Reconciliation and Social Justice Library
[RSJ Home] [Global AustLII Search] [RSJ Database Search][Table of Contents]
8.1 This chapter considers how to establish, for the purposes of the Commonwealth Act, that an area or object is a significant Aboriginal area or object, and that it is under threat of injury or desecration. It considers the subjective nature of these issues, how they should be decided and the role and responsibility of Aboriginal people in relation to such decisions. The discussion focuses on areas and sites, but is also relevant to the consideration of significant Aboriginal objects.
8.2 Before the Minister can exercise discretion whether or not to make a declaration to protect an area or site, he or she must be satisfied "that the area is a significant Aboriginal area" and "that it is under threat of injury or desecration,": ss 9 (1) (b) and 10 (1) (b). These terms relate to the definitions in s 3 (1):
`significant Aboriginal area' means:
an area of land in Australia or in or beneath Australian waters;
an area of water in Australia; or
an area of Australian waters;
being an area of particular significance to Aboriginals in accordance with Aboriginal tradition;
`area' includes a site;
`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;
Chapter 6 of the Report looks at the scope and coverage of the provisions set out above.
8.3 The question whether an area or object is of `particular significance' to Aboriginal people has three related elements: to whom the area is significant, the nature of the significance, and its degree. The Act is structured in such a way that each of these elements must be considered from the perspective, understanding and experience of Aboriginal people. They are matters which a non-Aboriginal person (even an anthropologist) can understand, if at all, only by communication with Aboriginal people.
8.4 The question whether an area or object is of `particular significance' to Aboriginals must be considered from the perspective of Aboriginal people.
It depends upon their custom and traditions.
Other concepts of heritage legislation simply do not accord with indigenous cultural values. For example in registering and/or declaring an area significance is given in some legislation to the issue of relative importance of an area or site. Yet in Aboriginal and Torres Strait Islander society the issues of significance and cultural importance are settled not by objective and global references, but by reference to traditional law and custom or, in contemporary situations, by a largely consensus judgment influenced by the views of elders in the community.[192]
The particular significance of a site may derive from its sacred qualities or from its legal status in terms of Aboriginal customary law, though the distinction between these two values is itself eurocentric.
For traditional landowners, such a distinction would probably be contrived, if not meaningless - the domains of the sacred and the secular have not been compartmentalised as in non-Aboriginal society.[193]
As has been pointed out, Aboriginal people who have special knowledge or experience of the customary laws of their community should be recognised as entitled to give evidence on such matters.[194] Customary law traditions, as has been explained,[195] include important restrictions on the transmission of knowledge about significant sites and the beliefs related to them.
8.5 The benefit of the Act is not limited to people living traditionally. Even where tradition has been diluted as a result of dispossession and displacement, areas and sites may retain their special significance for Aboriginal people. Their obligation to protect the area remains, and its significance may even be enhanced, where the site is one of the few remaining links with culture. Nor does a site necessarily lose its significance to Aboriginal people if it undergoes change or damage. The question of significance can be resolved only by reference to Aboriginal people themselves, to their understanding of their "traditions, observances, customs or beliefs".
