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Thursday, 11 May 2006
Page: 46


Senator SIEWERT (12:25 PM) —While the Australian Greens have some concerns about the detail of the Aboriginal and Torres Strait Islander Heritage Protection Amendment Bill 2005 [2006] and there have been amendments circulated in the chamber, there is a bigger issue of concern that I want to raise—and Senator Carr touched on this issue, as did Senator Bartlett—and that is what this bill does not seek to do and the issues it fails to address.

We are concerned that the government has failed to deliver on its promises to revisit the Aboriginal and Torres Strait Islander Heritage Protection Act in order to better protect Indigenous heritage, as was stated in this chamber by Senator Carr. On 20 August 2003 during the debate on the environment and heritage protection legislation, Senator Hill told the Senate:

We gave undertakings a couple of days ago that the sites bill—

the ATSIHP bill—

would be brought to the Senate as quickly as possible. The minister has since reaffirmed to me that negotiations and consultations are continuing to take place. We recognise the shortcomings in the existing system. Reform of that is long overdue. We are anxious to have a new and better piece of legislation put in place as quickly as possible.

Three years down the track we still do not have those amendments, the new and better piece of legislation has never materialised and Indigenous groups have not been properly consulted.

These are some of the main reasons that the bill was referred to the Senate Environment, Communications, Information Technology and the Arts Legislation Committee. I am concerned and disappointed that the majority report that came out of that committee did not address the reasons for the referral. I remind the Senate about the reasons for the referral, which were stated in Hansard and are contained in the Selection of Bills Committee report. They were listed as:

The adequacy of amendments to protect Indigenous heritage.

Do the amendments address concerns of indigenous Australians?

Do the amendments reflect the changes recommended by the Evatt Report?

During the limited time available for community consultation on this issue, there were a number of concerns about the bill raised by Indigenous communities, particularly in Victoria. The majority report considered how it met its stated objectives but it failed to consider how it relates to the three criteria listed for the inquiry. It did not consider how the bill as a whole addressed these issues.

The bill does not address adequately the protection of Indigenous heritage. Since coming to power in 1996 the Howard government, I believe, has failed to meet its obligations to protect and conserve Indigenous heritage and has dramatically reduced its engagement on Indigenous heritage issues. This has been illustrated in both the government’s reluctance to use the ATSIHP Act and its administration of the heritage provisions in the Environment Protection and Biodiversity Conservation Act 1999.

In 1984 the ATSIHP Act was initially enacted as a temporary stop-gap measure while the government of the day developed more comprehensive national land rights legislation. When it became apparent in 1986 that such legislation would not be forthcoming, its sunset clause was repealed. The point is that it was not at the time considered to provide an appropriate national approach to the Commonwealth’s heritage obligations. The ATSIHP Act was described in the Evatt report as ‘an act of last resort, intended to fill the gaps in state and territory heritage protection’. It is fair to say that the ATSIHP Act has seen very little use. Of the 200 applications lodged since its commencement in 1984 only 22 declarations have been made. Since the coalition government came to power in 1996 only one declaration has been made. At the same time there has been an apparent reluctance to prosecute breaches of the act.

With the advent of the EPBC Act, it appears the intention of the government is to confine its statutory involvement on Indigenous issues to the Environmental Protection and Biodiversity Conservation Act and ignore the ATSIHP Act. This has led critics of the ATSIHP Act to describe it as a dead parrot. For instance, Wilkinson and McIntosh in 2006 from the Australia Institute—and this paper is in press—said:

...in so far as practical implementation, the ATSIHP Act is ostensibly a piece of dead legislation, at least in terms of the life of the Howard Government.

This creates a problem, for two reasons. Firstly, the ATSIHP Act has a far greater capacity to protect Indigenous heritage than the EPBC Act. The EPBC Act confines the statutory role of the Commonwealth to matters of international significance—that is, World Heritage areas—or national significance such as the National Heritage places and places located on Commonwealth land; that is, Commonwealth heritage places.

The ATSIHP Act, however, contains no such limitations. In the intergovernmental agreement on the environment in 1992 and in the COAG agreement on Commonwealth and state roles and responsibilities for the environment in 1997, the Commonwealth expressed a desire to limit its involvement in environmental issues largely to Commonwealth areas and matters of international and national significance. The COAG agreement explicitly excludes heritage issues from this agreement. In relation to Indigenous heritage, the COAG agreement notes in clause 6 that ‘Indigenous heritage issues are being addressed in a separate process and are not covered by this Agreement’. To date, the cooperative national heritage places strategy has not been prepared and the Indigenous heritage process appears to have been terminated by the federal government in the late 1990s. Consequently, it appears the Commonwealth’s decision to confine its involvement in Indigenous heritage issues in the manner described is a unilateral decision made with little or no consultation with Indigenous communities or the states and territories.

