CHAPTER 7
Issues Arising: (4) Indigenous Involvement
Aboriginal people consider that the Act has not protected their heritage.
Few declarations have been made and only one is now in force. They say
that the administration of the Act has given too much defence to ineffective
State and Territory processes which do not recognise their role in the
identification, management and protection of heritage. In some situations
negotiations by the Commonwealth with the State/Territory government
have resulted in arrangements being made without adequate consultation
with Aboriginal people. In addition, the Act does not recognise that
there are Aboriginal restrictions on information which play an important
role in the protection and maintenance of their cultural heritage. The
Act does not protect confidential information or respect Aboriginal
spirituality and beliefs which require that confidentiality to be maintained.
Its failure to deal with all aspects of heritage, including intellectual
property was another subject of concern, though the Review has been
unable to deal with the issue in detail (see Chapter 3). Nor does
the Act adequately recognise or provide for the involvement of Aboriginal
people in negotiation and decision-making about their cultural heritage.
Aboriginal people want the Act to be maintained and strengthened. (Evatt
Report p.xiv)
7.1 In evidence to the Committee inquiry, four main issues arose concerning
indigenous involvement in heritage protection decisionmaking. They are
site clearance and associated registers, restrictions on the availability
of information, an administrative agency for decisionmaking, and the role
of anthropologists.
Site Clearance and Registers
7.2 While the protection of sites has not been secured under the Aboriginal
and Torres Strait Islander Heritage Protection Act 1984 in the face of
government opposition in the courts, the Act may nevertheless have had
an effect by encouraging negotiated agreements concerning site use; potential
resort to the use of the Act may in numerous instances have encouraged
a government decision tolerable to indigenous interests. By its nature
this is a matter on which it is difficult to find evidence, but the possibility
of the persuasive power of the Act's potential invocation cannot be dismissed.
7.3 Of course, this is not to suggest that indigenous concern is a determining
factor in most cases where it is one of the issues. Annex 7 of the Evatt
report has detailed case studies some of which demonstrate that that is
clearly not so. Evatt provides examples where long-term activism by indigenous
people has either been unsuccessful, or else an inconclusive stand-off
has resulted with no development taking place and no long-term protection
conferred.
7.4 Failure to reach agreement concerning heritage and development can
result in uncertainty, and worse, for all concerned. In his evidence Mr
J P Garside, Chief Executive Officer of the Council of the Shire of Burke
explained how substantial development work within the Shire had been stalled
in the face of threats of an order being made under the Act. This particular
situation reportedly resulted in substantial loss of time, money and facilities
for contractors, the Shire and the public. [1]
7.5 In some circumstances, however, disagreement can be followed by motivation
to find practical solutions. Of course, direct communication between developers,
government institutions and indigenous people about heritage issues can
take place outside the procedures of the Act.
7.6 The Committee notes that for any sort of work clearance or development
approval the communal nature of Aboriginal society should be taken into
account. It is essential that negotiations for any sort of development
must provide for the representation and consensus of that communal element.
Mechanisms to facilitate the early consideration of heritage matters must
be tailored to the particular circumstances of the area in question. For
example, a system that is appropriate for a well populated coastal area
may not be appropriate for a sparsely populated inland area.
The Commonwealth's Approach
7.7 As part of its review of the Act, the Commonwealth has proposed two
different methods to facilitate the early consideration of heritage issues
in the context of land management decisions.
7.8 The first of these is the 'development application' approach whereby
persons contemplating the performance of an act that may affect indigenous
heritage would have to formally give notice of their intentions. [2]
Consultations with indigenous people would then take place concerning
the way in which the act could be performed. One issue to be resolved
is whether these consultations should be triggered either automatically
upon notification or else only where heritage protection is sought in
relation to the area affected by the proposed development. Blanket heritage
protection would entail the automatic trigger.
7.9 The Commonwealth has proposed that a process be established to facilitate
the making of agreements between developers and Aboriginal people that
would identify those locations within a given area which could be affected
by the proposed development. [3] The Commonwealth
describes this as a 'work clearance process'. These agreements could be
arrived at with the assistance of a mediator and could be registered after
which time they would be binding on the relevant parties.
