CHAPTER 7

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984
Table of Contents

CHAPTER 7

Issues Arising: (4) Indigenous Involvement

7.1 In evidence to the Committee inquiry, four main issues arose concerning indigenous involvement in heritage protection decisionmaking. They are site clearance and associated registers, restrictions on the availability of information, an administrative agency for decisionmaking, and the role of anthropologists.

Site Clearance and Registers

7.2 While the protection of sites has not been secured under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 in the face of government opposition in the courts, the Act may nevertheless have had an effect by encouraging negotiated agreements concerning site use; potential resort to the use of the Act may in numerous instances have encouraged a government decision tolerable to indigenous interests. By its nature this is a matter on which it is difficult to find evidence, but the possibility of the persuasive power of the Act's potential invocation cannot be dismissed.

7.3 Of course, this is not to suggest that indigenous concern is a determining factor in most cases where it is one of the issues. Annex 7 of the Evatt report has detailed case studies some of which demonstrate that that is clearly not so. Evatt provides examples where long-term activism by indigenous people has either been unsuccessful, or else an inconclusive stand-off has resulted with no development taking place and no long-term protection conferred.

7.4 Failure to reach agreement concerning heritage and development can result in uncertainty, and worse, for all concerned. In his evidence Mr J P Garside, Chief Executive Officer of the Council of the Shire of Burke explained how substantial development work within the Shire had been stalled in the face of threats of an order being made under the Act. This particular situation reportedly resulted in substantial loss of time, money and facilities for contractors, the Shire and the public. [1]

7.5 In some circumstances, however, disagreement can be followed by motivation to find practical solutions. Of course, direct communication between developers, government institutions and indigenous people about heritage issues can take place outside the procedures of the Act.

7.6 The Committee notes that for any sort of work clearance or development approval the communal nature of Aboriginal society should be taken into account. It is essential that negotiations for any sort of development must provide for the representation and consensus of that communal element. Mechanisms to facilitate the early consideration of heritage matters must be tailored to the particular circumstances of the area in question. For example, a system that is appropriate for a well populated coastal area may not be appropriate for a sparsely populated inland area.

The Commonwealth's Approach

7.7 As part of its review of the Act, the Commonwealth has proposed two different methods to facilitate the early consideration of heritage issues in the context of land management decisions.

7.8 The first of these is the 'development application' approach whereby persons contemplating the performance of an act that may affect indigenous heritage would have to formally give notice of their intentions. [2] Consultations with indigenous people would then take place concerning the way in which the act could be performed. One issue to be resolved is whether these consultations should be triggered either automatically upon notification or else only where heritage protection is sought in relation to the area affected by the proposed development. Blanket heritage protection would entail the automatic trigger.

7.9 The Commonwealth has proposed that a process be established to facilitate the making of agreements between developers and Aboriginal people that would identify those locations within a given area which could be affected by the proposed development. [3] The Commonwealth describes this as a 'work clearance process'. These agreements could be arrived at with the assistance of a mediator and could be registered after which time they would be binding on the relevant parties.

Regional Initiatives

7.10 The March 1996 Review of the Act by the Kimberley Land Council (KLC) noted a joint application by the KLC, Rubibi and the Shire to the Commonwealth under the Local Government Program for the development of a model of town planning decision-making that takes account of Aboriginal culture and heritage at the earliest stage of the process. In response to that application, the Commonwealth granted $150,000 for this project. Further:

7.11 In evidence to the Committee, representatives of the Central Queensland Land Council (CQLC) described a system for the joint management of indigenous heritage matters by indigenous groups and local government. The involvement of local government in native title matters made it useful for heritage matters to be considered early in planning schemes. [5] The evidence they provided related to a local planning policy between the Council of the Shire of Cardwell and the local indigenous community.

