DISSENT OF THE MINORITY FROM THE ELEVENTH REPORT OF THE PARLIAMENTARY
JOINT COMMITTEE ON NATIVE TITLE AND TORRES STRAIT ISLANDER LAND FUND
The Australian Labor party and the Democrat members of the committee
are unable to support the general thrust of the recommendations made by
the majority Coalition members.
It is neither possible, nor desirable, to approach a review of the Aboriginal
and Torres Strait Islander Heritage Protection Act 1984 without considering
the political, social and legislative context of the review.
The committee has approached its task at the same time as the parliament
engages in a lengthy and divisive debate on amendment to the Native
Title Act 1993, the Northern Territory Government is reviewing the
Aboriginal Land Rights (Northern Territory) Act 1976, and community
debate continues on the issues raised by the Hindmarsh Island Bridge
Act.
The signatories to this dissenting report see the majority recommendations
as substantially weakening protection for indigenous heritage, and reflecting
insensitivity to the laws, culture and beliefs of Australia's indigenous
peoples. It is unacceptable to propose procedures and substantive provisions
to supposedly protect Aboriginal cultural heritage when those provisions
and mechanisms are inconsistent with or even hostile to indigenous laws
and customs.
In concert with the extinguishment of native title and the erosion of
indigenous rights central to the Native Title Amendment Bill, the
majority recommendations represent a retrograde step in reconciliation
between indigenous and non indigenous Australians.
Furthermore, the recommendations of the majority are inconsistent with
the motion passed by the Senate when it referred review of the Act
to the Committee. The Senate acknowledged:
The urgent need for amendments to the Aboriginal and Torres
Strait Islander Heritage Protection Act 1984, consistent
with the report of the Review of that Act by Justice Elizabeth Evatt,
in order to avoid or minimise the repetition of any further incidents,
such as the Hindmarsh Island Bridge situation, in which the cultural
and spiritual beliefs of the Aboriginal and Torres Strait Islander people
are not able to be properly considered under the existing legislative
arrangements.
The recommendations of the majority ignore the most significant of Justice
Evatt's recommendations and have the nett effect of reducing legislative
and administrative protection and respect for "the cultural and spiritual
beliefs of the Aboriginal and Torres Strait Islander people".
In short, the recommendations represent an abrogation of the responsibility
granted into the Commonwealth in the 1967 referendum to legislate for
the benefit of our indigenous peoples.
Consequently the Minority proposes the following recommendations:
Recommendation 1
That the Commonwealth should retain a direct role in ensuring the ongoing
protection of indigenous heritage under this Act.
Recommendation 2
That insofar as individual States continue to fail to meet acceptable
minimum standards of provisions and procedures for indigenous heritage
protection, Commonwealth legislation should continue to make specific
provision for those states.
Recommendation 3
That minimum national standard for both substantive and procedural indigenous
heritage protection be prerequisite under this Act for the accreditation
of State and Territory protective regimes.
Recommendation 4
That this Act should provide no presumption of ongoing accreditation
for State regimes, in that any amendments made from time to time by the
States should be the subject of review, and that any consequent decision
by the Commonwealth minister to accredit such amendment should be a disallowable
instrument.
Recommendation 5
That an Aboriginal Cultural Heritage Advisory Council, as recommended
in the Evatt report, be established under the Act.
Recommendation 6
That minimum national standards for substantive and procedural protection
for indigenous cultural heritage be drawn up under the supervision of
an independent Aboriginal Heritage protection Agency.
Recommendation 7
That the Aboriginal Heritage Protection Agency should be empowered to
administer the Act in those matters leading to the exercise of discretion
by the Minister.
Recommendation 8
That procedures and other measures for indigenous heritage protection
set out in this Act should at all times be sensitive to, and not inconsistent
with, indigenous laws and customs
Recommendation 9
That any provision for the Minister to intervene "in the national
interest" must be so framed as to clearly define the protection of
indigenous cultural heritage as being within the meaning of "the
national interest".
SENATOR THE HON N BOLKUS
MR D MELHAM MP
MR H QUICK MP
SENATOR C EVANS
SENATOR J WOODLEY
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