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This chapter discusses the background to the Act and reviews its operation since 1984. It assesses the extent of its use and its effectiveness. It looks at the difficulties experienced in using the Act from differing perspectives, and sets policy goals.
2.1 The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is "An Act to preserve and protect places, areas and objects of particular significance to Aboriginals, and for related purposes."[13] Its purposes are:
... the 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. (s 4)
It provides this protection indirectly, by enabling the Minister to make short term and long term declarations to protect areas and objects of significance to Aboriginal people. The declarations are backed up by criminal sanctions.
2.2 The Act was intended for use as a last resort to protect Aboriginal heritage where State and Territory laws are ineffective or there is unwillingness to enforce them. In introducing the Senate second reading, Senator Ryan said:
The need for legislation to enable direct, immediate action by the Commonwealth has been highlighted by such events as Noonkanbah ... Time and again the Commonwealth has been powerless to take legal action where State or Territory laws were inadequate, not enforced or non-existent, despite its clear constitutional responsibility.[14]
In practice, difficulties have arisen from the interaction between the Commonwealth Act and the laws of the States and Territories. These problems are considered in Chapter 5.
2.3 The Act was stated to be "an interim measure which will be replaced by more comprehensive legislation dealing with Aboriginal land rights and heritage protection."[15] The proposed life expectancy of the Act was two years. However, apart from the repeal of the sunset clause, s 33, and the insertion of Part IIA, which applies only in Victoria, the Act has not been changed.
2.4 The Act is important because it is a national Act which applies to any Aboriginal areas or objects anywhere in Australia. It represents an important step in the development of heritage protection legislation based on the principle that Aboriginal areas and sites should be protected because of their significance to Aboriginal people rather than because of their scientific or archaeological significance.[16] It is a significant departure from some State laws which remain modelled on the protection of relics and on the archaeological significance of sites, and which do not attach weight to what is or is not important to Aboriginal people.[17] Protecting areas which may have no scientific importance or physical definition endorses the value of these areas and objects to Aboriginal people as an expression of their living culture.[18]
2.5 The Act applies to any Aboriginal area in Australia, irrespective of whether it is on Crown land, national park, or private land, and whether the land is freehold or leasehold. A claim to the protection of heritage has some similarities with a claim to native title or land rights, in that significant areas (or sacred sites as they are sometimes referred to) play a role in demonstrating Aboriginal people's links with land. The Mabo case and the Native Title Act have brought increasing awareness of the centrality of land in Aboriginal culture and the relationship between the spirituality and beliefs of Aboriginal people and the places to which those beliefs attach. However, the Act is not intended as land rights legislation, nor as an alternative to land claims. While the view has been expressed that heritage legislation, although not conveying freehold or native title, is a type of land right stemming from indigenous relationships to land,[19] the protection of areas and sites under the Act has no directeffect on native title or land rights claims.[20]
2.6 The Act can be used to protect areas and objects which are of particular significance to Aboriginal people in accordance with Aboriginal tradition:
`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; (s 3 (1))
The Act applies to any such area or object in Australia, whoever owns it and whether it is on public or private land.
2.7 The Minister has power to protect significant areas and objects when they are under threat of injury or desecration. `Under threat' means that they are at risk of being used or treated in a manner inconsistent with Aboriginal tradition. The most common threats are construction work such as the building of roads, bridges or dams, mining, exhibition or sale of objects, or the entry of persons into places contrary to customary laws or traditions.
2.8 An Aboriginal person or group of Aboriginal people can write to or approach the Commonwealth Minister in person to ask for the protection of an area or object which is under threat of injury or desecration. The application should describe the area or object and explain, as far as possible, why it is significant, and how it is threatened.
2.9 The Commonwealth Act is intended to cover situations where the State or Territory laws do not give effective protection to an area or object which is under threat. Protection will not be given under the Act where State or Territory laws are considered effective.