7.12 The Committee has examined the agreement entitled Shire of Cardwell Local Planning Policy (Aboriginal Cultural Heritage and Land Interests). The agreement includes a Recognition Statement which has been agreed upon by the Council of the Shire of Cardwell and the local Aboriginal community through the CQLC and the Girringun Elders and Reference Group (Girringun). [6] Through this statement the Shire recognises the history and culture of Aboriginal people as well as the involvement of Aboriginal people in the economy of the Shire. [7] The Shire also acknowledges that the Aboriginal people are the original inhabitants and recognises that it remains their traditional country. For their part, the Aboriginal people acknowledge the importance of respect for the continuing rights and interests of all the people in the Shire community. [8]

7.13 Indigenous heritage issues and land interest issues are addressed by means of the Aboriginal Referral Process, a series of steps which the Shire Council follows while assessing a planning application. When a planning application is made to the Shire Council, it considers whether or not it may include an area of Aboriginal significance. [9] Mr Davis of the CQLC indicated in his evidence that not all applications have to go through this procedure, as many applications do not have cultural heritage implications. [10]

7.14 If the Shire Council considers it possible that the area in question may contain Aboriginal heritage, then the Shire Council may request either the CQLC or the Girringun to prepare a report. The report must be made within 21 days with a possible extension of a further 21 days. Any additional extension must be approved by the Council to avoid unreasonable delays. [11] The report covers such matters as the location of Aboriginal cultural heritage and how it may be affected by the proposed development. [12] The report and its implications do not bind the Shire Council, in the same way that an environmental impact statement is not normally binding. [13]

7.15 This initiative has also established an Aboriginal Issues Advisory Committee. The Advisory Committee membership is composed of representatives of the Shire Council, the CQLC and the Girringun. Membership also includes a representative of the Aboriginal Cultural Heritage Section of the Queensland Department of the Environment, with the status of an observer. [14] The Advisory Committee operates a register of Aboriginal Cultural Heritage and a register of Aboriginal Land Interests which are used to avoid disputes over land use and to ensure certainty in the future planning of the Shire. [15]

7.16 The Committee is impressed by the initiative taken by the Girringun, the Central Queensland Land Council and the Shire of Cardwell. The Committee notes that this approach is possible, not only because of a well developed understanding between Local government and indigenous people, but also because of the development of a register of heritage sites.

7.17 In regard to site registers, Mr John Locke of the Giru Dala Council of Elders advised the Committee about a cultural zoning system for the identification of areas and sites of significance to Aboriginal people that had been developed in relation to the Whitsunday area. [16] The system operates by means of computer mapping that permits the Queensland Department of the Environment, the relevant Aboriginal Elders and Local government authorities to access a database of information:

7.18 There are four particular types of cultural zones recognised under the system, each being distinguished on maps by the use of a different colours; the greater homeland area, tangible sites, home use sites and Aboriginal spirituality. [18] The system is intended to allow anyone with a development proposal to be able to consult maps of the areas to which their development relates and to quickly ascertain what sort of sites may be affected, where they are located and which Aboriginal people need to be consulted before the development proceeds. Sites or areas of Aboriginal interest are linked to a classification system which allows the prospective developer to see what further action needs to be taken to address Aboriginal concerns.

7.19 Follow-up action may vary from having to consult directly with the full Giru Dala Council of Elders to having to consult only a group of three; alternatively, it may be necessary only to make a report to the Council of Elders after the development has been completed. [19] The information made available on Aboriginal Cultural heritage sites and zones is controlled by the Giru Dala Council of Elders, who is able to decide on the amount of sacred or sensitive information that may be disclosed. [20] The Local Planning Policy receives legislative backing under the Queensland Local Government (Planning and Environment) Act 1990, although it is not intended to affect the legal rights, powers or obligations of any of the parties. [21]

7.20 Significantly, this system provides for indigenous control of information:

7.21 This kind of approach also received support from the Aboriginal Legal Service of Western Australia, although the ALSWA preferred the practice of heritage agreements and site clearance surveys:

7.22 Notably, however, the ILC is strongly opposed to any proposal for the registration of indigenous heritage on the basis that the dissemination of information on the location of heritage sites would lead to the deliberate desecration of such sites. [24] The ILC cites the observations of Ms Evatt on the dilemma faced by indigenous persons in having to reveal confidential information, and thus violate cultural restrictions on who may possess it, in order to preserve it. The ILC has further suggested that an approach similar to that used under Northern Territory legislation might be more appropriate. Under the Northern Territory Act the Aboriginal Areas Protection Authority is required to identify and consult with traditional custodians in response to development proposals.

