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Minority Report by Australian Greens and ALP Senators
Greens
and ALP Senators are concerned the Howard Government has failed to deliver on
its promises to better protect Indigenous heritage.
On
20
August 2003, during debate on
the Environment and Heritage Legislation Amendment Bill, Senator Robert Hill told the Senate:
We gave undertakings a couple of days ago that the
[ATSIHP] Bill would be brought to the Senate as
quickly as possible. The minister has
since reaffirmed to me that negotiations and consultations are continuing to
take place...We recognise the shortcomings in the existing system. Reform of that is long overdue...We are anxious
to have a new and better piece of legislation put in place as quickly as possible.
Greens
and ALP Senators are concerned that the “new and better piece of legislation”
has never materialised, and Indigenous groups have not been properly consulted.
We
are, therefore, concerned that the Chairman’s report does not address the
reason for referral to committee (as stated in Hansard, Selection of Bills
Committee report, 9 November 2005), namely
(i) Adequacy of
amendments to protect Indigenous heritage
(ii) Do amendments address concerns of
Indigenous Australians?
(iii) Do amendments reflect changes
recommended by the Evatt Report?"
We
are also concerned that the Chairman’s report does not fully address the
concerns raised by Indigenous communities during the limited consultation
process.
The
Chairman’s report considers the extent to which the Bill meets its stated
objectives (greater certainty of cultural loan arrangements, enabling Victorian
State legislation, clarifying legislative instruments status) but in doing so
does not consider how the particular amendments specifically relate to the
three criterion of this inquiry (protecting heritage, Indigenous concerns,
Evatt recommendations) nor does it consider how the Bill as a whole addresses
these issues.
We
note that there were few submissions to the inquiry and that the issues raised
in the referral to committee were not substantively addressed in those
submissions. It is unfortunate that the timing of this inquiry over Christmas meant that few submissions were forthcoming. Discussions with
community representatives over the last six months have highlighted concerns
over heritage issues, and we do not believe that the lack of engagement with
the inquiry is reflective of a lack of community concern with the issues.
1. The Chairman’s Report
(a) Greater certainty of international cultural loans
We
support the analysis of the report that the Bill will deliver greater certainty in this regard. The emergence of these
problems however illustrates a wider concern within the Indigenous community
about the return of artefacts of great cultural significance that were taken
without consent. Many Indigenous communities may not consider the ability to
view stolen sacred artefacts behind glass in one of our museums a substitute
for the effective loss of that heritage. While the Bill provides loan certainty to overseas museums and collections, it does
not address these community concerns about the protection of their heritage nor
the recommendations of the Evatt report on the repatriation of objects.
Recommendation
12.4 of the Evatt Report states that "...to fulfil its overall national
responsibility for Aboriginal cultural heritage, and to underline the national
importance of protecting that heritage, the Commonwealth Government should
include the repatriation of Aboriginal cultural material on the agenda of its
bilateral discussions with relevant countries". It is unclear to what
extent this is in fact taking place, and the committee may need to seek
information from DFAT in relation to this issue to address the reasons of
referral of this Bill to committee. It is important to note that there is
increasing international activity around the return of cultural artefacts, with
the Government of Italy now suing what is arguably the wealthiest museum in the
US. Within this changing international environment it
seems like a good time to revisit this issue.
Recommendation 1:
That the enacting of legislation to provide certainty
for international loans of Indigenous Australian artefacts be
accompanied by a clear policy on the investigation and repatriation of objects
of cultural significance that have been removed from Australia without the
consent of their custodians.
(b) Concordance with the Legislative Instruments Act
2003
Legitimate
concerns were raised by the Central Land Council regarding the impact of the
sunset clause in this Act which would effectively see heritage protection
declarations made by the Minister automatically ceasing after 10 years. While
these concerns were raised in the report, it is our opinion that bringing them
to the attention of the Minister may not be a sufficient response, and the
committee should recommend that the Bill be amended as suggested by the CLC.
This would ensure that existing declarations do not have to be remade.
Recommendation 2:
That provisions be made in Schedule 3 of the Bill for
the Legislative Instruments Regulations 2004 to be amended to include
Ministerial declarations made under sections 10 and 12 of the Heritage
Protection Act in the list of legislative instruments which are exempt from the
sunsetting provisions.
2. Addressing the Reasons for Reference
(i) Protecting Indigenous Heritage
Since
coming to power in 1996 the Howard Government has failed to meet its
obligations to protect and conserve Indigenous heritage and has drastically
reduced its engagement in Indigenous heritage issues. This has been illustrated
both in the Government's reluctance to use the ATSIHP Act and in its
administration of the heritage provisions in the Environment Protection and Biodiversity Conservation Act 1999 (EPBC
Act).