2.10 When an application is received, the Minister should consult the relevant State or Territory Minister, s 13 (2). If the matter proceeds the Minister may then appoint a person to mediate, s 13 (3), with the objective of encouraging agreement between the Aboriginal applicants and those who threaten the area. If mediation fails, or if there is no possibility of mediation, the Minister must request a report to be prepared about the area, s 10 (4). He has to consider the report and the representations made by interested persons before deciding whether to protect the area by making a declaration.
2.11 The Act sets out the matters which have to be dealt with in the report. A notice has to be published to invite submissions from the public. The person appointed by the Minister to make the report receives written submissions and will usually speak with the Aboriginal applicants, other interested parties and the persons who are threatening the area or site. The reporter may have the assistance of an anthropologist or an archaeologist and may alsohave access to material prepared by State and Territory authorities in relation to the site or area.
2.12 The Minister can protect the area or site by making a declaration. This is a discretionary power. Even if the area is significant according to Aboriginal tradition, the Minister has to consider the report and take account of all interests, including the wider public interest, before deciding whether or not to make a declaration to protect the area or site. There is no right to a declaration of protection.
2.13 If there is an immediate threat of injury or desecration to an area, the Minister can be asked to make an urgent declaration to protect the area for 30 days. This can be extended, but not for more than another 30 days, making 60 days in all. The Minister can make an urgent declaration without asking for a report. Authorised officers can also make a declaration of protection for up to 48 hours where there is a serious and immediate threat to an area or object. This power has sometimes been used to prevent the auction of sacred objects.
2.14 A declaration can give complete protection to an area or object, or it may limit access to the area or the use of an object in order to ensure respect for Aboriginal traditions. The declaration has legal effect. Failure to comply with it is a criminal offence.
2.15 The Review has prepared an analysis of the applications dealt with under the Act. A summary is in Annex VII, together with some specific case studies illustrating aspects of the operation of the Act. The Review has also drawn on the study of the working of the Act in a Report of the ATSIC Office of Evaluation and Audit.[21]
2.16 Ninety-nine areas in Australia have been the subject of applications under the Act. The breakdown by States is:
Queensland 33
New South Wales 28
Western Australia 21
South Australia 8
Northern Territory 6
Tasmania 2
Victoria 1
Total 99
2.17 In some of these matters there were multiple applications under ss 9, 10 or 18, and some had repeat applications over a period of months or years. The breakdown in relation to individual applications is:
| Type of Application |
Number of Applications |
Number of
Declarations |
Average Number of days to complete *
|
| s 9
(area/immediate threat) |
75 |
11 (5 cases) |
173 |
| s 10 (area) |
49 |
4 |
310 |
| s 18 (immediate threat) |
7 |
1 |
- |
* These figures indicate the average number of days to complete a matter.[22]
2.18 In regard to areas the outcomes were that one s 18 declaration (48 hour- protection) was made in regard to Bright Point, Magnetic Island. In regard to five areas s 9 (short term) declarations were made. In four of these a s 10 declaration for long term protection was made at a later date. The cases are:
Old Swan Brewery
(Goonininup) Perth, June 1989 - later revoked
Junction Waterhole
(Niltye/Tnyere-Akerte)
Alice Springs, May 1992 - for 20 years; remains in force
Broome Crocodile Farm WA,
April 1994 - overturned by Federal Court
Hindmarsh Island
(Kumarangk) SA, July 1994 - overturned by Federal Court
A s 9 declaration was made in respect of the 1992 Boobera Lagoon, Moree, NSW, application; the matter is pending. All these cases are included in Annex VII, Case Studies.
2.19 The most common threats complained of in applications for declarations arose from construction and development.[23] Mining accounted for about 10% of applications. Urban cases represented 28% of the total, and rural cases 72%.
The `typical case' has been described in this way:
2.20 There have been twelve applications under s 12 for long term protection of Aboriginal objects and two under s 18 for 48-hour protection. A total of eleven objects (or groups of objects were involved in these applications. Declarations were made in respect of three groups of objects:
Sotheby's Auction No 1, 1985 s 18 and s 12
Pickles Auction, No 2, 1986 s 12
Strehlow Collection, 1992-1995 s 12
In these cases the objects were purchased for return to their communities.[25]
2.21 The terms of reference ask for the Report to cover:
(i) the effectiveness of the provisions of the Act in providing protection for areas and objects of significance to Aboriginal and Torres Strait Islander people.