8.6 The meaning of `particular significance' in the Act has not been the subject of judicial decision. However, there is a similar expression in the World Heritage Properties Conservation Act 1983 (Cth). Under s 8(3) an Aboriginal site is a site, the protection of which is of particular significance to the people of the Aboriginal race. In the Tasmanian Dams case, Justice Brennan stressed that significance was a matter for Aboriginal people:
The phrase `particular significance' in s 8 cannot be precisely defined. All that can be said is that the site must be of a significance which is neither minimal or ephemeral, and that the significance of the site may be found by the Aboriginal people in their history, in their religion or spiritual beliefs, or in their culture. A group of whatever size who, having a common Aboriginal biological history, find a site to be of that significance are the relevant people of the Aboriginal race for whom the law is made ... Of course, an issue remains as to whether the sites proclaimed under s 8 are in truth sites of particular significance to the people of the Aboriginal race. That is a question of fact that can be resolved by evidence if need be. [196]
8.7 The Minister's decision under the Act as to whether an area is a significant Aboriginal area is informed by the section 10 report which must deal with the question of the `particular significance' of the area to Aboriginal people. The reporters appointed under s 10 of the Act have generally approached the issue as a question of fact, but as an issue essentially subjective in nature.[197] For example, Justice Stewart, in reporting onCoronation Hill, decided not to develop a definition but to report on:
whether the area is of significance to Aboriginal people in accordance with their traditions and to report on the evidence that touches on the degree and intensity of belief and feeling that exists in relation to the area under discussion.[198]
Saunders, in the Hindmarsh Island (Kumarangk) Report, took a similar approach:
... it is sufficient to report to the Minister on whether the area is of significance to Aboriginal people in accordance with their traditions and to report on the evidence that touches upon the degree and intensity of belief and feeling that exists in relation to the area.[199]
8.8 It follows that the question of significance can be considered only through communication with Aboriginal people about their understanding and experience concerning the area. It is an issue which should be seen as peculiarly within the competence of Aboriginal people to determine.
The primary source of this evidence is the people themselves.[200]
8.9 The National Aboriginal Sites Authorities Committee (NASAC), which represents State and Territory site protection agencies, confirmed this in a resolution which distinguishes between `archaeological' and `traditional' sites. It noted that the relative significance of traditional sites could be assessed only by the Aboriginal custodians:
`Aboriginal' site has a number of meanings including the following:
(a) sites which comprise the objectively observable manifestations of past Aboriginal culture which have a value as the material evidence of the original and ancient occupation of this continent by Aboriginal people. The relative significance of such sites may be accorded on the basis of scientific inquiry and general cultural and historical values. NASAC refers to sites in this category as `archaeological sites'.
(b) sites which are the tangible embodiment of the sacred and secular traditions of the Aboriginal peoples of Australia. Such sites may include sites defined in (a) above. The relative significance of these sites may only be determined by the Aboriginal custodians. NASAC refers to such sites as `traditional sites'.[201]
8.10 Dealing with the question of `particular significance' in the framework of Australian common law is not without its difficulties. Establishing significance is part of the process which can lead to the making of a declaration. Those who oppose the application for protection, the landowner/developer, may consider that it is their right not only to know all the details of the relevant beliefs and customs, but also to have an opportunity to question and challenge their genuineness, their validity. There is judicial support for the view that information relied on to support a claim must be revealed to interested parties:
Aboriginals, just like all their fellow members of the community, if they wish to avail themselves of legal remedies must do so on the law's terms. To take away the rights of other persons on the basis of a claim that could not be revealed to the maker of the decision itself would be to set those rights at naught in a way not even the Inquisition ever attempted.[202]
Aboriginal people are faced with a dilemma. In order to seek the protection of the Act for a site which is significant to them, they may be asked to reveal information about that site, which their tradition requires to be kept confidential. The confidentiality of information is discussed in Chapter 4.
8.11 The current Act, and its interpretation by the Federal Court,[203] put in direct opposition the interests of Aboriginal people in maintaining the secrecy of culturally sensitive information and the interests of opponents of a declaration (eg, State and Territory governments and developers) who seek an opportunity to challenge the claim of significance and test its validity. It has led to the creation of an adversary situation around the issue of `significance'.
8.12 Under the Act the Minister has to be personally satisfied that the area or site is a significant Aboriginal site before making a declaration of protection. A difficulty with this requirement is that the Minister does not, and in practical terms could not in most cases, have a real opportunity to assess the credibility or sincerity of the applicants. He/she must rely to a considerable extent on the s 10 report. This is, in a sense, a second hand approach to an important issue.[204] In addition, the Minister does not necessarily have any expertise or experience in dealing with matters of Aboriginal tradition and belief.
8.13 The current approach fails to recognise a special role for Aboriginal people in determining the question whether a site is of particular significance. It is, in this regard, inconsistent with minimum standards under which Aboriginal people would be closely involved in the evaluation of sites.[205] Developing the law along those lines would be a way of incorporating Aboriginal values into the legal system, and would be consistent with the ALRC report on recognition of Aboriginal customary law.
