Goldflam, Russell --- "Noble Salvage: Aboriginal Heritage Protection and the Evatt Review" [1997] AboriginalLawB 2; (1997) 3(88) Aboriginal Law Bulletin 4

Noble Salvage: Aboriginal Heritage Protection and the Evatt Review

By Russell Goldflam

The good ship ATSIHPA (the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)) was launched by the first Hawke government, in response to Aboriginal demands `for priority to be given to enacting legislation which can counter the real, and at times sudden, threats which are made to significant sites and objects [of Indigenous heritage value].'[1]

The ATSIHPA, however, has failed to deliver the goods. Of the 99 areas subject to applications for protection under the Act, only one--Niltye/Tnyere-Akerte (Junction Waterhole) near Alice Springs--has ultimately received enduring protection through a declaration made under the Act.[2] The ATSIHPA has foundered on the rocks of Federalism, political partisanship, judicial review and, perhaps most importantly, the underlying, unresolved and generally unacknowledged conflict between Australia's Indigenous and colonial legal systems.

Now, on the ill-fated voyage to Kumarangk (Hindmarsh Island), surely her final charter, the ship has sunk. After two extensive--and ruinously expensive--Reports commissioned under the Act were blown out of the water by successful legal challenges,[3] the Commonwealth government has resorted to special legislation designed to bypass both its continuing statutory responsibilities, and the potential for future judicial intervention in the matter.[4]

A few months before the ATSIHPA finally went down, distinguished jurist Elizabeth Evatt was commissioned by then Minister for Aboriginal and Torres Strait Islander Affairs, Robert Tickner, to review the Act. By that stage, it was already clear that the Act was unworkable in its present form, and the Terms of Reference indicated not just a cosmetic refit, but a major rescue operation.

The Review, given the modest resources and timeframe it was allowed, and the volatile climate in which it was conducted (a change of Federal Government occurred midway through the process), is (subject to some criticisms which will be discussed below) an extraordinarily impressive document. In her methodical, meticulous, matter-of-fact manner, Evatt has drawn up a comprehensive blueprint for reform which promises to fulfil the Act's original beneficial purpose, while addressing the myriad of complex difficulties which have plagued its operation. Whether this will be sufficient to raise the ATSIHPA from its current subaqueous state remains to be seen, but there is no doubt that the Evatt Review is a noble salvage attempt.

To properly understand some of the principal features of the Review, it is essential to place it, along with the events originally leading to the passage of the Act itself, in their historical context.

The year 1983 was a very good one for Aboriginal activists and their lawyers. The election of the first Labor Government to Canberra since Whitlam's brought with it a formal policy commitment to both national land rights, and the protection of Aboriginal sites and objects. Then the High Court provided the legal means to implement this policy in the Tasmanian Dam Case,[5] which confirmed that the Commonwealth Parliament was Constitutionally authorised to pass Aboriginal heritage protection legislation under the so-called `race power'.[6]

Thus encouraged, Minister for Aboriginal Affairs, Clyde Holding, convened a panel of lawyers, instructed by a steering committee of Aboriginal and Torres Strait Islander leaders, to draft proposed national legislation for both land rights and heritage protection.[7] Scarcely a month after their first meeting in September 1983, however, the lawyers were asked by Holding first, to defer their work on land rights, and then, to have the draft legislation on heritage protection ready by Christmas, which, in a burst of creative energy, they achieved.

The heritage protection law was thus conceived in arguably indecent haste and secrecy, under circumstances of intense political pressure. The draft legislation was originally framed, on the steering committee's instructions, to `cover the field', endowing the Commonwealth with the primary responsibility for protection of Aboriginal heritage. But the draft still had to navigate a course through a shoal of Departmental, inter-Departmental and inter-Governmental obstacles, and by the time it was introduced in Parliament, it had been radically weakened. In deference to the pragmatics of Federalism (and conscious of three imminent State elections), Holding had been persuaded to substitute the originally planned comprehensive protection regime with a `last resort' model, which only came into play when State or Territory based remedies had been exhausted.

The Aboriginal steering committee was given little option. They reluctantly agreed to endorse the Bill as an interim measure, and, keeping their sights on the real prize of national land rights legislation, they insisted that a two year sunset clause be written into the Act in order to draw attention to its temporary nature.

However, by the time the two years had passed, the dream of national land rights had been abandoned, and the Government simply repealed the sunset clause, apparently on the if-it-ain't-broke-don't-fix-it principle. Indeed, by the end of 1986, there had only been about twenty applications under the Act, resulting in two declarations, both of which had been made under s12 to protect objects from being auctioned off at art sales. No decisions made pursuant to the Act had been challenged in the courts, and it was not readily apparent that it was fatally flawed.