Availability of Heritage Information

Indigenous Concern

7.23 The need for confidential information to be released to interested parties only with the permission of the relevant traditional custodians has been emphasised by the NSW Aboriginal Land Council. [25] When information is released, there could be specific directions concerning the confidential nature of such information, perhaps including an explanation of how public interest immunity is intended to operate in relation to such information. To further ensure confidentiality the information would have to be made exempt from disclosure under freedom of information or any procedure under legislation such as the Administrative Decisions (Judicial Review) Act 1977. [26]

7.24 Some indigenous groups are wary of the practical consequences of registering negotiated settlement agreements. The Indigenous Land Corporation expressed concern about how the variation of agreements would be handled and how the parties to the agreement could be said to be truly representative of the interests involved. It has been suggested by some indigenous groups that those representative bodies as determined under section 202 of the Native Title Act 1993 may be able to take on the task of liaising with indigenous people and assisting them with the preparation of heritage protection matters. [27]

7.25 The Committee believes that there should be registers of significant sites so as to speed up decisionmaking. The Aboriginal Legal Rights Movement, however, has rejected the idea of such a register of information being established as this would lead to a 'you told us this once, so therefore it applies to this place as well' mentality. The ALRM did concede, however, that where non-critical information was widely available or non-confidential, it could be included in such a register. [28]

7.26 Nevertheless, Mr Sparrow of the ALRM suggested that the use of the knowledge accumulated from numerous applications makes an assumption that such information is in fact accurate, when in fact it may not be the whole truth. [29] Professor Weiner gave evidence of how disputes could happen within a particular indigenous community as to the meaning and content of the traditional beliefs of that community. Professor Weiner went on to explain how this element of fluidity diminished the value of maintaining a centralised database, and would only create a further basis for dispute and contention. [30]

7.27 The Indigenous Land Corporation also rejected the notion that subsequent reporters should have access to information obtained by reporters in previous matters. [31] According to the ILC, developers sometimes have particular reasons for a proposal at one stage and substantially different reasons at another; hence, separate approval should be required for particular proposals. The ILC also advised that another danger inherent in the use of registers is that information contained on the register is sometimes assumed to be the whole story which can prevent culturally sacred information being kept confidential. [32]

Alternative Views

7.28 By contrast, Mr Steve Palyga supported the use of accumulated evidence in assessing subsequent development applications. Mr Palyga stated that a reporter must have access to previously collected information because one of the best ways to disprove an assertion is through the use of a prior inconsistent statement:

I think it is essential that they have access to previous information because if somebody says, 'This is a heritage area and it is very sacred to us. I am the only person who knows that. I was told by two people who are dead,' then there is very little you can do to disprove that except by reference to the whole history and ethnography. One of the key ways you can disprove what people say, if they just make an assertion, is via previous inconsistent statements. I believe it is essential that a subsequent reporter have access to all relevant information relating to a claim particularly if, after an assessment, the reporter or the investigator believes there is likely to be information in there that could be inconsistent or could reflect either adversely or positively on the claims being made at a later time. [33]

7.29 In accepting the development of indigenous heritage registers, the Committee considers that their value lies in being able to be accessed on any future occasion by appropriate persons with a valid need for heritage information. The Committee understands that the Girringun (Shire of Cardwell) and Giru Dala (Whitsundays) heritage registers are available on that basis.

Reports to the Minister

7.30 The views of indigenous people on matters of indigenous heritage protection are relevant to the work of the reporter under sections 10 and 11 of the present Act. Subsection 13(3) gives the Minister the power to nominate a person to mediate any matter to which an application relates, whether or not a declaration has been made in response to the application. Apart from this power to appoint a mediator, legislative machinery for facilitating agreements and consultations between land users and indigenous people is absent from the Act, except in relation to the State of Victoria under Part IIA. Nevertheless, this has not prevented discussions between parties affected by heritage protection matters under either the Act or relevant State and Territory legislation.

