• Specific Year
    Any

Sutherland, Johanna --- "Federal Heritage Protection Bill: Senate Upgrade Rebuffed" [2001] IndigLawB 60; (2001) 5(11) Indigenous Law Bulletin 14

Federal Heritage Protection Bill:

Senate Upgrade Rebuffed

by Johanna Sutherland

First published by the Indigenous Law Bulletin in February 2000, volume 4, issue 27.

On 26 November 1999, the Senate agreed to 179 amendments to the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 (Cth). The Bill is the Federal Government’s legislative response to the recommendations of the Hon Justice Evatt’s 1996 report on the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).[1] On 6 December, the House of Representatives rejected all but twenty of those amendments. Those it did agree to were relatively minor.

Indigenous organisations, opposition Senators and the Government were to meet for further discussions in January and February, but hopes are not high that the Government will agree to additional amendments. If the opposition Senators insist on their amendments and the House of Representatives again refuses to agree, the Bill is likely to be laid aside, leaving the 1984 Act in place.

The opposition Senators’ amendments propose the creation of an independent Commonwealth Indigenous Heritage Protection Agency, a Heritage Registrar, and an Indigenous Cultural Heritage Advisory Council. The Bill had proposed the creation of a statutory office of Director of Indigenous Heritage Protection, and a Register of Claims for Protection. The opposition-preferred Agency would have powers to issue findings which would be binding on the Minister and require Ministerial orders to be issued, unless fresh evidence becomes available or unless the order is not in the ‘national interest’ (defined to include international obligations).

The amendments would also strengthen the Bill’s criteria in cl 26 for accrediting State and Territory Indigenous heritage legislation by requiring the States and Territories to:

  • Protect all significant indigenous areas and significant objects from injury or desecration (unless not in the interest of the State or Territory);
  • effectively integrate Indigenous heritage protection and planning and development laws and processes;
  • ensure access by Indigenous persons to areas of significance in Indigenous traditions;
  • establish independent and Indigenous-controlled heritage protection bodies subject to judicial review;
  • protect culturally-significant information and not require Indigenous people to provide information where to do so would be contrary to Indigenous tradition;
  • provide for notification and advance approval from Indigenous persons for activities in significant Indigenous areas; and
  • ensure that Indigenous Australians can enter into agreements about areas of significance which would be registrable upon State and Territory land titles.

These amendments were developed mainly by Opposition Senators following significant consultations on the Act and the Bill. In addition to the Evatt review, consultations included two Government discussion papers,[2] two reports by the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, a Senate Legal and Constitutional Legislation Committee report,[3] and further consultations with Indigenous leaders and others during the contested progress of the Bill through Parliament.[4]

Dr Johanna Sutherland is a lawyer with a longstanding interest in human rights and environmental law.


[1] Hon Elizabeth Evatt AC, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (1996).

[2] ATSIC Heritage Act Review Task Force, National Standards for Protecting Indigenous Heritage: A Discussion Paper (1997); and ATSIC Heritage Act Review Task Force, Reforming the Aboriginal and Torres Strait Islander Heritage Protection Act 1984: A discussion Paper (1997).

[3] Australia, Senate Legal and Constitutional Legislation Committee, Provisions of the Aboriginal and Torres Stair Islander Heritage Protection Bill 1998 (1999); Australia, Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Eleventh Report: The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (1998); Australia, Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Twelfth Report: The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 (1998).

[4] See generally the (1998) 4 (16) Indigenous Law Bulletin special Heritage thematic issue.

Download

No downloadable files available