Section 9
LEGISLATIVE BODIES
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Aboriginal Cultural Heritage Advisory Committee
NSW Heritage Council
Office of the Registrar for Aboriginal Land Rights
Aboriginal cultural heritage law reform
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Aboriginal Cultural Heritage Advisory Committee (ACHAC)
Submission to Phase 3 of the NSW Governments review into legislation
regarding Aboriginal Culture and Heritage in NSW (ACH Broad Reform)
INTRODUCTION
The Aboriginal Cultural Heritage Advisory Committee (ACHAC) was established in
2006 and is constituted pursuant to Schedule 9 of the National Parks and Wildlife
(NPW) Act 1974.
The ACHAC is the peak statutory advisory body to the NSW Government on all
Aboriginal cultural heritage matters in this State. The primary role of the ACHAC is to
advise the Minister for Environment and the Director General of the Department of
Premier and Cabinet on any matter relating to the identification, assessment and
management of cultural heritage in NSW as well as protection approaches and
legislative reform.
ACHAC members, both individually and collectively, have a vast and diverse
knowledge and understanding of Aboriginal culture and heritage, which is derived
from the Committees members own experiences of caring for, and working on,
Country within their local communities and traditional boundaries.
The membership of the Committee is representative of the diverse Aboriginal
population; it has a gender balance and includes members from different
geographical locations and cultural areas of NSW.
The Committee includes individuals that are members of Local Aboriginal Land
Councils, registered Native Title Claimants, Registered Aboriginal Owners under the
Aboriginal Land Rights Act 1983 and members and nominees of Elders Groups.
This submission was developed by ACHAC after much discussion and deliberation
and, importantly, is presented to the NSW Government with consensus views and
positions of the Committee. This submission brings together the different experiences,
knowledge and aspirations of each member, including their individual participation
in the Phase 3 consultation process, with a view to informing the creation of a new
Aboriginal culture and heritage legislation for NSW (the ACH Act).
Building upon the submission provided by ACHAC during Phase 1, and following
review of information provided during Phase 2, previous Committee discussion and
submissions, ACHAC welcomes the additional opportunity that Phase 3 of this reform
process provides to contribute to, and participate in, the provision of advice to,
initially the Minister for Heritage and the Minister for Aboriginal Affairs, and ultimately
the NSW Government about this fundamentally important reform process.
It is the view of ACHAC that the creation of a strong, clear and robust legislation will
be supported by focusing on a number of key issues. Therefore, this submission by
ACHAC focuses on the following key priorities:
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Stand-alone legislation;
Preamble;
Definition of ACH;
Who Speaks for Country;
Adopting key principles of existing processes into new legislation and policy;
Boundaries for the proposed Local ACH Committees;
Categories of Aboriginal Cultural Heritage significance;
ACH information;
Equitable distribution of ACH benefits and support;
Tools to protect and manage ACH;
It is the view of ACHAC that those important matters and processes such as links to
the Planning System, consultation timeframes and resolution dispute processes can
only be more fully considered once the above key issues are appropriately resolved
and determined.
SUBMISSION
Stand-alone ACH Legislation
ACHAC has provided its overwhelming support throughout all Phases of the ACH
reform process and continues to do so. The ACHAC welcomes the NSW
Governments’ commitment to the development of stand-alone Aboriginal cultural
heritage legislation in NSW and commends the NSW Government for its intention to
do so. ACHAC agrees with the NSW Government statement that new stand-alone
legislation is required for both practical and important symbolic reasons. Aboriginal
cultural heritage is not only important to Aboriginal people but also fundamentally
important to the tapestry of the shared cultures and history of the State of NSW.
It is ACHACs position that Aboriginal cultural heritage should not only be better
protected but also better promoted with more opportunities to celebrate it. ACHAC
holds a strong view that Aboriginal cultural heritage is a fundamental component to
the lives of Aboriginal people, both as individuals and a collective, and to their
ongoing social, cultural and economic wellbeing, and as such Aboriginal people
must be the primary determinants of decisions that may affect it.
Existing and concurrent provisions affecting ACH in NSW
ACHAC strongly recommend, ensuring consistency with the NSW Governments
intent to provide a ‘one stop shop’ for matters affecting Aboriginal cultural heritage
and a stand-alone ACH legislation, that all provisions (where practicable) that relate
to ACH is removed from other legislation and incorporated within the proposed
stand-alone legislation.
These provisions would be required to be transitioned with minimal amendments and
the maintenance of any exceptions for Aboriginal people undertaking cultural
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activities and to ensure certainty and understanding in the operations of the
proposed ACH Act rather than multiple forms of legislation.
Specifically, ACHAC recommended that the ACH functions of the NSW Aboriginal
Land Council and that of Local Aboriginal Councils as outlined in both section 52
and section 106 of the ALR Act are amended and transitioned into the new ACH
Act. It is the view of ACHAC that the current legislative provisions are operationally
redundant. Furthermore, is recommended that the following ACH provisions and
references are to transitioned into the new ACH Act, including the listing of Schedule
14 lands, the acquisition of lands in accordance with Part 4A NPW Act and the
negotiation of leases in accordance with section 36A ALR Act. It is important to note
also that ACHAC recommends that section 47 of the ALR Act is amended and that
this provision is transitioned so that in exercising the new ACH Act has the single
function for empowerment of Aboriginal people to enter into any agreements to
permit hunting, fishing in accordance with the relevant Aboriginal Cultural Heritage
Map and Plan of Management.
Preamble and Definition
Preamble - ACHAC welcomes the deliberate language and intent used in the
proposed preamble of the new ACH Act as provided in the Government response
paper. However, ACHAC recommends that the following amendment be made to
the preamble to ensure its readability and to provide certainty, by legislative
entrenchment, of the intent, purpose and objectives of the Government and the
legislation itself in its implementation and operationalisation.
Amend the proposed Objectives to read:
The legislation seeks to protect and enshrine the following 4 critical values as
identified as important to the Aboriginal people of NSW:
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Aboriginal spiritual and cultural heritage values exist in the land, waters
and natural resources of NSW;
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ACHAC also recommends that the ACH Act include definitions of terms used within
ACH Act and that those definitions need to include and provide a definition of
‘natural resources’ i.e. plants, animals and biodiversity values within the landscape.
