CHAPTER 6
Issues Arising: (3) Development
The main threat to significant Aboriginal areas comes
from construction and development of all kinds. State and Territory
governments and developers are concerned about the delays and costs
caused by the fact that intervention under the Commonwealth Act often
comes after their planning processes have been completed and a project
has been approved. Developers see this as yet another obstacle to be
negotiated to get their project under way. (Evatt Report p.xiv)
The Meaning of Desecration
6.1 The Association of Mining and Exploration Companies
(AMEC) has criticised the definition of 'desecration' provided under subsection
3(2) of the Aboriginal and Torres Strait Islander Heritage Protection
Act 1984 as being too imprecise. Under subsection 3(2) desecration is
defined as:
(2) For the purposes of this Act, an area or object shall
be taken to be injured or desecrated if:
(a) in the case of an area:
(i) it is used or treated in a manner inconsistent
with Aboriginal tradition;
(ii) by reason of anything done in, on or near the
area, the use or significance of the area in accordance with Aboriginal
tradition is adversely affected; or
(iii) passage through or over, or entry upon, the
area by any person occurs in a manner inconsistent with Aboriginal
tradition; or
(b) in the case of an object - it is used or treated
in a manner inconsistent with Aboriginal tradition; and references
in this Act to injury or desecration shall be construed accordingly.
(3) For the purposes of this Act, an area or object shall
be taken to be under threat of injury or desecration if it is, or is
likely to be, injured or desecrated.
6.2 Under this definition AMEC [1]
submits that any routine activity of the mining, tourism, farming or fishing
industries, or even the act of passing through an area either on foot
or in a vehicle, could be classified under the current wording of the
Act as being inconsistent with Aboriginal tradition and hence a breach
of the Act. AMEC argues that the matter is made even more serious by the
possibility of imprisonment or the imposition of substantial fines for
a contravention of the Act. Based on these considerations, AMEC submits
that the protective provisions of the Act need to be reviewed for practicality
and common sense.
Availability and Form of Protection
Protection by Application
6.3 Chapter 4 of this report has noted that two broad approaches
to protecting indigenous heritage from desecration can be identified.
Either blanket protection is provided or, under an 'application' based
concept of protection, areas or items of significance to indigenous people
are accorded legislative protection once identified by indigenous people.
Most States and Territories already provide blanket protection. The current
terms of the Commonwealth Act are in the category of an application based
system: the Minister may make a declaration in regard to an application
(ss.9 and 10).
6.4 At the State and Territory level, an application based
regime might only be suited to situations where the number of cases of
indigenous heritage being asserted is likely to be quite limited, where
careful investigation is likely to be required in order to establish if
protection under the Act is required and whether the interests of third
parties such as land owners are likely to be affected. Even in such cases,
however, there is no clear reason why blanket protection would not be
appropriate.
6.5 (As Chapter 4 has suggested, at the Commonwealth level
and as legislation of last resort, an application based regime for development
approval may be appropriate for those few instances where the requirements
of the last resort criteria may not have been met.)
Blanket Protection
6.6 The second possibility is a 'blanket' or presumptive
concept of protection under which all indigenous heritage areas and material
are automatically protected regardless of whether or not they have been
identified. The approach already taken in both Territories and most States
is blanket protection; Queensland and New South Wales are exceptions.
6.7 Blanket protection is appropriate where it is expected
that many sites of significance could be asserted and the desire is to
create an obligation on the part of developers and land users to check
for the existence of sites of significance before proceeding with any
activity. In its submission AIATSIS supported blanket protection. [2]
6.8 While blanket protection encourages developers and land
users to take precautions against damaging or interfering with indigenous
heritage material it requires a system for formally approving acts which
may otherwise result in a breach of the legislation. This 'consent process'
permits a decisionmaker to weigh the importance of protecting indigenous
heritage against other factors, such as the economic effect of a particular
act being carried out or not. Proponents of the blanket approach to protection
include the Yorta Yorta people of Victoria and the Victorian State Government.
[3]
6.9 Blanket protection regimes allow for developers to make
applications concerning sites of significance. It has been argued that
an essential component of the 'developer application' approach is that
the actual identification of sites as being sacred should be in the hands
of indigenous people themselves; the New South Wales Aboriginal Land Council
has asserted:
Developer applications should act as a trigger for the
work clearance process. ... It involves local Aboriginal people investigating
the proposed development area and deciding if it will affect any sites
there. It is an approach which avoids Aboriginal people having to identify
to the developer each site likely to be damaged. [4]
6.10 The blanket protection process, accordingly, is consistent
with (and requires) a complementary application regime. The Commonwealth's
proposals for reforming indigenous heritage protection include a system
where blanket protection is automatically conferred upon all areas that
are significant according to traditional indigenous religious and cultural
beliefs. The proposals include procedures for both the removal of blanket
protection under a consent process and the making of specific protection
orders. [5]
Desecration - An Objective or Subjective Test?
