Aboriginal Victoria

Submission to Joint Standing Committee on Northern Australia Inquiry into Juukan Gorge

July 2020

OFFICIAL Contents 1.0 General Comments ...... 4 2.0 Specific Comments ...... 5 2.1 (f) the interaction of state Indigenous heritage regulations with Commonwealth laws ...... 5 2.1.1 The EPBC Act and the AHA ...... 5 2.1.2 The Native Title Act and the AHA ...... 6 2.1.3 The ATSIHP Act and the AHA ...... 7 3.0 (g) the effectiveness and adequacy of state and federal laws in relation to Aboriginal and Torres Strait Islander cultural heritage in each of the Australian jurisdictions ...... 8 3.1 Statutory Approvals for development cannot be given before CHMP approval ...... 8 3.2 Minister and Department not empowered to make Aboriginal cultural heritage decisions or to overturn RAP decisions ...... 9 3.3 Open and Accountable decision-making ...... 10 3.4 The Cultural Heritage Management Plan system ...... 11 3.5 Blanket protection ...... 12 3.6 Aboriginal Cultural Heritage Permits ...... 12 3.7 Aboriginal cultural heritage land management agreements (ACHLMAs) ...... 13 3.8 Authorised Officers and Aboriginal Heritage Officers ...... 13 3.9 The Harm Offences ...... 14 3.10 The Victorian Aboriginal Heritage Register (the Register) ...... 14 3.11 Cultural Heritage Audits ...... 15 3.12 Stop Orders and Protection Declarations ...... 15 3.13 Aboriginal Intangible Heritage ...... 16 3.14 Cultural Heritage Agreements ...... 16 3.15 Secret/Sacred Objects and Aboriginal ancestral remains ...... 16 3.16 Conclusion ...... 16 4.0 (h) how Aboriginal and Torres Strait Islander cultural heritage laws might be improved to guarantee the protection of culturally and historically significant sites ...... 17 4.1 Separate, Focused and Comprehensive Commonwealth Aboriginal Cultural Heritage Protection Law ...... 17 4.2 Model Commonwealth Aboriginal Cultural Heritage Legislation ...... 18 4.2.1 Principles: ...... 18 4.2.2 Components: ...... 18 4.3 A National Aboriginal Heritage Council - functions ...... 19 4.3.1 Administering a State Aboriginal cultural heritage legislation accreditation process .. 19 4.3.2 Administering a protection declaration process for unaccredited States and Territories 19

OFFICIAL 4.3.3 Administering a national process for dealing with cross-border and international Aboriginal ancestral remains matters ...... 20 4.3.4 Administering an Aboriginal intangible heritage agreement process ...... 20 4.3.5 Regulating the trade and movement of portable Aboriginal heritage across borders and internationally ...... 21 4.3.6 Advising the Minister for the Environment on EPBC Act matters ...... 22 4.3.7 Advising the Commonwealth generally on Aboriginal cultural heritage matters...... 22 4.4 Suggested Improvements to State Aboriginal Cultural Heritage Legislation ...... 23 5.0 (i) opportunities to improve Indigenous heritage protection through the Environment Protection and Biodiversity Conservation Act 1999 ...... 25 6.0 (j) any other related matters ...... 26 6.1 Concluding remarks ...... 26

OFFICIAL 1.0 General Comments The events leading up to and including the incident at Juukan Gorge are deeply regrettable from an Aboriginal cultural heritage management and protection perspective. The incident betrays a number of systemic failures which will continue to lead to such incidents if not addressed at both national and state level through policy and legislative reform.

Aboriginal Victoria (AV) is the Victorian Government agency responsible for administering the Aboriginal Heritage Act 2006 (AHA). As such, AV is well-placed to provide expert advice appropriate to some of the terms of reference of the above Inquiry.

The AHA is one of the more progressive Aboriginal cultural heritage laws in the Commonwealth. Its interaction with Commonwealth legislation, and its continued effectiveness are important to ensuring the proper protection and management of Victoria’s Aboriginal cultural heritage.

AV welcomes the opportunity to provide its submission into the Inquiry and welcomes the Commonwealth’s desire to explore legislative and policy reform in this area.

AV will specifically respond to terms of reference (f) through (j), and indirectly to (a) through this discussion. Other jurisdictions are more appropriate to respond directly to the other terms of reference.

In general, however, there are five things that Commonwealth and State Governments can do to mitigate against future Juukan-type incidents. They can:

1. Through strong State Aboriginal heritage legislation, empower Traditional Owners at the local level to make authoritative, early, informed and accountable decisions about their cultural heritage when threatened by land development; 2. Through strong State Aboriginal heritage legislation, facilitate and require structural hurdles in state planning legislation preventing land development occurring until these decisions are made; 3. Through strong State Aboriginal heritage legislation, ensure that comprehensive Aboriginal heritage assessments are prepared before agreements allowing harm to Aboriginal heritage are acted upon under native title or any other agreements; 4. Through separate Commonwealth Aboriginal heritage legislation and amendments to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), set the above three items as minimum standards for State legislation through accreditation and bilateral agreement systems; and 5. Invest in and improve the economic, political and legislative power and capacity of Traditional Owner groups so that they can negotiate with large corporations Aboriginal cultural heritage matters under the native title process on a more level playing field.

The Commonwealth should not have the ability to override a decision of a Traditional Owner group who has made an informed decision in accordance with strong State Aboriginal heritage legislation. AV asserts that standalone Commonwealth Aboriginal cultural heritage legislation should do the following:

1. Establish national accreditation thresholds for State Aboriginal heritage legislation which, if satisfied, means that Commonwealth will not intervene in Aboriginal cultural heritage matters; 2. Establish a National Aboriginal Heritage Council comprised of representatives of Traditional Owner groups from all States and Territories;

OFFICIAL 3. Provide this Council with the power to accredit State and Territory Aboriginal heritage legislation in accordance with agreed minimum standards; 4. Provide this Council with all of the current functions of the Commonwealth Minister under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act); specifically the power to make declarations of protection in States and Territories without accredited Aboriginal cultural heritage legislation; 5. Establish a national process for dealing with Aboriginal ancestral remains matters which cross State borders, administered by this Council; 6. Establish a national Aboriginal intangible heritage agreement process which aligns with Commonwealth intellectual property, patent and copyright legislation administered by this Council; and 7. Establish a national process for addressing matters relating to the movement of portable Aboriginal heritage under the Protection of Movable Cultural Heritage Act 1986 (PMCH Act) administered by this Council.

Finally, new Commonwealth Aboriginal heritage protection should be independent of the EPBC Act, not subsumed within it.

2.0 Specific Comments

2.1 (f) the interaction of state Indigenous heritage regulations with Commonwealth laws There are three main Commonwealth Acts with which the Victorian AHA interacts or has relevance. These are:

1. The EPBC Act 2. The Native Title Act 1993 (NT Act) 3. The ATSIHP Act

Other relevant Commonwealth legislation includes the PMCH Act and various specific laws pertaining to different Commonwealth land uses, such as the Airports Act 1996 and the Defence Act 1903. 2.1.1 The EPBC Act and the AHA AV provided a submission to the current review of the EPBC Act under the direction of Dr Graeme Samuel. Part of this submission is reproduced below.

