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This chapter describes the range of Commonwealth laws, policies and programmes concerning Aboriginal cultural heritage and explains how the Act relates to these. It points to the proliferation of laws and programmes concerning heritage and the lack of co-ordination of all these elements. It makes recommendations about how a more coherent and co-ordinated approach can be achieved to ensure that the Commonwealth meets its national and international responsibilities to protect Aboriginal cultural heritage.
3.1 The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) is one of a large number of Commonwealth Acts under which Aboriginal and Torres Strait Islander heritage may be protected. There are also various Acts in all the States and Territories.[65]
3.2 Protecting Aboriginal heritage is a significant national responsibility in respect of which the Commonwealth has potentially wide legislative powers. The Australian Constitution gives the Commonwealth the power to make special laws with respect to people of any race.[66] It can legislate to acquire property on just terms from any State or person for any purpose for which it has the power to make laws.[67] It also has the power to make laws with respect to copyright, patents of inventions and designs, and trade marks.[68] The Constitution also protects freedom of religion by providing that the Commonwealth shall not make any law for prohibiting the free exercise of any religion.[69]
3.3 The Australian Heritage Commission Act 1975 (Cth) established the Australian Heritage Commission. Its function is to help "identify, conserve, improve and present Australia's National Estate"[70], that is , "those places, being components of the natural environment of Australia or the cultural environment of Australia, that have aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community".[71] The National Estate does not specifically include objects. In 1994 there were 794 indigenous places registered as part of the National Estate out of a total of 18,190.[72] Individuals can approach the Commission to ask for registration of a place.
3.4 The AHC keeps the Register of the National Estate. It lists places on the Register after a technical assessment of significance. Listing in the Register gives limited protection in that imposes obligations on all Commonwealth Ministers, Departments and authorities. Ministers must do everything possible to ensure their departments and authorities for which they are responsible do not:
... take any action that adversely affects, as part of the national estate, a place that is in the Register unless he is satisfied that there is no feasible and prudent alternative to the taking of that action and that all measures that can reasonably be taken to minimise the adverse effect will be taken, s 30 (1).
3.5 Before taking any action that might "affect to a significant extent, as part of the national estate", a place in the Register, Ministers, Departments and authorities must notify the AHC to enable it to comment, s 30 (3).
3.6 The Australian Heritage Commission Act 1975 (Cth) says that a place is part of the National Estate if its significance is because of "its strong or special association with a particular community or cultural group for social, cultural or spiritual reasons".[73] The AHC has listed places in the Register that have symbolic and religious significance and has listed large cultural landscapes such as the Arafura Wetlands, for their social and cultural values. It has also listed dreaming tracks. Assessment is scientific but, as a matter of policy, the AHC does not list places for their indigenous values without consulting relevant Aboriginal and Torres Strait Islander communities.[74] AHC funds communities to identify places to go on the Register and to conserve places that are already on it. It also gives grants (through the States/Territories) for maintenance of knowledge, investigation and education under the National Estate Grants Program.
3.7 The AHC will act on behalf of Aboriginal people if a place, whether registered or not, is threatened. It informs the relevant Ministers and consults with the Aboriginal community and the people from whom the threat is coming.[75] However, there are no formal links between the AHC Act and the Act under review, or at the programme level. Listing in the Register of the National Estate is has no specific recognition for the purposes of assessments under the Act.
3.8 The World Heritage Properties Conservation Act 1983 (Cth) implements the UNESCO Convention for the Protection of the World Cultural and Natural Heritage (WHC) which Australia ratified in 1974. The Convention aims to protect cultural and natural heritage of "outstanding universal value". Kakadu National Park, Uluru-Kata Tjuta National Park and the Willandra Lakes are on the World Heritage List. The International Council on Monuments and Sites (ICOMOS) gives independent advice to the World Heritage Committee on areas nominated for listing. Changes to the operational guidelines for the implementation of the Convention mean that `cultural landscapes' can now be included in nominations. The concept of `cultural landscapes' is particularly appropriate for the recognition of Aboriginal heritage because it embraces interaction between people and the `natural' environment, and includes places having powerful religious, artistic or cultural associations even in the absence of material cultural evidence.[76] Uluru-Kata Tjuta National Park is the first area in Australia to be listed under this category. Prompted by the conflict over the Old Swan Brewery (Goonininup) site, and moved by a paper by Clarrie Isaacs on the Great Rainbow Serpent Dreaming Track associated with the site, the Australian division of ICOMOS is currently exploring ways of handling conflicting cultural values in a professional, just and effective way.[77]
3.9 The Act protects "identified properties" in Australia and its external territories. These are properties that are on the World Heritage list, nominated for listing, or the subject of a Commonwealth inquiry into whether they should be listed. The Act has specific provisions protecting "Aboriginal sites" which are, or are located on, an identified property:
...the protection or conservation of which is, whether by reason of the presence on the site of artefacts or relics or otherwise, of particular significance to the people of the Aboriginal race. (s 8(2))
3.10 If the Governor-General is satisfied that a site or artefact or relics on a site are at risk of damage he or she can make a declaration that prohibits, except with the written consent of the Minister, a range of activities on the site which might result in such damage, ss 8(3), 11. The Act protects Aboriginal places under the same broad definition as the Act under review. There is no procedure laid down for applications to protect areas under the Act and no reporting process is called for.
Confirmation of Commonwealth power to protect Aboriginal heritage
3.11 The Commonwealth first used this legislation to protect Aboriginal sites in the Tasmanian Wilderness World Heritage area which were threatened with flooding as a result of the Tasmanian Government's plans to dam the Franklin River. In the Tasmanian Dams case,[78] the High Court found that the World Heritage Properties Conservation Act 1983 (Cth), which implements the WHC, was a valid exercise of the constitutional power to make special laws in respect of people of the Aboriginal race:[79]
... something which is of significance to mankind may have a special and deeper significance to a particular people because it forms part of their cultural heritage. Thus an aboriginal archaeological site which is part of the cultural heritage of people of the aboriginal race has a special and deeper significance for aboriginal people than it has for mankind generally.[80]
3.12 There is no direct connection between the World Heritage Properties Conservation Act and the Act under review. Aboriginal involvement in the management of World Heritage Listed Properties has been an issue of contention. Where areas are listed for cultural values Aboriginal people may be involved in the management, for example, in Willandra Lakes and in the Uluru-Kata Tjuta National Park areas. In areas listed only for natural values, this may not necessarily occur, for example, in the Queensland Wet Tropics area. The Skyrail application under the Act was partly a result of Aboriginal people in the area seeking to be involved in the management of the area.