One indicator of effectiveness is the number of places that have been protected by the Act, directly or indirectly. Only four declarations have been made under s 10 in relation to areas. No s 10 declarations have been made in respect of areas in NSW or Queensland, despite the large number of applications from those States.[26] Few short term declarations have been made under s 9, which applies to serious and immediate threats.[27] Furthermore, two of the four declarations under section 10 were overturned by the Federal Court[28] and one was later revoked. Only one place in Australia is protected by a s 10 declaration, Junction Waterhole (Niltye/Tnyere-Akerte), Alice Springs. Two other decisions declining applications have been challenged, one successfully.[29] Some submissions argue that these outcomes show that the Act has not been effective.[30]
2.22 The number of declarations is not the only indicator of whether the Act contributes to the protection of heritage. It may have other, harder to measure, effects.
2.23 In a number of cases intervention by the Commonwealth has led to positive negotiations involving the Aboriginal applicants, the State authorities and developers. Protection or partial protection of a site or area has been the outcome in some situations, even if no declaration was made.[31] In these and other cases the existence of the Act could be a restraint on State action, and could play a part in encouraging State and Territory governments to make their protection regimes more effective. States may also adopt a more concerned attitude in particular cases as a result of being drawn into negotiations and mediation initiated by the Commonwealth.[32] Without the Act as the ultimate threat or last resort, some consider that the protection of Aboriginal interests would be seriously weakened.[33]
2.24 Intervention by the Commonwealth has sometimes resulted in the negotiation of satisfactory arrangements, or to the withdrawal or modification of development proposals, even where no declaration is made. This may explain at least in part the lengthy periods which elapsed while some applications were pending. In some cases an application for a declaration has created an opportunity for the Minister to appoint a mediator who has been able to help the parties to negotiate a satisfactory outcome.[34] Some Aboriginal people have been able to take a role in management and care of heritage through mediated agreements. The Act may encourage responsible developers and land users to consult with Aboriginal people and look for ways to accommodate their wishes.[35] The Act has been used to prevent the sale and auction of objects when that would be contrary to Aboriginal tradition and in some cases this has led to the private purchase of objects and their return to communities.[36]
2.25 These modest achievements of the Act have to be weighed against an ever-growing number of problems and difficulties, the effect of which has been to prevent the objectives of the Act from being realised. The problems concern the procedural framework of the Act, the relationship with State and Territory laws and procedures, and the general failure of the Act in the eyes of Aboriginal people to be an effective means of protecting cultural heritage.
2.26 Many criticisms have been made of the lack of adequate procedures in the legislation.[37] The deficiencies have contributed to delays, litigation and cost for the applicants and other affected parties.[38] The intention behind the Act was to have a relatively simple procedure, comprising a political element - the discussions with State Ministers - followed by a short, basic reporting process. In an early decision the Federal Court held that an emergency declaration was purely a discretionary remedy. Provided that the Minister considered relevant issues, he was under no legal obligation to act.[39] In a later case, however, the court held that the Minister could not decline a s 10 application without requesting and considering a s 10 (4) report. The reporting process then became the focus of attention and in two long-running cases the conduct of inquiries leading to the s 10 reports and the Minister's decisions following those reports were challenged and overturned.[40] The court imposed strict requirements on the reporting process. These requirements have been burdensome and costly for everyone involved, and the outcomes have made the Act unworkable in accordance with its original intentions.
