Chapter 7 - Indigenous Heritage
There are few issues of greater importance to indigenous
people than the protection of indigenous cultural heritage. Significant
intangible heritage, areas and objects form an irreplaceable cultural and
physical link between the past and present for the vast majority of indigenous
people.[1]
Introduction
7.1
An important element of the bills is the
provision of legislative measures to protect indigenous cultural heritage. The
inclusion of indigenous heritage in the wider heritage protection regime raises
some complex issues, however. The first is how the proposed legislation will
relate to existing laws. The second relates to indigenous culture and the role
the Commonwealth should play in national heritage protection.
Relationship of the Bills to other Commonwealth
legislation
7.2
An obvious starting point for consideration of
indigenous issues within these bills is the relationship the proposed laws will
have with the existing Commonwealth Aboriginal and Torres Strait Islander Heritage
Protection Act 1984 (ATSIHP Act) and its proposed
replacement, the Aboriginal and Torres Strait Islander Heritage Protection Bill
1998.[2]
7.3
The ATSIHP Act states as its purpose:
[T]he preservation and protection from injury or desecration of
areas and objects in Australia and in Australian waters, being areas and
objects that are of particular significance to Aboriginals in accordance with
Aboriginal tradition.[3]
7.4
Similarly, the ATSIHP Bill aims to:
... establish procedures relating to:
(a) the preservation and protection from injury or desecration
of certain significant indigenous areas, and of certain significant indigenous
objects, that are situated in Australia or Australian waters; and
(b) the accreditation of the laws in force in States and
self-governing territories as accredited heritage protection regimes in respect
of a particular matter or matters.[4]
7.5
Mr Bruce Leaver, of Environment Australia, explained that the ATSIHP Act (and the Bill):
Is a development control act engaging heritage protection in the
face of development proposals. These bills propose the identification and
protection of heritage as values in its own right outside the pressure of
development proposals. There is one linkage between the two acts [sic], and
that is an obligation of the proposed Australian Heritage Council to seek the
advice of the director of indigenous heritage established under the ASTIHP Act
regarding listings, but beyond that these bills regards indigenous heritage as
part of the natural social and cultural heritage of Australia and deal with it
accordingly.[5]
7.6
Nevertheless, the Committee is concerned that
there is no clear discussion in either the legislation itself or the
accompanying materials about the intended relationship between the two regimes.[6] This is unacceptable given the
complexity and sensitivity of indigenous heritage protection, and the amount of
negotiation, consultation, review and inquiry that has been invested into the
ATSIHP legislation, including the:
- Review of the Aboriginal and Torres Strait Islander Heritage
Protection Act 1984 by the Hon Elizabeth Evatt AO (the Evatt Report)
- Joint Parliamentary Committee on Native Title and the Aboriginal
Torres Strait Islander Land Fund 11th and 12th Reports
- Senate Legal and Constitutional Legislation Committee report into
the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998.
7.7
The Evatt Report in particular, is regarded as
providing an influential blueprint for establishing a heritage protection
regime.[7]
In particular it is worth noting that one of the main recommendations of the
report was the establishment of a national indigenous heritage body that would
be staffed and managed by Indigenous people in recognition of the fact that
they are the custodians of their cultures. This was a point reiterated by the
Chairman of ATSIC, Mr Geoff Clark, in his presentations to the Committee.[8]
7.8
The Committee concludes that while no evidence
has been received that suggests any direct conflict between the two regimes,
the importance and complexity of the subject matter dictates that every measure
is taken clarify this relationship and how the regimes will interact to provide
the necessary level of protection of indigenous heritage. The Committee
considers that the relationships between the two regimes should be clarified
before the Senate considers the bills. ATSIC and other relevant indigenous
organisations should be invited to provide the Committee with their views on
the Government’s response so that the Committee can develop a fully informed
position on the issues.
Recommendation 7.1
The Committee recommends
that the Government provide full details about the relationship between
indigenous heritage protection in the proposed EPBC regime and the ATSHIP Act
prior to the Senate’s consideration of the bills. Indigenous people should be
given the opportunity to comment on the Government’s response.
Recommendation 7.2
The Committee recommends
that the Government provide a full response to the recommendations contained in
the Evatt Report.
Appropriateness of the proposed measures
7.9
Evidence has also argued that the proposed
legislative framework for heritage protection centred around the concept of
places of National Environmental Significance, is fundamentally unsuited to its
task, due to the characteristics of indigenous heritage. This is explained by
Professor John Mulvaney:
each linguistic or ‘tribal’ grouping reveres its own fundamental
creation/Dreaming places and interconnecting pathways (‘Songlines’)[.]
