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Atkinson, Henry --- "Yorta Yorta Nation Aboriginal Corporation's Objections to the Cultural Heritage Bill" [2006] IndigLawB 14; (2006) 6(17) Indigenous Law Bulletin 18


Yorta Yorta Nation Aboriginal Corporation’s Objections to the Cultural Heritage Bill

by Henry Atkinson

For the Yorta Yorta peoples, the proposed Aboriginal Heritage Bill 2005 (Vic) (the ‘Bill’) seems to be a step back to a time where the traditional owners were denied the right to care for their country and their culture. It is a step back to the mission days; a step back to assimilation. What is contained within this Bill is not fully what traditional owners were asking for or consulted about; certainly not the Yorta Yorta. It seems to be taking away the rights of Indigenous peoples and the power to protect their cultural heritage.

Here we have in this proposed Bill a government body telling us what to do and how to do it... AGAIN. It is as though we cannot handle our own affairs yet we, the traditional owners of country, certainly know more about our traditional land and cultures than anyone else.

The current legislation does require some amendments. We did not have enough time amongst traditional owner communities to discuss the issues before the deadline of 19 December 2005. (The draft Bill was released for comment on 18 October 2005.) It appears that this Bill has not been fully researched and below I detail some areas of concern for the Yorta Yorta peoples.

Problematic Aspects of the Bill

Part 10 – Registered Aboriginal Parties

It is unclear as to who comprises these parties; are they traditional owners or those with historical ties? Traditional owners and those with historical links are two different identities. Section 134(c) of the Bill allows for application for registration as an Aboriginal party by ‘any... body representing Aboriginal people who have an interest in the Aboriginal cultural heritage of the area.’ This section of the Bill plays down the role of traditional owners and allows too much input from historical/contemporary Aboriginal groups.

Unilateral Ministerial Power?

The Bill appears to grant the Minister for Aboriginal Affairs the greatest power instead of the traditional owners. How much say will traditional owners have in matters?

Part 8 – Disputes

Under the Bill, disputes in relation to cultural heritage assessments, cultural heritage permits, protection declaration decisions and registered Aboriginal parties, will be dealt with by the Victorian Civil and Administrative Tribunal (‘VCAT’). Where does VCAT get its Indigenous cultural heritage knowledge from? Will VCAT be supplemented by traditional owners?

I feel that this proposed legislation will meet difficulties when there is more than one registered party within an area of traditional land. Who has the control over cultural heritage within that land? Who gives the right directions to ownership (or even destruction) of artefacts and ancestral remains? The Bill is not clear on these matters.

The Yorta Yorta peoples want to know why traditional owner organisations can’t be resourced to deal with these and other matters as outlined in the Bill, rather than setting up a whole new structure, as proposed. This Bill will divide communities even more than they are now.

This Bill takes away internationally recognised Indigenous human rights[1] for traditional owners to be able to look after, care for and carry on their culture, and to look after land.

It has taken Indigenous people within Victoria a very long time to get recognition for rights to protect our culture; I certainly would not want things to go backwards and therefore make it harder for those younger generations to uphold their rights.

When I first heard of the proposed Bill, in relation to ‘tightening up’ processes related to Indigenous cultural heritage, I was quite pleased, for at last something was moving in improving outcomes for Indigenous people of this country. Well I was sorely mistaken.

The Minister for Aboriginal Affairs, in a press release of 24 November 2005, said that the Bill streamlines existing cultural heritage laws and that any questioning of the fairness of the changes is mischievous and misleading. But on closer scrutiny, who is misleading whom?

We are proposing to provide clear mechanisms for local government and the community to meet its responsibilities in relation to protecting Aboriginal heritage.[2]

We already have mechanisms set in place protecting Indigenous culture from local government intervention, so what needs clearing?

We will align the existing Aboriginal heritage laws with the planning process... By providing greater clarity and certainty in the planning process, the new Bill will reduce delays and business cost.[3]

Yes, by eroding the Indigenous culture of the traditional owners and their say over their traditional land by having a council appointed by the Government (comprising Indigenous people who may come from another traditional area) would undermine the authority of traditional owner groups. This would thereby certainly be a plus from the perspective of development/planning concerns. Only traditional owners have the right to speak about their traditional lands and their culture. The process of the Minister appointing a council is undemocratic.

In addition developers and the community will have an appeals mechanism if they disagree with local Aboriginal community regarding specific development.

This Bill seems to focus on developers/planners being able to contest the say of traditional owners of land and culture. No one ought to have a say over land which is not theirs, never was and never will be. This ‘streamlining’ of the existing laws is nothing more than further eroding Indigenous traditions, culture and heritage – a process which was proposed after invasion and which obviously is still on the Government’s agenda.

Is it any wonder that the Minister states these improvements have been welcomed by the Property Council of Australia, the Urban Development Industry Association and civil contractors?[4]

The Minister continues with: ‘we recognise and respect Aboriginal culture as we respect non-Indigenous post settlement heritage’.[5] Oh, come now, do you really believe that 200 years of settlement makes for heritage and culture? Australia has no real heritage and culture which is NOT Indigenous. Non-Indigenous Australians have a collection of bits and pieces from colonial days and from around the world.

On behalf of the Indigenous people of Australia (as you can be sure that these changes may commence in Victoria but will eventually become law Australia-wide), I implore all fair-minded and clear-thinking Australians to oppose this Bill in any way they can. If enough people – and I am thinking about all those who marched across bridges in support of the Indigenous community in 2000 – send emails or the like, then the Government will have to take some notice and hopefully they will then consult over a decent time period with the traditional owners of country; the Indigenous people of Victoria.

My personal opinion is that Indigenous Victorians currently do not own their culture; it is being controlled by the Government in the same way as our traditional land, thus repeating the past control of everything my people say and do, including language and customs.

The only people who know about their traditional land are the traditional owners and, believe it or not, there are plenty of us left. We have not been assimilated nor died out for there to be no one with connections to our ancestors. And I might add, there never will be.

As a Yorta Yorta person, knowing that your land is lost, leaving you stripped of your inner beliefs and tearing at the very fabric of your being is devastating enough and now this Bill has the potential to even take away our identity. This must NOT happen to the Yorta Yorta or any other traditional owner groups in Victoria or the Commonwealth.

Henry Atkinson is a Wolithiga Elder and is spokesperson for the Yorta Yorta Nation Aboriginal Corporation Council of Elders.


[1] Convention Concerning Indigenous and Tribal Peoples in Independent Countries, International Labor Organisation Convention No 169, adopted 27 June 1989 (entered into force 5 September 1991).

[2] Gavin Jennings, ‘Cultural Heritage Bill to Streamline Existing Law’, (Press Release, 24 November 2005).

[3] Ibid.

[4] Ibid.

[5] Ibid.


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