Results

Norton Rose Fulbright LLP

10/24/2021 | News release | Distributed by Public on 10/24/2021 05:28

A Way Forward, Juukan Gorge Final Report

'Girawaa' © 2020 Jordan Ardler. We are grateful for Jordan's permission to use this artwork. Please respect the story of Girawaa it depicts and the artist's rights, and do not use or reproduce it.


This article was written by Gavin Scott, Leanne Collingburn, Rosie Evans and Trilby Donald with support of Norton Rose Fulbright's pro bono practice and RAPWG.

"It is time for the legislative frameworks to catch up to the nation that now understands its Aboriginal and Torres Strait Islander heritage in a way that it perhaps never has before. It is time to get rid of the multiple, complex and confusing legislative regimes referencing Aboriginal and Torres Strait Island heritage - particularly those that cover this heritage as part of the environment, harking back to a time when, offensively, Aboriginal and Torres Strait Islander people were classified as 'flora and fauna'. It is time to recognise and protect the Aboriginal and Torres Strait Islander past, present and future cultural heritage as a unique and valuable part of our nation."1

The Joint Standing Committee on Northern Australia (the Committee), released its Final Report into the destruction of Indigenous heritage sites at Juukan Gorge (the Report) on 18 October 2021. Our legal update and analysis below identifies the key recommendations and some of the key findings.

Content

3 Key Findings & 8 Recommendations

The Report makes the following 3 key findings and 8 recommendations:

3 key findings 8 Recommendations2

National framework:The Australian Parliament should legislate for an overarching Commonwealth legislative framework based on the protection of Heritage, rather than its destruction, and in-line with the principles set out in section 7 of the Report. State and territory legislation should also be required to meet these principles.

1. Minister for Indigenous Affairs to be responsible for all Aboriginal and Torres Straits Islander cultural heritage3 matters

2. Australian Government ratify Convention for Safeguarding of the Intangible Cultural Heritage 2003
3. New national framework for cultural heritage protection
4. Review of Native Title Act 1994 (Cth) to address Future Act negotiation inequalities for Aboriginal and Torres Strait Islander peoples

Heritage standards: The Commonwealth, state and territory governments should endorse a set of standards that set best practice in the management of Heritage sites and objects and the development of cultural heritage management plans.

5. Australian Government endorse & commit to Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia
6. Australian Government develop cultural heritage truth telling model (for all Australians) for engagement with Aboriginal and Torres Strait Islander peoples and their cultural heritage

Economic benefits: The economic benefits of protecting and celebrating Heritage sites should be promoted (Recommendations 7 and 8).

7. Australian Government establish independent fund for Prescribed Body Corporates (PBCs) and Native Title Representative Bodies (NTRBs)
8. Australian Government increase transparency for PBCs & NTRBs

About the Report

The inquiry, the subject of the Report, is a response to the destruction of the 46,000+ year old Juukan Gorge rock shelters in the Pilbara region of Western Australia on 24 May 2020. The inquiry centred on the immeasurable cultural and spiritual loss, as well as profound grief for the Puutu Kunti Kurrama and Pinikura peoples (PKKP) and highlighted, among other things, the inadequate protection afforded by the Western Australian Aboriginal Heritage Act 1972 (AHA)for traditional owner groups.

The Committee's terms of reference for the Report focused not only on the events of and leading up to the destruction of Juukan Gorge, but also included an inquiry into the interaction of state indigenous heritage regulations with Commonwealth laws, the effectiveness and adequacy of state and federal Heritage laws, how Heritage laws might be improved to guarantee protection of culturally and historically significant sites, and opportunities to improve Heritage protection through the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act). The Report primarily addresses these last terms of reference, with the focus of the Interim Report on Juukan Gorge more specifically.

Despite the COVID pandemic preventing much on-country consultation, the inquiry held 23 public hearings, and received 175 submissions, 64 supplementary submissions and 41 exhibits. Submissions were received from a broad range of key stakeholders including individuals, Indigenous groups (including Land Councils and Aboriginal Corporations), government departments, the National Native Title Tribunal, Reconciliation Australia, mining and energy companies, law firms, law societies, law councils, and law centres and academics.

The Committee described the inquiry as a "journey of enlightenment" and noted the exceptional privilege we have as a nation to have the continuous cultural knowledge of Aboriginal and Torres Strait Islander peoples and their living understanding of sacred sites of such historical significance.