Nevertheless, it should not be forgotten that the Commonwealth had, whether by accident or design, failed to honour its original promise to provide effective comprehensive protection for Aboriginal areas and objects of significance.

The events of 1993 were in some respects uncannily similar to those of 1983. In the wake of Mabo [No. 2],[8] the Commonwealth again assembled a high-level team of Indigenous leaders and their legal advisers, this time to negotiate native title legislation. Again, one of the key Aboriginal and Torres Strait Islander demands was for `immediate Federal legislation ... to ensure total security for Aboriginal sacred sites and heritage'.[9] Again, the Government agreed to meet this demand, this time as part of a negotiated settlement in which endorsement was given to the Native Title Bill, in return for which the Commonwealth promised to include comprehensive heritage protection as part of the planned Native Title Social Justice Package.

And again, the Commonwealth failed to honour its promise.

Arguably, the appointment in October 1995 of Elizabeth Evatt to review the Act can be seen as a genuine, if belated, attempt to make good this undertaking. There are, however, at least two good reasons to doubt this. First, the timing of the Review, shortly following the quashing in quick succession by the Federal Court of two Ministerial declarations made under s10 of the Act,[10] strongly suggests the application of the if-it's-broke-fix-it principle, rather than the keep-your-promises principle. Second, in announcing the Review, Minister Tickner effectively precluded the resurrection of the original `cover the field' approach, by stating that

`It remains the Commonwealth's policy that State and Territory Governments will continue to have primary responsibility for Aboriginal and Torres Strait Islander heritage'.[11]

The contrast between the can-do open-ended optimism of 1983 and the cautious, constrained pragmatism of 1996 reflects the lifecycle of the Federal Labor Government, and in particular the Aboriginal and Torres Strait Islander Affairs portfolio, from its exhilarating first few months to its embattled final phase. Holding's glittering constellation of land rights lawyers working feverishly in hothouse conditions under the Minister's personal direction epitomised the heady and even headlong approach of Hawke's first Ministry. By comparison, Tickner's tack twelve years down the track was more formal, considered, arms-length, open, consultative and modest in its expectations. The days of the quick fix were over.

The Review's procedures have not entirely escaped criticism: as Evatt acknowledges herself, no Indigenous people were seconded by the Government to the team which conducted the Review, a strange omission. Aboriginal groups legitimately complained that insufficient time was allowed for consultations and submissions. A key document, the recent inter-Governmental report on the interaction between Commonwealth and State and Territory heritage protection regimes,[12] was not made available to non-Government groups participating in the Review.

Nevertheless, in general, the conduct of the Review appears to have been exemplary, as can be gleaned by an examination of its Report, which comprehensively considers and evaluates representations made to Evatt in some 69 written submissions and through extensive national consultations. Annexed to the Report is an invaluable case study of the applications made under the Act since its inception, and a detailed survey of existing State and Territory laws on Aboriginal cultural heritage.

A serious concern, however, is that although at the time of writing the Coalition Government has publicly supported the Review, and said that it `has placed a high priority on addressing the findings of the Report',[13] it has neither announced a timetable for this to occur, nor given any explicit indication of which, if any, of Evatt's recommendations it intends to adopt. Indeed, the only directly relevant substantive action it appears to have taken since the presentation of the Report to Minister John Herron in August 1995 has been to introduce the Hindmarsh Island Bridge Bill, another quick-fix approach of sorts.

Despite the Government's disturbing failure to date to either endorse or reject the Report, it has justified its plan to remove the existing right of native title claimants to negotiate with mining prospectors on the purported ground that heritage protection legislation already provides this right.[14] Evatt, in describing this proposed amendment to the Native Title Act 1993 (Cth) as `unfortunate', points out that the Government's argument is spurious:

`... 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'.[15]

Given this record, there appears every reason to doubt that Evatt's proposed reform package will be enacted by the present Government.

