Land Council, told the Committee:
Some have suggested that, nationally, there only needs to be the Environment Protection Biodiversity Conservation Act for the protection of cultural heritage. The CLC strongly disagrees with this. We think it is important to have standalone legislation under the responsibility of the Minister for Indigenous Australians [...] We agree that the EPBC Act can play a role in requiring proper sacred site clearances. But not all developments come under the EPBC Act scrutiny.
In their submission to the Committee, the Cape York Land Council state that:
Generally, the EPBC Act, like Queensland’s ACHA and other State based cultural heritage legislation, should be reviewed against the HCOANZ best practice standards to identify how it could be improved. This would include compliance with the UNDRIP and its requirements for FPIC.
In their submission to the Committee, the National Native Title Council reports that the EPBC Act 1999 currently only protects a very limited number of places or objects that are listed on the National Heritage List and the Commonwealth Heritage List.
In their submission to the Committee, the Law Council of Australia recommends that:
Careful consideration should also be given to the emerging findings from the current Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) 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. However, this does not displace the urgent need for new Commonwealth Indigenous heritage legislation as the centrepiece of Indigenous cultural heritage protection.
Many submitters and witnesses referred to the Independent Review of the EPBC Act, led by Professor Graeme Samuel AC, particularly section 2.3 of the Final Report which found that current laws that protect First Nations cultural heritage in Australia are behind community expectations, and that national-level cultural heritage protections need comprehensive review, including consideration of both tangible and intangible cultural heritage.
Based on the totality of information received, the Australian Greens believe that the Environment Protection and Biodiversity Conservation Act 1999 does not sufficiently protect First Nations cultural heritage across Australia and requires significant review to address the outlined concerns.
Native Title Act 1993
The Native Title Act (NTA) is a law that recognises the rights and interests of First Nations people in land and waters according to their traditional laws and customs. The NTA’s strongest role in protecting Aboriginal Heritage is via the ‘right to negotiate’ in relation to a ‘future act’.The right to negotiate is designed to provide Native Title claimants or Native Title holders with the most comprehensive procedural rights where mining rights and certain compulsory acquisitions of Native Title rights are proposed.
Many submitters and witnesses to the inquiry consider the Native Title Act does not sufficiently protect First Nations cultural heritage across Australia.
A common concern is that the Native Title Act’s heritage protections only apply to areas where Native Title has been established, and that even where they do apply, the protections afforded are inadequate. The National Native Title Council submit that:
Native Title […] only applies where native title rights are judicially recognised or at least registered. Where they are recognised, native title rights will rarely amount to rights of exclusive possession sufficient to allow Traditional Owners to effectively protect their cultural heritage.
Another common concern is the entrenched inequality and power imbalance whereby both ‘right to negotiate’ agreements (otherwise known as Section 31 Agreements) and Indigenous Land Use Agreements (ILUAs) can be used to coerce consent from Traditional Owners. The National Native Title Council submit that:
Both sides to the negotiation know that unless the native title holders acquiesce to the developer or miner’s suggested terms the alternative is an arbitrated outcome, likely in the favour of the developer or miner without any provisions for the awarding of compensation, royalties or other arrangements for financial settlement. This analysis holds true whether or not land use proposals are negotiated as “right to negotiate” [...] or under the Native Title Act’s alternative Indigenous Land Use Agreements.
In their submission to the Committee, the Kimberley Land Council note:
[...] that its should not be assumed that consent given under ILUAs which purport to provide the agreement of native title holders to acts done under the “right to negotiate” provisions of the NTA is freely given for the simple reason that, should the native title holders not agree and provide their consent, the proponent may make an application to the NNTT for the act to be done even without the agreement of native title holders...if native title holders do not agree to an act being done and the matter proceeds to determination before the NNTT, there is a 98% chance that the NNTT will determine that the act can be done or done subject to conditions.
In their submission to the Committee, the Law Council of Australia cites Tony McAvoy SC on the impact of the ILUA process:
The native title system ‘embeds racism’ and puts traditional owners under ‘duress’ to approve mining developments or risk losing their land without compensation…the native title system ... coerces Aboriginal people into an agreement. It’s going to happen anyway. If we don’t agree, the native title tribunal will let it go through, and we will lose our land and won’t be compensated either. That’s the position we’re in.
Additionally, there are concerns about the structures, roles and resourcing of bodies that represent First Nations people to adequately manage and protect their cultural heritage interests. In their submission to the Committee, the Law Council of Australia suggests:
What [...] might usefully be taken from the Native Title Act and incorporated into cultural heritage protection is a system of representative bodies with strong knowledge bases and links with Traditional Owners, set up to navigate the legal system on behalf of Traditional Owners.
Victoria is often pointed to as an example of best practice in this area. […] However, these bodies are underfunded. If asked to take on further statutory responsibilities, PBCs or their alternative must be appropriately resourced.
The Australian Greens are concerned by evidence that Individual Land Use Agreements (ILUAs) and collateral agreements are used to bypass the Native Title Act’s requirement of good faith negotiations. In particular, the inclusion in these confidential agreements of clauses prohibiting Traditional Owners from making any adverse public comment in relation to the project (i.e. ‘gag clauses’), magnify the power imbalance and actively undermine, and work against, the principle of Free, Prior and Informed Consent.
The Australian Greens note that the former Gillard government attempted to address some of these issues in Schedule 2 of the Native Title Amendment Bill 2012, which would have extended the negotiating period by two months and provided an enforceable statutory definition of negotiating in good faith.