The Committee noted, and we echo, that the loss for the PKKP peoples is a loss for our nation, and the world, as a whole.

Our Heritage Laws

Sadly the inquiry found the experiences of the PKKP peoples were not unique, with numerous case studies revealing the loss of Heritage sites through exploitation of inadequate state and Commonwealth legislation.

The Committee found state and territory legislation governing Heritage across Australia is inadequate. In some instances, this is due to the legislation favouring landholder rights and economic benefits over Aboriginal and Torres Strait Islander voices, in others it is because the legislation is unclear and makes Heritage protection very difficult.

For Western Australia, the Committee found the AHA to be ineffective at protecting Heritage from economic development to the point of facilitating the destruction of Heritage sites. Consideration of the recent Aboriginal Cultural Heritage Bill 2020 (WA) (ACHB) by the Committee identified concerns of many Aboriginal people and other key stakeholders about the Bill's failure to recognise Aboriginal peoples as the primary decision makers of their own Heritage. The Report recommends further changes to the ACHB to address these concerns, including by drawing on other jurisdictions' approaches and implementing national Heritage protection standards.

Victoria's Aboriginal Heritage Act 2006 was considered best practice with a broad definition of Heritage, cultural rights enshrined in the Charter of Human Rights, the creation of Registered Aboriginal Parties (RAPs) to determine Heritage matters and the establishment of a traditional owner Heritage council. However, submissions to the Committee noted current avenues under the Victorian Act don't allow for all Aboriginal voices to heard, as the RAPs are but a small minority of the Aboriginal population in Victoria.

South Australia similarly has an all-Aboriginal Heritage Committee to advise government generally on Heritage, as well as Recognised Aboriginal Representative Bodies for specific sites and objects under the Aboriginal Heritage Act 1988. However, Ministerial discretion to grant rights to outside organisations to undertake work on the land remains.

The Committee kept commentary on the Australia Capital Territory's Heritage Act 2004 short, noting the Heritage Council rather than the Minister wields decision-making power, but pointed out the Council only needs to have one Aboriginal member.

In the Northern Territory, the Committee found the Heritage Act 2011 offers protection automatically to Heritage, but consultations are not mandatory if a company seeks to undertake work. The Aboriginal Land Rights Act 1976 however was considered by the Committee to be one of the best in the country due to recognition of the Aboriginal system of land ownership and providing Aboriginal peoples limited rights to withhold consent to mine on their lands. Together with the Native Title Act, the Central Land Council is empowered to implement strict rules for activities in the region for the protection of Heritage.

New South Wales is the only jurisdiction without specific Heritage legislation, instead relying on the National Parks and Wildlife Act 1974 governing flora and fauna, which has long been considered offensive to some given the implication that Aboriginal peoples are only part of the environment.

While Queensland has Cultural Heritage Acts for both Aboriginal and Torres Strait Islander peoples and recognises cultural rights in the Human Rights Act 2019, the Committee pointed out a number of concerns. For example, while Cultural Heritage Management Plans must be negotiated for projects to proceed, in some instances Aboriginal parties are disadvantaged in these negotiations due to lack of experience. Where there is no clear Aboriginal ownership of the land, the last claimant will be the negotiator, which can highly problematic given the frequency of competing claims over an area.

The Committee only briefly touched on Tasmania's Aboriginal Heritage Act 1975 as it is currently under review, but flagged Aboriginal people are not acknowledged as owners of their own Heritage in the Act's current form.

Overall, the Committee found legislation which allowed strong Aboriginal representation in decision-making was most likely to be accepted by traditional owners, and legislation that doesn't actively include traditional owners far less so.

The Committee found the Commonwealth legislative framework to have "serious deficiencies" in protecting Heritage. This Commonwealth framework seeks to protect Heritage sites on Commonwealth-controlled lands and provides remedies for seeking an injunction against state-authorised destruction.

The table below summarises the Commonwealth legislation comprising this framework and the Committee's findings on the efficacy of each instrument.

Instrument

Committee Finding

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act)

The ATSIHP Act is designed as a system of protection 'by application' and acts as legislation of last resort. It does not create protection without application and Ministerial action can only occur after an application has been received. It is very limited as a means for protecting Heritage as a holistic concept and requires the area to be declared a place of 'significance'. The time-lag for long-term protective declarations render the remedy useless where the Heritage may already have been damaged.