3.13 The decision of the High Court in the Mabo case[81] established that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of this country, in accordance with their laws and customs, to their traditional lands. The Native Title Act (NTA) gives legislative recognition and support to that entitlement by:
3.14 In broad terms, the Act provides that in future, acts that affect native title (for example, grants of mining or exploration and prospecting leases or compulsory acquisition of land) can only be validly done if they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special "right to negotiate".[82] This right to negotiate gives registered native title claimants or holders the chance to negotiate (among other things) about protecting, managing and access to, heritage areas or sites in native title-affected land or water where a government proposes to allow mining, mining exploration or other activities there, ss 26, 29, 35.[83]
3.15 If the parties cannot reach agreement about a proposed activity (future act) then the Native Title Tribunal (or recognised State/Territory body) must decide whether the mining or other activity can go ahead and if so, on what basis. The relevant body must take into account:
any native title rights and interests,
the way of life, culture and traditions of any of the native title parties,
the development of the social, cultural and economic structures of those
parties,
freedom of access by those parties to the land or waters concerned and
their freedom to carry out rites, ceremonies or other activities of cultural
significance on the lands or waters in accordance with their traditions,
any area or site, on the land or waters concerned, of particular significance
to the native title parties in accordance with their traditions,[84]
the natural environment of the land or waters concerned;
A determination about whether or not an activity can go ahead can be overruled by the relevant State/Territory or Commonwealth Minister (depending on which body makes the decision) s 42. A decision authorising an act, and which has regard to the effect of a proposed act on a site of particular significance, does not affect the operation of Commonwealth, or State/Territory site protection laws.[86] A site can still be protected under the applicable heritage protection laws.
3.16 A government can avoid the negotiation procedure (using the `expedited procedure') if the mining or other activity is likely to have only limited effects, that is, if it:
3.17 Interested parties are notified and can object if the government is seeking to avoid having to negotiate in this way.[88] If these parties object, the tribunal or recognised State/Territory body must decide whether or not the act proposed is likely to have only the limited effects that would enable the government to avoid the negotiation procedure.[89] The Commonwealth discussion paper Towards a more workable Native Title Act: Outline of proposed amendments suggests that the procedure to avoid negotiating (the expedited procedure) may become redundant if exploration is excluded from the right to negotiate.[90]
3.18 The relationship between native title and heritage protection is complex. Certainly, the recognition that there is a place of particular significance in an area may make it easier to succeed in a native title claim because "areas and objects of cultural significance are likely to be evidence of the continued existence of native title".[91] Views differ as to whether the existence of a site of significance in a particular area is a form of native title interest or not.[92] There may be a connection, but the Act is not about proprietary interests in land. Native title procedures are likely to be the first mechanism native title holders, claimants or potential claimants use to protect their heritage from changes to land use. Native Title Tribunal decisions have in some cases found that it was not likely that a site would be interfered with because State legislation would give effective protection.[93]
3.19 This view has not been adopted in all cases,[94] and it must be doubtful whether State/Territory legislation could be relied on in many circumstances.[95] In any event Towards a more workable Native Title Act: Outline of proposed amendments proposes that the right to negotiate about exploration or prospecting activities would be removed from the Act on the ground that heritage legislation would continue to provide protection for sites of significance from the impact of these activities. The right to negotiate would remain in regard to the production stage of mining activity.[96] This would be an unfortunate development so far as the protection of cultural heritage is concerned as neither State/Territory nor Commonwealth heritage protection legislation guarantees an adequate process of negotiation, a process which is essential if heritage is to be given proper consideration in decisions concerning land use.[97] If the proposal is implemented native title claimants and holders may make greater use of the Act to gain protection for their areas or sites.
3.20 The Protection of Movable Cultural Heritage Act 1986 (Cth) covers all movable cultural property of significance to Australia. It controls overseas trade in the most significant objects of Australia's movable cultural heritage and provides for the return of objects illegally imported into Australia and other nations. Passing it enabled Australia to fulfill the requirements for ratification of UNESCO's 1970 Convention on the Means of Prohibiting and Preventing the Illegal Import, Export and Transfer of Ownership of Cultural Property. A control list divides Australian protected objects into 13 categories, including Aboriginal and Torres Strait Islander heritage, archaeology and ethnography. Some Aboriginal and Torres Strait Islander objects cannot be exported at all. These include bark and log coffins, human remains, rock art, carved trees and sacred and secret ritual objects. Exporters must apply for a permit to export:
3.21 The National Cultural Heritage Committee[98] is considering changes to update these classifications and categories to bring them into line with current views of the significance of this heritage.[99] Protection of movable cultural heritage is, and must remain, a national responsibility.[100]
3.22 The Environment Protection (Impact of Proposals) Act 1974 (Cth) gives the Commonwealth Minister the power to take steps to protect the environment in relation to projects and decisions under the control of the Commonwealth Government. `Environment' includes all aspects of the surroundings of human beings, whether affecting human beings as individuals or in social groupings. In theory this could include significant Aboriginal sites. The object of the Act is to ensure, as far as possible, that the Commonwealth Government and its authorities examine and take into account matters affecting the environment when they:
3.23 Under administrative procedures provided for under the Act the Minister can direct that environmental impact statements or public environment reports be prepared and be made public. He can hold inquiries and make recommendations or suggestions about the matters in those reports or statements, and require conditions to be attached to relevant approvals or agreements, s 6. An inquiry held under the Act has extensive powers, for example to call witnesses and to require documents to be produced, s 11.
3.24 This model allows for the investigation of impacts before development. The impact on Aboriginal cultural sites could be considered in these environmental impact statements or reports, as happens in NSW. However under this Act such consideration would be limited to projects over which the Commonwealth Government has control.
