The Native Title (Tasmania) Act 1994 validates past acts attributable to Tasmania, but does not cover future grants. Other Acts aim to identify and preserve Aboriginal heritage places and objects, write Partner Scott Langford (view CV) and law graduate Brendan Fyfe.
Last updated November 2005
State Native Title legislation
Land rights legislation
Heritage legislation
- Aboriginal Relics Act 1975 (Tas)
- Aboriginal and Torres Strait Islander Heritage Protection Act 1984
(Cth)
State native title legislation
Native Title (Tasmania) Act 1994
This Act:
- validates past acts in accordance with the terms and requirements of the Commonwealth Native Title Act 1993 (the NTA); and
- confirms Tasmania's existing ownership of any natural resources; Tasmania's existing rights to use, control and regulate the flow of water; existing fishing access rights; and existing public access to waterways and public places.
The Tasmanian Government is liable for any compensation payable as a result of validation of past acts.
Unlike the Acts of most states, this Act does not validate intermediate period acts, nor does it confirm the past extinguishment of native title by certain valid or validated acts, including previous exclusive possession acts. This was not seen as necessary because of the nature of land tenure in Tasmania (there are no pastoral leases).
The Tasmanian act does not contain any provisions dealing with future grants of land or acts in relation to land. As a result, the future act provisions (including the right to negotiate procedure) of the NTA governs future acts and grants of land in Tasmania.
Land rights legislation
Aboriginal Lands Act 1995 and Nature Conservation Act 2002
Under regulatory legislation, some land is not available for exploration or mining activity, including:
- land that is Aboriginal land under the Aboriginal Lands Act. There are 15 areas listed in Schedule 3 of the Act. (However, the Aboriginal Land Council of Tasmania may consent to the grant of a tenement);
- land reserved under the Aboriginal Lands Act, such as protected sites; and
- Aboriginal sites and other land reserved under the Nature Conservation Act, which have the status of a State Reserve.
Heritage legislation
Currently Aboriginal heritage in Tasmania is protected under both Tasmanian and Commonwealth heritage legislation. Access to land and waters for mineral and petroleum exploration purposes is restricted by the Aboriginal Lands Act 1995 (Tas).
The Tasmanian Government is currently undertaking an investigation into arrangements for the protection of Aboriginal heritage including the development of new legislation.
Aboriginal Relics Act 1975 (Tas)
Aboriginal heritage in Tasmania is protected under the Aboriginal Relics Act and the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (see our commentary).
Scope of protection
The Aboriginal Relics Act protects Aboriginal 'relics', 'protected sites' and 'protected objects'.
Definitions
'Relic' is defined to mean:
- any artefact, painting, carving, engraving, arrangement of stones, midden, or other object made or created by any of the original inhabitants of Australia or their descendants before 1876;
- any object, site, or place that bears signs of the activities of any such original inhabitants or their descendants which occurred before 1876; or
- the remains of the body of an original inhabitant or of a descendant who
died before the year 1876 that are not buried in:
- any land that is or has been set aside or used as a burial ground or cemetery under any Act, deed, or other instrument; or
- a marked grave in any other land.
'Protected site' is land where a relic is situated which the Minister has declared ought to be protected and preserved.
A 'protected object' is the specified relic to which a Ministerial order declaring a protected site relates.
Protection of relics
If the Tasmanian Minister for Aboriginal Affairs is satisfied that there is a relic on particular land, and that steps should be taken to protect or preserve that relic, the Minister can make an order declaring that the land is a protected site. A relic specified in such an order is a protected object for the purposes of the Act.
Offences
It is an offence under the Act to:
- destroy, damage, disfigure, conceal, or otherwise interfere with a protected object or relic;
- carry out an act which is likely to endanger a protected object;
- remove a relic from where it was found or abandoned;
- sell or otherwise dispose of a relic or remove it from the State;
- destroy, damage, or deface, or otherwise interfere with any fencing or notice erected, or any other work carried out in or in respect of a protected site under the Act, other than in accordance with a permit granted by the Director of National Parks and Wildlife; or
- remove a protected object from a protected site, other than in accordance with a permit granted by the Tasmanian Minister. (However, the Director of National Parks and Wildlife can direct the removal of protected objects from a protected site to a place of safety if he or she is satisfied that they are likely be damaged, destroyed or lost.)
The penalty for a contravention is a fine of up to $1,000 or imprisonment for up to six months.
In addition, any person who finds a relic must (with limited exceptions), inform the director or an authorised officer as soon as practicable after the find. The penalty for failing to comply with this requirement is a fine of up to $1,000.
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
This Act gives the Commonwealth Minister for Aboriginal Affairs wide powers to protect significant Aboriginal areas or objects which may be under threat of injury or desecration. The protection is achieved by a ministerial declaration, which can follow an application from an Aboriginal person or group.
The declaration must sufficiently describe the area or object to enable it to be identified. It must contain measures to protect and preserve the area or object from injury or desecration. It is an offence to contravene a provision of a declaration.
The legislation is not intended to exclude or limit the operation of the law of a State that is capable of operating concurrently with the Act. Under the Act, the Minister cannot make a declaration without consulting the appropriate State Minister as to whether, under State law, the area or object is effectively protected from threat, injury or desecration. As soon as practicable after making the declaration, the Minister must take reasonable steps to notify people who are likely to be substantially affected by the declaration.
Native title: Mabo Commonwealth NT WA Qld NSW Victoria SA ACT