Regional Initiatives
7.10 The March 1996 Review of the Act by the Kimberley Land Council (KLC)
noted a joint application by the KLC, Rubibi and the Shire to the Commonwealth
under the Local Government Program for the development of a model of town
planning decision-making that takes account of Aboriginal culture and
heritage at the earliest stage of the process. In response to that application,
the Commonwealth granted $150,000 for this project. Further:
As a result of negotiations between the KLC and the State Government,
following the State Government's compulsory acquisition of the Waterbank
pastoral lease on the outskirts of Broom, a co-ordinating committee
made up of representatives from various State Government departments,
KLC (as the Representative Body) and Rubibi has been established to
consider development proposals for that area of land. The presence of
KLC and Rubibi on this committee allows Aboriginal culture and heritage
issues to be addressed at the earliest possible stage in the planning
process. Hopefully, the outcome of the work of the committee will obviate
the need for an application under the Act at a later stage. [4]
7.11 In evidence to the Committee, representatives of the Central Queensland
Land Council (CQLC) described a system for the joint management of indigenous
heritage matters by indigenous groups and local government. The involvement
of local government in native title matters made it useful for heritage
matters to be considered early in planning schemes. [5]
The evidence they provided related to a local planning policy between
the Council of the Shire of Cardwell and the local indigenous community.
7.12 The Committee has examined the agreement entitled Shire of Cardwell
Local Planning Policy (Aboriginal Cultural Heritage and Land Interests).
The agreement includes a Recognition Statement which has been agreed upon
by the Council of the Shire of Cardwell and the local Aboriginal community
through the CQLC and the Girringun Elders and Reference Group (Girringun).
[6] Through this statement the Shire recognises
the history and culture of Aboriginal people as well as the involvement
of Aboriginal people in the economy of the Shire. [7]
The Shire also acknowledges that the Aboriginal people are the original
inhabitants and recognises that it remains their traditional country.
For their part, the Aboriginal people acknowledge the importance of respect
for the continuing rights and interests of all the people in the Shire
community. [8]
7.13 Indigenous heritage issues and land interest issues are addressed
by means of the Aboriginal Referral Process, a series of steps which the
Shire Council follows while assessing a planning application. When a planning
application is made to the Shire Council, it considers whether or not
it may include an area of Aboriginal significance. [9]
Mr Davis of the CQLC indicated in his evidence that not all applications
have to go through this procedure, as many applications do not have cultural
heritage implications. [10]
7.14 If the Shire Council considers it possible that the area in question
may contain Aboriginal heritage, then the Shire Council may request either
the CQLC or the Girringun to prepare a report. The report must be made
within 21 days with a possible extension of a further 21 days. Any additional
extension must be approved by the Council to avoid unreasonable delays.
[11] The report covers such matters as the
location of Aboriginal cultural heritage and how it may be affected by
the proposed development. [12] The report and
its implications do not bind the Shire Council, in the same way that an
environmental impact statement is not normally binding. [13]
7.15 This initiative has also established an Aboriginal Issues Advisory
Committee. The Advisory Committee membership is composed of representatives
of the Shire Council, the CQLC and the Girringun. Membership also includes
a representative of the Aboriginal Cultural Heritage Section of the Queensland
Department of the Environment, with the status of an observer. [14]
The Advisory Committee operates a register of Aboriginal Cultural Heritage
and a register of Aboriginal Land Interests which are used to avoid disputes
over land use and to ensure certainty in the future planning of the Shire.
[15]
7.16 The Committee is impressed by the initiative taken by the Girringun,
the Central Queensland Land Council and the Shire of Cardwell. The Committee
notes that this approach is possible, not only because of a well developed
understanding between Local government and indigenous people, but also
because of the development of a register of heritage sites.
7.17 In regard to site registers, Mr John Locke of the Giru Dala Council
of Elders advised the Committee about a cultural zoning system for the
identification of areas and sites of significance to Aboriginal people
that had been developed in relation to the Whitsunday area. [16]
The system operates by means of computer mapping that permits the Queensland
Department of the Environment, the relevant Aboriginal Elders and Local
government authorities to access a database of information:
The system works on a GIS database. It is a computer mapping system.