2.27 There have been considerable delays in responding to and deciding on applications for protection. The table above (para 2.17) shows that even s 9 applications have taken many months to be dealt with, though they are made on the basis of a serious and immediate threat. Aboriginal people are concerned that some sites for which protection was sought were damaged as a result of delay. For example, in the Helena Valley case in WA:
An application had been made in April 1993 under sections 18 (declined), 9 and 10. No declaration was made under s 9. A reporter was appointed in October 1993. Most of the area of significance was destroyed prior to the report to the Minister, in February 1994, and the Minister's decision in May 1994.[41]
2.28 The lengthy periods taken to deal with some applications concerns not only Aboriginal people, but also developers who may be subjected to a further Commonwealth process after going through the requirements of State or Territory land management laws. Even if the application under the Commonwealth Act is finally declined, the developer may have had investments tied up and have been subjected to long periods of uncertainty.[42] While it has been accepted by industry representatives that no mining project has ever been stopped through the operation of the Act, delays are said to have led to tension and frustration.[43] The Act is seen as a threat to business interests.[44]
2.30 If the Act is to operate effectively as a last resort, there should be an effective system of protection in the States and Territories. When the Bill was introduced, the Minister said that:
Where a State or Territory has no law capable of providing effective protection, or no action is being taken to give effect to that law, the Commonwealth will act in appropriate cases. It is open to the States to ensure that effective heritage protection is offered by their legislation.[45]
Twelve years later this hope has not been realised. The result is that the Commonwealth Act is often called on as a substitute for State protection:
The effectiveness of the Act in providing protection for areas of significance to Aboriginal and Torres Strait Islander people is limited by incompatible and inadequate legislation operating in a number of States. This has created a situation where the Commonwealth Act is invoked to provide primary site protection rather than, as the scheme of the Act suggests, a last resort of back-up to legislation in the States and Territories.[46]
2.31 The Act, and its operation, place emphasis on the consultations between the Commonwealth and State Ministers:
Let me assure the House that all reasonable attempts will be made to consult with State and Territory colleagues. On occasions the relevant Minister may be unavailable to discuss the matter, and the urgency of the threat to the area or object may be such that the Minister for Aboriginal Affairs must take a decision without the benefit of such consultation. There may be occasions when a State or Territory Minister will refuse to consult. The Bill is framed to ensure that such refusal will not frustrate its proper operation.[47]
What appears to have been contemplated in this statement was a relatively short period to consult with the State Minister and to find out what protection was available for an area under threat. But in practice, there have been sometimes long drawn out discussions with the State Ministers, without any apparent action at either Commonwealth or State level and without any interim protection of cultural heritage claimed to be at risk.[48] There is concern that the prolongation of inter-governmental discussions, from which the applicant and other interested persons are excluded, may defer unduly any decision by the Minister about the application until it becomes too late to act. Another related concern is that State opposition to intervention by the Commonwealth has contributed to the low level of protection accorded under the Act.[49]
2.32 State and Territory Governments concerns about the Act and its operation are explored in Chapter 5 and Annex VIII.
2.33 Aboriginal people are critical of the Act because the power to protect areas and objects is discretionary. The Minister is not obliged to act, even if an area is of significance to Aboriginal people.[50] He/she can revoke a declaration without any express requirement to consult the parties. The Act does not specify criteria which, when established, confer a right to a declaration. The political nature of the discretion is discussed in Chapter 10.
2.34 Aboriginal people are concerned that the Act does not protect from disclosure confidential information which may be communicated during the reporting process, including information which is restricted to persons of one sex under Aboriginal tradition. The confidentiality provisions of s 27 do not apply to the reporter and the Minister:
Much Aboriginal cultural and spiritual knowledge is of a secret and sacred nature. According to Aboriginal law it must be treated as highly confidential, even between Aboriginal people of the same group. The right to such knowledge may need to be earned and some members of an Aboriginal group may never be eligible to receive it. Procedures such as investigation, public reporting and registration, in themselves are contrary and damaging to Aboriginal traditions of privacy and the sanctity of spiritual intellectual property, quite apart from any threatened physical damage.[51]
The reporter has no guidelines as to how to receive and deal with such information. This is a serious subject of concern at the time this Report is being prepared (June 1996), because of the circumstances of the Hindmarsh Island (Kumarangk) case and of recent Federal Court decisions, the effect of which may be to discourage use of the Act by Aboriginal people. This issue is discussed further in Chapter 4.
