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Native Title Report 2000: Chapter 4: Indigenous heritage

Aboriginal and Torres Strait Islander Social Justice

Chapter 4: Indigenous heritage

In the early years of settlement Mrs Elizabeth Macarthur wrote that she found her new country pleasing to the eye:

The greater part of the country is like an English park, and the trees give it the appearance of a wilderness or shrubbery, commonly attached to the habitations of people of fortune. Aboriginal people had created these nourishing terrains through their knowledge of the country, their firestick farming, their organisation of sanctuaries, and their own rituals of well-being. Their lands were their 'fortunes', and their fortunes were their own - in Law and in practice. Elizabeth Macarthur was not wrong. She was, indeed, seeing a place which was the home of people of fortune.(1)

The recognition of native title by the High Court in 1992 was a significant development in the legal apparatus for protecting Indigenous culture. Under the concept of native title it is possible that sacred and significant sites and objects might be protected, not within the historical category of Aboriginal heritage, but as matters valued in contemporary Indigenous culture with current significance to a people whose culture is ongoing. In addition, under native title such protection could be provided, not as an act of beneficence by government, but as a matter of legal right.

This type of legal development was remarked upon by Special Rapporteur Madame Erica-Irene Daes in her recent study entitled Indigenous People and Their Relationship to Land.(2 )

It must be acknowledged that an important evolution is taking place. The fact that dozens of countries have adopted constitutional and legislative measures recognizing in various degrees the legal rights of indigenous peoples to their lands and resources is powerful evidence that such legal measures are consistent with domestic legal systems and that they are needed. The ongoing development of indigenous peoples' rights to lands, territories and resources must be seen as an opportunity for both indigenous peoples and States to contribute to the progressive development of human rights standards. It must be acknowledged that legal concepts and rights and, indeed, indigenous peoples themselves cannot be frozen in time. Indigenous communities and societies change and evolve like all other societies.(3)

Such an approach to Indigenous culture, as an holistic evolving concept, is in stark contrast to the social Darwinist approach underlying past heritage legislation (often contained in state parks and wildlife legislation) in which Aboriginal society was depicted as a relic of a dying or extinct civilisation. The recognition of native title is an opportunity to re-frame the protection of Indigenous heritage within the broader framework of a human right to enjoy one's culture. However, developments within the common law of native title, and amendments to the Native Title Act 1993 (NTA) have placed heritage protection outside of this broader frame. The bundle of rights approach to native title has meant that contemporary practices of protecting and respecting significant or sacred sites are considered insufficiently connected to the actual practices of the original inhabitants to be included in a native title determination. In addition, the amendments to the NTA have significantly reduced the protection available to Indigenous heritage and the right of native title holders to participate in decisions about protecting their cultural heritage. This chapter will examine these developments.

As a result of the inadequate protection provided through native title, State and Commonwealth heritage legislation remains the most significant form of heritage protection available to Indigenous people. One source of protection is through the registration of places that hold current significance to Indigenous people on the Register of the National Estate established under the Australian Heritage Commission Act 1975 (Cth). Indigenous heritage is just one component of this Act whose main criteria for inclusion on the Register is the 'national significance' of a place. The Act controls actions by the federal government that may adversely affect a registered place. However, private owners or state or local governments are not controlled by this Act. The Act is also limited in the extent to which it provides a framework for the participation of Indigenous people in the decisions under the Act.

A further source of Indigenous heritage protection through Commonwealth legislation is the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBCA) which protects properties of world heritage value. This Act improves upon and replaces the protection provided by the World Heritage Properties Conservation Act 1983 (Cth). These acts are the Commonwealth's domestic implementation of the Convention for the Protection of the World's Cultural and Natural Heritage. The EPBCA provides automatic protection to world heritage properties by ensuring that an environmental impact assessment is undertaken for actions that are likely to have a significant impact on the world heritage values of the property. While this protection is invaluable, the process for establishing the world heritage value of a property is lengthy and onerous. Further, Indigenous people have very little control over the decisions taken under the Act.

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (Commonwealth Heritage Act) differs from the above Commonwealth acts in that it is dedicated solely to the protection of Indigenous heritage. It was introduced as an interim measure during the protracted and unresolved struggle for uniform national land rights legislation. It is now a matter of history that national land rights legislation did not eventuate and the Commonwealth Heritage Act has remained the primary source of Indigenous heritage protection at the federal level. This Act was the first recognition of the need to protect Indigenous cultural heritage for reasons other than scientific or archaeological research. It was the first recognition of the right of Indigenous people to preserve, protect, access and manage cultural material. This recognition formed part of a general move away from policies of assimilation towards self-determination. As a product of the early stages of this thinking, the Act is a small step forward from the paternalistic idea of heritage protection as a matter of preserving the relics of a by-gone era.

Yet a review of this legislation by Dr Elizabeth Evatt in 1996 indicated that the legislation was inadequate in the protection that it provided as well as the extent to which it involved Indigenous People in the decisions that were made under the Act. In 1998 the Aboriginal and Torres Strait Islander Heritage Bill was introduced into Parliament. The Bill was debated and amended in the Senate in November 1999 along the lines of the recommendations of the Evatt Report. The Senate's amendments have been rejected in the House of Representatives. This chapter will discuss the relevant Commonwealth, State and Territory heritage legislation and the proposed amendments to the Commonwealth heritage legislation in the light of international human rights standards. In order to understand the level of importance placed on Indigenous culture at an international level it is helpful to review developments in the international discourse concerning heritage protection.

International discourse on Indigenous heritage protection

The international human rights standards relevant to the protection of Indigenous heritage can be broadly identified as follows:

  • the right to self-determination,
  • the right to protect Indigenous heritage, including the right to manifest, practice, develop and teach Indigenous heritage,
  • the right of Indigenous people to participate in matters effecting their heritage, . the right to equality of treatment,
  • the right to freedom of thought, conscience and religion.

An annotated inventory of Conventions and General Recommendations relevant to the protection of Indigenous heritage is set out at Appendix 5.

Human Rights Committee

The urgent need for resolution, in accordance with human rights principles, of the status of proposed amendments to the Commonwealth heritage legislation was noted by the Human Rights Committee (4) (HRC) in its Concluding Observations in 2000. In relation to Australia's compliance with the right to self-determination under Article 1 of the International Covenant on Civil and Political Rights ( ICCPR) the HRC stated at paragraph 9 of its Concluding Observations:

With respect to Article 1 of the Covenant, the Committee takes note of the explanation given by the delegation that rather than the term "self-determination" the Government of the State party prefers terms such as "self-management" and "self-empowerment" to express domestically the principle of indigenous peoples exercising meaningful control over their affairs. The Committee is concerned that sufficient action has not been taken in that regard.

The State party should take the necessary steps in order to secure for the indigenous inhabitants a stronger role in decision-making over their traditional lands and natural resources (Article 1, para 2).(5)

In relation to Australia's compliance with its obligation to protect minority cultures under Article 27 of ICCPR, the HRC stated at paragraph 11 of its Concluding Observations that:

The Committee expresses its concern that securing continuation and sustainability of traditional forms of economy of indigenous minorities (hunting, fishing and gathering), and protection of sites of religious or cultural significance for such minorities, that must be protected under Article 27, are not always a major factor in determining land use.

The Committee recommends that in the finalization of the pending Bill intended to replace the Aboriginal and Torres Strait Islander Heritage Protection Act (1984), the State party should give sufficient weight to the above values.

The Committee's observations and recommendations were a response to the priority given by successive Australian governments to non-Indigenous land use over the human rights of Indigenous people. Article 27 of the ICCPR requires that Indigenous people not be denied the enjoyment of their culture and that the 'continuation and sustainability of traditional forms of economy of indigenous minorities' is assured. The decision in July 2000, by the Minister for the Environment and Heritage, Senator Hill, to defer a protection order over Boobera Lagoon for a further two years in order to allow water skiers to find an alternative recreational site (6) struck the Committee as a particularly worrying illustration of land management practices which prioritise non-Indigenous culture over Indigenous culture.

During oral submissions to the Human Rights Committee, Mr Lahlah, the committee member from Mauritius, commented on the lack of judicial remedies for breaches of the Covenant. He stated the following on the government's decision in relation to Boobera Lagoon:

As I understand, the water skiing is going to continue until alternative sites are found. I would have thought that since this is a Covenant right and water skiing is not as such a Covenant right, then maybe the reverse should have happened. I'm not taking this as a light matter. It may very well be that water skiing is related to property rights guaranteed under the constitution. It may very well be. I do not know. But in this case, the court would have had the opportunity of deciding on these priorities, cultural rights of certain minorities guaranteed under the Covenant and property rights not guaranteed under the Covenant but guaranteed elsewhere.(7)

Protection of Indigenous heritage is a fundamental component of the instruments and obligations relating to the international human rights of Indigenous people. The importance of heritage protection, as one aspect of the obligations to Indigenous people to land is recognised by human rights bodies.

