Aboriginal Law Bulletin
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by Neil Rees
Garth Nettheim recently wrote (see 25 AboriginalLB 8) about two pieces of legislation which had been brought into the Commonwealth Parliament by the former Minister for Aboriginal Affairs, the Hon Clyde Holding MP, at the request of the Victorian Government. That legislation - the Aboriginal Land (Lake Condah and Framlingham Forest) Act l987and the Aboriginal and Torres Strait Islander Heritage Protection Amendment Act 1987 - has now been passed by the Commonwealth Parliament and is in force.
Nettheim's article briefly mentioned the history of the legislation-especially the refusal of Victoria's Upper House to accept the Victorian bills-and it discussed the preamble. The Commonwealth legislation is interesting for it is an unusual example of cooperation between State and Federal Government, it is, in part, legally complex and most importantly, it should be of considerable benefit to Victorian Aborigines.
This Act combines, in amended form, the two Victorian Land Bills. The preamble to the Act which was quoted in full in Garth Nettheim's article, is noteworthy because it states that the Victorian Government acknowledges that the Kerrup-jmara and Kirrae Whurrong peoples were the traditional owners of the land being granted to them, that the traditional rights of ownership are deemed never to have been extinguished, that the land was taken by force without consideration as to compensation and without regard to Aboriginal customary law and that present day Aborigines are considered to be the inheritors in title from Aborigines who owned and used the land in the past. The Commonwealth, in the preamble, specifically disassociated itself front these matters acknowledged by the Victorian Government. The use may be made of the preabmle in litigation is an interestinglegal question. As Professor Pearce notes, “The recital of facts in a preamble does not mean that the recitals are conclusive evidence of those facts – they are prima facie evidence only... but a reference in the preamble to some matter will make evidence of that matter admissible in court.”[1]
The Act has its consitutional base in s.51(26) (the special laws for people of any race power) and s.51(31) (the acquisitions power) of the Commonwealth Consitution. The land in question, which was Victorian Crown land, is acquired by the Commonwealth and vested in the Kerrup-Jmara Elders Aboriginal Corporation and the Kirrae Whurrong Aboriginal Corporation. The form of title given to the land has been described as "inalienable, freehold title". The Aboriginal Corporations may transfer the land to other Aboriginal groups, but this cannot be done If there is an objection from any adult member of the Corporation or any member of the Committee of Elders. The land: may be leased, but if the lease is for a period of more than three ears and the lessee is someone other that the Crown or a Commonwealth or Victorian public authority and approval of the Minister for Aboriginal Affairs is required The Act contains a provision permitting the Minister for Aboriginal Affairs to delegate all of his power to the responsible Victorian Minister and this delegation has been made.
The Aboriginal Corporations are givven the power to make by-laws dealing with such matters as economic enterprises on the land, cultural activities, sacred sites, hunting and fishing and the entry of visitors onto the land. The by-laws may not be inconsistent with the Commonwealth or Vctorian law and may provide that it is an offence, punishable by fine to breach a by-law.
Minerals on the land remain vested in the Victorian Crown. The Act contains detailed and complex provisions dealing with mining operations. Exploration and mining operations may not take place without permissionof the Aboriginal Corporations, but pre-existing mining interests are not affected.
Any mining tenement granted by the Victorian Minister for Mines is of no effect until the Aboriginal Corporation grants permission to carry out the mining operation. Compensation may be paid to the Aboriginal Corporation but at the exploration stage those payments cannot exceed the sum payable for disturbance under the Victorian Mines Act 1958, Extractive Industries Act 1966 or Petroleum Act 1958; At the mining stage compensation payments may exceed those payable under these Acts.
If the Aboriginal Corporation refuses permission to carry out mining operations or grants permission subject to conditions which are rejected by the applicant the Minister must, at the :request of the applicant, seek to resolve the matter by, conciliation. If conciliation fails an arbitrator is to be appointed. The arbitrator, who has the power to override a decision by the Aboriginal Corporation to refuse permission for mining operations or grant permission subject to conditions which are rejected by the proposed miner, is required to consider matters such as the effect which the mining operationswould have on the preservation of lifestyle, culture and traditions of the traditional Aboriginal owners before making a decision. Even if an arbitrator grants permission to carry out mining operations those operations cannot proceed if they will interfer with a sacred site unless the Minister (who, under delegation, is the Victorian Minister responsible for Aboriginal Affairs) declares that he or she is satisfied that the sacred site has been appropriately protected.