So just what are these proposed reforms? The following summary outlines key elements embodied in the Report's 115 recommendations:

• Aboriginal customary law should be recognised and respected, and its rules regarding the disclosure of restricted information should be observed. Traditional laws regarding protection should only be overridden in cases of demonstrated compelling public interest.
• Questions of both the significance and threatened desecration of asserted heritage property should be conclusively determined by appropriately constituted State/Territory or Commonwealth Aboriginal heritage bodies, based on a subjective test, namely the degree and intensity of belief and feeling of the relevant Aboriginal community regarding the area or object in question. Applicants would not be required to breach customary law regarding the disclosure of information, and third party involvement in the assessment should be minimal.
• Procedures under the Act should encourage developers to address possible Indigenous heritage protection issues at an early stage of the planning process. Procedures for the conduct of enquiries should provide for interim protection of threatened heritage property during the enquiry process, realistic time lines for the determination of applications, a commitment to informality and accessibility, and specified standards of procedural fairness to protect both applicants and other interested persons.
• Existing mediation procedures should be strengthened, with disputing parties being offered mediation, during which heritage property would be protected. Mediated agreements should be made legally enforceable through a registration procedure.
• Whether or not to protect an item of property in the long-term, being ultimately a matter of political discretion, should be determined by the Government, which should be required to provide reasons for its decision. The Minister for Aboriginal and Torres Strait Islander Affairs should have to rely on the prior assessment of significance and desecration, to consider a Report (without recommendations) into the issue, and to balance the wishes of Aboriginal applicants with those of other parties. The Minister ought not to be obliged to personally read all of the representations made to the Reporter, but their content should be summarised in the Report.
• A small, independent, expert, gender-balanced Commonwealth Aboriginal Heritage Protection Agency with a majority of Aboriginal people and supported by an Aboriginal Cultural Heritage Advisory Council, should take over most of the administrative functions under the Act currently carried out by the Land, Heritage and Environment Branch of the Aboriginal and Torres Strait Islander Commission, and by the Minister. These functions should include registration and initial assessment of applications, making interim protection declarations, conducting mediations, assessing questions of significance and desecration, holding enquiries, and preparing Reports to the Minister. The Minister would retain the function of deciding whether to make a declaration for long-term heritage protection, and on what terms.
• Although the Act should remain a measure of last resort, a national Aboriginal heritage protection policy would establish minimum standards for regional regimes under which complying States and Territories could accredit their processes and agencies. To minimise duplication and delay, preliminary issues, such as the assessment of significance, should be determined where possible by accredited State or Territory bodies, rather than by the Commonwealth agency.
• A national policy would cover both the provision of legal protection, and the establishment of a range of Aboriginal-controlled programs for the active and appropriate management of Aboriginal cultural heritage property.

This complex set of proposals has been carefully crafted to navigate the ATSIHPA past the many legal and administrative rocks it has struck in recent years. Four of the numerous illustrations which could be cited of how this has been achieved are discussed here.

`Effective' protection

The adoption of Recommendation 10.3 (`the Act should specify that effective protection of an area or object under the law of a State or Territory means actual or legal protection of indefinite duration') would prevent the recurrence of a common problem which received judicial attention in relation to the Goonininup/Swan Brewery dispute in Perth. In that case, Minister Gerry Hand revoked his own protection declaration on the ground that `effective' protection had been made available under a Western Australian law, despite the fact that under that law a decision had been or was in the process of being made not to protect the site.[16]

`Considering' the representations

Recommendations 10.42 and 10.44 resolve the difficulty resulting from recent Federal Court rulings that the Minister is required to personally consider all representations made to the Reporter.[17] Under the Act as currently construed by the courts, had Minister Herron been required to address the second Kumarangk/Hindmarsh Island Report, he would have been compelled to read thousands of pages including, among hundreds of other representations, the complete transcript of the South Australian Royal Commission conducted by former judge Iris Stevens, and to watch dozens of hours of video-taped oral submissions made to the Reporter, Justice Jane Mathews. The Minister doubtlessly greeted the High Court's decision in Dorothy Ann Wilson v Minister for Aboriginal and Torres Strait Islander Affairs,[18] which relieved him of this task by declaring Justice Mathews' appointment invalid, with some relief.

Protecting confidentiality

Over a dozen interlocking recommendations concerning confidentiality have been formulated on the premise that:

`the starting point of laws protecting heritage should be respect for the customary law restrictions on the knowledge and information that underpins the significance of the heritage site ... Without that respect, laws aiming to protect heritage are more likely to destroy than protect'.[19]

If adopted, these recommendations would effectively negate the finding in the Yawuru site/Broome Crocodile Farm case that in the interests of procedural fairness, confidential material must be provided to parties affected by and opposed to the protection of a site.[20] The recommendations would also result in the adoption of the work area clearance model as a standard for site clearance.

