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The purpose of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is to preserve and protect from injury or desecration areas and objects that are of particular significance to Aboriginals in accordance with Aboriginal tradition.
The Act was introduced in 1984 to enable the Commonwealth to protect significant Aboriginal areas and sites when State or Territory law does not provide effective protection. Aboriginals and Torres Strait Islanders can ask the Minister to make a declaration to protect an area or object which is under threat of injury or desecration. Declarations can be short term or long term; they are backed up by criminal sanctions. Since 1984 four long-term declarations have been made to protect areas. One remains in place. Three groups of objects have been protected by declarations.
The Act was introduced as a temporary measure, pending the introduction of national land rights legislation. The sunset clause was removed in 1986, when it appeared that land rights legislation would not be introduced. The Act has not been reviewed since 1986.
The procedures for making declarations under the Act are not spelled out in detail. The Act is intended to operate as a last resort, after the application of State and Territory laws. However the interaction between Commonwealth and State/Territory processes is not clearly established. This has led to delay and uncertainty in dealing with applications. For example, it is unclear how much consultation there should be with State and Territory governments about the level of protection available in the jurisdiction concerned, or how far those consultations should extend before an application under the Commonwealth Act proceeds to a determination. Emergency or interim protection has been granted by the Commonwealth Minister in very few situations, despite the long periods involved in consultations and in determining applications.
The Act establishes a reporting process as a guide to the exercise of the Minister's discretion, but it does not specify how the reporter should ensure that interested parties are treated fairly. This has left the Minister's discretion open to legal challenges. Two declarations have been overturned by the Federal Court and other decisions of the Minister have also been set aside. The most recent cases of this kind involve Hindmarsh Island (Kumarangk) and the Broome Crocodile Farm. The procedures laid down for the Minister and the section 10 reporter by those cases have made the process burdensome and taken it away from the relatively simple procedures which were envisaged when the Act was introduced. They also expose Aboriginal people seeking the protection of the Act to intensive scrutiny of their religious beliefs.
The main threat to significant Aboriginal areas comes from construction and development of all kinds. State and Territory governments and developers are concerned about the delays and costs caused by the fact that intervention under the Commonwealth Act often comes after their planning processes have been completed and a project has been approved. Developers see this as yet another obstacle to be negotiated to get their project under way.
Aboriginal people consider that the Act has not protected their heritage. Few declarations have been made and only one is now in force. They say that the administration of the Act has given too much deference to ineffective State and Territory processes which do not recognise their role in the identification, management and protection of heritage. In some situations negotiations by the Commonwealth with the State/Territory government have resulted in arrangements being made without adequate consultation with Aboriginal people. In addition, the Act does not recognise that there are Aboriginal restrictions on information which play an important role in the protection and maintenance of their cultural heritage. The Act does not protect confidential information or respect Aboriginal spirituality and beliefs which require that confidentiality to be maintained. Its failure to deal with all aspects of heritage, including intellectual property was another subject of concern, though the Review has been unable to deal with this issue in detail (see Chapter 3). Nor does the Act adequately recognise or provide for the involvement of Aboriginal people in negotiation and decision-making about their cultural heritage. Aboriginal people want the Act to be maintained and strengthened.
The Review received nearly 70 submissions and carried out wide consultations. Submissions covered a broad spectrum of views, from those who thought the Commonwealth should leave Aboriginal heritage protection entirely to the States and Territories, to those who thought the Commonwealth should take over the field completely. Others wanted the role of Aboriginal customary law to be fully recognised. Most submissions either supported or recognised the need to retain the basic principles of the Act as an effective safety net. They want it to fulfill its purposes of protecting Aboriginal heritage in a practical and effective manner. That is the position taken by the Review.
The policy goals of the Review have been these:
The recommendations in this report will help to restore the original intentions of the Commonwealth Act, which is to provide a straightforward and simple procedure at Commonwealth level where State or Territory legislation does not provide effective protection for an area or site, or where that protection is withdrawn by the State or Territory Minister. The recommendations would help to overcome many of the current frustrations and could contribute in a positive way to the goals of Aboriginal reconciliation.