Europeans, for example, rate Uluru as the supreme Aboriginal place (witness the
National Museum's ‘Uluru Line’). Yet its significance for Aboriginal people
was limited to the people of that region, and it was not more important to them
than many less impressive places. Indigenous elders in totally diverse regions
(Cape York, Kimberley, Arnhem Land) would list many places which, to them, are
as ‘national’ as Uluru.[9]
7.10
Accordingly, there is a danger that site
selection will be dominated by eurocentric values and notions of what makes a
place important. Ms Sullivan reinforces this point:
[T]here are very real problems in limiting the protection of
indigenous heritage places outside the Commonwealth jurisdiction to those which
are deemed to have national significance. Many very significant Indigenous
sites do not have such significance, or, if they were deemed to do so,
Indigenous people do not want them to be treated in this way – that is, turned
into national icons.[10]
7.11
ATSIC agree, noting that the traditional
European notion of culture and heritage, centered around monuments and
‘leading’ civilisations, is too narrow:
ATSIC shares this view that a Eurocentric domination of any
listing will be absolutely discriminatory to the very basis of Australia’s
Indigenous heritage and its people.[11]
7.12
A similar concern is raised by the Tasmanian
government:
The Tasmanian government believes that there are significant
deficiencies in the Bill as it relates to the provision of Indigenous Heritage
protection. Indigenous heritage has been incorporated into a document that was
originally written for built heritage. The language and methods of European
built heritage conservation are not necessarily appropriate for Indigenous
Heritage.[12]
7.13
At the same time, ATSIC asserts that the bills
are flawed in their inadequate provision for protecting ‘intangible’ heritage, and are instead completely
focused on tangible sites, places and objects.[13] Intangible heritage includes
cultural heritage not capable of physical embodiment such as singing of songs,
stories, spiritual attachments, intellectual and cultural property.[14]
7.14
A second issue that arises in consideration of
the appropriateness of the proposed measures is that of adequate protection of
indigenous sites. Mr Preston Thomas, an ATSIC Commissioner, explained that
many indigenous people are reluctant to use listing provisions for fear that
information about the site’s location and significance will be publicly
available.[15]
Such a release of information may be culturally inappropriate and may also lead
directly to the damaging of those sites by unauthorised visitors. Mr Geoff
Clark, the Chairman of ATSIC, gave an example of such disclosure involving the
release over the internet of cultural site information by a visiting
researcher. He went on to explain that:
This bill has reached a
critical stage where it needs to include all Aboriginal sites. It needs to
take into consideration how Aboriginal stories are held in terms of their
sacredness, in terms of who should know, whether you are male, female or a
young person, et cetera.[16]
7.15
According to Mr
Bruce Leaver of Environment Australia, the Department has been aware of these
issues in drafting these bills,[17]
but makes two points. First, notwithstanding the conceptual problems
associated with listing criteria requiring indigenous sites of ‘national’ significance,
there has been interest by indigenous people in listing:
many historical sites
particularly associated with the first European contact, battle sites, massacre
sites and so on which would be very worthily listed as a place of national
heritage significance ... .[18]
7.16
Second, Mr Leaver
claims that a sensitive approach will be taken to the listing process that will
ensure that key indigenous heritage sites will be protected with appropriate
controls over confidentiality:
it should be made absolutely
clear that in these bills indigenous places will be available for inclusion on
the national and Commonwealth lists subject to the views that have affected
indigenous communities and the confidentiality provisions of the bills. The
issue of dealing with the concept of ‘national’, as I have mentioned, applying
to an individual community site will have to be dealt with on a site by site
basis and I expect, like its predecessor, the Australian Heritage Council will
take a constructive, consultative and sensitive approach to the listing of
indigenous places.[19]
7.17
While
acknowledging the best intentions of departmental officials, the Committee is
not convinced that this will necessarily be the case. Although the bills do
provide for confidential listings, the fact remains that departmental officials
will be bound by the requirements of the law, which will still require
demonstrated ‘national’ or ‘Commonwealth’ heritage values in order to list a
place on either of these proposed lists.
7.18
The Committee also
considers that greater consideration should be given to the protection of
intangible heritage.
7.19
Witnesses have
suggested several solutions. Ms Sullivan proposes that the bills should be
amended to:
allow the Minister, in consultation with relevant Aboriginal
groups, as well as the Australian Heritage Council, to declare or List an
Aboriginal cultural heritage place to be a Commonwealth Heritage Place.[20]
7.20
This would require either that the place be
situated on Commonwealth land, or that the definition of the Commonwealth list
is amended.