AV supports Aboriginal self-determination by empowering Aboriginal groups with statutory powers over their cultural heritage under the AHA. AV’s position is that Aboriginal people should have collective statutory powers to control how their cultural heritage is managed and protected.

Victoria provides Aboriginal people with specific statutory decision-making powers over approving cultural heritage permits and management plans in the AHA. These powers are exercised by Registered Aboriginal Parties (RAPs) appointed by the Victorian Aboriginal Heritage Council (VAHC) to be responsible for the heritage on their specific territories. This system provides Aboriginal people, and specifically Traditional Owners, with the power to determine what appropriate cultural heritage management and protection measures are required for particular development proposals. To be consistent with supporting Indigenous Australians in environment and heritage management,

OFFICIAL AV therefore expects the EPBC Act to continue to recognise Victoria’s RAP system when involving Aboriginal Victorians in its processes.

Currently, when a controlled action is declared under the EPBC Act, Victoria’s Environment Effects Statement (EES) process is triggered under the Environment Effects Act 1978 (Victoria). The EES process is accredited under section 45 of the EPBC Act. Similarly, processes under Victoria’s Major Transport Project Facilitation Act 2009 are also accredited. Under Victorian law, assessments conducted under both of these laws automatically trigger AHA cultural heritage management plan (CHMP) requirements which prevent works from being conducted until a CHMP has been approved for the project. This mechanism ensures relevant Aboriginal people will be consulted (where no RAP has been appointed) or will have statutory decision-making powers (where a RAP has been appointed) in relation to EPBC Act controlled actions. EPBC Act accreditation and the compulsory AHA trigger also ensures that proponents only need to have their CHMP approved once, by the RAP or AV (where there is no RAP) under State legislation, without needing a second approval under the EPBC Act to account for Aboriginal heritage impacts. It provides the certainty of process necessary for secure investment decisions.

The CHMP process under the AHA, and its interaction with EES and major transport processes, ensures that Aboriginal cultural heritage impacts are addressed early and before development approvals can be given for development. Without CHMP approval, EESs cannot be approved, and development cannot occur. This structural legislative threshold is essential to provide Victorian Traditional Owners with the “level playing field” necessary to negotiate effective Aboriginal cultural heritage management with often large corporate or Government developers. 2.1.2 The Native Title Act and the AHA It is important that the right Traditional Owners are empowered to make informed cultural heritage management decisions. In Victoria, the Victorian Aboriginal Heritage Council (VAHC), an expert advisory council comprising 11 Victorian Traditional Owners appointed by the Minister for Aboriginal Affairs, receives applications from Traditional Owner corporations to become Registered Aboriginal Parties (RAPs) for their traditional areas. Government plays no role in evaluating RAP applications, it is an entirely Traditional Owner-controlled process.

Once a RAP, it is empowered under the AHA to make statutory decisions about their cultural heritage. RAPs are required to be representative of all Traditional Owners within their RAP area, and are required to be a corporation registered under the Commonwealth Corporations (Aboriginal and Torres Strait Islander) Act 2006.

Traditional Owners in Victoria also have the ability to apply for native title under the NT Act. To avoid confusion and duplication of process, the AHA requires that, where a native title holder applies to the VAHC to become a RAP, the VAHC must appoint it for its native title area. This is an exclusive appointment and ousts any prior RAPs which may have existed over that area.

Therefore, the AHA is drafted in such a way as to ensure that consent processes relating to future acts under the NT Act and CHMP approval processes under the AHA are dealt with once only, via the CHMP system. This means that, in Victoria, a mining corporation, for example, seeking to operate on Crown land subject to native title, only has to consult with a single Traditional Owner party (the RAP which is also the native title body) in relation to their development in order to satisfy both native title and cultural heritage requirements. If a CHMP is required to be approved before the mining licence is granted, the CHMP for the project will be evaluated by the RAP.

OFFICIAL Victoria’s Traditional Owner Settlement Act 2010 (TOSA) – Victoria-specific legislation establishing agreements between the State and Traditional Owners as an alternative to native title – and the AHA interact in the same fashion. 2.1.3 The ATSIHP Act and the AHA The ATSIHP Act and the AHA operate separately as the two generally do not intersect. Under the ATSIHP Act, any Aboriginal person may apply to the Commonwealth Minister for a declaration of preservation over an Aboriginal place. The AHA does not interfere with this right. The Commonwealth Minister is obliged to consider the operation of state laws when considering whether to make a declaration, and to consult with the relevant state Minister. There have been no Commonwealth declarations made in Victoria since the AHA commenced in 2007, however, this power is rarely exercised nation-wide.

AV is of the strong opinion that the ATSIHP Act requires major reform in preference to incorporating protection for Aboriginal cultural heritage into the EPBC Act. This is discussed further below (see 4.1).

OFFICIAL 3.0 (g) the effectiveness and adequacy of state and federal laws in relation to Aboriginal and Torres Strait Islander cultural heritage in each of the Australian jurisdictions Victoria has more effective Aboriginal cultural heritage protection legislation than any other jurisdiction in Australia, Canada and Aotearoa / New Zealand. It is effective because of the interaction of its principles with its requirements. Some of these are discussed in this section.

The AHA protects Aboriginal cultural heritage in a number of critical ways, some of which are unique to Victoria.

The basic purpose of Aboriginal cultural heritage law is to protect Aboriginal heritage from land use and development and other harm. This is generally done in different jurisdictions using a range of statutory authorities from a simple permit process requiring little or no prior cultural heritage assessment of impacts of proposed development, through to full statutory cultural heritage management plan processes requiring thorough heritage assessment of impacts. In all cases:

1. there is an approval authority responsible for approving or refusing to approve actions which will impact Aboriginal heritage; and 2. that approval sits in a sequence of approvals which may be required by a proponent before they can proceed with their development activity.

Victoria deals with these two critical elements of Aboriginal heritage protection legislation differently to most other jurisdictions. 3.1 Statutory Approvals for development cannot be given before CHMP approval In most jurisdictions other than Victoria, approval may be obtained for a development activity before approval needs to be obtained to harm Aboriginal cultural heritage.

Any statutory approval which is placed in the context of a statutory planning system must interact effectively with that system. Depending on the objective of the approval, it could be sequential (e.g. placed precisely in a particular sequence of approvals) or flexible (it could be sought at any time in the approvals process), or some combination of both.

Victoria specifically prevents the final statutory authority allowing works to commence from being issued until a CHMP has been approved where one is required. Other jurisdictions allow planning permission, for example, to be granted before an Aboriginal heritage assessment has been undertaken. Others allow planning or other approvals to be granted with an attached condition requiring an Aboriginal cultural heritage assessment to be prepared and approved.

Because the proponent is forced to obtain an approved CHMP in Victoria before they can commence their activity, proponents normally elect to manage their Aboriginal heritage obligations early in the approvals process. This means that unforeseen circumstances can be adequately addressed. It also means that proponents will take their Aboriginal heritage obligations very seriously. Finally, it means that Aboriginal people are not under pressure to approve CHMPs or permits to harm heritage, because the development proposal is not a fait accompli and machinery, for example, is not “on the ground”.

OFFICIAL It also means that Aboriginal heritage protection measures under native title agreements must also pass through the CHMP process before development can proceed. This prior comprehensive assessment would potentially have prevented the destruction of the Juukan Gorge rock shelters by providing Traditional Owners and the Minister with enough information to make a fully informed decision.