Report of the seminar on the draft principles and guidelines for the protection of the heritage of indigenous people by Chairperson-Rapporteur Erica-Irene Daes (8)

The report on the protection of the heritage of Indigenous people by Erica-Irene Daes is the most comprehensive statement from an international organisation of the appropriate standards for the protection of Indigenous peoples' heritage. The principles and guidelines are widely endorsed by Indigenous peoples and reflect the position of the Working Group on Indigenous Populations, the most expert group on Indigenous issues in the United Nations system. The principles were elaborated in accordance with the Working Group's mandate to develop standards regarding the rights of Indigenous peoples.

I would draw particular attention to the following principles:

  • The effective protection of the heritage of the indigenous people of the world benefits all humanity. Its diversity is essential to the adaptability, sustainability and creativity of the human species as a whole.(9)
  • To be effective, the protection of indigenous peoples' heritage should be based broadly on the principle of self-determination, which includes the right of indigenous peoples to maintain and develop their own cultures and knowledge systems, and forms of social organisation.(10)
  • Indigenous peoples should be the source, the guardians and the interpreters of their heritage, whether created in the past, or developed by them in the future.(11)
  • Indigenous peoples ownership and custody of their heritage should be collective, permanent and inalienable, or as prescribed by the customs, rules and practices of each people.(12)
  • The discovery, use and teaching of indigenous peoples' heritage are inextricably connected with the traditional lands and territories of each people. Control over traditional territories and resources is essential to the continued transmission of indigenous peoples' heritage to future generations, and its full protection.(13)

Underlying these five principles in relation to Indigenous heritage are the human rights of self-determination under Article 1 of ICCPR and the protection of minority cultures under Article 27 of ICCPR. The Report also makes important recommendations concerning the protection of Indigenous heritage through national legislation:(14)

23. National laws for the protection of indigenous peoples' heritage should:

(a) be adopted following consultations with the peoples concerned, in particular the traditional owners and teachers of religious, sacred and spiritual knowledge, and wherever possible should have the informed consent of the peoples concerned;

(b) guarantee that indigenous peoples can obtain prompt, effective and affordable judicial or administrative action in their own languages to prevent, punish and obtain full restitution and just compensation for the acquisition, documentation or use of their heritage without proper authorisation of the traditional owners;

(c) Deny to any person or corporation the right to obtain patent, copyright or other legal protection for any element of an indigenous peoples' heritage without adequate docu-mentation of the free and informed consent of the traditional owners to an arrangement for the sharing of ownership, control, use and benefits;

(d) Ensure labelling, correct attribution and legal protection of indigenous peoples' artistic, literary and cultural works whenever they are offered for public display or sale.

24. In the event of a dispute over the custody or use of any element of an indigenous peoples' heritage, judicial and administrative bodies should be guided by the advice of indigenous elders who are recognised by the indigenous communities or peoples concerned as having specific knowledge of traditional laws.

25. Government should take immediate steps, in cooperation with the indigenous peoples concerned, to identify sacred and ceremonial sites, including burial sites, healing places, and traditional places of teaching, and to protect such places from unauthorised entry or use and from deterioration.

The Daes Report on the protection of Indigenous heritage contains the following fundamental principles to guide governments in their formulation of heritage legislation:

  • informed consent by Indigenous people to the legislation
  • maintenance of Indigenous control over their culture in accordance with the right of self-determination and
  • restitution and compensation for the appropriation of their culture.

The Report offers a timely guide to the government in its proposed overhaul of existing heritage legislation in Australia.

Protecting Indigenous heritage in Australia

It was recognised as early as 1984 that the Commonwealth Heritage Act was inadequate to protect Indigenous culture, in particular, because it failed to locate heritage protection within the context of Indigenous peoples' fundamental relationship with their lands. Nevertheless, the limitations of the Act were justified on the basis that it was proposed as a temporary measure, pending the forthcoming introduction of national land rights legislation. It was expected that more appropriate and comprehensive heritage protection would be achieved through the enactment of such legislation.

In 2001, the NTA is the only national legislation that has since been enacted to protect Indigenous people's relationship to land. It is ironic then, that when Indigenous peoples have complained about the inadequacies of the NTA to protect Indigenous heritage, the response has been that heritage protection should be achieved through specifically targeted legislation, rather than through a comprehensive land rights protection scheme.

Protection of Indigenous heritage through native title

The promise of native title was that the protection of Indigenous culture would be rescued from the swings and roundabouts of successive governments in giving or withdrawing their support to heritage legislation and subsequent amendments. Native title is a legal right comparable to any other interest in land. Native title has its origins in the culture and traditions of Indigenous people. That is what gives the title its content. It follows that Indigenous heritage, as a subset of Indigenous culture, is included in the concept of native title. and capable of being protected in the same way that other common law titles to land are protected.

Moreover, positioning heritage protection with the laws that protect Indigenous title to land better reflects the centrality of land to the vitality and survival of Indigenous heritage and culture. The principles in relation to Indigenous heritage identified in the Daes report support this positioning. A recent United Nations report prepared by the Special Rapporteur Miguel Alfonso Martinez, entitled Study on treaties, agreements and other constructive arrangements between States and indigenous populations,(15) places similar weight on the relationship of Indigenous people with their land.

Owing to their special relationship, spiritual and material, with their lands, the Special Rapporteur believes that very little or no progress can be made in this regard without tackling, solving and redressing - in a way acceptable to the indigenous peoples concerned - the question of their uninterrupted dispossession of this unique resource, vital to their lives and survival.(16)

Common law and legislative developments in relation to native title have not held true to the promise held out by the recognition of native title. At common law, native title has been determined to be inherently weak and inferior, making it vulnerable to extinguishment. Extinguishment has also been effected through amendments to the future act provisions of the NTA. The armoury of procedural rights under the original NTA (such as the right to negotiate) that protected native title from destruction or impairment as a result of commercial or government developments was similarly eroded by the amendments to the NTA. Furthermore, there has not yet been any definitive recognition that native title may include a right to "maintain, protect and prevent the misuse of cultural knowledge"(17) or a right to control cultural property.

The common law protection of Indigenous heritage

The common law approach to native title applications is to delineate two issues for determination. First, the applicants must prove that they continue to acknowledge the laws and customs based on the traditions of the clan group. If the claimants' connection to the traditions and customs of their forebears is established, then the court may determine whether the grant of tenures over the history of the claimed land since sovereignty has resulted in the extinguishment of native title.

The emergence of an approach to native title that characterises native title as a bundle of rights has the capacity to affect the outcome of these two lines of inquiry. In Chapters 2 and 3, I discuss the effect of the 'bundle of rights' conceptualisation of native title in relation to the question of extinguishment. Of particular note is the majority decision of Beaumont and von Doussa JJ in the Muriuwung Gajerrong case (18) which, if upheld by the High Court,(19) will confirm the total and permanent extinguishment of native title where land is, or has been, subject to:

  • enclosed or improved pastoral leases (20) in Western Australia (and in jurisdictions that have similar legislative provisions in relation to pastoral ; and
  • mining leases granted in Western Australia under the Mining Act 1978 (WA) and Regulations (21) (and in jurisdictions that have similar legislative provisions in relation to mining leases).

The bundle of rights approach also limits what the courts will recognise as native title rights. In particular, it diminishes the value that the courts place on contemporary Indigenous culture. It fails to recognise that the practices which establish the applicants' connection to their culture are part of a broader system of rights of which particular practices are an emanation. Where only traditional practices are recognised as forming the content of native title and not the system of laws and traditions underlying those practices, then little flexibility is permitted in determining whether contemporary practices that seek to protect Indigenous heritage should be recognised and protected as part of native title.

The extent to which a bundle of rights approach limits the recognition of contemporary Aboriginal practices concerned with heritage protection is illustrated by the decision in the Yorta Yorta case.(22) Recognition of native title is dependant upon proof that Indigenous people have maintained their traditional connection to land. In Yorta Yorta the trial judge interpreted the evidence of traditional connection very restrictively. The written records of an early squatter, Edward Curr, were heavily relied on to determine the traditional practices which constitute the content of native title. Of traditional burial practices, Curr wrote:

The Bangarang mode of burial had nothing remarkable about it. The dead were rolled up on their opossum-rugs, the knees being drawn up to the neck with strings, when the corpse was interred in a sitting posture, or on its side, generally in a sand-hill, in which a grave about four feet deep had been excavated. A sheet of bark was then placed over the corpse, the sand filled in, and a pile of logs about seven feet long and two feet high was raised over all. Round about the tomb it was usual to make a path, and not unfrequently a spear, surmounted by a plume of emu feathers, stuck at the head of the mound, marked the spot where rested the remains of the departed. Women were interred with less ceremony.(23)

Having established from Curr's writings some of the individual practices of the original inhabitants, the court noted that these same practices are not observed today in the same form.

