Culvenor, Clare --- "Commonwealth Heritage Protection Legislation" [2000] IndigLawB 66; (2000) 5(3) Indigenous Law Bulletin 17

• Commonwealth Heritage Protection Legislation
• Concerns With The Proposed Legislation
• The Concept Of Protection Under The Bill As A Mechanism Of ‘Last Resort’
• Standards And Accreditation For States And Territories
• Participation By Indigenous People
• Last Minute Solutions – Amendments In The Senate

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Commonwealth Heritage Protection Legislation

By Clare Culvenor

The original Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (‘the Act’) was intended as an interim measure pending the introduction of national land rights and heritage legislation.^[1] Although the Act’s operation was deemed successful in a limited sense by ATSIC,^[2] the Hon Justice Elizabeth Evatt’s 1996 review^[3] found that it was practically unworkable,^[4] as illustrated by the Kumarangk (Hindmarsh Island)^[5] case.

In June 1998 the Howard government introduced a new heritage protection Bill into the House of Representatives. After substantial amendments, the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 (Cth) (‘the Bill’) was passed by the Senate in November 1999.^[6] The House of Representatives rejected several of the amendments, and returned a message to that effect to the Senate in early December 1999. The Bill remains listed on the summary of current Bills before Parliament.^[7] This overview examines the original Bill and key criticisms of it, and evaluates the Senate’s proposed legislation.

Concerns with the proposed legislation

In its original form, the Bill drew a mixed but largely critical reaction.^[8] Its three principal defects, as outlined by Elizabeth Evatt in her submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, were:

(i) that the requirement that an application for protection had to show that it was in the ‘national interest’ was incompatible with maintaining the Commonwealth procedure as a last resort mechanism;

(ii) that the Bill provided for the accreditation of State and Territory heritage protection regimes without ensuring that they met the minimum standards detailed in the Review of the Act; and

(iii) that there was no provision for Aboriginal people to exercise any control over the process, nor any provision for an Aboriginal Cultural Heritage Advisory Council as recommended in the Review.^[9]

The concept of protection under the Bill as a mechanism of ‘last resort’

Prior to the Senate amendments, the Bill proposed that heritage protection orders under the legislation^[10] would only be available as a ‘last resort’ mechanism for protection of areas in States and Territories which did not have alternative, Commonwealth-accredited legislation^[11] unless Commonwealth intervention could be shown to be in the national interest. Two issues arise in relation to this proposal.

The requirement for an element of ‘national interest’ in heritage protection processes drastically reduces the Commonwealth’s ability to protect sites.^[12] If indigenous people cannot gain protection for an area under State or Territory legislation (where that legislation is accredited), they would be required to show that protection is ‘in the national interest’ before the Commonwealth could intervene to protect the site,^[13] a standard that may often be difficult to meet. Secondly, the ‘national interest’ requirement subjects the importance of an area of indigenous heritage to an arbitrary assessment unrelated to the significance accorded to sites by the indigenous applicants.

Unless, as Evatt has argued, the proper protection of all Aboriginal heritage is in itself considered a matter of national interest, ^[14] this involves assessing cultural heritage value according to inappropriate, non-indigenous standards. Otherwise, the requirement for proof of ‘national interest’ seems to run counter to the whole notion of having specifically indigenous heritage protection.

Standards and accreditation for States and Territories

The removal of the Commonwealth as a provider of ‘last resort’ protection is of less concern if standards governing the States and Territories are comprehensive and offer full protection for indigenous heritage. The original Bill did propose a system of accreditation for States and Territories based on minimum standards[15] but they fell significantly short of those outlined by Evatt in her report.[16] Most States and Territories would be able to gain accreditation without reviewing or amending their current heritage protection regimes[17] and the standards to be met to obtain accreditation from the Commonwealth were lower than those to be met by the Commonwealth itself.^[18]

Participation by indigenous people

A further omission from the Bill was the failure to implement a statutory Indigenous Heritage Advisory Board to facilitate indigenous participation in the processes of protection. This Board, part of the Evatt Review recommendations, was reduced to a single, vaguely defined position of ‘Director of Indigenous Heritage’.

Last minute solutions – Amendments in the Senate

These concerns were, however, largely addressed by the amendments passed by the Senate - standards were raised for the States and Territories, and several problematic issues were rectified:

• the definition of ‘significant’ was amended to allow indigenous tradition to be taken into account when assessing the importance of an area,[19] (in accordance with Recommendation 8.1 of the Evatt report.);[20]
• the position of Director of Indigenous Heritage was replaced by a comprehensive Indigenous Heritage Agency,[21] in accordance with Chapter 11 of the Evatt report;[22]
• the definition of national interest was altered to: ‘including but not limited to Australia’s compliance with its obligations to protect indigenous heritage as a signatory to international agreements, conventions and covenants’.[23] (While this amendment broadens what is meant by ‘national interest’, the existence of the clause is still problematic.);
• Amendments 48 and 54 respectively concern the implementation of blanket protection and the need for State-based indigenous heritage agencies with a proportion of indigenous members;[24]
• Amendment 52 contained enhanced provisions to protect the confidentiality of culturally sensitive information, where disclosure would be contrary to indigenous tradition;[25] and
• Amendment 73 allowed the Bill to remain as a last resort protection mechanism in all cases, regardless of whether a State or Territory had been accredited,[26] in accordance with recommendations by both Evatt and ATSIC.[27]

Unfortunately, in the message sent to the Senate on 9 December 1999, the House of Representatives rejected all of these amendments.