8.14 The Act could better achieve its purposes if a way could be found to establish the particular significance of an area, without at the same time destroying the traditions which are the basis of that significance.[206] It does not follow that mere assertion by an Aboriginal that a site is of particular significance according to tradition should be sufficient to establish that fact. A new approach to the issue needs to be developed, one which provides reasonable protection of the confidentiality of tradition and belief, and also ensures that the procedures adopted are fair to Aboriginal people and to other people who may be affected by the decision. That approach should have as its aim an assessment of the degree and intensity of the belief of Aboriginal people concerning the site. It should ensure that the assessment is made by a properly qualified body with relevant experience and that the role of Aboriginal people in the determination is recognised.
8.15 In some State and Territory processes the assessment of a site or area, and the question of its significance, are not the responsibility of the Minister but are assigned to independent bodies which are representative of Aboriginal people.[207] The Minister does not review the question whether the site is significant, but considers only whether to continue or to withdraw the protection of a place or area.
8.16 The Northern Territory Aboriginal Areas Protection Authority (AAPA), which has a largely Aboriginal membership nominated by Aboriginal land councils, determines itself whether a site falls within the protection of the Act, and whether the proposed acts for which consent is sought can be carried out without damaging the site. The Minister does not review its decision concerning the status of the site, but decides whether or not to grant a permit for acts to be done which may damage the site.
8.17 In Victoria, under Part IIA of the Act, a local Aboriginal community can decide that a place or object is a place of particular significance to Aboriginal people, and can advise the Minister that it considers a declaration of preservation should be made. The Minister's function is not to review that decision but to decide whether "in all the circumstances of the case, it is reasonable and appropriate that a declaration be made for the preservation of the place or object" (s 21E).
8.18 There are Aboriginal heritage bodies in Western Australia and South Australia. Though not constituted in the same way as in the Northern Territory, they exercise similar functions.[208] New South Wales, Queensland, Tasmania and the Australian Capital Territory do not have bodies of this kind.
8.19 Submissions[209] and consultations support the view that the questions concerning the particular significance of a site should be considered separately from any question relating to the future use or protection of that site:
The question whether or not a particular place is significant ... should be separate from the question of what activities or work should be permitted on that land. These distinct issues are often blurred. The issue of the significance of the site is then inextricably bound with the question of determining the final land use decision. The blurring is often quite deliberately oriented to a political decision as to whether a particular area will qualify to be protected or not. Proceeding in this manner does enormous harm to relations between Aboriginal custodians and the wider population.[210]
8.20 The opinion of the Review is that the assessment of the significance of an area or site should not remain the personal responsibility of the Minister but should be determined separately from the question of protection. This can be best achieved by ensuring that the assessment is the exclusive responsibility of a competent and authoritative body or agency established for that purpose. The Minister would rely on the assessment of significance in the manner established without inquiring into that issue. This would leave intact the Minister's responsibility to weigh up competing interests in order to determine whether to grant protection of the site or area. Any change of this kind should also give Aboriginal people a more significant role in the assessment of significance. The following sections consider some options for determining `significance'.
8.21 In some matters which are the subject of applications to the Commonwealth Minister, the question of `significance' may already have been determined at the State or Territory level by the relevant Aboriginal heritage body. That was the case with the Old Swan Brewery (Goonininup) in Perth and the Junction Waterhole (Niltye/Tnyere-Akerte) at Alice Springs:
In practice, the review process under Territory law from application to decision by the Minister is likely to take closer to six months and may be longer. It should be stressed that in such cases the ground work in establishing the significance of the site by the Authority has been done prior to the triggering of the review so that the review process is built on a foundation of consultation and research which in many cases, has been built up over years.[211]
This is an area where it should be possible to recognise and accredit the State or Territory process for the purposes of the Commonwealth Act, where it meets minimum standards.
