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Australian Greens Addendum
Community concerns regarding state
Indigenous heritage legislation
The Australian
Greens have some additional concerns regarding the enabling of State
administration of Aboriginal heritage protection in Victoria that we do not believe
were adequately addressed by the Chairman's report.
We feel that it should be noted that serious concerns have been raised
by Indigenous communities in Victoria about the substance of the proposed state
legislation. Concerns include the lack of adequate Indigenous community
consultation and involvement in the drafting of the Victorian legislation, and
the manner in which it excludes some traditional owners and Aboriginal
organisations from decision-making processes and may ultimately over-ride their
ongoing role as the traditional custodians of their heritage.
The concerns raised by the Yorta Yorta in their submission raise some
complex issues for this committee inquiry, as they substantively relate to the
manner in which the Victorian Government has purportedly failed to adequately
consult with and address the concerns of Indigenous peoples in constructing its
draft legislation. They are concerned that the draft Victorian legislation
imposes an Aboriginal Heritage Council which is appointed by the Minister and a
system of Registered Aboriginal Parties that do not necessarily reflect
existing community structures, decision making processes or recognised
Traditional Elders. These measures could undermine existing community
structures, agreements and decision-making processes and create community
conflict between those community leaders who are included and excluded from the
council.
They are also concerned that the proposed state heritage legislation
effectively sidelines Indigenous involvement in decisions about cultural
heritage to a purely advisory role, and increases the ability for Indigenous
people to be played off against one another. There are also serious concerns
for existing community appointed Aboriginal heritage inspectors and cultural officers
who have invaluable knowledge, experience and community contacts.
Community concerns have also been raised about the manner in which the
proposed structure for Aboriginal Heritage Agreements and Cultural Heritage
Permits takes away any right of veto over development proposals and creates
potential conflicts of interest for the state government on proposed
developments.
The difficulty for the committee is in weighing up the prima facie case
for uniform legislation across States and Territories with the manner in which
the devolution of responsibility to Victoria may effectively mean that the
Commonwealth is failing to meet its heritage obligations to the Indigenous
peoples of Victoria. In this way both the amendments to the ATSIHP Act and the
Victorian legislation fail to meet the recommendations of the Evatt report,
particularly in relation to minimum heritage protection standards, integrating
heritage into planning processes and Indigenous decision-making.
While Australian Greens support in principle a consistent application
of Commonwealth law across all State jurisdictions, we believe that the
Commonwealth has an obligation to ensure that Indigenous heritage will be
adequately protected before it devolves responsibility to Victoria. The
Commonwealth has legal and moral obligations to protect Indigenous heritage
that arise from international agreements, the Australian Constitution and the nature of the Australian political system. The ATSIHP Act was
intended to act as a fall-back measure for situations in which states or
territories were not ensuring this protection. To this end, we are concerned
the ultimate effect of enacting this Bill without ensuring the proposed
Victorian legislation meets Commonwealth and community expectations would be a
diminution of the protection of Aboriginal heritage in Victoria.
Recommendation 5:
That the Commonwealth pursue further
consultation with Aboriginal groups over their concerns with state and
territory heritage legislation and undertake to discuss with the state and
territory governments any community concerns with to ensure no diminution of
heritage protection.
Senator Rachel Siewert
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