6.11 The way in which the impact of an activity upon a site
of significance should be assessed is an issue common to both the 'blanket'
and the 'application' approaches to protection.
6.12 It is not difficult to understand how an assessment
based upon the perspective of an indigenous person can differ from an
assessment made from a non-indigenous perspective. While the difference
can be one of objectivity or subjectivity, it can also be one of ignorance
or knowledge.
Submissions
6.13 The submission of the Northern Land Council to Ms Evatt's
review proposed at para 4.7 that procedures adopted by any heritage
tribunal should not be the subject of Ministerial discretion at State,
Territory or Commonwealth level.
6.14 In her submission Ms Mary Heath [6]
from the Women's International League for Peace and Freedom expressed
support for the use of subjective criteria and went on to argue for the
removal of ministerial discretions in relation to the making, amending
and revoking of declarations. She argued against the involvement of political
discretions and in favour of a declaration being made upon the satisfaction
of particular stated grounds:
The political element of this decision making process
produces completely inadequate protection of indigenous heritage. Even
after the extensive reporting and investigative processes currently
required under the Act, even if Indigenous people can clearly demonstrate
the significance of an area or object to them, they are not entitled
to a declaration under the Act. Where a declaration is made, the Minister
can revoke it: the Act does not specify a requirement of consultations
with the claimants of any kind.
...
This state of affairs would not be accepted as appropriate
in the context of the rights of other Australians. It would not be regarded
as acceptable to have human remains buried in cemeteries throughout
the country protected only in the absolute discretion of a Minister...It
would not be regarded as acceptable to have the National Art Gallery
or the state Galleries and Museums protected only in the absolute discretion
of a Minister
6.15 The function of indigenous heritage protection was
further highlighted by the Association of Mining and Exploration Companies
[7] which criticised the provisions of the Act
as being too subjective and vague. This vagueness is alleged to have resulted
in the Act being used for the purposes of blocking development under the
guise of protecting indigenous heritage. AMEC argued that this misuse
of the Act is exacerbated by the political nature of Ministerial decisions
on the making of declarations and has damaged Australia's reputation as
a suitable location for investment in resources.
6.16 In contrast to the criticisms made by AMEC, the ALRM
[8] submitted:
This Committee should recognise that spiritual and cultural
beliefs can neither be proven not disproved. The reporting process should
not be directed towards proof or disproof of spiritual beliefs. So much
is consistent with Christian belief.
...
For that reason, the Act should neither require nor allow
for any procedure which purports to test cultural or spiritual beliefs
against any other criteria than an assessment of the degree of intensity
of belief and feeling that Aboriginal people manifest in making the
revelation to the reporter.
The Evatt Report
6.17 Ms Evatt has advised that the question of significance
should be considered through communication with Aboriginal people about
their understanding and experience concerning the area:
It is an issue which should be seen as peculiarly within
the competence of Aboriginal people to determine.(report, p.112)
6.18 In her June 1996 report on the Hindmarsh Island Bridge
matter, following Tickner v Chapman & Ors (1995), Justice Jane Mathews
interpreted the Act as requiring an objective test in order for the Commonwealth
Minister to be satisfied that a site was under threat of desecration:
The Minister can only be satisfied that the area for which
protection is sought is under threat of injury or desecration if he
regards it as more likely than not that the building of the bridge would
in fact disturb Aboriginal remains in a manner inconsistent with
Aboriginal tradition. (emphasis in original)
6.19 While Ms Evatt emphasised the role of indigenous people
in determining whether or not a particular area should be designated as
'significant', she did not conclude that protection should automatically
flow from the finding of significance. Instead she took the view that
the question of significance should be separated from the question of
whether or not protection should be conferred. The Evatt review recommended
that the Commonwealth executive should rely upon the assessment of an
independent agency to determine the issue of significance, leaving the
Commonwealth Minister with the responsibility for deciding whether or
not to confer protection. [9]
6.20 The Committee accepts that there is a proper role for
subjective claims in the process of assessing significance of sites and
objects. Further, it is only right that indigenous interests determine
the question of significance. It would not be acceptable for legislation
to require the Minister to be satisfied on objective grounds that an area
or object was significant to indigenous custodians if that were to imply
that subjective claims were not to be accepted.