3.25 The National Parks and Wildlife Conservation Act, 1975 (Cth), which is administered by the Australian Nature Conservation Agency (ANCA), provides a model for involving Aboriginal people in planning activities on, and management of, public land. The Act deals with the establishment and management of parks, reserves and wilderness zones on Commonwealth land. Generally speaking, mineral extraction is prohibited in these declared areas except with the approval of the Governor-General and in accordance with a management plan, s 10. Activities such as building works and timber felling are prohibited unless done in accordance with a management plan.
3.26 In preparing the management plan the ANCA Director must notify the public. Anyone, including named Aboriginal councils, can make representations, s 11(3). The Director must take into account the interests of Aboriginal owners and other Aboriginal people interested in the land within the park or reserve, s 11(ba). The Act provides for Boards of Management. Where the reserve or park is situated on Aboriginal land, the relevant council must agree to a board being set up, and there must be a majority of Aboriginal people on the board nominated by the traditional owners, s 14C, s 14D. The Director of Parks and Wildlife must consult with the relevant land council where a park or reserve, or conservation zone is located on their land, s 16. These arrangements apply to Uluru-Kata Tjuta National Park which is Aboriginal land leased back as a national park. There are similar provisions in Northern Territory legislation, for example, the Cobourg Peninsula Aboriginal Land Sanctuary Act 1989 (NT) and the Nitmiluk (Katherine Gorge) National Park Act 1989 (NT). Native title claimant groups have sometimes adopted the joint management approach as their preferred land management model, if their claim is successful.[101]
3.27 The Act authorises the Director to help and co-operate with Aboriginal people in managing Aboriginal land outside parks, reserves and conservation zones. He or she must consult with the relevant Aboriginal people and the relevant State or Territory authority, s 18. In line with Recommendation 315 of the Royal Commission into Aboriginal Deaths in Custody, the ANCA funds a Contract Employment Program for Aboriginal People in Natural and Cultural Resource Management (CEPANCRM). Projects funded must aim to protect or enhance the natural/cultural environment and employ Aboriginal people in natural and cultural resource management, for example, to manage, identify or interpret sites or to collect oral histories. The projects must be on Aboriginal- held land, Crown land, national marine parks or associated land reserves.
3.28 There are a number of other laws touched on in this report which do, or could, play a role in the protection of Aboriginal cultural heritage, for example, copyright and designs laws.
3.29 One object of ATSIC is to further the economic, social and cultural development of Aboriginal and Islander people.[102] The Commission's functions include the protection of' cultural material and information considered sacred or otherwise significant by Aboriginal and Islander people, s 7 (1)(g). Regional Councils have a function to formulate a regional plan for improving the economic, social and cultural status of Aboriginal and Torres Strait Islander residents of the region, s 94(1).
3.30 ATSIC has a Heritage Protection Program which is a component of the Land Heritage and Environment sub-Program, which in turn is a part of the Commission's overall social programme. The Land, Heritage and Culture Branch administers the Act. The objectives of the programme are:
3.31 To meet these objectives ATSIC provides early action and advice to the Minister on requests under the Act for protection of sites and objects of significance. It provides funds to establish and operate keeping places, community museums and cultural resource centres. It also facilitates the return of items of cultural property to Australia. Funding for this programme is only a very small part of the overall ATSIC budget.[103]
3.32 In the past, ATSIC has been criticised by Aboriginal people for its failure to equally address the need for cultural development as well as social and economic needs.[104] ATSIC is now developing a new cultural and policy framework to ensure that the Commonwealth Government has a co-ordinated and strategic approach to managing Australia's indigenous cultures. It is consulting on a discussion paper it released in November 1995 with the aim of having a new draft policy to the Board of the Commission in October this year. Proposals suggested in the paper include a new indigenous cultural policy structure within ATSIC, such as a new advisory body, a new overall cultural development programme, and a number of sub-programmes in areas of policy priority. Other proposals include a co-ordinated national strategy for indigenous language maintenance and teaching, and for recording indigenous cultural sites and property of cultural significance. A national network of keeping places and a national keeping place is proposed.[105]
3.33 The DCA is directly responsible for programmes which relate to ownership and protection of Aboriginal and Torres Strait Islander culturally significant places, areas and objects, including human remains. These include legislative protection through the Protection of Movable Cultural Heritage Act 1986 and new programmes set up in response toDistinctly Australian initiatives of 1993-94.
3.34 The Heritage Branch of DCA manages, in co-ordination with AHC, AIATSIS and ANCA, the Indigenous Cultural Heritage Program set up as part of the Distinctly Australian policy statement. The programme is concerned with cultural heritage management and has focused on three aspects of this.
3.35 In October 1993 Commonwealth Ministers with responsibilities for Aboriginal and Torres Strait Islander affairs endorsed National Principles for the Return of Aboriginal and Torres Strait Islander Cultural Property. In line with these principles, DCA funds two national programmes for the return of Aboriginal and Torres Strait Islander ancestral remains, and Aboriginal secret/sacred objects. The projects will try to determine the origins of unprovenanced remains and catalogue objects held in State/Territory museums and the National Museum of Australia to provide for their possible return to appropriate communities and owners. The Museums Australia Standing Committee (Museums and Indigenous People) is the steering committee for these projects; it is also developing a strategic plan for other policy aspects including community return of ancestral remains and protection of cultural property.[106] The programme includes grants to help with transporting cultural property from museums to the relevant community and to enable community members to discuss the physical return of material to their community.
3.36 AIATSIS was established in the early 1960s to record the culture and history of Aboriginal people. In the 1970s it administered the National Sites Register Program. Under this programme site recorders throughout the country were funded to record sites which were then registered on the National Sites Register. The Register, now called the Sites Inventory or Sites Archive, is not actively maintained and is no longer comprehensive. It is added to only when AIATSIS funds people to do recording work. The Act under review, s 14(2 ) provides that declarations in relation to an area must be lodged with AIATSIS and entered on the Register. AIATSIS is empowered to promote the study and protection of cultural heritage matters and to encourage community understanding in relation to Aboriginal and Torres Strait Islander people and their societies.[107] Activities include its rock art protection programme which fills gaps in State/Territory programmes. It also maintains a cultural resource collection consisting of materials relating to Aboriginal and Torres Strait Islander studies. Native title claims have resulted in increasing demands for access to that collection.[108]
3.37 The House of Representatives Standing Committee on Aboriginal and Torres Strait Island Affairs was inquiring into cultural heritage in 1995. Its work had not been completed before the March 1996 federal election.
