Submission

Joint Standing Committee on Northern

Inquiry into the destruction of 46,000-year-old caves at the Juukan Gorge in the region of

July 2020

GPO Box 787 Canberra ACT 2601 ● Telephone 02 6274 1111 ● Facsimile 02 6274 1666 ● www.environment.gov.au Introduction The Australian Heritage Council (the Council) makes the following submission to the Joint Standing Committee on Northern Australia inquiry into the destruction of Aboriginal heritage at Juukan Gorge, Western Australia.

The Council is a body of experts appointed by the Commonwealth Minister for the Environment under the Australian Heritage Council Act 2003 (Cth) (the AHC Act) and is the principal advisor to the Australian Government on heritage matters.

In appointing members under the Act, the Minister must ensure that 2 members are Indigenous persons with substantial experience or expertise concerning Indigenous heritage, at least one of whom represents the interests of Indigenous peoples.

The functions of the Council are set out in section 5 of the AHC Act. Of particular relevance to the Committee’s inquiry are the following functions:

 to advise the Minister for the Environment on national policies relating to heritage;

 to promote the identification, assessment, conservation and monitoring of heritage;

 to nominate places for inclusion in the National Heritage List and Commonwealth Heritage List;

 to provide advice directly to any person or body or agency either of its own initiative or at the request of the Minister.

The Council has the functions conferred by Part 15 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) regarding National and Commonwealth heritage listing and management, and Part 15A, which deals with the List of Overseas Places of Historic Significance to Australia. The Council has no statutory role under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act), which is the other main Commonwealth-level legislation relating to Indigenous heritage.

In addition, the Council leads national heritage policy coordination through annual meetings of the Heritage Chairs and Officials of Australia and New Zealand (HCOANZ), and implementation of certain actions in the Australian Heritage Strategy.

In undertaking its functions, the Council is supported by a Secretariat provided by the Department of Agriculture, Water and the Environment (the Department).

With regards to the terms of reference for the inquiry, this submission provides detailed comments relating to Items (f) to (i).

Destruction of the sites at Juukan Gorge and their significance to the Puutu, Kunti Kurrama and Pinikura people

The Australian Heritage Council was dismayed to hear of the destruction of Aboriginal cultural heritage at Juukan Gorge.

As the place is not on the National Heritage List, and has not been assessed by Council for potential inclusion on the List, the Council is not in a position to offer commentary on the specifics of the place, nor on the sequence of events leading to its destruction. The Council does not possess information on the consultation process undertaken by with Traditional Owners.

2 The Council understands that the Western Australian Government is currently conducting a review of the Aboriginal Heritage Protection Act 1972 (WA), which has included public consultation and a review of legislation of other jurisdictions. The Juukan Gorge incident demonstrates the importance of this review, and of national legislation, to ensure such an incident does not happen again.

In this regard, the Council further notes the following finding in the Interim Report of the independent reviewer of the EPBC Act by Professor Graeme Samuel AC:

The current laws that protect Indigenous cultural heritage in Australia need comprehensive review. This review should explicitly consider the role of the EPBC Act in providing national- level protections. It should also consider how comprehensive national-level protections are given effect, for example how they interact with the development assessment and approval and regional planning processes of the Act.1

In this submission, the Council notes recent activities by the Council, working through Heritage Chairs and Officials of Australia and New Zealand (HCOANZ), to ensure better protection and management of Aboriginal and Torres Strait Islander cultural heritage according to the wishes of Indigenous peoples. It also seeks to ensure engagement with Indigenous peoples on heritage matters. It also makes recommendations for the reform of the EPBC Act and other Commonwealth legislation to improve outcomes for Indigenous cultural heritage.

Best Practice Standards for Indigenous Cultural Heritage Legislation

The Heritage Chairs and Officials of Australia and New Zealand (HCOANZ) comprises representatives of all statutory heritage bodies in Australia and New Zealand.