This Act, which is in similar form to the Victorian Aboriginal Cultural Heritage Bill, amends the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, by adding a Part 9 Part IIA which applies only in Victoria. The Act establishes legal structures to enable the cultural heritage of the Aboriginal people of Victoria to be preserved and protected. It is constitutionally interesting for a number of reasons. First, there is a Commonwealth Act which applies to all of Australia yet the amendment inserts a new Part, applicable only in Victoria, which provides stronger protection for Aboriginal cultural heritage than the rest of the Act. In fact the Australia - wide part of the Act does not apply in Victoria unless the "Victoria only" Part cannot be used. It is difficult to imagine such an instance. Secondly, the Act has a "roll back" clause, designed to overcome the operation of s.109 of the Commonwealth Constitution, which seeks to preserve the operation of protective measures taken under a pre-existing Victorian law, the Archeological and Aboriginal Relics Preservation Act 1972.
The Aboriginal and Torres Strait Islander Heritage Protection Amendment Act 1987 provides for three forms of "declaration of preservation" to be made in order to protect Aboriginal cultural property. These are an emergency declaration of preservation, a' temporary declaration of preservation and a declaration of preservation. As the names indicate the main difference between them is the period of time for which they; operate. There are also differences in who may apply for them, how the application is made' and who may grant them. However all three declarations, of preservation have; the. same effect-they are orders a a that certain things must or must not be done in relation to Aboriginal cultural property. That property maybe an Aboriginal place, object or folklore either privately or-publicly owned„ Consequently the ability of : these declarations to protect Aboriginal cultural property in Victoria is significant. It is a criminal offence to breach a declaration of preservation.
The Act prescribes various pecuniary penalties of up to $50,000 in the case of a breach by a company, and/or terms of imprisonment, the maximum of which is 5 years, when the declaration relates to an Aboriginal place.
An emergency declaration may be made in relation to an Aboriginal place or an Aboriginal object by an inspector, the Minister or a Magistrate if there are reasonable grounds for believing that the place or object is under threat of injury or destruction and it could not properly be protected unless and emergency declaration was made. An emergency declaration will normally be in force for 30 days but the Minister may extend the declaration by a further 14 days. In most cases an emergency declaration will direct that no-one (or only named persons) may enter an area of land or have contact with a particular Aboriginal object. Anyone may apply to the Minister for an emergency declaration; only a local Aboriginal community may apply to a Magistrate for an emergency declaration and an inspector may make an emergency declaration without application by anyone. If a Magistrate makes an emergency declaration of preservation the local Aboriginal community must take all reasonable steps to notify people likely to be affected. Such steps would include erecting notices near the Aboriginal place or object: and placing advertisements in local newspapers.
Temporary declarations are like emergency declarations but differ' in that they may last longer (normally 60 days but up to 120 days at the Minister's discretion), and before a temporary declaration is made any person who is likely, to be affected by it (e,g. a landowner or the owner of an Aboriginal object) must be given an opportunity to be heard. Only the Minister may make a temporary declaration. The Minister may make a temporary declaration following advice from a local Aboriginal community or without advice from anyone. If the Minister makes a temporary declaration any person affected by it may ask the Minister to appoint an arbitrator to review his/her decision or if the Minister refuses to make a temporary declaration the local Aboriginal community may seek a review of the Minister's decision by an arbitrator. It is likely that arbitrators will be senior lawyers with experience in Aboriginal affairs. An arbitrator may overrule a decision of the Minister and the decision of an arbitrator is final.
Declarations of preservation are like temporary declarations except that they remain in force for an indeterminate period. However, it is possible for the Minister to vary or revoke a declaration of preservation on the application of a local Aboriginal community or on his/her own motion. Before applying to the Minister for a declaration of a preservation a local Aboriginal community must be satisfied that it is appropriate for a declaration to be made "having regard to the Importance of maintaining the relationship between Aboriginals and that place or object". As with temporary declarations any person likely to be affected by a declaration of preservatlon must be given an opportunity to be. heard and there' is a right of appeal to an arbitrator. A declaration of preservation will be a permanent order preventing or restricting interference with an Aboriginal place or object.
