CHAPTER 4
Issues Arising: (1) Uncertainty and Delays
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. (Evatt Report p.xiii)
The Act: Inter-governmental Consultations
4.1 Subsection 13(2) of the Act obliges the Commonwealth Minister to
consult with the appropriate State or Territory Minister before making
a protection declaration. These consultations are intended to establish
whether, under a law of the relevant State or Territory, there is effective
protection of the area, object or objects.
4.2 The importance of consultations between governments is entailed
by the operation of subsection 13(5). This subsection provides that
if the Commonwealth Minister is satisfied that the relevant State or
Territory offers effective protection after a declaration has been made
under the Act then the declaration shall be revoked or varied accordingly.
At paragraph 18 the explanatory memorandum for the Act states that this
provision is meant to be applied where, for example, a law is enacted
by a State or Territory government after the Commonwealth Minister has
made a declaration.
4.3 Subsection 13(3) gives the Minister the option of appointing a
person to consult with any party, with a view to resolving the matter
to which the application for protection relates. The subsection facilitates
discussions between the parties affected by an indigenous heritage issue
with a view to arriving at a mutually acceptable result. [1]
These consultations may take place before or after the making of a declaration.
4.4 The Association of Mining and Exploration Companies Incorporated
(AMEC) [2] was critical of the way in which
the Act placed an obligation upon the Minister to consult with State
and Territory governments; AMEC considered that the mandatory nature
of subsection 13(2) is negated by the operation of subsection 13(4).
Subsections 13(2) and (4) of the Act provide:
(2) The Minister shall not make a declaration in relation to an area,
object or objects located in a State, the Northern Territory or Norfolk
Island unless he has consulted with the appropriate Minister of that
State or Territory as to whether there is, under a law of that State
or Territory, effective protection of the area, object or objects
from the threat of injury or desecration.
...
(4) Any failure to comply with subsection (2) does not invalidate
the making of a declaration.
4.5 The explanatory memorandum at paragraph 17 provides no reason why
a declaration should not be invalidated if the Commonwealth Minister
does not consult with State and Territory Governments. While the power
of the Minister to make an emergency declaration under section 9 should
arguably not be subject to this obligation, an obligation to consult
with State and Territory Governments concerning section 10 declarations
is consistent with two propositions:
- that the Act should be used as a last resort option, and
- that the States and Territories retain the primary responsibility
for land management.
4.6 Furthermore, given the obligation placed upon the Commonwealth
to remove protection granted under the Act once adequate protection
is available at the State or Territory level under section 13(5), it
is notable that pre-declaration consultations should not be necessary
to validate a declaration. Perhaps subsection 13(4) was included
in the Act to ensure that the Commonwealth could act in the interests
of heritage protection even where a State or Territory failed to cooperate
in the pre-declaration consultation phase. This is a matter to be addressed
in any amendment of the legislation.
Evidence: Role of the Commonwealth, States and Territories
The Evatt Report
4.7 Perhaps consistently with the view put by AMEC, the Evatt Report
concluded that the interaction between the Commonwealth and State processes
was not clearly established. In response, that report (p.xviii) proposed
that the Commonwealth should work for greater cooperation with States
and Territories, and encourage them to revise and update their Aboriginal
heritage protection laws in accordance with agreed standards:
...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.
4.8 Although only referred to in the final point of the Commonwealth
Minister's announcement on 17 December 1996, this is perhaps the pivotal
issue for consideration in this inquiry. The Act was conceived as providing
a last resort option; it was considered that the States and Territories
should be left to manage indigenous heritage matters, and that only
where they could not satisfactorily resolve an issue would it come under
the purview of the Commonwealth Minister pursuant to the Act. The notion
of legislative options of last resort, then, needs to be considered.
Three points are important.
4.9 First, if legislation is to be properly a last resort option, it
must allow for State and Territory legislation to be observed before
the Commonwealth law comes into consideration. However, the point of
distinct State and Territory legislation and administrative activity
under it is not clear if all parties are aware that they could be required
ultimately to comply not with the requirements of that jurisdiction,
but with those of the Commonwealth. The Commonwealth legislation in
such circumstances may be a last resort option at law, but in practical
effect it can be of influence much earlier in the consideration of development
applications. Legislation of last resort, then, is likely to have significance
in practical terms long before the last resort situation arises.