In October 2019, the Chairs of Indigenous heritage councils of HCOANZ commenced work on a Vision for Aboriginal and Torres Strait Islander Heritage in Australia; and Best Practice Standards in Indigenous Cultural Heritage Legislation (the Standards). The Standards have been endorsed by the National Native Title Council. The document is based on the principles enunciated in the United Nations Declaration on the Rights of Indigenous Peoples.

Among other things, the draft Standards make recommendations to jurisdictions to consider reforms to their legislation to provide:

 improved and consistent terminology;

 free, prior and informed consent of Aboriginal and Torres Strait Islander peoples before the approval of any project by governments that affect Indigenous peoples’ lands and their cultural heritage.

 adequate resourcing for Aboriginal and Torres Strait Islander representative organisations and communities for effective Indigenous cultural heritage protection and enforcement.

The Council believes that the cross-jurisdictional work that has gone into the development of these draft standards is very encouraging for their adoption nationwide. One important element of the draft best practice principles is a call for consistent legislation in all jurisdictions that provides for high standards of protection for Indigenous cultural heritage.

1 Independent Review of the EPBC Act, Interim Report, 21 July 2020, p. 6 3 The Council recommends the Committee considers the Standards, once finalised, as a starting point for any consideration of improved regulation of the protection of Indigenous cultural heritage in Australia.

Opportunities to reform the Environment Protection and Biodiversity Conservation Act 1999

The Council made a submission to the review of the EPBC Act being undertaken by Professor Graham Samuel. This submission in part repeats some of the suggestions the Council has made in that submission to the EPBC Act Reviewer. The Council notes the following finding by Professor Samuel in his Interim Report:

The EPBC Act has failed to fulfil its objectives as they relate to Indigenous Australians. Indigenous Australians’ traditional knowledge and views are not fully valued in decision-making, and the Act does not meet the aspirations of Traditional Owners for managing their land.2

While a number of National, World and Commonwealth heritage places are listed for or recognise Indigenous cultural heritage values, the list does not comprehensively represent this heritage. A number of other matters of national environmental significance may also have particular significance as part of Aboriginal and Torres Strait Islander peoples’ heritage whether or not that significance is recognised in listings under the EPBC Act.

The Council considers that the EPBC Act should make better provision for the recognition of Indigenous peoples’ heritage, improve processes for consultation with Aboriginal and Torres Strait Islander peoples about their heritage, and be better aligned with related legislation, such as the Native Title Act.

Consultation with Indigenous peoples

The provisions of the EPBC Act relating to public consultation do not make particular provision for consultation with Indigenous peoples, relating to matters of national environmental significance that may have cultural heritage significance. The effect is that some assessments may not be fully informed about the impacts of likely proposals on Indigenous cultural heritage, may be inconsistent with State and Territory processes, or may increase the likelihood of alternative processes being used to protect Indigenous heritage (in particular the processes under the ATSIHP Act).

To better address this, the Council recommends that the EPBC Act be amended to require that all nominations to the National and Commonwealth Heritage lists should identify which Indigenous peoples have rights or interests and provide evidence of consultation on the nomination. Where Indigenous people have rights or interests, the nomination should include evidence of free, prior and informed consent3 of those Indigenous people. Processes already in place for consultation under the Native Title Act 1993, or processes in place under State or Territory heritage protection legislation, might be used for this purpose. In practice, the Council seeks to ensure that nominations, assessments of places and subsequent management of

3 The concept of ‘free, prior, and informed consent’ is contained in the United Nations Declaration on the Rights of Indigenous Peoples, including in Article 19 which provides that ‘States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.’ A definition can be found in Free, Prior and Informed Consent – an Indigenous peoples’ right and a good practice for local communities: https://www.un.org/development/desa/indigenouspeoples/publications/2016/10/free-prior-and-informed- consent-an-indigenous-peoples-right-and-a-good-practice-for-local-communities-fao/ 4 heritage places are informed by such consultation. Providing a statutory mechanism in the Act to this effect would provide clarity to all parties and ensure consistency in consultation requirements.