3.38 As a state party to a number of international instruments, Australia has obligations in relation to Aboriginal culture and heritage. The United Nations Decade of the World's Indigenous People (1995-2004) may see the adoption of a draft declaration on the Rights of Indigenous Peoples, which directly addresses these issues.
3.39 As a party to the International Convention on the Elimination
of all Forms of Racial Discrimination[109]
Australia must take steps to eliminate all forms of racial discrimination,
art 2. In the Convention `racial discrimination' means any distinction,
exclusion, restriction or preference based on race, colour, descent or
national or ethnic origin which has the purpose or effect of nullifying
or impairing the recognition, enjoyment or exercise on an equal footing
of human rights and fundamental freedoms in the political, economic, social,
cultural or any other field of public life, art 1. The Convention requires
the Commonwealth to prohibit and eliminate racial discrimination, and to
guarantee the right of everyone to equality before the law without distinction
as to race, colour or ethnic origin, and in particular the right to a range
of civil rights including the right to freedom of thought, conscience and
religion,
art 5(d)(vii).
3.40 The Racial Discrimination Act 1975 (Cth) implements the Convention and it binds States and Territories as well as the Commonwealth. Four of the leading cases brought before the High Court under the RDA involved Aboriginal or Torres Strait Islander land issues.[110]
3.41 The Convention enables the Commonwealth to take special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, in order to guarantee full and equal enjoyment of human rights and fundamental freedoms, arts 1(4), 2(2). Laws which have been upheld on the basis that they are a `special measure' include Pitjantjatjara Land Protection Act 1981 (SA)[111] and s 35 of the Aboriginal Heritage Act 1988 (SA) prohibiting the release of Aboriginal information contrary to tradition.[112]
3.42 The International Covenant on Economic, Social and Cultural Rights[113] (ECOSOC) provides that:
All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
ECOSOC requires that all State parties to the Covenant "promote the realisation of the right of self-determination ..."[114]
3.43 The International Covenant on Civil and Political Rights[115] (ICCPR) provides that persons belonging to religious or linguistic minorities:
... shall not be denied the right, in community with other members of their group, to enjoy their culture, to profess and practice their own religion, or to use his or her own language. (art 27)
The ICCPR also provides for freedom of religion, which includes the freedom to adopt and manifest a religion or belief of choice, and respect for the liberty of parents to ensure the religious education of their children in conformity with their own convictions, art 18.
3.44 Principles outlined in the Declaration Of The Principles of International Cultural Co-operation, UNESCO, 1966, include that
* Each culture has a dignity and a value which must be respected and preserved;
* Every people has the right and the duty to develop its culture;
* In their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind.[116]
3.45 The Convention For The Protection Of The World Cultural and Natural Heritage[117] imposes a duty on Australia to ensure that its cultural and natural heritage of outstanding universal value is identified, protected, conserved, presented and transmitted to future generations. To fulfill this duty Australia must endeavour to integrate the protection of heritage into comprehensive planning programmes, set up services for protecting and conserving heritage, conduct research into the dangers that threaten heritage, do what is necessary to identify, protect and restore heritage and to foster centres for training and research on heritage.
3.46 ILO Convention 107 was formulated in 1957 and its themes of protection and integration are outdated. Australia has not ratified this Convention. However, in its time, it was notable for including explicit statements about land rights, requiring that regard be had to indigenous peoples' cultural and religious values and forms of social control and that they should be actively involved in measures taken for their protection and integration.[118] It has been reformulated in a more modern form in ILO Convention 169 which states that in applying national laws and regulations to indigenous peoples' due regard shall be had to their customs or customary laws, art 8.[119]
3.47 As part of the United Nations decade of the World's Indigenous People (1995-2004), the Working Group on Indigenous Peoples' Rights has developed a draft Declaration on the Rights of Indigenous Peoples.[120] The draft is now in the process of discussion at the UN Commission on Human Rights. It articulates the fundamental rights of indigenous people, including the right to pursue cultural development, art 3, to practise and revitalise their cultural traditions and customs, art 12, and in particular:
...the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of ceremonial objects; and the right to the repatriation of human remains.[121]
The declaration requires State parties to take effective measures, in conjunction with the indigenous peoples concerned, to ensure that indigenous sacred places, including burial sites, be preserved, respected and protected.[122]
3.48 The plethora of Commonwealth legislation and administrative programmes under which Aboriginal cultural heritage may be protected does not provide a comprehensive or integrated Aboriginal cultural heritage protection regime.[123] Legislation has been enacted in response to international initiatives or other issues of the moment[124] rather than as a result of a systematic assessment of what is needed to ensure that Aboriginal people are able to maintain, protect, develop and fully enjoy their culture and heritage. For example, the Act under review was enacted initially as an interim measure,pending land rights legislation, but it remained in force after it became clear that national land rights legislation was no longer on the government's political agenda. Even so, the Act has not been reviewed until now.
3.49 Heritage protection is an important national issue but the main responsibility is left to States and Territories, whose laws vary considerably.[125] This means that whether or not an area or object of particular significance to Aboriginal people is protected may depend on the circumstance of its location in a particular State or Territory. The Ngaanyatjarra Pitjantjatjara Yankunyatjatjara Women's Council Aboriginal Corporation, whose member communities live in two States and a Territory, point out that heritage issues affecting their members cannot be dealt with in one legal framework.[126] The Commonwealth Act is an act of last resort, and the main priority of ATSIC has been the administration of that Act rather than developing comprehensive policies or seeking the introduction of effective uniform laws. Although there have been some attempts to achieve uniformity,[127] these have not yet been successful.