Consistent with the position of ACHAC that Aboriginal people must be the primary
determinants of those decisions that may affect Aboriginal cultural heritage,
Aboriginal people must also be the primary determinants of the cultural values of, or
contained with, natural resources.
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Definition - Subject to the above amendments to the preamble and inclusion of
definitions within the Act, ACHAC support the Government proposed definition of
ACH.
Local ACH Committees – “Who Speaks for Country”
ACHAC strongly believe that the process of recognising and respecting cultural
association and connection, and resolving ‘who speaks for Country’, is important to
assist in the respect for Aboriginal cultural heritage, improving and maintaining
relationships, and resolving many issues related to Aboriginal cultural heritage
management in NSW – for not only Aboriginal people, but also for all levels of
governments and the private and industry sectors.
Resolving this important, albeit historically complex and contentious, question in a
manner that is culturally appropriate, practical and unambiguous is fundamental to
the successful creation and implementation of any new Aboriginal Cultural Heritage
Act, the wellbeing of Aboriginal people in NSW and for ensuring ongoing
appropriate management and protection of Aboriginal cultural heritage both now
and into the future.
ACHAC was adamant within its Phase 1 submission to the ACH reform process that it
must only be those appropriate Aboriginal Elders or their delegates/nominees that
have authority to make any decisions that affect Aboriginal culture and heritage.
ACHAC has reviewed and revisited their former position following the release and
review of information provided during Phase 2; and release and review of the NSW
Government proposal, and hearing a variety of views expressed by Aboriginal
communities, industry and Government agencies during the Phase 3 consultation
process.
ACHAC agree with the majority of the proposed members of the Local ACH
Committees, however, ACHAC recommend the following:
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Aboriginal people recognised though a Native Title determination;
Aboriginal people recognised through an Indigenous Land Use Agreement
registered under the Native Title Act 1993; and
Aboriginal people identified as Aboriginal Owners under the Aboriginal Land
Rights Act 1983.
Native title claimants, supported by a strong evidentiary basis in addition to
their native title claim information.
It is important to note that ACHAC believes, and recommends, that in addition
to meeting the legislative requirements for inclusion on a Local ACH
Committee, it is important that those Aboriginal people must also be able to
demonstrate an understanding of local and state heritage management,
planning and environmental processes or have the ability to under such a role
with the assistance of the NSW Heritage Office.
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It is ACHACs submission that those people identified as members of Local ACH
Committees must be incorporated as body corporates and must also be
empowered to manage, advocate and decide on matters affecting the culture
and heritage within their Country at either a local or regional level.
ACHAC also recommends that the NSW Government ensure that each Local ACH
Committee is adequately resourced to ensure that each Local ACH Committee is
viable and will continue such funding until such time the Local ACH Committee is
self-sufficient and sustainable.
ACHAC also recommends that the state wide ACHAC, as proposed in the NSW
Government model, be adequately resourced to fulfil its legislative functions and be
appropriately empowered to consult with, and then provide community input and
cultural knowledge directly to the relevant Minister on the appointment of Local
ACH Committees and that of the appointment of ACHAC members in the event of
vacancies and subsequent appointments.
Elders - ACHAC maintain that those Elders whom have been culturally entrusted to
make decisions, based on customary lore and that have the authority, which has
been bestowed upon them by their communities, must play a significant role in any
form of composition of any future Local ACH Committees structures in NSW.
The inclusion of Elders in the Government proposed model for the Local ACH
Committee is strongly welcomed by the ACHAC.
It is still the view of ACHAC that priority for membership of Local ACH Committees
should be given to Elders in communities whom have been culturally initiated or
participated in appropriate cultural ceremonies which provide them with the
cultural authority to speak on behalf of the community and the future management
and custodianship of cultural places, objects or cultural intellectual property.
However, ACHAC recognise that with the passage of time and as a result of the
irreversible impacts of past practices and policies of governments, there is often,
and may continue to be, difficulty in ascertaining and recognising the most
appropriate Elder or representative to make decisions or to accurately and
appropriately convey the ACH views of the community.
ACHAC are adamant that Aboriginal people are best placed to make decisions
that may or may not affect their cultural heritage and their community wellbeing,
and appropriate Aboriginal people should have legal recognition of their cultural
rights to:
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Be responsible for protection, management and promotion of ACH, and
Be the primary determinants of the significance of their ACH.
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ACHAC are adamant that the Local ACH Committee decision making processes
need to be guided by a strong, clear, enforceable and culturally appropriate
legislative regime that recognises that Elders, both male and female, whom are
culturally authorised by their cultural status and community, are afforded both their
legitimate cultural and legal respect to determine the future management and
custodianship of Aboriginal culture and heritage.
Local ACH Committees must be empowered and entrusted to make decisions,
including entering into Project Agreements, without interference from external
influences. Decisions must be undertaken by consensus, within cultural and legal
parameters and with the guidance and support of the Heritage Division (where
appropriate).
ACHAC are firm in their position that Local ACH Committee must be able to be free
from unnecessary constraints, whilst nevertheless subject to any applicable laws, to
truly exercise ‘self determination’ for the betterment of their communities.
The ACHAC appreciates and understands that there are current processes within
both the Aboriginal Land Rights Act and the National Parks and Wildlife Act that
provides evidence of existing operational legislative provisions that are currently
available to resolve “who speaks for Country” and to appropriately respect Elders
and their descendants and nominees if applied broadly across NSW. The ACHAC
position on this is discussed throughout this submission.
Aboriginal Owners – Aboriginal Land Rights Act 1983 - The ACHAC are aware
culturally appropriate legal recognition of Elders and their descendants can occur
through registration as an “Aboriginal Owner” in accordance with section 170 and
section 171 of the Aboriginal Land Rights Act.
It is the view of ACHAC that this legislative mechanism has been underutilised for
various reasons, including limitation on funding and resources as well as the
prohibitive priority status placed on certain lands within NSW. The NSW Government
has prioritised the application of the Aboriginal Owner registration provisions to those
lands that are listed on Schedule 14 of the National Parks and Wildlife Act (NPW Act)
and those lands subject to section 36A of the Aboriginal Land Rights Act (ALR Act).
It is the view of ACHAC that limiting the Registration of Aboriginal Owners to lands
listed on Schedule 14 of NPW Act and to section 36A of the ALR Act has limited the
opportunity and rights of Aboriginal people to be legally recognised as having
cultural connection and association to Country and limited the NSW Governments
ability to work with Aboriginal people to resolve “who speaks for Country” across
NSW in a culturally appropriate way.