Under a national model in which State and Territory legislation was working effectively, the Federal Minister would not be called upon to routinely determine significance, but rather the degree to which the imperative to protect a site should be given pre-eminence over other considerations for use of the area.[212]
The case for doing this has been fully argued in Chapter 5, where it is recommended that the Commonwealth should accredit or recognise for the purposes of the Act decisions concerning the significance of a site by State/Territory Aboriginal cultural heritage bodies that meet the required standards and which apply definitions comparable with the Commonwealth definition.
8.22 Another option would be to refer the question of significance to the relevant agency in the State or Territory, where it has not already been determined by that body, provided that the body is constituted according to minimum standards. A recommendation is made in Chapter 5 about referral to accredited State/Territory process.
8.23 At this stage, many applications come from States such as NSW and Queensland which do not yet have independent Aboriginal heritage bodies. The `particular significance' of areas and sites in States and Territories which do not have an approved process will have to be settled at Commonwealth level until such time as they meet minimum standards. Should a national Aboriginal cultural heritage body be established, comprising Aboriginal custodians nominated from representative organisations, to take on responsibility for site assessment? The advantages of this approach are that it would recognise the self-determination of Aboriginal people, and their particular understanding of the issues involved in the decision. But there are also problems and obstacles to this approach.
8.24 A national body, set up for the purposes of the Act could not be a true parallel to the current State and Territory bodies. They are permanent bodies with a continuing role in the assessment and recording of sites. The members of those bodies, and their staff, have knowledge of local communities and continuing links with them. They deal with many cases each year. In contrast, there are at present about 10-12 applications each year under the Commonwealth Act. It would be difficult for the Commonwealth to establish a national Aboriginal heritage body with effective links to all regions of Australia or to provide it with staff and resources familiar with the communities and conditions of each region. It was submitted to the Review that it would be difficult to obtain a panel with an appropriate gender balance and seniority that would have the respect and support of Aboriginal people from all parts of Australia.[213] A panel of Commonwealth experts sitting in judgment over their colleagues in the States and Territories may be counter-productive. There would also be significant costs associated with establishing a permanent body of this nature.
8.25 In any event, an important objective of heritage protection law is to develop a co-operative approach, and to avoid duplication of functions.[214] The first priority is to encourage all States and Territories to meet minimum standards by establishing effective Aboriginal heritage bodies for the purpose of site assessment as part of their primary role in heritage protection. A specialist Commonwealth body should only be considered if it proves impossible to persuade the States and Territories to establish appropriate bodies of this kind.
8.26 While many situations may be resolved by reference to an existing State or Territory process, there will be cases where the assessment of an area has to be made for the purposes of the Commonwealth Act. In Chapter 11 of the Report, proposals are put forward for the establishment of an independent expert Aboriginal Cultural Heritage Agency, which would have responsibility for the management of applications under the Act. In keeping with the earlier proposal to separate the question of `significance' from that of site protection, that body would be responsible for the question whether the area is of particular significance to Aboriginal people in any matter which could not be dealt with by referral to a State or Territory agency. The following section outlines the procedures which should be adopted.
8.27 The procedures adopted to assess whether a site is of particular significance as an Aboriginal site should be in accordance with these principles:
8.28 The constitution of the agency proposed by this Report to administer the Act is described in Chapter 11. It would include Aboriginal people and others with knowledge and experience of Aboriginal heritage issues.[215] It would be an `expert' body in the sense that its members would have recognised qualities and skills. It would of necessity be constituted in an ad hoc manner for particular cases though it would inform itself by consultation with the relevant Aboriginal community. It would also seek information from anthropologists with real knowledge of the particular Aboriginal community and individuals concerned, provided that their involvement is supported by the Aboriginal community itself.[216] It may seek discussions with Aboriginal members of State or Territory heritage bodies and others with relevant experience or skills in the areas of site protection legislation.[217] As a permanent agency, it should develop an appropriate information base about heritage issues. It could, for example, establish locally-based reference groups.[218]
8.29 A proposal made in submissions was to provide for an ad hoc team comprising Aboriginal custodians (with appropriate background in the area under dispute) along with similarly qualified experts experienced in preparing reports of the kind required under the Commonwealth Act. Such expertise could be assembled by seconding staff from State and Territory sites protection agencies as and when required. It is suggested that under this model, a Commonwealth Minister would be assured of obtaining advice from both Aboriginal people and relevant experts with particular skills in the areas of site protection legislation.[219] While no specific recommendation is made on this proposal, the new agency should be able to inform itself on issues by the most appropriate means. In Chapter 11 it is recommended that an Aboriginal Cultural Heritage Advisory Council should be established to advise the proposed agency on issues arising under the Act, and in particular on the procedures to be followed and the persons to be consulted in making assessments for the purposes of the Act. This Council should be constituted by Aboriginal people, in such a way as to strengthen links with local Aboriginal communities which have responsibility for heritage issues.