The
1984 ATSIHP Act was initially enacted as a temporary stop-gap measure while the
then Labor government developed more comprehensive national land-rights
legislation. When it became apparent in 1986 that such legislation would not be
forthcoming, its sunset clause was repealed. The point is that it was not at
the time considered to provide an adequate national approach to the
Commonwealth's heritage obligations, and was described in the Evatt report as
an Act of 'last resort' intended to fill the gaps in State and Territory
heritage protection.
It
is fair to say that the ATSIHP Act has seen very little use. Of the two hundred
applications lodged since its commencement in 1984 only twenty-two declarations
have been made. Since the advent of a Coalition Government in1996 only one
declaration has been made. At the same time there has been an apparent
reluctance to prosecute breaches of the Act. Furthermore, with the advent of
the EPBC Act it appears the intention of the Commonwealth has been to confine
its statutory involvement in Indigenous heritage issues to the EPBC Act, while
ignoring the ATSIHP Act.
There
is now a view that with the advent of the heritage provisions in the EPBC Act
"...[i]n so far as practical implementation, the ATSIHP Act is ostensibly a
piece of dead legislation, at least in terms of the life of the Howard
Government" (Wilkinson & Macintosh 2006, in press). That is, it
appears the intention of the Commonwealth has been to confine its statutory
involvement in Indigenous heritage issues to the EPBC Act, while ignoring the
ATSIHP Act.
This
is problematic for two reasons. Firstly, the ATSIHP Act has a far greater
capacity to protect Indigenous heritage than the EPBC Act. The EPBC Act
confines the statutory role of the Commonwealth to matters of international
significance (i.e. World Heritage Areas), national significance (i.e. National
Heritage places) and places located in Commonwealth areas (i.e. Commonwealth
Heritage places). The ATSIHP Act contains no such limitations.
In
the Intergovernmental Agreement on the Environment (1992) and the Council of
Australian Government’s (COAG) Heads of Agreement on Commonwealth and State
Roles and Responsibilities for the Environment (1997), the Commonwealth
expressed a desire to limit its involvement in environmental issues largely to
Commonwealth areas and matters of international and national significance. In
this sense, the structure outlined in the EPBC Act is consistent with a
long-standing policy on environmental issues. However, the COAG agreement
explicitly excludes heritage issues from this arrangement, stating only that a
‘co-operative national heritage places strategy’ should be prepared that sets
out the roles and responsibilities of the Commonwealth and states on heritage
issues. In relation to Indigenous heritage, the COAG agreement notes in Clause
6 that ‘indigenous
heritage issues are being addressed in a separate process and are not covered
by this Agreement’. To date, the co-operative
national heritage places strategy has not been prepared and the Indigenous
heritage process appears to have been terminated by the Federal Government in
the late 1990s. Consequently, it appears the Commonwealth’s decision to confine
its involvement in Indigenous heritage issues in the manner described was a
unilateral decision made with little or no consultation with Indigenous
communities or the states and territories.
When
the heritage amendments to the EPBC Act were debated in 2003, Senator Robert
Hill gave repeated assurances that the Government was carrying out a
consultation process with Indigenous communities on an amendment bill to the
ATSIHP Act that would ensure the Commonwealth continued to play an active role
in the protection of Indigenous heritage sites that did not fall within the
scope of the EPBC Act. He also assured the Senate that this amendment bill
would be debated in Parliament as soon as the consultation process was
completed.[25] From the information that
is currently available, it appears there was no consultation process at the
time these statements were made and that no consultation on a broad ATSIHP
Amendment Bill has been carried out with Indigenous communities since.
The
second reason why the limitation of the Commonwealth’s involvement in
Indigenous heritage protection to the EPBC Act regime is problematic concerns
the way the National and Commonwealth Heritage Lists are being administered. In
relation to the National Heritage List, it appears that a place of significance
to a particular Indigenous community will not be eligible for inclusion on the
National Heritage List unless it can be established that the place is important
to the broader Australian community, for example, because it is of
archaeological, anthropological, or scientific interest, or because it marks a
significant event in colonial or post-Federation history. By establishing these
stringent criteria, the Howard Government has ensured that a significant
proportion of Indigenous heritage places will not be included on the National
Heritage List, and those that are will not necessarily be the sites that are of
greatest value to Indigenous Australians.
A
further problem that applies to both the National and Commonwealth Heritage
Lists concerns the manner in which the Minister for the Environment and
Heritage has exercised statutory discretions to stall or block the listing of
Indigenous heritage sites that do meet the listing criteria. As the Greens, the
ALP and others predicted in the debate concerning the heritage amendments to
the EPBC Act, the listing processes have become highly politicised and the
Minister has demonstrated an unwillingness to list places that are politically
contentious.
The
decision making process under the EPBC Act in relation to Indigenous heritage
protection is felt in this way to ultimately reflect another example of 'white
people making decisions about black issues and values'. Further, the apparent
priority that is being given to places that relate to colonial and
post-Federation history suggests that the Government is not concerned about
Indigenous heritage, or at the very least, that it sees it as a ‘lower order’
issue.