The inclusion of Registered Aboriginal Owners in the Government proposed model is
strongly supported and welcomed by the ACHAC.
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ACHAC strongly believe that those Aboriginal people whom have been duly
assessed and registered as Aboriginal Owners have a cultural and legal entitlement
to be appointed as members of the Local ACH Committee in their respective
boundaries.
Although ACHAC strongly support the inclusion of Registered Aboriginal Owners as
members of Local ACH Committees, there are a number of significant concerns that
the ACHAC have in relation to the lack of funding and resources currently
committed in the identification and registration process of Aboriginal Owners and
prioritisation process for Schedule 14 lands and those lands subject to section 36A of
the Aboriginal Land Rights Act (ALR Act).
ACHAC recommend that, given the scale and complexities associated with this
widely accepted and supported registration process, that the NSW Government
commits to ensuring that appropriate resources are allocated and guaranteed to
support its implementation prior to the commencement of the ACH Act to identify
and recognise those people as appropriate to be members of the Local ACH
Committees.
A further concern that the ACHAC have is not only the resources required but also
the time and navigation of the complex issues in our Aboriginal communities.
Therefore it is recommended that existing provisions within current legislative
frameworks be utilised in assisting the identification, assessment and registration
process of Aboriginal Owners.
Such a mechanism is currently provided for in the National Parks and Wildlife Act.
Negotiation panel - National Parks and Wildlife Act 1974 - section 71G of the NPW
Act provides a process to appoint a negotiating panel to represent Aboriginal
persons who have a cultural association with the lands in the event that there are no
currently registered Aboriginal Owners. This process could be adapted for use in the
new ACH legislation for the purposes of temporarily appointing Aboriginal people
with cultural association and connection to “speak for Country” until such time as a
rigorous state wide Aboriginal Owner registration process has been undertaken.
Adopting key principles of existing processes into new legislation and policy –
ACHAC submit that the process for Aboriginal Owner registration under section 170
ALR Act and for appointing negotiation panels under section 71G NPW Act are
rigorous and culturally appropriate through the requirement that individuals or
groups of people must demonstrate who they are and where they come from via
evidence of genealogy.
ACHAC submit that the NSW Government currently has the ability to recognise
cultural association and connection to Country through the above two discussed
processes, and note that the NSW Government has previously undertaken both
processes with success.
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ACHAC are dismayed, that despite the NSW Government’s ability to learn from past
implementation of both legislative mechanisms to resolve a fundamental issue
affecting Aboriginal people in NSW, the NSW Government has continued to restrict
the use of both these processes to lands listed on Schedule 14 of the National Parks
and Wildlife Act. Unfortunately, despite the successful implementation of both
processes the NSW Government has not applied lessons learned from
implementation of these processes to inform development of similar processes that
can be applied across all of NSW. Nor has the NSW Government incorporated the
above-discussed principles into a government ACH consultation policy or guideline.
ACHAC recommend that the NSW Government consider key principles from the
Aboriginal Owner registration process under section 170 ALR Act and for the process
for appointing negotiation panels under section 71G NPW Act when considering
preparatory and transitional arrangements for the enactment of the ACH Act.
Native Title Claimants - ACHAC understands that native title can not only be a highly
litigious process both can also take a significant toll on our communities and impact
on the relationships with the private sector and the government. ACHAC recognises
that, although there are legislative means by which individuals and parties can be
claimants to native title and receive statutory negotiation rights on certain land-use
activities, the process for becoming a registered Native Title claimant does not
resolve, with either legal or culturally certainty, ‘who speaks for Country’. It is the
position of ACHAC that registration as a native title claimant is an administrative
process that requires the provision of information to meet 12 conditions of the
registration test. It is important to note, and is evidenced in material provided by the
National Native Title Tribunal, that the registration process and ‘test’ does not assess
the validity of the material or require evidence to support the Native Title claim from
the native title claimant or claimants.
Therefore, the procedure of applying and fulfilling the 12-point Native Title
registration test does not assess validity of a native title claim, test any evidence or
assertions nor does it provide for a determination of who holds native claims for a
particular area.
The inclusion of Native Title claimants in the Government proposed model for Local
ACH Committees is supported by ACHAC subject to the following additional criteria:
Native title claimants must submit, in addition their native title claim information, a
strong genealogy evidentiary basis, similar to that required under section 71G of the
NPW Act and section 170 of the ALR Act.
Local Aboriginal Land Councils – ACHAC is aware that Local Aboriginal Land
Councils are membership based and that membership does not require cultural
association with the lands within the Local Aboriginal Land Council boundary.
The inclusion of Local Aboriginal Land Councils in the Government proposed model
for Local ACH Committees is not supported by ACHAC. Individual Local Aboriginal
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Land Council members that can demonstrate that they are Elders, registered
Aboriginal Owners or Native Title holders will be eligible for membership of the Local
ACH Committees.
Adopting key principles of existing processes into new legislation and policy –
ACHAC submit that the processes for Aboriginal Owner registration under section
170 ALR Act and for appointing negotiation panels under section 71G NPW Act are
rigorous and culturally appropriate through the requirement that individuals or
groups of people must demonstrate who they are and where they come from via
evidence of genealogy.
ACHAC submit that the NSW Government currently has the ability to recognise
cultural association and connection to Country through the above two discussed
legislative processes, and note that the NSW Government has previously undertaken
both processes with success.
ACHAC are dismayed, that despite the NSW Government’s ability to learn from past
implementation of both legislative mechanisms to resolve a fundamental issue
affecting Aboriginal people in NSW, the NSW Government has continued to restrict
the use of both these processes to lands listed on Schedule 14 of the National Parks
and Wildlife Act. Unfortunately, despite the successful implementation of both
processes the NSW Government has not applied lessons learned from
implementation of these processes to inform development of similar processes that
can be applied across all of NSW. Nor has the NSW Government incorporated the
above-discussed principles into a government ACH consultation policy or guideline.
ACHAC recommend that the NSW Government consider key principles from the
Aboriginal Owner registration process under section 170 ALR Act and for the process
for appointing negotiation panels under section 71G NPW Act when considering
preparatory and transitional arrangements for enactment of the ACH Act.