8.30 The question whether an area is of particular significance according to Aboriginal tradition is a question which, as stressed earlier, should be based on an assessment of the degree and intensity of the belief of the local Aboriginal community connected with that site.
The issue should not be whether, judged by the norms and values of our secular culture or our religions, the sites are important, but whether they are important to Aboriginals in terms of the norms and values of their traditional culture and beliefs. In other words the issue is not whether we can understand and share the Aboriginal beliefs, but whether, knowing they are genuinely held, we can therefore respect them.[220]
The independent agency should closely consult the Aboriginal community and in particular the traditional owners/custodians.[221] The assessment of significance should be based on the participation of the relevant Aboriginal community, communities or individuals and any anthropological reports or information provided with their consent.
8.31 The procedures adopted by the agency to determine the issue of significance should respect the confidentiality of Aboriginal information and avoid the need for unauthorised disclosure of information. Although there is a body of opinion that all information about Aboriginal heritage should be made available for assessment purposes, in order to maintain credibility,[222] the fact is that non-Aboriginal people have little or no competence to express an opinion about the significance of an area or site to Aboriginal people, and seldom have any basis on which to challenge their credibility. The threat of exposure of confidential information to persons not culturally entitled (and opposed to the protection sought) would deter such submissions at all and undermine the Act.[223] The essential issue is the competence and credibility of the agency responsible for the determination.
8.32 The issue of significance should not be exposed to an adversary procedure, or to review by the courts on the subjective question of fact. In particular, religious beliefs should not be exposed to this kind of scrutiny. Protection of significant sites does not have the same consequences as the establishment of a claim to land rights, and need not be dealt with by the same kind of procedures.[224] These issues are not exposed to an adversary procedure in State and Territory jurisdiction and there would be no need to do so at Commonwealth level, taking into account that the question of significance would be determined by an independent body with appropriate expertise and that it would be considered separately from the question of protection. Only in the most exceptional circumstances would a challenge to the questionof significance be necessary.
8.33 The opinion or conclusions of the agency as to the significance of a site should be binding on the Minister. This is entirely consistent with the Guidelines and with the practice adopted in those States and Territories which have established independent Committees for site assessment. It would avoid most problems about confidentiality of information and any need for a Minister of a particular sex to be appointed.
8.34 The Review has some concerns that, if the opinion of the agency establishing the significance of an area or object for the purpose of making declarations were to be considered a question of jurisdictional fact, this would result in the courts engaging in broad factual inquiries directed at determining this issue for themselves and might be used to undermine the policy objective of separating out that issue. The Review therefore considers that the Act should contain a clear statement of intention to the effect that the decision of the agency as to whether an area or object is one of significance should be conclusive. This is not to suggest that judicial review on administrative laws grounds should be excluded; rather that in addition to detracting from the policy objectives noted earlier, a jurisdictional fact approach would increase uncertainty by opening up the decision on significance to challenge as a factual question even where there is no other suggestion of legal error on the part of the agency.
8.35 Cases will arise from time to time where there are differences of opinion between Aboriginal people as to who should speak for an area or who has a genuine interest in particular sites in that area.[225] There may also be differences of opinion about the significance of sites:
In an old culture which is in a fairly fragmented state there will be differing knowledge among different people and in some cases quite restricted knowledge of areas of particular significance. Some changes will be presented as longstanding and permanent.[226]
These cases represent a small proportion of applications to the Commonwealth Minister, but they present considerable difficulty.