In relation to the claim for recognition of the right to carry out burial ceremonies on the claim area, a similar logic was applied:

There can be no question about the importance of the returning of the remains to the appropriate country but the modern practices associated with their reburial are not part of the traditional laws and customs handed down from the original inhabitants.(24)

The court further rejected the claim that the contemporary practice of protecting sites of significance, such as mounds, middens and scarred trees, should be recognised as a native title right. His honour reasoned that these sites were of no significance to the original inhabitants 'other than for their utilitarian value, nor [did] traditional law or custom require them to be preserved'.(25)

The trial judge thus refused to recognise traditional laws and customs unless they replicated the observed practices of the original inhabitants. This restriction of what is regarded as 'traditional connection' prevents native title from protecting practices that, although differing from the practices of the original inhabitants, develop from those practices and seek to preserve and protect the past. This restriction on what may be recognised as native title means that native title protection cannot extend to heritage protection.

Protection of Indigenous heritage in the NTA

The capacity of the NTA to protect Indigenous culture is limited in three ways.

  • The extinguishment of native title through the confirmation provisions in Division 2B of Part 2 of the amended NTA;
  • The denial and erosion of procedural rights by the amendments to the NTA. The amendments to the NTA have substantially reduced the procedural rights available to native title holders in relation to a broad range of future acts now covered by Division 3 of Part 2; and
  • The reliance in the NTA upon inadequate protection provided in Commonwealth, State and Territory heritage legislation. Where the protection of Indigenous heritage and native title coincide under the NTA the protection of Indigenous heritage is diverted to inadequate Commonwealth, State and Territory Indigenous heritage legislation.

Limitations resulting from extinguishment of native title

The total and permanent extinguishment of native title through the confirmation provisions of the amended NTA (Division 2B of Part 2) means that a significant area of the traditional lands of Indigenous people cannot be protected under the concept of native title.

Section 47B provides that in certain circumstances native title claimants may apply for a determination on land where native title would otherwise have been extinguished because of previous Crown grants. The section will only apply where the area is presently vacant Crown land and is not subject, for example, to a reservation for a public or particular purpose or subject to a resumption order.(26) In addition, native title claimants must occupy the land at the time of application.(27) Section 47B thus provides some relief from the otherwise inevitable destruction of Indigenous land ownership and culture as a result of the extinguishment of native title.

The Committee on the Elimination of the all Forms of Racial Discrimination (the CERD Committee) considered the amendments to the NTA in March 1999 and again in March 2000 and heard the government's argument that the confirmation provisions merely reflect the position of native title at common law. This justification for the provisions was unacceptable to the Committee. As the Australian Country Rapporteur noted:

Since European settlement, the native land rights of Aboriginal peoples have been systematically undermined.[terra nullius] completely discounted the cultural value of the Aborigines' traditional and complex land distribution system.

As defined by the High Court in the Mabo decision, native title is a vulnerable property right, it is inferior to sovereign title, which has the power to extinguish native title without notice, consent or compensation. .

Because much of the Government's argument is that its actions have been justified because they meet the standard of the common law, it is important to note that the common law itself is racially discriminatory.(28)

The CERD Committee recognises that as a result of both the unique nature of Indigenous property rights, linked as they are to cultural and spiritual practices, and the historical disadvantage and dispossession experienced by Indigenous people native title must be recognised and protected as part of Australia's commitment to equality.

In its recent consideration of Canada's periodic report to it, the Human Rights Committee recommended that 'the practice of extinguishment of inherent aboriginal rights be abandoned as incompatible with Article1 of the Covenant, [the right of self-determination]'.(29)

The extinguishment of native title worked by the amendments to the NTA was strongly opposed by Indigenous people. Their capacity to protect immovable cultural property, traditional knowledge such as medical knowledge and genetic material, and cultural materials on land is profoundly impaired by any extinguishment of native title.

The denial and reduction of procedural rights by the amendments to the NTA (30)

Under the original NTA future development on native title land was governed by the freehold test. Native title holders had the same protection as 'ordinary titleholders' holding freehold title in relation to developments on their land.(31) In addition, native title holders had a right to negotiate in relation to mining proposals and compulsory acquisitions for the benefit of third parties.

Under the amended NTA the procedural protection provided by the freehold test has been greatly reduced. The freehold test now applies to onshore (32) legislative acts (33) and to onshore non-legislative acts (34) except those provisions specifically enumerated. The freehold test has been greatly reduced as a result of the amendments to the NTA, and in particular by on-shore non-legislative acts discussed below.

The amendments to the NTA deny and reduce the procedural rights available to native title holders in relation to a broad range of future commercial or government developments on native title land. The relevant provisions are found in Division 3 of Part 2 of the NTA.

Denial of procedural rights

The amended NTA provides no procedural rights to native title holders in relation to a range of future primary production activities and acts giving effect to the renewal, re-grant, re-making or extension of certain leases, licences, permits or authorities. The effect of this denial of procedural rights is extensive, covering the agricultural land of Australia where native title continues to exist. In these instances, the protection of Indigenous heritage is left exclusively to Commonwealth, State and Territory legislative regimes of Indigenous heritage protection. The relevant sections of the NTA are:

  • s 24GB: primary production activity (35) or associated activity (other than forest operations, horticultural activity or aquacultural activity or, where a non-exclusive pastoral lease is to be used agricultural purposes (36)), on non-exclusive agricultural and non-exclusive pastoral leases granted on or before 23 December 1996;
  • s 24IC: the renewal, re-grant, re-making or extension of leases, licences, permits or authorities granted on or before 23 December 1996, or a renewal re-grant etc under s 24IC or a lease etc created under s 24GB, 24GD, 24GE or 24HA.

Reduction of procedural rights

In relation to certain other government or commercial activities that may impair native title, the amendments to the NTA have reduced the procedural rights of native title holders from those available to holders of freehold title (the freehold test) to a mere right to be notified and a right to comment.

The procedural rights of native title holders are reduced to a right to comment in relation to the following acts:

  • s 24GB: the exceptions (forest operations, horticultural activity or aquacultural activity or native title holders, where a non-exclusive pastoral lease is to be used agricultural purposes) to the total denial of procedural rights of native title holders where primary production activity or associated activity occur on non-exclusive agricultural and non-exclusive pastoral leases granted on or before 23 December 1996 attract, for native title holders, a right to be notified and a right to comment;(37)
  • s 24GD: grazing on, or taking water from, areas adjoining or near to freehold estates, non-exclusive agricultural and non-exclusive pastoral leases granted on or before 23 December 1996 attract, for native title holders, a right to be notified and a right to comment;(38)
  • s 24GE: cutting and removing timber and extracting and removing sand, gravel rocks, soil or other resources from non-exclusive agricultural and non-exclusive pastoral leases granted on or before 23 December 1996 attract, for native title holders, a right to be notified and a right to comment;(39)
  • s 24HA: the management and regulation (including through the grant of leases, licences and permits) of surface and subterranean water, living aquatic resources and airspace attract, for native title holders, a right to be notified and a right to comment;(40)
  • s 24IB and s 24ID: the grant of freehold estate or the right of exclusive possession over land or waters pursuant to a right created by an act on or before 23 December 1996 attract, for native title holders, a right to be notified and a right to comment;(41)
  • s 24JA and s 24JB: the construction or establishment of public works on land reserved, proclaimed, dedicated etc for a particular purpose on or before 23 December 1996 or on leases granted to a statutory authority of the Commonwealth, State or Territory on or before 23 December 1996 attract, for native title holders, a right to be notified and a right to comment;(42) and
  • s 24JA and s 24JB: the creation of a plan of management for land reserved, proclaimed, dedicated etc. for a particular purpose on or before 23 December 1996 or for leases granted to a statutory authority of the Commonwealth, State or Territory on or before 23 December 1996 attract, for native title holders, a right to be notified and a right to comment.(43)

In addition, through the introduction of s 24KA, the amended NTA modifies the procedural rights of native title holders available under the freehold test in relation to acts providing facilities for services to the public. Where the construction of public facilities (44) occurs on land covered by a non-exclusive agricultural or non-exclusive pastoral lease, the procedural rights of native title holders are the same as those of the lessee.(45) The procedural rights afforded to a lessee are unlikely to secure the protection of Indigenous heritage and again, the responsibility for the protection of Indigenous heritage will fall upon Commonwealth, State and Territory legislative regimes. This is recognised in s 24KA(1)(d), which requires that laws of the Commonwealth, a State or a Territory make provision in relation to the preservation or protection of significant Indigenous areas, or sites.

The effect of this reduction of procedural rights is extensive, effectively covering all the following kinds of lands and waters over which native title continues to exist: parts of Australian agricultural land, surface and subterranean water, airspace, reserved land, dedicated land and leases granted to statutory authorities. The right to comment is unlikely to secure the protection of Indigenous heritage, particularly where the decision maker is free to ascribe minimal weight to such comments. In these instances, the responsibility for the protection of Indigenous heritage will fall upon Commonwealth, State and Territory heritage legislation.