What it will actually do at the end of the day is, if DOE has a system,
the elders have a system and the county council has a system, the computer
can say the elders' stuff needs to be protected. All these sites on
the elders' database eventually will be very comprehensive and complete.
That system rests with them because it lies in that sacred or sensitive
nature.
As you go into departments like the Department of the Environment and
the council, the system still has the ability to have access to information
on sites. When developments are coming in, they only really need to
touch the system and it will tell them exactly what they are looking
at. For instance, on this site here there is a ceremonial site in one
of these yellow sites and there is also a burial site in there...
With these sorts of systems you will be able to go in and say, `I'm
looking at development; I'm looking at doing such and such. Council
will just go to the system, touch that mapping system and it will kick
up where there is significance in that site and it will say exactly
what it is. The issue of interest will actually have at the end of it
a classification. That classification will say at the top end of the
scale that you will need immediate consultation with the council of
elders, then it may come down to three elders being able to make a decision,
then I can make a lesser decision, and then the scale will go right
down to probably, at the end of the day, only needing a report after
something is finished.
The system has the benefit of greater access to what is in an area.
Also, people will know, before they are going in to do certain things,
what is there.
...
The council does not have to guess, the department of environment does
not have to guess, and it is working closely with the people on how
to manage and control the impacts on these sites and how we get around
doing those things. [17]
7.18 There are four particular types of cultural zones recognised under
the system, each being distinguished on maps by the use of a different
colours; the greater homeland area, tangible sites, home use sites and
Aboriginal spirituality. [18] The system is
intended to allow anyone with a development proposal to be able to consult
maps of the areas to which their development relates and to quickly ascertain
what sort of sites may be affected, where they are located and which Aboriginal
people need to be consulted before the development proceeds. Sites or
areas of Aboriginal interest are linked to a classification system which
allows the prospective developer to see what further action needs to be
taken to address Aboriginal concerns.
7.19 Follow-up action may vary from having to consult directly with the
full Giru Dala Council of Elders to having to consult only a group of
three; alternatively, it may be necessary only to make a report to the
Council of Elders after the development has been completed. [19]
The information made available on Aboriginal Cultural heritage sites and
zones is controlled by the Giru Dala Council of Elders, who is able to
decide on the amount of sacred or sensitive information that may be disclosed.
[20] The Local Planning Policy receives legislative
backing under the Queensland Local Government (Planning and Environment)
Act 1990, although it is not intended to affect the legal rights, powers
or obligations of any of the parties. [21]
7.20 Significantly, this system provides for indigenous control of information:
The actual exchange of information there probably reflects more the
Aboriginal protocols in the exchange of knowledge than state based control
of those systems of knowledge. That is, you have the right to be party
to that information for this purpose only and you cannot then take that
information away and use it for your own management regimes and control.
[22]
7.21 This kind of approach also received support from the Aboriginal
Legal Service of Western Australia, although the ALSWA preferred the practice
of heritage agreements and site clearance surveys:
...if you can get a regional heritage agreement in place with the local
shire - this is what we are establishing in the Mandurah area - you
can identify areas where you believe surveys should be done for archaeological
material. On that basis, the shire would advise proposed developers
in that area that there is a likelihood of archaeological material in
that area, that they should consult with the local community, and they
would take them round. ... We would have the area surveyed and if material
is not found, obviously, the development is clear to go ahead. [23]
7.22 Notably, however, the ILC is strongly opposed to any proposal for
the registration of indigenous heritage on the basis that the dissemination
of information on the location of heritage sites would lead to the deliberate
desecration of such sites. [24] The ILC cites
the observations of Ms Evatt on the dilemma faced by indigenous persons
in having to reveal confidential information, and thus violate cultural
restrictions on who may possess it, in order to preserve it. The ILC has
further suggested that an approach similar to that used under Northern
Territory legislation might be more appropriate. Under the Northern Territory
Act the Aboriginal Areas Protection Authority is required to identify
and consult with traditional custodians in response to development proposals.