8.36 Differences of these kinds arise as a normal part of traditional life, where groups live in and are responsible for overlapping areas. There may be more than one set of custodians, each with a recognised interest. The background to differences were explained in a submission from the Northern Land Council in this way:
The custodians may be a different or a wider group of people than the traditional Aboriginal owners. Eg an important sacred site has dreaming lines radiating from it and passing through extensive areas of country belonging to different groups of Aboriginals. All of those groups may contain members who share some kind of responsibility for the site, but who are not necessarily under a primary spiritual responsibility for the site. When custodians who are not traditional owners have been consulted in preference to those with primary spiritual responsibility this causes disputes and weakens the protection.[227]
Differences may also result from causes such as displacement and dispossession.[228] The result is that different groups may hold entirely different, but nevertheless sincere, beliefs about an area or site. These factors should not be used against Aboriginal people.
8.37 The fact that inconsistent claims are made does not necessarily mean that an adversary procedure should be conducted, or that evidence should be tested in open court by cross-examination. The Hindmarsh Island (Kumarangk) case has shown the destructive nature of that process for Aboriginal people; it should be avoided where possible. It is not necessary to turn an issue primarily directed to the exercise of a ministerial discretion into an inquiry as to who has the primary right to land.[229] What is needed is a procedure to enable the issues to be assessed in a manner appropriate to Aboriginal culture.[230] Ideally the question should be dealt with at State or Territory level. State Aboriginal heritage committees should have procedures, such as those recommended in the Senior Report, to deal with these issues.[231]
8.38 An assessment would not necessarily have to decide which of two groups had the better claim. It may not be possible to resolve that question.[232] It might appropriately report on the views of all relevant people:
It is fundamental to Aboriginal knowledge that the views of each individual count, and that the whole view can only be obtained by adding up all the various individual views. It is culturally destructive and assimilationist to suggest that any one Aboriginal person can speak for a large number of other Aboriginal people.[233]
The essential question as far as the Commonwealth is concerned is whether the area is an area of particular significance to a group of Aboriginal people, and the degree and intensity of their belief about that place. If the area is considered to be significant to that group, then even if another group of individuals has a different opinion, it would be open to the Minister to make a declaration under the Commonwealth Act. The fact of differing opinions could, of course, be taken into account.
8.39 The agency should seek the advice of the advisory council as to the best procedure to adopt where there are differences of the kind mentioned. Flexibility should be permitted, for example, through the appointment of more than one reporter.[234] There may be some cases which are suitable for reference to a committee or panel of local Aboriginal people for consideration.
A similar approach could be adopted in the case where allegations are made that Aboriginal people have expressed contradictory or inconsistent opinions. This issue was dealt with in the Report of the Resource Assessment Commission.[235] To meet arguments that the concerns were not traditional but of recent origin, that inquiry drew on reviews showing a consistent incidence of Aboriginal concern over access and disturbance to sites in the area.[236] It concluded that past contradictions should not detract from the weight of custodians' current views.
8.41 The Minister should not refuse to handle an application just because other Aboriginal people do not agree with the application. The fact that the area is not significant to one local group does not mean that it is not significant to others. The important issue is that if an application meets the necessary requirements, it is treated as any other application would be. As with other sites, protection should be provided, if necessary while these processes occur. It should not be the role of these processes to resolve disputes among Aboriginal people about the significance of their heritage or whether it should be protected. These disputes should be resolved by Aboriginal people among themselves. Where differences of opinion do arise those differences can be taken account of during the reporting process.
8.42 In addition to being satisfied that the area is a significant Aboriginal area, the Minister has to be satisfied that the area "is under threat of injury or desecration." The Act provides that:
(2) For the purposes of this Act, an area or object shall be taken to be injured or desecrated if:
(a) in the case of an area:
(i) it is used or treated in a manner inconsistent with Aboriginal tradition;
(ii) by reason of anything done in, on or near the area, the use or significance of the area in accordance with Aboriginal tradition is adversely affected; or
(iii) passage through or over, or entry upon, the area by any person occurs in a manner inconsistent with Aboriginal tradition; or
(b) in the case of an object - it is used or treated in a manner inconsistent with Aboriginal tradition; and references in this Act to injury or desecration shall be construed accordingly.