Local ACH Committees – Proposed Boundaries
The majority of ACHAC members recommend that any proposed boundaries are to
be assessed through the initial investment by the NSW Government in the
implementation of the new ACH Act and when considering processes for
preparatory and transitional arrangements before enactment of the ACH Act.
Furthermore, the majority of the ACHAC members recommend that any proposed
boundaries are to be determined and based on, as far as practicable, on the
traditional cultural boundaries of the recognised Aboriginal people in their
respective cultural boundary areas, following a registration process.
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Therefore, the majority of the ACHAC members object to all four (4) boundaries as
proposed and strongly recommend that any future boundaries are developed
based on traditional customs and lore’s and customs.
It is ACHACs recommendation that thorough research must be undertaken to
establish a minimum baseline of cultural boundaries, that is, what has been
undertaken to date and invest the time and money in developing consistent and
agreed upon cultural boundaries as assisted and determined by the initial
registration and mapping processes.
It is important to note that although it is submitted that the overwhelming majority of
the members of ACHAC hold the above outlined views, there are some members of
ACHAC whom believe that the issue relating to boundaries requires further
consideration in the context of their own circumstances and community aspirations
and reserved the right to submit to the Government an alternative position either as
individuals or representatives of their own community organisations.
It is ACHACs recommendation that once the development and approval of cultural
boundary maps have been undertaken, the NSW government mandates that such
maps be incorporated into either Local or Regional Government and Shire
boundary maps. ACHAC are also of the strong view that in the development of ACH
Maps and Plans of Management, that the information contained within and used
are afforded adequate protection from both a cultural knowledge perspective and
an intellectual property and financial perspective in accordance with applicable
State and Commonwealth law.
Categories of Aboriginal Cultural Heritage significance
ACHAC recommends, in accordance with the NSW Governments intention to
create stand-alone ACH legislation for appropriate protection, management and
promotion of ACH, that Aboriginal people that meet the relevant criteria to be
members of duly constituted Local ACH Committees are the primary determinants
of Aboriginal cultural heritage significance, the providers of cultural heritage
knowledge and the key decision makers about management of their respective
sites, objects and values within their cultural boundaries.
ACHAC makes this recommendation with a full and comprehensive understanding
and appreciation of the reality of the current landscape from a cultural, land use
planning and socio-economic perspective, and has done so throughout all Phases
of the reform process to date. Furthermore, ACHAC is fully informed, from a practical
standpoint, in relation to the rationale of the NSW Governments proposal to create
categories of ACH significance. ACHAC also understands that for both social and
economic reasons the development and utilisation of the lands in NSW will continue;
and that there could potentially be ACH management and socio-economic
benefits as a result of the creation of ACH value categories in the new ACH Act.
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It is important to note that despite ACHAC being of the view that all ACH and land
in NSW and elsewhere in Australia is of cultural value and importance to Aboriginal
people, ACHAC are also of the view that a pragmatic consideration of the NSW
Government proposal to create categories of ACH significance is required. This
includes recognising that the NSW Government proposal provides Local ACH
Committees with the ability to negotiate outcomes, resulting from impacts to ACH
from the social and economic growth of NSW, which could contribute to alleviating
disadvantage. For example, negotiated outcomes could support the provision of
employment and economic opportunities, including establishment of ACH learning
centres, cultural tourism opportunities and scholarships for youth. As such, those
Local ACH Committees should not be unfairly restricted or prohibited in decision
making processes that could affect ACH in their respective boundaries if they
decide to negotiate and enter into Project agreements that they believe could
contribute to the social, economic and cultural benefit of their communities.
In support of this pragmatic view, ACHAC are of the firm view that, in many cases,
the significance of ACH and the values attached therein are subjective and that
either as individuals or as a collective, Local ACH Committees must be able to
exercise responsibilities in accordance with their internal right to self determination
(within a requisite legal and administrative frameworks as appropriate).
ACHAC support the NSW Government proposed ACH categories subject to the
recommendation that the NSW Government further consider the practicality of
including an additional category similar to that in other jurisdictions, namely that of
the United Kingdom and their “Monuments” category. It is recommended that the
Government research and develop a new category entitled “Sacred” to ensure
those irreplaceable cultural sites or objects that are unique and rare are not
disturbed or destroyed and are protected in perpetuity.
ACH information - ACHAC recognises that there is a significant amount of ACH
information currently available, primarily recorded by archaeologists, and potentially
missing important cultural information. All previously recorded ACH information
needs verification for accuracy as well as to assist in the identification of where there
are information gaps. It is understood that that this would be a major undertaking
and would require significant enhancement of resources. Therefore, given the scale
of this potential process, the NSW Government must commit to the investment of
significant upfront and additional resources to ensure certainty for all stakeholders
concerned.
Equitable access to ACH support and benefits
ACHAC recognises that the proposed Project Agreements proposed in the NSW
Government model can provide for negotiated outcomes that support ongoing
management of ACH values. It is also recognised that when operational the new
ACH Act could provide significant social and economic benefits for Aboriginal
communities. However, ACHAC is concerned that not all communities will have
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equal opportunities to negotiate cultural, social and economic outcomes from
Project Agreements.
ACHAC recommend that the NSW Government consider the development of an
ACH Trust Fund, implemented by both Local ACH Committees and the overarching
ACHAC at a statewide level, to support management of ACH values and objects for
those Aboriginal communities with limited opportunities to negotiate Project
Agreement outcomes.
Broadly, from an operational perspective, the development of an ACH Trust Fund
would be legislatively restricted and would only to be used for prescribed ACH
initiatives. An ACH Trust Fund could be established and maintained in a specified
bank account that would hold funds derived from:
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Project Agreement negotiations;
Successful submissions to Government for grants or projects to remedy issues
identified through annual reporting and reviews of the Aboriginal Cultural
Heritage Register and the State of the Aboriginal Cultural Heritage Report;
and
Donations and bequests from individuals and the private sector as well as any
income fund raising initiatives.
Importantly, ACH Trust Fund must be implemented defensibly and would be required
to managed and administered in accordance with prescribed minimum standards
and guidelines within the ACH Act as well as being subject to any applicable laws of
the Commonwealth and NSW.
Tools to protection and manage ACH
ACHAC supports the NSW Government proposals to create new, as well as maintain,
and strengthen a number of tools and penalties to assist with and support the
protection, management and promotion of Aboriginal cultural heritage. ACHAC
strongly welcomes the removal of AHIPs and the introduction of Project Agreements
subject to the condition that existing provisions relating to penalties must continue
where applicable.
