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Wednesday, 22 August 2001
Page: 26410

Senator LEES (6:20 PM) Due to Senator Ridgeway being on a pair, I seek leave to incorporate the speech that was begun by him.

Leave granted.

The speech read as follows—

I rise to speak today about the Environment Protection and Biodiversity Conservation Amendment Bill (No. 2) 2000 and in particular, about the implications of this bill for the protection of Indigenous heritage.

This bill seeks to insert a new heritage protection regime into the Environment Protection and Biodiversity Conservation Act 1999, thereby providing for the protection of natural, cultural, historic as well as Indigenous heritage.

These amendments would make national heritage places another matter of `national environmental significance' under the Act.

The bills also establish two new lists:

1. National Heritage List and

2. Commonwealth Heritage List, which would replace the current Register of the National Estate, that contains a number of Indigenous places.

The protection of cultural heritage is one of the utmost importance to Indigenous peoples.

It is part of our identity that has been passed from generation to generation over many thousands of years. It is interwoven with our languages, stories, our art, customs and traditional practices.

For my generation, our culture is the legacy that we will give to our children and grandchildren. This is a weighty responsibility, and one that exists under Indigenous law and custom - regardless of whether it is acknowledged by the mainstream Australian legal system or not.

As Michael Dodson has put it:

Everything about Aboriginal society is inextricably interwoven and connected to the land. Culture is the land ... our reason for existence is the land. You take that away and you take away our reason for existence. We have grown the land up. We are dancing, singing, painting for the land. We are celebrating the land. Removed from the land we are literally removed from ourselves.

The recognition and protection of Indigenous heritage, including sites, places and landscapes, is therefore central to the reconciliation process.

As ATSIC noted in its recent submission to the Senate Committee, “protection provides an important safeguard to the maintenance and regeneration of Indigenous culture and demonstrates an acceptance and respect for cultural differences which are the hallmarks of reconciliation.”

But at the current time, Indigenous heritage is poorly protected and Indigenous peoples have no direct control over their heritage.

Nor have they been involved in discussions over the new heritage protection regime to the extent that we believe they should have, especially given the recent discussion about the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998, which seeks to reform the 1984 Act.

Of particular concern is the lack of consultation and discussion relating to the relationships between the ATSIHP Bill and this current suite of heritage bills.

The fact that the legislators of this country continue to make decisions about Indigenous heritage in this day and age without seeking the prior and informed consent of the people whose lives will be affected by those decisions is not acceptable - especially when the subject of these decisions is as fundamental as the protection and management of the oldest living cultures in the world.

The Australian Democrats are not alone in being gravely concerned with the disrespect that this type of behaviour shows to Aboriginal peoples and Torres Strait islanders.

The Environment Committee, in its report into the bill, raised the issue of how the proposed legislation would relate to existing laws, and in particular, the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, and its proposed replacement, the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998.

The Committee stated that “there is no clear discussion in either the legislation itself or the accompanying materials about the intended relationship between the two regimes. This is unacceptable given the complexity and sensitivity of indigenous heritage protection, and the amount of negotiation, consultation, review and inquiry that has been invested into the ATSIHP legislation, including the:

· Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 by the Hon Elizabeth Evatt AO (the Evatt Report)

· Joint Parliamentary Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund 11th and 12th Reports

· Senate Legal and Constitutional Legislation Committee report into the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998.

The Committee consequently recommended that the Government provide full details about the relationship between Indigenous heritage protection in the proposed EPBC regimes and the ATSIHP Act prior to the Senate's consideration of the bills and that Indigenous peoples be given the opportunity to comment on the Government's response.

The Committee also recommended that the Government provide a full response to the recommendations contained in the Evatt report.

So far. no response has been forthcoming. which is highly unsatisfactory given that this report was tabled in this place in 1996 are a most thorough and considered evaluation of these complex issues by The Hon Elizabeth Evatt.

I remind the Senate that the Evatt report was warmly received by many Aboriginal and Torres Strait Islander peoples and their representative organisations across the country because for the first time, a government review set out with the goal to:

“respect and support the living culture, traditions and beliefs of Aboriginal people and to recognise their role and interest in the protection and control of their cultural heritage.”

This is the approach that all members of this place should be taking in relation to the heritage amendments we put before this Chamber.

I would also like to remind the Chamber of one of the recommendations of the Evatt Report which is long overdue in this country, and that is a national policy for Indigenous heritage protection that would address all aspects of Indigenous cultural heritage. As the report recommended:

“Such a policy should form the basis of standards for cultural heritage protection, and for programs at all levels of government which affect Aboriginal heritage. An Aboriginal-controlled body such as an Aboriginal Cultural Heritage Advisory Council should have responsibility to oversee the implementation of this proposal, and should also have a role in monitoring Aboriginal heritage protection nationally and in co-ordinating laws and programs that have an impact on Aboriginal heritage.”

Perhaps if we had acted on the advice of the Hon Elizabeth Evatt, we would not find ourselves still grappling with the issues she clarified over 5 years ago.

I also bring to the Senate's attention the fact that ATSIC, as the peak national body for Indigenous peoples, has similar concerns to those of the Australian Democrats in relation to the lack of consultation with Indigenous peoples about the relationship between existing heritage regimes and the proposed amendments to the EPBC Act to include heritage.

