Protecting our unique Aboriginal and Torres Strait Islander heritage

Senate inquiry into adequacy of State and Federal cultural heritage laws

Commentary on the adequacy of one State’s cultural heritage laws, Western Australia, sparked an inquiry by the Joint Standing Committee on Northern Australia in the Federal Senate (the Standing Committee) into the operation of, and approvals granted under, the Aboriginal Heritage Act 1972 (WA) (WA Act). It is reported that of the 907 section 18 applications since 2010, only three have been rejected.¹ This inquiry takes place at the same time as the Western Australian Government’s effort to reform the Aboriginal Heritage Act 1972 (WA) (WA Act). A draft bill is expected to be released shortly. In 2018 Mr Ben Wyatt, Minister for Aboriginal Heritage in Western Australia, released a consultation paper and acknowledged that the WA Act, which has remained largely unchanged for 45 years, did not “meet the contemporary needs of Aboriginal people, government or industry and [did] little to protect our unique heritage”.

However, the legislative background is not unique to WA. The Standing Committee will also inquire into the effectiveness and adequacy of state and Federal laws in each Australian jurisdiction, and how these laws might be improved to guarantee the protection of culturally and historically significant sites. Many states have legislation originally enacted in the 1970s and 1980s, which confers the sole authority to determine applications to harm Indigenous heritage upon Ministers,² or government entities. As a result, for many years there have been concerns with the approvals process in NSW. Research indicates that between 2012 and 2017, only 1 of the 704 applications for permits to harm Aboriginal cultural heritage (required for developments which are not State significant developments or infrastructure) was refused.³ 

Interaction between state and Federal cultural heritage laws

The Standing Committee’s inquiry will investigate the interaction between state and Federal cultural heritage laws. There have also been concerns for several years about the adequacy of the protections afforded under the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act). To date very few declarations have been made under the ATSIHP Act.

The difficulties associated with the interaction between state laws and  the ATSIHP Act have been highlighted by the efforts of the Gomeroi Traditional Custodians Group, and Djab Wurrung Heritage Protection Embassy to protect culturally significant areas or trees. The Gomeroi People’s Federal Court proceeding challenging the Federal Minister’s decision not to grant declarations to protect cultural heritage was unsuccessful. While the Minister recognised the “immeasurable cultural values and connection to Country”⁴ provided by a site to the Gomeroi People, she ultimately held that the economic and social benefits of the Shenhua Watermark Mine outweighed the loss of heritage value. See our previous legal update for a summary of that case.

More recently, the Minister has refused (for the second time, after the Federal Court found there had been a legal error in her first decision) to make the declaration sought by the Djab Wurrung Heritage Protection Embassy to protect six trees near Western Highway.⁵ The Minister did not consider that the trees were under threat from the highway upgrades because an agreement reached between Victorian government agencies and the Eastern Maar Aboriginal Corporation, the legal authority responsible for Aboriginal cultural heritage in the area, proposed that an exclusion zone would be established around each tree.⁶

Protection of cultural heritage through environmental legislation

Another focus of the inquiry will be opportunities to improve Indigenous heritage protection through the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). At the time that the inquiry was announced, the independent review of the EPBC Act being led by Professor Graeme Samuel was well-underway, with the interim report being publicly released on 20 July 2020 (Interim Report). Ken Wyatt, Federal Minister for Indigenous Australians suggested that stronger protection of Indigenous heritage should be part of the EPBC Act review.⁷

The Interim Report does support the EPBC Act having an “expansive role” in protecting Indigenous cultural heritage.

However, it also recognises the limitations of the EPBC Act, and recommends a comprehensive review of national-level Indigenous cultural heritage protection legislation to ensure that national laws provide best-practice protection of tangible and intangible cultural heritage and complement protections afforded under state and territory laws. It recommends that the review consider the role of the EPBC Act including how national level protections are given effect and interaction with the development approval and assessment process under the EPBC Act. It suggests that the national review consider processes currently underway that are looking to improve Indigenous cultural heritage protection outcomes, such as the work of the Heritage Chairs and Officials of Australia and New Zealand to develop 'Best Practice Standards in Indigenous Cultural Heritage Management and Legislation'. Those standards, according to the Interim Report, would provide a basis to comprehensively review how Indigenous heritage is protected by national laws in Australia, and how national laws should interact with state-based arrangements.  See our upcoming legal update for a summary of the Interim Report.⁸

Submissions to the Standing Committee were requested by 31 July 2020 but it appears that the Standing Committee has been accepting submissions into August. 

Who are the current decision-makers and are any changes proposed?

What are the penalties for unlawful harm to Indigenous cultural heritage under heritage laws and are any changes proposed?

What next?

Proponents will increasingly be assessing the integrity of their approvals to harm Indigenous heritage, and whether they should act on those approvals.

Various state and industry guidelines for social impact or community engagement ¹⁹ encourage early and meaningful engagement with the impacted community throughout the pre-development application and assessment process. Therefore, despite receiving statutory approval to harm Indigenous cultural heritage, best practice stakeholder engagement is to maintain a project’s social licence to operate. This requires that developers continually engage with the impacted community throughout the lifecycle of the project, including in relation to any new discoveries of Indigenous cultural heritage.

International frameworks such as the IFC Performance Standards and the Equator Principles, ²⁰ discussed in our previous legal update, require developers to establish and maintain an ongoing relationships with an impacted community based on “informed consultation and participation”. As part of this, developers must seek to obtain the community’s free, prior and informed consent (FPIC), in certain circumstances.

Some state legislation and the ATSIHP Act are overdue for reform. Reform is required to strengthen the protections of Indigenous cultural heritage where state and territory legislation do not currently afford adequate protection. Some preliminary reforms have already commenced, with the review of the EPBC Act presently underway. As part of the review, there is an opportunity for the Standing Committee to make recommendations to strengthen the protection of Indigenous heritage of national significance. However, it remains to be seen whether the Standing Committee will consider or recommend changes to state or territory legislation that would incorporate the requirement to obtain FPIC, or obtain a social licence to operate throughout a project’s lifecycle.

Further, it will be interesting to observe whether the Standing Committee considers or recommends that legislation be amended in order to confer greater decision-making power upon Indigenous peoples and communities. This step would move heritage legislation more into the realms of providing for a right to self-determination in accordance with the United Nations Declaration on the Rights of Indigenous Peoples. The Declaration emphasises the right of Indigenous peoples to participate in the decision-making process for matters that affect them, the need for mechanisms for redress, and the need for signatory states to obtain FPIC before taking actions that may impact Indigenous peoples such as approving projects or making laws.

We have a leading team that advises on Indigenous heritage matters across Australia and can advise you on what all of this means for your project. Please contact a member of our team if you are concerned about your project or approvals.