Indigenous Law Bulletin
The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (‘the Act’) is an Act of last resort. The Commonwealth Minister can act to protect Aboriginal heritage where he or she considers that State or Territory laws do not provide adequate protection for the area or object under threat. If State or Territory laws provided effective protection, then there would be less need to have recourse to the Commonwealth Act.
The 1996 Review of the Commonwealth Act recommended that minimum standards be established for State and Territory laws. The State and Territory regimes are briefly considered in the light of those standards.
Ideally, State and Territory laws should provide an effective process for the protection of areas and objects significant to Aboriginal people when they are threatened by development. This process should include early consideration of heritage issues, effective consultation with Aboriginal people and genuine mediation or other processes aimed at avoiding injury to or desecration of sites.
There are, however, wide differences in the laws and procedures and in the level of protection provided to Aboriginal heritage under the various State and Territory legislative regimes. The objectives of the legislation vary across regimes, from those which focus on the protection of cultural heritage values of indigenous people themselves to those which emphasize a balance between these and the heritage values of the wider community. The most effective model in practice is that of the Northern Territory. Where State laws are ineffective, as in Queensland, Aboriginal people make far greater use of the Commonwealth Act.
In Victoria, Aboriginal heritage is protected mainly under Part IIA
of the Commonwealth Act, passed by the Commonwealth in 1987 at the request of the Victorian Government. Part IIA gives local Aboriginal communities an extensive role in the protection of heritage; the ministerial powers under Part IIA are delegated to the Victorian Minister.
The definitions of Aboriginal heritage vary from those which draw on indigenous heritage values to those which rely on anthropological, archaeological or scientific values. The Northern Territory, South Australia, Victoria (Part IIA), the Australian Capital Territory and the Commonwealth all protect areas and sites which are significant according to Aboriginal custom and tradition. Western Australia also gives limited recognition to custom and tradition. New South Wales, Queensland and Tasmanian laws have narrower definitions of heritage which focus on relics or do not give weight to Aboriginal cultural values. South Australia and the Australian Capital Territory are unique in recognising contemporary traditions which have evolved or developed since colonisation.
The minimum standard proposed by the Review was that State and Territory laws should be extended to protect objects of significance to Aboriginal people in accordance with their traditions, including traditions which have evolved from past traditions. It was also proposed that historic and archaeological sites should be included.
The level of protection available under particular legislation and the protection actually afforded in practice vary considerably. One type of protection regime is based on site registration combined with a development application process. In another model, automatic or blanket protection is provided for any areas or objects which fall within legislative definitions. Blanket protection means that all areas and sites which fall within the legal definition of heritage are automatically protected by sanctions which make it an offence to cause damage or desecration to the site or area, whether or not the site has been assessed or recorded. Under this kind of regime, there are usually also procedures for developers to make applications for permission to proceed with development in cases where there is a danger of damage to an area or site. Registration may be conclusive evidence that the site is an Aboriginal site (Victoria, Northern Territory, South Australia).
The Northern Territory, South Australia, Western Australia, the Australian Capital Territory and Victoria provide blanket protection for Aboriginal heritage, though it is important to bear in mind how broadly heritage is defined in each legislative regime. New South Wales, Queensland and Tasmania provide more limited protection because their definitions of sites are even narrower. Victoria, South Australia, New South Wales and Queensland include specific provision for emergency protection to respond to immediate threats.
Most States and Territories make it an offence to damage, destroy or interfere with Aboriginal sites or objects. Some legislative regimes protect relics, while others protect areas and objects which are significant to Aboriginal people. Penalties range from $500 for an individual to a maximum of $50,000 for a body corporate, but so far there have been few prosecutions. These laws are considered inadequate because they are difficult to enforce, because they do not provide Aboriginal people with adequate authority to enforce them, and because it is difficult to prove the necessary intention contained in the offences.
It is Aboriginal people themselves who should have the major responsibility for determining the significance of an area or object. A number of regimes establish bodies with minority or majority indigenous membership that serve various functions from consultation to actual assessments of significant areas and objects. The Northern Territory and Victoria have committees with Aboriginal membership established by law. South Australia and Western Australia require committees to be set up, but Aboriginal membership is not legally prescribed. In the Northern Territory and Victoria, the members are chosen by indigenous people; elsewhere they are appointed by the Minister. Apart from the Northern Territory Aboriginal Areas Protection Authority, few committees have the legislative independence or the resources to carry out their responsibilities comprehensively.
Queensland, New South Wales, Tasmania and the Australian Capital Territory have no legal provision for Aboriginal heritage bodies to be established, though in practice committees may be set up or there may be consultation with local Aboriginal groups. In most regimes, there is little statutory provision for indigenous management of areas and even less indigenous involvement in cultural heritage policy. Victoria has a detailed law on management, but the Northern Territory model appears to be more effective in practice. In other jurisdictions, Aboriginal wardens or heritage officers may play a role in the management of Aboriginal sites.