Judicial interpretation of procedural rights under the NTA

The right to comment has been considered recently in Harris v Great Barrier Reef Marine Park Authority (Harris).(46) The full Federal Court held that native title claimants need only be given general notice of the areas to be affected and the activities to be conducted pursuant to the proposed future act. Nevertheless, the native title parties need not be notified of each specific permit, as it would be sufficient to notify the registered native title claimants that the Authority '.proposes to grant an unspecified number of permits of a particular class for access to the area defined'.(47) The court stated that the opportunity to comment is not 'a right to participate in the decision whether to issue the permit or a right that entitles the recipients to seek information from the decision-maker necessary to satisfy those interests about matters of concern to them'.(48) Furthermore, the 'opportunity to comment' provisions place no obligation on the decision maker to 'make any particular use of the information provided by way of comment or to act in a way that will ensure that no harm is done to native title interests or that such harm is minimised'.(49)

In Lardil Kaiadilt, Yangkaal & Ganagalidda v State of Queensland (50) a severely restricted interpretation of 'future act' by Cooper J. has meant that where procedural rights of native title holders or claimants are disregarded by decision-makers, the decision will nevertheless be valid. The court held that an act is only defined as a future act if it 'affects' native title. On this reasoning, an act cannot 'affect' native title until there is a native title determination. Native title claimants whose rights have not been determined by a court cannot enforce the prescribed procedural rights to prevent a government body or authority from proceeding to carry out the activity. A subsequent native title determination will not affect the validity of the future act, even though the procedural rights of Indigenous people were ignored.

The amendments to the NTA have resulted in reduced procedural rights in relation to future development of the land. Judicial interpretation of the procedural rights that are available has confirmed their inadequacy. The human rights implications of these amendments and their interpretation by the courts are discussed in Chapter 5 at page 151.

The reliance in the NTA upon inadequate protection provided in Commonwealth, State and Territory heritage legislation

As indicated above, the recognition and protection of native title could have had the effect of locating the protection of Indigenous heritage with that which provides its life blood, the relationship of Indigenous people to their land. Instead the Act has expressly excluded heritage protection preferring instead to hive it off to targeted, albeit inadequate, heritage legislation.

Freehold Test

In the previous section it was shown how amendments to the NTA diminished the protection available to Indigenous culture and thus Indigenous heritage by removing or reducing the application of the freehold test. Even where the freehold test does provide procedural protection to native title, this may not be adequate to protect the unique nature of native title, particularly its cultural, spiritual and social qualities. Rather than incorporate processes dealing specifically with this issue into the NTA, Parliament deferred the responsibility for the protection of Indigenous heritage to other Commonwealth, State or Territory legislation. Paragraph 24MB(1)(c) requires:

(c) a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:

(i) in the area to which the act relates; and
(ii) of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

The very general terms of s 24MB(1)(c), 'a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites', may ultimately require interpretation by the judiciary, but the Commonwealth appears to have adopted the view that so long as heritage protection is provided for in a law of the Commonwealth, State or Territory, there is no further inquiry as to its adequacy in protecting Indigenous heritage.

In the case of an act consisting of the creation or variation of a right to mine for opals or gems, s 24MB(2) extends the freehold test to circumstances where the act could not be done if the native title holders instead held ordinary title to the area concerned. In order to satisfy the s 24MB(2) variant of the freehold test, s 24MB(2)(d), which is identical to 24MB(1)(c), must be satisfied. This places even more reliance upon Commonwealth, State or Territory legislation for the protection of Indigenous heritage.

The NTA has left the protection of the unique nature of native title to ineffective Commonwealth, State or Territory heritage legislation. Yet it is the responsibility of the Commonwealth to ensure the standards established for the protection of Indigenous heritage conform to human rights standards.

The right to negotiate

The right to negotiate( 51) is designed to provide native title claimants or native title holders with the most comprehensive procedural rights where mining rights and certain compulsory acquisitions of native title rights are proposed.

Section 39 of the NTA is a pivotal provision in the right to negotiate process. When negotiations under s 31(1)(b) have not resulted in an agreement, s 39 provides criteria upon which the arbitral body can determine whether an act may or may not be done and, if it may be done, whether conditions should be imposed.

Subparagraph 39(1)(a)(v) provides the criterion dealing with the protection of Indigenous heritage:

(1) In making its determination, the arbitral body must take into account the following:

(a) the effect of the act on: 
(v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions.

To date, the determinations of the National Native Title Tribunal (NNTT) in its capacity as an arbitral body (where the parties have not consented to the determination) are not encouraging where the protection of Indigenous heritage is concerned. In Western Australia, the grant of a mining lease or exploration licence contains an endorsement drawing the grantee party's attention to the provisions of the Aboriginal Heritage Act 1972 (WA). The NNTT has tended to defer the protection of Indigenous heritage to the grant condition imposed by the Government leaving it to be dealt with under the Aboriginal Heritage Act 1972 (WA) and the Commonwealth Heritage Act. The reasoning behind this approach is stated in the Waljen decision:(52)

The Aboriginal Heritage Act has been considered and explained in Tribunal determinations relating to the expedited procedure. An endorsement drawing the lessee's attention to its provisions is included on all mining leases...

In earlier decisions, the Tribunal has found that generally, but not always, the protections offered by the Aboriginal Heritage Act are adequate to ensure that there is not likely to be the interference with sites referred to in s.237(b) on the basis of grantee parties acting lawfully. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) also provides for the use of emergency and permanent declarations to protect significant Aboriginal areas which are under a threat of injury or desecration.

Each case will have to be considered on its merits depending on the evidence, but on the face of it, looking at this criterion alone, there is no reason for the Tribunal to conclude that this legislative regime would necessarily be ineffective in protecting sites.(53)

The NNTT has adopted this view despite its reservations about the Aboriginal Heritage Act 1972 (WA) when considering objections to the expedited procedure under s 32 of the NTA. In making determinations as to whether the expedited procedures should apply to a grant under the Mining Act 1978 (WA) the NNTT has consistently found that once the existence of a significant area or site on the area subject to the proposed grant is established, irrespective of the existence of the Aboriginal Heritage Act 1972 (WA), the expedited procedure should not apply. The reasons for those decisions is the possible operation of section 18 of the Aboriginal Heritage Act 1972 (Cth) which gives the minister and registrar of aboriginal sites the discretion to permit interference with areas or sites of significance.(54) This reasoning does not appear to have been as persuasive in NNTT decisions regarding s 39 of the NTA, such as in the matter of Waljen.

Alternative provision schemes

The amendments to the NTA permit States and Territories to remove the right to negotiate in relation to specific acts or areas and implement 'alternative provision schemes' which offer diminished rights to native title holders compared with those provided in the Commonwealth NTA. The alternative provision schemes are:

  • an exploration, prospecting or fossicking scheme under s 26A;
  • a gold or tin mining scheme under s 26B;
  • the creation of an approved opal or gem mining exclusion area under s 26C;
  • an exception to the right to negotiate scheme under s 43A.

Alternative provision schemes must comply with the freehold test.(55) In addition the Commonwealth minister is required to take into account the existence of a law of the Commonwealth, a State or a Territory that makes provision in relation to the preservation or protection of areas, or sites before approving the scheme.(56)

The standards applying to the s26 schemes require only that Indigenous people be notified, heard and consulted (ss26A,26B) or that the minister will consider submissions made (s26C). Section 43A schemes reduce the rights of Indigenous people from a right to negotiate to a right to be notified, heard and consulted. These standards are well below those required for effective participation.

Included in the alternative provision schemes are provisions dealing with the protection of significant Indigenous areas or sites.

Before approving an exploration, prospecting or fossicking scheme under s 26A, the Commonwealth minister must take account of a number of matters, including the requirement in s 26A(7)(a):

(7) The matters are:

(a) the protection and avoidance of any area or site, on the land or waters to which the native title rights and interests relate, of particular significance to the persons holding the native title in accordance with their traditional laws and customs.

An approved gold or tin mining scheme has an identical requirement in s 26B(8)(a).

The creation of an approved opal or gem mining exclusion area under s 26C requires that the State or Territory minister invites and considers submissions about processes for the identification and protection of significant indigenous areas or sites. Subsection 26C(5) states:

Third condition

(5) The third condition is that, before making the request, the State Minister or Territory Minister:

(a) notified the public, and notified any registered native title bodies corporate, registered native title claimants and representative Aboriginal/Torres Strait Islander bodies in relation to any of the area, that he or she was intending to make the request in relation to the area; and

(b) invited submissions about the request, and in particular about the area covered by the request and about processes for the identification and protection of any area or site within that area of particular significance to native title holders in accordance with their traditional laws and customs; and

(c) considered any such submissions that were made.