This single powerful provision in the AHA is its most important. It not only provides Traditional Owners with leverage in discussions with proponents not enjoyed in other jurisdictions, but it also provides proponents with the certainty that Aboriginal cultural heritage matters will be addressed before development begins. This saves proponents time and money as they do not need to stop works once started to address heritage issues which were not accounted for by the CHMP. CHMPs have contingency conditions to follow if unidentified heritage material arises during works. There is no need to revisit the statutory approvals process. If substantial undiscovered Aboriginal cultural heritage comes to light during development works, the AHA contains an audit process allowing the approved CHMP to be amended (see 3.11).

Victoria’s CHMP system requires Aboriginal cultural heritage management to occur early in the development approvals sequence, empowers Traditional Owners and prevents development from commencing until these matters are addressed properly, and to the satisfaction of the Traditional Owners – which leads to the next unique aspect of Victoria’s AHA. 3.2 Minister and Department not empowered to make Aboriginal cultural heritage decisions or to overturn RAP decisions The AHA is one of the only laws dealing with protecting Indigenous cultural heritage that provides statutory decision-making power directly to Traditional Owners. It also does not include a power for a Minister or department to overturn a decision of a Traditional Owner group. The relevant Minister or department is the final approval authority in most jurisdictions, but in Victoria, it is the RAP (for the 70 per cent of Victoria for which a RAP has been appointed).

In Victoria, RAP decisions are only able to be overturned by an independent tribunal – the Victorian Civil and Administrative Tribunal (VCAT) – or the courts. This removes political influence from Aboriginal cultural heritage decisions, and is another way the Victorian Act levels the playing field for Traditional Owners in their negotiations with corporations. For comparison:

Queensland: The Chief Executive of the relevant department approves CHMPs, but is bound to approve these if the RAP approves the CHMP. Any refusal to approve a CHMP is appealable to the Land Court. The Land Court makes a recommendation, which is acted upon by the relevant Minister, although the Minister is not bound by the Land Court’s recommendation.

New South Wales: The Chief Executive of the relevant department issues Aboriginal heritage impact permits relating to land development activities. Unlike Queensland, the Chief Executive is not bound by recommendations from Traditional Owners. Decisions to refuse permits are appealable to the Land and Environment Court.

Northern Territory: The Aboriginal Areas Protection Authority (AAPA) may issue an Authority Certificate to conduct development work impacting sacred places in the Northern Territory. A refusal to grant an Authority Certificate is appealable directly to the relevant Minister. The Minister may direct the AAPA to conduct a review of a decision and can overturn the decision after the review and issue a certificate allowing development to occur.

OFFICIAL South Australia: The Minister issues consents to harm Aboriginal places. Where a Recognised Aboriginal Representative Body (RARB) is in place, a proponent may reach agreement with the RARB about an activity (local heritage agreement). The LHA must be approved by the Minister before taking effect. The Minister also approves agreements relating to native title agreements. The legislation is silent on tribunal appeals, so court appeals are the only recourse.

Western Australia: The Minister issues consents to use land in a manner which would otherwise constitute an offence after considering advice from the Aboriginal Cultural Material Committee. The Minister is not bound by that advice. Decisions to refuse consents are appealable by the proponent to the State Administrative Tribunal.

Tasmania: The Director of the relevant department may grant a permit allowing harm to occur to an Aboriginal site. The legislation would allow for court appeals of decisions only.

Aotearoa/New Zealand: Heritage New Zealand / Pouhere Taonga (HNZPT), an independent statutory authority, determines applications by proponents for an authority to do an activity which may harm Maori heritage. Decisions can be delegated to the Maori Heritage Council, an all-Maori body which sits within HNZPT. Regardless, any decision involving Maori cultural heritage must be referred to the Maori Heritage Council first for its recommendation. HNZPT decisions can be appealed to the Environment Court.

Canada: Provincial Ministers make decisions about impacts on Aboriginal heritage, with few exceptions (e.g. Nunavut, Yukon) and with some referral requirements to First Nations (e.g. British Columbia). Only six of 13 provinces allow appeals against decisions to be made to independent tribunals ahead of the courts.

Victoria’s AHA is rare in devolving decision-making power about approvals directly to Aboriginal organisations. This is one of the strengths of the AHA, providing legislative power to Aboriginal groups in the development process as well as safeguarding Aboriginal heritage. 3.3 Open and Accountable decision-making The devolvement of government authority to make decisions about Aboriginal cultural heritage to RAPs requires these decisions to be first, focused on cultural heritage matters only and second, to be accountable to independent review.

The AHA does this by limiting the ability for RAPs to refuse to approve a CHMP to cultural heritage grounds. That is, a RAP can refuse to approve a CHMP if an activity cannot adequately avoid causing harm, or adequately minimise harm to Aboriginal cultural heritage. A RAP can also refuse to approve a CHMP if the CHMP does not adequately apply specific measures to manage heritage affected by the activity, has inadequate contingencies or inadequate custody arrangements for heritage found during the course of the activity. The decision as to whether a CHMP adequately meets these requirements is entirely for the RAP. The proponent may argue they have met the requirements, but the RAP is free to disagree and refuse to approve the CHMP. The AHA then provides the proponent with the option of challenging that decision to VCAT.

This way, the AHA encourages CHMPs to be focused on cultural heritage management and protection measures alone. Unlike open agreements allowable in some other states, CHMP conditions must deal exclusively with Aboriginal cultural heritage matters. Any agreements relating to employment, compensation or other matters are not appropriate for CHMPs and are able to be dealt with outside the CHMP process. It also means that decisions by RAPs need to be reasonable, robust and defendable in an independent review. Together, these measures ensure focused and

OFFICIAL justifiable cultural heritage management decisions. To date, no CHMP refusal decision has been reviewed at VCAT, although a handful have been mediated. 3.4 The Cultural Heritage Management Plan system The structural timing of the CHMP in Victoria’s Aboriginal cultural heritage management system is described above (see 3.1), however a key feature of Victoria’s system is the regulation of the CHMP as a key component.

As stated, the principal purpose of all Aboriginal cultural heritage legislation is to protect Aboriginal cultural heritage from the impact of land use and development. The statutory sequence of the CHMP – before planning approval – in Victoria is critical to the success of the system. The fact it must be approved prior to the construction permit means that when and how the CHMP is prepared is also important.

There are four ways the AHA mandates a CHMP prior to development:

1. If the Aboriginal Heritage Regulations 2018 (the Regulations) require one; 2. If the Minister for Aboriginal Affairs directs one; 3. If an EES is required for an activity; or 4. If an impact management plan or comprehensive impact statement is required under the Major Transport Projects Facilitation Act 2009 (Victoria).

CHMPs may also be prepared voluntarily.

The Regulations require a CHMP to be prepared where a proposed activity is a listed high impact activity proposed for a listed area of cultural heritage sensitivity. Listed high impact activities are generally larger-scale land development activities considered more likely to have a significant impact on Aboriginal cultural heritage. Examples include residential housing subdivisions of three or more lots, quarries, mines, utility installations and airfields. Listed areas of cultural heritage sensitivity are generally areas where, from past research, Aboriginal cultural heritage is more likely to be discovered. Examples include land within 200m of the coast or major waterway, national parks and specific areas of Victoria such as dunes and stony rises.