The future of indigenous heritage protection in Australia is currently at a crossroads. The history of indigenous heritage protection reflects the uncertainty for indigenous people in this area. Over the past 16 years, indigenous heritage protection has been conceived and implemented by federal governments. First, as an integral part of national land rights legislation to hastily drafted interim act, and now as a broad and detailed regime whose implementation is to be shared between the Commonwealth and the States and Territories. It remains to be seen what implementation yields by way of realisation of this vision.

If passed in its original form, indigenous peoples’ options for protecting valued sites will be considerably more limited than they were under the old Commonwealth regime.^[28] However, if the Bill is passed with the amendments made by the Senate, the new Commonwealth laws would then comply with the majority of the recommendations in the 1996 Evatt report, ensuring increased protection for indigenous cultural heritage.

The current deadlock is disappointing (to say the least) in light of the promise and expectation that followed the release of the Evatt report in 1996. The protection of indigenous culture is imperative – not only to preserve and protect significant areas for indigenous members of our community, but also to enhance future indigenous cultural development through links with tradition and the past.

Clare Culvenor is a fourth year undergraduate student at the University of New South Wales and will complete her Combined Bachelor of Arts (with a major in Political Science) and Bachelor of Laws in 2001.

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^[1] Russell Goldflam, ‘Noble Salvage: Aboriginal Heritage Protection and the Evatt Review’ [1997] AboriginalLawB 2; (1997) 3(88) Aboriginal Law Bulletin 4; The Hon Clyde Holding M.P, ‘Second Reading Speech: Aboriginal and Torres Strait Islander Heritage Bill 1984’, Commonwealth, House of Representatives, Hansard, 9 May 1984, 2130.

^[2] Aboriginal and Torres Strait Islander Commission, The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 – Priority Concerns for Indigenous People: Discussion and Analysis (1998), at <http://www.atsic.gov.au/issues/heritage/bill1998/2.htm> .

^[3] The Hon Elizabeth Evatt AC, ‘Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984’ (1997) 2(3) Australian Indigenous Law Reporter 433. Note: this citation is a summary of the Review written by Evatt, outlining recommendations and basic policy goals. The citation of the full review is: The Hon Elizabeth Evatt AC, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (1996).

^[4] See generally, ‘Heritage Issue’ (1998) 4(16) ILB.

^[5] Chapman and Ors v Minister for Aboriginal and Torres Strait Islander Affairs and Ors (1995) 133 ALR 74.

^[6] See Johanna Sutherland, ‘Federal Heritage Protection Bill: Senate Upgrade Rebuffed’ (2000) 4(27) ILB 21.

^[7] Commonwealth Parliamentary Current Bills List, as at 1 December 2000.

^[8] The Hon Elizabeth Evatt AC, Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 (Cth): Submission to Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund (3 May 1998); Aboriginal and Torres Strait Islander Commission, Issues: Heritage, at <http://www.atsic.gov.au/issues/heritage/Default.asp> Senator Bob Brown ‘The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998: Second Reading Debate’ Commonwealth, Senate, Hansard (22 November 1998) 10331.

^[9] Evatt, ibid.

^[10] Senator Ian Campbell, ‘Second Reading Speech: Aboriginal and Torres Strait Islander Heritage Protection Bill 1998’, Commonwealth, Senate, Hansard (25 June 1998) 4046.

^[11] A State or Territory is accredited once the minimum standards set out in the Act have been met.

^[12] The Hon Elizabeth Evatt AC, The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 – Comment by Justice Elizabeth Evatt (24 April 1998), at <http://www.atsic.gov.au/issues/heritage/bill1998/5.htm> Aboriginal and Torres Strait Islander Commission, above n 2, 3; Aboriginal and Torres Strait Islander Commission, The Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 – Twelfth Report of the Joint Parliamentary Committee – The Bill, <http://www.atsic.gov.au/issues/heritage/bill1998/4.htm> .

^[13] Campbell, above n 9.

^[14] Evatt, above n 7.

^[15] See clauses 24 and 26.

^[16] Evatt, above n 3, 440.

^[17] Aboriginal and Torres Strait Islander Commission, above n 16.

^[18] Evatt, above n 7.

^[19] See Amendment no. 8 in the Schedule of Amendments made by the Senate to the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 (26 November 1999).

^[20] Evatt, above n 3, 442.

^[21] See Amendments Nos 13-38, above n 20.

^[22] Evatt, above n 7, 448-9.

^[23] See Amendment no 3, above n 20.

^[24] Ibid, see Amendments no’s 48 and 54.

^[25] Ibid, see Amendment no 52.

^[26] Ibid, see Amendment no 73.

^[27] Evatt, above n 11; Aboriginal and Torres Strait Islander Commission, above n 2, 3; Aboriginal and Torres Strait Islander Commission, above n 12.

^[28] Evatt, above n 12.