The Northern Territory has a comprehensive law which guarantees Aboriginal people access to sacred sites. In South Australia, the Minister may authorise access. The right to use sites for traditional purposes is maintained or recognised in some States such as Western Australia, South Australia, Queensland, and Tasmania, although these States have no procedures for legally enforcing access rights. Some pastoral leases, or legislation governing pastoral leases, provide for access to sites, as for example the Pastoral Land Management and Conservation Act 1989 (SA), s43. Victorian legislation permits access to sites which are protected by a declaration for the purpose of placing signs marking it as a site. Other States and Territories make no specific provision for Aboriginal access to sites.
Ideally, each heritage protection regime would require that steps be taken early in the development process to identify Aboriginal heritage interests, and to organise direct consultation and negotiation with Aboriginal people when sites are or may be threatened by a planning or development application. In particular, the process should ensure that proper weight is given to Aboriginal cultural heritage, and that any decision to withdraw protection from heritage or to proceed with development is made only on the basis of compelling reasons. In the Northern Territory, South Australia, Western Australia and Victoria, a referral to the Aboriginal heritage body is a recognised step in the development approval process. These bodies then determine or recommend whether the site is of significance to Aboriginal people. In other States, consultation with Aboriginal people may be necessary as part of the environmental assessment process, or it may occur de facto; but in all cases Aboriginal people do not have any power to determine conclusively the issue of significance.
The power to determine land use, and to permit development which may damage a heritage site, is exercised by the executive, in practice by the Minister or, in New South Wales, the Director-General of the National Parks and Wildlife Service. Few regimes provide for merits review of protection or development approval decisions and, given the scope of ministerial discretion, there have been few judicial review cases. In some cases, appeal mechanisms are available only to land owners and developers.
There are variations in the extent to which confidential information is protected. The Northern Territory and South Australian legislation have provisions giving general legal protection for information held by the registering authority which is considered confidential in accordance with Aboriginal custom. For example, in South Australia it is an offence under s35(1) to divulge, in contravention of Aboriginal tradition and without authority, information about an Aboriginal site, object or remains or about Aboriginal tradition. Other States and Territories place restrictions on access to the register of sites in some situations. This is the case in the Australian Capital Territory, Tasmania (in practice), Victoria and Western Australia (in practice). Queensland protects only secret or sacred information given during authorised survey or research work.
In most cases, restrictions are ultimately balanced against the need to promulgate information about site location, etc. Similarly, any restrictions in an application-based system must be balanced against the requirements of procedural fairness. There are very few cases where traditional owners may be able to prevent disclosure by claiming public interest immunity or seek equitable remedies for breach of confidence.
Procedures in some States and Territories encourage work area clearance rather than site identification. This helps to protect confidential information.
Provision is made in Northern Territory, Victorian and South Australian legislation for agreements concerning the protection of heritage. The Victorian provisions (ss37A, 37B) have never been used, but there has been at least one agreement in South Australia. Heritage agreements may be made between the Minister and the owner of the land on which an Aboriginal site or object exists. Under s37A, any traditional owners or their representatives must be given an opportunity to become parties to the agreement. Such an agreement attaches to the land and is binding on the current owner and occupier. Heritage agreements may form part of a Regional Land Rights Agreement.
There are great differences in the level of legal protection provided by State and Territory laws to significant areas and objects and to culturally sensitive information. Few regimes give indigenous people control over assessments or any real involvement in protection or policy development processes, and decision makers have a wide discretion to permit damage or destruction of significant sites. The result is that protection decisions depend to a great extent on political considerations.
In some regimes, flaws in the legislation have been ameliorated by the practices and procedures adopted by heritage protection agencies. While there may be no statutory consultation provisions, in practice there is generally a degree of informal consultation with indigenous communities over assessments and protection decisions. There are likewise informal mechanisms for agreements and work area clearance programs and informal connections between the heritage, planning and environmental processes. While these factors are positive in themselves, they will rarely provide a satisfactory substitute for adequate legislation.
Gaps in the various heritage protection regimes and the failure to provide adequate protection has resulted in a disproportionate reliance on the Commonwealth Act as the primary source of Aboriginal heritage protection. While the Commonwealth has a national responsibility to protect indigenous cultural heritage, it is the States and Territories which must provide effective primary protection. To ensure uniform best practice within all heritage protection regimes, it is essential that minimum standards for State and Territory laws be established.
The principal standards which need to be established are:
Dr Elizabeth Evatt AC is a member of the UN Human Rights Committee, and is the author of the Review of the Aboriginal and Torres Strait Islander Heritage Protection Act, 1984.
 See Evatt, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, 1996, chapter 6 and Appendix VIII: ‘Overview and Summary of State and Territory Laws’.
 Numbers refer to sections in the Comparative Table of Aboriginal Heritage Protection Legislation.