The Act applies to any area or object anywhere in Australia which is of significance to Aboriginal people, whether or not they live in traditional life style, whether they are urban, rural or remote. These principles should be retained. The protection of cultural heritage should continue to recognise the changing nature of culture, and aim to protect living culture/tradition as Aboriginal people see it now. (Chapter 6)
The Act should recognise and respect Aboriginal customary law restrictions on holding, disclosing and using information about significant areas and objects. It should minimise the amount of information that Aboriginal people need to give about significant areas or objects to secure their protection. Standards are recommended for dealing with restricted information at each stage of the process. The wishes of Aboriginal people concerning the protection of a significant area or object should not be overridden unless there have been adequate consultations and inquiries and there is a compelling public interest in proceeding. (Chaters 4, 6 and 7)
The procedures under the Commonwealth Act should ensure interim protection for areas which are threatened, basic principles of natural justice for persons affected and effective time lines. An outline of these procedures is set out below. The recommended procedures follow the existing statutory model, by keeping an informal inquiry process leading to the exercise of the Minister's discretion. This keeps the process relatively simple and inexpensive. However, there must be clear statutory guidelines for that process, setting out a clear procedural path with set time lines. Persons interested would have a proper opportunity to make representations on the issues affecting them. (Chapter 10)
The Act should provide for a specific voluntary mediation procedure which is offered to parties before a reporting procedure leading to declaration is considered. There should be appropriate time limits. Significant areas should be protected from continuing injury or desecration while mediation takes place. The Act should provide for registration of agreements reached during mediation or negotiations. Registration would give the agreement the force of a contract. (Chapter 9)
A principal recommendation is to separate the question whether an area is a significant area from the question whether it should be protected from a proposed use of land which poses a threat. The reporter will form an opinion about significance in the reporting process, based on information given by Aboriginal people about its significance to them. The reporter should be concerned with the existence of confidential information supporting the claim of significance rather than with its details. Confidential information given by Aboriginal people would be protected from disclosure contrary to Aboriginal tradition. Third party intervention in the question of significance would be minimised. This would bring the Commonwealth in line with States in assessing significance. It would help to reduce the avenues for challenging the Minister's decision, and increase recognition of Aboriginal customs, traditions and beliefs. (Chapter 8)
Protection should not attach as of right to every site falling within the definition of the Act. The decision whether to protect an area would remain, as now, a matter for the Minister's discretion. In exercising that discretion, which is has a 'political' quality, the Minister should weigh the competing interests of Aboriginal heritage protection with the interests of those affected and the public interest in the issues. The Minister would rely on the opinion of the reporter about the question of significance. The wishes of Aboriginal people would be taken into account. (Chapter 10)
A new permanent independent agency should be established to administer the Act in all matters leading to the exercise of discretion by the Minister. The agency would relieve the Minister of procedural responsibilities, including those related to interim protection and the nomination of mediators and reporters. It would act in accordance with established principles and procedures, away from the political process. It should be a small expert agency, with a panel of mediators and reporters available to be called upon when needed. Its members should include a high proportion of Aboriginal people. The agency should be supported by an Aboriginal heritage advisory committee, composed of Aboriginal people, to advise on such matters as identifying Aboriginal people to consult about areas of significance. The cost and resource implications of the recommendation are considered. (Chapter 11)
The Commonwealth should work for greater co-operation with States and Territories, and actively encourage them to revise and update their Aboriginal heritage protection laws in accordance with agreed standards, so that they can fulfill their primary role in protecting Aboriginal cultural heritage more effectively. Duplication of functions and improved protection could be achieved if the Commonwealth were to recognise and accredit State processes meeting set standards. For example, if consideration of heritage issues were properly incorporated into the State planning process, with an independent means of determining the existence of significant areas or objects in consultation with Aboriginal people, the Commonwealth process could avoid revisiting the question of significance. If an application were made for protection under the Commonwealth Act, the question for the Minister would be limited to the balancing of competing interests in the exercise of an essentially political discretion. That is the proper role for a last resort mechanism. (Chapter 5)
The Commonwealth should support the development of national minimum standards for Aboriginal heritage protection, building on work that has already begun at inter-governmental level. These standards should be reflected so far as possible in Commonwealth law (given its role is that of last resort) and form the basis for accreditation agreements. An important element of minimum standards would be effective procedures to ensure that relevant Aboriginal people are entitled to be consulted in regard to development proposals which may pose a threat to significant sites, to participate effectively in the decision-making process through mediation or other means and to have their wishes taken fully into account. Mediation should be encouraged. (Chapter 5)
The Commonwealth should develop a national policy for all aspects of indigenous heritage protection. Such policy should form the basis of standards for cultural heritage protection, and for programmes at all levels of government which affect Aboriginal heritage. An Aboriginal-controlled body such as an Aboriginal Cultural Heritage Advisory Council should have responsibility to oversee the implementation of this proposal, and should also have a role in monitoring Aboriginal heritage protection nationally and in co-ordinating laws and programmes that have an impact on Aboriginal heritage. (Chapter 3)
The primary goals of cultural heritage protection laws and policies should extend beyond the provision of effective legal protection of areas, sites and objects. They should ensure that programmes for the management of cultural heritage provide for Aboriginal and Torres Strait Islander people to have, to the greatest extent possible, effective control over the protection, preservation and promotion of places, areas and objects which are culturally significant to them. Programmes to advance these aims would include restoration and preservation programmes for significant sites, training and employing indigenous people as inspectors and as rangers and custodians of national parks, and education of Aboriginal people and of the wider community about Aboriginal cultural heritage. (Chapter 3)
(For further details see Chapters 10 and 11) The Review considers that, failing an agreed resolution of an application for long-term protection under the Act, a modified version of the existing process should be followed. The essential nature of the process would be retained: it would be a relatively informal process, involving both an assessment of significance and a decision as to whether and, if so, on what terms to protect or preserve the relevant area by reference to competing interests.
The agency recommended in Chapter 11 to administer the Act up to the point where an exercise of ministerial discretion is called for would make interim protection declarations. It would also and determine applications where agreements resolving applications are made and found to be consistent with the purposes of the Act. The following process is broadly consistent with State and Territory best practice and the direction of inter-governmental reform, and would permit the 'last resort' role of the Commonwealth to mesh with that of States and Territories to produce maximum uniformity.
The proposed process should include the following broad features:
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