No successful applications for protection were made between 2010-2016 and more recent data was not made available. The Committee noted however that there has been an uptick in applications for declarations under the ATSIHP Act since 2020. The Committee highlighted that the increase in ATSIHP applications - being a last resort instrument - reveals that Ministerial decisions are not effectively protecting cultural heritage.

Environment Protection and Biodiversity Conservation Act 1999(EPBC Act)

The EPBC Act is a central piece of legislation guiding the protection of Indigenous and non-Indigenous cultural heritage overseen by the Commonwealth Environment Minister. Its ambit includes the world and national heritage registers, however very few Heritage sites are included on these lists as a result of the complex listing process, rendering the EPBC Act ineffective in protecting Indigenous cultural heritage in that way. The Committee also criticised the underlying understanding of Heritage contained within the EPBC Act, suggesting it required explicit consideration by Australian policymakers.

The Committee's findings on the EPBC Act were condemning - it found that the EPBC Act "does not, and did not" protect Heritage destruction like that at Juukan Gorge; succinctly summarised as a "flawed piece of legislation". It found that it was the failure of this Act, combined with the ATSIHP Act gaps, that was leaving Heritage "vulnerable to desecration at a national level".

Native Title Act 1993(NTA) The Committee outlined that the NTA is limited to review and determination of native title claims, and does not inherently protect Heritage in an enforceable way. Native title rights are defined in accordance with the traditional laws and customs of the Aboriginal and Torres Strait islander group to whom they belong - not limited in scope by legislation - and including for example, the right to visit and protect sites of significance. However, the NTA would not, for example, have been able to prevent the Juukan Gorge destruction, despite the fact the PKKP are recognised as native title holders for that area, because other land interests are usually given primacy over native title. The Committee echoed its concern expressed in relation to other protective mechanisms as to the power imbalance between native title holders and project proponents even when utilising the agreement provisions under the NTA for cultural heritage protection.
Protection of Movable Cultural Heritage Act 1986(PMCH Act) The PMCH Act implements the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 and is designed to assess and protect cultural objects of significance to Australia. Significance is determined by examination of an object found to have criteria which are of national importance and therefore worthy of protection. The Committee described the PMCH as holding strong mechanisms for protecting cultural heritage at a Commonwealth level but that it is not seen as an avenue for Heritage protection. The Committee did not elaborate as to how this might be used.
Underwater Cultural Heritage Act 2018(UCH Act) The Committee found that the UCH Act, which protects all underwater cultural heritage (and implements its namesake UNESCO Convention), extends to objects of Aboriginal and Torres Strait islander Cultural Heritage. However, there is a discrepancy between treatment of non-Indigenous objects (such as shipwrecks) which are granted automatic protection and Indigenous cultural heritage objects which require a Ministerial decision that the cultural material is of heritage significance.
Aboriginal Land Rights Act 1976(ALRA) Discussed above in the review of State and Territory legislation - Northern Territory

Guidance from International conventions and declarations

The Committee recommended that Australian law and policy-makers should be guided by the following five key conventions and declarations in order to better protect and preserve Heritage:

  1. United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) - a critical document articulating Indigenous peoples' rights to set and pursue their own priorities for development, and to maintain and control their cultural heritage. Australia endorsed UNDRIP in 2009 (after voting against its adoption when it was finally made in 2007) but has not formally adopted it into law. Whilst UNDRIP is not a treaty and therefore does not create binding obligations, the Committee found that the minimum standards it establishes - particularly the golden thread of free, prior and informed consent - should be enshrined within Australian Indigenous cultural heritage legislation and practices. The Committee found that most, if not all, cultural heritage legislation fails to adhere to this critical principle, particularly in relation to decision-making power.
  2. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (unesco.org) (1970) - see PMCH Act above
  3. Convention Concerning the Protection of the World Cultural and Natural Heritage (1972) - reflected in the ATSIHP Act above.
  4. The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance (1979)
  5. UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (2003) - importantly, Australia is one of very few member states not party to this Convention which recognises 'intangible cultural heritage as a mainspring of cultural diversity'. Whilst this may not have prevented the Juukan Gorge destruction, the Committee found that Australia needed to ratify this convention to signal its commitment to preserving Aboriginal and Torrs Strait Islander culture, including incorporating recognition of intangible Indigenous heritage in Australian legislative frameworks.