2.35 Some consider that the reference in the Act to `Aboriginal tradition' disadvantages Aboriginal people who do not follow the traditional life style of those in remote communities.[52] The reality is that traditional values persist today in many communities whose lifestyles are removed from those who have been referred to as `traditional Aborigines'.[53] This is discussed further in Chapter 6.
2.36 The Act, which operates alongside State and Territory laws, and other laws dealing with heritage and land rights, adds to rather than overcomes confusion about the array of statutory regimes potentially available for heritage protection.[54] The Act is process-oriented in that protection of sites depends on an application being made under the Act; however this rarely results in specific protection. Procedural changes are discussed in Chapter 10.
2.37 The Act was introduced as an interim ad hoc measure pending land rights legislation, yet nothing has yet been done since to give it a broader focus or to fulfill the commitments given when it was introduced.[55] It does not address newly emerging issues concerning native title and self-determination. Unlike some State legislation, it gives no role to Aboriginal people in decisions relating to protection or in the administration of the Act.[56] Nor does it ensure that Aboriginal people will be consulted and have a right to negotiate questions of cultural heritage which arise in the development process. Furthermore, there is no provision to ensure that Aboriginal people will have an ongoing responsibility for the control or management of cultural heritage sites or for access to those sites.[57] Nor does it cover all aspects of cultural heritage important to Aboriginal people. For example, it makes no provision concerning intellectual property.[58]
2.38 Submissions point out that the preservation of Aboriginal cultural heritage requires much more than the prevention or prohibition of injury or desecration. It requires proactive measures to be undertaken. What is asked for is the commitment of resources to Aboriginal communities to take measures to preserve cultural heritage in all its forms.[59] These issues should be taken into account in the design and implementation of national laws and policies concerning indigenous cultural heritage. They are referred to in Chapter 3.
2.39 In its present state the Act has lost the confidence of many Aboriginal people, who see it as unable to meet the aspirations of Aboriginal and Torres Strait Islander people concerning the protection of their cultural heritage in the post-Mabo era. The desire expressed by many Aboriginal people is that the Commonwealth maintain and strengthen its role in regard to the protection of cultural heritage and make the Act more effective.
2.40 The aspirations of the mining industry have a different focus. For example, AMEC said that:
The mineral exploration and mining industry recognises the cultural significance of genuine areas and objects to present day Aboriginals and Torres Strait Islanders and respects the importance of protecting this heritage where practicable. AMEC cannot convey strongly enough however, its conviction that effective preservation of Aboriginal and Torres Strait Islander heritage can only be achieved through the implementation of a clear, practical and equitable statutory regime and accompanying process.[60]
Others sought the removal of duplication and the establishment of national guidelines for consultation and negotiation and integrating government decision-making processes.[61]
2.41 The concerns of State and Territory governments are to avoid duplication of functions and the frustration which arises when approved projects are subjected to further delays. They want clear procedures with reasonable time frames which avoid long delays and do not create unnecessary obstacles to economic development.[62]
2.42 The main task for the Review is to ensure that the Act is better able to realise its objective of protecting Aboriginal heritage. The objectives for the Act, arrived at after consideration of the submissions received and the consultations undertaken, are these:
2.43 Some of the tensions between the competing goals of development (which requires confident planning) and heritage protection could be resolved by better procedures to ensure early consideration of heritage issues in the planning process and effective procedures to ensure consultation and participation by Aboriginal people in genuine mediation or other processes whose purpose is to avoid injury to or desecration of sites.
2.44 The reform of the Act needs to be considered in the broader context of Aboriginal cultural heritage, its protection and promotion and the diverse laws and policies now in force. These matters are discussed in Chapter 3.
[10] Impact Evaluation, p 59.
[11] MCA, sub 27.
[12] Michel and McCain, sub 15.
[13] This phrase is part of the long title of the Act.
[14] Second Reading Speech, 6 June 1984, see Annex II.
[15] Hansard, Reps 9 May 1984, 2130. The original title of the Act was the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984.