Based on the totality of information received, the Australian Greens believe that the Native Title Act 1993 does not provide for the protection of First Nations cultural heritage across Australia and requires a thorough review.
Community consultation and Free, Prior and Informed Consent
The case studies presented above exemplify the differing views of Traditional Owners, Prescribed Body Corporates (PBCs) and mining companies regarding the adequacy of existing consultation processes and what constitutes Free, Prior and Informed Consent (FPIC). The fact that Traditional Owners on affected Country clearly state that they were not properly consulted or their views not heard is an unignorable sign that FPIC is not currently being ensured in negotiations with project proponents and is of deep concern to the Australian Greens.
Many submitters and witnesses to the inquiry agreed that the consultation processes to date have not included all Traditional Owners and community members who should be consulted, and have therefore been inadequate and should be considered invalid. One major contributor to this shortfall is the fact that proponents often only engage with PBCs, Native Title Representative Bodies (NTRB), registered TRaditional Owner corporations or Land Councils. These often do not represent all Traditional Owners of the affected Country, and do not even necessarily always represent the views of their own communities.
For example the Nurrdalinji Native Title Aboriginal Council submits:
Many native title holders of the Beetaloo Sub-basin region are deeply concerned that while we have achieved formal recognition of our native title, we have no governance structure to facilitate planning our future and making our own decisions, and virtually no control or say over what happens on our country. That is due in large part to current representation and agency arrangements involving the Northern Land Council (NLC) (the native title representative body for the Top End), and the TED PBC.
Mr Errol Neal, Deputy Chair of the North Queensland Land Council, told the Committee:
I go back to re-engagement with all traditional owners in the country.[...]. We want to be part of ensuring that no stone is left unturned and no Indigenous First Nations people are left out.
Some of these PBCs under the CATSI Act have sort of framed it so that a majority can rule. It doesn't take into account all the different moieties or clans or family groups. So this is what we come to. Some of these mobs have big families that they think represent the whole tribe. This is where the thing starts again, creating the division and the trauma. It starts all over again.
Similarly, Mr Sam Backo, Chair of the North Queensland Land Council, also talks to the need for inclusive engagement with communities and for them to not being put under pressure to make decisions, but being given the time they need to do so according to customary law:
So the responsibility that we have as TOs is that, with prior and informed consent, everybody needs to know. The time frames that the legislation puts on it don't give you any time to do anything and make that decision according to cultural protocol.
The Torres Shire Council submits:
Central to Council’s concerns regarding Indigenous cultural heritage legislation is who is the appropriate Indigenous entity or individual with whom Council should consult, and the capacity for that entity or an individual to bind any other entity or individual to an agreement. The issue is particularly difficult where there is no native title determination in place, and no settled Applicant or claim group.
The Australian Greens are concerned that in the status quo, project proponents often expect Traditional Owners to agree to their proposals, with consultation being degraded to a worrying ‘tick-the-box’ exercise rather than an open-ended process ensuring Traditional Owners get a real say over their Country.
In their submission to the Committee, the New South Wales Aboriginal Land Council speaks to this point:
‘Consultation is not an appropriate substitute for consent by Aboriginal people.’
Further to the point of expected consent, many submitters and witnesses to the inquiry expressed concerns about the inappropriate use of financial incentives to gain consent from Traditional Owners to activity proposals on Country.
For instance Mr Neal told the Committee:
Well, you've got to understand that—not trying to be racist—when colonisation started they had to draw a wedge to conquer and divide. This is their mechanism of control. So you'd have the lollies given to one group of people and the others are going to struggle. [...] There needs to be some sort of accountability on our people and what the activities are, ensuring they are doing the right thing.
Further reports of coercion taking place were provided to the committee at a public hearing on June 18:
Senator THORPE: Do the mining companies come into community promising gifts if you sign? Cars? Jobs?
Mrs Gregory: Yes, they were promised jobs. I remember that. Some training, but nothing eventuated.
Mrs Gregory: The NLC is very good at telling stories—believable stories—so people who were really not understanding what they were signing believed the story of the Northern Land Council. You've got to understand: Aboriginal people in the community trust and believe in the Northern Land Council because it represents them. So they were signing things that they didn't understand. [...]
Senator DODSON: Mr Chairman, are you saying the Northern Land Council offers people cars and other inducements to get them to agree to the destruction of sacred sites?
Mr Wilson: Yes, that's exactly what I'm saying. A few people have told me this. I wouldn't want to go into the names. I was told that by traditional owners who don't want drilling or fracking on their country whatsoever.
The Australian Greens believe that Free, Prior and Informed Consent includes consultations of all those affected by a proposition and ensuring full access to all the information that concerns community and Country. This includes independent assessments of harm to Country, social and cultural impacts, as well as realistic projections of jobs and opportunities. Consultation processes need to ensure there is time and space for extensive deliberation. Communities should also have access to essentials, including culturally appropriate housing, education and healthcare and employment opportunities, to ensure their consent is not coerced.
Decisions need to be taken jointly and freely and true FPIC means that the outcome is not predetermined, and that it might include objecting to a proposal, giving no consent.
Based on the totality of information received, the Australian Greens are very concerned about the lack of FPIC in many if not most project proposal processes. The Australian Greens consider that there is a need for further action to ensure that consultation is conducted inclusively in a culturally appropriate and well-resourced manner. It is incumbent on government to institute the regulatory requirements to achieve this outcome, including enforcing penalties for proponents disregarding these requirements.
