Modernisation of cultural heritage protection legislation begins

What you need to know

• The Joint Standing Committee on Northern Australia Inquiry into the destruction of the Juukan Gorge released its final report entitled A Way Forward in October 2021.
• The Report roundly criticises the existing Federal and much of the State and Territory heritage protection regulation, calling for the Commonwealth to set minimum standards.  
• Key themes are co-design, a national definition of cultural heritage covering intangible heritage and the importance of Traditional Owner informed consent to impact on heritage. Structural biases in the Native Title Act 1993 (Cth) also received some focus.
• The former Federal Government moved quickly to begin the process for developing new cultural heritage legislation by entering into an agreement with the First Nations Heritage Protection Alliance to jointly consider and develop recommendations for reform.
• There have been no specific announcements in this space from the new Government since the election, but it is clear that First Nations issues are high on its reform agenda.

What you need to do

• Look out for further reports or papers published by the Federal Government and First Nations Protection Alliance joint working group and any invitations to participate in a consultation process.
• The law around cultural heritage is dynamic and the issues can be socially contentious.  For proponents, it is so important to allow the time and resources to get the decision making processes around project approvals right.  

The Joint Standing Committee's Way Forward Report

The Joint Standing Committee on Northern Australia Inquiry into the destruction of the Juukan Gorge released its final report entitled A Way Forward in October 2021.

This report followed the Committee's December 2020 interim report titled Never Again: Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia - Interim Report.

We wrote about the interim report and its implications in our Native Title Year in Review 2020 article The long shadow of heritage destruction: Fundamental reset of Aboriginal cultural heritage protection in Australia", 1 April 2021.

Key themes arising from the Way Forward Report

FPIC, Traditional Owner consultation and veto rights

The Way Forward Report has a strong focus on early and effective consultation with Traditional Owners that supports the principle of free, prior and informed consent (FPIC).  

For more information about FPIC see our Native Title Year in Review 2020 article "Free, prior and informed consent", 1 April 2021 and our article "A big year for FPIC – an increasing global focus on the need to secure free, prior and informed consent". 

The Report also seems to recommend that Traditional Owners have a right to veto the destruction of cultural heritage, in some circumstances.  Recommendation 3 provides that in establishing minimum standards for State and Territory heritage protections, consideration should be given to:

• decision making processes that ensure that Traditional Owners and native title holders have primary decision making power in relation to their cultural heritage; and
• an ability for Traditional Owners to withhold consent to the destruction of cultural heritage. 

This issue will be one of the most fraught aspects of the development of new legislation.  

New Commonwealth legislation for Indigenous cultural heritage protection

The Report makes sweeping recommendations for a new framework for cultural heritage protection at the national level, which should be developed through a process of co-design with Aboriginal and Torres Strait Islander peoples.  

It recommends minimum standards for State and Territory heritage protections include: 

• a definition of cultural heritage recognising both tangible and intangible heritage;
• clear processes for identifying who speaks for country;
• decision making processes that ensure Traditional Owners and native title holders have primary decision making power in relation to their cultural heritage;
• a process for the negotiation of cultural heritage management plans which reflect FPIC principles; and
• a process by which decisions can be reconsidered if significant new information about cultural heritage comes to light.

The Report also recommends that:

• the Commonwealth retain the ability to extend protection to and/or override decisions made under inadequate State or Territory protections that would destroy sites that are contrary to Aboriginal and Torres Strait Islander peoples' consent;
• Traditional Owners be able to effectively enforce Commonwealth protections through civil action; and
• the new legislation prohibit the use of clauses in agreements that prevent Traditional Owners from seeking protection through Commonwealth legislation.

Identification of correct Traditional Owners to speak for country

The Report notes the importance of identifying the correct Traditional Owners to speak for country.  However, it offers little guidance about how those parties should be identified, noting: 

• identifying the appropriate person to speak for country is complex, and may need to be jurisdictionally specific; 
• in accordance with the principles of FPIC, Traditional Owners should be empowered to choose who speaks for them and represents them; and
• where prescribed bodies corporate (PBCs) exist, it is likely that there would be support for the PBCs to be the appropriate representative organisation.  However, further transparency and accountability measures are required to ensure PBCs act appropriately and in line with community decisions and PBCs need sufficient funding in order to undertake this statutory role.

Dispute resolution / breaking deadlocks

Traditional Owners must be given a right of review or appeal of decisions.  The Report suggests that an independent National Aboriginal and Torres Strait Islander Heritage Council could be established to, amongst others, assist in mediating disputes between Indigenous peoples and proponents.