4.10 Second, if there is legislation of last resort and if appeal is
ultimately made to it, it will be some time following the commencement
of the process before action under that legislation is initiated. Clearly,
in such circumstances the legislation would need to ensure that interim
protection was provided.
4.11 Third, and as Ms Evatt has suggested, the States and Territories
could be encouraged to legislate in conformity with the Commonwealth.
In that event, or if State and Territory arrangements were required
to be accredited with the Commonwealth, the Commonwealth legislation
may cease to be a last resort mechanism strictly so-called.
4.12 The Evatt Report proceeded on the basis that the primary role
of State and Territory laws is to be maintained, with the Commonwealth
legislation continuing to act as a last resort mechanism. [3]
Notably Ms Evatt advised that, almost universally, submissions to her
inquiry advocated that the interaction of State/Territory and Commonwealth
laws be improved. [4]
State Legislation and Committee Evidence
- South Australian Government
4.13 Indigenous heritage is protected in South Australia pursuant to
the Aboriginal Heritage Act 1988. The South Australian Act provides
blanket protection for Aboriginal heritage, including sites, objects
and remains: a developer must seek the approval of the relevant State
Minister before doing an act that may damage heritage. The Aboriginal
Heritage Committee assists the South Australian Minister.
4.14 Further, the state legislation provides for the establishment
of the Register of Aboriginal Sites and Objects, its contents being
held confidentially. The Evatt Review noted that the information held
in the register is by no means exhaustive. [5]
The South Australian Minister may authorise the disclosure of information
and must consult with relevant traditional owners concerning any restrictions
on the release of information.
4.15 The Committee held a public hearing in Adelaide on 1 August 1997.
The South Australian Government declined an invitation to attend. The
Committee wrote to the Premier's office on 27 January 1998 inviting
a submission about the need for better interaction processes with the
Commonwealth.
4.16 A letter dated 20 March from Premier Olsen subsequently advised
that a submission would not be provided. South Australia, however, did
confirm that it recognised the need to improve the interactive process
with the Commonwealth. In that the Hindmarsh Island Bridge matter occurred
in South Australia, it is most regrettable that that State provided
only limited assistance to the Committee in its inquiry.
4.17 The protection of Aboriginal heritage in Victoria occurs under
two acts: the state Archaeological and Aboriginal Relics Preservation
Act 1972 and Part IIA of the Aboriginal and Torres Strait Islander Heritage
Protection Act 1984 which, arguably, provides the equivalent of blanket
protection (perhaps pursuant to s.21U). [6]
The Victorian Government considers that these two pieces of legislation
provide `fairly effective' protection for heritage in the state. [7]
This, despite the fact that the federal legislation makes no provision
for controlling the sale of significant indigenous objects, nor does
it make clear provision to control the private custody of skeletal remains.
[8]
4.18 Although it believes that indigenous heritage has been effectively
protected under the State and federal statutes, the Victorian Government
has been working closely with the Commonwealth to amend the federal
legislation:
The state government's preference is certainly that we should be
released from the direct link with the Commonwealth legislation and
we should now be putting up-to-date legislation in place here at state
level for the effective protection of Aboriginal cultural heritage.
[9]
The Committee accepts that there are grounds to reform the federal
Act so that it does not make provision for particular states but ensures
minimum standards. A submission from Sharman Stone MP provides
evidence that supports this conclusion. [10]
Ms Stone advised the Committee of an instance where, pursuant to Part IIA
of the Act, industry had been affected in Victoria.
- New South Wales Government
4.19 In New South Wales, heritage protection may be conferred under
the National Parks and Wildlife Act 1974 and pursuant to environmental
planning and land rights legislation. The New South Wales Act does not
specifically relate to indigenous heritage, although it provides blanket
protection for relics and the sites on which they are found. The State
legislation empowers the Minister to declare a site or area to be an
Aboriginal place, and provides for interim protection orders for up
to twelve months.