Right to veto
Truly Free, Prior and Informed Consent includes the possibility of consent not being provided. Considering the challenges outlined in current consultation processes and the fabrication or assumption of consent in many of the case studies brought to the attention of the Committee during the course of this inquiry, the requirement for consent alone might not be fully effective in ensuring Traditional Owner’s attempts to protect Country and culture are being fully honoured.
Provisions for judicial review of development decisions under current legislation is in some cases non-existent and at best limited, time consuming and costly and therefore provides Traditional Owners with insufficient protection against decisions causing damage or destruction to their cultural heritage, as outlined in chapter 7 of this report.
To address this, many submitters and witnesses to the inquiry agreed that Traditional Owners should have the right to veto acts and developments that threaten Country or First Nations cultural heritage.
When asked if he thought that Traditional Owners should have the right to veto, Mr Sam Backo, Chair of the North Queensland Land Council, told the Committee:
Absolutely.
In their submission to the Committee, the New South Wales Aboriginal Land Council call for:
Requirements for approvals by Aboriginal people about Aboriginal cultural heritage matters before planning / land use decisions are made - Aboriginal people must be able to refuse an activity or development where there will be unacceptable impacts to Aboriginal heritage, in line with the United Nations Declaration on the Rights of Indigenous peoples.
In their submission to the Committee, GetUp recommend that:
Agreement making, if it is to have any true heritage protection role must include a capacity for traditional custodians to veto activity which adversely impacts cultural heritage. Any impasse arising from a veto should be ameliorated by a dispute resolution process, including a process of merits review by an independent tribunal of the decision-making process.
Aboriginal and Torres Strait Islander Heritage legislation should include a power of the Aboriginal party with custodial responsibility for cultural heritage to refuse to permit development impacting on cultural heritage, subject to a right of the proponent of a development to seek an independent merits review of such a decision.
The Australian Greens consider Traditional Owners should have the right to veto acts and developments on Country, for whatever their reasons might be. It is incumbent on governments to institute the regulatory requirements to achieve this outcome. The government should further ensure that any cultural heritage laws provide for appropriate review mechanisms and provide Traditional Owners with support to make use of these mechanisms.
Register of heritage sites
The right to veto goes hand in hand with the proposition of a National Register of Heritage Sites, which was proposed by several witnesses, acknowledging that the current registration processes are often insufficient and not regularly updated and operate in a system of myriad state and territory regimes and a lack of resourcing to map heritage sites outside the influence of developers. A National Register of Heritage sites could include a provision for sites to be listed as ‘untouchable’ by Traditional Owners once, to save them from the onus of potentially having to negotiate time and again with project proponents to protect their sacred sites, repeatedly putting them at risk of damage or destruction and carrying with it the potential of igniting conflict within the community. This could take the form of a ‘traffic light system’, providing information on areas that can be developed, those that require consultation and negotiation and those not open for activity proposals.
Mr Terry Piper, Acting Chief Executive Officer, Cape York Land Council, told the Committee:
It is kind of something that is along the lines of what happens on Cape York. There are areas of land that are set aside with a red light where you're not going to be mining. […] I think everybody agrees that these are important cultural and environmental areas where that kind of destruction can't occur. […] And then we've got other areas where it is the amber light—where there are sensitivities and where development is not excluded but we're making sure that due process is followed.
Mr Shannon Burns, Policy Officer, Cape York Land Council, told the Committee:
Of course, that traffic light system requires the research to be done up-front […] so we can identify areas which should be red light areas but also areas where the research is done to see them from a cultural and environmental point of view and say that those areas are actually the areas where we encourage activity and development […] because they have been identified as being of low risk.
Witnesses agreed on the value of a comprehensive national register. In their submission to the Committee, GetUp recommends that:
Investment in strategic or large-scale assessment of areas of indigenous heritage that could qualify for National Heritage listing should be undertaken to proactively identity [sic] those areas that are worthy of protection under the EPBC Act (in addition to protection under the ATSIHP Act).
Data should be shared between State and Territory regulators and the Commonwealth Department of Agriculture, Water and the Environment to support assessment of areas of indigenous heritage that could qualify for National Heritage listing.
In their submission to the Committee, the Australian Heritage Council recommends:
that the EPBC Act could make it clear that places linked or not linked by immediate spatial proximity are still eligible, as a group, for listing on the National Heritage List if they are connected in a way that meets the relevant criteria and thresholds. Examples of places with immediate spatial proximity might include a number of islands in an archipelago, and a number of locations within the same area or region, which are commonly recognised as a single place. Examples of places not linked by proximity, but linked by a theme, story or intangible heritage could include songlines, a series of rock art sites in a region, or important cultural trading routes.
Once indigenous heritage areas have been listed and attract the protection of the EPBC Act, the Act must be rigorously applied and enforced.
Based on the totality of information received, the Australian Greens consider it vital that places linked or not linked by immediate spatial proximity should still be eligible, as a group, for listing on the National Heritage List if they are connected in a way that meets the relevant criteria and thresholds. Examples of places not linked by proximity, but linked by a theme, story or intangible heritage could include songlines, a series of rock art sites in a region, or important cultural trading routes.