The Council’s consultation with Aboriginal and Torres Strait Islander peoples should not be confined only to nominations for the listing of a place with Indigenous heritage values, although consultation in such a case would be even more important. While a place might not be nominated for its Indigenous heritage values, the place may still be of cultural significance to Indigenous people.

The objects of the EPBC Act could be specific in relation to the role of Indigenous peoples in the identification and conservation of their heritage. In relation to Indigenous knowledge, the objects of the Act are currently only specific in relation to Indigenous peoples’ knowledge of biodiversity (section 3(1)(g)).

Intangible cultural heritage

The Council notes the call by the HCOANZ Indigenous Chairs group for the development of national legislation in regard to the recognition and protection of intangible Indigenous cultural heritage.

Under the EPBC Act, significant heritage values must be associated with a place or be within a specific boundary in order to gain protection. Under current heritage assessment processes, it is not always possible for intangible heritage values to be addressed.

Aboriginal and Torres Strait Islander peoples’ cultural heritage, in its many forms including intangible heritage, is central and important to Australia’s heritage story. Intangible heritage is iterative and dynamic, with Indigenous knowledge presenting in multiple forms, linked to philosophical and legal traditions, language and education, stories, song and ceremonies.

The Council notes that consideration should be given to allowing sufficient scope to recognise and protect matters of intangible heritage, particularly Australia’s living and dynamic Indigenous traditions. Aboriginal and Torres Strait Islander cultures remain a significant part of the wider Australian culture and continues to evolve.

Changes to values of listed places The National Heritage List has been in place since 2003. Of the 117 places on the National Heritage List, only 37 are recognised for their Indigenous Cultural Values (19 solely for Indigenous Cultural Values). Five of Australia’s 20 World Heritage Properties are recognised for their Indigenous cultural values.

The Council has been working to identify and nominate new places for the National Heritage List on the basis of their Indigenous values. Since 2015, 10 such places have been nominated for the National Heritage List (many by the Council itself) and are under assessment. The Council has commissioned two thematic studies to assist in the identification of additional places for inclusion on the National Heritage List; studies of Rock Art (2016) and Waters of the Australian Desert (2015). Despite this ongoing effort, practical issues hamper the ability of Council to complete assessments, mainly resourcing to undertake appropriate engagement with Traditional Owners to obtain free, prior and informed consent, as well as ambiguities over Native Title (see below).

The Council notes that over time new information will become available, and as a nation our values and sense of identity will evolve. These developments can be reflected by adding new

5 places to the National Heritage List, or by amending existing listings to reflect additional values that were either not considered, or considered but deemed at the time to be below the required threshold.

This is an issue in particular for places which were listed for their natural heritage values (reflecting approaches to heritage from an earlier era), but not their Indigenous heritage values. Incorporation of new information or different perspectives provides the opportunity to enrich the knowledge of and protection of National Heritage places, particularly for places which are of potential significance for their Indigenous heritage values.

Serial listings

The Council recommends that the EPBC Act could make it clear that places linked or not linked by immediate spatial proximity are still eligible, as a group, for listing on the National Heritage List if they are connected in a way that meets the relevant criteria and thresholds. Examples of places with immediate spatial proximity might include a number of islands in an archipelago, and a number of locations within the same area or region, which are commonly recognised as a single place. Examples of places not linked by proximity, but linked by a theme, story or intangible heritage could include songlines, a series of rock art sites in a region, or important cultural trading routes.

The Council supports further clarification in the Act in relation to serial listings. This would improve the protection of heritage places important to the nation, while reducing the administrative and decision-making burden in the listing process if related nominations were otherwise to proceed separately. In this respect, the Act could more clearly allow for National Heritage listings to:

 recognise a group of sites that are each important to collectively tell a story that is of outstanding heritage value to the nation (a parallel to serial World Heritage listed properties–the series as a whole, and not necessarily the individual parts, is what is considered to have National Heritage values), and  include more than one site out of a category.

Such an approach could have the benefit of increasing the number of Aboriginal and Torres Strait Islander cultural heritage places subject to protection as part of the National Heritage List.