3.50 The fragmentary and ad hoc development of the law has meant that there are a number of areas of Aboriginal culture and heritage that are not adequately protected, or not protected at all:
Indigenous cultural heritage, based on a holistic and integrated world view, in which the various aspects of existence were intricately interwoven and interdependent, became fragmented and redefined to suit the administrative convenience of the coloniser. Thus lands, sites of significance, cultural objects, biodiversity, languages, cultural knowledge, arts, etc, all became the responsibility of different government departments at both federal and state levels, each charged with administering various bodies of legislation.[128]
Some State and Territory laws do not adequately protect movable Aboriginal heritage, for example, objects, so that objects moved from one State to another can avoid the law.[129] The Act provides limited power to protect movable objects. There is not effective protection for intellectual property, designs, traditional food resources, traditional and contemporary cultural expressions, rituals or legends.[130] The Act does not cover these.[131] Action should be taken to ensure better protection of intellectual property, and a broad approach should be taken to the protection of Aboriginal cultural heritage at all levels. The Review makes a policy recommendation about this matter below.
3.51 The remedies where heritage is endangered "although profuse, are fragmentary, and the relationship between the various protective regimes is not always clear".[132] The World Heritage Properties Conservation Act 1983 (Cth) may give the highest level of protection, but this is limited to World Heritage properties and protection is at the complete discretion of the relevant Minister. The Australian Heritage Commission processes can be used to register places whether or not they are under threat, but they provide a lower level of protection. The Aboriginal community may choose to take action under two or three pieces of legislation at the same time. For example, in the Old Swan Brewery (Goonininup) case, (1988-1994) National Estate Register listing was sought from the Australian Heritage Commission while applications were being made under the Act. The site was listed in May 1991 for both cultural and general historical reasons. There were native title claims being pursued in parallel to proceedings under the Act in several cases, such as Skyrail, Barron Falls National Park, North Queensland (1994); Broome Crocodile Farm, Broome WA (1993, 1994); and Button's Crossing, Kununurra (1993).
3.52 There are no formal links between the Australian Heritage Commission and ATSIC, which administers the Act under review. There have been informal exchanges in which ATSIC has asked for AHC advice on the significance of places.[133] The lack of formal connections leads to some duplication in carrying out significance assessments at the Commonwealth level.[134] In the Old Swan Brewery (Goonininup) case for example, the brewery precinct was assessed for the purpose of the first s 10 application, assessed again by the AHC for National Estate listing, and assessed again for the second s 10 application. There have been a number of other applications under the Act in which the Heritage Commission had either funded surveys for significance assessment, or had assessed them as significant, or had listed them. These include:
Maxwell River Cave, South West Tasmania
- application concerned an ancient rock art cave found during an AHC funded survey.
Moana Beach, SA
- stone arrangements on the site associated with a dreaming site that is registered on the National Estate.
Amity Point Stradbroke Island, Qld
- AHC survey had established significance of the sites in question.
Burleigh Mountain National Park, Qld[135]
- site in question had been nominated for listing with the AHC at the time damage occurred.
The AHC assessments may have been given some consideration at an informal level in the process under the Act, but they had no recognised legal status. Each process should take advantage of and complement the work and knowledge of the others.
3.53 Because there are different criteria for significance in some of the different pieces of legislation, it may not be possible for one agency to fully take into account the assessment of the other. In the case of the Old Swan Brewery (Goonininup), the National Estate listing included both Aboriginal and non-Aboriginal associations in the Statement of Significance; in relation to the Aboriginal significance it stated:
The precinct is of social significance to Aboriginal people, and as a resting place for the Wagyl, of religious significance to some of them.[136]
3.54 Both ATSIC and DCA have program responsibility for Aboriginal heritage protection. AIATSIS also has a role, for example, in the protection of rock art. Each should be able to take full advantage of the work and knowledge of the other.
3.55 Aboriginal people are sometimes recognised as having a role in the protection of their heritage in practice, even where legislation makes no such provision. Some Commonwealth legislation, although it can protect Aboriginal heritage, does not specifically refer to it. (This is also the case in some States.[137]) It protects Aboriginal heritage because it is of value to the regional, national and world community as a whole, and is part of Australian or world heritage. Tests of significance in this kind of legislation tend to emphasise objective factors. The account taken of the views and aspirations of Aboriginal people may depend more on the way the legislation is applied in practice than on its drafting. For example, although the Australian Heritage Commission Act 1975 (Cth) does not specifically refer to Aboriginal heritage, in practice, Aboriginal people have an opportunity for consultation and involvement under AHC processes.
3.56 Although the Act under review is concerned with protecting areas and objects "of particular significance to Aboriginals", it does not provide Aboriginal people with a specific role in deciding what should be protected. The only right they have is to apply for protection. Aboriginal people do not decide whether or not a site is significant or, if so, whether or not it should be protected. Some State/Territory legislation is equally defective. For example, in some States, Aboriginal people have little legal recognition and no right to be consulted when developments are planned which may affect their heritage.[138] Submissions express concern that Aboriginal people are not extensively employed in heritage protection administration and ask for more support for employment programmes.[139] The Commonwealth, although it has international responsibilities, has not ensured that legislation at State and Territory level complies with these obligations.
3.57 Enjoyment of culture has many dimensions. Legislative protection, when a threat to cultural heritage arises, is only one of these. Programmes to support and develop Aboriginal culture, including heritage, and to enable its transmission may be of far greater importance to the long term protection of heritage than laws or procedures to deal with immediate threats. Keeping places and language programmes are critical. Also essential to enjoyment of culture and practise of religion is access to sacred or important sites.[140] Educational programmes for non-Aboriginal people are part of the answer.[141]
It would seem to us that protection of cultural heritage is better achieved from within the culture, if migaloo had a better understanding of traditional cultures and were actually involved as Murree people are, then the preservation and protection of culture could be much better achieved. A key to this of course is education of migaloo to understand, respect, appreciate and participate in the traditional culture of his country. If migaloo see this cultural heritage on these terms and are able to feel that they are actually part of it then it seems quite reasonable that they'd be more inclined to help Murree people preserve and protect it. We feel that education is part of the answer... We see that awareness of Murree cultures these days is generally part of the curriculum of many schools across the country, but still we believe that the more exposure that school children have to traditional cultures the more it will benefit them, us and this nation. Integration of traditional peoples and culture is critical to the development of this nation and must begin and be reinforced in the education systems.[142]
At the moment there is no comprehensive strategy to achieve these aspects. DCA has some functions in this area and so does ATSIC. There needs to be more co-ordination between relevant agencies and more emphasis in heritage programmes for nurture and support for Aboriginal heritage. This is a point made in ATSIC's discussion paper Cultural Policy Framework.