(3) For the purposes of this Act, an area or object shall be taken to be under threat of injury or desecration if it is, or is likely to be, injured or desecrated.
8.43 The question of injury or desecration is closely linked to the question whether the area is significant according to Aboriginal tradition, to the nature of that significance and to the effect on tradition of the proposed acts constituting the threat. The assessment of the way in which the threatened action is inconsistent with Aboriginal tradition, or adversely affects the significance of the area in accordance with tradition should be dealt with in the same manner as the question of significance.
8.1 The question whether an area or site should be considered an area or site of particular significance according to Aboriginal tradition should be regarded as a subjective issue to be determined on the basis of an assessment of the degree of intensity of belief and feeling of Aboriginal people about that area or site and its significance.
8.2 Where an assessment has been made of substantially the same issue [concerning the particular significance of an area] in the State/Territory process, it should be possible to rely on that assessment in the Commonwealth process.
8.3 If a State or Territory Aboriginal Cultural Heritage Committee is constituted according to minimum standards and has the function of assessing the significance of an area according to Aboriginal tradition, there should be an accreditation process to allow the matter to be referred by the Commonwealth to that agency for consideration.
8.4 If the States and Territories do not consider establishing appropriate bodies to deal with heritage issues, the Commonwealth should establish an appropriately constituted Aboriginal Cultural Heritage Committee, to ensure that Aboriginal people are given a major responsibility in establishing the significance of a site.
8.5 The issue of significance should be considered separately from the question of site protection.
8.6 Where an assessment of significance of an area or site has to be made, it should be based on information provided by and consultations with the relevant Aboriginal community, communities or individuals and on any anthropological reports or information provided with their consent.
8.7 The opinion or conclusions of the agency recommended in Chapter 11 as to the significance of a site should be binding on the Minister.
8.8 (a) The agency recommended in Chapter 11 should develop, with the advice of the recommended advisory council, procedures to be used, if necessary, to deal with situations where there are differences of opinion between Aboriginal people as to who has responsibility for an area.
8.8 ( b) The agency recommended in Chapter 11 should report on whether there is a group to whom the area is an area of particular significance, and the degree and intensity of the belief about that place. If there are differing opinions among Aboriginal people on that question, these opinions should be included in the agency's report.
8.9 The assessment of the way in which the threatened action is inconsistent with Aboriginal tradition or adversely affects the significance of the area in accordance with tradition should be dealt with in the same manner as the question of significance.
[190] Baldwin Jones, sub 18.
[191] Allington, sub 16.
[192] Recognition, Rights and Reform, para 6.9.
[193] CLC, sub 47, p11.
[5] Law Reform Commission The Recognition of Aboriginal Customary Laws (ALRC 31) AGPS 1986, Vol l, para 642: also, beliefs and perceptions a matter of fact, para 640.
[195] See Chapter 4.
[196] The Commonwealth v Tasmania (1983) 57 ALJR 450 at 539.
[197] Saunders Hindmarsh Island (Kumarangk) s 10 report, pp 28-30 pointed out the difficulty in trying to establish traditions by mechanisms with which we are familiar.
[198] Stewart Kakadu s 10 report, para 3.14.
[199] Saunders Hindmarsh Island (Kumarangk) s 10 report, p 20. She regarded her approach as compatible with what Brennan J said in the Tasmanian Dams case, and with Menham's Old Swan Brewery (Goonininup) s 10 report.
[200] Menham, Skyrail s 10 report, p 6.
[201] This resolution of 1990 is quoted in Ritchie, D "Principles and Practice of Site Protection Laws in Australia" in Sacred Sites, Sacred Places Carmichael, D (ed) Routledge 1994, p227 and 233.
[202] Tickner v Chapman (1995) 57 FCR 451 at 478-479; (1995) 133 ALR 226 at 254, per Burchett J.
[203] In cases such as the Hindmarsh Island (Kumarangk) case and the Broome Crocodile Farm case.