4.20 The New South Wales Government was invited to present oral evidence
to the Committee at the public hearing held in Sydney on 5 September
1997; it declined to do so. However, on 27 March 1998 the
New South Wales Government provided a written submission to the inquiry.
[11] This submission advised that NSW was
cooperating in the development of minimum national standards for accreditation.
According to the submission, this should lead to more uniform, comprehensive
protection of Aboriginal heritage access jurisdictions.
4.21 The Cultural Record (Landscapes Queensland and Queensland Estate)
Act 1987 is not specific about Aboriginal cultural heritage and indigenous
people have no formal role in designating particular areas as areas
of significance.
4.22 The Queensland Government does not accept that it is for the Commonwealth
to determine the reform agenda for State heritage protection laws. Nevertheless,
the State Government is willing to work towards uniform laws: it has
commenced a review of the State heritage protection legislation that
is being progressed in concert with the Commonwealth review. [12]
4.23 Integrated planning and development processes are fully supported
by the Queensland government for site clearances. Further:
From a cultural heritage management point of view, the aims of the
current reform process for the Commonwealth act really are of great
importance to us. The principles that have been enunciated so far
by the ATSIC group which is conducting that review generally have
our support…
…
We certainly support the idea that state and territory heritage protection
regimes be accredited to manage cultural heritage within their jurisdiction
and that the role of the Commonwealth to intervene would then be limited
to matters which are considered to be either of the national interest
or where there is serious disagreement. [13]
4.24 By way of comment about reform of legislation, the Queensland
government noted that the Evatt Report recommended the establishment
of State and Territory cultural heritage bodies:
We think that that needs some careful consideration in light of our
experience with representative bodies under the Native Title Act.
Perhaps we are thinking there that the two provisions under the two
acts could be amalgamated in some way. [14]
- Western Australian Government
4.25 The Aboriginal Heritage Protection Act 1972 confers blanket protection
on sites and objects with the consent of the Minister being required
for acts that could result in desecration. There has been a very low
rate of consent applications refused. [15]
4.26 The Western Australian Act establishes the Aboriginal Cultural
Materials Committee and a Register of Sites. Importantly, no Aboriginal
person is required to disclose information contrary to any prohibition
under customary law.
4.27 The Western Australian Government gave evidence at a public hearing
in Perth on 12 September 1997. In its submission (HA19), the Western
Australian Government noted that the intention of the Commonwealth was
for its legislation to operate as a statute of last resort; nevertheless,
because the Act itself is not clear, it has sometimes been invoked by
Aboriginal people instead, or concurrently with, the State:
The Act's operation clearly needs to be restricted to one of last
resort through appropriate legislative provisions. [16]
(emphasis in original)
4.28 In one of its submission conclusions, Western Australia expressed
the judgment that documents issued by the Commonwealth about reforming
the Act have been becoming more general, and lack a clear direction
for the government's intentions:
Rather, there seem [sic] to be a blurring of any distinction between
the two schemes which provides little incentive for the States to
consider working towards accreditation. [17]
4.29 The Aboriginal Relics Act 1975 and the National Parks and Wildlife
Act 1970 provide blanket protection of relics and their sites. However,
while there is a register maintained by the National Parks and Wildlife
service, it has no statutory backing and may be accessed by anyone with
the permission of the Tasmanian Land Council.
4.30 The Tasmanian Government was invited to present evidence at the
public hearing held in Melbourne on 24 October 1997. The invitation
was declined.