An exception to the listed areas of cultural heritage sensitivity is included, where that listed area has suffered previous significant ground disturbance. This disturbance must have been caused by machinery in the course of grading, digging, deep ripping, dredging and excavating before that area is considered not to be an area of cultural heritage sensitivity.

These regulatory ‘triggers’ result in about 600 CHMPs each year being completed, and about 1000 new Aboriginal cultural heritage places being added to the Victorian Aboriginal Heritage Register annually.

Unlike statutory protection systems which only impose a requirement for a simple permit to destroy Aboriginal cultural heritage, Victoria imposes regulated minimum standards for CHMPs which, if not met, will result in the mandatory refusal of that CHMP. Minimum CHMP standards are dictated by current best archaeological practice and by compulsory involvement of Traditional Owners in the CHMP preparation, if the RAP wishes.

The AHA thus ensures both Traditional Owner rights to exercise control over cultural heritage decisions as well as strict archaeological rigour. Along with statutory CHMP timing requirements, this together facilitates prior, informed decision-making for Traditional Owners, which is the basis of any good modern Aboriginal cultural heritage management system.

OFFICIAL 3.5 Blanket protection A fundamental element of best practice Aboriginal cultural heritage legislation is “blanket protection”.

Blanket, automatic, deemed, or presumptive protection “means that all areas and sites falling within the legal definition of heritage are automatically protected by sanctions which make it an offence to cause damage or desecration to the site or area”1. It is irrelevant whether the site or area has been registered or previously identified as Aboriginal.

Blanket protection is a precautionary approach and is contrary to selective approaches, where only registered or listed heritage is afforded legal protection. Selective approaches require some form of Western categorisation and assumption of value before any heritage is afforded legal protection. Blanket protection, by contrast, assumes value and protects in a precautionary way. Selective protection systems lack the immediate deterrent effect of blanket protection because if an Aboriginal place under direct threat is not on an official list, then that place is, at that time, not legally Aboriginal heritage and a proponent has an automatic reasonable excuse for proceeding with a damaging activity.

The principle of blanket heritage protection has a long history in Australia and in many nations (e.g. USA, South Africa, and countries in south east Asia and Europe). One unintended consequence of Australia’s reliance on blanket protection has been its most valuable – that of inadvertently accounting for changing heritage values over time. Under a selective protection regime, what is considered significant in one decade and worthy of listing may not be in the next, and vice versa. This means heritage ignored in one decade may be destroyed before its value is realised in the next. It also potentially means constantly amending legislation to keep up to date with what is considered significant over time. Blanket protection avoids this scenario by ensuring all heritage is protected, regardless of its relative Aboriginal cultural or archaeological value. Instead, under blanket protection regimes, the relative significance of cultural heritage to be impacted by development is left to on-ground assessment and management. Management conditions will reflect the agreed value of the cultural heritage.

Placing Aboriginal people at the centre of determining the cultural significance of their heritage enhances the value of blanket protection regimes even further. By providing direct statutory approval rights, Victoria’s AHA ensures that Aboriginal people determine the significance and consequent management requirements for Aboriginal cultural heritage in Victoria through the CHMP process.

Modern Aboriginal cultural heritage management legislation must therefore contain a combination of blanket protection, Aboriginal decision-making power, clear, pre-emptive cultural heritage management requirements triggered early in the land development process and within the context of sound procedures for assessing applications to develop areas. 3.6 Aboriginal Cultural Heritage Permits The AHA establishes the basic offence of harming Aboriginal cultural heritage. Harm is allowed only if a person or corporation has an approved CHMP, an approved cultural heritage permit, or an approved Aboriginal cultural heritage land management agreement (discussed later). Aboriginal people may also harm heritage if conducting traditional activities. Aboriginal cultural heritage may

1 Evatt, E 1996, Review of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, unpub. report, Office of the Minister for Aboriginal and Torres Strait Islander Affairs, Canberra, p.81

OFFICIAL also be harmed by emergency services during emergency actions (such as fighting a bushfire), or by a coroner examining Aboriginal ancestral remains.

Cultural heritage permits are required in Victoria to:

• excavate land in order to discover Aboriginal cultural heritage; • research an Aboriginal place or object; • harm Aboriginal cultural heritage; • sell an Aboriginal object; • remove an Aboriginal object from Victoria; • rehabilitate land at an Aboriginal place; and • inter Aboriginal ancestral remains at an Aboriginal place.

As for the CHMP system, RAPs, not the department or Minister, are responsible for assessing and issuing cultural heritage permits (except for areas where no RAP has been registered – in this case the responsibility falls to the department). Again, Victoria is alone in providing this power to Aboriginal people, rather than the Minister or department. 3.7 Aboriginal cultural heritage land management agreements (ACHLMAs) ACHLMAs are direct negotiated agreements between Crown land managers and RAPs for the ongoing management of that land and Aboriginal cultural heritage on that land which may be impacted by routine management works. Recognising that public land managers may not have the resources to prepare large-area CHMPs to cover them for their activities, the AHA creates a voluntary agreement system whereby public land managers and RAPs can document procedures for managing and protecting Aboriginal cultural heritage over a period of time on public land which may be otherwise harmed by the sort of standard park management works which would not warrant a CHMP. This ensures Traditional Owners maintain heritage responsibilities over public land as well as protecting public land managers from breaching the AHA. At the same time, it saves the public land manager the cost of large scale CHMPs or regular cultural heritage permit applications ahead of minor works. If a public land manager proposes a high impact activity, then a CHMP will be required. Given most land management activities would not constitute a high impact activity, the ACHLMA provides a statutory mechanism for the public land manager and RAPs to manage and protect Aboriginal cultural heritage together for an agreed period. 3.8 Authorised Officers and Aboriginal Heritage Officers Any Aboriginal cultural heritage protection legislation requires efficient enforcement and compliance systems backed up by resources and appropriate statutory powers. The AHA establishes Authorised Officers, appointed by the Minister, with powers of entry, search and seizure under particular circumstances. Authorised Officers may stop works for a period of 24 hours or up to 30 days in order to investigate or enforce compliance with the AHA. Authorised Officers must be current Victorian public servants.

The AHA also establishes Aboriginal Heritage Officers (AHOs), also with statutory entry, search and seizure powers. AHOs are RAP employees, meaning they will almost always be Traditional Owners from that RAP area. AHOs can impose 24-hour stop orders on people conducting activities which may be or are breaching the AHA.

OFFICIAL Together, Authorised Officers and AHOs provide good enforcement coverage of the entire state. The enforcement and compliance system is supported by central administration and coordination within AV. 3.9 The Harm Offences Aboriginal cultural heritage legislation needs effective offence provisions to provide a deterrent to people and corporations who would otherwise harm Aboriginal cultural heritage. Effective offence provisions include three main elements – penalties which are high enough to have a deterrent effect while being reasonable; offence provisions with varied burdens of proof; and effective enforcement and compliance measures. The enforcement and compliance measures of the AHA were discussed above (see 3.8).

