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Protecting our unique Aboriginal and Torres Strait Islander heritage
Who should decide and how can proponents maintain their social licence to operate?
Author:
Australia | Publication | August 2020
Each state and territory in Australia has laws that seek to protect Aboriginal and Torres Strait Islander (Indigenous) cultural heritage from unlawful harm. Often these laws also provide a framework for project developers to seek approvals for impacting on cultural heritage, whether through agreement-making with the relevant traditional owner group, or in some cases, through a permitting process.
In this legal update we have:
- considered the scope of Federal inquiry into laws relating to cultural heritage; and
- compared existing legislation and any proposals for reform in relation to:
- the current and proposed decision-makers for granting approval to harm Indigenous heritage; and
- the current and proposed penalties for unlawful harm of Indigenous heritage.
Content
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 Many states have legislation originally enacted in the 1970s and 1980s, which confers the sole authority to determine applications to harm Indigenous heritage upon Ministers,2 or government entities.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?
| Legislation | Approval body or decision-maker | Proposed future decision-maker or approval body9 |
| Commonwealth | ||
|
ATSIHP Act |
Declarations to protect heritage: Minister. |
N/A |
|
Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) |
Applications for approval of projects which are likely to harm or will harm matters of national environmental significance, including world heritage properties and national heritage places: Minister. |
The Interim Report does not propose changes to the decision-maker. It makes recommendations to increase the participation of Indigenous Australians in decision-making. See our upcoming legal update for further detail. Further, the Federal Government intends to negotiate approval bilateral agreements with states and territories to reduce the duplication of approval bodies for a project.10 |
| Queensland | ||
|
Aboriginal Cultural Heritage Act 2003
Torres Strait Islander Cultural Heritage Act 2003 |
Cultural heritage management plans (CHMP): The CHMP (prepared in consultation with the relevant Indigenous party) is approved by the Chief Executive of the Department of Aboriginal and Torres Strait Islander Partnerships or Minister. | The Consultation Paper: Review of the Cultural Heritage Acts does not specifically raise whether Indigenous groups should be given decision-making roles, however several submissions made on the paper recommend this. |
| New South Wales | ||
| National Parks and Wildlife Act 1974 | Aboriginal heritage impact permits: Secretary of the Department of Premier and Cabinet.11 |
The Draft Aboriginal Cultural Heritage Bill 2018 proposes to give decision-making power to:
It is proposed that Local Aboriginal Cultural Heritage Consultation Panels are given an advisory role. Refer to our previous legal update on the Draft Bill for more information. |
| Environmental Planning and Assessment Act 1979 | Development applications: Heritage Council, local council, Minister, Independent Planning Commission of NSW.12 | N/A |
| Heritage Act 1977 | Applications to damage items listed on the State Heritage Register or items which are subject to interim protection orders: Heritage Council. | N/A |
| Australian Capital Territory | ||
| Heritage Act 2004 |
Excavation applications, applications for approval of Statement of Heritage Effect, and applications for approval of conservation management plans: Heritage Council. Proposed tree damaging activity, tree management plan affecting an Aboriginal heritage tree, or a tree which forms an important part of an Aboriginal heritage place: Conservator of flora and fauna, on advice from a representative Aboriginal organisation.13 |
N/A |
| Planning and Development Act 2007 | Development applications: Planning and Land Authority, on advice from the Heritage Council.14 | N/A |
| Victoria | ||
|
Aboriginal Heritage Act 2006 Planning and Environment Act 1987 |
Cultural heritage permit: A relevant registered Aboriginal party; or, if there is none, the Secretary to the Department of Premier and Cabinet. If the applicant is a registered Aboriginal party or the Secretary, the Aboriginal Heritage Council. Cultural heritage management plan (CHMP): A CHMP may be required by legislation or prepared voluntarily. A registered Aboriginal party can approve or refuse to approve a CHMP in certain circumstances. |
N/A |
| Tasmania | ||
| Aboriginal Heritage Act 197515 | Permit to harm, remove from a protected site, or carry out an act likely to endanger a protected object: Director of National Parks and Wildlife, or the Minister on the recommendation of the Director. | The Discussion Paper: Statutory Review of the Aboriginal Heritage Act 1975 raises the question of who should make decisions under the Act. Feedback on the paper has stated that the Act should provide Aboriginal people with a greater role in making decisions on the management and protection of Aboriginal heritage, with input from other experts as required. |
| South Australia | ||
| Aboriginal Heritage Act 1988 |
Agreements made under other legislation: Minister. Cultural heritage management plans (CHMPs): The CHMP (developed in consultation with the Recognised Aboriginal Representative Body, or relevant Aboriginal representative parties) is approved by the Premier after consultation with Aboriginal Heritage Committee, any Aboriginal organisation with a particular interest, traditional owners and other Aboriginal persons. Local heritage agreement: Minister. Authorisations to harm Aboriginal cultural heritage: Minister. |
The Stronger Partners Stronger Futures Discussion Paper 3: Reform Options – Aboriginal cultural heritage management and the mineral exploration process does not propose that decision-making roles be given to Aboriginal groups. |
| Western Australia | ||
| WA Act |
Section 16 authorisation to excavate or remove from an Aboriginal site: Registrar of Aboriginal Sites on the advice of the Aboriginal Cultural Material Committee. Section 18 Ministerial authorisation to cause other harm to an Aboriginal site: Minister on the advice of the Aboriginal Cultural Material Committee. |
The Review of the Aboriginal Heritage Act 1972: Proposals for new legislation to recognise, protect and celebrate WA’s Aboriginal Heritage – Discussion Paper proposes to retain the Minister as the final decision-maker for land use proposals of State Significance or where significant impact to Aboriginal heritage is involved, but there will be a new emphasis on agreement-making.16 |
| Northern Territory | ||
|
Northern Territory Aboriginal Sacred Sites Act 1989 Heritage Act 2011 |
Authority Certificate to carry out work on Sacred Sites: Aboriginal Areas Protection Authority. Work approval to carry out work on a heritage place or object: Heritage Council (minor work) or Minister (major work). |
N/A |
| Note: This table excludes any potential protection of cultural heritage that may be afforded under land rights, land grants or native title legislation. | ||
What are the penalties for unlawful harm to Indigenous cultural heritage under heritage laws and are any changes proposed?