After consulting with a local Aboriginal community the Minister may appoint a person with knowledge and expertise in the identification and preservation of Aboriginal cultural property to be an inspector: inspectors have two major functions. First, they may make emergency declarations of **** (original print version was missing the rest of this sentence – B McD Jan 2005)
In cases where the owner of Aboriginal cultural property is willing to reach an agreement with a local Aboriginal community it may be unnecessary to seek a declaration of preservation. The Act provides for Aboriginal Cultural Heritage Agreements which may cover the preservation, maintenance, exhibition, sale or use of the property. If these agreements relate to land the local Aboriginal community must inform the Register of Titles of the agreement.
The Act provides that the Minister may compulsorily acquire any Aboriginal cultural property if the Minister is satisfied that the property is of such religious, historical or cultural significance that it is irreplaceable and no other arrangements can be made to ensure its preservation.
If property is compulsorily acquired it is to be held by the local Aboriginal community on trust for its members. Any person whose property is compulsorily acquired is entitled to receive fair and reasonable compensation from the Commonwealth.
If any person discovers what he/she reasonably believes to be Aboriginal skeletal remains that discovery must be reported to the Minister. When the Minister receives such a report he/she must consult with a local Aboriginal community in order to determine what should be done with the remains. When skeletal remains are returned to the Minister he/she must return the remains to a local Aboriginal community, deal with them as directed by a local Aboriginal community or transfer them to a prescribed authority if there is no appropriate local Aboriginal community. When a local Aboriginal community receives skeletal remains it must deal with them in accordance with Aboriginal tradition.
A local Aboriginal community may request the Minister to negotiate with a university, museum or other institution holding Aboriginal skeletal remains for the return of those remains to the community.
It is an offence to wilfully deface, damage, interfere with or do any act likely to endanger an Aboriginal object or place. The maximum penalty is a $10,000 fine or 5 years jail or both ($50,000 fine for a corporation). However, this offence does not apply to an Aborigine acting in accordance with Aboriginal tradition. Also a person may apply to a local Aboriginal community for permission to excavate any Aboriginal place or carry out scientific research on Aboriginal objects. A local Aboriginal community may grant or refuse consent for these activities.
Local Aboriginal communities are set out in the Schedule to the Act. They are Aboriginal groups incorporated under State or Commonwealth law. The local Aboriginal community in each area will have the primary responsibility for the administration of the Act. Local Aboriginal communities may apply for declarations of preservation, enter into Aboriginal Cultural Heritage Agreements, receive and look after Aboriginal cultural property which is compulsorily acquired, receive and look after skeletal remains, advise the Minister on the appointments of inspectors, appoint honorary keepers or wardens and grant or refuse consent for excavation and scientific research. The Regulations set out the parts of Victoria for which each local Aboriginal community is responsible.
preservation and secondly they may take emergency action to seize and preserve any Aboriginal objects which are under threat of destruction. An inspector may only exercise this second function when a Magistrate has issued a warrant to a police officer. The inspector may, in company with a police officer, enter any named premises and take possession of, or otherwise protect, any Aboriginal object which is under threat of destruction or injury. If the inspector takes possession of an object he/she must deliver them to a person nominated by the Minister. In many cases this person is likely to be someone in the local Aboriginal community. If an inspector takes possession of an object the object must be returned to the owner (normally within 60 days) unless it is compulsorily acquired or purchased for or given to a local Aboriginal community.
These two Acts are an extraordinary example of Commonwealth and State cooperation in Aboriginal affairs. They clearly demonstrate that when there is political will legal obstacles can be overcome and action can be taken quickly to provide benefit to Aboriginal committees. Perhaps they can stand as a precedent for further action by the Hawke Government.
Neil Rees was employed by the Victorian Government at the time this legislation was passed by the Commonwealth Parliament.
Any views expressed in this article are his own and not those of the Victorian Government.
[1] D. C. Pearce, Statutory Interpretation in Australia (2nd Ed., 1981) p. 52.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1987/58.html