Progressing Developments and Preserving Heritage
6.21 In considering the extent to which desecration may
result from the performance of a particular act, the Committee recognises
the difficulty in reconciling the competing interests of indigenous people,
land users and developers. To address this problem, the Committee agrees
with the recommendation of the Evatt Report that the question of determining
the significance of a particular area should be considered separately
from the question of protection. While an independent agency may be of
use in making recommendations in this regard, the decision whether or
not to provide protection must ultimately be decided by the Executive.
6.22 Disputes over the protection of indigenous heritage
can cost developers money, time and lost opportunities. Indigenous people
suffer from the tensions produced by desecration or the threat of desecration.
A large number of witnesses representing the views of indigenous, development
and government interests who provided evidence to the Committee expressed
a preference to avoid disagreements over indigenous heritage issues early
in the developmental process.
6.23 The Committee notes the desire expressed by numerous
witnesses to prevent conflict over heritage protection by utilising regional
or area agreements instead of dealing with the protection of particular
sites or objects on a case-by-case basis. Several witnesses gave evidence
about the use of agreements made between indigenous groups, land users
and governments to determine how indigenous heritage issues should be
handled. In some instances these agreements established 'work clearance'
processes whereby areas of particular significance to indigenous people
could be identified prior to a particular development taking place.
6.24 At present the Act only provides for the making of
indigenous heritage protection agreements under Part IIA which deals with
Aboriginal Cultural Heritage of the State of Victoria. Section 21K of
Part IIA reads:
21K. (1) A local Aboriginal community may enter into an
Aboriginal Cultural Heritage Agreement with a person who owns or possesses
any Aboriginal cultural property in Victoria.
(2) An agreement may cover the preservation, maintenance,
exhibition, sale or use of the property and the rights, needs and wishes
of the person and of the Aboriginal and general communities.
(3) Subsection (1) does not apply to any Aboriginal cultural
property in the possession of an Aboriginal if the property has been
handed down from generation to generation to that person unless that
person expressly agrees that the property should be the subject of an
agreement under this section.
(4) If an agreement under this section relating to land
contains a provision requiring its registration under this section,
the local Aboriginal community shall without delay:
(a) if the land is under the operation of the Transfer
of Land Act 1958 of Victoria - lodge with the Registrar of Titles
under that Act a notice of the agreement in the prescribed form; or
(b) in the case of other land - lodge with the Registrar-General
under the Property Law Act 1958 of Victoria a notice of the agreement
in the prescribed form.
(5) If the Registrar of Titles receives a notice of an
agreement, the Registrar may make such entries in the Register Book
as the Registrar thinks appropriate for the purposes of this section.
6.25 Part IIA permits an agreement to be made on a broad
range of terms and provides an option for the agreement to be registered
on the title of the land to which it relates. Despite the potential for
agreements to be made under this provision there has been little use made
of it. The State Government of Victoria reports that there has only been
one agreement finalised under section 21K and in that instance it was
partially based upon the requirements of the Planning and Environment
Act 1987. [10]
6.26 Ideas for improving the operation of section 21K raised
by the Victorian State Government in the context of enacting Victorian
legislation include adding enforcement provisions, financial incentives
for landholders to enter into agreements and making the Minister a party
to the agreement. [11]
6.27 The Committee endorses the process of mediated agreements
concerning indigenous heritage protection and in particular, regional
or area agreements. Such agreements need to incorporate reference to registers
of significant sites and should seek to operate in the manner being established
by the Giru Dala Council of Elders (see Chapter 7 of this report).
Significant Post Settlement Sites
6.28 The Committee heard evidence from a number of indigenous
organisations on the importance of protecting sites that were of particular
significance to indigenous people due to events that took place after
European settlement. The National Aboriginal History & Heritage Council
(NAHHC) stressed in its submission the importance placed by indigenous
people upon the site of the first National Day of Mourning which was held
in 1938 at the Cyprus Hellene Club in Sydney. [12]
In its evidence the NAHHC argued that while the site was not significant
to indigenous people prior to the Day of Mourning, it had become historically
significant to Aboriginal people because of that one-off event. [13]
Of course, a full permanent conservation order has recently been placed
on the Cyprus Hellene Club by the New South Wales Government. [14]
6.29 In its submission the Indigenous Land Corporation advanced
the view that indigenous culture is not static in nature, and heritage
protection should be available for sites such as the site of the first
National Day of Mourning. [15] The ILC gave
evidence that, in the same way that a site may become culturally important,
a site may cease to be culturally significant once knowledge is lost and/or
significant individuals die. [16] On this basis
the ILC strongly contends that the significance of a particular site should
be determined by indigenous people, making the involvement of the appropriate
'Aboriginal custodians' a requirement for a valid decision about the significance
of a particular site. [17] Other indigenous
groups such as the NSWALC have expressed concerns that static views of
Aboriginal culture under heritage protection legislation fail to take
into account the living, evolving and adapting nature of Aboriginal society
in the face of changing circumstances. [18]