The AHA currently has a basic offence of causing harm to Aboriginal cultural heritage. There are three levels of culpability attached to this offence, plus an additional strict liability offence carrying a lower penalty consistent with its lower burden of proof. This gives AV some flexibility when enforcing the AHA. The highest penalty is associated with causing harm to Aboriginal cultural heritage intentionally. Currently, this sits at just over $1.65 million for a corporation and nearly $300,000 for an individual. These are among the highest penalties of any comparable jurisdiction and provide an effective deterrent.

Other offences include:

• Failing to report the discovery of Aboriginal cultural heritage • Unlawful possession of an Aboriginal object • Failing to provide documentation following an archaeological survey • Failure to comply with a cultural heritage permit • Failure to prepare a CHMP when one is required • Failure to provide CHMP assessment documentation • Failure to comply with an approved CHMP • Failure to comply with an approved ACHLMA • Using information from the Register for prohibited purposes

Other offences relate to interfering with, impersonating or failing to comply with an Authorised Officer or AHO, and other offences specific to matters discussed below. 3.10 The Victorian Aboriginal Heritage Register (the Register) Any Aboriginal cultural heritage systems applying blanket protection and harm offences require secure and comprehensive information databases with controlled access. A key provision in the AHA is its establishment of a register, the purposes of which are specified and include acting as a central repository for all information about Aboriginal cultural heritage. The Register holds all information about known Aboriginal heritage places, objects, ancestral remains and intangible Aboriginal heritage. It is open for particular categories of people and for particular purposes only, but otherwise closed without RAP or Council permission. There is an offence relating to misuse of information.

The Register is backed up by state of the art GIS and mapping programs, with information digitally available online through a user interface (the Aboriginal Cultural Heritage Registry Information System). Heritage Advisors acting for proponents of activities are the primary users of the Register, from which they can access information about known heritage to inform the preparation of CHMPs.

OFFICIAL Information is also important for land use planning and more strategic heritage management decisions. 3.11 Cultural Heritage Audits Another provision unique to Victoria, the cultural heritage audit provisions allow for works to be halted if the CHMP prepared for those works needs to be changed to account for new information discovered after the CHMP was approved. Audits are a secondary safeguard. For example, if a CHMP has been approved for a development project, but that development is plainly causing greater impact to Aboriginal cultural heritage than was originally envisaged by the CHMP, the Minister can stop works and order the proponent to conduct an audit of the activity. Once completed, the audit report can then make changes to the CHMP to account for the new information, can recommend other measures to prevent further harm, and can recommend prosecutions where warranted. Audits of an activity can also be ordered if the proponent is or is likely to be breaching a CHMP or cultural heritage permit. In addition to the offences, audits act as a significant deterrent to acting unlawfully.

The cultural heritage audit provisions have direct relevance to the Juukan Gorge matter. With an audit process, the WA Minister could have ordered a halt to works after receiving the additional information about the significance of the rock shelters. The Minister could then have ordered a reassessment of the heritage conditions applied to Rio Tinto; reviewed the information which came to light about the rock shelters after the approval of their destruction, and changed the management recommendations to prevent or minimise harm. The Minister could have exercised these powers within the context of Aboriginal cultural heritage protection processes, rather than through other legislative means which may pose a perceived threat to investment certainty (such as the power under section 55 of the Western Australia Interpretations Act 1984 which allows the Minister to revisit a decision2). AV recommends that WA consider such a power in its review of its Aboriginal Heritage Act.

The AHA applies an offence for failing to prepare an audit where one is ordered. 3.12 Stop Orders and Protection Declarations In addition to the blanket protection principle providing automatic protection for all Aboriginal cultural heritage, the Minister is also able to declare or set aside areas of particular heritage significance. On application by the Council or RAP, or on their own initiative, the Minister may declare an area to be protected for a period of 30-60 days (an interim protection declaration) or permanently (an ongoing protection declaration). It is an offence to breach a protection declaration.

In addition, and in order to effectively enforce the AHA, the Minister or an Authorised Officer can issue a stop order to a person suspected of breaching the AHA. The stop order is also the first step in the cultural heritage audit process. Stop orders can last for up to 30 days, extendable by another 14 days where considered necessary. An Aboriginal Heritage Officer or Authorised Officer can also issue a 24-hour stop order. It is an offence to fail to comply with stop orders. Improvement notices can

2 “The Interpretation Act 1984 (WA) provides an express power to correct errors in administrative decisions. Section 55 states that where a written law confers a power or imposes a duty to do any act or thing of an administrative or executive character, the power or duty may be exercised or performed as often as necessary to correct any error or omission, notwithstanding that the power or duty is not generally capable of being performed from time to time.” Commonwealth Ombudsman 2009, https://www.ombudsman.gov.au/__data/assets/pdf_file/0010/31141/issues_paper_mistakes_and_unintende d_consequences.pdf, accessed 1 July, 2020.

OFFICIAL also be issued by an Authorised Officer or Aboriginal Heritage Officer, which order a person to undertake actions to remedy a breach or likely breach of a CHMP or cultural heritage permit. It is an offence to fail to comply with an improvement notice. 3.13 Aboriginal Intangible Heritage Victoria has Australia’s only specific protective provisions relating to Aboriginal intangible heritage. Aboriginal intangible heritage includes traditional knowledge and understandings of plants and animals and their properties, stories, language, art and knowledge about the universe, among other things. The AHA allows a Traditional Owner group to register such information on the Register, which is held securely and is not subject to the same access allowances as other information. Once registered, if any other person or corporation wishes to use that intangible heritage, they must enter into an Aboriginal intangible heritage agreement with the Traditional Owner group who registered that information. There is an offence of using Aboriginal intangible heritage without an agreement, and of breaching an agreement.

The provisions of the AHA provide Australia’s only formal protection for Aboriginal intellectual property which is collectively held, not subject to time limits and does not rely on physical inventions. AV urges the Commonwealth to consider Aboriginal intangible heritage protection and elaborates on this issue when suggesting model Commonwealth law below (see 4.2). 3.14 Cultural Heritage Agreements The AHA allows private landowners to enter into voluntary agreements with RAPs regarding managing Aboriginal cultural heritage on private land. These are binding agreements which are registered on the land title and are therefore also binding on future owners. 3.15 Secret/Sacred Objects and Aboriginal ancestral remains The AHA provides specific powers to the Council regarding secret/sacred Aboriginal objects and Aboriginal ancestral remains. These particularly sensitive matters are managed entirely by the Council, ensuring Traditional Owner control over all the procedures relating to managing the discovery, storage and repatriation of this material.

In addition, institutions such as universities and museums were required to report on their collections of Aboriginal ancestral remains to the Council within two years of the commencement of the AHA, with a penalty applied for failing to do so. This resulted in many previously unknown items being reported to the Council which are now in the process of being repatriated.

The AHA establishes penalties for failing to report the discovery of and transfer Aboriginal ancestral remains to the Council.

The AHA removed private ownership rights over secret/sacred objects. No private citizen in Victoria is permitted to have such objects in their possession. These must be surrendered to the Council. The AHA applies a penalty for failing to do this. 3.16 Conclusion Taken together, and acting in concert with the principles of Traditional Owners as informed and accountable decision-makers; mandatory heritage assessments embedded in the planning and development process; and blanket protection; the provisions of the AHA provide Australia’s most comprehensive legal protection for Aboriginal cultural heritage.