The way forward

Some of these findings, recommendations and reforms are obvious and deserving of immediate action. In our view, a number of the suggested reforms will be challenging for policy-makers and require a large shift in consideration of how Heritage issues have been addressed to date.

We have evolved as a nation and indeed a global community, where we can and should expect more from our law and policy-makers to protect and preserve Australia's collective Heritage.

The Committee has commended traditional owner groups for their engagement with the inquiry, in particular the PKKP peoples, despite their hurt and loss, and has also acknowledged their strength and resilience.

In the face of such loss and such strength, we owe it to the PKKP peoples and all Aboriginal and Torres Strait Islander peoples to give these findings and recommendations serious thought, discussion, consideration and action.

Schedule 1

Recommendation 1

Minister for Indigenous Affairs to be responsible for all Aboriginal and Torres Straits Islander cultural heritage4 matters

As a matter of urgency, the Australian Parliament amend the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and the Environmental Protection and Biodiversity Conservation Act 1999 to make this change (presently the Minister for Environment is responsible for these matters).

In the interim, the Australian Government should prohibit clauses in agreements that prevent traditional owners from seeking protection through Commonwealth (Cth) Legislation.

Administrative responsibility for heritage matters to be transferred to the portfolios reporting to the Minister for Indigenous Australians.

Recommendation 2

Australian Government ratify Convention for Safeguarding of the Intangible Cultural Heritage 2003

Recommendation 3
New national framework for cultural heritage protection

The new legislation should:

  • be co-designed with Aboriginal and Torres Strait Islander peoples
  • set (co-designed) minimum standards for state and territory heritage protections consistent with international law

The minimum standards should:

  • define cultural heritage recognising tangible and intangible heritage
  • include a (culturally appropriate and protective) mapping process for existing and destroyed heritage
  • include clear processes for identifying the appropriate people to speak for heritage
  • include decision making processes with traditional owners (TOs) and native title holders to have primary decision-making power
  • require site surveys, involving TOs, at the beginning of a decision making process
  • give TOs the ability to withhold consent to the destruction of heritage
  • cultural heritage management plan negotiation processes to reflect free, prior and informed consent (FPIC)
  • include mechanisms for TOs to review or appeal decisions
  • include adequate compliance, enforcement and transparency mechanisms and adequate penalties for destructive activities (including culturally appropriate remedy to TOs)
  • provide for adequate buffer zones around heritage sites
  • a right of timely access to protected sites for Aboriginal and Torres Strait Islander peoples
  • include a process for reconsideration of decisions with new information
The Cth should retain the ability to extend protections and/or override decisions made under inadequate state or territory protections and TOs should be able to enforce Cth protections through civil action.

Legislation should prohibit the use of clauses in agreements that prevent TOs from seeking protection through Cth legislation.

Recommendation 4

Review of Native Title Act 1994 (Cth) to address Future Act negotiation inequalities for Aboriginal and Torres Strait Islander peoples

The review should:

  • address the future act regime and other relevant parts of the Act including s31 (right to negotiate), s66B (replacement of the applicant) and Part 6 (the operation of the NNTT)
  • develop FPIC standards for negotiation agreements
  • prohibit "gag" clauses and clauses restricting access to Cth heritage protections make explicit the authority of PBCs and Rep bodies in relation to heritage
Recommendation 5

Australian Government endorse & commit to Dhawura Ngilan: A Vision for Aboriginal and Torres Strait Islander Heritage in Australia

Recommendation 6

Australian Government develop cultural heritage truth telling model (for all Australians) for engagement with Aboriginal and Torres Strait Islander peoples and their cultural heritage

Recommendation 7

Australian Government establish independent fund for PBCs and NTRBs

Revenue for this fund should come from all Australian governments and proponents negotiating with PBCs.

Increased funding for PBCs combined with greater transparency and accountability with local communities.

The Committee also notes the recent practice of mining companies publicly reporting outcomes of reviews of currently-held section 18 permits and results of reviews of agreements with TOs. The Committee considers this appropriate provided both companies and TOs agree to the release of this information.

Recommendation 8

Australian Government increase transparency for PBCs & NTRBs

To require that they demonstrate adequate consultation with, and consideration of, local community views prior to agreeing to the destruction/ alteration of any heritage sites.

Footnotes

1Paragraph 1.10 of the Report.
2 See Schedule 1 for more detail.
3 Herein "Heritage".
4 Herein "Heritage".