As a direct result of that decision, the applicants in the Kumarangk/Hindmarsh Island case withdrew submissions of confidential material from the Mathews s10 enquiry.[21] Further

gender-restricted information had already been withheld from the Reporter by the women applicants in the knowledge that a male Minister would read such information, following the Commonwealth's rejection of the women's request that a female Minister be appointed to determine the application.[22]

In the event, although she found the area was of particular significance to Aboriginal people, Justice Mathews reported that there was insufficient material from which the Minister could be satisfied that the building of the Hindmarsh Island Bridge would desecrate the area. (That finding, it should be noted, was relied on heavily by the Government in justifying its decision to enact special legislation to enable the development to proceed.[23]) However, had Mathews conducted her inquiry under the procedures now proposed in the Evatt Report, the applicants would have been able to divulge potentially crucial restricted information to her without having to fear that it would be disclosed to either the opposing parties, or to the Minister. Had this occurred, the Reporter may well have reached a quite different conclusion with respect to the issue of desecration.

These recommendations have been attacked, essentially on the basis that they are unfair to developers.[24] Suffice it to say here that in her Report Evatt carefully considers, and duly rejects, these arguments.

`The desecration test'

The final example concerns Recommendation 8.9, that the question of whether a threatened area would be injured or desecrated should be approached in the same manner as the question of significance--namely, by applying a subjective test as to the degree and intensity of belief and feeling held by the applicants on the question.

This is in sharp contrast to the view taken by Justice Mathews of the correct application of the current Act, following the recent Federal Court findings.[25] While adopting (albeit with some reservations) a subjective test in relation to the issue of significance, she applied an objective test to the issue of desecration, holding that in order for a Minister to be satisfied that an area is under threat of desecration, he or she would have to regard it as probable that the threatened action would in fact constitute an act of desecration.[26] An inevitable consequence of this approach is that in order to pass `the desecration test', applicants are required to divulge details of the content of their beliefs, a requirement in the Kumarangk case with which they felt unable to comply because it would have led them into breach of their own customary laws.

The application of Evatt's recommended approach would almost certainly have resulted in a different finding on the key issue of desecration in that case. This does not mean that the presumed end result--a decision not to issue a declaration protecting the site--would have been any different. The executive would still have had the opportunity, indeed the obligation, to make the final decision on this point. But that decision would have more clearly been seen for what it actually (and properly) is: a political judgment which balances the interests of competing social groups according to the values and discretion of an elected decision-maker. This, it is suggested, is the powerful rationale for Evatt's insistence that the assessment of applications be separated into two distinct stages.

The above examples support the assertion that Evatt's recommendations comprehensively address the many technical problems encountered in the operation of the Act over recent years. Her Report, however, is not entirely immune to criticism.

As has been discussed above, the realpolitik of Commonwealth/State relations effectively compelled Evatt to retain the Act's `last resort' model. She has attempted to enhance the effectiveness of this model by deftly wielding both carrot (by allowing for the preferred use of accredited State/Territory processes within the Act), and stick:

`The proposal for the Commonwealth to `take over' should not be completely discounted in the longer term as a solution to the current difficulties if it ultimately proves impossible to gain the support of the States for necessary reform measures'.[27]

However, history would suggest that prospects for the kind of co-operative arrangements envisaged by the Report are dim. In practice, complementary regimes tend to be unwieldy, maintenance of minimum standards is difficult to police, and co-operation is weakened by underlying tensions between Commonwealth and State or Territory Governments, particularly when they are of contrasting political complexion.

The Report touches on the vexed problem of dealing with conflict within an Aboriginal community regarding issues of significance and desecration. This of course came to be of critical importance in the Kumarangk/Hindmarsh Island dispute, but has also occurred in other cases. Unfortunately, Evatt apparently places this particular issue in the too-hard basket, recommending simply that the proposed Agency develop appropriate procedures to deal with such cases. Although this seems disappointingly vague, it may be that Evatt took the view that it was appropriate for her to defer to the expertise and authority of an Aboriginal group to address this key issue peculiarly within their province. However, the Report does take the view that the fact that some Indigenous people may not believe that, for example, a site is particularly significant, would not of itself derogate from the belief of others of another group which does believe the site to be significant.

Finally, as was suggested at the beginning of this article, the most serious obstacle confronting the Act is its failure to seriously acknowledge that Aboriginal heritage property is subject to not one but two legal regimes, as Justice Mathews notes at the very outset of her Report:

`The events precipitated by the bridge proposal have thus far revealed many deficiencies in Commonwealth laws designed to protect and preserve areas and objects of traditional Aboriginal significance ... the most pervasive of the deficiencies is much more difficult to rectify than a piece of legislation. It reflects the fundamental differences between the introduced common law system and the legal system of the Indigenous oral culture. This latest episode in the Hindmarsh Bridge saga has provided graphic illustration as to how little our apparently beneficial legislation has accommodated to the realities of Aboriginal culture. I hope that one outcome of this episode may be that a completely new approach is adopted in relation to Aboriginal heritage issues'.[28]

Constrained as it was by its Terms of Reference and the political climate in which it was conducted, the Evatt Review could never have amounted to the `completely new approach' contemplated by Justice Mathews. Elizabeth Evatt was commissioned to undertake a difficult task, and she has made a noble job of it, but in the end all she could do was salvage the wreck of the ATSIHPA. The ATSIHPA is an enactment of one legal system which is yet to formally recognise the existence of another, parallel legal system in this country. And until that recognition is attained, the Act can never guarantee the right of Indigenous Australians to protect and preserve their cultural property according to their traditional laws.