(ii) Addressing concerns of Indigenous Australians
We
are concerned that the timing of the ECITA inquiry into the ATSIHP Amendment
Bill 2005 was such that we were unable to illicit substantive Indigenous
community submissions or enable adequate community consultation to properly
ascertain the level and substance of community concern regarding this Bill. This issue has been particularly acute during this inquiry due to the
reduced capacity within Indigenous community organisations in recent times,
consultation fatigue, and the requirement for submissions to be turned around
quickly so late in the year. One of the fundamental principles of Indigenous
community consultation is allowing sufficient time for discussion and decision-making
processes to take place.
The
parliamentary committee inquiry process is not one that is easily accessed by
Indigenous communities, and where parliamentary committees have been seriously
engaging with Indigenous issues they have often adapted the inquiry process to
make it more user-friendly – for example, holding informal committee hearing
on-the-ground in Indigenous communities. There is an increasing degree of
cynicism among community members who have taken part in government consultation
processes at various levels and have not felt that their contributions were
valued or taken into account in the final policy outcomes.
(iii) Reflecting the Evatt Report recommendations
While
it is arguable that some of the amendments may address particular recommendations
arising from the Evatt Report (e.g. the need for a consistent national policy),
it is fairly clear that these amendments as a whole do not address the report's
recommendations in a substantive fashion and that there is no evidence of any
other efforts on behalf of government to address the reports major
recommendations.
We
acknowledge that the Evatt Report recommendations were not substantively
addressed by any of the submissions, however this Bill relates to Aboriginal and Torres Strait Island Heritage Protection and
one of the reasons for referral was to assess the amendments against the Evatt
Report recommendations. We are concerned that what was a very comprehensive
report that made some very sensible and extremely valuable recommendations related
directly to the title of this Bill is not
being addressed.
The main points of the Evatt
report recommendations include:
-
Respecting
customary restrictions of information including gender-restricted information.
-
Protection from
disclosure contrary to customary law restrictions including guidelines on the
kind of information courts can seek and exemption from freedom of information
laws.
-
Guaranteed access
rights to sites of recognised significance for those recognised as being
allowed to do so under customary law.
-
Effective
interaction with state and territory laws.
-
Minimum standards
for State and Territory cultural heritage laws including automatic blanket
protection for sites clearly falling within these standards.
-
The establishment
of independent Indigenous cultural heritage bodies.
-
The integration
of cultural heritage assessment into the planning and development process at
the earliest possible stage.
-
The establishment
of an Aboriginal Cultural Heritage Agency and of Indigenous cultural heritage
bodies controlled by Aboriginal members representative of Aboriginal
communities with responsibility for site evaluation and administration.
-
The inclusion of
protection of all aspects of Indigenous heritage, including intellectual
property
-
That decisions on
a site are an issue for Indigenous people to determine on the basis of an
assessment of the intensity of belief and feeling of significance.
-
Decisions should
be made on the basis of information provided by relevant Indigenous communities
or individuals and that any anthropological information be provided with their
consent
-
That a voluntary
mediation procedure should be developed to encourage agreement making, within
an adequate timeframe to allow proper consultation and negotiation with the
site protected during the process.
Recommendation 3:
That the Federal Government fulfils its previous
commitment to consultation with Aboriginal and Torres Strait Island communities
on a broad range of amendments to the ATSHP Amendment Bill, including those
recommended by the Evatt report.
Recommendation 4:
That the Federal Government fulfils its previous
commitment to review the ATSIHP Act with a view to introducing a broader ATSIHP
amendment Bill within the current term of Parliament.
3. Summary of Recommendations
The Chairman’s report does
not adequately address the stated reasons for referral to committee, and the
proposed amendments are arguably insufficient when judged against these
criteria. They do not appear to adequately protect Indigenous heritage, they do
not seem to address the concerns of Indigenous Australians and they do not appear to reflect the
recommendations of the Evatt report.
The Government should deliver
on its 2003 commitment to fully consult with Indigenous communities and to
introduce a “new and better piece of legislation”.
Recommendations
1. That the enacting of legislation to provide certainty
for international loans of Indigenous Australian artefacts be accompanied by a clear policy on the
investigation and repatriation of objects of cultural significance that have
been removed from Australia without the consent of their custodians.
2. That provisions be made in Schedule 3 of the Bill for the Legislative Instruments Regulations 2004 to be amended to
include Ministerial declarations made under sections 10 and 12 of the Heritage
Protection Act in the list of legislative instruments which are exempt from the
sunsetting provisions.
3. That the Federal Government fulfils its previous
commitment to consultation with Aboriginal and Torres Strait Island communities on a broad ATSHP Amendment Bill
4. That the Federal Government fulfils its previous
commitment to review the ATSIHP Act with a view to implementing the Evatt
Report recommendations.
Senator Rachel Siewert
Senator Kate Lundy
Senator Dana Wortley
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