Aboriginal Law Bulletin
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by J. F. Waters
The sunset clause of the Interim Protection Act takes effect in 1986. A new bill is supposedly being written-up. In this article, John F. Waters, Director of Heritage Administration for the Department of Aboriginal Affairs in Canberra, describes the present Act and how it has been used.
On 25 June 1984 the Aboriginal and Torres Straltislander Heritage (interim Protection) Act became law.
This Act was the first national legislation of its type passed by the Commonwealth Parliament since It was given the constitutional power to make laws for the Aboriginal people.
It was enacted to provide the Commonwealth Government with the legal machinery to protect areas and objects of particular significance to Aboriginals which are under threat of injury or desecration, and are not adequately protected under a law of a State or Territory. For the purposes of this legislation, a significant Aboriginal area, isdefined as an area of particular significance to Aboriginals in accordance with Aboriginal tradition, and may be an area of land in Australia or an area of Australian waters. An 'area' includes a site, but is not necessarily confined to a site.
A significant Aboriginal object is defined to mean an object of particular significance to Aboriginals in accordance with Aboriginal tradition, and includes Aboriginal human remains.
The Acto complements existing State and Territory laws and is intended to be used only as a last resort where those laws do not provide effective protection or where no equivalent law applies.
Since the Act was introduced the Minister has received eighteen applications for a declaration to protector preserve significant Aboriginal areas or objects from injury or desecration.
Although the Minister has not yet found it necessary to make a declaration in respect of significant Aboriginal areas, Mr Holding made a declaration on 21 June 1985 in respect of significant Aboriginal objects offered for sale by Sotheby's of Sydney. Under that declaration Sotheby's were prevented from displaying, selling or otherwise dealing with those objects for 4 weeks. Those items were later acquired by the New South Wales Aboriginal Land Council on behalf of itself and certain museums.
The low success rate of applications does not indicate a lack of resolve on the part of the Government to protect Aboriginal heritage but rather illustrates the effectiveness of the legislation in providing for the resolution of disputes through negotiation and the accommodation of conflicting interests.
It has never been the Commonwealth Government's intention to become the sole guardian of Aboriginal heritage and culture, but rather the legislation should be seen as providing an avenue of appeal to Aboriginal people from the jurisdiction of a State or a Territory to the Commonwealth to provide protection of significant areas and objects in jeopardy. Although to date only one declaration has been made, the interim legislation has meant that every application has received the Minister's consideration and where appropriate has been brought to the attention of the relevant State or Territory Minister. Generally the approach taken by the Minister has been to indicate that where the State (or Territory) legislation fell short in providing effective protection the use of the Commonwealth's legislation would be considered. It is submitted therefore that the existence of the interim legislation has been an incentive for the States and the Northern Territory to closely look at their legislation when specific heritage issues are brought to their attention.
The Act empowers the Minister to make a declaration to protect a specified Aboriginal area or object where he is satisfied that the area or object is significant and is under threat of injury or desecration. The Act also provides for a person designated by the Minister as an 'authorised officer' to have power to make emergency declarations for up to forty eight hours using similar criteria.
Prior to the making of a declaration the Minister is required to consult with the appropriate Minister in a State or Territory as to whether there is under a, law of that State or Territory, effective protection of the area, object or objects from the threat of injury or desecration.
Pursuant to Section 14a declaration made by the Minister is required to be published in the Gazette and a local newspaper, and as soon as possibletotake reasonable steps to notify in writing, persons likely to be substantially affected by the declaration. Declarations made by a Minister are also reviewable by the Parliament.
Pursuant to Section 26, the Federal Court is vested with jurisdiction to grant an injunction on application by the Minister, when it is satisfied that a provision of a declaration would be contravened by an action or a proposed action by a person. Further heavy penalties apply for a person if they are convicted forthe contravention of a declaration.
Another aspect that maybe involved in new legislation is the creation of a fund to assist in the purchase of significant Aboriginal objects put up for sale on the open market where the display and sale of these objects would offend Aboriginal people. That fund would be used in conjunction with resources available to museums and other institutions/authorities in order to avoid inflating prices of these objects, as far as practicable. The protection of Aboriginal objects should also be enhanced by new Commonwealth legislation recently introduced to the Parliament (the Protection of Movable Cultural Heritage Bill) to regulate the export of Australian cultural objects from this country. That would mean that internal and external controls will apply in the not too distant future to the sale of Aboriginal artefacts where that action is required. Notwithstanding that development however there still appears a need for the State and the Northern Territory to strengthen their legislation in respect of the display and sale of significant Aboriginal artefacts.
Applications made under the Act usually have political implications as State Governments are not always willing to recognise the supremacy of the Commonwealth in this field. However, in the administration of the legislation, a steam roller approach by the Commonwealth has never been contemplated. The Minister has interpreted the consultation requirements under s13 of the Act to mean real consultation which is not confined to a determination of protection available under State or Territory law but extends to considering the position of the State or Territory in a particular case.
The Minister in considering an application may take relevant issues into account other than the significance of the area or object, and the threat of injury or desecration posed, in forming a judgment as to whetherto make a declaration. The Act gives him a discretion whetherto exercise his powers. That enables him to balance the effect of damage to an area or object in a given case against other relevant factors such as public interest considerations. The Harding River Dam case in Western Australia where the Minister did not make a declaration to protect Aboriginal sites under threat is a good example of that approach.
It should be noted that the Harding River Dam had been under construction for about twelve months and was about 70% complete when the, application was made to protect sites in the area of the reservoir, catchment area and downstream works. The State Government had made an attempt to protect some sites in the general area but some could not be saved if the project then in the advanced stage was to go ahead. In consideration, completion of the dam meant an improved water supply for communities in the Pilbara region. Aftercareful consideration of all the relevant issues the Minister decided not to make a declaration.
State and Territory government agencies administering heritage protection legislation have not always welcomed the intrusion of Commonwealth bureaucrats into this field. That however has not prevented the growth of cooperative arrangements between those officials.
Although largely pre-occupied with local issues, generally speaking, State and Territory officials, except when under political direction, have favoured the promotion of more effective means of heritage protection on a national basis. In this regard it is apparent that most State and Territory officials would agree that some form of national control of trafficking in Aboriginal artefacts is desirable, if the trade in those objects across state borders is to be properly regulated.
The Act contains a 'sunset' provision for its expiry, two years after enactment. That occurs on 24 June 1986. The Government is now giving consideration to the form that replacement legislation might take given that it is committed to maintaining a legislative presence in this field.
Onewayof providing forongoing Commonwealth protection under consideration is the creation of a National Aboriginal Heritage Authority that would be responsible to the Minister but operating separately from the Department of Aboriginal Affairs. Under that arrangement, the Ministerwould have similar powers to protect significant Aboriginal areas and objects as provided for in the present Act. The Authority could also have other relevant functions such as the preservation or promotion of Aboriginal rock art.
Performance of that function could entail promotion of public awareness of rock art and co-ordination of measures to preserve specific rock art locations in danger of physical deterioration. Aboriginal rock art represents an integral part of Aboriginal heritage and there appears to be a pressing need for a national co-ordinated approach to place it in a proper perspective.
J. F. Waters is Director of Heritage Administration in the Dept of Aboriginal Affairs, Canberra
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1985/83.html