3.58 As yet, heritage, and in particular Aboriginal heritage, is not fully integrated into comprehensive planning processes.[143] This issue is discussed in Chapter 6.
3.59 UN obligations,[144] recommendations of the Australian Law Reform Commission[145] and the recommendations of the Royal Commission into Aboriginal Deaths in Custody[146] require that as far as possible heritage protection laws should recognise Aboriginal customary law. Neither State nor Commonwealth laws adequately reflect this. For example, to achieve protection, Aboriginal people may be required to divulge restricted information contrary to customary law.[147] No recognition is given to traditional decision-making processes.
3.60 UN instruments recognise the duty of Aboriginal people to develop their culture, and their right to develop and evolve their culture. This requires recognition that Aboriginal culture is living and developing and may change over time. The Act recognises living culture, but not all State laws and practice do.[148] Some of these laws are based on the outdated idea that Aboriginal culture has died out, and as a result only physical manifestations of culture such as rock art, bones and so on need to be protected. Neither Commonwealth or State laws handle well the fact that an evolving culture may give rise to disputes within Aboriginal communities.
3.61 The Review has some concerns that many Aboriginal people do not know about the Act or about State or Territory legislation and how they fit together. People who are unaware of laws cannot use them. In referring to the Act, the Ombudsman said:
I have detected comment in the media to the effect that some Aboriginal people are perceived as having a good grasp of the legislation (indeed, to the extent, allegedly, of being able to use it repeatedly and to ulterior ends), but I am concerned that most indigenous Australians or their representatives may have no knowledge and no effective access to these legislative protections.[149]
The consultations undertaken by the Review confirm the view that knowledge of the Act among Aboriginal people and, in particular, understanding of how to use it, is quite limited outside legal services, land councils and the like. Submissions and consultations also show that communities and cultural officers want education and training in understanding the Act and also State and Territory legislation.[150] It is noted, however, that during the period of this Review ATSIC has published Protecting Heritage: A plain English introduction to legislation protecting Aboriginal and Torres Strait Islander Heritage in Australia.[151] This is a useful step and needs to be followed with further measures.
3.62 The Commonwealth has international, moral and legislative obligations to ensure that Aboriginal heritage in its broadest sense is nurtured and protected in a comprehensive and consistent way. Although in legislative terms the Commonwealth responsibility for Aboriginal heritage is a last resort mechanism, its obligations are much broader. The starting point for ensuring that it meets those obligations, is to have a national policy on heritage protection with a pro-active focus. The policy should cover all aspects of culture and heritage that are important to Aboriginal people and should be developed by an Aboriginal-controlled process. It should take into account the considerable amount of work that has already been done by a number of bodies including the Council for Aboriginal Reconciliation, ATSIC, in its report Recognition Rights and Reform[152] and in developing a cultural policy framework,[153] the Royal Commission into Aboriginal Deaths in Custody and the Aboriginal and Torres Strait Islander Social Justice Commissioner.[154]
3.63 This national policy should form the basis for legislation and programme development at Commonwealth level, and for initiatives to ensure that Aboriginal heritage is adequately nurtured and protected at State and Territory level.[155] On the basis of the work of the Review there appear to be a number of key areas or principles that need to be covered by a national policy. The rationale for these principles and the specific implications for heritage protection law are discussed in detail in other sections of the report. They are set out here because the Review considers that they are critical to achieving comprehensive, appropriate and effective protection for Aboriginal cultural heritage. They form the basis of the Review's recommendations.
3.64 The policy should cover aspects of Aboriginal culture and heritage that Aboriginal people want covered, not only areas, sites or objects. For example, it should also include:
3.65 An important element of any heritage protection should be to promote the development of Aboriginal culture and heritage. Measures to enable Aboriginal people to nurture and support their own heritage play a much more significant role in heritage protection than measures to deal with situations of crisis. Measures should include training, education for non-Aboriginal people, restoration, preservation, rediscovery, facilitating access, research, language documentation and recording and keeping places.
3.66 Recognised principles of self-determination require a high level of Aboriginal involvement in Aboriginal heritage protection. This should include planning, identification (if identification is required) and management of areas, assessing significance and threat, prosecution of those injuring heritage, and decisions about whether or not to protect heritage. As far as possible Aboriginal people should administer Aboriginal heritage protection programmes. Aboriginal access to areas and sites is another key element. Measures for increasing Aboriginal involvement in heritage protection are discussed in a number of parts of this report.[157]
3.67 Processes for cultural heritage protection should recognise Aboriginal customary law and cultural practice on matters of how knowledge is held and transmitted, on who should have access to knowledge and information, and who can divulge knowledge or information. They should also recognise Aboriginal customary law and views on what is significant according to tradition and what constitutes a threat. The issue of protecting restricted information is discussed in Chapter 4. Decision-making about the question of significance under the Act is discussed in Chapter 8.
3.68 Heritage protection laws and programmes should be based on the assumption that Aboriginal culture is living and evolving. It should not be confined to protecting `relics' or areas where there is physical manifestation of human habitation. It should not lock Aboriginal people into a concept of tradition that predates the invasion of Europeans. These issues are discussed in Chapter 6.
3.69 Because the protection of Aboriginal cultural heritage is an important national responsibility the Commonwealth must ensure, even if it is not directly involved, that Australia has effective heritage protection laws. National policy should cover how that effective legal protection is to be achieved. It should include information and education programmes for Aboriginal people to ensure that they know about heritage protection laws and how to use them effectively to protect their heritage. Achieving effective legal protection at State and Territory level is discussed in Chapter 6. The Commonwealth approach is discussed in Chapters 7 and 10.