4.31 However, the Tasmanian Government did provide a written submission,
responding to the Committee's letter of 27 January 1998 concerning State
and federal processes. The Tasmanian Government advised that the Tasmanian
Aboriginal Relics Act 1975 was under review. The existing Act is out
of date and the Advisory Council established under the Act is not currently
constituted:
In practice, however, Aboriginal input into cultural heritage matters
occurs on a systematic basis, with the Tasmanian Aboriginal Council
being consulted whenever a situation to remove protection is being
considered by the Minister. ...the Relics Act provides blanket protection
for Aboriginal objects and sites, with a declaration to remove protection
or to destroy, being required by developers. [18]
4.32 The Tasmanian Government acknowledged its awareness that the Commonwealth
intends to amend its heritage protection regime to allow for a system
of accreditation for States and Territories where the State or Territory
legislation meets specified minimum standards for the protection of
Aboriginal heritage:
While supporting the concept of accreditation, we are currently awaiting
advice from the Commonwealth on the exact wording of the proposed
amendments and details on how interaction between the two levels of
government will operate. [19]
- Northern Territory Government
4.33 The Committee held a public hearing in Darwin on 17 February 1998.
The Northern Territory Government's Aboriginal Areas Protection Authority
gave evidence that the effectiveness of the Commonwealth legislation
is limited by incompatible and inadequate legislation operating in a
number of states:
This has created a situation where the Commonwealth Act is invoked
by Aboriginal custodians to provide primary site protection rather than,
as the scheme of the Act suggests, a last resort or back-up to legislation
in the States and Territories. [20]
4.34 The Authority considers that indigenous heritage protection laws
should provide protection for places of particular significance according
to Aboriginal tradition, ensure that this is done in a reasoned and
consistent manner, and (most importantly) minimise the corrosive and
divisive consequences of controversies where the integrity and legitimacy
of Aboriginal religious beliefs are called into question. The Authority
made the following key points:
- The primary legislative and administrative responsibilities for
Aboriginal sacred site protection should remain with the States and
Territories.
- State and Territory site protection should conform to a national
standard.
- State and Territory agencies should protect Aboriginal sites presumptively.
Only the relevant State or Territory Minister may, in special circumstances,
authorise exceptions.
- Legislation designed to protect Aboriginal sacred sites should separate
the recognition of sites of significance from questions relating to
the use to be made of such land.
- In each State and Territory there should be an independent body
with a high level of Aboriginal participation and control which has
the responsibility for the recognition of Aboriginal sacred sites.
- The Federal Minister should be the last resort for custodians of
sites aggrieved by decisions made at the State and Territory level.
- Any decision to override the wishes of Aboriginal custodians relating
to protection of sites must be informed by sound inquiries and only
made in cases of overwhelming public interest.
- Applications received under the Federal legislation should be referred
back to the State or Territory Minister for review and for a report.
- Adequate time should be given to allow the investigation of the
significance of the site under Aboriginal tradition in cases where
the State process has failed to address this issue.
- Notice of the Minister's decision and the reasons for the decision
should be stated in writing to the parties and laid before Parliament.
[21]
4.35 The Committee is most grateful for this balanced submission from
the Northern Territory Government and commends it to the Commonwealth
Minister.
- Australian Capital Territory Government
4.36 The Land (Planning and Environment) Act 1991 (ACT)) provides blanket
protection for sites of significance.
4.37 This legislation establishes a permanent register of Aboriginal
places, and the process allows interested parties such as landowners
and Aboriginal people to appeal registration decisions. The Minister
may declare information to be restricted if its disclosure could have
an adverse impact on Aboriginal tradition.
4.38 The ACT Government did not provide a submission, nor accept an
invitation to attend the public hearing in Canberra on 29 August 1997.
Apart from an acknowledgment, the Committee's letter of 27 January 1998
about this matter was not answered.
Other submissions
4.39 Professor James Weiner supported the idea that different regimes
were needed for different parts of the nation to reflect the different
history and culture of the indigenous people seeking protection. [22]
Nevertheless, in her submission Ms Mary Heath (HA4) expressed concerns
about the treatment of heritage sites which cross State and Territory
borders, suggesting that responsibility for heritage matters should
rest with the Commonwealth to ensure consistency.
4.40 Similarly, Dr Neal Draper (HA3) disagreed with Professor Weiner.
Dr Draper gave evidence that the States were unsuited to the task
of assessing and protecting indigenous heritage; he argued that primary
rather than appellant legislation is required at the Commonwealth level.