ACHAC has concerns that the new ACH legislation will not be enforced until the
mapping and plans of management and Local ACH Committees are established
and recommends that that appropriate safeguards through the transitional process
are put in place and enforced.
ACHAC agree that the existing penalties, offences, defences and powers relating to
Aboriginal cultural heritage should support the protection, conservation and
management of ACH values.
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ACHAC recommend that section 87B of the NPW Act, relating to exemptions to Part
6 (penalties and offences) of that Act for the purposes of undertaking traditional
Aboriginal cultural activities, is transitioned to the new ACH Act.
ACHAC recommends that, in addition to the tools and processes proposed, the NSW
Government must also ensure that each Local ACH Committee is provided with
ACH Officers with skills that will support the Committee to negotiate Project
Agreements, develop and implement projects and funding agreements and
undertake ACH protection and conservation functions.
ACHAC also recommends that the NSW Government ensures that the Heritage
Division are also well-resourced and, importantly, appropriately qualified with a
specific focus on regulatory staff being responsible for enforcement and
compliance of the ACH Act with skills in Aboriginal cultural heritage conservation
investigations, legislative compliance and enforcement and ACH Officers
responsible for supporting the Local ACH Committees with skills in negotiation,
project management, and identification, protection, management and promotion
of ACH
CONCLUSION
ACHAC makes this submission to assist in the development of legislation that will not
only better protect Aboriginal cultural heritage but will also achieve a balance of
appropriate socio-economic benefits for the current and future generations of
Aboriginal people, industry, the private sector, the NSW Government and all people
of NSW.
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Contact:
Kylie Seretis
Phone:
02 9873 8570
Fax:
02 9873 899
Email: [email protected]
Aboriginal Culture and Heritage Reform Secretariat
NSW Office of Environment and Heritage
PO Box 1967 Hurstville BC
NSW 1481
28 Mar. 14
To the Secretariat,
Reforming the Aboriginal Cultural Heritage System in NSW
The Heritage Council welcomes, and strongly supports, the development of standalone legislation for the protection of Aboriginal cultural heritage in New South Wales.
The Heritage Council has worked for more than thirty years to achieve positive
outcomes for the state’s heritage and has overseen the listing of over 1600 sites on
the State Heritage Register (SHR) including places of significance to the Aboriginal
community such as the Brewarrina Aboriginal fish traps. Additionally the Heritage
Council has successfully negotiated integrated development approvals on hundreds of
development sites in NSW that have included items listed on the SHR.
New definitions for Aboriginal Cultural Heritage
The Heritage Council supports new definitions for Aboriginal Cultural heritage but
strongly recommends any new definitions should be clear on what is protected, how it
can be protected and ensure that any breaches are enforceable.
The Protection and Conservation of Aboriginal Cultural Heritage
The Heritage Council notes that only a small portion of Aboriginal cultural heritage in
NSW is currently listed in the heritage schedules of local environmental plans, on the
State Heritage Register or as Aboriginal places.
Aboriginal cultural heritage studies must therefore be undertaken proactively to
identify Aboriginal cultural heritage values and suitably develop the proposed Plans of
Management (PoM). These studies could then be used to inform strategic planning
documents, local plans and the framing of development controls under the planning
system to ensure the early protection and management of Aboriginal cultural heritage
that has been identified as significant to Aboriginal people.
The PoM should include clear descriptions of the significance and values attributed to
Aboriginal cultural heritage that is proposed to be protected under this Act.
Helping the community conserve our heritage
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Local people making local decisions
The Heritage Council has concerns with the use of the term Advisory Committee in
the Aboriginal Cultural Heritage Advisory Committee (ACHAC). Advisory Committee
suggests advice can be sought and potentially ignored. The Heritage Council strongly
endorses that under any new administrative arrangements the ACHAC should be
known as the Aboriginal Heritage Council (AHC) and it should have a similar authority
and role as the Heritage Council of NSW under the Heritage Act 1977. Similarly the
Local Aboriginal Cultural Heritage Committees (LACHC) could become Local
Aboriginal Heritage Councils (LAHC).
Regardless of the names given, the ACHAC and LACHC (or any other groups
established as part of the reform) must be provided with the appropriate support,
resources and tools to establish the process and meaningfully engage the wider
Aboriginal communities in the new system. Additionally the Heritage Division must be
appropriately resourced to provide assistance to ACHAC and the LACHC.
The number of LACHC should be administratively manageable to ensure so they can
be properly supported. The Heritage Council recommends these LACHC should
recognise cultural groups and boundaries first, and Local Government Areas second.
Drawing maps can be problematic and cause long term issues, the Reform process
needs sensitively construct and map LACHC boundaries.
The wider Aboriginal community within an LACHC area must be engaged in the new
system. Community consultation models must be developed that facilitate the
involvement of Aboriginal communities in the process.
Tools to support the Protection, Conservation and Management of Aboriginal Cultural
Heritage
The assessment of Aboriginal cultural heritage, through the development of PoM,
should include a wider consideration of landscapes and areas, and not simply be
limited to the identification of sites. The preparation of PoM including oral histories,
mapping and predictive modelling should be undertaken in a systematic and timely
fashion so that their findings can inform a hierarchy of strategic plans and
development assessments. The PoM should include predictive modelling to determine
potential for Aboriginal objects, places and features on lands and should not be limited
to those in areas under potential threat of development.
The cost of the work detailed in the proposed model put forward by Government
should not be underestimated. Sufficient resources must be committed to establish
the evidence base that will underpin the Plans of Management proposed in the new
system.
Additionally, the Government must commit adequate time and resources to ensure
appropriate frameworks and systems are in place to manage/ transition the proposed
changes. Aboriginal communities must be provided with the appropriate resources
and tools they need to properly engage and participate in these heritage (and
planning) processes.
Helping the community conserve our heritage
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Links to the planning process
The Heritage Council supports clear links between the proposed Aboriginal heritage
legislation and the planning process and notes if quality outcomes are to be achieved
for Aboriginal cultural heritage there must be strong connection between Aboriginal
community consultation and strategic planning in the planning system.