Before the Commonwealth minister can make a determination under s 43A(1)(b) approving an alternative provision area scheme the minister must be satisfied that the scheme complies with s 43A(7). Subsection 43A(7) states:

(7) For the purposes of paragraph (1)(b), the requirements of this subsection are complied with if, in the opinion of the Commonwealth Minister, a law of the Commonwealth, the State or the Territory provides, for the whole of the land or waters to which the alternative provisions relate, in relation to the preservation or protection of areas, or sites, that may be of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

On 27 April 1999 the Commonwealth Attorney-General determined under s 43A(1)(b) that three Northern Territory alternative provision schemes had complied with all the requirements of s 24MB(1)(c) and s 43A, including s 43A(7). This occurred despite the Indigenous concerns about the level of protection provided by Commonwealth and territory legislation for the protection of Indigenous heritage in the Northern Territory, under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) and the Heritage Act.(57)

On 31 May 2000, the Commonwealth Attorney-General made 9 determinations (58) in relation to Queensland that schemes enacted pursuant to s 26A(1), 26B(1) and s 43A(1)(b) of the NTA complied with the legislative requirements of those sections, including requirements for the protection of significant Indigenous areas and sites in sections 24MB(1)(c), 24MB(2)(d), 26A(7)(a), 26B(8)(a) and 43A(7). The Queensland scheme included:

  • three s 26A exploration schemes;
  • two s 26B gold and tin mining schemes; and
  • four s 43A schemes.

This occurred despite the Queensland Indigenous Working Group raising numerous and serious concerns with the minister about the level of protection of Indigenous heritage provided by Commonwealth and territory legislation , including the Northern Territory Aboriginal Sacred Sites Act 1989 and the Heritage Act.(59) Indeed, the Queensland government acknowledged in 1999 that its primary legislation, the Cultural Record Landscapes Queensland and Queensland Estate) Act 1987 (Qld), was not adequate to protect Indigenous heritage The Queensland government stated in a 1999 discussion paper:

The Queensland Government wishes to ensure that State legislation provides effectively for the protection of Aboriginal and Torres Strait Islander cultural heritage whilst providing a workable process for land use and development proposals. It is intended that the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987 be repealed and replaced with new legislation.(60)

Developments within the common law and amendments to the NTA have meant that the opportunity to re-frame the protection of Indigenous heritage within the broader protection of Indigenous peoples' culture and its special relationship with land has failed to eventuate. Accordingly the protection of Indigenous heritage continues to rely on specially targeted State and Commonwealth Heritage legislation.

The protection of Indigenous culture through heritage legislation

Protection of Indigenous heritage is a national responsibility that the Commonwealth has wide legislative powers to achieve. The Australian Constitution gives the Commonwealth the power to make special laws with respect to people of any race (61) and to make laws with respect to copyright, patents of inventions and designs, and trade marks.(62) The federal government is a signatory to numerous international instruments that require it to provide to Indigenous culture the same level of protection that is provided to non-Indigenous culture.

Widespread criticism of the effectiveness and appropriateness of the existing national framework of Indigenous heritage protection, and in particular the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (the Commonwealth Heritage Act) led to a review of heritage protection by the Hon. Dr Elizabeth Evatt AC (the Evatt Report).(63)

The Evatt Report was balanced and comprehensive - it was conducted over an eight month period, received nearly 70 submissions and was based on extensive consultations across Australia. As a result, Indigenous people throughout Australia largely support its recommendations.(64) The Evatt Report was also endorsed at the National Heritage Convention in August 1998, and a resolution stating that the government should adopt the recommendations of the Evatt Report in order to ensure the protection of Indigenous heritage was adopted.

In commissioning the Evatt Report, the federal government recognised the need to reform existing heritage legislation. However, the proposed reforms, enshrined in the Aboriginal and Torres Strait Islander Heritage Protection Bill (No 2) 1998 (Heritage Bill) do not improve the level of protection currently available to Indigenous culture in Australia. Rather, the Bill proposes to devolve power and responsibility for Indigenous heritage to States and Territories without ensuring that State and Territory-based protective regimes will meet human rights standards.

The Heritage Bill was debated and substantially amended in the Senate on 26 November 1999(65) to ensure that it implemented the recommendations of the Evatt Report. It was returned to the House of Representatives on 9 December 1999. The government has rejected the substantive amendments, although it indicated during the Senate debate that it would consider the many concerns raised.

The inadequacies of the Commonwealth Heritage Act have resulted in three parliamentary reviews and a number of draft amendments but no action has yet been taken to give it the broad focus necessary to provide adequate protection to Indigenous culture and heritage. The Act's unworkability is demonstrated through the example of Hindmarsh Island, which cast Indigenous heritage into the political sphere and the courts.(66)

The Special Rapporteur on the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief, Mr Amor, made the following comments on heritage protection after visiting Australia in 1997. (67)

Many different kinds of protection, both specific and general, direct and indirect, are given to the land and to sacred sites, including sacred objects, and therefore to their religious dimension. They take the form either of regional agreements and legislation ensuring the protection and management of Aboriginal lands or Commonwealth and State and Territory laws on property and the cultural heritage. These forms of protection are the expression of an official policy in favour of Aboriginals, based on well-developed legislation. There are still a number of difficulties, however, related to loopholes and shortcomings in the laws and to interference with their objective, mainly owing to conflicts of interest.

Regarding the loopholes and shortcomings in the law, in the first place and in general, there is the problem of its complexity, particularly with respect to relations between Federal and State systems, that is, between federal Laws, which are few and protective, and State and Territory laws, which are many, uneven in the degree of protection they afford and sometimes inadequate in relation to Commonwealth standards.

One criticism which is often put forward is the inability of these laws derived from a Western legal system to take account of Aboriginal values. A basic difficulty arises from the fact that, under some laws, Aboriginals have to prove the religious significance of sites and their importance; partly this is difficult owing to different approaches by different Aboriginal groups to sacred sites and to the fact that knowledge of the sites is restricted to a few gender-specific individuals and partly it conflicts with some Aboriginal values and customs, including the importance given to secrecy.(68)

The theoretical difficulties with the heritage legislation noted by Mr Armor can be summarised as inadequate protection, unworkability and ineffective participation by Indigenous people in the legislation that affects them.

From its enactment in 1984 until June 1999, approximately 200 applications have been lodged under the Commonwealth Heritage Act. Until December 1998 the Minister for Aboriginal and Torres Strait Islander Affairs was responsible for administering the Heritage Act assisted by the Aboriginal and Torres Strait Islander Commission. This responsibility was then transferred to the Minister for the Environment who administers the Act through Environment Australia.

The outcomes in terms of ministerial declarations of protection over the fifteen years of the Act's operation are as follows:

  • eight declarations under s 10 protecting objects of significance to Indigenous people;
  • five emergency (temporary) declarations under s 9 protecting significant places; and
  • two declarations providing long term protection to significant Indigenous sites under s 10 of the Heritage Act, Junction Waterhole (Niltye/Tnyere-Akerte), Alice Springs and Boobera Lagoon, Moree, NSW.(69) The order protecting Boobera Lagoon was scheduled to come into effect on 1 July 2000. The Minister for the Environment deferred the declaration of the protection order until July 2002 to allow water skiers a further two years to find an alternative site for their activities.

The local Aboriginal community has been actively pursuing protection of Boobera Lagoon through available heritage protection measures for over 25 years. They have consistently sought to restrict recreational and other use of the area. Boobera Lagoon was officially catalogued by the National Parks and Wildlife Service in 1977 but its significance to Aborigines has been acknowledged by non-Aborigines at least since 1899 when it was recorded by a government surveyor. The site is significant chiefly because of the belief that the local Rainbow Serpent lives in the Lagoon. The area of significance is the entire lagoon and the land bordering it.

The importance of Boobera Lagoon was considered by the Human Rights and Equal Opportunity Commission in The Toomelah Report: Report on the Problems and Needs of Aborigines Living on the NSW-Queensland Border.(70)

In 1996 Hal Wootten AC QC articulated the significance of Boobera Lagoon to the Kamilaroi people in his Report to the Minister for Aboriginal Affairs.(71) After considering the matters raised by the Report, the minister was satisfied that Boobera Lagoon is a significant Aboriginal area and is under threat of injury or desecration.(72)

As a result of the minister's delay in issuing a protection order and the Lagoon being treated as a recreation site, local Aboriginal people are prevented from fulfilling their role as custodians of the area. This represents a loss for the Aboriginal community and the wider Australian community.

In order to provide water skiers and other recreational users with an opportunity to find an alternative site the protection order has been delayed for a further two years. The interests of recreational users have been preferred to the human right of Indigenous people to have their culture protected.

Decisions such as those in relation to Boobera Lagoon reflect the inadequacy of the Commonwealth Heritage Act as a means of protecting Indigenous heritage. Yet, as pointed out above, amendments to the NTA have meant that Indigenous people are reliant on targeted heritage legislation, including the Commonwealth Heritage Act, as the major source of heritage protection. It is important therefore that deficiencies in the Commonwealth Heritage Act are identified and remedied consistently with international human rights standards.

The Evatt Report on the Commonwealth Heritage Act

The Evatt Report (73) identified many deficiencies in the Commonwealth Heritage Act which can be characterised in terms of its failure to meet international standards and obligations with respect to the protection of Indigenous heritage and their right to self-determination.