7.21
The Committee has also heard evidence that
during the consultation period for the proposed new regime that indigenous
communities and other groups were advised that all indigenous sites currently
on the RNE would be automatically listed on the Commonwealth list as ‘matters
of constitutional interest’.[21]
The Committee sees considerable merit in this approach, but is also mindful
that significant changes of this nature need to be fully canvassed with
indigenous communities and other options should also be discussed given the
current problems that are identified with the listing process by indigenous
people, some of which have been highlighted above.
7.22
The importance of comprehensive consultation is
further reiterated by ATSIC who argue that it is the key to resolving these
issues properly:
These are complicated issues
that this bill does not address because it has not had sufficient, we believe,
consultation with Aboriginal people in understanding those issues or, if those
issues are understood, they have been ignored.[22]
7.23
The Committee appreciates that there are
problems with attempting to apply the definition of ‘national’ significance to
many of the indigenous heritage sites. As the bills stand, sites of indigenous
heritage significance will be listed on much the same grounds as historic or
natural sites of ‘national’ significance, rather than reflecting any particular
significance to indigenous Australians.
7.24
The Government argues that this is in accordance
with the general objective of the bills and that it is not the intention of the
bills to provide the principal mechanism for indigenous heritage protection.
The Government says, however, that the bills do serve to provide an overarching
protection to those few items of heritage that have a national significance.
In this sense, ‘national’ is explicitly intended to refer to the significance
of a place to all Australians, rather than indigenous Australians
specifically. Indigenous sites that may be placed on the National list, may be
thought of as being of ‘national’ significance by non-indigenous people, but
they will probably not be regarded as being of ‘national’ significance by
indigenous people, particularly given the large number of Aboriginal nations in
Australia. There is therefore a real problem if the National List is not
‘owned’ by all Australians and if Aboriginal people feel in any way that the
broader community is appropriating their heritage. This would be a
counter-productive outcome since it would send a very negative message to Aboriginal
people about how the broader community values their heritage.
7.25
In considering these issues, the Committee is of
the view that the concept of a national list is a culturally discrete concept
that should not be imposed upon indigenous heritage if it is something that
Aboriginal people feel is inappropriate and which may actually cause
significant harm and offence.
7.26
The Committee fully understands and supports the
need to protect indigenous heritage based on its significance to indigenous
Australians, and considers that the bill does not adequately achieve that. The
Committee concludes that listing all indigenous sites on the Commonwealth list,
may be a possible means of resolving concerns over the placement of indigenous
sites on the National List, but that this approach requires further
consultation with indigenous peoples.
7.27
The Committee further concludes that given the
problems with the placement of sites on the National List, that this is another
good reason for the retention of the RNE, in which all indigenous sites can be
listed. The Committee is also mindful of the fact that the given the
significance of indigenous heritage to the Australian community as a whole,
that it would be of great concern not to have indigenous sites represented on
some kind of national register of Australia’s collective heritage.
7.28
The Committee notes, however, that the RNE is
not a comprehensive listing of indigenous sites given the concerns that some
Aboriginal people have with listing processes. The Committee agrees with
ATSIC, therefore, that further dialogue with Aboriginal people is needed to
determine an effective long-term solution for the protection of heritage of
significance to Aboriginal people.
Recommendation 7.3
The Committee recommends
that the Government investigate with indigenous people the appropriateness of
placing all indigenous sites currently on the RNE onto the Commonwealth List.
Recommendation 7.4
The Committee also
recommends that the Government engage in further consultations with indigenous
people about the best means to ensure the long term protection of heritage of
significance to Aboriginal people.
International and national obligations
7.29
ATSIC also drew the Committee’s attention to a
number of relevant principles of international law that should inform debate on
the protection of indigenous heritage.[23]
These include the:
- Draft Declaration on the Rights of Indigenous People[24]
- Convention on the Elimination of Racial Discrimination (CERD)
- International Covenant on Civil and Political Rights (ICCPR)[25]
- International Convention on Economic Social and Cultural Rights
(ICESCR)
- International Labour Organisation (ILO) Convention 169 concerning
Indigenous and Tribal peoples in independent countries, provide relevant
principles.[26]
7.30
In raising these matters, ATSIC comments that:
the standards set out by the draft declaration, especially the
rights of self-determination, are regarded as a necessary minimum to safeguard
the cultural diversity represented by indigenous people.[27]
7.31
The Committee concludes that these international
instruments are sources of important general principles that should be taken
into consideration in developing heritage protection laws for indigenous
peoples.
Recommendation 7.5
The Committee recommends
that the Government take appropriate steps to ensure that Australia’s
indigenous heritage protection laws reflect the principles and rights embodied
in international legal instruments.
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