Furthermore, the Australian Greens consider it vital that heritage sites be proactively identified, ideally before the site or area becomes the subject of a development application or future act proposal, and recorded on a national register of heritage sites, which could ensure standardised access to information. It is to be acknowledged that such a register is not to be seen as a complete list of First Nations heritage sites and that more sites will continuously be added, but it can provide a starting point for ensuring improved FPIC.
This register should include provisions for sites to be listed as ‘untouchable’ to enjoy ongoing protection for these sites which subsequently cannot be targeted for activity by any proponents. It is incumbent on the government to institute the regulatory requirements to achieve this outcome.
Standards for heritage protection
Many submitters and witnesses to the inquiry including the Cape York Land Council, Kimberley Land Council and National Native Title Council advocate for the adoption of a set of national principles/ best practice standards to support and protect First Nations cultural heritage across Australia.
In their submission to the Committee, the New South Wales Aboriginal Land Council expressed concerns about the approach to date to the establishment of national standards for heritage protection:
[...] the Commonwealth government response to date, indicates a very rushed approach to setting ‘standards’ that have not been developed in partnership with peak Aboriginal bodies. We are concerned that a ‘national standards’ model, which devolves responsibilities to the States/Territories, is not capable of achieving effective mechanisms for strong environmental or Aborginal cultural heritage protections. The approach risks remove [sic] important safeguards and recourse, and setting a course for weak ‘minimum’ rather than best practice standards.
In their submission to the Committee, the National Native Title Council endorses the work of the Heritage Chairs and Officials of Australia and New Zealand (HCOANZ) on Best Practice Standards in Indigenous Cultural Heritage Legislation, noting that in summary the Best Practice Standards, which are based on the principles enunciated in the United Nations Declaration on the Rights of Indigenous Peoples, provide for:
1.A comprehensive definition of Indigenous cultural heritage that recognises that Indigenous cultural heritage is a living phenomenon;
2.Legislation that is structured so that it provides a blanket protection for Indigenous cultural heritage subject only to authorisations granted with the consent of affected Indigenous communities;
3.Authorisations for disturbances of Indigenous cultural heritage to be made by an Indigenous organisation that is genuinely representative of Traditional Owners. Legislation should include mechanisms for the identification and appointment of an organisation that can genuinely be accepted as the ‘representative organisation’ of the affected community to undertake this role;
4.Indigenous cultural heritage issues to be considered early in any development process;
5.Indigenous communities to be provided with adequate resources to manage Indigenous cultural heritage processes;
6.Enforcement regimes that are effective and broadly uniform;
7.Regimes for the management of Indigenous ancestral remains and secret or sacred objects based on the primacy of Traditional Owners;
8.Recognition of frontier conflict sites is undertaken only with the participation and agreement of affected Indigenous communities.
Based on the totality of information received, the Australian Greens consider it vital that a set of national principles/best practice standards be developed to support and protect First Nations cultural heritage across Australia. This process should be First Nations-led and consider the best practice standards set out above.
Intangible heritage
Currently, definitions of cultural heritage vary widely between different jurisdictions and heritage protection legislation. There is a clear need for comprehensive definitions to be included in cultural heritage legislation. The National Native Title Council note:
The Standards provide that for the legislation to be effective it must contain a comprehensive definition of Indigenous Cultural Heritage consistent with how Traditional Owners today understand their cultural heritage and their traditions. To be comprehensive it must include definitions of “cultural heritage”, “tradition”, “Aboriginal place”, “Aboriginal site”, “Aboriginal object”, “intangible heritage”, “Indigenous Ancestral remains”.
A comprehensive definition of cultural heritage should include intangible heritage. Current cultural heritage protection in Australia focuses on tangible heritage including sites and objects. However, there is little or no consideration of intangible heritage. Intangible heritage is a vital element of First Nations peoples’ spirituality and identity, deeply connected to their complex belief and knowledge systems and relationship with Country. The loss or destruction of intangible heritage is as devastating as the loss or destruction of tangible heritage.
In 2003 the United Nations Educational, Scientific and Cultural Organisation (UNESCO) introduced the concept of ‘intangible rights’ by adopting the Convention for the Safeguarding of Cultural Heritage (the UNESCO Convention). Australia is not a party to the Convention. Article 2 of the Convention defines ‘intangible cultural heritage’ to mean:
the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.
The “intangible cultural heritage” [...] is manifested inter alia in the following domains:
(a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage;
(b) performing arts;
(c) social practices, rituals and festive events;
(d) knowledge and practices concerning nature and the universe;
(e) traditional craftsmanship.
In their submission to the Committee, the New South Wales Aboriginal Land Council (NSWALC) call for:
Improved protections and promotion of Aboriginal culture and heritage, including conservation mechanisms, better regulatory and land use planning, protections for misuse of intangible heritage, protection and promotion of knowledges and languages, protection and support for cultural practice, access and use, appropriate repatriation mechanisms, mechanisms to support Aboriginal land rights and water rights etc;
In their submission to the Committee, the New South Wales Aboriginal Land Council (NSWALC):
... encourages Committee members to broaden understandings of ‘significance’ from one based solely on archaeological timelines and testing to an understanding that recognises holistic Aboriginal understandings of Country.
In their submission to the Committee, the Australian Heritage Council (AHC) notes that:
Under the EPBC Act, significant heritage values must be associated with a place or be within a specific boundary in order to gain protection. Under current heritage assessment processes, it is not always possible for intangible heritage values to be addressed.