3.70 There should be a National Policy for all aspects of indigenous heritage protection. The policy should form the basis of heritage protection standards, laws and programmes at all levels of government and wherever they affect Aboriginal heritage. The policy should cover all aspects of Aboriginal heritage. Its elements should include:
3.1 A national policy should be adopted as the basis for laws and programmes relating to Aboriginal cultural heritage at all levels of government. That policy should cover all aspects of Aboriginal cultural heritage, and should include such matters as positive support for Aboriginal culture and heritage, education of non-Aboriginal people, Aboriginal control of cultural heritage, recognition of Aboriginal customary law and tradition, and effective legal protection of cultural heritage.
3.71 There is no one body at Commonwealth level with the specific responsibility for overseeing Aboriginal heritage on a national basis. The responsibility for various aspects of Aboriginal heritage protection is distributed across a number of agencies. This has led to a fragmentary approach and gaps in programmes and protection. It has also led to innovative approaches and to the infusion of Aboriginal heritage issues into a whole range of government activities. This distribution could be kept. There should be one body responsible for monitoring Aboriginal heritage protection overall and co-ordinating laws and programmes that have an impact on Aboriginal heritage. It should consist largely or entirely of Aboriginal people, or act on the advice of an Aboriginal- controlled body. This role could be given to an existing or a new agency. The role of the body would be to:
3.2 There should be a body with specific responsibility for monitoring Aboriginal cultural heritage protection nationally, to co-ordinate laws and programmes that have an impact on Aboriginal heritage and to develop and promote the national heritage protection policy at all levels of government. It should consist entirely or largely of Aboriginal people, or act on the advice of an Aboriginal-controlled body.
3.72 To avoid delay, and waste of resources, duplication of significance assessment at Commonwealth level should be minimised. This would be made easier if Aboriginal areas, sites or objects were assessed on a similar basis in all Commonwealth laws including the Native Title Act 1993 (Cth),World Heritage Properties Conservation Act 1983 (Cth),Australian Heritage Commission Act 1975 (Cth) and the Act under review. The body responsible for monitoring and co-ordinating policy should consider whether this can be done.
3.73 As a first step the Act under review could be amended to provide that where an area or object has been assessed as significant on a substantially similar basis, and on substantially similar issues, the Commonwealth heritage assessment process should be able to take that assessment into account. Even if the current differences remain, an assessment by one of these bodies should be able to be relied on for the purpose of considering applications for declarations under ss 9 and 18. This issue is considered in Chapter 8.
3.3 The body responsible for co-ordinating Aboriginal heritage protection nationally (see recommendation 3.2) should investigate whether Aboriginal heritage can be assessed on a similar basis under all Commonwealth legislation (whether general or specific) under which it is currently assessed with a view to working out how duplication in significance assessment can be eliminated.
[63] Sullivan, S "The Custodianship of Aboriginal Sites in Southeastern Australia" in McBryde, I (ed) Who Owns the Past? 1983, page 139.
[64] Parsons, sub 24.
[65] See Chapter 5 and Annex VIII.
[66] The Constitution s 51(xxvi).
[67] The Constitution s 51(xxxi).
[68] The Constitution s 51(xviii).
[69] The Constitution s 116.
[70] AHC, sub 52.
[71] Australian Heritage Commission Act 1975 (Cth).
[72] Council for Aboriginal Reconciliation Valuing Cultures: Recognising Indigenous Cultures as a Valued Part of Australian Heritage Key Issues Paper No 3 AGPS 1994, page 26.
[73] Australian Heritage Commission Act 1975 (Cth) s 4(1A)(g).
[74] AHC, sub 52.
[75] Westphalen, sub 38.
[76] Council for Aboriginal Reconciliation Valuing Cultures: Recognising Indigenous Cultures as a Valued Part of Australian Heritage Key Issues Paper No 3 AGPS 1994, page 33.
[77] Domicelj, J and Marshall, D "Diversity, Place and the Ethics of Conservation" in Scientific Journal: ICOMOS Articles of members 1994, page 28.
[78] The Commonwealth v Tasmania (1983) 57 ALJR 450.
[79] The Constitution s 51(xxvi).
[80] The Commonwealth v Tasmania (1983) 57 ALJR 450 at 501 per Mason J.
[81] Mabo v State of Queensland [No 2] (1992) 175 CLR 1.
[82] See the Preamble to the Native Title Act 1993 (Cth).
[83] Native Title Act 1993 (Cth) ss 26, 29 and 35.
[84] Note that the definitions of area and site of particular significance coincide with those used in the Act being reviewed. The findings of the Native Title Tribunal on this issue has no consequences under the Act being reviewed.
[85] Some activities may be excluded from the right to negotiate process by a written determination of the Commonwealth Minister. This may occur only where the Minister (a) considers the act will have minimal effect; (b) has informed Aboriginal and Torres Strait Islander representative bodies and the public; (c) has invited submissions; and (d) is satisfied that native title holders will be consulted about access authorised by the excluded act: Native Title Act 1993 (Cth) ss 26(3) and (4).
[86] Native Title Act 1993 (Cth) s 39(2).
[87] Native Title Act 1993 (Cth) s 237.
[88] Native Title Act 1993 (Cth) s 32.
[89] Native Title Act 1993 (Cth) s 32(4).
[90] Commonwealth of Australia Towards a More Workable Native Title Act: An Outline of Proposed Amendments 1996, page 15.
[91] MNTU, sub 17.
[92] See, for example CLC sub 47: "... it can be argued that the interest of custodians in a sacred site is a form of native title interest that stems from the customary legal interests enjoyed by those custodians".
[93] See, for example, Re Irruntyju-Papulankutja Community (6 October 1995); Re Waljen People (24 November 1995); and Re Clarrie Smith and the State of Western Australia and CRA Exploration PL and Asian Mining NL and Sorna Ltd (11 December 1995).
[94] See for an example of a different approach Re Ngarinyin Community (21 December 1995).
[95] This subject is canvassed broadly in Chapter 5.
[96] Commonwealth of Australia Towards a More Workable Native Title Act: An Outline of Proposed Amendments 1996, page 14.