Adequacy of National Heritage Legislation

Native Title Act

The Council notes the requirement in the Native Title Act 1993 (Cth) that significant land use proposals trigger the ‘right to negotiate’ provisions of that legislation which can lead to poor outcomes for Indigenous cultural heritage. The Native Title Act requires ‘good faith’ negotiation between native title holders and potential developers on a proposed land use. Should such an agreement not occur within 6 months, either party has the ability to request arbitration by the National Native Title Tribunal. The Council notes that a high proportion of cases which go to arbitration have resulted in a decision that the proposed development should proceed. Further, the Council notes that many proposed developments do not require negotiation with native title holders. The Council is concerned that these provisions may result in impacts on Indigenous cultural heritage. The Council recommends a review of heritage legislation and the interaction with the Native Title regime.

6 Alignment of the EPBC Act with the ATSIHP Act

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) establishes a Commonwealth regime for the protection of places and objects of particular significance in accordance with Aboriginal tradition that are under ‘threat of injury or desecration’. To the extent that the EPBC Act protects Indigenous heritage values for certain listed properties, its purpose may therefore overlap with the purpose and operation of the ATSIHP Act.

The Australian Heritage Council supports the Australian Government’s continuing role under the ATSIHP Act as a backstop in cases where Indigenous heritage is not adequately protected under state or territory legislation.

In effect, both the EPBC Act and ATSIHP Act apply in relation to development proposals that may have impacts on Indigenous cultural heritage, but have different (but overlapping) scope and procedures. This can create confusion and uncertainty for all parties. It may also mean that a place which is listed under the EPBC Act for Indigenous heritage values, and a proposal which is approved under the EPBC Act that potentially impacts such a place, may nevertheless be subject to a ‘last resort’ application for protection under the ATSIHP Act.

The current coincidence of events between the Committee’s inquiry, the Independent Review of the EPBC Act and the work by HCOANZ to develop Best Practice Standards presents an opportunity to consider the relationship between the EPBC Act and the ATSIHP Act, reduce duplication and promote the protection of Indigenous cultural heritage.

Relationship between the EPBC Act and the Native Title Act

In its past consideration of nominations for listings, the Council has noted there is ambiguity as to the implications of heritage listings on the ‘future act’ provisions of the Native Title Act 1993 (Cth).

Traditional Owners may require advice and information about how their Native Title rights are likely to be affected by a World, National or Commonwealth heritage listing, before they are willing to indicate whether they support a prospective heritage listing.

The Council has found that because there is ambiguity over the implications of national heritage listing on Native Title rights, Traditional Owners and Indigenous peoples with rights and interests are reluctant to engage in the assessment and listing process. This may continue to frustrate the Council’s desire to include more places with Indigenous heritage values on the National Heritage list. The Council recommends that EPBC Act be amended to clarify this ambiguity.

Moveable cultural heritage

At present, movable cultural heritage is dealt with under legislation at Commonwealth level (e.g. the Protection of Movable Cultural Heritage Act 1986 (Cth), administered by the Office for the Arts in the Department of Infrastructure, Transport, Regional Development and Communications) and at state and territory level. The Council is concerned that this results in uneven and inconsistent enforcement approaches.

7 In addition, the Council takes the view that it is not appropriate to consider some items of great significance to Aboriginal and Torres Strait Islander peoples (for example, ancestral human remains) under legislation intended to cover artworks and other previous items. These items are inseparably tied to Country, and there are advantages to them being dealt with under the same legislation that protects places, which could more appropriately be the EPBC Act.

Article 12.2 on the United Nations Declaration on the Rights of Indigenous Peoples states that:

States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

The Council notes and supports the call for Traditional Owners to have control over, and access to their material culture removed from the Juukan Gorge during site clearances. It notes there is a role for the mining industry and jurisdictions to ensure the return to communities of their material culture. This must be accompanied by resourcing and supporting communities to develop and manage their own local keeping places.

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