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Spotlight on cultural heritage law reform following Aboriginal heritage destruction at Juukan Gorge

08 November 2021

#Native Title & Indigenous Cultural Heritage

Published by:

Nicola Nearhos

Spotlight on cultural heritage law reform following Aboriginal heritage destruction at Juukan Gorge

The final report into the destruction of culturally significant caves at Juukan Gorge (Report) has been released by the Commonwealth Parliament’s Joint Standing Committee on Northern Australia (Committee). The Committee considered the events leading to the destruction of the caves and examined the existing Commonwealth and State statutory framework to protect Indigenous cultural heritage.  

The protection of Indigenous cultural heritage is currently regulated under the Commonwealth’s Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIP Act) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). In addition, each State has also separately enacted its own cultural heritage legislation. To date, proponents have usually focused on addressing the cultural heritage protection requirements of the relevant State legislation.

In the Report, the Committee concluded that the “States have failed” by prioritising development over heritage protection and calls for an overarching Commonwealth legislative framework to be developed.

Recommendations

The Report includes eight key recommendations to the Commonwealth Government:

1. legislate to make the Minister for Indigenous Australians responsible for all Aboriginal and Torres Strait Islander cultural heritage matters in Australia. As an urgent interim measure, amend the ATSIP Act and EPBC Act to prohibit the inclusion of clauses in cultural heritage agreements, which prevent Traditional Owners from seeking protection under Commonwealth legislation

2. ratify the international Convention for the Safeguarding of the Intangible Cultural Heritage 2003.  The principles in the convention should inform the new legislative regime

3. legislate a new framework for cultural heritage protection at the national level. This framework should:

  • be developed through a process of co-design with Aboriginal and Torres Strait Islander peoples
  • detail the minimum standards for State and Territory heritage protections consistent with relevant international law
  • enable Traditional Owners to enforce Commonwealth protections through civil action.

4. review the Native Title Act 1993 (Cth) (NT Act) to address ‘inequalities’ in the negotiating position of Aboriginal and Torres Strait Islander peoples in the context of the future act regime, “with the goal of levelling the playing field in negotiations”

5. endorse and commit to implementing the recommendations of the Dhawura Ngilan (Remembering Country): A Vision for Aboriginal and Torres Strait Islander Heritage in Australia.[1]

6. develop a model for cultural heritage ‘truth telling’ that can be followed by all Australians – individuals, governments and companies – as part of any process to engage with Aboriginal and Torres Strait Islander peoples and their cultural heritage

7. establish an independent fund to administer funding for Prescribed Body Corporates (PBCs) under the NT Act. Revenue for the fund should be sourced from all levels of government and proponents. As part of funding PBCs, be required to demonstrate transparency and accountability in their decision-making processes with respect to their local community

8. increase the transparency and accountability requirements on PBCs and Native Title Representative Bodies under the NT Act. The conclusion that these entities need to demonstrate adequate consultation with, and consideration of local community views before agreeing to the destruction or alteration of any cultural heritage sites, was a consequence of the submissions received by the Committee.

Next steps

The Committee’s recommendations are far-reaching but depend on the Commonwealth’s implementation. The Report was tabled in Parliament on 18 October 2021, and the Commonwealth Government must respond to committee reports within six months of their presentation.

The recommendations about the capacity and transparency of the PBC that often negotiate on behalf of a local traditional community are similar to those identified in the comprehensive review of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), which was published on 30 October 2021. If some of the recommendations in this separate review are implemented, it may address some of the Committee’s PBC recommendations. 

The key recommendation to shift the responsibility for cultural heritage protection from the State level to an overarching Commonwealth level is a significant departure from the current regime. This shift, if adopted, is anticipated to take time to develop both at an inter-governmental level and through the recommended Indigenous engagement.

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Authors: Jenny Humphris, Deanna Cartledge & Nicola Nearhos

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Nicola Nearhos

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