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Client Update: Federal Indigenous cultural heritage reform

2 November 2009

In brief: Australia currently has a duel system for protecting Indigenous cultural heritage – each state and territory has legislation to protect cultural heritage (to varying degrees), and a federal regime also exists as the legislation of last resort, stepping in where state or territory laws fail to provide effective protection. The Federal Government has recently questioned the effectiveness of its legislation in providing the level of protection required for Indigenous cultural heritage. Partner Ben Zillmann (view CV) and Senior Associate Rochelle Carey report on the Government's reform agenda for Indigenous cultural heritage.

Current regime and proposed reform

The current federal regime under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth.) (the ATSIHP Act) allows the Minister to make declarations for the protection and preservation of a significant Aboriginal area or object that is under threat of injury or desecration. Protection under the current regime is limited to when the area or objects are threatened; that is, there is no blanket protection for all cultural heritage.

The proposed reforms seek to strengthen the protection of Indigenous cultural heritage by encouraging the greater involvement of Indigenous people (including a focus on negotiated agreements for protecting cultural heritage) and also on establishing a national, consistent regime for cultural heritage protection across all Australian jurisdictions.

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Accreditation

The concept with the greatest impact for project proponents is the proposed accreditation scheme. The proposal put forward by the Federal Government is for a national system of accreditation of state and territory heritage protection regimes. The Commonwealth would set the standards for state and territory laws, and only those that met the standards would be accredited.

If a state or territory law is accredited, then the regime under the ATSIHP Act would not apply (unlike the current situation). For unaccredited states and territories, the ATSIHP Act would apply. However, importantly, the ATSIHP Act is not intending to be amended to include an approvals regime for projects (for example, the cultural heritage management plan regime in Victoria and Queensland). Rather, the current regime regarding declarations for threatened harm (albeit strengthened and amended) would continue to apply.

The standards proposed by the Government for accreditation are rigorous, and not every existing state or territory regime will meet them. The proposed standards include:

  • protection for all traditional areas and objects (whether or not previously identified);
  • an approval process for activities to proceed and the ability to impose conditions to be attached to an approval (presumably meaning an approval with an Indigenous person or group, rather than a government approval);
  • the ability of the state or territory governments to direct a proponent to apply for government approval. In this regard, notwithstanding that a state or territory's legislation may be accredited, it seems that the Commonwealth wishes to retain the ability to comment on whether a proponent requires an approval under accredited legislation; and
  • if the parties cannot reach agreement, a mechanism whereby the proponent can apply to the state or territory government for a relevant approval to proceed with its activity.

If these standards in their current form are accepted, then this will require a number of changes to many existing state and territory cultural heritage laws.

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Other proposed amendments

  • At present, the federal Minister can only make a declaration if he or she is satisfied that the area or object is of particular significance in accordance with Aboriginal tradition. It is intended that the current test of 'particular significance' be removed, so that any traditional area or object can be protected. Those seeking protection will then only need to prove a lesser threshold test of whether an area or object is a traditional area or traditional object (rather than having to prove its particular significance).
  • Only those people who have a recognised traditional connection to the land (ie those recognised under the Native Title Act 1993 (Cth) or land rights laws) can apply for Commonwealth protection of areas or objects. If, however, there is no registered native title holder or Aboriginal land trust, then the existing regime would apply – being that any Indigenous person could apply for protection.
  • Any agreed cultural heritage provisions in a registered Indigenous land use agreement cannot be overruled by applying to the federal Minister for a declaration under the ATSIHP Act. The discussion paper only mentions protection for a registered indigenous land use agreement and not a 'right to negotiate' agreement under section 31 of the Native Title Act 1993.
  • One of the reasons given for the low number of declarations under the ATSIHP Act was the lack of information or evidence that would accompany applications. The reforms propose that specific information needs to accompany any application for protection, including a description of the area/object, the proposed activity that threatens the area/object and a statement of the traditional laws and customs that are applicable. Further, a new step proposed in the reforms is that the parties are required to meet to discuss and attempt to resolve the issue. This concept is not currently in the current regime.
  • The Minister or a court will be able to order the remediation of, or repair of, the damage caused by an activity, and in some cases executive officers of corporations will be accountable for offences that occurred while they were in office.

The Government's reform agenda has the ability to change the way cultural heritage is protected in many jurisdictions, impacting on projects and proposed projects.

For further information, please contact:

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