6.30 Indigenous heritage potentially has a 40,000 year history.
However, the recognition of sites as significant due to relatively recent
events raises a number of issues. For instance, and in regard to the Cyprus
Hellene Club, it may not be clear how the views of indigenous people in
1938 could be taken into account. While indigenous people today may regard
the site of the Cyprus Hellene Club as being significant, did the indigenous
people who met there for the inaugural national day of mourning consider
it to be a site of significance at the time? Indeed, is that a relevant
consideration?
6.31 These kinds of questions raise the central issue of
what should be included in the definition of the term 'aboriginal tradition'
under the Commonwealth Act and the equivalent definitions of the various
State and Territory regimes.
6.32 In its submission [19] AMEC
has criticised particular definitions under the Act for being too vague
and providing an opportunity for the Act to be manipulated by anti-development
interests asserting an Aboriginal identity. AMEC argued that the current
definition of the term 'aboriginal tradition' is too broad and could lead
to areas and objects becoming significant within a matter of days of a
significant event.
The Act defines the terms 'aboriginal' and 'aboriginal
tradition' in subsection 3(1) as follows:
In this Act, unless the contrary intention appears:
"Aboriginal" means a member of the Aboriginal
race of Australia, and includes a descendent of the indigenous inhabitants
of the Torres Strait Islands;
...
"Aboriginal tradition" means the body of traditions,
observances, customs and beliefs of Aboriginals generally or of a particular
community or group of Aboriginals, and includes any such traditions,
observances, customs or beliefs relating to particular persons, areas,
objects or relationships;
6.33 Both these definitions are provided in the Act for
the 'significant Aboriginal area' and 'significant Aboriginal object'.
AMEC recommends that the definition of 'Aboriginal' should be clarified,
possibly through identifying a nexus with the area in respect of which
the application is made. AMEC further recommends that applications for
protection may only be made by those persons who may be considered at
law to be indigenous custodians of the area or object for which protection
is sought. AMEC's submission suggests that amendments could identify the
specific or primary elements which constitute an 'Aboriginal tradition'.
[20]
6.34 The State Government of Victoria, in its submission
to the Evatt Review, questioned whether the definitions of the Commonwealth
Act were intended to protect all Victorian Aboriginal sites or only those
of 'particular' cultural importance which can be discovered.
6.35 The Committee notes the need for any concept relating
to Aboriginal tradition to be flexible in application. There is also a
need for all affected parties to be reasonable. Developers should note
that the recognition of significance is not the determining factor in
executive decisions pursuant to indigenous heritage legislation; other
factors, such as the national interest, need to be taken into account.
Conclusion
6.36 The Committee accepts that:
- the concepts of 'Aboriginal tradition' and 'desecration'
are difficult to define;
- indigenous people are best placed to make an assessment
of significance under Aboriginal tradition;
- work clearance processes and agreements involving developers,
land users and indigenous people before the commencement of developments
can substantially reduce the delays of developers and the fears of indigenous
people.
Recommendation 5
That the issue of determining whether a particular site
be considered to be significant be separated from the question of whether
or not land be used in a particular way. The issue of significance should
be decided by an independent administrative agency with appropriate
resources.
Footnotes
[1] Submission No HA2, p.15.
[2] Submission No HA12, p.5.
[3] Discussion Paper: Proposed
Victorian Aboriginal Cultural Heritage Legislation, pp.3, 6.
[4] Submission No HA14, p.13.
[5] National Standards for Protecting
Indigenous Heritage, pp.7, 10.
[6] Submission No HA4.
[7] Submission No HA2.
[8] Submission No HA7.
[9] Evatt Report, para 8.20.
[10] Discussion Paper: Proposed
Victorian Aboriginal Cultural Heritage Legislation 21 July 1997, p.14.
[11] Discussion Paper,
op. cit. p.15.
[12] Submission No HA19, p.4.
[13] Evidence, pp.444, 450.
[14] The Australian, 13
February 1998, p.6.
[15] Submission No HA 6, p.5.
[16] Evidence, p.NT 135.
[17] Submission No HA6, p.7.
[18] Submission No HA14, p.19.
[19] Submission No HA2.
[20] Submission No HA2, p.23.
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