When the heritage amendments to the EPBC Act were debated in 2003, Senator Robert Hill gave repeated assurances that the government was carrying out a consultation process with Indigenous communities on an amendment to the ATSIHP bill that would ensure that the Commonwealth continued to play an active role in the protection of Indigenous heritage sites that did not fall within the scope of the EPBC Act. Senator Hill also assured the Senate that this amendment bill would be debated in the parliament as soon as the consultation process was completed. From the information that is currently available, it appears there was no such consultation process at the time that statement was made and there has been no consultation on a broad ATSIHP amendment bill carried out with Indigenous communities since then. I believe this is outrageous.

The second reason why limiting the Commonwealth’s involvement in Indigenous heritage protection to the EPBC Act regime is problematic is the way in which the national and Commonwealth heritage lists are being administered. As far as the National Heritage List is concerned, it appears that a place of significance to a particular Indigenous community will not be eligible for inclusion on the Heritage List unless it can be established that the place is important to the broader Australian community—for example, because it is of archaeological, anthropological or scientific interest or because it marks a significant event in colonial or post-Federation history. By establishing these stringent criteria, the government has ensured that the vast majority of culturally significant Indigenous heritage places will not be and cannot be included on the National Heritage List, and those few that are will not be sites that are of the greatest value to Indigenous Australians.

Let me put it clearly and simply: sites that are of the greatest traditional cultural significance to Aboriginal people are by definition significant to local and regional groups—the people whose land it is and whose dreaming stories and trails are woven through these sites. Traditional cultural heritage is about a connection to the land and to the stories that give a sense of a place’s meaning. There is no way that a sacred site can be of national significance. It cannot be of significance to all Aboriginal and Torres Strait Islander peoples when there is clearly no way that the majority of them have ever visited a site on the other side of the continent or have a spiritual connection to it. It still means this site is important to the local group, however.

There may be a case for some few modern sites of cultural significance to arguably have significance to all Indigenous Australians nationwide because of their involvement in the national political struggle for citizenship, recognition and land rights—for example, the tent embassy in Canberra. But we have seen very clear signals from the government that they are not the least bit interested in recognising this type of cultural heritage—probably, I would say, because it underlines their ongoing failure to address these issues of recognition, representation rights and equality. This highlights a further problem that applies to both the national and the Commonwealth heritage lists, and that is the manner in which the Minister for the Environment and Heritage can exercise statutory discretion to stall or block the listing of Indigenous sites that meet the listing criteria.

As the Greens predicted in the debate concerning the heritage amendments to the EPBC Act, the listing processes have become highly politicised and the minister has demonstrated an unwillingness to list places that are politically contentious. The decision-making process under the EPBC Act in relation to Indigenous heritage protection in this way ultimately reflects another example of white people making decisions about black issues and values. The apparent priority that is being given to places that relate to colonial and post-Federation history suggests that the government is not concerned about Indigenous heritage or at the very least sees it as a low-order issue.

I am concerned that the timing of the ECITA committee inquiry into this bill was such that we were unable to obtain substantive Indigenous community submissions or to enable adequate community consultation to properly assess the level and substance of community concern about the bill. This issue has been particularly acute during this inquiry due to the reduced capacity within Indigenous communities in recent times to be able to participate in these processes, consultation fatigue and the requirement for submissions to be turned around quickly so late in the year last year. One of the fundamental principles of Indigenous community consultation is allowing sufficient time for discussion and decision making to take place. Unfortunately, due to the time constraints of this committee they were not able to have this level of consultation.

The Evatt report undertook a review of the Aboriginal and Torres Strait Islander Heritage Protection Act 10 years ago, in 1996. It is unfortunate that a decade has passed without significant action being taken. Elizabeth Evatt clearly indicated that the legislation was inadequate in the protection it provided for Aboriginal and Torres Strait Islander heritage as well as in the extent to which it involved Aboriginal people in the decisions that are made under the act. I am concerned that what was a very comprehensive report that made some very sensible and extremely valuable recommendations relating directly to the title of this bill has not been addressed. It is clear this bill as a whole does not address the Evatt report’s recommendations in any real way, and there is no evidence that any other efforts on behalf of the government are being made to address these major recommendations.

