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Anderson, Brigid; Hytten, Frank; Land, Clare --- "Aboriginal Heritage Bill" [2006] IndigLawB 13; (2006) 6(17) Indigenous Law Bulletin 16


Aboriginal Heritage Bill

Brigid Anderson, Frank Hytten and Clare Land

Introduction

The fundamental principle behind the protection of cultural heritage under Australian law is that traditional owners must have control of their cultural heritage consistent with their rights and interests. Australians for Native Title and Reconciliation (‘ANTaR’) Victoria is concerned that the Victorian Government’s draft heritage protection bill will not provide this for Indigenous people. There are questions regarding both the level of time and resources made available for consultation and negotiation with Indigenous people, and in relation to the protection of cultural heritage.

Context for the Bill and Background to ANTaR Victoria’s Campaign

In Victoria, cultural heritage is currently protected by both Commonwealth and State legislation. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (‘the Commonwealth Act’) preserves and protects places and objects of cultural significance to Indigenous people in accordance with traditional law and custom.[1] The Archaeological and Aboriginal Relics Preservation Act 1972 (Vic) (‘the State Act’) protects physical evidence of past occupations – relics, artefacts and ancestral remains.[2] In contrast to other states and territories, in Victoria, the Federal Government currently delegates its powers to the State Minister to administer cultural heritage protection under the Commonwealth Act.[3]

In October 2005, the exposure draft of the Aboriginal and Torres Straight Islander Heritage Protection Amendment Bill 2005 (‘the Bill’) was released.[4] It allows the State Government to directly administer heritage protection laws in Victoria. It will ensure that two legislative channels, State and Commonwealth Acts, are available for the protection of cultural heritage, placing Victoria on an equal footing on this issue as other states and territories.[5]

There are concerns both about the content of the Bill and the lack of time and resources available for discussion and negotiation by Indigenous peoples. ANTaR Victoria[6] has been approached by people with such concerns and requested to assist with a campaign to delay the Bill. One of these concerns is that the Bill may decrease the authority of traditional owners to make decisions regarding their cultural heritage. As well, it will create processes that are likely to increase tensions within Indigenous groups in making decisions about cultural heritage protection. Such disagreements are likely to make it more difficult for developers and other stakeholders to get clear guidance on cultural heritage matters. ANTaR is concerned that this may also lead to more decisions being ‘settled’ by the Victorian Civil and Administrative Tribunal (‘VCAT’), a body with no Indigenous expertise.

There are also concerns that a decision-making process that operates outside of the control of Victorian Indigenous peoples will fail to sufficiently recognise the inherent rights and obligations of traditional owners to control and protect their cultural heritage.[7] Rather than protecting cultural heritage rights in Victoria, the Bill may, for some at least, actually weaken the protection offered by the current Commonwealth legislation.[8]

A further concern regards details of the proposed protection regime which have not yet been revealed. The Bill does not provide guidance about the extent of developments and activities for which cultural heritage assessments will be required.

Consultation and Negotiation Process

The Victorian Government has failed to undertake a sufficient consultation and negotiation process with Indigenous peoples. The Minister has held over forty ‘consultations’ around the State prior to the drafting of the Bill, as well as twelve two-hour consultations between the Bill’s release for comment and the deadline for responses two months later. However, many Indigenous people have reported being unable to attend the earlier meetings – those that did reported feeling that they were being told rather than asked about the Bill and that their opinions were not included in the drafting process. Many saw the legislation for the first time at the consultation.

The Bill is a complex document, which contains significant new proposals.[9] The meetings have not allowed sufficient time for Indigenous peoples to discuss and negotiate the proposed changes. In response to the ANTaR Victoria campaign, the Minister for Aboriginal Affairs, Gavin Jennings, has responded that he conducted ‘an extensive consultation process,’ implying that he gained widespread ‘agreement’ from Aboriginal people about the Bill. ANTaR Victoria is calling on the Minister to release details of his attendance at any consultations. As well, clear timelines of the processes must be made available to Indigenous people and resources must be made available to support them. Otherwise, the consultation process will be found wanting as ‘informed consent’ cannot be said to have occurred.

Broader Implications of the Bill

Concerns regarding the Bill extend to the broader context of Indigenous–non-Indigenous relations in Victoria and nationally. Mechanisms for the management and protection of Aboriginal cultural heritage cannot be disconnected from wider unresolved issues including forced removal from land, and civil and political disempowerment.