Availability of Heritage Information
Indigenous Concern
7.23 The need for confidential information to be released to interested
parties only with the permission of the relevant traditional custodians
has been emphasised by the NSW Aboriginal Land Council. [25]
When information is released, there could be specific directions concerning
the confidential nature of such information, perhaps including an explanation
of how public interest immunity is intended to operate in relation to
such information. To further ensure confidentiality the information would
have to be made exempt from disclosure under freedom of information or
any procedure under legislation such as the Administrative Decisions (Judicial
Review) Act 1977. [26]
7.24 Some indigenous groups are wary of the practical consequences of
registering negotiated settlement agreements. The Indigenous Land Corporation
expressed concern about how the variation of agreements would be handled
and how the parties to the agreement could be said to be truly representative
of the interests involved. It has been suggested by some indigenous groups
that those representative bodies as determined under section 202 of the
Native Title Act 1993 may be able to take on the task of liaising with
indigenous people and assisting them with the preparation of heritage
protection matters. [27]
7.25 The Committee believes that there should be registers of significant
sites so as to speed up decisionmaking. The Aboriginal Legal Rights Movement,
however, has rejected the idea of such a register of information being
established as this would lead to a 'you told us this once, so therefore
it applies to this place as well' mentality. The ALRM did concede, however,
that where non-critical information was widely available or non-confidential,
it could be included in such a register. [28]
7.26 Nevertheless, Mr Sparrow of the ALRM suggested that the use of the
knowledge accumulated from numerous applications makes an assumption that
such information is in fact accurate, when in fact it may not be the whole
truth. [29] Professor Weiner gave evidence
of how disputes could happen within a particular indigenous community
as to the meaning and content of the traditional beliefs of that community.
Professor Weiner went on to explain how this element of fluidity diminished
the value of maintaining a centralised database, and would only create
a further basis for dispute and contention. [30]
7.27 The Indigenous Land Corporation also rejected the notion that subsequent
reporters should have access to information obtained by reporters in previous
matters. [31] According to the ILC, developers
sometimes have particular reasons for a proposal at one stage and substantially
different reasons at another; hence, separate approval should be required
for particular proposals. The ILC also advised that another danger inherent
in the use of registers is that information contained on the register
is sometimes assumed to be the whole story which can prevent culturally
sacred information being kept confidential. [32]
Alternative Views
7.28 By contrast, Mr Steve Palyga supported the use of accumulated evidence
in assessing subsequent development applications. Mr Palyga stated that
a reporter must have access to previously collected information because
one of the best ways to disprove an assertion is through the use of a
prior inconsistent statement:
I think it is essential that they have access to previous information
because if somebody says, 'This is a heritage area and it is very sacred
to us. I am the only person who knows that. I was told by two people who
are dead,' then there is very little you can do to disprove that except
by reference to the whole history and ethnography. One of the key ways
you can disprove what people say, if they just make an assertion, is via
previous inconsistent statements. I believe it is essential that a subsequent
reporter have access to all relevant information relating to a claim particularly
if, after an assessment, the reporter or the investigator believes there
is likely to be information in there that could be inconsistent or could
reflect either adversely or positively on the claims being made at a later
time. [33]
7.29 In accepting the development of indigenous heritage registers, the
Committee considers that their value lies in being able to be accessed
on any future occasion by appropriate persons with a valid need for heritage
information. The Committee understands that the Girringun (Shire of Cardwell)
and Giru Dala (Whitsundays) heritage registers are available on that basis.
Reports to the Minister
7.30 The views of indigenous people on matters of indigenous heritage
protection are relevant to the work of the reporter under sections 10
and 11 of the present Act. Subsection 13(3) gives the Minister the power
to nominate a person to mediate any matter to which an application relates,
whether or not a declaration has been made in response to the application.
Apart from this power to appoint a mediator, legislative machinery for
facilitating agreements and consultations between land users and indigenous
people is absent from the Act, except in relation to the State of Victoria
under Part IIA. Nevertheless, this has not prevented discussions between
parties affected by heritage protection matters under either the Act or
relevant State and Territory legislation.
7.31 Ms Evatt reported a general sense of dissatisfaction on the part
of indigenous people with the effectiveness of negotiated outcomes. Of
the 22 cases where the Minister had appointed a mediator, only in
4 instances did this result in the making and implementation of agreements.
[34] Ms Evatt reported that part of the
difficulty concerned the fundamental importance of sacred sites; if a
site is considered to be significant, then it is difficult for any indigenous
person to accept an agreement that leads to the desecration of the site.