OFFICIAL 4.0 (h) how Aboriginal and Torres Strait Islander cultural heritage laws might be improved to guarantee the protection of culturally and historically significant sites

There are a number of reforms which AV submits would improve Commonwealth and State Aboriginal cultural heritage protection laws to afford greater protection to Aboriginal cultural heritage and to help avoid future incidents such as Juukan Gorge. “Guaranteeing protection”, however, may be too high an ambition.

Below, we present areas for Commonwealth legislative improvement, then present a suggestion for model and standalone Commonwealth Aboriginal cultural heritage protection legislation. Following this discussion, we present areas where states could improve their laws. 4.1 Separate, Focused and Comprehensive Commonwealth Aboriginal Cultural Heritage Protection Law Aboriginal cultural heritage protection and management requires and demands separate, standalone law. It should not be subsumed within environmental heritage protection legislation and processes which emphasise the protection and management of natural heritage, biodiversity and species. AV rejects the basis for any call to merge Aboriginal heritage protection under the EPBC Act, for a number of reasons:

1. In national jurisdictions where Aboriginal heritage is protected under national environment protection laws, this protection is inadequate (e.g. Canada). Environment protection becomes the main purpose and as a result Aboriginal heritage protection is neglected. 2. Environment protection legislation ignores the appropriate authorising environment for Aboriginal cultural heritage decisions – Aboriginal people. Under environment protection laws, environment Ministers or departments are given authority to make decisions about Aboriginal cultural heritage. Aboriginal cultural heritage has unique management demands which are not within the expertise of these entities. Nor should these entities have the right to make such decisions. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is clear, at Article 31, that Indigenous peoples have the right to control decisions about their cultural heritage. Unless environment protection laws can incorporate separate decision-making processes, these should be left to separate laws. 3. Philosophically, merging environment and Aboriginal heritage signals that the State diminishes the importance of the heritage of first peoples. Given recent discourse and advances in Indigenous rights, this is not appropriate and would run counter to discussions relating to the Uluru Statement from the Heart and various Treaty discussions now occurring at state level. 4. Merging the two is not necessary if processes under the two, plus state and territory laws, are aligned and integrated.

It is therefore our view that the ATSIHP Act needs to be repealed and replaced with more comprehensive Aboriginal cultural heritage protection legislation, rather than this protection be merged with the EPBC Act. It is also our view that the EPBC Act should be amended to better align with Commonwealth and state Aboriginal cultural heritage protection laws.

OFFICIAL 4.2 Model Commonwealth Aboriginal Cultural Heritage Legislation Figure 1: New Commonwealth Aboriginal cultural heritage legislation

Commonwealth Aboriginal Heritage Act

National Aboriginal Heritage Council

EPBC Act • Accredits State and Territory Aboriginal • Only accredited States able to make heritage legislation bilateral agreements • Administers declaration processes

• Administers national Aboriginal ancestral remains system • Administers national Aboriginal intangible PMCH Act heritage system • Council has functions of National Cultural • Advises on trade and movement of movable Heritage Committee or advisory role cultural heritage • Provides advice to the Commonwealth • Maintains a register of significant Aboriginal places

Authorised Officers

Suggested principles and components for new Commonwealth Aboriginal cultural heritage legislation include: 4.2.1 Principles: 1. Recognise the rights of Aboriginal people to make decisions about their heritage 2. Recognise that the States and Territories are better placed to administer specific Aboriginal cultural heritage protection and that Commonwealth law should continue to be a law of last resort 3. Establish a system of national accreditation of state and territory Aboriginal cultural heritage legislation 4. Provide a mechanism to review State and Territory decisions impacting Aboriginal cultural heritage only where State laws do not meet minimum accreditation standards 5. Directly regulate and protect Aboriginal intangible heritage, Aboriginal ancestral remains and the movement of portable Aboriginal heritage objects 4.2.2 Components: New Commonwealth Aboriginal heritage legislation should establish the following:

1. A National Aboriginal Heritage Council with the following functions: a. administering an accreditation process for State Aboriginal cultural heritage legislation b. administering a protection declaration process where a State does not meet accreditation

OFFICIAL c. administering a national process for dealing with cross-border and international Aboriginal ancestral remains matters d. administering an Aboriginal intangible heritage agreement process e. advising on the trade and movement of portable Aboriginal heritage across borders and internationally f. advising the Minister for the Environment on EPBC Act matters g. advising the Commonwealth generally on Aboriginal cultural heritage matters 2. A national register of significant Aboriginal places 3. Authorised officers to enforce the Act 4. Appeal mechanisms to review decisions of the Council 4.3 A National Aboriginal Heritage Council - functions 4.3.1 Administering a State Aboriginal cultural heritage legislation accreditation process New Aboriginal cultural heritage legislation should establish a National Aboriginal Heritage Council (NAHC) with appropriate resources. The NAHC should be charged with establishing accreditation standards for all State and Territory Aboriginal cultural heritage legislation. It should be charged with accrediting State and Territories which meet those standards (see list of suggested minimum standards at 4.4, below).

This would significantly change the degree to which Indigenous people control Aboriginal cultural heritage protection in Australia by placing Aboriginal people in charge of determining the minimum standards to which all State and Territory governments should rise. It would directly address UNDRIP rights. Finally, it would devolve power to Aboriginal people from government, a key principle of Aboriginal self-determination. 4.3.2 Administering a protection declaration process for unaccredited States and Territories All of the current declaration functions of the Commonwealth Minister under Division 1 of the ATSIHP Act should be given to the NAHC. These provisions would only apply to States and Territories which fail to meet the minimum accreditation standards set by the NAHC.

This would mean, in practice, that Aboriginal people would apply to the NAHC to make an emergency or other declaration of protection where they believed State or Territory law was failing to protect significant Aboriginal cultural heritage. Such applications would only be able to be made where an Aboriginal person reasonably believed that State or Territory laws were not providing adequate protection, and this assessment would be made by the NAHC (as it is now made by the Minister under section 13 of the ATSIHP Act).

An Aboriginal council would have more cultural authority and legitimacy than the Minister to make such decisions. Further, because the NAHC would be comprised of Aboriginal people, it would be able to exercise a high degree of cultural sensitivity in relation to gathering, holding and relating sensitive information. For example, in the Hindmarsh Island case3, the relevant Minister was prevented from viewing sensitive evidence due to cultural prohibitions relating to women’s business. An Aboriginal council would not face similar impediments and arguably could make more

3 Wilson v Minister for Aboriginal & Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1

OFFICIAL thorough and sensitive inquiries. This may have resulted in helping to resolve the lengthy dispute in that case.

All decisions of an NAHC, as for the Minister currently, would be reviewable by the courts. 4.3.3 Administering a national process for dealing with cross-border and international Aboriginal ancestral remains matters Because all accredited State and Territory laws would provide processes to receive reports of the discovery of Aboriginal ancestral remains, the current Division 3 of the ATSIHP Act would not be needed.

Victoria’s processes for caring and repatriating Aboriginal ancestral remains are strong within Victoria’s borders. However, only national Aboriginal heritage legislation can effectively manage Aboriginal ancestral remains issues which involve cross-border or international elements.

A NAHC with appropriate legislative powers and resources would be able to effectively manage the transfer of Aboriginal ancestral remains from one state to another, and from international collections back to Australia.