The Heritage Council recommends that the proposed model needs to work with the
existing planning processes but would need to have the ability to be adopted/ work
with a new planning legislation (or any amendments to the existing). This includes
State Significant Infrastructure (SSI) and State Significant Development (SSD), which
currently remove the requirements of the National Parks and Wildlife Act 1974 in
respect of the need to obtain Aboriginal heritage impact permits (AHIPs) to impact
Aboriginal objects (including Aboriginal human remains) and Aboriginal places.
The role and powers of ACHAC and the LACHC in regard to SSI and SSD must be
clarified so that Government decision making about such projects are adequately
informed. At the very least, an obligation to consult with ACHAC and the LACHC must
be a requirement. Where offences and defences are removed under SSI and SSD, an
appropriate and commensurate offence/ defence should be provided under the
planning system.
Significance
The Heritage Council is of the view that establishing criteria is critical to adequately
protect Aboriginal cultural values associated with places (including landscapes and
area). This criteria does not have to remove or limit how an LACHC identifies, defines
and assesses the values of heritage objects, places and landscapes, rather it can
provide a clear and defined framework for this to occur. Additionally it provides
consistency and rigour to how matters are considered while ensuring that any noncompliance with statutory processes can appropriately dealt with.
Protecting culture and the past is always difficult and sometimes controversial but
important to our identity. For Aboriginal cultural heritage, one of the world longest
living heritages which have suffered greatly since contact, identifying, protecting and
promoting Aboriginal identity is of the utmost importance.
The Heritage Council welcomes the opportunity to discuss these changes further with
the Secretariat and the Office of Environment and Heritage. Please contact me or the
Heritage Division, Office of Environment and Heritage Director to discuss this further
on (02) 9873 8500.
Yours faithfully
Professor Lawrence Nield
Chairman - Heritage Council of NSW
Helping the community conserve our heritage
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Reforming the Aboriginal Cultural Heritage System NSW:
The Office of the Registrar, Aboriginal Land Rights Act 1983 is a peak government
organisation with regulatory functions relating to Aboriginal Cultural Heritage
stemming from the Aboriginal Land Rights Act 1983 and the National Parks and
Wildlife Act 1974. As such we thank you for the opportunity to response to the NSW
Government’s recent Aboriginal Cultural Heritage Reform Working Party
recommendations and public consultation on Aboriginal cultural heritage reform.
The Office of the Registrar, Aboriginal Land Rights Act 1983 (ORALRA) has statutory
functions and ancillary obligations to comply with regarding Aboriginal cultural
heritage. The statutory functions are broadly listed in section 165 of the Aboriginal
Land Rights Act 1983 (ALRA), but the Registrar also has functions and
responsibilities under some other sections of that Act and the National Parks and
Wildlife Act. Through these functions the Registrar aims to support, strengthen and
promote Aboriginal identity, culture and heritage through working with Local
Aboriginal Land Councils, Aboriginal owners, the wider Aboriginal community and
other NSW government agencies.
As a consequence, the ORALRA provides key comments in relation to the proposals
and recommendations in reforming the Aboriginal Cultural Heritage (ACH) system in
NSW that have been the subject of public consultation, as they relate to Registrar’s
statutory functions under the ALRA and other Acts, in the interests of Aboriginal
people in NSW.
We are mindful that specific aspects of the proposed ACH process are be best dealt
with by others directly affected by the proposals and as such, we do not make
comment on a number of these matters.
The ORALRA welcomes the reform of the ACH system in NSW and agrees that a
review of the system is long overdue. The principles of the NSW Government’s
proposed model are aspirational and justified. While it is unfortunate that such
fundamental values require integration into the current cultural heritage legislative
and policy system in NSW, it is timely that changes are made to improve cultural
heritage outcomes.
The ORALRA supports stand alone ACH legislation as a means to “celebrate,
promote, protect and better manage Aboriginal cultural values in NSW.” Such
legislation must be robust, workable and supported by policy which delivers the
promises it purports. At the very least, Aboriginal cultural heritage should be removed
from the National Parks and Wildlife Act 1974 and subsumed into the Heritage Act
1977. The test of any legislative change is its “workability”, transparency and
fairness.
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In our observation, Aboriginal people throughout NSW have commented in the public
consultation arena and the LALC network that the Government’s proposed model is
too broad and as a result, Aboriginal communities have found it very hard to respond
to. There is already unambiguous suspicion amongst Aboriginal communities about a
new model that professes “to recognise the different needs and interests of groups
within the whole community and to deliver social, economic and environmental
outcomes in the best interests of all people in NSW”.
To date, there has not been adequate consideration of the value of Aboriginal
cultural heritage in NSW nor a satisfactory way for the Aboriginal community to be
heard. The suspicion that has been voiced throughout the consultation process
brings to bear the frustration of Aboriginal people with government in putting the
interest of business first and the Aboriginal and broader community last; that is the
government’s challenge in formulating legislative change – “balance” in the
Aboriginal communities eyes is fraught with deep seeded doubt.
In general the ORALRA supports the broadening of the definitions and objectives
in the ACH system. The suitability of the definitions and objectives is best determined
by the Aboriginal community in NSW.
The ORALRA welcomes the concept of considering cultural landscapes rather than
cultural object in the landscape.
We note the government does not support the establishment of an independent
Aboriginal Cultural Heritage Commission; we believe this is a missed opportunity to
empower Aboriginal people to make significant decisions regarding cultural heritage.
This is what the Aboriginal community, in our observation, desire.
A significant role for an independent Aboriginal body in in the administrative
structure of the proposed ACH System is key.
The ORALRA agrees with the concept of local Aboriginal people making
decisions about their land and their cultural heritage, however we strongly
recommend this aspect of the ACH reform is subject to greater consideration and
Aboriginal community input; as it stands it does not address the “consultation”
problem exacerbated in the 2010 Aboriginal cultural heritage consultation requirements
for proponents: Part 6 National Parks and Wildlife Act 1974. In our opinion it does not
improve the current situation and if anything, takes an excellent concept of giving
more power to Aboriginal communities but stops short of ameliorating the problem.
The concept of Aboriginal cultural authority or “Who speaks for Country” requires
further and careful consideration. The consultation feedback from the ACH
government model will prove that this issue is by far the most divisive within the
Aboriginal community.