According to Dr Draper uniform Commonwealth legislation is the only
way to protect indigenous heritage; he severely criticised the South
Australian Government for being pro-development, restricting the flow
of relevant information and deliberately ignoring the rights of indigenous
people:
...there is one important consideration which goes beyond the brief
offered to Justice Evatt in her Review. Why should the Commonwealth
legislation be just a backup, essentially an appeal mechanism? Indigenous
cultural heritage is a national issue - it transcends the artificially
imposed state borders of modern Australia. There really is only [one]
way to have truly effective legislation with high national standards
and guaranteed independence, objectivity and commitment to the preservation
of Indigenous cultural heritage and the self-determination and survival
of indigenous culture. If the Commonwealth merely sets standards and
then credits state processes, the constant cheating I have documented
will just continue in another form, and our nation's cultural heritage
will continue to be lost.
4.41 Notably, Dr Draper's approach was not shared by indigenous interests;
they are in favour of retaining the protection of Commonwealth legislation
as a last resort. [23] Further, and as Ms
Evatt has pointed out, land management is the primary responsibility
of the States and Territories: it is governed by State and Territory
laws about planning, development and land use, not by Commonwealth legislation.
[24]
Accreditation
4.42 The Minister's announcement of 17 December 1996 raised the spectre
of `accreditation' of State and Territory legislation. Theoretically,
sound Commonwealth legislation of last resort obviates the need for
`accreditation' of State and Territory arrangements. Potentially, the
simplicity of this approach is one of the virtues of legislation of
last resort. Nevertheless, the Committee recognises the virtue of accreditation
in that it can help to ensure uniformity of practice throughout the
Commonwealth.
4.43 State and Territory compliance with minimum standards is also
endorsed by some indigenous interests. The Aboriginal Legal Rights Movement
Inc advised the Committee that it:
... endorses the National Indigenous Working Group position paper
of April 1997, which states strongly that state and territory standards
should be mandated by the federal minister through a process similar
to section 43 of the Native Title Act. That is to say, the Commonwealth
statute should lay down the minimum standards with which state laws
have to comply, failing which, the federal minister would not endorse
them, and the state would automatically be subjected to a federal
regime of protection. [25]
The Aboriginal Legal Service of Western Australia agreed essentially
with this view. [26]
4.44 However, the Goldfields Land Council warned that minimum standards
should not be a standard of the lowest common denominator. [27]
And the Central Land Council suggested that the system of accreditation
could lead to a `watering down' of the Northern Territory Act. [28]
Further, ATSIC has advised that:
In consultations with indigenous interests on the reform proposals,
they have been unanimous in their view that it should be open to submit
applications for protection under the Commonwealth Act irrespective
of whether a State/Territory regime has been accredited. This is at
least partially due to the widely held perception among indigenous
interests that State and Territory governments lack the will to provide
effective protection for their culture and heritage. They believe
that, even where State/Territory regimes meet national standards and
are accredited under the Commonwealth Act, in the majority of cases
State/Territory Ministers will exercise their discretionary powers
in favour of development interests leading to the continuing destruction
of indigenous culture and heritage. These perceptions are borne out
of their, mainly unsatisfactory, experiences at the hands of State/Territory
governments on cultural heritage matters over many years. In these
circumstances, indigenous people consider that it is imperative that
the Commonwealth Act be retained as a review mechanism of last resort
irrespective of whether State/Territory regimes are accredited. [29]
4.45 The Kimberley Land Council's submission would tend to support
the ATSIC view on this matter. [30] The Committee
accepts the need both for legislation of last resort, and an accreditation
regime.
The National Interest
4.46 Importantly, and in agreement with the Queensland Government,
the Western Australian Government [31] pointed
to the issue of determining the national interest:
… the Minister's statement refers to the Act operating as a
last resort or in cases of national interest which raises a question
how the two alternatives would relate to each other. Clarification
is also needed from the Commonwealth in regard to the circumstances
that would require the intervention of the Federal Minister in “national
interest”. [32]
4.47 The national interest issue is particularly difficult. The Aboriginal
Legal Service of Western Australia, for instance, argued that:
Heritage protection should not be overridden for things that could
be seen to be in the national economic interest. Indigenous rights
should prevail. [33]
It further explained:
If you have a state or a federal minister who says, `This has to
happen because it is in the national interest', to me that is a crock.