| Legislation | Highest maximum penalty for unlawful harm, if prosecuted17 | Proposed future maximum penalty if prosecuted18 |
| Commonwealth | ||
|
ATSIHP Act |
Individual: $21,000 or imprisonment for 5 years or both Corporation: $105,000 |
N/A |
| EPBC Act |
Individual: $1,050,000 Corporation: $10,500,000 |
The Interim Report recommends that a review of the adequacy of penalties be undertaken to ensure that they provide an active deterrent, rather than a cost of doing business. See our upcoming legal update for further detail. |
| Queensland | ||
|
Aboriginal Cultural Heritage Act 2003 Torres Strait Islander Cultural Heritage Act 2003 |
Knowingly damage Aboriginal cultural heritage:
|
Consultation Paper: Review of the Cultural Heritage Acts poses the question whether there is a need to bolster the compliance mechanisms and what needs to be improved. |
| New South Wales | ||
| National Parks and Wildlife Act 1974 |
Knowingly damage an Aboriginal object:
|
Draft Aboriginal Cultural Heritage Bill 2018: Intentionally or recklessly damages Aboriginal object, ancestral remains or other Aboriginal cultural heritage and the harm is not trivial:
|
| Heritage Act 1977 |
$1,100,000 or 6 months imprisonment or both |
N/A |
| Australian Capital Territory | ||
| Heritage Act 2004 |
Recklessly damage an Aboriginal place or object:
|
N/A |
| Victoria | ||
| Aboriginal Heritage Act 2006 |
Knowingly damage Aboriginal cultural heritage:
|
N/A |
| Tasmania | ||
| Aboriginal Heritage Act 1975 |
Knowingly damage a protected object or site:
|
The Discussion Paper: Statutory Review of the Aboriginal Heritage Act 1975 raises the question whether the penalties are adequate. |
| South Australia | ||
| Aboriginal Heritage Act 1988 |
Individual: $10,000 or imprisonment for 6 months Corporation: $50,000 |
The Stronger Partners Stronger Futures Discussion Paper 3: Reform Options – Aboriginal cultural heritage management and the mineral exploration process does not consider whether the penalties for offences are adequate. |
| Western Australia | ||
| WA Act |
Individual: $20,000 and imprisonment for 9 months (first offence), $40,000 and 2 years imprisonment (subsequent offence), and $400 daily penalty. Corporation: $50,000 (first offence), $100,000 (subsequent offence), and $1,000 daily penalty. |
Review of the Aboriginal Heritage Act 1972: Proposals for new legislation to recognise, protect and celebrate WA’s Aboriginal Heritage –Discussion Paper proposes to increase penalties to $1,000,000, with a daily penalty of $50,000. |
| Northern Territory | ||
| Northern Territory Aboriginal Sacred Sites Act 1989 |
Individual: $62,800 or imprisonment for 2 years Corporation: $314,000 |
N/A |
| Heritage Act 2011 |
Knowingly damage or remove a heritage place or object: $62,800 or 2 years imprisonment |
N/A |
| Note: This table does not cover any potential offences under planning legislation for unlawful development or breach of planning approvals. | ||
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.
Footnotes
2
References to the “Minister” in this legal update refers to the Minister administering the relevant piece of legislation.
8
Interim Report pp 30, 37-38.
9
This column relates to existing reform proposals.
10
The Prime Minister has suggested that approval bilateral agreements be negotiated to reduce duplication of approval bodies for a project at the state / territory and Commonwealth levels: https://www.pm.gov.au/media/address-%E2%80%93-ceda%E2%80%99s-state-nation-conference; https://minister.awe.gov.au/ley/media-releases/reform-australias-environment-laws; https://www.legislation.gov.au/Browse/Results/ByPublicationDate/Gazettes/InForce/2020/0.
11
Part 6 Division 2 of the Act.
12
Depending on the type of development.
13
Sections 61B-61D of the Act.
14
Sections 60-61 of the Act.
15
The Land Use Planning and Approvals Amendment (Major Projects) Bill 2020 released for public exhibition in March 2020 proposes that for projects which have been granted a major project permit, no permits, authorities, licences, certificates, determinations, permissions or other authorisations under the Aboriginal Heritage Act 1975 (Tas) would be required.
16
See Proposal 6 on p 13.
17
This table only identifies the highest maximum penalty. Maximum penalties will be lower for offences involving lesser states of mind, strict liability or absolute liability.
18
This column relates to existing reform proposals.
19
See for example, NSW Department of Planning and Environment, Social impact assessment guideline: For State significant mining, petroleum production and extractive industry development, September 2017.
20
The most recent version, Equator Principles 4, commenced on 1 July 2020.
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