It is understood that developers, practitioners and government find the current
system of cultural heritage consultation frustrating however, any proposed model
which aims to definitively address who has Aboriginal cultural authority to speak for
Country involves an in depth discussion with Aboriginal communities at a grass roots
level. It is an issue that naturally evokes passionate views. If the ACH proposal seeks
to tackle this issue then it must be approached at a “grassroots” community level and
they must be satisfied; it is not a matter for government but one for the Aboriginal
community who must be adequately resourced to undertake the responsibility.
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We support the formation of local groups made up of Aboriginal people to deal with
cultural heritage. It must be accountable to the Aboriginal community it serves, able
to draw knowledge and opinion from that community at any time, and be adequately
resourced.
This concept needs capacity to obtain Aboriginal community input from the
inception; government acknowledges the necessity of early engagement – get this
right or it will fail dismally.
The model immediately excludes the Local Aboriginal Land Council (LALC) network
in any significant decision making process and states “in recognition that changes to
the ALR Act are underway and that there are many other Aboriginal people who do
not belong to a LALC but who do have a cultural connection to Country, the
proposed Local ACH Committees will expand upon section 82(2)(b) and (c) and
section 170 of the ALR Act and include non-LALC members and representatives of
people with cultural connection to their Country”. We note that we are not aware of
any proposed changes to the ALR Act that would diminish LALCs or the New South
Wales Aboriginal Land Council’s functions in Aboriginal cultural heritage matters. Any
information OEH can provide us about such legislative change would be welcome.
LALCs appear to be excluded in decision making processes at every level. In doing
this, the government disregards:
a 22,500 strong membership in 119 organisations across NSW providing
services to and representing Aboriginal people,
the largest Aboriginal land owner in NSW,
the largest network of Aboriginal people with “relevant skills, knowledge of
planning and legislation and experience in ACH matters”, and
the largest peak Aboriginal body in Australia.
The proposed ACH model instead renders the most important Aboriginal network in
NSW with legislated authority to deal with cultural heritage, voiceless. In proposing
this, the government has chosen to ignore the strong support for LALC involvement
and utilization of the LALC network in the ACH system made in the Working Party
recommendations. Most importantly, local decisions should be framed within a strong
administrative and governance structure – the LALC system provides this.
The LALC network is based within the ALRA which provides an administrative and
governance framework. This structure is sustained by the New South Wales
Aboriginal Land Council (NSWALC) providing both financial and administrative
support. It should be remembered that this network has thirty years experience under
its belt.
The LALC network has a legislated function to deal with culture and heritage matters
within their boundaries. The ALRA outlines Aboriginal land council’s legislative right
and duty to care for the cultural heritage within their boundaries [s52(4)] and to deny
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a land council this right threatens the NSW Parliament’s intent in providing Aboriginal
Land Councils with this right/function.
It is the ORALRA’s opinion that this is unacceptable and imprudent; Aboriginal Land
Councils must be included in any discussion involving cultural heritage matters as a
matter of course. Local Aboriginal Land Council’s Community Land and Business
Plans, in accordance with the s83(1)(d) of the ALRA must include their strategies in
relation to the culture and heritage within their boundaries and these are reported on
by the NSWALC Zone offices.
If used correctly and resourced properly, the LALC network is the gateway into the
Aboriginal community. In saying this, we do not suggest they are the “one stop shop”
in terms of culture and heritage but they are a practical place at which to start to
engage with the Aboriginal Community in NSW; to ignore this network is simply
foolish.
LALCs, NSWALC and the NSWALC Zone Offices act as a conduit between
government, business and the Aboriginal community. Contrary to public opinion, the
majority of land councils do business effectively while a minority struggle to meet
expectations - this is the challenge of community run organisations. However it
should be remembered that land councils, for the most part, function because of
Aboriginal community volunteers on Boards within the councils. It should be noted
that the NSWALC Zone Offices function extremely well and should also be
considered in alternative modeling; including engagement, reporting etc at a regional
level.
On this basis, we also believe the exclusion of NSWALC in any level of the ACH
structure is unconsidered.
The ORALRA strongly supports the legislated rights of Native Title holders,
registered Aboriginal owners and Local Aboriginal Land Councils to be included in
any discussion involving cultural authority in NSW. The inclusion of these three
groups is undoubtedly key to the success of any local decision making group
proposal.
We err on the side of caution at the inclusion of Native title claimantswhether or not
they have
passed the “registration test” and believe that the addition of
“representatives of family groups with cultural authority” in the cultural heritage
discussion simply replicates the problem which exists for example, in the Hunter
Valley.
In short, “local decision making groups” requires more thought.
The roles and responsibilities of the proposed Local ACH Committees are
colossal. These include:
•
identifying the significance of the ACH values in their local area using set
criteria to help guide decisions and provide consistency;
•
liaising with the local people they represent before deciding what is to be
included in the ACH Maps;
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•
liaising with the local people they represent before deciding on the
information required in their Plans of Management;
•
deciding which areas to nominate for formal protection (Aboriginal Places or
heritage listing);
•
deciding what conditions should be negotiated for each individual Project
Agreement;
•
deciding what cultural values are required to continue practising culture
locally;
•
deciding and negotiating how impacts will be managed for each individual
Project Agreement;
•
deciding on local priorities to list in the Plan of Management for conservation,
protection and maintenance activities; and
•
deciding on which programs will best meet the local priorities listed in the
Plan of Management.
It is the ORALRA’s opinion that these roles and responsibilities will place enormous
pressure on a decision making community sourced group who risk not being
adequately supported or funded. We note that their private sector counterparts will
undoubtedly sit within well resourced and budget driven organisations. We note that
a decision making community group will subject to commercial timeframes and may
face great expectations from their respective community. Despite this, it would seem
that such a group must take on a vast task set without the ability to canvas the wider
Aboriginal community in these tasks or gain access to resources to assist them.
The ORALRA notes that these proposals will require substantial additional resources
in order to be implemented and be performed effectively. We do not support the
implementation of any proposals which are not adequately funded and resourced,
especially those involving the Aboriginal community. There is an implication that
Aboriginal people should care about their culture and heritage sufficiently to perform
duties/tasks as individuals or committees, voluntarily. This is unrealistic, unfair and
unacceptable.
The ACH proposals make reference to government financial grants not being
“enough to sustain new ACH conservation areas” including the funding of Local ACH
Committees. It is the ORALRA’s view that any government proposals MUST be
costed and fully funded prior to their enactment.
