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Aboriginal Law Bulletin

Aboriginal Law Bulletin (ALB)
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Holding, Clyde --- "From the 'Boss': Letter to the AboriginalLB Editor re Swan Valley Fringedwellers" [1986] AboriginalLawB 40; (1986) 1(20) Aboriginal Law Bulletin 11


From the ‘Boss’:

Letter to the AboriginalLB Editor re Swan Valley Fringedwellers

The Editor,

The letter from the Fringedwellers of the Swan Valley ( [1986] AboriginalLB 15; 1(19)pg5) contains a number of misconceptions about the operation of the Commonwealth law in relation to the protection of Aboriginal areas.

Readers of this Bulletin will be aware that the Commonwealth Government, under the Constitution, is not able, despite the 1967 referendum, to pass laws to support religious beliefs. Accordingly, recognition by the law of Aboriginal beliefs and traditional practice, such as has been described by your correspondent as being the real purpose of the legislation, must be subject to qualification when the Government is asked to protect places, areas orobjects which are considered by Aboriginals to be sacred.

It is the responsibility of State and Territory Governments to identify, record and research areas which may have importance for Aboriginal culture. The tasks of managing and protecting such areas have also been given to these Governments. Because of the very large number of Aboriginal sites associated with Aboriginal occupation of this continent over 40,000 years and with creation mythology it has been recognised by the community that not all sites or areas can be retained intact. Decisions taken by these Governments as to which areas are to be protected tend largely to be based on the information which may be needed to understand the past (archaeological sites) and on maintaining traditional custodianship (for example in the Northern Territory).

The Commonwealth law provides Aboriginal and Islander people with a right to appeal against decisions taken by State or Territory Governments. The law is a reserve power and gives the Commonwealth the means to bring affected parties together, to conciliate, mediate and negotiate in order to remove or resolve a threat of injury or desecration to a significant Aboriginal area or object.

A declaration is used onlywhere mediation fails. In fact the majority of applications have been resolved through action taken by parties to remove or mitigate injury. When investigations were made it was found in some instances that anticipated damage to a site or area would not take place. The Act has been used to protector preserve places and areas in the main by requiring State or Territory Governments to take appropriate action, often in conjunction with private interests such as miners and land developers.

To suggest that the Act is deficient when a declaration has not been made is to totally misunderstand the way the Act operated.

The Act has encouraged State and Territory Governments to reconsider how decisions are taken to protect and manage Aboriginal sites. It also has meant that Aboriginal communities have had to face up to the need to explain to the Government and the community the ways in which the place is integral to their cultural life and identity.

These are very positive outcomes which can be of substantial long term benefit. The Australian community in this legislation has endorsed the need to recognise a living and vital Aboriginal culture.

Clyde Holding

Minister for Aboriginal Affairs

Canberra


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