Protection of Indigenous heritage

  • Inadequate State/Territory legislation. The Act does not operate as it was intended - as a last resort - because its effectiveness is compromised by inadequate protection at the State and Territory level. Consequently, the Act is often required to provide primary site protection rather than 'last resort' back-up to legislation in the States and Territories.(74) This has been compounded by State and Territory opposition to intervention by the Commonwealth which has contributed to the low level of protection being accorded under the Act.(75)
  • Delay: The process under the Act for the Commonwealth minister to consult with State or Territory ministers - a process which excludes the applicant and other interested persons - is unnecessarily long, placing Indigenous heritage at risk where no interim protection is in place.(76)
  • Delay and onerous requirements: A lack of adequate procedures in the Act has contributed to delays, litigation and higher costs for the applicants and other affected parties. As a result of successful legal challenges of the reporting process,(77) strict requirements on the reporting process were imposed. These requirements have been burdensome and costly for everyone involved, and the outcomes have made the Act unworkable when considered against its original intentions.(78)
  • Delay and Failure to Provide Effective Protection: The operation of the Act was subject to unreasonable delay in responding to and deciding applications for protection, causing concern from Indigenous people (that some sites for which protection was sought were damaged as a result) and from developers generally.(79)
  • Lack of Confidentiality: Indigenous people are concerned that the Act does not protect confidential information which may be communicated during the reporting process from disclosure.(80) This has been borne out in Chapman v Luminis Pty Ltd [No 2](81) and is a disincentive for Indigenous people to use the Act.
  • Incomplete Protection: The Act fails to cover all aspects of Indigenous heritage important to Aboriginal people such as intellectual property (82) and the regulation of the use and sale of significant Indigenous objects.

Self-determination

  • Unsatisfactory Model for Decision-Making. So long as the Commonwealth minister considers the matters to which s 10(1)(b) of the Act directs attention, she or he is not obliged to act, even if an area is of significance to Aboriginal people.(83)
  • The Act fails to sufficiently include Indigenous people in decisions relating to protection or in the administration of the Act.(84)
  • The Evatt Report also identified the failure to provide for Indigenous involvement in decision making and policy formulation on heritage protection issues as contrary to the requirements imposed by Article 27 of the ICCPR, and recommended the situation be remedied by establishing an Aboriginal Cultural Heritage Advisory Council to provide advice on the operation of the Act and relevant processes.(85)

Recommendations in the Evatt Report: Commonwealth processes

The Evatt Report makes numerous recommendations in relation to the scope, functions and processes under the Commonwealth Heritage Act in order to address the above deficiencies. The comprehensive recommendations seek significant changes to the legislation in the following areas:

Protection of Indigenous Heritage

  • The Commonwealth Act and minimum standards: recommendations deal with protection of information from disclosure, information protocols, exemption from the Freedom of Information Act 1982 (Cth), exemptions from various Court procedures, public interest immunity, access for protection of heritage, provision of penalties;
  • Making the Act more effective: recommendations deal with improving the process for determining whether to protect indigenous heritage, ensuring protection is effective, emergency and interim protection, the obligation to determine applications for the protection, the process for making and recording applications for protection, procedural fairness, consultation with State or Territory Ministers, the processes to be employed by a heritage protection agency and improving accountability;(86)
  • Protecting Aboriginal objects: recommendations deal with the enactment of national, uniform laws to regulate the sale of significant indigenous objects, agreements in relation to objects, the extension of the definition of objects to include records and the repatriation of objects.(87)

Self-Determination

  • Deciding significance is an Aboriginal issue; the report makes recommendations on the basis for assessment of significance, the scope of reliance on State or Territory assessment, referral of applications to accredited State or Territory processes, establishing an Aboriginal cultural heritage committee; separating the decision in relation to the significance of an area or object from the decision to protect, the use of Aboriginal information in the assessment of significance, binding the minister to an assessment of significance, resolving dissent between Aboriginal groups, and the assessment of the threat upon Indigenous heritage;(88)
  • Encouraging agreement: the report recommends mediation to deal with conflicts over Indigenous heritage issues;(89)
  • An Aboriginal heritage protection agency and Aboriginal cultural heritage advisory council: the report recommends the creation, composition and functions of a new Commonwealth Heritage Protection Agency and the creation and composition and functions of an Aboriginal cultural heritage advisory council.(90)

Reforming State and Territory heritage protection legislation to ensure effective interaction with a reformed Commonwealth Act

The Evatt Report acknowledges that primary responsibility for heritage protection must operate at the State and Territory level. The role of the Commonwealth is to ensure acceptable State and Territory levels of protection by providing protection of last resort when the State and Territory protection regimes fail to deliver the required standard of protection. This could only be achieved through effective interaction between a reformed Commonwealth Act and State and Territory heritage protection legislation.(91)

The success of the interaction would be totally reliant upon reforming State and Territory heritage protection legislation (92) to achieve minimum standards of State and Territory heritage protection in key areas (93) and ensure that the mechanism for determining the significance of an area or object is both independent and based upon views, laws and customs of Indigenous people.(94) Failure to achieve an effective interaction due to poor standards or improper implementation of State and Territory heritage protection legislation would continue to place the Commonwealth Act in the unintended and unsuited role of providing a primary level of protection as occurs, for example, in Queensland and Western Australia.(95)

The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998

While the recommendations of the Evatt Report have not been implemented, measures taken by the Commonwealth over the past four years have reinforced its central view - that the national framework of Indigenous heritage protection legislation requires immediate attention if Indigenous heritage is to be effectively protected in Australia.

Partly as a response to the Evatt Report, the federal government initiated an overhaul of the Commonwealth Heritage Act on 17 December 1996. The government presented the Aboriginal and Torres Strait Islander Heritage Protection Bill (No 1) 1998 in the House of Representative on 2 April 1998. That Bill lapsed on 3 October 1998 and on 12 November 1998 an amended Bill, the Aboriginal and Torres Strait Islander Heritage Protection Bill (No 2) 1998 ('Heritage Bill '), was introduced and passed by the House of Representatives. The Heritage Bill was substantially amended by the opposition parties in the Senate on 26 November 1999.

Two Commonwealth parliamentary committees, the Parliamentary Joint Committee on Native Title and the Indigenous Land Fund and the Senate Legal and Constitutional (Legislation) Committee have, on 2 April 1998, 1 June 1998, and 31 March 1999 respectively, considered the Evatt Report. On each occasion, the Committee divided with the government majority making the recommendations of the Committee and the Opposition and the Democrats producing a minority report demanding adherence to the Evatt Report.

The end result of this long process is that no amendments have been made to the Commonwealth Heritage Act. State and Territory Indigenous heritage protection legislation also continues to operate without change. Finally, the legislation that is supposed to address these issues, the Heritage Bill, has stalled because it is unsatisfactory in many respects. The Heritage Bill weakens the inadequate protection currently available from the Commonwealth for areas and objects of significance to Indigenous people. It provides for the accreditation of State or Territory Indigenous heritage protection legislation, which under the proposed regime, will be responsible for all Indigenous heritage matters other than those 'in the national interest'. An applicant must exhaust all the remedies of a State or Territory regime, irrespective of whether that regime is accredited or not, before applying for 'national interest' status under the Commonwealth legislation.

Improving the effectiveness and efficiency of the Commonwealth Heritage Act is essential if Australia is to meet its human rights obligations. This is particularly so with the failure of native title to provide adequate protection to Indigenous culture. My concerns in relation to the proposed reform of the Commonwealth Heritage Act, as encapsulated in the Bill, can be seen in terms of the human rights principles that firstly require adequate protection of Indigenous culture and secondly effective participation of Indigenous people in the decisions made in relation to their culture.

Protection of Indigenous Heritage

  • The national interest test is not an adequate safety net for ineffective State legislation; 'National interest' is the threshold test for protection of Indigenous heritage under the Commonwealth Act where protection is not provided for under an accredited State or Territory Act.(96) However, 'national interest' is not defined in the Bill and the Explanatory Memorandum to the Bill states that ". the circumstances in which protection would be in the national interest are likely to be quite rare".(97) 
    The failure of the Bill to provide for a definition of 'national interest' that includes protection of areas and objects of significance to Indigenous people considerably weakens the protection available. 
    The Commonwealth's role in heritage protection is essential. It is the Commonwealth's responsibility to ensure that heritage protection in Australia is sufficient to meets its obligations under ICCPR to ensure protection of Indigenous peoples rights to self-determination, protection, equality, effective participation and the right to freedom of religious expression. Where a breach of human rights standards arises because of inadequate State and Territory standards, as is the case in relation to heritage protection, the Commonwealth is responsible to ensure that the international requirements are met. The Human Rights Committee stated in its Concluding Observations in July 2000: 
     

The Committee considers that political arrangements between the Commonwealth Government and the governments of states or territories may not condone restrictions on Covenant rights that are not permitted under the Covenant.(98)

  • The minimum standards for State and Territory legislation are inadequate; Land management has traditionally been the legislative and administrative sphere of State and Territory, rather than Commonwealth, governments. Indigenous heritage protection is, however, not simply a land management issue. The New South Wales Aboriginal Land Council put it this way:

...Aboriginal heritage is not just a land management issue; it is the protection of a people's cultural heritage. That is more than just land management. That needs to be borne in mind in dealing with this Bill. The next point is that NSWALC has no problem and in fact supports state involvement in Aboriginal heritage protection. However, it needs to be ensured by the Commonwealth that the standards are sufficiently high, sufficiently prescriptive and sufficiently rigorous so that it actually takes place. That is part of the Commonwealth fulfilling its obligations to Aboriginal people across the country.(99)

An accreditation standards framework was developed in the Evatt Report with a view to providing uniformity across the country on key aspects of State and Territory Indigenous heritage protection legislation. The minimum standards contained in s 26(1) of the Bill however are drafted in a manner that is too general to clearly establish uniform standards. The Heritage Bill currently lacks the following minimum standards in relation to the laws of a State or Territory seeking accreditation:

a) Provision for access for Indigenous persons to exercise responsibilities in relation to significant Indigenous areas and objects.