7.31 Ms Evatt reported a general sense of dissatisfaction on the part of indigenous people with the effectiveness of negotiated outcomes. Of the 22 cases where the Minister had appointed a mediator, only in 4 instances did this result in the making and implementation of agreements. [34] Ms Evatt reported that part of the difficulty concerned the fundamental importance of sacred sites; if a site is considered to be significant, then it is difficult for any indigenous person to accept an agreement that leads to the desecration of the site. [35] Ms Evatt also reported that where negotiations were conducted between the Commonwealth and a State or Territory on the protection of a particular site, indigenous people sometimes felt left out of the process. [36] This feeling of being ignored during inter-government negotiations is compounded by the fact that while the result can be seen, negotiations generally take place at the ministerial level which is not normally open to public scrutiny. [37]

7.32 A common point of agreement between indigenous groups was that negotiation and mediation were preferable to an expensive, time-consuming and emotionally charged court process. [38] Concerns expressed by indigenous representatives about negotiations include:

7.33 The Commonwealth proposals for amending the Act include limitations on the time in which negotiations can take place. The proposal is that where negotiations do not produce an agreement, then indigenous people have to lodge an application for long term protection within 21 days or else a ten year prohibition against the granting of any sort of protection order comes into effect.

7.34 In response to this proposal the Indigenous Land Corporation questioned why there have been so few successful mediations on heritage matters, and requested that a formal investigation be conducted into the matter. The ILC rejects the Commonwealth's proposal that where negotiations fail to resolve the situation, the developer will be entitled to take advantage of a process that results in the removal of protection. The ILC submits that this approach once again provides an incentive for non-indigenous people to avoid a negotiated settlement. The ILC further submits that the assumption underlying this approach is that indigenous interests are more likely to be the cause of failed negotiations than non-indigenous interests and should be punished accordingly.

7.35 The Aboriginal Legal Service of WA submitted that the low success rate of negotiated outcomes was due to the emphasis on the overriding powers of the Commonwealth Minister under the Act. [39] The Legal Service argued that the discretionary power of the Minister combined with an approach based upon balancing competing interests resulted in a situation where the importance of Aboriginal heritage is considered secondary to the needs of land users.

7.36 The Committee recognises the need for sensitivity towards indigenous interests when negotiating heritage protection issues; the views of the ILC and the Aboriginal Legal Service of Western Australia are referred to the Commonwealth Government for consideration.

An Independent Administrative Agency

7.37 A central recommendation of the Evatt Report is that the issue of whether or not a site should be considered to be significant should be determined by an independent agency incorporating substantial indigenous representation. And, the NSW Aboriginal Land Council advised:

7.38 In her report Ms Evatt rejected the concept of a tribunal process for determining applications for declarations, observing that the Northern Territory Land Rights Tribunal and the Native Title Tribunal have been suggested as possible models for an inquiry procedure. [41] (Of course, the Native Title Tribunal is not, properly speaking, a tribunal.) The Evatt Report contends that it is not appropriate for issues relating to areas of significance to be dealt with by an open inquiry procedure or adversary process:

7.39 According to the Evatt Report (p.xvii) a new permanent agency should be established to administer the Act in all matters leading to the exercise of discretion by the Minister:

7.40 The purported value of a non-judicial process was questioned by Mr Steve Palyga, the solicitor for the developer in the Hindmarsh Island affair. Mr Palyga expressed support for a uniform national decisionmaking body that would be quasi-judicial rather than an administrative process with decisions being made by a Commonwealth Minister as suggested in the Evatt report. [42] Mr Palyga further suggested that the Northern Territory legislation would be an appropriate model for handling Aboriginal and Torres Strait Islander heritage issues despite the objections raised in the Evatt Report. [43] Mr Palyga was scathing of the approach advocated by Ms Evatt:

7.41 The Committee is concerned to ensure that the more knowledgeable members of indigenous communities are consulted. It was suggested that the 'truth' came out in the Hindmarsh Island matter because the dissident women were able to make their concerns heard after the issues had become public. [45] Witnesses from the ALRM replied that the only way to ensure that all relevant indigenous persons were consulted was to provide for extensive consultations by the reporter who had the resources and the opportunity to identify the appropriate persons within an indigenous community. In order to facilitate this, the ALRM noted that the time limits mentioned in the Government's own discussion paper should be rejected. The ALRM did acknowledge that different people within a community would know different elements of the same story, many parts of which may be suitable for public viewing with only a few people possessing the complete story. [46]

7.42 In its submission [47] the ILC supports the proposal to establish an independent body to advise on heritage protection issues, subject to the condition that it is appropriately resourced to carry out the function. [48] An alternative approach suggested by the Yorta Yorta is for negotiations on heritage matters to take place between the relevant Minister and the affected indigenous. This would place an administrative burden directly on the Minister and would create further problems with the capacity of the particular Minister to receive culturally restricted information, such as gender based information. The need to deal with restrictions such as this represents a further argument in favour of an appropriately resourced independent body.