Aboriginal and Torres Strait Islander peoples’ cultural heritage, in its many forms including intangible heritage, is central and important to Australia’s heritage story. Intangible heritage is iterative and dynamic, with Indigenous knowledge presenting in multiple forms, linked to philosophical and legal traditions, language and education, stories, song and ceremonies.
The Council notes that consideration should be given to allowing sufficient scope to recognise and protect matters of intangible heritage, particularly Australia’s living and dynamic Indigenous traditions. Aboriginal and Torres Strait Islander cultures remain a significant part of the wider Australian culture and continues to evolve.
In their submission to the Committee, the Kimberley Aboriginal Law and Cultural Centre (KALACC) notes that:
Indigenous cultural heritage is expressed through cultural ways of living. It is diverse and is expressed in both tangible and intangible forms. For example, tangible cultural heritage includes physical objects, sacred and secret artefacts, geographical landscape features and ancestral remains. The more subtle, intangible expressions of cultural heritage include cultural expressions such as law, ceremonies, dance, songs, language, myth, narrative and stories. As Aboriginal people interact with, interpret and express aspects of their cultural heritage, it becomes a living, ephemeral culture that evolves as it passes along generations, building and maintaining identity, belonging and continuity.
Mr Jamie Lowe, Chief Executive Officer, National Native Title Council, told the Committee:
...the point is that our culture is a live culture. It's a living culture, and these sites are part of that live culture. You see that in other jurisdictions, such as New Zealand, they've actually identified certain sites as living beings within legislation through the Treaty of Waitangi over there. I think Australia can learn from other jurisdictions; we don't necessarily need to reinvent the wheel on these matters. Other countries are enacting these and are far and away ahead of Australia's protection of our heritage as a living and breathing culture.
Based on the totality of information received, the Australian Greens consider it vital that intangible heritage should be considered in the identification and protection under any heritage protection legislation at a Commonwealth, state or territory level. It is incumbent on the government to institute the regulatory requirements to achieve this outcome.
Protection of Country and cultural heritage protection
First Nations people have long recognised and understood that the protection of cultural heritage is inextricably linked to the sustainable management and protection of Country.
Ms Monica Morgan, Chief Executive Officer, Yorta Yorta Nation Aboriginal Corporation, told the Committee:
We're the second players there; we're not the negotiators at the very vital stage of looking first, not just at cultural heritage but at country—water, land and biodiversity. Everything contributes to our country, tangibly and intangibly. They all connect to our country.
Martuwarra Council submits:
Like many rivers across the globe, the Martuwarra-Fitzroy River is under increasing threat due to the acceleration of invasive colonial ‘development’, which has beset the region for over 150 years. The currently dominant unsustainable extractive approach reflects a colonial framework that sidelines both Traditional Owners and the depth of Aboriginal legal and normative traditions. In doing so, this extractive approach sidelines and disrespects the Martuwarra. […] Martuwarra Fitzroy River Council believes it is now imperative to recognize the pre-existing and continuing legal authority of Indigenous law, or ‘First Law’, in relation to the River, in order to preserve its integrity through a process of legal decolonization. River personhood is understood as one pathway towards this outcome.
Professor John Altman submits:
Prior to colonization, the Australian landscape was modified anthropogenically by fire and non-anthropogenically by wildfire, the climate and the biosphere.
Settler colonialism resulted in a very different interaction with the landscape whether by industrial scale agriculture or mineral extraction. New forms of technology have allowed quite extraordinary modifications to the environment be it by industrial scale land clearing for agriculture and open cut mining; or by using explosives as at Juukan Gorge.
The Indigenous and settler colonial ontologies about the landscape were, and in many contexts still are, fundamentally at odds: a simplified dichotomy interprets the former as viewing the landscape everywhere as sentient and to be nurtured to deliver livelihood and wellbeing. For those who maintain traditions and customs, the landscape is imbued with Ancestral power. Settler economies see the land and environment as a factor of production, to be exploited, sometimes sustainably, sometimes destructively, for economic gain.
Asked about the impacts of climate change with rising sea levels disturbing ancestral remains on Saibai Island in the Torres Strait, Mr Charlie Kaddy, Acting Chief Executive Officer, Gur A Baradharaw Kod Torres Strait Sea and Land Council, told the Committee:
There are other islands at threat. One of the proponents […] talked a lot about finding bones when he goes for a walk on the beach. There are also graves on the eastern islands, the islands of Dauar and Murray, in the eastern Torres Strait, where there's been some work. The local ranger program did some work on graves that were falling into the ocean.
Asked about the long-term impacts of climate change on cultural heritage, Dr Fiona Johnson, Academic, Global Water Institute, University of New South Wales told the Committee:
Climate change will most likely exacerbate the impacts that we already see.
The Australian Greens note that the impacts of climate change will increasingly threaten cultural heritage protection and contribute to the ongoing destruction and desecration of sites that should be protected. Climate change disproportionately threatens the health, culture and heritage of First Nations People. For example, sea level rise and associated flooding, and the increasing occurrence and severity of extreme weather events including heat waves, cyclones and bushfires already impact on sites and First Nations People’s ability to protect them. These impacts will continue to escalate and accelerate unless urgent, equitable and sustained local, national and global action is taken to avoid climate catastrophe.
The Australian Greens therefore emphasise that an effective framework for cultural heritage protection needs to take into account measures to address climate change and its potential impacts on cultural heritage.