[97] See Chapters 5 and 6.
[98] This committee has ten members, one nominated by the Minister for Aboriginal and Torres Strait Islander Affairs: Protection of Movable Cultural Heritage Act 1986 (Cth) ss 15 and 17.
[99] The Victorian Government suggests that this Act should be extended to apply to a far broader range of objects: VicG sub 68, page 11.
[100] Aboriginal concerns about the return of items from overseas and related problems are considered in Chapter 12.
[101] Atkinson, sub 5, Appendix page 5. He suggests that the Yorta Yorta people of Victoria are proposing a similar land management arrangement in relation to the Murray Goulburn region.
[102] Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) s 3(c).
[103] ATSIC Office of Evaluation and Audit Impact Evaluation: Heritage Protection Policy Aboriginal and Torres Strait Islander Commission 1993, pages 16-17 and 36.
[104] Atkinson, sub 5, Appendix page 4.
[105] ATSIC Cultural Policy Framework Aboriginal and Torres Strait Islander Commission November 1995.
[106] DCA, sub 66; Tandanya sub 42; Council for Aboriginal Reconciliation Valuing Cultures: Recognising Indigenous Cultures as a Valued Part of Australian Heritage Key Issues Paper No 3 AGPS 1994, page 27; CAMA policy, December 1993.
[107] Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 (Cth) s 51.
[108] See the Australian Institute of Aboriginal and Torres Strait Islander Studies Annual Report 1994-95 1995, page 2.
[109] UN General Assembly, 19 December 1966; ratified by Australia on 30 September 1975.
[110] Koowarta v Bjelke-Peterson (1982)153 CLR 168; Gerhardy v Brown (1985) 159 CLR 70; Mabo v Queensland (Mabo No 1) (1988) 166 CLR 186; and Western Australia v Commonwealth (1995) 128 ALR 1.
[111] See Gerhardy v Brown (1985) 159 CLR 70.
[112] See The Aboriginal Legal Rights Movement Inc v The State of South Australia and Stevens (No 2) (unreported, Supreme Court of South Australia, 28 August 1995); and Aboriginal Law Bulletin Vol 3 No 76 October 1995, page 23.
[113] UN General Assembly 16 December 1966, ratified by Australia in 1975.
[114] Articles 1(1) and (3). See also ICCPR article 1.
[115] UN General Assembly 16 December 1966, ratified by Australia on 13 August 1980.
[116] Article 1.
[117] Ratified by Australia in 1974.
[118] Articles 4, 5 and 11.
[119] Indigenous and Tribal Peoples in Independent Countries, adopted 27 June 1989, in force 5 Sept 1991. Australia is not a party
[120] UN E/CN.4/Sub.2/1994/2/Add.1 (1994).
[121] Article 13.
[122] Article 13; the World Council of Indigenous People (a UN non-government organisation) has also developed a charter of rights.
[123] See, for example, Tandanya, sub 42 page 2 in relation to the lack of synchronised and uniform policies.
[124] MNTU, sub 17: "It is ad hoc".
[125] This is discussed in more detail in Chapter 5.
[126] NPYWCAC, sub 29.
[127] This issue is discussed in Chapters 5 and 6.
[128] Fourmile, Henrietta Making Things Work: Aboriginal and Torres Strait Islander Involvement in Bioregional Planning Consultant's Report 1995, page 15.
[129] This subject is discussed further in Chapter 12.
[130] Sutherland, sub 8; MNTU, sub 17 page 12; TAC, sub 63; FAIRA, sub 51; KLC, sub 57; ATSIC, sub 54 page 7; White, sub 22; ATSIC Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures Commonwealth of Australia 1995, paras 6.34-6.97. The Commonwealth Attorney-General's Department produced an issues paper in 1994 raising some of these issues: Stopping theRip-Offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander Peoples, October 1994.
[131] Other than to the extent that Part IIA, which applies only to Victoria, does so. See Chapter 5 and Annex VIII.
[132] CLC, sub 47.
[133] AHC, sub 52.
[134] AHC, sub 52.
[135] See Annex VII.
[136] AHC Register of the National Estate. Register Entry: Swan Brewery Precinct: 0172465/11/020/0130/01.
[137] See Annex VIII.
[138] See Chapter 5 and Annex VIII.
[139] Atkinson, sub 5; Saunders, sub 21. The AHC has offered training and advice to support a cooperative approach between the Commonwealth and the States/Territories.
[140] The issue of access to sites is discussed in Chapter 6.
[141] FAIRA, sub 51, page 21; Saunders, sub 21. See also ATSIC Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures Commonwealth of Australia 1995 para 6.21.
[142] Darumbal, sub 39.
[143] The incorporation of Aboriginal heritage interests into planning processes is discussed in Chapter 6.
[144] For example ICCPR article 27.
[145] Law Reform Commission The Recognition of Aboriginal Customary Laws Report No 31 AGPS 1986.
[146] Royal Commission into Aboriginal Deaths in Custody National Report AGPS 1991, Recommendation 219.
[147] This subject is discussed in some detail in Chapter 4.
[148] The ambit of the various Aboriginal cultural heritage protection laws is discussed in Chapter 6 and Annex VIII.
[149] Commonwealth Ombudsman sub 41 page 3.
[150] Michel and McCain sub 15; Victorian consultations.
[151] ATSIC Protecting Heritage: A plain English introduction to legislation protecting Aboriginal and Torres Strait Islander Heritage in Australia Aboriginal and Torres Strait Islander Commission 1996.
[152] ATSIC Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures Commonwealth of Australia 1995 Chapter 6.
[153] ATSIC Cultural Policy Framework Aboriginal and Torres Strait Islander Commission November 1995.
[154] Aboriginal and Torres Strait Islander Social Justice Commissioner Native Title Report July 1994 - June 1995 december 1995 AGPS.
[155] The Review discusses initiatives for State and Territory laws in Chapter 5.
[156] ATSIC Recognition, Rights and Reform: A Report to Government on Native Title Social Justice Measures Commonwealth of Australia 1995 page 120.
[157] In particular in Chapters 5, 6 and 7.
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