(b) Provision for the establishment of an independent body in accordance with the recommendation of the Evatt Report,(100) to assess the significance of areas and objects. The separation of the function of assessment of cultural significance, that is, assessment of the factual issues from the exercise of ministerial discretion is essential to ensure unbiased decisions.(101) This assessment should be conducted by an independent body with substantial Indigenous control.

(c) Provision for the notification of Indigenous heritage on certificates of title covered by a heritage agreement. In accordance with the principle of blanket protection for Indigenous heritage, all title holders should be notified of heritage sites on parcels of land. This is a necessary requirement in order to establish a satisfactory system of prosecution and defence for violation of heritage protection.

(d) Provision for emergency and/or interim protection to prevent harm to significant areas or objects whilst a matter is processed.

(e) Provision for:

  • requiring reasons be provided to the Indigenous applicants in relation to a decision to remove or otherwise affect heritage protection and that those reasons will be taken to form part of the record; and
  • judicial review by Indigenous applicants is not precluded from decisions that remove or otherwise affect heritage protection; and
  • that decision makers give substantial weight to the particular nature of Indigenous heritage and the importance of protecting significant areas and objects when deciding to remove or otherwise affect heritage protection.

(f) Provision for the monitoring of the implementation and performance of accredited regimes on a triennial basis as an additional basis for the revocation or variation of accreditation of State and Territory regimes under s 27. The standard by which the implementation and effectiveness of an accredited state or territory regime is to be determined must be its record of effective protection of significant Indigenous areas and objects over the previous 3 years. Advice to the minister should culminate in a positive decision regarding the ongoing accreditation of a state or territory regime. The monitoring and review process should also provide for the notification of all interested parties and the receipt of their submissions.

  • The provision of interim and emergency protection orders are insufficient to provide adequate protection.

The following concerns arise in relation to the making of an Interim Protection Order (IPO) under the Bill:

(a) There are no guidelines for the decision to grant an IPO under the Bill.It appears to be entirely a matter for the minister upon the lodgement of an application for an IPO;

(b) The drafting of s 63(2)(b) raises the question as to whether information supplied separately from the originating application can be taken into account. The requirement that such information should not be taken into account should be placed beyond doubt;

(c) Where interim protection is sought, it is usual that the standard applied to obtaining long-term protection is reduced to one a prima facie level. This is envisaged, but not necessarily achieved, by s 63(2)(b) of the Bill. Paragraph 63(2)(b) requires that 'the Minister is satisfied that the application, on its face, established' the matters in subparagraphs (i)-(iii). That is, the significance of the area or object, that the area or object is under serious threat of injury or desecration and, that the protection of the area is in the national interest. This test does not appear to adopt the usual principles of law where interim relief is sought, namely a reduction of the standard of proof to the prima facie level. Instead, the drafting requires that the matters in subparagraphs (i)-(iii) be 'established' by the application - a seemingly impossible task at that stage. By way of contrast, it is sufficient for an IPO that the Director is 'satisfied' that the protection of an area or object is in the national interest.

In relation to the making of an Emergency Protection Order (EPO) under the Bill, section 62 currently requires information to be supplied separately from the originating application, leaving the process open to the involvement of non-applicant parties and consequential conflict and litigation. The amended definition of the originating application provides a simple mechanism for the utilisation of the rejected application in section 62. This will avoid possible challenges from other interested parties seeking to provide information and allows parity between sections 62 and 63 to be secured.

  • the requirement to exhaust remedies creates serious or fatal delays for Indigenous applicants. Under the Bill it is necessary to exhaust state or territory remedies before an application for a heritage protection order can be made, even where a state or territory regime is not accredited. Consequently Indigenous applicants waste valuable time and resources exhausting the 'remedies' of an unsatisfactory state or territory regime, risking the desecration of a significant area or object while this is occurring.

Self-determination

  • the confidentiality of cultural information is not guaranteed. Subsection 30(4) of the Bill (No.2) provides the director with the discretion to determine the confidentiality of cultural information rather than Indigenous people. A process that provides a primary role for Indigenous people in this important matter should replace this.
  • Indigenous people are not recognised as the primary source of information. Section 57 of the Bill requires only that the director or independent reviewer 'must have regard to must have regard to must have regard to must have regard to must have regard to the principle that indigenous persons are the primary source of information about the significance.' The application of this principle is discretionary not mandatory. Furthermore, s 57 fails to recognise that Indigenous persons are the primary source of information in determining the threat to a significant area or object posed by a proposal.
  • The Commonwealth body administering Indigenous heritage protection is not sufficiently independent.

It is essential that the Commonwealth body established under the Bill (No.2) to carry out heritage functions is independent. This body would operate in a highly specialised area and the legislation should prescribe the way the body operates and the qualifications of its staff and consultants. At the very least:.Chapter 4 147

(a) the body must operate in a fair, just, economical, informal and prompt way and in so doing, it must take account of the cultural and customary concerns of Indigenous people; and

(b) staff and consultants retained by the body have an understanding of Indigenous culture and heritage and an ability to deal with Indigenous persons in a culturally sensitive manner.

(c) consistent with the recommendations of the Evatt Report, the director or delegate who conducted the mediation should not take part in the reporting process unless the interested parties agree.

  • Provision has not been made for an Indigenous advisory council as recommended in the Evatt Report. Under the recommendations, the functions of the Council would be:

(a) to advise the director and the Commonwealth minister on:

(i) issues arising under the Act, especially the most appropriate means by which protection is provided to areas and objects of significance and the recovery and repatriation of objects. This should also include the accreditation and effectiveness of accredited State and Territory regimes;

(i) appropriate procedures for dealing with indigenous people in the performance of functions under the Act;

(ii) the making of regulations under the Act;

b) to liaise with, and the promote the views of, Indigenous people in relation to heritage protection issues;

(d) to undertake research for the purpose of carrying out its functions.

(e) to advise the director and/or minister with respect to matters that involve intra-Indigenous disputes about the threat to or significance of an area or object and the protection of the area or object.

The Heritage Bill represents a retreat from the Commonwealth's national and international responsibility for Indigenous heritage protection. The government should, as a matter of urgency, reform the national framework of legislation so that it complies with Australia's international obligations to provide protection to Indigenous culture and ensure the effective participation of Indigenous people in the decision around their heritage.

In Australia, the recognition of Indigenous interests in land have primarily been forged by non-Indigenous land use requirements. Existing heritage legislation was born out of a need to incorporate Indigenous culture into non-Indigenous systems of property development and land use. Although the recognition of native title acknowledged the traditions and customs of Indigenous people, it did not provide a comprehensive system for the protection of Indigenous culture which would include Indigenous heritage.

Separate heritage regimes at State, Territory and Commonwealth levels have fragmented the protection of Indigenous heritage. One of the consequences of shaping Indigenous rights through inadequate legislative regimes is a failure to provide protective mechanisms which fully represent and safeguard Indigenous culture. Native title offered an opportunity to unify these diverse sources so that the protection of Indigenous heritage was provided through the legal right of Indigenous people to their land and their culture. Amendments to the NTA in 1998 and developments in the common law of native title since its recognition in 1992 have meant that this opportunity has not eventuated.


Footnotes

1. Rose, D.B., Nourishing Terrains: Australian Aboriginal Views of Landscape and Wilderness, Australian Heritage Commission, 1996, quoting Seddon, G., 'The evolution of perceptual attitudes' in Seddon, G. and Davis, M. (eds), Man and Landscape in Australia; Towards an ecological vision, Australian National Commission for Unesco, AGPS, Canberra, p10.

2. Daes, Mdme Erica-Irene, Final Report Indigenous Peoples and Their Relationship to Land, UN Doc E/CN.4/Sub.2/2000/25, para 114.

3. ibid, para 114.

4. The Human Rights Committee monitors State Parties' compliance with the International Covenant on Civil and Political Rights.

5. Human Rights Committee, Consideration of Reports Submitted Under Article 40 - Concluding Observations of the Human Rights Committee, 28 July 2000, CCPR/CO/69/AUS., para 9.

6. Hill, Senator Robert, Press Release: Decision on the Future of Boobera Lagoon, 28 June 2000, www.environment.gov.au/minister/env/2000/mr28jun00.html, (27 November 2000).

7. Mr Lahlah, Transcript of Human Rights Committee's examination of Australia, 21 July 2000, www.faira.org.au (27 November 2000). The attempts of the local Aboriginal Community to protect Boobera Lagoon and the failure of the Commonwealth Minister to issue a protection order over the lagoon are discussed below at p138.