[204] Finlayson, sub 40.
[205] see Annex VI: Guideline 6.8.
[206] Saunders Hindmarsh Island (Kumarangk) s 10 report, pp 28-30, noted that it was difficult to establish tradition by mechanisms with which we are familiar.
[207] See Annex VIII.
[208] The Senior Report recommends that a new representative body be established in WA, to replace the current body. South Australia is moving administratively towards making its own body more representative.
[209] AAPA, sub 49, p16; AHC, sub 52, p6-7 emphasises that significance should be assessed separately and before any decision on future use. The AHC also submitted that there was a need to involve Aboriginal custodians.
[210] AAPA, sub 49, p16.
[211] AAPA, sub 49.
[212] AAPA, sub 49, p9.
[213] AAPA, sub 49.
[214] Interaction, p3.
[215] The reporter should have formal qualifications and experience in indigenous heritage: AMEC, sub 48, p24.
[216] ALRM, sub 11, PWYRC, sub 12 caution against anthropologists becoming gatekeepers for reports. Only applicants and custodians can speak for country. The same caution was expressed in respect of archaeologists in Rosita and Greer, sub 37.
[217] AAPA sub 49, p12.
[218] Baldwin Jones, sub 18.
[219] AAPA, sub 49, p12.
[220] Wootten Junction Waterhole (Niltye/Tnyere-Akerte) s 10 report, p19.
[221] MNTU, sub 17, p5 calls for a body to be established to act on instructions from custodians.
221 Baldwin Jones, sub 18 supports local reference groups.
[222] AMEC, sub 48, p24: all information about Aboriginal and Torres Strait Islander heritage should be accessible to the relevant authorities and experts, regardless of its cultural sensitivities. It should be maintained in confidential State registers. The Commonwealth Minister should have access under the Act. It must be available for assessment in this way to maintain credibility.
[223] CLC sub 47, p17.
[224] AHC 52, p9: significance should not be examined in a court, in a way not culturally appropriate.
[225] Such differences have been noted by reporters: Chaney Broome Crocodile Farm s 10 report generally from pp28-55; Menham Old Swan Brewery (Goonininup) s 10 report, pp2, 7 and 29; Wootten Junction Waterhole (Niltye/Tnyere-Akerte) s 10 report, p41-42.
[226] Chaney, sub 19 refers to his Broome Crocodile Farm s 10 report, paras 4.24, 4.25 and 14.1, and says that there will be differing Aboriginal views on significance, even where there is a clear traditional association with some particular mythology.
[227] NLC, sub 66.
[228] Wootten Junction Waterhole (Niltye/Tnyere-Akerte) s 10 report, pp69-70; Aboriginal and Torres Strait Islander Social Justice Commissioner Native Title Report July 1994-June 1995 AGPS 1995, p54 and p58.
[229] See the observations of Wilcox J in Bropho v Tickner (1993) 40 FCR 165 at 172-174.
[230] Chaney Broome Crocodile Farm s 10 report, para 16.20: need for Aboriginal community to establish its own authority as to who may speak. See Neate, G "Determining Native Title Claims - Learning from Experience in Queensland and the Northern Territory" (1995), 69 ALJ 510 from 518.
[231] The Senior Report recommends that the Western Australian AHPA determine the significance, extent or existence of a site, the impact of a proposal on a site, and the right to speak for an area: pp 140-3.
[232] Sutton, sub 2: the search is for `reliability', not the `truth'.
[233] Baldwin Jones, sub 18.
[234] Finlayson, sub 40.
[235] Resource Assessment Commission Kakadu Conservation Zone Inquiry Final Report Volume 1 1991. See also Stewart Kakadu s 10 report, pp 22-24. Levitus, sub 45 describes the approach of the Resource Assessment Commission to the questions of historic length of beliefs, contradictions about belief and the role that anthropological evidence played.
[236] Resource Assessment Commission Kakadu Conservation Zone Inquiry Final Report Volume 1 1991, para 7.52.
| AustLII | RSJ Home | Back to Table of Contents |