[35] Ms Evatt also reported that where negotiations
were conducted between the Commonwealth and a State or Territory on the
protection of a particular site, indigenous people sometimes felt left
out of the process. [36] This feeling of being
ignored during inter-government negotiations is compounded by the fact
that while the result can be seen, negotiations generally take place at
the ministerial level which is not normally open to public scrutiny. [37]
7.32 A common point of agreement between indigenous groups was that negotiation
and mediation were preferable to an expensive, time-consuming and emotionally
charged court process. [38] Concerns expressed
by indigenous representatives about negotiations include:
- having a mediator that is acceptable to all parties;
- using a flexible approach to negotiating procedures for dealing with
issues such as gender restricted information;
- having interim protection provided up until a decision is made to
either to protect or not to protect a particular site;
- the need for all parties to act in good faith in what is often a non-binding
forum; and
- difficulties in ensuring that the various representative organisations
properly consulted with the relevant traditional custodians.
7.33 The Commonwealth proposals for amending the Act include limitations
on the time in which negotiations can take place. The proposal is that
where negotiations do not produce an agreement, then indigenous people
have to lodge an application for long term protection within 21 days or
else a ten year prohibition against the granting of any sort of protection
order comes into effect.
7.34 In response to this proposal the Indigenous Land Corporation questioned
why there have been so few successful mediations on heritage matters,
and requested that a formal investigation be conducted into the matter.
The ILC rejects the Commonwealth's proposal that where negotiations fail
to resolve the situation, the developer will be entitled to take advantage
of a process that results in the removal of protection. The ILC submits
that this approach once again provides an incentive for non-indigenous
people to avoid a negotiated settlement. The ILC further submits that
the assumption underlying this approach is that indigenous interests are
more likely to be the cause of failed negotiations than non-indigenous
interests and should be punished accordingly.
7.35 The Aboriginal Legal Service of WA submitted that the low success
rate of negotiated outcomes was due to the emphasis on the overriding
powers of the Commonwealth Minister under the Act. [39]
The Legal Service argued that the discretionary power of the Minister
combined with an approach based upon balancing competing interests resulted
in a situation where the importance of Aboriginal heritage is considered
secondary to the needs of land users.
7.36 The Committee recognises the need for sensitivity towards indigenous
interests when negotiating heritage protection issues; the views of the
ILC and the Aboriginal Legal Service of Western Australia are referred
to the Commonwealth Government for consideration.
An Independent Administrative Agency
7.37 A central recommendation of the Evatt Report is that the issue of
whether or not a site should be considered to be significant should be
determined by an independent agency incorporating substantial indigenous
representation. And, the NSW Aboriginal Land Council advised:
Furthermore, Aboriginal peoples generally regard our heritage as being
a collective right that is not 'owned' or monopolised by any individual,
but is the collective responsibility of the entire community. Certain
individuals within each community may be recognised or appointed as
custodians or caretakers for particular elements of Aboriginal heritage,
but such positions also bear considerable responsibilities in terms
of the long-term protection and management of the heritage and are generally
guided by Aboriginal Law and tradition. This continuing, collective
right to manage heritage is critical to the identity, survival and development
of each Aboriginal community. [40]
7.38 In her report Ms Evatt rejected the concept of a tribunal process
for determining applications for declarations, observing that the Northern
Territory Land Rights Tribunal and the Native Title Tribunal have been
suggested as possible models for an inquiry procedure. [41]
(Of course, the Native Title Tribunal is not, properly speaking, a tribunal.)
The Evatt Report contends that it is not appropriate for issues relating
to areas of significance to be dealt with by an open inquiry procedure
or adversary process:
The reasons for this view relate partly to the question of confidentiality
and partly to the distinction between heritage issues and land rights
claims. In addition to these reasons there is another important factor,
namely to ensure that Aboriginal people can actually use the procedure.
... It is strongly recommended that applications under this Act not
be subjected to formal tribunal or inquiry procedures.
7.39 According to the Evatt Report (p.xvii) a new permanent agency should
be established to administer the Act in all matters leading to the exercise
of discretion by the Minister:
It should be a small expert agency, with a panel of mediators and reporters
available to be called upon when needed. Its members should include
a high proportion of Aboriginal people. The agency should be supported
by an Aboriginal heritage advisory committee, composed of Aboriginal
people, to advise on such matters as identifying Aboriginal people to
consult about areas of significance.
