Reconciliation and Social Justice Library
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1.1 On 20 October 1995 the Minister for Aboriginal and Torres Strait Islander Affairs announced that the Hon Elizabeth Evatt AC had been invited to undertake a comprehensive independent review of the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the Act).[1] The Act enables the Minister to make declarations to protect areas and objects which are of particular significance to Aboriginal people in accordance with Aboriginal tradition.
1.2 The Review was asked to take into account several earlier reports relating to the protection of indigenous heritage which deal with such matters as the promotion of co-operation between State, Territory and Commonwealth legislation and the need for national standards:
Ministerial Council on Aboriginal and Torres Strait Islander Affairs (MCATSIA) Working Party Report on Item 4.1: Aboriginal Heritage Interaction between States, Territories and Commonwealth 1995;
Council for Aboriginal Reconciliation Exploring for Common Ground: Aboriginal Reconciliation and the Australian Mining Industry 1993; and
ATSIC Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures Commonwealth of Australia 1995.
1.3 An advertisement announcing the Review and calling for submissions from interested individuals and organisations was placed in all major capital city newspapers, in State and Territory regional newspapers, and Aboriginal and Torres Strait Islander publications in the week commencing 12 November 1995. Notices were also placed in some law journals and professional publications. The Australian Institute of Aboriginal and Torres Strait Islander Studies circulated details of the Review.
1.4 The work of the Review began in December 1995 in premises in Sydney. The Review was requested to report back to the Commonwealth Government in six months; an extension of three weeks was later asked for and granted. Financial and administrative support was provided by ATSIC and the Department of Administrative Services.
1.5 The closing date set for receipt of submissions was 31 January 1996. This date was extended several times. In fact submissions were still being received in May and June. The total number of written submissions was 69. Most submissions were made by Aboriginal groups and individuals. Others came from anthropologists, lawyers, archaeologists, concerned members of the community, and from representatives of the farming, pastoral, mining and exploration industries.[2] A list is in Annex III. The following figures give a breakdown:
Aboriginal organisations and individuals (includes land councils and Aboriginal legal services) 38% (26)
Government - Commonwealth and State/Territory 17% (12)
Business and Industry representatives 13% (9)
Professionals - (includes anthropologists, lawyers, archaeologists) 19% (13)
Community groups and individuals 13% (9)
1.6 A programme of nation-wide consultation was undertaken, and advance notice was sent to interested groups and individuals. The Review travelled to each capital city and some regional areas to consult with individuals and organisations. Over 300 people took part in these informal discussions[3]. Meetings were held in Sydney with reporters and mediators who had acted under ss 10 and 13 of the Act, and with representatives of business and industry groups.
1.7 In most States and Territories discussions were held with the Minister and the department or agency responsible for Aboriginal heritage matters. (It was not possible to see the Tasmanian Minister due to a pending election.)
1.8 Although consultations took place in every State and Territory, concern was expressed about the lack of time for submissions and consultations.[4] Attention was drawn to recommendation No. 188 of the Royal Commission into Aboriginal Deaths in Custody (RCADIC) concerning negotiations to ensure self-determination in the design and implementation of policies affecting Aboriginal people. Concern was expressed that no provision had been made to involve Aboriginal people directly in the decision-making process of the Review or in its implementation.[5] Some complained about the narrowness of the terms of reference and the failure to review the Act completely in the light of the Mabo decision.[6] Another concern was that people wanting to make submissions were denied access to the Interaction report of the MCATSIA Working Party.
1.9 The discussion in the Report is directed mainly to issues relating to the protection of areas and sites of particular significance to Aboriginal people. Most applications under the Act have related to areas and sites. The Act also applies to protection of Aboriginal objects. The issues concerning objects are considered in Chapter 12 and the procedures for dealing with applications to protect objects are considered in Chapter 11.
1.10 During consultations concerns were raised by Aboriginal communities about the exclusion of certain aspects of cultural heritage, such as intellectual property, from the scope of the Act. Some of these issues are considered in Chapter 3. Concern was also expressed in consultations about the lack of protection of Aboriginal interests in sea resources, about their lack of participation in the management of sea resources and about the damage caused to traditional fishing by commercial activities. The Act extends to the protection of areas of water and areas of land beneath waters within the Australian territorial sea and the continental shelf, but no applications have been made in this regard. Many of the concerns raised were considered in the Coastal Zone Report.[7] The Review supports its recommendations.
1.11 The application of Part IIA of the Act in Victoria is briefly discussed in Chapter 13.
1.12 The Act applies equally to Torres Strait Islanders. However, it has never been invoked in relation to the Torres Strait Islander heritage. For this reason most references in the text are to Aboriginal people. In fact, the Act defines `Aboriginal' to include a descendant of the indigenous inhabitants of the Torres Strait Islands. ATSIC has proposed that each indigenous group and their cultural heritage should be defined separately.[8] This recommendation would require separate definitions for Aboriginal people and Torres Strait Islanders in s 3 (1). The Review supports this proposal.
1.13 The Review approached representatives of Torres Strait Islander communities, and received a submission from David Galvin, Acting General Manager of the Torres Strait Regional Authority. He informed the Review that the members of the Authority felt strongly that the Act should be maintained, though it had never been used in the Torres Strait Islands. They were comfortable that areas and objects were protected by the Act if required.[9] No other submissions were received in respect of Torres Strait Islander heritage.
[1] See Annex I.
[2] See Annex III.
[3] See Annex IV.
[4] MNTU, sub 17, p 2; CLC, sub 47.
[5] CLC, sub 47; Vic consultations, Wayne Atkinson.
[6] Goolburri, sub 13.
[7] Resource Assessment Commission Coastal Zone Inquiry Final Report 1993, Ch 10, "The Role of Indigenous People", p 165. See also Jull, Peter A Sea Change: Overseas Indigenous-Government Relations in the Coastal Zone 1993.
[8] ATSIC, sub 54, p 5.
[9] TSRA, sub 26.
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