The Role of Anthropologists

7.43 Mr Steve Palyga indicated that an independent agency staffed with anthropologists will suffer from the suspicion that anthropologists advance indigenous interests. Because of this conflict of interests he was strongly against the establishment of such an independent body. [49]

7.44 The Committee received a substantial amount of commentary on the role of anthropologists in heritage protection procedures. Currently, anthropologists and other experts in indigenous society and culture, such as archaeologists, play a significant role in the assessment of heritage matters under both Commonwealth and other legislation. The value of their contributions to the reporting process was questioned by some witnesses. In his submission to the Committee Mr Palyga questioned the capacity of anthropologists to act impartially arguing that a specialised Aboriginal Heritage Protection Agency would be inadequate for the task of testing an application for protection, favouring a quasi-judicial process instead:

...

7.45 The role of anthropologists in declaration proceedings is not that of an expert witness in civil or criminal proceedings where the impartiality on the part of such witnesses is not normally called into question. The conclusions of an anthropologist are frequently based on consultation with indigenous people instead of the scientific examination of objects. Unlike other areas of specialist knowledge, an anthropologist is dependent on securing the long term cooperation and goodwill of the subject community. This long term familiarity with a particular group of indigenous people may make it difficult for an anthropologist to provide evidence that is perceived as being objective. It is likewise difficult for an anthropologist to disprove a perceived conflict of interest between the need to tell the truth and the desire to do the right thing by the people with whom the anthropologist already has a strong relationship. [50]

7.46 Further, Mr Steve Palyga has disagreed with Ms Evatt's assertion that revealing the details of a sacred story does little to assist non-indigenous people assess the significance claimed for the site. Mr Palyga argues that once the details are available the non-indigenous parties can obtain their own anthropological advice which can test the evidence. [51]

7.47 Professor Weiner made a number of observations as to the value of anthropologists to the processes under the Heritage Protection Act.

Recommendation 6

Recommendation 7

Recommendation 8

 

Footnotes

[1] Submission No HA8.

[2] Reforming the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, p.9.

[3] Reforming the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, p.9.

[4] Submission No HA32.

[5] Evidence, p. NT199.

[6] Evidence, p.NT 229.

[7] Evidence, p.NT 200.

[8] Evidence, p.NT 217.

[9] Evidence, p.NT 235.

[10] Evidence, p.NT 200

[11] Evidence, p.NT 228.

[12] Evidence, p.NT 219.

[13] Evidence, p.NT 200.

[14] Evidence, pp.NT 221, 222.

[15] Evidence, p.NT 228.

[16] Evidence, pp.NT 197, 201.

[17] Evidence, pp.NT 202, 203.

[18] Evidence, p.NT 202.

[19] Evidence, p.NT 203.

[20] Evidence, p.NT 202.

[21] Evidence, p.NT 232.

[22] Evidence, p.NT 203.

[23] Evidence, p.NT 570.

[24] Submission No HA6, p.16.

[25] Submission No HA14, p.11.

[26] Submission No HA14, p.12.

[27] Evidence, p.NT 139.

[28] Evidence, p.NT 103.

[29] Evidence, p.NT 103.

[30] Evidence, p.NT 168.

[31] Evidence, p.NT 127.

[32] Evidence, p.NT 128.

[33] Evidence, p.NT 149.

[34] Evatt Report, pp.129, 130.

[35] Evatt Report, pp.135, 136.

[36] Evatt Report, p.xiv.

[37] Evatt Report, p.209.

[38] Submission No HA6, p.13.

[39] Submission No HA20.

[40] Submission No HA14, p.1.

[41] Evidence, p.NT 221.

[42] Submission No HA1, p.11.

[43] Evidence, p.NT 151.

[44] Evidence, p.NT 143.

[45] Evidence, p.NT 97.

[46] Evidence, p.NT 93.

[47] Submission No HA6.

[48] Submission No HA14, p.11.

[49] Evidence, p.NT 156.

[50] Evidence, p.NT 170.

[51] Evidence, p.NT 144.

[52] Evidence, p.NT 167.

[53] Evidence, p.NT 167.

[54] Evidence, p.NT 167.