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Aboriginal Victoria Aboriginal Victoria Submission to Joint Standing Committee on Northern Australia Inquiry into Juukan Gorge July 2020 1 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 2 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 3 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; 4 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,
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