Definition of Indigenous cultural heritage and inclusion intangible cultural heritage 

The Report states that most legislation across Australia is inadequate in its definitions of cultural heritage, "focussing primarily on artefacts and history, and failing to recognise the living nature of Aboriginal and Torres Strait Islander culture".  It recommends that the definition of Indigenous cultural heritage in Federal and State legislation be expanded to recognise intangible cultural heritage, and that the Australian Government ratify the Convention for the Safeguarding of the Intangible Cultural Heritage 2003.

Currently only the Aboriginal Heritage Act 2006 (Vic) and the new Aboriginal Cultural Heritage Act 2021 (WA) expressly recognise intangible cultural heritage.  

It is inevitable that there will be amendments made to the definition of Indigenous cultural heritage in legislative frameworks around the country as each jurisdiction progresses reforms.  It is less clear is whether a national definition will be achievable or whether any jurisdiction will attempt to draw a distinction between different levels of significance in either defining or protecting Indigenous cultural heritage.

Native Title Act reform

The Report recognises the inextricable link between native title and cultural heritage, especially in regards to the important role that PBCs play in relation to decisions relating to cultural heritage management and protection.  

It concludes that the future act regime in the Native Title Act disadvantages Traditional Owners, and recommends a review of the Native Title Act to address:  

• inequalities in the negotiating position of Traditional Owners in the context of agreement making (including the right to negotiate), including addressing the principles of FPIC;
• prohibiting "gag clauses" and clauses in agreements that prevent Traditional Owners from seeking protection through Commonwealth legislation (ie gag clauses); and
• reforms to increase the transparency and accountability requirements on PBCs and Native Title Representative Bodies under the Native Title Act to require that they demonstrate adequate consultation with, and consideration of, local community views prior to agreeing to the destruction/alteration of any cultural heritage sites. 

The right to negotiate process under the Native Title Act has drawn the attention of the Committee throughout the Inquiry.  The process is said to be inconsistent with FPIC principles, given the available recourse to the National Native Title Tribunal to make a decision about whether an act may be done (ie, a mining lease granted) in the absence of consent from the relevant native title party.

Transaction costs and funding PBCs

The Way Forward Report highlighted the importance of adequate funding for Traditional Owner participation.  It recommends that the Commonwealth establish an independent fund to administer funding for PBCs under the Native Title Act.  Revenue for this fund should come from all Australian governments and proponents negotiating with PBCs.

In February 2022, the Joint Standing Committee for Northern Australia released a further report on this theme - The engagement of Traditional Owners in the economic development of northern Australia.  The new report examines the huge challenges involved in leveraging land held under land rights and native title legislation for the economic and social advancement of Indigenous communities.  It focuses on the opportunities and challenges for Traditional Owners associated with land rights, native title and other land-related agreements, especially as it relates to structure and funding of representative bodies, other Indigenous organisations and government entities.

Developments since the release of the Way Forward Report

In November 2021, the former Government's Minister for the Environment signed an agreement with the First Nations Heritage Protection Alliance (made up of Aboriginal Land Councils, Native Title Representative Bodies and Aboriginal and Torres Strait Islander Community Controlled Organisations from across Australia) to establish a joint working group to develop advice on options to implement changes for modernising Indigenous cultural heritage protections.  

The joint working group agreed to consider policy transformation, law reform, administrative improvement and the review and restructure of process, procedure and protocols. The first stage of their national consultation process commenced before the election and a Stage One Discussion Paper was published in May 2022.

The implementation plan prior to the election was to see stage two consultations, a directions report, a policy options paper, a further round of consultations and then a final options report by the end of 2022.  This timetable has already slipped and the impact of the change in government is not yet clear.  Prior to the election, the ALP committed to work with the First Nations Heritage Protection Alliance and other stakeholders to reform the national heritage protection framework, including through new stand-alone First Nations heritage protection legislation. 

Where to after the change in government?

Corporate Australia has already started adjusting its policies ahead of the Federal Government's formal legislative response.  The direction is clear.

First Nations issues are high on the new Federal Government's reform agenda.  Given its position on reconciliation and constitutional recognition, there is likely to be a greater appetite to act on cultural heritage matters.  However, the new Government has not yet made any announcements in this space.  The agenda is already very busy so it may be some time before heritage reform comes into focussed attention.

Authors: Leonie Flynn, Expertise Counsel and Clare Lawrence, Partner.