The main recommendations of the Evatt report included: respecting customary restrictions on information, including gender; protection from disclosure contrary to customary law restrictions; guaranteed access rights to sites of significance; minimum standards for state and territory cultural heritage laws—which is particularly relevant to the bill that we are discussing now; protection of all aspects of Indigenous heritage, including intellectual property; and ensuring decisions on a site are determined by Indigenous people based on the intensity of their beliefs and feelings of significance. They are just some of the recommendations.

The federal government should fulfil its previous commitment to consultation with Aboriginal and Torres Strait Islander communities on the recommendations of the Evatt report. It should fulfil its previous commitment to review the ATSIHP Act with a view to introducing a broader ATSIHP amendment bill within the current term of parliament.

While the Greens agree that this bill may deliver greater certainty for the exhibition of artefacts held in overseas collections, it is entirely understandable that many Indigenous communities would not consider the ability to view behind glass in a museum what they see as stolen items as any substitute for the loss of this heritage. It is important to note that there is increasing international activity around the return of cultural artefacts. Recently, we heard media reports about how the government of Italy is now suing what is arguably the wealthiest museum in the US. Within this changing international environment, it would be an opportune time for the government to revisit this issue. We believe more must be done to pursue the return of these precious and sacred artefacts from overseas.

Concerns were raised with me and with the committee inquiry by the Central Land Council regarding the impact of the sunset clause in this act. Senator Carr also alluded to that. This would effectively see heritage protection declarations made by the minister under sections 10 and 12 automatically cease after 10 years. While these concerns were raised in the majority report of the committee, it is our opinion that bringing them to the attention of the minister is not sufficient, as it will not guarantee in law an effective response and leaves the door open for future ministers to ignore or abuse this oversight. We do not believe the minister wants to be involved in this level of administrative trivia. I am proposing a simple amendment to this bill to exempt it from the sunset clause in the Legislative Instruments Act, which is in line with what has been done for many other pieces of legislation. This would ensure that existing declarations do not have to be remade.

I am also concerned about the enabling of state administration of Aboriginal heritage protection in Victoria. Serious concerns were raised by Indigenous communities in Victoria about the substance of the proposed state legislation and the impact that handing this legislative power back to the state will have on Aboriginal communities in Victoria. These concerns included the lack of appropriate and adequate consultation that was involved in the drafting of the Victorian legislation. It also included the manner in which it excludes some traditional owners and existing Aboriginal organisations from the decision-making processes, which seems likely to have the effect of overriding their ongoing role as traditional custodians of their heritage.

The Yorta Yorta submission raised serious concerns that the draft Victorian legislation imposes an Aboriginal heritage council which is appointed by the minister. It also imposes a system of registered Aboriginal parties that do not necessarily reflect existing community structures, decision-making processes or recognised traditional elders. This undermines existing community structures, agreements and decision-making processes and could create conflict between community leaders who are included in and those excluded from the council. The state heritage protection legislation effectively sidelines Indigenous involvement in decisions about cultural heritage to a purely advisory role and increases the ability for Indigenous people to be played off against each other.

Existing community-appointed Aboriginal heritage inspectors and cultural officers who have invaluable knowledge, experience and expertise in the threats confronting their cultural protection are losing their jobs. Concerns were raised at a community meeting I attended about the way in which the proposed structure of the Aboriginal heritage agreements and cultural heritage permits takes away any right of veto over development proposals and creates potential conflicts of interest for the state government on proposed developments.

I appreciate that I am discussing the impacts of proposed state legislation, and that is, prima facie, a case for uniformity for all states and territories having equal control over their heritage issues. However, I am concerned that handing over responsibility to Victoria effectively means that the Commonwealth is failing to meet its heritage obligations to the Indigenous peoples of Victoria. The Commonwealth has an obligation to ensure that Indigenous heritage will be adequately protected before it devolves responsibilities to Victoria. The Commonwealth has both legal and moral obligations to protect Indigenous heritage that arise from international agreements, the Australian Constitution and the future nature of the Australian political system.

The ATSIHP Act was intended to act as a fall-back statement for situations in which states and territories were not ensuring their protection. I am concerned that the ultimate effect of enacting this bill without ensuring that the proposed Victorian legislation meets Commonwealth and community expectations would be a diminution of the protection of Aboriginal heritage in Victoria. I have therefore proposed another amendment that will ensure a review of that legislation to ensure that the Victorian legislation is meeting its obligations and the Commonwealth’s expectations. I will be pursuing these two amendments in the committee stage.