The Chairman, Mr Geoff Clark, stated in his submission that “it is ironic and very disappointing that on the day before the Bills were introduced into Parliament, representatives of the Indigenous leadership, including myself as the Chairman of ATSIC were meeting with the Minister Hill on the Aboriginal and Torres Strait Islander Bill 1998 and not one word was uttered by the Minister or his advisers about a new heritage regime being introduced into Parliament on the next day.”

The ATSIC submission states that:

“While the heritage amendments to the EPBC Act are before Parliament, it would be important to detail the impact of the whole indigenous heritage regime and consider those in context with the ATSIHP Bill negotiations, and on the ground protection of Indigenous sites and heritage in the interim.”

In response to the need to significantly strengthen the protection of Indigenous heritage, ATSIC (and the Australian Conservation Foundation) have proposed that Indigenous heritage become another matter of national environmental significance, under the Act. This would then regulate actions which have a significant impact on Indigenous heritage.

The Australian Democrats believe that this proposal is worthy of further consideration, and should be the subject of further consultation and negotiation with Indigenous Peoples in the context of changes to both this and the Indigenous Heritage Protection Act.

The second reading amendment which I am consequently moving today is that the Government engage in discussions with Indigenous Peoples about the relationship between the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, the 1998 Bill, the Native Title Act 1993 and the proposed insertion of a new heritage protection regime into the Environment Protection and Biodiversity Conservation Act 1999, and that these discussions include consideration of making Indigenous heritage another matter of national environmental significance under the EPBC Act.

Specifically, the Government needs to discuss with Indigenous peoples the details of any such a trigger and in particular:

a. the type of trigger which could be used, including whether to use the current significant impact trigger under the EPBC Act;

b. if this EPBC trigger were used, what would constitute a `significant impact' in relation to Indigenous heritage, and what would consequently be a `controlled action';

c. the opportunities and constraints of using a trigger under the EPBC Act to protect both tangible and intangible heritage;

d. the requirements upon a person who discovers a site or object with Indigenous heritage values;

e. what consultation processes are needed in alerting Indigenous peoples about a proposed action;

f. issues related to public notification of sites;

g. the options available in dealing with an action which may have a significant impact on Indigenous heritage;

h. how `Indigenous heritage' or `Indigenous heritage values' should be defined;

i. what the criteria should be for assessing Indigenous heritage values; and

j. the appropriateness and workability of using state and territory heritage regimes and planning laws to protect and manage Indigenous heritage and whether these regimes could be accredited by the Commonwealth under a bilateral agreement.

I commend this amendment to the Senate for its consideration.

Senator LEES —The second matter I want to deal with is Senator Ridgeway's second reading amendment. On behalf of Senator Ridgeway, I move:

At the end of the motion, add:

“but the Senate calls on the Government:

(a) to engage in discussions with Indigenous Peoples about the relationship between:

(i) the Aboriginal and Torres Strait Islander Heritage Protection Act 1984;

(ii) the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998;

(iii) the Native Title Act 1993; and

(iv) the proposed insertion of a new heritage protection regime into the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act); and

(b) to include in these discussions, consideration of indigenous heritage as another matter of national environmental significance under the EPBC Act”.

I will speak briefly about the issue that Senator Ridgeway was dealing with specifically relating to this bill. I also wish to discuss another piece of legislation that seems to have vanished. Indeed, Senator Ridgeway stressed, as did Senator Woodley, how disappointing it is that, after lengthy negotiations, after all the discussions and, finally, after an agreement between indigenous people and the environment minister, the Aboriginal and Torres Strait Islander Heritage Protection Bill 1998, which was an improvement and a replacement for the 1984 act, seems to have vanished. On behalf of Senator Ridgeway, I ask Senator Hill if there is any sign of that bill and, in particular—this will also be dealt with by my colleague Senator Allison—how that relates to and integrates with the legislation that we are currently dealing with. This bill establishes, as the chamber knows, two new lists—the National Heritage List and the Commonwealth Heritage List—which replace the current Register of the National Estate. The Register of the National Estate contains a number of indigenous sites. Therefore, questions arise as to what this legislation is seeking to do and what, at the stage of final negotiations, that other piece of legislation would have achieved, how it relates back and, indeed, which is the stronger of the two acts as far as their working for indigenous people.

To make one final point as I look at Senator Ridgeway's amendment, the Democrats agree with the ATSIC proposal that all indigenous sites should have protection. Indeed, the ATSIC proposal is certainly worthy of further consideration. However, to formally amend during the committee stage of this bill, particularly given the previous negotiations and discussions, is something we are very wary of at this point in time. We believe that, given the work that has already been done, we need to revisit that to look at how the two acts will work together. In particular, if we are to move down the road in this bill, we need to go back to the national indigenous working groups, the land councils, and basically, in the context of both pieces of legislation, look at protection for indigenous Australians. So, in closing, I want to speak on behalf of this motion that Senator Ridgeway has put together. It asks the Senate to call on the government to engage in discussions with indigenous peoples about the relationships between the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, the protection bill of 1998 so far as the negotiations have gone and the Native Title Act 1993, and to propose the insertion of a new heritage treatment regime into the EPBC Act.