Under this proposal, any discoveries if Aboriginal ancestral remains which are believed to belong to interstate Traditional Owners will be reported to the NAHC. The NAHC would then oversee discussions between relevant State and Territory government agencies and Traditional Owners to facilitate repatriation.

The NAHC could also direct a national program for caring for Aboriginal ancestral remains for which no origin could be established. Many Aboriginal ancestral remains discovered are not able to be provenanced. Recent discussions regarding a national or state keeping places for such remains could be progressed sensitively through the NAHC. 4.3.4 Administering an Aboriginal intangible heritage agreement process As with Aboriginal ancestral remains, Aboriginal intellectual property rights are best addressed at a national level. Victoria has established Australia’s only Aboriginal intangible heritage agreement process, and this could be replicated on a national scale.

AV’s submission on the review of the EPBC Act is relevant here and is reproduced in part below.

Australia lacks any comprehensive national legal framework to manage Aboriginal intangible heritage and intellectual property (IP). Australian IP legislation generally applies requirements that do not accord with Aboriginal conceptualisations of traditional knowledge or IP, and therefore fail to provide adequate protection.

For example, knowledge, skills or practices, including environmental or ecological knowledge, are unlikely to be protected - unless these amount to a patentable invention or identify a registrable plant variety (and these are registered under the relevant legislation) or where the law will protect that knowledge as confidential.

Even where IP rights could protect Aboriginal intangible heritage, there are other issues. IP rights generally require the identification of one or more individual authors, artists, designers, inventors or other makers. This is problematic as Aboriginal intangible heritage is collective, and has developed over time. As Aboriginal intangible heritage is 'traditional' rather than newly created, it will not meet the various requirements for novelty (design and patents) or originality (copyright) that exist for some IP property rights.

OFFICIAL Rights in registered patents, trademarks, designs and plant varieties, and (with some exceptions) copyright, subsist for a limited time, which is not appropriate for knowledge which has been and will be handed down through generations.

Accordingly, Australian IP rights do not provide a comprehensive framework to ensure that Traditional Owners can control conservation, research, development or commercial use of their intangible heritage and IP. Nor do IP rights currently provide a mechanism to ensure that Traditional Owners can be remunerated where Aboriginal intangible heritage is commercially exploited by third parties.

Because of Australia’s federal system, any state legislation ceases to function beyond its borders. Therefore, while Aboriginal intangible heritage can be specifically registered and protected under the AH Act, for example, this protection does not apply outside Victoria.

AV therefore would like to see concerted Commonwealth efforts to address this matter, despite its reluctance to ratify the 2003 United Nations Convention for the Safeguarding of the Intangible Cultural Heritage. The proposed NAHC could act as an advisory body, similar to the Trade Marks Maori Advisory Committee and the Patents Maori Advisory Committee established under Aotearoa / New Zealand intellectual property regimes.

A national Aboriginal intangible heritage agreement system, similar to that established in Victoria, could be administered through the NAHC. Under this system, the NAHC would receive applications to register Aboriginal intangible heritage, determine their suitability for registration and manage this sensitive information. It would then facilitate agreement making between Traditional Owners and third parties wishing to use that intangible heritage for commercial purposes. The NAHC would maintain a register of such agreements and have powers to enforce them.

This solution would address a significant gap in IP protection in Australia, and would directly address the discrimination inherent in current IP protection systems which do not recognise the distinct characteristics of Indigenous IP. 4.3.5 Regulating the trade and movement of portable Aboriginal heritage across borders and internationally Another issue requiring consistent national regulation is the trade and exchange of movable Aboriginal cultural heritage across borders and internationally. AV in 2015 provided advice on the review of the PMCH Act and we reproduce some of that advice below.

In keeping with UNDRIP (particularly Articles 3, 11, 12 and 31), Aboriginal people should have the right to control the movement of their cultural heritage objects out of Australia, and the Commonwealth Government should take effective measures to recognise and protect the exercise of this right.

Notwithstanding the current constitution of the National Cultural Heritage Committee including one Aboriginal member, AV considers this inadequate representation of Aboriginal people to make such decisions or to provide necessary advice in relation to Aboriginal cultural heritage. The NAHC should be either a sub-committee of this committee, to which all decisions relating to Aboriginal cultural heritage are referred, or it should assume the functions of the committee under the PMCH Act for matters relating to Aboriginal cultural heritage.

The NAHC should be empowered to establish a panel of Aboriginal experts be convened to determine any export (temporary or permanent) permit application which relates to Aboriginal

OFFICIAL objects. The role of the NAHC would be to receive and process the application, but it would refer all applications to the panel. The panel’s role would be to investigate and consult with relevant Traditional Owners about individual applications, decide whether a permit should be granted or refused and advise the NAHC of its decision. The NAHC would then inform the applicant of the decision.

In cases where a person applies for a permit relating to an Aboriginal cultural heritage item under sections 10 and 10A of the PMCH Act, we propose that either the PMCH Act establish the NAHC as the Committee for the purpose of that section, or that the power to grant the permit be removed from the Minister to the NAHC.

Where an exemption certificate or variation under sections 12 or 13 is sought for an Aboriginal protected object, the NAHC should be at least consulted about that application. This would allow Aboriginal people to exercise some control over the subsequent export of significant cultural heritage after they have been imported into Australia.

AV understands this may act as a deterrent to future exhibitions of Aboriginal cultural heritage held by international institutions, however it is appropriate that Aboriginal people are at least involved in discussions about the subsequent export of such material.

Related to this issue is the sale of Aboriginal cultural heritage across state borders. As with Aboriginal intangible heritage and IP protection, Australia lacks consistent laws at the state level relating to buying and selling Aboriginal cultural heritage. This means that the sale or movement of objects of significance to Aboriginal Victorians in other states, for example, are not able to be controlled by Aboriginal Victorian Traditional Owners, as is provided for if those objects are within Victoria. Selling an Aboriginal heritage object in Victoria requires a cultural heritage permit under the AHA. Such permits are determined solely by the relevant RAP, where one is in place. This provides self-determination to Aboriginal people in Victoria over the trade and movement of Aboriginal heritage objects. Aboriginal Victorians are disempowered by other state laws which do not recognise this authority.

The NAHC could coordinate applications for permits to buy or sell Aboriginal portable objects with the appropriate Traditional Owner organisation in cases where the objects are from a different state to that in which the sale is to occur and an appropriate Traditional Owner organisation exists. 4.3.6 Advising the Minister for the Environment on EPBC Act matters The NAHC would be empowered to provide advice to the Minister for the Environment on Aboriginal cultural heritage matters. Principally, however, the NAHC would be the arbiter of which State and Territory Aboriginal heritage legislation was accredited for the purpose of section 45 bilateral agreements under the EPBC Act. We will discuss this further in the next section responding to term of reference (i). 4.3.7 Advising the Commonwealth generally on Aboriginal cultural heritage matters The NAHC should be provided a general advisory role to the Commonwealth Government on Aboriginal cultural heritage matters.

OFFICIAL 4.4 Suggested Improvements to State Aboriginal Cultural Heritage Legislation The accreditation of State Aboriginal cultural heritage legislation as stated above (see 4.3.1) should be a function of the NAHC.