7.40 The purported value of a non-judicial process was questioned by
Mr Steve Palyga, the solicitor for the developer in the Hindmarsh Island
affair. Mr Palyga expressed support for a uniform national decisionmaking
body that would be quasi-judicial rather than an administrative process
with decisions being made by a Commonwealth Minister as suggested in the
Evatt report. [42] Mr Palyga further suggested
that the Northern Territory legislation would be an appropriate model
for handling Aboriginal and Torres Strait Islander heritage issues despite
the objections raised in the Evatt Report. [43]
Mr Palyga was scathing of the approach advocated by Ms Evatt:
What Ms Evatt is proposing is a government agency that will have no
obligation to provide relevant information to interested persons, will
conduct its inquiries with no formal procedure-basically as they themselves
decide - and where information said to be culturally confidential is
to be provided only to the agency and the minister of the relevant gender...indeed
all she is doing is replacing the report required under the current
legislation with an agency. [44]
7.41 The Committee is concerned to ensure that the more knowledgeable
members of indigenous communities are consulted. It was suggested that
the 'truth' came out in the Hindmarsh Island matter because the dissident
women were able to make their concerns heard after the issues had become
public. [45] Witnesses from the ALRM replied
that the only way to ensure that all relevant indigenous persons were
consulted was to provide for extensive consultations by the reporter who
had the resources and the opportunity to identify the appropriate persons
within an indigenous community. In order to facilitate this, the ALRM
noted that the time limits mentioned in the Government's own discussion
paper should be rejected. The ALRM did acknowledge that different people
within a community would know different elements of the same story, many
parts of which may be suitable for public viewing with only a few people
possessing the complete story. [46]
7.42 In its submission [47] the ILC supports
the proposal to establish an independent body to advise on heritage protection
issues, subject to the condition that it is appropriately resourced to
carry out the function. [48] An alternative
approach suggested by the Yorta Yorta is for negotiations on heritage
matters to take place between the relevant Minister and the affected indigenous.
This would place an administrative burden directly on the Minister and
would create further problems with the capacity of the particular Minister
to receive culturally restricted information, such as gender based information.
The need to deal with restrictions such as this represents a further argument
in favour of an appropriately resourced independent body.
The Role of Anthropologists
7.43 Mr Steve Palyga indicated that an independent agency staffed with
anthropologists will suffer from the suspicion that anthropologists advance
indigenous interests. Because of this conflict of interests he was strongly
against the establishment of such an independent body. [49]
7.44 The Committee received a substantial amount of commentary on the
role of anthropologists in heritage protection procedures. Currently,
anthropologists and other experts in indigenous society and culture, such
as archaeologists, play a significant role in the assessment of heritage
matters under both Commonwealth and other legislation. The value of their
contributions to the reporting process was questioned by some witnesses.
In his submission to the Committee Mr Palyga questioned the capacity
of anthropologists to act impartially arguing that a specialised Aboriginal
Heritage Protection Agency would be inadequate for the task of testing
an application for protection, favouring a quasi-judicial process instead:
Also, the agency's anthropologists will essentially be acting for one
side only because, if they offend the Aboriginal people informing them,
information will dry up, and they will no longer be effectively able
to operate as anthropologists. Apart from the inherent conflict of interest
that fact creates for the agencies anthropologists, their "independence"
will also be compromised by the fact that their processes are subject
to limited public scrutiny or judicial control
...
It has been demonstrated by the bridge case that rigorous and independent
anthropological evaluation of claims is absolutely essential, but I
do not believe a government agency will provide anything like the necessary
rigorous testing of a claim. There is no doubt that the party best qualified
to rigorously investigate claims is the party with the most to lose.
(HA1 - p. 10)
7.45 The role of anthropologists in declaration proceedings is not that
of an expert witness in civil or criminal proceedings where the impartiality
on the part of such witnesses is not normally called into question. The
conclusions of an anthropologist are frequently based on consultation
with indigenous people instead of the scientific examination of objects.