8. Daes, Erica-Irene, Report of the seminar on the draft principles and guidelines for the protection of the heritage of Indigenous people. Geneva, 28 February - 1March 2000, 19 June 2000. E/CN.4/Sub.2/2000/26. These principles are also annexed to the study Protection of the Heritage of Indigenous People produced in conformity with Sub-Commission resolution 1993/44 and decision 1994/105 of the Commission on Human Rights UN Doc E/CN.4/Sub.2/1995/26,

9. ibid, Appendix 1, para 1.

10. ibid, Appendix 1, para 2.

11. ibid, Appendix 1, para 3.

12. ibid, Appendix 1, para 4.

13. ibid, Appendix 1, para 5.

14. ibid, Appendix 1, paras 23 & 24.

15. Martinez, M.A., Study on treaties and other constructive arrangements between States and indigenous populations, Final Report, E/CN.4/Sub.2/ 1999/20, 22 June 1999.

16. Martinez, ibid, para 252.

17. Western Australia and Ors v Ward and Ors (2000) 170 ALR 159 (Muriuwung Gajerrong case).

18. ibid.

19. The appeal will be heard by the High Court on 6-16 March 2001.

20. Ward, op cit, p242.

21. Ward, op cit, pp296, 301 & 302.

22. The Members of the Yorta Yorta Aboriginal Community v The State of Victoria (Unreported, Federal Court of Australia) [1998] 1606 FCA, 18 December 1998, Olney J.

23. ibid, para 116.

24. ibid, para 124.

25. ibid, para 122.

26. NTA s 47B(1)(a) & (b).

27. NTA s 47B(1)(9c).

28. McDougall, G., Transcript of Australia's Hearing Before the CERD Committee, FAIRA, CERD Transcript, 21-22, op cit, p4-5.

29. (1999) UN doc. CCPR/C/79/Add.105 para 8.

30. A further discussion of procedural rights under the amended NTA is at pp150-157 of this report.

31. The original NTA, s 23(6).

32. NTA, s 24MC.

33. NTA, ss 24MA & 24MB.

34. NTA, ss 24MB & 24MD.

35. Defined in NTA, s 24GA.

36. NTA, s 24GB(9).

37. NTA, s 24GB(9).

38. NTA, s 24GD(6).

39. NTA, s 24GE(1)(f).

40. NTA, s 24HA(7).

41. NTA, s 24ID(3).

42. NTA, s 24JB(6).

43. NTA, s 24JB(7).

44. Defined in the NTA, s 24KA(2).

45. NTA, s 24KA(7)(a).

46. Unreported, Federal Court of Australia, [2000] FCA 603 (11May 2000), per Heerey, Drummond and Emmet J.J.

47. paragraph 45.

48. paragraph 38.

49. paragraph 51.

50. Unreported, Federal Court of Australia [1999] FCA 1633, 24 November 1999, Cooper J.

51. NTA, Subdivision P of Division 3 of Part 2.

52. State of Western Australia and Thomas & Ors (Waljen) and Austwhim Resources NL, Aurora Gold (WA) Ltd (1996) 133 FLR 124; also located online at www.nntt.gov.au/determin.nsf/area/ homepage.

53. ibid, p209-211.

54. See, for example, Dann (No.2)(Unggumi Ngarinyin)/Western Australia/GPA Distributors, (Unreported, NNTT) WO95/19, 10 June 1997, Sumner C.J. and Brownley (Bibila Lungkutjarra People)/Western Australia/ Aberfoyle Resources Ltd., (Unreported, NNTT) WO98/907, 4 November 1999, Lane, Mrs P.; both online at www.nntt.gov.au/determin.nsf/area/homepage

55. NTA, ss 26(2), 43(1) & 43A(1).

56. NTA, SS26A(1), 26B(1), 26C(2), and 43A(1)(b). The determination to approve is subject to disallowance by the Commonwealth Parliament - see NTA, s 214.

57. Submission of the Central and Northern Land Councils pursuant to s 43A(3)(b) of the Native Title Act dated 12 April 1999 pages 74-76.

58. A further four determinations under s 43(1)(b) of the Native Title Act were also made on that date.

59. Comments to the Commonwealth Attorney-General Concerning the Lack of Proper Provision for the Protection of Indigenous Cultural Heritage in Queensland Native title Legislation dated January 2000.

60. Queensland's Indigenous Cultural Heritage Legislation Review: Draft Model for New Legislation p5.

61. The Constitution, s 51(xxvi).

62. The Constitution, s 51(xviii).

63. Evatt, Dr Elizabeth, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, Canberra, 22 August 1996.

64. See, for example, ATSIC, Submission to Senate Legal and Constitutional (Legislation) Committee, 12 February 1999, p15 and ATSIC Heritage Issues Paper www.atsic.org.au/ default_ie2.asp (27 November 2000).

65. The Opposition and the Democrats jointly moved 179 amendments.

66. Bropho v Tickner (1993) 40 FCR 165; Tickner v Bropho (1993) 114 ALR 409; Chapman & Others v Tickner & Others (1995) 55 FCR 31; Tickner & Others v Chapman & Others (1995) 57 FCR 451; State of Western Australia v Minister for Aboriginal and Torres Strait Islander Affairs (1995) 37 ALD 633; Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1997) 149 ALR 78. The qualifications of the person appointed by the Minister to report under s 10(1)(c): Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1.

67. Amor, A., Report submitted by Mr Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights resolution 1996/23 Addendum, visit to Australia, 4 September 1997. UN Doc E/CN. 4/1998/6/Add.1.

68. Paras 91, 92, 93.

69. See discussion of Boobera Lagoon at pp120-121.

70. Einfield, Hon. Justice Marcus, Killen, Hon. Sir James & Mundine, Kaye, The Toomelah Report, Human Rights and Equal Opportunity Commission, Sydney, June 1988.

71. Hal Wootten, A.C. Q.C., Report to Minister for Aboriginal Affairs re Boobera Lagoon, April 1996.

72. The Commonwealth Heritage Act, s 10(1)(b).

73. op cit, para 2.30, p14.

74. op cit, para 2.31, p14 & 15.

75. op cit, para 2.31, p14 & 15.

76. See, generally, Bropho v Tickner (1993) 40 FCR 165; Tickner v Bropho (1993) 114 ALR 409; Chapman & Others v Tickner & Others (1995) 55 FCR 31; Tickner & Others v Chapman & Others (1995) 57 FCR 451; State of Western Australia v Minister for Aboriginal and Torres Strait Islander Affairs (1995) 37ALD 633; Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1997) 149 ALR 78.

77. op cit, para 2.26, p13.

78. op cit, para 2.27 & 2.28, p13 & 14.

79. op cit, para 2.34, p15 & 16.

80. Unreported, Federal Court of Australia [2000] FCA 1010, 28 July 2000, von Doussa J.

81. Except in Part IIA, which applies only in Victoria.

82. Wamba Wamba Local Aboriginal Land Council v Minister Administering the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (1989)86 ALR 161, 170.

83. op cit, para 2.37, p16 & 17.

84. op cit, recommendation 11.16, p223.

85. op cit, recommendations 10.1-10.48, pp145-205.

86. op cit, recommendations 12.1-12.4, pp224-233.

87. op cit, recommendations 8.1-8.9, pp109-126.

88. op cit, recommendations 9.1-9.8, pp127-144.

89. op cit, recommendations 11.1-11.17, pp206-223.

90. op cit, Chapter 5, pp60-74.

91. op cit, recommendations 5.1, p70.

92. op cit, recommendations 5.2 p70 & 5.3, p73.

93. op cit, recommendation 5.4, p73.

94. op cit, paragraphs 5.11 & 5.12 (p64 & 65).

95. Where an accredited State or Territory heritage regime (AR) is in operation, the Bill imposes a 'national interest' test upon: o the acceptance of an application for a long term protection order (LPO) (s 39(2)); o the making of an emergency protection order (EPO) (s 62(3))(c)); o the making of an interim protection order (IPO) (s 63(2))(b)(iii)); and o the making of an LPO (s 45). An accredited State and Territory heritage regime is one that complies with the minimum standards set out in s 26 of the Bill and is the subject of a declaration under s 25(1).

96. Commonwealth of Australia, Explanatory Memorandum: Aboriginal and Torres Strait Islander Heritage Protection Bill (No.2) 1998, cl 45, p15.

97. op cit, para 14.

98. Mr Warwick Robert Baird, Hansard, Senate, 19 February 1999, p56.

99. Evatt Report, op cit, para 6.19 & recommendation 6.3, pp83 & 84.

100. Hansard, Mr Warwick Robert Baird, Independent Legal Adviser, New South Wales Aboriginal land Council, Oral submission to Senate and Legal Constitutional Legislation Committee, Reference: Aboriginal and Torres Strait Islander Heritage Protection Bill 1998, Friday 19 February 1999, page 58.

101. Evatt Report, op cit, recommendation 11.13, p223.