Consequences and penalties
Many submitters and witnesses to the inquiry gave evidence that existing consequences and penalties for damage to and destruction of sacred sites were insufficient, and that mining and other companies lack the capacity to avoid incidents like Juukan Gorge in the future.
In their submission to the Committee, the Cape York Land Council recommend that:
Protection of Indigenous cultural heritage and enforcement of Cultural Heritage Management Plans can only ever be effective where the penalties for damage and non-compliance are compelling on the land user. The penalties provided by Indigenous cultural heritage legislation across Australia must be reviewed and increased as necessary to create a significant disincentive for land users to cause any unauthorised harm to cultural heritage.
In their submission to the Committee, GetUp recommend that:
Aboriginal and Torres Strait Islander Heritage legislation should include a mechanism for the traditional owners or custodians of heritage to initiate and be the beneficiaries of legal proceedings to provide a remedy for damage to and loss of cultural heritage by way of compensation or reparation.
In their submission to the Committee, the Quandamooka Yoolooburrabee Aborignal Corporation (QYAC) discusses a number of shortcomings and loopholes in existing state and federal legislation, including the capacity for developers to undertake their own assessments without consulting Traditional Owners:
Self assessment against the Duty of Care Guidelines is the part of the Qld Act which is of most concern to QYAC. If a developer self-assesses that the project that they are undertaking is within categories 1-4, then Aboriginal People are not notified and therefore cannot provide advice nor make an informed decision on whether there will be an impact to Aboriginal cultural heritage.
In addition to strengthening Australia’s framework for the protection of cultural heritage, the Human Rights Law Centre’s submission to the Committee also recommends that the Commonwealth government considers the introduction of broader human rights due-diligence obligations for large Australian companies, operating in high-risk sectors or locations, as have been introduced in a number of European jurisdictions:
Requiring companies to take proactive steps to identify potential human rights impacts early could prevent serious violations, such as those arising from the destruction of Juukan Gorge, from occurring in the first place.
Research by Prof. Deanna Kemp, Prof. John Owen and Rodger Barnes from the Centre for Social Responsibility in Mining suggests that mining companies lack the capacity to avoid incidents like Juukan Gorge in the future:
The field of mining and social performance is in decline. This has weakened the ability of community relations and social performance professionals to challenge production priorities in circumstances where risks to community exceed reasonable thresholds. Our research highlights shortcomings across organisational structures, internal lines of reporting, management systems, incentives and talent management.
In their submission, the Centre for Social Responsibility in Mining recommends that:
The Joint Standing Committee should consider incentives for mining companies to build the appropriate governance architecture, management systems, and human resources capability that reflect the contexts in which they operate, and to avoid incidents like Juukan Gorge in the future.
Based on the totality of information received, the Australian Greens believe that the penalties provided for in First Nations cultural heritage legislation across Australia must be reviewed and increased as necessary to create a significant deterrent for land users to cause any unauthorised harm to cultural heritage.
Draft WA Cultural Heritage Bill
The Aboriginal Heritage Act 1972 (WA) (AHA) is the main legal framework for the protection of First Nations cultural heritage in Western Australia. As it currently stands, the AHA is completely inadequate. It enables the legal destruction of tangible and intangible cultural heritage across Western Australia. The AHA facilitates mining and is in the interests of mining companies, not the community.
In the interim report, Never Again, the committee recommended the Western Australian Government:
Replace the Aboriginal Heritage Act 1972 with stronger heritage protections as a matter of priority, noting the progress already made in consultation on the draft Aboriginal Cultural Heritage Bill 2020. Any new legislation must as a minimum ensure Aboriginal people have meaningful involvement in and control over heritage decision making, in line with the internationally recognised principles of free, prior and informed consent, including relevant RNTBCs under the Native Title Act. Any new legislation should also include a prohibition on agreements which seek to restrict Traditional Owners from exercising their rights to seek protections under State and Commonwealth laws (p19)
However, draft versions of the Aboriginal Cultural Heritage Bill that have been presented to the community do not come close to implementing the above recommendation. In its current form, the Aboriginal Cultural Heritage Bill 2021 does not meet best practice cultural heritage standards and is not strong enough to prevent the destruction that occurred at Juukan Gorge.
The following section highlights some of the key concerns with draft versions of the Aboriginal Cultural Heritage Bill.
There are significant concerns across the community that the draft bill contravenes national and international laws, including the rights enshrined in the United Nations Declaration on the Rights of Indigenous Peoples.
Analysis by the National Native Title Council found that the draft bill fails to meet the Best Practice Standards in Indigenous Cultural Heritage Legislation developed by the Heritage Chairs and Officials of Australia and New Zealand.
In evidence provided to the committee, the National Native Title Council explain:
...the WA Bill falls significantly short in many respects of the Standards, particularly with regard to the principle of self-determination, the requirement of free prior and informed consent and a failure to adequately resource Traditional Owner groups and organisations to engage with proponents let alone perform their most basic statutory functions. In short, the WA Bill does little to redress the legislative pitfalls and significant power imbalance that exists between mining companies and Traditional Owners that led to the destruction of Juukan Gorge.