Some amongst ANTaR Victoria’s membership argue that any Indigenous-specific legislation should explicitly make a contribution to the process of ‘decolonisation’. This entails returning power to Indigenous people by, for example, restoring Indigenous control of places and material culture, rather than further entrenching control in Anglo institutions and courts. Decolonisation should also include compensation to Indigenous people things tangible and intangible of which they have been dispossessed. They argue that until these broader issues are addressed, measures such as this Bill will continue to be overshadowed by more fundamental problems.

The current vacuum in representative arrangements for Indigenous people in Victoria means there is no credible, accountable, culturally appropriate mechanism[10] for engagement with the State Government. The Victorian Traditional Owner Land Justice Group (‘VTOLJG’) could be the closest mechanism currently. However, it is not recognised as such by the State Government, and possibly not by all Indigenous peoples in the State.

If there was a credible representative arrangement, there would be no need for the Minister to hand-pick Indigenous people for the Victorian Aboriginal Heritage Council (‘the Council’) proposed under the Bill. Perhaps a representative body could also set the agenda for legislation – cultural heritage legislation may or may not be the top priority if the State was not pushing it. Criteria for the selection of members of the proposed Council have not been made available, so it is not possible to analyse this aspect in detail.

Indications suggest the proposed Council will be characterised by a lack of accountability in that Indigenous people are not involved in determining membership.[11] As a representative process, the degree of ‘cultural match’ with the norms of Indigenous groups seems very limited – particularly in the area of rights to speak for country and family.[12] The powers of the Council to allow or refuse steps in the approval of activities is limited (for example in relation to what assessments are undertaken); the Secretary and the Minister will have certain overriding powers; and some types of disputes are subject to review by the mainstream VCAT. Such limitations on substantive power means the Council may prove to lack credibility with Victorian Indigenous peoples.

Conclusion

ANTaR Victoria’s prime concern is that Aboriginal people gain a genuine voice in matters that concern them and that control of cultural heritage rests with the relevant traditional owners. The Aboriginal Heritage Bill, as it now reads, will not deliver this. ANTaR Victoria will continue to support Indigenous calls for the Victorian Government to negotiate a genuine agreement that is acceptable to Indigenous people. It seems clear to us that a self-determined and agreed process will work much better for all parties, Indigenous or otherwise, and give certainty to government, business interests and other stakeholders.

Addendum

Since the above article was written, ANTaR Victoria has been informed that the Minister has met with several Indigenous and other individuals and groups, in particular the VTOLJG. As a result, the Minister has acknowledged the validity of a number of the concerns raised with the draft Bill. A number of changes have been foreshadowed and a revised version is to be circulated by early April. The VTOLJG continues to have reservations and have restated these in an open letter to the Minister. ANTaR Victoria will continue to seek an outcome that is acceptable to Indigenous people and, in particular, traditional owners.

Brigid Anderson, Frank Hytten and Clare Land are staff members of ANTaR Victoria. ANTaR Victoria works with non-Aboriginal people to create opportunities for education and action to create moral and legal recognition of Aboriginal people as first nations peoples. See the ANTaR Victoria website at <http://www.antarvictoria.org.au> at 7 March 2006.


[1] Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), s 4.

[2] Archaeological and Aboriginal Relics Preservation Act 1972 (Vic).

[3] Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), Part 11A.

[4] Moira Coombs, ‘Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005Parliamentary Library Bills Digest, no 67, 2005-06.

[5] Ibid, 2.

[6] The Victorian State ANTaR group. See <http://www.antarvictoria.org.au/about_antar.html> at 7 March 2006.

[7] Arnold Bloch Leibler, 'Submission on the Aboriginal Heritage Bill', December 2005.

[8] Ibid.

[9] Friends of the Earth, 'Submission on the Aboriginal Heritage Bill', December 2005.

[10] See principles laid out in Stephen Cornell, ‘Accountability, Legitimacy, and the Foundations of Native Self-Governance’, Research and Publications of the Harvard Project on American Indian Economic Development, <http://www.ksg.harvard.edu/hpaied/pubs/pub_133.htm> at 17 February 2006.

[11] Ibid.

[12] See ‘conflict of interest’ issues regarding traditional and familial links, Law Institute of Victoria, ‘Submission: Property and Environmental Law Section and Administrative Law and Human Rights Section: Aboriginal Heritage Bill’ 2006, 15.


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