[16] 1986, p 2420, Hansard: the Act is intended to cover areas and objects of cultural or spiritual significance which Aboriginal and Torres Strait Islander people closely identify with today.
[17] These issues are discussed in Henry and Greer, sub 37. Early Aboriginal heritage laws were introduced as a result of lobbying by archaeologists: AAA, sub 61; Rose, sub 46.
[18] MNTU, sub 17, p 4. This feature should be kept: AAA, sub 61.
[19] Allington, sub 16.
[20] AAPA, sub 49, p 17.
[21] Impact Evaluation, p 42 ff.
[22] Impact Evaluation, p 44.
[23] Impact Evaluation, p 43.
[24] Impact Evaluation, p 46.
[25] See Chapter 12 for further discussion of objects.
[26] Goolburri, sub 13, p 19. Although 25% of all applications are from Queensland, no declarations have been made about any area in this State. A s 9 declaration was made in respect of Boobera Lagoon, NSW. The matter is pending.
[27] Goolburri, sub 13, p 19.
[28] In the Hindmarsh Island (Kumarangk) case and the Broome Crocodile Farm case.
[29] The Wamba Wamba case (unsuccessful) and the Bropho case (successful).
[30] NSWALC, sub 43, p 2.
[31] For example, Bloomfield River (Winjal Winjal) Qld.
[32] Impact Evaluation, p 47; ATSIC, sub 54, p 4.
[33] NLC, sub 66, para p 4.
[34] See Chapter 9.
[35] CLC, sub 47, p 13.
[36] See Chapter 12.
[37] See, for example, WAG, sub 34, p 3.
[38] Similar problems have arisen under some State legislation. The following problems were identified in the Senior Report in relation to the Western Australian Act (page ix); conflict; prolonged and bitterly contested litigation; procedural uncertainty; need for procedures to avoid sites; better dispute mechanisms needed.
[39] Wamba Wamba Local Aboriginal Land Council v Minister Administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (1989) 23 FCR 239; 86 ALR 161, Lockhart, J.
[40] The Hindmarsh Island (Kumarangk) case and the Broome Crocodile Farm case.
[41] The Commonwealth Ombudsman's submission deals in some detail with this case: sub 41.
[42] AMEC, sub 48; MCA, sub 27; Council for Aboriginal Reconciliation Exploring for Common Ground: Aboriginal Reconciliation and the Australian Mining Industry 1993, p 31 recommends national standards for heritage legislation.
[43] Exploring for Common Ground, p 33.
[44] AMEC, sub 48, p 6.
[45] Second Reading Speech, Annex II.
[46] AAPA, sub 49, p 1.
[47] Second Reading Speech, Annex II
[48] There were some cases where negotiations involved the applicant, and had a positive outcome.
[49] Goldflam, Russell "Between a Rock and a Hard Place: The Failure of Commonwealth Sacred Sites Protection Legislation" in Aboriginal Law Bulletin Vol 3 No 74 June 1995: says that the Act has failed to save a single Aboriginal heritage site in the face of determined opposition by a State or Territory government.
[50] Wamba Wamba Local Aboriginal Land Council v Minister Administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (1989) 23 FCR 239 at 247-248; 86 ALR 161 at 170; NLC, sub 66, para 3.1.
[51] NLC, sub 66, p 5.
[52] Atkinson, sub 5, p 51.
[53] Impact Evaluation, p 6.
[54] CLC, sub 47, p 16.
[55] Recognition, Rights and Reform, para 6.5.
[56] CLC, sub 47, p 16.
[57] Recognition, Rights and Reform, para 6.19. The Act is not intended to grant permanent forms of protection, or to transfer title to Crown or to Aboriginal and Torres Strait Islander applicants, except in the case of skeletal remains.
[58] Except in Part IIA, which applies only in Victoria.
[59] CLC, sub 47, p 38.
[60] AMEC, sub 48, p 6.
[61] Exploring for Common Ground, p 31, recommends national standards for heritage legislation.
[62] See Chapter 5.
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