Recently, a group of First Nations people, Slim Parker, Kado Muir, Dr Anne Poelina, Clayton Lewis and Dr Hannah McGlade, made a request to the United Nations Committee on the Elimination of Racial Discrimination to review the draft Aboriginal Cultural Heritage Bill 2020 under its early warning and urgent action procedure. In their submission to the United Nations Committee on the Elimination of Racial Discrimination the group explain how the bill is incompatible with Australia’s obligations under the Convention:
First, the Bill does not provide any recognition that significant Aboriginal cultural heritage will be protected from destruction. It still permits the destruction of significant cultural heritage and fails to respect, protect and fulfil the right to culture and is incompatible with article 5 of the Convention.
Secondly, while there are some limited procedural guarantees with respect to consultation, they fall well short of free, prior and informed consent and are incompatible with article 5 of the Convention.
Thirdly, Traditional Owners are unable to say ‘no’ to activities which will destroy significant cultural heritage. The Minister administering the proposed legislation is the final decision-maker...This is incompatible with articles 3 and 5 of the Convention.
The draft bill clearly fails to recognise First Nations people as the primary decision makers in the protection of their cultural heritage. Proponents will be responsible for making assessments about whether their proposed activities will cause harm to First Nations cultural heritage. Allowing proponents to make assessments of cultural heritage does not meet the principle of Free, Prior and Informed Consent.
The Kimberley Land Council believe the draft bill provides less protection than the AHA:
The Draft Bill overall offers less protection than the current AHA because it gives proponents the authority and responsibility to undertake due diligence assessments. The Draft Bill effectively designates the proponent of an activity as the decision maker in relation to whether Aboriginal cultural heritage exists in a place, and if it does whether or not that Aboriginal cultural heritage may be impacted by the activity, and lastly what level of impact the activity will have on the Aboriginal cultural heritage.
The draft bill also gives the Minister the final say over the destruction of First Nations cultural heritage, and does not include an appeals process. As the Yamatji Marlpa Aboriginal Corporation note:
Under the new ACHA LACHS are encouraged to reach negotiated outcomes with proponents but ultimately the Minister will still have the right to approve Aboriginal Cultural Heritage Management Plans (ACHMPs) that include the destruction of ACH against the objections of the people to whom that heritage belongs. YMAC do not see how this draft bill in its current form will lead to less ACH places being destroyed or damaged.
The Australian Greens believe that all decision making around First Nations cultural heritage must rest with Traditional Owners, not mining companies or the Minister.
Finally, the draft bill leaves critical aspects of cultural heritage protection to regulations and policy documents which have not yet been released.
The Yamatji Marlpa Aboriginal Corporation note this allows the Government of the day to make changes to key processes:
YMAC is also deeply concerned that the proposed ACHA is not future proofed. The workability of the Local Aboriginal Cultural Heritage Services (LACHS), Aboriginal Cultural Heritage Council (ACH Council), ACH management processes, minimum standards of consultation, management code etc. are all relegated to regulations and guidelines which can easily be amended by the government of the day.
The draft bill provides a once-in-a-generation opportunity to implement best practice cultural heritage protections in WA. The Australian Greens are deeply disappointed in the McGowan Government’s failure to genuinely engage with and listen to the voices of Traditional Owners. The current bill does not position First Nations people at the centre of decision-making about their cultural heritage. It will not stop the ongoing destruction of cultural heritage and does not meet community expectations.
Recommendations
The Australian Greens support the findings and recommendations put forward by the committee, in particular the call for an overarching Commonwealth legislative framework based on the protection of cultural heritage, and wish to emphasise the importance of this being developed in a First Nations-led process.
While many of the key principles that should apply in a framework to effectively ensure protection of First Nations heritage have been covered in chapter 7 of this report as well as the minimum standards proposed under the committee’s recommendation 3, the Australian Greens wish to put forward the following stand-alone and additional recommendations due to the importance of these essential aspects of any framework and legislation truly considering the interests of First Nations people and the protection of their heritage.
The Australian Greens recommend that
Recommendation 1
The Australian government begin the process of negotiating a Treaty or treaties with First Nations people, including a truth telling process and healing. A Treaty will create a unified national identity that celebrates what unites us, protects the rights of First Nations people and their cultures while also acknowledging the ongoing and historical injustices of colonisation.
Recommendation 2
All legislation relating to First Nations peoples be based on the principles of the United Nations Declaration on the Rights of Indigenous Peoples and ensure any decisions are made based on the principle of Free, Prior and Informed Consent.
Recommendation 3
Giving consideration to the true meaning of Free, Prior and Informed Consent, all Commonwealth, state and territory legislation be amended to provide Traditional Owners with a right to veto any proposed activities.
Recommendation 4
Australian governments on all levels, in a First Nations-led process, develop a nationally consistent approach for obtaining obtain Free, Prior and Informed Consent from Traditional Owners and Native Title holders in relation to activity proposals on Country, with specific consideration of the need to ensure that consultation is conducted inclusively with all affected communities in a culturally appropriate and well-resourced manner with full access to all relevant information and without being subjected to any form of pressure or coercion.
Recommendation 5
Australian governments on all levels ensure communities have access to essentials, including culturally appropriate housing, education and healthcare and employment opportunities, to ensure they can fully engage in Free, Prior and Informed Consent processes considering the best outcomes for their communities and Country.
Recommendation 6
Australian governments on all levels provide for effective mechanisms in legislation to prevent and prohibit unconscionable conduct by project proponents towards First Nations communities, such as the inappropriate use of financial and other incentives in the process to obtain consent from Traditional Owners, including the application of penalties and the non-granting of project permits for such offences.