It is unreasonable and irresponsible for legislative change to be approved by
government without the ability to provide resources for the gargantuan tasks being
asked of the Aboriginal community in order to manage their land at the government’s
behest.
The ORALRA is mindful that some specific issues of the ACH process are best dealt
with by others in the cultural heritage industry (i.e. practitioners etc.) and as such, we
do not make specific comment on matters such as site significance and steps of the
ACH process. We do however acknowledge that Aboriginal archaeology and cultural
heritage is often unpredictable and unquantifiable. While the presence of cultural
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remains can be predicted, a workable ACH system must consider the prevalence of
a largely unknown quantity in terms of subsurface archaeology. It must therefore
ensure there are adequate safeguards in place to allow for discoveries during the life
of a development project if the management and/or preservation of Aboriginal
cultural heritage is a key principle of the ACH process.
We make the comment that Aboriginal people know that site protection is rarely
proposed in NSW.
More often than not sites are destroyed after they are researched, excavated and
artefacts collected. This is not site protection. The more sites destroyed the less
physical context of Aboriginal habitation remains in the landscape. The protection of
sites and objects perceived to be rare and highly significant will ultimately be the only
things left in the landscape. All other sites have become too commonly labeled as
piecemeal and therefore warrant destruction.
More worrying is the perception in the proposed ACH system, that all heritage
agreements are negotiable. If site protection is a truly measurable outcome of the
proposed ACH system, then the local decision makers MUST have the right to say
no and prevent site destruction.
Ultimately tougher penalties for the destruction of cultural heritage are only a useful
preventative tool if they are enforced. There have been few prosecutions bought to
bear in NSW in terms of site destruction and these have not been as a result of
meager penalties; they have been a unwillingness to prosecute. The divide between
legislative change and administrative change should not be underestimated; policy
change does not require legislative change, rather a change in attitude. In this
respect, the ORALRA asks how much legislative change is realistically required to
affect the current attitude towards the protection of cultural heritage in NSW.
The ORALRA supports the integration of ACH processes and state, regional and
local planning processes where there is meaningful engagement of the Aboriginal
community. The addition of “intangible” cultural heritage is a welcome inclusion in the
ACH system.
Increased involvement by the Aboriginal community in the initial stages of
development applications is key to real preservation of important cultural
landscapes and encourages those involved in the initial stages of a project to think
outside the square and consider preservation options.
We do make the following points regarding the proposed clear, simple and flexible
regulatory processes of the ACH process:
•
Engagement of the local Aboriginal community in an increasing number of
levels of the ACH decision-making process works when a community’s views
are respected and taken into consideration. Tokenistic consultation in terms
of “ticking a box” is not acceptable on any level of the ACH process.
•
While there is reference in the six step process to dispute resolution and an
appeals process, these aspects are not explained. Understanding the rights
of the local decision making body and the proponent in both processes are
vital. An accessible dispute resolution mechanism requires further
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consideration by the government; it is paramount to the ACH system’s
success.
•
Further, there appears to be no avenue for local Aboriginal decision making
groups to voice their outright disagreement with a proponent’s plans or
decisions where agreement cannot be reached through mediation; in such
cases under the proposed reforms, the proponent is able to proceed as per
the Plan of Management. This is not cultural heritage protection.
•
There does not appear to be any meaningful pathway for Aboriginal parties to
seek juridical redress if they are dissatisfied with the ACH process. We would
be happy to hear from OEH that such meaningful and realistic judicial
remedies will be available and if so, what those remedies will be.
•
Timeframes must be workable for all parties; given the responsibilities placed
on an Aboriginal community sourced decision making group in this process,
consultation with the wider community may have to occur. Unlike a
commercial or government organisation, the local group may not have ready
access to community people and may need to consider meetings to work
through cultural matters. We stress the great responsibility placed on the
Aboriginal community in these matters and as such, important decisions
about cultural heritage undoubtedly need to made; these take time. Again, if
the proposed model represents a desire to conserve and manage Aboriginal
cultural heritage then flexibility in the decision making process is key.
We agree that the Local ACH boundaries should follow existing statutory and
operational boundaries. The ORALRA supports Option 2 that “utilise[s] the nine
Regional Aboriginal Land [Council] boundaries (as per the ALR Act) to establish
Regional ACH Committees” may also prove a workable solution if the LALC network
is well supported. In this respect the established NSWALC Zones may provide a
structured platform for ACH groups to operate from or within. Having said this, it is
not the ORALRA’s opinion that NSWALC should fund this option should it be
successfully adopted. However, it is an option that is worthy of discussion with the
NSWALC and the LALC network.
Alternatively, Option 1 which utilises the LALC boundaries - their statutory
responsibilities would not need “to be extended to include roles that actively manage
ACH matters within their areas” - this statutory right already exists in the ALRA.
Consequently, we support the option that each “LALC would be required to form a
Local ACH Committee that includes people with cultural knowledge and connection
who may not be members of the LALC”
The ACH Reform proposals state that a “common theme in the public consultation
feedback was improving the provisions around access to Country and ownership
of ACH”.
The model suggests “Local ACH Committees, private property owners and public
land managers negotiate Project Agreements, using the ACH Maps and Plan of
Management to develop mutually agreeable outcomes. Templates and guidance for
negotiating these Project Agreements for the purposes of accessing land provide
further support to access Country. We note that s47 and 48 of the ALRA already
affords LALCs access to lands in NSW for cultural purposes.
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Interestingly, the proposal to amend “existing provisions for care and ownership,
such as transferring the ownership of Aboriginal objects under the NPW Act … to
increase the ownership or transfer of Aboriginal cultural values or objects to the Local
ACH Committee” will impinge on the existing rights of Aboriginal owners to manage
cultural heritage. The ORALRA strongly disagrees with this proposal and suggests
that it warrants further consideration. Any discussion regarding this matter MUST
involve Aboriginal owners.
The ORALRA does not support the carte blanche public access to the ACH
Register. In our observation, Community is railing against giving up cultural
information and the levels of access to this information. It should not be assumed
that cultural information will be given to government to then disseminate to the wider
community. It is our view that the ACH Register and access to it requires further
consideration.
Finally, consensus amongst Aboriginal communities on heritage issues should not be
expected by government – there is a misconception that Aboriginal people must
speak with one voice; it is not expected in government or in the wider community and
it should not expected when cultural heritage is discussed. Self-determination by the
Aboriginal community in all cultural heritage matters must be paramount.