[1] Senator Susan Ryan, Second Reading Speech, Senate Hansard, 6 June 1984

[2] Hon Elizabeth Evatt AC, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, Commonwealth of Australia, 1996 (`the Evatt Review'), Annex VII.

[3] The first Report, by Professor Cheryl Saunders AO, was nullified by Chapman v Tickner (1995) 133 ALR 74 (upheld in Tickner v Chapman &Ors [1995] FCAFC 1726; (1995) 133 ALR 226), primarily on the basis that parties had been denied procedural fairness. The second Report, by Justice Jane Mathews (`the Mathews Report'), was nullified by Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (High Court of Australia, unreported, 6 September 1996) in which it was held by a majority of 6:1 (Kirby J dissenting) that the appointment of the Reporter had been invalid

[4] The Hindmarsh Island Bridge Bill 1996 was introduced on 17 October 1996, and is, at the time of writing, before the Senate.

[5] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1. See for example Brennan J at 244; Deane J at 276.

[6] Section 51(xxvi) of the Australian Constitution.

[7] . The following discussion is based on a participant's account of the panel's work, in `Power, Policy, Politics and Persuasion-Protecting Aboriginal Heritage under Federal Laws', G Neate, Environmental and Planning Law Journal (September 1989), 214-248

[8] Mabo v Queensland [No. 2] [1992] HCA 23; (1992) 175 CLR 1.

[9] From the `Aboriginal Peace Plan' presented to Prime Minister Keating on 27 April 1993.

[10] Chapman v Tickner (1995) 133 ALR 74 (Kumarangk/Hindmarsh Island); and WA v Minister for Aboriginal and Torres Strait Islander Affairs (1995) 37 ALD 633 (Yawuru site/Broome Crocodile Farm).

[11] Robert Tickner, `Elizabeth Evatt to Head Review of Indigenous Heritage Legislation' (Press Release), 20 October 1995.

[12] Ministerial Council on Aboriginal and Torres Strait Islander Affairs, Working Party Report on Item 4.1: Aboriginal Heritage Interaction between States, Territories and Commonwealth (1995).

[13] Chris Miles MP, Second Reading Speech, Hindmarsh Island Bridge Bill, House of Representatives Hansard, 17 October 1996.

[14] Towards a More Workable Native Title Act: An Outline of Proposed Amendments, Commonwealth of Australia, 1996, p14.

[15] Evatt Review, p27.

[16] See Tickner v Bropho [1993] FCA 208; (1993) 114 ALR 409.

[17] See, for example, Tickner v Chapman &Ors [1995] FCAFC 1726; (1995) 133 ALR 226.

[18] Unreported, 6 September 1996.

[19] . Evatt Review, 55.

[20] Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (Federal Court, WAG Nos 18 and 19 of 1995, unreported judgment delivered on 28 May 1996, per Black CJ, Burchett J, Kiefel J). See `Crocodile Farm: Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia', N Hancock, Vol 3, 82 Aboriginal Law Bulletin 12.

[21] . Mathews Report, p44.

[22] . Mathews Report, p27.

[23] See Chris Miles MP, Second Reading Speech, Hindmarsh Island Bridge Bill, House of Representatives Hansard, 17 October 1996.

[24] `Proposals a Backward Step', S Palyga, Australian Lawyer (December 1996). The arguments in this article are substantially the same as those dealt with by Evatt in her Report. The author is the solicitor for Hindmarsh Island developers, Tom and Wendy Chapman.

[25] . Tickner v Chapman &Ors [1995] FCAFC 1726; (1995) 133 ALR 226; and Minister for Aboriginal and Torres Strait Islander Affairs v Western Australia (Federal Court, WAG Nos 18 and 19 of 1995, unreported judgment delivered on 28 May 1996, per Black CJ, Burchett J, Kiefel J).

[26] . Mathews Report, p194.

[27] . Evatt Review, p74.

[28] . Mathews Report, p1.