There has to be an ability for openness, for process to be followed,
and for all interested parties, including non-indigenous parties –
… destruction of significant sacred sites or of cemeteries,
I think, is something that should not be done at any cost. [34]
4.48 ATSIC has warned:
Indigenous people will no doubt argue that the protection of all
aspects of their culture and heritage is in the 'national interest'.
If the Minister declines to accept applications for protection under
the Act in the 'national interest', it is likely to lead to litigation
and delay and once again subject indigenous peoples' religious beliefs
to scrutiny. [35]
And the Central Land Council has stated that there is no need to insert
an additional 'onerous precondition' that Commonwealth protection be
in the 'national interest'. [36]
Conclusion
4.49 The Committee accepts that:
- There continues to be a need for Commonwealth legislation concerning
indigenous heritage protection.
- The Commonwealth legislation should continue to be provided as a
statute of `last resort'.
- The Commonwealth's last resort statute should be directed at two
functions: the establishment of minimum standards for the accreditation
of State and Territory legislation, and a system (application-based)
for managing cases where the State or Territory legislation has been
inadequate or has not been applied correctly.
- State and Territory legislation, in order to achieve accreditation,
must provide for blanket or presumptive protection of indigenous heritage.
- Further, there needs to be clear provision in the Commonwealth legislation
for the processes of interaction between the Commonwealth and the
States.
- Where reference to `national interest' is necessary, the legislation
should identify the essential elements that would be taken into account
relevant to the protection of indigenous heritage.
Recommendation 1
That Commonwealth legislation concerning indigenous heritage protection,
in being legislation of last resort, not provide specific provisions
for particular States as does Part IIA of the current Act.
Recommendation 2
That, insofar as is consistent with legislation of last resort, the
Commonwealth statute be amended to provide for an accreditation regime
to ensure uniformity of practice across the States and Territories.
Recommendation 3
That in regard to the issuing of heritage protection declarations
by the Commonwealth, the Commonwealth, States and Territories be required
to take all reasonable steps to complete consultations within a particular
period following an application.
Footnotes
[1] Evatt Report, pp.127, 128.
[2] Submission No HA2, pp.21, 22.
[3] Evatt Report, p.61.
[4] Evatt Report, p.61.
[5] Evatt Report, p.323.
[6] See Discussion Paper: Proposed Victorian
Aboriginal Cultural Heritage Legislation 21 July 1997
(pp.5,6) where one meaning of `objects of particular significance to
Aboriginals in accordance with Aboriginal tradition' is taken to provide
a broad protection regime, `potentially equivalent to the “blanket”
or automatic protection which is explicitly provided by the State Act,
but the matter has never been subject to interpretation in the courts'.
[7] Evidence, p.NT 848.
[8] Evidence, p.NT 848.
[9] Evidence, p.NT 849.
[10] Submission No HA26.
[11] Submission No HA34.
[12] Evidence, p.NT 251.
[13] Evidence, p.NT 252.
[14] Evidence, p.NT 251.
[15] Evatt Report, p.335.
[16] Evidence, p.NT 646.
[17] Evidence, p.NT 652.
[18] Submission No HA30, p.1.
[19] Submission No HA30, p.2.
[20] Evidence, p.NT 944.
[21] Submission No HA27, p.2.
[22] Evidence, p.NT 173.
[23] Submission No HA6, p.12; Submission
No HA7.
[24] Evatt Report, p.61.
[25] Evidence, p.NT 85.
[26] Evidence, p.NT 557.
[27] Evidence, p.NT 584.
[28] Evidence, p.NT 1027.
[29] Submission No HA11.
[30] Submission No HA32.
[31] Evidence, p.NT 252.
[32] Evidence, p.NT 646; see also NT 666.
[33] Evidence, p.NT 558.
[34] Evidence, pp.NT 572, 573.
[35] Submission No HA11.
[36] Submission No HA35.
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