Recommendation 7
The Australian federal and state and territory governments, in collaboration with all relevant stakeholders and First Nations people, develop a clear definition of cultural heritage, which encompasses intangible heritage.
Recommendation 8
The Australian federal, state and territory governments make ongoing public resources available for the mapping and recording of cultural heritage led by First Nations communities, and be made available in an accessible manner. Alongside the mapping and registration of existing sites, records and maps of past destruction should be made available to Traditional Owners and public cultural heritage registers.
Recommendation 9
Legislation on all levels relevant to the protection of First Nations cultural heritage to require consultation with all First Nations communities impacted by an activity proposition, not just registered Native Title holders or Traditional Owner corporations, to ensure true Free, Prior and Informed Consent even where multiple groups claim cultural connection to a certain area.
Recommendation 10
The establishment of a National and Torres Strait Islander Heritage Council as a new independent statutory body, made up exclusively of First Nations people, along the considerations outlined in chapter 7 of this report.
Recommendation 11
The Australian Government provide First Nations communities with the resources to proactively identify heritage sites and areas that are worthy of protection, including those that are not linked by immediate spatial proximity, and establish a National Register of Heritage Sites for their recording and public access, and that this register be continuously expanded and updated based on the advice of Traditional Owners. The register should include provisions for sites to be listed as ‘untouchable’ to enjoy ongoing protection for these sites which subsequently cannot be targeted for activity by any proponents.
Recommendation 12
The Australian government ensure any cultural heritage laws provide for appropriate review mechanisms and provide Traditional Owners with support to make use of these mechanisms.
Recommendation 13
Notwithstanding the need for national standalone heritage protection legislation, the ATSHIP Act and EPBC Act be reviewed and amended to fully meet our obligations under the United Nations Declaration on the Rights of Indigenous People (UNDRIP). The best practice standards put forward by Heritage Chairs and Officials of Australia and New Zealand (HCOANZ) Dharwura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia should be enshrined in these Acts. The EPBC Act should further give full consideration to the recommendations of the Independent Review of the EPBC Act, led by Professor Graeme Samuel AC, particularly section 2.3 of the Final Report, while the review of the ATSIHP Act should give full consideration to the recommendations of the Evatt Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984.
Recommendation 14
Notwithstanding the need for national standalone heritage protection legislation, the Native Title Act be reviewed and amended to fully meet our obligations under the United Nations Declaration on the Rights of Indigenous People (UNDRIP), in a process led by First Nations people. The best practice standards put forward by the Heritage Chairs and Officials of Australia and New Zealand (HCOANZ) Dharwura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia should be enshrined in the Act, and particular consideration paid to avoid power imbalances and coercion in negotiations, ensuring that any agreements are based on Free, Prior and Informed Consent.
Recommendation 15
The Australian government, in collaboration with all relevant stakeholders and First Nations people, develop a set of national principles/best practice standards to support and protect Indigenous cultural heritage across Australia, in consideration of the best practice standards put forward in the Heritage Chairs and Officials of Australia and New Zealand’s (HCOANZ) Best Practice Standards in Indigenous Cultural Heritage Legislation.
Recommendation 16
The Australian federal, state and territory governments, in collaboration with all relevant stakeholders and First Nations people, review and increase the penalties provided by First Nations cultural heritage legislation across Australia to create a significant deterrent for land users to take unauthorised action on cultural heritage and Country, and to provide for culturally-appropriate remedy to Traditional Owners where those protections are breached, including through the methods outlined in chapter 7, as well as financial compensation to Traditional Owner communities.
Recommendation 17
The Australian Greens recommend that the Australian, State and Territory Governments, in collaboration with all relevant stakeholders and First Nations people, review and amend existing legislation to introduce broader human rights and cultural heritage due diligence obligations for Australian companies to take proactive steps to identify potential human rights and cultural heritage impacts of their actions.
Recommendation 18
First Nations heritage legislation which contains strong judicial review provisions and a provision allowing for the authorisation of activity impacting upon heritage should include a provision which enables such permission, once given, to be amended or revoked, if the impact upon the Indigenous cultural heritage, or the significance of the Indigenous cultural heritage is greater than was understood when the permission was granted.
Recommendation 19
The Australian Greens recommend that the federal government set up a First Nations Legal Defence Fund to provide First Nations communities with the legal and financial support to stand up for their Country and heritage, including but not limited to Native Title disputes and cultural heritage destruction. The administration of the fund is to be First Nations-led.
Recommendation 20
First Nations-led innovations in governance of Country (environment and heritage) should be prioritised, supported, resourced and encouraged.
Recommendation 21
The new national heritage protection legislation to include strong environmental protections to ensure protection of Country as well as culture.
Recommendation 22
The Australian Government, in collaboration with all relevant stakeholders and First Nations people, take urgent, equitable and sustained local, national and global action to avoid climate catastrophe and its impacts on Country and cultural heritage.
Recommendation 23
The Western Australian Government not proceed with the draft Aboriginal Cultural Heritage Bill 2021 in its current form and provide Traditional Owners with the latest version of the Bill (also known as the Exposure Draft Bill (Green Bill)). The Western Australian Government engage in a co-design process on the draft bill (Green Bill) that enables Traditional Owners to lead decision making around cultural heritage. The Western Australian Government abolish all powers that authorise damage to cultural heritage without the consent of Common Law Holders and Traditional Owners.
Senator Lidia Thorpe