Through accreditation, AV suggests Commonwealth legislation should act to ensure that all State and Territory legislation contains at least the following threshold elements:

a. Establish Aboriginal statutory authorities to exercise certain functions b. Decisions allowing heritage impacts by development to be made by Aboriginal statutory authorities, not by Ministers or departments c. Statutory Aboriginal decision-making rights not able to be overturned by Ministers or departments, but subject to independent tribunal and/or court review d. Provisions requiring Aboriginal heritage impact assessments (e.g. CHMPs) under certain circumstances (e.g. AHA; Queensland Aboriginal Cultural Heritage Act 2003) e. Provisions preventing the granting of other statutory approvals allowing development to commence until CHMPs are approved (e.g. section 52, AHA) f. Mechanisms to ensure that native title agreements incorporate State or Territory heritage assessment processes before development can occur (e.g. by making the CHMP a necessary prerequisite for development – see e. above) g. Provisions recognising that harming Aboriginal cultural heritage is a last resort and only permissible after proper assessment of impacts h. Provisions allowing for incorrect or poorly-informed decisions to be reviewed upon receipt of additional information i. Penalties and offences with appropriate deterrent effect j. Regulated minimum standards for Aboriginal heritage assessments based on current best practice cultural heritage management k. Definitions of Aboriginal cultural heritage that include Aboriginal intangible heritage l. Requirements to report discoveries of Aboriginal ancestral remains to the appropriate statutory Aboriginal authority m. Appropriately protected and maintained registers of known Aboriginal cultural heritage n. More than one type of protective mechanism (e.g. CHMPs, permits, protection declarations, agreements) o. Appropriate enforcement and compliance provisions

State and Territory laws which do not address these matters adequately should not be accredited as they do not facilitate fully informed Aboriginal cultural heritage management decisions.

As an example, the Juukan Gorge matter would have been progressed differently had the above minimum standards been in place.

First, the native title agreement between the Traditional Owners and Rio Tinto would have progressed as normal, however a CHMP would have had to be approved by the Traditional Owners before the mine could be given a statutory authority under State mining legislation to commence operations, or extend into a new area. This CHMP would have required complex excavation of the rock shelters to determine their nature, extent and significance before it was able to be approved. With this information in hand, the Traditional Owners would have been able to make a prior and informed decision about the management and protection of the rock shelters.

OFFICIAL Second, if the Traditional Owners had approved the CHMP and the mine was provided with its statutory approval to commence operating, and additional information about the significance of the rock shelters subsequently came to light, the operations could have been halted and an audit conducted of the CHMP. Appropriate changes to the management recommendations could have been made at that point.

Third, Rio Tinto would have had the opportunity to appeal the decision to an independent tribunal or court.

Regardless of the outcome, the decision would have been made by the Traditional Owners, fully informed about the nature, extent and significance of the place by the detailed excavations undertaken for the CHMP; or by an independent tribunal only after considering the original decision by the Traditional Owners and with the same information. Ministers and departmental secretaries or CEOs would not have been involved in the decision.

This process does not guarantee that Juukan Gorge would have been saved, but it does guarantee a fully informed, early and accountable decision-making process, which, in this case, suggests that the Traditional Owners would not have approved the activity.

OFFICIAL 5.0 (i) opportunities to improve Indigenous heritage protection through the Environment Protection and Biodiversity Conservation Act 1999 In addition to new separate Commonwealth Aboriginal cultural heritage legislation as suggested above, Indigenous heritage protection can be afforded better protection through the accreditation and bilateral agreement processes under section 45 of the EPBC Act. The EPBC Act could also be amended to add significant Aboriginal places (nominated by the NAHC) as matters of national environmental significance.

AV’s submission to the review of the EPBC Act is relevant here and is reproduced in part below.

AV suggests the Commonwealth consider statutory Aboriginal decision-making powers similar to those enjoyed by RAPs under the AHA as a threshold issue when considering bilateral assessment and approval agreements and accrediting state environment assessment regimes under part 5 of the EPBC Act. To be clear, AV suggests the Commonwealth consider bilateral agreements with states only if that State’s Aboriginal cultural heritage protection laws and/or environment assessment laws provide for the threshold issues listed above (see 4.4). At minimum, Aboriginal people, and specifically Traditional Owners, should be provided statutory approval powers over cultural heritage assessments, plans, permits or equivalent, equal to or greater than the powers provided to RAPs under Victoria’s AHA. This extends to powers under section 52 of the AH Act, which prevents other statutory approvals from being granted until CHMP approvals have been granted by RAPs. Currently, only Victoria and Queensland would pass this threshold4.

Under the proposal for new Commonwealth Aboriginal cultural heritage legislation, States and Territories without accredited Aboriginal cultural heritage protection legislation under new Commonwealth Aboriginal heritage legislation would be ineligible to enter into bilateral agreements with the Commonwealth under the EPBC Act. CHMPs would become mandatory under such State and Territory environment laws for activities which engaged EPBC Act approval processes. In this way, proponents in all accredited States and Territories would need to satisfy the requirements of a CHMP in order to obtain EPBC Act and state environment approvals, as is currently the case in Victoria.

This would prompt other States and Territories to establish or improve statutory decision-making rights for Aboriginal people, and specifically for Traditional Owners, to control management and protection of their cultural heritage. It would also move the EPBC Act toward becoming legislation that explicitly gives effect to Article 31 of UNDRIP, consistent with Australia’s commitments as a signatory.

AV would like the Commonwealth to consider adding significant Aboriginal cultural heritage places to its list of matters of national environmental significance. While such places may already be included via the National Heritage List and World Heritage List, the particular significance of

4 Although the Aboriginal Cultural Heritage Act 2003 (Queensland) provides the final approval authority of CHMPs to the Chief Executive of the relevant department, the Chief Executive must approve a CHMP if all relevant RAPs have approved the CHMP (section 107). The Queensland legislation also prevents other statutory approvals from being granted until a CHMP has been approved for a project, although unlike Victoria, it does allow such approvals to be granted with conditions relating to Aboriginal cultural heritage protection measures (section 88).

OFFICIAL Aboriginal cultural heritage and the principles of Aboriginal self-determination warrant a distinct approach.

6.0 (j) any other related matters 6.1 Concluding remarks Over-reliance on the NT Act to protect Aboriginal cultural heritage in States and Territories with large-scale mining industries is clearly inadequate for preventing Juukan Gorge-type incidents. Native title agreements that include conditions to further investigate or research Aboriginal cultural heritage without the State then requiring this in order to obtain statutory approvals is insufficient. Local level native title agreements need to be reinforced by strong State and Territory Aboriginal heritage laws which facilitate informed decisions by Traditional Owners prior to being able to be acted upon. Only under the condition that large mining corporations may not obtain their development approvals will they fully apply appropriate Aboriginal cultural heritage management processes before seeking statutory approval for their activities.

The recommendations in this submission reinforce the principle of free, prior and informed consent as a necessary prerequisite for true Aboriginal self-determination. Strong State and Territory Aboriginal cultural heritage legislation that properly empowers Aboriginal Traditional Owners to make decisions about their cultural heritage can narrow the power differential between large corporations and many Traditional Owner groups. The reforms to Commonwealth and State Aboriginal cultural heritage legislation suggested in this submission will help to ensure that Juukan Gorge-type incidents will not happen again.

OFFICIAL