Unlike other areas of specialist knowledge, an anthropologist is dependent
on securing the long term cooperation and goodwill of the subject community.
This long term familiarity with a particular group of indigenous people
may make it difficult for an anthropologist to provide evidence that is
perceived as being objective. It is likewise difficult for an anthropologist
to disprove a perceived conflict of interest between the need to tell
the truth and the desire to do the right thing by the people with whom
the anthropologist already has a strong relationship. [50]
7.46 Further, Mr Steve Palyga has disagreed with Ms Evatt's assertion
that revealing the details of a sacred story does little to assist non-indigenous
people assess the significance claimed for the site. Mr Palyga argues
that once the details are available the non-indigenous parties can obtain
their own anthropological advice which can test the evidence. [51]
7.47 Professor Weiner made a number of observations as to the value of
anthropologists to the processes under the Heritage Protection Act.
(i) An anthropologist has a special position as an outsider which
provides a view of social life that an insider may not have. [52]
(ii) The barrier between information that is public and that which
is secret is permeable, with information that is public being a version
of that which is secret, and information that is public re-entering
the secret domain, in a different form. [53]
(iii) Because of the transitory nature of what is secret, restricted
and sacred and the way that sacredness changes over time, the notion
of maintaining a register of relevant information is to be rejected.
[54]
Recommendation 6
That the registration of indigenous heritage sites be facilitated by
Local and State governments. Responsibility for registration should
be in the hands of indigenous people with the assistance of an independent
agency. Registration should not be equated with permanent protection.
Recommendation 7
That the management of indigenous heritage by indigenous groups and
Local government (such as the initiative between the Shire of Cardwell
and the local Aboriginal community through the CQLC and the Girringun
Elders and Reference Group) be encouraged and given any necessary legislative
backing.
Recommendation 8
That where the Commonwealth Minister takes decisions under the last
resort function, the reasons for the decision be required to be published
at the same time that the actual determination is tabled.
Footnotes
[1] Submission No HA8.
[2] Reforming the Aboriginal and Torres Strait
Islander Heritage Protection Act 1984, p.9.
[3] Reforming the Aboriginal and Torres Strait
Islander Heritage Protection Act 1984, p.9.
[4] Submission No HA32.
[5] Evidence, p. NT199.
[6] Evidence, p.NT 229.
[7] Evidence, p.NT 200.
[8] Evidence, p.NT 217.
[9] Evidence, p.NT 235.
[10] Evidence, p.NT 200
[11] Evidence, p.NT 228.
[12] Evidence, p.NT 219.
[13] Evidence, p.NT 200.
[14] Evidence, pp.NT 221, 222.
[15] Evidence, p.NT 228.
[16] Evidence, pp.NT 197, 201.
[17] Evidence, pp.NT 202, 203.
[18] Evidence, p.NT 202.
[19] Evidence, p.NT 203.
[20] Evidence, p.NT 202.
[21] Evidence, p.NT 232.
[22] Evidence, p.NT 203.
[23] Evidence, p.NT 570.
[24] Submission No HA6, p.16.
[25] Submission No HA14, p.11.
[26] Submission No HA14, p.12.
[27] Evidence, p.NT 139.
[28] Evidence, p.NT 103.
[29] Evidence, p.NT 103.
[30] Evidence, p.NT 168.
[31] Evidence, p.NT 127.
[32] Evidence, p.NT 128.
[33] Evidence, p.NT 149.
[34] Evatt Report, pp.129, 130.
[35] Evatt Report, pp.135, 136.
[36] Evatt Report, p.xiv.
[37] Evatt Report, p.209.
[38] Submission No HA6, p.13.
[39] Submission No HA20.
[40] Submission No HA14, p.1.
[41] Evidence, p.NT 221.
[42] Submission No HA1, p.11.
[43] Evidence, p.NT 151.
[44] Evidence, p.NT 143.
[45] Evidence, p.NT 97.
[46] Evidence, p.NT 93.
[47] Submission No HA6.
[48] Submission No HA14, p.11.
[49] Evidence, p.NT 156.
[50] Evidence, p.NT 170.
[51] Evidence, p.NT 144.
[52] Evidence, p.NT 167.
[53] Evidence, p.NT 167.
[54] Evidence, p.NT 167.
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